This AMENDMENT NO. 2, dated as of September 18, 2024 (this “Amendment”), is
Exhibit 10.14
Execution Version
This AMENDMENT NO. 2, dated as of September 18, 2024 (this “Amendment”), is
entered into by and among AHP HEALTH PARTNERS, INC., a Delaware corporation (the
“Borrower”), ARDENT HEALTH PARTNERS, INC. (f/k/a Ardent Health Partners, LLC), a Delaware
corporation (“Parent”), the Guarantors, the Lenders party hereto and BANK OF AMERICA, N.A., as
the Additional 2024 Term B Lender (as defined in Annex A) and as Administrative Agent (as defined in
the Existing Credit Agreement referred to below).
W I T N E S S E T H:
WHEREAS, the Borrower, Parent, the Guarantors, the Lenders from time to time party
thereto and the Administrative Agent are party to that certain ▇▇▇▇▇▇▇ and Restated Term Loan Credit
Agreement dated as of August 24, 2021 (as amended, restated, amended and restated, supplemented or
otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”);
WHEREAS, (i) each Converting Consenting Lender (as defined in Annex A) has agreed,
on the terms and conditions set forth herein, to consent to this Amendment and to have all of its
outstanding Initial Term Loans (as defined in Annex A) (or such lesser amount as notified and allocated
to such Converting Consenting Lender by the Lead Arrangers (as defined below)) converted to an
equivalent principal amount of 2024 Term B Loans (as defined in Annex A) effective as of the
Amendment No. 2 Effective Date (as defined below) (the “Converted 2024 Term B Loans”), (ii) each
Non-Converting Consenting Lender (as defined in Annex A) has agreed, on the terms and conditions set
forth herein, to consent to this Amendment and to have all of its outstanding Initial Term Loans prepaid
and will purchase by assignment from the Additional 2024 Term B Lender 2024 Term B Loans in a
principal amount equal to the principal amount of such Initial Term Loans (or such lesser amount as
notified and allocated to such Non-Converting Consenting Lender by the Lead Arrangers) and (iii) the
Additional 2024 Term B Lender has agreed to fund 2024 Term B Loans in a principal amount equal to the
principal amount of any outstanding Initial Term Loans that are not converted into 2024 Term B Loans on
the Amendment No. 2 Effective Date as described in clause (i) above (the “Additional 2024 Term B
Loans”), the proceeds of which will be used by the Borrower to repay in full such non-converted Initial
Term Loans;
WHEREAS, subject to the terms and conditions set forth herein, (i) the 2024 Term B
Loans shall constitute “Term Loans” and “Loans” and (ii) each 2024 Term B Lender shall become a
“Term Loan Lender” and a “Lender” (if such 2024 Term B Lender is not already a Lender or a Term
Loan Lender, as applicable, prior to the effectiveness of this Amendment) and shall have all the rights and
obligations of a Lender holding a Term Loan;
WHEREAS, pursuant to Sections 2.16 and 11.01 of the Existing Credit Agreement, the
Existing Credit Agreement may be amended by the Borrower, each Lender providing Refinancing Term
Loans and the Required Lenders, and acknowledged by the Administrative Agent;
WHEREAS, the Loan Parties, the Administrative Agent and the Lenders party hereto
desire to amend the Existing Credit Agreement on the terms set forth herein;
WHEREAS, BofA Securities, Inc., JPMorgan Chase Bank, N.A. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Senior Funding, Inc. shall act as the joint lead arrangers and lead bookrunners for this Amendment (the
“Lead Arrangers”) and Capital One, National Association shall act as the co-manager for this
Amendment.
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NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration, the sufficiency and receipt of all of which is hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1.Defined Terms. Capitalized terms used but not defined herein shall have
the respective meanings assigned to such terms in the Existing Credit Agreement, as amended by this
Amendment (the “Amended Credit Agreement”).
SECTION 2.Amendments and Consents to the Existing Credit Agreement. Effective
as of the Amendment No. 2 Effective Date (as defined below), the Existing Credit Agreement is hereby
amended by deleting the stricken text (indicated textually in the same manner as the following example:
stricken text) and adding the double-underlined text (indicated textually in the same manner as the
following example: double-underlined text) as set forth in the pages of the Existing Credit Agreement
attached as Annex A hereto.
SECTION 3.Conditions to the Amendment Becoming Effective. This Amendment
shall become effective on the date (such date being referred to as the “Amendment No. 2 Effective
Date”), when each of the following conditions shall have been satisfied:
(a)(i) the Borrower and the Guarantors shall have executed and delivered
counterparts of this Amendment to the Administrative Agent, (ii) each Converting Consenting Lender and
each Non-Converting Consenting Lender shall have executed and delivered counterparts of this
Amendment to the Administrative Agent, (iii) the Additional 2024 Term B Lender shall have executed
and delivered a counterpart of this Amendment to the Administrative Agent, (iv) the Required Lenders
shall have executed and delivered a counterpart of this Amendment to the Administrative Agent and (v)
the Administrative Agent shall have executed a counterpart of this Amendment;
(b)Payment by the Borrower of all reasonable fees and documented and reasonable
out-of-pocket expenses due to the Administrative Agent and the Lead Arrangers, including, to the extent
invoiced at least two (2) Business Days prior to the Amendment No. 2 Effective Date, reimbursement or
payment of all reasonable out-of-pocket expenses (including the reasonable legal fees and expenses of
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp, counsel to the Administrative Agent and the Lead Arrangers);
(c)the representations and warranties of the Loan Parties contained in Section 4
hereof shall be true and correct in all material respects (without duplication of any materiality qualifier
contained therein) on and as of the Amendment No. 2 Effective Date, except to the extent that such
representations and warranties expressly relate to an earlier date (in which event such representations and
warranties were true and correct in all material respects (without duplication of any materiality qualifier
contained therein) as of such earlier date);
(d)prior to and immediately after the Amendment No. 2 Effective Date, no Default
or Event of Default shall have occurred and be continuing;
(e)The Administrative Agent shall have received (i) copies of the Organization
Documents of the Borrower certified to be true and complete as of a recent date by the appropriate
Governmental Authority of the state or other jurisdiction of its incorporation or organization, where
applicable, and certified by a secretary or assistant secretary of the Borrower to be true and correct in all
material respects as of the Amendment No. 2 Effective Date (or, in the alternative, a certification by a
Responsible Officer that no modifications to the Organization Documents delivered on the Effective Date
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have occurred since the Effective Date), (ii) copies of such certificates of resolutions or other action,
incumbency certificates and/or other certificates of Responsible Officers of the Borrower as the
Administrative Agent may reasonably request prior to the Amendment No. 2 Effective Date evidencing
the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible
Officer in connection with this Agreement and the other Loan Documents to which the Borrower is a
party and (iii) copies of such documents and certifications as the Administrative Agent may reasonably
request prior to the Amendment No. 2 Effective Date to evidence that the Borrower is duly organized or
formed, and is validly existing, in good standing and qualified to engage in business in its state of
organization or formation;
(f)The Borrower shall have, immediately after the making of 2024 Term B Loans
under the Amended Credit Agreement, (i) prepaid all Initial Term Loans (other than Initial Term Loans
that are Converted 2024 Term B Loans) outstanding immediately prior to the Amendment No. 2 Effective
Date and (ii) paid to all Initial Term Lenders all accrued and unpaid interest, fees or other outstanding
amounts on their Initial Term Loans outstanding immediately prior to the Amendment No. 2 Effective
Date to, but not including, the Amendment No. 2 Effective Date;
(g)The Administrative Agent shall have received, in form and substance reasonably
satisfactory to it, the results of customary UCC, tax and judgment lien searches;
(h)The Administrative Agent and each Lender providing 2024 Term B Loans shall
have received, at least three (3) Business Days prior to the Amendment No. 2 Effective Date, (i) all
documentation and other information required by bank regulatory authorities under applicable “know
your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and
(ii) to the extent the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership
Regulation, a Beneficial Ownership Certification in relation to the Borrower, in each case, to the extent
reasonably requested by such Person in writing at least ten (10) Business Days prior to the Amendment
No. 2 Effective Date; and
(i) The Administrative Agent shall have received for each Mortgaged Property (i) a
completed “life-of-loan” Federal Emergency Management Agency standard flood hazard determination
and (ii) to the extent a Mortgaged Property is located in an area identified by the Federal Emergency
Management Agency (or any successor agency) as a special flood hazard area with respect to which flood
insurance has been made available under the Flood Insurance Laws, a notice about special flood hazard
area status and flood disaster assistance duly executed by the Borrower and the applicable Loan Party
relating thereto together with a copy of, or a certificate as to coverage under, and a declaration page
relating to, the insurance policies to the extent required by Section 7.07(b) of the Existing Credit
Agreement. This condition has been satisfied.
For purposes of determining compliance with the conditions specified in this Section 3, by its
execution of this Amendment, each Converting Consenting Lender and each Non-Converting Consenting
Lender shall be deemed to have consented to, approved or accepted or to be satisfied with, each document
or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to such
Converting Consenting Lender or such Non-Converting Consenting Lender, as applicable, unless the
Administrative Agent shall have received notice from such Converting Consenting Lender or such Non-
Converting Consenting Lender, as applicable, prior to the proposed Amendment No. 2 Effective Date
specifying its objection thereto. For the avoidance of doubt, the Amendment No. 2 Effective Date is
September 18, 2024.
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SECTION 4.Representations and Warranties: On and as of the Amendment No. 2
Effective Date, after giving effect to this Amendment, each Loan Party represents and warrants as
follows:
(a)The execution, delivery and performance by each Loan Party of this Amendment
has been duly authorized by all necessary corporate or other organizational action, and does not (i)
contravene the terms of any of such Person’s Organization Documents; (ii) conflict with or result in any
breach or contravention of, or the creation of any Lien under (A) any material Contractual Obligation to
which such Person is a party or (B) any order, injunction, writ or decree of any Governmental Authority
or any arbitral award to which such Person or its property is subject; (iii) violate any Law (including,
without limitation, Regulation U or Regulation X issued by the FRB); (iv) result in a limitation on any
licenses, permits or other approvals applicable to the business, operations or properties of any Loan
Party; or (v) materially and adversely affect the ability of any Loan Party to participate in any Medical
Reimbursement Programs (except, in the cases of clauses (ii)(A), (iii) and (iv), as could not reasonably
be expected to have a Material Adverse Effect).
(b)This Amendment has been duly executed and delivered by each Loan Party that
is party hereto. This Amendment constitutes a legal, valid and binding obligation of each Loan Party
that is party hereto, enforceable against each such Loan Party in accordance with its terms except as
enforceability may be limited by applicable Debtor Relief Laws or by equitable principles relating to
enforceability.
(c)The representations and warranties of the Borrower and each other Loan Party
contained in Article VI of the Amended Credit Agreement or any other Loan Document are true and
correct in all material respects (and in all respects if any such representation or warranty is already
qualified by materiality) on and as of the Amendment No. 2 Effective Date, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they shall be true and
correct in all material respects (and in all respects if any such representation or warranty is already
qualified by materiality) as of such earlier date.
(d)No Default or Event of Default exists or would result from the effectiveness of
this Amendment, including the incurrence of the 2024 Term B Loans.
(e)As of the Amendment No. 2 Effective Date, to the best knowledge of the
Borrower, the information included in any Beneficial Ownership Certification provided on or prior to the
Amendment No. 2 Effective Date to any Lender in connection with this agreement is true and correct in
all respects.
(f)Parent and its Subsidiaries, on a consolidated basis, are Solvent.
SECTION 5.Waivers. The Lenders having Initial Term Loans that are prepaid in
connection with the making of the 2024 Term B Loans and not constituting Non-Converting Consenting
Lenders or Converting Consenting Lenders shall be entitled to the benefits of Section 3.05 of the Existing
Credit Agreement with respect thereto. The Non-Converting Consenting Lenders and the Converting
Consenting Lenders hereby waive the benefits of Section 3.05 of the Existing Credit Agreement with
respect to the prepayment of their Initial Term Loans in connection with this Amendment. This
Amendment shall constitute a Prepayment Notice with respect to the Initial Term Loans and the Lenders
party to this Amendment hereby waive any additional Prepayment Notice requirement with respect to the
Initial Term Loans being prepaid in connection with this Amendment.
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SECTION 6.Effect of Amendment. Except as expressly set forth herein, this
Amendment (at the time it is effective and at the time it is operative) shall not alter, modify, amend or in
any way affect any of the terms, conditions, obligations, covenants or agreements contained in the
Existing Credit Agreement or any other provision of the Existing Credit Agreement or any other Loan
Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect.
As of the Amendment No. 2 Effective Date, each reference in the Existing Credit Agreement to “this
Agreement,” “hereunder,” “hereof,” “herein,” or words of like import, and each reference in the other
Loan Documents to the Existing Credit Agreement (including, without limitation, by means of words like
“thereunder,” “thereof” and words of like import), shall mean and be a reference to the Existing Credit
Agreement as amended hereby, and this Amendment and the Existing Credit Agreement shall be read
together and construed as a single instrument. This Amendment shall constitute a Loan Document on the
Amendment No. 2 Effective Date.
SECTION 7.Fees and Expenses. The Borrower agrees to pay in accordance with the
terms of Section 11.04 of the Existing Credit Agreement all reasonable and documented out-of-pocket
costs and expenses of the Administrative Agent in connection with the preparation, reproduction,
execution and delivery of this Amendment (including Attorney Costs).
SECTION 8.Fungibility. From and after the Amendment No. 2 Effective Date, the
parties shall treat all of the 2024 Term B Loans (whether issued for cash or in exchange for Initial Term
Loans) as one fungible tranche for U.S. federal income tax purposes.
SECTION 9.Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto on separate counterparts, each of which when so executed and
delivered shall be an original, but all of which shall together constitute one and the same instrument. A
set of counterparts executed by all the parties hereto shall be lodged with the Borrower and the
Administrative Agent. Delivery of an executed signature page of this Amendment by facsimile
transmission or Electronic Transmission shall be as effective as delivery of a manually executed
counterpart hereof. This Agreement and any document, amendment, approval, consent, information,
notice, certificate, request, statement, disclosure or authorization related to this Agreement (each a
“Communication”), including Communications required to be in writing, may be in the form of an
Electronic Record (as defined below) and may be executed using Electronic Signatures (as defined
below), including, without limitation, facsimile and/or .pdf. Each of the Loan Parties, the Administrative
Agent and each of the Lenders party hereto agree that any Electronic Signature (including, without
limitation, facsimile or .pdf) on or associated with any Communication shall be valid and binding on such
Person to the same extent as a manual, original signature, and that any Communication entered into by
Electronic Signature, will constitute the legal, valid and binding obligation of such Person enforceable
against such Person in accordance with the terms thereof to the same extent as if a manually executed
original signature was delivered. Any Communication may be executed in as many counterparts as
necessary or convenient, including both paper and electronic counterparts, but all such counterparts are
one and the same Communication. For the avoidance of doubt, the authorization under this paragraph
may include, without limitation, use or acceptance of a manually signed paper Communication which has
been converted into electronic form (such as scanned into PDF format), or an electronically signed
Communication converted into another format, for transmission, delivery and/or retention. The
Administrative Agent and each of the Lenders may, at its option, create one or more copies of any
Communication in the form of an imaged Electronic Record (“Electronic Copy”), which shall be deemed
created in the ordinary course of such Person’s business, and destroy the original paper document. All
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Communications in the form of an Electronic Record, including an Electronic Copy, shall be considered
an original for all purposes, and shall have the same legal effect, validity and enforceability as a paper
record. Notwithstanding anything contained herein to the contrary, the Administrative Agent is under no
obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to by
the Administrative Agent pursuant to procedures approved by it; provided, further, without limiting the
foregoing, (i) to the extent the Administrative Agent has agreed to accept such Electronic Signature, the
Administrative Agent and the Lenders shall be entitled to rely on any such Electronic Signature
purportedly given by or on behalf of any Loan Party without further verification and (ii) upon the request
of the Administrative Agent any Electronic Signature shall be promptly followed by a manually executed,
original counterpart. For purposes hereof, “Electronic Record” and “Electronic Signature” shall have
the meanings assigned to them, respectively, by 15 USC §7006, as it may be amended from time to time.
SECTION 10.Notice of Refinancing. Pursuant to this Amendment, the Borrower hereby
requests a Borrowing of 2024 Term B Loans in an aggregate principal amount of $777,500,000.00, with
such Borrowing to be made as Term SOFR Loans on the Amendment No. 2 Effective Date and to have
an Interest Period under the Amended Credit Agreement ending on September 30, 2024. This
Amendment shall constitute a Loan Notice with respect to the 2024 Term B Loans and each 2024 Term
B Lender party hereto hereby waives any prior notice requirement under Section 2.02(a) of the Amended
Credit Agreement.
SECTION 11.Acknowledgement and Affirmation. Each Loan Party hereto hereby
expressly acknowledges as of the Amendment No. 2 Effective Date, (i) all of its obligations under the
Security Agreements and the other Collateral Documents to which it is a party are reaffirmed and remain
in full force and effect on a continuous basis, (ii) its grant of Liens and security interests pursuant to the
Security Agreements and the other Collateral Documents are reaffirmed and remain in full force and
effect after giving effect to this Amendment, (iii) the Obligations include, among other things and without
limitation, the due and punctual payment of the principal of, interest on, and premium (if any) on, the
Loans (including, without limitation, the 2024 Term B Loans) and (iv) except as expressly set forth
herein, the execution of this Amendment shall not operate as a waiver of any right, power or remedy of
the Administrative Agent or Lenders, constitute a waiver of any provision of or be construed as, or be
intended to be construed as, a novation of any of the Loan Documents or serve to effect a novation of the
Obligations outstanding under the Existing Credit Agreement or instruments guaranteeing or securing the
same, which instruments shall remain and continue in full force and effect. Without limiting the
generality of the foregoing, the Collateral Documents and all of the Collateral described therein do and
shall continue to secure the payment of all Obligations of the Loan Parties under the Existing Credit
Agreement and the other Loan Documents, in each case, as amended by this Amendment.
