EXHIBIT 4.4
AMENDED AND RESTATED INTERCOMPANY PROMISSORY NOTE
$70,000,000 October 1, 2003
WHEREAS, Lovelace Health Systems, Inc., a New Mexico corporation
(together with its successors and permitted assigns, the "Company") is the
successor by merger to AHS Albuquerque Regional Medical Center LLC, a New Mexico
limited liability company ("AHS Albuquerque"); and
WHEREAS, AHS Albuquerque was indebted to Ardent Health Services, Inc.,
a Delaware corporation (the "Holder") under the terms of the Intercompany
Promissory Note, dated September 30, 2003 (the "Original Note"); and
WHEREAS, the Company and the Holder desire to amend and restate the
Original Note to reflect the succession of the Company to the obligations of AHS
Albuquerque; therefore
FOR VALUE RECEIVED, the Company promises to pay to the order of the
Holder, the Principal Sum (defined below), together with interest thereon as set
forth below.
1. Definitions. All capitalized terms used herein but not otherwise
defined herein shall have the meanings assigned to such terms in the Credit
Agreement. For purposes of this Promissory Note, the following terms shall have
the meanings specified below:
(a) "Credit Agreement" shall mean that Credit Agreement dated as
of August 19, 2003 by and among the Holder, as borrower, the
guarantors identified therein, the lenders identified therein and Bank
One, NA, as administrative agent (in such capacity, the
"Administrative Agent"), as the same may be amended, modified,
supplemented, extended, increased, refinanced, restated or replaced
from time to time.
(b) "Default Rate" shall mean an interest rate equal to the
interest rate required by Section 2(a) plus two percent per annum.
(c) "Intercompany Security Documents" means any security
agreement, pledge, mortgage, deed of trust, or other security document
executed by the Company in favor of the Holder, as amended or modified
in accordance with the terms of the Credit Agreement.
(d) "Maturity Date" shall have the meaning assigned to such term
in Section 3 hereof.
(e) "Obligations" shall have the meaning assigned to such term in
the Credit Agreement.
(f) "Principal Sum" means $70,000,000.
(g) "Responsible Officer" means the chief executive officer,
president, chief financial officer controller or treasurer of the
Company.
(h) "Secured Obligations" has the meaning set forth in the
Intercreditor and Subordination Agreement.
2. Interest (a) Interest shall accrue on the Principal Sum from the date
hereof at the rate equal to the greater of (a) Base Rate plus four percent
(4.0%) per annum, and (b) six percent (6.0%) per annum (each calculated on the
basis of a 365 day year). Interest shall be due and payable on demand.
(b) Upon the occurrence and during the continuation of an Event of
Default, interest on the Principal Sum shall accrue at the Default Rate to the
fullest extent permitted by law.
3. Maturity Date. The Principal Sum plus all accrued interest shall be due
and payable on the later of (a) November 19, 2008, and (b) 30 days after the
maturity date of the Incremental Term Loan with the latest maturity date, unless
accelerated sooner pursuant to Section 6 (the applicable date being referred to
herein as the "Maturity Date"). The Principal Sum shall not be subject to any
scheduled amortization installments.
4. Prepayments. Subject to Section 6, the Company shall not make, and the
Holder shall not accept, any prepayment (voluntary or mandatory) prior to the
Maturity Date.
5. Events of Default. The occurrence of any of the following events shall
constitute an Event of Default (each "Event of Default"):
(a) the Company shall fail to pay within five (5) days of when
required to be paid herein, any principal, interest or other amounts under this
Promissory Note; or
(b) the Company shall fail to perform or observe any covenant or
agreement contained in this Promissory Note or in any Intercompany Security
Document on its part to be performed or observed and such failure continues for
thirty days after the earlier of a Responsible Officer of the Company becoming
aware of such default or notice thereof by the Collateral Agent; or
(c) the occurrence of an "Event of Default" under, and as defined
in, the Credit Agreement, the effect of which is to cause the "Obligations" (as
defined in the Credit Agreement) to be accelerated, demanded due or to otherwise
become due and payable.
