Exhibit 10.1
RESTATEMENT AGREEMENT, dated as of May 4, 2011 (this
Restatement Agreement
), to
the Credit Agreement, dated as of November 17, 2006 (as amended and in effect immediately prior to
the Restatement Effective Date, the
Original Credit Agreement
) by and among HCA Inc., a
Delaware corporation (
HCA
or the
Parent Borrower
), HCA UK CAPITAL LIMITED, a
limited liability company (company no. 04779021) formed under the laws of England and Wales (the
European Subsidiary Borrower
and together with the Parent Borrower, the
Borrowers
and each a
Borrower
), the LENDERS party hereto and BANK OF AMERICA,
N.A., as Administrative Agent (the
Administrative Agent
) and Collateral Agent (the
Collateral Agent
).
WHEREAS, the Borrowers have requested, and the Lenders party hereto, which constitute the
Required Lenders, have agreed, upon the terms and subject to the conditions set forth herein, that
the Original Credit Agreement be amended and restated as provided herein; and
NOW, THEREFORE, in consideration of the promises and mutual agreements herein contained, the
Borrowers, the Lenders party hereto and the Administrative Agent hereby agree as follows:
SECTION 1.
Defined Terms
. Capitalized terms used but not defined herein shall have
the meanings assigned to such terms in the Restated Credit Agreement (as defined below), except
that the defined terms Lender and Required Lenders shall have the meaning given to such terms
by the Original Credit Agreement.
SECTION 2.
Amendment and Restatement of the Original Credit Agreement
. The Credit
Agreement is hereby amended and restated to read in its entirety as set forth in
Exhibit A
hereto (the
Restated Credit Agreement
). The portion, if any, of each Lenders Tranche
A-1 Term Loans (as defined in the Original Credit Agreement) or Tranche B-1 Term Loans (as defined
in the Original Credit Agreement), as applicable that such Lender has indicated on its signature
page to this Restatement Agreement that such Lender wishes to convert to Tranche A-2 Term Loans or
Tranche B-3 Term Loans, as applicable, shall, subject to the definition of Tranche A-2 Converted
Amount and Tranche B-3 Converted Amount set forth in the Restated Credit Agreement, be converted
to Tranche A-2 Term Loans and Tranche B-3 Term Loans, respectively, in an amount equal to such
Lenders Tranche A-2 Converted Amount and Tranche B-3 Converted Amount and otherwise in accordance
with Section 2.1 of the Restated Credit Agreement.
SECTION 3.
Credit Document Amendments
. The Required Lenders hereby consent to the
amendments to the Security Documents contemplated by the Restated Credit Agreement.
SECTION 4.
Effectiveness; Counterparts; Amendments
. This Restatement Agreement shall
become effective when counterparts hereof which, when taken together, bear the signatures of each
of the Borrowers, the Administrative Agent and the Required Lenders shall have been received by the
Administrative Agent. This Restatement Agreement may be executed in two or more counterparts, each
of which shall constitute an original but all of which when taken together shall constitute a
single contract. Delivery of an executed counterpart of a signature page of this Restatement
Agreement by facsimile or other electronic transmission shall
be effective as delivery of a manually executed counterpart of this Restatement Agreement.
SECTION 5.
No Novation
. The execution and delivery of this Restatement Agreement and
the effectiveness shall not act as a novation of the Original Credit Agreement and, shall not serve
to discharge or release any Obligation or Lien under the Credit Documents or to forgive the payment
of any amount owing thereunder. This Restatement Agreement shall be a Credit Document for all
purposes of the Restated Credit Agreement. Each Credit Party hereby confirms that its obligations
under each Security Document executed under the Original Credit Agreement shall continue to apply
to the European Obligations (in the case of the European Credit Parties) or all Obligations (in the
case of the U.S. Credit Parties) under the Restated Credit Agreement.
SECTION 6.
Applicable Law; Waiver of Jury Trial
.
(A) THIS RESTATEMENT AGREEMENT SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
(B) EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS RESTATEMENT AGREEMENT AND FOR ANY COUNTERCLAIM HEREIN.
SECTION 7.
Headings
. The Section headings used herein are for convenience of
reference only, are not part of this Restatement Agreement and are not to affect the construction
of, or to be taken into consideration in interpreting, this Restatement Agreement.
-2-
IN WITNESS WHEREOF, the parties hereto have caused this Restatement Agreement to be duly
executed by their respective authorized officers as of the day and year first written above.
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HCA INC., as Parent Borrower
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By:
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/s/ David G. Anderson
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Name:
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David G. Anderson
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Title:
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Sr. Vice President, Finance and
Treasurer
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HCA UK CAPITAL LIMITED, as European Subsidiary
Borrower
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By:
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/s/ James M. Petkas
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Name:
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James M. Petkas
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Title:
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Group Chief Financial Officer
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Each of the U.S. GUARANTORS listed on Schedule
I hereto
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By:
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/s/ John M. Franck II
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Name:
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John M. Franck II
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Title:
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Vice President and Assistant
Secretary
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[HCA Cash Flow Restatement Agreement]
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EXECUTED by
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HCA UK HOLDINGS LIMITED
acting by
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)
)
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Director
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/s/ James M. Petkas
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as a European Guarantor
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)
)
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Witness:
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/s/ Michael Neeb
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EXECUTED by
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)
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HCA UK CAPITAL LIMITED
acting by
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)
)
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Director
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/s/ James M. Petkas
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as a European Guarantor
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)
)
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Witness:
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/s/ Michael Neeb
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EXECUTED by
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HCA UK SERVICES LIMITED
acting by
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)
)
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Director
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/s/ James M. Petkas
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as a European Guarantor
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)
)
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Witness:
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/s/ Michael Neeb
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EXECUTED by
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)
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HCA INTERNATIONAL
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)
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HOLDINGS LIMITED
acting by
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)
)
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Director
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/s/ James M. Petkas
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as a European Guarantor
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)
)
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Witness:
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/s/ Michael Neeb
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EXECUTED by
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)
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HCA UK INVESTMENTS
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)
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LIMITED
acting by
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)
)
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Director
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/s/ James M. Petkas
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as a European Guarantor
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)
)
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Witness:
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/s/ Michael Neeb
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[HCA Cash Flow Restatement Agreement]
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EXECUTED by
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)
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THE HARLEY STREET
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)
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CANCER CLINIC LIMITED
acting by
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)
)
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Director
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/s/ James M. Petkas
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as a European Guarantor
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)
)
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Witness:
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/s/ Michael Neeb
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EXECUTED by
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)
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HCA INTERNATIONAL
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)
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LIMITED
acting by
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)
)
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Director
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/s/ James M. Petkas
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as a European Guarantor
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)
)
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Witness:
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/s/ Michael Neeb
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EXECUTED by
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)
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HCA UK LIMITED
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)
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Director
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/s/ James M. Petkas
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acting by
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)
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as a European Guarantor
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)
)
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Witness:
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/s/ Michael Neeb
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EXECUTED by
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)
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ST MARTINS LIMITED
acting by
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)
)
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Director
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/s/ James M. Petkas
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as a European Guarantor
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)
)
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Witness:
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/s/ Michael Neeb
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EXECUTED by
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)
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ST MARTINS HEALTHCARE
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)
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LIMITED
acting by
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)
)
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Director
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/s/ James M. Petkas
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as a European Guarantor
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)
)
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Witness:
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/s/ Michael Neeb
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EXECUTED by
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)
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HCA STAFFING LIMITED
acting by
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)
)
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Director
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/s/ James M. Petkas
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as a European Guarantor
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)
)
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Witness:
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/s/ Michael Neeb
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[HCA Cash Flow Restatement Agreement]
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EXECUTED by
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)
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LA TOUR FINANCE LIMITED PARTNERSHIP
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)
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acting by
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HCA SWITZERLAND HOLDING GmbH
, general
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partner acting by
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/s/ John M. Franck II
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John M. Franck II, Manager
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acting under the authority of the company
[HCA Cash Flow Restatement Agreement]
Schedule I
to the Restatement Agreement
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By its
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By its
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By the General
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General
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Sole
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Partner of its
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U.S. Guarantor
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Partner
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Member
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Sole Member
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American Medicorp Development Co.
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Bay Hospital, Inc.
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Brigham City Community Hospital, Inc.
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Brookwood Medical Center of Gulfport, Inc.
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Capital Division, Inc.
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Centerpoint Medical Center of Independence, LLC
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Central Florida Regional Hospital, Inc.
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Central Shared Services, LLC
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Central Tennessee Hospital Corporation
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CHCA Bayshore, L.P.
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*
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CHCA Conroe, L.P.
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*
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CHCA Mainland, L.P.
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*
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CHCA West Houston, L.P.
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*
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CHCA Womans Hospital, L.P.
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*
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Chippenham & Johnston-Willis Hospitals, Inc.
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CMS GP, LLC
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Colorado Health Systems, Inc.
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Columbia ASC Management, L.P.
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*
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Columbia Jacksonville Healthcare System, Inc.
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Columbia LaGrange Hospital, Inc.
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Columbia Medical Center of Arlington Subsidiary, L.P.
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*
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Columbia Medical Center of Denton Subsidiary, L.P.
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*
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Columbia Medical Center of Las Colinas, Inc.
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Columbia Medical Center of Lewisville Subsidiary, L.P.
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*
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Columbia Medical Center of McKinney Subsidiary, L.P.
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*
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Columbia Medical Center of Plano Subsidiary, L.P.
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*
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Columbia North Hills Hospital Subsidiary, L.P.
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*
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Columbia Ogden Medical Center, Inc.
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Columbia Parkersburg Healthcare System, LLC
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Columbia Plaza Medical Center of Fort Worth
Subsidiary, L.P.
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*
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Columbia Polk General Hospital, Inc.
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Columbia Rio Grande Healthcare, L.P.
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*
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Columbia Riverside, Inc.
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Columbia Valley Healthcare System, L.P.
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*
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Columbia/Alleghany Regional Hospital, Incorporated
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Columbia/HCA John Randolph, Inc.
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Columbine Psychiatric Center, Inc.
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By its
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By its
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By the General
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General
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Sole
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Partner of its
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U.S. Guarantor
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Partner
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Member
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Sole Member
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Columbus Cardiology, Inc.
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Conroe Hospital Corporation
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Dallas/Ft. Worth Physician, LLC
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Dauterive Hospital Corporation
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Dublin Community Hospital, LLC
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Eastern Idaho Health Services, Inc.
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Edward White Hospital, Inc.
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El Paso Surgicenter, Inc.
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Encino Hospital Corporation, Inc.
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EP Health, LLC
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Fairview Park GP, LLC
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Fairview Park, Limited Partnership
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*
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Frankfort Hospital, Inc.
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Galen Property, LLC
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Good Samaritan Hospital, L.P.
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*
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Goppert-Trinity Family Care, LLC
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GPCH-GP, Inc.
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Grand Strand Regional Medical Center, LLC
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Green Oaks Hospital Subsidiary, L.P.
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*
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Greenview Hospital, Inc.
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HCA IT&S Field Operations, Inc.
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HCA IT&S Inventory Management, Inc.
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HCA Central Group, Inc.
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HCA Health Services of Florida, Inc.
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HCA Health Services of Louisiana, Inc.
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HCA Health Services of Oklahoma, Inc.
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HCA Health Services of Tennessee, Inc.
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HCA Health Services of Virginia, Inc.
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HCA Management Services, L.P.
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*
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HCA Realty, Inc.
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HD&S Corp. Successor, Inc.
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Health Midwest Office Facilities Corporation
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Health Midwest Ventures Group, Inc.
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HTI MOB, LLC
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*
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Hendersonville Hospital Corporation
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Hospital Corporation of Tennessee
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Hospital Corporation of Utah
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Hospital Development Properties, Inc.
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HSS Holdco, LLC
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HSS Systems VA, LLC
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HSS Systems, LLC
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HSS Virginia, L.P.
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*
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HTI Memorial Hospital Corporation
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Integrated Regional Lab, LLC
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By its
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By its
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By the General
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General
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Sole
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Partner of its
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U.S. Guarantor
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Partner
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Member
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Sole Member
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Integrated Regional Laboratories, LLP
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*
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JFK Medical Center Limited Partnership
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*
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KPH-Consolidation, Inc.
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Lakeland Medical Center, LLC
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Lakeview Medical Center, LLC
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Largo Medical Center, Inc.
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Las Vegas Surgicare, Inc.
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Lawnwood Medical Center, Inc.
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Lewis-Gale Hospital, Incorporated
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Lewis-Gale Medical Center, LLC
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Lewis-Gale Physicians, LLC
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Los Robles Regional Medical Center
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Management Services Holdings, Inc.
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Marietta Surgical Center, Inc.
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Marion Community Hospital, Inc.
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MCA Investment Company
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Medical Centers of Oklahoma, LLC
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Medical Office Buildings of Kansas, LLC
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Memorial Healthcare Group, Inc.
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Midwest Division ACH, LLC
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Midwest Division LRHC, LLC
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Midwest Division LSH, LLC
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Midwest Division MCI, LLC
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Midwest Division MMC, LLC
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Midwest Division OPRMC, LLC
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Midwest Division PFC, LLC
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Midwest Division RBH, LLC
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Midwest Division RMC, LLC
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Midwest Division RPC, LLC
|
|
|
|
|
|
|
Midwest Holdings, Inc.
|
|
|
|
|
|
|
Montgomery Regional Hospital, Inc.
|
|
|
|
|
|
|
Mountain View Hospital, Inc.
|
|
|
|
|
|
|
Nashville Shared Services General Partnership
|
|
*
|
|
|
|
|
National Patient Account Services, Inc.
|
|
|
|
|
|
|
New Port Richey Hospital, Inc.
|
|
|
|
|
|
|
New Rose Holding Company, Inc.
|
|
|
|
|
|
|
North Florida Immediate Care Center, Inc.
|
|
|
|
|
|
|
North Florida Regional Medical Center, Inc.
|
|
|
|
|
|
|
Northern Utah Healthcare Corporation
|
|
|
|
|
|
|
Northern Virginia Community Hospital, LLC
|
|
|
|
|
|
|
Northlake Medical Center, LLC
|
|
|
|
|
|
|
Notami Hospitals of Louisiana, Inc.
|
|
|
|
|
|
|
Notami Hospitals, LLC
|
|
|
|
|
|
|
Okaloosa Hospital, Inc.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By its
|
|
By its
|
|
By the General
|
|
|
General
|
|
Sole
|
|
Partner of its
|
U.S. Guarantor
|
|
Partner
|
|
Member
|
|
Sole Member
|
Okeechobee Hospital, Inc.
|
|
|
|
|
|
|
Outpatient Cardiovascular Center of Central Florida,
LLC
|
|
|
|
|
|
|
Palms West Hospital Limited Partnership
|
|
*
|
|
|
|
|
Palmyra Park Hospital, Inc.
|
|
|
|
|
|
|
Pasadena Bayshore Hospital, Inc.
|
|
|
|
|
|
|
Plantation General Hospital, L.P.
|
|
*
|
|
|
|
|
Pulaski Community Hospital, Inc.
|
|
|
|
|
|
|
Redmond Park Hospital, LLC
|
|
|
|
|
|
|
Redmond Physician Practice Company
|
|
|
|
|
|
|
Regional Health System of Acadiana, LLC, The
|
|
|
|
|
|
|
Reston Hospital Center, LLC
|
|
|
|
|
|
|
Retreat Hospital, LLC
|
|
|
|
|
|
|
Rio Grande Regional Hospital, Inc.
|
|
|
|
|
|
|
Riverside Healthcare System, L.P.
|
|
*
|
|
|
|
|
Riverside Hospital, Inc.
|
|
|
|
|
|
|
Samaritan, LLC
|
|
|
|
|
|
|
San Jose Healthcare System, LP
|
|
*
|
|
|
|
|
San Jose Hospital, L.P.
|
|
*
|
|
|
|
|
San Jose Medical Center, LLC
|
|
|
|
|
|
|
San Jose, LLC
|
|
|
|
|
|
|
Sarasota Doctors Hospital, Inc.
|
|
|
|
|
|
|
SJMC, LLC
|
|
|
|
|
|
|
Southern Hills Medical Center, LLC
|
|
|
|
|
|
|
Spotsylvania Medical Center, Inc.
|
|
|
|
|
|
|
Spring Branch Medical Center, Inc.
|
|
|
|
|
|
|
Spring Hill Hospital, Inc.
|
|
|
|
|
|
|
St. Marks Lone Peak Hospital, Inc.
|
|
|
|
|
|
|
Sun City Hospital, Inc.
|
|
|
|
|
|
|
Sunrise Mountainview Hospital, Inc.
|
|
|
|
|
|
|
Surgicare of Brandon, Inc.
|
|
|
|
|
|
|
Surgicare of Florida, Inc.
|
|
|
|
|
|
|
Surgicare of Houston Womens, Inc.
|
|
|
|
|
|
|
Surgicare of Manatee, Inc.
|
|
|
|
|
|
|
Surgicare of New Port Richey, Inc.
|
|
|
|
|
|
|
Surgicare of Palms West, LLC
|
|
|
|
|
|
|
Surgicare of Riverside, LLC
|
|
|
|
|
|
*
|
Tallahassee Medical Center, Inc.
|
|
|
|
|
|
|
TCMC Madison-Portland, Inc.
|
|
|
|
|
|
|
Terre Haute Hospital GP, Inc.
|
|
|
|
|
|
|
Terre Haute Hospital Holdings, Inc.
|
|
|
|
|
|
|
Terre Haute MOB, L.P.
|
|
*
|
|
|
|
|
Terre Haute Regional Hospital, L.P.
|
|
*
|
|
|
|
|
Timpanogos Regional Medical Services, Inc.
|
|
|
|
|
|
|
Trident Medical Center, LLC
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By its
|
|
By its
|
|
By the General
|
|
|
General
|
|
Sole
|
|
Partner of its
|
U.S. Guarantor
|
|
Partner
|
|
Member
|
|
Sole Member
|
Utah Medco, LLC
|
|
|
|
|
|
|
VH Holdco, Inc.
|
|
|
|
|
|
|
VH Holdings, Inc.
|
|
|
|
|
|
|
Virginia Psychiatric Company, Inc.
|
|
|
|
|
|
|
W & C Hospital, Inc.
|
|
|
|
|
|
|
Walterboro Community Hospital, Inc.
|
|
|
|
|
|
|
Wesley Medical Center, LLC
|
|
|
|
|
|
|
West Florida Regional Medical Center, Inc.
|
|
|
|
|
|
|
West Valley Medical Center, Inc.
|
|
|
|
|
|
|
Western Plains Capital, Inc.
|
|
|
|
|
|
|
WHMC, Inc.
|
|
|
|
|
|
|
Womans Hospital of Texas, Incorporated
|
|
|
|
|
|
|
|
|
|
|
|
|
BANK OF AMERICA, N.A, as Administrative Agent
and Collateral Agent
|
|
|
By:
|
/s/ Garrett Carpenter
|
|
|
|
Name:
|
Garrett Carpenter
|
|
|
|
Title:
|
Director
|
|
|
[ADDITIONAL LENDER SIGNATURES OMITTED]
Signature Page Restatement Agreement
Published CUSIP No.:
$13,550,000,000
1,000,000,000
CREDIT AGREEMENT
Dated as of November 17, 2006
and
Amended and Restated as of May 4, 2011
among
HCA INC.,
as the Parent Borrower,
HCA UK CAPITAL LIMITED,
as the European Subsidiary Borrower,
The Several Lenders
from Time to Time Parties Hereto,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swingline Lender
and Letter of Credit Issuer,
JPMORGAN CHASE BANK, N.A.
and
CITICORP NORTH AMERICA, INC.,
as Co-Syndication Agents,
and
MERRILL LYNCH CAPITAL CORPORATION,
as Documentation Agent
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED,
J.P. MORGAN SECURITIES LLC
and
CITIGROUP GLOBAL MARKETS INC.,
as Joint Lead Arrangers and Bookrunners,
DEUTSCHE BANK SECURITIES INC.
and
WACHOVIA CAPITAL MARKETS, LLC,
as Joint Bookrunners
and
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
CITIGROUP GLOBAL MARKETS, INC.
J.P. MORGAN SECURITIES LLC
as Joint Lead Arrangers and Bookrunners for the Amendment and Restatement
Cahill Gordon & Reindel
llp
80 Pine Street
New York, New York 10005
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page
|
|
SECTION 1. Definitions
|
|
|
1
|
|
1.1. Defined Terms
|
|
|
1
|
|
1.2. Other Interpretive Provisions
|
|
|
66
|
|
1.3. Accounting Terms
|
|
|
67
|
|
1.4. Rounding
|
|
|
67
|
|
1.5. References to Agreements, Laws, Etc.
|
|
|
67
|
|
1.6. Exchange Rates
|
|
|
67
|
|
1.7. Reserve Amounts
|
|
|
68
|
|
|
|
|
|
|
SECTION 2. Amount and Terms of Credit
|
|
|
68
|
|
2.1. Effect of Restatement on Loans and Letters of Credit under
the Original Credit Agreement
|
|
|
68
|
|
2.2. Minimum Amount of Each Borrowing; Maximum Number of Borrowings
|
|
|
71
|
|
2.3. Notice of Borrowing
|
|
|
71
|
|
2.4. Disbursement of Funds
|
|
|
73
|
|
2.5. Repayment of Loans; Evidence of Debt
|
|
|
73
|
|
2.6. Conversions and Continuations
|
|
|
77
|
|
2.7. Pro Rata Borrowings
|
|
|
78
|
|
2.8. Interest
|
|
|
79
|
|
2.9. Interest Periods
|
|
|
80
|
|
2.10. Increased Costs, Illegality, Etc.
|
|
|
81
|
|
2.11. Compensation
|
|
|
83
|
|
2.12. Change of Lending Office
|
|
|
84
|
|
2.13. Notice of Certain Costs
|
|
|
84
|
|
2.14. Incremental Facilities
|
|
|
84
|
|
|
|
|
|
|
SECTION 3. Letters of Credit
|
|
|
91
|
|
3.1. Letters of Credit
|
|
|
91
|
|
3.2. Letter of Credit Requests
|
|
|
93
|
|
3.3. Letter of Credit Participations
|
|
|
95
|
|
3.4. Agreement to Repay Letter of Credit Drawings
|
|
|
97
|
|
3.5. Increased Costs
|
|
|
98
|
|
3.6. New or Successor Letter of Credit Issuer
|
|
|
99
|
|
3.7. Role of Letter of Credit Issuer
|
|
|
100
|
|
3.8. Cash Collateral
|
|
|
101
|
|
3.9. Applicability of ISP and UCP
|
|
|
102
|
|
3.10. Conflict with Issuer Documents
|
|
|
102
|
|
3.11. Letters of Credit Issued for Restricted Subsidiaries
|
|
|
102
|
|
|
|
|
|
|
SECTION 4. Fees; Commitments
|
|
|
102
|
|
4.1. Fees
|
|
|
102
|
|
4.2. Voluntary Reduction of Revolving Credit Commitments
|
|
|
105
|
|
-i-
|
|
|
|
|
|
|
Page
|
|
4.3. Mandatory Termination of Commitments
|
|
|
106
|
|
|
|
|
|
|
SECTION 5. Payments
|
|
|
106
|
|
5.1. Voluntary Prepayments
|
|
|
106
|
|
5.2. Mandatory Prepayments
|
|
|
107
|
|
5.3. Method and Place of Payment
|
|
|
111
|
|
5.4. Net Payments
|
|
|
111
|
|
5.5. Computations of Interest and Fees
|
|
|
116
|
|
5.6. Limit on Rate of Interest
|
|
|
116
|
|
|
|
|
|
|
SECTION 6. Conditions Precedent to Restatement Effective Date
|
|
|
117
|
|
6.1. Restatement Agreement
|
|
|
117
|
|
6.2. Legal Opinions
|
|
|
117
|
|
6.3. [Reserved]
|
|
|
117
|
|
6.4. Fees
|
|
|
117
|
|
6.5. Representations and Warranties and Absence of Default
|
|
|
118
|
|
6.6. Flood Regulation Compliance
|
|
|
118
|
|
|
|
|
|
|
SECTION 7. Conditions Precedent to All Credit Events
|
|
|
118
|
|
7.1. No Default; Representations and Warranties
|
|
|
118
|
|
7.2. Notice of Borrowing; Letter of Credit Request
|
|
|
118
|
|
|
|
|
|
|
SECTION 8. Representations, Warranties and Agreements
|
|
|
119
|
|
8.1. Corporate Status
|
|
|
119
|
|
8.2. Corporate Power and Authority
|
|
|
119
|
|
8.3. No Violation
|
|
|
119
|
|
8.4. Litigation
|
|
|
120
|
|
8.5. Margin Regulations
|
|
|
120
|
|
8.6. Governmental Approvals
|
|
|
120
|
|
8.7. Investment Company Act
|
|
|
120
|
|
8.8. True and Complete Disclosure
|
|
|
120
|
|
8.9. Financial Condition; Financial Statements
|
|
|
120
|
|
8.10. Tax Matters
|
|
|
121
|
|
8.11. Compliance with ERISA
|
|
|
121
|
|
8.12. Subsidiaries
|
|
|
122
|
|
8.13. Intellectual Property
|
|
|
122
|
|
8.14. Environmental Laws
|
|
|
122
|
|
8.15. Properties
|
|
|
122
|
|
8.16. Solvency
|
|
|
123
|
|
|
|
|
|
|
SECTION 9. Affirmative Covenants
|
|
|
123
|
|
9.1. Information Covenants
|
|
|
123
|
|
9.2. Books, Records and Inspections
|
|
|
127
|
|
9.3. Maintenance of Insurance
|
|
|
127
|
|
9.4. Payment of Taxes
|
|
|
127
|
|
9.5. Consolidated Corporate Franchises
|
|
|
128
|
|
9.6. Compliance with Statutes, Regulations, Etc.
|
|
|
128
|
|
-ii-
|
|
|
|
|
|
|
Page
|
|
9.7. ERISA
|
|
|
128
|
|
9.8. Maintenance of Properties
|
|
|
129
|
|
9.9. Transactions with Affiliates
|
|
|
129
|
|
9.10. End of Fiscal Years; Fiscal Quarters
|
|
|
130
|
|
9.11. Additional Guarantors and Grantors
|
|
|
130
|
|
9.12. Pledge of Additional Stock and Evidence of Indebtedness
|
|
|
130
|
|
9.13. Use of Proceeds
|
|
|
131
|
|
9.14. Further Assurances
|
|
|
131
|
|
|
|
|
|
|
SECTION 10. Negative Covenants
|
|
|
133
|
|
10.1. Limitation on Indebtedness
|
|
|
134
|
|
10.2. Limitation on Liens
|
|
|
141
|
|
10.3. Limitation on Fundamental Changes
|
|
|
145
|
|
10.4. Limitation on Sale of Assets
|
|
|
148
|
|
10.5. Limitation on Investments
|
|
|
151
|
|
10.6. Limitation on Dividends
|
|
|
154
|
|
10.7. Limitations on Sale Leasebacks
|
|
|
156
|
|
10.8. Consolidated Total Debt to Consolidated EBITDA Ratio
|
|
|
156
|
|
10.9. Changes in Business
|
|
|
156
|
|
10.10. 1993 Indenture Restricted Subsidiaries
|
|
|
156
|
|
10.11. No Impairment of Mortgages on Principal Properties
|
|
|
156
|
|
|
|
|
|
|
SECTION 11. Events of Default
|
|
|
157
|
|
11.1. Payments
|
|
|
157
|
|
11.2. Representations, Etc.
|
|
|
157
|
|
11.3. Covenants
|
|
|
157
|
|
11.4. Default Under Other Agreements
|
|
|
157
|
|
11.5. Bankruptcy, Etc.
|
|
|
157
|
|
11.6. ERISA
|
|
|
158
|
|
11.7. Guarantee
|
|
|
158
|
|
11.8. Pledge Agreement
|
|
|
159
|
|
11.9. Security Agreement
|
|
|
159
|
|
11.10. Mortgages
|
|
|
159
|
|
11.11. Judgments
|
|
|
159
|
|
11.12. Change of Control
|
|
|
159
|
|
|
|
|
|
|
SECTION 12. Investors Right to Cure
|
|
|
161
|
|
|
|
|
|
|
SECTION 13. The Agents
|
|
|
161
|
|
13.1. Appointment
|
|
|
161
|
|
13.2. Delegation of Duties
|
|
|
162
|
|
13.3. Exculpatory Provisions
|
|
|
162
|
|
13.4. Reliance by Agents
|
|
|
163
|
|
13.5. Notice of Default
|
|
|
163
|
|
13.6. Non-Reliance on Administrative Agent, Collateral Agent and Other Lenders
|
|
|
163
|
|
-iii-
|
|
|
|
|
|
|
Page
|
|
13.7. Indemnification
|
|
|
164
|
|
13.8. Administrative Agent in its Individual Capacity
|
|
|
164
|
|
13.9. Successor Agents
|
|
|
165
|
|
13.10. Withholding Tax
|
|
|
165
|
|
|
|
|
|
|
SECTION 14. Miscellaneous
|
|
|
166
|
|
14.1. Amendments and Waivers
|
|
|
166
|
|
14.2. Notices
|
|
|
169
|
|
14.3. No Waiver; Cumulative Remedies
|
|
|
169
|
|
14.4. Survival of Representations and Warranties
|
|
|
170
|
|
14.5. Payment of Expenses
|
|
|
170
|
|
14.6. Successors and Assigns; Participations and Assignments
|
|
|
171
|
|
14.7. Replacements of Lenders under Certain Circumstances
|
|
|
175
|
|
14.8. Adjustments; Set-off
|
|
|
175
|
|
14.9. Counterparts
|
|
|
176
|
|
14.10. Severability
|
|
|
176
|
|
14.11. Integration
|
|
|
176
|
|
14.12. GOVERNING LAW
|
|
|
176
|
|
14.13. Submission to Jurisdiction; Waivers
|
|
|
177
|
|
14.14. Acknowledgments
|
|
|
178
|
|
14.15. WAIVERS OF JURY TRIAL
|
|
|
178
|
|
14.16. Confidentiality
|
|
|
179
|
|
14.17. Direct Website Communications
|
|
|
179
|
|
14.18. USA PATRIOT Act
|
|
|
181
|
|
14.19. Judgment Currency
|
|
|
181
|
|
14.20. UK Know-Your-Customer Requirements
|
|
|
181
|
|
SCHEDULES
|
|
|
Schedule 9.14(e)
|
|
Post-Closing Actions
|
EXHIBITS
|
|
|
Exhibit A
|
|
Form of Letter of Credit Request
|
Exhibit B
|
|
Form of Assignment and Acceptance
|
Exhibit C
|
|
Form of Joinder Agreement
|
-iv-
CREDIT
AGREEMENT, dated as of November 17, 2006 and amended and restated as of May 4, 2011,
among HCA Inc., a Delaware corporation (
HCA
or the
Parent Borrower
), HCA UK CAPITAL LIMITED, a
limited liability company (company no. 04779021) formed under the laws of England and Wales (the
European Subsidiary Borrower
and together with the Parent Borrower, the
Borrowers
and each a
Borrower
), the lending institutions from time to time parties hereto (each a
Lender
and,
collectively, the
Lenders
) and BANK OF AMERICA, N.A., as Administrative Agent, Swingline Lender
and Letter of Credit Issuer (such terms and each other capitalized term used but not defined in
this preamble having the meaning provided in
Section 1
).
WHEREAS, the Borrowers, the Administrative Agent, Swingline Lender, Letter of Credit Issuer
and Lenders are party to that certain Credit Agreement, dated as of November 17, 2006 (as amended
and supplemented prior to the Restatement Effective Date, the
Original Credit Agreement
);
WHEREAS, the parties wish to amend and restate the Original Credit Agreement in its entirety
as set forth below;
NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained
herein, the parties hereto hereby agree as follows:
SECTION 1.
Definitions
1.1.
Defined Terms
.
(a) As used herein, the following terms shall have the meanings specified in this
Section 1.1
unless the context otherwise requires (it being understood that defined terms
in this Agreement shall include in the singular number the plural and in the plural the singular):
ABL Entity
shall mean a direct Restricted Subsidiary of a 1993 Indenture Restricted
Subsidiary, substantially all of the business of which consists of financing the acquisition or
disposition of accounts receivable and related assets.
ABL Facility
shall mean the Asset-Based Revolving Credit Agreement, dated as of November 17,
2006, by and among the Parent Borrower, the subsidiary borrowers party thereto, the lenders party
thereto in their capacities as lenders there-under, and Bank of America, as administrative agent and
collateral agent thereunder, including any guarantees, collateral documents and account control
agreements, instruments and agreements executed in connection therewith, and any amendments,
supplements, modifications, extensions, renewals, restatements, refundings or refinancings thereof
and any indentures or credit facilities or commercial paper facilities with banks or other
institutional lenders or investors that replace, refund or refinance any part of the loans, notes,
other credit facilities or commitments thereunder, including any such replacement, refunding or
refinancing facility or indenture that increases the amount borrowable thereunder or alters the
maturity thereof.
ABL Documents
shall mean the ABL Facility, any guarantees issued thereunder and the
collateral and security documents (and intercreditor agreements) entered into in connection
therewith.
1
ABR
shall mean for any day a fluctuating rate per annum equal to the higher of (a) the
Federal Funds Effective Rate
plus
1/2 of 1% and (b) the rate of interest in effect for such
day as publicly announced from time to time by the Administrative Agent as its prime rate. The
prime rate is a rate set by the Administrative Agent based upon various factors including the
Administrative Agents 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 the ABR due to a change in such rate announced by the Administrative
Agent or in the Federal Funds Effective Rate shall take effect at the opening of business on the
day specified in the public announcement of such change or on the effective date of such change in
the Federal Funds Effective Rate, respectively.
ABR Loan
shall mean each Loan bearing interest at the rate provided in
Section
2.8(a)
and, in any event, shall (i) include all Swingline Loans and (ii) exclude all Loans
denominated in Alternative Currencies.
Acquired EBITDA
shall mean, with respect to (i) any Acquired Entity or Business to the
extent the aggregate consideration paid in connection with such acquisition was at least
$75,000,000 or (ii) any Converted Restricted Subsidiary (any of the foregoing, a
Pro Forma
Entity
) for any period, the amount for such period of Consolidated EBITDA of such Pro Forma Entity
(determined using such definitions as if references to the Parent Borrower and its Subsidiaries
therein were to such Pro Forma Entity and its Subsidiaries), all as determined on a consolidated
basis for such Pro Forma Entity in a manner not inconsistent with GAAP.
Acquired Entity or Business
shall have the meaning provided in the definition of the term
Consolidated EBITDA.
Acquisition Agreement
shall mean the Agreement and Plan of Merger, dated as of July 24,
2006, by and among HCA, Hercules Holdings and Merger Sub.
Additional General Intercreditor Agreement
shall mean each of (i) the Additional General
Intercreditor Agreement, dated as of April 22, 2009, by and among the Collateral Agent, The Bank of
New York Mellon, in its capacity as junior lien collateral agent and in its capacity as trustee for
the second lien notes issued on November 17, 2006 and The Bank of New York Mellon Trust Company,
N.A., in its capacity as trustee for the second lien notes issued on February 19, 2009, (ii) the
Additional General Intercreditor Agreement, dated as of August 11, 2009, by and among Bank of
America, in its capacity as Collateral Agent, The Bank of New York Mellon, in its capacity as
junior lien collateral agent and in its capacity as trustee for the second lien notes issued on
November 17, 2006, and The Bank of New York Mellon Trust Company, N.A., in its capacity as trustee
for the second lien notes issued on February 19, 2009, (iii) the Additional General Intercreditor
Agreement, dated as of March 10, 2010, by and among the Collateral Agent, the Bank of New York
Mellon, in its capacity as junior lien collateral agent and in its capacity as trustee for the
second lien notes issued on November 17, 2006 and (iv) any additional general intercreditor
agreement entered into by the Collateral Agent following the Restatement Effective Date with the
collateral agent or trustee for any Indebtedness secured on a
pari passu
basis with the Existing
Senior Second Lien Notes which is substantially similar to the intercreditor agreements referred to
in
clauses (i)
and
(ii)
above with such changes thereto as may be reasonably agreed
to by the Collateral Agent.
2
Additional Receivables Intercreditor Agreement
shall mean (i) the Additional Receivables
Intercreditor Agreement, dated as of April 22, 2009, by and between the Receivables Collateral
Agent and Bank of America, as the Collateral Agent, (ii) the Additional Receivables Intercreditor
Agreement, dated as of August 11, 2009, by and between the Receivables Collateral Agent and Bank of
America, as the Collateral Agent, (iii) the Additional Receivables Intercreditor Agreement, dated
as of March 10, 2010, by and between the Receivables Collateral Agent and the Collateral Agent and
(iv) any additional receivables intercreditor agreement entered into by the Collateral Agent
following the Restatement Effective Date with the Receivables Collateral Agent in connection with
the issuance of Future Secured Debt constituting First Lien Obligations which intercreditor
agreement is substantially similar to the intercreditor agreements referred to in
clauses
(i)
and
(ii)
above with such changes thereto as may be reasonably agreed to by the
Collateral Agent.
Adjusted Total Revolving Credit Commitment
shall mean at any time the Total Revolving Credit
Commitment less the aggregate Revolving Credit Commitments of all Defaulting Lenders.
Adjusted Total Term Loan Commitment
shall mean at any time the Total Term Loan Commitment
less the New Term Loan Commitments of all Defaulting Lenders.
Administrative Agent
shall mean Bank of America, as the administrative agent for the Lenders
under this Agreement and the other Credit Documents, or any successor administrative agent pursuant
to
Section 13
.
Administrative Agents Office
shall mean, with respect to any currency, the Administrative
Agents address and, as appropriate, account as set forth on
Schedule 14.2
of the Original
Credit Agreement with respect to such currency, or such other address or account as the
Administrative Agent may from time to time notify to the Borrowers and the Lenders.
Administrative Questionnaire
shall have the meaning provided in
Section 14.6(b)
.
Affiliate
shall mean, with respect to any Person, any other Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with such Person. A Person
shall be deemed to control a corporation if such Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of such corporation, whether
through the ownership of voting securities, by contract or otherwise.
Agent Parties
shall have the meaning provided in
Section 14.17(c)
.
Agents
shall mean the Administrative Agent, the Collateral Agent, each Co-Syndication Agent,
each Joint Lead Arranger and Bookrunner, each Joint Bookrunner and the Documentation Agent.
Aggregate Multicurrency Exposures
shall have the meaning provided in
Section 5.2(b)
.
3
Aggregate Revolving Credit Outstandings
shall have the meaning provided in
Section
5.2(b)
.
Agreement
shall mean this Amended and Restated Credit Agreement, as the same may be further
amended, supplemented or otherwise modified from time to time.
Alternative Currency
shall mean Euro or Sterling.
Applicable ABR Margin
shall mean at any date, with respect to each ABR Loan that is a
Tranche A-1 Term Loan, Tranche A-2 Term Loan, Tranche B-1 Term Loan, Tranche B-2 Term Loan, Tranche
B-3 Term Loan, Revolving Credit Loan or Swingline Loan, the applicable percentage
per annum
set
forth below based upon the Status in effect on such date:
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Applicable ABR Margin for:
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Revolving Credit
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Revolving Credit
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Loans and
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Loans and
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Swingline Loans
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Swingline Loans
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Tranche A-1
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Tranche A-2
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Tranche B-1
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Tranche B-2
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Tranche B-3
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prior to November
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from and after
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Status
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Term Loans
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Term Loans
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Term Loans
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Term Loans
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Term Loans
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17, 2012
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November 17, 2012
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Level I Status
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1.25
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%
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1.50
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%
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1.25
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%
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2.25
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%
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2.25
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%
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1.50
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%
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1.75
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%
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Level II Status
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1.00
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%
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1.50
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%
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1.25
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%
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2.25
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%
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2.25
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%
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1.25
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%
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1.50
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%
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Level III Status
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0.75
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%
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1.50
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%
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1.25
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%
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2.25
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%
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2.25
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%
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1.00
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%
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1.00
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%
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Level IV Status
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0.50
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%
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1.50
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%
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1.25
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%
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2.25
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%
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2.25
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%
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0.75
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%
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0.75
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%
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Level V Status
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0.25
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%
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1.50
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%
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1.25
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%
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2.25
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%
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2.25
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%
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0.50
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N/A
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Applicable Amount
shall mean, at any time (the
Reference Time
), an amount equal to
(a) the sum, without duplication, of:
(i) an amount equal to the greater of (x) zero and (y) 50% of Cumulative Consolidated
Net Income for the period from October 1, 2006 until the last day of the then most recent
fiscal quarter for which Section 9.1 Financials have been delivered;
provided
that,
for the purposes of
Section 10.6(c)(iii)
only, the amount in this
clause (i)
shall only be available if the Consolidated Total Debt to Consolidated EBITDA Ratio for the
most recently ended Test Period for which Section 9.1 Financials have been delivered is less
than 6.00:1.00, determined on a Pro Forma Basis after giving effect to any dividend or
prepayment, repurchase or redemption actually made pursuant to
Section 10.6(c)(iii)
;
and
(ii) the amount of any capital contributions (other than (A) the Equity Investments, (B)
any Cure Amount, (C) any amount added back in the definition of Consolidated EBITDA pursuant
to
clause (a)(ix)
thereof, (D) any contributions in respect of Disqualified Equity
Interests, (E) any amount applied to redeem Stock or Stock Equivalents of the Parent
Borrower pursuant to
Section 10.6(a)
and (F) any amount received by the Parent
Borrower in satisfaction of the requirements of the first sentence of
Section
10.7(e)
of the Original Credit Agreement) made in cash to, or any proceeds of an equity
issuance received by, the Parent Borrower from and including the Business Day immediately
following the Closing Date through and including the Reference Time, including proceeds from
the issuance of Stock or Stock Equivalents of any direct or indirect parent of the Parent
Borrower,
4
minus
(b) the sum, without duplication, of:
(i) the aggregate amount of Investments made pursuant to
Section 10.5(g)(ii)(y)
or
10.5(i)(ii)(y)
following the Closing Date and prior to the Reference Time;
(ii) the aggregate amount of dividends pursuant to
Section 10.6(c)(iii)
following the Closing Date and prior to the Reference Time; and
(iii) the aggregate amount of prepayments, repurchases and redemptions of Junior
Indebtedness pursuant to
Section 10.7(a)(i)(z)
of the Original Credit Agreement
following the Closing Date and prior to the Reference Time.
Applicable Date
shall mean (i) with respect to any fiscal quarter commencing on January 1 of
any year, the last Business Day of April of such year, (ii) with respect to any fiscal quarter
commencing on April 1 of any year, the last Business Day of June of such year, (iii) with respect
to any fiscal quarter commencing on July 1 of any year, the last Business Day of September of such
year and (iv) with respect to any fiscal quarter commencing on October 1 of any year, the last
Business Day of December of such year.
Applicable LIBOR Margin
shall mean, at any date, with respect to each LIBOR Loan that is a
Tranche A-1 Term Loan, Tranche A-2 Term Loan, Tranche B-1 Term Loan, Tranche B-2 Term Loan, Tranche
B-3 Term Loan, European-1 Tranche Term Loan or Revolving Credit Loan, the applicable percentage
per
annum
set forth below based upon the Status in effect on such date:
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Applicable LIBOR Margin for:
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Tranche
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Tranche
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Tranche
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Tranche
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Tranche
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Revolving Credit
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A-1
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A-2
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B-1
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B-2
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European-1
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B-3
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Revolving Credit
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Loans from and
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Term
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Term
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Term
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Term
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Tranche Term
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Term
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Loans prior to
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after November 17,
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Status
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Loans
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Loans
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Loans
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Loans
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Loans
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Loans
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November 17, 2012
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2012
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Level I Status
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2.25
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%
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2.50
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%
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2.25
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%
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3.25
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%
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2.25
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%
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3.25
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%
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2.50
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%
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2.75
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%
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Level II Status
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2.00
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%
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2.50
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%
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2.25
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%
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3.25
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%
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2.00
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%
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3.25
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%
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2.25
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%
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2.50
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%
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Level III Status
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1.75
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%
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2.50
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%
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2.25
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%
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3.25
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%
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2.00
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%
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3.25
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%
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2.00
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%
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2.00
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%
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Level IV Status
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1.50
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%
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2.50
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%
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2.25
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%
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3.25
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%
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2.00
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%
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3.25
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%
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1.75
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%
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1.75
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%
|
Level V Status
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1.25
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%
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2.50
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%
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2.25
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%
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3.25
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%
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2.00
|
%
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3.25
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%
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1.50
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%
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N/A
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Applicable Quarter
shall have the meaning provided in
Section 2.8(d)
.
Approved Fund
shall mean any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.
Asset Sale Prepayment Event
shall mean any Disposition of any business units, assets or
other property of the Parent Borrower or any of the Restricted Subsidiaries not in the ordinary
course of business (including any Disposition of any Stock or Stock Equivalents of any Subsidiary
of the Parent Borrower owned by the Parent Borrower or a Restricted Subsidiary
5
and any issuance of
Stock or Stock Equivalents by any Restricted Subsidiary). Notwithstanding the foregoing, the term
Asset Sale Prepayment Event shall not include any transaction permitted by
Section 10.4
(other than transactions permitted by
Section 10.4(b)
).
Assignment and Acceptance
shall mean an assignment and acceptance substantially in the form
of
Exhibit B
, or such other form as may be approved by the Administrative Agent.
Authorized Officer
shall mean the President, the Chief Financial Officer, the Treasurer, the
Vice President-Finance or any other senior officer of the Parent Borrower (or, if expressly used
with reference to the European Subsidiary Borrower, of the European Subsidiary Borrower (and
including any substantially equivalent officer)) designated as such in writing to the
Administrative Agent by the applicable Borrower.
Auto-Extension Letter of Credit
shall have the meaning provided in
Section 3.2(d)
.
Auto-Reinstatement Letter of Credit
shall have the meaning provided in
Section
3.2(d)
.
Available Commitment
shall mean an amount equal to the excess, if any, of (a) the amount of
the Total Revolving Credit Commitment over (b) the sum of (i) the aggregate Dollar Equivalent
principal amount of all Revolving Credit Loans (but not Swingline Loans) then outstanding and (ii)
the aggregate Letters of Credit Outstanding at such time.
Bain
shall mean Bain Capital Partners LLC.
Bank of America
shall mean Bank of America, N.A. and its successors.
Bankruptcy Code
shall have the meaning provided in
Section 11.5
.
Board
shall mean the Board of Governors of the Federal Reserve System of the United States
(or any successor).
Borrower Materials
shall have the meaning provided in
Section 14.17(b)
.
Borrowers
shall have the meaning provided in the preamble to this Agreement.
Borrowing
shall mean and include (a) the incurrence of Swingline Loans from the Swingline
Lender on a given date, (b) each Borrowing of Term Loans outstanding under the Original Credit
Agreement on the Restatement Effective Date, the Borrowings resulting from the conversion to
Tranche A-2 Term Loans and Tranche B-3 Term Loans on the Restatement Effective Date (and each
Borrowing resulting from conversions on a given date after the Restatement Effective Date) having,
in the case of LIBOR Term Loans, the same Interest Period (
provided
that ABR Loans incurred
pursuant to
Section 2.10(b)
shall be considered part of any related Borrowing of LIBOR Term
Loans) and (c) the incurrence of one Type of Revolving Credit Loan on a given date (or resulting
from conversions on a given date) having, in the case of LIBOR Revolving Credit Loans, the same
Interest Period (
provided
that ABR Loans incurred pursuant to
6
Section 2.10(b)
shall
be considered part of any related Borrowing of LIBOR Revolving Credit Loans).
Business Day
shall mean any day excluding Saturday, Sunday and any day that in the
jurisdiction where the Administrative Agents Office for Loans in Dollars is located shall be a
legal holiday or a day on which banking institutions are authorized by law or other governmental
actions to close;
provided
,
however
,
(a) if such day relates to any interest rate settings as to a LIBOR Loan
denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in
respect of any such LIBOR Loan, or any other dealings in Dollars to be carried out pursuant
to this Agreement in respect of any such LIBOR Loan, such day shall be a day on which
dealings in deposits in Dollars are conducted by and between banks in the London interbank
eurodollar market;
(b) if such day relates to any interest rate settings as to a LIBOR Loan
denominated in Euro, any fundings, disbursements, settlements and payments in Euro in
respect of any such LIBOR Loan, or any other dealings in Euro to be carried out pursuant to
this Agreement in respect of any such LIBOR Loan, such day shall be a TARGET Day;
(c) if such day relates to any interest rate settings as to a LIBOR Loan
denominated in Sterling, such day shall be a day on which dealings in deposits in Sterling
are conducted by and between banks in the London interbank market; and
(d) if such day relates to any fundings, disbursements, settlements and payments in
Sterling in respect of a LIBOR Loan denominated in Sterling, or any other dealings in
Sterling to be carried out pursuant to this Agreement in respect of any such LIBOR Loan
(other than any interest rate settings), such day shall be a day on which banks are open for
foreign exchange business in London.
Capital Expenditures
shall mean, for any period, the aggregate of all expenditures (whether
paid in cash or accrued as liabilities and including in all events all amounts expended or
capitalized under Capital Leases) by the Parent Borrower and the Restricted Subsidiaries during
such period that, in conformity with GAAP, are or are required to be included as capital
expenditures on a consolidated statement of cash flows of the Parent Borrower and its Subsidiaries.
Capital Lease
shall mean, as applied to any Person, any lease of any property (whether real,
personal or mixed) by that Person as lessee that, in conformity with GAAP, is, or is required to
be, accounted for as a capital lease on the balance sheet of that Person.
Capitalized Lease Obligations
shall mean, as applied to any Person, all obligations under
Capital Leases of such Person or any of its Subsidiaries, in each case taken at the amount thereof
accounted for as liabilities in accordance with GAAP.
Cash Collateralize
shall have the meaning provided in
Section 3.8(d)
.
7
Cash Management Agreement
shall mean any agreement or arrangement to provide cash management
services, including treasury, depository, overdraft, credit or debit card, purchase card,
electronic funds transfer and other cash management arrangements.
Cash Management Bank
shall mean any Person that, either (x) at the time it enters into a
Cash Management Agreement or (y) on the Closing Date or the Restatement Effective Date, is a Lender
or an Affiliate of a Lender, in its capacity as a party to such Cash Management Agreement.
Casualty Event
shall mean, with respect to any property of any Person, any loss of or damage
to, or any condemnation or other taking by a Governmental Authority of, such property for which
such Person or any of its Restricted Subsidiaries receives insurance proceeds, or proceeds of a
condemnation award or other compensation.
Change in Law
shall mean (a) the adoption of any law, treaty, order, policy, rule or
regulation after the Closing Date, (b) any change in any law, treaty, order, policy, rule or
regulation or in the interpretation or application thereof by any Governmental Authority after the
Closing Date or (c) any guideline, request or directive issued or made after the Closing Date by
any central bank or other governmental or quasi-governmental authority (whether or not having the
force of law) that requires compliance by a Lender.
Change of Control
shall mean and be deemed to have occurred if (a) any person or group
(within the meaning of Rules 13d-3 and 13d-5 of the Securities Exchange Act of 1934, as amended),
other than the combination of the Sponsors, the Frist Shareholders and the Management Investors,
shall have acquired beneficial ownership of 35% or more on a fully diluted basis of the voting
power of the Voting Stock of the Parent Borrower and the combination of the Sponsors, the Frist
Shareholders and the Management Investors shall own, directly or indirectly, less than such person
or group on a fully diluted basis of the Voting Stock of the Parent Borrower; or (b) Continuing
Directors shall not constitute at least a majority of the board of directors of the Parent
Borrower; or (c) at any time, a Change of Control (as defined in the Initial Senior Second Lien
Notes Indenture or any agreement governing Subordinated Indebtedness) shall have occurred or (d)
the Parent Borrower shall cease to directly own 100% of the Stock and Stock Equivalents of
Healthtrust;
provided
that no Change of Control shall be deemed to have occurred under this
clause (d)
solely as a result of the preferred Stock of Healthtrust that is owned by
ColumbiaSDH and Epic Properties continuing to be owned by such entities so long as ColumbiaSDH
and Epic Properties are direct or indirect wholly-owned Subsidiaries of Healthtrust.
Class
, when used in reference to any Loan or Borrowing, shall refer to whether such Loan, or
the Loans comprising such Borrowing, are Revolving Credit Loans, New Revolving Loans, Tranche A-1
Term Loans, Tranche A-2 Term Loans, Tranche B-1 Term Loans, Tranche B-2 Term Loans, Tranche B-3
Term Loans, European-1 Tranche Term Loans, New Term Loans (of the same Series), Extended Term Loans
(of the same Extension Series), Replacement Revolving Credit Loans (made pursuant to the same
Replacement Revolving Credit Series of Replacement Revolving Credit Commitments) or Swingline Loans
and, when used in reference to any Commitment, refers to whether such Commitment is a Revolving
Credit Commitment, a Replacement Revolving Credit Commitment
8
(of the same Replacement Revolving
Credit Series) or a New Term Loan Commitment (of the same Series).
Closing Date
shall mean November 17, 2006.
Code
shall mean the Internal Revenue Code of 1986, as amended from time to time, and the
regulations promulgated and rulings issued thereunder. Section references to the Code are to the
Code, as in effect at the Closing Date, and any subsequent provisions of the Code, amendatory
thereof, supplemental thereto or substituted therefor.
Collateral
shall mean the U.S. Collateral and the European Collateral, collectively.
Collateral Agent
shall mean, with respect to references to such term in this Agreement and
the European Security Documents, Bank of America, in its capacity as collateral agent for the
Lenders under this Agreement in accordance with the terms of this Agreement, and with respect to
references to such term in the U.S. Security Documents, Bank of America, in its capacity as
collateral agent for the First Lien Secured Parties under the U.S. Security Documents in accordance
with the terms of the U.S. Security Documents, or any successor collateral agent pursuant to any
such document.
ColumbiaSDH
shall mean ColumbiaSDH Holdings, Inc., a Delaware corporation.
Commitment Fee
shall have the meaning provided in
Section 4.1(a)
.
Commitment Fee Payment
shall have the meaning provided in
Section 4.1(a)
.
Commitment Fee Gross-Up Date
shall have the meaning provided in
Section 4.1(a)
.
Commitment Fee Rate
shall mean, with respect to the Available Commitment on any day, the
rate
per annum
set forth below opposite the Status in effect on such day:
|
|
|
|
|
|
|
|
|
|
|
Commitment Fee Rate
|
|
Commitment Fee Rate from
|
|
|
prior to November 17,
|
|
and after November 17,
|
Status
|
|
2012
|
|
2012
|
Level I Status
|
|
|
0.50
|
%
|
|
|
0.50
|
%
|
Level II Status
|
|
|
0.50
|
%
|
|
|
0.375
|
%
|
Level III Status
|
|
|
0.375
|
%
|
|
|
0.375
|
%
|
Level IV Status
|
|
|
0.375
|
%
|
|
|
0.375
|
%
|
Level V Status
|
|
|
0.375
|
%
|
|
|
N/A
|
|
Commitments
shall mean, with respect to each Lender (to the extent applicable), such
Lenders Revolving Credit Commitment, Replacement Revolving Credit Commitment and New Term Loan
Commitment.
Communications
shall have the meaning provided in
Section 14.17(a)
.
9
Confidential Healthcare Information
shall have the meaning provided in
Section 9.2
.
Confidential Information
shall have the meaning provided in
Section 14.16
.
Confidential Information Memorandum
shall mean the Confidential Information Memorandum of
the Parent Borrower dated August 2006, the Confidential Information Memorandum of the Parent
Borrower dated September 2006, in each case delivered to the Lenders in connection with this
Agreement, and the Confidential Information Memorandum of the Parent Borrower dated October 2006;
provided
that in the event and to the extent of any inconsistencies between or among any of the
foregoing, Confidential Information Memorandum shall refer to the most recent thereof.
Consolidated EBITDA
shall mean, for any period, Consolidated Net Income for such period,
plus
:
(a) without duplication and to the extent deducted (and not added back) in arriving
at such Consolidated Net Income, the sum of the following amounts for the Parent Borrower
and the Restricted Subsidiaries for such period:
(i) total interest expense and to the extent not reflected in such total
interest expense, any losses on hedging obligations or other derivative instruments
entered into for the purpose of hedging interest rate risk, net of interest income
(other than interest income of HCI) and gains on such hedging obligations, and costs
of surety bonds in connection with financing activities,
(ii) provision for taxes based on income, profits or capital, including federal,
foreign state, franchise, excise and similar taxes and foreign withholding taxes
paid or accrued during such period, including any penalties and interest relating to
any tax examinations,
(iii) depreciation and amortization,
(iv) Non-Cash Charges,
(v) extraordinary losses, unusual or non-recurring charges, severance costs,
relocation costs, integration and facilities opening costs, signing costs, retention
or completion bonuses, transition costs and costs from curtailments or modifications
to pension and post-retirement employee benefit plans,
(vi) restructuring charges or reserves (including restructuring costs related to
acquisitions and to closure and/or consolidation of facilities),
(vii) the amount of any minority interest expense consisting of Subsidiary
income attributable to minority equity interests of third parties in any
non-wholly-owned Subsidiary deducted (and not added back) in such period to
Consolidated Net Income,
10
(viii) the amount of management, monitoring, consulting and advisory fees,
including fees paid in connection with the termination of agreements to provide such
services, and related expenses paid to the Sponsors,
(ix) any costs or expenses pursuant to any management equity plan or stock
option plan or any other management or employee benefit plan or agreement or any
stock subscription or shareholder agreement, to the extent that such costs or
expenses are funded with cash proceeds contributed to the capital of the Parent
Borrower or net cash proceeds of an issuance of Stock or Stock Equivalents (other
than Disqualified Equity Interests) of the Parent Borrower (
provided
such
capital contributions are not included in the Cure Amount and have not been applied
to increase the Applicable Amount pursuant to
clause (ii)
of the
definition thereof),
(x) the amount of net cost savings projected by the Parent Borrower in good
faith to be realized as a result of specified actions taken by the Parent Borrower
and its Restricted Subsidiaries prior to such date of determination (calculated on a
Pro Forma Basis as though such cost savings 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 are reasonably
identifiable and factually supportable, (B) no cost savings shall be added pursuant
to this
clause (x)
to the extent duplicative of any expenses or charges
relating to such cost savings that are included in
clause (vi)
above with
respect to such period and (C) the aggregate amount of cost savings added pursuant
to this
clause (x)
shall not exceed $200,000,000 for any period consisting
of four consecutive quarters,
(xi) to the extent covered by insurance and actually reimbursed, or, so long as
the Parent Borrower has made a determination that there exists reasonable evidence
that such amount will in fact be reimbursed by the insurer and only to the extent
that such amount is (A) not denied by the applicable carrier in writing within 180
days and (B) in fact reimbursed within 365 days of the date of such evidence (with a
deduction for any amount so added back to the extent not so reimbursed within such
365 days), expenses with respect to liability or casualty events or business
interruption, and
(xii) the amount of losses on Dispositions of receivables and related assets in
connection with any Permitted Receivables Financing,
less
(b) without duplication and to the extent included in arriving at such Consolidated
Net Income, the sum of the following amounts for such period:
(i) extraordinary gains and unusual or non-recurring gains,
(ii) non-cash gains (excluding any non-cash gain to the extent it represents the
reversal of an accrual or reserve for a potential cash item that reduced
Consolidated Net Income or Consolidated EBITDA in any prior period),
11
(iii) gains on asset sales (other than asset sales in the ordinary course of
business), and
(iv) any net after-tax income from the early extinguishment of Indebtedness or
hedging obligations or other derivative instruments,
in each case, as determined on a consolidated basis for the Parent Borrower and the Restricted
Subsidiaries in accordance with GAAP;
provided
that
(i) to the extent included in Consolidated Net Income, there shall be excluded in
determining Consolidated EBITDA currency translation gains and losses related to currency
remeasurements of Indebtedness or intercompany balances (including the net loss or gain
resulting from Hedge Agreements for currency exchange risk),
(ii) to the extent included in Consolidated Net Income, there shall be excluded in
determining Consolidated EBITDA for any period any adjustments resulting from the
application of Statement of Financial Accounting Standards No. 133,
(iii) there shall be included in determining Consolidated EBITDA for any period, without
duplication, (A) the Acquired EBITDA of any Person, property, business or asset acquired by
the Parent Borrower or any Restricted Subsidiary during such period (but not the Acquired
EBITDA of any related Person, property, business or assets to the extent not so acquired) to
the extent not subsequently sold, transferred, abandoned or otherwise disposed by the Parent
Borrower or such Restricted Subsidiary (each such Person, property, business or asset
acquired and not subsequently so disposed of, an
Acquired Entity or Business
) and the
Acquired EBITDA of any Unrestricted Subsidiary that is converted into a Restricted
Subsidiary during such period (each, a
Converted Restricted Subsidiary
), based on the
actual Acquired EBITDA of such Acquired Entity or Business or Converted Restricted
Subsidiary for such period (including the portion thereof occurring prior to such
acquisition or conversion) and (B) other than for purposes of determining the Applicable
Amount, the Applicable ABR Margin, the Applicable LIBOR Margin and the Commitment Fee Rate,
an adjustment in respect of each Acquired Entity or Business equal to the amount of the Pro
Forma Adjustment with respect to such Acquired Entity or Business for such period (including
the portion thereof occurring prior to such acquisition) as specified in a Pro Forma
Adjustment Certificate and delivered to the Lenders and the Administrative Agent, and
(iv) to the extent included in Consolidated Net Income, there shall be excluded in
determining Consolidated EBITDA for any period the Disposed EBITDA of any Person, property,
business or asset (other than an Unrestricted Subsidiary) sold, transferred, abandoned or
otherwise disposed of, closed or classified as discontinued operations by the Parent
Borrower or any Restricted Subsidiary during such period (each such Person, property,
business or asset so sold or disposed of, a
Sold Entity or Business
), and the Disposed
EBITDA of any Restricted Subsidiary that is converted into an Unrestricted Subsidiary during
such period (each, a
Converted Unrestricted Subsidiary
) based on the actual Disposed
EBITDA of such Sold Entity or Business or Converted Restricted
12
Subsidiary for such period
(including the portion thereof occurring prior to such sale, transfer or disposition or
conversion).
Consolidated EBITDA to Consolidated Interest Expense Ratio
shall mean, as of any date of
determination, the ratio of (a) Consolidated EBITDA for the relevant Test Period to (b)
Consolidated Interest Expense for such Test Period.
Consolidated First Lien Debt
shall mean Consolidated Total Debt secured by a Lien on any
assets of the Parent Borrower or any of its Restricted Subsidiaries (other than (i) a Lien ranking
junior to the Lien securing the Obligations on a basis at least as substantially favorable to the
Lenders as the basis on which the Liens securing the Existing Senior Second Lien Notes ranks junior
to the Lien securing the Obligations and (ii) Liens on assets not constituting Collateral permitted
pursuant to
Section 10.2
).
Consolidated First Lien Debt to Consolidated EBITDA Ratio
shall mean, as of any date of
determination, the ratio of (a) Consolidated First Lien Debt as of such date to (b) Consolidated
EBITDA for the Test Period then last ended for which Section 9.1 Financials have been delivered.
Consolidated Interest Expense
shall mean, for any period, the sum of (i) the cash interest
expense including that attributable to Capital Leases in accordance with GAAP (
provided
that any payment of cash interest pursuant to
Section 10.6(e)
on the required date of
determination of Consolidated Interest Expense for any purpose under this Agreement shall be added
to Consolidated Interest Expense for the period for which such determination is being made), net of
cash interest income (other than interest income of HCI), of Holdings, the Parent Borrower and the
Restricted Subsidiaries on a consolidated basis in accordance with GAAP with respect to all
outstanding Indebtedness of Holdings, the Parent Borrower and the Restricted Subsidiaries,
including all commissions, discounts and other fees and charges owed with respect to letters of
credit and bankers acceptance financing and net costs under Hedge Agreements (other than currency
swap agreements, currency future or option contracts and other similar agreements) and (ii) any
cash payments made during such period in respect of obligations referred to in
clause (b)
below relating to Funded Debt that were amortized or accrued in a previous period (other than any
such obligations resulting from the discounting of Indebtedness in connection with the application
of purchase accounting in connection with the Transaction or any Permitted Acquisition), but
excluding, however, (a) amortization of deferred financing costs and any other amounts of non-cash
interest, (b) the accretion or accrual of discounted liabilities during such period, and (c) all
non-recurring cash interest expense consisting of liquidated damages for failure to timely comply
with registration rights obligations and financing fees, all as calculated on a consolidated basis
in accordance with GAAP and excluding, for the avoidance of doubt, any interest in respect of items
excluded from Indebtedness in the proviso to the definition thereof,
provided
that (a)
except as provided in
clause (b)
below, there shall be excluded from Consolidated Interest
Expense for any period the cash interest expense (or cash interest income) of all Unrestricted
Subsidiaries for such period to the extent otherwise included in Consolidated Interest Expense, (b)
there shall be included in determining Consolidated Interest Expense for any period the cash
interest expense (or income) of any Acquired Entity or Business acquired during such period to the
extent the aggregate consideration paid in connection with the applicable acquisition was at least
$75,000,000 and of any Converted Restricted Subsidiary converted during
13
such period, in each case
based on the cash interest expense (or income) of such Acquired Entity or Business or Converted
Restricted Subsidiary for such period (including the portion thereof occurring prior to such
acquisition or conversion) assuming any Indebtedness incurred or prepaid
in connection with any such acquisition or conversion had been incurred or prepaid on the
first day of such period, and (c) there shall be excluded from determining Consolidated Interest
Expense for any period the cash interest expense (or income) of any Sold Entity or Business
disposed of during such period to the extent the aggregate consideration received in connection
with the applicable Disposition was at least $75,000,000, based on the cash interest expense (or
income) relating to any Indebtedness relieved, retired or repaid in connection with any such
disposition of such Sold Entity or Business for such period (including the portion thereof
occurring prior to such disposal) assuming such debt relieved, retired or repaid in connection with
such disposition had been relieved, retired or repaid on the first day of such period.
Consolidated Net Income
shall mean, for any period, the net income (loss) of the Parent
Borrower and the Restricted Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP, excluding, without duplication,
(a) extraordinary items for such period,
(b) the cumulative effect of a change in accounting principles during such period
to the extent included in Consolidated Net Income,
(c) in the case of any period that includes a period ending prior to or during the
fiscal quarter ending September 30, 2007, Transaction Expenses,
(d) any fees and expenses incurred during such period, or any amortization thereof
for such period, in connection with any acquisition, investment, recapitalization, asset
disposition, issuance or repayment of debt, issuance of equity securities, refinancing
transaction or amendment or other modification of any debt instrument (in each case,
including any such transaction consummated prior to the Closing Date and any such
transaction undertaken but not completed) and any charges or non-recurring merger costs
incurred during such period as a result of any such transaction,
(e) any income (loss) for such period attributable to the early extinguishment of
Indebtedness or to hedging obligations or other derivative instruments,
(f) accruals and reserves required to be established or adjusted as a result of the
Transactions in accordance with GAAP or changes as a result of adoption of or modification
of accounting policies, in each case, within twelve months after the Closing Date, and
(g) the income (loss) for such period of any Unrestricted Subsidiary, except to the
extent distributed to the Parent Borrower or any Restricted Subsidiary.
There shall be excluded from Consolidated Net Income for any period the purchase accounting effects
of adjustments to inventory, property, equipment and intangible assets and deferred revenue in
component amounts required or permitted by GAAP and related authoritative pronouncements (including
the effects of such adjustments pushed down to the Parent Borrower and the
14
Restricted Subsidiaries), as a result of the Transactions, any consummated acquisition whether consummated
before or after the Closing Date, or the amortization or write-off of any amounts thereof.
Consolidated Persons
shall mean, at any time, each of the Persons listed on
Schedule
1.1(h)
to the Original Credit Agreement so long as (i) such Persons financial results are
consolidated with the financial results of the Parent Borrower in accordance with GAAP at such time
and (ii) no Sponsor or Frist Shareholder (or any controlling affiliate of any Sponsor or of any
Frist Shareholder) holds any Stock or Stock Equivalents of such Person at such time.
Consolidated Total Assets
shall mean, as of any date of determination, the amount that
would, in conformity with GAAP, be set forth opposite the caption total assets (or any like
caption) on a consolidated balance sheet of the Parent Borrower and the Restricted Subsidiaries at
such date.
Consolidated Total Debt
shall mean, as of any date of determination, (a) all Indebtedness of
the types described in
clause (a)
,
clause (c)
(but, in the case of
clause
(c)
, only to the extent of any unreimbursed drawings under any letter of credit) and
clause
(e)
of the definition thereof actually owing by the Parent Borrower and the Restricted
Subsidiaries on such date to the extent appearing on the balance sheet of the Parent Borrower
determined on a consolidated basis in accordance with GAAP (
provided
that the amount of any
Capitalized Lease Obligations or any such Indebtedness issued at a discount to its face value shall
be determined in accordance with GAAP)
minus
(b) the aggregate cash and cash equivalents
included in the cash and cash equivalents accounts listed on the balance sheet of the Parent
Borrower and the Restricted Subsidiaries as at such date determined on a consolidated basis in
accordance with GAAP excluding (x) all cash of HCI and (y) any cash subject to a Lien other than
nonconsensual Liens permitted by
Section 10.2
and Liens permitted by
Section 10.2
(m)
,
(n)
and
(o)
.
Consolidated Total Debt to Consolidated EBITDA Ratio
shall mean, as of any date of
determination, the ratio of (a) Consolidated Total Debt as of the last day of the relevant Test
Period to (b) Consolidated EBITDA for such Test Period.
Consolidated Working Capital
shall mean, at any date, the excess of (a) the sum of all
amounts (other than cash and Permitted Investments) that would, in conformity with GAAP, be set
forth opposite the caption total current assets (or any like caption) on a consolidated balance
sheet of the Parent Borrower and the Restricted Subsidiaries at such date over (b) the sum of all
amounts that would, in conformity with GAAP, be set forth opposite the caption total current
liabilities (or any like caption) on a consolidated balance sheet of the Parent Borrower and the
Restricted Subsidiaries on such date, including deferred revenue but excluding, without
duplication, (i) the current portion of any Funded Debt and (ii) all Indebtedness consisting of
Loans and Letter of Credit Exposure to the extent otherwise included therein.
Continuing Director
shall mean, at any date, an individual (a) who is a member of the board
of directors of the Parent Borrower on the Restatement Effective Date, (b) who, as of the date of
determination, has been a member of such board of directors for at least the twelve preceding
months, (c) who has been nominated to be a member of such board of directors, directly or
indirectly, by a Sponsor or Persons nominated by a Sponsor or (d) who has been
15
nominated to be a
member of such board of directors by a majority of the other Continuing Directors then in office.
Contract Consideration
shall have the meaning provided in the definition of Excess Cash
Flow.
Contractual Requirement
shall have the meaning provided in
Section 8.3
.
Converted Restricted Subsidiary
shall have the meaning provided in the definition of the
term Consolidated EBITDA.
Converted Unrestricted Subsidiary
shall have the meaning provided in the definition of the
term Consolidated EBITDA.
Co-Syndication Agents
shall mean JPMorgan Chase Bank, N.A. and Citicorp North America, Inc.,
together with their respective affiliates, as co-syndication agents for the Lenders under this
Agreement and the other Credit Documents.
Credit Documents
shall mean this Agreement, the Restatement Agreement, the Guarantees, the
Security Documents, each Letter of Credit and any promissory notes issued by a Borrower hereunder.
Credit Event
shall mean and include the making (but not the conversion or continuation) of a
Loan and the issuance of a Letter of Credit.
Credit Facilities
shall mean, collectively, each category of Commitments and each extension
of credit hereunder.
Credit Facility
shall mean a category of Commitments and extensions of credit thereunder.
Credit Party
shall mean each of the Borrowers, the Guarantors and each other Subsidiary of
the Parent Borrower that is a party to a Credit Document.
Cumulative Consolidated Net Income
shall mean, for any period, Consolidated Net Income for
such period, taken as a single accounting period. Cumulative Consolidated Net Income may be a
positive or negative amount.
Cure Amount
shall have the meaning provided in
Section 12
.
Cure Right
shall have the meaning provided in
Section 12
.
Debt Incurrence Prepayment Event
shall mean any issuance or incurrence by the Parent
Borrower or any of the Restricted Subsidiaries of (x) any Indebtedness (excluding any Indebtedness
permitted to be issued or incurred under
Section 10.1
other than
Section
10.1(o)(i)
), (y) any Refinancing Term Loans and (z) any Refinancing Future Secured Debt.
16
Default
shall mean any event, act or condition that with notice or lapse of time, or both,
would constitute an Event of Default.
Default Rate
shall have the meaning set forth in
Section 2.8(c)
.
Defaulting Lender
shall mean any Lender with respect to which a Lender Default is in effect.
Deferred Net Cash Proceeds
shall have the meaning provided such term in the definition of
Net Cash Proceeds.
Deferred Net Cash Proceeds Payment Date
shall have the meaning provided such term in the
definition of Net Cash Proceeds.
Designated Non-Cash Consideration
shall mean the fair market value of non-cash consideration
received by the Parent Borrower or a Restricted Subsidiary in connection with a Disposition
pursuant to
Section 10.4(b)
or
Section 10.4(c)
that is designated as Designated
Non-Cash Consideration pursuant to a certificate of an Authorized Officer of the Parent Borrower,
setting forth the basis of such valuation (which amount will be reduced by the fair market value of
the portion of the non-cash consideration converted to cash within 180 days following the
consummation of the applicable Disposition).
Designated Non-Guarantor Subsidiary
shall mean any Restricted Subsidiary of the Parent
Borrower that is designated as a Designated Non-Guarantor Subsidiary by the Parent Borrower in a
written notice to the Administrative Agent,
provided
that (a) each of (i) an amount equal
to the Parent Borrowers direct or indirect equity ownership percentage of the net worth of such
Restricted Subsidiary immediately prior to such designation (such net worth to be calculated
without regard to any guarantee provided by such designated Restricted Subsidiary) and (ii) without
duplication of any amount included in the preceding
clause (i)
, the aggregate principal
amount of any Indebtedness owed by such designated Restricted Subsidiary to the Parent Borrower or
any other Credit Party immediately prior to such designation, shall be deemed to be an Investment
by the Parent Borrower, on the date of such designation, in a Restricted Subsidiary that is not a
U.S. Credit Party, all calculated, except as set forth in the parenthetical to
clause (i)
above, on a consolidated basis in accordance with GAAP and (b) no Default or Event of Default would
result from such designation after giving effect thereto. The Parent Borrower may, by written
notice to the Administrative Agent, re-designate any Designated Non-Guarantor Subsidiary as a
Guarantor, and thereafter, such Subsidiary shall no longer constitute a Designated Non-Guarantor
Subsidiary, but only if (x) no Default or Event of Default would result from such re-designation
and (y) such Subsidiary becomes a party to the applicable Guarantee and Security Documents in order
to become a Guarantor and grantor or pledgor, as applicable, thereunder.
Designated Obligations
shall mean all obligations of the Borrowers with respect to (a)
principal of and interest on the Loans, (b) Unpaid Drawings and interest thereon and (c) accrued
and unpaid fees under the Credit Documents.
Disposed EBITDA
shall mean, with respect to (i) any Sold Entity or Business to the extent
the aggregate consideration received in connection with such Disposition was at
17
least $75,000,000
or (ii) any Converted Unrestricted Subsidiary for any period, the amount for such period of
Consolidated EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary
(determined as if references to the Parent Borrower and the Restricted Subsidiaries in the
definition of Consolidated EBITDA were references to such Sold Entity or Business or Converted Unrestricted Subsidiary and its respective Subsidiaries), all as determined on a
consolidated basis for such Sold Entity or Business or Converted Unrestricted Subsidiary, as the
case may be.
Disposition
shall have the meaning provided in
Section 10.4(b)
.
Disqualified Equity Interests
shall mean any Stock or Stock Equivalent which, by its terms
(or by the terms of any security or other Stock or Stock Equivalent 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 Equity Interests), pursuant to a sinking
fund obligation or otherwise (except (i) 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 or (ii) pursuant to any put option with
respect to any Stock or Stock Equivalent of a Subsidiary granted in favor of any Facility
Syndication Partner in connection with syndications of ambulatory surgery centers, outpatient
diagnostic or imaging centers, hospitals or other healthcare businesses operated or conducted by
such Subsidiary (collectively,
Syndications
)), (b) is redeemable at the option of the holder
thereof (other than solely for Qualified Equity Interests), in whole or in part, (c) provides for
scheduled payments of dividends in cash (other than, in the case of Stock or Stock Equivalents of a
Subsidiary issued to a Facility Syndication Partner in connection with a Syndication or held by a
Restricted Subsidiary, periodic distributions of available cash (determined in good faith by the
Parent Borrower) to the holders of such class of Stock or Stock Equivalents on a
pro rata
basis),
or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Stock or Stock
Equivalent that would constitute Disqualified Equity Interests, in each case, prior to the date
that is 180 days after the Final Maturity Date (determined as of the date such Stock or Stock
Equivalent was issued).
Dividends
or
dividends
shall have the meaning provided in
Section 10.6
.
Documentation Agent
shall mean Merrill Lynch Capital Corporation.
Dollar Equivalent
shall mean, at any time, (a) with respect to any amount denominated in
Dollars, such amount, and (b) with respect to any amount denominated in any currency other than
Dollars, the equivalent amount thereof in Dollars as determined by the Administrative Agent or the
Letter of Credit Issuer, as the case may be, on the basis of the Spot Rate (determined in respect
of the most recent Revaluation Date) for the purchase of Dollars with such currency.
Dollars
and
$
shall mean dollars in lawful currency of the United States of America.
18
Domestic Subsidiary
shall mean each Subsidiary of the Parent Borrower that is organized
under the laws of the United States, any state or territory thereof, or the District of Columbia.
Drawing
shall have the meaning provided in
Section 3.4(b)
.
EMU
shall mean the economic and monetary union in accordance with the Treaty of Rome 1957,
as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam Treaty
of 1998.
EMU Legislation
shall mean the legislative measures of the European Council for the
introduction of, changeover to or operation of a single or unified European currency.
Environmental Claims
shall mean any and all actions, suits, orders, decrees, demands, demand
letters, claims, liens, notices of noncompliance, violation or potential responsibility or
investigation (other than internal reports prepared by the Parent Borrower or any of the
Subsidiaries (a) in the ordinary course of such Persons business or (b) as required in connection
with a financing transaction or an acquisition or disposition of real estate) or proceedings
relating in any way to any Environmental Law or any permit issued, or any approval given, under any
such Environmental Law (hereinafter,
Claims
), including, without limitation, (i) any and all
Claims by governmental or regulatory authorities for enforcement, cleanup, removal, response,
remedial or other actions or damages pursuant to any applicable Environmental Law and (ii) any and
all Claims by any third party seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief relating to the presence, release or threatened release of
Hazardous Materials or arising from alleged injury or threat of injury to health or safety (to the
extent relating to human exposure to Hazardous Materials), or the environment including, without
limitation, ambient air, surface water, groundwater, land surface and subsurface strata and natural
resources such as wetlands.
Environmental Law
shall mean any applicable Federal, state, foreign or local statute, law,
rule, regulation, ordinance, code and rule of common law now or hereafter in effect and in each
case as amended, and any binding judicial or administrative interpretation thereof, including any
binding judicial or administrative order, consent decree or judgment, relating to the protection of
environment, including, without limitation, ambient air, surface water, groundwater, land surface
and subsurface strata and natural resources such as wetlands, or human health or safety (to the
extent relating to human exposure to Hazardous Materials), or Hazardous Materials.
Epic Properties
shall mean Epic Properties, Inc., a Texas corporation.
Equity Investments
shall have the meaning provided in the Original Credit Agreement.
ERISA
shall mean the Employee Retirement Income Security Act of 1974, as amended from time
to time. Section references to ERISA are to ERISA as in effect at the Closing Date and any
subsequent provisions of ERISA amendatory thereof, supplemental thereto or substituted therefor.
19
ERISA Affiliate
shall mean each person (as defined in Section 3(9) of ERISA) that together
with the Parent Borrower would be deemed to be a single employer within the meaning of Section
414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the
Code, is treated as a single employer under Section 414 of the Code.
Euro
and
shall mean the lawful currency of the Participating Member States introduced in
accordance with the EMU Legislation.
European Collateral
shall mean all property pledged or purported to be pledged pursuant to
the terms of the European Security Documents.
European Credit Facility
shall mean the Credit Facility consisting of the European-1 Tranche
Term Loans and any Extended Term Loans in respect of European-1 Tranche Term Loans.
European Credit Party
shall mean the European Subsidiary Borrower and the European
Guarantors.
European Guarantee
shall mean (a) the Guarantee, dated as of November 17, 2006, made by each
European Guarantor in favor of the Administrative Agent for the benefit of the European Secured
Parties and (b) any other guarantee of the European Obligations made by a European Subsidiary that
is a Restricted Subsidiary in form and substance reasonably acceptable to the Administrative Agent,
in each case as the same may be amended, supplemented or otherwise modified from time to time.
European Guarantors
shall mean (a) each European Subsidiary that was a party to the European
Guarantee on the Closing Date and (b) each European Subsidiary that became or becomes a party to
the European Guarantee after the Closing Date pursuant to
Section 9.11
or otherwise.
European Obligations
shall mean all advances to, and debts, liabilities, obligations,
covenants and duties of, any Credit Party arising under any Credit Document or otherwise, in each
case with respect to any European-1 Tranche Term Loan or any Extended Term Loans in respect of
European-1 Tranche Term Loans or under any Secured Cash Management Agreement or Secured Hedge
Agreement, and in each case, entered into with the European Subsidiary Borrower or any other
European Subsidiary, 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 Credit Party or any Affiliate thereof of
any proceeding under any bankruptcy or insolvency law naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
European Security Agreement
shall mean the Security Agreement, dated as of November 17,
2006, by and among the European Credit Parties and the Collateral Agent.
European Security Documents
shall mean (a) the European Security Agreement and (b) each
other security agreement or other instrument or document executed and delivered
20
by any European
Credit Party pursuant to
Section 9.11
or
Section 9.14
or pursuant to any agreement
referred to in
clause (a)
above, in each case, to secure the European Obligations.
European Secured Parties
shall mean the Administrative Agent and the Collateral Agent, in
each case, with respect to matters relating to the European-1 Tranche Term Loans or the European
Security Documents, each European-1 Tranche Term Loan Lender, each
Hedge Bank that is party to any Secured Hedge Agreement with any European Subsidiary Borrower
or any other European Subsidiary, each Cash Management Bank that is party to a Secured Cash
Management Agreement with any European Subsidiary Borrower or any other European Subsidiary and
each sub-agent pursuant to
Section 13
appointed by the Administrative Agent or the
Collateral Agent with respect to the European Credit Facility or any European Security Document.
European Subsidiary
shall mean each Subsidiary of the Parent Borrower that is incorporated
or formed under the laws of England and Wales.
European Subsidiary Borrower
shall have the meaning provided in the preamble to this
Agreement.
European-1 Tranche Repayment Amount
shall have the meaning provided in
Section
2.5(c)(ii)
.
European-1 Tranche Repayment Date
shall have the meaning provided in
Section
2.5(c)(ii)
.
European-1 Tranche Term Loan Maturity Date
shall mean November 17, 2013 or, if such date is
not a Business Day, the first Business Day thereafter.
European-1 Tranche Term Loan
shall mean each European-1 Tranche Term Loan outstanding under
the Original Credit Agreement.
European-1 Tranche Term Loan Facility
shall mean the Credit Facility consisting of the
European-1 Tranche Term Loans.
European-1 Tranche Term Loan Lender
shall mean each Lender with a European-1 Tranche Term
Loan.
Event of Default
shall have the meaning provided in
Section 11
.
Excess Amount
shall have the meaning provided in
Section 2.14(a)
.
Excess Cash Flow
shall mean, for any period, an amount equal to the excess of
(a) the sum, without duplication, of
(i) Consolidated Net Income for such period,
21
(ii) an amount equal to the amount of all non-cash charges to the extent
deducted in arriving at such Consolidated Net Income,
(iii) an amount equal to the provision for taxes based on income, profits or
capital of the Parent Borrower and the Restricted Subsidiaries, including federal,
foreign, state, franchise, excise and similar taxes and foreign withholding taxes
paid or accrued during such period to the extent deducted in arriving at such
Consolidated Net Income,
(iv) decreases in Consolidated Working Capital for such period (other than any
such decreases arising from acquisitions by the Parent Borrower and the Restricted
Subsidiaries completed during such period),
(v) an amount equal to the aggregate net non-cash loss on the sale, lease,
transfer or other disposition of assets by the Parent Borrower and the Restricted
Subsidiaries during such period (other than sales, leases, transfers or other
dispositions in the ordinary course of business) to the extent deducted in arriving
at such Consolidated Net Income, and
(vi) cash receipts in respect of Swap Contracts during such fiscal year to the
extent not otherwise included in Consolidated Net Income;
over
(b) the sum, without duplication, of
(i) an amount equal to the amount of all non-cash credits included in arriving
at such Consolidated Net Income and cash charges described in
clauses (a)
through
(f)
of the definition of Consolidated Net Income (other than cash
charges in respect of Transaction Expenses paid on or about the Closing Date to the
extent financed with the proceeds of Indebtedness incurred on the Closing Date or
the Equity Investments) and included in arriving at such Consolidated Net Income,
(ii) without duplication of amounts deducted pursuant to
clause (xi)
below in prior years, the amount of Capital Expenditures made in cash during such
period, except to the extent that such Capital Expenditures were financed with the
proceeds of Indebtedness or a sale of Stock or Stock Equivalents of the Parent
Borrower or the Restricted Subsidiaries,
(iii) the aggregate amount of all principal payments of Indebtedness of the
Parent Borrower and the Restricted Subsidiaries (including (A) the principal
component of payments in respect of Capitalized Lease Obligations, (B) the amount of
any repayment of Term Loans pursuant to
Section 2.5
and (C) the amount of a
mandatory prepayment of Term Loans pursuant to
Section 5.2(a)
to the extent
required due to a Disposition that resulted in an increase to Consolidated Net
Income and not in excess of the amount of such increase but excluding (x) all other
prepayments of Term Loans and (y) all prepayments of Revolving Credit Loans,
Swingline Loans and loans under the ABL Facility) made during such period (other
than in respect of any revolving credit facility to the extent
22
there is not an
equivalent permanent reduction in commitments thereunder), except to the extent
financed with the proceeds of other Indebtedness of the Parent Borrower or the
Restricted Subsidiaries,
(iv) an amount equal to the aggregate net non-cash gain on the sale, lease,
transfer or other disposition of assets by the Parent Borrower and the Restricted
Subsidiaries during such period (other than sales in the ordinary course of
business) to the extent included in arriving at such Consolidated Net Income,
(v) increases in Consolidated Working Capital for such period (other than any
such increases arising from acquisitions by the Parent Borrower and the Restricted
Subsidiaries completed during such period),
(vi) payments by the Parent Borrower and the Restricted Subsidiaries during such
period in respect of long-term liabilities of the Parent Borrower and the Restricted
Subsidiaries other than Indebtedness,
(vii) without duplication of amounts deducted pursuant to
clause (xi)
below in prior fiscal years, the aggregate amount of cash consideration paid by the
Parent Borrower and the Restricted Subsidiaries (on a consolidated basis) in
connection with Investments (including acquisitions) made during such period
pursuant to
Section 10.5
(other than
Section 10.5(b)
) to the extent
that such Investments were financed with internally generated cash flow of the
Parent Borrower and the Restricted Subsidiaries,
(viii) the amount of dividends paid during such period (on a consolidated basis)
by the Parent Borrower and the Restricted Subsidiaries to the extent such dividends
were financed with internally generated cash flow of the Parent Borrower and the
Restricted Subsidiaries,
(ix) the aggregate amount of expenditures actually made by the Parent Borrower
and the Restricted Subsidiaries in cash during such period (including expenditures
for the payment of financing fees) to the extent that such expenditures are not
expensed during such period,
(x) the aggregate amount of any premium, make-whole or penalty payments actually
paid in cash by the Parent Borrower and the Restricted Subsidiaries during such
period that are required to be made in connection with any prepayment of
Indebtedness,
(xi) without duplication of amounts deducted from Excess Cash Flow in prior
periods, the aggregate consideration required to be paid in cash by the Parent
Borrower or any of the Restricted Subsidiaries pursuant to binding contracts (the
Contract Consideration
) entered into prior to or during such period relating to
Permitted Acquisitions or Capital Expenditures to be consummated or made during the
period of four consecutive fiscal quarters of the Parent Borrower following the end
of such period,
provided
that to the extent the aggregate amount of
internally generated cash actually utilized to finance such Permitted Acquisitions
23
or Capital Expenditures during such period of four consecutive fiscal quarters is
less than the Contract Consideration, the amount of such shortfall shall be added to
the calculation of Excess Cash Flow at the end of such period of four consecutive
fiscal quarters,
(xii) the amount of taxes (including penalties and interest) paid in cash in
such period, and
(xiii) cash expenditures in respect of Swap Contracts during such fiscal year to
the extent not deducted in arriving at such Consolidated Net Income.