SECTION 12.Applicable Law. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH
STATE.
SECTION 13.Headings Descriptive. The headings of the several Sections and
subsections of this Amendment are inserted for convenience only and shall not in any way affect the
meaning or construction of any provision of this Amendment.
[SIGNATURE PAGES FOLLOW]
[Ardent - Signature Page to Amendment No. 2]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by
their respective officers thereunto duly authorized, as of the date first above written.
AHP HEALTH PARTNERS, INC.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name:▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:Senior Vice President, Treasurer
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name:▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:Senior Vice President, Treasurer
ARDENT LEGACY HOLDINGS, LLC
LHP HOSPITAL GROUP, INC.
AHS NEWCO 17, LLC
AHS NEWCO 18, LLC
AHS OKLAHOMA, LLC
AHS HILLCREST HEALTHCARE SYSTEM, LLC
AHS MANAGEMENT COMPANY, INC.
AHS EAST TEXAS HEALTH SYSTEM, LLC
BSA HEALTH SYSTEM OF AMARILLO, LLC
AHS KANSAS HEALTH SYSTEM, INC.
SOUTHWEST MEDICAL ASSOCIATES, LLC
▇▇▇▇▇▇▇▇ HEALTH SYSTEM, LLC
AHS ALBUQUERQUE HOLDINGS, LLC
LHS SERVICES, INC.
AHS CLAREMORE REGIONAL HOSPITAL, LLC
AHS OKLAHOMA HEART, LLC
AHS ▇▇▇▇▇▇▇ HOSPITAL, LLC
AHS HENRYETTA HOSPITAL, LLC
AHS OKLAHOMA PHYSICIAN GROUP, LLC
AHS HILLCREST MEDICAL CENTER, LLC
AHS MANAGEMENT SERVICES OF
OKLAHOMA, LLC
AHS ▇▇▇▇▇ HOSPITAL, LLC
▇▇▇▇▇▇ MEDICAL CENTER, LLC
AHS SOUTHCREST HOSPITAL, LLC
AHS TULSA HOLDINGS, LLC
BSA HOSPITAL, LLC
BSA HEALTH SYSTEM MANAGEMENT, LLC
BSA HEALTH SYSTEM HOLDINGS, LLC
BSA PHYSICIANS GROUP, INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ PHYSICIANS, INC.
BSA AMARILLO DIAGNOSTIC CLINIC, INC.
[Ardent - Signature Page to Amendment No. 2]
LHP OPERATIONS CO., LLC
LHP MANAGEMENT SERVICES, LLC
LHP TEXAS PHYSICIANS, LLC
LHP MONTCLAIR LLC
LHP PASCACK VALLEY, LLC
LHP POCATELLO, LLC
LHP HH/KILLEEN, LLC
LHP BAY COUNTY, LLC
LHP IT SERVICES, LLC
LHP TEXAS MD SERVICES, INC.
ATHENS HOSPITAL, LLC
CARTHAGE HOSPITAL, LLC
▇▇▇▇▇▇▇▇▇ HOSPITAL, LLC
JACKSONVILLE HOSPITAL, LLC
PITTSBURG HOSPITAL, LLC
QUITMAN HOSPITAL, LLC
TYLER REGIONAL HOSPITAL, LLC
REHABILITATION HOSPITAL, LLC
SPECIALTY HOSPITAL, LLC
EAST TEXAS HOLDINGS, LLC
ETMC PHYSICIAN GROUP, INC.
EAST TEXAS AIR ONE, LLC
NEW MEXICO HEART INSTITUTE, LLC
AHS TEXAS, LLC
AHS BSA, LLC
AHS PSO, LLC
AHS ACQUISITIONS, LLC
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name:▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:Senior Vice President, Treasurer
[Ardent - Signature Page to Amendment No. 2]
BANK OF AMERICA, N.A.,
as the Additional 2024 Term B Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:Vice President
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
Name:▇▇▇ ▇. ▇▇▇▇▇▇
Title:Vice President
[Ardent – Form of Signature Page to Amendment No. 2]
IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed
and delivered by a duly authorized officer as of the date first written above.
Term Loan Lenders
☐Consent and Convert (Cashless Settlement) The undersigned hereby elects to be a “Converting
Consenting Lender” and irrevocably and unconditionally consents to this Amendment and agrees
to the conversion of the full principal amount (or such lesser amount as notified and allocated to
the undersigned by the Lead Arrangers) of its Initial Term Loans effective as of the Amendment
No. 2 Effective Date.
☐Consent and Reallocation. The undersigned hereby elects to be a “Non-Converting Consenting
Lender” and irrevocably and unconditionally (a) consents to this Amendment and the prepayment
of the full principal amount of its Initial Term Loans and (b) agrees to purchase by way of
assignment from the Additional 2024 Term B Lender in accordance with the terms of the
Amended Credit Agreement, 2024 Term B Loans in a principal amount equal to the principal
amount of its Initial Term Loans prepaid (or such lesser amount as notified and allocated to the
undersigned by the Lead Arrangers).
[NAME OF ▇▇▇▇▇▇]
By:
Name:
Title:
Name of Fund Manager (if any): ___________________
[If a second signature is necessary:
By:
Name:
Title: ]
[Ardent - Signature Page to Amendment No. 2]
ANNEX A
CREDIT AGREEMENT
[Ardent - Signature Page to Amendment No. 2]
ANNEX A
Deal CUSIP Number:
▇▇▇▇▇▇▇▇▇ Initial Term Loan CUSIP
Number: ▇▇▇▇▇▇▇▇▇ 2024 Term B Loan
CUSIP Number: ▇▇▇▇▇▇▇▇▇
AMENDED AND RESTATED TERM LOAN CREDIT AGREEMENT
Dated as of August 24, 2021,
as amended by Amendment No. 1, dated as of June 8, 2023, and
as amended by Amendment No. 2, dated as of September 18,
2024,
among
AHP HEALTH PARTNERS, INC.,
as Borrower,
(f/k/a ARDENT HEALTH PARTNERS, LLC),
as Parent,
and
CERTAIN OF ITS SUBSIDIARIES,
as the Guarantors,
BANK OF AMERICA, N.A.,
as Administrative Agent,
and
The Other Lenders Party Hereto
Arranged by:
BANK OF AMERICA, N.A.,
BARCLAYS BANK PLC, and
JPMORGAN CHASE BANK,
N.A.,
as Joint Lead Arrangers and Joint Book Runners
[Ardent - Signature Page to Amendment No. 2]
CAPITAL ONE, N.A. and
REGIONS CAPITAL
MARKETS,
as Co-Managers
i
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01Defined Terms2
1.02Other Interpretive Provisions50
1.03Accounting Terms5051
1.04Rounding5152
1.05References to Agreements and Laws5152
1.06Times of Day5152
1.07Basket Classification52
1.08Limited Condition Acquisitions5253
1.09Divisions5354
1.10Amendment and Restatement5354
1.11Interest Rates54
ARTICLE II
THE COMMITMENTS AND BORROWINGS
2.01Term Loans5455
2.02Borrowings; Conversions and Continuations of Loans5455
2.03[Reserved]5657
2.04[Reserved]5657
2.05Prepayments5657
2.06Termination or Reduction of Commitments5860
2.07Repayment of Loans5860
2.08Interest5960
2.09Fees5961
2.10Computation of Interest and Fees5961
2.11Evidence of Debt5961
2.12Payments Generally6061
2.13Sharing of Payments6263
2.14Incremental Borrowings6264
2.15Defaulting Lenders6466
2.16Refinancing Amendments6567
2.17Extended Term Loans6768
2.18Relative Rights Agreement Assignment6870
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01Taxes7072
3.02Illegality7375
3.03Inability To Determine Rates7375
ii
Page
3.04Increased Cost and Reduced Return; Capital Adequacy7577
3.05Funding Losses7677
3.06Matters Applicable to All Requests for Compensation7678
3.07Survival7778
ARTICLE IV
GUARANTY
4.01The Guaranty7778
4.02Obligations Unconditional7779
4.03Reinstatement7980
4.04Certain Additional Waivers7980
4.05Remedies7980
4.06Rights of Contribution7981
4.07Guarantee of Payment; Continuing Guarantee8082
4.08Limited Guarantee by Tenant Subsidiaries8082
ARTICLE V
CONDITIONS PRECEDENT
5.01Conditions to Effective Date8182
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.01Existence, Qualification and Power8384
6.02Authorization; No Contravention8385
6.03Governmental Authorization; Other Consents8385
6.04Binding Effect8485
6.05Financial Statements; No Material Adverse Effect8485
6.06Litigation8486
6.07Contractual Obligations8586
6.08Ownership of Property; Liens8586
6.09Environmental Compliance8586
6.10Insurance8687
6.11Taxes8687
6.12ERISA Compliance8688
6.13Subsidiaries8788
6.14Margin Regulations; Investment Company Act8788
6.15Disclosure8789
6.16Compliance with Laws8889
6.17Intellectual Property; Licenses, Etc.8890
6.18Solvency8990
6.19Perfection of Security Interests in the Collateral8990
6.20[Reserved]9091
6.21Brokers’ Fees9091
6.22Labor Matters9091
iii
Page
6.23▇▇▇▇▇ and Abuse9091
6.24Licensing and Accreditation9092
6.25Anti-Terrorism Laws; Anti-Corruption9192
6.26Affected Financial Institutions9192
6.27HMO Entities9193
ARTICLE VII
AFFIRMATIVE COVENANTS
7.01Financial Statements9293
7.02Certificates; Other Information9394
7.03Notices9697
7.04Payment of Taxes9798
7.05Preservation of Existence, Etc.9798
7.06Maintenance of Properties9899
7.07Maintenance of Insurance9899
7.08Compliance with Laws98100
7.09Books and Records99100
7.10Inspection Rights99101
7.11Use of Proceeds100101
7.12Additional Subsidiaries; Additional Guarantors100101
7.13ERISA Compliance101102
7.14Pledged Assets101102
7.15Annual Appraisals103104
7.16Change in Nature of Business103104
7.17Post-Closing Matters103104
7.18Compliance with Terms of Master Lease103104
ARTICLE VIII
NEGATIVE COVENANTS
8.01Liens103105
8.02Investments107108
8.03Indebtedness111112
8.04Fundamental Changes115116
8.05Dispositions116117
8.06Restricted Payments116117
8.07[Reserved]119120
8.08Transactions with Affiliates119120
8.09Burdensome Agreements120121
8.10[Reserved]121122
8.11[Reserved]121122
8.12[Reserved]121122
8.13Prepayment of Subordinated Indebtedness, Etc.121122
8.14Organization Documents; Fiscal Year; Amendments to Master Lease121122
8.15Limitations on Parent122123
8.16Limitations on the ETMC JV122123
iv
8.17Required Payment Intercompany Note124125
8.18HMO Entities124125
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
9.01Events of Default124125
9.02Remedies upon Event of Default127128
9.03Application of Funds128129
ARTICLE X
ADMINISTRATIVE AGENT
10.01Appointment and Authorization of Administrative Agent128129
10.02Delegation of Duties129130
10.03Liability of Administrative Agent129130
10.04Reliance by Administrative Agent129130
10.05Notice of Default130131
10.06Credit Decision; Disclosure of Information by Administrative Agent130131
10.07Indemnification of Administrative Agent131132
10.08Administrative Agent in Its Individual Capacity131132
10.09Successor Administrative Agent131132
10.10Administrative Agent May File Proofs of Claim; Credit Bidding132133
10.11Collateral and Guaranty Matters133134
10.12Other Agents; Joint Book Runners and Managers134135
10.13No Advisory or Fiduciary Responsibility134135
10.14Exculpatory Provisions135136
10.15Rights as Lender136137
10.16Withholding Taxes136137
10.17Intercreditor Agreement; Relative Rights Agreement136137
10.18Certain ERISA Matters137138
10.19Recovery of Erroneous Payments138139
ARTICLE XI
MISCELLANEOUS
11.01Amendments, Etc.139140
11.02Notices and Other Communications; Facsimile Copies141142
11.03No Waiver; Cumulative Remedies142143
11.04Attorney Costs, Expenses and Taxes142143
11.05Indemnification by the Borrower142143
11.06Payments Set Aside143144
11.07Successors and Assigns143145
11.08Confidentiality148149
11.09Setoff149150
11.10Interest Rate Limitation149150
11.11Counterparts149150
11.12Integration150151
v
11.13Survival of Representations and Warranties150151
11.14Severability150151
11.15[Reserved]151152
11.16Replacement of Lenders151152
11.17Governing Law151152
11.18Waiver of Right to Trial by Jury152153
11.19[Reserved]152153
11.20Publicity152153
11.21USA PATRIOT Act Notice152153
11.22Acknowledgement and Consent to Bail-In of Affected Financial Institutions152153
11.23Acknowledgement Regarding Any Supported QFCs153154
SCHEDULES
1.01Mortgaged Properties
1.10Released Mortgaged Properties
2.01Commitments and Pro Rata Shares
6.10Insurance
6.13Subsidiaries
6.17IP Rights
6.22Collective Bargaining Agreements and Multiemployer Plans
6.24(a)Accreditations
7.17Post Closing Items
8.01Liens Existing on the Effective Date
8.02Investments Existing on the Effective Date
8.03Indebtedness Existing on the Effective Date
11.02Certain Addresses for Notices; Taxpayer ID Number
EXHIBITS
A[Reserved]
B-1Form of Non-Tenant Subsidiary Pledge Agreement
B-2Form of Tenant Subsidiary Pledge Agreement
C-1Form of Non-Tenant Subsidiary Security Agreement
C-2Form of Tenant Subsidiary Security Agreement
DForm of Loan Notice
EForm of Prepayment Notice
F[Reserved]
G[Reserved]
HForm of Term Note
IForm of Excess Cash Certificate
A-1Form of Non-Tenant Joinder Agreement
A-2Form of Tenant Joinder Agreement
KForm of Intercompany Note
L[Reserved]
MForm of Assignment and Assumption
NForm of Lender Assignment and Assumption
OForm of United States Tax Compliance Certificate
PForm of Intercreditor Agreement
QForm of Solvency Certificate
RForm of Relative Rights Agreement
1
AMENDED AND RESTATED TERM LOAN CREDIT AGREEMENT
This AMENDED AND RESTATED TERM LOAN CREDIT AGREEMENT is entered into as of
August 24, 2021, as amended by Amendment No. 1, dated as of June 8, 2023, and as amended by
Amendment No. 2, dated as of September 18, 2024, among AHP HEALTH PARTNERS, INC., a
Delaware corporation (the “Borrower”), ARDENT HEALTH PARTNERS, INC. (f/k/a Ardent Health
Partners, LLC), a Delaware limited liability companycorporation (“Parent”), as Parent, the Guarantors
(defined herein), the Lenders (defined herein) and BANK OF AMERICA, N.A., as Administrative Agent.
WHEREAS, the Borrower is party to that certain Term Loan Credit Agreement, dated as of June
28, 2018 (as amended, supplemented or modified prior to the date hereof, the “Existing Credit
Agreement”), among Parent, Borrower, the lenders from time to time party thereto and Barclays Bank
PLC, as administrative agent, pursuant to which the lenders thereunder have extended or committed to
extend certain credit facilities to the Borrower;
WHEREAS, on the Effective Date, the Borrower requested that the Existing Credit Agreement be
amended and restated and in connection with such amendment and restatement that the Lenders extend
credit in the form of the Term Loans (as defined herein) on the Effective Date (as defined herein) in an
initial aggregate principal amount of $900,000,000;
WHEREAS, on the Effective Date, the proceeds of the Term Loans were used (i) to prepay in full
all existing Term Loans (including accrued and unpaid interest, fees, expenses and other amounts related
thereto, other than contingent obligations not then due and payable) outstanding under the Existing Credit
Agreement on the Effective Date, (ii) to pay fees, commissions and expenses in connection with the
foregoing (clauses (i) and (ii) collectively, the “Effective Date Refinancing”) and (iii) for general
corporate purposes; and
WHEREAS, the Lenders have indicated their willingness to lend on the terms and subject to the
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01Defined Terms
As used in this Agreement, the following terms shall have the meanings set forth below:
“2024 Term B Commitment” means (a) with respect to each Converting Consenting Lender, the
commitment of such Lender to convert its Initial Term Loans to an equal aggregate principal amount of
2024 Term B Loans on the Amendment No. 2 Effective Date pursuant to Amendment No. 2, (b) with
respect to the Additional 2024 Term B Lender, its Additional 2024 Term B Commitment and (c) in the
case of any Lender that becomes a Lender after the Amendment No. 2 Effective Date, the amount
specified as such ▇▇▇▇▇▇’s “2024 Term B Commitment” in the Assignment and Assumption pursuant to
which such Lender assumed a portion of the aggregate 2024 Term B Commitment, in each case, as the
2
same may be changed from time to time pursuant to the terms hereof. The aggregate amount of the 2024
Term B Commitments on the Amendment No. 2 Effective Date is $777,500,000.00.
“2024 Term B Lender” means any Lender that has a 2024 Term B Commitment or any Lender
that has purchased a 2024 Term B Loan pursuant to one or more Assignment and Assumptions in
accordance with the terms hereof.
“2024 Term B Loans” means the term loans made by the 2024 Term B Lenders to the Borrower
on the Amendment No. 2 Effective Date pursuant to Section 2.01(b).
“2026 Notes” means $475.0 million in aggregate principal amount of the Borrower’s 9.75%
senior notes due 2026 pursuant to the 2026 Notes Indenture on the Original Closing Date.
“2026 Notes Indenture” means the indenture among the Borrower, as issuer, Parent, the
guarantors listed therein and the trustee referred to therein pursuant to which the 2026 Notes were issued,
as such indenture may be amended or supplemented from time to time.
“2029 Notes” means $300.0 million in aggregate principal amount of the Borrower’s 5.750%
senior notes due 2029 pursuant to the 2029 Notes Indenture on July 8, 2021.
“2029 Notes Indenture” means the indenture among the Borrower, as issuer, Parent, the
guarantors listed therein and the trustee referred to therein pursuant to which the 2029 Notes are issued, as
such indenture may be amended or supplemented from time to time.
