EXHIBIT 4.3(A)
Healthtrust, Inc. -- The Hospital Company
Senior Subordinated Notes due 2009
____________
Purchase Agreement
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April 30, 1999
Goldman, Sachs & Co.
NationsBanc Montgomery Securities LLC
Chase Securities Inc.
Salomon Smith Barney Inc.
SG Cowen Securities Corporation
As representatives of the several Purchasers
named in Schedule I hereto
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Healthtrust, Inc.-The Hospital Company, a Delaware corporation
("Healthtrust"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the Purchasers named in Schedule I hereto (the "Purchasers"),
for whom Goldman, Sachs & Co., NationsBanc Montgomery Securities LLC, Chase
Securities Inc., Salomon Smith Barney Inc. and SG Cowen Securities Corporation
are acting as representatives (in such capacity, the "Representatives"), an
aggregate of $325,000,000 principal amount of the Senior Subordinated Notes of
Healthtrust, specified above (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 Depositary Trust
Company ("DTC") pursuant to a letter agreement, to be dated as of the Time of
Delivery (as defined in Section 4(a) hereof) (the "DTC Agreement"), among
Healthtrust, the Trustee and DTC.
Healthtrust has prepared and delivered to each Initial Purchaser copies of
a preliminary offering circular dated April 12, 1999 (the "Preliminary Offering
Circular") and has prepared and will deliver to each Purchaser, on the date
hereof or the next succeeding day, copies
of a final offering circular dated April 30, 1999 (the "Final Offering
Circular"), each for use by such Purchaser in connection with its solicitation
of purchases of, or offering of, the Securities. "Offering Circular" means, with
respect to any date or time referred to in this Agreement, the most recent
offering circular (whether the Preliminary Offering Circular or the Final
Offering Circular, 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
Purchasers in connection with their solicitation of purchases of, or offering
of, the Securities.
For purposes of this Agreement, (a) the term "Business" shall mean the net
assets, business and operations comprising the Pacific 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 Circular (the "New Credit Agreement"), (ii) the transfer of the
Business by Healthtrust to Triad Hospitals, Inc. ("Triad"), a new wholly owned
subsidiary of Healthtrust, and the simultaneous assumption by Triad of the
indebtedness evidenced by the Securities and by the New Credit Agreement, (iii)
the subsequent transfer of the Business by Triad to Triad Hospitals Holdings,
Inc. ("Holdings"), a new wholly owned subsidiary of Triad, 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 Triad to Columbia/HCA, and (v) the distribution by Columbia/HCA of all
of the common stock of Triad to the stockholders of Columbia/HCA, in each case,
as set forth in the Offering Circular.
Upon Healthtrust transferring the Business to Triad and the assumption by
Triad of the indebtedness evidenced by the Securities, Healthtrust will cause
Triad to assume all the rights, obligations and liabilities of Healthtrust under
this Agreement pursuant to the Triad Assumption Agreement, the form of which is
attached as Annex VI hereto. Upon Triad transferring the Business to Holdings
and the assumption by Holdings of the indebtedness evidenced by the Securities,
Triad will cause Holdings to assume all rights, obligations and liabilities of
Triad under this Agreement pursuant to the Holdings Assumption Agreement, the
form of which is attached as Annex VII hereto. Following the assumption by
Holdings of the indebtedness evidenced by the Securities, Holdings will
contribute certain assets to its subsidiary, Triad Holdings II, LLC and Triad
Holdings II, LLC will then contribute certain assets to its subsidiary, Triad
Holdings III, 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 Annex VIII 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 Triad and the Triad 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, Triad 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 Triad 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 exchange and registration
rights agreement substantially in the form of Annex IX hereto to be dated as of
the Time of Delivery (the "Registration Rights Agreement") among Healthtrust and
the Purchasers, pursuant to which the Company will agree to file as soon as
practicable after the Time of Delivery but in any event within 90 days after the
Time of Delivery, a registration statement with the Securities and Exchange
Commission (the "Commission") registering the Exchange Notes (as defined in the
Registration Rights Agreement) under the United States Securities Act of 1933,
as amended (the "Act").