Excluded European Subsidiary
shall mean (a) each European Subsidiary listed on
Schedule
1.1(d)(ii)
to the Original Credit Agreement and each future European Subsidiary, in each case,
for so long as any such Subsidiary does not (on a consolidated basis with its Restricted
Subsidiaries), have property, plant and equipment with a book value in excess of $5,000,000 or a
contribution to Consolidated EBITDA for any four fiscal quarter period that includes any date on or
after the Closing Date in excess of $5,000,000, (b) for purposes of
Section 9.11
, any
European Subsidiary that is not a wholly-owned Subsidiary on any date such Subsidiary would
otherwise be required to become a European Guarantor pursuant to the requirements of
Section
9.11
(for so long as such Subsidiary remains a non-wholly-owned Restricted Subsidiary), (c) any
European Subsidiary that is prohibited by any applicable Contractual Requirement or Requirement of
Law from guaranteeing or granting Liens to secure the European Obligations at the time such
Subsidiary becomes a Restricted Subsidiary (for so long as such restriction or any replacement or
renewal thereof is in effect), (d) any other European Subsidiary with respect to which, (i) in the
reasonable judgment of the Administrative Agent (confirmed in writing by notice to the Parent
Borrower), the cost or other consequences (including any adverse tax consequences) of providing a
Guarantee of the European Obligations shall be excessive in view of the benefits to be obtained by
the Lenders therefrom or (ii) the provision of a Guarantee of the European Obligations would result
in adverse tax consequences to the Parent Borrower or its Subsidiaries as reasonably determined by
the Parent Borrower, (e) each Unrestricted Subsidiary, (f) any other European Subsidiary acquired
pursuant to a Permitted Acquisition financed with secured Indebtedness incurred pursuant to
Section 10.1(j)
or
Section 10.1(k)
and permitted by the proviso to
subclause
(y)
of such Sections and each Restricted Subsidiary thereof that guarantees such Indebtedness
to the extent and so long as the financing documentation relating to such Permitted Acquisition to
which such Restricted Subsidiary is a party prohibits such Restricted Subsidiary from guaranteeing,
or granting a Lien on any of its assets to secure, the Obligations and (g) any Designated
Non-Guarantor Subsidiary.
Excluded Stock and Stock Equivalents
shall mean (i) any Stock or Stock Equivalents subject
to a Lien permitted by
Section 10.2(h)
or
10.2(i)
, (ii) any Stock or Stock
Equivalents with respect to which, in the reasonable judgment of the Collateral Agent (confirmed in
writing by notice to the Parent Borrower), the cost or other consequences (including any adverse
tax consequences) of doing so shall be excessive in view of the benefits to be obtained by the
Lenders therefrom, (iii) solely in the case of any pledge of Stock and Stock Equivalents of any
Foreign Subsidiary to secure the U.S. Obligations, any Stock or Stock Equivalents of any class of
such Foreign Subsidiary in excess of 65% of the outstanding Stock or Stock Equivalents of such
class (such percentage to be adjusted upon any Change in Law as may be required to
24
avoid adverse
U.S. federal income tax consequences to the Parent Borrower or any Subsidiary), (iv) any Stock or
Stock Equivalents to the extent the pledge thereof would violate any applicable Requirement of Law,
(v) in the case of Stock or Stock Equivalents of any Subsidiary that is not wholly-owned by the
Parent Borrower and its Subsidiaries at the time such Subsidiary becomes a Subsidiary, any Stock or
Stock Equivalents of such Subsidiary to the extent (A) that a pledge
thereof to secure the Obligations is prohibited by any applicable Contractual Requirement
(other than customary non-assignment provisions which are ineffective under the Uniform Commercial
Code or other applicable law), (B) any Contractual Requirement prohibits such a pledge without the
consent of any other party;
provided
that this
clause (B)
shall not apply if (I)
such other party is a Credit Party or wholly-owned Subsidiary or (II) such consent has been
obtained (it being understood that the foregoing shall not be deemed to obligate the Parent
Borrower or any Subsidiary to obtain any such consent)) and for so long as such Contractual
Requirement or replacement or renewal thereof is in effect, or (C) a pledge thereof to secure the
Obligations would give any other party (other than a Credit Party or wholly-owned Subsidiary) to
any contract, agreement, instrument or indenture governing such Stock or Stock Equivalents the
right to terminate its obligations thereunder (other than customary non-assignment provisions which
are ineffective under the Uniform Commercial Code or other applicable law) and (vi) any Stock or
Stock Equivalents of any Subsidiary to the extent that (A) the pledge of such Stock or Stock
Equivalents would result in adverse tax consequences to the Parent Borrower or any Subsidiary as
reasonably determined by the Parent Borrower and (B) such Stock or Stock Equivalents have been
identified in writing to the Collateral Agent by an Authorized Officer of the Parent Borrower.
Excluded Subsidiary
shall mean (a) each Domestic Subsidiary listed on
Schedule
1.1(d)(i)
to the Original Credit Agreement and each subsequently formed or acquired Domestic
Subsidiary, in each case, for so long as any such Subsidiary does not (on a consolidated basis with
its Restricted Subsidiaries), have property, plant and equipment with a book value in excess of
$5,000,000 or a contribution to Consolidated EBITDA for any four fiscal quarter period that
includes any date on or after the Closing Date in excess of $5,000,000 (
provided
that no
Domestic Subsidiary listed on
Schedule 1.1(d)(i)
to the Original Credit Agreement that is
identified on such Schedule as a Subsidiary with respect to which the Parent Borrower intends to
conduct a Syndication shall cease to be an Excluded Subsidiary pursuant to this
clause (a)
for so long as the Parent Borrower intends to conduct such Syndication), (b) each Domestic
Subsidiary that is not a wholly-owned Subsidiary on any date such Subsidiary would otherwise be
required to become a U.S. Guarantor pursuant to the requirements of
Section 9.11
(for so
long as such Subsidiary remains a non-wholly-owned Restricted Subsidiary), (c) each Domestic
Subsidiary that is prohibited by any applicable Contractual Requirement or Requirement of Law from
guaranteeing or granting Liens to secure the Obligations at the time such Subsidiary becomes a
Restricted Subsidiary (and for so long as such restriction or any replacement or renewal thereof is
in effect), (d) each Domestic Subsidiary that is a Subsidiary of a Foreign Subsidiary, (e) each
other Domestic Subsidiary acquired pursuant to a Permitted Acquisition financed with secured
Indebtedness incurred pursuant to
Section 10.1(j)
or
Section 10.1(k)
and permitted
by the proviso to
subclause (y)
of such Sections and each Restricted Subsidiary thereof
that guarantees such Indebtedness to the extent and so long as the financing documentation relating
to such Permitted Acquisition to which such Restricted Subsidiary is a party prohibits such
Restricted Subsidiary from guaranteeing, or granting a Lien on any of its assets to secure, the
Obligations, (f) any other Domestic Subsidiary with respect to which, in the reasonable judgment of
the Administrative Agent (confirmed in writing by notice to the Parent Borrower), the cost or other
25
consequences (including any adverse tax consequences) of providing a Guarantee of the Obligations
shall be excessive in view of the benefits to be obtained by the Lenders therefrom, (g) each
Unrestricted Subsidiary, (h) each 1993 Indenture Restricted Subsidiary for so long as the 1993
Indenture is in effect and such Subsidiary is a Restricted Subsidiary under the 1993 Indenture,
(i) each ABL Entity, (j) any Designated Non-Guarantor Subsidiary and (k) HCA Health Services
of New Hampshire, Inc., a New Hampshire corporation.
Excluded Taxes
shall mean, with respect to any Agent or any Lender, (a) (i) net income taxes
and franchise and excise taxes (imposed in lieu of net income taxes) imposed on such Agent or
Lender and, to the extent not duplicative, any Taxes imposed on such Agent or Lender where that Tax
is imposed upon or calculated by reference to the net income received or receivable (but not any
sum deemed to be received or receivable) by such Agent or Lender and (ii) any Taxes imposed on any
Agent or any Lender as a result of any current or former connection between such Agent or Lender
and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision
or taxing authority thereof or therein (other than any such connection arising from such Agent or
Lender having executed, delivered or performed its obligations or received a payment under, or
having been a party to or having enforced, this Agreement or any other Credit Document), (b) in the
case of a Non-U.S. Lender (i) any U.S. federal withholding tax that is imposed on amounts payable
to such Non-U.S. Lender under the law in effect at the time such Non-U.S. Lender becomes a party to
this Agreement (or, in the case of a Non-U.S. Participant, on the date such Non-U.S. Participant
became a Participant hereunder);
provided
that this
subclause (b)(i)
shall not
apply to the extent that (x) the indemnity payments or additional amounts any Lender (or
Participant) would be entitled to receive (without regard to this
subclause (b)(i)
) do not
exceed the indemnity payment or additional amounts that the person making the assignment,
participation or transfer to such Lender (or Participant) would have been entitled to receive in
the absence of such assignment, participation or transfer or (y) any Tax is imposed on a Lender in
connection with an interest or participation in any Loan or other obligation that such Lender was
required to acquire pursuant to
Section 14.8(a)
or that such Lender acquired pursuant to
Section 14.7
(it being understood and agreed, for the avoidance of doubt, that any
withholding tax imposed on a Non-U.S. Lender as a result of a Change in Law occurring after the
time such Non-U.S. Lender became a party to this Agreement (or designates a new lending office)
shall not be an Excluded Tax) or (ii) any Tax to the extent attributable to such Non-U.S. Lenders
failure to comply with
Section 5.4(e)
;
provided
that, for the avoidance of doubt,
any deduction or withholding under section 349 of the Taxes Act (or any successor provision) for or
on account of any Taxes, shall not be an Excluded Tax and (c) any Taxes imposed pursuant to FATCA.
Existing Class
shall have the meaning set forth in
Section 2.14(f)
.
Existing First Lien Notes
shall mean (i) $1,500,000,000 aggregate principal amount of the
Parent Borrowers 8
1
/
2
% Senior Secured Notes due 2019, (ii) $1,250,000,000 aggregate principal amount
of the Parent Borrowers 7⅞% Senior Secured Notes due 2020 and (iii) $1,400,000,000 aggregate
principal amount of the Parent Borrowers 7
1
/
4
% Senior Secured Notes due 2020, in each case,
outstanding on the Restatement Effective Date.
26
Existing Letters of Credit
shall mean all Letters of Credit outstanding under the
Original Credit Agreement on the Restatement Effective Date and shall in any event include
amendments, extensions and renewals thereof.
Existing Senior Second Lien Notes
shall mean the Initial Senior Second Lien Notes and
$310,000,000 aggregate principal amount of the Parent Borrowers 9⅞% Senior Secured Notes due 2017,
in each case, outstanding on the Restatement Effective Date.
Extended Repayment Date
shall have the meaning provided in
Section 2.5(d)
.
Extended Term Loan Repayment Amount
shall have the meaning provided in
Section
2.5(d)
.
Extended Term Loans
shall have the meaning set forth in
Section 2.14(f)
(and for the
avoidance of doubt, as used in this Agreement, shall not include the Tranche A-2 Term Loans,
Tranche B-2 Term Loans or Tranche B-3 Term Loans).
Extending Lender
shall have the meaning set forth in
Section 2.14(f)
.
Extension Amendment
shall have the meaning set forth in
Section 2.14(f)
.
Extension Election
shall have the meaning set forth in
Section 2.14(f)
.
Extension Request
shall have the meaning set forth in
Section 2.14(f)
.
Extension Series
shall mean all Extended Term Loans that are established pursuant to the
same Extension Amendment (or any subsequent Extension Amendment to the extent such Extension
Amendment expressly provides that the Extended Term Loans provided for therein are intended to be a
part of any previously established Extension Series or the Tranche B-3 Term Loans (to the extent
permitted by
Section 2.14(f)
) and that provide for the same interest margins, extension
fees and amortization schedule.
Facility Syndication Partners
shall mean, with respect to any Subsidiary, a Physician or
employee performing services with respect to a facility operated by such Subsidiary or a
not-for-profit entity.
FATCA
shall mean Sections 1471 through 1474 of the Code, any similar amendment thereof or
successor provisions and any current or future regulations or interpretations thereof.
Federal Funds Effective Rate
shall mean, for any day, the weighted average of the
per annum
rates on overnight federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers on such day, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York;
provided
that (a) if such day is not a Business Day, the
Federal Funds Effective Rate for such day shall be such rate on such transactions on the next
preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate
is so published on such next succeeding Business Day, the Federal Funds
27
Effective Rate for such day shall be the average rate charged to the Administrative Agent on
such day on such transactions as determined by the Administrative Agent.
Fees
shall mean all amounts payable pursuant to, or referred to in,
Section 4.1
.
Final Maturity Date
shall mean, on any date of determination, the later of (x) the final
maturity date of any then outstanding Class of Term Loans and (y) the scheduled termination date of
any then outstanding Class of Commitments.
First Lien Intercreditor Agreement
shall mean the First Lien Intercreditor Agreement, dated
as of April 22, 2009 among the Administrative Agent, the Collateral Agent and the representatives
for purposes thereof for any other First Lien Secured Parties, as supplemented to the Restatement
Effective Date and as the same may be further amended, supplemented, restated, modified, or waived
from time to time in accordance with the terms thereof.
First Lien Obligations
shall mean the Obligations and the Future Secured Debt Obligations
(other than any Future Secured Debt Obligations that are secured by a Lien ranking junior to the
Lien securing the Obligations), collectively.
First Lien Secured Parties
shall mean the Secured Parties and the Future Secured Debt
Secured Parties and any representative on their behalf for such purposes, collectively (other than
the holders (and any such representative on their behalf) of any Future Secured Debt Obligations
that are secured by a Lien ranking junior to the Lien securing the Obligations).
Foreign Asset Sale
shall have the meaning provided in
Section 5.2(h)
.
Foreign Plan
shall mean any employee benefit plan, program, policy, arrangement or agreement
maintained or contributed to by the Parent Borrower or any of its Subsidiaries with respect to
employees employed outside the United States.
Foreign Subsidiary
shall mean each Subsidiary of the Parent Borrower that is not a Domestic
Subsidiary.
Frist Shareholders
shall mean (i) Thomas F. Frist, Jr. and any executor, administrator,
guardian, conservator or similar legal representative thereof, (ii) any member of the immediate
family of Thomas F. Frist, Jr., (iii) any person directly or indirectly controlled by one or more
of the immediate family members of Thomas F. Frist, Jr., (iv) any Person acting as agent for any
Person described in
clauses (i)
through
(iii)
hereof and (v) the HCA Foundation so
long as a majority of the members of its board of directors consist of (a) Frist Shareholders, (b)
Continuing Directors, (c) Management Investors and/or (d) any other member of management of the
Parent Borrower.
Fronting Fee
shall have the meaning provided in
Section 4.1(c)
.
Fund
shall mean any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course.
28
Funded Debt
shall mean all indebtedness of the Parent Borrower and the Restricted
Subsidiaries (and, solely for purposes of determining Consolidated Interest Expense, Holdings) for
borrowed money that matures more than one year from the date of its creation or matures within one
year from such date that is renewable or extendable, at the option of the Parent Borrower or any
Restricted Subsidiary (and, solely for purposes of determining Consolidated Interest Expense,
Holdings), to a date more than one year from such date or arises under a revolving credit or
similar agreement that obligates the lender or lenders to extend credit during a period of more
than one year from such date, including all amounts of Funded Debt required to be paid or prepaid
within one year from the date of its creation and, in the case of any Borrower, Indebtedness in
respect of the Loans.
Future Secured Debt
shall mean the Existing First Lien Notes and any senior secured notes or
other secured Indebtedness (which notes or other Indebtedness may either have the same lien
priority as the Obligations or may be secured by a Lien ranking junior to the Lien securing the
Obligations) in each case issued by the Parent Borrower or a U.S. Guarantor (including any such
Indebtedness of a Person that becomes a U.S. Guarantor in connection with a Permitted Acquisition
to the extent the Parent Borrower elects to secure such Indebtedness by a Lien on the assets of the
Parent Borrower and the U.S. Guarantors), so long as (a) after giving effect to the incurrence of
such Future Secured Debt (or the granting of such Liens) the aggregate amount of Scheduled Inside
Payments does not exceed the greater of (I) $3,000,000,000 and (II) 50% of Consolidated EBITDA for
the most recent Test Period for which Section 9.1 Financials have been delivered, (b) the
covenants, events of default, guarantees, collateral and other terms of which (other than interest
rate and redemption premiums), taken as a whole, are not more restrictive to the Parent Borrower
and the Subsidiaries than those in this Agreement;
provided
that a certificate of an
Authorized Officer of the Parent Borrower delivered to the Administrative Agent at least three
Business Days (or such shorter period as the Administrative Agent may reasonably agree) prior to
the incurrence of such Indebtedness, together with a reasonably detailed description of the
material terms and conditions of such Indebtedness or drafts of the documentation relating thereto,
stating that the Parent Borrower has determined in good faith that such terms and conditions
satisfy the foregoing requirement shall be conclusive evidence that such terms and conditions
satisfy the foregoing requirement unless the Administrative Agent notifies the Parent Borrower
within two Business Days after receipt of such certificate that it disagrees with such
determination (including a reasonable description of the basis upon which it disagrees), and (c) of
which no Subsidiary of the Parent Borrower (other than a U.S. Guarantor) is an obligor and which
are not secured by any Collateral other than the U.S. Collateral.
Future Secured Debt Documents
shall mean any document or instrument issued or executed and
delivered with respect to any Future Secured Debt by any Credit Party.
Future Secured Debt Obligations
shall mean all advances to, and debts, liabilities,
obligations, covenants and duties of, any Credit Party arising under any Future Secured Debt
Document, 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 Credit Party or any Affiliate thereof of any
proceeding under any bankruptcy or insolvency law naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
29
Future Secured Debt Secured Parties
shall mean the holders from time to time of the Future
Secured Debt Obligations.
GAAP
shall mean generally accepted accounting principles in the United States of America, as
in effect from time to time;
provided
,
however
, that if there occurs after the
Closing Date any change in GAAP that affects in any respect the calculation of any covenant
contained in
Section 10
, the Lenders and the Parent Borrower shall negotiate in good faith
amendments to the provisions of this Agreement that relate to the calculation of such covenant with
the intent of having the respective positions of the Lenders and the Parent Borrower after such
change in GAAP conform as nearly as possible to their respective positions as of the Closing Date
and, until any such amendments have been agreed upon, the covenants in
Section 10
shall be
calculated as if no such change in GAAP has occurred.
General Intercreditor Agreement
shall mean the Intercreditor Agreement, dated as of November
17, 2006, among the Collateral Agent and the trustee under the Initial Senior Second Lien Notes
Indenture, as the same may be amended, restated, modified or waived from time to time.
Governmental Authority
shall mean any nation, sovereign or government, any state, province,
territory or other political subdivision thereof, and any entity or authority exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining to government,
including a central bank or stock exchange.
Guarantee
shall mean the U.S. Guarantee and/or the European Guarantee, as the context
requires.
Guarantee Obligations
shall mean, as to any Person, any obligation of such Person
guaranteeing or intended to guarantee any Indebtedness of any other Person (the
primary obligor
)
in any manner, whether directly or indirectly, including any obligation of such Person, whether or
not contingent, (a) to purchase any such Indebtedness or any property constituting direct or
indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any
such Indebtedness or (ii) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of any such Indebtedness of
the ability of the primary obligor to make payment of such Indebtedness or (d) otherwise to assure
or hold harmless the owner of such Indebtedness against loss in respect thereof;
provided
,
however
, that the term Guarantee Obligations shall not include endorsements of
instruments for deposit or collection in the ordinary course of business or customary and
reasonable indemnity obligations in effect on the Closing Date or entered into in connection with
any acquisition or disposition of assets permitted under this Agreement (other than such
obligations with respect to Indebtedness). The amount of any Guarantee Obligation shall be deemed
to be an amount equal to the stated or determinable amount of the Indebtedness in respect of which
such Guarantee Obligation is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to perform thereunder)
as determined by such Person in good faith.
Guarantors
shall mean the U.S. Guarantors and the European Guarantors.
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Hazardous Materials
shall mean (a) any petroleum or petroleum products, radioactive
materials, friable asbestos, urea formaldehyde foam insulation, transformers or other equipment
that contain dielectric fluid containing regulated levels of polychlorinated biphenyls, and radon
gas; (b) any chemicals, materials or substances defined as or included in the definition of
hazardous substances, hazardous waste, hazardous materials, extremely hazardous waste,
restricted hazardous waste, toxic substances, toxic pollutants, contaminants, or
pollutants, or words of similar import, under any applicable Environmental Law; and (c) any other
chemical, material or substance, which is prohibited, limited or regulated by any Environmental
Law.
HCA
shall have the meaning provided in the preamble to this Agreement.
HCI
shall mean Health Care Indemnity, Inc., an insurance company formed under the laws of
the State of Colorado.
Healthtrust
shall mean Healthtrust, Inc. The Hospital Company, a Delaware corporation,
and its successors and assigns.
Hedge Agreements
shall mean interest rate swap, cap or collar agreements, interest rate
future or option contracts, currency swap agreements, cross-currency rate swap agreements, currency
future or option contracts, commodity price protection agreements or other commodity price hedging
agreements, and other similar agreements entered into by the Parent Borrower or any Restricted
Subsidiary in the ordinary course of business (and not for speculative purposes) for the principal
purpose of protecting the Parent Borrower or any of the Restricted Subsidiaries against
fluctuations in interest rates, currency exchange rates or commodity prices.
Hedge Bank
shall mean any Person that either (x) at the time it enters into a Secured Hedge
Agreement or (y) on the Closing Date or the Restatement Effective Date, is a Lender or an Affiliate
of a Lender, in its capacity as a party to such Secured Hedge Agreement.
Hercules Holdings
shall mean Hercules Holdings II, LLC, a Delaware limited liability
company.
HIPAA
shall have the meaning provided in
Section 9.2
.
Historical Financial Statements
shall mean the audited consolidated balance sheets of the
Parent Borrower as of December 31, 2004 and December 31, 2005 and the audited consolidated
statements of income, stockholders equity and cash flows of the Parent Borrower for each of the
fiscal years in the three year period ending on December 31, 2005.
Holdings
shall mean HCA Holdings, Inc., a Delaware corporation, and its successors.
Increased Amount Date
shall have the meaning provided in
Section 2.14
.
Indebtedness
of any Person shall mean (a) all indebtedness of such Person for borrowed
money, (b) the deferred purchase price of assets or services that in accordance with GAAP would be
included as a liability on the balance sheet of such Person, (c) the face amount
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of all letters of credit issued for the account of such Person and, without duplication, all
drafts drawn thereunder, (d) all Indebtedness of any other Person secured by any Lien on any
property owned by such Person, whether or not such Indebtedness has been assumed by such Person,
(e) the principal component of all Capitalized Lease Obligations of such Person, (f) all
obligations of such Person under interest rate swap, cap or collar agreements, interest rate future
or option contracts, currency swap agreements, currency future or option contracts, commodity price
protection agreements or other commodity price hedging agreements and other similar agreements, (g)
all obligations of such Person in respect of Disqualified Equity Interests and (h) without
duplication, all Guarantee Obligations of such Person,
provided
that Indebtedness shall not
include (i) trade payables and accrued expenses arising in the ordinary course of business, (ii)
deferred or prepaid revenue, (iii) purchase price holdbacks in respect of a portion of the purchase
price of an asset to satisfy warranty or other unperformed obligations of the respective seller,
(iv) all intercompany Indebtedness having a term not exceeding 364 days (inclusive of any roll over
or extensions of terms) and incurred in the ordinary course of business and (v) Indebtedness
resulting from substantially concurrent interim transfers of creditor positions with respect to
intercompany Indebtedness.
Indemnified Taxes
shall mean all Taxes (including Other Taxes) other than (i) Excluded Taxes
and (ii) any interest, penalties or expenses caused by an Agents or Lenders gross negligence or
willful misconduct.
Initial Senior Second Lien Notes
shall mean $1,000,000,000 aggregate principal amount of the
Parent Borrowers 9⅛% Senior Secured Notes due 2014, $3,200,000,000 aggregate principal amount of
the Parent Borrowers 9
1
/
4
% Senior Secured Notes due 2016 and the Toggle Notes, in each case, issued
under the Initial Senior Second Lien Notes Indenture prior to the Restatement Effective Date.
Initial Senior Second Lien Notes Indenture
shall mean the Indenture dated as November 17,
2006, among the Parent Borrower, the guarantors party thereto and The Bank of New York, as trustee,
pursuant to which the Initial Senior Second Lien Notes are issued, as the same may be amended,
supplemented or otherwise modified from time to time in accordance therewith.
Intercreditor Agreements
shall mean the Receivables Intercreditor Agreement and the General
Intercreditor Agreement.
Interest Gross-Up Date
shall have the meaning provided in
Section 2.8(d)
.
Interest Payment
shall have the meaning provided in
Section 2.8(d)
.
Interest Period
shall mean, with respect to any Term Loan or Revolving Credit Loan, the
interest period applicable thereto, as determined pursuant to
Section 2.9
.
Investment
shall mean, for any Person: (a) the acquisition (whether for cash, property,
services or securities or otherwise) of Stock, Stock Equivalents (or any other capital
contribution), bonds, notes, debentures, partnership or other ownership interests or other
securities of any other Person (including any short sale or any sale of any securities at a time
when such securities are not owned by the Person entering into such sale); (b) the making of any deposit
32
with, or advance, loan or other extension of credit or capital contribution to, any
other Person (including the purchase of property from another Person subject to an understanding or
agreement, contingent or otherwise, to resell such property to such Person), but excluding any such
advance, loan or extension of credit having a term not exceeding 364 days (inclusive of any
rollover or extension of terms) arising in the ordinary course of business; or; (c) the entering
into of any guarantee of, or other contingent obligation with respect to, Indebtedness; or (d) the
purchase or other acquisition (in one transaction or a series of transactions) of all or
substantially all of the property and assets or business of another Person or assets constituting a
business unit, line of business or division of such Person;
provided
that, in the event
that any Investment is made by the Parent Borrower or any Restricted Subsidiary in any Person
through substantially concurrent interim transfers of any amount through one or more other
Restricted Subsidiaries, then such other substantially concurrent interim transfers shall be
disregarded for purposes of
Section 10.5
.
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Investors
shall mean the Sponsors, the Management Investors, the Frist Shareholders and each
other investor providing a portion of the Equity Investments on the Closing Date.
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ISP
shall mean, with respect to any Letter of Credit, the International Standby Practices
1998 published by the Institute of International Banking Law & Practice (or such later version
thereof as may be in effect at the time of issuance).
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Issuer Documents
shall mean with respect to any Letter of Credit, the Letter of Credit
Request, and any other document, agreement and instrument entered into by the Letter of Credit
Issuer and the Parent Borrower (or any Restricted Subsidiary) or in favor of the Letter of Credit
Issuer and relating to such Letter of Credit.
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Joinder Agreement
shall mean an agreement substantially in the form of
Exhibit C
,
with such changes thereto as are consistent with
Section 2.14
and are agreed to by the
Parent Borrower and the Administrative Agent.
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Joint Bookrunners
shall mean Deutsche Bank Securities Inc. and Wachovia Capital Markets,
LLC.
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Joint Lead Arrangers and Bookrunners
shall mean Merrill Lynch, Pierce, Fenner & Smith
Incorporated, J.P. Morgan Securities LLC and Citigroup Global Markets Inc.
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Junior Indebtedness
shall have the meaning provided in Section 10.7(a) of the Original
Credit Agreement.
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JV Distribution Amount
shall mean, at any time, the aggregate amount of cash distributed to
the Parent Borrower or any Restricted Subsidiary by any joint venture that is not a Subsidiary
(regardless of the form of legal entity) since the Closing Date and prior to such time (without
duplication of any amount treated as a reduction in the outstanding amount of Investments by the
Parent Borrower or any Restricted Subsidiary pursuant to
clause (d)
,
(i)
or
(v)
of
Section 10.5
) and only to the extent that neither the Parent Borrower nor
any Restricted Subsidiary is under any obligation to repay such amount to such joint venture.
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KKR
shall mean each of Kohlberg Kravis Roberts & Co., L.P. and KKR Associates, L.P.
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L/C Borrowing
shall mean an extension of credit resulting from a drawing under any Letter of
Credit which has not been reimbursed on the date when made or refinanced as a Borrowing. All L/C
Borrowings shall be denominated in Dollars.
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L/C Fee Gross-Up Date
shall have the meaning provided in
Section 4.1(b)
.
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L/C Fee Payment
shall have the meaning provided in
Section 4.1(b)
.
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L/C Maturity Date
shall mean the date that is five Business Days prior to the Revolving
Credit Maturity Date.
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L/C Obligations
shall mean, as at any date of determination, the aggregate amount available
to be drawn under all outstanding Letters of Credit
plus
the aggregate of all Unpaid
Drawings, including all L/C Borrowings. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be outstanding in the amount so remaining available to be drawn.
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L/C Participant
shall have the meaning provided in
Section 3.3(a)
.
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L/C Participation
shall have the meaning provided in
Section 3.3(a)
.
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Lender
shall have the meaning provided in the preamble to this Agreement and shall include
each Lender under the Original Credit Agreement.
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Lender Default
shall mean (a) the failure (which has not been cured) of a Lender to make
available its portion of any Borrowing or to fund its portion of any unreimbursed payment under
Section 3.3
or (b) a Lender having notified the Administrative Agent and/or the Parent
Borrower in writing that it does not intend to comply with the obligations under
Section
2.1(a)
,
2.1(b)
,
2.1(d)
or
3.3
, in the case of either clause (a) or (b)
above or (c) a Lender becoming the subject of a bankruptcy or insolvency proceeding
provided
that a
Lender Default shall not result solely by virtue of any control of or ownership interest, or the
acquisition of any ownership interest, in such Lender or the exercise of control over such Person
by a governmental authority or instrumentality thereof if and for so long as such ownership
interest does not result in or provide such Person with immunity from the jurisdiction of courts
within the United States or from the enforcement of judgments or writs of attachment on its assets
or permit such Person (or such governmental authority or instrumentality) to reject, repudiate,
disavow or disaffirm obligations such as those under this Agreement.
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Letter of Credit
shall mean each letter of
credit issued pursuant to
Section 3.1
and
shall include the Existing Letters of Credit.
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Letter of Credit Commitment
shall mean $500,000,000, as the same may be reduced from time to
time pursuant to
Section 3.1
.
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Letter of Credit Exposure
shall mean, with respect to any Lender, at any time, the sum of
(a) the Dollar Equivalent amount of the principal amount of any Unpaid Drawings in respect of which
such Lender has made (or is required to have made) payments to the Letter of Credit Issuer pursuant
to
Section 3.4(a)
at such time and (b) such Lenders Revolving Credit Commitment Percentage
of the Letters of Credit Outstanding at such time (excluding the portion thereof consisting of
Unpaid Drawings in respect of which the Lenders have made (or are required to have made) payments
to the Letter of Credit Issuer pursuant to
Section 3.4(a)
).
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Letter of Credit Fee
shall have the meaning provided in
Section 4.1(b)
.
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Letter of Credit Issuer
shall mean (a) Bank of America, any of its Affiliates or any
replacement or successor pursuant to
Section 3.6
and (b) in the case of the Existing
Letters of Credit issued by it, JPMorgan Chase Bank, N.A. The Letter of Credit Issuer may, in its
discretion, arrange for one or more Letters of Credit to be issued by Affiliates of the Letter of
Credit Issuer, and in each such case the term Letter of Credit Issuer shall include any such
Affiliate with respect to Letters of Credit issued by such Affiliate. In the event that there is
more than one Letter of Credit Issuer at any time, references herein and in the other Credit
Documents to the Letter of Credit Issuer shall be deemed to refer to the Letter of Credit Issuer in
respect of the applicable Letter of Credit or to all Letter of Credit Issuers, as the context
requires.
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Letters of Credit Outstanding
shall mean, at any time, the sum of, without duplication, (a)
the aggregate Stated Amount of all outstanding Letters of Credit and (b) the aggregate Dollar
Equivalent amount of the principal amount of all Unpaid Drawings.
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Letter of Credit Request
shall have the meaning provided in
Section 3.2
.
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Level I Status
shall mean, on any date, the circumstance that the Consolidated Total Debt to
Consolidated EBITDA Ratio is greater than or equal to 6.00 to 1.00 as of such date;
provided
that from and after November 17, 2012 solely for purposes of determining the
Applicable ABR Margin for Revolving Credit Loans and Swingline Loans, the Applicable LIBOR Margin
for Revolving Credit Loans, Letter of Credit Fees and the Commitment Fee Rate, Level I Status
shall mean, on any date, the circumstance that the Consolidated Total Debt to Consolidated EBITDA
Ratio is greater than or equal to 4.50 to 1.00 as of such date.
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Level II Status
shall mean, on any date, the circumstance that Level I Status does not exist
and the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than or equal to 5.50 to
1.00 as of such date;
provided
that from and after November 17, 2012 solely for purposes of
determining the Applicable ABR Margin for Revolving Credit Loans and Swingline Loans, the
Applicable LIBOR Margin for Revolving Credit Loans, Letter of Credit Fees and the Commitment Fee
Rate, Level II Status shall mean, on any date, the circumstance that Level I Status does not
exist and the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than or equal to 4.00
to 1.00 as of such date.
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Level III Status
shall mean, on any date, the circumstance that neither Level I Status nor
Level II Status exists and the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than
or equal to 5.00 to 1.00 as of such date;
provided
that from and after November 17, 2012
solely for purposes of determining the Applicable ABR Margin for Revolving
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Credit Loans and Swingline Loans, the Applicable LIBOR Margin for Revolving Credit Loans, Letter of
Credit Fees and the Commitment Fee Rate, Level III Status shall mean, on any date, the
circumstance that neither Level I Status nor Level II Status exists and the Consolidated Total Debt
to Consolidated EBITDA Ratio is greater than or equal to 3.50 to 1.00 as of such date.
Level IV Status
shall mean, on any date, the circumstance that none of Level I Status, Level
II Status and Level III Status exists and the Consolidated Total Debt to Consolidated EBITDA Ratio
is greater than or equal to 4.50 to 1.00 as of such date;
provided
that from and after
November 17, 2012 solely for purposes of determining the Applicable ABR Margin for Revolving Credit
Loans and Swingline Loans, the Applicable LIBOR Margin for Revolving Credit Loans, Letter of Credit
Fees and the Commitment Fee Rate, Level IV Status shall mean, on any date, the circumstance that
none of Level I Status, Level II Status or Level III Status exists.
Level V Status
shall mean, on any date, the circumstance that the Consolidated Total Debt to
Consolidated EBITDA Ratio is less than 4.50 to 1.00 as of such date;
provided
that from and
after November 17, 2012 solely for purposes of determining the Applicable ABR Margin for Revolving
Credit Loans and Swingline Loans, the Applicable LIBOR Margin for Revolving Credit Loans, Letter of
Credit Fees and the Commitment Fee Rate, Level V Status shall not apply.
LIBOR Loan
shall mean any LIBOR Term Loan or LIBOR Revolving Credit Loan.
LIBOR Rate
shall mean, for any Interest Period with respect to a LIBOR Loan of any currency,
the rate per annum equal to the British Bankers Association LIBOR Rate (
BBA LIBOR
), as published
by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated
by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period (or on the first day of such
Interest Period in the case of any LIBOR Loan denominated in Sterling), for deposits in such
currency (for delivery on the first day of such Interest Period) with a term equivalent to such
Interest Period. If such rate is not available at such time for any reason, then the LIBOR Rate
for such Interest Period shall be the rate per annum determined by the Administrative Agent to be
the rate at which deposits in such currency for delivery on the first day of such Interest Period
in same day funds in the approximate amount of the LIBOR Loan being made, continued or converted by
the Administrative Agent and with a term equivalent to such Interest Period would be offered by the
Administrative Agents London Branch to major banks in the applicable London interbank eurocurrency
market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period (or on the first day of such Interest Period in the case of
any LIBOR Loan denominated in Sterling).
LIBOR Revolving Credit Loan
shall mean any Revolving Credit Loan bearing interest at a rate
determined by reference to the LIBOR Rate.
LIBOR Term Loan
shall mean any Term Loan bearing interest at a rate determined by reference
to the LIBOR Rate.
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Lien
shall mean any mortgage, pledge, security interest, hypothecation, assignment, lien
(statutory or other) or similar encumbrance (including any agreement to give any of the foregoing,
any conditional sale or other title retention agreement or any lease in the nature thereof).
Loan
shall mean any Revolving Credit Loan, Swingline Loan, Term Loan, New Revolving Loan or
New Term Loan made by any Lender hereunder.
Management Investors
shall mean the directors, management officers and employees of the
Parent Borrower and its Subsidiaries on the Closing Date.
Mandatory Borrowing
shall have the meaning provided in
Section 2.1(d)
.
Mandatory Cost
shall mean, with respect to any period, the percentage rate per annum
determined in accordance with
Schedule 1.01(e)
of the Original Credit Agreement.
Material Adverse Effect
shall mean a circumstance or condition affecting the business,
assets, operations, properties or financial condition of the Parent Borrower and the Subsidiaries,
taken as a whole, that would materially adversely affect (a) the ability of the Parent Borrower and
the other Credit Parties, taken as a whole, to perform their payment obligations under this
Agreement or any of the other Credit Documents or (b) the rights and remedies of the Administrative
Agent and the Lenders under this Agreement or any of the other Credit Documents.
Material Subsidiary
shall mean, at any date of determination, (i) each Restricted Subsidiary
of the Borrower (a) whose total assets at the last day of the Test Period ending on the last day of
the most recent fiscal period for which Section 9.1 Financials have been delivered were equal to or
greater than 1% of the consolidated total assets of the Parent Borrower and the Restricted
Subsidiaries at such date or (b) whose revenues during such Test Period were equal to or greater
than 1% of the consolidated revenues of the Parent Borrower and the Restricted Subsidiaries for
such period, in each case determined in accordance with GAAP and (ii) solely for purposes of
Sections 11.5
,
11.7
,
11.8
and
11.9
, each other Restricted
Subsidiary that is the subject of an Event of Default under one or more of such Sections and that,
when such Restricted Subsidiarys total assets and revenues are aggregated with the total assets or
revenues, as applicable, of each other Restricted Subsidiary that is the subject of an Event of
Default under one or more of such Sections, would constitute a Material Subsidiary under
clause
(i)
above using a 4% threshold in replacement of the 1% threshold in such
clause (i)
.
Maturity Date
shall mean the Tranche A-1 Term Loan Maturity Date, the Tranche A-2 Term Loan
Maturity Date, the Tranche B-1 Term Loan Maturity Date, the Tranche B-2 Term Loan Maturity Date,
the Tranche B-3 Term Loan Maturity Date, the European-1 Tranche Term Loan Maturity Date or the
Revolving Credit Maturity Date.
Maximum Tranche A-2 Accepted Amount
means the amount notified to the Administrative Agent in
writing by the Parent Borrower prior to the Restatement Effective Date as the Maximum Tranche A-2
Accepted Amount.
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Maximum Tranche B-3 Accepted Amount
means the amount notified to the Administrative Agent in
writing by the Parent Borrower prior to the Restatement Effective Date as the Maximum Tranche B-3
Accepted Amount.
Merger
shall have the meaning provided in the Original Credit Agreement.
Merger Sub
shall mean Hercules Acquisition Corporation, a Delaware corporation.
Minimum Borrowing Amount
shall mean (a) with respect to a Borrowing of LIBOR Loans
denominated in Dollars, $10,000,000 (or, if less, the entire remaining Commitments under the
applicable Credit Facility at the time of such Borrowing), (b) with respect to a Borrowing of ABR
Loans (other than Swingline Loans), $1,000,000 (or, if less, the entire remaining Commitments under
the applicable Credit Facility at the time of such Borrowing), (c) with respect to a Borrowing of
Revolving Credit Loans denominated in Sterling, £5,000,000 (or, if less, the Available Commitments
at the time of such Borrowing), (d) with respect to a Borrowing of Loans denominated in Euro,
10,000,000 (or, if less in the case of a Borrowing of Revolving Credit Loans, the Available
Commitments at the time of such Borrowing).
MLGP
shall mean Merrill Lynch Global Partners.
Moodys
shall mean Moodys Investors Service, Inc. or any successor by merger or
consolidation to its business.
Mortgage
shall mean a Mortgage, Assignment of Leases and Rents, Security Agreement and
Financing Statement or other security document entered into by the owner of a Mortgaged Property
and the Collateral Agent in respect of that Mortgaged Property to secure the Obligations,
substantially in the form of the mortgages delivered under the Original Credit Agreement, as the
same may be amended, supplemented or otherwise modified from time to time, and with respect to
Mortgages entered into by the European Subsidiary Borrower or a European Guarantor, a mortgage in
form and substance reasonably satisfactory to the Collateral Agent, entered into by the owner of a
Mortgaged Property and the Collateral Agent in respect of that Mortgaged Property to secure the
European Obligations.
Mortgaged Property
shall mean, initially, each parcel of real estate and the improvements
thereto owned by a Credit Party and identified on
Schedule 1.1(b)
to the Original Credit
Agreement, and includes each other parcel of real property and improvements thereto with respect to
which a Mortgage is granted pursuant to
Section 9.14
.
Multicurrency Exposure
shall mean, for any Revolving Credit Lender at any date, the sum of
(a) the aggregate Dollar Equivalent amount of the principal amount of Revolving Credit Loans
denominated in Alternative Currencies of such Lender then outstanding, and (b) such Lenders Letter
of Credit Exposure in respect of Letters of Credit denominated in Alternative Currencies at such
time.
Multicurrency Sublimit
shall mean, at any date, the lesser of (x) $400,000,000 and (y) the
Total Revolving Credit Commitment at such date.
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Net Cash Proceeds
shall mean, with respect to any Prepayment Event, (a) the gross cash
proceeds (including payments from time to time in respect of installment obligations, if
applicable) received by or on behalf of the Parent Borrower or any of the Restricted Subsidiaries
in respect of such Prepayment Event, as the case may be, less (b) the sum of:
(i) the amount, if any, of all taxes paid or estimated to be payable by the Parent
Borrower or any of the Restricted Subsidiaries in connection with such Prepayment Event,
(ii) the amount of any reasonable reserve established in accordance with GAAP against
any liabilities (other than any taxes deducted pursuant to
clause (i)
above) (x)
associated with the assets that are the subject of such Prepayment Event and (y) retained by
the Parent Borrower or any of the Restricted Subsidiaries,
provided
that the amount
of any subsequent reduction of such reserve (other than in connection with a payment in
respect of any such liability) shall be deemed to be Net Cash Proceeds of such a Prepayment
Event occurring on the date of such reduction,
(iii) the amount of any Indebtedness secured by a Lien on the assets that are the
subject of such Prepayment Event to the extent that the instrument creating or evidencing
such Indebtedness requires that such Indebtedness be repaid upon consummation of such
Prepayment Event (except that Net Cash Proceeds from an Asset Sale Prepayment Event shall
not be reduced as a result of any repayment of any Existing Senior Second Lien Notes,
Indebtedness secured by a Lien ranking
pari passu
with the Liens securing the Existing
Senior Second Lien Notes or First Lien Obligations),
(iv) in the case of any Asset Sale Prepayment Event or Casualty Event or Permitted Sale
Leaseback, the amount of any proceeds of such Prepayment Event that the Parent Borrower or
any Restricted Subsidiary has reinvested (or intends to reinvest within the Reinvestment
Period or has entered into a binding commitment prior to the last day of the Reinvestment
Period to reinvest) in the business of the Parent Borrower or any of the Restricted
Subsidiaries (subject to
Section 9.14
),
provided
that any portion of such
proceeds that has not been so reinvested within such Reinvestment Period (with respect to
such Prepayment Event, the
Deferred Net Cash Proceeds
) shall, unless the Parent Borrower
or a Restricted Subsidiary has entered into a binding commitment prior to the last day of
such Reinvestment Period to reinvest such proceeds, (x) be deemed to be Net Cash Proceeds of
an Asset Sale Prepayment Event or Casualty Event or Permitted Sale Leaseback occurring on
the last day of such Reinvestment Period or, if later, 180 days after the date such Borrower
or such Restricted Subsidiary has entered into such binding commitment, as applicable (such
last day or 180
th
day, as applicable, the
Deferred Net Cash Proceeds Payment
Date
), and (y) be applied to the repayment of Term Loans in accordance with
Section
5.2(a)(i)
,
(v) in the case of any Asset Sale Prepayment Event, Casualty Event or Permitted Sale
Leaseback, the amount of any proceeds of such Asset Sale Prepayment Event, Casualty Event or
Permitted Sale Leaseback, as applicable, applied during the Reinvestment Period to repay,
repurchase, redeem or defease any Retained Indebtedness (a
Retained Indebtedness
Repayment
) with a stated or final maturity (as of the Closing
39
Date) prior to the Tranche A-1 Term Loan Maturity Date (or, if all outstanding amounts under
the Tranche A-1 Term Loan Facility have at such time been repaid in full, the Tranche B-1
Term Loan Maturity Date) in an aggregate amount which, together with all other amounts of
Retained Indebtedness repaid, repurchased, redeemed or deferred pursuant to this
clause
(vi)
since the Closing Date, does not exceed 5% of Consolidated Total Assets as of the
then most recent Test Date with respect to which Section 9.1 Financials have been delivered;
provided
that (a) not later than five Business Days prior to such application of the
proceeds of such Asset Sale or Casualty Event, the Parent Borrower shall have delivered to
the Administrative Agent a certificate of an Authorized Officer to the effect that such
proceeds are being applied to prepay Retained Indebtedness in compliance with this Agreement
and (b) any portion of such proceeds that has not been used to make a Retained Indebtedness
Repayment within such Reinvestment Period shall be Net Cash Proceeds of such Assets Sale
Prepayment Event, Casualty Event or Permitted Sale Leaseback occurring on the last day of
such Reinvestment Period,
(vii) in the case of any Asset Sale Prepayment Event, Casualty Event or Permitted Sale
Leaseback by a non-wholly-owned Restricted Subsidiary, the pro rata portion of the Net Cash
Proceeds thereof (calculated without regard to this
clause (vii)
) attributable to
minority interests and not available for distribution to or for the account of the Parent
Borrower or a wholly-owned Restricted Subsidiary as a result thereof, and
(viii) reasonable and customary fees paid by the Parent Borrower or a Restricted
Subsidiary in connection with any of the foregoing,
in each case only to the extent not already deducted in arriving at the amount referred to in
clause (a)
above.
New Loan Commitments
shall have the meaning provided in
Section 2.14
.
New Repayment Date
shall have the meaning provided in
Section 2.5(d)
.
New Revolving Credit Commitments
shall have the meaning provided in
Section 2.14
.
New Revolving Loan Lender
shall have the meaning provided in
Section 2.14
.
New Revolving Loans
shall have the meaning provided in
Section 2.14
.
New Term Loan Commitments
shall have the meaning provided in
Section 2.14
.
New Term Loan Lender
shall have the meaning provided in
Section 2.14
.
New Term Loan Maturity Date
shall mean the date on which a New Term Loan matures.
New Term Loan Repayment Amount
shall have the meaning provided in
Section 2.5(d)
.
40
New Term Loans
shall have the meaning provided in
Section 2.14
.
1993 Indenture
shall mean the Indenture dated as of December 16, 1993 between HCA and First
National Bank of Chicago, as Trustee, as may be amended, supplemented or modified from time to
time.
1993 Indenture Restricted Subsidiary
shall mean any Subsidiary that on the Closing Date
constitutes a Restricted Subsidiary under (and as defined in) the 1993 Indenture, as in effect on
the Closing Date.
Non-Cash Charges
shall mean (a) losses on asset sales, disposals or abandonments, (b) any
impairment charge or asset write-off related to intangible assets (including goodwill), long-lived
assets, and investments in debt and equity securities pursuant to GAAP, (c) all losses from
investments recorded using the equity method, (d) stock-based awards compensation expense,
including any such charges arising from stock options, restricted stock grants or other equity
incentive grants, and any cash compensation charges associated with the rollover or acceleration of
stock-based awards or payment of stock options in connection with the Transactions, and (e) other
non-cash charges (
provided
that if any non-cash charges referred to in this
clause
(e)
represent an accrual or reserve for potential cash items in any future period, the cash
payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to
such extent).
Non-Consenting Lender
shall have the meaning provided in
Section 14.7(b)
.
Non-Defaulting Lender
shall mean and include each Lender other than a Defaulting Lender.
Non-Extension Notice Date
shall have the meaning provided in
Section 3.2(d)
.
Non-Reinstatement Deadline
shall have the meaning provided in
Section 3.2(e)
.
Non-Reinstatement Letter of Credit
shall have the meaning provided in
Section
3.2(e)
.
Non-U.S. Lender
shall mean any Agent or Lender that is not, for United States federal income
tax purposes, (a) an individual who is a citizen or resident of the United States, (b) a
corporation, partnership or entity treated as a corporation or partnership created or organized in
or under the laws of the United States, or any political subdivision thereof, (c) an estate whose
income is subject to U.S. federal income taxation regardless of its source or (d) a trust if a
court within the United States is able to exercise primary supervision over the administration of
such trust and one or more United States persons have the authority to control all substantial
decisions of such trust or a trust that has a valid election in effect under applicable U.S.
Treasury regulations to be treated as a United States person.
Non-U.S. Participant
shall mean any Participant that if it were a Lender would qualify as a
Non-U.S. Lender.
41
Notice of Borrowing
shall have the meaning provided in
Section 2.3(a)
.
Notice of Conversion or Continuation
shall have the meaning provided in
Section 2.6
.
Obligations
shall mean the U.S. Obligations and the European Obligations, collectively.
Original Credit Agreement
shall have the meaning provided in the preamble.
Other Taxes
shall mean any and all present or future stamp, registration, documentary or any
other similar property or excise taxes (including interest, fines, penalties, additions to tax and
related expenses with regard thereto) arising from any payment made or required to be made under
this Agreement or any other Credit Document or from the execution or delivery of, registration or
enforcement of, consummation or administration of, or otherwise with respect to, this Agreement or
any other Credit Document.
Overnight Rate
shall mean, for any day, (a) with respect to any amount denominated in
Dollars, the greater of (i) the Federal Funds Effective Rate and (ii) an overnight rate determined
by the Administrative Agent, the Letter of Credit Issuer, or the Swingline Lender, as the case may
be, in accordance with banking industry rules on interbank compensation, and (b) with respect to
any amount denominated in any Alternative Currency, the rate of interest per annum at which
overnight deposits in such Alternative Currency, in an amount approximately equal to the amount
with respect to which such rate is being determined, would be offered for such day by a branch or
Affiliate of the Administrative Agent in the applicable off-shore interbank market for such
Alternative Currency to major banks in such interbank market.
Parent Borrower
shall have the meaning set forth in the preamble hereto.
Participant
shall have the meaning provided in
Section 14.6(c)
.
Participating Member State
shall mean each state so described in any EMU Legislation.
Patriot Act
shall have the meaning provided in
Section 14.18
.
PBGC
shall mean the Pension Benefit Guaranty Corporation established pursuant to Section
4002 of ERISA, or any successor thereto.
Perfection Certificate
shall mean the perfection certificate, dated as of November 17, 2006,
of the Credit Parties or any other form approved by the Administrative Agent.
Permitted Acquisition
shall mean the acquisition, by merger or otherwise, by the Parent
Borrower or any of the Restricted Subsidiaries of assets or Stock or Stock Equivalents, so long as
(a) such acquisition and all transactions related thereto shall be consummated in accordance with
applicable law; (b) such acquisition shall result in the issuer of such Stock or Stock Equivalents
becoming a Restricted Subsidiary and a Subsidiary Guarantor, to the extent required by
Section
9.11
; (c) such acquisition shall result in the Administrative Agent, for the
42
benefit of the applicable Lenders, being granted a security interest in any Stock, Stock
Equivalent or any assets so acquired, to the extent required by
Sections 9.11
,
9.12
and/or
9.14
; (d) after giving effect to such acquisition, no Default or Event of Default
shall have occurred and be continuing; (e) the aggregate fair market value (as determined in good
faith by the Parent Borrower) of all Investments funded or financed in any Persons that do not
become Guarantors in connection with all such acquisitions following the Closing Date in reliance
on
Section 10.5(h)
shall not exceed $1,500,000,000 (it being understood that additional
Investments in Persons that are not Credit Parties may be made in connection with Permitted
Acquisitions in reliance on any exception in
Section 10.5
other than
clause (h)
thereof); and (f) the Parent Borrower shall be in compliance, on a Pro Forma Basis after giving
effect to such acquisition (including any Indebtedness assumed or permitted to exist or incurred
pursuant to
Sections 10.1(j)
and
10.1(k)
, respectively, and any related Pro Forma
Adjustment), with the covenant set forth in
Section 10.8
for the most recently ended Test
Period under such Section as if such acquisition had occurred on the first day of such Test Period.
Permitted Additional Debt
shall mean senior unsecured or senior subordinated notes, or other
Indebtedness or, subject to compliance with
Section 10.2
, second lien secured notes or
other junior lien secured Indebtedness, issued by the Parent Borrower or a U.S. Guarantor, so long
as (a) (i) after giving effect to the incurrence of such Permitted Additional Debt, the aggregate
amount of Scheduled Inside Payments does not exceed the greater of (I) $3,000,000,000 and (II) 50%
of Consolidated EBITDA for the most recent Test Period for which Section 9.1 Financials have been
delivered and (ii) to the extent the same are senior subordinated notes, provide for customary
subordination to the Obligations under the Credit Documents, (b) the covenants, events of default,
guarantees, collateral and other terms of which (other than interest rate and redemption premiums),
taken as a whole, are not more restrictive to the Parent Borrower and the Subsidiaries than those
in the Existing Senior Second Lien Notes;
provided
that a certificate of an Authorized
Officer of the Parent Borrower delivered to the Administrative Agent at least three Business Days
(or such shorter period as the Administrative Agent may reasonably agree) prior to the incurrence
of such Indebtedness, together with a reasonably detailed description of the material terms and
conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the
Parent Borrower has determined in good faith that such terms and conditions satisfy the foregoing
requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing
requirement unless the Administrative Agent notifies the Parent Borrower within two Business Days
after receipt of such certificate that it disagrees with such determination (including a reasonable
description of the basis upon which it disagrees) and (c) of which no Subsidiary of the Parent
Borrower (other than a U.S. Guarantor) is an obligor.
Permitted Investments
shall mean:
(a) securities issued or unconditionally guaranteed by the United States government or
any agency or instrumentality thereof, in each case having maturities of not more than 24
months from the date of acquisition thereof;
(b) securities issued by any state of the United States of America or any political
subdivision of any such state or any public instrumentality thereof or any political
subdivision of any such state or any public instrumentality thereof having maturities of
43
not more than 24 months from the date of acquisition thereof and, at the time of
acquisition, having an investment grade rating generally obtainable from either S&P or
Moodys (or, if at any time neither S&P nor Moodys shall be rating such obligations, then
from another nationally recognized rating service);
(c) commercial paper issued by any Lender or any bank holding company owning any
Lender;
(d) commercial paper maturing no more than 12 months after the date of creation thereof
and, at the time of acquisition, having a rating of at least A-2 or P-2 from either S&P or
Moodys (or, if at any time neither S&P nor Moodys shall be rating such obligations, an
equivalent rating from another nationally recognized rating service);
(e) domestic and LIBOR certificates of deposit or bankers acceptances maturing no more
than two years after the date of acquisition thereof issued by any Lender or any other bank
having combined capital and surplus of not less than $250,000,000 in the case of domestic
banks and $100,000,000 (or the Dollar Equivalent thereof) in the case of foreign banks;
(f) repurchase agreements with a term of not more than 30 days for underlying
securities of the type described in
clauses (a)
,
(b)
and
(e)
above
entered into with any bank meeting the qualifications specified in
clause (e)
above
or securities dealers of recognized national standing;
(g) marketable short-term money market and similar funds (x) either having assets in
excess of $250,000,000 or (y) having a rating of at least A-2 or P-2 from either S&P or
Moodys (or, if at any time neither S&P nor Moodys shall be rating such obligations, an
equivalent rating from another nationally recognized rating service);
(h) shares of investment companies that are registered under the Investment Company Act
of 1940 and substantially all the investments of which are one or more of the types of
securities described in
clauses (a)
through
(g)
above;
(i) in the case of Investments by any Restricted Foreign Subsidiary, other customarily
utilized high-quality Investments in the country where such Restricted Foreign Subsidiary is
located or in which such Investment is made; and
(j) investments made by HCI that are permitted or required by any Requirement of Law or
otherwise consistent with past practice, including without limitation investments in
exchange-traded funds, common stocks and bonds.
Permitted Liens
shall mean:
(a) Liens for taxes, assessments or governmental charges or claims not yet delinquent
or that are being contested in good faith and by appropriate proceedings for which
appropriate reserves have been established to the extent required by and in accordance with
GAAP;
44
(b) Liens in respect of property or assets of the Parent Borrower or any of the
Subsidiaries imposed by law, such as carriers, warehousemens and mechanics Liens and
other similar Liens arising in the ordinary course of business, in each case so long as such
Liens arise in the ordinary course of business and do not individually or in the aggregate
have a Material Adverse Effect;
(c) Liens arising from judgments or decrees in circumstances not constituting an Event
of Default under
Section 11.11
;
(d) Liens incurred or deposits made in connection with workers compensation,
unemployment insurance and other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts,
performance and return-of-money bonds and other similar obligations incurred in the ordinary
course of business;
(e) ground leases in respect of real property on which facilities owned or leased by
the Parent Borrower or any of its Subsidiaries are located;
(f) easements, rights-of-way, restrictions, minor defects or irregularities in title
and other similar charges or encumbrances not interfering in any material respect with the
business of the Parent Borrower and its Subsidiaries, taken as a whole;
(g) any interest or title of a lessor or secured by a lessors interest under any lease
permitted by this Agreement;
(h) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods;
(i) Liens on goods the purchase price of which is financed by a documentary letter of
credit issued for the account of the Parent Borrower or any of its Subsidiaries,
provided
that such Lien secures only the obligations of the Parent Borrower or such
Subsidiaries in respect of such letter of credit to the extent permitted under
Section
10.1
;
(j) leases or subleases granted to others not interfering in any material respect with
the business of the Parent Borrower and its Subsidiaries, taken as a whole;
(k) Liens arising from precautionary Uniform Commercial Code financing statement or
similar filings made in respect of operating leases entered into by the Parent Borrower or
any of its Subsidiaries;
(l) Liens created in the ordinary course of business in favor of banks and other
financial institutions over credit balances of any bank accounts of the Parent Borrower and
the Restricted Subsidiaries held at such banks or financial institutions, as the case may
be, to facilitate the operation of cash pooling and/or interest set-off arrangements in
respect of such bank accounts in the ordinary course of business; and
(m) Liens on accounts receivable and related assets incurred in connection with a
Permitted Receivables Financing.
45
Permitted Receivables Financing
shall mean any customary accounts receivable financing
facility (including customary back-to-back intercompany arrangements in respect thereof) to the
extent the amount thereof does not exceed the amount permitted by
Section 10.1(a)
.
Permitted Sale Leaseback
shall mean any Sale Leaseback consummated by the Borrower or any of
the Restricted Subsidiaries after the Closing Date,
provided
that any such Sale Leaseback
not between (i) a U.S. Credit Party and another U.S. Credit Party, (ii) a European Credit Party and
another European Credit Party, (iii) a Restricted Subsidiary that is not a Credit Party or a 1993
Indenture Restricted Subsidiary to another Restricted Subsidiary that is not a Credit Party or a
1993 Indenture Restricted Subsidiary or (iv) a 1993 Indenture Restricted Subsidiary to another 1993
Indenture Restricted Subsidiary is consummated for fair value as determined at the time of
consummation in good faith by (A) the Parent Borrower or such Restricted Subsidiary and, in the
case of any Sale Leaseback (or series of related Sales Leasebacks) the aggregate proceeds of which
exceed $250,000,000, (B) the board of directors of the Parent Borrower or such Restricted
Subsidiary (which such determination may take into account any retained interest or other
Investment of the Parent Borrower or such Restricted Subsidiary in connection with, and any other
material economic terms of, such Sale Leaseback).
Person
shall mean any individual, partnership, joint venture, firm, corporation, limited
liability company, association, trust or other enterprise or any Governmental Authority.
Physician
shall mean a doctor of medicine or osteopathy, a doctor of dental surgery or
dental medicine, a doctor of podiatric medicine, a doctor of optometry or a chiropractor.
PIK Interest Amount
shall mean the aggregate principal amount of all increases in
outstanding principal amount of Toggle Notes and issuances of PIK Notes (as defined in the Initial
Senior Second Lien Notes Indenture) in connection with an election by the Parent Borrower to pay
interest on the Toggle Notes in kind.
Plan
shall mean any multiemployer or single-employer plan, as defined in Section 4001 of
ERISA and subject to Title IV of ERISA, that is or was within any of the preceding six plan years
maintained or contributed to by (or to which there is or was an obligation to contribute or to make
payments to) the Parent Borrower or an ERISA Affiliate.
Platform
shall have the meaning provided in
Section 14.17(b)
.
Post-Acquisition Period
shall mean, with respect to any Permitted Acquisition, the period
beginning on the date such Permitted Acquisition is consummated and ending on the last day of the
sixth full consecutive fiscal quarter immediately following the date on which such Permitted
Acquisition is consummated.
Prepayment Event
shall mean any Asset Sale Prepayment Event, Debt Incurrence Prepayment
Event, Casualty Event or any Permitted Sale Leaseback.
Prime Rate
shall mean the prime rate referred to in the definition of ABR.
46
Principal Properties
shall mean each acute care hospital providing general medical and
surgical services (excluding equipment, personal property and hospitals that primarily provide
specialty medical services, such as psychiatric and obstetrical and gynecological services) owned
solely by the Parent Borrower and/or one or more of its Subsidiaries (as defined in the 1993
Indenture as in effect on the Closing Date) and located in the United States of America for so long
as the 1993 Indenture is in effect and such acute care hospital is a Principal Property under the
1993 Indenture.
Principal Properties Certificate
shall mean a certificate of an Authorized Officer of the
Parent Borrower delivered to the Administrative Agent at the time of delivery of the financial
statements set forth in
Section 9.1(a)
, setting forth, as of the end of such fiscal year, a
calculation of the Principal Properties Secured Amount.
Principal Properties Permitted Amount
shall mean an amount equal to 10% of Consolidated Net
Tangible Assets (as defined in the 1993 Indenture on the Closing Date) determined as of the Closing
Date.
Principal Properties Secured Amount
shall mean, as of any date of determination, the
aggregate fair market value of the Principal Properties that are the subject of Mortgages securing
the Obligations, determined by the Parent Borrower acting reasonably and in good faith using a
multiple of five (5) times EBITDA of such Principal Properties for the most recent four fiscal
quarter period as to which Section 9.1 Financials shall have been delivered.
Pro Forma Adjustment
shall mean, for any Test Period that includes all or any part of a
fiscal quarter included in any Post-Acquisition Period, with respect to the Acquired EBITDA of the
applicable Acquired Entity or Business or the Consolidated EBITDA of the Parent Borrower, the pro
forma increase or decrease in such Acquired EBITDA or such Consolidated EBITDA, as the case may be,
projected by the Parent Borrower in good faith as a result of (a) actions taken during such
Post-Acquisition Period for the purposes of realizing reasonably identifiable and factually
supportable cost savings or (b) any additional costs incurred during such Post-Acquisition Period,
in each case in connection with the combination of the operations of such Acquired Entity or
Business with the operations of the Parent Borrower and the Restricted Subsidiaries;
provided
that (i) at the election of the Parent Borrower, such Pro Forma Adjustment shall
not be required to be determined for any Acquired Entity or Business to the extent the aggregate
consideration paid in connection with such acquisition was less than $100,000,000 and (ii) so long
as such actions are taken during such Post-Acquisition Period or such costs are incurred during
such Post-Acquisition Period, as applicable, it may be assumed, for purposes of projecting such pro
forma increase or decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case may be,
that the applicable amount of such cost savings will be realizable during the entirety of such Test
Period, or the applicable amount of such additional costs, as applicable, will be incurred during
the entirety of such Test Period;
provided
further
that any such pro forma increase
or decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case may be, shall be
without duplication for cost savings or additional costs already included in such Acquired EBITDA
or such Consolidated EBITDA, as the case may be, for such Test Period.
47
Pro Forma Adjustment Certificate
shall mean any certificate of an Authorized Officer of the
Parent Borrower delivered pursuant to
Section 9.1(h)
or
Section 9.1(d)
.
Pro Forma Basis
,
Pro Forma Compliance
and
Pro Forma Effect
shall mean, with respect to
compliance with any test or covenant hereunder, that (A) to the extent applicable and other than
for purposes of determining the Applicable Amount, the Applicable ABR Margin, the Applicable LIBOR
Margin and the Commitment Fee Rate, the Pro Forma Adjustment shall have been made and (B) all
Specified Transactions and the following transactions in connection therewith shall be deemed to
have occurred as of the first day of the applicable period of measurement in such test or covenant:
(a) income statement items (whether positive or negative) attributable to the property or Person
subject to such Specified Transaction, (i) in the case of a sale, transfer or other disposition of
all or substantially all Capital Stock in any Subsidiary of the Parent Borrower or any division,
product line, or facility used for operations of the Parent Borrower or any of its Subsidiaries,
shall be excluded, and (ii) in the case of a Permitted Acquisition or Investment described in the
definition of Specified Transaction, shall be included, (b) any retirement of Indebtedness, and
(c) any incurrence or assumption of Indebtedness by the Parent Borrower or any of the Restricted
Subsidiaries in connection therewith (it being agreed that if such Indebtedness has a floating or
formula rate, such Indebtedness shall have an implied rate of interest for the applicable period
for purposes of this definition determined by utilizing the rate that is or would be in effect with
respect to such Indebtedness as at the relevant date of determination);
provided
that,
without limiting the application of the Pro Forma Adjustment pursuant to (A) above (but without
duplication thereof), the foregoing pro forma adjustments may be applied to any such test or
covenant solely to the extent that such adjustments are consistent with the definition of
Consolidated EBITDA and give effect to events (including operating expense reductions) that are (i)
(x) directly attributable to such transaction, (y) expected to have a continuing impact on the
Parent Borrower and the Restricted Subsidiaries and (z) factually supportable or (ii) otherwise
consistent with the definition of Pro Forma Adjustment.
Qualified Equity Interest
shall mean any Stock or Stock Equivalent that does not constitute
a Disqualified Equity Interest.
Qualified Holdings Debt
shall mean (1) any Indebtedness issued by Holdings (a) that does not
provide for any cash interest payments thereon prior to the fifth anniversary of the date of
issuance thereof, (b) that does not have any scheduled payment of principal prior to the Final
Maturity Date (determined as of the date such Indebtedness was incurred) (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), and (c) that is not guaranteed by, or secured by a Lien on any assets of, the Parent
Borrower or any of the Restricted Subsidiaries.
Qualifying Lender
shall mean:
(i) a Lender (other than a Lender within sub-paragraph (D) below) which is beneficially
entitled to interest payable to that Lender in respect of an advance under this Agreement
and/or any other Credit Document; and is
48
(A) a Lender:
(1) which is a bank (as defined for the purpose of section 349 of the
Taxes Act) making an advance under this Agreement and/or any other Credit
Document; or
(2) in respect of an advance made under this Agreement and/or any other
Credit Document by a person that was a bank (as defined for the purpose of
section 349 of the Taxes Act) at the time that the advance was made,
and which is within the charge to United Kingdom corporation tax as respects
any payments of interest made in respect of the advance; or
(B) a Lender which is:
(1) a company resident in the United Kingdom for United Kingdom tax
purposes;
(2) a partnership each member of which is:
|
(a)
|
|
a company resident of the United
Kingdom for United Kingdom tax purposes; or
|
|
|
(b)
|
|
a company not so resident in the
United Kingdom which carries on a trade in the United Kingdom
through a permanent establishment and which brings into account
in computing its chargeable profits for the purposes of section
11(2) of the Taxes Act) the whole of any share of interest
payable in respect of that advance that falls to it by reason of
sections 114 and 115 of the Taxes Act;
|
(3) a company not so resident in the United Kingdom which carries on a
trade in the United Kingdom through a permanent establishment and which
brings into account interest payable in respect of that advance in computing
the chargeable profits (for the purposes of section 11(2) of the Taxes Act)
of that company; or
(C) a Treaty Lender; or
(D) a building society (as defined for the purpose of section 477A of the Taxes
Act).
Ratio First Lien Indebtedness
shall mean New Term Loans or Future Secured Debt constituting
First Lien Obligations, in each case, which are designated by an Authorized Officer of the Parent
Borrower as Ratio First Lien Indebtedness pursuant to a certificate delivered to the
Administrative Agent not later than the date such New Term Loans are borrowed or Future Secured
Debt is issued;
provided
that immediately after giving effect to the borrowing of
49
such New Term Loans or incurrence of Future Secured Debt and the application of proceeds
therefrom on a Pro Forma Basis, the Consolidated First Lien Debt to Consolidated EBITDA Ratio
(calculated for this purpose, without regard to any reduction in Consolidated Total Debt pursuant
to clause (b) of the definition thereof) is not greater than 3.75 to 1.0.
Ratio Refinancing Indebtedness
means Ratio First Lien Indebtedness that is incurred in
exchange for, or the Net Cash Proceeds of which are applied to repurchase, redeem or repay, any
Term Loans or Future Secured Debt (any such Term Loans or Future Secured Debt, the
Repaid
First Lien Indebtedness
);
provided
that such Ratio First Lien Indebtedness has a final
maturity and weighted average life to maturity that is no earlier than the final maturity and
weighted average life to maturity of the Repaid First Lien Indebtedness.
Real Estate
shall have the meaning provided in
Section 9.1(f)
.
Receivables Collateral
shall have the meaning set forth in the Receivables Intercreditor
Agreement.
Receivables Collateral Agent
shall mean the collateral agent under the ABL Facility.
Receivables Intercreditor Agreement
shall mean the Receivables Intercreditor Agreement,
dated as of November 17, 2006, among the Collateral Agent, the Receivables Collateral Agent and the
Trustee under the Initial Senior Second Lien Notes Indenture, as the same may be amended, restated,
modified or waived from time to time.
Refinanced Term Loans
shall have the meaning provided in
Section 14.1
.
Refinancing Future Secured Debt
shall mean Future Secured Debt that is issued for cash
consideration to the extent the Parent Borrower delivers a certificate of an Authorized Officer to
the Administrative Agent no later than the date of issuance of such Future Secured Debt designating
such Future Secured Debt as Refinancing Future Secured Debt.
Refinancing Term Loans
shall mean any New Term Loans designated as Refinancing Term Loans
in the applicable Joinder Agreement.
Register
shall have the meaning provided in
Section 14.6(b)(iv)
.
Regulation T
shall mean Regulation T of the Board as from time to time in effect and any
successor to all or a portion thereof establishing margin requirements.
Regulation U
shall mean Regulation U of the Board as from time to time in effect and any
successor to all or a portion thereof establishing margin requirements.
Regulation X
shall mean Regulation X of the Board as from time to time in effect and any
successor to all or a portion thereof establishing margin requirements.
Reimbursement Date
shall have the meaning provided in
Section 3.4(a)
.
50
Reinvestment Period
shall mean 15 months following the date of receipt of Net Cash Proceeds
of an Asset Sale Prepayment Event or Casualty Event.
Related Parties
shall mean, with respect to any specified Person, such Persons Affiliates
and the directors, officers, employees, agents, trustees, advisors of such Person and any Person
that possesses, directly or indirectly, the power to direct or cause the direction of the
management or policies of such Person, whether through the ability to exercise voting power, by
contract or otherwise.
Repayment Amount
shall mean a Tranche A-1 Repayment Amount, a Tranche A-2 Repayment Amount,
a Tranche B-1 Repayment Amount, a Tranche B-2 Repayment Amount, a Tranche B-3 Repayment Amount, a
European-1 Tranche Repayment Amount, a New Term Loan Repayment Amount with respect to any Series or
an Extended Term Loan Repayment Amount with respect to any Extension Series, as applicable.
Replacement Revolving Credit Commitments
shall have the meaning set forth in
Section
2.14(b)(ii)
.
Replacement Revolving Credit Loan
shall have the meaning set forth in
Section
2.14(b)(ii)
.
Replacement Revolving Credit Series
shall have the meaning set forth in
Section
2.14(b)(ii)
.
Replacement Term Loans
shall have the meaning provided in
Section 14.1
.
Reportable Event
shall mean an event described in Section 4043 of ERISA and the regulations
thereunder, other than any event as to which the thirty day notice period has been waived.
Required European-1 Tranche Term Loan Lenders
shall mean, at any date, Non-Defaulting
Lenders having or holding a Dollar Equivalent of a majority of the aggregate outstanding principal
amount of the European-1 Tranche Term Loans (excluding European-1 Tranche Term Loans held by
Defaulting Lenders) at such date.
Required Lenders
shall mean, at any date, (a) Non-Defaulting Lenders having or holding a
majority of the Dollar Equivalent of the sum of (i) the Adjusted Total Revolving Credit Commitment
at such date, (ii) the Adjusted Total Term Loan Commitment at such date and (iii) the outstanding
principal amount of the Term Loans (excluding Term Loans held by Defaulting Lenders) at such date
or (b) if the Total Revolving Credit Commitment and the Total Term Loan Commitment have been
terminated or for the purposes of acceleration pursuant to
Section 11
, Non-Defaulting
Lenders having or holding a majority of the Dollar Equivalent of the outstanding principal amount
of the Loans and Letter of Credit Exposure (excluding the Loans and Letter of Credit Exposure of
Defaulting Lenders) in the aggregate at such date.
Required Revolving Credit Lenders
shall mean, at any date, Non-Defaulting Lenders holding a
majority of the Adjusted Total Revolving Credit Commitment at such date (or, if the Total Revolving
Credit Commitment has been terminated at such time, a majority of the
51
Revolving Credit Exposure (excluding Revolving Credit Exposure of Defaulting Lenders) at such
time).
Required Tranche A-1 Term Loan Lenders
shall mean, at any date, Non-Defaulting Lenders
having or holding a majority of the aggregate outstanding principal amount of the Tranche A-1 Term
Loans (excluding Tranche A-1 Term Loans held by Defaulting Lenders) at such date.
Required Tranche A-2 Term Loan Lenders
shall mean, at any date, Non-Defaulting Lenders
having or holding a majority of the aggregate outstanding principal amount of the Tranche A-2 Term
Loans (excluding Tranche A-2 Term Loans held by Defaulting Lenders) at such date.
Required Tranche B-1 Term Loan Lenders
shall mean, at any date, Non-Defaulting Lenders
having or holding a majority of the aggregate outstanding principal amount of the Tranche B-1 Term
Loans (excluding Tranche B-1 Term Loans held by Defaulting Lenders) at such date.
Required Tranche B-2 Term Loan Lenders
shall mean, at any date, Lenders holding a majority
of the aggregate outstanding principal amount of the Tranche B-2 Term Loans (excluding Tranche B-2
Term Loans held by Defaulting Lenders) at such date.
Required Tranche B-3 Term Loan Lenders
shall mean, at any date, Lenders holding a majority
of the aggregate outstanding principal amount of the Tranche B-3 Term Loans (excluding Tranche B-3
Term Loans held by Defaulting Lenders) at such date.
Requirement of Law
shall mean, as to any Person, the certificate of incorporation and
by-laws or other organizational or governing documents of such Person, and any law, treaty, rule or
regulation or determination of an arbitrator or a court or other Governmental Authority, in each
case applicable to or binding upon such Person or any of its property or assets or to which such
Person or any of its property or assets is subject.
Reserve Amount
shall mean:
(a) with respect to (I) (A) any Tranche A-1 Term Loan for any period and (B) any
Revolving Credit Loan or Swingline Loan for any period (or portion thereof) ending prior to
November 17, 2012, (i) if Level I Status, Level II Status or Level III Status is in effect
as of the beginning of such period, an amount equal to 0.50%
per annum
on the average
aggregate daily principal amount of such Loan over such period, (ii) if Level IV Status is
in effect as of the beginning of such period, an amount equal to 0.25%
per annum
on the
average aggregate principal amount of such Loan over such period and (iii) if Level V Status
is in effect as of the beginning of such period, zero and (II) any Revolving Credit Loan or
Swingline Loan for any period (or portion thereof) from and after November 17, 2012, (i) if
Level I Status or Level II Status is in effect as of the beginning of such period, an amount
equal to 0.50% per annum on the average aggregate daily principal amount of such Loan over
such period, (ii) if Level III Status is in effect as of the beginning of such period, an
amount equal to 0.25% per annum on the average aggregate
52
daily principal amount of such Loan over such period and (iii) if Level IV Status is in
effect as of the beginning of such period, zero;
(b) (A) with respect to any Tranche A-2 Term Loan, Tranche B-1 Term Loan, Tranche B-2
Term Loan or Tranche B-3 Term Loan for any period, zero and (B) with respect to any
European-1 Tranche Term Loan for any period, (i) if Level I Status is in effect as of the
beginning of such period, an amount equal to 0.25%
per annum
on the average aggregate
principal amount of such Loan over such period and (ii) if Level II Status, Level III
Status, Level IV Status or Level V Status is in effect as of the beginning of such period,
zero;
(c) with respect to any Letter of Credit Fee on any Letter of Credit for any period (or
portion thereof) (I) ending prior to November 17, 2012, (i) if Level I Status, Level II
Status or Level III Status is in effect as of the beginning of such period, an amount equal
to 0.50%
per annum
on the average aggregate daily Stated Amount of such Letters of Credit
over such period, (ii) if Level IV Status is in effect as of the beginning of such period,
an amount equal to 0.25%
per annum
on the average aggregate daily Stated Amount of such
Letters of Credit over such period, and (iii) if Level V Status is in effect as of the
beginning of such period, zero and (II) from and after November 17, 2012, (i) if Level I
Status or Level II Status is in effect as of the beginning of such period, an amount equal
to 0.50%
per annum
on the average aggregate daily Stated Amount of such Letters of Credit
over such period, (ii) if Level III Status is in effect as of the beginning of such period,
an amount equal to 0.25%
per annum
on the average aggregate daily Stated Amount of such
Letters of Credit over such period, and (iii) if Level IV Status is in effect as of the
beginning of such period, zero;
(d) with respect to any Commitment Fee on any Available Commitment for any period (or
portion thereof) (I) ending prior to November 17, 2012, (i) if Level I Status or Level II
Status is in effect as of the beginning of such period, an amount equal to 0.125%
per annum
on the average aggregate daily amount of such Available Commitment over such period and (ii)
if Level III Status, Level IV Status or Level V Status is in effect as of the beginning of
such period, zero and (II) from and after November 17, 2012 (i) if Level I Status is in
effect as of the beginning of such period, an amount equal to 0.125%
per annum
on the
average aggregate daily amount of such Available Commitment over such period and (ii) if
Level II Status, Level III Status or Level IV Status is in effect as of the beginning of
such period, zero;
provided
that notwithstanding the foregoing, during the fiscal quarter during which the
Revolving Credit Maturity Date (in the case of Revolving Credit Loans, Swingline Loans, Letter of
Credit Fees and Commitment Fees), Tranche A-1 Term Loan Maturity Date (in the case of Tranche A-1
Term Loans) or European-1 Tranche Term Loan Maturity Date (in the case of European-1 Tranche Term
Loans) is scheduled to occur, the Reserve Amount for such Loan, Letter of Credit Fee or Commitment
Fee, as applicable, shall be zero.
For the avoidance of doubt, the
per annum
rate to be used in the determination of the Reserve
Amount for any interest, Letter of Credit Fee or Commitment Fee shall be determined in the same
manner as for the underlying interest or fee in accordance with
Section 5.5
.
53
Restatement
Agreement
shall mean the Restatement Agreement, dated as of May 4, 2011 by and
among the Credit Parties, the Administrative Agent and the other parties thereto.
Restatement Effective Date
shall mean the date on which each of the conditions set forth in
Section 6
has been satisfied.
Restricted Foreign Subsidiary
shall mean a Foreign Subsidiary that is a Restricted
Subsidiary.
Restricted Subsidiary
shall mean any Subsidiary of the Parent Borrower other than an
Unrestricted Subsidiary;
provided
that, solely for purposes of calculating any financial
definition set forth in this agreement for the Parent Borrower and its Restricted Subsidiaries on a
consolidated basis and
clauses (a)
,
(b)
and
(d)
of
Section 9.1
,
each Consolidated Person shall be deemed to be a Restricted Subsidiary.
Retained Indebtedness
shall mean the debt securities issued under the 1993 Indenture that
are identified on
Schedule 1.1(f)
to the Original Credit Agreement.
Revaluation Date
shall mean (a) with respect to any Revolving Credit Loan, each of the
following: (i) each date of a Borrowing of a Revolving Credit Loan or Swingline Loan, (ii) each
date of a continuation of a Revolving Credit Loan pursuant to
Section 2.6
, and (iii) such
additional dates as the Administrative Agent shall determine or the Required Revolving Credit
Lenders shall require; (b) with respect to any Letter of Credit, each of the following: (i) each
date of issuance of any such Letter of Credit, (ii) each date of an amendment of any such Letter of
Credit having the effect of increasing the amount thereof (solely with respect to the increased
amount), (iii) each date of any payment by the Letter of Credit Issuer under any Letter of Credit,
and (iv) such additional dates as the Administrative Agent or the Letter of Credit Issuer shall
determine or the Required Revolving Credit Lenders shall require; and (c) in the case of Term
Loans, (i) any date of prepayment of Term Loans pursuant to
Section 5.2
and (ii) such other
dates as the Administrative Agent may determine.
Revolving Credit Commitment
shall mean, (a) with respect to each Lender that is a Lender on
the Restatement Effective Date, the amount of such Lenders Replacement-1 Revolving Credit
Commitment under the Original Credit Agreement on the Restatement Effective Date and (b) in the
case of any Lender that becomes a Lender after the Restatement Effective Date, the amount specified
as such Lenders Revolving Credit Commitment in the Assignment and Acceptance pursuant to which
such Lender assumed a portion of the Total Revolving Credit Commitment, in each case of the same
may be changed from time to time pursuant to terms hereof. The aggregate amount of the Revolving
Credit Commitment as of the Restatement Effective Date is $2,000,000,000.
Revolving Credit Commitment Percentage
shall mean at any time, for each Lender, the
percentage obtained by dividing (a) such Lenders Revolving Credit Commitment at such time by (b)
the amount of the Total Revolving Credit Commitment at such time,
provided
that at any time
when the Total Revolving Credit Commitment shall have been terminated, each Lenders Revolving
Credit Commitment Percentage shall be the percentage obtained by dividing
54
(a) such Lenders Revolving Credit Exposure at such time by (b) the Revolving Credit Exposure
of all Lenders at such time.
Revolving Credit Exposure
shall mean, with respect to any Lender at any time, the sum of (a)
the aggregate Dollar Equivalent amount of the principal amount of Revolving Credit Loans of such
Lender then outstanding, (b) such Lenders Letter of Credit Exposure at such time and (c) such
Lenders Revolving Credit Commitment Percentage of the aggregate principal amount of all
outstanding Swingline Loans at such time.
Revolving Credit Facility
shall mean the Credit Facility consisting of the Revolving Credit
Commitments and the extensions of credit thereunder.
Revolving Credit Lender
shall mean, at any time, any Lender that has a Revolving Credit
Commitment at such time.
Revolving Credit Loans
shall have the meaning provided in
Section 2.1(b)
and shall
include each Replacement-1 Revolving Credit Loan outstanding under the Original Credit Agreement as
of the Restatement Effective Date.
Revolving Credit Maturity Date
shall mean November 17, 2015, or, if such date is not a
Business Day, the next preceding Business Day.
Revolving Credit Termination Date
shall mean the date on which the Revolving Credit
Commitments shall have terminated, no Revolving Credit Loans shall be outstanding and the Letters
of Credit Outstanding shall have been reduced to zero or Cash Collateralized.
S&P
shall mean Standard & Poors Ratings Services or any successor by merger or
consolidation to its business.
Sale Leaseback
shall mean any transaction or series of related transactions pursuant to
which the Parent Borrower or any of the Restricted Subsidiaries (a) sells, transfers or otherwise
disposes of any property, real or personal, whether now owned or hereafter acquired, and (b) as
part of such transaction, thereafter rents or leases such property or other property that it
intends to use for substantially the same purpose or purposes as the property being sold,
transferred or disposed.
Scheduled Inside Payments
means, at any time, all then remaining scheduled payments of
principal with respect to any Future Secured Debt, Permitted Additional Debt or Indebtedness
incurred pursuant to
Sections 10.1(j)
(other than Capitalized Lease Obligations) and
10.1(k)
, in each case, incurred after the Restatement Effective Date required to be made
prior to the Final Maturity Date (determined as of the date such Future Secured Debt, Permitted
Additional Debt or other Indebtedness is incurred);
provided
that any scheduled payments of
principal of Ratio Refinancing Indebtedness shall be excluded from this definition except to the
extent the scheduled payments of Indebtedness refinanced with the proceeds of such Ratio
Refinancing Indebtedness were included in Scheduled Inside Payments.
SEC
shall mean the Securities and Exchange Commission or any successor thereto.
55
Section 2.
14(e)
Additional Amendment
shall have the meaning set forth in
Section
2.14(e)
.
Section 2.
14(f)
Additional Amendment
shall have the meaning set forth in
Section
2.14(f)(iii)
.
Section 9.1 Financials
shall mean the financial statements delivered, or required to be
delivered, pursuant to
Section 9.1(a)
or
(b)
together with the accompanying
officers certificate delivered, or required to be delivered, pursuant to
Section 9.1(d)
.
Secured Cash Management Agreement
shall mean any Cash Management Agreement that is entered
into by and between the Parent Borrower or any of its Subsidiaries and any Cash Management Bank.
Secured Hedge Agreement
shall mean any Hedge Agreement that is entered into by and between
the Parent Borrower or any of its Subsidiaries and any Hedge Bank.
Secured Parties
shall mean the U.S. Secured Parties and the European Secured Parties,
collectively.
Securitization
shall mean a public or private offering by a Lender or any of its Affiliates
or their respective successors and assigns of securities or notes which represent an interest in,
or which are collateralized, in whole or in part, by the Loans and the Lenders rights under the
Credit Documents.
Security Documents
shall mean the U.S. Security Documents and the European Security
Documents, collectively.
Senior Second Lien Notes Collateral
shall mean the U.S. Collateral (other than any Principal
Properties except to the extent that the 1993 Indenture has ceased to be in effect as a result of a
satisfaction and discharge or defeasance thereof in accordance with its terms).
Series
shall have the meaning as provided in
Section 2.14
.
Sold Entity or Business
shall have the meaning provided in the definition of the term
Consolidated EBITDA.
Solvent
shall mean, with respect to any Person, that as of the Closing Date, (a) (i) the sum
of such Persons debt (including contingent liabilities) does not exceed the present fair saleable
value of such Persons present assets; (ii) such Persons capital is not unreasonably small in
relation to its business as contemplated on the Closing Date; and (iii) such Person has not
incurred and does not intend to incur, or believe that it will incur, debts including current
obligations beyond its ability to pay such debts as they become due (whether at maturity or
otherwise); and (b) such Person is solvent within the meaning given that term and similar terms
under applicable laws relating to fraudulent transfers and conveyances. For purposes of this
definition, the amount of any contingent liability at any time shall be computed as the amount
that, in light of all of the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability (irrespective of whether
such
56
contingent liabilities meet the criteria for accrual under Statement of Financial Accounting
Standard No. 5).