“ABL Administrative Agent” means Bank of America, in its capacity as administrative agent
under the ABL Documents (or any successor or replacement “Administrative Agent” thereunder).
“ABL Collateral Agent” means Bank of America, in its capacity as collateral agent under the
ABL Documents (or any successor or replacement “Collateral Agent” thereunder).
“ABL Credit Agreement” means (i) that certain amended and restated ABL credit agreement,
dated as of July 8, 2021, among the Borrower, AHS East Texas Health System, LLC, Parent, certain
Subsidiaries of the Borrower as borrowers or guarantors, the lenders party thereto, the ABL Collateral
Agent and the ABL Administrative Agent, as amended, restated, supplemented or modified from time to
time to the extent permitted by the Intercreditor Agreement, and (ii) any other credit agreement,
promissory note, indenture or other agreement or instrument evidencing or governing the terms of any
Indebtedness or other financial accommodation that has been incurred to extend (subject to the limitations
set forth in the Intercreditor Agreement), replace, restructure, renew or refinance in whole or in part the
Indebtedness and other obligations outstanding under (x) the credit agreement referred to in clause (i) or
(y) any subsequent ABL Credit Agreement, unless such agreement or instrument expressly provides that
it is not intended to be and is not an ABL Credit Agreement hereunder. Any reference to the ABL Credit
Agreement hereunder shall be deemed a reference to any ABL Credit Agreement then in existence.
“ABL Documents” means the ABL Credit Agreement and the other Loan Documents (as defined
in the ABL Credit Agreement) or any similar term, including each mortgage and other security
documents, guaranties and the notes issued thereunder.
“ABL Facility” means the senior secured revolving loan facility under the ABL Credit
Agreement or any amendment, supplement, modification, substitution, replacement, restatement or
3
refinancing thereof, in whole or in part, from time to time, including in connection with a
“Refinancing” (as defined in the Intercreditor Agreement) of the ABL Credit Agreement.
“ABL Priority Collateral” has the meaning ascribed to such term in the Intercreditor Agreement.
“Acceptable Intercreditor Agreement” means an intercreditor agreement in form reasonably
acceptable to the Administrative Agent and the Borrower, which intercreditor agreement may, if
determined by the Administrative Agent, be posted to the Lenders not less than ten Business Days before
execution thereof and, if the Required Lenders shall not have objected to such intercreditor agreement
within ten Business Days after posting, then the Required Lenders shall be deemed to have agreed that the
Administrative Agent’s entry into such intercreditor agreement is reasonable and to have consented to such
intercreditor agreement and to the Administrative Agent’s execution thereof.
“Acquired Entity or Business” means the acquisition of any Person, Property, Business or
physical asset by the Borrower or any Restricted Subsidiary.
“Acquisition” by any Person, means the acquisition by such Person, in a single transaction or in a
series of related transactions, of all or any substantial portion of the Property of another Person or any
Voting Stock of another Person, in each case whether or not involving a merger or consolidation with
such other Person and whether for cash, property, services, assumption of Indebtedness, securities or
otherwise.
“Act” has the meaning specified in Section 11.21.
“Additional Lender” has the meaning specified in Section 2.14(c).
“Additional 2024 Term B Commitment” means, with respect to the Additional 2024 Term B
Lender, its commitment to make a 2024 Term B Loan on the Amendment No. 2 Effective Date in an
amount equal to $52,640,477.27.
“Additional 2024 Term B Lender” means the Person identified as such on the signature page to
Amendment No. 2.
“Adjusted Earnings for the Ardent Facilities” shall have the meaning ascribed to such term in the
ETMC JV Agreement as of February 26, 2018.
“Administrative Agent” means Bank of America in its capacity as administrative agent under any
of the Loan Documents, or any successor administrative agent.
“Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate,
account as set forth on Schedule 11.02 or such other address or account of which the Administrative
Agent may from time to time notify the Borrower and the Lenders.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the
Administrative Agent.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial
Institution.
“Affiliate” means, with respect to any Person, another Person that directly or indirectly through
one or more intermediaries, Controls or is Controlled by or is under common Control with the Person
4
specified. “Control” means the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability to exercise voting power,
by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Agency Transfer” has the meaning set forth in the Amendment and Restatement Agreement.
“Agent Parties” has the meaning set forth in Section 7.02.
“Agent-Related Persons” means the Administrative Agent and the Joint Book Runners, together
with their respective Affiliates and the officers, directors, employees, agents and attorneys-in-fact of such
Persons and Affiliates.
“Agreement” means this Amended and Restated Term Loan Credit Agreement, as amended,
modified, supplemented and extended from time to time.
“AHS East Texas” means AHS East Texas Health System, LLC, a Texas limited liability
company, and its successors and permitted assigns.
“Amendment and Restatement Agreement” means that certain Amendment and Restatement
Agreement, dated as of August 24, 2021, among the Borrower, the Guarantors, the Lenders party thereto,
the Administrative Agent and the Resigning Administrative Agent.
“Amendment and Restatement Transactions” means (i) the entry into the Amendment and
Restatement Agreement, (ii) the consummation of the Agency Replacement (as defined in the
Amendment and Restatement Agreement), the Other Appointment and Resignation Documentation, (iii)
the Effective Date Refinancing, (iv) the incurrence of the Initial Term Loans on the Effective Date and (v)
the payment of related fees and expenses.
“Amendment No. 1” means that certain Amendment No. 1 to Amended and Restated Term Loan
Credit Agreement, dated as of June 8, 2023, entered into by the Administrative Agent.
“Amendment No. 2” means that certain Amendment No. 2 to Amended and Restated Term Loan
Credit Agreement, dated as of September 18, 2024, entered into by the Borrower, the Guarantors, the
Lenders party thereto and the Administrative Agent.
“Amendment No. 2 Effective Date” has the meaning assigned to such term in Amendment No. 2.
“Amendment No. 2 Lead Arrangers” means BofA Securities, Inc., JPMorgan Chase Bank, N.A.
and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc. in their capacity as joint lead arrangers and bookrunners under
Amendment No. 2.
“Anti-Terrorism Laws” means any requirement of Law related to terrorism financing or money
laundering including the Act, The Currency and Foreign Transactions Reporting Act (also known as the
“Bank Secrecy Act”, 31 U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959), the
Trading With the Enemy Act (50 U.S.C. § 1 et seq., as amended) and Executive Order 13224 (effective
September 24, 2001), the International Emergency Economic Powers Act and Executive Orders and
regulations issued thereunder.
“Applicable Rate” means (1) at any time from the Effective Date to, but not including, the
Amendment No. 2 Effective Date, a percentage per annum equal to (a) for Term SOFR Loans, 3.50%,
and (b) for Base Rate Loans, 2.50%; provided, that, upon the consummation of an initial Public Equity
5
Offering (as certified by the Borrower to the Administrative Agent in a certificate signed by a
Responsible Officer), the Applicable Rate will be automatically reduced by 0.25% per annum; and (2) at
any time from and after the Amendment No. 2 Effective Date, a percentage per annum equal to (a) for
Term SOFR Loans, 2.75%, and (b) for Base Rate Loans, 1.75%.
“Approved Hospital Swap” means any exchange of one or more healthcare facilities and related
Property owned by any Loan Party for one or more healthcare facilities and related Property owned by
one or more Persons other than a Loan Party; provided that (a) the Borrower shall have delivered to the
Administrative Agent a certificate of a Responsible Officer, in detail reasonably satisfactory to the
Administrative Agent, demonstrating that, upon giving effect to any such exchange on a Pro Forma Basis,
Consolidated EBITDA will be not less than 90% of Consolidated EBITDA prior to such exchange and
(b) the aggregate book value of all assets disposed of by the Loan Parties pursuant to these exchanges
subsequent to the Effective Date (determined as of the date of any such exchange, net of any liabilities of
the Loan Parties assumed by the Person to which the relevant assets were transferred) shall not exceed
10% of the total assets of the Borrower and its Restricted Subsidiaries on a consolidated basis as of the
Effective Date. Furthermore, if any transaction involves both an exchange and payment of consideration,
such transaction shall be deemed to be an Approved Hospital Swap only to the extent that it involves such
an exchange.
“Ardent” means Ardent Medical Services, Inc., a Delaware corporation.
“Ardent ABL Facility Silo” means the Legacy Credit Facility (as defined in the ABL Credit
Agreement).
“Ardent Acquisition Agreement” means that certain purchase and sale agreement, dated March
27, 2015, among Ardent, AHS Medical Holdings LLC, a Delaware limited liability company, and Ventas,
as amended, restated, supplemented or otherwise modified from time to time.
“Assignment and Assumption” means an Assignment and Assumption substantially in the form
of Exhibit M, or such other form or mechanism that shall be reasonably satisfactory to the Administrative
Agent.
“Attorney Costs” means and includes all reasonable fees and documented out-of-pocket expenses
and disbursements of one counsel for the Administrative Agent and the Joint Book Runners, and to the
extent reasonably determined by the Administrative Agent to be necessary, one firm of local counsel in
each relevant material jurisdiction (which may include a single special counsel acting in multiple
jurisdictions) and, in the case of an actual conflict of interest where an Indemnitee affected by such
conflict notifies the Borrower of the existence of such conflict and thereafter retains its own counsel, one
additional conflicts counsel in each applicable jurisdiction for all of the affected Indemnitees similarly
situated.
“Attributable Indebtedness” means, on any date, (a) in respect of any Capital Lease of any
Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of
such date in accordance with GAAP, (b) in respect of any Synthetic Lease, the capitalized amount of the
remaining lease payments under the relevant lease that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP if such lease were accounted for as a Capital Lease
and (c) in respect of any Securitization Transaction of any Person, the outstanding principal amount of
such financing, after taking into account reserve accounts and making appropriate adjustments,
determined by the Administrative Agent in its reasonable judgment.
6
“Audited Financial Statements” means the consolidated audited financial statements of Parent and
its Subsidiaries for the fiscal years ended December 31, 2018, December 31, 2019 and December 31,2020.
“Available Incremental Amount” has the meaning set forth in Section 2.14(a).
“Available Tenor” means, as of any date of determination and with respect to the then-current
Benchmark, as applicable, (x) if the then-current Benchmark is a term rate, any tenor for such Benchmark
that is or may be used for determining the length of an Interest Period or (y) otherwise, any payment
period for interest calculated with reference to such Benchmark, as applicable, pursuant to this Agreement
as of such date.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the
applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article
55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the
implementing law, regulation, rule or requirement for such EEA Member Country from time to time
which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom,
Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law,
regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks,
investment firms or other financial institutions or their affiliates (other than through liquidation,
administration or other insolvency proceedings).
“Bank of America” means Bank of America, N.A. and its successors.
“Bankruptcy Code” means Title 11 of the United States Code or any successor provision.
“Barclays” means Barclays Bank PLC and its successors.
“Base Rate” means, for any day, a fluctuating rate per annum equal to the highest of (a) the
Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced
from time to time by Bank of America as its “prime rate”, and (c) Term SOFR plus 1.00%. The “prime
rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and
desired return, general economic conditions and other factors, and is used as a reference point for pricing
some loans, which may be priced at, above, or below such announced rate. Any change in such prime
rate announced by Bank of America shall take effect at the opening of business on the day specified in the
public announcement of such change. If the Base Rate is being used as an alternate rate of interest
pursuant to Section 3.03 hereof, then the Base Rate shall be the greater of clauses (a) and (b) above and
shall be determined without reference to clause (c) above.
“Base Rate Loan” means a Loan that bears interest based on the Base Rate.
“Benchmark” means, initially, Term SOFR; provided that if a replacement of the Benchmark has
occurred pursuant to Section 3.03(c) then “Benchmark” means the applicable Benchmark Replacement to
the extent that such Benchmark Replacement has replaced such prior benchmark rate. Any reference to
“Benchmark” shall include, as applicable, the published component used in the calculation thereof.
“Benchmark Replacement” means the sum of (a) the alternate benchmark rate and (b) an
adjustment (which may be a positive or negative value or zero), in each case, that has been selected by the
Administrative Agent and the Borrower as the replacement Benchmark giving due consideration to any
7
evolving or then-prevailing market convention, including any applicable recommendations made by a
Relevant Governmental Body, for U.S. dollar-denominated syndicated credit facilities at such time;
provided that, if the Benchmark Replacement would be less than 0.50%, the Benchmark
Replacement will be deemed to be 0.50% for the purposes of this Agreement and the other Loan
Documents.
Any Benchmark Replacement shall be applied in a manner consistent with market practice;
provided that to the extent such market practice is not administratively feasible for the Administrative
Agent, such Benchmark Replacement shall be applied in a manner as otherwise reasonably determined by
the Administrative Agent.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark
Replacement, any technical, administrative or operational changes (including changes to the definition of
“Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency
of determining rates and making payments of interest, timing of borrowing requests or prepayment,
conversion or continuation notices, the applicability and length of lookback periods, the applicability of
breakage provisions, and other technical, administrative or operational matters) that the Administrative
Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark
Replacement and to permit the administration thereof by the Administrative Agent in a manner
substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any
portion of such market practice is not administratively feasible or if the Administrative Agent determines
that no market practice for the administration of such Benchmark Replacement exists, in such other
manner of administration as the Administrative Agent decides is reasonably necessary in connection with
the administration of this Agreement and the other Loan Documents).
“Benchmark Transition Event” means, with respect to any then-current Benchmark, the
occurrence of a public statement or publication of information by or on behalf of the administrator of the
then-current Benchmark or a Governmental Authority with jurisdiction over such administrator
announcing or stating that all Available Tenors are or will no longer be representative, or made available,
or used for determining the interest rate of loans, or shall or will otherwise cease, provided that, at the
time of such statement or publication, there is no successor administrator that is satisfactory to the
Administrative Agent, that will continue to provide any representative tenors of such Benchmark after
such specific date.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership as
required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject
to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person
whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA
or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“BHC Act Affiliate” has the meaning set forth in Section 11.23.
“Borrower” has the meaning specified in the introductory paragraph hereto.
“Borrower Materials” has the meaning set forth in Section 7.02.
8
“Borrower’s Portion of Excess Cash Flow” means, as any date of determination, an amount equal
to $375,000,000 plus the amount of Excess Cash Flow for each fiscal year of the Borrower commencing
with the fiscal year ending on or about December 31, 2021 and prior to such date of determination in
respect of which the financial statements required by Section 7.01(a) for such fiscal year shall have been
delivered to the Administrative Agent in accordance with the terms of such Section that is not required to
be applied to repay Term Loans pursuant to Section 2.05(b)(v), so long as such amount has not been
utilized on or prior to the date of determination to make Restricted Payments pursuant to Section 8.06(f),
Investments pursuant to Section 8.02(u), Permitted Acquisitions pursuant to clause (v)(x) of the definition
thereof or prepayments of Subordinated Indebtedness pursuant to Section 8.13(b); provided that upon the
consummation of the Ventas Purchase Option Assignment the Borrower’s Portion of Excess Cash Flow
shall automatically be reduced by the aggregate amount of the Borrower’s Portion of Excess Cash Flow
attributable to the Tenant Subsidiaries.
“Borrowing” means a borrowing consisting of simultaneous Loans of the same Type and, in the
case of Term SOFR Loans, having the same Interest Period made by each of the Lenders pursuant to
Section 2.01.
“BSA Entities” means (i) BSA Health System of Amarillo, LLC, (ii) BSA Health System
Holdings LLC, (iii) BSA Hospital, LLC, (iv) BSA Health System Management, LLC, (v) BSA Physicians
Group, Inc., (vi) BSA ▇▇▇▇▇▇▇▇▇▇ Physicians, Inc., (vii) BSA Amarillo Diagnostic Clinic, Inc., (viii) BSA
Physician Holding Company, LLC, (ix) each other Person (if any) in respect of which any BSA Equity
Purchaser directly acquires equity interests pursuant to the BSAHS Acquisition Agreement and (x) each
direct and indirect Subsidiary of the entities set forth in the foregoing clauses (i) through (ix).
“BSA Entities Future Capital Expenditures” means the amount of Capital Expenditures
anticipated to be made by the BSA Entities during the following calendar year (for example if Excess
Cash Flow is being calculated for the 2022 fiscal year, Capital Expenditures for the 2023 fiscal year);
provided that to constitute BSA Entities Future Capital Expenditures, such Capital Expenditures must be
evidenced in a written budget prepared by the Borrower that is reasonably satisfactory to the
Administrative Agent.
“BSA Equity Purchaser” means AHS Amarillo Health System, LLC and/or any other (if any)
direct or indirect wholly-owned Subsidiaries of the Borrower that acquires any equity interests in any
BSA Entity pursuant to the BSAHS Acquisition Agreement.
“BSAHS Acquisition Agreement” means the Contribution and Sale Agreement, dated as of
October 22, 2012, among the BSA Equity Purchasers party thereto, the BSA Entities party thereto and
Baptist St. Anthony’s Health System, a Texas not-for-profit corporation, as amended, restated,
supplemented or otherwise modified from time to time.
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial
banks are authorized to close under the Laws of, or are in fact closed in, New York.
“Businesses” means, at any time, a collective reference to the businesses operated by the
Borrower and its Subsidiaries at such time.
“Capital Assets” means, with respect to any person, all equipment, fixed assets and Real Property
or improvements of such person, or replacements or substitutions therefor or additions thereto, that, in
9
accordance with GAAP, have been or should be reflected as additions to property, plant or equipment on
the balance sheet of such person.
“Capital Expenditures” means, for any period, without duplication, all expenditures made directly
or indirectly by the Borrower and its Restricted Subsidiaries during such period for Capital Assets
(whether paid in cash or other consideration, financed by the incurrence of Indebtedness or accrued as a
liability), but excluding any portion of such increase attributable solely to acquisitions of property, plant
and equipment in Permitted Acquisitions.
“Capital Lease” means, as applied to any Person, any lease of any Property by that Person as
lessee which, in accordance with GAAP, is required to be accounted for as a capital lease on the balance
sheet of that Person, excluding any leases which are required under GAAP to be accounted for as a capital
lease on the balance sheet of that Person solely during any construction periods.