Healthtrust represents and warrants to, and agrees with, each of the
Purchasers as of the date hereof and as of the Time of Delivery, and agrees with
each Purchaser, that:
(a) Offering Circular. The Offering Circular and any amendments or
supplements thereto do not and will not, as of their respective dates and
as of the Time of Delivery, 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 Circular made in
reliance upon and in conformity with information furnished to the Company
in writing by any Purchaser through Goldman, Sachs & Co. expressly for use
in the Offering Circular.
(b) Independent Accountants. The accountants who certified the financial
statements and supporting schedules included in the Offering Circular are
independent public accountants with respect to each of Triad and its
subsidiaries and Columbia/HCA and its subsidiaries within the meaning of
Regulation S-X under the Act.
(c) Financial Statements. The historical financial statements relating to
Triad, together with the related schedules and notes, included in the
Offering Circular 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 Circular 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
Circular. The pro forma financial statements of Triad and the related notes
thereto included in the Offering Circular 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 Circular 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.
(d) No Material Adverse Change in Business. Since the respective dates as
of which information is given in the Offering Circular, except as otherwise
described in the Offering Circular, (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, Triad or
Holdings or any of the Designated Subsidiaries (as defined in Section 1(f)
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 Triad or
Holdings on any class of its capital stock. Since the respective dates as
of which information is given in the Offering Circular, except as otherwise
stated therein, there has not been any material increase in the amount of
debt to be assumed by Triad and its subsidiaries in connection with the
Distribution. Since the respective dates as of which information is given
in the Offering Circular, 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").
(e) Good Standing of Healthtrust, Triad and Holdings. Each of Healthtrust,
Triad 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 Circular and to enter into and perform its
obligations under this Agreement; and each of Healthtrust, Triad 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.
(f) 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
Circular 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
Circular, 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. Triad
has no direct subsidiaries other than Holdings and Holdings has no
subsidiaries other than Triad Holdings II, LLC and Triad Holdings III, Inc.
(g) Capitalization. The authorized, issued and outstanding capital stock
of Triad, after giving effect to the Distribution, will be as set forth in
the Offering Circular in the column entitled "As Adjusted" 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 Circular or pursuant to the exercise of
convertible securities or options referred to in the Offering Circular).
The shares of issued and outstanding capital stock of each of Healthtrust,
Triad 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, Triad or Holdings was issued in violation of the
preemptive or other similar rights of any securityholder of Healthtrust,
Triad or Holdings. Healthtrust owns 100% of the capital stock of Triad and
Triad owns 100% of the capital stock of Holdings.
(h) Authorization of Agreements. This Agreement has been duly authorized,
executed and delivered by Healthtrust. At the Time of Delivery, this
Agreement will have been duly authorized by each of Triad, Holdings and the
Guarantors. Each of the Registration Rights Agreement and the DTC 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
(i) the enforcement thereof (A) 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 (B) is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law) and (ii) any rights to indemnity or contribution
thereunder may also be limited by federal and state securities laws and
public policy considerations. At the Time of Delivery, the Registration
Rights Agreement will have been duly authorized by each of Triad and
Holdings and, when Triad and Holdings execute and deliver the Triad
Assumption Agreement and the Holdings Assumption Agreement to the
Registration Rights Agreement, respectively, will constitute a valid and
binding agreement of Triad and Holdings, respectively, enforceable against
Triad and Holdings, respectively, in accordance with its terms, except that
(i) the enforcement thereof (A) 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 (B) is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law) and (ii) any rights to indemnity or contribution
thereunder may also be limited by federal and state securities laws and
public policy considerations. At the Time of Delivery, 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 (i) 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 (ii) 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 Time of Delivery, the DTC Agreement
will have been duly authorized by Triad and Holdings and, when such
Agreement is assumed by Triad and Holdings, respectively, will constitute a
valid and binding agreement of Triad and Holdings, respectively,
enforceable against Triad 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).
(i) 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 Time of Delivery,
the Indenture will have been duly authorized by each of Triad and Holdings
and, when the first and second indenture supplements to the Indenture are
executed and delivered by Triad and Holdings, respectively, will constitute
a valid and binding agreement of Triad and Holdings, respectively,
enforceable against Triad 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 Time
of Delivery, 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 Time
of Delivery, the Indenture will conform in all material respects to the
requirements of the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission applicable
to an indenture that is qualified thereunder.