Specified Subsidiary
shall mean, at any date of determination (a) any Material Subsidiary or
(b) any Unrestricted Subsidiary (i) whose total assets at the last day of the Test Period ending on
the last day of the most recent fiscal period for which Section 9.1 Financials have been delivered
were equal to or greater than 6% of the consolidated total assets of the Parent Borrower and the
Subsidiaries at such date, or (ii) whose revenues during such Test Period were equal to or greater
than 6% of the consolidated revenues of the Parent Borrower and the Subsidiaries for such period,
in each case determined in accordance with GAAP, and (c) each other Unrestricted Subsidiary that is
the subject of an Event of Default under
Section 11.5
and that, when such Subsidiarys
total assets or revenues are aggregated with the total assets or revenues, as applicable, of each
other Subsidiary that is the subject of an Event of Default under
Section 11.5
would
constitute a Specified Subsidiary under
clause (b)
above using a 10% threshold in
replacement of the 6% threshold in such
clause (b)
.
Specified Transaction
shall mean, with respect to any period, any Investment, sale, transfer
or other disposition of assets, incurrence or repayment of Indebtedness, Dividend, Subsidiary
designation, New Term Loan, New Revolving Credit Commitment or other event that by the terms of
this Agreement requires Pro Forma Compliance with a test or covenant hereunder or requires such
test or covenant to be calculated on a Pro Forma Basis.
Sponsor
shall mean any of KKR, Bain and MLGP and their respective Affiliates but excluding
portfolio companies of any of the foregoing.
Spot Rate
for a currency shall mean the rate determined by the Administrative Agent to be
the rate quoted by the Administrative Agent as the spot rate for the purchase by the Administrative
Agent of such currency with another currency through its principal foreign exchange trading office
at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign
exchange computation is made;
provided
that the Administrative Agent may obtain such spot
rate from another financial institution designated by the Administrative Agent if it does not have
as of the date of determination a spot buying rate for any such currency.
Stated Amount
of any Letter of Credit shall mean the Dollar Equivalent of the maximum amount
from time to time available to be drawn thereunder, determined without regard to whether any
conditions to drawing could then be met;
provided
,
however
, that with respect to
any Letter of Credit that by its terms or the terms of any Issuer Document provides for one or more
automatic increases in the stated amount thereof, the Stated Amount shall be deemed to be the
Dollar Equivalent of the maximum stated amount of such Letter of Credit after giving effect to all
such increases, whether or not such maximum stated amount is in effect at such time.
Status
shall mean, as to the Parent Borrower as of any date, the existence of Level I
Status, Level II Status, Level III Status, Level IV Status or, except in the case of the Revolving
Credit Facility on or after November 17, 2012, Level V Status, as the case may be, on such date.
Changes in Status resulting from changes in the Consolidated Total Debt to Consoli-
57
dated EBITDA Ratio shall become effective as of the first day following each date that (a)
Section 9.1 Financials are delivered to the Lenders under
Section 9.1
and (b) an officers
certificate is delivered by the Parent Borrower to the Lenders setting forth, with respect to such
Section 9.1 Financials, the then-applicable Status, and shall remain in effect until the next
change to be effected pursuant to this definition,
provided
that each determination of the
Consolidated Total Debt to Consolidated EBITDA Ratio pursuant to this definition shall be made as
of the end of the Test Period ending at the end of the fiscal period covered by the relevant
Section 9.1 Financials.
Sterling
or
£
shall mean lawful currency of the United Kingdom.
Stock
shall mean shares of capital stock or shares in the capital, as the case may be
(whether denominated as common stock or preferred stock or ordinary shares or preferred shares, as
the case may be), beneficial, partnership or membership interests, participations or other
equivalents (regardless of how designated) of or in a corporation, partnership, limited liability
company or equivalent entity, whether voting or non-voting.
Stock Equivalents
shall mean all securities convertible into or exchangeable for Stock and
all warrants, options or other rights to purchase or subscribe for any Stock, whether or not
presently convertible, exchangeable or exercisable.
Subordinated Indebtedness
shall mean Indebtedness of any Borrower or any Guarantor that is
by its terms subordinated in right of payment to the obligations of such Borrower and such
Guarantor, as applicable, under this Agreement.
Subsidiary
of any Person shall mean and include (a) any corporation more than 50% of whose
Stock of any class or classes having by the terms thereof ordinary voting power to elect a majority
of the directors of such corporation (irrespective of whether or not at the time Stock of any class
or classes of such corporation shall have or might have voting power by reason of the happening of
any contingency) is at the time owned by such Person directly or indirectly through Subsidiaries,
(b) any limited liability company, partnership, association, joint venture or other entity of which
such Person (i) directly or indirectly through Subsidiaries owns or controls more than 50% of the
capital accounts, distribution rights, total equity and voting interests or general or limited
partner interests and (ii) is a controlling general partner or otherwise controls such entity at
such time. Unless otherwise expressly provided, all references herein to a Subsidiary shall mean
a Subsidiary of the Parent Borrower.
Successor Borrower
shall have the meaning provided in
Section 10.3(a)
.
Successor Parent Borrower
shall have the meaning provided in
Section 10.3(a)
.
Survey
shall mean a survey of any Mortgaged Property (and all improvements thereon) that is
(a) (i) prepared by a surveyor or engineer licensed to perform surveys in the jurisdiction where
such Mortgaged Property is located, (ii) dated (or redated) not earlier than six months prior to
the date of delivery thereof unless there shall have occurred within six months prior to such date
of delivery any exterior construction on the site of such Mortgaged Property or any easement, right
of way or other interest in the Mortgaged Property shall have been granted or
58
become effective through operation of law or otherwise with respect to such Mortgaged Property
which, in either case, can be depicted on a survey, in which events, as applicable, such survey
shall be dated (or redated) after the completion of such construction or if such construction shall
not have been completed as of such date of delivery, not earlier than 20 days prior to such date of
delivery, or after the grant or effectiveness of any such easement, right of way or other interest
in the Mortgaged Property, (iii) certified by the surveyor (in a manner reasonably acceptable to
the Administrative Agent) to the Administrative Agent, the Collateral Agent and the title insurance
company issuing the corresponding Mortgage, (iv) complying in all material respects with the
minimum detail requirements of the American Land Title Association as such requirements are in
effect on the date of preparation of such survey and (v) sufficient for the title insurance company
to remove all standard survey exceptions from the title insurance policy (or commitment) relating
to such Mortgaged Property and issue such endorsements as the Collateral Agent may reasonably
request or (b) otherwise acceptable to the Collateral Agent.
Swap Contract
shall mean (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or other similar transactions or any combination of any of the foregoing (including
any options to enter into any of the foregoing), whether or not any such transaction is governed by
or subject to any master agreement, and (b) any and all transactions of any kind, and the related
confirmations, that are subject to the terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives Association, Inc., any International
Foreign Exchange Master Agreement, or any other master agreement (any such master agreement,
together with any related schedules, a
Master Agreement
), including any such obligations or
liabilities under any Master Agreement.
Swingline Commitment
shall mean $100,000,000.
Swingline Lender
shall mean Bank of America, in its capacity as lender of Swingline Loans
hereunder.
Swingline Loans
shall have the meaning provided in
Section 2.1(c)
.
Swingline Maturity Date
shall mean, with respect to any Swingline Loan, the date that is
five Business Days prior to the Revolving Credit Maturity Date.
Syndications
shall have the meaning provided in the definition of Disqualified Equity
Interests.
TARGET Day
shall mean any day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be
operative, such other payment system (if any) determined by the Administrative Agent to be a
suitable replacement) is open for the settlement of payments in Euro.
59
Tax Confirmation
shall mean a confirmation by a Lender that the person beneficially entitled
to interest payable to that Lender in respect of an advance under this Agreement and/or any other
Credit Document is either:
(i) a company resident in the United Kingdom for United Kingdom Tax purposes; or
(ii) a partnership each member of which is:
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(A)
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a company so resident in the United Kingdom; or
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(B)
|
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a company not so resident in the United
Kingdom which carries on a trade in the United Kingdom through a
permanent establishment and which brings into account in computing its
chargeable profits (for the purposes of section 11(2) of the Taxes Act)
the whole of any share of interest payable in respect of that advance
that falls to it by reason of sections 114 and 115 of the Taxes Act; or
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(iii) a company not so resident in the United Kingdom which carries on a trade in the
United Kingdom through a permanent establishment and which brings into account interest
payable in respect of that advance in computing the chargeable profits (for the purposes of
section 11(2) of the Taxes Act)of that company.
Taxes
shall mean any and all present or future taxes, duties, levies, imposts, assessments,
deductions, withholdings or other similar charges imposed by any Governmental Authority whether
computed on a separate, consolidated, unitary, combined or other basis and any interest, fines,
penalties or additions to tax with respect to the foregoing.
Taxes Act
shall mean the Income and Corporation Taxes Act of 1988.
Term Loans
shall mean the Tranche A-1 Term Loans, the Tranche A-2 Term Loans, the Tranche
B-1 Term Loans, the Tranche B-2 Term Loans, the Tranche B-3 Term Loans, the European-1 Tranche Term
Loans, any New Term Loans and any Extended Term Loans, collectively.
Test Period
shall mean, for any determination under this Agreement, the four consecutive
fiscal quarters of the Parent Borrower then last ended.
Toggle
Notes
shall mean $1,500,000,000 aggregate original principal amount of 9⅝/10⅜% senior
secured toggle notes due 2016 and any PIK Interest Amount with respect thereto.
Total Credit Exposure
shall mean, at any date, the sum, without duplication, of (a) the
Total Revolving Credit Commitment at such date (or, if the Total Revolving Credit Commitment shall
have terminated on such date, the aggregate Revolving Credit Exposure of all Lenders at such date),
(b) the Total Term Loan Commitment at such date and (c) without duplication of
clause (b)
,
the Dollar Equivalent of the aggregate outstanding principal amount of all Term Loans at such date.
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Total Revolving Credit Commitment
shall mean the sum of the Revolving Credit Commitments of
all the Lenders.
Total Term Loan Commitment
shall mean the sum of the New Term Loan Commitments, if
applicable, of all the Lenders.
Tranche A-1 Repayment Amount
shall have the meaning provided in
Section 2.5(b)(i)
.
Tranche A-1 Repayment Date
shall have the meaning provided in
Section 2.5(b)(i)
.
Tranche A-1 Term Loan
shall mean each Tranche A-1 Term Loan (as defined in the Original
Credit Agreement) outstanding under the Original Credit Agreement.
Tranche A-1 Term Loan Amortization Adjustment Factor
shall mean a fraction (x) the numerator
of which is the aggregate principal amount of Tranche A-1 Term Loans outstanding under this
Agreement on the Restatement Effective Date immediately following the conversion of a portion of
the Tranche A-1 Term Loans to Tranche A-2 Term Loans pursuant to Section 2.1(a) and (y) the
denominator of which is the aggregate principal amount of Tranche A-1 Term Loans outstanding
immediately prior to such conversion.
Tranche A-1 Term Loan Facility
shall mean the Credit Facility consisting of the Tranche A-1
Term Loans.
Tranche A-1 Term Loan Lender
shall mean each Lender with a Tranche A-1 Term Loan.
Tranche A-1 Term Loan Maturity Date
shall mean November 17, 2012, or, if such date is not a
Business Day, the next preceding Business Day.
Tranche A-2 Converted Amount
shall mean, with respect to any Tranche A-1 Term Lender a
principal amount (notified to such Lender by the Administrative Agent and rounded upward or
downward to the nearest whole $0.01 by the Administrative Agent in its sole discretion) equal to
the product of (x) the Tranche A-2 Pro Ration Factor and (y) such Lenders Tranche A-2 Submitted
Amount.
Tranche A-2 Pro Ration Factor
shall mean the lesser of (i) 1.0 and (ii) a fraction, the
numerator of which is the Maximum Tranche A-2 Accepted Amount and the denominator of which is the
sum of the Tranche A-2 Submitted Amounts of all Lenders.
Tranche A-2 Repayment Amount
shall have the meaning provided in
Section 2.5(b)(ii)
.
Tranche A-2 Repayment Date
shall have the meaning provided in
Section 2.5(b)(ii)
.
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Tranche A-2 Submitted Amount
shall mean, with respect to any Lender, the lesser of (i) the
principal amount of all of such Lenders Tranche A-1 Term Loans under the Original Credit Agreement
on the Restatement Effective Date (immediately prior to the effectiveness of this Agreement) and
(ii) the amount (indicated on such Lenders counterpart to the Restatement Agreement) of such
Lenders Tranche A-1 Term Loans submitted for conversion to Tranche A-2 Term Loans.
Tranche A-2 Term Loan
shall have the meaning provided in
Section 2.1(a)(i)(y)
.
Tranche A-2 Term Loan Facility
shall mean the Credit Facility consisting of the Tranche A-2
Term Loans.
Tranche A-2 Term Loan Lender
shall mean each Lender with a Tranche A-2 Term Loan.
Tranche A-2 Term Loan Maturity Date
shall mean May 2, 2016, or, if such date is not a
Business Day, the next preceding Business Day.
Tranche B-1 Repayment Amount
shall have the meaning provided in
Section 2.5(c)(i)
.
Tranche B-1 Repayment Date
shall have the meaning provided in
Section 2.5(c)(i)
.
Tranche B-1 Term Loan
shall mean each Tranche B-1 Term Loan (as defined in the Original
Credit Agreement) outstanding under the Original Credit Agreement.
Tranche B-1 Term Loan Facility
shall mean the Credit Facility consisting of the Tranche B-1
Term Loans.
Tranche B-1 Term Loan Lender
shall mean each Lender with a Tranche B-1 Term Loan.
Tranche B-1 Term Loan Maturity Date
shall mean November 17, 2013, or, if such date is not a
Business Day, the first Business Day thereafter.
Tranche B-2 Repayment Amount
shall have the meaning provided in
Section 2.5(c)(iii)
.
Tranche B-2 Repayment Date
shall have the meaning provided in
Section 2.5(c)(iii)
.
Tranche B-2 Term Loan
shall mean each Tranche B-2 Term Loan (as defined in the Original
Credit Agreement) outstanding under the Original Credit Agreement.
Tranche B-2 Term Loan Lender
shall mean a Lender with an outstanding Tranche B-2 Term Loan.
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Tranche B-2 Term Loan Maturity Date
shall mean March 31, 2017, or, if such date is not a
Business Day, the next preceding Business Day.
Tranche B-3 Converted Amount
shall mean, with respect to any Lender a principal amount
(notified to such Lender by the Administrative Agent and rounded upward or downward to the nearest
whole $0.01 by the Administrative Agent in its sole discretion) equal to the product of (x) the
Tranche B-3 Pro Ration Factor and (y) such Lenders Tranche B-3 Submitted Amount.
Tranche B-3 Pro Ration Factor
shall mean the lesser of (i) 1.0 and (ii) a fraction, the
numerator of which is the Maximum Tranche B-3 Accepted Amount and the denominator of which is the
sum of the Tranche B-3 Submitted Amounts of all Lenders.
Tranche B-3 Repayment Amount
shall have the meaning provided in
Section 2.5(c)(iv)
.
Tranche B-3 Repayment Date
shall have the meaning provided in
Section 2.5(c)(iv)
.
Tranche B-3 Submitted Amount
shall mean, with respect to any Lender, the lesser of (i) the
aggregate principal amount of all of such Lenders Tranche A-1 Term Loans (other than Tranche A-1
Term Loans included in such Lenders Tranche A-2 Converted Amount) and Tranche B-1 Term Loans under
the Original Credit Agreement on the Restatement Effective Date (immediately prior to the
effectiveness of this Agreement) and (ii) the amount (indicated on such Lenders counterpart to the
Restatement Agreement) of such Lenders Tranche A-1 Term Loans and Tranche B-1 Term Loans submitted
for conversion to Tranche B-3 Term Loans.
Tranche B-3 Term Loan
shall have the meaning assigned to such term in
Section
2.1(a)(ii)(y)
.
Tranche B-3 Term Loan Facility
shall mean the Credit Facility consisting of the Tranche B-3
Term Loans.
Tranche B-3 Term Loan Lender
shall mean each Lender with a Tranche B-3 Term Loan.
Tranche B-3 Term Loan Maturity Date
shall mean May 1, 2018, or, if such date is not a
Business Day, the next preceding Business Day.
Transaction Expenses
shall have the meaning given such term by the Original Credit
Agreement.
Transactions
shall have the meaning given such term by the Original Credit Agreement.
Transferee
shall have the meaning provided in
Section 14.6(e)
.
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Treaty Lender
shall mean a Lender which:
(i) is treated as a resident of a Treaty State for the purposes of the relevant Treaty;
and
(ii) does not carry on a business in the United Kingdom through a permanent
establishment with which that Lenders participation in a Loan is effectively connected.
Treaty State
shall mean a jurisdiction having a double taxation agreement (a
Treaty
) with
the United Kingdom which makes provision for full exemption from Tax imposed by the United Kingdom
on interest.
Type
shall mean (a) as to any Term Loan, its nature as an ABR Loan or a LIBOR Term Loan and
(b) as to any Revolving Credit Loan, its nature as an ABR Loan or a LIBOR Revolving Credit Loan.
UK Pension Letter of Credit
shall mean that certain Letter of Credit to be issued to the
trustees of the HCA International Final Salary Pension Scheme by Bank of America, N.A., as a Letter
of Credit Issuer under this Agreement, with a face amount of approximately £20,408,000 and an
expiry date of approximately February 20, 2015.
Unfunded Current Liability
of any Plan shall mean the amount, if any, by which the
Accumulated Benefit Obligation (as defined under Statement of Financial Accounting Standards No. 87
(
SFAS 87
) under the Plan as of the close of its most recent plan year, determined in accordance
with SFAS 87 as in effect on the Closing Date, exceeds the fair market value of the assets
allocable thereto.
Unpaid Drawing
shall have the meaning provided in
Section 3.4(a)
.
Unrestricted Subsidiary
shall mean (a) any Subsidiary of the Parent Borrower that is formed
or acquired after the Closing Date,
provided
that at such time (or promptly thereafter) the
Parent Borrower designates such Subsidiary an Unrestricted Subsidiary in a written notice to the
Administrative Agent, (b) any Restricted Subsidiary subsequently designated as an Unrestricted
Subsidiary by the Parent Borrower in a written notice to the Administrative Agent,
provided
that in the case of
(b)
, no Restricted Subsidiary may be designated as an Unrestricted
Subsidiary if it previously had been designated as an Unrestricted Subsidiary; and
provided
further
in the case of
(a)
and
(b)
, (x) such designation shall be deemed to
be an Investment (or reduction in an outstanding Investment, in the case of a designation of an
Unrestricted Subsidiary as a Restricted Subsidiary), on the date of such designation in an amount
equal to the sum of (i) the Parent Borrowers direct or indirect equity ownership percentage of the
net worth of such designated Restricted Subsidiary immediately prior to such designation (such net
worth to be calculated without regard to any guarantee provided by such designated Restricted
Subsidiary) and (ii) without duplication, the aggregate principal amount of any Indebtedness owed
by such designated Restricted Subsidiary to the Parent Borrower or any other Restricted Subsidiary
immediately prior to such designation, all calculated, except as set forth in the parenthetical to
clause (i)
, on a consolidated basis in accordance with GAAP and (y) no Default or Event of
Default would result from such designation after giving Pro Forma Effect thereto and the Parent
Borrower shall be in compliance with the covenant set forth in
Section 10.8
determined on a
Pro
64
Forma Basis after giving effect to such designation and (c) each Subsidiary of an Unrestricted
Subsidiary. The Parent Borrower may, by written notice to the Administrative Agent, re-designate
any Unrestricted Subsidiary as a Restricted Subsidiary, and thereafter, such Subsidiary shall no
longer constitute an Unrestricted Subsidiary, but only if no Default or Event of Default would
result from such re-designation. On or promptly after the date of its formation, acquisition,
designation or re-designation, as applicable, each Unrestricted Subsidiary (other than an
Unrestricted Subsidiary that is a Foreign Subsidiary) shall have entered into a tax sharing
agreement containing terms that, in the reasonable judgment of the Administrative Agent, provide
for an appropriate allocation of tax liabilities and benefits. Notwithstanding the foregoing, the
European Subsidiary Borrower shall always be a Restricted Subsidiary for so long as any European-1
Tranche Term Loans are outstanding.
U.S. Collateral
shall mean all property pledged or purported to be pledged pursuant to the
U.S. Security Documents.
U.S. Credit Facilities
shall mean the Tranche A-1 Term Loan Facility, the Tranche A-2 Term
Loan Facility, the Tranche B-1 Term Loan Facility, the Tranche B-2 Term Loan Facility, the Tranche
B-3 Term Loan Facility, the New Term Loans (of each Series) and the Extended Term Loans (of each
Extension Series) (to the extent made to the Parent Borrower) and the Revolving Credit Facility.
U.S. Credit Party
shall mean the Parent Borrower and the U.S. Guarantors.
U.S. Guarantee
shall mean (a) the U.S. Guarantee, dated as of the Closing Date, made by the
Parent Borrower and each U.S. Guarantor in favor of the Administrative Agent for the benefit of the
Secured Parties, and (b) any other guarantee of the Obligations made by a Restricted Subsidiary
that is a Domestic Subsidiary in form and substance reasonably acceptable to the Administrative
Agent, in each case as the same may be amended, supplemented or otherwise modified from time to
time.
U.S. Guarantors
shall mean (a) each Domestic Subsidiary that was party to the U.S. Guarantee
on the Closing Date and (b) each Domestic Subsidiary that became or becomes a party to the U.S.
Guarantee after the Closing Date pursuant to
Section 9.11
or otherwise.
U.S. Obligations
shall mean all advances to, and debts, liabilities, obligations, covenants
and duties of, any Credit Party arising under any Credit Document or otherwise with respect to any
Revolving Credit Commitment, Loan or Letter of Credit (other than any such advances to and debts,
liabilities, obligations, covenants and duties of any Credit Party in respect of the European
Obligations) or under any Secured Cash Management Agreement or Secured Hedge Agreement, in each
case, entered into with the Parent Borrower or any of its Domestic Subsidiaries, 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 Credit Party or any Affiliate thereof of any proceeding under any
bankruptcy or insolvency law naming such Person as the debtor in such proceeding, regardless of
whether such interest and fees are allowed claims in such proceeding.
65
U.S. Pledge Agreement
shall mean (a) the U.S. Pledge Agreement, dated as of the Closing
Date, by and among the U.S. Credit Parties party thereto and the Collateral Agent for the benefit
of the Secured Parties, and (b) any other pledge agreement with respect to all of the Obligations
delivered pursuant to
Section 9.12
, in each case, as the same may be amended, supplemented
or otherwise modified from time to time.
U.S. Secured Parties
shall mean the Administrative Agent, the Collateral Agent, the Letter
of Credit Issuer and each Lender, in each case with respect to the U.S. Credit Facilities, each
Hedge Bank that is party to any Secured Hedge Agreement with the Parent Borrower or any Domestic
Subsidiary, each Cash Management Bank that is party to a Secured Cash Management Agreement with the
Parent Borrower or any Domestic Subsidiary and each sub-agent pursuant to
Section 13
appointed by the Administrative Agent with respect to matters relating to the U.S. Credit
Facilities or the Collateral Agent with respect to matters relating to any U.S. Security Document.
U.S. Security Agreement
shall mean the Security Agreement, dated as of the Closing Date, by
and among the Parent Borrower, the other grantors party thereto and the Collateral Agent for the
benefit of the Secured Parties, as the same may be amended, supplemented or otherwise modified from
time to time.
U.S. Security Documents
shall mean, collectively, (a) the U.S. Guarantee, (b) the U.S.
Pledge Agreement, (c) the U.S. Security Agreement, (d) the Mortgages, (e) the Intercreditor
Agreements, (f) the First Lien Intercreditor Agreement and (g) each other security agreement or
other instrument or document executed and delivered pursuant to
Section 9.11
,
9.12
or
9.14
or pursuant to any other such U.S. Security Documents or Future Secured Debt
Documents to secure all of the Obligations.
Voting Stock
shall mean, with respect to any Person, such Persons Stock or Stock
Equivalents having the right to vote for the election of directors of such Person under ordinary
circumstances.
1.2.
Other Interpretive Provisions
. With reference to this Agreement and each other Credit
Document, unless otherwise specified herein or in such other Credit Document:
(a) The meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms.
(b) The words herein, hereto, hereof and hereunder and words of similar
import when used in any Credit Document shall refer to such Credit Document as a whole and
not to any particular provision thereof.
(c) Article, Section, Exhibit and Schedule references are to the Credit Document in
which such reference appears.
(d) The term including is by way of example and not limitation.
66
(e) The term documents includes any and all instruments, documents, agreements,
certificates, notices, reports, financial statements and other writings, however evidenced,
whether in physical or electronic form.
(f) In the computation of periods of time from a specified date to a later
specified date, the word from means from and including; the words to and until each
mean to but excluding; and the word through means to and including.
(g) Section headings herein and in the other Credit Documents are included for
convenience of reference only and shall not affect the interpretation of this Agreement or
any other Credit Document.
1.3.
Accounting Terms
.
(a) All accounting terms not specifically or completely defined herein shall be construed
in conformity with, and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity
with, GAAP.
(b) Notwithstanding anything to the contrary herein, for purposes of determining
compliance with any test or covenant contained in this Agreement with respect to any period during
which any Specified Transaction occurs, the Consolidated Total Debt to Consolidated EBITDA Ratio
shall be calculated with respect to such period and such Specified Transaction on a Pro Forma
Basis.
1.4.
Rounding
. Any financial ratios required to be maintained by the Parent Borrower
pursuant to this Agreement (or required to be satisfied in order for a specific action to be
permitted under this Agreement) shall be calculated by dividing the appropriate component by the
other component, carrying the result to one place more than the number of places by which such
ratio is expressed herein and rounding the result up or down to the nearest number (with a
rounding-up if there is no nearest number).
1.5.
References to Agreements, Laws, Etc
. Unless otherwise expressly provided herein, (a)
references to organizational documents, agreements (including the Credit Documents) and other
Contractual Requirements shall be deemed to include all subsequent amendments, restatements,
amendment and restatements, extensions, supplements and other modifications thereto, but only to
the extent that such amendments, restatements, amendment and restatements, extensions, supplements
and other modifications are permitted by any Credit Document; and (b) references to any Requirement
of Law shall include all statutory and regulatory provisions consolidating, amending, replacing,
supplementing or interpreting such Requirement of Law.
1.6.
Exchange Rates
. For purposes of determining compliance under
Sections 10.4
,
10.5
and
10.6
with respect to any amount in a currency other than Dollars (other
than with respect to (x) any amount derived from the financial statements of Holdings, the Parent
Borrower or its Subsidiaries or (y) any Indebtedness denominated in a currency other than Dollars),
such amount shall be deemed to equal the Dollar Equivalent thereof based on the average Spot Rate
for such currency for the most recent twelve-month period immediately prior to the date of
67
determination determined in a manner consistent with that used in calculating Consolidated
EBITDA for the related period. For purposes of determining compliance with
Sections 10.1
,
10.2
and
10.5
, with respect to any amount of Indebtedness denominated in a currency
other than Dollars, compliance will be determined at the time of incurrence or advancing thereof
using the Dollar Equivalent thereof at the Spot Rate in effect at the time of such incurrence or
advancement.
1.7.
Reserve Amounts
. The provisions of
Section 2.8
and
Section 4.1
relating to the establishment of Reserve Amounts are intended to give the Borrowers, the Lenders
and the L/C Participants the practical benefits of any change in Status (whether resulting in an
increase or decrease in the fees payable hereunder from time to time) resulting from delivery of
Section 9.1 Financials with respect to the immediately preceding fiscal quarter within certain time
periods following the commencement of a fiscal quarter as though any such change of Status had
occurred on the first day of such fiscal quarter. The Administrative Agent and the Borrowers may
amend the provisions of
Section 2.8
and
Section 4.1
without the consent of any
Lender in any manner reasonably believed by the Administrative Agent and the Borrowers to be not
materially adverse the Lenders in order to better effectuate the provisions set forth therein for
achieving such benefits.
SECTION 2.
Amount and Terms of Credit
2.1.
Effect of Restatement on Loans and Letters of Credit under the Original Credit
Agreement
.
(a) Subject to and upon the terms and conditions herein set forth upon the effectiveness
of this Agreement on the Restatement Effective Date:
(i) (x) the Tranche A-1 Term Loan of each Lender (other than any portion thereof
included in the Tranche A-2 Converted Amount or Tranche B-3 Converted Amount of such Lender)
under the Original Credit Agreement shall remain outstanding under this Agreement as a
Tranche A-1 Term Loan from such Lender to the Parent Borrower, (y) the Tranche A-2 Converted
Amount of each Lenders Tranche A-1 Term Loan under the Original Credit Agreement shall
automatically be converted into a loan (a
Tranche A-2 Term Loan
) under this Agreement from
such Lender to the Parent Borrower denominated in Dollars in a principal amount equal to
such Lenders Tranche A-2 Converted Amount of its Tranche A-1 Term Loan under the Original
Credit Agreement with an initial Interest Period equal to the unexpired portion of the
Interest Period applicable to the Tranche A-1 Term Loans on the Restatement Effective Date
and with an initial LIBOR Rate equal to the LIBOR Rate for the Tranche A-1 Term Loans for
the Interest Period in effect on the Restatement Effective Date and (z) the Tranche B-3
Converted Amount of each Lenders Tranche A-1 Term Loan under the Original Credit Agreement
shall automatically be converted into a Tranche B-3 Term Loan from such Lender to the Parent
Borrower in a principal amount equal to such Lenders Tranche B-3 Converted Amount of its
Tranche A-1 Term Loan under the Original Credit Agreement with an initial Interest Period
equal to the unexpired portion of the Interest Period applicable to the Tranche A-1 Term
Loans on the Restatement Effective Date and with an initial LIBOR
68
Rate equal to the LIBOR Rate for the Tranche A-1 Term Loans for the Interest Period in
effect on the Restatement Effective Date;
(ii) (x) the Tranche B-1 Term Loan of each Lender (other than any portion thereof
included in the Tranche B-3 Converted Amount of such Lender) under the Original Credit
Agreement shall remain outstanding under this Agreement as a Tranche B-1 Term Loan from such
Lender to the Parent Borrower and (y) the Tranche B-3 Converted Amount of each Lenders
Tranche B-1 Term Loan under the Original Credit Agreement shall automatically be converted
into a loan (a
Tranche B-3 Term Loan
) under this Agreement from such Lender to the Parent
Borrower denominated in Dollars in a principal amount equal to such Lenders Tranche B-3
Converted Amount with an initial Interest Period equal to the unexpired portion of the
Interest Period applicable to the Tranche B-1 Term Loans on the Restatement Effective Date
and with an initial LIBOR Rate equal to the LIBOR Rate for the Tranche B-1 Term Loans for
the Interest Period in effect on the Restatement Effective Date;
(iii) the Tranche B-2 Term Loan of each Lender under the Original Credit Agreement
shall remain outstanding under this Agreement as a Tranche B-2 Term Loan from such Lender to
the Parent Borrower;
(iv) the European-1 Tranche Term Loan of each Lender under the Original Credit
Agreement shall remain outstanding under this Agreement as a European-1 Tranche Term Loan
from such Lender to the European Subsidiary Borrower;
(v) each Revolving Credit Loan of each Lender under the Original Credit Agreement
shall remain outstanding under this Agreement as a Revolving Credit Loan from such Lender to
the Parent Borrower;
(vi) each Swingline Loan under the Original Credit Agreement shall remain
outstanding under this Agreement as a Swingline Loan to the Parent Borrower; and
(vii) each Existing Letter of Credit shall continue as a Letter of Credit under
this Agreement.
Any Term Loans (i) may at the option of the Parent Borrower be incurred and maintained as, and/or
converted into, ABR Loans (except in the case of European-1 Tranche Term Loans) or LIBOR Term
Loans,
provided
that all Term Loans made by each of the Lenders pursuant to the same
Borrowing shall, unless otherwise specifically provided herein, consist entirely of Term Loans of
the same Type and (ii) may be repaid or prepaid in accordance with the provisions hereof, but once
repaid or prepaid, may not be reborrowed.
(b) (i) Subject to and upon the terms and conditions herein set forth, each Lender having
a Revolving Credit Commitment severally agrees to make a loan or loans denominated in Dollars or
Alternative Currencies (each a
Revolving Credit Loan
and, collectively, the
Revolving Credit
Loans
) to the Parent Borrower, which Revolving Credit Loans (in the case of any Revolving Credit
Loan not outstanding on the Restatement Effective Date) (A) shall be made at any time and from time
to time prior to the Revolving Credit Maturity Date, (B) may, at the option of the Parent Borrower
be incurred and maintained as, and/or converted
69
into, ABR Loans (in the case of Revolving Credit Loans denominated in Dollars only) or LIBOR
Revolving Credit Loans,
provided
that all Revolving Credit Loans made by each of the
Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein,
consist entirely of Revolving Credit Loans of the same Type, (C) may be repaid and reborrowed in
accordance with the provisions hereof, (D) shall not, for any Lender at any time, after giving
effect thereto and to the application of the proceeds thereof, result in such Lenders Revolving
Credit Exposure at such time exceeding such Lenders Revolving Credit Commitment at such time, (E)
shall not, after giving effect thereto and to the application of the proceeds thereof, result at
any time in the aggregate amount of the Lenders Revolving Credit Exposures at such time exceeding
the Total Revolving Credit Commitment then in effect and (F) shall not, after giving effect thereto
and to the application of the proceeds thereof, result at any time in the Aggregate Multicurrency
Exposures at such time exceeding the Multicurrency Sublimit then in effect.
(ii) Each Lender may at its option make any LIBOR Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan,
provided
that (A) any exercise of
such option shall not affect the obligation of the Parent Borrower to repay such Loan and (B) in
exercising such option, such Lender shall use its reasonable efforts to minimize any increased
costs to the Parent Borrower resulting therefrom (which obligation of the Lender shall not require
it to take, or refrain from taking, actions that it determines would result in increased costs for
which it will not be compensated hereunder or that it determines would be otherwise disadvantageous
to it and in the event of such request for costs for which compensation is provided under this
Agreement, the provisions of
Section 2.10
shall apply). On the Revolving Credit Maturity
Date, all Revolving Credit Loans shall be repaid in full.
(c) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in
its individual capacity agrees, at any time and from time to time prior to the Swingline Maturity
Date, to make a loan or loans (each a
Swingline Loan
and, collectively, the
Swingline Loans
) to
the Parent Borrower in Dollars, which Swingline Loans (i) shall be ABR Loans, (ii) shall have the
benefit of the provisions of
Section 2.1(d)
, (iii) shall not exceed at any time outstanding
the Swingline Commitment, (iv) shall not, after giving effect thereto and to the application of the
proceeds thereof, result at any time in the aggregate amount of the Lenders Revolving Credit
Exposures at such time exceeding the Total Revolving Credit Commitment then in effect and (v) may
be repaid and reborrowed in accordance with the provisions hereof. Each outstanding Swingline Loan
shall be repaid in full on the earlier of (a) 15 Business Days after such Swingline Loan is
initially Borrowed and (b) the Swingline Maturity Date. The Swingline Lender shall not make any
Swingline Loan after receiving a written notice from the Parent Borrower or any Lender stating that
a Default or Event of Default exists and is continuing until such time as the Swingline Lender
shall have received written notice of (i) rescission of all such notices from the party or parties
originally delivering such notice or (ii) the waiver of such Default or Event of Default in
accordance with the provisions of
Section 14.1
.
(d) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to
each Revolving Credit Lender that all then-outstanding Swingline Loans shall be funded with a
Borrowing of Revolving Credit Loans denominated in Dollars, in which case Revolving Credit Loans
denominated in Dollars constituting ABR Loans (each such Borrowing, a
Mandatory Borrowing
) shall
be made on the immediately succeeding Business Day by each Revolving Credit Lender
pro rata
based
on each Lenders Revolving Credit Commitment Per-
70
centage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay
the Swingline Lender for such outstanding Swingline Loans. Each Revolving Credit Lender hereby
irrevocably agrees to make such Revolving Credit Loans upon one Business Days notice pursuant to
each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on
the date specified to it in writing by the Swingline Lender notwithstanding (i) that the amount of
the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in
Section 2.2
, (ii) whether any conditions specified in
Section 7
are then satisfied,
(iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of
such Mandatory Borrowing or (v) any reduction in the Total Revolving Credit Commitment after any
such Swingline Loans were made. In the event that, in the sole judgment of the Swingline Lender,
any Mandatory Borrowing cannot for any reason be made on the date otherwise required above
(including as a result of the commencement of a proceeding under the Bankruptcy Code in respect of
the Parent Borrower), each Revolving Credit Lender hereby agrees that it shall forthwith purchase
from the Swingline Lender (without recourse or warranty) such participation of the outstanding
Swingline Loans as shall be necessary to cause the Lenders to share in such Swingline Loans ratably
based upon their respective Revolving Credit Commitment Percentages,
provided
that all
principal and interest payable on such Swingline Loans shall be for the account of the Swingline
Lender until the date the respective participation is purchased and, to the extent attributable to
the purchased participation, shall be payable to such Lender purchasing same from and after such
date of purchase.
2.2.
Minimum Amount of Each Borrowing; Maximum Number of Borrowings
. The aggregate
principal amount of each Borrowing of Term Loans or Revolving Credit Loans shall be in a minimum
amount of at least the Minimum Borrowing Amount for such Type of Loans and in a multiple of
$1,000,000 in excess thereof (or £500,000 in the case of Loans denominated in Sterling, or
1,000,000 in the case of Loans denominated in Euro) and Swingline Loans shall be in a minimum
amount of $500,000 and in a multiple of $100,000 in excess thereof (except that Mandatory
Borrowings shall be made in the amounts required by
Section 2.1(d)
and Revolving Credit
Loans to reimburse the Letter of Credit Issuer with respect to any Unpaid Drawing shall be made in
the amounts required by
Section 3.3
or
Section 3.4
, as applicable). More than one
Borrowing may be incurred on any date,
provided
that at no time shall there be outstanding
more than 30 Borrowings of LIBOR Loans under this Agreement.
2.3.
Notice of Borrowing
.
(a) The applicable Borrower shall give the Administrative Agent at the Administrative
Agents Office (i) prior to 12:00 Noon (New York City time) at least three Business Days prior
written notice (or telephonic notice promptly confirmed in writing) of the Borrowing of Term Loans
if such Term Loans are to be initially LIBOR Loans denominated in Dollars and (ii) written notice
(or telephonic notice promptly confirmed in writing) prior to 12:00 Noon (New York City time) on
the date of the Borrowing of Term Loans if such Term Loans are to be ABR Loans. Such notice
(together with each notice of a Borrowing of Revolving Credit Loans pursuant to
Section
2.3(b)
and each notice of a Borrowing of Swingline Loans pursuant to
Section 2.3(c)
, a
Notice of Borrowing
) shall specify (i) the aggregate principal amount of the Term Loans to be
made, (ii) the date of the Borrowing and (iii) whether the Term Loans shall consist of ABR Term
Loans (in the case of Loans denominated in Dollars) and/or LIBOR Term Loans and, if the Term Loans
are to include LIBOR Term Loans, the Interest Period to be initially
71
applicable thereto. The Administrative Agent shall promptly give each Lender written notice (or
telephonic notice promptly confirmed in writing) of the proposed Borrowing of Term Loans, of such
Lenders proportionate share thereof and of the other matters covered by the related Notice of
Borrowing.
(b) Whenever the Parent Borrower desires to incur Revolving Credit Loans (other than
Mandatory Borrowings or borrowings to repay Unpaid Drawings), it shall give the Administrative
Agent at the Administrative Agents Office, (i) prior to 12:00 Noon (New York City Time) at least
three Business Days prior written notice (or telephonic notice promptly confirmed in writing) of
each Borrowing of LIBOR Revolving Credit Loans denominated in Dollars, (ii) prior to 12:00 Noon
(New York City time) at least four Business Days prior written notice (or telephone notice
promptly confirmed in writing) of the Borrowing of Revolving Credit Loans denominated in
Alternative Currencies and (iii) prior to 10:00 a.m. (New York City time) on the date of such
Borrowing prior written notice (or telephonic notice promptly confirmed in writing) of each
Borrowing of Revolving Credit Loans that are ABR Loans. Each such Notice of Borrowing, except as
otherwise expressly provided in
Section 2.10
, shall specify (i) the aggregate principal
amount of the Revolving Credit Loans to be made pursuant to such Borrowing, (ii) the date of
Borrowing (which shall be a Business Day) and (iii) whether the respective Borrowing shall consist
of ABR Loans (in the case of Revolving Credit Loans denominated in Dollars) or LIBOR Revolving
Credit Loans and, if LIBOR Revolving Credit Loans, the Interest Period to be initially applicable
thereto. The Administrative Agent shall promptly give each Revolving Credit Lender written notice
(or telephonic notice promptly confirmed in writing) of each proposed Borrowing of Revolving Credit
Loans, of such Lenders Revolving Credit Commitment Percentage thereof and of the other matters
covered by the related Notice of Borrowing.
(c) Whenever
the Parent Borrower desires to incur Swingline Loans here-under, it shall give
the Administrative Agent written notice (or telephonic notice promptly confirmed in writing) of
each Borrowing of Swingline Loans prior to 2:30 p.m. (New York City time) on the date of such
Borrowing. Each such notice shall specify (i) the aggregate principal amount of the Swingline
Loans to be made pursuant to such Borrowing and (ii) the date of Borrowing (which shall be a
Business Day). The Administrative Agent shall promptly give the Swingline Lender written notice
(or telephonic notice promptly confirmed in writing) of each proposed Borrowing of Swingline Loans
and of the other matters covered by the related Notice of Borrowing.
(d) Mandatory Borrowings shall be made upon the notice specified in
Section
2.1(d)
, with the Parent Borrower irrevocably agreeing, by its incurrence of any Swingline Loan,
to the making of Mandatory Borrowings as set forth in such Section.
(e) Borrowings to reimburse Unpaid Drawings shall be made upon the notice specified in
Section 3.4(a)
.
(f) Without in any way limiting the obligation of any Borrower to confirm in writing any
notice it may give here-under by telephone, the Administrative Agent may act prior to receipt of
written confirmation without liability upon the basis of such telephonic notice believed by the
Administrative Agent in good faith to be from an Authorized Officer of such Borrower.
72
2.4.
Disbursement of Funds
.
(a) No later than 2:00 p.m. (New York City time) on the date specified in each Notice of
Borrowing (including Mandatory Borrowings), each Lender will make available its
pro rata
portion,
if any, of each Borrowing requested to be made on such date in the manner provided below,
provided
that all Swingline Loans shall be made available in the full amount thereof by the
Swingline Lender no later than 3:00 p.m. (New York City time) on the date requested.
(b) Each Lender shall make available all amounts it is to fund to the applicable Borrower
under any Borrowing for its applicable Commitments, and in immediately available funds to the
Administrative Agent at the Administrative Agents Office in the applicable currency and the
Administrative Agent will (except in the case of Mandatory Borrowings and Borrowings to repay
Unpaid Drawings) make available to the applicable Borrower, by depositing to an account designated
by the applicable Borrower to the Administrative Agent the aggregate of the amounts so made
available in the applicable currency. Unless the Administrative Agent shall have been notified by
any Lender prior to the date of any such Borrowing that such Lender does not intend to make
available to the Administrative Agent its portion of the Borrowing or Borrowings to be made on such
date, the Administrative Agent may assume that such Lender has made such amount available to the
Administrative Agent on such date of Borrowing, and the Administrative Agent, in reliance upon such
assumption, may (in its sole discretion and without any obligation to do so) make available to the
applicable Borrower a corresponding amount. If such corresponding amount is not in fact made
available to the Administrative Agent by such Lender and the Administrative Agent has made
available such amount to the applicable Borrower, the Administrative Agent shall be entitled to
recover such corresponding amount from such Lender. If such Lender does not pay such corresponding
amount forthwith upon the Administrative Agents demand therefor the Administrative Agent shall
promptly notify the applicable Borrower and the applicable Borrower shall immediately pay such
corresponding amount to the Administrative Agent in the applicable currency. The Administrative
Agent shall also be entitled to recover from such Lender or the applicable Borrower interest on
such corresponding amount in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to the applicable Borrower to the date such corresponding
amount is recovered by the Administrative Agent, at a rate
per annum
equal to (i) if paid by such
Lender, the Overnight Rate or (ii) if paid by the applicable Borrower, the then-applicable rate of
interest or fees, calculated in accordance with
Section 2.8
, for the respective Loans.
(c) Nothing in this
Section 2.4
shall be deemed to relieve any Lender from its
obligation to fulfill its commitments hereunder or to prejudice any rights that any Borrower may
have against any Lender as a result of any default by such Lender hereunder (it being understood,
however, that no Lender shall be responsible for the failure of any other Lender to fulfill its
commitments hereunder).
2.5.
Repayment of Loans; Evidence of Debt
.
(a) The Parent Borrower shall repay to the Administrative Agent, for the benefit of the
applicable Lenders, (i) on the Tranche A-1 Term Loan Maturity Date, the then-outstanding Tranche
A-1 Term Loans, in Dollars, (ii) on the Tranche A-2 Term Loan Maturity
73
Date, the then-outstanding Tranche A-2 Term Loans, in Dollars, (iii) on the Tranche B-1 Term
Loan Maturity Date, the then-outstanding Tranche B-1 Term Loans, in Dollars, (iv) on the Tranche
B-2 Term Loan Maturity Date, the then-outstanding Tranche B-2 Term Loans, in Dollars and (v) on the
Tranche B-3 Term Loan Maturity Date, the then-outstanding Tranche B-3 Term Loans in Dollars. The
European Subsidiary Borrower shall repay to the Administrative Agent, for the benefit of the
European-1 Tranche Term Loan Lenders, on the European-1 Tranche Term Loan Maturity Date, the
then-outstanding European-1 Tranche Term Loans, in Euro. The Parent Borrower shall repay to the
Administrative Agent for the benefit of the Revolving Credit Lenders, on the Revolving Credit
Maturity Date, the then outstanding Revolving Credit Loans made to the Parent Borrower in the
currencies in which such Revolving Credit Loans are denominated. The Parent Borrower shall repay
to the Administrative Agent, in Dollars, for the account of the Swingline Lender, on the Swingline
Maturity Date, the then-outstanding Swingline Loans.
(b) (i) The Parent Borrower shall repay to the Administrative Agent, in Dollars, for the
benefit of the Tranche A-1 Term Loan Lenders, on each date set forth below (or, if not a Business
Day, the immediately preceding Business Day) (each, a
Tranche A-1 Repayment Date
), a principal
amount in respect of the Tranche A-1 Term Loans (rounded upwards, if necessary, to the next $0.01)
equal to the product of (x) the applicable amount set forth below and (y) the Tranche A-1 Term Loan
Amortization Adjustment Factor (each, a
Tranche A-1 Repayment Amount
):
|
|
|
|
|
|
|
Tranche A-1
|
|
Date
|
|
Repayment Amount
|
|
June 30, 2011
|
|
$
|
48,794,774.92
|
|
September 30, 2011
|
|
$
|
95,401,449.11
|
|
December 31, 2011
|
|
$
|
95,401,449.11
|
|
March 31, 2012
|
|
$
|
238,503,622.78
|
|
June 30, 2012
|
|
$
|
238,503,622.78
|
|
September 30, 2012
|
|
$
|
238,503,622.78
|
|
Tranche A-1 Term Loan
Maturity Date
|
|
Remaining outstanding amounts
|
(ii) The Parent Borrower shall repay to the Administrative Agent, in Dollars, for the
benefit of the Tranche A-2 Term Loan Lenders, on each date set forth below (or, if not a Business
Day, the immediately preceding Business Day) (each, a
Tranche A-2 Repayment Date
), a principal
amount in respect of the Tranche A-2 Term Loans equal to (x) the aggregate principal amount of the
Tranche A-2 Term Loans outstanding on the Restatement Effective Date multiplied by (y) the
percentage set forth below opposite such Tranche A-2 Repayment Date (or the entire remaining
outstanding amount in the case of the Tranche A-2 Term Loan Maturity Date) (each, a
Tranche A-2
Repayment Amount
):
74
|
|
|
|
|
|
|
Tranche A-2
|
Date
|
|
Repayment Amount
|
June 30, 2011
|
|
|
1.25
|
%
|
September 30, 2011
|
|
|
1.25
|
%
|
December 31, 2011
|
|
|
1.25
|
%
|
March 31, 2012
|
|
|
1.25
|
%
|
June 30, 2012
|
|
|
1.25
|
%
|
September 30, 2012
|
|
|
1.25
|
%
|
December 31, 2012
|
|
|
1.25
|
%
|
March 31, 2013
|
|
|
1.25
|
%
|
June 30, 2013
|
|
|
1.25
|
%
|
September 30, 2013
|
|
|
1.25
|
%
|
December 31, 2013
|
|
|
1.25
|
%
|
March 31, 2014
|
|
|
1.25
|
%
|
June 30, 2014
|
|
|
1.25
|
%
|
September 30, 2014
|
|
|
1.25
|
%
|
December 31, 2014
|
|
|
1.25
|
%
|
March 31, 2015
|
|
|
1.25
|
%
|
June 30, 2015
|
|
|
1.25
|
%
|
September 30, 2015
|
|
|
1.25
|
%
|
December 31, 2015
|
|
|
1.25
|
%
|
Tranche A-2 Term Loan
|
|
|
|
|
Maturity Date
|
|
Remaining outstanding amounts
|
(c) (i) The Parent Borrower shall repay to the Administrative Agent, in Dollars, for the
benefit of the Tranche B-1 Term Loan Lenders, on the Tranche B-1 Term Loan Maturity Date (the
Tranche B-1 Repayment Date
), the principal amount of all then outstanding Tranche B-1 Term Loans
(the
Tranche B-1 Repayment Amount
).
(ii) The European Subsidiary Borrower shall pay to the Administrative Agent, in Euro, for
the benefit of the European-1 Tranche Term Loan Lenders, on the European-1 Tranche Term Loan
Maturity Date (the
European-1 Tranche Repayment Date
), the principal amount of all then
outstanding European-1 Tranche Term Loans (the
European-1 Tranche Repayment Amount
).
(iii) The Parent Borrower shall repay to the Administrative Agent, in Dollars, for the
benefit of the Tranche B-2 Term Loan Lenders, on each date set forth below (each, a
Tranche B-2
Repayment Date
), a principal amount in respect of the Tranche B-2 Term Loans equal to the amount
set forth below opposite such Tranche B-2 Repayment Date (each, a
Tranche B-2 Repayment Amount
):
|
|
|
|
|
|
|
Tranche B-2
|
Date
|
|
Repayment Amount
|
December 31, 2013
|
|
$
|
5,000,000
|
|
March 31, 2014
|
|
$
|
5,000,000
|
|
June 30, 2014
|
|
$
|
5,000,000
|
|
75
|
|
|
|
|
|
|
Tranche B-2
|
Date
|
|
Repayment Amount
|
September 30, 2014
|
|
$
|
5,000,000
|
|
December 31, 2014
|
|
$
|
5,000,000
|
|
March 31, 2015
|
|
$
|
5,000,000
|
|
June 30, 2015
|
|
$
|
5,000,000
|
|
September 30, 2015
|
|
$
|
5,000,000
|
|
December 31, 2015
|
|
$
|
5,000,000
|
|
March 31, 2016
|
|
$
|
5,000,000
|
|
June 30, 2016
|
|
$
|
5,000,000
|
|
September 30, 2016
|
|
$
|
5,000,000
|
|
December 31, 2016
|
|
$
|
5,000,000
|
|
Tranche B-2 Term Loan
|
|
|
|
|
Maturity Date
|
|
Remaining outstanding amounts
|
(iv) The Parent Borrower shall repay to the Administrative Agent, in Dollars, for the
benefit of the Tranche B-3 Term Loan Lenders, on each date set forth below (each, a
Tranche B-3
Repayment Date
), a principal amount in respect of the Tranche B-3 Term Loans equal to (x) the
aggregate principal amount of Tranche B-3 Term Loans outstanding on the Restatement Effective Date
multiplied by (y) the percentage set forth below opposite such Tranche B-3 Repayment Date (or the
entire remaining outstanding amount in the case of the Tranche B-3 Term Loan Maturity Date) (each,
a
Tranche B-3 Repayment Amount
):
|
|
|
|
|
|
|
Tranche B-3
|
Date
|
|
Repayment Amount
|
December 31, 2013
|
|
|
0.25
|
%
|
March 31, 2014
|
|
|
0.25
|
%
|
June 30, 2014
|
|
|
0.25
|
%
|
September 30, 2014
|
|
|
0.25
|
%
|
December 31, 2014
|
|
|
0.25
|
%
|
March 31, 2015
|
|
|
0.25
|
%
|
June 30, 2015
|
|
|
0.25
|
%
|
September 30, 2015
|
|
|
0.25
|
%
|
December 31, 2015
|
|
|
0.25
|
%
|
March 31, 2016
|
|
|
0.25
|
%
|
June 30, 2016
|
|
|
0.25
|
%
|
September 30, 2016
|
|
|
0.25
|
%
|
December 31, 2016
|
|
|
0.25
|
%
|
March 31, 2017
|
|
|
0.25
|
%
|
June 30, 2017
|
|
|
0.25
|
%
|
September 30, 2017
|
|
|
0.25
|
%
|
December 31, 2017
|
|
|
0.25
|
%
|
Tranche B-3 Term Loan
|
|
|
|
|
Maturity Date
|
|
Remaining outstanding amounts
|
76
(d) In the event that any New Term Loans are made, such New Term Loans shall, subject to
Section 2.14(d)
, be repaid by the Parent Borrower in the amounts (each, a
New Term Loan
Repayment Amount
) and on the dates (each a
New Repayment Date
) set forth in the applicable
Joinder Agreement. In the event that any Extended Term Loans are established following the
Restatement Effective Date, such Extended Term Loans shall, subject to
Section 2.14(f)
, be
repaid by the applicable Borrower in the amounts (each such amount with respect to any Extended
Repayment Date, an
Extended Term Loan Repayment Amount
) and on the dates (each an
Extended
Repayment Date
) set forth in the applicable Extension Amendment.
(e) Each Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the applicable Borrower to the appropriate lending office
of such Lender resulting from each Loan made by such lending office of such Lender from time to
time, including the amounts of principal and interest payable and paid to such lending office of
such Lender from time to time under this Agreement.
(f) The Administrative Agent shall maintain the Register pursuant to
Section
14.6(b)
, and a subaccount for each Lender, in which Register and subaccounts (taken together)
shall be recorded (i) the amount and Class of each Loan made hereunder, the Type of each Loan made,
the currency in which made and the Interest Period, if any, applicable thereto, (ii) the amount of
any principal or interest due and payable or to become due and payable from the applicable Borrower
to each Lender or the Swingline Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder from such Borrower and each Lenders share thereof.
(g) The entries made in the Register and accounts and subaccounts maintained pursuant to
clauses (e)
and
(f)
of this
Section 2.5
shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the obligations of the
applicable Borrower therein recorded;
provided
,
however
, that the failure of any
Lender or the Administrative Agent to maintain such account, such Register or such subaccount, as
applicable, or any error therein, shall not in any manner affect the obligation of the applicable
Borrower to repay (with applicable interest) the Loans made to the applicable Borrower by such
Lender in accordance with the terms of this Agreement.
2.6.
Conversions and Continuations
.
(a) Subject to the penultimate sentence of this
clause (a)
, (x) the Parent
Borrower shall have the option on any Business Day to convert all or a portion equal to at least
$10,000,000 of the outstanding principal amount of Term Loans or Revolving Credit Loans denominated
in Dollars of one Type into a Borrowing or Borrowings of another Type and (y) each Borrower shall
have the option on any Business Day to continue the outstanding principal amount of any LIBOR Loans
as LIBOR Loans for an additional Interest Period,
provided
that (i) no partial conversion
of LIBOR Loans shall reduce the outstanding principal amount of LIBOR Loans made pursuant to a
single Borrowing to less than the Minimum Borrowing Amount, (ii) ABR Loans may not be converted
into LIBOR Loans if a Default or Event of Default is in existence on the date of the conversion and
the Administrative Agent has or the Required Lenders have determined in its or their sole
discretion not to permit such conversion, (iii) LIBOR Loans may not be continued as LIBOR Loans for
an additional Interest Period if a Default or Event of
77
Default is in existence on the date of the proposed continuation and the Administrative Agent
has or the Required Lenders have determined in its or their sole discretion not to permit such
continuation, (iv) Borrowings resulting from conversions pursuant to this
Section 2.6
shall
be limited in number as provided in
Section 2.2
and (v) European-1 Tranche Term Loans and
Revolving Credit Loans denominated in Alternative Currencies may not be converted to ABR Loans.
Each such conversion or continuation shall be effected by the applicable Borrower by giving the
Administrative Agent at the Administrative Agents Office prior to 12:00 Noon (New York City time)
at least (i) three Business Days notice, in the case of a continuation of or conversion to LIBOR
Loans denominated in Dollars, (ii) four Business Days notice, in the case of a continuation or
conversion to LIBOR Loans denominated in an Alternative Currency or (iii) one Business Days notice
in the case of a conversion into ABR Loans prior written notice (or telephonic notice promptly
confirmed in writing) (each, a
Notice of Conversion or Continuation
) specifying the Loans to be
so converted or continued, the Type of Loans to be converted or continued into and, if such Loans
are to be converted into or continued as LIBOR Loans, the Interest Period to be initially
applicable thereto. The Administrative Agent shall give each applicable Lender notice as promptly
as practicable of any such proposed conversion or continuation affecting any of its Loans.
(b) If any Default or Event of Default is in existence at the time of any proposed
continuation of any LIBOR Loans (other than Loans denominated in Alternative Currencies) and the
Administrative Agent has or the Required Lenders have determined in its or their sole discretion
not to permit such continuation, such LIBOR Loans shall be automatically converted on the last day
of the current Interest Period into ABR Loans. If upon the expiration of any Interest Period in
respect of LIBOR Loans (other than Borrowings of LIBOR Loans denominated in Alternative
Currencies), the applicable Borrower has failed to elect a new Interest Period to be applicable
thereto as provided in
clause (a)
, such Borrower shall be deemed to have elected to convert
such Borrowing of LIBOR Loans into a Borrowing of ABR Loans, effective as of the expiration date of
such current Interest Period. Notwithstanding the foregoing, with respect to Borrowings of LIBOR
Loans denominated in Alternative Currencies, in connection with the occurrence of any of the events
described in the preceding two sentences, at the expiration of the then current Interest Period
each such Borrowing shall be automatically continued as a Borrowing of LIBOR Loans with an Interest
Period of one month.
(c) No Loan may be converted into or continued as a Loan denominated in a different
currency.
2.7.
Pro Rata Borrowings
. Each Borrowing of Revolving Credit Loans under this Agreement
shall be made by the Revolving Credit Lenders
pro rata
on the basis of their then-applicable
Revolving Credit Commitment Percentages. Each Borrowing of New Term Loans under this Agreement
shall be made by the Lenders
pro rata
on the basis of their then-applicable New Term Loan
Commitments. It is understood that (a) no Lender shall be responsible for any default by any other
Lender in its obligation to make Loans hereunder and that each Lender severally but not jointly
shall be obligated to make the Loans provided to be made by it hereunder, regardless of the failure
of any other Lender to fulfill its commitments hereunder and (b) other than as expressly provided
herein with respect to a Defaulting Lender, failure by a Lender to perform any of its obligations
under any of the Credit Documents shall not release any Person from performance of its obligation
under any Credit Document.
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2.8.
Interest
.
(a) The unpaid principal amount of each ABR Loan shall bear interest from the date of the
Borrowing thereof until maturity (whether by acceleration or otherwise) at a rate
per annum
that
shall at all times be the Applicable ABR Margin plus the ABR, in each case, in effect from time to
time.
(b) The unpaid principal amount of each LIBOR Loan shall bear interest from the date of
the Borrowing thereof until maturity thereof (whether by acceleration or otherwise) at a rate
per
annum
that shall at all times be the Applicable LIBOR Margin plus the relevant LIBOR Rate
plus
(in the case of a LIBOR Loan of any Lender that is loaned from a lending office in the
United Kingdom or a Participating Member State) the Mandatory Cost, in each case, in effect from
time to time.
(c) If all or a portion of (i) the principal amount of any Loan or (ii) any interest
payable thereon shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate
per annum
that is (the
Default
Rate
) (x) in the case of overdue principal, the rate that would otherwise be applicable thereto
plus
2% or (y) in the case of any overdue interest, to the extent permitted by applicable
law, the rate described in
Section 2.8(a)
plus
2% from the date of such non-payment
to the date on which such amount is paid in full (after as well as before judgment).
(d) Interest on each Loan shall accrue from and including the date of any Borrowing to but
excluding the date of any repayment thereof and shall be payable in the same currency in which such
Loan is denominated. Except as provided below, interest shall be payable (i) in respect of each
ABR Loan, quarterly in arrears on the last Business Day of each March, June, September and
December, (ii) in respect of each LIBOR Loan, on the last day of each Interest Period applicable
thereto and, in the case of an Interest Period in excess of three months, on each date occurring at
three-month intervals after the first day of such Interest Period, (iii) in respect of each Loan,
(A) on any prepayment (on the amount prepaid but excluding in any event prepayments of ABR Loans),
(B) at maturity (whether by acceleration or otherwise) and (C) after such maturity, on demand.
Notwithstanding the foregoing, with respect to any fiscal quarter of the Parent Borrower beginning
on or after January 1, 2007 (each, an
Applicable Quarter
), on any date during such Applicable
Quarter (I) that is prior to the date on which Section 9.1 Financials are due with respect to the
fiscal quarter immediately preceding such Applicable Quarter and (II) on which interest is payable
on any Loan pursuant to this
subclause (d)
(other than pursuant to
subclause
(iii)(B)
above) in respect of any period (including any portion of an Interest Period) included
in such Applicable Quarter (commencing on the first day of such Applicable Quarter), the amount of
such interest required to be paid on such date in respect of any Loan for such period (as to any
Loan, an
Interest Payment
) shall be reduced by an amount equal to the Reserve Amount with respect
to such Loan for such period;
provided
that, if the amount of any Interest Payment on any
Loan shall have been reduced during any Applicable Quarter pursuant to the foregoing provisions,
then, on the date (the
Interest Gross-Up Date
) that is the earlier of (x) the Applicable Date in
respect of such Applicable Quarter and (y) (I) if such Loan is a Tranche A-1 Term Loan, Tranche B-1
Term Loan or European-1 Tranche Term Loan, the date on which all Tranche A-1 Term Loans, Tranche
B-1 Term Loans or European Term Loans, respectively, are repaid in full or (II) if such Loan is a
Revolving Credit Loan or Swingline Loan,
79
the Revolving Credit Termination Date, the applicable Borrower shall pay additional interest
on such Loan in an amount equal to the aggregate of the Reserve Amounts for such Loan so deducted
during such Applicable Quarter unless:
(1) the Parent Borrower shall have delivered, at least four Business Days prior to
such Interest Gross-Up Date, Section 9.1 Financials for the fiscal quarter immediately
preceding such Applicable Quarter and
(2) either:
(A) such Section 9.1 Financials reveal a change in Status that results in a
decrease in the Applicable ABR Margin and Applicable LIBOR Margin for such Loan, in
which case, in lieu of paying the aggregate of the Reserve Amounts for such Loan for
such period as provided above, such Borrower shall pay on such Interest Gross-Up
Date an amount equal to the excess (if any) of (I) the aggregate amount of interest
that would have been payable on such Loan during such Applicable Quarter in respect
of any period included therein if such change of Status had taken effect on the
first day of such Applicable Quarter over (II) the aggregate amount of all interest
payments actually made on such Loan during such Applicable Quarter in respect of any
period included therein; or
(B) such Section 9.1 Financials reveal a change in Status that results in
an increase in the Applicable ABR Margin and Applicable LIBOR Margin for such Loan,
in which case, such Borrower shall pay the aggregate of the Reserve Amounts for such
Loan for such period as provided above, and shall also pay additional interest in
respect of such Loan on such Interest Gross-Up Date in an amount equal to the amount
(if any) by which (I) the sum of (x) the aggregate amount of all interest payments
actually made on such Loan during such Applicable Quarter in respect of any period
included therein
plus
(y) the aggregate of the Reserve Amounts for such Loan
for such Applicable Quarter is less than (II) the aggregate amount of interest that
would have been payable on such Loan during such Applicable Quarter in respect of
any period included therein if such change of Status had taken effect on the first
day of such Applicable Quarter.
(e) All computations of interest hereunder shall be made in accordance with
Section
5.5
.
(f) The Administrative Agent, upon determining the interest rate for any Borrowing of
LIBOR Loans, shall promptly notify the applicable Borrower and the relevant Lenders thereof. Each
such determination shall, absent clearly demonstrable error, be final and conclusive and binding on
all parties hereto.
2.9.
Interest Periods
. At the time a Borrower gives a Notice of Borrowing or Notice of
Conversion or Continuation in respect of the making of, or conversion into or continuation as, a
Borrowing of LIBOR Loans in accordance with
Section 2.6(a)
, such Borrower shall have the
right to elect by giving the Administrative Agent written notice (or telephonic notice promptly
confirmed in writing) the Interest Period applicable to such
Borrowing, which Interest
80
Period shall, at the option of such Borrower be a one, two, three, six or (in the case
of Revolving Credit Loans, if available to all the Lenders making such loans as determined by such
Lenders in good faith based on prevailing market conditions) a nine or twelve month period (or such
other period of less than six months as to which the Administrative Agent may consent).
Notwithstanding anything to the contrary contained above:
(a) the initial Interest Period for any Borrowing of LIBOR Loans shall commence on
the date of such Borrowing (including the date of any conversion from a Borrowing of ABR
Loans) and each Interest Period occurring thereafter in respect of such Borrowing shall
commence on the day on which the next preceding Interest Period expires;
(b) if any Interest Period relating to a Borrowing of LIBOR Loans begins on the
last Business Day of a calendar month or begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period, such Interest
Period shall end on the last Business Day of the calendar month at the end of such Interest
Period;
(c) if any Interest Period would otherwise expire on a day that is not a Business
Day, such Interest Period shall expire on the next succeeding Business Day,
provided
that if any Interest Period in respect of a LIBOR Loan would otherwise expire on a day that
is not a Business Day but is a day of the month after which no further Business Day occurs
in such month, such Interest Period shall expire on the next preceding Business Day; and
(d) the applicable Borrower shall not be entitled to elect any Interest Period in
respect of any LIBOR Loan if such Interest Period would extend beyond the Maturity Date of
such Loan.
2.10.
Increased Costs, Illegality, Etc
.
(a) In the event that (x) in the case of
clause (i)
below, the Administrative
Agent or (y) in the case of
clauses (ii)
and
(iii)
below, any Lender shall have
reasonably determined (which determination shall, absent clearly demonstrable error, be final and
conclusive and binding upon all parties hereto):
(i) on any date for determining the LIBOR Rate for any Interest Period that (x)
deposits in the principal amounts and currencies of the Loans comprising such LIBOR
Borrowing are not generally available in the relevant market or (y) by reason of any changes
arising on or after the Closing Date affecting the interbank LIBOR market, adequate and fair
means do not exist for ascertaining the applicable interest rate on the basis provided for
in the definition of LIBOR Rate; or
(ii) at any time, that such Lender shall incur increased costs or reductions in the
amounts received or receivable hereunder with respect to any LIBOR Loans (other than any
increase or reduction attributable to Taxes) because of (x) any change since the Closing
Date in any applicable law, governmental rule, regulation, guideline or order (or
81
in the interpretation or administration thereof and including the introduction of any
new law or governmental rule, regulation, guideline or order), such as, for example, without
limitation, a change in official reserve requirements, and/or (y) other circumstances
affecting the interbank LIBOR market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any LIBOR Loan has become
unlawful by compliance by such Lender in good faith with any law, governmental rule,
regulation, guideline or order (or would conflict with any such governmental rule,
regulation, guideline or order not having the force of law even though the failure to comply
therewith would not be unlawful), or has become impracticable as a result of a contingency
occurring after the Closing Date that materially and adversely affects the interbank LIBOR
market;
then, and in any such event, such Lender (or the Administrative Agent, in the case of
clause
(i)
above) shall within a reasonable time thereafter give notice (if by telephone, confirmed in
writing) to the Parent Borrower and to the Administrative Agent of such determination (which notice
the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in
the case of
clause (i)
above, LIBOR Term Loans and LIBOR Revolving Credit Loans (other than
the European-1 Tranche Term Loans, which shall automatically continue as LIBOR Loans with Interest
Periods of one month duration) shall no longer be available until such time as the Administrative
Agent notifies the applicable Borrower and the Lenders that the circumstances giving rise to such
notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to
give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice
of Conversion given by the applicable Borrower with respect to LIBOR Term Loans or LIBOR Revolving
Credit Loans that have not yet been incurred shall be deemed rescinded by the applicable Borrower,
(y) in the case of
clause (ii)
above, the applicable Borrower shall pay to such Lender,
promptly after receipt of written demand therefor such additional amounts (in the form of an
increased rate of, or a different method of calculating, interest or otherwise as such Lender in
its reasonable discretion shall determine) as shall be required to compensate such Lender for such
increased costs or reductions in amounts receivable hereunder (it being agreed that a written
notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis for
the calculation thereof, submitted to the applicable Borrower by such Lender shall, absent clearly
demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the
case of
subclause (iii)
above, the applicable Borrower shall take one of the actions
specified in
subclauses (A)
or
(B)
, as applicable, of
Section 2.10(b)
as
promptly as possible and, in any event, within the time period required by law.
(b) At any time that (A) any LIBOR Loan denominated in Dollars is affected by the
circumstances described in
Section 2.10(a)(ii)
or
(iii)
, the Parent Borrower may
(and in the case of a LIBOR Loan affected pursuant to
Section 2.10(a)(iii)
shall) either
(x) if the affected LIBOR Loan is then being made pursuant to a Borrowing, cancel such Borrowing by
giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the
same date that such Borrower was notified by a Lender pursuant to
Section 2.10(a)(ii)
or
(iii)
or (y) if the affected LIBOR Loan is then outstanding, upon at least three Business
Days notice to the Administrative Agent, require the affected Lender to convert each such LIBOR
Loan into an ABR Loan,
provided
that if more than one Lender is affected at any time, then
all affected Lenders must be treated in the same manner pursuant to this
Section 2.10(b)
,
or (B) any LIBOR Loan denominated
82
in an Alternative Currency is affected by the circumstances described in
Section
2.10(a)(ii)
or
(iii)
, the applicable Borrower may (and in the case of a LIBOR Loan
affected pursuant to
Section 2.10(a)(iii)
shall) either (x) prepay each such LIBOR Loan or
(y) keep such LIBOR Loan outstanding, in which case the LIBOR Rate with respect to such Loan shall
be deemed to be the rate reasonably determined by such Lender as the all-in-cost of funds to fund
such Loan with maturities comparable to the Interest Period applicable thereto.
(c) If, after the Closing Date, any Change in Law relating to capital adequacy of any
Lender or compliance by any Lender or its parent with any Change in Law relating to capital
adequacy occurring after the Closing Date, has or would have the effect of reducing the rate of
return on such Lenders or its parents or its Affiliates capital or assets as a consequence of
such Lenders commitments or obligations hereunder to a level below that which such Lender or its
parent or its Affiliate could have achieved but for such Change in Law (taking into consideration
such Lenders or its parents policies with respect to capital adequacy), then from time to time,
promptly after demand by such Lender (with a copy to the Administrative Agent), the applicable
Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender
or its parent for such reduction, it being understood and agreed, however, that a Lender shall not
be entitled to such compensation as a result of such Lenders compliance with, or pursuant to any
request or directive to comply with, any law, rule or regulation as in effect on the Closing Date.
Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to
this
Section 2.10(c)
, will give prompt written notice thereof to the applicable Borrower,
which notice shall set forth in reasonable detail the basis of the calculation of such additional
amounts, although the failure to give any such notice shall not, subject to
Section 2.13
,
release or diminish the applicable Borrowers obligations to pay additional amounts pursuant to
this
Section 2.10(c)
upon receipt of such notice.
(d) It is understood that this
Section 2.10
shall not apply to (i) Taxes
indemnifiable under
Section 5.4
, (ii) net income taxes and franchise and excise taxes
(imposed in lieu of net income taxes) imposed on any Agent or Lender and, to the extent not
duplicative, any Taxes imposed on any Agent or Lender where that Tax is imposed upon or calculated
by reference to the net income received or receivable (but not any sum deemed to be received or
receivable) by such Agent or Lender or (iii) Taxes included under
clause (b)
of the
definition of Excluded Taxes.
2.11.
Compensation
. If (a) any payment of principal of any LIBOR Loan is made by any
Borrower to or for the account of a Lender other than on the last day of the Interest Period for
such LIBOR Loan as a result of a payment or conversion pursuant to
Section 2.5
,
2.6
,
2.10
,
5.1
,
5.2
or
14.7
, as a result of acceleration of
the maturity of the Loans pursuant to
Section 11
or for any other reason, (b) any Borrowing
of LIBOR Loans is not made as a result of a withdrawn Notice of Borrowing, (c) any ABR Loan is not
converted into a LIBOR Loan as a result of a withdrawn Notice of Conversion or Continuation, (d)
any LIBOR Loan is not continued as a LIBOR Loan, as the case may be, as a result of a withdrawn
Notice of Conversion or Continuation or (e) any prepayment of principal of any LIBOR Loan is not
made as a result of a withdrawn notice of prepayment pursuant to
Section 5.1
or
5.2
, the applicable Borrower shall, after receipt of a written request by such Lender
(which request shall set forth in reasonable detail the basis for requesting such amount), pay to
the Administrative Agent for the account of such Lender any amounts required to compensate such
Lender for any additional losses, costs or
83
expenses that such Lender may reasonably incur as a result of such payment, failure to convert,
failure to continue or failure to prepay, including any loss, cost or expense (excluding loss of
anticipated profits) actually incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by any Lender to fund or maintain such LIBOR Loan.
2.12.
Change of Lending Office
. Each Lender agrees that, upon the occurrence of any event
giving rise to the operation of
Section 2.10(a)(ii)
,
2.10(a)(iii)
,
2.10(b)
,
3.5
or
5.4
with respect to such Lender, it will, if requested by the applicable
Borrower use reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event,
provided
that such
designation is made on such terms that such Lender and its lending office suffer no economic, legal
or regulatory disadvantage, with the object of avoiding the consequence of the event giving rise to
the operation of any such Section. Nothing in this
Section 2.12
shall affect or postpone
any of the obligations of the applicable Borrower or the right of any Lender provided in
Section 2.10
,
3.5
or
5.4
.
2.13.
Notice of Certain Costs
. Notwithstanding anything in this Agreement to the contrary,
to the extent any notice required by
Section 2.10
,
2.11
,
3.5
or
5.4
is given by any Lender more than 120 days after such Lender has knowledge (or should have had
knowledge) of the occurrence of the event giving rise to the additional cost, reduction in amounts,
loss, tax or other additional amounts described in such Sections, such Lender shall not be entitled
to compensation under
Section 2.10
,
2.11
,
3.5
or
5.4
, as the case
may be, for any such amounts incurred or accruing prior to the 121st day prior to the giving of
such notice to the applicable Borrower.
2.14.
Incremental Facilities
.
(a) At any time following the Restatement Effective Date, the Parent Borrower may by
written notice to Administrative Agent elect to request the establishment of one or more (x)
additional tranches of term loans (the commitments thereto, the
New Term Loan Commitments
) and/or
(y) increases in or replacement classes of Revolving Credit Commitments (the
New Revolving Credit
Commitments
and, together with the New Term Loan Commitments, the
New Loan Commitments
), by an
aggregate amount (which amount for purposes of this limitation shall be calculated exclusive of (A)
the amount any New Term Loan Commitments in respect of Refinancing Term Loans and Ratio First Lien
Indebtedness and (B) the amount of any Replacement Revolving Credit Commitments that were not
established in reliance on
subclause (a)(y)
of the proviso to
Section 2.14(b)(ii)
)
not in excess of (when taken together with the amount (the
Excess Amount
) by which the aggregate
amount, without duplication, of the ABL Facility and any Permitted Receivables Financing exceeds
$2,000,000,000 on the date such New Loan Commitments become effective) $1,500,000,000 in the
aggregate and not less than $100,000,000 individually (or such lesser amount as (x) may be approved
by the Administrative Agent or (y) shall constitute the difference between $1,500,000,000 and all
such New Loan Commitments (when taken together with the Excess Amount on the date such New Loan
Commitments become effective) obtained on or prior to such date). Each such notice shall specify
the date (each, an
Increased Amount Date
) on which the Parent Borrower proposes that the New Loan
Commitments shall be effective, which shall be a date not less than ten Business Days after the
date on which such notice is delivered to the Administrative Agent. The Parent Borrower may
approach any Lender or any Person (other than a natural person) to provide all or a portion of the
New Loan Commitments;
provided
that any Lender offered or approached to
84
provide all or a portion of the New Loan Commitments may elect or decline, in its sole
discretion, to provide a New Loan Commitment. In each case, such New Loan Commitments shall become
effective as of the applicable Increased Amount Date;
provided
that (i) no Default or Event
of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan
Commitments, as applicable; (ii) both before and after giving effect to the making of any Series of
New Term Loans or New Revolving Loans, each of the conditions set forth in
Section 7
shall
be satisfied; (iii) the Parent Borrower and its Restricted Subsidiaries shall be in Pro Forma
Compliance with the covenant set forth in
Section 10.8
as of the last day of the most
recently ended fiscal quarter after giving effect to such New Loan Commitments and any Investment
to be consummated in connection therewith; (iv) the New Loan Commitments shall be effected pursuant
to one or more Joinder Agreements executed and delivered by the Parent Borrower and Administrative
Agent, and each of which shall be recorded in the Register and shall be subject to the requirements
set forth in
Section 5.4(e)
and
(f)
; (v) the Parent Borrower shall make any
payments required pursuant to
Section 2.11
in connection with the New Loan Commitments, as
applicable; and (vi) the Parent Borrower shall deliver or cause to be delivered any legal opinions
or other documents reasonably requested by Administrative Agent in connection with any such
transaction. Any New Term Loans made on an Increased Amount Date shall be designated, a separate
series (a
Series
) of New Term Loans for all purposes of this Agreement. The Parent Borrower
shall give the Administrative Agent prompt written notice of any increase in the aggregate amount
committed in respect of the ABL Facility.
(b) (i) On any Increased Amount Date on which New Revolving Credit Commitments (other
than Replacement Revolving Credit Commitments) are effected, subject to the satisfaction of the
foregoing terms and conditions, (a) each of the Lenders with Revolving Credit Commitments shall
assign to each Lender with a New Revolving Credit Commitment (each, a
New Revolving Loan Lender
)
and each of the New Revolving Loan Lenders shall purchase from each of the Lenders with Revolving
Credit Commitments, at the principal amount thereof and in the applicable currencies, such
interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be
necessary in order that, after giving effect to all such assignments and purchases, the Revolving
Credit Loans will be held by existing Revolving Credit Lenders and New Revolving Loan Lenders
ratably in accordance with their Revolving Credit Commitments after giving effect to the addition
of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New
Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each
Loan made thereunder (a
New Revolving Loan
) shall be deemed, for all purposes, a Revolving Credit
Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving
Credit Commitment and all matters relating thereto.
(ii) At any time following the Restatement Effective Date, at the option of the Parent
Borrower and the New Lenders providing such New Revolving Credit Commitments, any New Revolving
Credit Commitments may be in the form of one or more separate classes of revolving credit
commitments (the
Replacement Revolving Credit Commitments
) which shall constitute a separate
Class of Commitments from the Revolving Credit Commitments (each such separate Class of Replacement
Revolving Credit Commitments, a
Replacement Revolving Credit Series
and each Loan thereunder, a
Replacement Revolving Credit Loan
) shall constitute a separate Class of Loans from the Revolving
Credit Loans (it being understood that Re-
85
placement Revolving Credit Commitments of a single Replacement Revolving Credit Series may be
established on more than one date);
provided
that:
(a) the aggregate principal amount of Replacement Revolving Credit Commitments in
effect at any time, when aggregated with the aggregate principal amount of Revolving Credit
Commitments at such time, shall not exceed the sum of (x) (A) $2,000,000,000 plus (B) the
amount of Replacement Revolving Credit Commitments previously established prior to such date
pursuant to the following
subclause (y)
plus (y) solely to the extent the applicable
Joinder Agreement provides that the Replacement Revolving Credit Commitments are being made
in reliance on this
subclause (y)
, the remainder if positive of (A) $1,500,000,000
minus (B) the Excess Amount on the date such Replacement Revolving Credit Commitments are
established minus (C) the aggregate amount of New Term Loan Commitments (excluding New Term
Loan Commitments for Refinancing Term Loans or Ratio First Lien Indebtedness) established on
or prior to such date minus (D) the aggregate amount of Replacement Revolving Credit
Commitments previously established in reliance on this
subclause (y)
;
(b) there shall be no more than three Classes, in the aggregate, of Revolving Credit
Commitments and Replacement Revolving Credit Commitments outstanding at any time;
(c) the terms of such Replacement Revolving Credit Commitments, except for the tenor of
the Replacement Revolving Credit Commitments (which shall have a scheduled expiration date
no earlier than the Revolving Credit Maturity Date), the size of any swingline loan and/or
letter of credit subfacilities under such Replacement Revolving Credit Commitments and the
applicable interest rates and Fees payable with respect to such Replacement Revolving Credit
Commitments (which shall be as specified in the applicable Joinder Agreement), shall be
substantially identical to the terms of the Revolving Credit Commitments or Replacement
Revolving Credit Commitments being replaced thereby (unless otherwise consented to by the
Administrative Agent); and
(d) in connection with the establishment of any Replacement Revolving Credit
Commitments that will include swingline loan and/or letter of credit subfacilities, any
amendment to this Agreement pursuant to
Section 2.14(e)
may include provisions
relating to swingline loans and/or letters of credit, as applicable, issued thereunder,
which issuances shall be on terms substantially identical (except for the overall size of
such subfacilities, which shall be specified in the applicable Joinder Agreement) to the
terms relating to Swingline Loans and Letters of Credit with respect to the Revolving Credit
Commitments or otherwise reasonably acceptable to the Administrative Agent and any
applicable swingline lender or letter of credit issuer thereunder.
(iii) On any Increased Amount Date on which Replacement Revolving Credit Commitments are
effected, subject to the satisfaction of the foregoing terms and conditions, (a) the Revolving
Credit Loans or Replacement Revolving Credit Loans, as applicable, of any existing Revolving Credit
Lender who is providing a new Replacement Revolving Credit Commitment on such date and whose
existing Revolving Credit Commitment or Replacement Revolving Credit Commitment, as applicable, is
being reduced on such date pursuant to
clause (a)
of the
86
first proviso to
Section 4.2
(or the corresponding provision in any Joinder Agreement
with respect to Replacement Revolving Credit Commitments) in connection therewith shall be
converted into Replacement Revolving Credit Loans under such Lenders new Replacement Revolving
Credit Commitment being provided on such date in the same ratio as (x) the amount of such Lenders
new Replacement Revolving Credit Commitment bears to (y) the aggregate amount of such Lenders
existing Revolving Credit Commitment or Replacement Revolving Credit Commitment of such Class prior
to any reduction of such Lenders Revolving Credit Commitment or Replacement Revolving Credit
Commitment pursuant to
clause (a)
of the first proviso to
Section 4.2
(or the
corresponding provision in any Joinder Agreement with respect to Replacement Revolving Credit
Commitments) in connection therewith and (b) each of the New Revolving Loan Lenders with
Replacement Revolving Credit Commitments of the applicable Class shall purchase from each of the
other Lenders with Replacement Revolving Credit Commitments of such Class, at the principal amount
thereof and in the applicable currencies, such interests in the Replacement Revolving Credit Loans
under such Class of Replacement Revolving Credit Commitments so converted or outstanding on such
Increased Amount Date as shall be necessary in order that, after giving effect to all such
assignments and purchases, the Replacement Revolving Credit Loans of such Class will be held by New
Revolving Loan Lenders with such Class of Replacement Revolving Credit Commitments ratably in
accordance with their respective Replacement Revolving Credit Commitments of such Class.
(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are
effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with
a New Term Loan Commitment (each, a
New Term Loan Lender
) of any Series shall make a Loan to the
Parent Borrower (a
New Term Loan
) in an amount equal to its New Term Loan Commitment of such
Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with
respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made
pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any
Series shall be, except as otherwise set forth herein or in the applicable Joinder Agreement,
identical to the existing Tranche B-1 Term Loans;
provided
that (i) the applicable New Term
Loan Maturity Date of each Series shall be no earlier than the Tranche B-1 Term Loan Maturity Date
and the mandatory prepayment and other payment rights of the New Term Loans and the existing
Tranche B-1 Term Loans (other than with respect to any Debt Incurrence Prepayment Event and any
scheduled amortization) shall be identical, (ii) the rate of interest and the amortization schedule
applicable to the New Term Loans of each Series, and the rights thereof (if any) to participate in
any Debt Incurrence Prepayment Event, shall be determined by the Parent Borrower and the applicable
new Lenders and set forth in the applicable Joinder Agreement; provided, that (x) the weighted
average life to maturity of all New Term Loans shall be no shorter than the weighted average life
to maturity of the Tranche B-1 Term Loans, (y) in no event shall any Series of New Term Loans be
entitled to participate in any Debt Incurrence Prepayment Event on a basis that would require a
greater proportionate repayment thereof from any such Debt Incurrence Prepayment Event than that
applicable to the Tranche A-1 Term Loans, Tranche B-1 Term Loans or European-1 Tranche Term Loans
(for so long as any of such Classes of Term Loans are outstanding) or that would result in the
proportionate repayment thereof from any such Debt Incurrence Prepayment Event, when added to the
proportionate repayments required with respect to all other Classes of Term Loans then outstanding,
exceeding
87
the amount of Net Cash Proceeds from such Debt Incurrence Prepayment Event and (z)
notwithstanding anything to the contrary in this Section 2.14 or otherwise, no Refinancing Term
Loans of any Series shall be prepaid from any Debt Incurrence Prepayment Event until all
outstanding Tranche A-1 Term Loans, Tranche B-1 Term Loans and European-1 Tranche Term Loans have
been repaid, (iii) all other terms applicable to the New Term Loans of each Series that differ from
the existing Tranche B-1 Term Loans shall be reasonably acceptable to the Administrative Agent (as
evidenced by its execution of the applicable Joinder Agreement) and (iv) the Joinder Agreement for
any New Term Loans may, but shall not be required to, impose additional requirements (not
inconsistent with the provisions of this Agreement in effect at such time) with respect to the
final maturity and weighted average life to maturity of New Term Loans incurred following the date
of the applicable Joinder Agreement. The terms and provisions of the New Revolving Loans and New
Revolving Credit Commitments shall be identical to the Revolving Credit Loans and the Revolving
Credit Commitments.
(e) Each Joinder Agreement may, without the consent of any other Lenders, effect such
amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in
the opinion of the Administrative Agent, to effect the provision of this
Section 2.14
. In
addition to any terms and provisions in any Joinder Agreement, and any changes or amendments to
this Agreement or any other Credit Document provided for therein, in each case, that are required
or contemplated by the foregoing provisions of this
Section 2.14
, notwithstanding anything
to the contrary in this
Section 2.14
and without limiting the generality or applicability
of the provisions of
Section 14.1
to any Section 2.14(e) Additional Amendments, any Joinder
Agreement may provide for additional terms and/or additional amendments to this Agreement and the
other Credit Documents (any such amendment a
Section 2.
14(e)
Additional Amendment
);
provided
that such Section 2.14(e) Additional Amendments do not become effective prior to
the time that such Section 2.14(e) Additional Amendments have been consented to (including, without
limitation, pursuant to (1) consents applicable to holders of New Term Loans and New Revolving
Credit Commitments provided for in any Joinder Agreement and (2) consents applicable to holders of
any Extended Term Loans provided for in any Extension Amendment) by such of the Lenders, Credit
Parties and other parties (if any) as may be required in order for such Section 2.14(e) Additional
Amendments to become effective at such time in accordance with
Section 14.1
. It is
understood and agreed that, each Lender that has consented to Amendment No. 3 hereby has consented,
and shall at the effective time thereof be deemed to consent to each amendment to this Agreement
and the other Credit Documents authorized by this
Section 2.14(e)
and the arrangements
described above in connection therewith except that the foregoing shall not constitute a consent on
behalf of any Lender to the terms of any Section 2.14(e) Additional Amendment.