“Capital Stock” means (i) in the case of a corporation, capital stock, (ii) in the case of an
association or business entity, any and all shares, interests, participations, rights or other equivalents
(however designated) of capital stock, (iii) in the case of a partnership, partnership interests (whether
general or limited), (iv) in the case of a limited liability company, membership interests and (v) any other
interest or participation that confers on a Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
“Captive Insurance Subsidiary” means any Subsidiary established by the Borrower or any of its
Subsidiaries for the sole purpose of providing insurance coverage to the Borrower and its Subsidiaries.
“Cash Equivalents” means, as at any date, (a) securities issued or directly and fully guaranteed or
insured by the United States or any agency or instrumentality thereof (provided that the full faith and
credit of the United States is pledged in support thereof) having maturities of not more than twelve
months from the date of acquisition, (b) Dollar denominated time deposits and certificates of deposit of
(i) any Lender, (ii) any domestic commercial bank of recognized standing having capital and surplus in
excess of $500,000,000 or (iii) any bank whose short-term commercial paper rating from S&P is at least
A-2 or the equivalent thereof or from ▇▇▇▇▇’▇ is at least P-2 or the equivalent thereof (any such bank
being an “Approved Bank”), in each case with maturities of not more than 365 days from the date of
acquisition, (c) commercial paper and variable or fixed rate notes issued by any Approved Bank (or by
the parent company thereof) or any variable rate notes issued by, or guaranteed by, any domestic
corporation rated A-2 (or the equivalent thereof) or better by S&P or P-2 (or the equivalent thereof) or
better by ▇▇▇▇▇’▇ and maturing within twelve months of the date of acquisition, (d) repurchase
agreements entered into by any Person with a bank or trust company (including any of the Lenders) or
recognized securities dealer having capital and surplus in excess of $500,000,000 for direct obligations
issued by or fully guaranteed by the United States in which such Person shall have a perfected first
priority security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair
market value of at least 100% of the amount of the repurchase obligations, (e) Investments, classified in
accordance with GAAP as current assets, in money market investment programs registered under the
Investment Company Act of 1940, as amended, which are administered by reputable financial institutions
having capital of at least $500,000,000 and the portfolios of which are limited to Investments of the
character described in the foregoing subdivisions (a) through (d) and (f) with respect to (i) the Borrower
and its Restricted Subsidiaries, marketable debt securities regularly traded on a national securities
exchange or in the over-the-counter market.
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“CFC” means a “controlled foreign corporation” within the meaning of Section 957 of the
Internal Revenue Code.
“CHAMPUS” means the United States Department of Defense Civilian Health and Medical
Program of the Uniformed Services or any successor thereto including, without limitation, TRICARE.
“Change of Control” means an event or series of events by which:
(a)prior to the consummation of an initial Public Equity Offering:
(i)the Sponsor Group shall fail to own beneficially, directly or indirectly, at
least 50.1% of the outstanding Voting Stock of the Parent, after giving effect to the
conversion and exercise of all outstanding warrants, options and other securities of the
Parent, convertible into or exercisable for Voting Stock of the Parent (whether or not
such securities are then currently convertible or exercisable); or
(ii)the Parent shall fail to own directly 85% of the outstanding Capital Stock
of the Borrower determined on a fully diluted basis after giving effect to the conversion
and exercise of all outstanding warrants, options and other securities of the Borrower,
convertible into or exercisable for Capital Stock of the Borrower (whether or not such
securities are then currently convertible or exercisable); or
(iii)any of ▇▇▇▇▇▇ ▇▇▇▇, trusts established for the benefit of the family of
▇▇▇▇▇▇ ▇▇▇▇, and/or any entity Controlled by any of the foregoing ceases to Control the
Sponsor; or
(b)upon and after the consummation of an initial Public Equity Offering of the
common stock of the Parent or any parent thereof:
(i)the Parent becomes aware (by way of a report or another filing pursuant
to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) of the
acquisition by any “person” or “group” of related persons (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act) other than the Sponsor Group of the
beneficial ownership (as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that such person or group shall be deemed to have “beneficial ownership” of all
shares that any such person or group has the right to acquire, whether such right is
exercisable immediately or only after the passage of time), directly or indirectly, of more
than 50% of the total voting power of the Voting Stock of the Parent (or its successor by
merger, consolidation or purchase of all or substantially all of their assets); or
(ii)unless the Permitted Merger has occurred concurrently with or in
connection therewith, the Parent shall fail to own directly 85% of the outstanding Capital
Stock of the Borrower, determined on a fully diluted basis after giving effect to the
conversion and exercise of all outstanding warrants, options and other securities of the
Borrower, convertible into or exercisable for Capital Stock of the Borrower (whether or
not such securities are then currently convertible or exercisable); or
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(c)upon and after the consummation of an initial Public Equity Offering of the
common stock of the Borrower: the Borrower becomes aware (by way of a report or another
filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) of
the acquisition by any “person” or “group” of related persons (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act) other than the Sponsor Group of the beneficial ownership
(as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that such person or group
shall be deemed to have “beneficial ownership” of all shares that any such person or group has
the right to acquire, whether such right is exercisable immediately or only after the passage of
time), directly or indirectly, of more than 50% of the total voting power of the Voting Stock of
the Borrower (or its successor by merger, consolidation or purchase of all or substantially all of
their assets); or
(d)the occurrence of a “Change of Control” (or any comparable term) under, and as
defined in, the ABL Credit Agreement, the 2029 Notes Indenture (and/or any other Indebtedness
incurred pursuant to Section 8.03(t)) or any Subordinated Indebtedness Document in respect of
Indebtedness in excess of the Threshold Amount.
“Class” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the
Loans comprising such Borrowing, are Term Loans, Incremental Term Loans, Refinancing Term Loans,
Ventas Purchase Option Term Loans or Non-Ventas Purchase Option Term Loans designated as a
separate Class and, when used in reference to any Commitment, refers to whether such Commitment is a
Commitment for such applicable Term Loans, Incremental Term Loans, Refinancing Term Loans, Ventas
Purchase Option Term Loans or Non-Ventas Purchase Option Term Loans. Notwithstanding anything to
the contrary, the 2024 Term B Loans made on the Amendment No. 2 Effective Date and all the 2024
Term B Loans converted from Initial Term Loans on the Amendment No. 2 Effective Date shall
constitute a single Class.
“CME” means CME Group Benchmark Administration Limited.
“CMS” means the Centers for Medicare and Medicaid Services and any successor thereof.
“Collateral” means a collective reference to all real and personal Property with respect to which
Liens in favor of the Administrative Agent are purported to be granted pursuant to and in accordance with
the terms of the Collateral Documents (other than Excluded Property). For the avoidance of doubt, the
Pledged ETMC Distribution Account and the equity interests owned by the Loan Parties in the ETMC JV
shall be a part of Collateral.
“Collateral Assignment Documents” means the collateral assignments of notes and liens executed
by the Loan Parties executed in favor of the Administrative Agent, as amended, modified, restated or
supplemented from time to time.
“Collateral Documents” means a collective reference to the Security Agreements, the Pledge
Agreements, the Mortgage Instruments, the Collateral Assignment Documents and such other security
documents as may be executed and delivered by the Loan Parties pursuant to the terms of Section 7.14.
“Commitment” means, as to each Lender, the Term Loan Commitment of such Lender.
“Commodity Agreement” means any commodity futures contract, commodity swap, commodity
option or other similar agreement or arrangement entered into by the Borrower or any Restricted
Subsidiary designed or intended to protect the Borrower or any of its Restricted Subsidiaries against
12
fluctuations in the price of commodities actually used in the ordinary course of business of the Borrower
and its Restricted Subsidiaries.
“Communications” has the meaning specified in Section 7.02.
“Company Action Level” means the Company Action Level risk-based capital threshold, as
defined by NAIC.
“Consolidated Capital Expenditures” means, for any period, for the Borrower and its Restricted
Subsidiaries on a consolidated basis, all Capital Expenditures, as determined in accordance with GAAP;
provided, however, that Consolidated Capital Expenditures shall not include (i) expenditures made with
proceeds of any Disposition to the extent such proceeds are reinvested within the period required by the
definition of “Net Cash Proceeds,” (ii) expenditures relating to any Involuntary Disposition to the extent
such expenditures are used to restore, replace or rebuild property to the condition of such property
immediately prior to any damage, loss, destruction or condemnation, (iii) all other capital expenditures, as
determined in accordance with GAAP, to the extent such expenditures are or are expected to be (provided
that such amounts are actually funded within a reasonably proximate time of such expenditure) funded,
directly or indirectly, with the proceeds of any Equity Issuance or any capital contribution to any Loan
Party, (iv) expenditures that constitute Permitted Acquisitions, (v) Capital Expenditures made by any
Person that becomes a Restricted Subsidiary after the Original Closing Date prior to the time such Person
becomes a Restricted Subsidiary and (vi) expenditures that are paid for or contractually required to be
reimbursed to the Borrower or any of its Restricted Subsidiaries by a third party (including landlords).
“Consolidated EBITDA” means, for any period, without duplication, for Parent and its Restricted
Subsidiaries on a consolidated basis determined in accordance with GAAP, an amount equal to
Consolidated Net Income for such period plus (A) other than with respect to clause (xiv) below, to the
extent deducted (and not added back) in calculating such Consolidated Net Income for such period, (i)
Consolidated Interest Expense for such period, (ii) the provision for federal, state, local and foreign
income taxes payable by the Borrower and its Restricted Subsidiaries for such period, (iii) the amount of
depreciation and amortization expense for such period, (iv) any non-recurring fees, charges and cash
expenses made or incurred in connection with the Transactions, Amendment and Restatement
Transactions, Investments, Dispositions, Restricted Payments, fundamental changes and incurrences of
Indebtedness permitted under this Agreement and issuances of Capital Stock and dispositions not
prohibited by this Agreement (whether or not consummated), (v) any other non-cash charges,
impairments or write-offs for such period (except to the extent such charges, impairments or write-offs
relate to a cash payment in a future period), (vi) non-recurring or extraordinary cash expenses in respect
of severance payments and other costs associated with any restructuring of the Borrower’s and its
Restricted Subsidiaries’ operations, (vii) expenses and charges related to prior periods in an aggregate
amount not to exceed $15.0 million for any such period during the term of this Agreement, (viii) all non-
recurring or extraordinary charges, expenses or losses in such period, and, without duplication, any
charges or expenses paid or payable by the Borrower or its Restricted Subsidiaries in cash during such
measurement period in connection with the integration of Epic Systems IT, (ix) the amount of any non-
controlling or minority interest expense consisting of Restricted Subsidiary income attributable to non-
controlling interests of third parties in any Restricted Subsidiaries deducted (and not added back) in such
period in calculating Consolidated Net Income, (x) Sponsor Fees and transaction fees permitted hereunder
(whether paid or accrued), (xi) all fees and expenses and one-time payments reasonably incurred and
payable in connection with any amendment, restatement, waiver, consent, supplement or other
modification to this Agreement, the ABL Facility, the 2026 Notes Indenture, the 2029 Notes Indenture or
any other Indebtedness, (xii) charges, losses or expenses to the extent indemnified or insured or
reimbursed or reimbursable by third parties pursuant to indemnification or reimbursement provisions or
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similar agreements or insurance; provided that, such Person in good faith expects to receive
reimbursement for such charges, losses or expenses within the next four fiscal quarters, (xiii) letter of
credit fees, (xiv) the amount of net cost savings, synergies and operating expense reductions projected by
the Borrower in good faith to be realized as a result of specified actions taken or to be taken (which cost
savings, synergies or operating expense reductions shall be calculated on a pro forma basis as though
such cost savings, synergies or operating expense reductions had been realized on the first day of such
period), net of the amount of actual benefits realized during such period from such actions; provided that
(A) such cost savings, synergies or operating expense reductions are reasonably identifiable and
factually supportable, (B) such actions have been taken or are to be taken within 24 months after the date
of determination to take such action and (C) the aggregate amount added back pursuant to this clause
(xiv) may not exceed 25% of Consolidated EBITDA for the period of the four fiscal quarters most
recently ended calculated on a pro forma basis (before giving effect to such add backs), provided,
however, that subclauses (B) and (C) of the immediately preceding proviso shall not apply to cost
savings, synergies or operating expense reductions in connection with the ETMC Acquisition and the
Topeka Acquisition, (xv) upfront fees or charges arising from any Securitization Transaction for such
period, and any other amounts for such period comparable to or in the nature of interest under any
Securitization Transaction, and losses on dispositions or sale of assets in connection with any
Securitization Transaction for such period, to the extent the same were deducted (and not added back) in
computing such Consolidated Net Income, (xvi) fees and expenses and non-▇▇▇▇ ▇▇▇▇-to-market losses
relating to any Swap Contracts permitted hereunder, (xvii) any expenses, charges or other costs related
to any Equity Issuance, (xviii) any expenses, charges or other costs related to internal reorganizations or
restructurings, and (xix) expenses relating to retention bonuses paid in connection with acquisitions,
recapitalizations and other financing transactions; and minus (B) non-recurring or extraordinary gains in
such period.
“Consolidated Indebtedness” means Indebtedness of the Borrower and its Restricted Subsidiaries
on a consolidated basis.
“Consolidated Interest Charges” means, for any period, for the Borrower and its Restricted
Subsidiaries on a consolidated basis, an amount equal to, without duplication, (i) all interest, premium
payments, debt discount, fees, charges and related expenses of the Borrower and its Restricted
Subsidiaries in connection with borrowed money (including capitalized interest, but excluding
amortization of capitalized financing costs) or in connection with the deferred purchase price of assets, in
each case to the extent treated as interest in accordance with GAAP, plus (ii) the portion of rent expense
of the Borrower and its Restricted Subsidiaries with respect to such period under Capital Leases that is
treated as interest in accordance with GAAP minus (iii) interest income of the Borrower and its Restricted
Subsidiaries for such period determined on a consolidated basis in accordance with GAAP.
“Consolidated Interest Expense” means, with respect to Parent and its Restricted Subsidiaries for
any period, the sum of (1) interest expense of Parent and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP (including (a) all commissions, discounts,
fees and other charges in connection with letters of credit and similar instruments, (b) accretion or
amortization of original issue discount resulting from the incurrence of Indebtedness at less than par, (c)
the interest component of obligations in respect of Capital Leases, (d) non-cash interest payments and (e)
net payments, if any made (less net payments received) pursuant to obligations under permitted Interest
Rate Agreements), minus (2) to the extent included in cash interest expense of Parent and its Restricted
Subsidiaries for such period determined on a consolidated basis in accordance with GAAP and not added
to net income (or loss) in the calculation of Consolidated EBITDA, (i) amounts paid to obtain Interest
Rate Agreements, Currency Agreements and Commodity Agreements, (ii) any one-time cash costs
associated with breakage in respect of Interest Rate Agreements, Currency Agreements and Commodity
14
Agreements for interest rates and any payments with respect to make-whole premiums or other breakage
costs in respect of any Indebtedness, (iii) all non-recurring cash interest expense consisting of liquidated
damages for failure to timely comply with registration rights obligations, (iv) any “additional interest”
owing pursuant to a registration rights agreement, (v) any expense resulting from the discounting of any
Indebtedness in connection with the application of recapitalization accounting or, if applicable, purchase
accounting, (vi) penalties and interest relating to taxes and any other amounts of non-cash interest
resulting from the effects of acquisition method accounting or pushdown accounting, (vii) amortization or
expensing of deferred financing fees, amendment and consent fees, debt issuance costs, commissions, fees
and expenses and discounted liabilities, (viii) any expensing of bridge, arrangement, structuring,
commitment or other financing fees, (ix) any non-cash interest expense and any capitalized interest,
whether paid in cash or accrued, (x) any accretion or accrual of, or accrued interest on, discounted
liabilities not constituting Indebtedness during such period, (xi) any non-cash interest expense attributable
to the movement of the mark to market valuation of obligations under Interest Rate Agreements, Currency
Agreements and Commodity Agreements or other derivative instruments pursuant to Financial
Accounting Standards Board’s Accounting Standards Codification 815 (Derivatives and Hedging) and
(xii) any fees related to a Securitization Transaction, minus (3) interest income of Parent and its Restricted
Subsidiaries for such period.
“Consolidated Net Income” means, for any period, for the Borrower and its Restricted
Subsidiaries on a consolidated basis, the net income from continuing operations of the Borrower and its
Restricted Subsidiaries (excluding extraordinary gains and extraordinary losses) for that period; provided
that there shall be excluded any income (or loss) of any Person other than the Borrower or any Restricted
Subsidiary or that is accounted for by the equity method, or noncontrolling interest method, of
accounting, but any such income so excluded shall be included in such period or any later period to the
extent of any cash or Cash Equivalents paid as dividends or distributions in the relevant period to the
Borrower or any Restricted Subsidiary (other than the ETMC JV) of the Borrower. For the avoidance of
doubt, “Consolidated Net Income” shall not include any income allocable to minority interests in any
Subsidiaries (including, without limitation, income attributable to ETMC Subsidiaries which is allocated
or which will be allocated to unaffiliated third parties).
“Consolidated Net Leverage Ratio” means, as of any date of determination, the ratio of (a) the
sum of (i) Consolidated Indebtedness as of such date minus (ii) unrestricted cash and Cash Equivalents
held by Borrower and its Restricted Subsidiaries on such date (provided that (x) any cash or Cash
Equivalents in (i) the LHP Cash Management Transfer System or (ii) that are held by an ETMC
Subsidiary that are not in the Pledged ETMC Distribution Account or, in each case, another deposit
account subject to a control agreement in favor of the Administrative Agent (a “Controlled Account”)
shall be deemed to be restricted cash, and (y) any cash or Cash Equivalents received from CARES Act
related funding (including any cash and Cash Equivalents in respect of Medicare accelerated payments
and payroll tax deferrals) shall be deemed to be restricted cash for so long as such cash and cash
equivalents are required to be repaid) to (b) Consolidated EBITDA for the period of the four fiscal
quarters most recently ended.