(j) Authorization of the Securities. The Securities have been duly
authorized and, at the Time of Delivery, 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 Time of Delivery, the Securities will have been
authorized by each of Triad and Holdings and, when the first and second
indenture supplements to the Indenture are executed and delivered by Triad
and Holdings, respectively, will constitute valid and binding obligations
of Triad and Holdings, respectively, enforceable against Triad 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 Time of Delivery, will
have been authorized by Triad 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).
(k) Description of the Securities, the Indenture and the 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 Circular and will be in
substantially the respective forms previously delivered to the Purchasers.
(l) Absence of Defaults, Violations and Conflicts. None of Triad, 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 Triad, 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 Triad, 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 Triad 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 Triad or Holdings in connection with the
transactions contemplated hereby or thereby and the consummation of (i) the
issuance and sale of the Securities and the use of the proceeds from the
sale of the Securities as described in the Offering Circular under the
caption "Use of Proceeds" and (ii) the Distribution and compliance by each
of Triad 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 Triad, 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 Circular, nor will such action result in any violation of the
provisions of (A) the charter, by-laws or other formation documents of any
of Healthtrust, Triad or Holdings or any of the Designated Subsidiaries or
(B) 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 Triad 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 (B)
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 Triad 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 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 (x) the issuance and sale of the
Securities and the use of proceeds from the sale of Securities as described
in the Offering Circular under the caption "Use of Proceeds" and (y) 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 Circular, nor will such action
result in any violation of the provisions of (A) the Certificate of
Incorporation or by-laws of Healthtrust or (B) 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 (B) 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.
(m) Absence of Labor Dispute. No labor dispute with the employees of any of
the Business, Triad 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.
(n) Absence of Proceedings. Except as disclosed in the Offering Circular,
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, Triad or Holdings,
threatened, against or affecting any of Healthtrust, Triad 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, Triad 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 Circular, including ordinary routine litigation incidental to the
business, would not result in a Material Adverse Effect.
(o) 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, Triad, 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.
(p) 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, Triad or Holdings of its
obligations hereunder, in connection with (i) the offering, issuance or
sale of the Securities hereunder, (ii) the consummation of the transactions
contemplated by this Agreement, the Registration Rights Agreement and the
Indenture, (iii) the consummation of the Distribution or (iv) for the due
execution, delivery or performance of the Indenture and the Registration
Rights Agreement by any of Healthtrust, Triad or Holdings, except (A) such
as have been already obtained and are in full force and effect, (B) in
connection with the registration of the Exchange Notes pursuant to the
Registration Rights Agreement, (C) any filings under state securities or
Blue Sky laws in connection with the sale of the Securities and the
Exchange Notes, (D) the qualification of the Indenture under the Trust
Indenture Act, in connection with the Exchange Offer and (E) for such
approvals or consents the failure so to obtain with respect to Triad 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.
(q) Possession of Licenses, Permits and Consents. Each of the Business,
Triad, 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 Circular
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, Triad,
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 Circular 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, Triad, Holdings or any
of the Designated Subsidiaries has received any notice of proceedings
relating to the 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 Circular. Each of the Business,
Triad 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, Triad, 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, Triad, 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.
(r) Medicare and Medicaid. To the extent described in the Offering
Circular and except as otherwise described in the Offering Circular, 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") (i) 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 Circular, except as would not
result in a Material Adverse Effect; (ii) are, and after the Distribution,
will be certified for participation or enrollment in the Medicare and
Medicaid programs; (iii) have, and after the Distribution, will have the
benefit of a current and valid provider contract with the Medicare and
Medicaid programs; and (iv) 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, Triad 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 Triad 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
Circular, none of the Business, Triad, 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, Triad, 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.
(s) Title to Property. The Business, Triad and Holdings and the Designated
Subsidiaries have good and marketable title to all real property described
in the Offering Circular as owned by each of them and good title to all
other properties described in the Offering Circular 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 (i) such
as are described in the Offering Circular, (ii) pursuant to the New Credit
Agreement or (iii) 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, Triad, Holdings and the Designated
Subsidiaries and under which any of the Business, Triad, Holdings or any of
the Designated Subsidiaries holds properties described in the Offering
Circular, are in full force and effect, and none of the Business, Triad,
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, Triad, 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, Triad, 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.