(f) (i) The Borrowers may at any time and from time to time following the Restatement
Effective Date request that all or a portion of the Term Loans of any Class (an
Existing Class
)
be converted to extend the scheduled maturity date(s) of any payment of principal with respect to
all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so
converted,
Extended Term Loans
) and to provide for other terms consistent with this
Section
2.14(f)
. In order to establish any Extended Term Loans, the Borrowers shall provide a notice
to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the
applicable Existing Class) (an
Extension Request
) setting forth the proposed terms of the
Extended Term Loans to be established which shall be identical to the
88
Term Loans of the Existing Class from which they are to be converted except (x) all or any of
the scheduled amortization payments of principal of the Extended Term Loans may be delayed to later
dates than the scheduled amortization of principal of the Term Loans of such Existing Class (with
any such delay resulting in a corresponding adjustment to the scheduled amortization payments
reflected in
Section 2.5
or in the Joinder Agreement, as the case may be, with respect to
the Existing Class of Term Loans from which such Extended Term Loans were converted, in each case
as more particularly set forth in paragraph (iii) of this
Section 2.14(f)
below), (y) (A)
the interest margins with respect to the Extended Term Loans may be higher than the interest
margins for the Term Loans of such Existing Class and/or (B) additional fees may be payable to the
Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins
contemplated by the preceding
clause (A)
, in each case, to the extent provided in the
applicable Extension Amendment and (z) the mandatory prepayment rights of the Extended Term Loans
and such Existing Class with respect to any Debt Incurrence Prepayment Event may be different so
long as the proportion (if any) of the proceeds thereof to which such Extended Term Loans are
entitled is no greater than the proportion of such proceeds to which the Existing Class is entitled
for so long as such Existing Class is outstanding and such prepayment rights would not result in
the proportionate repayment thereof from any such Debt Incurrence Prepayment Event, when added to
the proportionate repayments required with respect to all other Classes of Term Loans then
outstanding, exceeding the amount of Net Cash Proceeds from such Debt Incurrence Prepayment Event);
provided
, that, notwithstanding anything to the contrary in this
Section 2.14
or
otherwise, (A) no Extended Term Loans of any Series shall be prepaid from any Debt Incurrence
Prepayment Event until all outstanding Tranche A-1 Term Loans, Tranche B-1 Term Loans and
European-1 Tranche Term Loans have been repaid and (B) no Extended Term Loans may be optionally
prepaid prior to the date on which the Existing Class of Term Loans from which they were converted
are repaid in full except in accordance with the last sentence of
Section 5.1(a)
. No Lender
shall have any obligation to agree to have any of its Term Loans of any Existing Class converted
into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any
Extension Series shall constitute a separate Class of Term Loans from the Existing Class of Term
Loans from which they were converted (except to the extent that the Extension Amendment relating
thereto provides that such Extended Term Loans shall constitute an increase in the Tranche B-3 Term
Loans (in the case of Extended Term Loans of the Parent Borrower only) or any previously
established Extension Series of the applicable Borrower, in which case each Repayment Amount
remaining for the Tranche B-3 Term Loans or the Extended Term Loans of the applicable Existing
Series shall be increased in proportion to the increase in the principal amount of such Class of
Term Loans resulting therefrom).
(ii) The Borrowers shall provide the applicable Extension Request at least three (3)
Business Days prior to the date on which Lenders under the Existing Class are requested to respond.
Any Lender (an
Extending Lender
) wishing to have all or a portion of its Term Loans of the
Existing Class subject to such Extension Request converted into Extended Term Loans shall notify
the Administrative Agent (an
Extension Election
) on or prior to the date specified in such
Extension Request of the amount of its Term Loans of the Existing Class which it has elected to
convert into Extended Term Loans. In the event that the aggregate amount of Term Loans of the
Existing Class subject to Extension Elections exceeds the amount of Extended Term Loans requested
pursuant to the Extension Request, Term Loans subject to Extension Elections shall be converted to
Extended Term Loans on a pro rata basis based on the amount of Term Loans included in each such
Extension Election.
89
(iii) Extended Term Loans shall be established pursuant to an amendment (an
Extension
Amendment
) to this Credit Agreement (which, except to the extent expressly contemplated by the
penultimate sentence of this
Section 2.14(f)(iii)
and notwithstanding anything to the
contrary set forth in
Section 14.1
, shall not require the consent of any Lender other than
the Extending Lenders with respect to the Extended Term Loans established thereby) executed by the
Loan Parties, the Administrative Agent and the Extending Lenders. In addition to any terms and
changes required or permitted by
Section 2.14(f)(i)
, each Extension Amendment (x) shall
amend the scheduled amortization payments pursuant to
Section 2.5
or the applicable Joinder
Agreement with respect to the Existing Class of Term Loans from which the Extended Term Loans were
converted to reduce each scheduled Repayment Amount for the Existing Class in the same proportion
as the amount of Term Loans of the Existing Class is to be reduced pursuant to such Extension
Amendment (it being understood that the amount of any Repayment Amount payable with respect to any
individual Term Loan of such Existing Class that is not an Extended Term Loan shall not be reduced
as a result thereof), (y) may, but shall not be required to, impose additional requirements (not
inconsistent with the provisions of this Agreement in effect at such time) with respect to the
final maturity and weighted average life to maturity of New Term Loans incurred following the date
of such Extension Amendment and (z) in the case of any Extension Amendment with respect to Extended
Term Loans of the European Subsidiary Borrower, provide such Extended Term Loans with the benefits
of the European Guarantee and European Security Documents on the same basis as the European-1
Tranche Term Loans. Notwithstanding anything to the contrary in this
Section 2.14(f)
and
without limiting the generality or applicability of
Section 14.1
to any Section 2.14(f)
Additional Amendments, any Extension Amendment may provide for additional terms and/or additional
amendments other than those referred to or contemplated above (any such additional amendment, a
Section 2.
14(f)
Additional Amendment
) to this Agreement and the other Credit Documents;
provided
that such Section 2.14(f) Additional Amendments do not become effective prior to
the time that such Section 2.14(f) Additional Amendments have been consented to (including, without
limitation, pursuant to (1) consents applicable to holders of New Term Loans and New Revolving
Credit Commitments provided for in any Joinder Agreement and (2) consents applicable to holders of
any Extended Term Loans provided for in any Extension Amendment) by such of the Lenders, Credit
Parties and other parties (if any) as may be required in order for such Section 2.14(f) Additional
Amendments to become effective in accordance with
Section 14.1
. It is understood and
agreed that, each Lender that has consented to Amendment No. 3 hereby has consented, and shall at
the effective time thereof be deemed to consent to each amendment to this Agreement and the other
Credit Documents authorized by this
Section 2.14(f)
and the arrangements described above in
connection therewith except that the foregoing shall not constitute a consent on behalf of any
Lender to the terms of any Section 2.14(f) Additional Amendment. In connection with any Extension
Amendment, the Parent Borrower shall deliver an opinion of counsel reasonably acceptable to the
Administrative Agent (i) as to the enforceability of such Extension Amendment, the Credit Agreement
as amended thereby, and such of the other Credit Documents (if any) as may be amended thereby (in
the case of such other Credit Documents as contemplated by the immediately preceding sentence) and
(ii) to the effect that such Extension Amendment, including without limitation, the Extended Term
Loans provided for therein, does not conflict with or violate the terms and provisions of
Section 14.1
of the Credit Agreement.
90
SECTION 3.
Letters of Credit
3.1.
Letters of Credit
.
(a) Subject to and upon the terms and conditions herein set forth, at any time and from time
to time prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the
agreements of the Revolving Credit Lenders set forth in this
Section 3
, to issue from time
to time from the Closing Date through the L/C Maturity Date upon the request of, and for the direct
or indirect benefit of, the Parent Borrower and the Restricted Subsidiaries, a letter of credit or
letters of credit (the
Letters of Credit
and each, a
Letter of Credit
) in such form as may be
approved by the Letter of Credit Issuer in its reasonable discretion;
provided
that the
Parent Borrower shall be a co-applicant, and jointly and severally liable with respect to, each
Letter of Credit issued for the account of a Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount
of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of
Credit Commitment then in effect; (ii) no Letter of Credit shall be issued the Stated Amount of
which would cause the aggregate amount of the Lenders Revolving Credit Exposures at the time of
the issuance thereof to exceed the Total Revolving Credit Commitment then in effect; (iii) no
Letter of Credit in an Alternative Currency shall be issued the Stated Amount of which would cause
the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the
Multicurrency Sublimit then in effect; (iv) each Letter of Credit, other than the UK Pension Letter
of Credit, shall have an expiration date occurring no later than one year after the date of
issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit
Issuer,
provided
that, except in the case of the UK Pension Letter of Credit, in no event
shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall
be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if
it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a
Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of
Credit Issuer after it has received a written notice from any Credit Party or any Lender stating
that a Default or Event of Default has occurred and is continuing until such time as the Letter of
Credit Issuer shall have received a written notice of (x) rescission of such notice from the party
or parties originally delivering such notice or (y) the waiver of such Default or Event of Default
in accordance with the provisions of
Section 14.1
.
(c) Upon at least one Business Days prior written notice (or telephonic notice promptly
confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which notice the
Administrative Agent shall promptly transmit to each of the applicable Lenders), the Parent
Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit
Commitment in whole or in part,
provided
that, after giving effect to such termination or
reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) The parties hereto agree that the Existing Letters of Credit shall be deemed to be Letters
of Credit for all purposes under this Agreement, without any further action by the Parent Borrower,
the Letter of Credit Issuer or any other Person.
91
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of
Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter
of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive
(whether or not having the force of law) from any Governmental Authority with jurisdiction
over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer
refrain from, the issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of
Credit any restriction, reserve or capital requirement (for which the Letter of Credit
Issuer is not otherwise compensated here-under) not in effect on the Closing Date, or shall
impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense which was not
applicable on the Closing Date and which the Letter of Credit Issuer in good faith deems
material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the
Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit
Issuer, such Letter of Credit is in an initial Stated Amount less than the Dollar Equivalent
of $100,000, in the case of a commercial Letter of Credit, or $10,000, in the case of a
standby Letter of Credit;
(iv) such Letter of Credit is to be denominated in a currency other than Dollars or an
Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested
Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the
Stated Amount after any drawing there-under; or
(vii) a default of any Revolving Credit Lenders obligations to fund under
Section
3.3
exists or any Revolving Credit Lender is at such time a
Defaulting Lender here-under,
unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements
with the Parent Borrower or such Revolving Credit Lender to eliminate the Letter of Credit
Issuers risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit
Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under
the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if
(A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of
Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit
does not accept the proposed amendment to such Letter of Credit.
92
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with
respect to any Letters of Credit issued by it and the documents associated therewith and the Letter
of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative
Agent in
Section 13
with respect to any acts taken or omissions suffered by the Letter of
Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and
Issuer Documents pertaining to such Letters of Credit as fully as if the term Administrative
Agent as used in
Section 13
included the Letter of Credit Issuer with respect to such acts
or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
3.2.
Letter of Credit Requests
.
(a) Whenever the Parent Borrower desires that a Letter of Credit be issued for its account or
amended, it shall give the Administrative Agent and the Letter of Credit Issuer a Letter of Credit
Request by no later than 11:00 a.m. (New York City time) at least two (or such lesser number as may
be agreed upon by the Administrative Agent and the Letter of Credit Issuer) Business Days prior to
the proposed date of issuance or amendment. Each notice shall be executed by the Parent Borrower
and shall be in the form of
Exhibit A
(each a
Letter of Credit Request
).
(b) In the case of a request for an initial issuance of a Letter of Credit, such Letter of
Credit Request shall specify in form and detail satisfactory to the Letter of Credit Issuer: (A)
the proposed issuance date of the requested Letter of Credit (which shall be a Business Day)); (B)
the Stated Amount thereof and the currency thereof (which shall be Dollars or an Alternative
Currency); (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E)
the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full
text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G)
in the case of the UK Pension Letter of Credit, a copy of the proposed form of such Letter of
Credit and (H) such other matters as the Letter of Credit Issuer may reasonably require. In the
case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit
Request shall specify in form and detail satisfactory to the Letter of Credit Issuer (A) the Letter
of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business
Day); (C) the nature of the proposed amendment; and (D) such other matters as the Letter of Credit
Issuer may reasonably require. Additionally, the Parent Borrower shall furnish to the Letter of
Credit Issuer and the Administrative Agent such other documents and information pertaining to such
requested Letter of Credit issuance or amendment, including any Issuer Documents, as the Letter of
Credit Issuer or the Administrative Agent may require.
(c) Promptly after receipt of any Letter of Credit Request, the Letter of Credit Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent
has received a copy of such Letter of Credit Request from the Parent Borrower and, if not, the
Letter of Credit Issuer will provide the Administrative Agent with a copy thereof. Unless the
Letter of Credit Issuer has received written notice from any Revolving Credit Lender, the
Administrative Agent or any Credit Party, at least one Business Day prior to the requested date of
issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions
contained in
Sections 6
and
7
shall not then be satisfied, then, subject to the
terms and conditions hereof, the Letter of Credit Issuer shall, on the requested date, issue a
Letter of Credit for the account of the Parent Borrower (or the applicable Restricted Subsidiary)
or enter into the
93
applicable amendment, as the case may be, in each case in accordance with the Letter of Credit
Issuers usual and customary business practices.
(d) If the Parent Borrower so requests in any applicable Letter of Credit Request, the Letter
of Credit Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that
has automatic extension provisions (each, an
Auto-Extension Letter of Credit
);
provided
that any such Auto-Extension Letter of Credit must permit the Letter of Credit Issuer to prevent
any such extension at least once in each twelve-month period (commencing with the date of issuance
of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day
(the
Non-Extension Notice Date
) in each such twelve-month period to be agreed upon at the time
such Letter of Credit is issued. Unless otherwise directed by the Letter of Credit Issuer, the
Parent Borrower shall not be required to make a specific request to the Letter of Credit Issuer for
any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be
deemed to have authorized (but may not require) the Letter of Credit Issuer to permit the extension
of such Letter of Credit at any time to an expiry date not later than the L/C Maturity Date;
provided
,
however
, that the Letter of Credit Issuer shall not permit any such
extension if (A) the Letter of Credit Issuer has determined that it would not be permitted, or
would have no obligation, at such time to issue such Letter of Credit in its revised form (as
extended) under the terms hereof (by reason of the provisions of
clause (b)
or
(e)
of
Section 3.1
or otherwise), or (B) it has received notice (which may be by telephone or
in writing) on or before the day that is five Business Days before the Non-Extension Notice Date
(1) from the Administrative Agent that the Required Revolving Credit Lenders have elected not to
permit such extension or (2) from the Administrative Agent, any Lender or the Parent Borrower that
one or more of the applicable conditions specified in
Sections 6
and
7
are not then
satisfied, and in each such case directing the Letter of Credit Issuer not to permit such
extension.
(e) If the Parent Borrower so requests in any applicable Letter of Credit Request, the Letter
of Credit Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that
permits the automatic reinstatement of all or a portion of the stated amount thereof after any
drawing thereunder (each, an
Auto-Reinstatement Letter of Credit
). Unless otherwise directed by
the Letter of Credit Issuer, the Parent Borrower shall not be required to make a specific request
to the Letter of Credit Issuer to permit such reinstatement. Once an Auto-Reinstatement Letter of
Credit has been issued, except as provided in the following sentence, the Lenders shall be deemed
to have authorized (but may not require) the Letter of Credit Issuer to reinstate all or a portion
of the stated amount thereof in accordance with the provisions of such Letter of Credit.
Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit permits the Letter of
Credit Issuer to decline to reinstate all or any portion of the stated amount thereof after a
drawing thereunder by giving notice of such non-reinstatement within a specified number of days
after such drawing (the
Non-Reinstatement Deadline
), the Letter of Credit Issuer shall not permit
such reinstatement if it has received a notice (which may be by telephone or in writing) on or
before the day that is five Business Days before the Non-Reinstatement Deadline (A) from the
Administrative Agent that the Required Revolving Credit Lenders have elected not to permit such
reinstatement or (B) from the Administrative Agent, any Lender or the Parent Borrower that one or
more of the applicable conditions specified in
Sections 6
and
7
are not then
satisfied (treating such reinstatement as the issuance of a Letter of Credit for purposes of this
clause) and, in each case, directing the Letter of Credit Issuer not to permit such reinstatement.
94
(f) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit
(including any Existing Letter of Credit) to an advising bank with respect thereto or to the
beneficiary thereof, the Letter of Credit Issuer will also deliver to the Parent Borrower and the
Administrative Agent a true and complete copy of such Letter of Credit or amendment. On the last
Business Day of each March, June, September and December, each Letter of Credit Issuer shall
provide the Administrative Agent a list of all Letters of Credit (including any Existing Letter of
Credit) issued by it that are outstanding at such time.
(g) The making of each Letter of Credit Request shall be deemed to be a representation and
warranty by the Parent Borrower that the Letter of Credit may be issued in accordance with, and
will not violate the requirements of,
Section 3.1(b)
.
3.3.
Letter of Credit Participations
.
(a) Immediately upon the issuance by the Letter of Credit Issuer of any Letter of Credit, the
Letter of Credit Issuer shall be deemed to have sold and transferred to each Revolving Credit
Lender (each such Revolving Credit Lender, in its capacity under this
Section 3.3
, an
L/C
Participant
), and each such L/C Participant shall be deemed irrevocably and unconditionally to
have purchased and received from the Letter of Credit Issuer, without recourse or warranty, an
undivided interest and participation (each an
L/C Participation
), to the extent of such L/C
Participants Revolving Credit Commitment Percentage in each Letter of Credit, each substitute
therefor, each drawing made thereunder and the obligations of the Parent Borrower under this
Agreement with respect thereto, and any security therefor or guaranty pertaining thereto;
provided
that the Letter of Credit Fees will be paid directly to the Administrative Agent
for the ratable account of the L/C Participants as provided in
Section 4.1(b)
and the L/C
Participants shall have no right to receive any portion of any Fronting Fees.
(b) In determining whether to pay under any Letter of Credit, the Letter of Credit Issuer
shall have no obligation relative to the L/C Participants other than to confirm that any documents
required to be delivered under such Letter of Credit have been delivered and that they appear to
comply on their face with the requirements of such Letter of Credit. Any action taken or omitted
to be taken by the relevant Letter of Credit Issuer under or in connection with any Letter of
Credit issued by it, if taken or omitted in the absence of gross negligence or willful misconduct,
shall not create for the Letter of Credit Issuer any resulting liability.
(c) In the event that the Letter of Credit Issuer makes any payment under any Letter of Credit
issued by it and the Parent Borrower shall not have repaid such amount in full to the respective
Letter of Credit Issuer pursuant to
Section 3.4(a)
, the Letter of Credit Issuer shall
promptly notify the Administrative Agent and each L/C Participant of such failure, and each L/C
Participant shall promptly and unconditionally pay to the Administrative Agent for the account of
the Letter of Credit Issuer, the amount of such L/C Participants Revolving Credit Commitment
Percentage of the Dollar Equivalent of such unreimbursed payment in Dollars and in immediately
available funds;
provided
,
however
, that no L/C Participant shall be obligated to
pay to the Administrative Agent for the account of the Letter of Credit Issuer its Revolving Credit
Commitment Percentage of such unreimbursed amount arising from any wrongful payment made by the
Letter of Credit Issuer under any such Letter of Credit as a result of acts or omissions
constituting willful misconduct or gross negligence on the part of the Letter of Credit Issuer. If
the
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Letter of Credit Issuer so notifies, prior to 11:00 a.m. (New York City time) on any Business
Day, any L/C Participant required to fund a payment under a Letter of Credit, such L/C Participant
shall make available to the Administrative Agent for the account of the Letter of Credit Issuer
such L/C Participants Revolving Credit Commitment Percentage of the amount of such payment no
later than 1:00 p.m. (New York City time) on such Business Day in Dollars and in immediately
available funds. If and to the extent such L/C Participant shall not have so made its Revolving
Credit Commitment Percentage of the amount of such payment available to the Administrative Agent
for the account of the Letter of Credit Issuer, such L/C Participant agrees to pay to the
Administrative Agent for the account of the Letter of Credit Issuer, forthwith on demand, such
amount, together with interest thereon for each day from such date until the date such amount is
paid to the Administrative Agent for the account of the Letter of Credit Issuer at a rate per annum
equal to the Overnight Rate from time to time then in effect, plus any administrative, processing
or similar fees customarily charged by the Letter of Credit Issuer in connection with the
foregoing. The failure of any L/C Participant to make available to the Administrative Agent for
the account of the Letter of Credit Issuer its Revolving Credit Commitment Percentage of any
payment under any Letter of Credit shall not relieve any other L/C Participant of its obligation
hereunder to make available to the Administrative Agent for the account of the Letter of Credit
Issuer its Revolving Credit Commitment Percentage of any payment under such Letter of Credit on the
date required, as specified above, but no L/C Participant shall be responsible for the failure of
any other L/C Participant to make available to the Administrative Agent such other L/C
Participants Revolving Credit Commitment Percentage of any such payment.
(d) Whenever the Letter of Credit Issuer receives a payment in respect of an unpaid
reimbursement obligation as to which the Administrative Agent has received for the account of the
Letter of Credit Issuer any payments from the L/C Participants pursuant to
clause (c)
above, the Letter of Credit Issuer shall pay to the Administrative Agent and the Administrative
Agent shall promptly pay to each L/C Participant that has paid its Revolving Credit Commitment
Percentage of such reimbursement obligation, in Dollars and in immediately available funds, an
amount equal to such L/C Participants share (based upon the proportionate aggregate amount
originally funded by such L/C Participant to the aggregate amount funded by all L/C Participants)
of the Dollar Equivalent of the amount so paid in respect of such reimbursement obligation and
interest thereon accruing after the purchase of the respective L/C Participations at the Overnight
Rate.
(e) The obligations of the L/C Participants to make payments to the Administrative Agent for
the account of a Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and
not subject to counterclaim, set-off or other defense or any other qualification or exception
whatsoever and shall be made in accordance with the terms and conditions of this Agreement under
all circumstances, including under any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit
Documents;
(ii) the existence of any claim, set-off, defense or other right that the Parent
Borrower may have at any time against a beneficiary named in a Letter of Credit, any
transferee of any Letter of Credit (or any Person for whom any such transferee may be
acting), the Administrative Agent, the Letter of Credit Issuer, any Lender or other Person,
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whether in connection with this Agreement, any Letter of Credit, the transactions
contemplated herein or any unrelated transactions (including any underlying transaction
between the Parent Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of
any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default;
provided
,
however
, that no L/C Participant shall be obligated to pay to the
Administrative Agent for the account of the Letter of Credit Issuer its Revolving Credit Commitment
Percentage of any unreimbursed amount arising from any wrongful payment made by the Letter of
Credit Issuer under any such Letter of Credit as a result of acts or omissions constituting willful
misconduct or gross negligence on the part of the Letter of Credit Issuer.
3.4.
Agreement to Repay Letter of Credit Drawings
.
(a) The Parent Borrower hereby agrees to reimburse the Letter of Credit Issuer, by making
payment in with respect to any drawing under any Letter of Credit in the same currency in which
such drawing was made unless (A) the Letter of Credit Issuer (at its option) shall have specified
in the notice of drawing that it will require reimbursement in Dollars, or (B) in the absence of
any such requirement for reimbursement in Dollars, the Parent Borrower shall have notified the
Letter of Credit Issuer promptly following receipt of the notice of drawing that the Parent
Borrower will reimburse the Letter of Credit Issuer in Dollars. In the case of any reimbursement
in Dollars of a drawing of a Letter of Credit denominated in an Alternative Currency, the Letter of
Credit Issuer shall notify the Parent Borrower of the Dollar Equivalent of the amount of the
drawing promptly following the determination thereof. Any such reimbursement shall be made by the
Parent Borrower to the Administrative Agent in immediately available funds for any payment or
disbursement made by the Letter of Credit Issuer under any Letter of Credit (each such amount so
paid until reimbursed, an
Unpaid Drawing
) no later than the date that is one Business Day after
the date on which the Parent Borrower receives notice of such payment or disbursement (the
Reimbursement Date
), with interest on the amount so paid or disbursed by the Letter of Credit
Issuer, to the extent not reimbursed prior to 5:00 p.m. (New York City time) on the Reimbursement
Date, from the Reimbursement Date to the date the Letter of Credit Issuer is reimbursed therefor at
a rate
per annum
that shall at all times be the Applicable ABR Margin plus the ABR as in effect
from time to time,
provided
that, notwithstanding anything contained in this Agreement to
the contrary, (i) unless the Parent Borrower shall have notified the Administrative Agent and the
relevant Letter of Credit Issuer prior to 12:00 noon (New York City time) on the Reimbursement Date
that the Parent Borrower intends to reimburse the relevant Letter of Credit Issuer for the amount
of such drawing with funds other than the proceeds of Loans, the Parent Borrower shall be deemed to
have given a Notice of Borrowing requesting that, with respect to Letters of Credit, the Revolving
Credit Lenders make Revolving Credit Loans (which shall be denominated in Dollars and which shall
be ABR Loans) on the Reimbursement
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Date in the amount, or Dollar Equivalent of the amount, as applicable, of such
drawing and (ii) the Administrative Agent shall promptly notify each L/C Participant of such
drawing and the amount of its Revolving Credit Loan to be made in respect thereof, and each L/C
Participant shall be irrevocably obligated to make a Revolving Credit Loan to the Parent Borrower
in Dollars in the manner deemed to have been requested in the amount of its Revolving Credit
Commitment Percentage of the applicable Unpaid Drawing by 2:00 p.m. (New York City time) on such
Reimbursement Date by making the amount of such Revolving Credit Loan available to the
Administrative Agent. Such Revolving Credit Loans shall be made without regard to the Minimum
Borrowing Amount. The Administrative Agent shall use the proceeds of such Revolving Credit Loans
solely for purpose of reimbursing the Letter of Credit Issuer for the related Unpaid Drawing. In
the event that the Parent Borrower fails to Cash Collateralize any Letter of Credit (including,
without limitation, the UK Pension Letter of Credit) that is outstanding on the L/C Maturity Date,
the full amount of the Letters of Credit Outstanding in respect of such Letter of Credit shall be
deemed to be an Unpaid Drawing subject to the provisions of this
Section 3.4
except that
the Letter of Credit Issuer shall hold the proceeds received from the L/C Participants as
contemplated above as cash collateral for such Letter of Credit to reimburse any Drawing under such
Letter of Credit and shall use such proceeds first, to reimburse itself for any Drawings made in
respect of such Letter of Credit following the L/C Maturity Date, second, to the extent such Letter
of Credit expires or is returned undrawn while any such cash collateral remains, to the repayment
of obligations in respect of any Revolving Credit Loans that have not paid at such time and third,
to the Parent Borrower or as otherwise directed by a court of competent jurisdiction. Nothing in
this
Section 3.4(a)
shall affect the Parent Borrowers obligation to repay all outstanding
Revolving Credit Loans when due in accordance with the terms of this Agreement.
(b) The obligations of the Parent Borrower under this
Section 3.4
to reimburse the
Letter of Credit Issuer with respect to Unpaid Drawings (including, in each case, interest thereon)
shall be absolute and unconditional under any and all circumstances and irrespective of any
set-off, counterclaim or defense to payment that the Parent Borrower or any other Person may have
or have had against the Letter of Credit Issuer, the Administrative Agent or any Lender (including
in its capacity as an L/C Participant), including any defense based upon the failure of any drawing
under a Letter of Credit (each a
Drawing
) to conform to the terms of the Letter of Credit or any
non-application or misapplication by the beneficiary of the proceeds of such Drawing and without
regard to any adverse change in the relevant exchange rates or in the availability of the
Alternative Currency to the Parent Borrower or in the relevant currency markets generally,
provided
that the Parent Borrower shall not be obligated to reimburse the Letter of Credit
Issuer for any wrongful payment made by the Letter of Credit Issuer under the Letter of Credit
issued by it as a result of acts or omissions constituting willful misconduct or gross negligence
on the part of the Letter of Credit Issuer.
3.5.
Increased Costs
. If after the Closing Date, the adoption of any applicable law, rule
or regulation, or any change therein, or any change in the interpretation or administration thereof
by any Governmental Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or actual compliance by the Letter of Credit Issuer or any L/C Participant
with any request or directive made or adopted after the Closing Date (whether or not having the
force of law), by any such authority, central bank or comparable agency shall either (a) impose,
modify or make applicable any reserve, deposit, capital adequacy or similar requirement against
letters of credit issued by the Letter of Credit Issuer, or any L/C
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Participants L/C Participation therein, or (b) impose on the Letter of Credit Issuer or any
L/C Participant any other conditions affecting its obligations under this Agreement in respect of
Letters of Credit or L/C Participations therein or any Letter of Credit or such L/C Participants
L/C Participation therein, and the result of any of the foregoing is to increase the cost to the
Letter of Credit Issuer or such L/C Participant of issuing, maintaining or participating in any
Letter of Credit, or to reduce the amount of any sum received or receivable by the Letter of Credit
Issuer or such L/C Participant hereunder (other than any such increase or reduction attributable to
(i) taxes indemnified under
Section 5.4
, (ii) net income taxes and franchise and excise
taxes (imposed in lieu of net income taxes) imposed on any Agent or Lender and, to the extent not
duplicative, any Taxes imposed on any Agent or Lender where that Tax is imposed upon or calculated
by reference to the net income received or receivable (but not any sum deemed to be received or
receivable) by such Agent or Lender or (iii) Taxes included under
clause (b)
of the
definition of Excluded Taxes) in respect of Letters of Credit or L/C Participations therein, then,
promptly after receipt of written demand to the Parent Borrower by the Letter of Credit Issuer or
such L/C Participant, as the case may be (a copy of which notice shall be sent by the Letter of
Credit Issuer or such L/C Participant to the Administrative Agent (with respect to Letter of Credit
issued on account of the Parent Borrower)), the Parent Borrower shall pay to the Letter of Credit
Issuer or such L/C Participant such additional amount or amounts as will compensate the Letter of
Credit Issuer or such L/C Participant for such increased cost or reduction, it being understood and
agreed, however, that the Letter of Credit Issuer or an L/C Participant shall not be entitled to
such compensation as a result of such Persons compliance with, or pursuant to any request or
directive to comply with, any such law, rule or regulation as in effect on the Closing Date. A
certificate submitted to the Parent Borrower by the relevant Letter of Credit Issuer or an L/C
Participant, as the case may be (a copy of which certificate shall be sent by the Letter of Credit
Issuer or such L/C Participant to the Administrative Agent), setting forth in reasonable detail the
basis for the determination of such additional amount or amounts necessary to compensate the Letter
of Credit Issuer or such L/C Participant as aforesaid shall be conclusive and binding on the Parent
Borrower absent clearly demonstrable error.
3.6.
New or Successor Letter of Credit Issuer
.
(a) The Letter of Credit Issuer may resign as a Letter of Credit Issuer upon 60 days prior
written notice to the Administrative Agent, the Lenders and the Parent Borrower. The Parent
Borrower may replace the Letter of Credit Issuer for any reason upon written notice to the
Administrative Agent and the Letter of Credit Issuer. The Parent Borrower may add Letter of Credit
Issuers at any time upon notice to the Administrative Agent. If the Letter of Credit Issuer shall
resign or be replaced, or if the Parent Borrower shall decide to add a new Letter of Credit Issuer
under this Agreement, then the Parent Borrower may appoint from among the Lenders a successor
issuer of Letters of Credit or a new Letter of Credit Issuer, as the case may be, or, with the
consent of the Administrative Agent (such consent not to be unreasonably withheld), another
successor or new issuer of Letters of Credit, whereupon such successor issuer shall succeed to the
rights, powers and duties of the replaced or resigning Letter of Credit Issuer under this Agreement
and the other Credit Documents, or such new issuer of Letters of Credit shall be granted the
rights, powers and duties of a Letter of Credit Issuer hereunder, and the term Letter of Credit
Issuer shall mean such successor or such new issuer of Letters of Credit effective upon such
appointment. At the time such resignation or replacement shall become effective, the Parent
Borrower shall pay to the resigning or replaced Letter of Credit Issuer all accrued and unpaid
99
fees pursuant to
Sections 4.1(c)
and
4.1(d)
. The acceptance of any
appointment as a Letter of Credit Issuer hereunder whether as a successor issuer or new issuer of
Letters of Credit in accordance with this Agreement, shall be evidenced by an agreement entered
into by such new or successor issuer of Letters of Credit, in a form satisfactory to the Parent
Borrower and the Administrative Agent and, from and after the effective date of such agreement,
such new or successor issuer of Letters of Credit shall become a Letter of Credit Issuer
hereunder. After the resignation or replacement of a Letter of Credit Issuer hereunder, the
resigning or replaced Letter of Credit Issuer shall remain a party hereto and shall continue to
have all the rights and obligations of a Letter of Credit Issuer under this Agreement and the other
Credit Documents with respect to Letters of Credit issued by it prior to such resignation or
replacement, but shall not be required to issue additional Letters of Credit. In connection with
any resignation or replacement pursuant to this
clause (a)
(but, in case of any such
resignation, only to the extent that a successor issuer of Letters of Credit shall have been
appointed), either (i) the Parent Borrower, the resigning or replaced Letter of Credit Issuer and
the successor issuer of Letters of Credit shall arrange to have any outstanding Letters of Credit
issued by the resigning or replaced Letter of Credit Issuer replaced with Letters of Credit issued
by the successor issuer of Letters of Credit or (ii) the Parent Borrower shall cause the successor
issuer of Letters of Credit, if such successor issuer is reasonably satisfactory to the replaced or
resigning Letter of Credit Issuer, to issue back-stop Letters of Credit naming the resigning or
replaced Letter of Credit Issuer as beneficiary for each outstanding Letter of Credit issued by the
resigning or replaced Letter of Credit Issuer, which new Letters of Credit shall be denominated in
the same currency as, and shall have a face amount equal to, the Letters of Credit being
back-stopped and the sole requirement for drawing on such new Letters of Credit shall be a drawing
on the corresponding back-stopped Letters of Credit. After any resigning or replaced Letter of
Credit Issuers resignation or replacement as Letter of Credit Issuer, the provisions of this
Agreement relating to a Letter of Credit Issuer shall inure to its benefit as to any actions taken
or omitted to be taken by it (A) while it was a Letter of Credit Issuer under this Agreement or (B)
at any time with respect to Letters of Credit issued by such Letter of Credit Issuer.
(b) To the extent that there are, at the time of any resignation or replacement as set forth
in
clause (a)
above, any outstanding Letters of Credit, nothing herein shall be deemed to
impact or impair any rights and obligations of any of the parties hereto with respect to such
outstanding Letters of Credit (including, without limitation, any obligations related to the
payment of Fees or the reimbursement or funding of amounts drawn), except that the Parent Borrower,
the resigning or replaced Letter of Credit Issuer and the successor issuer of Letters of Credit
shall have the obligations regarding outstanding Letters of Credit described in
clause (a)
above.
3.7.
Role of Letter of Credit Issuer
. Each Lender and the Parent Borrower agree that, in
paying any drawing under a Letter of Credit, the Letter of Credit Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates and documents
expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or
accuracy of any such document or the authority of the Person executing or delivering any such
document. None of the Letter of Credit Issuer, the Administrative Agent, any of their respective
affiliates nor any correspondent, participant or assignee of the Letter of Credit Issuer shall be
liable to any Lender for (i) any action taken or omitted in connection herewith at the request or
with the approval of the Required Revolving Credit Lenders; (ii) any action taken or omitted in
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the absence of gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related to any Letter of
Credit or Issuer Document. The Parent Borrower hereby assumes all risks of the acts or omissions
of any beneficiary or transferee with respect to its use of any Letter of Credit;
provided
that this assumption is not intended to, and shall not, preclude the Parent Borrowers pursuing
such rights and remedies as it may have against the beneficiary or transferee at law or under any
other agreement. None of the Letter of Credit Issuer, the Administrative Agent, any of their
respective affiliates nor any correspondent, participant or assignee of the Letter of Credit Issuer
shall be liable or responsible for any of the matters described in
Section 3.3(e)
;
provided
that anything in such Section to the contrary notwithstanding, the Parent Borrower
may have a claim against the Letter of Credit Issuer, and the Letter of Credit Issuer may be liable
to the Parent Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Parent Borrower which the Parent Borrower
proves were caused by the Letter of Credit Issuers willful misconduct or gross negligence or the
Letter of Credit Issuers willful failure to pay under any Letter of Credit after the presentation
to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and
conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, the
Letter of Credit Issuer may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or information to the contrary,
and the Letter of Credit Issuer shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the
rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
3.8.
Cash Collateral
.
(a) Upon the request of the Administrative Agent, (A) if the Letter of Credit Issuer has
honored any full or partial drawing request under any Letter of Credit and such drawing has
resulted in an L/C Borrowing, or (B) if, as of the L/C Maturity Date, there are any Letters of
Credit Outstanding (including Letters of Credit Outstanding with respect to the UK Pension Letter
of Credit), the Parent Borrower shall, in each case, immediately Cash Collateralize the then
Letters of Credit Outstanding.
(b) The Administrative Agent may, at any time and from time to time after the initial deposit
of Cash Collateral, request that additional Cash Collateral be provided in order to protect against
the results of exchange rate fluctuations.
(c) If any Event of Default shall occur and be continuing, the Administrative Agent or
Revolving Credit Lenders with Letter of Credit Exposure representing greater than 50% of the total
Letter of Credit Exposure may require that the L/C Obligations be Cash Collateralized.
(d) For purposes of this
Section 3.8
,
Cash Collateralize
means to pledge and deposit
with or deliver to the Administrative Agent, for the benefit of the Letter of Credit Issuer and the
Lenders, as collateral for the L/C Obligations, cash or deposit account balances in the currencies
in which the Letters of Credit Outstanding are denominated and in an amount equal to the amount of
the Letters of Credit Outstanding required to be Cash Collateralized pursuant to documentation in
form and substance satisfactory to the Administrative Agent and the
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Letter of Credit Issuer (which documents are hereby consented to by the Lenders). Derivatives
of such term have corresponding meanings. The Parent Borrower hereby grants to the Administrative
Agent, for the benefit of the Letter of Credit Issuer and the L/C Participants, a security interest
in all such cash, deposit accounts and all balances therein and all proceeds of the foregoing.
Cash Collateral shall be maintained in blocked, non-interest bearing deposit accounts with the
Administrative Agent.
3.9.
Applicability of ISP and UCP
. Unless otherwise expressly agreed by the L/C Issuer and
the Parent Borrower when a Letter of Credit is issued (including any such agreement applicable to
an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of
Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most
recently published by the International Chamber of Commerce at the time of issuance, shall apply to
each commercial Letter of Credit.
3.10.
Conflict with Issuer Documents
. In the event of any conflict between the terms hereof
and the terms of any Issuer Document, the terms hereof shall control.
3.11.
Letters of Credit Issued for Restricted Subsidiaries
. Notwithstanding that a Letter
of Credit issued or outstanding hereunder is in support of any obligations of, or is for the
account of, a Restricted Subsidiary, the Parent Borrower shall be obligated to reimburse the Letter
of Credit Issuer hereunder for any and all drawings under such Letter of Credit. The Parent
Borrower hereby acknowledges that the issuance of Letters of Credit for the account of Restricted
Subsidiaries inures to the benefit of the Parent Borrower, and that the Parent Borrowers business
derives substantial benefits from the businesses of such Restricted Subsidiaries.
SECTION 4.
Fees; Commitments
4.1.
Fees
.
(a) The Parent Borrower agrees to pay to the Administrative Agent in Dollars, for the account
of each Revolving Credit Lender (in each case
pro rata
according to the respective Revolving Credit
Commitments of all such Lenders), a commitment fee (the
Commitment Fee
) for each day from the
most recent date such fees were paid under the Original Credit Agreement (or if such fees have not
been paid under the Original Credit Agreement, from the most recent date fees have been paid with
respect to such Revolving Credit Commitments became effective) to the Revolving Credit Termination
Date. Except as provided below, each Commitment Fee shall be payable (x) quarterly in arrears on
the last Business Day of each March, June, September and December (for the three-month period (or
portion thereof) ended on such day for which no payment has been received) and (y) on the Revolving
Credit Termination Date (for the period ended on such date for which no payment has been received
pursuant to
clause (x)
above), and shall be computed for each day during such period at a
rate
per annum
equal to the Commitment Fee Rate in effect on such day on the Available Commitment
in effect on such day. Notwithstanding the foregoing, with respect to any Applicable Quarter, on
any date during such Applicable Quarter (I) that is prior to the date on which Section 9.1
Financials are due with respect to the fiscal quarter immediately preceding such Applicable Quarter
and (II) on which any Commitment Fee is payable on any Available Commitment pursuant to this
subclause (a)
(other than pursuant to
subclause (y)
above) in respect of any period
included in such Applicable
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Quarter, the amount of such Commitment Fee required to be paid on such date in respect
of such Available Commitment and such period (as to any Available Commitment, a
Commitment Fee
Payment
) shall be reduced by an amount equal to the Reserve Amount with respect to such Commitment
Fee for such period;
provided
that, if the amount of any Commitment Fee Payment on any
Available Commitment shall have been reduced during any Applicable Quarter pursuant to the
foregoing provisions, then, on the date (the
Commitment Fee Gross-Up Date
) that is the earlier of
(x) the Applicable Date in respect of such Applicable Quarter and (y) the date on which all
Revolving Credit Commitments have been terminated in full, the Parent Borrower shall pay an
additional commitment fee on such Available Commitment in an amount equal to the aggregate of the
Reserve Amounts for such Available Commitment so deducted during such Applicable Quarter unless:
(1) the Parent Borrower shall have delivered, at least four Business Days prior to such
Commitment Fee Gross-Up Date, Section 9.1 Financials for the fiscal quarter immediately
preceding such Applicable Quarter and
(2) either:
(A) such Section 9.1 Financials reveal a change in Status that results in a
decrease in the Commitment Fee Rate, in which case, no payment of any such Reserve
Amounts for such Available Commitment shall be required; or
(B) such Section 9.1 Financials reveal a change in Status that results in an
increase in the Commitment Fee Rate, in which case, the Parent Borrower shall pay
the aggregate of the Reserve Amounts for such Available Commitment for such period
as provided above, and shall also pay an additional commitment fee in respect of
such Available Commitment on such Commitment Fee Gross-Up Date in an amount equal to
the amount (if any) by which (I) the sum of (x) the aggregate amount of all
Commitment Fees actually paid during such Applicable Quarter in respect of such
Available Commitment for any period included therein
plus
(y) the aggregate
of the Reserve Amounts for such Available Commitment for such Applicable Quarter is
less than (II) the aggregate amount of Commitment Fees that would have been payable
on such Available Commitment during such Applicable Quarter in respect of any period
included therein if such change of Status had taken effect on the first day of such
Applicable Quarter.
(b) The Parent Borrower agrees to pay to the Administrative Agent in Dollars for the account
of the Revolving Credit Lenders
pro rata
on the basis of their respective Letter of Credit
Exposure, a fee in respect of each Letter of Credit (the
Letter of Credit Fee
), for the period
from the date of issuance of such Letter of Credit (or the most recent date from which such fee was
paid under the Original Credit Agreement) to the termination date of such Letter of Credit computed
at the
per annum
rate for each day equal to the Applicable LIBOR Margin for Revolving Credit Loans
minus 0.125%
per annum
on the average daily Stated Amount of such Letter of Credit
(
provided
that in no event shall the payment of Letter of Credit Fees in excess of the
amounts payable pursuant to the last two sentences of this
subclause (b)
be required).
Except as provided below, such Letter of Credit Fees shall be due and payable (x) quarterly in
arrears on the last Business Day of each March, June, September and December and (y) on the date
upon
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which the Total Revolving Credit Commitment terminates and the Letters of Credit Outstanding
shall have been reduced to zero. Notwithstanding the foregoing, with respect to any Applicable
Quarter, on any date during such Applicable Quarter (I) that is prior to the date on which Section
9.1 Financials are due with respect to the fiscal quarter immediately preceding such Applicable
Quarter and (II) on which any Letter of Credit Fee is payable on any Letter of Credit pursuant to
this
subclause (b)
(other than pursuant to
subclause (y)
above) in respect of any
period included in such Applicable Quarter, the amount of such Letter of Credit Fee required to be
paid on such date in respect of such Letter of Credit for such period (as to any Letter of Credit,
an
L/C Fee Payment
) shall be reduced by an amount equal to the Reserve Amount with respect to
such Letter of Credit Fee for such period;
provided
that, if the amount of any L/C Fee
Payment on any Letter of Credit shall have been reduced during any Applicable Quarter pursuant to
the foregoing provisions, then, on the date (the
L/C Fee Gross-Up Date
) that is the earlier of
(x) the Applicable Date in respect of such Applicable Quarter and (y) the Revolving Credit
Termination Date, the Parent Borrower shall pay an additional letter of credit fee on such Letter
of Credit in an amount equal to the aggregate of the Reserve Amounts for such Letter of Credit so
deducted during such Applicable Quarter unless:
(1) the Parent Borrower shall have delivered, at least four Business Days prior to such
L/C Fee Gross-Up Date, Section 9.1 Financials for the fiscal quarter immediately preceding
such Applicable Quarter and
(2) either:
(A) such Section 9.1 Financials reveal a change in Status that results in a
decrease in the Letter of Credit Fee rate with respect to such Letter of Credit, in
which case, in lieu of paying the aggregate of the Reserve Amount for such Letter of
Credit for such period as provided above, the Parent Borrower shall pay on such L/C
Fee Gross-Up Date an amount equal to the excess (if any) of (I) the aggregate amount
of Letter of Credit Fees that would have been payable on such Letter of Credit
during such Applicable Quarter in respect of any period included therein if such
change of Status had taken effect on the first day of such Applicable Quarter over
(II) the aggregate amount of all Letter of Credit Fee payments actually made on such
Letter of Credit during such Applicable Quarter in respect of any period included
therein; or
(B) such Section 9.1 Financials reveal a change in Status that results in an
increase in the Letter of Credit Fee rate, in which case, the Parent Borrower shall
pay the aggregate of the Reserve Amounts for such Letter of Credit for such period
as provided above, and shall also pay additional letter of credit fees in respect of
such Letter of Credit on such L/C Fee Gross-Up Date in an amount equal to the amount
(if any) by which (I) the sum of (x) the aggregate amount of all Letter of Credit
Fees actually paid during such Applicable Quarter in respect of such Letter of
Credit for any period included therein
plus
(y) the aggregate of the Reserve
Amounts for such Letter of Credit for such Applicable Quarter is less than (II) the
aggregate amount of Letter of Credit Fees that would have been payable on such
Letter of Credit during such Applicable Quarter in respect of any period
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included therein if such change of Status had taken effect on the first day of
such Applicable Quarter.
(c) The Parent Borrower agrees to pay to each Letter of Credit Issuer a fee in Dollars in
respect of each Letter of Credit issued by it (the
Fronting Fee
), for the period from the date of
issuance of such Letter of Credit (or from the date such fee was most recently paid under the
Original Credit Agreement) to the termination date of such Letter of Credit, computed at the rate
for each day equal to 0.125%
per annum
on the average daily Stated Amount of such Letter of Credit.
Such Fronting Fees shall be due and payable (x) quarterly in arrears on the last Business Day of
each March, June, September and December and (y) on the date upon which the Total Revolving Credit
Commitment terminates and the Letters of Credit Outstanding shall have been reduced to zero.
(d) The Parent Borrower agrees to pay directly to the Letter of Credit Issuer in Dollars upon
each issuance of, drawing under, and/or amendment of, a Letter of Credit issued by it such amount
as the Letter of Credit Issuer and the Parent Borrower shall have agreed upon for issuances of,
drawings under or amendments of, letters of credit issued by it.
(e) Notwithstanding the foregoing, the Parent Borrower shall not be obligated to pay any
amounts to any Defaulting Lender pursuant to this
Section 4.1
.
4.2.
Voluntary Reduction of Revolving Credit Commitments
. Upon at least one Business Days
prior written notice (or telephonic notice promptly confirmed in writing) to the Administrative
Agent at the Administrative Agents Office (which notice the Administrative Agent shall promptly
transmit to each of the Lenders), the Parent Borrower (on behalf of itself) shall have the right,
without premium or penalty, on any day, permanently to terminate or reduce the Revolving Credit
Commitments in whole or in part,
provided
that (a) any such reduction shall apply to
proportionately and permanently reduce the Revolving Credit Commitment of each of the Lenders
except that, notwithstanding the foregoing, in connection with the establishment on any date of any
Replacement Revolving Credit Commitments pursuant to
Section 2.14(b)(ii)
, the Revolving
Credit Commitments of any one or more Lenders providing any such Replacement Revolving Credit
Commitments on such date may be reduced in whole or in part on such date (
provided
that (x)
after giving effect to any such reduction and to the repayment of any Revolving Credit Loans made
on such date, the Revolving Credit Exposure of any such Lender does not exceed the Revolving Credit
Commitment thereof (such Revolving Credit Exposure and Revolving Credit Commitment being determined
in each case, for the avoidance of doubt, exclusive of such Lenders Replacement Revolving Credit
Commitment and any exposure in respect thereof) and (y) for the avoidance of doubt, any such
repayment of Revolving Credit Loans contemplated by the preceding clause shall be made in
compliance with the requirements of
Section 5.3(a)
with respect to the ratable allocation
of payments hereunder, with such allocation being determined after giving effect to any conversion
pursuant to
Section 2.14(b)(iii)
of any Revolving Credit Loans into Replacement Revolving
Credit Loans in connection with the establishment of such Replacement Revolving Credit Commitments)
prior to any reduction being made to the Revolving Credit Commitment of any other Lender, (b) any
partial reduction pursuant to this
Section 4.2
shall be in the amount of at least
$10,000,000 and (c) after giving effect to such termination or reduction and to any prepayments of
the Loans made on the date thereof in accordance
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with this Agreement, the aggregate amount of the Lenders Revolving Credit Exposures
shall not exceed the Total Revolving Credit Commitment.
4.3.
Mandatory Termination of Commitments
.
(a) The Swingline Commitment shall terminate at 5:00 p.m. (New York City time) on the
Swingline Maturity Date.
(b) The New Term Loan Commitment for any Series shall, unless otherwise provided in the
applicable Joinder Agreement, terminate at 5:00 p.m. (New York City time) on the Increased Amount
Date for such Series.
SECTION 5.
Payments
5.1.
Voluntary Prepayments
.
(a) Each Borrower shall have the right to prepay its Term Loans, Revolving Credit Loans and
Swingline Loans, in each case, without premium or penalty (except as set forth in
clause
(b)
of this
Section 5.1
), in whole or in part from time to time on the following terms
and conditions: (a) such Borrower shall give the Administrative Agent at the Administrative
Agents Office written notice (or telephonic notice promptly confirmed in writing) of its intent to
make such prepayment, the amount of such prepayment and (in the case of LIBOR Loans) the specific
Borrowing(s) pursuant to which made, which notice shall be given by such Borrower no later than
12:00 noon (New York City time) (i) in the case of LIBOR Loans denominated in Dollars, three
Business Days prior to, (ii) in the case of Loans denominated in an Alternative Currency, four
Business Days prior to, (iii) in the case of ABR Loans (other than Swingline Loans), one Business
Day prior to or (iv) in the case of Swingline Loans, on, the date of such prepayment and shall
promptly be transmitted by the Administrative Agent to each of the Lenders or the Swingline Lender,
as the case may be; (b) each partial prepayment of (i) any Borrowing of LIBOR Loans denominated in
Dollars shall be in a minimum amount of $10,000,000 and in multiples of $1,000,000 in excess
thereof, (ii) any ABR Loans (other than Swingline Loans) shall be in a minimum amount of $1,000,000
and in multiples of $1,000,000 in excess thereof, (iii) any Loans denominated in Euro shall be in a
minimum amount of 10,000,000 and in multiples of 1,000,000 in excess thereof, (iv) any Loans
denominated in Sterling shall be in a minimum amount of £5,000,000 and in multiples of £1,000,000
in excess thereof and (v) Swingline Loans shall be in a minimum amount of $500,000 and in multiples
of $100,000 in excess thereof,
provided
that no partial prepayment of LIBOR Loans made
pursuant to a single Borrowing shall reduce the outstanding LIBOR Loans made pursuant to such
Borrowing to an amount less than the applicable Minimum Borrowing Amount for such LIBOR Loans and
(c) any prepayment of LIBOR Loans pursuant to this
Section 5.1(a)
on any day other than the
last day of an Interest Period applicable thereto shall be subject to compliance by the Parent
Borrower with the applicable provisions of
Section 2.11
. Each prepayment in respect of any
Term Loans pursuant to this
Section 5.1(a)
shall be (a) applied to the Class or Classes of
Term Loans as the Parent Borrower may specify and (b) as to any such Class of Term Loans, applied
to reduce Repayment Amounts thereunder in such order as the Parent Borrower may specify. At the
Parent Borrowers election in connection with any prepayment pursuant to this
Section
5.1(a)
, such prepayment shall not be applied to any Term Loan or Revolving Credit Loan of a
Defaulting Lender. Notwithstanding
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the foregoing, (x) the Parent Borrower may not prepay Replacement Revolving Credit Loans that
have been converted from Revolving Credit Loans pursuant to
Section 2.14(b)(iii)(a)
until
the date on which all Revolving Credit Loans that were outstanding on the date of such conversion
have been prepaid or repaid and (y) the Borrowers may not prepay any Class of Loans set forth below
under the heading Restricted Prepayment Class unless either such prepayment is accompanied by a
pro rata prepayment of the Class or Classes of Loans indicated opposite such Class in the table
below under the heading Corresponding Class(es)or such corresponding Class or Classes have been
repaid in full:
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Restricted Prepayment Class
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Corresponding Class(es)
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Tranche A-2 Term Loans
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Tranche A-1 Term Loans
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Tranche B-2 Term Loans
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Tranche B-1 Term Loans
|
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Tranche B-3 Term Loans
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Tranche A-1 Term Loans and
Tranche B-1 Term Loans
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Extended Term Loans of any
Extension Series
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The Existing Class from which
such Extended Term Loans were
converted and any Class of
Loans which was a
Corresponding Class for such
Existing Class
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5.2.
Mandatory Prepayments
.
(a)
Term Loan Prepayments
. (i) On each occasion that a Prepayment Event occurs, the
applicable Borrower shall, within three Business Days after its receipt of the Net Cash Proceeds of
a Debt Incurrence Prepayment Event and within seven Business Days after the occurrence of any other
Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within seven Business Days after
the Deferred Net Cash Proceeds Payment Date), prepay, in accordance with
clause (c)
below,
Term Loans with a Dollar Equivalent principal amount equal to 100% of the Net Cash Proceeds from
such Prepayment Event;
provided
that, with respect to the Net Cash Proceeds of an
Asset Sale Prepayment Event, Casualty Event or Permitted Sale Lease-back, in each case solely to the
extent with respect to any U.S. Collateral, the Parent Borrower may use a portion of such Net Cash
Proceeds to prepay or repurchase Future Secured Debt with a Lien on the U.S. Collateral ranking
pari passu
with the Liens securing the Obligations to the extent any applicable Future Secured Debt
Document requires the issuer of such Future Secured Debt to prepay or make an offer to purchase
such Future Secured Debt with the proceeds of such Prepayment Event, in each case in an amount not
to exceed the product of (x) the amount of such Net Cash Proceeds multiplied by (y) a fraction, the
numerator of which is the outstanding principal amount of the Future Secured Debt with a Lien on
the U.S. Collateral ranking
pari passu
with the Liens securing the Obligations and with respect to
which such a requirement to prepay or make an offer to purchase exists and the denominator of which
is the sum of the outstanding principal amount of such Future Secured Debt and the outstanding
principal amount of Term Loans.
(ii) Not later than the date that is ninety days after the last day of any fiscal year, the
applicable Borrowers shall prepay, in accordance with
clause (c)
below, Term Loans with a
Dollar Equivalent principal amount equal to (x) 50% of Excess Cash Flow for such fiscal year,
provided
that (A) the percentage in this
Section 5.2(a)(ii)
shall be reduced to 25%
if the ratio of Consolidated Total Debt on the date of prepayment (prior to giving effect thereto
and as
107
certified by an Authorized Officer of the Parent Borrower) to Consolidated EBITDA for the most
recent Test Period ended prior to such prepayment date for which Section 9.1 Financials have been
delivered is less than or equal to 5.5 to 1.0 but greater than 5.0 to 1.0 and (B) no payment of any
Term Loans shall be required under this
Section 5.2(a)(ii)
if the ratio of Consolidated
Total Debt on the date of prepayment (prior to giving effect thereto and as certified by an
Authorized Officer of the Parent Borrower) to Consolidated EBITDA for the most recent Test Period
ended prior to such prepayment date for which Section 9.1 Financials have been delivered is less
than or equal to 5.0 to 1.00,
minus
(y) the Dollar Equivalent principal amount of Term
Loans voluntarily prepaid pursuant to
Section 5.1
during such fiscal year.
(b)
Repayment of Revolving Credit Loans
. (i) If on any date the aggregate amount of
the Lenders Revolving Credit Exposures (collectively, the
Aggregate Revolving Credit
Outstandings
) for any reason exceeds 100% of the Total Revolving Credit Commitment then in effect,
the Parent Borrower shall forthwith repay on such date the principal amount of Swingline Loans and,
after all Swingline Loans have been paid in full, Revolving Credit Loans in an amount equal to such
excess. If, after giving effect to the prepayment of all outstanding Swingline Loans and Revolving
Credit Loans, the Aggregate Revolving Credit Outstandings exceed the Total Revolving Credit
Commitment then in effect, the Parent Borrower shall Cash Collateralize the Letters of Credit
Outstanding to the extent of such excess.
(ii) If on any date the aggregate amount of the Lenders Multicurrency Exposures (collectively,
the
Aggregate Multicurrency Exposures
) for any reason exceeds 105% of the Multicurrency Sublimit
as then in effect, the Parent Borrower shall forthwith repay on such date Revolving Credit Loans
denominated in Alternative Currencies in a principal amount such that, after giving effect to such
repayment, the Aggregate Multicurrency Exposures do not exceed 100% of the Multicurrency Sublimit.
If, after giving effect to the prepayment of all outstanding Revolving Credit Loans denominated in
Alternative Currencies, the Aggregate Multicurrency Exposures exceed 100% of the Multicurrency
Sublimit, the Parent Borrower shall Cash Collateralize the Letters of Credit Outstanding in respect
of Letters of Credit denominated in Alternative Currencies to the extent of such excess.
(c)
Application of Prepayments
. Subject to
Section 5.2(h)
,
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(I)
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each prepayment of Term Loans pursuant to
Section
5.2(a)(i)
or
(ii)
(other than pursuant to any Debt Incurrence
Prepayment Event) shall be allocated
pro rata
among the Tranche A-1 Term Loans,
the Tranche A-2 Term Loans, the Tranche B-1 Term Loans, the Tranche B-2 Term
Loans, the Tranche B-3 Term Loans and the European-1 Tranche Term Loans based
on the applicable remaining Repayment Amounts due thereunder; and
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(II)
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each prepayment of Term Loans pursuant to
Section
5.2(a)(i)
with the Net Cash Proceeds of any Debt Incurrence Prepayment
Event shall be allocated (A) at any time prior to the time that no Tranche A-1
Term Loans, Tranche B-1 Term Loans or European-1 Tranche Term Loans are
outstanding,
pro rata
among the Tranche A-1 Term Loans, the Tranche B-1 Term
Loans and the European-1 Tranche Term Loans based on the applicable remaining
Repayment Amounts due thereunder and (B) from and after
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the time that no Tranche A-1 Term Loans, Tranche B-1 Term Loans or
European-1 Tranche Term Loans are outstanding, to the Tranche A-2 Term
Loans, Tranche B-2 Term Loans and Tranche B-3 Term Loans (and, to the extent
provided by any Joinder Agreement or Extension Amendment with respect to any
Class of Term Loans established following the Restatement Effective Date, to
the outstanding Term Loans comprising such Class on a basis such that the
total amount of such Net Cash Proceeds allocated to such Class in the
aggregate is not greater than such Class
pro rata
share of the aggregate
amount of all such Net Cash Proceeds (based on the respective total
outstanding principal amounts of all Classes of Term Loans then outstanding
that, pursuant to the applicable Joinder Agreement or Extension Amendment,
are required to be prepaid with a portion of such Net Cash Proceeds)),
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and in each case shall be applied (x) in the case of Tranche A-1 Term Loans and Tranche A-2
Term Loans, to reduce the respective Tranche A-1 Repayment Amounts and Tranche A-2 Repayment
Amounts on a
pro rata
basis and (y) in the case of Tranche B-1 Term Loans, the Tranche B-2
Term Loans, the Tranche B-3 Term Loans and European-1 Tranche Term Loans, as applicable,
first, to the next eight unpaid Repayment Amounts due in respect of such Term Loans in
direct order of maturity thereof, and, second, on a
pro rata
basis among the remaining
unpaid Repayment Amounts due in respect of such Term Loans. Subject to
Section
5.2(h)
, with respect to each such prepayment, the applicable Borrower will, not later
than the date specified in
Section 5.2(a)
for making such prepayment, give the
Administrative Agent telephonic notice (promptly confirmed in writing and which shall
include a calculation of the amount of such prepayment to be applied to each Class of Term
Loans) requesting that the Administrative Agent provide notice of such prepayment to each
Tranche A-1 Term Loan Lender, Tranche A-2 Term Loan Lender, Tranche B-1 Term Loan Lender,
Tranche B-2 Term Loan Lender, Tranche B-3 Term Loan Lender or European-1 Tranche Term Loan
Lender, as applicable.
(d)
Application to Term Loans
. With respect to each prepayment of Term Loans required
by
Section 5.2(a)
, the Parent Borrower may, if applicable, designate the Types of Loans
that are to be prepaid and the specific Borrowing(s) pursuant to which made. In the absence of a
designation by the Parent Borrower as described in the preceding sentence, the Administrative Agent
shall, subject to the above, make such designation in its reasonable discretion with a view, but no
obligation, to minimize breakage costs owing under
Section 2.11
.
(e)
Application to Revolving Credit Loans
. With respect to each prepayment of
Revolving Credit Loans required by
Section 5.2(b)
, the Parent Borrower may designate (i)
the Types of Loans that are to be prepaid and the specific Borrowing(s) pursuant to which made and
(ii) the Revolving Credit Loans to be prepaid,
provided
that (y) each prepayment of any
Loans made pursuant to a Borrowing shall be applied
pro rata
among such Loans; and (z)
notwithstanding the provisions of the preceding
clause (y)
, no prepayment of Revolving
Credit Loans shall be applied to the Revolving Credit Loans of any Defaulting Lender unless
otherwise agreed in writing by the Parent Borrower. In the absence of a designation by the Parent
Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the
above, make
109
such designation in its reasonable discretion with a view, but no obligation, to minimize
breakage costs owing under
Section 2.11
.
(f)
LIBOR Interest Periods
. In lieu of making any payment pursuant to this
Section 5.2
in respect of any LIBOR Loan other than on the last day of the Interest Period
therefor so long as no Event of Default shall have occurred and be continuing, the applicable
Borrower at its option may deposit with the Administrative Agent an amount in the applicable
currency equal to the amount of the LIBOR Loan to be prepaid and such LIBOR Loan shall be repaid on
the last day of the Interest Period therefor in the required amount. Such deposit shall be held by
the Administrative Agent in a corporate time deposit account established on terms reasonably
satisfactory to the Administrative Agent, earning interest at the then-customary rate for accounts
of such type. Such deposit shall constitute cash collateral for the LIBOR Loans to be so prepaid,
provided
that the applicable Borrower may at any time direct that such deposit be applied
to make the applicable payment required pursuant to this
Section 5.2
.
(g)
Minimum Amount
. No prepayment shall be required pursuant to
Section
5.2(a)(i)
(i) in the case of any Disposition yielding Net Cash Proceeds of less than $1,000,000
in the aggregate and (ii) unless and until the amount at any time of Net Cash Proceeds from
Prepayment Events required to be applied at or prior to such time pursuant to such Section and not
yet applied at or prior to such time to prepay Term Loans pursuant to such Section exceeds (x)
$10,000,000 for a single Prepayment Event or (y) $50,000,000 in the aggregate for all Prepayment
Events (other than those which are either under the threshold specified in
subclause (i)
or
over the threshold specified in
subclause (ii)(x)
) in any one fiscal year, at which time
all such Net Cash Proceeds referred to in this
subclause (y)
with respect to such fiscal
year shall be applied as a prepayment in accordance with this
Section 5.2
.
(h)
Foreign Asset Sales
. Notwithstanding any other provisions of this
Section
5.2
, (I) until all European-1 Tranche Term Loans have been repaid in full, Net Cash Proceeds of
a Casualty Event or any asset sale by a Restricted Foreign Subsidiary giving rise to an Asset Sale
Prepayment Event (a
Foreign Asset Sale
) shall be allocated first to the European-1 Tranche Term
Loans, and (II) after all European-1 Tranche Term Loans have been repaid in full, and at any time
in the case of any Excess Cash Flow, (i) to the extent that any or all of the Net Cash Proceeds
from a Foreign Asset Sale or any amount included in Excess Cash Flow and attributable to Foreign
Subsidiaries are prohibited or delayed by applicable local law from being repatriated to the United
States, such portion of the Net Cash Proceeds or Excess Cash Flow so affected will not be required
to be applied to repay Tranche A-1 Term Loans, Tranche B-1 Term Loans, Tranche B-2 Term Loans or
Tranche B-3 Term Loans at the times provided in this
Section 5.2
but may be retained by the
applicable Restricted Foreign Subsidiary so long, but only so long, as the applicable local law
will not permit repatriation to the United States (the Parent Borrower hereby agreeing to cause the
applicable Restricted Foreign Subsidiary to promptly take all actions required by the applicable
local law to permit such repatriation), and once such repatriation of any of such affected Net Cash
Proceeds or Excess Cash Flow is permitted under the applicable local law, such repatriation will be
immediately effected and such repatriated Net Cash Proceeds will be promptly (and in any event not
later than two Business Days after such repatriation) applied (net of additional taxes payable or
reserved against as a result thereof) to the repayment of the Tranche A-1 Term Loans, Tranche B-1
Term Loans, Tranche B-2 Term Loans or Tranche B-3 Term Loans as required pursuant to this
Section 5.2
and (ii) to the extent that the
110
Parent Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds of
any Foreign Asset Sale or Excess Cash Flow would have a material adverse tax consequence with
respect to such Net Cash Proceeds or Excess Cash Flow, the Net Cash Proceeds or Excess Cash Flow so
affected may be retained by the applicable Restricted Foreign Subsidiary,
provided
that, in
the case of this
clause (ii)
, on or before the date on which any Net Cash Proceeds or
Excess Cash Flow so retained would otherwise have been required to be applied to reinvestments or
prepayments pursuant to
Section 5.2(a)
, (x) the Parent Borrower applies an amount equal to
such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash
Proceeds or Excess Cash Flow had been received by the Parent Borrower rather than such Restricted
Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved
against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net
Cash Proceeds or Excess Cash Flow that would be calculated if received by such Foreign Subsidiary)
or (y) such Net Cash Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a
Restricted Foreign Subsidiary.
5.3.
Method and Place of Payment
.
(a) Except as otherwise specifically provided herein, all payments under this Agreement shall
be made by the applicable Borrower, without set-off, counterclaim or deduction of any kind, to the
Administrative Agent for the ratable account of the Lenders entitled thereto, the Letter of Credit
Issuer or the Swingline Lender entitled thereto, as the case may be, not later than 2:00 p.m. (New
York City time), in each case, on the date when due and shall be made in immediately available
funds at the Administrative Agents Office or at such other office as the Administrative Agent
shall specify for such purpose by notice to the applicable Borrower, it being understood that
written or facsimile notice by the applicable Borrower to the Administrative Agent to make a
payment from the funds in the Parent Borrowers account at the Administrative Agents Office shall
constitute the making of such payment to the extent of such funds held in such account. All
repayments or prepayments of any Loans (whether of principal, interest or otherwise) hereunder
shall be made in the currency in which such Loans are denominated and all other payments under each
Credit Document shall, unless otherwise specified in such Credit Document, be made in Dollars. The
Administrative Agent will thereafter cause to be distributed on the same day (if payment was
actually received by the Administrative Agent prior to 2:00 p.m. (New York City time) or,
otherwise, on the next Business Day) like funds relating to the payment of principal or interest or
Fees ratably to the Lenders entitled thereto.
(b) Any payments under this Agreement that are made later than 2:00 p.m. (New York City time)
shall be deemed to have been made on the next succeeding Business Day. Whenever any payment to be
made hereunder shall be stated to be due on a day that is not a Business Day, the due date thereof
shall be extended to the next succeeding Business Day and, with respect to payments of principal,
interest shall be payable during such extension at the applicable rate in effect immediately prior
to such extension.
5.4.
Net Payments
.
(a) Any and all payments made by or on behalf of any Borrower or any Guarantor under this
Agreement or any other Credit Document shall be made free and clear of, and without deduction or
withholding for or on account of, any Indemnified Taxes
;
provided
that if
111
any Borrower or any Guarantor shall be required by applicable Requirements of Law to deduct or
withhold any Indemnified Taxes from such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions and withholdings (including deductions or
withholdings applicable to additional sums payable under this
Section 5.4
) the
Administrative Agent, the Collateral Agent or any Lender, as the case may be, receives an amount
equal to the sum it would have received had no such deductions or withholdings been made, (ii) the
applicable Borrower or such Guarantor shall make such deductions or withholdings and (iii) the
applicable Borrower or such Guarantor shall timely pay the full amount deducted or withheld to the
relevant Governmental Authority within the time allowed and in accordance with applicable
Requirements of Law. Whenever any Indemnified Taxes are payable by any Borrower or Guarantor, as
promptly as possible thereafter, such Borrower or Guarantor shall send to the Administrative Agent
for its own account or for the account of such Lender, as the case may be, a certified copy of an
original official receipt (or other evidence acceptable to such Lender, acting reasonably) received
by such Borrower or Guarantor showing payment thereof.
(b) With respect to the European-1 Tranche Term Loan, the Borrower or Guarantor is not
required to make an increased payment or indemnity payment to the Administrative Agent, the
Collateral Agent or any Lender under
clauses (a)
or
(d)
of this
Section 5.4
for any deduction or withholding or payment for or on account of any Indemnified Taxes where that
Tax is imposed by the United Kingdom from a payment of interest on a Loan if on the date on which
the payment falls due:
(i) the payment could have been made to the relevant Administrative Agent, the
Collateral Agent and the Lender without a deduction or withholding for or an account of
Taxes if it was a Qualifying Lender, but on that date that Lender is not or has ceased to be
a Qualifying Lender other than as a result of any Change in Law after the date it became an
Administrative Agent, Collateral Agent or a Lender under this Agreement or other Credit
Document; or
(ii) (A) the relevant Lender is a Qualifying Lender solely under
subclause
(i)(B)
of the definition of Qualifying Lender; and
(B) the Board of the Inland Revenue has given (and not revoked) a direction (a
Direction
) under section 349C of the Taxes Act (as that provision has effect on the date
on which the relevant Lender became a Party) which relates to that payment and that Lender
has received from that Borrower or Guarantor a certified copy of that Direction; and
(C) the payment could have been made to the Administrative Agent, Collateral Agent or
Lender without any deduction or withholding for or on account of the Indemnified Taxes in
the absence of that Direction; or
(iii) the relevant Lender is a Qualifying Lender solely under
subclause (i)(B)
of the definition of Qualifying Lender and it has not, other than by reason of any change
after the Closing Date or other Credit Document in (or in the interpretation,
administration, or application of) any law, or any published practice or concession of any
relevant Governmental Authority, given a Tax Confirmation to a Borrower or Guarantor;
112
(iv) the relevant Lender is a Treaty Lender and the Borrower or Guarantor making the
payment is able to demonstrate that the payment could have been made to that Lender without
the deduction or withholding for or on account of any Indemnified Taxes had that Lender
complied with its obligations under
clause (f)
below.
(c) The Borrowers shall timely pay and shall indemnify and hold harmless the Administrative
Agent, each Collateral Agent and each Lender (whether or not such Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority) with regard to any Other Taxes.
(d) Subject to any limitation described in
Section 5.4(b)
, the Borrowers shall
indemnify and hold harmless the Administrative Agent, the Collateral Agent and each Lender within
15 Business Days after written demand therefor, for the full amount of any Indemnified Taxes
imposed on the Administrative Agent, the Collateral Agent or such Lender as the case may be, on or
with respect to any payment by or on account of any obligation of any Borrower or any Guarantor
hereunder or under any other Credit Document (including Indemnified Taxes imposed or asserted on or
attributable to amounts payable under this
Section 5.4
) and any reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate setting forth reasonable
detail as to the amount of such payment or liability delivered to the Parent Borrower by a Lender,
the Administrative Agent or the Collateral Agent (as applicable) on its own behalf or on behalf of
a Lender shall be conclusive absent manifest error.
(e) Each Non-U.S. Lender with respect to the Tranche A-1 Term Loan, Tranche B-1 Term Loan or
any other Loan made to the Parent Borrower shall, to the extent it is legally entitled to do so:
(i) deliver to the Parent Borrower and the Administrative Agent two copies of either
(x) in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding tax
under Section 871(h) or 881(c) of the Code with respect to payments of portfolio interest,
United States Internal Revenue Service Form W-8BEN (together with a certificate representing
that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a
10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the
Parent Borrower and is not a controlled foreign corporation related to the Parent Borrower
(within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form
W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S.
Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on
payments by the Parent Borrower under this Agreement; and
(ii) deliver to the Parent Borrower and the Administrative Agent two further copies of
any such form or certification (or any applicable successor form) on or before the date that
any such form or certification expires or becomes obsolete and after the occurrence of any
event requiring a change in the most recent form previously delivered by it to the Parent
Borrower;
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unless in any such case any Change in Law has occurred prior to the date on which any such delivery
would otherwise be required that renders any such form inapplicable or would prevent such Non-U.S.
Lender from duly completing and delivering any such form with respect to it and such Non-U.S.
Lender promptly so advises the Parent Borrower and the Administrative Agent. Each Person that
shall become a Participant pursuant to
Section 14.6
or a Lender pursuant to
Section
14.6
shall, upon the effectiveness of the related transfer, be required to provide all the
forms and statements required pursuant to this
Section 5.4(e)
,
provided
that in the
case of a Participant such Participant shall furnish all such required forms and statements to the
Lender from which the related participation shall have been purchased.
(f) Each Lender and Agent (including, for the avoidance of doubt, any Treaty Lender and Agent)
that is entitled to an exemption from or reduction of non-U.S. withholding tax under the laws of
the jurisdiction in which any Borrower or Guarantor is organized, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement or any other Credit Document
by such Borrower or Guarantor shall deliver to such Borrower or Guarantor (with a copy to the
applicable Administrative Agent), as applicable, at the time or times prescribed by applicable law
and as reasonably requested by such Borrower or Guarantor, as applicable, such properly completed
and executed documentation prescribed by applicable law as will permit such payments to be made
without such withholding or at such reduced rate,
provided
that such Lender or Agent is
legally entitled to complete, execute and deliver such documentation and such documentation is
necessary in order for such exemption or reduction to apply.
(g) Notwithstanding anything to the contrary in this Agreement or any Credit Document, each
European-1 Tranche Term Loan Lender shall:
(i) deliver to the European Subsidiary Borrower and the Administrative Agent on or
before the date it becomes a party to this Agreement two copies of either (w) in the case of
a European-1 Tranche Term Loan Lender that is able to claim exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of
portfolio interest, United States Internal Revenue Service Form W-8BEN (together with a
certificate representing that such European-1 Tranche Term Loan Lender is not a bank for
purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning
of Section 871(h)(3)(B) of the Code) of the Parent Borrower or the European Subsidiary
Borrower and is not a controlled foreign corporation related to the Parent Borrower or the
European Subsidiary Borrower (within the meaning of Section 864(d)(4) of the Code)), (x) in
the case of a European-1 Tranche Term Loan Lender that would be entitled to a complete
exemption from U.S. federal withholding tax with respect to payments of interest under an
applicable income tax treaty with the United States, Internal Revenue Service Form W-8BEN
claiming such complete exemption, (y) in the case of a European-1 Tranche Term Loan Lender
that would be entitled to a complete exemption from U.S. federal withholding tax with
respect to payments of interest because such payments are effectively connected with such
Lenders conduct of a United States trade or business, Internal Revenue Service Form W-8ECI, or (z) in the case of a European-1 Tranche Term Loan Lender that is a United States person
under Section 7701(a)(30) of the Code, United States Internal Revenue Service Form W-9 (or
substitute or successor form), in each case properly completed and duly executed; and
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(ii) deliver to the European Subsidiary Borrower and the Administrative Agent two
further copies of any such form or certification (or any applicable successor form) on or
before the date that any such form or certification expires or becomes obsolete and after
the occurrence of any event requiring a change in the most recent form previously delivered
by it to the European Subsidiary Borrower unless such Lender is no longer legally entitled
to provide such form due to a Change in Law after the Lender became a Lender;
(h) If any Lender, the Administrative Agent or the Collateral Agent, as applicable,
determines, in its sole discretion, that it had received and retained a refund of an Indemnified
Tax or Other Tax for which a payment has been made by any Borrower pursuant to this Agreement,
which refund in the good faith judgment of such Lender, the Administrative Agent or the Collateral
Agent, as the case may be, is attributable to such payment made by such Borrower, then the Lender,
the Administrative Agent or the Collateral Agent, as the case may be, shall reimburse such Borrower
for such amount (together with any interest received thereon) as the Lender, Administrative Agent
or the Collateral Agent, as the case may be, determines in its sole discretion to be the proportion
of the refund as will leave it, after such reimbursement, in no better or worse position (taking
into account expenses or any taxes imposed on the refund) than it would have been in if the payment
had not been required;
provided
that such Borrower, upon the request of the Lender, the
Administrative Agent or the Collateral Agent, agrees to repay the amount paid over to such Borrower
(plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to
the Lender, the Administrative Agent or the Collateral Agent in the event the Lender, the
Administrative Agent or the Collateral Agent is required to repay such refund to such Governmental
Authority. A Lender, the Administrative Agent or the Collateral Agent shall claim any refund that
it determines is available to it, unless it concludes in its sole discretion that it would be
adversely affected by making such a claim. Neither the Lender, the Administrative Agent nor the
Collateral Agent shall be obliged to disclose any information regarding its tax affairs or
computations to any Credit Party in connection with this
clause (h)
or any other provision
of this
Section 5.4
.
(i) If the Parent Borrower determines that a reasonable basis exists for contesting a Tax,
each Lender or Agent, as the case may be, shall use reasonable efforts to cooperate with the
Borrowers as the Parent Borrower may reasonably request in challenging such Tax. Subject to the
provisions of
Section 2.12
, each Lender and Agent agree to use reasonable efforts to
cooperate with the Borrowers as the Parent Borrower may reasonably request to minimize any amount
payable by any Borrower or Guarantor pursuant to this
Section 5.4
. The Borrowers shall
indemnify and hold each Lender and Agent harmless against any out-of-pocket expenses incurred by
such Person in connection with any request made by Parent Borrower pursuant to this
Section
5.4(h)
. Nothing in this
Section 5.4(i)
shall obligate any Lender or Agent to take any
action that such Person, in its sole judgment, determines may result in a material detriment to
such Person.
(j) Each Lender and Agent with respect to the Tranche A-1 Term Loan, Tranche A-2 Term Loan,
Tranche B-1 Term Loan, Tranche B-2 Term Loan or Tranche B-3 Term Loan and any other Loan made to
the Parent Borrower that is a United States person under Section 7701(a)(30) of the Code shall, at
the reasonable request of the Parent Borrower or the Administrative Agent, deliver to the Parent
Borrower and the Administrative Agent two United
115
States Internal Revenue Service Form W-9 (or substitute or successor form), properly completed
and duly executed, certifying that such Lender or Agent is exempt from United States backup
withholding;
provided
, that for the avoidance of doubt, the failure to deliver such forms
shall not subject any Lender that may be treated as an exempt recipient based on the indicators
described in Treasury Regulation 1.6049-4(c)(i)(ii) to backup withholding.
(k) Any amount payable under this Agreement or any other Credit Document by a Borrower or a
Guarantor is exclusive of any value added tax or any other Tax of a similar nature which might be
chargeable in connection with that amount. If any such Tax is chargeable, the Borrower or
Guarantor, as the case may be, must pay to the Administrative Agent, Collateral Agent or Lender, as
the case may be, (in addition to and at the same time as paying that amount) an amount equal to the
amount of that Tax.
(l) Where this Agreement or any other Credit Document requires any party to this Agreement or
any Credit Document, as the case may be, to reimburse the Administrative Agent, the Collateral
Agent or a Lender for any costs or expenses, that party must also at the same time pay and
indemnify the Administrative Agent, Collateral Agent, or Lender, as the case may be against all
value added tax or any other Tax of a similar nature incurred by the Administrative Agent, the
Collateral Agent or a Lender in respect of the costs and expenses to the extent that the
Administrative Agent, Collateral Agent or Lender acting reasonably determines that it is not
entitled to a credit or repayment from the relevant tax authority in respect of that tax.
(m) The Administrative Agent, Collateral Agent or a Lender, in each case, who is a Qualifying
Lender solely under sub-paragraph (i)(B) of the definition of Qualifying Lender on the day on which
this Agreement or any other Credit Document, as the case may be, is entered into gives a Tax
Confirmation to the European Subsidiary Borrower and Guarantors by entering into this Agreement or
any other Credit Document, as the case may be.
(n) The agreements in this
Section 5.4
shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
5.5.
Computations of Interest and Fees
.
(a) Except as provided in the next succeeding sentence, interest on LIBOR Loans and ABR Loans
shall be calculated on the basis of a 360-day year for the actual days elapsed. Interest on ABR
Loans in respect of which the rate of interest is calculated on the basis of the Administrative
Agents prime rate, interest on LIBOR Loans denominated in Sterling and interest on overdue
interest shall be calculated on the basis of a 365- (or 366-, as the case may be) day year for the
actual days elapsed.
(b) Fees and the average daily Stated Amount of Letters of Credit shall be calculated on the
basis of a 360-day year for the actual days elapsed.
5.6.
Limit on Rate of Interest
.
(a)
No Payment Shall Exceed Lawful Rate
. Notwithstanding any other term of this
Agreement, the Borrowers shall not be obliged to pay any interest or other amounts under
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or in connection with this Agreement or otherwise in respect of the Obligations in excess of
the amount or rate permitted under or consistent with any applicable law, rule or regulation.
(b)
Payment at Highest Lawful Rate
. If any Borrower is not obliged to make a payment
that it would otherwise be required to make, as a result of
Section 5.6(a)
, such Borrower
shall make such payment to the maximum extent permitted by or consistent with applicable laws,
rules and regulations.
(c)
Adjustment if Any Payment Exceeds Lawful Rate
. If any provision of this Agreement
or any of the other Credit Documents would obligate any Borrower to make any payment of interest or
other amount payable to any Lender in an amount or calculated at a rate that would be prohibited by
any applicable law, rule or regulation, then notwithstanding such provision, such amount or rate
shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of
interest, as the case may be, as would not be so prohibited by law, such adjustment to be effected,
to the extent necessary, by reducing the amount or rate of interest required to be paid by such
Borrower to the affected Lender under
Section 2.8
.
Notwithstanding the foregoing, and after giving effect to all adjustments contemplated
thereby, if any Lender shall have received from any Borrower an amount in excess of the maximum
permitted by any applicable law, rule or regulation, then such Borrower shall be entitled, by
notice in writing to the Administrative Agent to obtain reimbursement from that Lender in an amount
equal to such excess, and pending such reimbursement, such amount shall be deemed to be an amount
payable by that Lender to such Borrower.
SECTION 6.
Conditions Precedent to Restatement Effective Date
This Agreement shall become effective upon satisfaction of the following conditions:
6.1.
Restatement Agreement
. The Administrative Agent shall have received counterparts to
the Restatement Agreement executed by (i) each Credit Party and (ii) the Required Lenders (under
and as defined in the Original Credit Agreement).
6.2.
Legal Opinions
. The Administrative Agent shall have received the executed legal opinion of
Simpson Thacher & Bartlett LLP, special New York counsel to the Parent Borrower in form and
substance satisfactory to the Administrative Agent. The Borrowers, the other Credit Parties and
the Administrative Agent hereby instruct such counsel to deliver such legal opinion.
6.3.
[Reserved
].
6.4.
Fees
. The Administrative Agent shall have received a fee for the account of each
Lender under the Original Credit Agreement that has delivered a counterpart to this Agreement prior
to 5:00 p.m. (New York City time) on April 27, 2011 in an amount equal to 0.10% of the aggregate
principal amount of Term Loans (as defined in the Original Credit Agreement) and Replacement-1
Revolving Credit Commitments (as defined in the Original Credit Agreement) of such Lender on such
date.
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6.5.
Representations and Warranties and Absence of Default
. Each of the conditions set
forth in Section 7.1(a) and (b) shall be satisfied on the Restatement Effective Date.
6.6.
Flood Regulation Compliance
. The Administrative Agent shall have received,
with respect to each Mortgaged Property subject to a Mortgage by any U.S. Credit
Party, (i) a completed Life of Loan Federal Emergency Management Agency Standard
Flood Hazard Determination dated not more than ninety (90) days prior to the
Restatement Effective Date and, if the area in which any Building (as defined in the
Flood Insurance Laws) is located on any Mortgaged Property is designated a special
flood hazard area in any Flood Insurance Rate Map published by the Federal
Emergency Management Agency (or any successor agency), a notice with respect to
special flood hazard area status, duly executed on behalf of the Parent Borrower and
(ii) evidence of insurance with respect to the Mortgaged Properties in form and
substance reasonably satisfactory to the Administrative Agent. Flood Insurance
Laws means, collectively, (i) the National Flood Insurance Act of 1968 as now or
hereafter in effect or any successor statute thereto, (ii) the Flood Disaster
Protection Act of 1973 as now or hereafter in effect or any successor statue
thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter
in effect or any successor statute thereto and (iv) the Flood Insurance Reform Act
of 2004 as now or hereafter in effect or any successor statute thereto.
SECTION 7.
Conditions Precedent to All Credit Events
The agreement of each Lender to make any Loan requested to be made by it on any date
(excluding Mandatory Borrowings and Revolving Credit Loans required to be made by the Revolving
Credit Lenders in respect of Unpaid Drawings pursuant to
Sections 3.3
and
3.4
) and
the obligation of the Letter of Credit Issuer to issue Letters of Credit on any date is subject to
the satisfaction of the following conditions precedent:
7.1.
No Default; Representations and Warranties
. At the time of each Credit Event and also
after giving effect thereto (a) no Default or Event of Default shall have occurred and be
continuing and (b) all representations and warranties made by any Credit Party contained herein or
in the other Credit Documents shall be true and correct in all material respects with the same
effect as though such representations and warranties had been made on and as of the date of such
Credit Event (except where such representations and warranties expressly relate to an earlier date,
in which case such representations and warranties shall have been true and correct in all material
respects as of such earlier date).
7.2.
Notice of Borrowing; Letter of Credit Request
.
(a) Prior to the making of each Term Loan, the Administrative Agent shall have received a
Notice of Borrowing (whether in writing or by telephone) meeting the requirements of
Section
2.3
.
(b) Prior to the making of each Revolving Credit Loan (other than any Revolving Credit Loan
made pursuant to
Section 3.4(a)
) and each Swingline Loan, the Administrative Agent shall
have received a Notice of Borrowing (whether in writing or by telephone) meeting the requirements
of
Section 2.3
.
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(c) Prior to the issuance of each Letter of Credit, the Administrative Agent and the Letter of
Credit Issuer shall have received a Letter of Credit Request meeting the requirements of
Section 3.2(a)
.
The acceptance of the benefits of each Credit Event shall constitute a representation and warranty
by each Credit Party to each of the Lenders that all the applicable conditions specified in
Section 7
above have been satisfied as of that time.
SECTION 8.
Representations, Warranties and Agreements
In order to induce the Lenders to enter into this Agreement, to make the Loans and issue or
participate in Letters of Credit as provided for herein, each Borrower makes the following
representations and warranties to, and agreements with, the Lenders, all of which shall survive the
execution and delivery of this Agreement and the making of the Loans and the issuance of the
Letters of Credit (it being understood that the following representations and warranties shall be
deemed made with respect to any Foreign Subsidiary only to the extent relevant under applicable
law):
8.1.