“Consolidated Scheduled Funded Indebtedness Payments” means, as of any date for the four
fiscal quarter period ending on such date with respect to the Borrower and its Restricted Subsidiaries on a
consolidated basis, the sum of all scheduled or mandatory payments of principal on Funded Indebtedness
(excluding any voluntary prepayments and mandatory prepayments required pursuant to Section 2.05), as
determined in accordance with GAAP.
“Consolidated Working Capital” means, at any time, the excess of (i) current assets (excluding
cash and Cash Equivalents) of the Borrower and its Restricted Subsidiaries on a consolidated basis at such
15
time over (ii) current liabilities of the Borrower and its Restricted Subsidiaries on a consolidated basis at
such time, all as determined in accordance with GAAP, in each case, calculated exclusive of any change
in the Swap Termination Value of Swap Contracts. “Consolidated Working Capital” for any fiscal year
shall be subject to adjustment for the impact of any non-cash reclassification of short-term and long-term
asset and liability accounts.
“Contractual Obligation” means, as to any Person, any provision of any security issued by such
Person or of any agreement, instrument or other undertaking to which such Person is a party or by which
it or any of its property is bound.
“Control” has the meaning specified in the definition of “Affiliate.”
“Controlled Account” has the meaning specified in the definition of “Consolidated Net Leverage
Ratio”.
“Converted Initial Term Loan” means each Initial Term Loan held by a Converting Consenting
Lender on the Amendment No. 2 Effective Date immediately prior to the conversion of the corresponding
2024 Term B Loan on such date.
“Converting Consenting Lender” means a Lender that has elected to be a “Converting Consenting
Lender” on its signature page to Amendment No. 2.
“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor
(including overnight) or an interest payment period having approximately the same length (disregarding
business day adjustment) as such Available Tenor.
“Covered Entity” has the meaning set forth in Section 11.23.
“Covered Party” has the meaning set forth in Section 11.23(a).
“Credit Party” has the meaning set forth in Section 10.19.
“Currency Agreement” means in respect of a Person any foreign exchange contract, currency
swap agreement, futures contract or option contract with respect to foreign exchange rates or currency
values, or other similar agreement as to which such Person is a party or a beneficiary.
“Daily Simple SOFR” with respect to any applicable determination date means SOFR published
on such date on the Federal Reserve Bank of New York’s website (or any successor source).
“Debt Fund Affiliate” any affiliate of the Borrower or the Sponsor that is primarily engaged in, or
advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise
investing in commercial loans, bonds and similar extensions of credit in the ordinary course and with
respect to which the Sponsor and its Affiliates (other than Debt Fund Affiliates) does not, directly or
indirectly, possess the power to direct or cause the direction of the investment policies of such entity.
“Debt Issuance” means the issuance by the Borrower or any Restricted Subsidiary of any
Indebtedness other than Indebtedness permitted under Section 8.03.
“Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship,
bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
16
reorganization or similar debtor relief Laws of the United States or other applicable jurisdictions from time
to time in effect and affecting the rights of creditors generally.
“Default” means any event or condition that constitutes an Event of Default or that, with the
giving of any notice, the passage of time, or both, would be an Event of Default.
“Default Rate” means an interest rate equal to (a) the Base Rate plus (b) the Applicable Rate, if
any, applicable to Base Rate Loans plus (c) 2% per annum; provided, however, that with respect to a
Term SOFR Loan, the Default Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate) otherwise applicable to such Loan plus 2% per annum, in each case to the fullest extent
permitted by applicable Laws.
“Default Right” has the meaning set forth in Section 11.23.
“Defaulting Lender” means, subject to Section 2.15(b), any Lender that, as determined by the
Administrative Agent, (a) has failed to perform any of its funding obligations hereunder, including in
respect of its Loans, within three Business Days of the date required to be funded by it hereunder, (b) has
notified the Borrower, or the Administrative Agent or any Lender that it does not intend to comply with
its funding obligations or has made a public statement to that effect with respect to (x) its funding
obligations hereunder or (y) under other agreements in which it is obligated to extend credit (unless in the
case of this clause (y), such obligation is the subject of a good faith dispute), (c) has failed, within three
(3) Business Days after request by the Administrative Agent, to confirm in a manner satisfactory to the
Administrative Agent that it will comply with its funding obligations hereunder; provided that such
Lender shall cease being a Defaulting Lender under this clause (c) upon receipt of such confirmation by
the Administrative Agent, or (d) has, or has a direct or indirect parent company that has, (i) become the
subject of a proceeding under any Debtor Relief Law, (ii) had a receiver, conservator, trustee,
administrator, assignee for the benefit of creditors or similar Person charged with reorganization or
liquidation of its business or a custodian appointed for it, (iii) taken any action in furtherance of, or
indicated its consent to, approval of or acquiescence in any such proceeding or appointment unless, in the
case of this clause (d), the Borrower and the Administrative Agent shall be satisfied that such Lender
intends, and has such approvals required to enable it, to perform its obligations as a Lender hereunder or
(iv) becomes the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender
solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or
indirect parent company thereof by a Governmental Authority so long as such ownership interest does not
result in or provide such Lender with immunity from the jurisdiction of courts within the United States or
from the enforcement or judgments or writs of attachment on its assets or permit such Lender (or such
Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made
with such Lender.
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including
any Sale and Leaseback Transaction) of any Property by the Borrower or any Restricted Subsidiary
(including the Capital Stock of any Subsidiary), including any sale, assignment, transfer or other disposal,
with or without recourse, of any notes or accounts receivable or any rights and claims associated
therewith, but excluding (i) the sale, lease, license, transfer or other disposition of inventory in the
ordinary course of business of the Borrower and its Restricted Subsidiaries, (ii) the sale, lease, license,
transfer or other disposition of machinery and equipment or closure of a unit or division, in each case, no
longer used or useful in the conduct of business of the Borrower and its Restricted Subsidiaries, (iii) any
sale, lease, license, transfer or other disposition of Property by (x) the Borrower or any Restricted
Subsidiary to any Loan Party (other than an ETMC Loan Party); provided that the Loan Parties shall
cause to be executed and delivered such documents, instruments and certificates as the Administrative
17
Agent may request so as to cause the Loan Parties to be in compliance with the terms of Section 7.14 after
giving effect to such transaction, (y) any non-Loan Party to any non-Loan Party, any ETMC Loan Party
to any ETMC Loan Party, or any non-Loan Party to any ETMC Loan Party and (z) any Loan Party
(including, without limitation, any ETMC Loan Party) to any non-Loan Party (including, without
limitation any ETMC Subsidiary) or any ETMC Loan Party not exceeding $7,500,000 in any fiscal year,
(iv) any Involuntary Disposition by the Borrower or any Restricted Subsidiary, (v) any Disposition by the
Borrower or any Restricted Subsidiary constituting a Permitted Investment, (vi) non-exclusive licenses or
sublicenses to use the patents, trade secrets, know-how and other intellectual property of the Borrower or
any of its Restricted Subsidiaries in the ordinary course of business, (vii) any sale, lease, license, transfer
or other disposition of Property by any Foreign Subsidiary to another Foreign Subsidiary, (viii) the
disposition of disposable inventory in bulk to a third party which disposable inventory shall then be
consigned from such third party to the Borrower or any Restricted Subsidiary for the benefit of or use by
such Person in the ordinary course of such Person’s patient care operations, (ix) any transaction (or series
of related transactions) involving property (including, without limitation, leases) with an aggregate book
value not exceeding $7,500,000, (x) (A) dispositions or discounts without recourse of accounts receivable
(including, without limitation, Self-Pay Accounts (as defined in the ABL Credit Agreement)) in
connection with the compromise or collection thereof in the ordinary course of business, and (B)
dispositions of Self-Pay Accounts, with recourse, to collection servicers, provided such accounts have
previously been, or are concurrently with such disposition, written off by the company or accounted for as
“uncollectible” or “bad debt”, (xi) any contribution of ▇▇▇▇▇▇▇▇’s Portion of Excess Cash Flow to effect
any transaction undertaken pursuant to Section 8.06(f), Investments pursuant to Section 8.02(u),
Permitted Acquisitions pursuant to clause (v)(x) of the definition thereof or payment of Subordinated
Indebtedness pursuant to Section 8.13(b), (xii) Dispositions made in order to effectuate any Permitted
IRB Transaction, (xiii) any Disposition of Capital Stock to the directors of any Loan Party or any
Restricted Subsidiary to qualify such directors where required by applicable law, (xiv) Dispositions of
cash and Cash Equivalents in the ordinary course of business (including, without limitation, the LHP
Cash Management Transfer System), (xv) Dispositions of vacant property or property containing
buildings that would require demolition or substantial improvements having a fair market value, in the
aggregate, not in excess of $25,000,000, (xvi) Dispositions made by Loan Parties to ETMC Loan Parties
pursuant to the intercompany loans permitted under Section 8.03 or investments permitted under Section
8.02, (xvii) Dispositions made by AHS East Texas or any other ETMC Subsidiary subject to Section 8.16,
to (x) the ETMC JV or (y) any non-Loan Party, in each case made pursuant to the ETMC JV Agreement
and (xviii) Dispositions pursuant to a Securitization Transaction in an aggregate amount not to exceed,
together with all Investments pursuant to Section 8.02(jj) and Section 8.02(kk), the greater of (A)
$75,000,000 and (B) 25.0% of Consolidated EBITDA; provided that Dispositions permitted by this clause
(xviii) shall solely be in respect of Collateral of a type that would not constitute ABL Priority Collateral.
“Disqualified Capital Stock” means any Capital Stock that, by its terms (or by the terms of any
security or other Capital Stock into which it is convertible or for which it is exchangeable), or upon the
happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for
Qualified Capital Stock), pursuant to a sinking fund obligation or otherwise (except as a result of a
change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a
change of control or asset sale event shall be subject to the prior repayment in full of the Loans and all
other Obligations that are accrued and payable and the termination of the Commitments), (b) is
redeemable at the option of the holder thereof (other than solely for Qualified Capital Stock), in whole or
in part, (c) provides for scheduled payments of dividends in cash, or (d) is or becomes convertible into or
exchangeable for Indebtedness or any other Capital Stock that would constitute Disqualified Capital
Stock, in each case, prior to the date that is ninety-one (91) days after the Maturity Date (or if any
Incremental Term Loans shall be outstanding as of the date of issuance of such Capital Stock, the
maturity date applicable to such Incremental Term Loans); provided that if such Capital Stock is issued
18
pursuant to a plan for the benefit of employees of Parent, the Borrower or any Subsidiary or by any such
plan to such employees, such Capital Stock shall not constitute Disqualified Capital Stock solely because
it may be required to be repurchased by Parent, the Borrower or any Subsidiary in order to satisfy
applicable statutory or regulatory obligations.
“Disqualified Institution” means (a) those persons identified by the Borrower in writing on or
after the Effective Date to the Administrative Agent as competitors (and any such entities’ Affiliates that
are clearly identifiable on the basis of name) of the Borrower and its Subsidiaries, (b) those banks,
financial institutions and other persons identified by the Sponsor or the Borrower to any Joint Book
Runner in writing on or prior to the commencement of primary syndication of the Initial Term Loans
prior to the Effective Date (and any such entities’ Affiliates that are clearly identifiable on the basis of
name) or (c) any Affiliates of any Joint Book Runner that are engaged as principals primarily in private
equity, mezzanine financing or venture capital.
“Dollar” and “$” mean lawful money of the United States.
“Domestic Restricted Subsidiary” means any Domestic Subsidiary that is a Restricted Subsidiary.
“Domestic Subsidiary” means any Subsidiary that is organized under the laws of the United
States, any state thereof or the District of Columbia.
“Earn-Out Obligations” means, with respect to an Acquisition, all obligations of the Borrower or
any Restricted Subsidiary to make earn-out or other contingency payments pursuant to the documentation
relating to such Acquisition, not including any amounts payable in any form of Capital Stock. For
purposes of determining the aggregate consideration paid for an Acquisition, the amount of any Earn-Out
Obligations shall be deemed to be the reasonably anticipated liability in respect thereof as determined by
the Borrower in good faith at the time of such Acquisition. For purposes of determining the liability of
the Borrower and its Restricted Subsidiaries for any Earn-Out Obligation thereafter, the amount of Earn-
Out Obligations shall be deemed to be the aggregate liability in respect thereof as recorded on the balance
sheet of the Borrower and its Restricted Subsidiaries in accordance with GAAP.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any
EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity
established in an EEA Member Country which is a parent of an institution described in clause (a) of this
definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of
an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision
with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland,
Liechtenstein and Norway.
“EEA Resolution Authority” means any public administrative authority or any Person entrusted
with public administrative authority of any EEA Member Country (including any delegee) having
responsibility for the resolution of any EEA Financial Institution.
“Effective Date” means August 24, 2021, the date of the effectiveness of this Agreement.
“Electronic Copy” has the meaning set forth in Section 11.11.
“Electronic Record” has the meaning set forth in Section 11.11.
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“Electronic Signature” has the meaning set forth in Section 11.11.
“Eligible Assignee” has the meaning specified in Section 11.07(g).
“Embargoed Person” means any party that (i) is publicly identified on the most current list of
“Specially Designated Nationals and Blocked Persons” published by the U.S. Treasury Department’s
Office of Foreign Assets Control (“OFAC”) or resides, is organized or chartered, or has a place of
business in a country or territory that is the subject of comprehensive OFAC sanctions or embargo
programs or (ii) is publicly identified as prohibited from doing business with the United States under the
International Emergency Economic Powers Act, the Trading With the Enemy Act, or any other
requirement of Law.
“Environmental Laws” means any and all federal, state, local, foreign and other applicable
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or binding governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including those related
to Hazardous Materials, air emissions, waste and discharges to water or public systems.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for
damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower, any other
Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment
or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
“Epic Systems IT” means electronic records systems software manufactured by Epic Systems
Corporation, the related hardware and infrastructure used to operate the system, and the integration of
other third party systems into such software, hardware and infrastructure.
“Equity Issuance” means any issuance by the Parent or any Loan Party (or upon or after a Public
Equity Offering of the Borrower, the Borrower) of shares of its Capital Stock. The term “Equity
Issuance” shall not be deemed to include any Disposition.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to
time.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common
control with the Borrower within the meaning of Section 414(b) or (c) of the Internal Revenue Code (and
Sections 414(m) and (o) of the Internal Revenue Code for purposes of provisions relating to Section 412
of the Internal Revenue Code).
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by
the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a
plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a
complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is insolvent; (d) the filing of a notice of intent to terminate, the
treatment of a Pension Plan or Multiemployer Plan amendment as a termination under Sections 4041 or
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4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA
for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer
Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due
but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.
“ETMC Acquisition” means the purchase of hospital assets and operations and the equity
interests of certain subsidiaries of East Texas Medical Center Regional Healthcare System
(“ETMCRHS”), a Texas nonprofit corporation and East Texas Medical Center Regional Health Services,
Inc. (“ETMCRHS Inc.”), a Texas corporation.
“ETMC Loan Parties” means so long as the ETMC JV Agreement is effective, AHS East Texas
and each of the Material Domestic Subsidiaries of AHS East Texas, in each case, that were formed or
acquired in the ETMC Acquisition, that are subject (directly or indirectly) to the ETMC JV Agreement,
and that are not Excluded Subsidiaries. For the avoidance of doubt, any Subsidiary that is not subject
(directly or indirectly) to the ETMC JV Agreement shall not be considered an ETMC Loan Party.
“ETMC JV” means East Texas Health System, LLC.
“ETMC JV Agreement” means the Amended and Restated Limited Liability Company
Agreement between UT Tyler and AHS East Texas dated as of February 26, 2018 (as amended, restated,
supplemented, replaced or otherwise modified from time to time).
“ETMC Subsidiaries” means, collectively, AHS East Texas and its direct and indirect
Subsidiaries.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the
Loan Market Association (or any successor person), as in effect from time to time.
“Event of Default” has the meaning specified in Section 9.01.
“Excess Cash Certificate” means a certificate substantially in the form of Exhibit I.
“Excess Cash Flow” means, in each case without duplication, with respect to any fiscal year
period of the Borrower and its Restricted Subsidiaries on a consolidated basis, an amount equal to (a)
Consolidated EBITDA for such fiscal year minus (b) Consolidated Capital Expenditures (excluding any
BSA Entities Future Capital Expenditures deducted in calculating Excess Cash Flow for the prior fiscal
year period) for such fiscal year to the extent not financed by an incurrence of Indebtedness or issuance of
Capital Stock minus (c) the cash portion of Consolidated Interest Charges for such fiscal year minus (d)
Federal, state and other taxes to the extent the same are paid in cash during such period by or on behalf of
Parent and its Subsidiaries on a consolidated basis for such fiscal year minus (e) Consolidated Scheduled
Funded Indebtedness Payments (other than payments in respect of intercompany debt pursuant to Section
8.02(ee)) made in cash for such fiscal year to the extent not financed by an incurrence of Indebtedness or
issuance of Capital Stock minus (f) increases in Consolidated Working Capital for such fiscal year minus
(g) to the extent otherwise included in Consolidated EBITDA for such fiscal year, insurance proceeds
received by the Borrower or any of its Restricted Subsidiaries during such fiscal year that have been
applied to repair, restore or replace the applicable property or asset or to acquire Real Property,
equipment or other tangible assets to be used or useful in the business of the Borrower and its Restricted
Subsidiaries, or in respect of which a written contract or agreement for such repair, replacement,
restoration or acquisition has been entered into for the application of such insurance proceeds, minus (h)
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the aggregate amount of all Sponsor Fees and transaction fees paid in cash during such fiscal year as
permitted under Section 8.06(e), minus (i) all other cash items added back to Consolidated EBITDA
pursuant to clauses (iv) and (vi) through (xvi) of the definition thereof, minus (j) the amount of Restricted
Payments paid during such fiscal year as permitted under Section 8.06 (c), (d), (e) and (h) to the extent
such Restricted Payments were financed with internally generated cash flow of the Borrower and its
Restricted Subsidiaries during such fiscal year, minus (k) the aggregate amount of all proceeds received in
respect of intercompany dispositions for such fiscal year to the extent otherwise increasing Excess Cash
Flow for such fiscal year (such that intercompany dispositions shall have a neutral impact on Excess Cash
Flow) and the amount of mandatory prepayments of Term Loans during such fiscal year as a result of
Dispositions or Involuntary Dispositions, minus (l) the aggregate amount of Acquisitions made during
such fiscal year as permitted pursuant to Section 8.02 to the extent such Acquisitions were financed with
internally generated cash flow of the Borrower and its Restricted Subsidiaries, and except to the extent
such Acquisitions were financed with the proceeds of Indebtedness, Equity Issuances or Dispositions of
the Borrower and its Restricted Subsidiaries, minus (m) cash payments by the Borrower and its Restricted
Subsidiaries in respect of discontinued operations during such period to the extent increasing
Consolidated EBITDA, minus (n) BSA Entities Future Capital Expenditures in an amount not to exceed
$7,500,000, minus (o) for the avoidance of doubt, any cash expenditure made by the Borrower or any
Restricted Subsidiary (that is not funded by the issuance of equity interests of the Borrower or Parent or
an incurrence of Indebtedness) for the purchase of Capital Stock of a Joint Venture in connection with the
exercise of put/call provisions in such Joint Venture’s Joint Venture Agreement, plus (p) cash payments
received by the Borrower and its Restricted Subsidiaries in respect of discontinued operations during such
period to the extent decreasing Consolidated EBITDA plus (q) decreases in Consolidated Working
Capital for such fiscal year plus (r) any unutilized BSA Entities Future Capital Expenditures from the
prior fiscal year period.