(t) Environmental Laws. Except as described in the Offering Circular and
except such matters as would not, singly or in the aggregate, result in a
Material Adverse Effect, (i) none of the Business, Triad, 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"), (ii) the
Business, Triad, 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, (iii)
none of Healthtrust, Triad, Holding 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, Triad, Holdings or any of
the Designated Subsidiaries and (iv) none of Healthtrust, Triad, 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, Triad, Holdings or any of the Designated Subsidiaries
relating to Hazardous Materials or Environmental Laws.
(u) Investment Company Act. None of Healthtrust, Triad, 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
Circular and the assumption of the obligations of the Securities by Triad
and Holdings pursuant to the first and second indenture supplements to the
Indenture, will be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment Company
Act of 1940, as amended (the "Investment Company Act").
(v) Similar Offerings. None of Healthtrust, Triad, Holdings or any of their
respective affiliates, as such term is defined in Rule 501(b) under the 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 Act.
(w) Rule 144A Eligibility. Assuming compliance with the representations in
Section 3 hereof, the Securities are eligible for resale pursuant to Rule
144A and will not be, at the Time of Delivery, of the same class as
securities listed on a national securities exchange registered under
Section 6 of the United States Securities Exchange Act of 1934, as amended
(the "Exchange Act"), or quoted in a U.S. automated interdealer quotation
system.
(x) No General Solicitation. None of Healthtrust, Triad, Holdings, its
Affiliates or any person acting on its or any of their behalf (other than
the Purchasers, as to whom Healthtrust, Triad 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 Act.
(y) No Registration Required. Subject to compliance by the Purchasers with
the representations and warranties set forth in Section 3 hereof, it is not
necessary in connection with the offer, sale and delivery of the Securities
to the Purchasers and to each subsequent purchaser of the Securities in the
manner contemplated by this Agreement and the Offering Circular to register
the Securities under the Act or to qualify the Indenture under the Trust
Indenture Act.
(z) Reporting Company. After the consummation of the Distribution, Triad
will be subject to the reporting requirements of Section 13 or Section
15(d) of the Exchange Act.
(aa) Accounting Controls. Each of the Business, Triad, Holdings and the
Designated Subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization,
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP and to maintain accountability
for assets, (iii) access to assets is permitted only in accordance with
management's general or specific authorization and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(bb) Insurance. Each of the Business, Triad, 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.
(cc) Solvency. Healthtrust is, and immediately after the Time of Delivery
will be, Solvent. Each of Triad 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, Triad and Holdings, as the case may be, on a particular date,
that on such date (i) the fair market value of the assets of Healthtrust,
Triad and Holdings, as the case may be, is greater than the total amount of
liabilities (including contingent liabilities) of Healthtrust, Triad and
Holdings, as the case may be, (ii) the present fair salable value of the
assets of Healthtrust, Triad and Holdings, as the case may be, is greater
than the amount that will be required to pay the probable liabilities of
Healthtrust, Triad and Holdings, as the case may be, on its debts as they
become absolute and matured, (iii) Healthtrust, Triad 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 (iv) Healthtrust, Triad and Holdings, as
the case may be, does not have unreasonably small capital.
(dd) Stabilization. None of Healthtrust, Triad, 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,
Triad or Holdings to facilitate the sale or resale of the Securities.
(ee) Year 2000 Problem. Each of Healthtrust, Triad 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
Circular each of Healthtrust, Triad 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.
(ff) Compliance with the Cuba Act. Each of Healthtrust, Triad 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.
(gg) New Credit Agreement. The Company has received commitments from
lenders under the New Credit Agreement for 100% of the commitments under
the New Credit Agreement.
(hh) 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 Exchange Act, or any regulation promulgated thereunder, including,
without limitation, Regulations T, U and X of the Board of Governors of the
Federal Reserve System.
(ii) Healthtrust Assets. (i) 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 (ii) other then as described in clause
(i), 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 Circular, with the exception of the intercompany
notes referred to in clause (i) of the preceding sentence.