Corporate Status
. Each Borrower and each Material Subsidiary (a) is a duly organized
and validly existing corporation or other entity in good standing under the laws of the
jurisdiction of its organization and has the corporate or other organizational power and authority
to own its property and assets and to transact the business in which it is engaged and (b) has duly
qualified and is authorized to do business and is in good standing (if applicable) in all
jurisdictions where it is required to be so qualified, except where the failure to be so qualified
could not reasonably be expected to result in a Material Adverse Effect.
8.2.
Corporate Power and Authority
. Each Credit Party has the corporate or other
organizational power and authority to execute, deliver and carry out the terms and provisions of
the Credit Documents to which it is a party and has taken all necessary corporate or other
organizational action to authorize the execution, delivery and performance of the Credit Documents
to which it is a party. Each Credit Party has duly executed and delivered each Credit Document to
which it is a party and each such Credit Document constitutes the legal, valid and binding
obligation of such Credit Party enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors rights generally and subject to general principles of equity.
8.3.
No Violation
. Neither the execution, delivery or performance by any Credit Party of
the Credit Documents to which it is a party nor compliance with the terms and provisions thereof
nor the consummation of the Merger and the other transactions contemplated hereby or thereby will
(a) contravene any applicable provision of any material law, statute, rule, regulation, order,
writ, injunction or decree of any court or governmental instrumentality, (b) result in any breach
of any of the terms, covenants, conditions or provisions of, or constitute a default under, or
result in the creation or imposition of (or the obligation to create or impose) any Lien upon any
of the property or assets of such Credit Party or any of the Restricted Subsidiaries (other than
Liens created under the Credit Documents or Liens subject to the Intercreditor Agreements) pursuant
to, the terms of any material indenture, loan agreement, lease agreement, mortgage, deed of trust,
agreement or other material instrument to which such Credit Party or
119
any of the Restricted Subsidiaries is a party or by which it or any of its property or assets
is bound (any such term, covenant, condition or provision, a
Contractual Requirement
) or (c)
violate any provision of the certificate of incorporation, by-laws or other organizational
documents of such Credit Party or any of the Restricted Subsidiaries.
8.4.
Litigation
. Except as set forth on
Schedule 8.4
of the Original Credit
Agreement, there are no actions, suits or proceedings (including Environmental Claims) pending or,
to the knowledge of any Borrower, threatened with respect to the Parent Borrower or any of its
Subsidiaries that could reasonably be expected to result in a Material Adverse Effect.
8.5.
Margin Regulations
. Neither the making of any Loan hereunder nor the use of the
proceeds thereof will violate the provisions of Regulation T, Regulation U or Regulation X of the
Board.
8.6.
Governmental Approvals
. The execution, delivery and performance of the Acquisition
Agreement or any Credit Document do not require any consent or approval of, registration or filing
with, or other action by, any Governmental Authority, except for (i) such as have been obtained or
made and are in full force and effect, (ii) filings and recordings in respect of the Liens created
pursuant to the Security Documents and (iii) such licenses, approvals, authorizations or consents
the failure to obtain or make could not reasonably be expected to have a Material Adverse Effect.
8.7.
Investment Company Act
. No Borrower is an investment company within the meaning of
the Investment Company Act of 1940, as amended.
8.8.
True and Complete Disclosure
.
None of the written factual information and written data (taken as a whole) heretofore or
contemporaneously furnished by or on behalf of any Borrower, any of the Subsidiaries or any of
their respective authorized representatives to the Administrative Agent, any Joint Lead Arranger,
and/or any Lender on or before the Closing Date (including all such information and data contained
in (i) the Confidential Information Memorandum (as updated prior to the Closing Date) and (ii) the
Credit Documents) for purposes of or in connection with this Agreement or any transaction
contemplated herein contained any untrue statement of any material fact or omitted to state any
material fact necessary to make such information and data (taken as a whole) not misleading at such
time in light of the circumstances under which such information or data was furnished, it being
understood and agreed that for purposes of this
Section 8.8
, such factual information and
data shall not include projections (including financial estimates, forecasts and other
forward-looking information) and information of a general economic or general industry nature.
8.9.
Financial Condition; Financial Statements
. (a) The unaudited historical consolidated
financial information of HCA as set forth in the Confidential Information Memorandum, and (b) the
Historical Financial Statements, in each case present fairly in all material respects the
consolidated financial position of HCA at the respective dates of said information, statements and
results of operations for the respective periods covered thereby. The financial statements
referred to in
clause (b)
of this
Section 8.9
have been prepared in accordance with
120
GAAP consistently applied except to the extent provided in the notes to said financial
statements. There has been no Material Adverse Effect since December 31, 2010.
8.10.
Tax Matters
. Each of the Parent Borrower and the Subsidiaries has filed all federal
income tax returns and all other material tax returns, domestic and foreign, required to be filed
by it and all such tax returns are true and correct in all material respects and has paid all
material taxes payable by it that have become due, other than those (a) not yet delinquent or (b)
contested in good faith as to which adequate reserves have been provided to the extent required by
law and in accordance with GAAP and which could not reasonably be expected to result in a Material
Adverse Effect. Each Borrower and each of the Subsidiaries have paid, or have provided adequate
reserves to the extent required by law and in accordance with GAAP for the payment of, all material
federal, state, provincial and foreign taxes applicable for the current fiscal year to the Closing
Date.
8.11.
Compliance with ERISA
.
(a) Each Plan is in compliance with ERISA, the Code and any applicable Requirement of Law; no
Reportable Event has occurred (or is reasonably likely to occur) with respect to any Plan; no Plan
is insolvent or in reorganization (or is reasonably likely to be insolvent or in reorganization),
and no written notice of any such insolvency or reorganization has been given to the Parent
Borrower or any ERISA Affiliate; no Plan (other than a multiemployer plan) has an accumulated or
waived funding deficiency (or is reasonably likely to have such a deficiency); none of the Parent
Borrower or any ERISA Affiliate has incurred (or is reasonably likely to incur) any liability to or
on account of a Plan pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or
4204 of ERISA or Section 4971 or 4975 of the Code or has been notified in writing that it will
incur any liability under any of the foregoing Sections with respect to any Plan; no proceedings
have been instituted (or are reasonably likely to be instituted) to terminate or to reorganize any
Plan or to appoint a trustee to administer any Plan, and no written notice of any such proceedings
has been given to the Parent Borrower or any ERISA Affiliate; and no lien imposed under the Code or
ERISA on the assets of the Parent Borrower or any ERISA Affiliate exists (or is reasonably likely
to exist) nor has the Parent Borrower or any ERISA Affiliate been notified in writing that such a
lien will be imposed on the assets of the Parent Borrower or any ERISA Affiliate on account of any
Plan, except to the extent that a breach of any of the representations, warranties or agreements in
this
Section 8.11(a)
would not result, individually or in the aggregate, in an amount of
liability that would be reasonably likely to have a Material Adverse Effect. No Plan (other than a
multiemployer plan) has an Unfunded Current Liability that would, individually or when taken
together with any other liabilities referenced in this
Section 8.11(a)
, be reasonably
likely to have a Material Adverse Effect. With respect to Plans that are multiemployer plans (as
defined in Section 3(37) of ERISA), the representations and warranties in this
Section
8.11(a)
, other than any made with respect to (i) liability under Section 4201 or 4204 of ERISA
or (ii) liability for termination or reorganization of such Plans under ERISA, are made to the best
knowledge of each Borrower.
(b) All Foreign Plans are in compliance with, and have been established, administered and
operated in accordance with, the terms of such Foreign Plans and applicable law, except for any
failure to so comply, establish, administer or operate the Foreign Plans as would not reasonably be
expected to have a Material Adverse Effect. All contributions or other payments
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which are due with respect to each Foreign Plan have been made in full and there are no
funding deficiencies thereunder, except to the extent any such events would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
8.12.
Subsidiaries
.
Schedule 8.12
of the Original Credit Agreement lists each Subsidiary of the Parent
Borrower (and the direct and indirect ownership interest of the Parent Borrower therein), in each
case existing on the Closing Date. Each Material Subsidiary (under
clause (i)
of the
definition thereof) and each 1993 Indenture Restricted Subsidiary as of the Closing Date has been
so designated on
Schedule 8.12
of the Original Credit Agreement.
8.13.
Intellectual Property
. The Parent Borrower and each of the Restricted Subsidiaries
have obtained all intellectual property, free from burdensome restrictions, that are necessary for
the operation of their respective businesses as currently conducted and as proposed to be
conducted, except where the failure to obtain any such rights could not reasonably be expected to
have a Material Adverse Effect.
8.14.
Environmental Laws
.
(a) Except as could not reasonably be expected to have a Material Adverse Effect: (i) the
Parent Borrower and each of the Subsidiaries and all Real Estate are in compliance with all
Environmental Laws; (ii) neither the Parent Borrower nor any Subsidiary is subject to any
Environmental Claim or any other liability under any Environmental Law; (iii) neither the Parent
Borrower nor any Subsidiary is conducting any investigation, removal, remedial or other corrective
action pursuant to any Environmental Law at any location; and (iv) no underground storage tank or
related piping, or any impoundment or other disposal area containing Hazardous Materials is located
at, on or under any Real Estate currently owned or leased by the Parent Borrower or any of its
Subsidiaries.
(b) Neither the Parent Borrower nor any of the Subsidiaries has treated, stored, transported,
released or disposed or arranged for disposal or transport for disposal of Hazardous Materials at,
on, under or from any currently or formerly owned or leased Real Estate or facility in a manner
that could reasonably be expected to have a Material Adverse Effect.
8.15.
Properties
.
(a) The Parent Borrower and each of the Subsidiaries have good and marketable title to or
leasehold interests in all properties that are necessary for the operation of their respective
businesses as currently conducted and as proposed to be conducted, free and clear of all Liens
(other than any Liens permitted by this Agreement) and except where the failure to have such good
title could not reasonably be expected to have a Material Adverse Effect and (b) no Mortgage
encumbers improved Real Estate that is located in an area that has been identified by the Secretary
of Housing and Urban Development as an area having special flood hazards within the meaning of the
National Flood Insurance Act of 1968 unless flood insurance available under such Act has been
obtained in accordance with
Section 9.3
.
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8.16.
Solvency
. On the Closing Date (after giving effect to the Transactions), immediately
following the making of each Loan and after giving effect to the application of the proceeds of
such Loans, each Borrower on a consolidated basis with its Subsidiaries will be Solvent.
SECTION 9.
Affirmative Covenants
Each Borrower hereby covenants and agrees that on the Closing Date and thereafter, until the
Commitments, the Swingline Commitment and each Letter of Credit have terminated and the Loans and
Unpaid Drawings, together with interest, Fees and all other Obligations incurred hereunder, are
paid in full:
9.1.
Information Covenants
. The Parent Borrower will furnish to the Administrative Agent
(which shall promptly make such information available to the Lenders in accordance with its
customary practice):
(a)
Annual Financial Statements
. As soon as available and in any event within
5 Business Days after the date on which such financial statements are required to be filed
with the SEC or, if earlier, on the date such financial statements are delivered to the
holders of the Existing Senior Second Lien Notes (or, if such financial statements are not
required to be filed with the SEC or delivered to the holders of the Existing Senior Second
Lien Notes, on or before the date that is 90 days after the end of each such fiscal year),
the consolidated balance sheets of the Parent Borrower and the Subsidiaries and, if
different, the Parent Borrower and the Restricted Subsidiaries, in each case as at the end
of such fiscal year, and the related consolidated statements of operations and cash flows
for such fiscal year, setting forth comparative consolidated figures for the preceding
fiscal years (or, in lieu of such audited financial statements of the Parent Borrower and
the Restricted Subsidiaries, a detailed reconciliation, reflecting such financial
information for the Parent Borrower and the Restricted Subsidiaries, on the one hand, and
the Parent Borrower and the Subsidiaries, on the other hand), and certified by independent
certified public accountants of recognized national standing whose opinion shall not be
qualified as to the scope of audit or as to the status of the Parent Borrower or any of the
Material Subsidiaries (or group of Subsidiaries that together would constitute a Material
Subsidiary) as a going concern, together in any event with a certificate of such accounting
firm stating that in the course of either (i) its regular audit of the consolidated business
of the Parent Borrower, which audit was conducted in accordance with generally accepted
auditing standards or (ii) performing certain other procedures permitted by professional
standards, such accounting firm has obtained no knowledge of any Event of Default relating
to
Section 10.8
that has occurred and is continuing or, if in the opinion of such
accounting firm such an Event of Default has occurred and is continuing, a statement as to
the nature thereof.
(b)
Quarterly Financial Statements
. As soon as available and in any event
within 5 Business Days after the date on which such financial statements are required to be
filed with the SEC or, if earlier, on the date on which such financial statements are
delivered to the holders of the Existing Senior Second Lien Notes with respect to each of
the first three quarterly accounting periods in each fiscal year of the Parent Borrower (or,
123
if such financial statements are not required to be filed with the SEC or delivered to
the holders of the Existing Senior Second Lien Notes, on or before the date that is 45 days
after the end of each such quarterly accounting period), the consolidated balance sheets of
the Parent Borrower and the Subsidiaries and, if different, the Parent Borrower and the
Restricted Subsidiaries, in each case as at the end of such quarterly period and the related
consolidated statements of operations for such quarterly accounting period and for the
elapsed portion of the fiscal year ended with the last day of such quarterly period, and the
related consolidated statement of cash flows for the elapsed portion of the fiscal year
ended with the last day of such quarterly period, and setting forth comparative consolidated
figures for the related periods in the prior fiscal year or, in the case of such
consolidated balance sheet, for the last day of the prior fiscal year (or, in lieu of such
unaudited financial statements of the Parent Borrower and the Restricted Subsidiaries, a
detailed reconciliation reflecting such financial information for the Parent Borrower and
the Restricted Subsidiaries, on the one hand, and the Parent Borrower and the Subsidiaries,
on the other hand), all of which shall be certified by an Authorized Officer of the Parent
Borrower, subject to changes resulting from audit and normal year-end audit adjustments.
(c)
Budgets
. Within 90 days after the commencement of each fiscal year of the
Parent Borrower, a budget of the Parent Borrower in reasonable detail for such fiscal year
as customarily prepared by management of the Parent Borrower for their internal use
consistent in scope with the financial statements provided pursuant to
Section
9.1(a)
, setting forth the principal assumptions upon which such budget is based.
(d)
Officers Certificates
. At the time of the delivery of the financial
statements provided for in
Sections 9.1(a)
and
(b)
, a certificate of an
Authorized Officer of the Parent Borrower to the effect that no Default or Event of Default
exists or, if any Default or Event of Default does exist, specifying the nature and extent
thereof, which certificate shall set forth (i) the calculations required to establish
whether the Parent Borrower and the Subsidiaries were in compliance with the provisions of
Section 10.8
as at the end of such fiscal year or period, as the case may be, (ii) a
specification of any change in the identity of the Restricted Subsidiaries and Unrestricted
Subsidiaries as at the end of such fiscal year or period, as the case may be, from the
Restricted Subsidiaries and Unrestricted Subsidiaries, respectively, provided to the Lenders
on the Closing Date or the most recent fiscal year or period, as the case may be, (iii) the
then applicable Status and (iv) the amount of any Pro Forma Adjustment not previously set
forth in a Pro Forma Adjustment Certificate or any change in the amount of a Pro Forma
Adjustment set forth in any Pro Forma Adjustment Certificate previously provided and, in
either case, in reasonable detail, the calculations and basis therefor. At the time of the
delivery of the financial statements provided for in
Section 9.1(a)
, (i) a
certificate of an Authorized Officer of the Parent Borrower setting forth in reasonable
detail the Applicable Amount as at the end of the fiscal year to which such financial
statements relate and (ii) a certificate of an Authorized Officer of the Parent Borrower
setting forth the information required pursuant to Section 1(a) of the Perfection
Certificate or confirming that there has been no change in such information since the
Closing Date or the date of the most recent certificate delivered pursuant to this
clause (d)(ii)
, as the case may be.
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(e)
Notice of Default or Litigation
. Promptly after an Authorized
Officer of any Borrower or any of the Subsidiaries obtains knowledge thereof, notice of (i)
the occurrence of any event that constitutes a Default or Event of Default, which notice
shall specify the nature thereof, the period of existence thereof and what action the Parent
Borrower proposes to take with respect thereto and (ii) any litigation or governmental
proceeding pending against any Borrower or any of the Subsidiaries that could reasonably be
expected to be determined adversely and, if so determined, to result in a Material Adverse
Effect.
(f)
Environmental Matters
. Promptly after obtaining knowledge of any one
or more of the following environmental matters, unless such environmental matters would not,
individually or when aggregated with all other such matters, be reasonably expected to
result in a Material Adverse Effect, notice of:
(i) any pending or threatened Environmental Claim against any Credit Party
or any Real Estate;
(ii) any condition or occurrence on any Real Estate that (x) could
reasonably be expected to result in noncompliance by any Credit Party with any
applicable Environmental Law or (y) could reasonably be anticipated to form the
basis of an Environmental Claim against any Credit Party or any Real Estate;
(iii) any condition or occurrence on any Real Estate that could reasonably
be anticipated to cause such Real Estate to be subject to any restrictions on the
ownership, occupancy, use or transferability of such Real Estate under any
Environmental Law; and
(iv) the conduct of any investigation, or any removal, remedial or other
corrective action in response to the actual or alleged presence, release or
threatened release of any Hazardous Material on, at, under or from any Real Estate.
All such notices shall describe in reasonable detail the nature of the claim, investigation,
condition, occurrence or removal or remedial action and the response thereto. The term
Real Estate
shall mean land, buildings and improvements owned or leased by any Credit
Party, but excluding all operating fixtures and equipment, whether or not incorporated into
improvements.
(g)
Other Information
. Promptly upon filing thereof, copies of any filings
(including on Form 10-K, 10-Q or 8-K) or registration statements with, and reports to, the
SEC or any analogous Governmental Authority in any relevant jurisdiction by the Parent
Borrower or any of the Subsidiaries (other than amendments to any registration statement (to
the extent such registration statement, in the form it becomes effective, is delivered to
the Lenders and the Administrative Agent), exhibits to any registration statement and, if
applicable, any registration statements on Form S-8) and copies of all financial statements,
proxy statements, notices and reports that the Parent Borrower or any of the Subsidiaries
shall send to the holders of any publicly issued debt of the Parent Borrower and/or any of
the Subsidiaries (including the Existing Senior Second Lien Notes (whether
125
publicly issued or not)) and lenders and agents under the ABL Facility, in each case in
their capacity as such holders, lenders or agents (in each case to the extent not
theretofore delivered to the Lenders and the Administrative Agent pursuant to this
Agreement) and, with reasonable promptness, such other information (financial or otherwise)
as the Administrative Agent on its own behalf or on behalf of any Lender (acting through the
Administrative Agent) may reasonably request in writing from time to time.
(h)
Pro Forma Adjustment Certificate
. Not later than any date on which
financial statements are delivered with respect to any Test Period in which a Pro Forma
Adjustment is made as a result of the consummation of the acquisition of any Acquired Entity
or Business by the Parent Borrower or any Restricted Subsidiary for which there shall be a
Pro Forma Adjustment, a certificate of an Authorized Officer of the Parent Borrower setting
forth the amount of such Pro Forma Adjustment and, in reasonable detail, the calculations
and basis therefor.
(i)
Principal Properties Certificate
. Not later than the date of delivery
of the financial statements required by
Section 9.1(a)
above, a Principal Properties
Certificate.
(j)
Intellectual Property Collateral
. At the time of the delivery of the
financial statements provided for in
Sections 9.1(a)
and
(b)
, a written
supplement substantially in the form of
Annex A
to the U.S. Security Agreement with
respect to any additional Copyrights, Copyright Licenses, Patents, Patent Licenses,
Trademarks and Trademark Licenses (each as defined in the U.S. Security Agreement) that are
registered (or for which an application to register such items has been filed) with the
United States Patent and Trademark Office or the United States Copyright Office (or any
successor to either such office) acquired by any U.S. Credit Party following the Closing
Date (or following the date of the last supplement provided to the Collateral Agent pursuant
to this
Section 9.1(j)
), all in reasonable detail.
(k)
Change of Name, Locations, Etc
. Not later than 60 days following the
occurrence of any change referred to in
subclauses (i)
through
(iv)
below,
written notice of any change (i) in the legal name of any Credit Party, (ii) in the
jurisdiction of organization or location of any Credit Party for purposes of the Uniform
Commercial Code, (iii) in the identity or type of organization of any Credit Party or (iv)
in the Federal Taxpayer Identification Number or organizational identification number of any
Credit Party. The Parent Borrower shall also promptly provide the Collateral Agent with
certified organizational documents reflecting any of the changes described in the first
sentence of this
clause (k)
.
Notwithstanding the foregoing, the obligations in
clauses (a)
and
(b)
of this
Section 9.1
may be satisfied with respect to financial information of the Parent Borrower
and the Restricted Subsidiaries by furnishing (A) the applicable financial statements of any direct
or indirect parent of the Parent Borrower or (B) the Parent Borrowers (or any direct or indirect
parent thereof), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC;
provided
that, with respect to each of
subclauses (A)
and
(B)
of this
paragraph, to the extent such information relates to a parent of the Parent Borrower, such
information is accompanied by consolidating or other information that explains in reasonable detail
the differences between the information relating to
126
such parent, on the one hand, and the information relating to the Parent Borrower and the
Restricted Subsidiaries on a standalone basis, on the other hand.
9.2.
Books, Records and Inspections
. The Parent Borrower will, and will cause each
Restricted Subsidiary to, permit officers and designated representatives of the Administrative
Agent or the Required Lenders to visit and inspect any of the properties or assets of the Parent
Borrower and any such Subsidiary in whomsoevers possession to the extent that it is within such
partys control to permit such inspection, and to examine the books and records of the Parent
Borrower and any such Subsidiary and discuss the affairs, finances and accounts of the Parent
Borrower and of any such Subsidiary with, and be advised as to the same by, its and their officers
and independent accountants, all at such reasonable times and intervals and to such reasonable
extent as the Administrative Agent or the Required Lenders may desire (and subject, in the case of
any such meetings or advice from such independent accountants, to such accountants customary
policies and procedures);
provided
that, excluding any such visits and inspections during
the continuation of an Event of Default, only the Administrative Agent on behalf of the Required
Lenders may exercise rights of the Administrative Agent and the Lenders under this
Section 9.2
and only one such visit shall be at the Parent Borrowers expense;
provided
further
that when an Event of Default exists, the Administrative Agent or
any Lender (or any of their respective representatives or independent contractors) may do any of
the foregoing at the expense of the Parent Borrower at any time during normal business hours and
upon reasonable advance notice. The Administrative Agent and the Lenders shall give the Parent
Borrower the opportunity to participate in any discussions with the Parent Borrowers independent
public accountants. During the course of the above described visits, inspections and examinations
and discussions, representatives of the Agents and the Lenders may encounter individually
identifiable healthcare information as defined under the Administrative Simplification (including
privacy and security) regulations promulgated pursuant to the Health Insurance Portability and
Accountability Act of 1996, as amended (collectively
HIPAA
) or other confidential information
relating to health care patients (collectively, the
Confidential Healthcare Information
). The
Parent Borrower or the Restricted Subsidiary maintaining such Confidential Healthcare Information
shall, consistent with HIPAAs minimum necessary provisions, permit such disclosures for their
healthcare operations purposes. Unless otherwise required by law, the Agents, the Lenders and
their respective representatives shall not require or perform any act that would cause the Parent
Borrower or any of its Subsidiaries to violate any laws, regulations or ordinances intended to
protect the privacy rights of healthcare patients, including, without limitation, HIPAA.
9.3.
Maintenance of Insurance
. The Parent Borrower will, and will cause each Material
Subsidiary to, at all times maintain in full force and effect, pursuant to self-insurance
arrangements or with insurance companies that the Parent Borrower believes (in the good faith
judgment of the management of the Parent Borrower) are financially sound and responsible at the
time the relevant coverage is placed or renewed, insurance in at least such amounts and against at
least such risks (and with such risk retentions) as are usually insured against in the same general
area by companies engaged in the same or a similar business; and will furnish to the Lenders, upon
written request from the Administrative Agent, information presented in reasonable detail as to the
insurance so carried.
9.4.
Payment of Taxes
. The Parent Borrower will pay and discharge, and will cause each of
the Subsidiaries to pay and discharge, all material taxes, assessments and
127
governmental charges or levies imposed upon it or upon its income or profits, or upon any
properties belonging to it, prior to the date on which material penalties attach thereto, and all
lawful material claims in respect of any Taxes imposed, assessed or levied that, if unpaid, could
reasonably be expected to become a material Lien upon any properties of the Parent Borrower or any
of the Restricted Subsidiaries,
provided
that neither the Parent Borrower, nor any of the
Subsidiaries shall be required to pay any such tax, assessment, charge, levy or claim that is being
contested in good faith and by proper proceedings if it has maintained adequate reserves with
respect thereto to the extent required by law and in accordance with GAAP and the failure to pay
could not reasonably be expected to result in a Material Adverse Effect.
9.5.
Consolidated Corporate Franchises
. The Parent Borrower will do, and will cause each
Material Subsidiary to do, or cause to be done, all things necessary to preserve and keep in full
force and effect its existence, corporate rights and authority, except to the extent that the
failure to do so could not reasonably be expected to have a Material Adverse Effect;
provided
, however, that the Parent Borrower and its Subsidiaries may consummate any
transaction permitted under
Section 10.3
,
10.4
or
10.5
.
9.6.
Compliance with Statutes, Regulations, Etc
. The Parent Borrower will, and will cause
each Subsidiary to, comply with all applicable laws, rules, regulations and orders applicable to it
or its property, including all governmental approvals or authorizations required to conduct its
business, and to maintain all such governmental approvals or authorizations in full force and
effect, in each case except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect.
9.7.
ERISA
. Promptly after the Parent Borrower or any ERISA Affiliate knows or has reason
to know of the occurrence of any of the following events that, individually or in the aggregate
(including in the aggregate such events previously disclosed or exempt from disclosure hereunder,
to the extent the liability therefor remains outstanding), would be reasonably likely to have a
Material Adverse Effect, the Parent Borrower will deliver to the Administrative Agent and each of
the Lenders a certificate of an Authorized Officer or any other senior officer of the Parent
Borrower setting forth details as to such occurrence and the action, if any, that the Parent
Borrower or such ERISA Affiliate is required or proposes to take, together with any notices
(required, proposed or otherwise) given to or filed with or by the Parent Borrower such ERISA
Affiliate, the PBGC, a Plan participant (other than notices relating to an individual participants
benefits) or the Plan administrator with respect thereto: that a Reportable Event has occurred;
that an accumulated funding deficiency has been incurred or an application is to be made to the
Secretary of the Treasury for a waiver or modification of the minimum funding standard (including
any required installment payments) or an extension of any amortization period under Section 412 of
the Code with respect to a Plan; that a Plan having an Unfunded Current Liability has been or is to
be terminated, reorganized, partitioned or declared insolvent under Title IV of ERISA (including
the giving of written notice thereof); that a Plan has an Unfunded Current Liability that has or
will result in a lien under ERISA or the Code; that proceedings will be or have been instituted to
terminate a Plan having an Unfunded Current Liability (including the giving of written notice
thereof); that a proceeding has been instituted against the Parent Borrower or an ERISA Affiliate
pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan; that the PBGC has
notified the Parent Borrower or any ERISA Affiliate of its intention to appoint a trustee to
administer any Plan; that the Parent Borrower or any ERISA Affiliate
128
has failed to make a required
installment or other payment pursuant to Section 412 of the Code with respect to a Plan; or that
the Parent Borrower or any ERISA Affiliate has incurred or will incur (or has been notified in
writing that it will incur) any liability (including any contingent or secondary liability) to or
on account of a Plan pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or
4204 of ERISA or Section 4971 or 4975 of the Code.
9.8.
Maintenance of Properties
. The Parent Borrower will, and will cause each of the
Restricted Subsidiaries to, keep and maintain all property material to the conduct of its business
in good working order and condition, ordinary wear and tear excepted, except to the extent that the
failure to do so could reasonably be expected to have a Material Adverse Effect.
9.9.
Transactions with Affiliates
. The Parent Borrower will conduct, and cause each of the
Restricted Subsidiaries to conduct, all transactions with any of its Affiliates (other than the
Parent Borrower and the Restricted Subsidiaries) on terms that are substantially as favorable to
the Parent Borrower or such Restricted Subsidiary as it would obtain in a comparable arms-length
transaction with a Person that is not an Affiliate,
provided
that the foregoing
restrictions shall not apply to (a) the payment of customary fees to the Sponsors for management,
consulting and financial services rendered to the Parent Borrower and the Subsidiaries and
customary investment banking fees paid to the Sponsors for services rendered to the Parent Borrower
and the Subsidiaries in connection with divestitures, acquisitions, financings and other
transactions, (b) transactions permitted by
Section 10.6
, (c) the payment of the
Transaction Expenses, (d) the issuance of Stock or Stock Equivalents of Hercules Holdings or
Holdings to the management of the Parent Borrower (or any direct or indirect parent thereof) or any
of its Subsidiaries in connection with the Transactions or pursuant to arrangements described in
clause (f)
of this
Section 9.9
, (e) loans, advances and other transactions between
or among the Parent Borrower, any Subsidiary or any joint venture (regardless of the form of legal
entity) in which the Parent Borrower or any Subsidiary has invested (and which Subsidiary or joint
venture would not be an Affiliate of the Parent Borrower but for the Parent Borrowers or a
Subsidiarys ownership of Stock or Stock Equivalents in such joint venture or Subsidiary) to the
extent permitted under
Section 10
, (f) employment and severance arrangements between the
Parent Borrower and the Subsidiaries and their respective officers and employees in the ordinary
course of business, (g) payments by the Parent Borrower (and any direct or indirect parent thereof)
and the Subsidiaries pursuant to the tax sharing agreements among the Parent Borrower (and any such
parent) and the Subsidiaries on customary terms to the extent attributable to the ownership or
operation of the Parent Borrower and the Subsidiaries;
provided
that in each case the
amount of such payments in any fiscal year does not exceed the amount that the Parent Borrower and
its Restricted Subsidiaries would be required to pay in respect of federal, state and local taxes
for such fiscal year were the Parent Borrower and its Restricted Subsidiaries (to the extent
described above) to pay such taxes separately from any such parent entity, (h) the payment of
customary fees and reasonable out of pocket costs to, and indemnities provided on behalf of,
directors, managers, consultants, officers and employees of the Parent Borrower and the
Subsidiaries in the ordinary course of business to the extent attributable to the ownership or
operation of the Parent Borrower and the Subsidiaries, and (i) transactions pursuant to permitted
agreements in existence on the Closing Date and set forth on
Schedule 9.9
of the Original
Credit Agreement or any amendment thereto to the extent such an amendment is not adverse, taken as
a whole, to the Lenders in any material respect. The Parent Borrower will not permit any
Consolidated Person to engage in any transaction with any Sponsor or any Frist Shareholder (or any
controlling Affiliate of any
129
Sponsor or Frist Shareholder), to the extent that such Consolidated Person would be prohibited from
engaging in such transaction if it was a Restricted Subsidiary for purposes of this
Section
9.9
.
9.10.
End of Fiscal Years; Fiscal Quarters
. The Parent Borrower will, for financial
reporting purposes, cause (a) each of its, and each of its Subsidiaries, fiscal years to end on
December 31 of each year and (b) each of its, and each of its Subsidiaries, fiscal quarters to end
on dates consistent with such fiscal year-end and the Parent Borrowers past practice;
provided
,
however
, that the Parent Borrower may, upon written notice to the Administrative
Agent change the financial reporting convention specified above to any other financial reporting
convention reasonably acceptable to the Administrative Agent, in which case the Parent Borrower and
the Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments to
this Agreement that are necessary in order to reflect such change in financial reporting.
9.11.
Additional Guarantors and Grantors
. Except as otherwise provided in
Section
10.1(j)
or
10.1(k)
and subject to any applicable limitations set forth in the Security
Documents, the Parent Borrower will cause each direct or indirect Domestic Subsidiary or European
Subsidiary (excluding any Excluded Subsidiary or Excluded European Subsidiary) formed or otherwise
purchased or acquired after the Closing Date (including pursuant to a Permitted Acquisition) and
each other Domestic Subsidiary or European Subsidiary that ceases to constitute an Excluded
Subsidiary or Excluded European Subsidiary, respectively, to execute a supplement, in the case of
any Domestic Subsidiary, to each of the U.S. Guarantee, the U.S. Pledge Agreement and the U.S.
Security Agreement and, in the case of any European Subsidiary, to the European Guarantee and
European Security Agreement in order to become a Guarantor under the applicable Guarantee and a
grantor under such Security Documents or, to the extent reasonably requested by the Collateral
Agent, enter into a new Security Document substantially consistent with the analogous existing
Security Documents and otherwise in form and substance reasonably satisfactory to such Collateral
Agent and take all other action reasonably requested by the Collateral Agent to grant a perfected
security interest in its assets to substantially the same extent as created by the domestic or
foreign Credit Parties, as applicable, on the Closing Date (including actions required pursuant to
Section 9.14(e)
).
9.12.
Pledge of Additional Stock and Evidence of Indebtedness
.
(a) The Parent Borrower will cause (i) all certificates representing Stock and Stock
Equivalents of any Subsidiary (other than (x) any Excluded Stock and Stock Equivalents;
provided
that Excluded Stock and Stock Equivalents of the type specified in
clause
(iii)
of the definition thereof shall not be excluded pursuant to this
subclause (x)
insofar as the pledge thereof pursuant to the U.S. Pledge Agreement is given in respect of the
European Obligations and (y) any Stock and Stock Equivalents issued by any Subsidiary for so long
as such Subsidiary does not (on a consolidated basis with its Restricted Subsidiaries) have
property, plant and equipment with a book value in excess of $5,000,000 or a contribution to
Consolidated EBITDA for any four fiscal quarter period that includes any date on or after the
Closing Date in excess of $5,000,000) held directly by the Parent Borrower or any U.S. Guarantor,
(ii) all evidences of Indebtedness in excess of $10,000,000 received by the Parent Borrower or any
of the U.S. Guarantors in connection with any disposition of assets pursuant to
Section
10.4(b)
and (iii) any promissory notes executed after the Closing Date evidencing Indebtedness
in excess of $10,000,000 of
130
the Parent Borrower or any Subsidiary that is owing to the Parent Borrower or any U.S. Guarantor,
in each case, to be delivered to the Collateral Agent as security for the Obligations or the
European Obligations, as applicable, under the U.S. Pledge Agreement. The Borrowers will cause (i)
all certificates representing Stock and Stock Equivalents of any Subsidiary (other than (A) any
Excluded Stock and Stock Equivalents and (B) Stock and Stock Equivalents issued by any Subsidiary
for so long as such Subsidiary does not (on a consolidated basis with its Restricted Subsidiaries),
have property, plant and equipment with a book value in excess of $5,000,000 or a contribution to
Consolidated EBITDA for any four fiscal quarter period that includes any date on or after the
Closing Date in excess of $5,000,000) formed, purchased or otherwise acquired after the Closing
Date and held directly by the European Borrower or any European Guarantor, (ii) all evidences of
Indebtedness in excess of $10,000,000 received by the European Subsidiary Borrower or any of the
European Guarantors in connection with any disposition of assets pursuant to
Section
10.4(b)
and (iii) any promissory notes executed after the Closing Date evidencing Indebtedness
in excess of $10,000,000 of the Parent Borrower or any Subsidiary that is owing to the European
Subsidiary Borrower or any European Guarantor, in each case, to be delivered to the Collateral
Agent solely as security for the European Obligations pursuant to the applicable European Security
Agreement.
(b) The Parent Borrower agrees that all Indebtedness in excess of $10,000,000 of any
Borrower or any Subsidiary that is owing to any Credit Party shall be evidenced by one or more
promissory notes.
9.13.
Use of Proceeds
. The Borrowers will use Letters of Credit and Loans hereunder for
general corporate purposes (including Permitted Acquisitions).
9.14.
Further Assurances
.
(a) The Parent Borrower will, and will cause each other Credit Party to, execute any and
all further documents, financing statements, agreements and instruments, and take all such further
actions (including the filing and recording of financing statements, fixture filings, mortgages,
deeds of trust and other documents) that may be required under any applicable law, or that the
Collateral Agent or the Required Lenders may reasonably request, in order to grant, preserve,
protect and perfect the validity and priority of the security interests created or intended to be
created by the applicable Security Documents, all at the expense of the Parent Borrower and the
Restricted Subsidiaries.
(b) Except with respect to which, in the reasonable judgment of the Administrative Agent
(confirmed in writing by written notice to the Parent Borrower), the cost or other consequences
(including any tax consequence) of doing so shall be excessive in view of the benefits to be
obtained by the Lenders therefrom and subject to applicable limitations set forth in the Security
Documents, (i) if any assets (including any real estate or improvements thereto or any interest
therein but excluding (x) any Principal Properties and (y) Stock and Stock Equivalents of any
Subsidiary) with a book value or fair market value in excess of $10,000,000 are acquired by the
Parent Borrower or any other Credit Party after the Closing Date (other than assets constituting
Collateral under a Security Document that become subject to the Lien of the applicable Security
Document upon acquisition thereof;
provided
that this exception shall not apply in respect
of freehold or leasehold properties in England and Wales) that are of a nature secured by
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a Security Document and (ii) upon the 1993 Indenture ceasing to be in effect pursuant to a
satisfaction and discharge or a defeasance thereof in accordance with its terms with respect to all
Retained Indebtedness, the Parent Borrower will notify the Collateral Agent, and, if requested by
the Collateral Agent, the Parent Borrower will cause such assets (including in the case of
clause (ii)
only, Principal Properties) to be subjected to a Lien securing the applicable
Obligations and will take, and cause the other applicable Credit Parties to take, such actions as
shall be necessary or reasonably requested by the Collateral Agent to grant and perfect such Liens
consistent with the applicable requirements of the Security Documents, including actions described
in
clause (a)
of this
Section 9.14
, and, in respect of freehold or leasehold
property in England and Wales, the Parent Borrower will cause the applicable European Credit
Parties to execute and deliver, to the Collateral Agent a legal mortgage in favor of the Collateral
Agent of that property in any form (consistent with the European Security Agreement) which the
Collateral Agent may reasonably require but in any event on terms no more onerous than the European
Security Agreement, all at the expense of the applicable Credit Parties.
(c) (i) If any Principal Properties Certificate required to be delivered hereunder
demonstrates that the Principal Properties Secured Amount does not exceed the product of (x) the
Principal Properties Permitted Amount multiplied by (y) 1.8 or (ii) if as a result of any
Disposition of a Principal Property that is subject to a Mortgage either (A) the Principal Property
Secured Amount does not exceed the product of (x) the Principal Properties Permitted Amount
multiplied by (y) 2 or (B) there would be fewer than 12 Principal Properties subject to
Mortgages, then the Parent Borrower shall promptly cause additional Principal Properties of U.S.
Guarantors mutually selected by the Administrative Agent and the Parent Borrower having a fair
market value (as reasonably and in good faith determined by the Parent Borrower using a multiple of
five (5) times EBITDA of such Principal Properties for the most recent four fiscal quarter period
for which Section 9.1 Financials have been delivered) that would result, after giving effect to the
Mortgage thereof, in the Principal Properties Secured Amount being at least two (2) times the
Principal Properties Permitted Amount, to be subject to a Mortgage securing the Obligations and
shall take actions to perfect such Liens and to deliver title insurance, Surveys and an opinion of
local counsel, all consistent with such actions taken with respect to Principal Properties
mortgaged in favor of the Collateral Agent pursuant to
clause (e)
below.
(d) Any Mortgage delivered to the Collateral Agent in accordance with the preceding
clause (b)
or
clause (c)
shall be accompanied by (i) in the case of a Mortgage of
property in the United States of America (x) a policy or policies (or an unconditional binding
commitment therefor) of title insurance issued by a nationally recognized title insurance company
insuring the Lien of each Mortgage as a valid Lien (with the priority described therein) on the
Mortgaged Property described therein, free of any other Liens except as expressly permitted by
Section 10.2
, together with such endorsements, coinsurance and reinsurance as the
Collateral Agent may reasonably request and (y) an opinion of local counsel to the mortgagor in
form and substance reasonably acceptable to the Collateral Agent and (ii) in the case of a Mortgage
of property in England and Wales (x) a report of title in a form reasonably acceptable to the
Collateral Agent and from a firm of solicitors reasonably acceptable to the Collateral Agent and
(y) a legal opinion from a firm of solicitors reasonably acceptable to the Collateral Agent in form
and substance reasonably acceptable to the Collateral Agent.
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(e) The Parent Borrower agrees that it will, or will cause its relevant Subsidiaries to,
complete each of the actions described on
Schedule 9.14(e)
as soon as commercially
reasonable and by no later than the date set forth in
Schedule 9.14(e)
with respect to such
action or such later date as the Administrative Agent may reasonably agree.
(f) No later than 90 days following the Restatement Effective Date, the Parent Borrower
shall deliver or cause to be delivered to the Collateral Agent the following:
(i) an amendment to each Mortgage (each, a
Mortgage Amendment
) to which a
U.S. Credit Party is then party (except to the extent the Administrative Agent determines
such amendment is not required) duly executed and acknowledged by the applicable U.S. Credit
Party, and in form for recording in the recording office where the respective Mortgage was
recorded, together with such certificates, affidavits, questionnaires or returns as shall be
required in connection with the recording or filing thereof under applicable law, in each
case in form and substance reasonably satisfactory to the Administrative Agent;
(ii) executed legal opinions, in form and substance reasonably satisfactory to the
Administrative Agent, with respect to such amended Mortgages; and
(iii) with respect to each amended Mortgage (i) a title search of the relevant
Mortgaged Property confirming that there are no Liens of record in violation of the
provisions of the applicable Mortgage and (ii) to the extent available in the relevant
jurisdiction at commercially reasonable rates, a date-down or modification endorsement to
the policy or policies of title insurance insuring the Lien of each Mortgage, issued by a
nationally recognized title insurance company (x) insuring that such Mortgage, as amended by
such Mortgage Amendment is a valid and enforceable first priority lien on such Mortgaged
Property in favor of the Collateral Agent for the benefit of the Secured Parties free and
clear of all Liens except as expressly permitted by Section 10.2 hereof or consented to by
the Administrative Agent (y) otherwise in form and substance reasonably satisfactory to the
Administrative Agent and (z) having the effect of a valid, issued and binding endorsement to
the respective title insurance policy.
(g) The Parent Borrower agrees that it will use commercially reasonable efforts to cause
the preferred Stock of Healthtrust that is owned by ColumbiaSDH and Epic Properties to be redeemed
or otherwise transferred to Healthtrust or the Parent Borrower as promptly as reasonably
practicable following the Closing Date;
provided
that the Parent Borrower shall not be
required to take any action pursuant to this
clause (f)
to the extent that it determines
that any such redemption or transfer is reasonably likely to result in material adverse tax
consequences to the Parent Borrower or a Subsidiary.
SECTION 10.
Negative Covenants
The Parent Borrower hereby covenants and agrees that on the Closing Date (immediately after
consummation of the Merger) and thereafter, until the Commitments, the Swingline Commitment and
each Letter of Credit have terminated and the Loans and Unpaid
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Drawings, together with interest, Fees and all other Obligations incurred hereunder, are paid in
full:
10.1.
Limitation on Indebtedness
. The Parent Borrower will not, and will not permit any of
the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness, except:
(a) (x) Indebtedness arising under the Credit Documents, (y) Indebtedness in an
aggregate principal amount not to exceed $2,000,000,000 at any time outstanding under the
ABL Facility and any Permitted Receivables Financing (plus additional Indebtedness
thereunder or under any amendment thereto, which together with any New Term Loans and New
Revolving Credit Commitments incurred pursuant to
Section 2.14
of this Agreement
(other than (x) Refinancing Term Loans, (y) Ratio First Lien Indebtedness and (z)
Replacement Revolving Credit Commitments except to the extent such Replacement Revolving
Credit Commitments were established in reliance on
subclause (a)(y)
of the proviso
to
Section 2.14(b)(ii)
), do not exceed $1,500,000,000 in aggregate principal amount)
and (z) intercompany Indebtedness of Restricted Subsidiaries, and any Guarantee Obligations
in respect thereof, to allocate the Parent Borrowers cost of borrowing to such Subsidiaries
with respect to Indebtedness referred to in
subclauses (x)
and
(y)
or in
respect of Indebtedness incurred following the Closing Date by the Parent Borrower;
(b) Subject to compliance with
Section 10.5
, Indebtedness of the Parent
Borrower or any Restricted Subsidiary owed to the Parent Borrower or any Restricted
Subsidiary;
provided
that, in each case, all such Indebtedness of (A) any U.S.
Credit Party owed to any Person that is not a U.S. Credit Party or (B) any European Credit
Party owed to any Person that is not a Credit Party shall be subordinated to the Obligations
of such Credit Party on customary terms;
(c) Indebtedness in respect of any bankers acceptance, bank guarantees, letter of
credit, warehouse receipt or similar facilities entered into in the ordinary course of
business (including in respect of workers compensation claims, health, disability or other
employee benefits or property, casualty or liability insurance or self-insurance or other
Indebtedness with respect to reimbursement-type obligations regarding workers compensation
claims);
(d) subject to compliance with
Section 10.5
, Guarantee Obligations incurred
by (i) Restricted Subsidiaries in respect of Indebtedness of the Parent Borrower or other
Restricted Subsidiaries that is permitted to be incurred under this Agreement (except to the
extent of any express restriction on Guarantee Obligations relating to such Indebtedness
provided for herein) and (ii) the Parent Borrower in respect of Indebtedness of Restricted
Subsidiaries that is permitted to be incurred under this Agreement,
provided
that,
except as provided in
clauses (j)
and
(k)
below, there shall be no guarantee
(a) by a Restricted Subsidiary that is not a U.S. Guarantor of any Indebtedness of a U.S.
Credit Party, or (b) by a Restricted Foreign Subsidiary that is not a European Credit Party
of any Indebtedness of any European Credit Party;
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(e) Guarantee Obligations (i) incurred in the ordinary course of business in
respect of obligations of (or to) suppliers, customers, franchisees, lessors and licensees
or (ii) otherwise constituting Investments permitted by
Sections 10.5(g)(i)(f),
10.5(g)(ii)
,
10.5(i)
or
10.5(q)
;
(f) (i) Indebtedness (including Indebtedness arising under Capital Leases) incurred
within 270 days of the acquisition, construction or improvement of fixed or capital assets
to finance the acquisition, construction or improvement of such fixed or capital assets,
(ii) Indebtedness arising under Capital Leases entered into in connection with Permitted
Sale Leasebacks and (iii) Indebtedness arising under Capital Leases, other than Capital
Leases in effect on the Closing Date and Capital Leases entered into pursuant to
subclauses (i)
and
(ii)
above,
provided
, that the aggregate amount
of Indebtedness incurred pursuant to this
subclause (iii)
at any time outstanding
shall not exceed $300,000,000, and (iv) any modification, replacement, refinancing,
refunding, renewal or extension of any Indebtedness specified in
subclause (i)
,
(ii)
or
(iii)
above,
provided
that, except to the extent otherwise
expressly permitted hereunder, the principal amount thereof does not exceed the principal
amount thereof outstanding immediately prior to such modification, replacement, refinancing,
refunding, renewal or extension except by an amount equal to the unpaid accrued interest and
premium thereon plus other reasonable amounts paid and fees and expenses incurred in
connection with such modification, replacement, refinancing, refunding, renewal or
extension;
(g) (i) Indebtedness outstanding on the Closing Date listed on
Schedule 10.1
to the Original Credit Agreement, (ii) Indebtedness existing on the
Closing Date (after giving effect to the Transactions) and owed by the Parent Borrower or
any Restricted Subsidiary to the Parent Borrower or any Restricted Subsidiary, and any
Guarantee Obligations in respect thereof, but only for so long as such Indebtedness or any
refinancing, refunding or renewal thereof permitted by this
subclause (ii)
is held
by the Parent Borrower, such Restricted Subsidiary or a U.S. Credit Party and, in the case
of each of the preceding
subclauses (i)
and
(ii)
, any modification,
replacement, refinancing, refunding, renewal or extension thereof (or, in the case of
subclause (ii)
only, any intercompany transfer of creditor positions in respect
thereof pursuant to intercompany debt restructurings);
provided
that all such
Indebtedness arising as a result of any such transfer of creditor positions as contemplated
by
subclause (ii)
of (A) any U.S. Credit Party owed to any Person that is not a U.S.
Credit Party or (B) any European Credit Party owed to any Person that is not a Credit Party
shall be subordinated to the Obligations of such Credit Party on customary terms;
provided
further
that except to the extent otherwise expressly permitted
hereunder, in the case of any such modification, replacement, refinancing, refunding,
renewal or extension (but not any such transfer of creditor positions), (x) the principal
amount thereof does not exceed the principal amount thereof outstanding immediately prior to
such modification, replacement, refinancing, refunding, renewal or extension except by an
amount equal to the unpaid accrued interest and premium thereon plus other reasonable
amounts paid and fees and expenses incurred in connection with such modification,
replacement, refinancing, refunding, renewal or extension, (y) the direct and contingent
obligors with respect to such Indebtedness are not changed (except that any U.S. Credit
Party may also be made an obligor thereunder), and (z) except in the case of a refinancing
of Indebtedness pursuant to
subclause (ii)
, either (I) such Indebtedness has a
135
later final maturity and longer weighted average life to maturity than the Indebtedness
being refinanced or (II) no portion of such refinancing Indebtedness matures prior to the
Final Maturity Date (determined as of the date such Indebtedness is incurred);
(h) Indebtedness in respect of Hedge Agreements;
(i) Indebtedness in respect of (x) the Existing Senior Second Lien Notes, (y) any
modification, replacement, refinancing, refunding, renewal or extension of Indebtedness
referred to in the foregoing
subclause (x)
that constitutes Permitted Additional
Debt;
provided
that the principal amount thereof does not exceed the principal
amount thereof outstanding immediately prior to such modification, replacement, refinancing,
refunding, renewal or extension, except by an amount equal to the unpaid accrued interest
and premium thereon plus other reasonable amounts paid and fees and expenses incurred in
connection with such modification, replacement, refinancing, refunding, renewal or extension
and (z) intercompany Indebtedness of Restricted Subsidiaries, and any Guarantee Obligations
in respect thereof, to allocate the Parent Borrowers cost of borrowing with respect to
Indebtedness referred to in
subclauses (x)
and
(y)
to such Subsidiaries or
in respect of Indebtedness incurred following the Closing Date by the Parent Borrower;
(j) (i) Indebtedness of a Person or Indebtedness attaching to assets of a Person
that, in either case, becomes a Restricted Subsidiary (or is a Restricted Subsidiary that
survives a merger with such Person) or Indebtedness attaching to assets that are acquired by
the Parent Borrower or any Restricted Subsidiary, in each case after the Closing Date as the
result of a Permitted Acquisition;
provided
that
(w) such Indebtedness existed at the time such Person became a Restricted
Subsidiary or at the time such assets were acquired and, in each case, was not
created in anticipation thereof, and
(x) such Indebtedness is not guaranteed in any respect by the Parent
Borrower or any Restricted Subsidiary (other than by any such Person that so becomes
a Restricted Subsidiary or is the survivor of a merger with such Person or any of
its Subsidiaries), and
(y) (A) the Stock and Stock Equivalents of such Person are pledged to
secure the U.S. Obligations and/or the European Obligations, as applicable, to the
extent required under
Section 9.12
, and (B) such Person executes a
supplement to the applicable Guarantee and Security Documents (or alternative
guarantee and security agreements in relation to the Obligations reasonably
acceptable to the Collateral Agent) to the extent required under
Section
9.11
or
9.12
, as applicable;
provided
that the requirements of
this
subclause (y)
shall not apply to (I) an aggregate amount at any time
outstanding of up to $600,000,000 of the sum of (1) such Indebtedness (and
modifications, replacements, refinancing, refundings, renewals and extensions
thereof pursuant to
subclause (ii)
below) and (2) all Indebtedness as to
which the proviso to
clause (k)(i)(y)
below then applies and (II) any
Indebtedness of the type that could have been incurred under
subclauses (i)
or
(ii)
of
Section 10.1(f)
; and
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(z) (A) after giving Pro Forma Effect to the incurrence of such
Indebtedness and the application of proceeds thereof, the Parent Borrower is in
compliance with the covenant set forth in
Section 10.8
for the most recently
ended Test Period for which Section 9.1 Financials have been delivered and (B)
except for Indebtedness consisting of Capital Lease Obligations, revenue bonds,
purchase money Indebtedness or mortgages or other Liens on specific assets (1) after
giving effect to the incurrence of such Indebtedness, the aggregate amount of
Scheduled Inside Payments does not exceed the greater of (I) $3,000,000,000 and (II)
50% of Consolidated EBITDA for the most recent Test Period for which Section 9.1
Financials have been delivered, and (2) except for Indebtedness permitted by the
proviso to
subclause (y)
above no portion of such Indebtedness is issued or
guaranteed by a Person that is, or as a result of such acquisition becomes, a
Restricted Subsidiary that is not a U.S. Guarantor; and
(ii) any modification, replacement, refinancing, refunding, renewal or extension of any
Indebtedness specified in
subclause (i)
above,
provided
that, except to the
extent otherwise expressly permitted hereunder, (x) the principal amount of any such
Indebtedness does not exceed the principal amount thereof outstanding immediately prior to
such modification, replacement, refinancing, refunding, renewal or extension except by an
amount equal to the unpaid accrued interest and premium thereon
plus
other
reasonable amounts paid and fees and expenses incurred in connection with such modification,
replacement, refinancing, refunding, renewal or extension, (y) the direct and contingent
obligors with respect to such Indebtedness are not changed and (z) if the Indebtedness being
refinanced, or any guarantee thereof, constituted Subordinated Indebtedness, then such
replacement or refinancing Indebtedness, or such guarantee, respectively, shall be
subordinated to the Obligations to substantially the same extent;
(k) (i) (A) Permitted Additional Debt incurred to finance a Permitted Acquisition
and (B) Indebtedness of the Parent Borrower or any Restricted Subsidiary to finance a
Permitted Acquisition as to which the proviso to
subclause (y)
below applies and
that is not incurred or guaranteed in any respect by any Restricted Subsidiary (other than
by any Person acquired as a result of such Permitted Acquisition or the Restricted
Subsidiary incurring such Indebtedness) or, in the case of Indebtedness of any Restricted
Subsidiary, by the Parent Borrower;
provided
that
(y) (A) the Parent Borrower or another Credit Party pledges the Stock and
Stock Equivalents of such acquired Person to secure the U.S. Obligations and/or the
European Obligations to the extent required under
Section 9.12
and (B) such
acquired Person executes a supplement to the applicable Guarantee and Security
Documents (or alternative guarantee and security arrangements in relation to the
Obligations reasonably acceptable to the Collateral Agent) to the extent required
under
Section 9.11
or
9.12
, as applicable;
provided
that the
requirements of this
subclause (y)
shall not apply to (I) an aggregate
amount at any time outstanding of up to $600,000,000 of the sum of (1) such
Indebtedness (and modifications, replacements, refinancing, refundings, renewals and
extensions thereof pursuant to
subclause (ii)
below) and (2) all
Indebtedness as to which
clause (I)
of the proviso to
clause (j)(i)(y)
above then applies, and
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(z) (A) after giving Pro Forma Effect to the incurrence of such
Indebtedness and the application of proceeds thereof, the Parent Borrower is in
compliance with the covenant set forth in
Section 10.8
for the most recently
ended Test Period for which Section 9.1 Financials have been delivered, (B) after
giving effect to the incurrence or assumption of such Indebtedness, the aggregate
amount of Scheduled Inside Payments does not exceed the greater of (I)
$3,000,000,000 and (II) 50% of Consolidated EBITDA for the most recent Test Period
for which Section 9.1 Financials have been delivered, and (C) except for
Indebtedness permitted by the proviso to
subclause (y)
above, no portion of
such Indebtedness is issued or guaranteed by a Person that is, or as a result of
such acquisition becomes, a Restricted Subsidiary that is not a U.S. Guarantor; and
(ii) any modification, replacement, refinancing, refunding, renewal or extension of any
Indebtedness specified in
subclause (i)
above,
provided
that, except to the
extent otherwise expressly permitted hereunder, (w) the principal amount of any such
Indebtedness does not exceed the principal amount thereof outstanding immediately prior to
such modification, replacement, refinancing, refunding, renewal or extension except by an
amount equal to the unpaid accrued interest and premium thereon
plus
other
reasonable amounts paid and fees and expenses incurred in connection with such modification,
replacement, refinancing, refunding, renewal or extension, (x) the direct and contingent
obligors with respect to such Indebtedness are not changed, (y) there is no scheduled
repayment, mandatory redemption or sinking fund obligation with respect to such Indebtedness
prior to the Final Maturity Date (other than customary offers to purchase upon a change of
control, asset sale or event of loss and customary acceleration rights after an event of
default) except to the extent that after giving effect to the incurrence or assumption of
such Indebtedness, the aggregate amount of Scheduled Inside Payments does not exceed the
greater of (I) $3,000,000,000 and (II) 50% of Consolidated EBITDA for the most recent Test
Period for which Section 9.1 Financials have been delivered and (z) if the Indebtedness
being refinanced, or any guarantee thereof, constituted Subordinated Indebtedness, then such
replacement or refinancing Indebtedness, or such guarantee, respectively, shall be
subordinated to the Obligations to substantially the same extent;
(l) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety
bonds and completion guarantees and similar obligations not in connection with money
borrowed, in each case provided in the ordinary course of business, including those incurred
to secure health, safety and environmental obligations in the ordinary course of business;
(m) (i) Indebtedness incurred in connection with any Permitted Sale Leaseback
(
provided
that the Net Cash Proceeds thereof are promptly applied to the prepayment
of the Term Loans to the extent required by
Section 5.2
) and (ii) any refinancing,
refunding, renewal or extension of any Indebtedness specified in
subclause (i)
above,
provided
that, except to the extent otherwise permitted hereunder, (x) the
principal amount of any such Indebtedness is not increased above the principal amount
thereof outstanding immediately prior to such refinancing, refunding, renewal or extension
and (y) the direct and contingent obligors with respect to such Indebtedness are not
changed;
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(n) (i) additional Indebtedness and (ii) any refinancing, refunding, renewal or
extension of any Indebtedness specified in
subclause (i)
above;
provided
that the aggregate amount of Indebtedness incurred and remaining outstanding pursuant to
this
clause (n)
shall not at any time exceed $1,500,000,000 (of which amount, no
more than $500,000,000 shall be Indebtedness of any Restricted Subsidiary that is not a U.S.
Credit Party);
(o) Indebtedness in respect of (i) Permitted Additional Debt to the extent that the
Net Cash Proceeds therefrom are, immediately after the receipt thereof, applied to the
prepayment of Term Loans in accordance with
Section 5.2
and (ii) any refinancing,
refunding, renewal or extension of any Indebtedness specified in
subclause (i)
above,
provided
that, except to the extent otherwise permitted hereunder, (x) the
principal amount of any such Indebtedness is not increased above the principal amount
thereof outstanding immediately prior to such refinancing, refunding, renewal or extension,
(y) the direct and contingent obligors with respect to such Indebtedness are not changed and
(z) if the Indebtedness being refinanced, or any guarantee thereof, constituted Subordinated
Indebtedness, then such replacement or refinancing Indebtedness, or such guarantee,
respectively, shall be subordinated to the Obligations to substantially the same extent;
(p) Indebtedness in respect of overdraft facilities, employee credit card programs,
netting services, automatic clearinghouse arrangements and other cash management and similar
arrangements in the ordinary course of business;
(q) unsecured Indebtedness in respect of obligations of the Parent Borrower or any
Restricted Subsidiary to pay the deferred purchase price of goods or services or progress
payments in connection with such goods and services,
provided
that such obligations
are incurred in connection with open accounts extended by suppliers on customary trade terms
in the ordinary course of business and not in connection with the borrowing of money or
Hedge Agreements;
(r) Indebtedness arising from agreements of the Parent Borrower or any Restricted
Subsidiary providing for indemnification, adjustment of purchase price or similar
obligations, in each case entered into in connection with the disposition of any business,
assets or Stock permitted hereunder, other than Guarantee Obligations incurred by any Person
acquiring all or any portion of such business, assets or Stock for the purpose of financing
such acquisition,
provided
that such amount is not Indebtedness required to be
reflected on the balance sheet of the Parent Borrower or any Restricted Subsidiary in
accordance with GAAP (contingent obligations referred to in a footnote to financial
statements and not otherwise reflected on the balance sheet will not be deemed to be
reflected on such balance sheet for purposes of this proviso);
(s) Indebtedness of the Parent Borrower or any Restricted Subsidiary consisting of
(i) obligations to pay insurance premiums or (ii) take or pay obligations contained in
supply agreements, in each case arising in the ordinary course of business and not in
connection with the borrowing of money or Hedge Agreements;
139
(t) Indebtedness representing deferred compensation to employees of the Parent
Borrower (or any direct or indirect parent thereof) and the Restricted Subsidiaries incurred
in the ordinary course of business;
(u) Indebtedness consisting of promissory notes issued by the Parent Borrower or
any Guarantor to current or former officers, managers, consultants, directors and employees
(or their respective spouses, former spouses, successors, executors, administrators, heirs,
legatees or distributees) to finance the purchase or redemption of Stock or Stock
Equivalents of the Parent Borrower (or any direct or indirect parent thereof) permitted by
Section 10.6(b)
;
(v) Indebtedness consisting of obligations of the Parent Borrower and the
Restricted Subsidiaries under deferred compensation or other similar arrangements to
officers, employees and directors incurred by such Person in connection with the
Transactions and Permitted Acquisitions or any other Investment expressly permitted
hereunder;
(w) additional Indebtedness of Foreign Subsidiaries in an aggregate principal
amount that at the time of incurrence does not cause the aggregate principal amount of
Indebtedness incurred in reliance on this
clause (w)
to exceed 2.5% of Consolidated
Total Assets at such time;
provided
that for purposes of this
clause (w)
only, Consolidated Total Assets shall be determined only with reference to the assets of
Foreign Subsidiaries;
(x) Indebtedness of the Parent Borrower or any Restricted Subsidiary to any joint
venture (regardless of the form of legal entity) that is not a Subsidiary arising in the
ordinary course of business in connection with the cash management operations (including
with respect to intercompany self-insurance arrangements) of the Parent Borrower and its
Restricted Subsidiaries;
(y) Indebtedness in respect of (i) Future Secured Debt to the extent that such
Future Secured Debt constitutes Ratio First Lien Indebtedness , (ii) Future Secured Debt
consists of the Existing First Lien Notes or is designated as Refinancing Future Secured
Debt and (iii) any refinancing, refunding, renewal or extension of any Indebtedness
specified in
subclause (i)
or
(ii)
above;
provided
that in the case
of this
subclause (iii)
, except to the extent otherwise permitted hereunder, (x) the
principal amount of any such Indebtedness is not increased above the principal amount
thereof outstanding immediately prior to such refinancing, refunding, renewal or extension
(except for any original issue discount thereon and the amount of fees, expenses and premium
in connection with such refinancing), (y) the direct and contingent obligors with respect to
such Indebtedness are not changed and (z) such Indebtedness otherwise complies with
clauses (a)
and
(b)
of the definition of Future Secured Debt; and
(z) (i) Permitted Additional Debt so long as after giving Pro Forma Effect to the
incurrence of such Indebtedness and the application of proceeds thereof, the Parent Borrower
is in compliance with the covenant set forth in
Section 10.8
for the most recently
ended Test Period for which Section 9.1 Financials have been delivered and (ii) any
refinancing, refunding, renewal or extension of any Indebtedness specified in
subclause
(i)
above,
provided
that, except to the extent otherwise permitted hereunder,
140
(x) the principal amount of any such Indebtedness is not increased above the principal
amount thereof outstanding immediately prior to such refinancing, refunding, renewal or
extension, (y) the direct and contingent obligors with respect to such Indebtedness are not
changed and (z) if the Indebtedness being refinanced, or any guarantee thereof, constituted
Subordinated Indebtedness, then such replacement or refinancing Indebtedness, or such
guarantee, respectively, shall be subordinated to the Obligations to substantially the same
extent.
Notwithstanding the foregoing, the Parent Borrower shall not permit any 1993 Indenture
Restricted Subsidiary to create, incur, assume or suffer to exist any Indebtedness, except that the
1993 Indenture Restricted Subsidiaries (other than Healthtrust, except in the case of Indebtedness
owing to any U.S. Credit Party) may create, incur, assume or suffer to exist (x) Indebtedness under
clause (b)
above that is owed to a U.S. Credit Party or another 1993 Indenture Restricted
Subsidiary to the extent permitted under section 1107 of the 1993 Indenture and (y) Indebtedness
that is otherwise permitted in accordance with an exception set forth above in an aggregate
principal amount outstanding at any time that, when aggregated (without duplication) with (i) the
aggregate principal amount of all other Indebtedness (other than Indebtedness permitted by
subclause (x)
above) secured by Liens on any assets of 1993 Indenture Restricted
Subsidiaries and (ii) the aggregate principal amount of all Indebtedness (other than the First Lien
Obligations) secured by Liens on Principal Properties, does not exceed at any time outstanding the
lesser of (A) $600,000,000 and (B) 5% of Consolidated Net Tangible Assets (as defined in the 1993
Indenture as in effect on the Closing Date) determined as of the date of such incurrence, in each
case, to the extent permitted by Section 1107 or 1108 of the 1993 Indenture.
10.2.
Limitation on Liens
. The Parent Borrower will not, and will not permit any of the
Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any property or
assets of any kind (real or personal, tangible or intangible) of the Parent Borrower or any
Restricted Subsidiary, whether now owned or hereafter acquired, except:
(a) Liens arising under (i) the Credit Documents securing the Obligations; (ii) the
U.S. Security Documents securing Future Secured Debt Obligations that constitute First Lien
Obligations permitted to be incurred under
Section 10.1(y)
;
provided
that,
in the case of this
subclause (ii)
, (A) the holders of such Indebtedness (or a
representative thereof on behalf of such holders) shall have delivered to the Collateral
Agent an Additional First Lien Secured Party Consent (as defined in the U.S. Security
Agreement), (B) the Parent Borrower shall have complied with the other requirements of
Section 8.17
of the U.S. Security Agreement with respect to such Future Secured Debt
Obligations, and (C) the Collateral Agent shall have entered into an Additional General
Intercreditor Agreement and an Additional Receivables Intercreditor Agreement with respect
to such Future Secured Debt Obligations and, in the case of the first issuance of Future
Secured Debt constituting First Lien Obligations, the Collateral Agent, the Administrative
Agent and the representative for the holders of such First Lien Obligations shall have
entered into the First Lien Intercreditor Agreement (or supplement thereto) and (iii) any
Future Secured Debt Documents on the Senior Second Lien Notes Collateral securing Future
Secured Debt Obligations permitted to be incurred under
Section 10.1(y)
and secured
by a Lien ranking junior to the Lien securing the Obligations;
provided
that, in the
case of
141
this
subclause (iii)
, such Future Secured Debt Obligations comply with the proviso
to
Section 10.2(c)
;
(b) Liens on the Receivables Collateral securing the ABL Facility under ABL
Documents;
(c) Liens on the Senior Second Lien Notes Collateral securing the Existing Senior
Second Lien Notes and other Permitted Additional Debt permitted by
clauses (i)
,
(k)
,
(o)
or (z) of
Section 10.1
;
provided
that, either (i)
such Indebtedness is subject to the General Intercreditor Agreement as Junior Lien
Obligations pursuant to the requirements of such definition contained in the General
Intercreditor Agreement and, at the time such Indebtedness is incurred, the holders of such
Indebtedness (or a representative thereof on behalf of such holders) shall have agreed, if
any Additional General Intercreditor Agreement is then in effect, that such Indebtedness
shall constitute Junior Lien Obligations under such Additional General Intercreditor
Agreement (and either (x) at the time of the incurrence of such Indebtedness or (y) at the
time, if any, that any future Additional General Intercreditor Agreement is entered into
following such incurrence, such holders or their representative shall agree that such
Indebtedness shall constitute Junior Lien Obligations under such future Additional General
Intercreditor Agreement) or (ii) the holders of such Indebtedness (or a representative
thereof on behalf of such holders) shall have entered into one or more intercreditor
agreements reasonably acceptable to the Collateral Agent providing that the Lien securing
such Indebtedness shall rank junior to the Lien securing the First Lien Obligations on a
basis at least as substantially favorable to the First Lien Secured Parties as the basis on
which the Lien on the Senior Second Lien Notes Collateral ranks junior to the Lien securing
the Obligations on the Closing Date pursuant to the General Intercreditor Agreement);
(d) Permitted Liens;
(e) (i) Liens securing Indebtedness permitted pursuant to
Section 10.1(f)
,
provided
that (x) such Liens attach at all times only to the assets so financed
except for accessions to the property financed with the proceeds of such Indebtedness and
the proceeds and the products thereof and (y) that individual financings of equipment
provided by one lender may be cross collateralized to other financings of equipment provided
by such lender, and (ii) Liens on the assets of Restricted Foreign Subsidiaries that are not
European Credit Parties securing Indebtedness permitted pursuant to
Sections
10.1(n)
, and
(p)
and (iii) Liens on assets of Restricted Foreign Subsidiaries
not constituting Collateral securing Indebtedness permitted by
Section 10.1(w)
;
(f) Liens existing on the Closing Date and listed on
Schedule 10.2
to the
Original Credit Agreement;
(g) the replacement, extension or renewal of any Lien permitted by
clauses
(d)
through
(f)
and
clause (h)
of this
Section 10.2
upon or in
the same assets theretofore subject to such Lien (or upon or in after-acquired property that
is affixed or incorporated into the property covered by such Lien) or the replacement,
extension or renewal (without increase
142
in the amount or change in any direct or contingent obligor except to the extent
otherwise permitted hereunder) of the Indebtedness secured thereby;
(h) Liens existing on the assets of any Person that becomes a Restricted Subsidiary
(or is a Restricted Subsidiary that survives a merger with such Person), or existing on
assets acquired, pursuant to a Permitted Acquisition to the extent the Liens on such assets
secure Indebtedness permitted by
Section 10.1(j)
or other obligations permitted by
this Agreement;
provided
that such Liens attach at all times only to the same assets
to which such Liens attached (and after-acquired property that is affixed or incorporated
into the property covered by such Lien), and secure only the same Indebtedness or
obligations that such Liens secured, immediately prior to such Permitted Acquisition and any
modification, replacement, refinancing, refunding, renewal or extension thereof permitted by
Section 10.1(j)
;
(i) (i) Liens placed upon the Stock and Stock Equivalents of any Restricted
Subsidiary acquired pursuant to a Permitted Acquisition to secure Indebtedness incurred
pursuant to
Section 10.1(k)
in connection with such Permitted Acquisition and
(ii) Liens placed upon the assets of such Restricted Subsidiary to secure Indebtedness of
such Restricted Subsidiary or a guarantee by such Restricted Subsidiary of any Indebtedness
of the Parent Borrower or any other Restricted Subsidiary, incurred pursuant to
Section 10.1(k)
, in each case, in an aggregate amount not to exceed the amount
permitted by the proviso to
subclause (y)
of such
Section 10.1(k)
;
(j) Liens securing Indebtedness or other obligations (i) of the Parent Borrower or
a Restricted Subsidiary in favor of a U.S. Credit Party, (ii) of any Restricted Subsidiary
that is not a U.S. Credit Party or 1993 Indenture Restricted Subsidiary owed to a European
Credit Party and (iii) of any Restricted Subsidiary that is not a Credit Party or a 1993
Indenture Restricted Subsidiary in favor of any Restricted Subsidiary that is not a Credit
Party;
(k) Liens (i) of a collecting bank arising under Section 4-210 of the Uniform
Commercial Code on items in the course of collection, (ii) attaching to commodity trading
accounts or other commodities brokerage accounts incurred in the ordinary course of
business; and (iii) in favor of a banking institution arising as a matter of law encumbering
deposits (including the right of set-off);
(l) Liens (i) on cash advances in favor of the seller of any property to be
acquired in an Investment permitted pursuant to
Section 10.5
to be applied against
the purchase price for such Investment, and (ii) consisting of an agreement to sell,
transfer, lease or otherwise dispose of any property in a transaction permitted under
Section 10.4
, in each case, solely to the extent such Investment or sale,
disposition, transfer or lease, as the case may be, would have been permitted on the date of
the creation of such Lien;
(m) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for sale or purchase of goods entered into by the Parent Borrower or any of the
Restricted Subsidiaries in the ordinary course of business permitted by this Agreement;
143
(n) Liens encumbering reasonable customary initial deposits and margin deposits and
similar Liens attaching to commodity trading accounts or other brokerage accounts incurred
in the ordinary course of business and not for speculative purposes;
(o) Liens that are contractual rights of set-off (i) relating to the establishment
of depository relations with banks not given in connection with the issuance of
Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Parent Borrower or
any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations
incurred in the ordinary course of business of the Parent Borrower and the Restricted
Subsidiaries or (iii) relating to purchase orders and other agreements entered into with
customers of the Parent Borrower or any Restricted Subsidiary in the ordinary course of
business;
(p) Liens solely on any cash earnest money deposits made by the Parent Borrower or
any of the Restricted Subsidiaries in connection with any letter of intent or purchase
agreement permitted hereunder;
(q) Liens on insurance policies and the proceeds thereof securing the financing of
the premiums with respect thereto incurred in the ordinary course of business; and
(r) additional Liens so long as the aggregate principal amount of the obligations
secured thereby does not exceed $1,000,000,000 at any time outstanding (including second
Liens on the Senior Second Lien Notes Collateral but only to the extent the holders (or a
representative thereof) of the obligations secured by such second Liens comply with the
proviso to
clause (c)
above).
Notwithstanding the foregoing, (A) the Parent Borrower will not, and will not permit any
Restricted Subsidiary to, create, incur, assume or suffer to exist any Lien on any Principal
Property other than (i) Liens permitted by the definition of Permitted Liens to the extent
permitted under Section 1105 of the 1993 Indenture, (ii) Liens securing the First Lien Obligations,
and (iii) Liens otherwise permitted by this
Section 10.2
on Principal Properties that are
not Collateral to secure Indebtedness in an aggregate principal amount at any time outstanding
that, when aggregated (without duplication) with (I) the aggregate principal amount of Indebtedness
of 1993 Indenture Restricted Subsidiaries (other than Indebtedness owing to a U.S. Credit Party or
another 1993 Indenture Restricted Subsidiary to the extent permitted under section 1107 of the 1993
Indenture) and (II) the aggregate principal amount of all other Indebtedness (other than
Indebtedness owed to any U.S. Credit Party) secured by Liens on any assets of 1993 Indenture
Restricted Subsidiaries, does not exceed at any time outstanding the lesser of (x) $600,000,000 and
(y) 5% of Consolidated Net Tangible Assets (as defined in the 1993 Indenture as in effect on the
Closing Date) determined as of the date of such incurrence;
provided
, that such Liens are
permitted under the 1993 Indenture without equally and ratably securing the Retained Indebtedness
and (B) the Parent Borrower will not permit any 1993 Indenture Restricted Subsidiary to create,
incur, assume or suffer to exist any Lien on any of its assets other than (i) Liens permitted by
the definition of Permitted Liens, (ii) Liens in favor of the U.S. Credit Parties to the extent
permitted under section 1107 of the 1993 Indenture and (iii) additional Liens otherwise permitted
by this Section 10.2 so long as the aggregate principal amount of the obligations secured thereby,
when aggregated (without duplication) with (I) the aggregate principal amount of Indebtedness of
1993 Indenture Restricted Subsidiaries (other than Indebtedness owing to a U.S. Credit Party
144
or another 1993 Indenture Restricted Subsidiary to the extent permitted under section 1107 of the
1993 Indenture) and (II) the aggregate principal amount of Indebtedness (other than the First Lien
Obligations) secured by Liens on Principal Properties, does not exceed at any time outstanding the
lesser of (x) $600,000,000 and (y) 5% of Consolidated Net Tangible Assets (as defined in the 1993
Indenture as in effect on the Closing Date) determined as of the date of such incurrence.
10.3.
Limitation on Fundamental Changes
. Except as expressly permitted by
Section 10.4
or
10.5
, the Parent Borrower will not, and will not permit any of the
Restricted Subsidiaries to, enter into any merger, consolidation or amalgamation, or liquidate,
wind up or dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease,
assign, transfer or otherwise dispose of, all or substantially all its business units, assets or
other properties, except that:
(a) so long as no Default or Event of Default would result therefrom, any
Subsidiary of the Parent Borrower or any other Person may be merged, amalgamated or
consolidated with or into the Parent Borrower,
provided
that (i) except as permitted
by
subclause (ii)
below, the Parent Borrower shall be the continuing or surviving
corporation, (ii) if the Person formed by or surviving any such merger, amalgamation or
consolidation is not the Parent Borrower (such other Person, the
Successor Borrower
), the
Successor Borrower shall be an entity organized or existing under the laws of the United
States, any state thereof, the District of Columbia or any territory thereof (such Parent
Borrower or such Successor Borrower, as the case may be, being herein referred to as the
Successor Parent Borrower
), (iii) any Successor Borrower shall expressly assume all the
obligations of the Parent Borrower under this Agreement and the other Credit Documents
pursuant to a supplement hereto or thereto in form reasonably satisfactory to the
Administrative Agent, (iv) each U.S. Guarantor, unless it is the other party to such merger
or consolidation, shall have by a supplement to the U.S. Guarantee confirmed that its
guarantee thereunder shall apply to any Successor Borrowers obligations under this
Agreement, (v) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other
party to such merger or consolidation, shall have by a supplement to the U.S. Security
Agreement or the U.S. Pledge Agreement, as applicable, confirmed that its obligations
thereunder shall apply to any Successor Borrowers obligations under this Agreement, (vi)
each mortgagor of a Mortgaged Property, unless it is the other party to such merger or
consolidation, shall have confirmed that its obligations under the applicable Mortgage shall
apply to any Successor Borrowers obligations under this Agreement, (vii) the Successor
Parent Borrower shall be in compliance, on a Pro Forma Basis after giving effect to such
merger or consolidation, with the covenant set forth in
Section 10.8
for the most
recently ended Test Period for which Section 9.1 Financials have been delivered, and (viii)
the Successor Parent Borrower shall have delivered to the Administrative Agent (x) an
officers certificate stating that such merger or consolidation complies with this Agreement
and such supplements (if any) preserve the enforceability of the U.S. Guarantee and the
perfection and priority of the Liens under the applicable Security Documents and (y) if
reasonably requested by the Administrative Agent, an opinion of counsel to the effect that
the merger and consolidation does not violate this Agreement or any other Credit Document
(it being understood that if the foregoing are satisfied, the Successor Parent Borrower will
succeed to, and be substituted for, the Parent Borrower under this Agreement);
145
(b) any Subsidiary of the Parent Borrower or any other Person (in each case, other
than a Borrower) may be merged, amalgamated or consolidated with or into any one or more
Subsidiaries of the Parent Borrower,
provided
that (i) in the case of any merger,
amalgamation or consolidation involving one or more Restricted Subsidiaries, (A) a
Restricted Subsidiary shall be the continuing or surviving Person or (B) the Parent Borrower
shall take all steps necessary to cause the Person formed by or surviving any such merger,
amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted
Subsidiary, (ii) in the case of any merger, amalgamation or consolidation involving one or
more U.S. Guarantors, a U.S. Guarantor shall be the continuing or surviving Person or the
Person formed by or surviving any such merger, amalgamation or consolidation (if other than
a U.S. Guarantor) shall execute a supplement to the U.S. Guarantee Agreement and the
relevant U.S. Security Documents in form and substance reasonably satisfactory to the
Administrative Agent in order to become a U.S. Guarantor and pledgor, mortgagor and grantor,
as applicable, thereunder for the benefit of the Secured Parties, (iii) in the case of any
merger, amalgamation or consolidation involving one or more European Guarantors (other than
any such transaction subject to
subclause (ii)
above or
clause (c)
below) a
European Guarantor shall be the continuing or surviving Person or the Person formed by or
surviving any such merger, amalgamation or consolidation (if other than a European
Guarantor) shall execute a supplement to this Agreement or the applicable European Guarantee
and the relevant European Security Agreement in form and substance reasonably satisfactory
to the Administrative Agent in order to become a European Guarantor and pledgor, mortgagor
and grantor, as applicable, thereunder for the benefit of the European Secured Parties, (iv)
in the case of any merger, amalgamation or consolidation involving one or more 1993
Indenture Restricted Subsidiaries (other than any such transaction subject to
subclause
(ii)
above), a 1993 Indenture Restricted Subsidiary shall be the continuing or surviving
Person, (v) no Default or Event of Default would result from the consummation of such
merger, amalgamation or consolidation, (vi) the Parent Borrower shall be in compliance, on a
Pro Forma Basis after giving effect to such merger, amalgamation or consolidation, with the
covenant set forth in
Section 10.8
for the most recently ended Test Period for which
Section 9.1 Financials have been delivered, and (vii) Parent Borrower shall have delivered
to the Administrative Agent an officers certificate stating that such merger, amalgamation
or consolidation complies with this Agreement and, in the case of any merger, amalgamation
or consolidation involving any Credit Party, any such supplements to any Credit Document as
are necessary to preserve the enforceability of the Guarantees and the perfection and
priority of the Liens under the applicable Security Documents;
(c) so long as no Default or Event of Default would result therefrom, any
Subsidiary of the European Subsidiary Borrower or any other Person (other than a U.S. Credit
Party or a 1993 Indenture Restricted Subsidiary) may be merged, amalgamated or consolidated
with or into the European Subsidiary Borrower,
provided
that (i) the European
Subsidiary Borrower shall be the continuing or surviving Person or the Person formed by or
surviving any such merger, amalgamation or consolidation (if other than the European
Subsidiary Borrower) shall be an entity organized or existing under the laws of the
jurisdiction of organization of the European Subsidiary Borrower prior to any such merger or
consolidation (the European Subsidiary Borrower or such Person, as the case may be, being
herein referred to as a
Successor European Subsidiary Borrower
),
146
(ii) if the Successor European Subsidiary Borrower is other than the European Subsidiary
Borrower prior to such merger, amalgamation or consolidation, (A) the Successor European
Subsidiary Borrower shall expressly assume all the obligations of the European Subsidiary
Borrower under this Agreement and the other Credit Documents pursuant to a supplement hereto
or thereto in form reasonably satisfactory to the Administrative Agent, (B) each European
Guarantor, unless it is the other party to such merger, amalgamation or consolidation, shall
have by a supplement to the applicable European Guarantee confirmed that its guarantee
thereunder shall apply to the Successor European Subsidiary Borrowers obligation under this
Agreement, (C) each European Subsidiary grantor and each European Subsidiary pledgor, unless
it is the other party to such merger, amalgamation or consolidation, shall have by a
supplement to the relevant European Security Agreement, confirmed that its obligations
thereunder shall apply to the Successor European Subsidiary Borrowers obligations under
this Agreement and (D) each mortgagor of a Mortgaged Property securing the European
Obligations, unless it is the other party to such merger or consolidation, shall have
confirmed that its obligations under the applicable Mortgage shall apply to the Successor
European Subsidiary Borrowers obligations under this Agreement, (iii) the Parent Borrower
shall be in compliance, on a Pro Forma Basis after giving effect to such merger or
consolidation, with the covenant set forth in
Section 10.8
for the most recently
ended Test Period for which Section 9.1 Financials have been delivered, and (iv) the
European Subsidiary Borrower shall have delivered to the Administrative Agent (x) an
officers certificate stating that such merger or consolidation complies with this Agreement
and such supplements (if any) to this Agreement preserve the enforceability of the relevant
European Guarantee and the perfection and priority of the Liens under the European Security
Agreement and (y) if reasonably requested by the Administrative Agent, an opinion of counsel
to the effect that the merger and consolidation does not violate this Agreement or any other
Credit Document (it being understood that if the foregoing are satisfied, the Successor
European Subsidiary Borrower will succeed to, and be substituted for, the European
Subsidiary Borrower under this Agreement);
(d) any Restricted Subsidiary that is not a Credit Party or a 1993 Indenture
Restricted Subsidiary may sell, lease, transfer or otherwise dispose of any or all of its
assets (upon voluntary liquidation or otherwise) to the Parent Borrower or any other
Restricted Subsidiary;
(e) any Subsidiary may sell, lease, transfer or otherwise dispose of any or all of
its assets (other than any Principal Property owned by a Subsidiary that is not a U.S.
Credit Party) (upon voluntary liquidation or otherwise) to any U.S.
Credit Party,
provided
that the consideration for any such disposition by any Person other than a U.S. Guarantor
shall not exceed the fair value of such assets;
(f) any European Guarantor may sell, lease, transfer or otherwise dispose of any or
all of its assets (upon voluntary liquidation or otherwise) to another European Credit
Party; and
(g) any Restricted Subsidiary (other than the European Subsidiary Borrower) may
liquidate or dissolve if (i) the Parent Borrower determines in good faith that such
147
liquidation or dissolution is in the best interests of the Parent Borrower and is not
materially disadvantageous to the Lenders, (ii) to the extent such Restricted Subsidiary is
(A) a U.S. Credit Party or a 1993 Indenture Restricted Subsidiary, any assets or business
not otherwise disposed of or transferred in accordance with
Section 10.4
or
10.5
or, in the case of any such business, discontinued, shall be transferred to, or
otherwise owned or conducted by, a U.S. Credit Party (or, in the case of a liquidation or
dissolution of a 1993 Indenture Restricted Subsidiary, another 1993 Indenture Restricted
Subsidiary) after giving effect to such liquidation or dissolution and (B) a European
Guarantor, any assets or business not otherwise disposed of or transferred in accordance
with
Section 10.4
or
10.5
or, in the case of any such business,
discontinued, shall be transferred to or otherwise owned or conducted by, another Credit
Party after giving effect to such liquidation or dissolution.
10.4.