“Excluded ETMC Account” has the meaning specified in the definition of “Excluded Property”.
“Excluded Property” means, with respect to any Loan Party, including any Person that becomes a
Loan Party after the Original Closing Date as contemplated by Section 7.12, (a) any fee-owned Real
Property (i) with a fair market value of less than $5,000,000 so long as the fair market value of all such
Real Property owned by Loan Parties that is Excluded Property does not exceed $35,000,000 in the
aggregate or (ii) that is anticipated in good faith to be subject to an MOB Disposition within 18 months
after the Effective Date or, if later, the date such Real Property was acquired (provided that if such Real
Property is not subject to an MOB Disposition with such 18 month period, such Real Property shall no
longer be deemed to be Excluded Property) and all leasehold interests in Real Property ; (b) (A)
commercial tort claims with a value of less than $10,000,000 and (B) motor vehicles and other assets
subject to certificates of title, helicopters and other aircraft, and letter of credit rights (in each case, other
than to the extent such rights can be perfected by filing a UCC-1 financing statement); (c) pledges and
security interests prohibited by applicable law, rule, regulation (in each case, except to the extent such
prohibition is unenforceable after giving effect to applicable provisions of the Uniform Commercial Code
of any applicable jurisdiction or similar laws) or which could require governmental (including regulatory)
consent, approval, license or authorization to be pledged (unless such consent, approval, license or
authorization has been received and after giving effect to the applicable anti-assignment provisions of the
Uniform Commercial Code of any applicable jurisdiction); (d) subject to the last sentence of this
definition, equity interests in any Person other than wholly-owned Subsidiaries to the extent not permitted
by the terms of such Person’s organizational or joint venture documents after giving effect to the
applicable anti-assignment provisions of the Uniform Commercial Code of any applicable jurisdiction; (e)
any lease, license or other agreement to the extent that a grant of a security interest therein would violate
or invalidate such lease, license or agreement or create a right of termination in favor of any other party
thereto (other than the Borrower or any Affiliate thereof) after giving effect to the applicable anti-
22
assignment provisions of the Uniform Commercial Code of any applicable jurisdiction or similar laws; (f)
those assets as to which the Administrative Agent and the Borrower reasonably agree that the cost or
other consequence of obtaining such a security interest or perfection thereof are excessive in relation to
the value afforded thereby; (g) any governmental licenses or state or local franchises, charters and
authorizations, to the extent security interests in such licenses, franchises, charters or authorizations are
prohibited or restricted thereby after giving effect to the applicable anti-assignment provisions of the
Uniform Commercial Code of any applicable jurisdiction or similar laws; (h) “intent-to-use” trademark
applications prior to the filing and acceptance of a statement of use; (i) any amount on deposit from time
to time in the Hillcrest Account; (j) solely to the extent required to be excluded from Collateral by the
Relative Rights Agreement, (i) the Purchased Option Assets, (ii) any Landlord Exclusive Assets, (iii) any
Authorizations, (iv) any Facility Provider Agreements, (v) any leasehold mortgage interest or any other
claim in the Master Lease or (vi) any real or personal property (including equipment and fixtures) owned
by the Landlord (as each such term used in this clause (j) is defined in the Relative Rights Agreement);
(k) any equipment or other asset subject to Liens securing the ETMC Acquisition, Permitted Acquisitions,
Sale and Leaseback Transactions, Securitization Transactions (solely with respect to Collateral of a type
that would not constitute ABL Priority Collateral), capital lease obligations or other purchase money debt,
in each case, to the extent such transaction is permitted under this Agreement, if the contract or other
agreement providing for such debt or capital lease obligation prohibits or requires the consent of any third
party as a condition to the creation of any other security interest on such equipment or asset (provided in
the case of acquired assets, such prohibition was in existence at the time of such acquisition and not
created in contemplation thereof) and, in each case, such prohibition or requirement is permitted under the
Loan Documents; (l) all of the equity interests in and assets of ▇▇▇▇▇▇▇/▇▇▇▇▇▇▇ Health System, LLC,
LHP ▇▇▇▇▇▇▇/▇▇▇▇▇▇▇, LLC; and (m) any management agreement in respect of a Joint Venture that is
directly or indirectly owned (in part) by LHP and any management agreement in respect of a Physician
Group (other than, for the avoidance of doubt, any fees from such management agreement and other
amounts payable to the manager); provided that, each Loan Party shall use commercially reasonable
efforts to ensure that any management agreement in respect of a Joint Venture or Physician Group entered
into after the Original Closing Date shall not have any restrictions on granting any liens on, or security
interests in, the rights of such Loan Party in such management agreement. In addition, notwithstanding
anything to the contrary contained in this Agreement or in any other Loan Documents, (1) no landlord,
mortgagee or bailee waivers shall be required, (2) no notices shall be required to be sent to account
debtors or other contractual third parties prior to the occurrence and during the continuance of any Event
of Default, (3) no foreign-law governed Collateral Documents or perfection under foreign law shall be
required, (4) the portion of any cash held by any ETMC Subsidiary that represents cash that would be
required to be distributed by the ETMC JV for the benefit of unaffiliated third parties that are not Loan
Parties pursuant to the ETMC JV Agreement shall not be considered Collateral, (5) no control agreements
shall be required to be placed on any deposit or security accounts held by an ETMC Subsidiary (other
than in respect of the Pledged ETMC Distribution Account) so long as such ETMC Subsidiary is subject
to the terms of the ETMC JV Agreement (each, an “Excluded ETMC Account”), (6) the equity interests
owned by any Loan Party in the ETMC JV shall not constitute Excluded Property and (7) no control
agreements shall be required in connection with any “Excluded Deposit Account” (as defined in the ABL
Credit Agreement).
“Excluded Subsidiary” means any (i) Captive Insurance Subsidiary (or any Subsidiary thereof),
(ii) Domestic Subsidiary of any Foreign Subsidiary of the Borrower that is a CFC, (iii) FSHCO, (iv)
subject to the proviso in the definition of “Joint Venture”, Subsidiary that is prohibited by the constituent
documents of such entity (to the extent such agreement was entered into in good faith and not with the
purpose of avoiding the giving of a guarantee), applicable law, rule, regulation or contract (with respect to
any such contract, only to the extent existing on the Original Closing Date or the date the applicable
Person becomes a direct or indirect Subsidiary of the Borrower and so long as any such restriction in any
23
contract is not entered into in contemplation of such Subsidiary becoming a Subsidiary) from
guaranteeing the Loans or which would require governmental (including regulatory) consent, approval,
license or authorization to provide a guarantee (unless such consent, approval, license or authorization has
been received and upon such receipt, such Subsidiary shall be subject to Section 7.12), (v) non-Wholly
Owned Subsidiary, (vi) Subsidiary where the Borrower and the Administrative Agent reasonably agree
that the cost or other consequence of providing a guarantee is excessive in relation to the value afforded
thereby, (vii)an Unrestricted Subsidiary, (viii) each of the Subsidiaries identified as “Excluded” on
Schedule 6.13, and (ix) each Receivables Subsidiary. Notwithstanding the foregoing, after the Ventas
Purchase Option Assignment, in no event shall any Tenant Subsidiary constitute an Excluded Subsidiary
with respect to the Ventas Purchase Option Term Loans.
“Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any other
recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder or
under any other Loan Document, (a) Taxes imposed on or measured by its overall net income, and
franchise Taxes imposed on it (in lieu of net income Taxes), by a jurisdiction (or any political subdivision
thereof) as a result of such recipient being organized, having its principal office in, or in the case of any
Lender, having its applicable Lending Office in, such jurisdiction, (b) other than an assignee pursuant to a
request by the Borrower under Section 11.16, any U.S. or non-U.S. federal withholding tax that is
imposed on amounts payable to a Lender pursuant to any Laws in effect at the time such Lender becomes
a party hereto (or designates a new Lending Office), except to the extent that such Lender (or its assignor,
if any) was entitled, immediately prior to the designation of a new Lending Office (or assignment), to
receive additional amounts from any applicable Loan Party with respect to such withholding pursuant to
Section 3.01(a), (c) any withholding Tax that is attributable to such Person’s failure to comply with
Section 3.01(e), (d) any Taxes in the nature of branch profits tax within the meaning of Section 884(a) of
the Internal Revenue Code imposed by any jurisdiction described in clause (a), and (e) any U.S. federal
withholding Tax imposed under FATCA.
“Exclusion Event” means an event or related events resulting in the exclusion of the Borrower or
any of its Subsidiaries from participation in any Medical Reimbursement Program.
“Existing Credit Agreement” has the meaning set forth in the preliminary statements to this
Agreement.
“Existing Incremental Term Loan Maturity Date” has the meaning set forth in Section 2.17(a).
“Existing Term Loan Maturity Date” has the meaning set forth in Section 2.17(a).
“Extended Incremental Term Loan Maturity Date” has the meaning set forth in Section 2.17(b).
“Extended Term Loan Maturity Date” has the meaning set forth in Section 2.17(b).
“Extending Term Lenders” has the meaning set forth in Section 2.17(b).
“Facilities” means, at any time, a collective reference to the facilities and real properties owned,
leased or operated by the Borrower or any Subsidiary.
“FATCA” means Sections 1471 through 1474 of the Internal Revenue Code, as of the date of this
Agreement, or any amended or successor version that is substantively comparable and not materially
more onerous to comply with, any current or future regulations or official interpretations thereof, any
agreements entered into pursuant to current Section 1471(b)(1) of the Internal Revenue Code (or any
24
amended or successor version described above), and any intergovernmental agreements (and any related
laws or official administrative guidance) implementing the foregoing.
“Federal Funds Rate” means, for any day, the rate calculated by the Federal Reserve Bank of New
York based on such day’s federal funds transactions by depository institutions (as determined in such
manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time)
and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the
federal funds effective rate; provided, that if the Federal Funds Rate for any day is less than zero, the
Federal Funds Rate for such day will be deemed to be zero.
“Fee Letter” means that certain fee letter dated as of the Effective Date between the Borrower and
the Administrative Agent.
“FIRREA” means the Federal Institutions Reform, Recovery and Enforcement Act of 1989, as
amended.
“Fixed Charge Coverage Ratio” means as of any date of determination, with respect to the
Borrower and its Restricted Subsidiaries, the ratio of (x) the aggregate amount of Consolidated EBITDA
of the Borrower and its Restricted Subsidiaries for the period of the most recent four consecutive fiscal
quarters ending prior to the date of such determination for which financial statements have been delivered
pursuant to Section 7.01(a) or (b) to (y) Fixed Charges for such four fiscal quarters.
“Fixed Charges” means, with respect to any specified Person for any period, the sum, without
duplication, of:
(1)the Consolidated Interest Expense of such Person and its Restricted Subsidiaries for such
period;
(2)the Consolidated Interest Expense of such Person and its Restricted Subsidiaries that was
capitalized during such period; and
(3)all dividends paid, in cash, Cash Equivalents or Indebtedness during such period on any
series of Disqualified Capital Stock of such Person or on Preferred Stock of its Non-Guarantor Restricted
Subsidiaries payable to a party other than the Borrower or a Restricted Subsidiary on a consolidated basis
and in accordance with GAAP.
(4)if since the beginning of such period any Person (that subsequently became a Subsidiary
(excluding all Unrestricted Subsidiaries) or was merged or consolidated with or into the Borrower or any
Subsidiary (excluding all Unrestricted Subsidiaries) since the beginning of such period) will have
incurred any Indebtedness or discharged any Indebtedness, made any disposition or any Investment or
acquisition of assets or property that would have required an adjustment pursuant to clause (1), (2) or (3)
above if made by the Borrower or a Subsidiary (excluding all Unrestricted Subsidiaries) during such
period, Consolidated EBITDA and Fixed Charges for such period will be calculated after giving pro
forma effect thereto as if such transaction occurred on the first day of such period.
For purposes of this definition, whenever pro forma effect is to be given to any calculation under this
definition, the pro forma calculations will be determined in good faith by a responsible financial or
accounting Officer of the Borrower to reflect, without duplication, cost savings, synergies and operating
expense reductions resulting from such Investment, acquisition, disposition, merger or consolidation, in
each case calculated in accordance with and permitted by the definition of “Consolidated EBITDA.” If
25
any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest expense
on such Indebtedness will be calculated as if the rate in effect on the date of determination had been the
applicable rate for the entire period (taking into account any Interest Rate Agreement applicable to such
Indebtedness if such Interest Rate Agreement has a remaining term in excess of 12 months). If any
Indebtedness that is being given pro forma effect bears an interest rate at the option of the Borrower, the
interest rate shall be calculated by applying such optional rate chosen by the Borrower.
“Flood Insurance Laws” means collectively, (i) National Flood Insurance Reform Act of 1994
(which comprehensively revised the National Flood Insurance Act of 1968 and the Flood Disaster
Protection Act of 1973) as now or hereafter in effect or any successor statute thereto, (ii) the Flood
Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (iii) the
▇▇▇▇▇▇▇-▇▇▇▇▇▇ Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute
thereto.
“Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
“FSHCO” means any Domestic Subsidiary that owns no material assets other than the equity
interests of one or more Foreign Subsidiaries of the Borrower that is a CFC.
“Funded Indebtedness” means, as to any Person at a particular time, without duplication, all of
the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a)all obligations for borrowed money, whether current or long-term (including the
Obligations) and all obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments (excluding, for the avoidance of doubt, in all cases any
undrawn amounts under the ABL Facility or any other revolving credit facilities);
(b)all purchase money Indebtedness;
(c)the principal portion of all obligations under conditional sale or other title
retention agreements relating to Property purchased by the Borrower or any Restricted Subsidiary
(other than customary reservations or retentions of title under agreements with suppliers entered
into in the ordinary course of business);
(d)all obligations arising under bankers’ acceptances, bank guaranties, surety bonds
and similar instruments, but excluding all obligations arising under letters of credit;
(e)all obligations in respect of the deferred purchase price of property or services
(other than trade accounts payable and accrued expenses in the ordinary course of business and
purchase price adjustments), including without limitation, any Earn-Out Obligations;
(f)all Attributable Indebtedness with respect to Capital Leases, Synthetic Leases
and Sale Leaseback Transactions;
(g)all Attributable Indebtedness with respect to Securitization Transactions;
(h)all preferred stock or other equity interests providing for mandatory redemptions,
sinking fund or like payments prior to the Maturity Date for Term Loans or, if any Incremental
Term Loans shall be outstanding, the maturity date for such Incremental Term Loans
26
(“Redeemable Stock”); provided that Redeemable Stock shall not include any preferred stock or
other equity interest subject to mandatory redemption if (i) such mandatory redemption may be
satisfied by delivering common stock or some other equity interest not subject to mandatory
redemption or (ii) such mandatory redemption is triggered solely by reason of a “change of
control” and is not required to be paid until after the Obligations are paid in full;
(i)all Funded Indebtedness of others to the extent secured by (or for which the
holder of such Funded Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien on, or payable out of the proceeds of production from, Property owned or acquired
by the Borrower or any Restricted Subsidiary, whether or not the obligations secured thereby
have been assumed (other than any rights of LeaseCo under the Relative Rights Agreement);
(j)all Guarantees with respect to Indebtedness of the types specified in clauses (a)
through (i) above of another Person; and
(k)all Indebtedness of the types referred to in clauses (a) through (j) above of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which such Person is a general partner or joint venturer, except to the extent
that Indebtedness is expressly made non-recourse to such Person.
For purposes hereof, (x) the amount of any direct obligation arising under bankers’ acceptances, bank
guaranties, surety bonds and similar instruments, but excluding all obligations arising under letters of
credit, shall be the maximum amount available to be drawn thereunder and (y) the amount of any
Guarantee shall be the amount of the Indebtedness subject to such Guarantee.
“GAAP” means generally accepted accounting principles in the United States set forth in the
opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified
Public Accountants and statements and pronouncements of the Financial Accounting Standards Board,
consistently applied.
“Governmental Authority” means any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative
tribunal, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
“Governmental Reimbursement Program Cost” means with respect to and payable by the
Borrower and its Restricted Subsidiaries the sum of:
(i)all amounts (including punitive and other similar amounts) agreed to be paid or
payable (A) in settlement of claims or (B) as a result of a final, non-appealable judgment, award
or similar order, in each case, relating to participation in Medical Reimbursement Programs;
(ii)all final, non-appealable fines, penalties, forfeitures or other amounts rendered
pursuant to criminal indictments or other criminal proceedings relating to participation in Medical
Reimbursement Programs; and
(iii)the amount of final, non-appealable recovery, damages, awards, penalties,
forfeitures or similar amounts rendered in any litigation, suit, arbitration, investigation, review or
other legal or administrative proceeding of any kind relating to participation in Medical
Reimbursement Programs.