6. Remedies. Upon the occurrence of an Event of Default, the Holder may
take any or all of the following actions:
(a) declare the Principal Sum and all accrued interest to
be immediately due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived by
the Company; and
(b) exercise all rights and remedies available to it
under the Intercompany Security Documents or applicable law;
provided, however, that upon the occurrence of an actual or deemed
entry of an order for relief with respect to the Company under the
Bankruptcy Code of the United States, the Principal Sum and all accrued
interest shall automatically become due and payable, in each case
without further act of the Holder.
7. Assignment. The Holder will, immediately upon receipt of this
Promissory Note, grant a security interest in, and collateral assign, all of its
rights and benefits under this Promissory Note to the Collateral Agent as
collateral security for the Secured Obligations. The Holder may not assign this
Promissory Note, in whole or in part, to any other party without the consent of
the Collateral Agent (and any purported assignment or transfer without such
consent shall be void). The Company may not assign this Promissory Note, in
whole or in part, to any party without the consent of the Collateral Agent (and
any purported assignment or transfer without such consent shall be void).
8. Amendments. This Promissory Note may not be amended, waived, modified
or supplemented without the prior written consent of the Company and the
Collateral Agent.
9. Third Party Beneficiary Rights. The holders of the Secured Obligations
have made loans and other extensions of credit to the Holder in reliance on the
provisions of this Promissory Note, including, without limitation, the
provisions of Sections 4, 5, 6 and 7. The holders of the Secured Obligations are
third party beneficiaries of this Promissory Note including, without limitation,
the provisions of Sections 4, 5, 6 and 7. Accordingly, the Collateral Agent
shall be entitled to enforce the provisions of this Promissory Note including,
without limitation, the provisions of Sections 4, 5, 6 and 7, against the Holder
and/or the Company.
10. Interest Rate Limitations. Notwithstanding anything to the contrary
contained herein, the interest paid or agreed to be paid under this Promissory
Note shall not exceed the maximum rate of non-usurious interest permitted by
applicable law (the "Maximum Rate"). If the Holder shall receive interest in an
amount that exceeds the Maximum Rate, the excess interest shall be refunded to
the Company.
11. Severability. In the event any one or more of the provisions contained
in this Promissory Note should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein or therein shall not in any way be affected or impaired
thereby. The parties shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
12. Counterparts. This Promissory Note may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall constitute one and the same instrument.
13. Governing Law. This Promissory Note shall be construed in accordance
with and governed by the laws of the State of New Mexico (other than the
conflicts of law principles thereof). Except as prohibited by law, each party
hereto hereby waives any right it may have to a trial by jury in respect of any
litigation directly or indirectly arising out of, under or in connection with
this Promissory Note.
14. Applicable Law Limitations. The Principal Sum may be reduced at any
time prior to the Maturity Date by the minimum amount necessary to maintain the
Company's compliance with minimum net worth or other applicable solvency
requirements set forth in Chapter 59A NMSA 1978 or the regulations promulgated
thereunder. The Company will provide Holder with written notice of such
reduction within five (5) Business Days after it occurs, and shall include an
explanation regarding the reasons for the reduction and its anticipated
duration.
[Signature Page Follows]
IN WITNESS WHEREOF, the Company has caused this Promissory Note to be
duly executed as of the day and year first above written.
Lovelace Health Systems, Inc.,
a New Mexico corporation
By: /s/ Stephen C. Petrovich
----------------------------
Name: Stephen C. Petrovich
Title: Secretary
ACKNOWLEDGED AND AGREED:
ARDENT HEALTH SERVICES, INC.,
a Delaware corporation
By: /s/ William P. Barnes
----------------------------
Name: William P. Barnes
Title: SENIOR VICE PRESIDENT/TREASURER
THIS ENDORSEMENT IS TO BE ATTACHED TO AND MADE A PART OF THAT CERTAIN AMENDED
AND RESTATED INTERCOMPANY PROMISSORY NOTE dated October 1, 2003 made by LOVELACE
HEALTH SYSTEMS, INC., a New Mexico corporation, to ARDENT HEALTH SERVICES, INC.,
a Delaware corporation, the original payee, in the original principal amount of
SEVENTY MILLION DOLLARS ($70,000,000.00).
PAY TO THE ORDER OF
BANK ONE, NA, as Collateral Agent
ARDENT HEALTH SERVICES, INC.,
a Delaware corporation
By: /s/ William P. Barnes
----------------------------
Name: William P. Barnes
Title: SENIOR VICE PRESIDENT/TREASURER