Any certificate signed by any officer of the Company or any of its
subsidiaries delivered to the Representatives or to counsel for the Purchasers
shall be deemed a representation and warranty by the Company to each Purchaser
as to the matters covered thereby.
2. Subject to the terms and conditions herein set forth, Healthtrust agrees to
issue and sell to each of the Purchasers, and each of the Purchasers agrees,
severally and not jointly, to purchase from Healthtrust, at a purchase price of
97% of the principal amount thereof, plus accrued interest, if any, from May 11,
1999 to the Time of Delivery hereunder, the principal amount of Securities set
forth opposite the name of such Purchaser in Schedule I hereto.
3. Upon the authorization by you of the release of the Securities, the several
Purchasers propose to offer the Securities for sale upon the terms and
conditions set forth in this Agreement and the Offering Circular and each
Purchaser hereby represents and warrants to, and agrees with the Company that:
(a) It will offer and sell the Securities only to: (i) persons who it reasonably
believes are "qualified institutional buyers" ("QIBs") within the meaning of
Rule 144A under the Act in transactions meeting the requirements of Rule 144A or
(ii) upon the terms and conditions set forth in Annex I to this Agreement;
(b) It will not offer or sell the Securities by any form of general solicitation
or general advertising, including but not limited to the methods described in
Rule 502(c) under the Act; and
(c) It is an institution that is an "accredited investor" pursuant to Rule
501(1), (2), (3) or (9) of Regulation D under the Act.
4. (a) The Securities to be purchased by each Purchaser hereunder will be
represented by one or more definitive global Securities in book-entry form which
will be deposited by or on behalf of Healthtrust with DTC or its designated
custodian. Healthtrust will deliver the Securities to Goldman, Sachs & Co., for
the account of each Purchaser, against payment by or on behalf of such Purchaser
of the purchase price therefor by wire transfer of immediately available funds
to a bank account designated by Healthtrust, by causing DTC to credit the
Securities to the account of Goldman, Sachs & Co. at DTC. Healthtrust will cause
the certificates representing the Securities to be made available to Goldman,
Sachs & Co. for checking at least twenty-four hours prior to the Time of
Delivery at the office of DTC or its designated custodian (the "Designated
Office"). The time and date of such delivery and payment shall be 9:00 a.m., New
York City time, on May 11, 1999 or such other time and date as
Goldman, Sachs & Co. and the Company may agree upon in writing. Such time and
date are herein called the "Time of Delivery".
(b) The documents to be delivered at the Time of Delivery by or on behalf of the
parties hereto pursuant to Section 7 hereof, including the cross-receipt for the
Securities and any additional documents requested by the Purchasers pursuant to
Section 7(i) hereof, will be delivered at such time and date at the offices of
Dewey Ballantine LLP, 1301 Avenue of the Americas, New York, New York 10019 (the
"Closing Location"), and the Securities will be delivered at the Designated
Office, all at the Time of Delivery. A meeting will be held at the Closing
Location at 4:00 p.m., New York City time, on the New York Business Day next
preceding the Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Purchasers:
(a) To prepare the Offering Circular in a form approved by you; to make no
amendment or any supplement to the Offering Circular which shall be disapproved
by you promptly after reasonable notice thereof; and to furnish you with copies
thereof;
(b) To furnish the Purchasers with copies of the Offering Circular and each
amendment or supplement thereto in such quantities as you may from time to time
reasonably request, and if, at any time prior to the earlier of (i) completion
of the distribution of the Securities (as reasonably determined by the
Representatives) and (ii) the expiration of nine months after the date of the
Offering Circular, any event shall have occurred as a result of which the
Offering Circular as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such Offering Circular is delivered, not misleading,
or, if for any other reason it shall be necessary or desirable during such same
period to amend or supplement the Offering Circular, to notify you and upon your
request to prepare and furnish without charge to each Purchaser and to any