27
“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person
guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable
by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including
any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other payment obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other
payment obligation of the payment or performance of such Indebtedness or other payment obligation, (iii)
to maintain working capital, equity capital or any other financial statement condition or liquidity or level
of income or cash flow of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other payment obligation, or (iv) entered into for the purpose of assuring in any other
manner the obligee in respect of such Indebtedness or other obligation of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of
such Person securing any Indebtedness or other payment obligation of any other Person, whether or not
such Indebtedness or other obligation is assumed by such Person. The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount of the related primary payment
obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof as determined by the
guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.
“Guaranteed Obligations” has the meaning set forth in Section 4.06.
“Guarantors” means Parent and each Material Domestic Subsidiary of the Borrower identified on
the signature pages hereto as a “Guarantor” and each other Person that joins as a Guarantor pursuant to
Section 7.12, together with their successors and permitted assigns; provided that no Excluded Subsidiary
(including the ETMC JV) shall be required to be a Guarantor.
“Guaranty” means the Guaranty made by the Guarantors in favor of the Administrative Agent and
the Lenders pursuant to Article IV hereof.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous
or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or
asbestos-containing materials, polychlorinated biphenyls, per- or polyfluoroalkyl substances, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
“HHS” means the United States Department of Health and Human Services and any successor
thereof.
“Hillcrest Account” means that certain Deposit Account with the Bank of Oklahoma in the name
of AHS Hillcrest Medical Center, LLC, and having the account number 209932452, into which funds in
an initial amount approximately equal to $25,000,000 have been deposited and from which funds will be
paid or payable to the Underlying Claim Holder (as defined in the Ardent Acquisition Agreement as in
effect on the Original Closing Date) (including any fines, penalties, assessments, fees, expenses, costs,
judgments, awards and interest and any amount paid with respect to any settlement of a Proceeding (as
defined in the Ardent Acquisition Agreement as in effect on the Original Closing Date)) with respect to
the Underlying Claim (as defined in the Ardent Acquisition Agreement as in effect on the Original
Closing Date).
“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended by
the Health Information Technology for Economic and Clinical Health Act amendments to the American
28
Recovery and Reinvestment Act of 2009, and as the same may be amended, modified or supplemented
from time to time, and any successor statute thereto, and any and all rules or regulations promulgated
from time to time thereunder.
“HIPAA Standards” has the meaning specified in Section 7.08.
“HMO” means any health maintenance organization, managed care organization, any Person
doing business as a health maintenance organization or managed care organization, or any Person
required to qualify or be licensed as a health maintenance organization or managed care organization
under applicable federal or state law (including, without limitation, HMO Regulations).
“HMO Business” means the business of owning and operating an HMO or other similar regulated
entity or business.
“HMO Entity” means a Person that is capitalized or licensed as an HMO, conducting HMO
Business or providing managed care services.
“HMO Regulations” means all laws, regulations, directives and administrative orders applicable
under federal or state law to any HMO Entity (and any regulations, orders and directives promulgated or
issued pursuant to any of the foregoing) and all applicable sections of Subchapter XI of Title 42 of the
United States Code (and any regulations, orders and directives promulgated or issued pursuant thereto,
including, without limitation, Part 417 of Chapter IV of Title 42 of the Code of Federal Regulations).
“Hospital” means a hospital, outpatient clinic, outpatient surgical center, long-term care facility,
diagnostic facility, medical office building or other facility or business that is used or useful in or related
to the provision of healthcare services.
“Impacted Loans” has the meaning set forth in Section 3.03(a).
“Incremental Amendment” has the meaning specified in Section 2.14(d).
“Incremental Term Loan Extension Effective Date” has the meaning set forth in Section 2.17(b).
“Incremental Term Loans” has the meaning specified in Section 2.14(a).
“Indebtedness” means, as to any Person at a particular time, without duplication, all of the
following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a)all Funded Indebtedness and all obligations arising under letters of credit
(including standby and commercial);
(b)net obligations under any Swap Contract;
(c)all Guarantees with respect to outstanding Indebtedness of the types specified in
clauses (a) and (b) above of any other Person; and
(d)all Indebtedness of the types referred to in clauses (a) through (c) above of any
partnership or joint venture (other than a joint venture that is itself a corporation or limited
liability company) in which the Borrower or a Restricted Subsidiary is a general partner or joint
venturer, unless such Indebtedness is expressly made non-recourse to the Borrower or such
Restricted Subsidiary.
29
For purposes hereof (x) the amount of any direct obligations arising under letters of credit
(including standby and commercial) shall be the maximum amount available to be drawn thereunder, (y)
the amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap
Termination Value thereof as of such date and (z) the amount of any Guarantee shall be the amount of the
Indebtedness subject to such Guarantee; provided that, notwithstanding the foregoing, Indebtedness shall
be deemed not to include any Physician Support Obligations or any obligations arising under the Master
Lease (and, for the avoidance of doubt, any Physician Support Obligations and obligations arising under
the Master Lease shall be exempt from Section 8.03).
“Indemnified Liabilities” has the meaning set forth in Section 11.05.
“Indemnified Taxes” means any Taxes other than Excluded Taxes and Other Taxes.
“Indemnitees” has the meaning set forth in Section 11.05.
“Indenture Trustee” means U.S. Bank National Association, as trustee under the 2029 Notes
Indenture.
“Initial Term Commitment” means (a) as to each Person, the obligation of such Person to have
made an Initial Term Loan on the Effective Date to the Borrower pursuant to Section 2.01 in the principal
amount set forth opposite such Person’s name on Schedule 2.01 under the heading “Initial Term
Commitment” and (b) in the case of any Lender that becomes a Lender after the Effective Date, the
amount specified as such Lender’s “Initial Term Commitment” in the Assignment and Assumption
pursuant to which such Lender assumed a portion of the aggregate Initial Term Commitment, in each case
as the same may be changed from time to time pursuant to the terms hereof. The aggregate amount of the
Initial Term Commitments on the Effective Date is $900,000,000.
“Initial Term Lender” means any Lender that hashad an Initial Term Commitment or any Lender
that has purchased an Initial Term Loan pursuant to one or more Assignment and Assumptions in
accordance with the terms hereof, in each case, prior to the Amendment No. 2 Effective Date.
“Initial Term Loans” means the Term Loans made by the Initial Term Lenders to the Borrower on
the Effective Date pursuant to Section 2.01(a).
“Insurer” means a Person that insures a Patient against certain of the costs incurred in the receipt
by such Patient of Medical Services, or that has an agreement with a Loan Party to compensate such Loan
Party for providing services to a Patient.
“Intercompany Note” means a promissory note substantially in the form of Exhibit K, or such
other promissory note that shall be reasonably satisfactory to the Administrative Agent; it being
understood that (x) the Required Payment Intercompany Note and (y) the intercompany notes evidencing
(i) the Working Capital Intercompany Loans and (ii) the intercompany loan permitted under Section
8.02(ee)(iii) constitute “Intercompany Notes.”
“Intercompany Security Documents” means each security agreement, pledge agreement,
mortgage, deed of trust or other security document reasonably requested by, and in form and substance
reasonably satisfactory to, the Administrative Agent, in each case executed by a Non-Guarantor
Restricted Subsidiary in favor of any Loan Party in accordance with the terms hereof, with such
modifications thereto as are necessary to be in compliance with applicable state law (any such
modifications to be reasonably acceptable to the Administrative Agent).
30
“Intercreditor Agreement” means (i) if the ABL Credit Agreement in effect is the ABL Credit
Agreement described in clause (i) of the definition thereof, the Intercreditor Agreement dated the Original
Closing Date among the Administrative Agent, the ABL Administrative Agent and the other parties from
time to time party thereto substantially in the form attached hereto as Exhibit P (as amended, restated,
amended and restated, supplemented or otherwise modified from time to time) and (ii) in all other cases,
any Refinancing Intercreditor Agreement.
“Interest Payment Date” means (a) as to any Loan other than a Base Rate Loan, the last Business
Day (subject to Section 2.12(b)) of each Interest Period applicable to such Loan and the Maturity Date for
such Loan; provided, however, that if any Interest Period for a Term SOFR Loan exceeds three months,
the respective dates that fall every three months after the beginning of such Interest Period shall also be
Interest Payment Dates; and (b) as to any Base Rate Loan, the first day of each calendar quarter and the
Maturity Date with respect to such Base Rate Loan.
“Interest Period” means as to each Term SOFR Loan, the period commencing on the date such
Term SOFR Loan is disbursed or converted to or continued as a Term SOFR Loan and ending on the date
one, three, six or, if available to, and upon the consent of the Administrative Agent and all applicable
Lenders, such other period that is twelve months or less, as selected by the Borrower in its Loan Notice;
provided that:
(i)any Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day falls in another
calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(ii)any Interest Period that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of the calendar month at the end of such
Interest Period; and
(iii)no Interest Period shall extend beyond the Maturity Date with respect to such
Term SOFR Loan.
“Interest Rate Agreement” means, with respect to any Person any interest rate protection
agreement, interest rate future agreement, interest rate option agreement, interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement or other similar
agreement or arrangement as to which such Person is party or a beneficiary.
“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended.
“Investment” means, as to any Person, any direct or indirect acquisition or investment by such
Person, whether by means of (a) the purchase or other acquisition of Capital Stock of another Person, (b)
a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other
acquisition of any other debt or equity participation or interest in, another Person, including any
partnership or joint venture interest in such other Person, or (c) an Acquisition; provided that,
notwithstanding anything to the contrary set forth herein or in any other Loan Document, the LHP Cash
Management Transfer System shall not constitute Investments. For purposes of covenant compliance, the
amount of any Investment shall be the amount actually invested, without adjustment for subsequent
increases or decreases in the value of such Investment.
31
“Involuntary Disposition” means any loss of, damage to or destruction of, or any condemnation
or other taking for public use of, any Property of the Borrower or any Restricted Subsidiary which gives
rise to the receipt by the Borrower or any Restricted Subsidiary of insurance proceeds or condemnation
awards to replace or repair such Property.
“IP Rights” has the meaning set forth in Section 6.17.
“IRS” means the United States Internal Revenue Service.
“Joint Book Runners” means Bank of America, Barclays and JPMorgan, in their capacities as
joint lead arrangers and joint book runners under any of the Loan Documents.
“Joint Venture” of a Person means a corporation, partnership, joint venture, limited liability
company or other business entity (a) of which less than a majority of the shares of Capital Stock having
ordinary voting power for the election of directors or other governing body (other than Capital Stock
having such power only by reason of the happening of a contingency) are at the time beneficially owned,
directly, or indirectly through one or more intermediaries, or both, by such Person and (b) which is not
otherwise a Subsidiary of such Person; provided, however, that Parent and the other Loan Parties shall
cause each of their respective Subsidiaries and Affiliates to use commercially reasonable efforts to ensure
that any Joint Venture Agreements entered into after the Effective Date shall not have any restrictions on
granting any liens on, or security interests in, the Capital Stock held directly or indirectly by a Loan Party
in such Joint Venture. Unless otherwise specified, all references herein to a “Joint Venture” or to “Joint
Ventures” shall refer to a Joint Venture or Joint Ventures of the Borrower.
“Joint Venture Agreements” means the Organization Documents of any Joint Venture existing
from time to time.
“JPMorgan” means JPMorgan Chase Bank, N.A. and its successors.
“JV Clinical Management Agreement” means that certain UTHSCT Clinical Operations
Management Agreement, dated as of February 26, 2018, between ETMC JV and UT ▇▇▇▇▇.
“JV Management Agreement” means that certain Company Management Agreement, dated as of
February 26, 2018, between ETMC JV and AHS East Texas.
“JV Sub-Management Agreement” means that certain Company Management Agreement, dated
as of February 26, 2018, between ETMC JV and AHS Management Company, Inc.
“Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties,
rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities,
including the interpretation or administration thereof by any Governmental Authority charged with the
enforcement, interpretation or administration thereof, and all applicable administrative orders, directed
duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental
Authority, in each case whether or not having the force of law.
“LCT Election” has the meaning specified in Section 1.08.
“LCT Test Date” has the meaning specified in Section 1.08.
32
“LeaseCo” means collectively, the entities listed on the Schedule of Landlords attached to the
Relative Rights Agreement, each a wholly-owned affiliate of Ventas, and their successors, replacements
and permitted assigns in such capacity.
“Lender” means (a) each of the Persons identified as a “Lender” on the signature pages to the
Amendment and Restatement Agreement and their successors and permitted assigns and (b) other Term
Loan Lenders,
“Lending Office” means, as to any Lender, the office or offices of such Lender described as such
in such ▇▇▇▇▇▇’s Administrative Questionnaire, or such other office or offices as a Lender may from time
to time notify the Borrower and the Administrative Agent.
“LHP” means LHP Hospital Group, Inc.
“LHP/ETMC ABL Facility Silo” means the ETMC Credit Facility (as defined in the ABL Credit
Agreement).
“LHP Cash Management Transfer System” means the ordinary course transfer of funds among
LHP, its Subsidiaries and Joint Ventures, in each case consistent with past practices.
“Lien” means any mortgage, pledge, hypothecation, collateral assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or
preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title
retention agreement, and any financing lease having substantially the same economic effect as any of the
foregoing).
“Limited Condition Acquisition” means any acquisition of an Acquired Entity or Business the
consummation of which is not conditioned on the availability of financing.
“Loan Documents” means this Agreement, the Amendment and Restatement Agreement,
Amendment No. 1, Amendment No. 2, each Term Note, the Collateral Documents, the Intercreditor
Agreement, the Relative Rights Agreement, each Loan Notice, each Excess Cash Certificate, the Fee
Letter and each other document, instrument or agreement from time to time executed by the Parent, the
Borrower or any other Loan Party and delivered in connection with this Agreement (including, without
limitation, in connection with the Ventas Purchase Option Term Loans).
“Loan Notice” means a notice of (a) a Borrowing of a Term Loan, (b) a conversion of Loans from
one Type to the other, or (c) a continuation of Term SOFR Loans, pursuant to Section 2.02(a), which
shall be substantially in the form of Exhibit D or such other form as may be reasonably approved by the
Administrative Agent (including any form on an electronic platform or electronic transmission system as
shall be reasonably approved by the Administrative Agent), appropriately completed and signed by a
Responsible Officer of the Borrower.
“Loan Parties” means, collectively, the Borrower and the Guarantors.
“Loans” means an extension of credit by a Lender to the Borrower under Article II in the form of
a Term Loan or Incremental Term Loan, as applicable. For the avoidance of doubt, after the
consummation of the Ventas Purchase Option and the transactions contemplated by Section 2.18, any
reference to “Loans” shall be deemed to refer to Ventas Purchase Option Term Loans and/or Non-Ventas
Purchase Option Term Loans, as applicable.
33
“Master Lease” means that certain Master Lease Agreement, dated as of August 4, 2015, among
LeaseCo and certain of Affiliates of the Borrower, regarding the lease of LeaseCo’s Real Property to the
Borrower and its Subsidiaries, as amended, restated, supplemented or otherwise modified from time to
time.
“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect
upon, the operations, business, properties, liabilities (actual or contingent), or financial condition of the
Borrower and its Restricted Subsidiaries, taken as a whole; (b) a material impairment of the ability of the
Borrower and the Guarantors taken as a whole to perform their obligations under the Loan Documents; (c)
a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower or
any Guarantor of any Loan Document to which it is a party or (d) a material impairment of the rights of or
benefits or remedies available to the Lenders or the Administrative Agent taken as a whole under any Loan
Document.
“Material Domestic Subsidiary” means any Wholly Owned Domestic Subsidiary of the Borrower
that is a Restricted Subsidiary and (a) as of the end of any fiscal quarter period, has total assets with a
book value averaging greater than 2.5% of the total assets of the Borrower and its Restricted Subsidiaries
taken as a whole or (b) has revenues for the most recent twelve-month period greater than 2.5% of the
total revenues for the most recent twelve-month period in the aggregate of the Borrower and its Restricted
Subsidiaries taken as a whole; provided that if, at any time and from time to time after the Effective Date,
Wholly Owned Domestic Subsidiaries that are Restricted Subsidiaries but are not Guarantors solely
because they do not meet the thresholds set forth in clauses (a) or (b), together with the other Domestic
Subsidiaries that are Restricted Subsidiaries but are not Guarantors (including (x) all Captive Insurance
Subsidiaries (and any Subsidiaries thereof), but excluding (y) all non-Wholly Owned Subsidiaries and
Joint Ventures) have in the aggregate total assets with a book value averaging greater than 5% of the total
assets of the Borrower and its Restricted Subsidiaries taken as a whole or have in the aggregate revenues
for the most recent twelve-month period greater than 5% of the total revenues for the most recent twelve-
month period of the Borrower and its Restricted Subsidiaries taken as a whole, then the Borrower shall,
not later than forty-five (45) days after the date by which financial statements for such quarter are
required to be delivered pursuant to this Agreement (or such longer period as the Administrative Agent
may agree in its reasonable discretion), (i) designate in writing to the Administrative Agent one or more
of such Wholly Owned Domestic Subsidiaries that are Restricted Subsidiaries as “Material Domestic
Subsidiaries” to the extent required such that the foregoing condition ceases to be true and (ii) comply
with the provisions of Section 7.12 applicable to such Subsidiary (other than Excluded Subsidiaries).
“Maturity and Weighted Average Life to Maturity Limitations” has the meaning set forth in
Section 2.14(b).
“Maturity Date” means the date that is the seven year anniversary of the Effective Date, or, if
such day is not a Business Day, the immediately succeeding Business Day.
“Maximum Rate” has the meaning set forth in Section 11.10.
“Medicaid” means that means-tested entitlement program under Title XIX of the Social Security
Act, which provides federal grants to states for medical assistance based on specific eligibility criteria, as set
forth at Section 1396, et seq. of Title 42 of the United States Code, as amended, and any statute succeeding
thereto.