Limitation on Sale of Assets
. (i) The Parent Borrower will not, and will not permit
any of the Restricted Subsidiaries to, convey, sell, lease, assign, transfer or otherwise dispose
of any of its property, business or assets (including receivables, Stock and Stock Equivalents of
any other Person and leasehold interests), whether now owned or hereafter acquired (other than any
such sale, transfer, assignment or other disposition resulting from any casualty or condemnation,
of any assets of the Parent Borrower or the Restricted Subsidiaries) and (ii) the Parent Borrower
will not permit any Restricted Subsidiary to issue any Stock and Stock Equivalents, except, in each
case:
(a) the Parent Borrower and the Restricted Subsidiaries may sell, transfer or
otherwise dispose of (i) inventory, used or surplus equipment, vehicles and other assets in
the ordinary course of business and (ii) Permitted Investments;
(b) Restricted Subsidiaries may issue Stock and Stock Equivalents and the Parent
Borrower and the Restricted Subsidiaries may sell, transfer or otherwise dispose of assets
(each of the foregoing, a
Disposition
), excluding a Disposition of accounts receivable,
except in connection with the Disposition of any business to which such accounts receivable
relate, for fair value in an aggregate amount pursuant to this
clause (b)
, when
aggregated with the amount of Permitted Sale Leaseback Transactions consummated pursuant to
Section 10.4(h)
, not to exceed $6,600,000,000,
provided
that (i) with
respect to any Disposition pursuant to this
clause (b)
for a purchase price in
excess of $100,000,000, the Parent Borrower or a Restricted Subsidiary shall receive not
less than 75% of such consideration in the form of cash or Permitted Investments;
provided
that for the purposes of this
clause (i)
the following shall be
deemed to be cash: (A) any liabilities (as shown on the Parent Borrowers or such Restricted
Subsidiarys most recent balance sheet provided hereunder or in the footnotes thereto) of
the Parent Borrower or such Restricted Subsidiary, other than liabilities that are by their
terms subordinated to the payment in cash of the Obligations, that are assumed by the
transferee with respect to the applicable Disposition and for which the Parent Borrower and
all of the Restricted Subsidiaries shall have been validly released by all applicable
creditors in writing, (B) any securities received by the Parent Borrower or such Restricted
Subsidiary from such transferee that are converted by the Parent Borrower or such Restricted
Subsidiary into cash (to the extent of the cash received) within 180 days following the
closing of the applicable Disposition and (C) any Designated Non-Cash Consideration received
by the Parent
148
Borrower or such Restricted Subsidiary in respect of such Disposition having an aggregate fair
market value, taken together with all other Designated Non-Cash Consideration received pursuant to
this
Section 10.4(b)
and
Section 10.4(c)
that is at that time outstanding, shall
not be in excess of the sum of (x) 1.5% of Consolidated Total Assets at the time of the receipt of
such Designated Non-Cash Consideration,
plus
(y) $100,000,000, with the fair market value
of each item of Designated Non-Cash Consideration being measured at the time received and without
giving effect to subsequent changes in value, (ii) any non-cash proceeds received are pledged to
the Collateral Agent to the extent required under
Section 9.12
, (iii) with respect to any
such sale, transfer or disposition (or series of related sales, transfers or dispositions), the
Parent Borrower shall be in compliance, on a Pro Forma Basis after giving effect to such sale,
transfer or disposition, with the covenant set forth in
Section 10.8
for the most recently
ended Test Period for which Section 9.1 Financials have been delivered, (iv) to the extent
required, the Net Cash Proceeds thereof to the Parent Borrower and the Restricted Subsidiaries are
promptly applied to the prepayment of Term Loans as provided for in
Section 5.2
and (v)
after giving effect to any such sale, transfer or disposition, no Default or Event of Default shall
have occurred and be continuing;
(c) the Parent Borrower and the Restricted Subsidiaries may make Dispositions to
the Parent Borrower or to any Restricted Subsidiary,
provided
that with respect to
any such Dispositions (w) from U.S. Credit Parties to Restricted Subsidiaries that are not
U.S. Credit Parties (x) from European Credit Parties to the Parent Borrower or any
Restricted Subsidiary that is not a European Credit Party, (y) from 1993 Indenture
Restricted Subsidiaries to the Parent Borrower or any Restricted Subsidiary that is not a
1993 Indenture Restricted Subsidiary or (z) from Restricted Subsidiaries that are not Credit
Parties or 1993 Indenture Restricted Subsidiaries to any Credit Party or 1993 Indenture
Restricted Subsidiary (i) such sale, transfer or disposition shall be for fair value, (ii)
with respect to any Disposition pursuant to this
clause (c)
for a purchase price in
excess of $100,000,000, the Person making such Disposition shall receive not less than 75%
of such consideration in the form of cash or Permitted Investments;
provided
that
for the purposes of this
subclause (ii)
the following shall be deemed to be cash:
(A) any liabilities (as shown on the Parent Borrowers or such Restricted Subsidiarys most
recent balance sheet provided hereunder or in the footnotes thereto) of the Parent Borrower
or such Restricted Subsidiary, other than liabilities that are by their terms subordinated
to the payment in cash of the Obligations, that are assumed by the transferee with respect
to the applicable Disposition and for which the Parent Borrower and all of the Restricted
Subsidiaries shall have been validly released by all applicable creditors in writing,
(B) any securities received by the Person making such Disposition from the purchaser that
are converted by such Person into cash (to the extent of the cash received) within 180 days
following the closing of the applicable Disposition, (C) any Designated Non-Cash
Consideration received by the Person making such Disposition having an aggregate fair market
value, taken together with all other Designated Non-Cash Consideration received pursuant to
this
Section 10.4(c)
and
Section 10.4(b)
that is at that time outstanding,
shall not be in excess of the sum of (x) 1.5% of Consolidated Total Assets at the time of
the receipt of such Designated Non-Cash Consideration,
plus
(y) $100,000,000, with
the fair market value of each item of Designated Non-Cash Consideration being measured at
the time received and without giving effect to subsequent changes in value, and (iii) any
non-cash
149
proceeds received are pledged to the Collateral Agent to the extent required under
Section 9.12
;
(d) the Parent Borrower and any Restricted Subsidiary may effect any transaction
permitted by
Section 10.3
,
10.5
or
10.6
(including the making of any
dividend (as defined in
Section 10.6
) by any Subsidiary);
(e) Dispositions of accounts receivable and related assets of 1993 Indenture
Restricted Subsidiaries to ABL Entities in connection with the ABL Facility;
(f) the Parent Borrower and the Restricted Subsidiaries may lease, sublease,
license or sublicense (on a non-exclusive basis with respect to any intellectual property)
real, personal or intellectual property in the ordinary course of business;
(g) Dispositions of property (including like-kind exchanges) to the extent that (i)
such property is exchanged for credit against the purchase price of similar replacement
property or (ii) the proceeds of such Disposition are promptly applied to the purchase price
of such replacement property, in each case under Section 1031 of the Code or otherwise;
(h) Dispositions of property pursuant to Permitted Sale Leaseback transactions in
an aggregate amount pursuant to this
clause (h)
when aggregated with the amount of
Dispositions made pursuant to
clause (b)
above not to exceed $6,600,000,000;
(i) Dispositions of Investments in joint ventures (regardless of the form of legal
entity) to the extent required by, or made pursuant to, customary buy/sell arrangements
between the joint venture parties set forth in joint venture arrangements and similar
binding arrangements;
(j) customary Dispositions in connection with any Permitted Receivables Financing;
(k) dispositions of Stock and Stock Equivalents of any Subsidiary or joint venture
for fair market value to Facility Syndication Partners in connection with any Syndication;
provided
that the fair market value of the aggregate amount of Stock and Stock
Equivalents disposed of pursuant to this
clause (k)
with respect to any individual
Subsidiary (and not subsequently repurchased or redeemed by the Parent Borrower or any
Restricted Subsidiary) shall not exceed $10,000,000; and
(l) A Disposition of any asset between or among the Parent Borrower and/or its
Restricted Subsidiaries as a substantially concurrent interim Disposition in connection with
a Disposition otherwise permitted pursuant to
clauses (a)
through
(k)
above.
Notwithstanding the foregoing, the Parent Borrower will not permit the European Subsidiary
Borrower to cease to be a Restricted Subsidiary unless all European Term Loans shall have been, or
shall concurrently therewith be, repaid.
150
10.5.
Limitation on Investments
. The Parent Borrower will not, and will not permit any
of the Restricted Subsidiaries to make any Investment except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Permitted Investments;
(c) loans and advances to officers, directors and employees of the Parent Borrower (or
any direct or indirect parent thereof) or any of its Subsidiaries or to Physicians with whom
the Parent Borrower or any of its Subsidiaries have contractual relationships (i) for
reasonable and customary business-related travel, entertainment, relocation and analogous
ordinary business purposes (including employee payroll advances), (ii) in connection with
such Persons purchase of Stock or Stock Equivalents of the Parent Borrower (or any direct
or indirect parent thereof) to the extent that the amount of such loans and advances are
directly or indirectly contributed to the Parent Borrower in cash and (iii) for purposes not
described in the foregoing
subclauses (i)
and
(ii)
, in an aggregate
principal amount outstanding pursuant to this
subclause (iii)
not to exceed
$20,000,000;
(d) Investments existing on, or contemplated as of, the Closing Date and either (x)
constituting Indebtedness that is permitted pursuant to
Section 10.1(g)(ii)
or (y)
listed on
Schedule 10.5
to the Original Credit Agreement and any extensions,
renewals or reinvestments thereof, so long as the aggregate amount of all Investments
pursuant to this
clause (d)
is not increased at any time above the amount of such
Investments existing on the Closing Date;
(e) Investments received in connection with the bankruptcy or reorganization of
suppliers or customers and in settlement of delinquent obligations of, and other disputes
with, customers arising in the ordinary course of business or upon foreclosure with respect
to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or
Stock Equivalents of Holdings or Hercules Holdings;
(g) Investments (i) (a) by the Parent Borrower or any Restricted Subsidiary in any U.S.
Credit Party, (b) between or among European Credit Parties, (c) between or among 1993
Indenture Restricted Subsidiaries, (d) between or among Restricted Subsidiaries that are
neither Credit Parties nor 1993 Indenture Restricted Subsidiaries, (e) consisting of
intercompany Investments incurred in the ordinary course of business in connection with the
cash management operations (including with respect to intercompany self-insurance
arrangements) among the Parent Borrower and the Restricted Subsidiaries (
provided
that any such intercompany Investment in connection with cash management arrangements by (A)
a Credit Party in a Subsidiary that is not a Credit Party or (B) a U.S. Credit Party in a
European Credit Party is in the form of an intercompany loan or advance and the Parent
Borrower or such Restricted Subsidiary complies with
Section 9.12
to the extent
applicable) and (f) by the Parent Borrower or any Restricted Subsidiary in any Restricted
151
Subsidiary,
provided
that such Investment is used, directly or as a
result of substantially concurrent transfers, to repay intercompany Indebtedness owed to any
U.S. Credit Party and (ii) (a) by Credit Parties in any Restricted Subsidiary that is not a
Credit Party, (b) by 1993 Indenture Restricted Subsidiaries in any Restricted Subsidiary
that is not a 1993 Indenture Restricted Subsidiary, (c) by any Restricted Subsidiary that is
neither a Credit Party nor a 1993 Indenture Restricted Subsidiary in any European Credit
Party or any 1993 Indenture Restricted Subsidiary or (d) by U.S. Credit Parties in a
European Credit Party, in each case valued at the fair market value (determined by the
Parent Borrower acting in good faith) of such Investment at the time each such Investment
was made, in an aggregate amount pursuant to this
subclause (ii)
that, at the time
each such Investment is made, would not exceed (x) the excess of (A) the greater of (I)
$3,000,000,000 and (II) 12% of Total Assets over (B) the amount of Investments outstanding
at such time in reliance on
Section 10.5(i)(ii)(x)
at such time plus (y) the
Applicable Amount at such time;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments
in Unrestricted Subsidiaries and (ii) Investments in joint ventures (regardless of the form
of legal entity) or similar Persons that do not constitute Restricted Subsidiaries), in each
case valued at the fair market value (determined by the Parent Borrower acting in good
faith) of such Investment at the time each such Investment is made, in an aggregate amount
pursuant to this
clause (i)
that, at the time each such Investment is made, would
not exceed the sum of (x) the excess of (A) the greater of (I) $3,000,000,000 and (II) 12%
of Total Assets over (B) the amount of Investments outstanding at such time in reliance on
Section 10.5(g)(ii)(x)
at such time,
plus
(y) the Applicable Amount at such
time
plus
(z) without duplication of any amount that increased the JV Distribution
Amount, an amount equal to any repayments, interest, returns, profits, distributions, income
and similar amounts actually received in cash in respect of any such Investment (which
amount referred to in this
subclause (z)
shall not exceed the amount of such
Investment valued at the fair market value of such Investment at the time such Investment
was made);
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent
permitted by
Section 10.4
;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Parent
Borrower or any direct or indirect parent thereof owned by any employee or any employee
stock ownership plan or key employee stock ownership plan of the Parent Borrower (or any
direct or indirect parent thereof);
(l) Investments permitted under
Section 10.6
;
(m) loans and advance to any direct or indirect parent of the Parent Borrower in lieu
of, and not in excess of the amount of, dividends to the extent permitted to be made to such
parent in accordance with
Section 10.6
;
152
(n) Investments consisting of extensions of credit in the nature of accounts receivable
or notes receivable arising from the grant of trade credit in the ordinary course of
business, and Investments received in satisfaction or partial satisfaction thereof from
financially troubled account debtors and other credits to suppliers in the ordinary course
of business;
(o) Investments in the ordinary course of business consisting of endorsements for
collection or deposit and customary trade arrangements with customers consistent with past
practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Parent Borrower or any Restricted Subsidiary of leases
(other than Capital Leases) or of other obligations that do not constitute Indebtedness, in
each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation)
after the Closing Date otherwise in accordance with this
Section 10.5
to the extent
that such Investments were not made in contemplation of or in connection with such
acquisition, merger or consolidation and were in existence on the date of such acquisition,
merger or consolidation;
(s) Investments by 1993 Indenture Restricted Subsidiaries of accounts receivable and
related assets in ABL Entities;
(t) Investments arising out of or in connection with any Permitted Receivables
Financing;
(u) Investments by the Parent Borrower in the European Subsidiary Borrower arising as a
result of any payment made by the Parent Borrower in respect of European-1 Tranche Term
Loans pursuant to
Section 5.2(a)(ii)
;
(v) Investments by the Parent Borrower and the Restricted Subsidiaries in any joint
venture (regardless of the form of legal entity) or Restricted Subsidiary in an aggregate
amount at any time outstanding not to exceed the sum of (A) $600,000,000
plus
(B)
the JV Distribution Amount
plus
(C) without duplication of any amount that increased
the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits,
distributions, income and similar amounts actually received in cash in respect of any such
Investment (which amount referred to in this
subclause (C)
shall not exceed the
amount of such Investment valued at the fair market value of such Investment at the time
such Investment was made);
provided
, that the aggregate amount of Investments made
in reliance on
subclause (B)
or
(C)
above by (i) the U.S. Credit Parties
shall not exceed the aggregate of the amounts referred to in such subclauses that were
directly or indirectly received by U.S. Credit Parties and (ii) the European Credit Parties
shall not exceed the aggregate of the amounts referred to in such subclauses that were
directly or indirectly received by European Credit Parties;
153
(w) any redemption by Healthtrust, or transfer to Healthtrust or the Parent Borrower,
of shares of Stock of Healthtrust held by ColumbiaSDH and Epic Properties;
(x) intercompany transfers of creditor positions (i) in respect of Indebtedness
outstanding pursuant to Sections 10.1(a), 10.1(g)(ii) or 10.1(i), and (ii) in respect of any
other intercompany Indebtedness;
provided
that the transfer of credit positions
described in this clause (ii) is used, directly or as a result of substantially concurrent
transfers, to repay intercompany Indebtedness owed to any U.S. Credit Party; and
(y) Investments constituting Indebtedness outstanding pursuant to
Section
10.1(a)(z)
and
10.1(i)(z)
.
10.6.
Limitation on Dividends
. The Parent Borrower will not declare or pay any dividends
(other than dividends payable solely in its Qualified Equity Interests) or return any capital to
its stockholders (including any option holders) or make any other distribution, payment or delivery
of property or cash to its stockholders as such, or redeem, retire, purchase or otherwise acquire,
directly or indirectly, for consideration, any shares of any class of its Stock or Stock
Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or hereafter
outstanding, or set aside any funds for any of the foregoing purposes, or permit any of the
Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in
connection with an Investment permitted by
Section 10.5
) any Stock or Stock Equivalents of
the Parent Borrower, now or hereafter outstanding (all of the foregoing,
dividends
),
provided
that, so long as no Default or Event of Default exists or would exist after giving
effect thereto:
(a) the Parent Borrower may (or may pay dividends to permit any direct or indirect
parent thereof to) redeem in whole or in part any of its Stock or Stock Equivalents for
another class of its (or such parents) Stock or Stock Equivalents or with proceeds from
substantially concurrent equity contributions or issuances of new Stock or Stock
Equivalents,
provided
that such new Stock or Stock Equivalents contain terms and
provisions at least as advantageous to the Lenders in all respects material to their
interests as those contained in the Stock or Stock Equivalents redeemed thereby;
(b) the Parent Borrower may (or may pay dividends to permit any direct or indirect
parent thereof to) repurchase shares of its (or such parents) Stock or Stock Equivalents
held by officers, directors and employees of the Parent Borrower and its Subsidiaries (other
than the Frist Shareholders), so long as such repurchase is pursuant to, and in accordance
with the terms of, management and/or employee stock plans, stock subscription agreements or
shareholder agreements;
(c) the Parent Borrower may pay dividends on the Stock or Stock Equivalents,
provided
that the amount of any such dividends pursuant to this
clause (c)
shall not exceed an amount equal to (i) $600,000,000,
less
(ii) the amount of Junior
Indebtedness purchased in reliance on
Section 10.7(a)(i)(x)
of the Original Credit
Agreement,
plus
(iii) the Applicable Amount at such time; and
154
(d) the Parent Borrower may pay dividends:
(i) the proceeds of which will be used to pay (or to pay dividends to allow any
direct or indirect parent of the Parent Borrower to pay) (A) the tax liability to
each relevant jurisdiction in respect of consolidated, combined, unitary or
affiliated returns for the relevant jurisdiction of such parent attributable to the
Parent Borrower or its Restricted Subsidiaries determined as if the Parent Borrower
and its Restricted Subsidiaries filed separately and (B) for as long as Hercules
Holdings is a direct or indirect parent of the Parent Borrower, distributions equal
to any taxable income of Holdings or Hercules Holdings resulting from the hedging
arrangements entered into by Hercules Holdings on or about September 13, 2006 and
with respect to which the Parent Borrower is the counterparty multiplied by 45%;
(ii) the proceeds of which shall be used to allow any direct or indirect parent
of the Parent Borrower to pay (A) its operating expenses incurred in the ordinary
course of business and other corporate overhead costs and expenses (including
administrative, legal, accounting and similar expenses provided by third parties),
which are reasonable and customary and incurred in the ordinary course of business,
in an aggregate amount not to exceed $10,000,000 in any fiscal year of the Parent
Borrower
plus
any reasonable and customary indemnification claims made by
directors or officers of the Parent Borrower (or any parent thereof) attributable to
the ownership or operations of the Parent Borrower and its Restricted Subsidiaries
or (B) fees and expenses otherwise due and payable by the Parent Borrower or any of
its Restricted Subsidiaries and permitted to be paid by the Parent Borrower or such
Restricted Subsidiary under this Agreement;
(iii) the proceeds of which shall be used to pay franchise and excise taxes and
other fees, taxes and expenses required to maintain the corporate existence of any
of its direct or indirect parent of the Parent Borrower; and
(iv) to any direct or indirect parent of the Parent Borrower to finance any
Investment permitted to be made by the Parent Borrower or a Restricted Subsidiary
pursuant to
Section 10.5
;
provided
that (A) such dividend shall be
made substantially concurrently with the closing of such Investment, (B) such parent
shall, immediately following the closing thereof, cause (1) all property acquired
(whether assets, Stock or Stock Equivalents) to be contributed to the Parent
Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in
Section 10.5
) of the Person formed or acquired into the Parent Borrower or
its Restricted Subsidiaries and (C) Parent Borrower shall comply with
Sections
9.11
and
9.12
to the extent applicable; and
(e) the Parent Borrower may pay cash dividends to Holdings for Holdings to pay cash
dividends, after the fifth anniversary of the date of issuance of any Qualified Holdings
Debt solely for the purpose of paying regularly scheduled interest payments with respect to
such Qualified Holdings Debt, so long as on a Pro Forma Basis after giving effect to the
payments of such dividends (i) the Parent Borrower shall be in compliance
155
with the covenant set forth in
Section 10.8
for the most recently ended
Test Period for which Section 9.1 Financials have been delivered and (ii) the Consolidated
EBITDA to Consolidated Interest Expense Ratio would be greater than or equal to 1.75 to 1.00
for the most recently ended Test Period for which Section 9.1 Financials have been
delivered.
10.7.
Limitations on Sale Leasebacks
. The Parent Borrower will not, and will not permit any
of the Restricted Subsidiaries to, enter into or effect any Sale Leasebacks other than Permitted
Sale Leasebacks.
10.8.
Consolidated Total Debt to Consolidated EBITDA Ratio
. The Parent Borrower will not
permit the Consolidated Total Debt to Consolidated EBITDA Ratio for any Test Period ending during
any period set forth below to be greater than the ratio set forth below opposite such period:
|
|
|
Period
|
|
Ratio
|
January 1, 2011 through December 31, 2011
|
|
7.25 to 1.00
|
January 1, 2012 through Final Maturity Date
|
|
6.75 to 1.00
|
10.9.
Changes in Business
.
(a) The Parent Borrower and the Subsidiaries, taken as a whole, will not fundamentally and
substantively alter the character of their business, taken as a whole, from the business conducted
by the Parent Borrower and the Subsidiaries, taken as a whole, on the Closing Date and other
business activities incidental or related to any of the foregoing.
(b) Healthtrust shall not engage in any business other than (i) owning (x) its ownership in
the Stock and Stock Equivalents of Subsidiaries of the Parent Borrower and activities and
properties incidental thereto and (y) other assets owned by it on the Closing Date and (ii)
performing its obligations pursuant to agreements in effect on the Closing Date and any automatic
extensions thereof.
10.10.
1993 Indenture Restricted Subsidiaries
. The Parent Borrower shall not designate any
additional Subsidiary as a Restricted Subsidiary under the 1993 Indenture or reorganize or change
the ownership structure of any of its Subsidiaries such that after giving effect to such
reorganization or change a Subsidiary that constituted an Unrestricted Subsidiary under the 1993
Indenture subsequently constitutes a Restricted Subsidiary thereunder.
10.11.
No Impairment of Mortgages on Principal Properties
. For the avoidance of doubt and
notwithstanding anything herein to the contrary, the Parent Borrower agrees not to take, or permit
any Subsidiary to take, any action that would result in the principal amount of the First Lien
Obligations that could be secured by the Principal Properties pursuant to Section 1108 of the 1993
Indenture (after giving effect to all other uses of the exemption provided in such Section 1108 of
the 1993 Indenture) being less than 10% of Consolidated Net Tangible Assets (as defined in the 1993
Indenture as in effect on the Closing Date) of the Company (as defined in the 1993 Indenture as in
effect on the Closing Date) and its Consolidated Subsidiaries (as defined in the 1993 Indenture as
in effect on the Closing Date) determined as of the Closing Date.
156
SECTION 11.
Events of Default
Upon the occurrence of any of the following specified events (each an
Event of Default
):
11.1.
Payments
. Any Borrower shall (a) default in the payment when due of any principal of
the Loans or (b) default, and such default shall continue for five or more days, in the payment
when due of any interest on the Loans or any Fees or any Unpaid Drawings or of any other amounts
owing hereunder or under any other Credit Document; or
11.2.
Representations, Etc
. Any representation, warranty or statement made or deemed made
by any Credit Party herein or in any Credit Document or any certificate delivered or required to be
delivered pursuant hereto or thereto shall prove to be untrue in any material respect on the date
as of which made or deemed made; or
11.3.
Covenants
. Any Credit Party shall:
(a) default in the due performance or observance by it of any term, covenant or
agreement contained in
Section 9.1(e)
or
Section 10
; or
(b) default in the due performance or observance by it of any term, covenant or
agreement (other than those referred to in
Section 11.1
or
11.2
or
clause (a)
of this
Section 11.3
) contained in this Agreement, any Security
Document, any Guarantee or the Fee Letter dated July 24, 2006 between Hercules Holdings and
the Agents and such default shall continue unremedied for a period of at least 30 days after
receipt of written notice by the Parent Borrower from any Administrative Agent or the
Required Lenders; or
11.4.
Default Under Other Agreements
. (a) The Parent Borrower or any of the Restricted
Subsidiaries shall (i) default in any payment with respect to any Indebtedness (other than the
Obligations) in excess of $150,000,000 in the aggregate, for the Parent Borrower and such
Restricted Subsidiaries, beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness was created or (ii) default in the observance or
performance of any agreement or condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or
condition exist (other than, with respect to Indebtedness consisting of any Hedge Agreements,
termination events or equivalent events pursuant to the terms of such Hedge Agreements), the effect
of which default or other event or condition is to cause, or to permit the holder or holders of
such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, any such
Indebtedness to become due prior to its stated maturity; or (b) without limiting the provisions of
clause (a)
above, any such Indebtedness shall be declared to be due and payable, or
required to be prepaid other than by a regularly scheduled required prepayment or as a mandatory
prepayment (and, with respect to Indebtedness consisting of any Hedge Agreements, other than due to
a termination event or equivalent event pursuant to the terms of such Hedge Agreements), prior to
the stated maturity thereof; or
11.5.
Bankruptcy, Etc
. Any Borrower or any Specified Subsidiary shall commence a voluntary
case, proceeding or action concerning itself under (a) Title 11 of the United States Code entitled
Bankruptcy, or (b) in the case of any Foreign Subsidiary that is a Specified
157
Subsidiary, any domestic or foreign law relating to bankruptcy, judicial management,
insolvency, reorganization, administration or relief of debtors in effect in its jurisdiction of
incorporation, in each case as now or hereafter in effect, or any successor thereto (collectively,
the
Bankruptcy Code
); or an involuntary case, proceeding or action is commenced against any
Borrower or any Specified Subsidiary and the petition is not controverted within 30 days after
commencement of the case, proceeding or action; or an involuntary case, proceeding or action is
commenced against any Borrower or any Specified Subsidiary and the petition is not dismissed within
60 days after commencement of the case, proceeding or action; or a custodian (as defined in the
Bankruptcy Code), judicial manager, receiver, receiver manager, trustee, administrator or similar
person is appointed for, or takes charge of, all or substantially all of the property of any
Borrower or any Specified Subsidiary; or any Borrower or any Specified Subsidiary commences any
other voluntary proceeding or action under any reorganization, arrangement, adjustment of debt,
relief of debtors, dissolution, insolvency, administration or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to any Borrower or any Specified
Subsidiary; or there is commenced against any Borrower or any Specified Subsidiary any such
proceeding or action that remains undismissed for a period of 60 days; or any Borrower or any
Specified Subsidiary is adjudicated insolvent or bankrupt; or any order of relief or other order
approving any such case or proceeding or action is entered; or any Borrower or any Specified
Subsidiary suffers any appointment of any custodian receiver, receiver manager, trustee,
administrator or the like for it or any substantial part of its property to continue undischarged
or unstayed for a period of 60 days; or any Borrower or any Specified Subsidiary makes a general
assignment for the benefit of creditors; or any corporate action is taken by any Borrower or any
Specified Subsidiary for the purpose of effecting any of the foregoing; or
11.6.
ERISA
. (a) Any Plan shall fail to satisfy the minimum funding standard required for
any plan year or part thereof or a waiver of such standard or extension of any amortization period
is sought or granted under Section 412 of the Code; any Plan is or shall have been terminated or is
the subject of termination proceedings under ERISA (including the giving of written notice
thereof); an event shall have occurred or a condition shall exist in either case entitling the PBGC
to terminate any Plan or to appoint a trustee to administer any Plan (including the giving of
written notice thereof); any Plan shall have an accumulated funding deficiency (whether or not
waived); the Parent Borrower or any ERISA Affiliate has incurred or is likely to incur a liability
to or on account of a Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or
4204 of ERISA or Section 4971 or 4975 of the Code (including the giving of written notice thereof);
(b) there could result from any event or events set forth in
clause (a)
of this
Section
11.6
the imposition of a lien, the granting of a security interest, or a liability, or the
reasonable likelihood of incurring a lien, security interest or liability; and (c) such lien,
security interest or liability will or would be reasonably likely to have a Material Adverse
Effect; or
11.7.
Guarantee
. Any Guarantee provided by any Borrower or any Material Subsidiary or any
material provision thereof shall cease to be in full force or effect (other than pursuant to the
terms hereof and thereof) or any such Guarantor thereunder or any Credit Party shall deny or
disaffirm in writing any such Guarantors obligations under the Guarantee (or any of the foregoing
shall occur with respect to a Guarantee provided by a Subsidiary that is not a Material Subsidiary
and shall continue unremedied for a period of at least 30 days after receipt of written notice by
the Parent Borrower from any Administrative Agent, the Collateral Agent or the Required Lenders);
or
158
11.8.
Pledge Agreement
. Any Pledge Agreement pursuant to which the Stock or Stock
Equivalents of any Borrower or any Material Subsidiary is pledged or any material provision thereof
shall cease to be in full force or effect (other than pursuant to the terms hereof or thereof or as
a result of acts or omissions of the Collateral Agent or any Lender) or any pledgor thereunder or
any Credit Party shall deny or disaffirm in writing any pledgors obligations under any Pledge
Agreement (or any of the foregoing shall occur with respect to a pledge of the Stock or Stock
Equivalents of a Subsidiary that is not a Material Subsidiary and shall continue unremedied for a
period of at least 30 days after receipt of written notice by the Parent Borrower from the
Administrative Agent, the Collateral Agent or the Required Lenders); or
11.9.
Security Agreement
. The U.S. Security Agreement or the European Security Agreement
pursuant to which the assets of the Parent Borrower or any Material Subsidiary are pledged as
Collateral or any material provision thereof shall cease to be in full force or effect (other than
pursuant to the terms hereof or thereof or as a result of acts or omissions of the Collateral Agent
or any Lender) or any grantor thereunder or any Credit Party shall deny or disaffirm in writing any
grantors obligations under the U.S. Security Agreement or such European Security Agreement (or any
of the foregoing shall occur with respect to Collateral provided by a Subsidiary that is not a
Material Subsidiary and shall continue unremedied for a period of at least 30 days after receipt of
written notice by the Parent Borrower from the Administrative Agent, the Collateral Agent or the
Required Lenders); or
11.10.
Mortgages
. Any Mortgage or any material provision of any Mortgage relating to any
material portion of the Collateral shall cease to be in full force or effect (other than pursuant
to the terms hereof or thereof or as a result of acts or omissions of the Collateral Agent or any
Lender) or any mortgagor thereunder or any Credit Party shall deny or disaffirm in writing any
mortgagors obligations under any Mortgage; or
11.11.
Judgments
. One or more judgments or decrees shall be entered against the Parent
Borrower or any of the Restricted Subsidiaries involving a liability of $150,000,000 or more in the
aggregate for all such judgments and decrees for the Parent Borrower and the Restricted
Subsidiaries (to the extent not paid or covered by insurance provided by a carrier not disputing
coverage) and any such judgments or decrees shall not have been satisfied, vacated, discharged or
stayed or bonded pending appeal within 60 days after the entry thereof; or
11.12.
Change of Control
. A Change of Control shall occur;
then, and in any such event, and at any time thereafter, if any Event of Default shall then be
continuing, the Administrative Agent shall, upon the written request of the Required Lenders, by
written notice to the Parent Borrower, take any or all of the following actions, without prejudice
to the rights of the Administrative Agent or any Lender to enforce its claims against the
Borrowers, except as otherwise specifically provided for in this Agreement (
provided
that,
if an Event of Default specified in
Section 11.5
shall occur with respect to the Parent
Borrower, the result that would occur upon the giving of written notice by the Administrative Agent
as specified in
clauses (i)
,
(ii)
and
(iv)
below shall occur automatically
without the giving of any such notice): (i) declare the Total Revolving Credit Commitment and
Swingline Commitment terminated, whereupon the Revolving Credit Commitment and Swingline
Commitment, if any, of each Lender or the Swingline Lender, as the case may be, shall forthwith
terminate immediately and
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any Fees theretofore accrued shall forthwith become due and payable without any other notice of any
kind; (ii) declare the principal of and any accrued interest and fees in respect of all Loans and
all Obligations owing hereunder and thereunder to be, whereupon the same shall become, forthwith
due and payable without presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Parent Borrower; (iii) terminate any Letter of Credit that may be terminated
in accordance with its terms; and/or (iv) direct the Parent Borrower to pay (and the Parent
Borrower agrees that upon receipt of such notice, or upon the occurrence of an Event of Default
specified in
Section 11.5
with respect to any Borrower, it will pay) to the Administrative
Agent at the Administrative Agents Office such additional amounts of cash, to be held as security
for the Parent Borrowers respective reimbursement obligations for Drawings that may subsequently
occur thereunder, equal to the aggregate Stated Amount of all Letters of Credit issued and then
outstanding. In connection with any acceleration of the Obligations as contemplated by
clause
(ii)
above, the Designated Obligations shall, automatically and with no further action required
by the Administrative Agent, any Credit Party or any Lender, be converted into the Dollar
Equivalent, determined using the Spot Rate calculated as of the date of such acceleration (or, in
the case of any Unpaid Drawings following the date of such acceleration, as of the date of drawing
under the applicable Letter of Credit) and from and after such date all amounts accruing and owed
to the Lenders in respect of such Designated Obligations shall accrue and be payable in Dollars at
the rate otherwise applicable hereunder.
Any amount received by the Administrative Agent or the Collateral Agent from any Credit Party
following any acceleration of the Obligations under this Agreement or any Event of Default with
respect to the Parent Borrower under
Section 11.5
shall be applied:
(i)
first
, to the payment of all reasonable and documented costs and expenses incurred
by the Administrative Agent or Collateral Agent in connection with such collection or sale
or otherwise in connection with any Credit Document, including all court costs and the
reasonable fees and expenses of its agents and legal counsel, the repayment of all advances
made by the Administrative Agent or the Collateral Agent hereunder or under any other Credit
Document on behalf of any Credit Party and any other reasonable and documented costs or
expenses incurred in connection with the exercise of any right or remedy hereunder or under
any other Credit Document;
(ii)
second
, to the Secured Parties, an amount (x) equal to all Obligations owing to
them on the date of any distribution and (y) sufficient to Cash Collateralize all Letters of
Credit Outstanding on the date of any distribution, and, if such moneys shall be
insufficient to pay such amounts in full and Cash Collateralize all Letters of Credit
Outstanding, then ratably (without priority of any one over any other) to such Secured
Parties in proportion to the unpaid amounts thereof and to Cash Collateralize the Letters of
Credit Outstanding; and
(iii)
third
, any surplus then remaining shall be paid to the applicable Credit Parties
or their successors or assigns or to whomsoever may be lawfully entitled to receive the same
or as a court of competent jurisdiction may direct;
provided
that (x) no amount received from any European Credit Party or on account of any
Collateral that is solely Collateral for the European Obligations shall be applied pursuant to
clauses
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(i)
or
(ii)
of this paragraph to the extent such amounts do not constitute European
Obligations and (y) any amount applied to Cash Collateralize any Letters of Credit Outstanding that
has not been applied to reimburse the Letter of Credit Issuer for Unpaid Drawings under the
applicable Letters of Credit at the time of expiration of all such Letters of Credit shall be
applied by the Administrative Agent in the order specified in
clauses (i)
through
(iii)
above.
SECTION 12.
Investors Right to Cure
. Notwithstanding anything to the contrary contained in
Section 11.3(a)
, in the event that the Parent Borrower fails to comply with the requirement
of the covenants set forth in
Section 10.8
, until the expiration of the tenth day after the
date on which Section 9.1 Financials with respect to the Test Period in which the covenant set
forth in such Section is being measured are required to be delivered pursuant to
Section
9.1
, any of the Investors shall have the right to make a direct or indirect equity investment
in the Parent Borrower in cash (the
Cure Right
), and upon the receipt by the Parent Borrower of
net cash proceeds pursuant to the exercise of the Cure Right (including through the capital
contribution of any such net cash proceeds to such person, the
Cure Amount
), the covenant set
forth in such Section shall be recalculated, giving effect to a
pro forma
increase to Consolidated
EBITDA for such Test Period in an amount equal to such net cash proceeds;
provided
that
such
pro forma
adjustment to Consolidated EBITDA shall be given solely for the purpose of
determining the existence of a Default or an Event of Default under the covenant set forth in such
Section with respect to any Test Period that includes the fiscal quarter for which such Cure Right
was exercised and not for any other purpose under any Credit Document.
If, after the exercise of the Cure Right and the recalculations pursuant to
clause (a)
above, the Parent Borrower shall then be in compliance with the requirements of the covenant set
forth in
Section 10.8
during such Test Period (including for purposes of
Section
7.1
), the Parent Borrower shall be deemed to have satisfied the requirements of such covenant
as of the relevant date of determination with the same effect as though there had been no failure
to comply therewith at such date, and the applicable Default or Event of Default under
Section
11.3
that had occurred shall be deemed cured;
provided
that (i) in each Test Period
there shall be at least one fiscal quarter in which no Cure Right is exercised and (ii) with
respect to any exercise of the Cure Right, the Cure Amount shall be no greater than the amount
required to cause the Parent Borrower to be in compliance with the covenant set forth in
Section 10.8
.
SECTION 13.
The Agents
.
13.1.
Appointment
.
(a) Each Lender hereby irrevocably designates and appoints the Administrative Agent as the
agent of such Lender under this Agreement and the other Credit Documents and irrevocably authorizes
the Administrative Agent, in such capacity, to take such action on its behalf under the provisions
of this Agreement and the other Credit Documents and to exercise such powers and perform such
duties as are expressly delegated to the Administrative Agent by the terms of this Agreement and
the other Credit Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the Administrative Agent
shall not have any duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied
161
covenants, functions, responsibilities, duties, obligations or liabilities shall be read into
this Agreement or any other Credit Document or otherwise exist against the Administrative Agent.
(b) The Administrative Agent, each Lender, the Swingline Lender and the Letter of Credit
Issuer hereby irrevocably designate and appoint the Collateral Agent as the agent with respect to
the Collateral, and each of the Administrative Agent, each Lender, the Swingline Lender and the
Letter of Credit Issuer irrevocably authorizes the Collateral Agent, in such capacity, to take such
action on its behalf under the provisions of this Agreement and the other Credit Documents and to
exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by
the terms of this Agreement and the other Credit Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Collateral Agent shall not have any duties or responsibilities except those
expressly set forth herein, or any fiduciary relationship with any of the Administrative Agent, the
Lenders, the Swingline Lender or the Letter of Credit Issuers, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other
Credit Document or otherwise exist against the Collateral Agent.
(c) Each of the Co-Syndication Agents, Joint Lead Arrangers and Bookrunners, Joint Bookrunners
and the Documentation Agent, each in its capacity as such, shall not have any obligations, duties
or responsibilities under this Agreement but shall be entitled to all benefits of this
Section
13
.
13.2.
Delegation of Duties
. The Administrative Agent and the Collateral Agent may each
execute any of its duties under this Agreement and the other Credit Documents by or through agents
or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining
to such duties. Neither the Administrative Agent nor the Collateral Agent shall be responsible for
the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
13.3.
Exculpatory Provisions
. No Agent nor any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates shall be (a) liable for any action lawfully taken or
omitted to be taken by it or such Person under or in connection with this Agreement or any other
Credit Document (except for its or such Persons own gross negligence or willful misconduct) or (b)
responsible in any manner to any of the Lenders for any recitals, statements, representations or
warranties made by any of any Borrower, any Guarantor, any other Credit Party or any officer
thereof contained in this Agreement or any other Credit Document or in any certificate, report,
statement or other document referred to or provided for in, or received by such Agent under or in
connection with, this Agreement or any other Credit Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Credit
Document or for any failure of any Borrower, any Guarantor or any other Credit Party to perform its
obligations hereunder or thereunder. No Agent shall be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the agreements contained in,
or conditions of, this Agreement or any other Credit Document, or to inspect the properties, books
or records of any Credit Party. The Collateral Agent shall not be under any obligation to the
Administrative Agent, any Lender, the Swingline Lender or any Letter of Credit Issuer to ascertain
or to inquire as to the observance or performance of any of the agreements contained in,
162
or conditions of, this Agreement or any other Credit Document, or to inspect the properties,
books or records of any Credit Party.
13.4.
Reliance by Agents
. The Administrative Agent and the Collateral Agent shall be
entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy, telex or teletype message, statement, order or
other document or instruction believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of legal counsel
(including counsel to any Borrower), independent accountants and other experts selected by the
Administrative Agent or the Collateral Agent. The Administrative Agent may deem and treat the
Lender specified in the Register with respect to any amount owing hereunder as the owner thereof
for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have
been filed with the Administrative Agent. The Administrative Agent and the Collateral Agent shall
be fully justified in failing or refusing to take any action under this Agreement or any other
Credit Document unless it shall first receive such advice or concurrence of the Required Lenders as
it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against
any and all liability and expense that may be incurred by it by reason of taking or continuing to
take any such action. The Administrative Agent and the Collateral Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement and the other Credit
Documents in accordance with a request of the Required Lenders, and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future
holders of the Loans.
13.5.
Notice of Default
. Neither the Administrative Agent nor the Collateral Agent shall be
deemed to have knowledge or notice of the occurrence of any Default or Event of Default hereunder
unless the Administrative Agent or Collateral Agent has received notice from a Lender or a Borrower
referring to this Agreement, describing such Default or Event of Default and stating that such
notice is a notice of default. In the event that the Administrative Agent receives such a
notice, it shall give notice thereof to the Lenders and the Collateral Agent. The Administrative
Agent shall take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders,
provided
that unless and until the
Administrative Agent shall have received such directions, the Administrative Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests of the Lenders except
to the extent that this Agreement requires that such action be taken only with the approval of the
Required Lenders or each of the Lenders, as applicable).
13.6.
Non-Reliance on Administrative Agent, Collateral Agent and Other Lenders
. Each Lender
expressly acknowledges that neither the Administrative Agent nor the Collateral Agent nor any of
their respective officers, directors, employees, agents, attorneys-in-fact or Affiliates has made
any representations or warranties to it and that no act by the Administrative Agent or Collateral
Agent hereinafter taken, including any review of the affairs of any Borrower, any Guarantor or any
other Credit Party, shall be deemed to constitute any representation or warranty by the
Administrative Agent or Collateral Agent to any Lender, the Swingline Lender or any Letter of
Credit Issuer. Each Lender, the Swingline Lender and each Letter of Credit Issuer represents to
the Administrative Agent and the Collateral Agent that it has, independently and without reliance
upon the Administrative Agent, Collateral Agent or any other
163
Lender, and based on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property, financial and other
condition and creditworthiness of each Borrower, Guarantor and other Credit Party and made its own
decision to make its Loans hereunder and enter into this Agreement. Each Lender also represents
that it will, independently and without reliance upon the Administrative Agent, Collateral Agent or
any other Lender, and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Credit Documents, and to make such investigation as it
deems necessary to inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Borrowers, any Guarantor and any other Credit Party. Except
for notices, reports and other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, neither the Administrative Agent nor the Collateral Agent shall
have any duty or responsibility to provide any Lender with any credit or other information
concerning the business, assets, operations, properties, financial condition, prospects or
creditworthiness of any Borrower, any Guarantor or any other Credit Party that may come into the
possession of the Administrative Agent or Collateral Agent any of their respective officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
13.7.
Indemnification
. The Lenders agree to indemnify the Administrative Agent and the
Collateral Agent, each in its capacity as such (to the extent not reimbursed by the Borrowers and
without limiting the obligation of the Borrowers to do so), ratably according to their respective
portions of the Total Credit Exposure in effect on the date on which indemnification is sought (or,
if indemnification is sought after the date upon which the Commitments shall have terminated and
the Loans shall have been paid in full, ratably in accordance with their respective portions of the
Total Credit Exposure in effect immediately prior to such date), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever that may at any time (including at any time following the
payment of the Loans) be imposed on, incurred by or asserted against the Administrative Agent or
the Collateral Agent in any way relating to or arising out of the Commitments, this Agreement, any
of the other Credit Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent or the Collateral Agent under or in connection with any of the foregoing,
provided
that no Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Administrative Agents or the Collateral Agents gross negligence
or willful misconduct as determined by a final judgment of a court of competent
jurisdiction. The agreements in this
Section 13.7
shall survive the payment of the
Loans and all other amounts payable hereunder.
13.8.
Administrative Agent in its Individual Capacity
. The Administrative Agent and its
Affiliates may make loans to, accept deposits from and generally engage in any kind of business
with any Borrower, any Guarantor, and any other Credit Party as though the Administrative Agent
were not the Administrative Agent hereunder and under the other Credit Documents. With respect to
the Loans made by it, the Administrative Agent shall have the same rights and powers under this
Agreement and the other Credit Documents as any Lender and may exercise the same as though it were
not the Administrative Agent, and the terms Lender and Lenders shall include the Administrative
Agent in its individual capacity.
164
13.9.
Successor Agents
. Each of the Administrative Agent and Collateral Agent may at any
time give notice of its resignation to the Lenders, the Letter of Credit Issuer and the Parent
Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the
right, subject to the reasonable consent of the Parent Borrower so long as no Default under
Section 11.1
or
11.5
is continuing, to appoint a successor, which shall be a bank
with an office in the United States, or an Affiliate of any such bank with an office in the United
States. If no such successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Agent gives notice of its resignation,
then the retiring Agent may on behalf of the Lenders and the Letter of Credit Issuer, appoint a
successor Agent meeting the qualifications set forth above;
provided
that if the retiring
Agent shall notify the Parent Borrower and the Lenders that no qualifying Person has accepted such
appointment, then such resignation shall nonetheless become effective in accordance with such
notice and (1) the retiring Agent shall be discharged from its duties and obligations hereunder and
under the other Credit Documents (except in the case of the Collateral Agent holding collateral
security on behalf of any Secured Parties, the retiring Collateral Agent shall continue to hold
such collateral security as nominee until such time as a successor Collateral Agent is appointed)
and (2) all payments, communications and determinations provided to be made by, to or through such
Agent shall instead be made by or to each Lender and the Letter of Credit Issuer directly, until
such time as the Required Lenders appoint a successor Agent as provided for above in this Section.
Upon the acceptance of a successors appointment as the Administrative Agent or Collateral Agent,
as the case may be, hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or retired) Agent, and the retiring Agent
shall be discharged from all of its duties and obligations hereunder or under the other Credit
Documents (if not already discharged therefrom as provided above in this Section). The fees
payable by the Borrowers (following the effectiveness of such appointment) to such Agent shall be
the same as those payable to its predecessor unless otherwise agreed between the Parent Borrower
and such successor. After the retiring Agents resignation hereunder and under the other Credit
Documents, the provisions of this
Section 13
(including
Section 13.7
) and
Section 14.5
shall continue in effect for the benefit of such retiring Agent, its
sub-agents and their respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while the retiring Agent was acting as an Agent.
Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also
constitute its resignation as Letter of Credit Issuer and Swingline Lender. Upon the acceptance of
a successors appointment as Administrative Agent hereunder, (a) such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the retiring Letter of
Credit Issuer and Swingline Lender, (b) the retiring Letter of Credit Issuer and Swingline Lender
shall be discharged from all of their respective duties and obligations hereunder or under the
other Credit Documents, and (c) the successor Letter of Credit Issuer shall issue letters of credit
in substitution for the Letters of Credit, if any, outstanding at the time of such succession or
make other arrangements satisfactory to the retiring Letter of Credit Issuer to effectively assume
the obligations of the retiring Letter of Credit Issuer with respect to such Letters of Credit.
13.10.
Withholding Tax
. To the extent required by any applicable law, the Administrative
Agent may withhold from any interest payment to any Lender an amount equivalent to any applicable
withholding tax. If the Internal Revenue Service or any authority of the United
165
States or other jurisdiction asserts a claim that the Administrative Agent did not properly
withhold tax from amounts paid to or for the account of any Lender (because the appropriate form
was not delivered, was not properly executed, or because such Lender failed to notify the
Administrative Agent of a change in circumstances that rendered the exemption from, or reduction
of, withholding tax ineffective, or for any other reason), such Lender shall indemnify the
Administrative Agent (to the extent that the Administrative Agent has not already been reimbursed
by the Borrowers and without limiting the obligation of the Borrowers to do so) fully for all
amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including
penalties and interest, together with all expenses incurred, including legal expenses, allocated
staff costs and any out of pocket expenses.
SECTION 14.
Miscellaneous
14.1.
Amendments and Waivers
. Neither this Agreement nor any other Credit Document, nor any
terms hereof or thereof, may be amended, supplemented or modified except in accordance with the
provisions of this
Section 14.1
. The Required Lenders may, or, with the written consent of
the Required Lenders, the Administrative Agent and/or the Collateral Agent may, from time to time,
(a) enter into with the relevant Credit Party or Credit Parties written amendments, supplements or
modifications hereto and to the other Credit Documents for the purpose of adding any provisions to
this Agreement or the other Credit Documents or changing in any manner the rights of the Lenders or
of the Credit Parties hereunder or thereunder or (b) waive, on such terms and conditions as the
Required Lenders or the Administrative Agent and/or Collateral Agent, as the case may be, may
specify in such instrument, any of the requirements of this Agreement or the other Credit Documents
or any Default or Event of Default and its consequences;
provided
,
however
, that no
such waiver and no such amendment, supplement or modification shall directly (i) forgive or reduce
any portion of any Loan or extend the final scheduled maturity date of any Loan or reduce the
stated rate (it being understood that any change to the definition of Consolidated Total Debt to
Consolidated EBITDA Ratio or in the component definitions thereof shall not constitute a reduction
in the rate and only the consent of the Required Lenders shall be necessary to waive any obligation
of the Borrowers to pay interest at the Default Rate or amend
Section 2.8(c)
), or forgive
any portion, or extend the date for the payment, of any interest or fee payable hereunder (other
than as a result of waiving the applicability of any post-default increase in interest rates or any
amendment contemplated by
Section 1.7
), or extend the final expiration date of any Lenders
Commitment or extend the final expiration date of any Letter of Credit beyond the L/C Maturity
Date, or increase the aggregate amount of the Commitments of any Lender, or amend or modify any
provisions of
Section 5.3(a)
(with respect to the ratable allocation of any payments only)
and
14.8(a)
and
14.20
, or make any Loan, interest, Fee or other amount payable in
any currency other than expressly provided herein, in each case without the written consent of each
Lender directly and adversely affected thereby, or (ii) amend, modify or waive any provision of
this
Section 14.1
or reduce the percentages specified in the definitions of the terms
Required Lenders, Required Revolving Credit Lenders, Required European-1 Tranche Term Loan
Lenders, Required Tranche A-1 Term Loan Lenders, Required Tranche A-2 Term Loan Lenders,
Required Tranche B-1 Term Loan Lenders, Required Tranche B-2 Term Loan Lenders or Required
Tranche B-3 Term Loan Lenders, consent to the assignment or transfer by any Borrower of its rights
and obligations under any Credit Document to which it is a party (except as permitted pursuant to
Section 10.3
) or alter the order of application set forth in the final paragraph of
Section 11
, in each case without the written consent
166
of each Lender directly and adversely affected thereby, or (iii) amend, modify or waive
any provision of
Section 13
without the written consent of the then-current Administrative
Agent and Collateral Agent, or (iv) amend, modify or waive any provision of
Section 3
with
respect to any Letter of Credit without the written consent of the Letter of Credit Issuer, or (v)
amend, modify or waive any provisions hereof relating to Swingline Loans without the written
consent of the Swingline Lender, or (vi) change any Revolving Credit Commitment to a New Term Loan
Commitment, or change any New Term Loan Commitment to a Revolving Credit Commitment, in each case
without the prior written consent of each Lender directly and adversely affected thereby, or (vii)
release all or substantially all of the Guarantors under the Guarantees (except as expressly
permitted by the Guarantees or this Agreement) or release all or substantially all of the
Collateral under the Security Documents (except as expressly permitted by the Security Documents or
this Agreement) without the prior written consent of each Lender, or (viii) amend
Section
2.9
so as to permit Interest Period intervals greater than six months without regard to
availability to Lenders, without the written consent of each Lender directly and adversely affected
thereby, or (ix) decrease any Tranche A-1 Repayment Amount, extend any scheduled Tranche A-1
Repayment Date or decrease the amount or allocation of any mandatory prepayment to be received by
any Tranche A-1 Term Loan Lender, in each case without the written consent of the Required Tranche
A-1 Term Loan Lenders, (x) decrease any Tranche A-2 Repayment Amount, extend any scheduled Tranche
A-2 Repayment Date or decrease the amount or allocation of any mandatory prepayment to be received
by any Tranche A-2 Term Loan Lender, in each case without the written consent of the Required
Tranche A-2 Term Loan Lenders, (xi) decrease any Tranche B-1 Repayment Amount, extend any scheduled
Tranche B-1 Repayment Date or decrease the amount or allocation of any mandatory prepayment to be
received by any Tranche B-1 Term Loan Lender, in each case without the written consent of the
Required Tranche B-1 Term Loan Lenders, (xii) decrease any Tranche B-2 Repayment Amount, extend any
scheduled Tranche B-2 Repayment Date or decrease the amount or allocation of any mandatory
prepayment to be received by any Tranche B-2 Term Loan Lender, in each case without the written
consent of the Required Tranche B-2 Term Loan Lenders, (xiii) decrease any Tranche B-3 Repayment
Amount, extend any scheduled Tranche B-3 Repayment Date or decrease the amount or allocation of any
mandatory prepayment to be received by any Tranche B-3 Term Loan Lender, in each case without the
written consent of the Required Tranche B-3 Term Loan Lenders or (xiv) decrease any European-1
Tranche Repayment Amount, extend any scheduled European-1 Tranche Repayment Date or decrease the
amount or allocation of any mandatory prepayment to be received by any European-1 Tranche Term Loan
Lender, in each case without the written consent of the Required European-1 Tranche Term Loan
Lenders. Any such waiver and any such amendment, supplement or modification shall apply equally to
each of the affected Lenders and shall be binding upon the Borrowers, such Lenders, the
Administrative Agent and all future holders of the affected Loans. In the case of any waiver, the
Borrowers, the Lenders and the Administrative Agent shall be restored to their former positions and
rights hereunder and under the other Credit Documents, and any Default or Event of Default waived
shall be deemed to be cured and not continuing, it being understood that no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any right consequent
thereon.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of
such Lender may not be increased or extended without the consent of such Lender (it being
understood that any Commitments or Loans held or deemed held by any Defaulting
167
Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of
the Lenders).
Notwithstanding the foregoing, in addition to any credit extensions and related Joinder
Agreement(s) effectuated without the consent of Lenders in accordance with
Section 2.14
,
this Agreement may be amended (or amended and restated) with the written consent of the Required
Lenders, the Administrative Agent and the Parent Borrower (a) to add one or more additional credit
facilities to this Agreement and to permit the extensions of credit from time to time outstanding
thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of
this Agreement and the other Loan Documents with the Term Loans and the Revolving Credit Loans and
the accrued interest and fees in respect thereof and (b) to include appropriately the Lenders
holding such credit facilities in any determination of the Required Lenders and other definitions
related to such new Term Loans.
In addition, notwithstanding the foregoing, this Agreement may be amended with the written
consent of the Administrative Agent, the affected Borrowers and the Lenders providing the relevant
Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans
of any Class (
Refinanced Term Loans
) with a replacement term loan tranche (
Replacement Term
Loans
) hereunder;
provided
that (a) the aggregate principal amount of such Replacement
Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the
Applicable ABR Margin and Applicable LIBOR Margin for such Replacement Term Loans shall not be
higher than the Applicable ABR Margin and Applicable LIBOR Margin for such Refinanced Term Loans,
(c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than
the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing
(except to the extent of nominal amortization for periods where amortization has been eliminated as
a result of prepayment of the applicable Term Loans) and (d) all other terms applicable to such
Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders
providing such Replacement Term Loans than those applicable to such Refinanced Term Loans, except
to the extent necessary to provide for covenants and other terms applicable to any period after the
latest final maturity of the Term Loans of such Class in effect immediately prior to such
refinancing.
The Lenders hereby irrevocably agree that the Liens granted to the Collateral Agent by the
Credit Parties on any Collateral shall be automatically released (i) in full, upon the termination
of this Agreement, (ii) upon the sale or other disposition of such Collateral (including as part of
or in connection with any other sale or other disposition permitted hereunder) to any Person other
than another Credit Party (other than (x) a European Credit Party, in the case of any sale or other
disposition by a U.S. Credit Party and (y) a U.S. Credit Party, in the case of any sale or other
disposition by a European Credit Party), to the extent such sale or other disposition is made in
compliance with the terms of this Agreement (and the Collateral Agent may rely conclusively on a
certificate to that effect provided to it by any Credit Party upon its reasonable request without
further inquiry), (iii) to the extent such Collateral is comprised of property leased to a Loan
Party, upon termination or expiration of such lease, (iv) if the release of such Lien is approved,
authorized or ratified in writing by the Required Lenders (or such other percentage of the Lenders
whose consent may be required in accordance with this
Section 14.1
), (v) to the extent the
property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor
from its obligations under the applicable Guarantee (in accordance with the following
168
sentence) and (vi) as required to effect any sale or other disposition of Collateral in
connection with any exercise of remedies of the Collateral Agent pursuant to the Collateral
Documents. Any such release shall not in any manner discharge, affect, or impair the Obligations
or any Liens (other than those being released) upon (or obligations (other than those being
released) of the Credit Parties in respect of) all interests retained by the Credit Parties,
including the proceeds of any sale, all of which shall continue to constitute part of the
Collateral except to the extent otherwise released in accordance with the provisions of the Credit
Documents. Additionally, the Lenders hereby irrevocably agree that the Guarantors shall be
released from the Guarantees (i) upon consummation of any transaction resulting in such Subsidiary
ceasing to constitute a Restricted Subsidiary, (ii) upon the designation of such Guarantor as a
Designated Non-Guarantor Subsidiary (in accordance with the definition thereof) or (iii) in the
case of any European Guarantor, upon the repayment in full of all European Obligations. The
Lenders hereby authorize the Administrative Agent and the Collateral Agent, as applicable, to
execute and deliver any instruments, documents, and agreements necessary or desirable to evidence
and confirm the release of any Guarantor or Collateral pursuant to the foregoing provisions of this
paragraph, all without the further consent or joinder of any Lender.
14.2.
Notices
. Unless otherwise expressly provided herein, all notices and other communications
provided for hereunder or under any other Credit Document shall be in writing (including by
facsimile transmission). All such written notices shall be mailed, faxed or delivered to the
applicable address, facsimile number or electronic mail address, and all notices and other
communications expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:
(a) if to the Parent Borrower, the European Subsidiary Borrower, the Administrative
Agent, the Collateral Agent, the Letter of Credit Issuer or the Swingline Lender, to the
address, facsimile number, electronic mail address or telephone number specified for such
Person on
Schedule 14.2
to the Original Credit Agreement or to such other address,
facsimile number, electronic mail address or telephone number as shall be designated by such
party in a notice to the other parties; and
(b) if to any other Lender, to the address, facsimile number, electronic mail address
or telephone number specified in its Administrative Questionnaire or to such other address,
facsimile number, electronic mail address or telephone number as shall be designated by such
party in a notice to the Borrowers, the Administrative Agent, the Collateral Agent, the
Letter of Credit Issuer and the Swingline Lender.
All such notices and other communications shall be deemed to be given or made upon the earlier to
occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by
courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail,
three (3) Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile,
when sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail,
when delivered;
provided
that notices and other communications to the Administrative Agent
or the Lenders pursuant to
Sections 2.3
,
2.6
,
2.9
,
4.2
and
5.1
shall not be effective until received.
14.3.
No Waiver; Cumulative Remedies
. No failure to exercise and no delay in exercising, on
the part of the Administrative Agent, the Collateral Agent or any Lender, any
169
right, remedy, power or privilege hereunder or under the other Credit Documents shall operate
as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
14.4.
Survival of Representations and Warranties
. All representations and warranties made
hereunder, in the other Credit Documents and in any document, certificate or statement delivered
pursuant hereto or in connection herewith shall survive the execution and delivery of this
Agreement and the making of the Loans hereunder.
14.5.
Payment of Expenses
. The Parent Borrower agrees (a) to pay or reimburse the Agents
for all their reasonable out-of-pocket costs and expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement or modification to, this
Agreement and the other Credit Documents and any other documents prepared in connection herewith or
therewith, and the consummation and administration of the transactions contemplated hereby and
thereby, including the reasonable fees, disbursements and other charges of Cahill Gordon & Reindel
llp
and one counsel in each local jurisdiction to the extent consented to by the Parent
Borrower (such consent not to be unreasonably withheld), (b) to pay or reimburse the Agent for all
its reasonable and documented costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the other Credit Documents and any such other
documents, including the reasonable fees, disbursements and other charges of counsel to the Agent,
(c) to pay, indemnify, and hold harmless each Lender and Agent from, any and all recording and
filing fees and (d) to pay, indemnify, and hold harmless each Lender and Agent and their respective
directors, officers, employees, trustees, investment advisors and agents from and against any and
all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever, including reasonable and documented
fees, disbursements and other charges of counsel, with respect to the execution, delivery,
enforcement, performance and administration of this Agreement, the other Credit Documents and any
such other documents, including, without limitation, any of the foregoing relating to the violation
of, noncompliance with or liability under, any Environmental Law (other than by such indemnified
person or any of its Related Parties) or to any actual or alleged presence, release or threatened
release of Hazardous Materials involving or attributable to the operations of the Parent Borrower,
any of its Subsidiaries or any of the Real Estate (all the foregoing in this
clause (d)
,
collectively, the
indemnified liabilities
),
provided
that the Borrowers shall have no
obligation hereunder to any Administrative Agent or any Lender nor any of their respective Related
Parties with respect to indemnified liabilities to the extent attributable to (i) the gross
negligence, bad faith or willful misconduct of the party to be indemnified or any of its Related
Parties, (ii) any material breach of any Credit Document by the party to be indemnified or (iii)
disputes among the Administrative Agent, the Lenders and/or their transferees. All amounts payable
under this
Section 14.5
shall be paid within ten Business Days of receipt by the Parent
Borrower of an invoice relating thereto setting forth such expense in reasonable retail. The
agreements in this
Section 14.5
shall survive repayment of the Loans and all other amounts
payable hereunder.
170
14.6.
Successors and Assigns; Participations and Assignments
.
(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby (including any
Affiliate of the Letter of Credit Issuer that issues any Letter of Credit), except that (i) except
as expressly permitted by
Section 10.3
, no Borrower may assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent of the Administrative Agent
and each Lender (and any attempted assignment or transfer by any Borrower without such consent
shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this
Section 14.6
. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby (including any Affiliate
of the Letter of Credit Issuer that issues any Letter of Credit), Participants (to the extent
provided in
clause (c)
of this
Section 14.6
) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent, the Collateral Agent,
the Letter of Credit Issuer and the Lenders) any legal or equitable right, remedy or claim under or
by reason of this Agreement.
(b) (i) Subject to the conditions set forth in
clause (b)(ii)
below, any Lender may
at any time assign to one or more assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitments and the Loans (including
participations in L/C Obligations or Swingline Loans) at the time owing to it) with the prior
written consent (such consent not be unreasonably withheld or delayed; it being understood that,
without limitation, the Parent Borrower shall have the right to withhold or delay its consent to
any assignment if, in order for such assignment to comply with applicable law, any Borrower would
be required to obtain the consent of, or make any filing or registration with, any Governmental
Authority) of:
(A) the Parent Borrower (which consent shall not be unreasonably withheld or delayed),
provided
that, subject to
clause (g)
below, no consent of the Parent
Borrower shall be required for (I) an assignment of a Term Loan to a Lender, an Affiliate of
a Lender or an Approved Fund or (II) if an Event of Default under
Section 11.1
or
Section 11.5
has occurred and is continuing, any other assignment of a Term Loan,
Revolving Credit Commitment or Revolving Credit Loan; and
(B) the Administrative Agent (which consent shall not be unreasonably withheld or
delayed), and, in the case of Revolving Credit Commitments or Revolving Credit Loans only,
the Swingline Lender and the applicable Letter of Credit Issuer,
provided
that no
consent of the Administrative Agent, the Swingline Lender or the Letter of Credit Issuer, as
applicable, shall be required for an assignment of any Term Loan to a Lender, an Affiliate
of a Lender or an Approved Fund.
Notwithstanding the foregoing, no such assignment shall be made to a natural person.
171
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning Lenders
Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning
Lender subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative Agent) shall
not be less than $5,000,000 (or, in the case of a Term Loan denominated in Dollars,
$1,000,000), and increments of $1,000,000 in excess thereof (or, in the case of a Term Loan
denominated in Euro, 1,000,000 or increments of 1,000,000 in excess thereof) or , unless
each of the Parent Borrower and the Administrative Agent otherwise consents (which consents
shall not be unreasonably withheld or delayed),
provided
that no such consent of the
Parent Borrower shall be required if an Event of Default under
Section 11.1
or
Section 11.5
has occurred and is continuing;
provided
further
that
contemporaneous assignments to a single assignee made by Affiliates of Lenders and related
Approved Funds shall be aggregated for purposes of meeting the minimum assignment amount
requirements stated above;
(B) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lenders rights and obligations under this Agreement,
provided
that this clause shall not be construed to prohibit the assignment of a proportionate part
of all the assigning Lenders rights and obligations in respect of one Class of Commitments
or Loans;
(C) The parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, together with a processing and recordation fee in the
amount of $3,500;
provided
that the Administrative Agent may, in its sole
discretion, elect to waive such processing and recordation fee in the case of any
assignment;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an administrative questionnaire in a form approved by the Administrative Agent (the
Administrative Questionnaire
); and
(E) the assignee, if the assignment is with respect to the European-1 Tranche Term
Loan, must be able to comply with the requirements of Section 5.4(g) of this Agreement.
(iii) Subject to acceptance and recording thereof pursuant to
clause (b)(iv)
of this
Section 14.6
, from and after the effective date specified in each Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lenders rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but shall continue to be
entitled to the benefits of
Sections 2.10
,
2.11
,
3.5
,
5.4
and
14.5
). Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this
Section 14.6
shall be
172
treated for purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with
clause (c)
of this
Section 14.6
.
(iv) The Administrative Agent, acting for this purpose as an agent of the Borrowers, shall
maintain at the Administrative Agents Office a copy of each Assignment and Acceptance delivered to
it and a register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amount of the Loans and any payment made by the Letter of Credit
Issuer under any Letter of Credit owing to, each Lender pursuant to the terms hereof from time to
time (the
Register
). Further, each Register shall contain the name and address of the
Administrative Agent and the lending office through which each such Person acts under this
Agreement. The entries in the Register shall be conclusive, and the Borrowers, the Administrative
Agent, the Collateral Agent, the Letter of Credit Issuer and the Lenders shall treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrowers, the Collateral Agent, the Letter of Credit Issuer and
any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning
Lender and an assignee, the assignees completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation fee referred to in
clause
(b)
of this
Section 14.6
and any written consent to such assignment required by
clause (b)
of this
Section 14.6
, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the Register.
(c) (i) Any Lender may, without the consent of the Parent Borrower, any Administrative Agent,
the Letter of Credit Issuer or the Swingline Lender, sell participations to one or more banks or
other entities (each, a
Participant
) in all or a portion of such Lenders rights and obligations
under this Agreement (including all or a portion of its Commitments and the Loans owing to it),
provided
that (A) such Lenders obligations under this Agreement shall remain unchanged,
(B) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations, (C) the Participant, if a participant with respect to the European-1 Tranche Term
Loan, must be able to provide the forms required by Section 5.4(g) of this Agreement to the Lender
from which it purchased the participation and (D) the Borrowers, the Administrative Agent, the
Letter of Credit Issuer and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lenders rights and obligations under this Agreement. Any agreement
or instrument pursuant to which a Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement or any other Credit Document,
provided
that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in
clause (i)
of the
proviso to
Section 14.1
that affects such Participant. Subject to
clause (c)(ii)
of this
Section 14.6
, the Borrowers agree that each Participant shall be entitled to the
benefits of
Sections 2.10
,
2.11
and
5.4
to the same extent as if it were a
Lender and
provided
that such Participant agrees to be subject to the requirements of those
Sections as though it were a Lender and had acquired its interest by assignment pursuant to
clause (b)
of this
Section 14.6
. To the extent permitted by law, each Participant
also shall be entitled to the benefits of
173
Section 14.8(b)
as though it were a Lender,
provided
such Participant agrees to be
subject to
Section 14.8(a)
as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater payment under
Section
2.10
,
2.11
or
5.4
than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Parent Borrowers prior written consent (which
consent shall not be unreasonably withheld).
(d) Any Lender may, without the consent of any Borrower or the Administrative Agent, at any
time pledge or assign a security interest in all or any portion of its rights under this Agreement
to secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this
Section 14.6
shall not apply to any such pledge or
assignment of a security interest,
provided
that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or substitute any such
pledgee or assignee for such Lender as a party hereto. In order to facilitate such pledge or
assignment, the Borrowers hereby agree that, upon request of any Lender at any time and from time
to time after any Borrower has made its initial borrowing hereunder, each Borrower shall provide to
such Lender, at such Borrowers own expense, a promissory note, in form reasonably acceptable to
the Administrative Agent, representing the Loan owing to such Lender.
(e) Subject to
Section 14.16
, the Borrowers authorize each Lender to disclose to any
Participant, secured creditor of such Lender or assignee (each, a
Transferee
) and any prospective
Transferee any and all financial information in such Lenders possession concerning a Borrower and
its Affiliates that has been delivered to such Lender by or on behalf of such Borrower and its
Affiliates pursuant to this Agreement or that has been delivered to such Lender by or on behalf of
such Borrower and its Affiliates in connection with such Lenders credit evaluation of such
Borrower and its Affiliates prior to becoming a party to this Agreement.
(f) The words execution, signed, signature, and words of like import in any Assignment
and Acceptance shall be deemed to include electronic signatures or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or enforceability as a
manually executed signature or the use of a paper-based recordkeeping system, as the case may be,
to the extent and as provided for in any applicable law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic Signatures and
Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
(g) Notwithstanding anything to the contrary in
clause (b)
above, unless an Event of
Default under
Section 11.1
or
Section 11.5
has occurred and is continuing, no
assignment by any Lender of all or any portion of its rights and obligations under this Agreement
shall be permitted without the consent of the Parent Borrower if, after giving effect to such
assignment, the assignee in respect thereof, taken together with its Affiliates and Approved Funds,
would hold in the aggregate more than 25% of the Total Credit Exposure.
174
14.7.
Replacements of Lenders under Certain Circumstances
.
(a) The Parent Borrower shall be permitted to replace any Lender that (a) requests
reimbursement for amounts owing pursuant to
Section 2.10
,
3.5
or
5.4
, (b)
is affected in the manner described in
Section 2.10(a)(iii)
and as a result thereof any of
the actions described in such Section is required to be taken or (c) becomes a Defaulting Lender,
with a replacement bank or other financial institution,
provided
that (i) such replacement
does not conflict with any Requirement of Law, (ii) no Event of Default under
Section 11.1
or
11.5
shall have occurred and be continuing at the time of such replacement, (iii) the
Borrowers shall repay (or the replacement bank or institution shall purchase, at par) all Loans and
other amounts (other than any disputed amounts), pursuant to
Section 2.10
,
2.11
,
3.5
or
5.4
, as the case may be) owing to such replaced Lender prior to the date of
replacement, (iv) the replacement bank or institution, if not already a Lender, and the terms and
conditions of such replacement, shall be reasonably satisfactory to the Administrative Agent, (v)
the replaced Lender shall be obligated to make such replacement in accordance with the provisions
of
Section 14.6
(
provided
that the Borrowers shall be obligated to pay the
registration and processing fee referred to therein) and (vi) any such replacement shall not be
deemed to be a waiver of any rights that the Borrowers, the Administrative Agent or any other
Lender shall have against the replaced Lender.
(b) If any Lender (such Lender, a
Non-Consenting Lender
) has failed to consent to a proposed
amendment, waiver, discharge or termination that pursuant to the terms of
Section 14.1
requires the consent of all of the Lenders affected and with respect to which the Required Lenders
shall have granted their consent, then provided no Event of Default then exists, the Borrowers
shall have the right (unless such Non-Consenting Lender grants such consent) to replace such
Non-Consenting Lender by requiring such Non-Consenting Lender to assign its Loans, and its
Commitments hereunder to one or more assignees reasonably acceptable to the Administrative Agent,
provided
that: (a) all Obligations of the Borrowers owing to such Non-Consenting Lender
being replaced shall be paid in full to such Non-Consenting Lender concurrently with such
assignment, and (b) the replacement Lender shall purchase the foregoing by paying to such
Non-Consenting Lender a price equal to the principal amount thereof plus accrued and unpaid
interest thereon. In connection with any such assignment, the Borrowers, Administrative Agent,
such Non-Consenting Lender and the replacement Lender shall otherwise comply with
Section
14.6
.
14.8.
Adjustments; Set-off
.
(a) If any Lender (a
benefited Lender
) shall at any time receive any payment of all or part
of its Loans, or interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred
to in
Section 11.5
, or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other Lenders Loans, or
interest thereon, such benefited Lender shall purchase for cash from the other Lenders a
participating interest in such portion of each such other Lenders Loan, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such benefited Lender to share the excess payment or benefits of such collateral
or proceeds ratably with each of the Lenders;
provided
,
however
, that if all or any
portion of such excess payment or benefits is thereafter recovered from such benefited Lender, such
purchase shall be
175
rescinded, and the purchase price and benefits returned, to the extent of such recovery, but
without interest;
provided
further
that with respect to any amount received from
any European Credit Party that would otherwise be subject to the foregoing provisions of this
Section 14.8(a)
, such Lender shall only purchase participations in the European-1 Tranche
Term Loans in accordance with the foregoing procedures.
(b) After the occurrence and during the continuance of an Event of Default, in addition to any
rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior
notice to any Borrower, any such notice being expressly waived by each Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by any Borrower hereunder
(whether at the stated maturity, by acceleration or otherwise) to set-off and appropriate and apply
against such amount any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any currency, in each
case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch or agency thereof to or for the credit or the account of such
Borrower;
provided
that the amount received by any Lender from any European Subsidiary
Borrower as a result of this
Section 14.8(b)
may only be applied to the European
Obligations. Each Lender agrees promptly to notify such Borrower (and the Parent Borrower, if
other) and the Administrative Agent after any such set-off and application made by such Lender,
provided
that the failure to give such notice shall not affect the validity of such set-off
and application.
14.9.
Counterparts
. This Agreement may be executed by one or more of the parties to this
Agreement on any number of separate counterparts (including by facsimile or other electronic
transmission), and all of said counterparts taken together shall be deemed to constitute one and
the same instrument. A set of the copies of this Agreement signed by all the parties shall be
lodged with the Borrowers and the Administrative Agent.
14.10.
Severability
. Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition
or unenforceability without invalidating the remaining provisions hereof, and any such prohibition
or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.
14.11.
Integration
. This Agreement and the other Credit Documents represent the agreement of
the Borrowers, the Collateral Agent, the Administrative Agent and the Lenders with respect to the
subject matter hereof, and there are no promises, undertakings, representations or warranties by
any Borrower, the Administrative Agent, the Collateral Agent nor any Lender relative to subject
matter hereof not expressly set forth or referred to herein or in the other Credit Documents.
14.12.
GOVERNING LAW
. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW
YORK.
176
14.13.
Submission to Jurisdiction; Waivers
. Each Borrower irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to
this Agreement and the other Credit Documents to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of
the courts of the State of New York, the courts of the United States of America for the
Southern District of New York and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such courts and
waives any objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially similar form of
mail), postage prepaid, to such Person at its address set forth on
Schedule 14.2
to
the Original Credit Agreement at such other address of which the Administrative Agent shall
have been notified pursuant to
Section 14.2
;
(d) agrees that nothing herein shall affect the right to effect service of process in
any other manner permitted by law or shall limit the right to sue in any other jurisdiction;
(e) waives, to the maximum extent not prohibited by law, any right it may have to claim
or recover in any legal action or proceeding referred to in this
Section 14.13
any
special, exemplary, punitive or consequential damages; and
(f) other than the Parent Borrower, hereby irrevocably designates, appoints and
empowers CT Corporation System (telephone number: 212-894-8600) (telecopy number:
212-894-8690) (address: 111 Eighth Avenue, New York, New York 10011) (the
Process Agent
),
in the case of any suit, action or proceeding brought in the United States as its designee,
appointee and agent to receive, accept and acknowledge for and on its behalf, and in respect
of its property, service of any and all legal process, summons, notices and documents that
may be served in any action or proceeding arising out of or in connection with this
Agreement or any other Credit Document. Such service may be made by mailing (by registered
or certified mail, postage prepaid) or delivering a copy of such process to such Person in
care of the Process Agent at the Process Agents above address, and such Person hereby
irrevocably authorizes and directs the Process Agent to accept such service on its behalf.
As an alternative method of service, each Borrower irrevocably consents to the service of
any and all process in any such action or proceeding by the mailing (by registered or
certified mail, postage prepaid) of copies of such process to the Process Agent or such
Person at its address specified in
Section 14.2
. Each Borrower agrees that a final
judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
177
14.14.
Acknowledgments
. Each Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Credit Documents;
(b) (i) the credit facilities provided for hereunder and any related arranging or other
services in connection therewith (including in connection with any amendment, waiver or
other modification hereof or of any other Credit Document) are an arms-length commercial
transaction between the Borrowers, on the one hand, and the Administrative Agent, the Lender
and the other Agents on the other hand, and the Borrowers and the other Credit Parties are
capable of evaluating and understanding and understand and accept the terms, risks and
conditions of the transactions contemplated hereby and by the other Credit Documents
(including any amendment, waiver or other modification hereof or thereof); (ii) in
connection with the process leading to such transaction, each of the Administrative Agent
and the other Agents, is and has been acting solely as a principal and is not the financial
advisor, agent or fiduciary for any of the Borrowers, any other Credit Parties or any of
their respective Affiliates, stockholders, creditors or employees or any other Person; (iii)
neither the Administrative Agent nor any other Agent has assumed or will assume an advisory,
agency or fiduciary responsibility in favor of any Borrower or any other Credit Party with
respect to any of the transactions contemplated hereby or the process leading thereto,
including with respect to any amendment, waiver or other modification hereof or of any other
Credit Document (irrespective of whether the Administrative Agent or other Agent has advised
or is currently advising any of the Borrowers, the other Credit Parties or their respective
Affiliates on other matters) and neither the Administrative Agent or other Agent has any
obligation to any of any Borrowers, the other Credit Parties or their respective Affiliates
with respect to the transactions contemplated hereby except those obligations expressly set
forth herein and in the other Credit Documents; (iv) the Administrative Agent and its
Affiliates may be engaged in a broad range of transactions that involve interests that
differ from those of the Borrowers and their respective Affiliates, and neither the
Administrative Agent nor other Agent has any obligation to disclose any of such interests by
virtue of any advisory, agency or fiduciary relationship; and (v) neither the Administrative
Agent nor any other Agent has provided and none will provide any legal, accounting,
regulatory or tax advice with respect to any of the transactions contemplated hereby
(including any amendment, waiver or other modification hereof or of any other Credit
Document) and each Borrower has consulted its own legal, accounting, regulatory and tax
advisors to the extent it has deemed appropriate. Each Borrower hereby waives and releases,
to the fullest extent permitted by law, any claims that it may have against the
Administrative Agent or any other Agent with respect to any breach or alleged breach of
agency or fiduciary duty; and
(c) no joint venture is created hereby or by the other Credit Documents or otherwise
exists by virtue of the transactions contemplated hereby among the Lenders or among any
Borrower, on the one hand, and any Lender, on the other hand.
14.15.
WAIVERS OF JURY TRIAL
. EACH BORROWER, EACH AGENT AND EACH LENDER HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
178
AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
14.16.
Confidentiality
. The Administrative Agent and each Lender shall hold all non-public
information furnished by or on behalf of the Parent Borrower or any of its Subsidiaries in
connection with such Lenders evaluation of whether to become a Lender hereunder or obtained by
such Lender or the Administrative Agent pursuant to the requirements of this Agreement
(
Confidential Information
), confidential in accordance with its customary procedure for handling
confidential information of this nature and (in the case of a Lender that is a bank) in accordance
with safe and sound banking practices and in any event may make disclosure as required or requested
by any governmental agency or representative thereof or pursuant to legal process or (a) to such
Lenders or the Administrative Agents attorneys, professional advisors, independent auditors,
trustees or Affiliates, (b) to an investor or prospective investor in a Securitization that agrees
its access to information regarding the Credit Parties, the Loans and the Credit Documents is
solely for purposes of evaluating an investment in a Securitization and who agrees to treat such
information as confidential, (c) to a trustee, collateral manager, servicer, backup servicer,
noteholder or secured party in connection with the administration, servicing and reporting on the
assets serving as collateral for a securitization and who agrees to treat such information as
confidential and (d) to a nationally recognized ratings agency that requires access to information
regarding the Credit Parties, the Loans and Credit Documents in connection with ratings issued with
respect to a Securitization;
provided
that unless specifically prohibited by applicable law
or court order, each Lender and the Administrative Agent shall notify the Parent Borrower of any
request made to such Lender or the Administrative Agent by any governmental agency or
representative thereof (other than any such request in connection with an examination of the
financial condition of such Lender by such governmental agency) for disclosure of any such
non-public information prior to disclosure of such information, and provided further that in no
event shall any Lender or the Administrative Agent be obligated or required to return any materials
furnished by the Parent Borrower or any Subsidiary. Each Lender and the Administrative Agent
agrees that it will not provide to prospective Transferees or to any pledgee referred to in
Section 14.6
or to prospective direct or indirect contractual counterparties in swap
agreements to be entered into in connection with Loans made hereunder any of the Confidential
Information unless such Person is advised of and agrees to be bound by the provisions of this
Section 14.16
.
14.17.
Direct Website Communications
.
(a) Any Borrower may, at its option, provide to the Administrative Agent any information,
documents and other materials that it is obligated to furnish to the Administrative Agent pursuant
to the Credit Documents, including, without limitation, all notices, requests, financial
statements, financial and other reports, certificates and other information materials,
but excluding any such communication that (A) relates to a request for a new, or a conversion of an
existing, borrowing or other extension of credit (including any election of an interest rate or
interest period relating thereto), (B) relates to the payment of any principal or other amount due
under this Agreement prior to the scheduled date therefor, (C) provides notice of any default or
event of default under this Agreement or (D) is required to be delivered to satisfy any condition
precedent to the effectiveness of this Agreement and/or any borrowing or other extension of credit
thereunder (all such non-excluded communications being referred to herein collectively as
Communications
), by transmitting the Communications in an electronic/soft medium in a
179
format
reasonably acceptable to the Administrative Agent to the Administrative Agent at
liliana.claar@bankofamerica.com
. Nothing in this
Section 14.17
shall prejudice the right
of the Borrowers, the Administrative Agent or any Lender to give any notice or other communication
pursuant to any Credit Document in any other manner specified in such Credit Document.
(i) The Administrative Agent agrees that the receipt of the Communications by the
Administrative Agent at its e-mail address set forth above shall constitute effective delivery of
the Communications to the Administrative Agent for purposes of the Credit Documents. Each Lender
agrees that notice to it (as provided in the next sentence) specifying that the Communications have
been posted to the Platform shall constitute effective delivery of the Communications to such
Lender for purposes of the Credit Documents. Each Lender agrees (A) to notify the Administrative
Agent in writing (including by electronic communication) from time to time of such Lenders e-mail
address to which the foregoing notice may be sent by electronic transmission and (B) that the
foregoing notice may be sent to such e-mail address.
(b) The Borrowers hereby acknowledge that (a) the Administrative Agent and/or the other Agents
will make available to the Lenders and the Letter of Credit Issuer materials and/or information
provided by or on behalf of the Borrowers hereunder (collectively,
Borrower Materials
) by posting
the Borrower Materials on IntraLinks or another similar electronic system (the
Platform
) and (b)
certain of the Lenders may be public-side Lenders (
i.e.
, Lenders that do not wish to
receive material non-public information with respect to the Borrowers or their securities) (each, a
Public Lender
). Each Borrower hereby agrees that it will use commercially reasonable efforts to
identify that portion of the Borrower Materials that do not contain any material non-public
information and that may be distributed to the Public Lenders and that (x) all such Borrower
Materials shall be clearly and conspicuously marked PUBLIC which, at a minimum, shall mean that
the word PUBLIC shall appear prominently on the first page thereof and (y) by marking Borrower
Materials PUBLIC, such Borrower shall be deemed to have authorized the Administrative Agent and
the other Agents to make such Borrower Materials available through a portion of the Platform
designated Public Investor. Notwithstanding the foregoing or any other provision of this
Agreement to the contrary, neither the Parent Borrower nor any of its Related Parties shall be
liable, or responsible in any manner, for the use by any Agent, any Lender, any Participant or any
of their Related Parties of the Borrower Materials. In addition, it is agreed that (i) to the
extent any Borrower Materials constitute Confidential Information, they shall be subject to the
confidentiality provisions of
Section 14.16
and (ii) the Borrowers shall be under no
obligation to designate any Borrower Materials as PUBLIC.
(c) THE PLATFORM IS PROVIDED AS IS AND AS AVAILABLE. THE AGENT PARTIES (AS DEFINED BELOW)
DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE
PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.
NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR
OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE
PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively,
the
Agent Parties
and each an
Agent Party
) have any liability to any Borrower,
180
any Lender, the
Letter of Credit Issuer or any other Person for losses, claims, damages, liabilities or expenses of
any kind (whether in tort, contract or otherwise) arising out of any Borrowers or the
Administrative Agents transmission of Borrower Materials through the internet, except to the
extent the liability of any Agent Party resulted from such Agent Partys (or any of its Related
Parties) gross negligence, bad faith or willful misconduct or material breach of the Credit
Documents.
14.18.
USA PATRIOT Act
. Each Lender hereby notifies the Borrowers that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the
Patriot Act
), it is required to obtain, verify and record information that identifies
the Borrower, which information includes the name and address of the Borrowers and other
information that will allow such Lender to identify the Borrowers in accordance with the Patriot
Act.
14.19.
Judgment Currency
. If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due hereunder or any other Credit Document in one currency into another
currency, the rate of exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase the first currency with such other currency on
the Business Day preceding that on which final judgment is given. The obligation of each Borrower
in respect of any such sum due from it to the Administrative Agent or the Lenders hereunder or
under the other Credit Documents shall, notwithstanding any judgment in a currency (the
Judgment
Currency
) other than that in which such sum is denominated in accordance with the applicable
provisions of this Agreement (the
Agreement Currency
), be discharged only to the extent that on
the Business Day following receipt by the Administrative Agent of any sum adjudged to be so due in
the Judgment Currency, the Administrative Agent may in accordance with normal banking procedures
purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement
Currency so purchased is less than the sum originally due to the Administrative Agent from any
Borrower in the Agreement Currency, such Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Administrative Agent or the Person to whom such
obligation was owing against such loss. If the amount of the Agreement Currency so purchased is
greater than the sum originally due to the Administrative Agent in such currency, the
Administrative Agent agrees to return the amount of
any excess to such Borrower (or to any other Person who may be entitled thereto under
applicable law).
14.20.
UK Know-Your-Customer Requirements
.
(a) If:
(i) the introduction of or any change in (or in the interpretation, administration or
application of) any law or regulation made after the date of this Agreement;
(ii) any change in the status of a Credit Party after the date of this Agreement; or
181
(iii) a proposed assignment or transfer by a Lender of any of its rights and
obligations under this Agreement to a party that is not a Lender prior to such assignment or
transfer,
obliges
the Administrative Agent or any Lender (or, in the case of
clause (iii)
above, any
prospective new Lender) to comply with know your customer or similar identification procedures in
circumstances where the necessary information is not already available to it, each Credit Party
shall promptly upon the request of the Administrative Agent or any Lender supply, or procure the
supply of, such documentation and other evidence as is reasonably requested by the Administrative
Agent (for itself or on behalf of any Lender) or any Lender (for itself or, in the case of the
event described in
subclause (iii)
above, on behalf of any prospective new Lender) in order
for the Agent, such Lender or, in the case of the event described in
subclause (iii)
above,
any prospective new Lender to carry out and be satisfied it has complied with all necessary know
your customer or other similar checks under all Requirements of Law applicable to the transactions
contemplated in the Credit Documents.
(b) Each Lender shall promptly upon the request of the Administrative Agent supply, or procure
the supply of, such documentation and other evidence as is reasonably requested by the
Administrative Agent (for itself) in order for the Administrative Agent to carry out and be
satisfied it has complied with all necessary know your customer or other similar checks under all
Requirements of Law applicable to the transactions contemplated in the Credit Documents.
(c) If the addition of any new Credit Party obliges the Administrative Agent or any Lender to
comply with know your customer or similar identification procedures in circumstances where the
necessary information is not already available to it, the Parent Borrower shall promptly upon the
request of the Administrative Agent or any Lender supply, or procure the supply of, such
documentation and other evidence as is reasonably requested by the Administrative Agent (for itself
or on behalf of any Lender) or any Lender (for itself or on behalf of any prospective new Lender)
in order for the Administrative Agent or such Lender or any prospective new Lender to carry out and
be satisfied it has complied with all necessary know your customer or other similar checks under
all applicable Requirements of Law.
182
Exhibit 10.2
AMENDMENT
NO. 2
, dated as of May 4, 2011 (this
Amendment
), to the Credit Agreement,
dated as of November 17, 2006 (the
Original Credit Agreement
), as amended and restated as
of June 20, 2007 (the
Amended and Restated Credit Agreement
), and as further amended and
restated as of May 4, 2011, by and among HCA INC., a Delaware corporation (
HCA
), the
Subsidiary Borrowers party thereto, the lending institutions from time to time party thereto (each
a
Lender
and, collectively, the
Lenders
), BANK OF AMERICA, N.A., as
Administrative Agent (in such capacity, the
Administrative Agent
) and the other parties
named therein (as amended, the
Second Amended and Restated Credit Agreement
). Capitalized
terms used and not otherwise defined herein shall have the meanings assigned to them in the Second
Amended and Restated Credit Agreement.