dealer in securities as many copies as you may from time to time reasonably
request of an amended Offering Circular or a supplement to the Offering Circular
which will correct such statement or omission or effect such compliance;
(c) Promptly from time to time to take such action as you may reasonably request
to qualify the Securities for offering and sale under the securities laws of
such jurisdictions as you may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of the Securities,
provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation, to file a general consent to
service of process in any jurisdiction or subject itself to taxation in any such
jurisdiction;
(d) To take all reasonable action necessary to enable Standard & Poor's Ratings
Services, a division of McGraw Hill, Inc. ("S&P"), and Moody's Investors Service
Inc. ("Moody's") to provide their respective credit ratings of the Securities;
(e) To cooperate with the Representatives and use its reasonable best efforts to
permit the Securities to be eligible for clearance and settlement through the
facilities of DTC;
(f) To use the net proceeds received by it from the sale of the Securities
pursuant to this Agreement in substantially the manner specified in the Offering
Circular under the caption "Use of Proceeds";
(g) To use its reasonable best efforts to cause the Securities to be eligible
for the PORTAL trading system of the National Association of Securities Dealers,
Inc.;
(h) Not to be or become, at any time prior to the expiration of two years after
the Time of Delivery, 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 Investment Company Act;
(i) For so long as any of the Securities remain outstanding, at any time when
the Company is not subject to Section 13 or 15(d) of the Exchange Act, the
Company will furnish at its expense, upon request, to any holders of Securities
and any prospective purchasers thereof information (the "Additional Issuer
Information") satisfying the requirements of subsection (d)(4)(i) of Rule 144A
under the Act;
(j) 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;
(k) During a period of five years from the date of the Offering Circular, to
furnish to you copies of all reports or other communications (financial or
other) furnished to stockholders of the Company, and to deliver to you (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 you may from time to time reasonably request (such financial
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);
(l) During the period of two years after the Time of Delivery, the Company will
not, and will not permit any of its "affiliates" (as defined in Rule 144 under
the Act) to, resell any of the Securities which constitute "restricted
securities" under Rule 144 that have been reacquired by any of them; and
(m) To file and use its reasonable best efforts to cause to be declared or
become effective under the Securities Act, on or prior to 90 days after the Time
of Delivery, 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 Act, all in
accordance with the provisions of the Registration Rights Agreement.
6. The Company covenants and agrees with the several Purchasers that the Company
will pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the issue
of the Securities and all other expenses in connection with the preparation,
printing and filing of the Preliminary Offering Circular and the Final Offering
Circular and any amendments and supplements thereto and the mailing and
delivering of copies thereof to the Purchasers and dealers; (ii) the cost of
printing or producing any Agreement among Purchasers, this Agreement, the
Indenture, the Registration Rights Agreement, the Blue Sky survey, closing
documents (including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 5(c)
hereof, including the reasonable fees and disbursements of counsel for the
Purchasers in connection with such qualification and in connection with the Blue
Sky and legal investment surveys; (iv) any fees charged by securities rating
services for rating the Securities; (v) the cost of preparing the Securities;
(vi) the fees and expenses of the Trustee and any agent of the Trustee and the
reasonable fees and disbursements of counsel for the Trustee in connection with
the Indenture and the Securities; and (vii) all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 8 and 11 hereof, the Purchasers
will pay all of their own costs and expenses, including the fees of their
counsel, transfer taxes on resale of any of the Securities by them, and any
advertising expenses connected with any offers they may make.