“Medicaid Provider Agreement” means an agreement entered into between a state agency or other
such entity administering the Medicaid program and a health care provider or supplier under which the
34
health care provider or supplier agrees to provide services for Medicaid patients in accordance with the
terms of the agreement and Medicaid Regulations.
“Medicaid Regulations” means, collectively, (i) all federal statutes (whether set forth in Title XIX
of the Social Security Act or elsewhere) affecting Medicaid and any statutes succeeding thereto; (ii) all
applicable provisions of all federal rules, regulations, manuals and orders of all Governmental Authorities
promulgated pursuant to or in connection with the statutes described in clause (i) above and all federal
administrative, reimbursement and other guidelines of all Governmental Authorities having the force of
law promulgated pursuant to or in connection with the statutes described in clause (i) above; (iii) all state
statutes and plans for medical assistance enacted in connection with the statutes and provisions described
in clauses (i) and (ii) above; and (iv) all applicable provisions of all rules, regulations, manuals and orders
of all Governmental Authorities promulgated pursuant to or in connection with the statutes described in
clause (iii) above and all state administrative, reimbursement and other guidelines of all Governmental
Authorities having the force of law promulgated pursuant to or in connection with the statutes described
in clause (ii) above, in each case as may be amended, supplemented or otherwise modified from time to
time.
“Medical Reimbursement Programs” means a collective reference to the Medicare, Medicaid and
TRICARE programs and any other health care program operated by or financed in whole or in part by
any foreign or domestic federal, state or local government and any other non-government funded third
party payor programs.
“Medical Services” means medical and health care services provided to a Patient, including, but
not limited to, medical and health care services provided to a Patient and performed by a Loan Party
which are covered by a policy of insurance issued by an Insurer, and includes physician services, nurse
and therapist services, dental services, hospital services, skilled nursing facility services, comprehensive
outpatient rehabilitation services, home health care services, residential and out-patient behavioral
healthcare services, and medicine or health care equipment provided by a Loan Party to a Patient for a
necessary or specifically requested valid and proper medical or health purpose.
“Medicare” means that government-sponsored entitlement program under Title XVIII of the
Social Security Act, which provides for a health insurance system for eligible individuals, as set forth at
Section 1395, et seq. of Title 42 of the United States Code, as amended, and any statute succeeding
thereto.
“Medicare Provider Agreement” means an agreement entered into between CMS or other such
entity administering the Medicare program on behalf of CMS, and a health care provider or supplier
under which the health care provider or supplier agrees to provide services for Medicare patients in
accordance with the terms of the agreement and Medicare Regulations.
“Medicare Regulations” means, collectively, all federal statutes (whether set forth in Title XVIII
of the Social Security Act or elsewhere) affecting Medicare and any statutes succeeding thereto; together
with all applicable provisions of all rules, regulations, manuals and orders and administrative,
reimbursement and other guidelines having the force of law of all Governmental Authorities (including,
without limitation, CMS, the OIG, HHS, or any person succeeding to the functions of any of the
foregoing) promulgated pursuant to or in connection with any of the foregoing having the force of law, as
each may be amended, supplemented or otherwise modified from time to time.
“MFN Provisions” has the meaning set forth in Section 2.14(b).
35
“MOB Disposition” has the meaning set forth in Section 8.05(iii).
“▇▇▇▇▇’▇” means ▇▇▇▇▇’▇ Investors Service, Inc. and any successor thereto.
“Mortgage Instrument” means the fully executed and notarized mortgages, deeds of trust or deeds
to secure debt executed by a Loan Party in favor of the Administrative Agent, as the same may be
amended, modified, restated or supplemented from time to time.
“Mortgaged Property” means (a) the Real Property identified on Schedule 1.01 and (b) each
owned Real Property of the Loan Parties which shall be required to be encumbered by a Mortgage
Instrument delivered after the Original Closing Date pursuant to Section 7.14.
“Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made or been obligated to make contributions.
“NAIC” means the National Association of Insurance Commissioners, a national organization of
insurance regulators.
“Net Cash Proceeds” means the aggregate cash or Cash Equivalents proceeds received by the
Borrower or any Restricted Subsidiary in respect of any Disposition (including the sale of the Capital
Stock in any Joint Venture), Debt Issuance or Involuntary Disposition, net of (a) direct costs incurred in
connection therewith (including, without limitation, legal, accounting and investment banking fees, and
sales commissions), (b) taxes paid or payable as a result thereof and (c) in the case of any Disposition or
Involuntary Disposition by the Borrower or any Restricted Subsidiary thereof, the amount necessary to
retire any Indebtedness secured by a Permitted Lien (ranking senior to any Lien of the Administrative
Agent) on the related Property; it being understood that “Net Cash Proceeds” shall include, without
limitation, any cash or Cash Equivalents received upon the sale or other disposition of any non-cash
consideration received by the Borrower or any Restricted Subsidiary in any Disposition, Debt Issuance or
Involuntary Disposition; provided, however, that if in connection with a Disposition or Involuntary
Disposition the Borrower shall deliver a certificate of a Responsible Officer to the Administrative Agent
at the time of receipt thereof setting forth the Borrower’s intention to reinvest such proceeds in productive
assets of a kind then used or usable in the business of the Borrower and its Restricted Subsidiaries
(including assets acquired in a Permitted Acquisition), such proceeds shall not constitute Net Cash
Proceeds if (x) within one (1) year of receipt thereof such proceeds are so reinvested and (y) no Event of
Default shall have occurred and shall be continuing at the time of such certificate or at the time such
proceeds are contractually committed to be used; provided further that if prior to the end of such one (1)
year period, such proceeds have not been reinvested but have been contractually committed to be so
reinvested, such proceeds shall not constitute Net Cash Proceeds except to the extent not actually
reinvested within an additional 180-day period following such one (1) year period, at which time such
proceeds shall be deemed to be Net Cash Proceeds.
“Non-Converting Consenting Lender” means a Lender that has elected to be a “Non-Converting
Consenting Lender” on its signature page to Amendment No. 2.
“Non-Debt Fund Affiliate” shall mean an Affiliate of the Borrower that is not a Debt Fund
Affiliate or a Purchasing Borrower Party.
“Non-Extending Term Lenders” has the meaning set forth in Section 2.17(b).
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“Non-Guarantor Restricted Subsidiary” means any Restricted Subsidiary of the Borrower which
is not a Loan Party.
“Non-Ventas Purchase Option Term Loans” means the Term Loans outstanding after giving
effect to the Ventas Purchase Option Assignment that are not Ventas Purchase Option Term Loans.
“Non-Recourse Debt” means Indebtedness of a Person:
(1)as to which neither the Borrower nor any Restricted Subsidiary (a) provides any
Guarantee or credit support of any kind (including any undertaking, Guarantee, indemnity, agreement or
instrument that would constitute Indebtedness) or (b) is directly or indirectly liable (as a guarantor or
otherwise); and
(2)no default with respect to which (including any rights that the holders thereof may have
to take enforcement action against an Unrestricted Subsidiary) would permit (upon notice, lapse of time
or both) any holder of any other Indebtedness of the Borrower or any Restricted Subsidiary to declare a
default under such other Indebtedness or cause the payment thereof to be accelerated or payable prior to
its Stated Maturity.
“Non-Tenant Joinder Agreement” means a joinder agreement substantially in the form of Exhibit
J-1 executed and delivered by a Domestic Restricted Subsidiary (other than a Tenant Subsidiary) in
accordance with the provisions of Section 7.12.
“Non-Tenant Subsidiary Pledge Agreement” means the Pledge Agreement in the form of Exhibit
B-1 dated as of the Original Closing Date executed in favor of the Administrative Agent by each of the
Loan Parties (other than the Tenant Subsidiaries), as amended, modified, restated or supplemented from
time to time.
“Non-Tenant Subsidiary Security Agreement” means the Security Agreement substantially in the
form of Exhibit C-1 dated as of the Original Closing Date executed in favor of the Administrative Agent
by each of the Loan Parties (other than any Tenant Subsidiaries), as amended, modified, restated or
supplemented from time to time.
“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of,
any Loan Party arising under any Loan Document or otherwise with respect to any Loan, whether direct
or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now
existing or hereafter arising and including interest and fees that accrue after the commencement by or
against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming
such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed
claims in such proceeding.
“OID” has the meaning assigned in Section 2.14(b).
“OIG” means the Office of Inspector General of HHS and any successor thereof.
“Organization Documents” means (a) with respect to any corporation, the certificate or articles of
incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any
non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of
formation or organization and operating agreement; and (c) with respect to any partnership, joint venture,
trust or other form of business entity, the partnership, joint venture or other applicable agreement of
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formation or organization and any agreement, instrument, filing or notice with respect thereto filed in
connection with its formation or organization with the applicable Governmental Authority in the
jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or
organization of such entity.
“Original Closing Date” means June 28, 2018.
“Other Appointment and Resignation Documentation” has the meaning assigned to such term in
the Amendment and Restatement Agreement.
“Other Taxes” has the meaning set forth in Section 3.01(b).
“Outstanding Amount” means with respect to any Loans on any date, the aggregate outstanding
principal amount thereof after giving effect to any borrowings and prepayments or repayments of any
Loans occurring on such date.
“PACE Financing” shall mean a financing secured by a real estate tax assessment on a property in
accordance with state and local Laws.
“Parent” has the meaning provided in the introductory paragraph hereto.
“Participant” has the meaning assigned in Section 11.07(d).
“Participant Register” has the meaning set forth in Section 11.07(d).
“Patient” means any Person receiving Medical Services from a Loan Party and all Persons legally
liable to pay a Loan Party for such Medical Services other than Insurers.
“PBGC” means the Pension Benefit Guaranty Corporation.
“Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section
3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or
maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any ERISA Affiliate
contributes or has an obligation to contribute, or in the case of a multiple employer or other plan
described in Section 4064(a) of ERISA, has made contributions at any time during the immediately
preceding five plan years.
“Permitted Acquisition” means, subject to Section 1.08, an Acquisition of at least a majority of
the Voting Stock and the Capital Stock of a Person that becomes a Restricted Subsidiary or an
Acquisition of a substantial portion of the Property of a Person by a Borrower or a Restricted Subsidiary;
provided that (i) the Property acquired (or the Property of the Person acquired) in such Acquisition is
used or useful in the same or a substantially similar line of business (or complementary, supplemental or
ancillary thereto) as the Loan Parties and their Subsidiaries, (ii) in the case of an Acquisition of the
Capital Stock of another Person, the board of directors (or other comparable governing body) of such
other Person shall have duly approved such Acquisition, (iii) immediately prior to and after giving effect
to any such Acquisition, no Event of Default shall have occurred and be continuing, (iv) if the aggregate
consideration for such Acquisition (including Earn-Out Obligations exceeding $10,000,000 in the
aggregate, cash and non-cash consideration, any deferred capital expenditures and any assumption of
liabilities, but excluding (A) any Equity Issuance made to the applicable seller as part of the purchase
price, (B) any portion of the purchase price funded, directly or indirectly, with the proceeds of any
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Equity Issuance and (C) any purchase price and/or working capital adjustments) exceeds $10,000,000 in
the aggregate, such Person’s operations, assets and property shall not be subject (directly or indirectly) to
the ETMC JV Agreement and (v) the acquired Person and its Subsidiaries and/or the entity that acquires
such Property, as applicable, shall become Guarantors and pledge Collateral to the extent required
pursuant to Section 7.12 and Section 7.14; provided further that the aggregate amount of Permitted
Acquisitions of Non-Guarantor Restricted Subsidiaries and of entities that become ETMC Subsidiaries
and Permitted Acquisitions by Non-Guarantor Restricted Subsidiaries or ETMC Subsidiaries, when
taken together with the aggregate amount of Investments pursuant to Section 8.02(i) shall not exceed the
greater of (x) $140,000,000 and (y) 30% of Consolidated EBITDA.
“Permitted Investments” means, at any time, Investments by the Borrower and its Restricted
Subsidiaries permitted to exist at such time pursuant to the terms of Section 8.02.
“Permitted IRB Transaction” means any transaction in which (x) a Governmental Authority
issues industrial revenue bonds or other similar tax-exempt securities (the “Applicable Securities”) in
connection with the financing of assets (the “Applicable Assets”) that would not otherwise qualify as
Collateral (including any issuances in connection with financing the business acquired pursuant to the
Topeka Acquisition) and (y) the Borrower or a Restricted Subsidiary purchases in cash (the “Applicable
Cash”) such Applicable Securities; provided that (a) no Person other than the Borrower or a Restricted
Subsidiary may hold such Applicable Securities or be entitled to exercise any rights or remedies with
respect thereto, (b) no assets other than the Applicable Assets or the Applicable Cash may secure such
Applicable Securities and (c) neither the Borrower nor any Restricted Subsidiary may be an obligor with
respect to such Applicable Securities.
“Permitted Liens” means, at any time, Liens in respect of Property of the Borrower and its
Restricted Subsidiaries permitted to exist at such time pursuant to the terms of Section 8.01.
“Permitted Merger” has the meaning set forth in Section 8.04.
“Permitted Sale Leaseback” means any Sale and Leaseback Transaction consummated by the
Borrower or any Restricted Subsidiary after the Original Closing Date; provided that (a) no Default or
Event of Default shall have occurred or be continuing or would result therefrom, (b) after giving pro
forma effect thereto, the Senior Secured Net Leverage Ratio (calculated on a Pro Forma Basis) does not
exceed 3.75:1.00, (c) no less than 75% of the aggregate consideration received in such Sale and
Leaseback Transaction shall be in cash and Cash Equivalents, (d) the Borrower or the applicable
Restricted Subsidiary shall receive at least fair market value (as determined by the Borrower in good
faith) for any property disposed of in such Sale and Leaseback Transaction and (e) the Net Cash Proceeds
thereof shall be applied in accordance with Section 2.05(b)(ii).
“Person” means any natural person, corporation, limited liability company, trust, joint venture,
association, company, partnership, Governmental Authority or other entity.
“Physician Groups” means MPV New Jersey MD Services, P.C., and any other similar
professional corporation, limited liability company, partnership or other entity that provides or arranges
medical services in a state that only permits the equity interests of such entity to be held by one or more
licensed physicians or licensed professionals or professional entities.
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“Physician Support Obligation” means:
(1)a loan to or on behalf of, or a Guarantee of Indebtedness of or income of, (x) a
physician or healthcare professional providing service to patients in the service area of a Hospital
operated by the Borrower or any Restricted Subsidiary or (y) any independent practice association or
other entity that is majority owned by any Person or group of Persons described in clause (x), in either
case made or given by the Borrower or any Restricted Subsidiary
(a)in the ordinary course of its business; and
(b)pursuant to a written agreement having a period not to exceed five years; or
(2)Guarantees by the Borrower or any Restricted Subsidiary of leases and loans to
acquire property (real or personal) for or on behalf of a physician, healthcare professional or any
independent practice association or other entity that is majority owned by any Person or group of Persons
described in clause (x) above providing service to patients in the service area of a Hospital operated by
the Borrower or any Restricted Subsidiary.
“Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA)
established or maintained by the Borrower.
“Platform” has the meaning specified in Section 7.02.
“Pledge Agreements” means the Tenant Subsidiary Pledge Agreement and the Non-Tenant
Subsidiary Pledge Agreement.
“Pledged ETMC Distribution Account” has the meaning specified in Section 8.16.
“Preferred Stock” as applied to the Capital Stock of any corporation, means Capital Stock of any
class or classes (however designated) that is preferred as to the payment of dividends upon liquidation,
dissolution or winding up.
“Prepayment Notice” means a notice by the Borrower to prepay Loans, which shall be
substantially in the form of Exhibit E (or such other form as the Administrative Agent may approve).
“Privacy Standards” has the meaning specified in Section 7.08.
“Pro Forma Basis” means, for all purposes hereof, that any Disposition, Involuntary Disposition
or Acquisition, any Approved Hospital Swap and the incurrence of any Loan or any Subordinated
Indebtedness shall be deemed to have occurred as of the first day of the most recent four fiscal quarter
period in respect of which financial statements have been delivered (or are already required to have been
delivered) hereunder preceding the date of such transaction or incurrence. In connection with the
foregoing, (a) with respect to any Disposition or Involuntary Disposition, (i) income statement and cash
flow statement items (whether positive or negative) attributable to the Property disposed of shall be
excluded to the extent relating to any period occurring prior to the date of such transaction and (ii)
Indebtedness which is retired shall be excluded and deemed to have been retired as of the first day of the
applicable period and (b) with respect to any Acquisition, (i) income statement items attributable to the
Person or Property acquired shall be included to the extent relating to any period applicable in such
calculations to the extent (A) such items are not otherwise included in such income statement items for
the Borrower and its Subsidiaries in accordance with GAAP or in accordance with any defined terms set
forth in Section 1.01 and (B) such items are supported by financial statements or other information
40
reasonably satisfactory to the Administrative Agent and (ii) any Indebtedness incurred or assumed by the
Borrower or any Subsidiary (including the Person or Property acquired) in connection with such
transaction and any Indebtedness of the Person or Property acquired which is not retired in connection
with such transaction (A) shall be deemed to have been incurred as of the first day of the applicable
period and (B) if such Indebtedness has a floating or formula rate, shall have an implied rate of interest
for the applicable period for purposes of this definition determined by utilizing the rate which is or would
be in effect with respect to such Indebtedness as at the relevant date of determination. Furthermore, pro
forma calculations of Consolidated EBITDA shall not give effect to anticipated cost savings, synergies,
operating expense reductions and/or increases to Consolidated EBITDA for the applicable period, except
in cases where factually supportable and identifiable pro forma cost savings and/or increases to
Consolidated EBITDA for the applicable period with respect to an Acquisition (in each case reasonably
expected to occur within 24 months of the respective date of such Acquisition) that are attributable to
such Acquisition are demonstrated in writing by the Borrower (with supporting calculations) to the
Administrative Agent at the time of the relevant Acquisition; provided, further, that the