WHEREAS, the Credit Parties desire to amend the Amended and Restated Credit Agreement and
certain of the other Credit Documents on the terms set forth herein;
WHEREAS,
Section 14.1
of the Amended and Restated Credit Agreement provides that the
relevant Credit Parties and the Required Lenders may amend the Amended and Restated Credit
Agreement and the other Credit Documents;
NOW, THEREFORE, in consideration of the premises contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound hereby, agree as follows:
Section 1.
Amendment
.
The Amended and Restated Credit Agreement is hereby amended to
delete the stricken text (indicated textually in the
same manner as the following example:
stricken text
) and to add 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 Second Amended
and Restated Credit Agreement attached as
Exhibit A
hereto.
Section 2.
Representations and Warranties, No Default
. The Borrowers hereby represent
and warrant that immediately prior to and immediately after giving effect to this Amendment (i) no
Default or Event of Default exists and (ii) all representations and warranties contained in the
Amended and Restated Credit Agreement or in any other Credit Document are true and correct in all
material respects with the same effect as though such representations and warranties had been made
on the date hereof (except that any representation or warranty which by its terms is made only as
of a specified date is true and correct in all material respects only as of such specified date).
Section 3.
Effectiveness
. Upon receipt by the Administrative Agent of executed
signature pages hereto from the Required Lenders and each Credit Party, the terms and conditions of
this Amendment shall become effective as part of the terms and conditions of the Second Amended and
Restated Credit Agreement for any and all purposes; provided,
however
, the amendments to
the Second Amended and Restated Credit Agreement attached as
Exhibit A
hereto shall not
become operative until an amendment to the CF Agreement has become operative.
Section 4.
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 deemed to be an original, but all of which when taken together shall constitute
a single instrument. Delivery of an executed counterpart of a signature page of this Amendment by
facsimile transmission shall be effective as delivery of a manually executed counterpart hereof.
Section 5.
Applicable Law
.
THIS AMENDMENT SHALL BE GOVERNED BY, CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 6.
Headings
. The headings of this Amendment are for purposes of reference
only and shall not limit or otherwise affect the meaning hereof.
Section 7.
Effect of Amendment
. Except as expressly set forth herein, this Amendment
shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the
rights and remedies of the Lenders or the other Secured Parties under the Amended and Restated
Credit Agreement or any other Credit Document, and shall not alter, modify, amend or in any way
affect any of the terms, conditions, obligations, covenants or agreements contained in the Amended
and Restated Credit Agreement or any other provision of either such agreement or any other Credit
Document. Each and every term, condition, obligation, covenant and agreement contained in the
Amended and Restated Credit Agreement or any other Credit Document is hereby ratified and
reaffirmed in all respects and shall continue in full force and effect. Each Credit Party
reaffirms its obligations under the Credit Documents to which it is party and the validity of the
Liens granted by it pursuant to the Security Documents. From and after the effective date of this
Amendment, all references to the Amended and Restated Credit Agreement in any Credit Document
shall, unless expressly provided otherwise, refer to the Amended and Restated Credit Agreement as
amended by this Amendment.
-2-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by
their respective authorized officers as of the day and year first written above.
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HCA INC.
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By:
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/s/ David G. Anderson
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Name:
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David G. Anderson
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Title:
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Sr. Vice President, Finance and
Treasurer
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The SUBSIDIARY BORROWERS listed on
Schedule I hereto (or, to the extent so listed
on Schedule I hereto, by the General Partner,
Sole Member or General Partner of the Sole
Member of such Subsidiary Borrower)
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By:
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/s/ John M. Franck II
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Name:
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John M. Franck II
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Title:
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Vice President and Assistant
Secretary
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[Signature Page to Amendment]
Schedule I
To Amendment No. 2 to the Credit Agreement
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By its
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By its
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By the General
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General
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Sole
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Partner of its
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Subsidary Borrower
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Partner
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Member
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Sole Member
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American Medicorp Development Co.
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Bay Hospital, Inc.
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Brigham City Community Hospital, Inc.
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Brookwood Medical Center of Gulfport, Inc.
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Capital Division, Inc.
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Centerpoint Medical Center of Independence, LLC
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Central Florida Regional Hospital, Inc.
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Central Shared Services, LLC
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Central Tennessee Hospital Corporation
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CHCA Bayshore, L.P.
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*
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CHCA Conroe, L.P.
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*
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CHCA Mainland, L.P.
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*
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CHCA West Houston, L.P.
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*
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CHCA Womans Hospital, L.P.
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*
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Chippenham & Johnston-Willis Hospitals, Inc.
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CMS GP, LLC
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Colorado Health Systems, Inc.
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Columbia ASC Management, L.P.
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Columbia Jacksonville Healthcare System, Inc.
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Columbia LaGrange Hospital, Inc.
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Columbia Medical Center of Arlington Subsidiary, L.P.
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Columbia Medical Center of Denton Subsidiary, L.P.
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Columbia Medical Center of Las Colinas, Inc.
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Columbia Medical Center of Lewisville Subsidiary, L.P.
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Columbia Medical Center of McKinney Subsidiary, L.P.
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Columbia Medical Center of Plano Subsidiary, L.P.
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Columbia North Hills Hospital Subsidiary, L.P.
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Columbia Ogden Medical Center, Inc.
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Columbia Parkersburg Healthcare System, LLC
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Columbia Plaza Medical Center of Fort Worth
Subsidiary, L.P.
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Columbia Polk General Hospital, Inc.
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Columbia Rio Grande Healthcare, L.P.
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Columbia Riverside, Inc.
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Columbia Valley Healthcare System, L.P.
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Columbia/Alleghany Regional Hospital, Incorporated
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Columbia/HCA John Randolph, Inc.
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|
Columbine Psychiatric Center, Inc.
|
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By its
|
|
By its
|
|
By the General
|
|
|
General
|
|
Sole
|
|
Partner of its
|
Subsidary Borrower
|
|
Partner
|
|
Member
|
|
Sole Member
|
Columbus Cardiology, Inc.
|
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|
Conroe Hospital Corporation
|
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|
Dallas/Ft. Worth Physician, LLC
|
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|
Dauterive Hospital Corporation
|
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Dublin Community Hospital, LLC
|
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|
Eastern Idaho Health Services, Inc.
|
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|
Edward White Hospital, Inc.
|
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|
El Paso Surgicenter, Inc.
|
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|
Encino Hospital Corporation, Inc.
|
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|
EP Health, LLC
|
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Fairview Park GP, LLC
|
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Fairview Park, Limited Partnership
|
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*
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Frankfort Hospital, Inc.
|
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Galen Property, LLC
|
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Good Samaritan Hospital, L.P.
|
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*
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Goppert-Trinity Family Care, LLC
|
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|
GPCH-GP, Inc.
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Grand Strand Regional Medical Center, LLC
|
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Green Oaks Hospital Subsidiary, L.P.
|
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*
|
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|
Greenview Hospital, Inc.
|
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|
HCA IT&S Field Operations, Inc.
|
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|
HCA IT&S Inventory Management, Inc.
|
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|
HCA Central Group, Inc.
|
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|
HCA Health Services of Florida, Inc.
|
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|
HCA Health Services of Louisiana, Inc.
|
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|
HCA Health Services of Oklahoma, Inc.
|
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HCA Health Services of Tennessee, Inc.
|
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|
HCA Health Services of Virginia, Inc.
|
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HCA Management Services, L.P.
|
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*
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|
HCA Realty, Inc.
|
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|
HD&S Corp. Successor, Inc.
|
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|
Health Midwest Office Facilities Corporation
|
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|
Health Midwest Ventures Group, Inc.
|
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|
HTI MOB, LLC
|
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*
|
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|
Hendersonville Hospital Corporation
|
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Hospital Corporation of Tennessee
|
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Hospital Corporation of Utah
|
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Hospital Development Properties, Inc.
|
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|
HSS Holdco, LLC
|
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HSS Systems VA, LLC
|
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HSS Systems, LLC
|
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By its
|
|
By its
|
|
By the General
|
|
|
General
|
|
Sole
|
|
Partner of its
|
Subsidary Borrower
|
|
Partner
|
|
Member
|
|
Sole Member
|
HSS Virginia, L.P.
|
|
|
*
|
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|
HTI Memorial Hospital Corporation
|
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|
Integrated Regional Lab, LLC
|
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|
Integrated Regional Laboratories, LLP
|
|
|
*
|
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|
JFK Medical Center Limited Partnership
|
|
|
*
|
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|
KPH-Consolidation, Inc.
|
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|
Lakeland Medical Center, LLC
|
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Lakeview Medical Center, LLC
|
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Largo Medical Center, Inc.
|
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|
Las Vegas Surgicare, Inc.
|
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|
Lawnwood Medical Center, Inc.
|
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|
Lewis-Gale Hospital, Incorporated
|
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|
Lewis-Gale Medical Center, LLC
|
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|
Lewis-Gale Physicians, LLC
|
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|
Los Robles Regional Medical Center
|
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|
Management Services Holdings, Inc.
|
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|
Marietta Surgical Center, Inc.
|
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|
Marion Community Hospital, Inc.
|
|
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|
MCA Investment Company
|
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|
Medical Centers of Oklahoma, LLC
|
|
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|
Medical Office Buildings of Kansas, LLC
|
|
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|
|
Memorial Healthcare Group, Inc.
|
|
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|
Midwest Division ACH, LLC
|
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|
Midwest Division LRHC, LLC
|
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|
Midwest Division LSH, LLC
|
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|
Midwest Division MCI, LLC
|
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|
Midwest Division MMC, LLC
|
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|
Midwest Division OPRMC, LLC
|
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|
Midwest Division PFC, LLC
|
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|
Midwest Division RBH, LLC
|
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|
Midwest Division RMC, LLC
|
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|
Midwest Division RPC, LLC
|
|
|
|
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|
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|
Midwest Holdings, Inc.
|
|
|
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|
|
Montgomery Regional Hospital, Inc.
|
|
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|
Mountain View Hospital, Inc.
|
|
|
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|
Nashville Shared Services General Partnership
|
|
|
*
|
|
|
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|
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|
|
|
National Patient Account Services, Inc.
|
|
|
|
|
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|
New Port Richey Hospital, Inc.
|
|
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|
New Rose Holding Company, Inc.
|
|
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|
North Florida Immediate Care Center, Inc.
|
|
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|
North Florida Regional Medical Center, Inc.
|
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|
|
|
|
|
|
|
|
|
By its
|
|
By its
|
|
By the General
|
|
|
General
|
|
Sole
|
|
Partner of its
|
Subsidary Borrower
|
|
Partner
|
|
Member
|
|
Sole Member
|
Northern Utah Healthcare Corporation
|
|
|
|
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|
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|
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|
|
Northern Virginia Community Hospital, LLC
|
|
|
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|
Northlake Medical Center, LLC
|
|
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|
Notami Hospitals of Louisiana, Inc.
|
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|
Notami Hospitals, LLC
|
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|
Okaloosa Hospital, Inc.
|
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|
Okeechobee Hospital, Inc.
|
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|
Outpatient Cardiovascular Center of Central Florida,
LLC
|
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|
Palms West Hospital Limited Partnership
|
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|
*
|
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|
Palmyra Park Hospital, Inc.
|
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|
Pasadena Bayshore Hospital, Inc.
|
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|
Plantation General Hospital, L.P.
|
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|
*
|
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|
Pulaski Community Hospital, Inc.
|
|
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|
Redmond Park Hospital, LLC
|
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|
Redmond Physician Practice Company
|
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|
Regional Health System of Acadiana, LLC, The
|
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|
Reston Hospital Center, LLC
|
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Retreat Hospital, LLC
|
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|
Rio Grande Regional Hospital, Inc.
|
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|
Riverside Healthcare System, L.P.
|
|
|
*
|
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|
|
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|
|
|
Riverside Hospital, Inc.
|
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|
Samaritan, LLC
|
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|
San Jose Healthcare System, LP
|
|
|
*
|
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|
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|
|
|
San Jose Hospital, L.P.
|
|
|
*
|
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|
|
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|
San Jose Medical Center, LLC
|
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|
San Jose, LLC
|
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|
Sarasota Doctors Hospital, Inc.
|
|
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|
SJMC, LLC
|
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|
Southern Hills Medical Center, LLC
|
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|
Spotsylvania Medical Center, Inc.
|
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|
Spring Branch Medical Center, Inc.
|
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|
Spring Hill Hospital, Inc.
|
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|
St. Marks Lone Peak Hospital, Inc.
|
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|
Sun City Hospital, Inc.
|
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|
Sunrise Mountainview Hospital, Inc.
|
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|
Surgicare of Brandon, Inc.
|
|
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|
Surgicare of Florida, Inc.
|
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|
Surgicare of Houston Womens, Inc.
|
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|
Surgicare of Manatee, Inc.
|
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|
Surgicare of New Port Richey, Inc.
|
|
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|
Surgicare of Palms West, LLC
|
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|
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|
|
|
|
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|
|
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|
|
|
By its
|
|
By its
|
|
By the General
|
|
|
General
|
|
Sole
|
|
Partner of its
|
Subsidary Borrower
|
|
Partner
|
|
Member
|
|
Sole Member
|
Surgicare of Riverside, LLC
|
|
|
|
|
|
|
|
|
|
|
*
|
|
Tallahassee Medical Center, Inc.
|
|
|
|
|
|
|
|
|
|
|
|
|
TCMC Madison-Portland, Inc.
|
|
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|
Terre Haute Hospital GP, Inc.
|
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|
Terre Haute Hospital Holdings, Inc.
|
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|
Terre Haute MOB, L.P.
|
|
|
*
|
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|
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|
Terre Haute Regional Hospital, L.P.
|
|
|
*
|
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|
Timpanogos Regional Medical Services, Inc.
|
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|
Trident Medical Center, LLC
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Utah Medco, LLC
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VH Holdco, Inc.
|
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VH Holdings, Inc.
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|
Virginia Psychiatric Company, Inc.
|
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|
W & C Hospital, Inc.
|
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|
Walterboro Community Hospital, Inc.
|
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|
Wesley Medical Center, LLC
|
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|
West Florida Regional Medical Center, Inc.
|
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|
West Valley Medical Center, Inc.
|
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|
Western Plains Capital, Inc.
|
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|
WHMC, Inc.
|
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|
Womans Hospital of Texas, Incorporated
|
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|
AR Holding 1, LLC
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|
*
|
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|
AR Holding 2, LLC
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*
|
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|
AR Holding 3, LLC
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|
*
|
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|
AR Holding 4, LLC
|
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|
*
|
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|
AR Holding 5, LLC
|
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|
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|
|
*
|
|
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|
AR Holding 6, LLC
|
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|
|
|
*
|
|
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|
AR Holding 7, LLC
|
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|
|
*
|
|
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|
AR Holding 8, LLC
|
|
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|
*
|
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|
AR Holding 9, LLC
|
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|
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|
|
|
*
|
|
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|
AR Holding 10, LLC
|
|
|
|
|
|
|
*
|
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AR Holding 11, LLC
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*
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AR Holding 12, LLC
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*
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AR Holding 13, LLC
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*
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AR Holding 14, LLC
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*
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AR Holding 15, LLC
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*
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AR Holding 16, LLC
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*
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AR Holding 17, LLC
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*
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AR Holding 18, LLC
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*
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AR Holding 19, LLC
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*
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AR Holding 20, LLC
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*
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By its
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By its
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By the General
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General
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Sole
|
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Partner of its
|
Subsidary Borrower
|
|
Partner
|
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Member
|
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Sole Member
|
AR Holding 21, LLC
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*
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AR Holding 22, LLC
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*
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AR Holding 23, LLC
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*
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AR Holding 24, LLC
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*
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AR Holding 25, LLC
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*
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AR Holding 26, LLC
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*
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AR Holding 27, LLC
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*
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AR Holding 28, LLC
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*
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AR Holding 29, LLC
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*
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AR Holding 30, LLC
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*
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|
BANK OF AMERICA, N.A., as Administrative
Agent and Collateral Agent
|
|
|
By:
|
/s/ Allan R. Juleus
|
|
|
|
Name:
|
Allan R. Juleus
|
|
|
|
Title:
|
SVP
|
|
|
[ADDITIONAL LENDER SIGNATURES OMITTED]
[Signature Page to Amendment]
$2,000,000,000
CREDIT AGREEMENT
Dated as of November 17, 2006
as amended and restated on June 20, 2007
and as further amended and restated on May 4, 2011
among
HCA INC.,
as the Parent Borrower,
THE SEVERAL SUBSIDIARY BORROWERS PARTY HERETO,
The Several Lenders
from Time to Time Parties Hereto,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swingline Lender
and Letter of Credit Issuer,
JPMORGAN CHASE BANK, N.A.
and
CITICORP NORTH AMERICA, INC.,
as Co-Syndication Agents,
and
MERRILL LYNCH CAPITAL CORPORATION,
as Documentation Agent
BANC OF AMERICA SECURITIES LLC,
J.P. MORGAN SECURITIES INC.,
CITIGROUP GLOBAL MARKETS INC.
and
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED,
J.P. MORGAN SECURITIES LLC,
and
CITIGROUP GLOBAL MARKETS INC.
as Joint Lead Arrangers and Bookrunners,
DEUTSCHE BANK SECURITIES INC.
and
WACHOVIA
WELLS FARGO
CAPITAL
FINANCE, LLC,
as Joint Bookrunners
and
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED,
CITIGROUP GLOBAL
MARKETS,
INC.,
and
J.P. MORGAN SECURITIES
LLC,
as Joint
Lead Arrangers and
Bookrunners
for the Amendment and Restatement
Cahill Gordon & Reindel LLP
80 Pine Street
New York, New York 10005
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page
|
|
SECTION 1. DEFINITIONS
|
|
|
3
1
|
|
1.1. DEFINED TERMS
3.
|
|
|
1
|
|
1.2. OTHER INTERPRETIVE PROVISIONS
|
|
|
55
53
|
|
1.3. ACCOUNTING TERMS
|
|
|
55
54
|
|
1.4. ROUNDING
|
|
|
55
54
|
|
1.5. REFERENCES TO AGREEMENTS, LAWS, ETC.
|
|
|
56
54
|
|
1.6. EXCHANGE RATES
|
|
|
56
54
|
|
1.7. [RESERVED]
|
|
|
56
|
|
|
|
|
|
|
SECTION 2. AMOUNT AND TERMS OF CREDIT
|
|
|
56
55
|
|
2.1. COMMITMENTS 56
EFFECT OF RESTATEMENT ON LOANS AND LETTERS OF CREDIT
UNDER SECOND AMENDED AND RESTATED CREDIT AGREEMENT
|
|
|
55
|
|
2.2. MINIMUM AMOUNT OF EACH BORROWING; MAXIMUM NUMBER OF BORROWINGS
|
|
|
59
58
|
|
2.3. NOTICE OF BORROWING
|
|
|
59
58
|
|
2.4. DISBURSEMENT OF FUNDS
|
|
|
60
59
|
|
2.5. REPAYMENT OF LOANS; EVIDENCE OF DEBT
|
|
|
61
60
|
|
2.6. CONVERSIONS AND CONTINUATIONS
|
|
|
62
60
|
|
2.7. PRO RATA BORROWINGS
|
|
|
62
61
|
|
2.8. INTEREST
|
|
|
63
61
|
|
2.9. INTEREST PERIODS
|
|
|
63
62
|
|
2.10. INCREASED COSTS, ILLEGALITY, ETC
|
|
|
64
63
|
|
2.11. COMPENSATION
|
|
|
66
65
|
|
2.12. CHANGE OF LENDING OFFICE
|
|
|
66
65
|
|
2.13. NOTICE OF CERTAIN COSTS
|
|
|
67
65
|
|
2.14. INCREMENTAL FACILITIES
|
|
|
67
66
|
|
2.15. RESERVES
|
|
|
68
67
|
|
|
|
|
|
|
SECTION 3. LETTERS OF CREDIT
|
|
|
69
67
|
|
3.1. LETTERS OF CREDIT
|
|
|
69
68
|
|
3.2. LETTER OF CREDIT REQUESTS
|
|
|
71
69
|
|
3.3. LETTER OF CREDIT PARTICIPATIONS
|
|
|
73
71
|
|
3.4. AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS
|
|
|
75
74
|
|
3.5. INCREASED COSTS
|
|
|
76
75
|
|
3.6. NEW OR SUCCESSOR LETTER OF CREDIT ISSUER
|
|
|
77
76
|
|
3.7. ROLE OF LETTER OF CREDIT ISSUER
|
|
|
78
77
|
|
3.8. CASH COLLATERAL
|
|
|
79
78
|
|
3.9. APPLICABILITY OF ISP AND UCP
|
|
|
79
78
|
|
3.10. CONFLICT WITH ISSUER DOCUMENTS
|
|
|
79
78
|
|
3.11. LETTERS OF CREDIT ISSUED FOR RESTRICTED SUBSIDIARIES
|
|
|
79
78
|
|
|
|
|
|
|
SECTION 4. FEES; COMMITMENTS
|
|
|
80
78
|
|
4.1. FEES
|
|
|
80
79
|
|
-i-
|
|
|
|
|
|
|
Page
|
|
4.2. VOLUNTARY REDUCTION OF NEW REVOLVING CREDIT COMMITMENTS
|
|
|
81
80
|
|
4.3. MANDATORY TERMINATION OF COMMITMENTS
|
|
|
81
80
|
|
|
|
|
|
|
SECTION 5. PAYMENTS
|
|
|
81
80
|
|
5.1. VOLUNTARY PREPAYMENTS
|
|
|
81
80
|
|
5.2. MANDATORY PREPAYMENTS
|
|
|
82
81
|
|
5.3. METHOD AND PLACE OF PAYMENT
|
|
|
83
82
|
|
5.4. NET PAYMENTS
|
|
|
84
83
|
|
5.5. COMPUTATIONS OF INTEREST AND FEES
|
|
|
86
85
|
|
5.6. LIMIT ON RATE OF INTEREST
|
|
|
87
86
|
|
|
|
|
|
|
SECTION 6. CONDITIONS PRECEDENT TO
SECOND
AMENDMENT AND RESTATEMENT
|
|
|
87
86
|
|
6.1. CREDIT DOCUMENTS
|
|
|
87
86
|
|
6.2. AMENDMENT AGREEMENT CONDITIONS
|
|
|
88
|
|
|
|
|
|
|
SECTION 7. CONDITIONS PRECEDENT TO ALL CREDIT EVENTS
|
|
|
88
87
|
|
7.1. NO DEFAULT; REPRESENTATIONS AND WARRANTIES
|
|
|
88
87
|
|
7.2. NOTICE OF BORROWING; LETTER OF CREDIT REQUEST
|
|
|
88
87
|
|
|
|
|
|
|
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS
|
|
|
88
87
|
|
8.1. CORPORATE STATUS
|
|
|
88
87
|
|
8.2. CORPORATE POWER AND AUTHORITY
|
|
|
89
88
|
|
8.3. NO VIOLATION
|
|
|
89
88
|
|
8.4. LITIGATION
|
|
|
89
88
|
|
8.5. MARGIN REGULATIONS
|
|
|
89
88
|
|
8.6. GOVERNMENTAL APPROVALS
|
|
|
89
88
|
|
8.7. INVESTMENT COMPANY ACT
|
|
|
90
89
|
|
8.8. TRUE AND COMPLETE DISCLOSURE
|
|
|
90
89
|
|
8.9. FINANCIAL CONDITION; FINANCIAL STATEMENTS
|
|
|
90
89
|
|
8.10. TAX MATTERS
|
|
|
90
89
|
|
8.11. COMPLIANCE WITH ERISA
|
|
|
91
89
|
|
8.12. SUBSIDIARIES
|
|
|
91
90
|
|
8.13. INTELLECTUAL PROPERTY
|
|
|
91
90
|
|
8.14. ENVIRONMENTAL LAWS
|
|
|
91
90
|
|
8.15. PROPERTIES
|
|
|
92
91
|
|
8.16. SOLVENCY
|
|
|
92
91
|
|
8.17. DELAYED EQUITY ARRANGEMENTS
|
|
|
92
|
|
|
|
|
|
|
SECTION 9. AFFIRMATIVE COVENANTS
|
|
|
92
91
|
|
9.1. INFORMATION COVENANTS
|
|
|
92
91
|
|
9.2. BOOKS, RECORDS AND INSPECTIONS
|
|
|
97
95
|
|
9.3. MAINTENANCE OF INSURANCE
|
|
|
98
96
|
|
9.4. PAYMENT OF TAXES
|
|
|
98
96
|
|
9.5. CONSOLIDATED CORPORATE FRANCHISES
|
|
|
98
97
|
|
9.6. COMPLIANCE WITH STATUTES, REGULATIONS, ETC
|
|
|
98
97
|
|
-ii-
|
|
|
|
|
|
|
Page
|
|
9.7. ERISA
|
|
|
98
97
|
|
9.8. MAINTENANCE OF PROPERTIES
|
|
|
99
98
|
|
9.9. TRANSACTIONS WITH AFFILIATES
|
|
|
99
98
|
|
9.10. END OF FISCAL YEARS; FISCAL QUARTERS
|
|
|
100
99
|
|
9.11. ADDITIONAL BORROWERS
|
|
|
100
99
|
|
9.12. [RESERVED]
|
|
|
100
99
|
|
9.13. USE OF PROCEEDS
|
|
|
100
99
|
|
9.14. FURTHER ASSURANCES
|
|
|
100
99
|
|
9.15. CASH MANAGEMENT SYSTEMS
|
|
|
101
99
|
|
|
|
|
|
|
SECTION 10. NEGATIVE COVENANTS
|
|
|
106
104
|
|
10.1. LIMITATION ON INDEBTEDNESS
|
|
|
106
105
|
|
10.2. LIMITATION ON LIENS
|
|
|
113
112
|
|
10.3. LIMITATION ON FUNDAMENTAL CHANGES
|
|
|
116
115
|
|
10.4. LIMITATION ON SALE OF ASSETS
|
|
|
118
117
|
|
10.5. LIMITATION ON INVESTMENTS
|
|
|
121
119
|
|
10.6. LIMITATION ON DIVIDENDS
|
|
|
123
122
|
|
10.7. LIMITATIONS ON DEBT PAYMENTS AND AMENDMENTS; MATTERS RELATING
TO REQUIRED ADDITIONAL EQUITY INVESTMENTS
125
|
|
|
124
|
|
10.8.
10.9.
LIMITATIONS ON SALE LEASEBACKS
|
|
|
127
125
|
|
10.9. MINIMUM INTEREST COVERAGE RATIO
|
|
|
127
125
|
|
10.10. CHANGES IN BUSINESS
|
|
|
127
125
|
|
10.11. 1993 INDENTURE RESTRICTED SUBSIDIARIES
|
|
|
127
125
|
|
|
|
|
|
|
SECTION 11. EVENTS OF DEFAULT
|
|
|
128
126
|
|
11.1. PAYMENTS
|
|
|
128
126
|
|
11.2. REPRESENTATIONS, ETC
|
|
|
128
126
|
|
11.3. COVENANTS
|
|
|
128
126
|
|
11.4. DEFAULT UNDER OTHER AGREEMENTS
|
|
|
128
126
|
|
11.5. BANKRUPTCY, ETC
|
|
|
129
127
|
|
11.6. ERISA
|
|
|
129
127
|
|
11.7. [RESERVED]
|
|
|
130
128
|
|
11.8. [RESERVED]
|
|
|
130
128
|
|
11.9. SECURITY AGREEMENT
|
|
|
130
128
|
|
11.10. [RESERVED]
|
|
|
130
128
|
|
11.11. JUDGMENTS
|
|
|
130
128
|
|
11.12. CHANGE OF CONTROL
|
|
|
130
129
|
|
11.13. CERTAIN AMENDMENTS AND WAIVERS TO CF AGREEMENT
|
|
|
131
|
|
|
|
|
|
|
SECTION 12. INVESTORS RIGHT TO CURE
|
|
|
132
130
|
|
|
|
|
|
|
SECTION 13. THE AGENTS
|
|
|
132
130
|
|
13.1. APPOINTMENT
|
|
|
132
130
|
|
13.2. DELEGATION OF DUTIES
|
|
|
133
131
|
|
-iii-
|
|
|
|
|
|
|
Page
|
|
13.3. EXCULPATORY PROVISIONS
|
|
|
133
131
|
|
13.4. RELIANCE BY AGENTS
|
|
|
134
132
|
|
13.5. NOTICE OF DEFAULT
|
|
|
134
132
|
|
13.6. NON-RELIANCE ON ADMINISTRATIVE AGENT, COLLATERAL AGENT AND
OTHER LENDERS
|
|
|
134
132
|
|
13.7. INDEMNIFICATION
|
|
|
135
133
|
|
13.8. ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY
|
|
|
135
133
|
|
13.9. SUCCESSOR AGENTS
|
|
|
136
134
|
|
13.10. WITHHOLDING TAX
|
|
|
136
135
|
|
13.11. REPORTS AND FINANCIAL STATEMENTS
|
|
|
137
135
|
|
|
|
|
|
|
SECTION 14. MISCELLANEOUS
|
|
|
137
136
|
|
14.1. AMENDMENTS AND WAIVERS
|
|
|
138
136
|
|
14.2. NOTICES
|
|
|
140
138
|
|
14.3. NO WAIVER; CUMULATIVE REMEDIES
|
|
|
140
138
|
|
14.4. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
|
|
|
141
139
|
|
14.5. PAYMENT OF EXPENSES
|
|
|
141
139
|
|
14.6. SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS
|
|
|
141
140
|
|
14.7. REPLACEMENTS OF LENDERS UNDER CERTAIN CIRCUMSTANCES
|
|
|
145
143
|
|
14.8. ADJUSTMENTS; SET-OFF
|
|
|
146
144
|
|
14.9. COUNTERPARTS
|
|
|
147
145
|
|
14.10. SEVERABILITY
|
|
|
147
145
|
|
14.11. INTEGRATION
|
|
|
147
145
|
|
14.12. GOVERNING LAW
|
|
|
147
145
|
|
14.13. SUBMISSION TO JURISDICTION; WAIVERS
|
|
|
147
145
|
|
14.14. ACKNOWLEDGMENTS
|
|
|
148
146
|
|
14.15. WAIVERS OF JURY TRIAL
|
|
|
149
147
|
|
14.16. CONFIDENTIALITY
|
|
|
149
147
|
|
14.17. DIRECT WEBSITE COMMUNICATIONS
|
|
|
150
148
|
|
14.18. USA PATRIOT ACT
|
|
|
151
149
|
|
14.19. JOINT AND SEVERAL LIABILITY
|
|
|
151
149
|
|
14.20. CONTRIBUTION AND INDEMNIFICATION AMONG THE BORROWERS
|
|
|
152
150
|
|
14.21. AGENCY OF THE PARENT BORROWER FOR EACH OTHER BORROWER
|
|
|
153
151
|
|
14.22. REINSTATEMENT
|
|
|
153
151
|
|
14.23. EXPRESS WAIVERS BY BORROWERS IN RESPECT OF CROSS GUARANTIES AND CROSS
COLLATERALIZATION
|
|
|
153
151
|
|
-iv-
Page
SCHEDULES
1
Schedule 1.1(d) Excluded Subsidiaries
Schedule 1.1(f) Retained Indebtedness
Schedule 1.1(g) Debt Repayment
Schedule 1.1(h) Consolidated Persons
Schedule 6.3(a) Local Counsel to Borrowers and Administrative Agent
Schedule 8.4 Litigation
Schedule 8.12 Subsidiaries
Schedule 9.9 Closing Date Affiliate Transactions
Schedule 9.15(a) Government Receivables Deposit Accounts
Schedule 9.15(c) Blocked Accounts
Schedule 9.15(e) Credit Card Arrangements
Schedule 10.1 Closing Date Indebtedness
Schedule 10.2 Closing Date Liens
Schedule 10.5 Closing Date Investments
Schedule 14.2 Notice Addresses
|
|
|
1
|
|
Schedules
to Amended and
Restated Credit Agreement
are not being amended
or restated except for
Schedule 1.1(c) which is being deleted hereby. The original schedules are
attached hereto for your convenience
and restated herein
.
|
-v-
EXHIBITS
2
Exhibit A Form of Borrowing Base Certificate
Exhibit D Form of Perfection Certificate
Exhibit F Form of Security AgreementExhibit G
Form of Letter of Credit Request
Exhibit H-1 Form of Legal Opinion of Simpson Thacher & Bartlett LLP
Exhibit H-2 Form of Legal Opinion of General Counsel
Exhibit I Form of Closing CertificateExhibit J
B
Form of Assignment and Acceptance
Exhibit K Form of Promissory Note Exhibit L
C
Form of Joinder Agreement
|
|
|
2
|
|
Exhibits
Other than as set forth
above, exhibits to Amended and Restated Credit Agreement
are not being
amended and restated
hereby except for Exhibits H-1 and K. All other original
exhibits are attached hereto for your convenience.
herein.
|
-vi-
CREDIT AGREEMENT, dated as of November 17, 2006, as amended and restated on June 20,
2007
(the
2007, and as further amended and restated on May 4, 2011 (this
Agreemen
t),
by
and
among HCA Inc., a Delaware corporation (
HCA
or the
Parent Borrower
), the Subsidiary
Borrowers party hereto, the lending institutions from time to time parties hereto (each a
Lender
and, collectively, the
Lenders
),
and
BANK OF AMERICA, N.A., as Administrative Agent,
Swingline Lender and Letter of Credit Issuer (such terms and each other capitalized term used but
not defined in this introductory statement having the meaning provided in
Section 1
)
,
JPMORGAN CHASE BANK, N.A. and CITICORP NORTH AMERICA, INC., as co-syndication agents (in such
capacity, the
Co-Syndication Agents
), BANC OF AMERICA SECURITIES LLC, J.P. MORGAN SECURITIES
INC., CITIGROUP GLOBAL MARKETS INC. and MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, as
joint lead arrangers (in such capacity, the
Joint Lead Arrangers
) and bookrunners (in such
capacity, the
Bookrunners
), DEUTSCHE BANK SECURITIES INC. and WACHOVIA CAPITAL MARKETS LLC, as
joint bookrunners (in such capacity, the
Joint Bookrunners
), and MERRILL LYNCH CAPITAL
CORPORATION, as documentation agent (in such capacity, the
Documentation Agent
).
.
WHEREAS, the Parent Borrower, the Subsidiary Borrowers, the several lenders from time to time
party thereto (the
Original Lenders
), the Administrative Agent, the Co-Syndication Agents, the
Joint Lead Arrangers, the Bookrunners, the Joint Bookrunners and the Documentation Agent originally
entered into a credit agreement on November 17, 2006 (the
Original Credit Agreement
), and the
parties thereto
amended and restated the Original Credit Agreement on June 20, 2007 (the
Amended and Restated Credit Agreement
) and the parties thereto
desire to amend and restate
the
Original
Amended and Restated
Credit Agreement on and subject to the terms and
conditions set forth herein and in the
Second
Amendment Agreement dated as of the
Second Amendment and Restatement Date (the
Second
Amendment Agreement
);
WHEREAS, the parties hereto
intend to (i) create a new tranche of revolving credit commitments
(the
New Revolving Credit Commitments
) in an aggregate principal amount equal to $2,000,000,000
and (ii) exchange (the
Exchange
) up to $2,000,000,000 of Revolving Credit Commitments (as defined
in the Original Credit Agreement) and related outstanding Revolving Credit Loans (as defined in the
Original Credit Agreement) of Original Lenders opting to so exchange, for like principal amounts of
New Revolving Credit Commitments and related revolving loans (the
New Revolving Credit Loans
)
and, for those Original Lenders not opting to participate in the Exchange, terminate the Revolving
Credit Commitments and repay in full the Revolving Credit Loans of such non-exchanging Original
Lenders (the
Repayment
). After giving effect to the Exchange and Repayment on the effective date
of the Agreement, all outstanding Revolving Credit Loans and the Revolving Credit Commitments (each
as defined in the Original Credit Agreement) shall be deemed terminated;
WHEREAS, Parent Borrower and Subsidiary Borrowers intend to prepay their Revolving Credit
Loans (as defined in the Original Credit Agreement) with the proceeds from the New Revolving Credit
Loans (it being understood that Original Lenders that execute and
deliver the Amendment Agreement are exchanging all or a portion of their Revolving Credit
Loans (as stipulated therein) under the Original Credit Agreement for New Revolving Credit Loans
hereunder);
WHEREAS, the Borrowers shall pay to each Original Lender all accrued and unpaid interest
(including any Reserve Amount as defined in the Original Credit Agreement) and Commitment Fees to,
but not including, the Amendment and Restatement Date.
WHEREAS, the parties hereto intend that (a) the Obligations under the Original Credit
Agreement that remain unpaid and outstanding as of the Amendment and Restatement Date shall
continue to exist under this Agreement on the terms set forth herein and in the Amendment
Agreement, (b) any letters of credit outstanding under the Original Credit Agreement as of the
Amendment and Restatement Date shall be Letters of Credit as defined in this Agreement, (c) the
Security Documents shall continue (in accordance with their terms) to secure, guarantee, support
and otherwise benefit, as applicable, the Obligations under the Original Credit Agreement as well
as the other Obligations of the Parent Borrower, the Subsidiary Borrowers and the other Credit
Parties under this Agreement (including, without limitation, Obligations in respect of the New
Revolving Credit Loans) and the other Credit Documents and (d) all schedules and exhibits to the
Original Credit Agreement shall be incorporated by reference herein, mutatis mutandis, except for
and to the extent that Schedule 1.1(c) is being deleted and Exhibits H-1 and K are expressly
amended and restated in connection herewith;
WHEREAS, pursuant to the Agreement and Plan of Merger (as amended from time to time in
accordance therewith, the
Acquisition Agreement
), dated as of July 24, 2006, by and among HCA,
Holdings and Merger Sub, Merger Sub will merge with and into HCA (the
Merger
), with HCA surviving
the Merger as a wholly-owned Subsidiary of Holdings;
WHEREAS, to fund, in part, the Merger, the Sponsors and certain other investors (including the
Management Investors) contributed an amount in cash to Holdings and/or a direct or indirect parent
thereof in exchange for Stock and Stock Equivalents (which cash has been contributed to the Parent
Borrower in exchange for common Stock of the Parent Borrower), which together with the amount of
any rollover equity issued to existing shareholders of the Parent Borrower (such contribution and
rollover, collectively, the
Equity Investments
) was approximately 15% of the aggregate pro forma
capitalization of the Parent Borrower on the Original Closing Date;
WHEREAS, to consummate the transactions contemplated by the Acquisition Agreement, (a) the
Parent Borrower issued under the Junior Lien Notes Indenture $1,000,000,000 aggregate principal
amount of 9
1
/
8
% senior secured notes due 2014 (the
2014 Cash Pay Notes
), $3,200,000,000 aggregate
principal amount of 9
1
/
4
% senior secured notes due 2016 (the
2016 Cash Pay Notes
and together with
the 2014 Cash Pay Notes, the
Cash Pay Notes
) and $1,500,000,000 aggregate principal amount of
9
5
/
8
%/10
3
/
8
% senior secured toggle notes due 2016 (the
Toggle Notes
, and together with the Cash Pay
Notes, the
Junior Lien Notes
) in sales pursuant to Rule 144A and Regulation S under the
Securities Act of 1933, as amended (the
Junior Lien Notes Offering
), generating aggregate gross
proceeds of
-2-
$5,700,000,000 and (b) the Parent Borrower and the European Subsidiary Borrower (as defined in the
CF Agreement) entered into the CF Facilities to borrow (i) tranche A term loans on the Original
Closing Date in an aggregate principal amount of $2,750,000,000, (ii) tranche B term loans on the
Original Closing Date in an aggregate principal amount of $8,800,000,000, (iii) European tranche
term loans on the Original Closing Date in an aggregate principal amount of 1,00,000,000, and (iv)
revolving credit loans made available to the Parent Borrower at any time and from time to time in
accordance with the terms of the CF Agreement in an aggregate principal amount at any time
outstanding not in excess of $2,000,000,000 less the sum of (A) the aggregate letters of credit
outstanding thereunder at such time and (B) the aggregate principal amount of all swingline loans
outstanding thereunder at such time;
WHEREAS, the proceeds of New Revolving Credit Loans and Swingline Loans will be used by the
Borrowers on or after the Amendment and Restatement Date for general corporate purposes (including
Permitted Acquisitions). Letters of Credit will be used by the Borrowers for general corporate
purposes; and
WHEREAS, the Lenders and Letter of Credit Issuer are willing to make available to the
Borrowers such revolving credit and letter of credit facilities upon the terms and subject to the
conditions set forth herein;
wish to amend and restate the Amended and Restated Credit Agreement in
its entirety as set forth below:
NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained
herein, the parties hereto hereby agree as follows:
SECTION 1.
Definitions
1.1.
Defined Terms.
As used herein, the following terms shall have the meanings specified in
this
Section 1.1
unless the context otherwise requires (it being
understood that defined terms in this Agreement shall include in the singular number the
plural and in the plural the singular):
ABL Entity
shall mean a direct Restricted Subsidiary of a 1993 Indenture Restricted
Subsidiary, substantially all of the business of which consists of financing the acquisition or
disposition of accounts receivable and related assets.
ABR
shall mean for any day a fluctuating rate per annum equal to the higher of (a) the
Federal Funds Effective Rate
plus
1/2 of 1% and (b) the rate of interest in effect for such day as
publicly announced from time to time by the Administrative Agent as its prime rate. The prime
rate is a rate set by the Administrative Agent based upon various factors including the
Administrative Agents 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 the ABR due to a change in such rate announced by the Administrative
Agent or in the Federal Funds Effective Rate shall take effect at the opening of business on the
day specified in the public announcement of such change or on the effective date of such change in
the Federal Funds Effective Rate, respectively.
-3-
ABR Loan
shall mean each Loan bearing interest at the rate provided in
Section 2.8(a)
and, in any event, shall include all Swingline Loans.
Accommodation Payment
shall have the meaning provided in
Section 14.20
.
Account Debtor
shall mean account debtor as defined in Article 9 of the UCC, and any other
Person who may become obligated to a Credit Party under, with respect to, or on account of an
Account of such Credit Party (including without limitation any guarantor or performance of an
Account).
Accounts
shall mean collectively (a) any right to payment of a monetary obligation arising
from the provision of merchandise, goods or services by the Parent Borrower or any of its
Subsidiaries in the course of their respective healthcare provision operations, (b) without
duplication, any account (as that term is defined in the UCC on the Original Closing Date or
thereafter in effect), any accounts receivable, any heath-care-insurance receivables (as that
term is defined in the UCC on the Original Closing Date or thereafter in effect), any payment
intangibles (as that term is defined in the UCC on the Original Closing Date or thereafter in
effect) and all other rights to payment and/or reimbursement of every kind and description, whether
or not earned by performance, in each case arising in the course of their respective healthcare
provision operations, (c) all accounts, contract rights, general intangibles, rights, remedies,
guarantees, supporting obligations, letter of credit rights and security interests in respect of
the foregoing, all rights of enforcement and collection, all books and records evidencing or
related to the foregoing, and all rights under any of the Credit Documents in respect of the
foregoing, (d) all information and data compiled or derived by any Secured Party or to which any
Secured Party is entitled in respect of or related to the foregoing (other than any such
information and data subject to legal restrictions of patient confidentiality), (e) all collateral
security of any kind, given by any Account Debtor or any other Person to any Secured Party, with
respect to any of the foregoing, and (f) all proceeds of the foregoing.
ACH
shall mean automated clearing house transfers.
Acquired EBITDA
shall mean, with respect to
(i)
any Acquired Entity or Business
or
to the
extent the aggregate consideration paid in connection with such acquisition was at least
$75,000,000 or (ii)
any Converted Restricted Subsidiary (any of the foregoing, a
Pro Forma
Entity
) for any period, the amount for such period of Consolidated EBITDA of such Pro Forma Entity
(determined using such definitions as if references to the Parent Borrower and its Subsidiaries
therein were to such Pro Forma Entity and its Subsidiaries), all as determined on a consolidated
basis for such Pro Forma Entity in a manner not inconsistent with GAAP.
Acquired Entity or Business
shall have the meaning provided in the definition of the term
Consolidated EBITDA.
Acquisition Agreement
shall
have the meaning provided in the preamble to this
mean the
Agreement
and Plan of Merger, dated as of July 24, 2006, by and among HCA, Hercules Holdings and
Merger Sub
.
-4-
Additional Receivables Intercreditor Agreement
shall mean,
in connection with any incurrence
of any Future Secured Notes, any agreement, in form reasonably satisfactory to the Administrative
Agent, between the collateral agent, on behalf of the holders of such Future Secured Notes, and the
Collateral Agent providing that the Liens of the collateral agent for the benefit of the holders of
such Future Secured Notes on the Shared Receivables Collateral shall rank junior to the Lien on the
Shared Receivables Collateral securing the Obligations on a basis at least as substantially
favorable to the Lenders as the basis on which the Lien securing the CF Facilities ranks junior to
the Lien on the Shared Receivables Collateral securing the Obligations pursuant to the
Intercreditor Agreement.
(i) the Additional Receivables Intercreditor Agreement, dated as of April
22, 2009, by and between the Collateral Agent and Bank of America, as the CF Collateral Agent, (ii)
the Additional Receivables Intercreditor Agreement, dated as of August 11, 2009, by and between the
Collateral Agent and Bank of America, as the CF Collateral Agent, (iii) the Additional Receivables
Intercreditor Agreement, dated as of March 10, 2010, by and between the Collateral Agent and the CF
Collateral Agent and (iv) any additional receivables intercreditor agreement entered into by the
Collateral Agent following the Second Restatement Effective Date with the CF Collateral Agent in
connection with the issuance of Future Secured Debt constituting CF Level Lien Obligations which
intercreditor agreement is substantially similar to the intercreditor agreements referred to in
clauses (i) and (ii) above with such changes thereto as may be reasonably agreed to by the
Collateral Agent.
Adjusted Total New Revolving Credit Commitment
shall mean at any time the Total New
Revolving Credit Commitment less the aggregate New Revolving Credit Commitments of all Defaulting
Lenders.
Administrative Agent
shall mean Bank of America, as the administrative agent for the Lenders
under this Agreement and the other Credit Documents, or any successor administrative agent pursuant
to
Section 13
.
Administrative Agents Office
shall mean the Administrative Agents address and, as
appropriate, account as set forth on
Schedule 14.2
to
of
the Original Credit Agreement or such other
address or account as the Administrative Agent may from time to time notify to the Borrowers and
the Lenders.
Administrative Questionnaire
shall have the meaning provided in
Section 14.6(b)
.
Affiliate
shall mean, with respect to any Person, any other Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with such Person. A Person
shall be deemed to control a corporation if such Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of such corporation, whether
through the ownership of voting securities, by contract or otherwise.
Agent Parties
shall have the meaning provided in
Section 14.17(c)
.
Agents
shall mean the Administrative Agent, the Collateral Agent, each Co-Syndication Agent,
each Joint Lead Arranger and Bookrunner, each Joint Bookrunner and the Documentation Agent.
-5-
Aggregate New Revolving Outstandings
shall have the meaning provided in
Section
5.2(b)
.
Agreement
shall mean this
Second
Amended and Restated Credit Agreement, as the same
may be
further
amended, supplemented or otherwise modified from time to time.
Allocable Amount
shall have the meaning provided in
Section 14.20
.
Amendment
Amended and Restated Credit
Agreement
shall have the meaning set forth in
the recitals hereto.
Amendment Agreement
shall mean that certain Amendment Agreement, dated as of March 2,
2009, by and among HCA, the Subsidiary Borrowers, the Lenders and the Administrative Agent.
Amendment and Restatement Date
shall mean June 20, 2007.
Applicable ABR Margin
shall mean at any date, with respect to each ABR Loan, the applicable
percentage
per annum
set forth below based upon the Status in effect on such date:
|
|
|
|
|
Status
|
|
Applicable ABR Margin
|
|
Level I Status
|
|
|
0.75
|
%
|
Level II Status
|
|
|
0.50
|
%
|
Level III Status
|
|
|
0.25
|
%
|
Notwithstanding the foregoing, Level II Status shall apply during the period from and including the
interest payment date immediately prior to the First Amendment Date to but excluding the Trigger
Date.
Applicable Amount
shall mean, at any time (the
Reference Time
), an amount equal to (a) the
sum, without duplication, of:
(i) an amount equal to the greater of (x) zero and (y) 50% of Cumulative Consolidated
Net Income for the period from October 1, 2006 until the last day of the then most recent
fiscal quarter for which
Section 9.1
Financials have been delivered;
provided
that, for
the
purposes of
Sections
Section
10.6(c)(iii)
and
10.7(a)(i)(z)
only, the amount in this
clause (i)
shall
only be available if the Consolidated Total Debt to Consolidated EBITDA Ratio for the most
recently ended Test Period
for which Section 9.1 Financials have been delivered
is
less than 6.00:1.00, determined on a Pro Forma Basis after giving effect to any dividend or
prepayment, repurchase or redemption actually made pursuant to
Section 10.6(c)(iii)
or
10.7(a)(i)(z)
; and
(ii) the amount of any capital contributions (other than (A) the Equity Investments, (B)
any Cure Amount, (C) any amount added back in the definition of Consolidated EBITDA pursuant
to
clause (a)(ix)
thereof, (D) any contributions in respect
-6-
of Disqualified Equity
Interests, (E) any amount applied to redeem Stock or Stock
Equivalents of the Parent Borrower pursuant to
Section 10.6(a)
and (F) any amount
received by the Parent Borrower in satisfaction of the requirements of the first sentence of
Section 10.7(d)
of the Amended and Restated Credit Agreement
) made in cash
to, or any proceeds of an equity issuance received by, the Parent Borrower from and
including the Business Day immediately following the Original Closing Date through and
including the Reference Time, including proceeds from the issuance of Stock or Stock
Equivalents of any direct or indirect parent of the Parent Borrower,
minus
(b) the sum, without duplication, of:
(i) the aggregate amount of Investments made pursuant to
Section 10.5(g)(ii)(y)
or
10.5(i)(ii)(y)
of the Amended and Restated Credit Agreement
following the
Original Closing Date and prior to the
Reference Time
Second Restatement Effective
Date
;
(ii) the aggregate amount of dividends pursuant to
Section 10.6(c)(iii)
following the Original Closing Date and prior to the Reference Time; and
(iii) the aggregate amount of prepayments, repurchases and redemptions of Junior
Indebtedness pursuant to
Section 10.7(a)(i)(z)
of the Amended and Restated
Credit Agreement
following the Original Closing Date and prior to the
Reference Time
Second Amendment and Restatement Date
.
Applicable LIBOR Margin
shall mean, at any date, with respect to each LIBOR Loan, the
percentage
per annum
set forth below based upon the Status in effect on such date:
|
|
|
|
|
Status
|
|
Applicable LIBOR Margin
|
|
Level I Status
|
|
|
1.75
|
%
|
Level II Status
|
|
|
1.50
|
%
|
Level III Status
|
|
|
1.25
|
%
|
Notwithstanding the foregoing, Level II Status shall apply during the period from and including the
interest payment date immediately prior to the First Amendment Date to but excluding the Trigger
Date.
Approved Fund
shall mean any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.
Assignment and Acceptance
shall mean an assignment and acceptance substantially in the form
of
Exhibit
J
to the Original Credit Agreement
B
, or such other form as may be
approved by the Administrative Agent.
-7-
Authorized Officer
shall mean the President, the Chief Financial Officer, the Treasurer, the
Vice President-Finance or any other senior officer of the Parent Borrower (or, if
expressly used with reference to a Subsidiary Borrower, of such Subsidiary Borrower)
designated as such in writing to the Administrative Agent by the applicable Borrower.
Auto-Extension Letter of Credit
shall have the meaning provided in
Section 3.2(d)
.
Auto-Reinstatement Letter of Credit
shall have the meaning provided in
Section
3.2(e)
.
Availability Reserves
shall mean, without duplication of any other reserves or items that
are otherwise addressed or excluded through eligibility criteria, such reserves, subject to
Section 2.15
, as the Administrative Agent, in its Permitted Discretion, determines as being
appropriate to reflect any impediments to the realization upon the Collateral consisting of
Eligible Accounts included in the Borrowing Base (including claims that the Administrative Agent
determines will need to be satisfied in connection with the realization upon such Collateral).
Available Commitment
shall mean an amount equal to the excess, if any, of (a) the amount of
the Total New Revolving Credit Commitment over (b) the sum of (i) the aggregate principal amount of
all New Revolving Credit Loans (but not Swingline Loans) then outstanding and (ii) the aggregate
Letters of Credit Outstanding at such time.
Bain
shall mean Bain Capital Partners LLC.
Bank of America
shall mean Bank of America, N.A. and its successors.
Bankruptcy Code
shall have the meaning provided in
Section 11.5
.
BBA LIBOR
shall have the meaning provided in the definition of the term LIBOR
Rate.
Blocked Account Agreement
shall have the meaning provided in
Section 9.15(a)
.
Blocked Accounts
shall have the meaning provided in
Section 9.15(a)
.
Board
shall mean the Board of Governors of the Federal Reserve System of the United States
(or any successor).
Borrower Materials
shall have the meaning provided
Section 14.17(b)
.
Borrowers
shall mean the Parent Borrower and the Subsidiary Borrowers, jointly, severally
and collectively.
Borrowing
shall mean and include (a) the incurrence of Swingline Loans from the Swingline
Lender on a given date, (b) the incurrence of one Type of New Revolving Credit
-8-
Loan on a given date
(or resulting from conversions on a given date) having, in the case of LIBOR Loans, the same
Interest Period (
provided
that ABR Loans incurred pursuant to
Section
2.10(b)
shall be considered part of any related Borrowing of LIBOR Loans) and (c) the
incurrence of any Protective Advance.
Borrowing Base
shall mean, on any date, a dollar amount equal to (x) 85% multiplied by the
book value of Eligible Accounts plus (y) 85% multiplied by the book value of Eligible Credit Card
Receivables (without duplication) minus (z) any Reserves;
provided
that the portion of the
Borrowing Base attributable to (i) Self-Pay Accounts shall not exceed the lesser of (a) $80.0
million and (b) the aggregate amount of cash collections received in respect of Self-Pay Accounts
during the three calendar month period then most recently completed for which internal financial
statements are available and (ii) Potential Medicaid Accounts shall not exceed the lesser of (a)
$75.0 million and (b) the aggregate amount of Potential Medicaid Accounts that have been converted
into Medicaid Accounts during the three calendar month period then most recently completed for
which internal financial statements are available. The Administrative Agent, in its Permitted
Discretion, may adjust the Borrowing Base by applying percentages (known as liquidating factors)
to Eligible Accounts by payor class based upon the applicable Borrowers actual recent collection
history for each such payor class (i.e., Medicare, Medicaid, commercial insurance, etc.) in a
manner consistent with the Administrative Agents underwriting practices and procedures.
Borrowing Base Certificate
shall mean a certificate, duly executed by a Financial Officer or
controller of the Parent Borrower, appropriately completed and substantially in the form of
Exhibit A
to the Original Credit Agreement.
Business Day
shall mean any day excluding Saturday, Sunday and any day that in the
jurisdiction where the Administrative Agents Office for Loans is located shall be a legal holiday
or a day on which banking institutions are authorized by law or other governmental actions to
close;
provided
,
however
, if such day relates to any interest rate settings as to a
LIBOR Loan, any fundings, disbursements, settlements and payments in respect of any such LIBOR
Loan, or any other dealings to be carried out pursuant to this Agreement in respect of any such
LIBOR Loan, such day shall be a day on which dealings in deposits are conducted by and between
banks in the London interbank eurodollar market.
Capital Lease
shall mean, as applied to any Person, any lease of any property (whether real,
personal or mixed) by that Person as lessee that, in conformity with GAAP, is, or is required to
be, accounted for as a capital lease on the balance sheet of that Person.
Capitalized Lease Obligations
shall mean, as applied to any Person, all obligations under
Capital Leases of such Person or any of its Subsidiaries, in each case taken at the amount thereof
accounted for as liabilities in accordance with GAAP.
Cash Collateralize
shall have the meaning provided in
Section 3.8(d)
.
Cash Dominion Event
shall mean either (i) the occurrence and continuance of any Event of
Default under
Section 11.1
or
11.5
, or (ii) the Parent Borrower has failed to
maintain (x) Excess Global Availability of at least $250.0 million or (y) Excess Facility
-9-
Availability of at least $125.0 million, in the case of each of clause (x) and (y) for five (5)
consecutive Business Days, and in the case of this
clause (ii)
, the Administrative Agent
has notified the Parent Borrower thereof. For purposes of this Agreement, the occurrence of a
Cash Dominion Event shall be deemed continuing at the Administrative Agents option (x) if the Cash
Dominion Event arises under clause (i) above, so long as such Event of Default is continuing, or
(y) if the Cash Dominion Event arises as a result of the Parent Borrowers failure to achieve and
maintain Excess Global Availability and Excess Facility Availability as required hereunder, until
(A) Excess Global Availability has exceeded $250.0 million and (B) Excess Facility Availability has
exceeded $125.0 million, in the case of (A) and (B) for thirty (30) consecutive days, in which case
a Cash Dominion Event shall no longer be deemed to be continuing for purposes of this Agreement;
provided
that a Cash Dominion Event shall be deemed continuing (even if such an Event of
Default is no longer continuing and/or Excess Global Availability and Excess Facility Availability
exceed the required amounts for thirty (30) consecutive days) at all times in any four fiscal
quarter period after a Cash Dominion Event has occurred and been discontinued on two occasions in
such four fiscal quarter period.
Cash Management Agreement
shall mean any agreement or arrangement to provide cash management
services, including treasury, depository, overdraft, credit or debit card, purchase card,
electronic funds transfer and other cash management arrangements.
Cash Management Bank
shall mean any Person that, either (x) at the time it enters into a
Cash Management Agreement or (y) on the Original Closing Date,
Amendment and Restatement Date,
or the Second Restatement Effective Date,
is a Lender or an Affiliate of a Lender, in its
capacity as a party to such Cash Management Agreement.
Cash Management Systems
shall have the meaning provided in
Section 9.15(a)
.
Cash Pay Notes
shall have the meaning provided in the preamble to this Agreement.
CF Agreement
shall mean the Credit Agreement, dated as of November 17, 2006, among the
Parent Borrower, the European subsidiary borrowers party thereto, the lending institutions from
time to time parties thereto, Bank of America, N.A., as administrative agent, swingline lender and
letter of credit issuer, JPMorgan Chase Bank, N.A. and Citicorp North America, Inc., as
co-syndication agents, Banc of America Securities LLC, J.P. Morgan Securities
Inc.
LLC
,
Citigroup Global Markets
,
Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as
joint lead arrangers and bookrunners, Deutsche Bank Securities Inc. and
Wachovia
Wells Fargo
Capital
Markets
Finance,
LLC, as joint bookrunners, and Merrill Lynch Capital Corporation,
as documentation agent as the same may be amended, supplemented or otherwise modified from time to
time in accordance with its terms.
CF Collateral Agent
shall mean the collateral agent under the CF Facilities.
CF Documents
shall mean the CF Agreement, any guaranties issued thereunder and the
collateral and security documents (and intercreditor agreements)
and any
-10-
amendments, restatements, supplements or other modifications thereto,
entered into in connection therewith.
CF Facilities
shall mean the credit facilities under the CF Agreement, including any
guarantees, collateral documents and account control agreements, instruments and agreements
executed in connection therewith, and any amendments, supplements, modifications, extensions,
renewals, restatements, refundings or refinancings thereof and any indentures or credit facilities
or commercial paper facilities with banks or other institutional lenders or investors that replace,
refund or refinance any part of the loans, notes, other credit facilities or commitments
thereunder, including any such replacement, refunding or refinancing facility or indenture that
increases the amount borrowable thereunder or alters the maturity thereof.
CF Level Lien Obligations
shall mean the CF Obligations and the Future Secured Debt
Obligations (other than any Future Secured Debt Obligations that are secured by a Lien ranking
junior to the Lien securing the CF Obligations), collectively.
CF Obligations
shall mean Obligations as defined in the CF Agreeement.
CF Revolving Credit Facility
shall mean the revolving credit facility under the CF
Agreement.
CHAMPVA
shall mean, collectively, the Civilian Health and Medical Program of the Department
of Veteran Affairs, a program of medical benefits covering retirees and dependents of former
members of the armed services administered by the United States Department of Veteran Affairs, and
all laws, rules, regulations, manuals, orders, guidelines or requirements pertaining to such
program including, without limitation, (a) all federal statutes (whether set forth in 38 U.S.C. §
1713 or elsewhere) affecting such program to the extent applicable to CHAMPVA and (b) all rules,
regulations (including 38 C.F.R. § 17.54), manuals, orders and administrative, reimbursement and
other guidelines of all Governmental Authorities promulgated in connection with such program
(whether or not having the force of law), in each case as the same may be amended, supplemented or
otherwise modified from time to time.
CHAMPVA Account
shall mean an Account payable pursuant to CHAMPVA.
Change in Law
shall mean (a) the adoption of any law, treaty, order, policy, rule or
regulation after the
date of this Agreement
Original Closing Date
, (b) any change in any
law, treaty, order, policy, rule or regulation or in the interpretation or application thereof by
any Governmental Authority after the
date of this Agreement
Original Closing Date
or (c) any
guideline, request or directive issued or made after the Original Closing Date by any central bank
or other governmental or quasi-governmental authority (whether or not having the force of law) that
requires compliance by a Lender.
Change of Control
shall mean and be deemed to have occurred if (a
) the Sponsors, the Frist
Shareholders and the Management Investors shall at any time not own, in the aggregate, directly or
indirectly, beneficially and of record, at least 35% of the voting power of the outstanding Voting
Stock of the Parent Borrower (other than as the result of one or more widely distributed offerings
of the common Stock of the Parent Borrower or any direct or
-11-
indirect parent thereof, in each case
whether by the Parent Borrower, such parent, the Sponsors, the Frist Shareholders or the Management
Investors); or (b) any person, entity
) any person
or group (within the meaning of
Section
13(d) or 14(d)
Rules 13d-3 and 13d-5
of the Securities
Exchange Act of 1934, as amended)
shall at any time have acquired direct or indirect
beneficial ownership of a percentage of the voting power of the outstanding Voting Stock of the
Parent Borrower that exceeds the percentage of the voting power of such Voting Stock then
beneficially owned, in the aggregate, by
, other than the combination of
the Sponsors, the
Frist Shareholders and the Management Investors,
unless, in the case of either
clause (a)
or
(b)
above,
shall have acquired beneficial ownership of 35% or more on a fully diluted
basis of the voting power of the Voting Stock of the Parent Borrower and the combination of
the
Sponsors, the Frist Shareholders and the Management Investors
have, at such time, the right or the
ability by voting power, contract or otherwise to elect or designate for election
shall own,
directly or indirectly, less than such person or group on a fully diluted basis of the Voting
Stock of the Parent Borrower; or (b) Continuing Directors shall not constitute
at least a
majority of the board of directors of the Parent Borrower; or (c)
Continuing Directors shall not
constitute at least a majority of the board of directors of the Parent Borrower; or (d)
at any
time, a Change of Control (as defined in the
Initial
Junior Lien Notes Indenture or any
agreement governing Subordinated Indebtedness) shall have occurred; or (
e
d
) the Parent
Borrower shall cease to
own
directly
own
100% of the Stock and Stock Equivalents of
Healthtrust;
provided
that no Change of Control shall be deemed to have occurred under this
clause (
e
d
)
solely as a result of the preferred Stock of Healthtrust that
is owned by Columbia
SDH and Epic Properties continuing to be owned by such entities so
long as Columbia
SDH and Epic Properties are direct or indirect wholly-owned Subsidiaries
of Healthtrust.
Class
, when used in reference to any Loan or Borrowing, shall refer to whether such Loan, or
the Loans comprising such Borrowing, are New Revolving Credit Loans, Protective Advances,
Incremental Revolving Loans or Swingline Loans and, when used in reference to any Commitment,
refers to whether such Commitment is a New Revolving Credit Commitment or a Incremental Revolving
Credit Commitment.
Code
shall mean the Internal Revenue Code of 1986, as amended from time to time, and the
regulations promulgated and rulings issued thereunder. Section references to the Code are to the
Code as in effect at the
date of this Agreement
Original Closing Date
and any subsequent
provisions of the Code amendatory thereof, supplemental thereto or substituted therefor.
Collateral
shall have the meaning assigned thereto in to the Security Agreement.
Collateral Agent
shall mean Bank of America, as collateral agent under the Security
Documents, or any successor collateral agent pursuant to
Section 13
.
Collection Account
shall mean the account of the Administrative Agent designated by the
Administrative Agent as such in writing. Any funds on deposit in the Collection Account shall at
all times constitute Collateral.
-12-
Columbia-SDH
shall mean Columbia-SDH Holdings, Inc., a Delaware corporation.
Commitment Fee
shall have the meaning provided in
Section 4.1(a)
.
Commitment Fee Rate
shall mean, with respect to the Available Commitment on any day, the
rate
per annum
set forth below opposite the Status in effect on such day:
|
|
|
|
|
Status
|
|
Commitment Fee Rate
|
|
Level I Status
|
|
|
0.375
|
%
|
Level II Status
|
|
|
0.375
|
%
|
Level III Status
|
|
|
0.250
|
%
|
Notwithstanding the foregoing, the term Commitment Fee Rate shall mean 0.375% during the period
from and including the Original Closing Date to but excluding the Trigger Date.
Commitments
shall mean, with respect to each Lender (to the extent applicable), such
Lenders New Revolving Credit Commitment, Incremental Revolving Credit Commitment and commitment to
acquire participations in Protective Advances.
Communications
shall have the meaning provided in
Section 14.17(a)
.
Concentration Account
shall have the meaning provided in
Section 9.15(a)
.
Confidential Healthcare Information
shall have the meaning provided in
Section 9.2
.
Confidential Information
shall have the meaning provided in
Section 14.16
.
Confidential Information Memorandum
shall mean the Confidential Information Memorandum of
the Parent Borrower dated August 2006, the Confidential Information Memorandum of the Parent
Borrower dated September 2006, in each case delivered to
the
Lenders in connection with this
Agreement, and the Confidential Information Memorandum of the Parent Borrower dated October 2006;
provided
that in the event and to the extent of any inconsistencies between or among any of the
foregoing, Confidential Information Memorandum shall refer to the most recent thereof.
Consolidated EBITDA
shall mean, for any period, Consolidated Net Income for such period,
plus
:
(a) without duplication and to the extent deducted (and not added back) in arriving at
such Consolidated Net Income, the sum of the following amounts for the Parent Borrower and
the Restricted Subsidiaries for such period:
(i) total interest expense and to the extent not reflected in such total
interest expense, any losses on hedging obligations or other derivative instruments
-13-
entered into for the purpose of hedging interest rate risk, net of interest income
(other than interest income of HCI) and gains on such hedging obligations, and costs
of surety bonds in connection with financing activities,
(ii) provision for taxes based on income, profits or capital, including federal,
foreign state, franchise, excise and similar taxes and foreign withholding taxes paid
or accrued during such period, including any penalties and interest relating to any
tax examinations,
(iii) depreciation and amortization,
(iv) Non-Cash Charges,
(v) extraordinary losses, unusual or non-recurring charges, severance costs,
relocation costs, integration and facilities opening costs, signing costs, retention
or completion bonuses, transition costs and costs from curtailments or modifications
to pension and post-retirement employee benefit plans,
(vi) restructuring charges or reserves (including restructuring costs related
to acquisitions
after the Original Closing Date
and to closure and/or
consolidation of facilities),
(vii) the amount of any minority interest expense consisting of Subsidiary
income attributable to minority equity interests of third parties in any
non-wholly-owned Subsidiary deducted (and not added back) in such period to
Consolidated Net Income,
(viii) the amount of management, monitoring, consulting and advisory fees,
including fees paid in connection with the termination of
agreements to provide such services,
and related expenses paid to the Sponsors,
(ix) any costs or expenses pursuant to any management equity plan or stock option
plan or any other management or employee benefit plan or agreement or any stock
subscription or shareholder agreement, to the extent that such costs or expenses are
funded with cash proceeds contributed to the capital of the Parent Borrower or net cash
proceeds of an issuance of Stock or Stock Equivalents (other than Disqualified Equity
Interests) of the Parent Borrower (
provided
such capital contributions are not included
in the Cure Amount and have not been applied to increase the Applicable Amount
pursuant to
clause (ii)
of the definition thereof),
(x) the amount of net cost savings projected by the Parent Borrower in good faith
to be realized as a result of specified actions (i) taken by the Parent Borrower and
its Restricted Subsidiaries prior to such date of determination
or (ii) expected to be
taken on or prior to the third anniversary of the Original Closing Date (in each case,
(
calculated on a Pro Forma Basis as though such cost savings had been realized on the
first day of such period), net of the amount of actual
-14-
benefits realized during such period from such actions,
provided
that (A) such cost
savings are reasonably identifiable and factually supportable, (B
) in the case of
subclause (ii) above, such actions are taken on or prior to the third anniversary
of the Original Closing Date, (C
) no cost savings shall be added pursuant to this
clause (x)
to the extent duplicative of any expenses or charges relating to such
cost savings that are included in
clause (vi)
above with respect to such period and
(
D
C
) the aggregate amount of cost savings added pursuant to this
clause (x)
shall
not exceed $200,000,000 for any period consisting of four consecutive quarters,
(xi) to the extent covered by insurance and actually reimbursed, or, so long
as the Parent Borrower has made a determination that there exists reasonable
evidence that such amount will in fact be reimbursed by the insurer and only to the
extent that such amount is (A) not denied by the applicable carrier in writing
within 180 days and (B) in fact reimbursed within 365 days of the date of such
evidence (with a deduction for any amount so added back to the extent not so
reimbursed within such 365 days), expenses with respect to liability or casualty
events or business interruption, and
(xii) the amount of losses on Dispositions of receivables and related assets
in connection with any Permitted Receivables Financing,
less
(b) without duplication and to the extent included in arriving at such
Consolidated Net Income, the sum of the following amounts for such period:
(i) extraordinary gains and unusual or non-recurring gains,
(ii) non-cash gains (excluding any non-cash gain to the extent it represents
the reversal of an accrual or reserve for a potential cash item that reduced
Consolidated Net Income or Consolidated EBITDA in any prior period),
(iii) gains on asset sales (other than asset sales in the ordinary course of
business), and
(iv) any net after-tax income from the early extinguishment of
Indebtedness or hedging obligations or other derivative instruments,
in each case, as determined on a consolidated basis for the Parent Borrower and the Restricted
Subsidiaries in accordance with GAAP;
provided
that
(i) to the extent included in Consolidated Net Income, there shall be excluded in
determining Consolidated EBITDA currency translation gains and losses related to currency
remeasurements of Indebtedness or intercompany balances (including the net loss or gain
resulting from Hedge Agreements for currency exchange risk),
-15-
(ii) to the extent included in Consolidated Net Income, there shall be excluded in
determining Consolidated EBITDA for any period any adjustments resulting from the
application of Statement of Financial Accounting Standards No. 133,
(iii) there shall be included in determining Consolidated EBITDA for any period, without
duplication, (A) the Acquired EBITDA of any Person, property, business or asset acquired by
the Parent Borrower or any Restricted Subsidiary during such period (but not the Acquired
EBITDA of any related Person, property, business or assets to the
extent not so acquired) to the extent not subsequently sold, transferred, abandoned or
otherwise disposed by the Parent Borrower or such Restricted Subsidiary (each such Person,
property, business or asset acquired and not subsequently so disposed of, an
Acquired
Entity or Business
) and the Acquired EBITDA of any Unrestricted Subsidiary that is
converted into a Restricted Subsidiary during such period (each, a
Converted Restricted
Subsidiary
), based on the actual Acquired EBITDA of such Acquired Entity or Business or
Converted Restricted Subsidiary for such period (including the portion thereof occurring
prior to such acquisition or conversion) and (B) other than for purposes of determining the
Applicable Amount, the Applicable ABR Margin, the Applicable LIBOR Margin and the Commitment
Fee Rate, an adjustment in respect of each Acquired Entity or Business equal to the amount
of the Pro Forma Adjustment with respect to such Acquired Entity or Business for such period
(including the portion thereof occurring prior to such acquisition) as specified in a Pro
Forma Adjustment Certificate and delivered to the Lenders and the Administrative Agent, and
(iv) to the extent included in Consolidated Net Income, there shall be excluded in
determining Consolidated EBITDA for any period the Disposed EBITDA of any Person, property,
business or asset (other than an Unrestricted Subsidiary) sold, transferred, abandoned or
otherwise disposed of, closed or classified as discontinued operations by the Parent
Borrower or any Restricted Subsidiary during such period (each such Person, property,
business or asset so sold or disposed of, a
Sold Entity or Business
), and the Disposed
EBITDA of any Restricted Subsidiary that is converted into an Unrestricted Subsidiary during
such period (each, a
Converted Unrestricted Subsidiary
) based on the actual Disposed
EBITDA of such Sold Entity or Business or Converted Restricted Subsidiary for such period
(including the portion thereof occurring prior to such sale, transfer or disposition or
conversion).
Notwithstanding anything to the contrary contained herein and subject to adjustment as provided in
clauses (iii)
and
(iv)
of the immediately preceding proviso with respect to
acquisitions and dispositions occurring following the Original Closing Date, Consolidated EBITDA
shall be deemed to be $1,233,000,000, $1,112,000,000 and $974,000,000, respectively, for the fiscal
quarters ended March 31, 2006, June 30, 2006, and September 30, 2006.
Consolidated EBITDA to Consolidated Interest Expense Ratio
shall mean, as of any date of
determination, the ratio of (a) Consolidated EBITDA for the relevant Test Period
for which
Section 9.1 Financials have been delivered
to (b) Consolidated Interest Expense for such Test
Period.
-16-
Consolidated First Lien Debt
shall mean Consolidated Total Debt secured by a Lien on any
assets of the Parent Borrower or any of its Restricted Subsidiaries (other than (i) a Lien ranking
junior to the Lien securing the Obligations
and the CF Obligations
on a basis at least as
substantially favorable to the Lenders as the basis on which the
Lien
Liens
securing the
Existing
Junior Lien Notes ranks junior to the Lien securing the
Obligations and the CF
Obligations and (ii) Liens on assets not constituting Collateral permitted pursuant to
Section
10.2
).
Consolidated First Lien Debt to Consolidated EBITDA Ratio
shall mean, as of any date of
determination, the ratio of (a) Consolidated First Lien Debt as of such date to (b) Consolidated
EBITDA for the Test Period then last ended
for which Section 9.1 Financials have been
delivered
.
Consolidated Interest Expense
shall mean, for any period, the sum of (i) the cash interest
expense including that attributable to Capital Leases in accordance with GAAP (
provided
that any payment of cash interest pursuant to
Section 10.6(e)
on the required date of
determination of Consolidated Interest Expense for any purpose under this Agreement shall be added
to Consolidated Interest Expense for the period for which such determination is being made), net of
cash interest income (other than interest income of HCI), of the Parent Borrower and the Restricted
Subsidiaries and, solely for purposes of calculating the Consolidated EBITDA to Consolidated
Interest Expense Ratio in
Section 10.6(e)
, Holdings, on a consolidated basis in accordance
with GAAP with respect to all outstanding Indebtedness of the Parent Borrower and the Restricted
Subsidiaries and, solely for purposes of calculating the Consolidated EBITDA to Consolidated
Interest Expense Ratio in
Section 10.6(e)
, Holdings, including all commissions, discounts
and other fees and charges owed with respect to letters of credit and bankers acceptance financing
and net costs under Hedge Agreements (other than currency swap agreements, currency future or
option contracts and other similar agreements) and (ii) any cash payments made during such period
in respect of obligations referred to in
clause (b)
below relating to Funded Debt that were
amortized or accrued in a previous period (other than any such obligations resulting from the
discounting of Indebtedness in connection with the application of purchase accounting in connection
with the Transaction or any Permitted Acquisition), but excluding, however, (a) amortization of
deferred financing costs and any other amounts of non-cash interest, (b) the accretion or accrual
of discounted liabilities during such period, and (c) all non-recurring cash interest expense
consisting of liquidated damages for failure to timely comply with registration rights obligations
and financing fees, all as calculated on a consolidated basis in accordance with GAAP and
excluding, for the avoidance of doubt, any interest in respect of items excluded from Indebtedness
in the proviso to the definition thereof,
provided
that (a) except as provided in
clause (b)
below, there shall be excluded from Consolidated Interest Expense for any period
the cash interest expense (or cash interest income) of all Unrestricted Subsidiaries for such
period to the extent otherwise included in Consolidated Interest Expense, (b) there shall be
included in determining Consolidated Interest Expense for any period the cash interest expense (or
income) of any Acquired Entity or Business acquired during such period
to the extent that the
aggregate consideration paid in connection with such acquisition was at least $75,000,000
and
of any Converted Restricted Subsidiary converted during such period, in each case based on the cash
interest expense (or income) of such Acquired Entity or Business or Converted Restricted Subsidiary
for such period (including the portion thereof occurring prior to
-17-
such acquisition or conversion)
assuming any Indebtedness incurred or
repaid
prepaid
in connection with any such acquisition
or conversion had been incurred or prepaid on the first day of such period, and (c) there shall be
excluded from determining Consolidated Interest Expense for any period the cash interest expense
(or income) of any Sold Entity or Business disposed of during such period
,
to the extent that
the aggregate consideration paid in connection with such acquisition was at least $75,000,000,
based on the cash interest expense (or income) relating to any Indebtedness relieved, retired or
repaid in connection with any such disposition of such Sold Entity or Business for such period
(including the portion thereof occurring prior to such disposal)
assuming such debt relieved, retired or repaid in connection with such disposition had been
relieved, retired or repaid on the first day of such period.
Notwithstanding anything to the contrary contained herein, Consolidated Interest
Expense shall be deemed to be $175,000,000, $183,000,000 and $192,000,000, respectively, for the fiscal quarters
ended March 31, 2006, June 30, 2006 and September 30, 2006.
Consolidated Net Income
shall mean, for any period, the net income (loss) of the Parent
Borrower and the Restricted Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP, excluding, without duplication,
(a) extraordinary items for such period,
(b) the cumulative effect of a change in accounting principles during such period
to the extent included in Consolidated Net Income,
(c) in the case of any period that includes a period ending prior to or during the
fiscal quarter ending September 30, 2007, Transaction Expenses,
(d) any fees and expenses incurred during such period, or any amortization thereof
for such period, in connection with any acquisition, investment, recapitalization, asset
disposition, issuance or repayment of debt, issuance of equity securities, refinancing
transaction or amendment or other modification of any debt instrument (in each case,
including any such transaction consummated prior to the Original Closing Date and any such
transaction undertaken but not completed) and any charges or non-recurring merger costs
incurred during such period as a result of any such transaction,
(e) any income (loss) for such period attributable to the early extinguishment of
Indebtedness or to hedging obligations or other derivative instruments,
(f) accruals and reserves required to be established or adjusted as a result of the
Transactions in accordance with GAAP or changes as a result of adoption of or modification
of accounting policies, in each case, within twelve months after the Original Closing
Date;
,
and
(g) the income (loss) for such period of any Unrestricted Subsidiary, except to the
extent distributed to the Parent Borrower or any Restricted Subsidiary.
-18-
There shall be excluded from Consolidated Net Income for any period the purchase accounting effects
of adjustments to inventory, property, equipment and intangible assets and deferred revenue in
component amounts required or permitted by GAAP and related authoritative pronouncements (including
the effects of such adjustments pushed down to the Parent Borrower and the Restricted
Subsidiaries), as a result of the Transactions, any consummated acquisition whether consummated
before or after the Original Closing Date, or the amortization or write-off of any amounts thereof.
Consolidated Persons
shall mean, at any time, each of the Persons listed on
Schedule
1.1(h)
to the Original Credit Agreement so long as (i) such Persons financial results
are consolidated with the financial results of the Parent Borrower in accordance with GAAP at
such time and (ii) no Sponsor or Frist Shareholder (or any controlling affiliate of any Sponsor or
of any Frist Shareholder) holds any Stock or Stock Equivalents of such Person at such time.
Consolidated Total Assets
shall mean, as of any date of determination, the amount that
would, in conformity with GAAP, be set forth opposite the caption total assets (or any like
caption) on a consolidated balance sheet of the Parent Borrower and the Restricted Subsidiaries at
such date.
Consolidated Total Debt
shall mean, as of any date of determination, (a) the sum of all
Indebtedness of the types described in
clause (a)
,
clause (c)
(but, in the case of
clause (c)
, only to the extent of any unreimbursed drawings under any letter of credit) and
clause (e)
of the definition thereof actually owing by the Parent Borrower and the
Restricted Subsidiaries on such date to the extent appearing on the balance sheet of the Parent
Borrower determined on a consolidated basis in accordance with GAAP (
provided
that the
amount of any Capitalized Lease Obligations or any such Indebtedness issued at a discount to its
face value shall be determined in accordance with GAAP)
minus
(b) the aggregate cash and
cash equivalents included in the cash and cash equivalents accounts listed on the balance sheet of
the Parent Borrower and the Restricted Subsidiaries as at such date determined on a consolidated
basis in accordance with GAAP excluding (x) all cash of HCI and (y) any cash subject to a Lien
other than nonconsensual Liens permitted by
Section 10.2
and Liens permitted by
Section
10.2(m)
,
(n)
and
(o)
.
Consolidated Total Debt to Consolidated EBITDA Ratio
shall mean, as of any date of
determination, the ratio of (a) Consolidated Total Debt as of the last day of the relevant Test
Period to (b) Consolidated EBITDA for such Test Period
for which Section 9.1 Financials have
been delivered
.
Continuing Director
shall mean, at any date, an individual (a) who is a member of the board
of directors of the Parent Borrower
Original Closing
on the Second Restatement Effective
Date, (b) who, as of the date of determination, has been a member of such board of directors for at
least the twelve preceding months, (c) who has been nominated to be a member of such board of
directors, directly or indirectly, by a Sponsor or Persons nominated by a Sponsor or (d) who has
been nominated to be a member of such board of directors by a majority of the other Continuing
Directors then in office.
Contractual Requirement
shall have the meaning provided in
Section 8.3
.
-19-
Converted Restricted Subsidiary
shall have the meaning provided in the definition of the
term Consolidated EBITDA.
Converted Unrestricted Subsidiary
shall have the meaning provided in the definition of the
term Consolidated EBITDA.
Co-Syndication Agents
shall mean JPMorgan Chase Bank, N.A. and Citicorp North America, Inc.,
together with their respective affiliates, as co-syndication agents for the Lenders under this
Agreement and the other Credit Documents.
Covenant Compliance Event
shall mean Excess Facility Availability at any time is less than
or equal to 10% of the Borrowing Base. For purposes hereof, the occurrence of a Covenant
Compliance Event shall be deemed continuing until Excess Facility Availability has exceeded 10% of
the Borrowing Base for thirty (30) consecutive days, in which case a Covenant Compliance Event
shall no longer be deemed to be continuing for purposes of this Agreement.
Credit Card Notifications
shall have the meaning provided in
Section 9.15(e)
.
Credit Documents
shall mean this Agreement (including the Original
Credit Agreement and
the Amended and Restated
Credit Agreement), the Amendment Agreement,
the Second Amendment
Agreement,
the Security Documents, each Letter of Credit and any promissory notes issued by a
Borrower hereunder.
Credit Event
shall mean and include the making (but not the conversion or continuation) of a
Loan and the issuance of a Letter of Credit.
Credit Facilities
shall mean, collectively, each category of Commitments and each extension
of credit hereunder.
Credit Party
shall mean the Parent Borrower and each of the Subsidiary Borrowers.
Cumulative Consolidated Net Income
shall mean, for any period, Consolidated Net Income for
such period, taken as a single accounting period. Cumulative Consolidated Net Income may be a
positive or negative amount.
Cure Amount
shall have the meaning provided in
Section 12
.
Cure Right
shall have the meaning provided in
Section 12
.
Debt Repayment
shall mean the repayment, prepayment, repurchase or defeasance of the
Indebtedness of the Parent Borrower under the 1993 Indenture that is identified on
Schedule
1.1(g)
to the Original Credit Agreement and that was repaid, prepaid, repurchased or defeased
on the Original Closing Date (or such later date as may be necessary to effect the Debt Repayment
in accordance with the tender offers therefor).
-20-
Default
shall mean any event, act or condition that with notice or lapse of time, or both,
would constitute an Event of Default.
Defaulting Lender
shall mean any Lender with respect to which a Lender Default is in effect.
Delayed Equity Arrangements
Default Rate
shall have the meaning
provided
set
forth
in
Section
8.17
.
2.8(c).
Delayed Equity Amount
means an amount, in Dollars, equal to the lesser of (x) $100,000,000
and (y) the amount by which the Equity Investment actually made on the Original Closing Date would
have to have been increased (assuming (I) a corresponding
decrease in the amount of consolidated Indebtedness of the Parent Borrower and its
Subsidiaries outstanding on the Original Closing Date and (II) that such consolidated Indebtedness
had been further reduced by the Option Note Amount) in order for the sum of (i) the Equity
Investment actually made on the Original Closing Date and (ii) the Option Note Amount to have
constituted 15% of the aggregate pro forma capitalization of the Parent Borrower on the Original
Closing Date. For the avoidance of doubt, no amount deemed received by the Parent Borrower in
respect of the Option Note Amount for purposes of the first sentence of
Section 10.7(d)
shall also be deemed received by the Parent Borrower in respect of the Delayed Equity Amount for
purposes of such sentence.
Designated Non-Borrower Subsidiary
shall mean any Restricted Subsidiary of the Parent
Borrower that is designated as a Designated Non-Borrower Subsidiary by the Parent Borrower in a
written notice to the Administrative Agent,
provided
that (a) each of (i) an amount equal
to the Parent Borrowers direct or indirect equity ownership percentage of the net worth of such
Restricted Subsidiary immediately prior to such designation (such net worth to be calculated
without regard to any guarantee provided by such designated Restricted Subsidiary) and (ii) without
duplication of any amount included in the preceding
clause (i)
, the aggregate principal
amount of any Indebtedness owed by such designated Restricted Subsidiary to the Parent Borrower or
any other Credit Party immediately prior to such designation, shall be deemed to be an Investment
by the Parent Borrower, on the date of such designation, in a Restricted Subsidiary that is not a
Credit Party, all calculated, except as set forth in the parenthetical to
clause (i)
above,
on a consolidated basis in accordance with GAAP and (b) no Default or Event of Default would result
from such designation after giving effect thereto. The Parent Borrower may, by written notice to
the Administrative Agent, re-designate any Designated Non-Borrower Subsidiary as a Borrower, and
thereafter, such Subsidiary shall no longer constitute a Designated Non-Borrower Subsidiary, but
only if (x) no Default or Event of Default would result from such re-designation and (y) such
Subsidiary becomes a party to this Agreement by executing a joinder hereto and to the applicable
Security Documents in order to become a Borrower and pledgor, as applicable, thereunder.
Designated Non-Cash Consideration
shall mean the fair market value of non-cash consideration
received by the Parent Borrower or a Restricted Subsidiary in connection with a Disposition
pursuant to
Section 10.4(b)
or
Section 10.4(c)
that is designated as Designated
Non-Cash Consideration pursuant to a certificate of an Authorized Officer of the Parent
-21-
Borrower,
setting forth the basis of such valuation (which amount will be reduced by the fair market value of
the portion of the non-cash consideration converted to cash within 180 days following the
consummation of the applicable Disposition).
Disbursement Account
shall have the meaning provided in
Section 9.15(a)
.
Disposed EBITDA
shall mean, with respect to
(i)
any Sold Entity or Business
or
to
the extent the aggregate consideration received in connection with such Disposition was at least
$75,000,000 or (ii)
any Converted Unrestricted Subsidiary for any period, the amount for such
period of Consolidated EBITDA of such Sold Entity or Business or Converted Unrestricted Subsidiary
(determined as if references to the Parent Borrower and the Restricted Subsidiaries in the
definition of Consolidated EBITDA were references to such Sold Entity or Business or Converted
Unrestricted Subsidiary and its respective Subsidiaries), all as determined on a
consolidated basis for such Sold Entity or Business or Converted Unrestricted Subsidiary, as
the case may be.
Disposition
shall have the meaning provided in
Section 10.4(b)
.