7. The obligations of the Purchasers hereunder shall be subject, in their
discretion, to the condition that all representations and warranties and other
statements of the Company herein are, at and as of the Time of Delivery, true
and correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) Dewey Ballantine LLP, special counsel for the Company, Donald P. Fay, Esq.,
General Counsel to Triad, John M. Franck II, Esq., Senior Counsel to
Healthtrust, and
Waller Lansden Dortch & Davis, special regulatory counsel for the Company, shall
each have furnished to you their written opinion, dated the Time of Delivery, in
form and substance satisfactory to you, to the effect set forth in Annexes II,
III, IV, and V hereto;
(b) Simpson Thacher & Bartlett, counsel for the Purchasers, shall have furnished
to you such opinion or opinions, dated the Time of Delivery, with respect to
certain matters as you may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to enable
them to pass upon such matters;
(c) None of the Business, Healthtrust, Triad or Holdings, or any of the
Designated Subsidiaries shall have sustained since the date of the latest
audited financial statements included in the Offering Circular 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 Circular 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, Triad or Holdings, result in a Material Adverse Effect;
(d) At the Time of Delivery, there shall not have been, since the date hereof or
since the respective dates as of which information is given in the Offering
Circular, 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
Representatives 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 Time of Delivery, 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 Time of Delivery, 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 Time of Delivery;
(e) On the date of the Offering Circular prior to the execution of this
Agreement and also at the Time of Delivery, Ernst & Young LLP shall have
furnished to you a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you;
(f) At the Time of Delivery, the Securities shall be rated at least B3 by
Moody's and B- by S&P; and on or after the date hereof (i) no downgrading shall
have occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of any
of the Company's debt securities;
(g) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange or on the Nasdaq National Market
System; (ii) a suspension or material limitation in trading in the securities of
any of Columbia/HCA or Triad on the New York Stock Exchange or the Nasdaq
National Market System, respectively; (iii) a general moratorium on commercial
banking activities declared by either Federal or New York State authorities;
(iv) the outbreak or escalation of hostilities involving the United States or
the declaration by the United States of a national emergency or war, if the
effect of any such event specified in this clause (iv) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities on the terms and in the manner
contemplated in the Offering Circular; or (v) the occurrence of any material
adverse change in the existing, financial, political or economic conditions in
the United States or elsewhere which, in the judgment of the Representatives,
would materially and adversely affect the financial markets or the markets for
the Securities and other debt securities;
(h) The Securities have been designated for trading on PORTAL;
(i) At the Time of Delivery, the Representatives shall have received the
Registration Rights Agreement, substantially in the form of Annex VI hereto,
executed by Healthtrust and such agreement shall be in full force and effect;
(j) At the Time of Delivery, counsel for the 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 Representatives and counsel for the Purchasers; and
(k) 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 $340,000,000 under the New Credit Agreement.
8. (a) The Company and, upon execution of the Guarantor Assumption Agreement,
each guarantor will indemnify and hold harmless each Purchaser against any
losses, claims, damages or liabilities, joint or several, to which such
Purchaser may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in any Preliminary Offering Circular or the Final
Offering Circular, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
necessary to make the statements therein in light of the circumstances under
which they were made not misleading, and will reimburse each Purchaser for any
legal or other expenses reasonably incurred by such Purchaser in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Offering Circular or the Final Offering
Circular or any such amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by or on behalf of any
Purchaser through Goldman, Sachs & Co. expressly for use therein. It is
understood and agreed that the only written information furnished by any
Purchaser for inclusion in the Preliminary Offering Circular or the Final
Offering Circular consists of the following information in the Offering
Circular: (i) the stabilization legend on page ii, (ii) the second sentence
under the caption "Risk Factors-You May Not Be Able to Sell Your Notes", (iii)
the last paragraph on the front cover and (iv) the sixth, seventh, eighth and
ninth paragraphs under the caption "Underwriting".
(b) Each Purchaser will indemnify and hold harmless the Company against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Offering Circular or the Final Offering Circular, or any amendment
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Offering Circular or the Final Offering
Circular or any such amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by or on behalf of such
Purchaser through Goldman, Sachs & Co. expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such action or claim
as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b)
above of notice of the commencement of any action, such indemnified party shall,
if a claim in respect thereof is to be made against the indemnifying party under
such subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action 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) If the indemnification provided for in this Section 8 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Purchasers on the other from the offering
of the Securities. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Purchasers on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Purchasers on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Purchasers, in each case
as set forth in the Offering Circular. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or the Purchasers
on the other and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Purchasers agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if
the 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 subsection (d). The amount paid or payable by an
indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Purchaser shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities
underwritten by it and distributed to investors were offered to investors
exceeds the amount of any damages which such Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. The Purchasers' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 8 shall be in addition to
any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Purchaser
within the meaning of the Act; and the obligations of the Purchasers under this
Section 8 shall be in addition to any liability which the respective Purchasers
may otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and to each person, if any, who controls the
Company within the meaning of the Act.
9. (a) If any Purchaser shall default in its obligation to purchase the
Securities which it has agreed to purchase hereunder, you may in your discretion
arrange for you or another party or other parties to purchase such Securities on
the terms contained herein. If within twenty-four hours after such default by
any Purchaser you do not arrange for the purchase of such Securities, then the
Company shall be entitled to a further period of twenty-four hours within which
to procure another party or other parties satisfactory to you to purchase such
Securities on such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the purchase of
such Securities, or the Company notifies you that it has so arranged for the
purchase of such Securities, you or the Company shall have the right to postpone
the Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Offering Circular,
or in any other documents or arrangements, and the Company agrees to prepare
promptly any amendments to the Offering Circular which in your opinion may
thereby be made necessary. The term "Purchaser" as used in this Agreement shall
include any person substituted under this Section with like effect as if such
person had originally been a party to this Agreement with respect to such
Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Purchaser or Purchasers by you and the Company as
provided in subsection (a) above, the aggregate principal amount of such
Securities which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all the Securities, then the Company shall have
the right to require each non-defaulting Purchaser to purchase the principal
amount of Securities which such Purchaser agreed to purchase hereunder
and, in addition, to require each non-defaulting Purchaser to purchase its pro
rata share (based on the principal amount of Securities which such Purchaser
agreed to purchase hereunder) of the Securities of such defaulting Purchaser or
Purchasers for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Purchaser from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Purchaser or Purchasers by you and the Company as
provided in subsection (a) above, the aggregate principal amount of Securities
which remains unpurchased exceeds one-eleventh of the aggregate principal amount
of all the Securities, or if the Company shall not exercise the right described
in subsection (b) above to require non-defaulting Purchasers to purchase
Securities of a defaulting Purchaser or Purchasers, then this Agreement shall
thereupon terminate, without liability on the part of any non-defaulting
Purchaser or the Company, except for the expenses to be borne by the Company and
the Purchasers as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Purchaser from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Purchasers, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Purchaser or any controlling person of any Purchaser, or the Company, or
any officer or director or controlling person of the Company, and shall survive
delivery of and payment for the Securities. 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, Triad, 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.
11. If this Agreement shall be terminated pursuant to Section 9 hereof, the
Company shall not then be under any liability to any Purchaser except as
provided in Sections 6 and 8 hereof; but, if for any other reason, the
Securities are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Purchasers through you for all out-of-pocket
expenses approved in writing by you, including fees and disbursements of
counsel, reasonably incurred by the Purchasers in making preparations for the
purchase, sale and delivery of the Securities, but the Company shall then be
under no further liability to any Purchaser except as provided in Sections 6 and
8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Purchasers, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Purchaser made or given
by you jointly or by Goldman, Sachs & Co. on behalf of you as the
representatives.
All statements, requests, notices and agreements hereunder shall be in writing,
and if to the Purchasers shall be delivered or sent by mail, telex or facsimile
transmission to you as the representatives in care of Goldman, Sachs & Co., 32
Old Slip, 9th Floor, New York, New York 10005, Attention: Registration
Department; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the Offering
Circular, Attention: Secretary; provided, however, that any notice to a
Purchaser pursuant to Section 8(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Purchaser at its address set forth in
its Purchasers' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by you upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit of,
the Purchasers, the Company and, to the extent provided in Sections 8 and 10
hereof, the officers and directors of the Company and each person who controls
the Company or any Purchaser, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Purchaser shall be deemed a successor or assign by reason
merely of such purchase.
14. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
15. This Agreement may be executed by any one or more of the parties hereto in
any number of counterparts, each of which shall be deemed to be an original, but
all such respective counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us one for the Company and each of the Representatives plus one for
each counsel counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Purchasers, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Purchasers and the Company.
It is understood that your acceptance of this letter on behalf of each of the
Purchasers is pursuant to the authority set forth in a form of Agreement among
Purchasers, the form of which shall be submitted to the Company for examination
upon request, but without warranty on your part as to the authority of the
signers thereof.
Very truly yours,
Healthtrust, Inc. -- The Hospital Company
By: /s/ David Anderson
-------------------------------------
Name: David Anderson
Title: Vice President
Accepted as of the date hereof:
Goldman, Sachs & Co.
NationsBanc Montgomery Securities LLC
Chase Securities Inc.
Salomon Smith Barney Inc.
SG Cowen Securities Corporation
By: /s/ Goldman, Sachs & Co.
----------------------------------
(Goldman, Sachs & Co.)
On behalf of each of the Purchasers