Disqualified Equity Interests
shall mean any Stock or Stock Equivalent which, by its terms
(or by the terms of any security or other Stock or Stock Equivalent 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 Equity Interests), pursuant to a sinking
fund obligation or otherwise (except (i) 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 or (ii) pursuant to any put option with
respect to any Stock or Stock Equivalent of a Subsidiary granted in favor of any Facility
Syndication Partner in connection with syndications of ambulatory surgery centers, outpatient
diagnostic or imaging centers, hospitals or other healthcare businesses operated or conducted by
such Subsidiary (collectively,
Syndications
)), (b) is redeemable at the option of the holder
thereof (other than solely for Qualified Equity Interests), in whole or in part, (c) provides for
scheduled payments of dividends in cash (other than, in the case of Stock or Stock Equivalents of a
Subsidiary issued to a Facility Syndication Partner in connection with a Syndication or held by a
Restricted Subsidiary, periodic distributions of available cash (determined in good faith by the
Parent Borrower) to the holders of such class of Stock or Stock Equivalents on a pro rata basis),
or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Stock or Stock
Equivalent that would constitute Disqualified Equity Interests, in each case, prior to the date
that is 180 days after the Final Maturity Date
(determined as of the date such Stock or Stock
Equivalent was issued)
.
Dividends
or
dividends
shall have the meaning provided in
Section 10.6
.
Documentation Agent
shall mean Merrill Lynch Capital Corporation.
Dollars
and
$
shall mean dollars in lawful currency of the United States of America.
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Dollar Equivalent
shall mean, at any time, (a) with respect to any amount denominated in
Dollars, such amount, and (b) with respect to any amount denominated in any other currency, the
equivalent amount thereof in Dollars as determined by the Administrative Agent on the basis of the
Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars
with such other currency.
Dollars
and
$
shall mean dollars in lawful currency of the United States of
America.
Domestic Subsidiary
shall mean each Subsidiary of the Parent Borrower that is organized
under the laws of the United States, any state or territory thereof, or the District of Columbia.
Drawing
shall have the meaning provided in
Section 3.4(b)
.
Eligible Accounts
shall mean, at any date of determination thereof, the aggregate amount of
all Accounts at such date due to a Borrower except to the extent that (determined without
duplication):
(a) such Account does not arise from the sale of goods or the performance of
services by such Borrower (or, in the case of an ABL Entity, does not arise from the sale of
goods or the performance of services by a 1993 Indenture Restricted Subsidiary) in the
ordinary course of its business;
(b) (i) such Borrowers right to receive payment is not absolute or is contingent
upon the fulfillment of any condition whatsoever (other than the preparation and delivery of
an invoice) or (ii) as to which such Borrower is not able to bring suit or otherwise enforce
its remedies against the Account Debtor through judicial process;
(c) any defense, counterclaim, set-off or dispute exists as to such Account, but
only to the extent of such defense, counterclaim, setoff or dispute;
(d) such Account is not a true and correct statement of bona fide indebtedness
incurred in the amount of the Account for merchandise sold to or services rendered and
accepted by the applicable Account Debtor (or, in the event that the Account Debtor is a
Third Party Payor, merchandise sold to or services rendered and accepted by the intended
beneficiary);
(e) an invoice, reasonably acceptable to the Administrative Agent in form and
substance or otherwise in the form otherwise required by any Account Debtor, has not been
sent to the applicable Account Debtor in respect of such Account within 30 days after the
earlier of (i) the date the patient as to which such Account relates has been discharged or
(ii) the date as of which such Account is first included in the Borrowing Base Certificate
or otherwise reported to the Administrative Agent as Collateral;
(f) such Account (i) is not owned by such Borrower or (ii) is subject to any Lien,
other than Liens permitted hereunder pursuant to
Sections 10.2(a)
,
(b)
,
(c)
and
(d)
;
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(g) such Account is the obligation of an Account Debtor that is a director,
officer, other employee or Affiliate of any Borrower (other than Accounts arising from the
provision of medical care delivered to such Account Debtor in the ordinary course of
business), or to any entity (other than Third Party Payor) that has any common officer or
director with any Borrower;
(h) except for Government Accounts that are otherwise Eligible Accounts, such
Account is the obligation of an Account Debtor that is the United States government or a
political subdivision thereof, or department, agency or instrumentality thereof unless the
Administrative Agent, in its sole discretion, has agreed to the contrary in writing and such
Borrower, if necessary or desirable, has complied with respect to such obligation with the
Federal Assignment of Claims Act of 1940, or any applicable state, county or municipal law
restricting assignment thereof;
(i) [Reserved];
(j) such Borrower is liable for goods sold or services rendered by the applicable
Account Debtor to such Borrower but only to the extent of the potential offset;
(k) upon the occurrence of any of the following with respect to such Account:
(i) the Account is not paid within 180 days following the original invoice date
(it being understood that with respect to Medicaid Accounts that were formerly
Potential Medicaid Accounts, the 180-day period begins on the date of the first
invoice sent to Medicaid);
(ii) the Account Debtor obligated upon such Account suspends business, makes a
general assignment for the benefit of creditors or fails to pay its debts generally
as they come due;
(iii) any Account Debtor obligated upon such Account is a debtor or a debtor in
possession under any bankruptcy law or any other federal, state or foreign
(including any provincial) receivership, insolvency relief or other law or laws for
the relief of debtors;
provided
that Potential Medicaid Accounts shall not
be excluded from Eligible Accounts solely as a result of this
clause
(k)(iii)
;
(l) such Account is the obligation of an Account Debtor from whom 50% or more of
the dollar amount of all Accounts owing by that Account Debtor are ineligible under the
criteria set forth in this definition;
(m) such Account in one as to which the Collateral Agents Lien thereon, on behalf
of itself and the Lenders, is not a first priority perfected Lien, subject to Permitted
Liens;
(n) any of the representations or warranties in the Credit Documents with respect
to such Account are untrue in any material respect with respect to such Account
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(or, with
respect to representations or warranties that are qualified by materiality, any of such
representations and warranties are untrue);
(o) such Account is evidenced by a judgment, Instrument or Chattel Paper (each such
term as defined in the UCC) (other than Instruments or Chattel Paper that are held by any
Borrower or that have been delivered to the Collateral Agent);
(p) except with respect to Government Accounts that are otherwise Eligible
Accounts, such Account, together with all other Accounts owing by such Account Debtor and
its Affiliates as of any date of determination, exceeds 20% of all Eligible Accounts (but
only the extent of such excess);
(q) such Account is payable in any currency other than Dollars;
(r) such Account is otherwise unacceptable to the Administrative Agent in its
Permitted Discretion;
(s) such Account has been redated, extended, compromised, settled or otherwise
modified or discounted, except (i) discounts or modifications that are granted by a Borrower
in the ordinary course of business and that are reflected in the calculation of the
Borrowing Base and (ii) Medicaid Accounts converted from Potential Medicaid Accounts;
(t) if such Borrower is or has been audited by any Third Party Payor either (i) any
of such audits provides for adjustments in reimbursable costs or asserts claims for
reimbursement or repayment by such Borrower of costs and/or payments theretofore made by
such Third Party Payor that, if adversely determined, in the aggregate could reasonably be
expected to have a Material Adverse Effect or (ii) such Borrower has had requests or
assertions of claims for reimbursement or repayment by it of costs and/or payments
theretofore made by any Third Party Payor that, if adversely determined, in the aggregate
could reasonably be expected to have a Material Adverse Effect;
(u) such Account exceeds the amount such Borrower is entitled to receive under any
capitation arrangement, fee schedule, discount formula, cost-based reimbursement or other
adjustment or limitation to such Persons usual charges (to the extent of such excess);
(v) such Account is of an Account Debtor that is located in a state requiring the
filing of a notice of business activities report or similar report in order to permit a
Borrower to seek judicial enforcement in such state of payment of such Account, unless such
Borrower has qualified to do business in such state or has filed a notice of business
activities report or equivalent report for the then-current year or if such failure to file
and inability to seek judicial enforcement is capable of being remedied without any material
delay or material cost;
(w) such Accounts were acquired or originated by a Person acquired in a Permitted
Acquisition (until such time as the Administrative Agent has completed a
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customary due
diligence investigation as to such Accounts and such Person, which investigation may, at the
sole discretion of the Administrative Agent, include a field examination, and the
Administrative Agent is reasonably satisfied with the results thereof); or
(x) such Borrower is subject to an event of the type described in
Section
11.5
.
Eligible Credit Card Receivables
shall mean, as of any date of determination, Accounts due
to a Borrower from major credit card and debit card processors (including, but not limited to,
VISA, Mastercard, American Express, Diners Club, DiscoverCard, Interlink, NYCE, Star/Mac, Tyme,
Pulse, Accel, AFF, Shazam, CU244, Alaska Option and Maestro) that arise in the ordinary course of
business and which have been earned by performance and that are not excluded as ineligible by
virtue of one or more of the criteria set forth below. None of the following shall be deemed to be
Eligible Credit Card Receivables:
(a) Accounts that have been outstanding for more than five (5) Business Days from
the date of sale, or for such longer period(s) as may be approved by the Administrative
Agent in its reasonable discretion;
(b) Accounts with respect to which a Borrower does not have good, valid and
marketable title, free and clear of any Lien (other than Liens permitted hereunder pursuant
to
Sections 10.2(a), (b), (c)
and
(d))
;
(c) Accounts as to which the Collateral Agents Lien attached thereon on behalf of
itself and the Lenders, is not a first priority perfected Lien, subject to Permitted Liens;
(d) Accounts which are disputed, or with respect to which a claim, counterclaim,
offset or chargeback (other than chargebacks in the ordinary course by the credit card
processors) has been asserted, by the related credit card processor (but only to the extent
of such dispute, counterclaim, offset or chargeback);
(e) Except as otherwise approved by the Administrative Agent, Accounts as to which
the credit card processor has the right under certain circumstances to require a Borrower to
repurchase the Accounts from such credit card or debit card processor;
(f) Except as otherwise approved by the Administrative Agent, Accounts arising from
any private label credit card program of the Borrower; and
(g) Accounts due from major credit card and debit card processors (other than JCB,
Visa, Mastercard, American Express, Diners Club, DiscoverCard, Interlink, NYCE, Star/Mac,
Tyme, Pulse, Accel, AFF, Shazam, CU244, Alaska Option and Maestro) which the Administrative
Agent in its Permitted Discretion determines to be unlikely to be collected.
Environmental Claims
shall mean any and all actions, suits, orders, decrees, demands, demand
letters, claims, liens, notices of noncompliance, violation or potential
-26-
responsibility or
investigation (other than internal reports prepared by the Parent Borrower or any of the
Subsidiaries (a) in the ordinary course of such Persons business or (b) as required in connection
with a financing transaction or an acquisition or disposition of real estate) or proceedings
relating in any way to any Environmental Law or any permit issued, or any approval given, under any
such Environmental Law (hereinafter,
Claims
), including, without limitation, (i) any and all
Claims by governmental or regulatory authorities for enforcement, cleanup, removal, response,
remedial or other actions or damages pursuant to any applicable Environmental Law and (ii) any and
all Claims by any third party seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief relating to the presence, release or threatened release of
Hazardous Materials or arising from alleged injury or threat of injury to health or safety (to the
extent relating to human exposure to Hazardous Materials), or the environment including, without
limitation, ambient air, surface water, groundwater, land surface and subsurface strata and natural
resources such as wetlands.
Environmental Law
shall mean any applicable
Federal
federal
, state, foreign or local
statute, law, rule, regulation, ordinance, code and rule of common law in effect on the
Original Closing Date or thereafter in effect and in each case as amended, and any binding
judicial or administrative interpretation thereof, including any binding judicial or administrative
order, consent decree or judgment, relating to the protection of environment, including, without
limitation, ambient air, surface water, groundwater, land surface and subsurface strata and natural
resources such as wetlands, or human health or safety (to the extent relating to human exposure to
Hazardous Materials), or Hazardous Materials.
Epic Properties
shall mean Epic Properties, Inc., a Texas corporation.
Equity Investments
shall have the meaning provided in the
preamble to this
Amended and
Restated Credit
Agreement.
ERISA
shall mean the Employee Retirement Income Security Act of 1974, as amended from time
to time. Section references to ERISA are to ERISA as in effect
at
as of
the
date of this
Agreement
Original Closing Date
and any subsequent provisions of ERISA amendatory thereof,
supplemental thereto or substituted therefor.
ERISA Affiliate
shall mean each person (as defined in Section 3(9) of ERISA) that together
with the Parent Borrower would be deemed to be a single employer within the meaning of Section
414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the
Code, is treated as a single employer under Section 414 of the Code.
Event of Default
shall have the meaning provided in
Section 11
.
Excess Amount
shall have the meaning provided in
Section 2.14
.
Excess Facility Availability
shall mean, as of any date of determination thereof by the
Administrative Agent, (x) the lesser of (1) the Borrowing Base and (2) the aggregate New Revolving
Credit Commitment,
minus
(y) the aggregate New Revolving Exposure.
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Excess Global Availability
shall mean, as of any date of determination thereof by the
Administrative Agent, the sum of:
(A) (x) the lesser of (1) the Borrowing Base and (2) the aggregate New Revolving Credit
Commitment hereunder
minus
(y) the aggregate New Revolving Exposure hereunder,
plus
(B) the aggregate Revolving Credit Commitment (as defined in the CF Agreement) under the
CF Revolving Credit Facility
minus
the aggregate Revolving Credit Exposure (as defined in
the CF Agreement) under the CF Revolving Credit Facility.
Exchange
shall have the meaning provided in the recitals hereto.
Excluded Subsidiary
shall mean (a) each Domestic Subsidiary listed on
Schedule
1.1(d)
to the Original Credit Agreement and each
future
subsequently formed or acquired
Domestic Subsidiary, in each case, for so long as any such Subsidiary does not (on a
consolidated basis with its Restricted Subsidiaries) have property, plant and equipment with a
book value in excess of $5,000,000 or a contribution to Consolidated EBITDA for any four fiscal
quarter period that includes any date on or after the Original Closing Date in excess of $5,000,000
(provided that no Domestic Subsidiary listed on
Schedule 1.1(d)
to the Original Credit
Agreement that is identified on such Schedule as a Subsidiary with respect which the Parent
Borrower intends to conduct a Syndication shall cease to be an Excluded Subsidiary pursuant to this
clause (a) for so long as the Parent Borrower intends to conduct such Syndication), (b) each
Domestic Subsidiary that is not a wholly-owned Subsidiary on any date such Subsidiary would
otherwise be required to become a Subsidiary Borrower pursuant to the requirements of
Section
9.11
(for so long as such Subsidiary remains a non-wholly-owned Restricted Subsidiary), (c)
each Domestic Subsidiary that is prohibited by any applicable Contractual Requirement or
Requirement of Law from guaranteeing or incurring, directly or indirectly, the Obligations at the
time such Subsidiary becomes a Restricted Subsidiary (and for so long as such restriction or any
replacement or renewal thereof is in effect), (d) each Domestic Subsidiary that is a Subsidiary of
a Foreign Subsidiary, (e) each other Domestic Subsidiary acquired pursuant to a Permitted
Acquisition financed with secured Indebtedness incurred pursuant to
Section 10.1(j)
or
Section 10.1(k)
and permitted by the proviso to
subclause (y)
of such Sections and
each Restricted Subsidiary thereof that guarantees such Indebtedness to the extent and so long as
the financing documentation relating to such Permitted Acquisition to which such Restricted
Subsidiary is a party prohibits such Restricted Subsidiary from guaranteeing, or granting a Lien on
any of its assets to secure, the Obligations, (f) any other Domestic Subsidiary with respect to
which, in the reasonable judgment of the Administrative Agent (confirmed in writing by notice to
the Parent Borrower), the cost or other consequences (including any adverse tax consequences) of
providing a guarantee of or incurring, directly or indirectly, the Obligations shall be excessive
in view of the benefits to be obtained by the Lenders therefrom, (g) each Unrestricted Subsidiary,
(h) each 1993 Indenture Restricted Subsidiary for so long as the 1993 Indenture is in effect and
such Subsidiary is a Restricted
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Subsidiary under the 1993 Indenture, (i) any Designated
Non-Borrower Subsidiary and (k) HCA Health Services of New Hampshire, Inc., a New Hampshire
corporation.
Excluded Taxes
shall mean, with respect to any Agent or any Lender, (a) (i) net income taxes
and franchise and excise taxes (imposed in lieu of net income taxes) imposed on such Agent or
Lender and, to the extent not duplicative, any Taxes imposed on such Agent or Lender where that Tax
is imposed upon or calculated by reference to the net income received or receivable (but not any
sum deemed to be received or receivable) by such Agent or Lender and (ii) any Taxes imposed on any
Agent or any Lender as a result of any current or former connection between such Agent or Lender
and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision
or taxing authority thereof or therein (other than any such connection arising from such Agent or
Lender having executed, delivered or performed its obligations or received a payment under, or
having been a party to or having enforced, this Agreement or any other Credit Document)
and
,
(b) in the case of a Non-U.S. Lender, (i) any U.S. federal withholding tax that is
imposed on amounts payable to such Non-U.S. Lender under the law in effect at the time such
Non-U.S. Lender becomes a party to this Agreement (or, in the case of a Non-U.S. Participant, on
the date such Non-U.S. Participant became a Participant hereunder);
provided
that this
subclause (b)(i)
shall not apply to the extent that (x) the indemnity payments or
additional amounts any Lender (or Participant) would be entitled to receive (without regard to this
subclause (b)(i)
) do not exceed the indemnity payment or additional amounts that
the person making the assignment, participation or transfer to such Lender (or Participant)
would have been entitled to receive in the absence of such assignment, participation or transfer or
(y) any Tax is imposed on a Lender in connection with an interest or participation in any Loan or
other obligation that such Lender was required to acquire pursuant to
Section 14.8(a)
or
that such Lender acquired pursuant to
Section 14.7
(it being understood and agreed, for the
avoidance of doubt, that any withholding tax imposed on a Non-U.S. Lender as a result of a Change
in Law occurring after the time such Non-U.S. Lender became a party to this Agreement (or
designates a new lending office) shall not be an Excluded Tax) or (ii) any Tax to the extent
attributable to such Non-U.S. Lenders failure to comply with
Section 5.4(d)
and (c)
any Taxes imposed pursuant to FATCA
.
Existing First Lien Notes
shall mean (i) $1,500,000,000 aggregate principal amount of
the Parent Borrowers 8
1
/
2
% Senior Secured Notes due 2019, (ii) $1,250,000,000 aggregate principal
amount of the Parent Borrowers 7
7
/
8
% Senior Secured Notes due 2020 and (iii) $1,400,000,000
aggregate principal amount of the Parent Borrowers 7
1
/
4
% Senior Secured Notes due 2020, in each
case, outstanding on the Second Restatement Effective Date.
Existing Junior Lien Notes
shall mean the Initial Junior Lien Notes and $310,000,000
aggregate principal amount of the Parent Borrowers 9
7
/
8
% senior secured notes due 2017, in each
case, outstanding on the Second Restatement Effective Date.
Existing Letters of Credit
shall mean all Letters of Credit outstanding under the
Original Credit Agreement and Amended and Restated Credit Agreement on the Second Restatement
Effective Date and shall in any event include all amendments, extensions and renewals thereof.
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Facility Syndication Partners
shall mean, with respect to any Subsidiary, a Physician or
employee performing services with respect to a facility operated by such Subsidiary or a
not-for-profit entity.
FATCA
shall mean Sections 1471 through 1474 of the Code, any similar amendment thereof
or successor provisions and any current or future regulations or interpretations thereof.
Federal Funds Effective Rate
shall mean, for any day, the weighted average of the
per annum
rates on overnight federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers on such day, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York;
provided
that (a) if such day is not a Business Day, the
Federal Funds Effective Rate for such day shall be such rate on such transactions on the next
preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate
is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day
shall be the average rate charged to the Administrative Agent on such day on such transactions as
determined by the Administrative Agent.
Fees
shall mean all amounts payable pursuant to, or referred to in,
Section 4.1
.
Final Maturity Date
shall mean November 16, 2012, or, if such date is not a Business Day,
the next preceding Business Day.
Financial Officer
shall mean the Chief Financial Officer, the Vice President-Finance, the
Treasurer, Assistant Treasurer, the officer in charge of cash management or any other senior
financial officer of the Parent Borrower.
First Amendment Date
shall mean the date upon which the amendments hereto (as reflected
herein) provided for in Amendment No. 1 hereto dated as of March 2, 2009 become operative in
accordance with the terms thereof.
Foreign Currencies
shall mean any currency other than Dollars.
Foreign Subsidiary
shall mean each Subsidiary of the Parent Borrower that is not a Domestic
Subsidiary.
Frist Shareholders
shall mean (i) Thomas F. Frist, Jr. and any executor, administrator,
guardian, conservator or similar legal representative thereof, (ii) any member of the immediate
family of Thomas F. Frist, Jr., (iii) any person directly or indirectly controlled by one or more
of the immediate family members of Thomas F. Frist, Jr., (iv) any Person acting as agent for any
Person described in
clauses (i)
through
(iii)
hereof and (v) the HCA Foundation so
long as a majority of the members of its board of directors consist of (a) Frist Shareholders, (b)
Continuing Directors, (c) Management Investors and/or (d) any other member of management of the
Parent Borrower
(
provided
in the case of this
subclause (v)(d)
that no Change of
Control under
clause (a)
of the definition thereof (with any reference in such clause (a)
to the Frist Shareholders determined without regard to this
subclause (v)(d)
) shall have
occurred on the date such person became a member of management of the Parent Borrower)
.
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Fronting Fee
shall have the meaning provided in
Section 4.1(c)
.
Fund
shall mean any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course.
Funded Debt
shall mean all indebtedness of the Parent Borrower and the Restricted
Subsidiaries (and, solely for purposes of determining Consolidated Interest Expense, Holdings) for
borrowed money that matures more than one year from the date of its creation or matures within one
year from such date that is renewable or extendable, at the option of the Parent Borrower or any
Restricted Subsidiary (and, solely for purposes of determining Consolidated Interest Expense,
Holdings), to a date more than one year from such date or arises under a revolving credit or
similar agreement that obligates the lender or lenders to extend credit during a period of more
than one year from such date, including all amounts of Funded Debt required to be paid or prepaid
within one year from the date of its creation and, in the case of any Borrower, Indebtedness in
respect of the Loans.
Future Secured
Notes
Debt
shall mean
the Existing First Lien Notes and any
senior secured notes or other senior secured Indebtedness (which notes or other Indebtedness
may either have the same lien priority as the CF Facilities or may be a junior lien) in each case
issued by the Parent Borrower or a U.S. Guarantor (as defined in the CF Agreement),
(a) the terms
of which do not provide for any scheduled repayment (other than de minimis amortization not to
exceed 1% per annum in the event that such Indebtedness is in the form of a Loan),
mandatory redemption or sinking fund obligations prior to the Tranche B Term Loan Maturity
Date
including any such Indebtedness of a Person that becomes a U.S. Guarantor
(as defined
in the CF Agreement
as in effect on the Original Closing Date) (other than customary offers to
repurchase upon a change of control, asset sale or event of loss and customary acceleration rights
after an event of default in the case of senior secured notes and other than customary mandatory
prepayment and customary acceleration rights after an event of default consistent with those in the
CF Agreement as in effect on the Original Closing Date if such Indebtedness is in the form of a
Loan
) in connection with a Permitted Acquisition to the extent the Parent Borrower elects to
secure such Indebtedness by a Lien on the assets of the Parent Borrower and the U.S. Guarantors (as
defined in the CF Agreement), so long as (a) after giving effect to the incurrence of such Future
Secured Debt (or the granting of such Liens) the aggregate amount of Scheduled Inside Payments does
not exceed the greater of (I) $3,000,000,000 and (II) 50% of Consolidated EBITDA for the most
recent Test Period for which Section 9.1 Financials have been delivered
), (b) the covenants,
events of default, guarantees, collateral and other terms of which (other than interest rate and
redemption premiums), taken as a whole, are not more restrictive to the Parent Borrower and the
Subsidiaries than those in the CF Facilities;
provided
that a certificate of an Authorized
Officer of the Parent Borrower delivered to the Administrative Agent at least three Business Days
(or such shorter period as the Administrative Agent may reasonably agree) prior to the incurrence
of such Indebtedness, together with a reasonably detailed description of the material terms and
conditions of such Indebtedness or drafts of the documentation relating thereto, stating that the
Parent Borrower has determined in good faith that such terms and conditions satisfy the foregoing
requirement shall be conclusive evidence that such terms and conditions satisfy the foregoing
requirement unless the Administrative Agent notifies the Parent
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Borrower within two Business Days
after receipt of such certificate that it disagrees with such determination (including a reasonable
description of the basis upon which it disagrees), and (c) of which no Subsidiary of the Parent
Borrower (other than U.S. Guarantor (as defined in the CF Agreement)) is an obligor.
Future Secured Debt Documents
shall mean any document or instrument issued or executed
and delivered with respect to any Future Secured Debt by the Parent Borrower or a U.S. Guarantor
(as defined in the CF Agreement).
Future Secured Debt Obligations
shall mean all advances to, and debts, liabilities,
obligations, covenants and duties of, the Parent Borrower or a U.S. Guarantor (as defined in the CF
Agreement) arising under any Future Secured Debt Document, 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
the Parent Borrower or a U.S. Guarantor (as defined in the CF Agreement) or any Affiliate thereof
of any proceeding under any bankruptcy or insolvency law naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
GAAP
shall mean generally accepted accounting principles in the United States of America, as
in effect from time to time;
provided
,
however
, that if there occurs after the
Original Closing Date any change in GAAP that affects in any respect the calculation of any
covenant contained in
Section 10
, the Lenders and the Parent Borrower shall negotiate in
good faith amendments to the provisions of this Agreement that relate to the calculation of such
covenant with the intent of having the respective positions of the Lenders and the Parent
Borrower after such change in GAAP conform as nearly as possible to their respective positions as
of the
date of this Agreement
Original Closing Date
and, until any such amendments have been
agreed upon, the covenants in
Section 10
shall be calculated as if no such change in GAAP
has occurred.
Government Accounts
shall mean, collectively, any and all Accounts which are (a) Medicare
Accounts, (b) Medicaid Accounts, (c) TRICARE Accounts, (d) CHAMPVA Accounts or (e) any other
Account payable by a Governmental Authority acceptable to the Administrative Agent in its Permitted
Discretion.
Government Receivables Bank
shall have the meaning provided in
Section 9.15(a)
.
Government Receivables Deposit Account
shall have the meaning provided in
Section
9.15(a)
.
Government Receivables Deposit Account Agreement
shall have the meaning ascribed to it in
Section 9.15(a)
.
Governmental Authority
shall mean any nation, sovereign or government, any state, province,
territory or other political subdivision thereof, and any entity or authority
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exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining to government,
including a central bank or stock exchange.
Guarantee Obligations
shall mean, as to any Person, any obligation of such Person
guaranteeing or intended to guarantee any Indebtedness of any other Person (the
primary obligor
)
in any manner, whether directly or indirectly, including any obligation of such Person, whether or
not contingent, (a) to purchase any such Indebtedness or any property constituting direct or
indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any
such Indebtedness or (ii) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of any such Indebtedness of
the ability of the primary obligor to make payment of such Indebtedness or (d) otherwise to assure
or hold harmless the owner of such Indebtedness against loss in respect thereof;
provided
,
however
, that the term Guarantee Obligations shall not include endorsements of
instruments for deposit or collection in the ordinary course of business or customary and
reasonable indemnity obligations in effect on the Original Closing Date or entered into in
connection with any acquisition or disposition of assets permitted under this Agreement (other than
such obligations with respect to Indebtedness). The amount of any Guarantee Obligation shall be
deemed to be an amount equal to the stated or determinable amount of the Indebtedness in respect of
which such Guarantee Obligation is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to perform thereunder)
as determined by such Person in good faith.
Hazardous Materials
shall mean (a) any petroleum or petroleum products, radioactive
materials, friable asbestos, urea formaldehyde foam insulation, transformers or other equipment
that contain dielectric fluid containing regulated levels of polychlorinated biphenyls, and radon
gas; (b) any chemicals, materials or substances defined as or included in the definition of
hazardous substances, hazardous waste, hazardous materials, extremely hazardous waste,
restricted hazardous waste, toxic substances, toxic pollutants, contaminants or
pollutants, or words of similar import, under any applicable Environmental Law; and (c) any other
chemical, material or substance, which is prohibited, limited or regulated by any Environmental
Law.
HCA
shall have the meaning provided in the preamble to this Agreement.
HCI
shall mean Health Care Indemnity, Inc., an insurance company formed under the laws of
the State of Colorado.
Healthtrust
shall mean Healthtrust, Inc. The Hospital Company, a Delaware corporation,
and its successors and assigns.
Hedge Agreements
shall mean interest rate swap, cap or collar agreements, interest rate
future or option contracts, currency swap agreements, currency future or option contracts,
commodity price protection agreements or other commodity price hedging agreements, and other
similar agreements entered into by the Parent Borrower or any Restricted Subsidiary in the ordinary
course of business (and not for speculative purposes) for the principal purpose of
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protecting the
Parent Borrower or any of the Restricted Subsidiaries against fluctuations in interest rates,
currency exchange rates or commodity prices.
Hedge Bank
shall mean any Person that either (x) at the time it enters into a Secured Hedge
Agreement or (y) on the Original Closing Date,
Amendment and Restatement Date, or the Second
Restatement Effective Date,
is a Lender or an Affiliate of a Lender, in its capacity as a party
to such Secured Hedge Agreement.
Hercules Holdings
shall mean Hercules Holdings II, LLC, a Delaware limited liability
company.
HIPAA
shall have the meaning provided in
Section 9.2
.
Historical Financial Statements
shall mean the audited consolidated balance sheets of the
Parent Borrower as of December 31, 2004 and December 31, 2005 and the audited consolidated
statements of income, stockholders equity and cash flows of the Parent Borrower for each of the
fiscal years in the three year period ending on December 31, 2005.
Holdings
shall mean
Hercules
HCA
Holdings
II, LLC
Inc.
, a Delaware limited
liability company
corporation
, and its successors.
Increased Amount Date
shall have the meaning provided in
Section 2.14
.
Incremental Revolving Credit Commitments
shall have the meaning provided in
Section
2.14
.
Incremental Revolving Loan Lender
shall have the meaning provided in
Section 2.14
.
Incremental Revolving Loans
shall have the meaning provided in
Section 2.14
.
Indebtedness
of any Person shall mean (a) all indebtedness of such Person for borrowed
money, (b) the deferred purchase price of assets or services that in accordance with GAAP would be
included as a liability on the balance sheet of such Person, (c) the face amount of all letters of
credit issued for the account of such Person and, without duplication, all drafts drawn thereunder,
(d) all Indebtedness of any other Person secured by any Lien on any property owned by such Person,
whether or not such Indebtedness has been assumed by such Person, (e) the principal component of
all Capitalized Lease Obligations of such Person, (f) all obligations of such Person under interest
rate swap, cap or collar agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts, commodity price protection agreements or other
commodity price hedging agreements and other similar agreements, (g) all obligations of such Person
in respect of Disqualified Equity Interests and (h) without duplication, all Guarantee Obligations
of such Person,
provided
that Indebtedness shall not include (i) trade payables and accrued
expenses arising in the ordinary course of business, (ii) deferred or prepaid revenue, (iii)
purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy
warranty or other unperformed obligations of the respective seller
and
,
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(iv) all
intercompany Indebtedness having a term not exceeding 364 days (inclusive of any roll over or
extensions of terms) and incurred in the ordinary course of business
, and (v) Indebtedness
resulting from substantially concurrent interim transfers of creditor positions with respect to
intercompany Indebtedness
.
Indemnified Taxes
shall mean all Taxes (including Other Taxes) other than (i) Excluded Taxes
and (ii) any interest, penalties or expenses caused by an Agents or Lenders
gross negligence or willful misconduct.
Initial Junior Lien Notes
shall mean $1,000,000,000 aggregate principal amount of the
Parent Borrowers 9
1
/
8
% Senior Secured Notes due 2014, $3,200,000,000 aggregate principal amount of
the Parent Borrowers 9
1
/
4
% Senior Secured Notes due 2016 and the Toggle Notes, in each case, issued
under the Initial Junior Lien Notes Indenture prior to the Second Restatement Effective Date.
Initial Junior Lien Notes Indenture
shall mean the Indenture dated as November 17, 2006,
among the Parent Borrower, the guarantors party thereto and The Bank of New York, as trustee,
pursuant to which the Initial Junior Lien Notes are issued, as the same may be amended,
supplemented or otherwise modified from time to time in accordance therewith.
Intercreditor Agreement
shall mean that certain Receivables Intercreditor Agreement, dated
as of the Original Closing Date, among the Collateral Agent, the CF Collateral Agent and the
Trustee under the
Initial
Junior Lien Notes Indenture, as the same may be amended,
restated, modified or waived from time to time.
Interest Period
shall mean, with respect to any New Revolving Credit Loan, the interest
period applicable thereto, as determined pursuant to
Section 2.9
.
Investment
shall mean, for any Person: (a) the acquisition (whether for cash, property,
services or securities or otherwise) of Stock, Stock Equivalents (or any other capital
contribution), bonds, notes, debentures, partnership or other ownership interests or other
securities of any other Person (including any short sale or any sale of any securities at a time
when such securities are not owned by the Person entering into such sale); (b) the making of any
deposit with, or advance, loan or other extension of credit or capital contribution to, any other
Person (including the purchase of property from another Person subject to an understanding or
agreement, contingent or otherwise, to resell such property to such Person), but excluding any such
advance, loan or extension of credit having a term not exceeding 364 days (inclusive of any
rollover or extension of terms) arising in the ordinary course of business; or (c) the entering
into of any guarantee of, or other contingent obligation with respect to, Indebtedness; or (d) the
purchase or other acquisition (in one transaction or a series of transactions) of all or
substantially all of the property and assets or business of another Person or assets constituting a
business unit, line of business or division of such Person;
provided
that, in the event
that any Investment is made by the Parent Borrower or any Restricted Subsidiary in any Person
through substantially concurrent interim transfers of any amount through one or more other
Restricted Subsidiaries, then such other substantially concurrent interim transfers shall be
disregarded for purposes of
Section 10.5
.
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Investors
shall mean the Sponsors, the Management Investors, the Frist Shareholders and each
other investor providing a portion of the Equity Investments on the Original Closing Date.
ISP
shall mean, with respect to any Letter of Credit, the International Standby Practices
1998 published by the Institute of International Banking Law & Practice (or such later version
thereof as may be in effect at the time of issuance).
Issuer Documents
shall mean with respect to any Letter of Credit, the Letter of Credit
Request, and any other document, agreement and instrument entered into by the Letter of Credit
Issuer and the Parent Borrower (or any Restricted Subsidiary) or in favor of the Letter of Credit
Issuer and relating to such Letter of Credit.
Joinder Agreement
shall mean an agreement substantially in the form of
Exhibit
L
to
the Original Credit Agreement
C, with such changes thereto as are consistent with Section 2.14
and are agreed to by the Parent Borrower and the Administrative Agent
.
Joint Bookrunners
shall mean Deutsche Bank Securities Inc. and
Wachovia
Wells Fargo
Capital
Markets
Finance
, LLC.
Joint Lead Arrangers and Bookrunners
shall mean
Banc of America Securities LLC, J.P. Morgan
Securities Inc., Citigroup Global Markets Inc. and
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
, J.P. Morgan Securities LLC, and Citigroup Global Markets, Inc
.
Junior Indebtedness
shall have the meaning provided in
Section 10.7(a)
.
Junior Lien Notes
shall have the meaning set forth in the preamble.
Junior Lien Notes Collateral
shall mean the U.S. Collateral (as defined in the CF Agreement)
(other than any Principal Properties except to the extent that the 1993 Indenture has ceased to be
in effect as a result of a satisfaction and discharge thereof or defeasance thereof in accordance
with its terms at any time prior to the repayment in full of the Obligations (as defined in the CF
Agreement)).
Junior Lien Notes Indenture
shall mean the Indenture dated as of the Original Closing Date,
among the Parent Borrower, the guarantors party thereto and The Bank of New York, as trustee,
pursuant to which the Junior Lien Notes are issued, as the same may be amended, supplemented or
otherwise modified from time to time in accordance therewith.
Junior Lien Notes Offering
shall have the meaning provided in the recitals hereto.
JV Distribution Amount
means, at any time, the aggregate amount of cash distributed to the
Parent Borrower or any Restricted Subsidiary by any joint venture that is not a Subsidiary
(regardless of the form of legal entity) since the Original Closing Date and prior to such time
(without duplication of any amount treated as a reduction in the outstanding amount of
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Investments
by the Parent Borrower or any Restricted Subsidiary pursuant to
clause (d)
,
(i)
or
(v)
of
Section 10.5)
and only to the extent that neither the Parent Borrower nor
any Restricted Subsidiary is under any obligation to repay such amount to such joint venture.
KKR
shall mean each of Kohlberg Kravis Roberts & Co., L.P. and KKR Associates, L.P.
L/C Borrowing
shall mean an extension of credit resulting from a drawing under any Letter of
Credit which has not been reimbursed on the date when made or refinanced as a Borrowing. All L/C
Borrowings shall be denominated in Dollars.
L/C Maturity Date
shall mean the date that is five Business Days prior to the Final Maturity
Date.
L/C Obligations
shall mean, as at any date of determination, the aggregate amount available
to be drawn under all outstanding Letters of Credit
plus
the aggregate of all Unpaid
Drawings, including all L/C Borrowings. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be outstanding in the amount so remaining available to be drawn.
L/C Participant
shall have the meaning provided in
Section 3.3(a)
.
L/C Participation
shall have the meaning provided in
Section 3.3(a)
.
Lender
shall have the meaning provided in the preamble to this Agreement
and shall
include each Lender under the Original Credit Agreement and Amended and Restated Credit
Agreement
.
Lender Default
shall mean (a) the failure (which has not been cured) of a Lender to make
available its portion of any Borrowing, to fund its portion of any unreimbursed payment under
Section 3.3
or to fund its participation in a Protective Advance or (b) a Lender having
notified the Administrative Agent and/or the Parent Borrower that it does not intend to comply with
the obligations under
Section
Sections
2.1(b)
,
2.1(d)
or
3.3
, in the case of either
clause (a)
or
(b)
above or (c) a Lender becoming
the subject of a bankruptcy or insolvency proceeding.
Letter of Credit
shall mean each letter of credit issued pursuant to
Section 3.1
.
Letter of Credit Commitment
shall mean $200,000,000, as the same may be reduced from time to
time pursuant to
Section 3.1
.
Letter of Credit Exposure
shall mean, with respect to any Lender, at any time, the sum of
(a) the principal amount of any Unpaid Drawings in respect of which such Lender has made (or is
required to have made) payments to the Letter of Credit Issuer pursuant to
Section 3.4(a)
at such time and (b) such Lenders New Revolving Credit Commitment Percentage of the Letters of
Credit Outstanding at such time (excluding the portion thereof consisting of Unpaid
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Drawings in
respect of which the Lenders have made (or are required to have made) payments to the Letter of
Credit Issuer pursuant to
Section 3.4(a)
).
Letter of Credit Fee
shall have the meaning provided in
Section 4.1(b)
.
Letter of Credit Issuer
shall mean Bank of America, any of its Affiliates or any replacement
or successor pursuant to
Section 3.6
. The Letter of Credit Issuer may, in its discretion,
arrange for one or more Letters of Credit to be issued by Affiliates of the Letter of Credit
Issuer, and in each such case the term Letter of Credit Issuer shall include any such Affiliate
with respect to Letters of Credit issued by such Affiliate. In the event that there is more than
one Letter of Credit Issuer at any time, references herein and in the other Credit Documents to the
Letter of Credit Issuer shall be deemed to refer to the Letter of Credit Issuer in respect of the
applicable Letter of Credit or to all Letter of Credit Issuers, as the context requires.
Letters of Credit Outstanding
shall mean, at any time, the sum of, without duplication, (a)
the aggregate Stated Amount of all outstanding Letters of Credit and (b) the aggregate principal
amount of all Unpaid Drawings in respect of all Letters of Credit.
Letter of Credit Request
shall have the meaning provided in
Section 3.2
.
Level I Status
shall mean, on any date, the circumstance that the Consolidated Total Debt to
Consolidated EBITDA Ratio is greater than or equal to 6.00 to 1.00 as of such date.
Level II Status
shall mean, on any date, the circumstance that Level I Status does not exist
and the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than or equal to 4.50 to
1.00 as of such date.
Level III Status
shall mean, on any date, the circumstance that the Consolidated Total Debt
to Consolidated EBITDA Ratio is less than 4.50 to 1.00 as of such date.
LIBOR Loan
shall mean any New Revolving Credit Loan bearing interest at a rate determined by
reference to the LIBOR Rate.
LIBOR Rate
shall mean, for any Interest Period with respect to a LIBOR Loan, the rate per
annum equal to the British Bankers Association LIBOR Rate (
BBA LIBOR
), as published by Reuters
(or other commercially available source providing quotations of BBA LIBOR as designated by the
Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period, for deposits in Dollars (for delivery on the
first day of such Interest Period) with a term equivalent to such Interest Period. If such rate is
not available at such time for any reason, then the LIBOR Rate for such Interest Period shall be
the rate per annum determined by the Administrative Agent to be the rate at which deposits in
Dollars for delivery on the first day of such Interest Period in same day funds in the approximate
amount of the LIBOR Loan being made, continued or converted by the Administrative Agent and with a
term equivalent to such Interest Period would be offered by the Administrative Agents London
Branch to major banks
-38-
in the London interbank eurodollar market at their request at approximately
11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period.
Lien
shall mean any mortgage, pledge, security interest, hypothecation, assignment, lien
(statutory or other) or similar encumbrance (including any agreement to give any of the foregoing,
any conditional sale or other title retention agreement or any lease in the nature thereof).
Loan
shall mean any New Revolving Credit Loan, Swingline Loan, Incremental Revolving Loan or
Protective Advance made by any Lender hereunder.
Lock Boxes
shall have the meaning provided in
Section 9.15(a)
.
Management Investors
shall mean the directors, management officers and employees of the
Parent Borrower and its Subsidiaries on the Original Closing Date.
Mandatory Borrowing
shall have the meaning provided in
Section 2.1(d)
.
Material Adverse Change
shall mean any event, state of facts, circumstance, development,
change, effect or occurrence (an
Effect
) that is materially adverse to the business, financial
condition or results of operations of HCA and its Subsidiaries, taken as a whole, other than (i)
any Effect resulting from (A) changes in general economic or political conditions or the
securities, credit or financial markets in general, (B) general changes or developments in the
industries in which HCA and its Subsidiaries operate, including general changes in law or
regulation across such industries, (C) the announcement of the Acquisition Agreement or the
pendency or consummation of the Merger, including any labor union activities related thereto, (D)
the identity of Holdings or any of its Affiliates as the acquirer of HCA, (E) compliance with the
terms of, or the taking of any action required by, the Acquisition Agreement or consented to by
Holdings, (F) any acts of terrorism or war (other than any of the foregoing that causes any damage
or destruction to or renders unusable any facility or property of HCA or any of its Subsidiaries),
(G) changes in generally accepted accounting principles or the interpretation thereof, or (H) any
weather-related event, except, in the case of the foregoing
clauses (A)
and
(B)
, to the extent such changes or developments referred to
therein would reasonably be expected to have a materially disproportionate impact on HCA and its
Subsidiaries, taken as a whole, relative to other for-profit participants in the industries and in
the geographic markets in which HCA conducts its businesses after taking into account the size of
HCA relative to such other for-profit participants, or (ii) any failure to meet internal or
published projections, forecasts or revenue or earning predictions for any period (
provided
that the underlying causes of such failure shall be considered in determining whether there is a
Material Adverse Change).
Material Adverse Effect
shall mean a circumstance or condition affecting the business,
assets, operations, properties or financial condition of the Parent Borrower and the Subsidiaries,
taken as a whole, that would materially adversely affect (a) the ability of the Parent Borrower and
the other Credit Parties, taken as a whole, to perform their payment obligations under this
Agreement or any of the other Credit Documents or (b) the rights and remedies of the
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Administrative
Agent and the Lenders under this Agreement or any of the other Credit Documents.
Material Subsidiary
shall mean, at any date of determination, (i) each Restricted Subsidiary
of the Parent Borrower (a) whose total assets at the last day of the Test Period ending on the last
day of the most recent fiscal period for which
Section 9.1
Financials have been delivered
were equal to or greater than 1% of the consolidated total assets of the Parent Borrower and the
Restricted Subsidiaries at such date or (b) whose revenues during such Test Period were equal to or
greater than 1% of the consolidated revenues of the Parent Borrower and the Restricted Subsidiaries
for such period, in each case determined in accordance with GAAP and (ii) solely for purposes of
Sections 11.5
and
11.9
, each other Restricted Subsidiary that is the subject of an
Event of Default under one or more of such Sections and that, when such Restricted Subsidiarys
total assets and revenues are aggregated with the total assets or revenues, as applicable, of each
other Restricted Subsidiary that is the subject of an Event of Default under one or more of such
Sections, would constitute a Material Subsidiary under
clause (i)
above using a 4%
threshold in replacement of the 1% threshold in such
clause (i)
.
Medicaid
shall mean, collectively, the healthcare assistance program established by Title
XIX of the Social Security Act (42 U.S.C. §§ 1396
et seq
.) and any statutes succeeding thereto, and
all law, rules, regulations, manuals, orders, guidelines or requirements (whether or not having the
force of law) pertaining to such program, in each case as the same may be amended, supplemented or
otherwise modified from time to time.
Medicaid Account
shall mean an Account payable pursuant to an agreement entered into between
a state agency or other entity administering Medicaid in such state and a healthcare facility or
physician under which the healthcare facility or physician agrees to provide services or
merchandise for Medicaid patients. Any Potential Medicaid Account shall become a Medicaid Account
at such time as such agency or entity assigns an identification number to the Account Debtor with
respect to such Potential Medicaid Account or otherwise provides documentation confirming that such
Account Debtor has qualified for Medicaid benefits.
Medicare
shall mean, collectively, the health insurance program for the aged and disabled
established by Title XVIII of the Social Security Act (42 U.S.C. §§ 1395
et seq
.)
and any statutes succeeding thereto, and all laws, rules, regulations manuals, orders or
guidelines (whether or not having the force of law) pertaining to such program, in each case as the
same may be amended, supplemented or otherwise modified from time to time.
Medicare Account
means an Account payable pursuant to an agreement entered into between a
state agency or other entity administering Medicare in such state and a healthcare facility or
physician under which the healthcare facility or physician agrees to provide services or
merchandise for Medicare patients.
Merger
shall have the meaning provided in the
preamble to this
Amended and Restated
Credit
Agreement.
Merger Sub
shall mean Hercules Acquisition Corporation, a Delaware corporation.
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Minimum Borrowing Amount
shall mean (a) with respect to a Borrowing of LIBOR Loans,
$10,000,000 (or, if less, the entire remaining Commitments at the time of such Borrowing), (b) with
respect to a Borrowing of ABR Loans, $1,000,000 (or, if less, the entire remaining Commitments at
the time of such Borrowing), and (c) with respect to a Borrowing of Swingline Loans, $500,000 (or,
if less, the entire remaining Commitments at the time of such Borrowing).
MLGP
shall mean Merrill Lynch Global Partners.
Monthly Borrowing Base Certificate
shall have the meaning provided in
Section
9.1(i)
.
Moodys
shall mean Moodys Investors Service, Inc. or any successor by merger or
consolidation to its business.
New Revolving Credit Commitment
shall mean, (a) with respect to each Lender that is a Lender
on the Amendment and Restatement Date, the amount set forth opposite such Lenders name on
Schedule 1
to the Amendment Agreement as such Lenders New Revolving Credit Commitment
and (b) in the case of any Lender that becomes a Lender after the Amendment and Restatement Date,
the amount specified as such Lenders New Revolving Credit Commitment in the Assignment and
Acceptance pursuant to which such Lender assumed a portion of the Total New Revolving Credit
Commitment, in each case of the same may be changed from time to time pursuant to terms hereof.
The aggregate amount of the New Revolving Credit Commitment as of the Amendment and Restatement
Date is $2,000,000,000.
New Revolving Credit Commitment Percentage
shall mean at any time, for each Lender, the
percentage obtained by dividing (a) such Lenders New Revolving Credit Commitment at such time by
(b) the amount of the Total New Revolving Credit Commitments at such time,
provided
that at
any time when the Total New Revolving Credit Commitment shall have been terminated, each Lenders
New Revolving Credit Commitment Percentage shall be the percentage obtained by dividing (a) such
Lenders New Revolving Exposure at such time by (b) the New Revolving Exposure of all Lenders at
such time.
New Revolving Credit Loans
shall have the meaning provided in
Section 2.1(b)
.
New Revolving Exposure
shall mean, with respect to any Lender at any time, the sum of (a)
the aggregate principal amount of the New Revolving Credit Loans of such Lender then outstanding,
(b) such Lenders Letter of Credit Exposure at such time, (c) such Lenders New Revolving Credit
Commitment Percentage of the aggregate principal amount of all outstanding Swingline Loans and (d)
with respect to Protective Advances, such Lenders New Revolving Credit Commitment Percentage of
the aggregate principal amount of all outstanding Protective Advances;
provided
that clause
(d) of this definition shall be disregarded with respect to any Protective Advance solely for
purposes of calculating Excess Global Availability and Excess Facility Availability and solely to
the extent that the making of such Protective Advance would result in the occurrence of a Cash
Dominion Event or a Covenant Compliance Event.
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New Revolving Lender
shall mean, at any time, any Lender that has a New Revolving Credit
Commitment at such time.
New Revolving Termination Date
shall mean the date on which the New Revolving Credit
Commitments shall have terminated, no New Revolving Credit Loans shall be outstanding and the
Letters of Credit Outstanding shall have been reduced to zero or Cash Collateralized.
1993 Indenture
shall mean the Indenture dated as of December 16, 1993 between HCA and First
National Bank of Chicago, as Trustee, as may be amended, supplemented or modified from time to
time.
1993 Indenture Restricted Subsidiary
shall mean any Subsidiary that on the Original Closing
Date constitutes a Restricted Subsidiary under (and as defined in) the 1993 Indenture, as in effect
on the Original Closing Date.
Non-Cash Charges
shall mean (a) losses on asset sales, disposals or abandonments, (b) any
impairment charge or asset write-off related to intangible assets (including goodwill), long-lived
assets, and investments in debt and equity securities pursuant to GAAP, (c) all losses from
investments recorded using the equity method, (d) stock-based awards compensation expense,
including any such charges arising from stock options, restricted stock grants or other equity
incentive grants, and any cash compensation charges associated with the rollover or acceleration of
stock-based awards or payment of stock options in connection with the Transactions, and (e) other
non-cash charges (
provided
that if any non-cash charges referred to in this
clause
(e)
represent an accrual or reserve for potential cash items in any future period, the cash
payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to
such extent).
Non-Consenting Lender
shall have the meaning provided in
Section 14.7(b)
.
Non-Defaulting Lender
shall mean and include each Lender other than a Defaulting Lender.
Non-Extension Notice Date
shall have the meaning provided in
Section 3.2(d)
.
Non-Reinstatement Deadline
shall have the meaning provided in
Section 3.2(e)
.
Non-U.S. Lender
shall mean any Agent or Lender that is not, for United States federal income
tax purposes, (a) an individual who is a citizen or resident of the United States, (b) a
corporation, partnership or entity treated as a corporation or partnership created or organized in
or under the laws of the United States, or any political subdivision thereof, (c) an estate whose
income is subject to U.S. federal income taxation regardless of its source or (d) a trust if a
court within the United States is able to exercise primary supervision over the administration of
such trust and one or more United States persons have the authority to control all substantial
decisions of such trust or a trust that has a valid election in effect under applicable U.S.
Treasury regulations to be treated as a United States person.
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Non-U.S. Participant
shall mean any Participant that if it were a Lender would qualify as a
Non-U.S. Lender.
Notice of Borrowing
shall have the meaning provided in
Section 2.3(b)
.
Notice of Conversion or Continuation
shall have the meaning provided in
Section 2.6
.
Obligations
shall mean all advances to, and debts, liabilities, obligations, covenants and
duties of, any Credit Party arising under any Credit Document or otherwise with respect to any
Commitment, Loan or Letter of Credit or under any Secured Cash Management Agreement or Secured
Hedge Agreement, in each case, entered into with the Parent Borrower or any of its Domestic
Subsidiaries, whether direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, existing on the Original Closing Date or thereafter existing and
including interest and fees that accrue after the commencement by or against any Credit Party or
any Affiliate thereof of any proceeding under any bankruptcy or insolvency law naming such Person
as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims
in such proceeding.
Option Note
shall mean the promissory note, dated as of November 14, 2006, in a principal
amount equal to the Option Note Amount issued by The Community Foundation of Middle Tennessee in
favor of the Parent Borrower.
Option Note Amount
shall mean $63,160,680.
Original Closing Date
shall mean November 17, 2006.
Original Credit Agreement
shall have the meaning set forth in the recitals hereto.
Original Lenders
shall have the meaning set forth in the recitals hereto.
Other Taxes
shall mean any and all present or future stamp, registration, documentary or any
other
excise
,
similar
property or
similar
excise
taxes (including interest, fines,
penalties, additions to tax and related expenses with regard thereto) arising from any payment made
or required to be made under this Agreement or any other Credit Document or from the execution or
delivery of, registration or enforcement of, consummation or administration of, or otherwise with
respect to, this Agreement or any other Credit Document.
Overnight Rate
shall mean, for any day, the greater of (i) the Federal Funds Effective Rate
and (ii) an overnight rate determined by the Administrative Agent, the Letter of Credit Issuer, or
the Swingline Lender, as the case may be, in accordance with banking industry rules on interbank
compensation.
Parent Borrower
shall have the meaning set forth in the preamble hereto.
Participant
shall have the meaning provided in
Section 14.6(c)
.
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Patriot Act
shall have the meaning provided in
Section 14.18
.
Payment Conditions
shall mean each of the following conditions precedent, the
satisfaction of each of which shall be required before any Investment under Section 10.5(y),
dividends under Section 10.6(f), or repurchase, prepayment, redemption, or repayment of
Indebtedness under Section 10.7 would result therefrom:
(a) no Default or Event of Default under Section 11.1 or 11.5 exists at
such time or would result from such Investment, dividend or repurchase, prepayment,
redemption or repayment of Junior Indebtedness or Retained Indebtedness;
(b) (x) Excess Global Availability of at least $250.0 million or (y) Excess
Facility Availability of at least $125.0 million, in the case of each of clauses (x) and
(y), immediately after making such Investment, dividend or repurchase, prepayment,
redemption, or repayment of Junior Indebtedness or Retained Indebtedness; and
(c) such Investment, dividend or repurchase, prepayment, redemption, or
repayment of Junior Indebtedness or Retained Indebtedness shall not result in a Consolidated
EBITDA to Consolidated Interest Coverage Ratio, calculated as of the last day of the fiscal
quarter for the Test Period most recently then ended for which Section 9.1 Financials have
been delivered, to be less than 1.50:1.00.
PBGC
shall mean the Pension Benefit Guaranty Corporation established pursuant to Section
4002 of ERISA, or any successor thereto.
Perfection Certificate
shall mean
a certificate of each Borrower in the form of
Exhibit
D
to the Original Credit Agreement
the perfection certificate, dated as of November 17,
2006, of the Credit Parties
or any other form approved by the Administrative Agent.
Permitted Acquisition
shall mean the acquisition, by merger or otherwise, by the Parent
Borrower or any of the Restricted Subsidiaries of assets or Stock or Stock Equivalents, so long as
(a) such acquisition and all transactions related thereto shall be consummated in accordance with
applicable law; (b) such acquisition shall result in the issuer of such Stock or Stock Equivalents
becoming a Restricted Subsidiary and a Subsidiary Borrower, to the extent required by
Section
9.11
; (c) after giving effect to such acquisition, no Default or Event of Default shall have
occurred and be continuing; (d) the aggregate fair market value (as determined in good faith by the
Parent Borrower) of all Investments funded or financed in any Persons that do not become Guarantors
(as defined in the CF Agreement
as in effect on the Original Closing Date
) in connection with all
such acquisitions following the Original Closing Date in reliance on
Section 10.5(h)
shall
not exceed $1,500,000,000 (it being understood that additional Investments in Persons that are not
Credit Parties (as defined in the CF Agreement) may be made in connection with Permitted
Acquisitions in reliance on any exception in
Section 10.5
other than
clause (h)
thereof); and (e) the Parent Borrower shall be in compliance, on a Pro Forma Basis after giving
effect to such acquisition (including any Indebtedness assumed or permitted to exist or incurred
pursuant to
Sections 10.1(j)
and
10.1(k)
, respectively, and any related Pro Forma
Adjustment), with the covenant set forth in
Section
10.9
10.8
of the CF Agreement
for the most
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recently ended Test Period under such section as if such acquisition had occurred on the first
day of such Test Period
for which Section 9.1 Financials have been delivered
.
Permitted Additional Debt
shall mean senior unsecured or senior subordinated notes or other
Indebtedness or, subject to compliance with
Section 10.2
, junior lien secured notes or
other junior lien secured Indebtedness, issued by the Parent Borrower or a U.S. Guarantor (as
defined in the CF Agreement),
so long as
(a)
the terms of which (i) do not provide for any
scheduled repayment, mandatory redemption or sinking fund obligation prior to the date on which the
final maturity of the Junior Lien Notes occurs (as in effect on the Original Closing Date) (other
than customary offers to purchase upon a change of control, asset sale or event of loss and
customary acceleration rights after an event of default)
(i) after giving effect to the
incurrence of such Permitted Additional Debt, the aggregate amount of Scheduled Inside Payments
does not exceed the greater of (I) $3,000,000,000 and (II) 50% of Consolidated EBITDA for the most
recent Test Period for which Section 9.1 Financials have been delivered
and (ii) to the extent
the same are senior subordinated notes, provide for customary subordination to the Obligations
under the Credit Documents, (b) the covenants, events of default, guarantees, collateral and other
terms of which (other than interest rate and redemption premiums), taken as a whole, are not more
restrictive to the Parent Borrower and the Subsidiaries than those in the
Existing
Junior
Lien Notes;
provided
that a certificate of an Authorized Officer of the Parent Borrower
delivered to the Administrative Agent at least three Business Days (or such shorter period as the
Administrative Agent may reasonably agree) prior to the incurrence of such Indebtedness, together
with a reasonably detailed description of the material terms and conditions of such Indebtedness or
drafts of the documentation relating thereto, stating that the Parent Borrower has determined in
good faith that such terms and conditions satisfy the foregoing requirement shall be conclusive
evidence that such terms and conditions satisfy the foregoing requirement unless the Administrative
Agent notifies the Parent Borrower within two Business Days after receipt of such certificate that
it disagrees with such determination (including a reasonable description of the basis upon which it
disagrees), and (c) of which no Subsidiary of the Parent Borrower (other than U.S. Guarantor (as
defined in the CF Agreement)) is an obligor.
Permitted Discretion
shall mean, the Administrative Agents commercially reasonable
judgment, exercised in good faith in accordance with customary business practices for comparable
asset-based lending transactions, as to any factor, event, condition or other circumstance arising
after the Original Closing Date or based on facts not known to the Administrative Agent as of the
Original Closing Date which the Administrative Agent reasonably determines: (a) will or reasonably
could be expected to adversely affect in any material respect the value of any Eligible Accounts,
the enforceability or priority of the Collateral Agents Liens thereon or the amount which the
Administrative Agent, the Lenders or the Letter of Credit Issuer would be likely to receive (after
giving consideration to delays in payment and costs of enforcement) in the liquidation of such
Eligible Accounts or (b) evidences that any collateral report or financial information delivered to
the Administrative Agent by any Person on behalf of the Parent Borrower is incomplete, inaccurate
or misleading in any material respect. In exercising such judgment, the Administrative Agent may
consider, without duplication, factors already included in or tested by the definition of Eligible
Accounts, and any of the following: (i) changes after the Original Closing Date in any material
respect in any
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concentration of risk with respect to Eligible Accounts and (ii) any other factors
arising after the
Original Closing Date that change in any material respect the credit risk of lending to the
Borrowers on the security of the Eligible Accounts.
Permitted Investments
shall mean:
(a) securities issued or unconditionally guaranteed by the United States government or
any agency or instrumentality thereof, in each case having maturities of not more than 24
months from the date of acquisition thereof;
(b) securities issued by any state of the United States of America or any political
subdivision of any such state or any public instrumentality thereof or any political
subdivision of any such state or any public instrumentality thereof having maturities of not
more than 24 months from the date of acquisition thereof and, at the time of acquisition,
having an investment grade rating generally obtainable from either S&P or Moodys (or, if at
any time neither S&P nor Moodys shall be rating such obligations, then from another
nationally recognized rating service);
(c) commercial paper issued by any Lender or any bank holding company owning any
Lender;
(d) commercial paper maturing no more than 12 months after the date of creation thereof
and, at the time of acquisition, having a rating of at least A-2 or P-2 from either S&P or
Moodys (or, if at any time neither S&P nor Moodys shall be rating such obligations, an
equivalent rating from another nationally recognized rating service);
(e) domestic and LIBOR certificates of deposit or bankers acceptances maturing no more
than two years after the date of acquisition thereof issued by any Lender or any other bank
having combined capital and surplus of not less than $250,000,000 in the case of domestic
banks and $100,000,000 (or the Dollar Equivalent thereof) in the case of foreign banks;
(f) repurchase agreements with a term of not more than 30 days for underlying
securities of the type described in
clauses (a)
,
(b)
and
(e)
above
entered into with any bank meeting the qualifications specified in
clause (e)
above
or securities dealers of recognized national standing;
(g) marketable short-term money market and similar funds (x) either having assets in
excess of $250,000,000 or (y) having a rating of at least A-2 or P-2 from either S&P or
Moodys (or, if at any time neither S&P nor Moodys shall be rating such obligations, an
equivalent rating from another nationally recognized rating service);
(h) shares of investment companies that are registered under the Investment Company Act
of 1940 and substantially all the investments of which are one or more of the types of
securities described in
clauses (a)
through
(g)
above;
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(i) in the case of Investments by any Restricted Foreign Subsidiary, other customarily
utilized high-quality Investments in the country where such Restricted Foreign Subsidiary is
located or in which such Investment is made; and
(j) investments made by HCI that are permitted or required by any Requirement of Law or
otherwise consistent with past practice, including without limitation investments in
exchange-traded funds, common stocks and bonds.
Permitted Junior Lien Debt
shall mean the Junior Lien Notes and any other Indebtedness
secured by a Lien on the Junior Lien Notes Collateral permitted by
Section 10.2(c)
or
(r)
.
Permitted Liens
shall mean:
(a) Liens for taxes, assessments or governmental charges or claims not yet delinquent
or that are being contested in good faith and by appropriate proceedings for which
appropriate reserves have been established to the extent required by and in accordance with
GAAP;
(b) Liens in respect of property or assets of the Parent Borrower or any of the
Subsidiaries imposed by law, such as carriers, warehousemens and mechanics Liens and
other similar Liens arising in the ordinary course of business, in each case so long as such
Liens arise in the ordinary course of business and do not individually or in the aggregate
have a Material Adverse Effect;
(c) Liens arising from judgments or decrees in circumstances not constituting an Event
of Default under
Section 11.11
;
(d) Liens incurred or deposits made in connection with workers compensation,
unemployment insurance and other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts,
performance and return-of-money bonds and other similar obligations incurred in the ordinary
course of business;
(e) ground leases in respect of real property on which facilities owned or leased by
the Parent Borrower or any of its Subsidiaries are located;
(f) easements, rights-of-way, restrictions, minor defects or irregularities in title
and other similar charges or encumbrances not interfering in any material respect with the
business of the Parent Borrower and its Subsidiaries, taken as a whole;
(g) any interest or title of a lessor or secured by a lessors interest under any lease
permitted by this Agreement;
(h) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods;
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(i) Liens on goods the purchase price of which is financed by a documentary letter of
credit issued for the account of the Parent Borrower or any of its Subsidiaries,
provided
that such Lien secures only the obligations of the Parent Borrower or such
Subsidiaries in respect of such letter of credit to the extent permitted under
Section
10.1
;
(j) leases or subleases granted to others not interfering in any material respect with
the business of the Parent Borrower and its Subsidiaries, taken as a whole;
(k) Liens arising from precautionary Uniform Commercial Code financing statement or
similar filings made in respect of operating leases entered into by the Parent Borrower or
any of its Subsidiaries; and
(l) Liens created in the ordinary course of business in favor of banks and other
financial institutions over credit balances of any bank accounts of the Parent Borrower and
the Restricted Subsidiaries held at such banks or financial institutions, as the case may
be, to facilitate the operation of cash pooling and/or interest set-off arrangements in
respect of such bank accounts in the ordinary course of business.
Permitted Receivables Financing
shall mean any customary accounts receivable financing
facility (including customary back-to-back intercompany arrangements in respect thereof) to the
extent (i) the amount thereof does not exceed the amount permitted by
Section 10.1(a)
and
(ii) either (x) the Accounts contributed, sold or otherwise financed thereby are Accounts that
immediately prior to being contributed, sold or otherwise financed thereunder did not constitute
Collateral or (y) after giving effect thereto, any Borrower that shall have contributed, sold or
otherwise financed any of its Accounts in connection therewith shall thereafter cease to be a
Borrower for all purposes hereunder and no Accounts originated or owned by such Borrower shall
thereafter be included in the Borrowing Base at any time.
Permitted Sale Leaseback
shall mean any Sale Leaseback consummated by the Parent Borrower or
any of the Restricted Subsidiaries after the Original Closing Date,
provided
that any such
Sale Leaseback not between (i) a Credit Party and another Credit Party, (ii) a Restricted
Subsidiary that is not a Credit Party or a 1993 Indenture Restricted Subsidiary to another
Restricted Subsidiary that is not a Credit Party or a 1993 Indenture Restricted Subsidiary or (iii)
a 1993 Indenture Restricted Subsidiary to another 1993 Indenture Restricted Subsidiary is
consummated for fair value as determined at the time of consummation in good faith by the Parent
Borrower or such Restricted Subsidiary and, in the case of any Sale Leaseback (or series of related
Sales Leasebacks) the aggregate proceeds of which exceed $250,000,000 the board of directors of the
Parent Borrower or such Restricted Subsidiary (which such determination may take into account any
retained interest or other Investment of the Parent Borrower or such Restricted Subsidiary in
connection with, and any other material economic terms of, such Sale Leaseback).
Person
shall mean any individual, partnership, joint venture, firm, corporation, limited
liability company, association, trust or other enterprise or any Governmental Authority.
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Physician
shall mean a doctor of medicine or osteopathy, a doctor of dental surgery or
dental medicine, a doctor of podiatric medicine, a doctor of optometry or a chiropractor.
PIK Interest Amount
shall mean the aggregate principal amount of all increases in
outstanding principal amount of Toggle Notes and issuances of PIK Notes (as
defined in the
Initial
Junior Lien Notes Indenture) in connection with an election by
the Parent Borrower to pay interest on the Toggle Notes in kind.
Plan
shall mean any multiemployer or single-employer plan, as defined in Section 4001 of
ERISA and subject to Title IV of ERISA, that is or was within any of the preceding six plan years
maintained or contributed to by (or to which there is or was an obligation to contribute or to make
payments to) the Parent Borrower or an ERISA Affiliate.
Platform
shall have the meaning provided in
Section 14.17(b)
.
Post-Acquisition Period
shall mean, with respect to any Permitted Acquisition, the period
beginning on the date such Permitted Acquisition is consummated and ending on the last day of the
sixth full consecutive fiscal quarter immediately following the date on which such Permitted
Acquisition is consummated.
Potential Medicaid Account
shall mean any Account for which the Account Debtor is a natural
person and for which the Borrowers in good faith and consistent with past practice, have submitted
an application to have such Accounts of such Account Debtor made eligible to become a valid
Medicaid Account. Once an identification number has been obtained for the patient or the
applicable State agency or other entity administering Medicaid in such State has provided
documentation confirming that such Account Debtor has qualified for Medicaid benefits, such
patients Accounts shall no longer be Potential Medicaid Accounts.
Prime Rate
shall mean the prime rate referred to in the definition of ABR.
Principal Properties
shall mean each acute care hospital providing general medical and
surgical services (excluding equipment, personal property and hospitals that primarily provide
specialty medical services, such as psychiatric and obstetrical and gynecological services) owned
solely by the Parent Borrower and/or one or more of its Subsidiaries (as defined in the 1993
Indenture as in effect on the Original Closing Date) and located in the United States of America
for so long as the 1993 Indenture is in effect and such acute care hospital is a Principal
Property under the 1993 Indenture.
Private Accounts
shall mean, collectively, any and all Accounts that are not Government
Accounts.
Pro Forma Adjustment
shall mean, for any Test Period that includes all or any part of a
fiscal quarter included in any Post-Acquisition Period, with respect to the Acquired EBITDA of the
applicable Acquired Entity or Business or the Consolidated EBITDA of the Parent Borrower, the pro
forma increase or decrease in such Acquired EBITDA or such Consolidated EBITDA, as the case may be,
projected by the Parent Borrower in good faith as a
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result of (a) actions taken during such
Post-Acquisition Period for the purposes of realizing reasonably identifiable and factually
supportable cost savings or (b) any additional costs incurred during such Post-Acquisition Period,
in each case in connection with the combination of the operations of such Acquired Entity or
Business with the operations of the Parent Borrower and the Restricted Subsidiaries;
provided
that (i) at the election of the Parent Borrower, such Pro Forma Adjustment shall
not be required to be determined for any Acquired Entity or Business to the extent the aggregate
consideration paid in connection with such acquisition was less than
$100,000,000 and (ii) so long as such actions are taken during such Post-Acquisition Period or
such costs are incurred during such Post-Acquisition Period, as applicable, it may be assumed, for
purposes of projecting such pro forma increase or decrease to such Acquired EBITDA or such
Consolidated EBITDA, as the case may be, that the applicable amount of such cost savings will be
realizable during the entirety of such Test Period, or the applicable amount of such additional
costs, as applicable, will be incurred during the entirety of such Test Period;
provided
further
that any such pro forma increase or decrease to such Acquired EBITDA or such
Consolidated EBITDA, as the case may be, shall be without duplication for cost savings or
additional costs already included in such Acquired EBITDA or such Consolidated EBITDA, as the case
may be, for such Test Period.
Pro Forma Adjustment Certificate
shall mean any certificate of an Authorized Officer of the
Parent Borrower delivered pursuant to
Section 9.1(h)
or
Section 9.1(d)
.
Pro Forma Basis
,
Pro Forma Compliance
and
Pro Forma Effect
shall mean, with respect to
compliance with any test or covenant hereunder, that (A) to the extent applicable and other than
for purposes of determining the Applicable Amount, the Applicable ABR Margin, the Applicable LIBOR
Margin and the Commitment Fee Rate, the Pro Forma Adjustment shall have been made and (B) all
Specified Transactions and the following transactions in connection therewith shall be deemed to
have occurred as of the first day of the applicable period of measurement in such test or covenant:
(a) income statement items (whether positive or negative) attributable to the property or Person
subject to such Specified Transaction, (i) in the case of a sale, transfer or other disposition of
all or substantially all Capital Stock in any Subsidiary of the Parent Borrower or any division,
product line, or facility used for operations of the Parent Borrower or any of its Subsidiaries,
shall be excluded, and (ii) in the case of a Permitted Acquisition or Investment described in the
definition of Specified Transaction, shall be included, (b) any retirement of Indebtedness, and
(c) any incurrence or assumption of Indebtedness by the Parent Borrower or any of the Restricted
Subsidiaries in connection therewith (it being agreed that if such Indebtedness has a floating or
formula rate, such Indebtedness shall have an implied rate of interest for the applicable period
for purposes of this definition determined by utilizing the rate that is or would be in effect with
respect to such Indebtedness as at the relevant date of determination);
provided
that,
without limiting the application of the Pro Forma Adjustment pursuant to (A) above (but without
duplication thereof), the foregoing pro forma adjustments may be applied to any such test or
covenant solely to the extent that such adjustments are consistent with the definition of
Consolidated EBITDA and give effect to events (including operating expense reductions) that are (i)
(x) directly attributable to such transaction, (y) expected to have a continuing impact on the
Parent Borrower and the Restricted Subsidiaries and (z) factually supportable or (ii) otherwise
consistent with the definition of Pro Forma Adjustment.
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Protective Advance
shall have the meaning provided in
Section 2.1(e)
.
Public Lender
shall have the meaning provided in
Section 14.17(b)
.
Qualified Equity Interest
shall mean any Stock or Stock Equivalent that does not constitute
a Disqualified Equity Interest.
Qualified Holdings Debt
shall mean (1) any Indebtedness issued by Holdings (a) that does not
provide for any cash interest payments thereon prior to the fifth anniversary of the date of
issuance thereof, (b) that does not have any scheduled payment of principal prior to the Final
Maturity Date
(as defined in the CF Agreement) (determined as of the date such Indebtedness was
incurred)
(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), and (c) that is not guaranteed by, or secured by a Lien on any
assets of, the Parent Borrower or any of the Restricted Subsidiaries.
Ratio First Lien Indebtedness
shall mean Future Secured Debt (including New Term Loans
(as defined in the CF Agreement)) constituting CF Level Lien Obligations, in each case, which are
designated by an Authorized Officer of the Parent Borrower as Ratio First Lien Indebtedness
pursuant to a certificate delivered to the Administrative Agent not later than the date such New
Term Loans are borrowed or Future Secured Debt are issued; provided that immediately after giving
effect to the incurrence of Future Secured Debt and the application of proceeds therefrom on a Pro
Forma Basis, the Consolidated First Lien Debt to Consolidated EBITDA Ratio (calculated for this
purpose, without regard to any reduction in Consolidated Total Debt pursuant to clause (b) of the
definition thereof) is not greater than 3.75 to 1.0.
Ratio Refinancing Indebtedness
shall mean Ratio First Lien Indebtedness that is incurred
in exchange for, or the Net Cash Proceeds (as defined in the CF Agreement) of which are applied to
repurchase, redeem or repay, any Term Loans (as defined in the CF Agreement) or Future Secured Debt
(any such Term Loans or Future Secured Debt, the Repaid First Lien Indebtedness); provided that
such Ratio First Lien Indebtedness has a final maturity and weighted average life to maturity that
is no earlier than the final maturity and weighted average life to maturity of the Repaid First
Lien Indebtedness.
Real Estate
shall have the meaning provided in
Section 9.1(f)
.
Receivables Reserves
shall mean, without duplication of any other reserves or items that are
otherwise addressed or excluded through eligibility criteria, such reserves, subject to
Section
2.15
, as the Administrative Agent in the Administrative Agents Permitted Discretion determines
as being appropriate with respect to the determination of the collectability in the ordinary course
of business of Eligible Accounts, including, without limitation, on account of bad debts and
dilution.
Refinancing Future Secured Debt
shall mean Future Secured Debt that is issued for cash
consideration to the extent the Parent Borrower delivers a certificate of an
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Authorized Officer to
the Administrative Agent no later than the date of issuance of such Future Secured Debt designating
such Future Secured Debt as Refinancing Future Secured Debt.
Reference Time
shall have the meaning provided in the definition of the term Applicable
Amount.
Register
shall have the meaning provided in
Section 14.6(b)(iv).
Regulation D
shall mean Regulation D of the Board as from time to time in effect and any
successor to all or a portion thereof establishing reserve requirements.
Regulation T
shall mean Regulation T of the Board as from time to time in effect and any
successor to all or a portion thereof establishing margin requirements.
Regulation U
shall mean Regulation U of the Board as from time to time in effect and any
successor to all or a portion thereof establishing margin requirements.
Regulation X
shall mean Regulation X of the Board as from time to time in effect and any
successor to all or a portion thereof establishing margin requirements.
Reimbursement Date
shall have the meaning provided in
Section 3.4(a)
.
Related Parties
shall mean, with respect to any specified Person, such Persons Affiliates
and the directors, officers, employees, agents, trustees, advisors of such Person and any Person
that possesses, directly or indirectly, the power to direct or cause the direction of the
management or policies of such Person, whether through the ability to exercise voting power, by
contract or otherwise.
Related Person
shall have the meaning provided in
Section 9.15(a)
.
Repayment
Repaid First Lien Indebtedness
shall have the meaning provided in the
recitals hereto
definition of Ratio Refinancing Indebtedness
.
Reportable Event
shall mean an event described in Section 4043 of ERISA and the regulations
thereunder, other than any event as to which the thirty day notice period has been waived.
Reports
shall have the meaning ascribed to it in
Section 13.11(a)
.
Required Lenders
shall mean, at any date, (a) Non-Defaulting Lenders having or holding a
majority of the Adjusted Total New Revolving Credit Commitment at such date or (b) if the Total New
Revolving Credit Commitment has been terminated or for the purposes of acceleration pursuant to
Section 11
, Non-Defaulting Lenders having or holding a majority of the outstanding
principal amount of the Loans (other than Protective Advances) and Letter of Credit Exposure
(excluding the Loans and Letter of Credit Exposure of Defaulting Lenders) in the aggregate at such
date.
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Requirement of Law
shall mean, as to any Person, the certificate of incorporation and
by-laws or other organizational or governing documents of such Person, and any law, treaty, rule or
regulation or determination of an arbitrator or a court or other Governmental Authority, in each
case applicable to or binding upon such Person or any of its property or assets or to which such
Person or any of its property or assets is subject.
Reserves
shall mean all (if any) Availability Reserves and Receivables Reserves it being
understood that Reserves on the Original Closing Date were equal to $0.
Restricted Subsidiary
shall mean any Subsidiary of the Parent Borrower other than an
Unrestricted Subsidiary;
provided
that, solely for purposes of calculating any financial
definition set forth in this agreement for the Parent Borrower and its Restricted Subsidiaries on a
consolidated basis and clauses (a), (b) and (d) of
Section 9.1
, each Consolidated Person
shall be deemed to be a Restricted Subsidiary.
Retained Indebtedness
shall mean the debt securities issued under the 1993 Indenture that
are identified on
Schedule 1.1(f)
to the Original Credit Agreement.
Revolving Credit Loan
shall have the meaning provided in the Original Credit
Agreement.
S&P
shall mean Standard & Poors Ratings Services or any successor by merger or
consolidation to its business.
Sale Leaseback
shall mean any transaction or series of related transactions pursuant to
which the Parent Borrower or any of the Restricted Subsidiaries (a) sells, transfers or otherwise
disposes of any property, real or personal, whether owned as of the Original Closing Date or
thereafter acquired, and (b) as part of such transaction, thereafter rents or leases such property
or other property that it intends to use for substantially the same purpose or purposes as the
property being sold, transferred or disposed.
Scheduled Inside Payments
means, at any time, all then remaining scheduled payments of
principal with respect to any Future Secured Debt, Permitted Additional Debt or Indebtedness
incurred pursuant to Sections 10.1(j) (other than Capitalized Lease Obligations) and 10.1(k), in
each case, incurred after the Second Restatement Effective Date required to be made prior to the
Final Maturity Date (determined as of the date such Future Secured Debt, Permitted Additional Debt
or other Indebtedness is incurred); provided that any scheduled payments of principal of Ratio
Refinancing Indebtedness shall be excluded from this definition except to the extent the scheduled
payments of Indebtedness refinanced with the proceeds of such Ratio Refinancing Indebtedness were
included in Scheduled Inside Payments.
SEC
shall mean the Securities and Exchange Commission or any successor thereto.
Second Amendment Agreement
shall have the meaning set forth in the recitals hereto.
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Second Amendment Date
shall mean the date upon which the amendments hereto (as reflected
herein), provided for in Amendment No. 2, dated as of May 4, 2011 become operative in accordance
with the terms thereof.
Second Amendment and Restatement Date
shall mean May 4, 2011.
Second Restatement Effective Date
shall mean the date on which each of the conditions
set forth in Section 6 has been satisfied.
Section 9.1 Financials
shall mean the financial statements delivered, or required to be
delivered, pursuant to
Section 9.1(a)
or
(b)
together with the accompanying
officers certificate delivered, or required to be delivered, pursuant to
Section 9.1(d)
.
Secured Cash Management Agreement
shall mean any Cash Management Agreement that is entered
into by and between the Parent Borrower or any of its Subsidiaries and any Cash Management Bank.
Secured Hedge Agreement
shall mean any Hedge Agreement that is entered into by and between
the Parent Borrower or any of its Subsidiaries and any Hedge Bank.
Secured Parties
shall mean the Administrative Agent, the Collateral Agent, the Letter of
Credit Issuer, each Lender, each Hedge Bank that is party to any Secured Hedge Agreement with the
Parent Borrower or any Domestic Subsidiary, each Cash Management Bank that is party to a Secured
Cash Management Agreement with the Parent Borrower or any Domestic Subsidiary and each sub-agent
pursuant to
Section 13
appointed by the Administrative Agent with respect to matters
relating to the Credit Facilities or the Collateral Agent with respect to matters relating to any
Security Document.
Securitization
shall mean a public or private offering by a Lender or any of its Affiliates
or their respective successors and assigns of securities or notes which represent an interest in,
or which are collateralized, in whole or in part, by the Loans and the Lenders rights under the
Credit Documents.
Security Agreement
shall mean the Security Agreement dated as of November 17, 2006 entered
into by the Borrowers, any other grantors party thereto and the Collateral Agent for the benefit of
the Secured Parties, substantially in the form of
Exhibit F
to the Original Credit
Agreement, as the same may be amended, supplemented or otherwise modified from time to time.
Security Documents
shall mean, collectively, (a) the Security Agreement, (b) the
Intercreditor Agreement, (c) Government Receivables Deposit Account Agreements, (d) Blocked Account
Agreements, (e) Credit Card Notifications and (f) each other security agreement or other instrument
or document executed and delivered pursuant to
Section 9.11
or
9.14
or pursuant to
any other such Security Documents to secure all of the Obligations.
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Self-Pay Account
shall mean any Account for which a Third Party Payor is not the Account
Debtor other than Potential Medicaid Accounts and other than Accounts for which the Account Debtor
is a credit card or debit card processor.
Shared Receivables Collateral
shall have the definition set forth in the Intercreditor
Agreement.
Sold Entity or Business
shall have the meaning provided in the definition of the term
Consolidated EBITDA.
Solvent
shall mean, with respect to any Person, that as of the Original Closing Date, (a)
(i) the sum of such Persons debt (including contingent liabilities) does not exceed the
present fair saleable value of such Persons present assets; (ii) such Persons capital is not
unreasonably small in relation to its business as contemplated on the Original Closing Date; and
(iii) such Person has not incurred and does not intend to incur, or believe that it will incur,
debts including current obligations beyond its ability to pay such debts as they become due
(whether at maturity or otherwise); and (b) such Person is solvent within the meaning given that
term and similar terms under applicable laws relating to fraudulent transfers and conveyances. For
purposes of this definition, the amount of any contingent liability at any time shall be computed
as the amount that, in light of all of the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or matured liability
(irrespective of whether such contingent liabilities meet the criteria for accrual under Statement
of Financial Accounting Standard No. 5).
Specified Subsidiary
shall mean, at any date of determination (a) any Material Subsidiary or
(b) any Unrestricted Subsidiary (i) whose total assets at the last day of the Test Period ending on
the last day of the most recent fiscal period for which Section 9.1 Financials have been delivered
were equal to or greater than 6% of the consolidated total assets of the Parent Borrower and the
Subsidiaries at such date, or (ii) whose revenues during such Test Period were equal to or greater
than 6% of the consolidated revenues of the Parent Borrower and the Subsidiaries for such period,
in each case determined in accordance with GAAP, and (c) each other Unrestricted Subsidiary that is
the subject of an Event of Default under
Section 11.5
and that, when such Subsidiarys
total assets or revenues are aggregated with the total assets or revenues, as applicable, of each
other Subsidiary that is the subject of an Event of Default under
Section 11.5
, would
constitute a Specified Subsidiary under
clause (b)
above using a 10% threshold in
replacement of the 6% threshold in such
clause (b)
.
Specified Transaction
shall mean, with respect to any period, any Investment, sale, transfer
or other disposition of assets, incurrence or repayment of Indebtedness, Dividend, Subsidiary
designation, Incremental Revolving Credit Commitment or other event that by the terms of this
Agreement requires Pro Forma Compliance with a test or covenant hereunder or requires such test
or covenant to be calculated on a Pro Forma Basis.
Sponsor
shall mean any of KKR, Bain and MLGP and their respective Affiliates but excluding
portfolio companies of any of the foregoing.
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Spot Rate
for a currency shall mean the rate determined by the Administrative Agent to be
the rate quoted by the Administrative Agent as the spot rate for the purchase by the Administrative
Agent of such currency with another currency through its principal foreign exchange trading office
at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign
exchange computation is made;
provided
that the Administrative
Agent may obtain such spot rate from another financial institution designated by the
Administrative Agent if it does not have as of the date of determination a spot buying rate for any
such currency.
Stated Amount
of any Letter of Credit shall mean the maximum amount from time to time
available to be drawn thereunder, determined without regard to whether any conditions to drawing
could then be met;
provided
,
however
, that with respect to any Letter of Credit
that by its terms or the terms of any Issuer Document provides for one or more automatic increases
in the stated amount thereof, the Stated Amount shall be deemed to be the maximum stated amount of
such Letter of Credit after giving effect to all such increases, whether or not such maximum stated
amount is in effect at such time.
Status
shall mean, as to the Parent Borrower as of any date, the existence of Level I
Status, Level II Status or Level III Status, as the case may be, on such date. Changes in Status
resulting from changes in the Consolidated Total Debt to Consolidated EBITDA Ratio shall become
effective as of the first day of the calendar month immediately following each date that (a)
Section 9.1 Financials are required to be delivered to the Lenders under
Section 9.1
and
(b) an officers certificate is delivered by the Parent Borrower to the Lenders setting forth, with
respect to such Section 9.1 Financials, the then-applicable Status, and shall remain in effect
until the next change to be effected pursuant to this definition,
provided
that each
determination of the Consolidated Total Debt to Consolidated EBITDA Ratio pursuant to this
definition shall be made as of the end of the Test Period ending at the end of the fiscal period
covered by the relevant Section 9.1 Financials.
Stock
shall mean shares of capital stock or shares in the capital, as the case may be
(whether denominated as common stock or preferred stock or ordinary shares or preferred shares, as
the case may be), beneficial, partnership or membership interests, participations or other
equivalents (regardless of how designated) of or in a corporation, partnership, limited liability
company or equivalent entity, whether voting or non-voting.
Stock Equivalents
shall mean all securities convertible into or exchangeable for Stock and
all warrants, options or other rights to purchase or subscribe for any Stock, whether or not
presently convertible, exchangeable or exercisable.
Subordinated Indebtedness
shall mean Indebtedness of any Borrower that is by its terms
subordinated in right of payment to the obligations of such Borrower, under this Agreement.
Subsidiary
of any Person shall mean and include (a) any corporation more than 50% of whose
Stock of any class or classes having by the terms thereof ordinary voting power to elect a majority
of the directors of such corporation (irrespective of whether or not at the time Stock of any class
or classes of such corporation shall have or might have voting power by
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reason of the happening of
any contingency) is at the time owned by such Person directly or indirectly through Subsidiaries
and (b) any limited liability company, partnership, association, joint venture or other entity of
which such Person (i) directly or indirectly through Subsidiaries owns or controls more than 50% of
the capital accounts, distribution rights, total equity and voting interests or general or limited
partner interests and (ii) is a controlling general partner or
otherwise controls such entity at such time. Unless otherwise expressly provided, all
references herein to a Subsidiary shall mean a Subsidiary of the Parent Borrower.
Subsidiary Borrowers
shall mean (a) each Domestic Subsidiary that was a party to the
Original Credit Agreement as of the Original Closing Date, (b) each Domestic Subsidiary that became
party to the Original Credit Agreement after the Original Closing Date and prior to the
Second
Amendment and Restatement Date pursuant to
Section 9.11
of the Original Credit
Agreement and (c) each Domestic Subsidiary that becomes a party to this Agreement on or after the
Second
Amendment
and
Restatement Date pursuant to
Section 9.11
or
otherwise.
Successor Borrower
shall have the meaning provided in
Section 10.3(a)
.
Successor Parent Borrower
shall have the meaning provided in
Section 10.3(a)
.
Supermajority Lenders
shall mean, at any date, (a) Non-Defaulting Lenders having or holding
at least 75% of the Adjusted Total New Revolving Credit Commitment at such date or (b) if the Total
New Revolving Credit Commitment has been terminated, Non-Defaulting Lenders having or holding at
least 75% of the outstanding principal amount of the Loans and Letter of Credit Exposure (excluding
the Loans and Letter of Credit Exposure of Defaulting Lenders) in the aggregate at such date.
Swap Contract
shall mean (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or other similar transactions or any combination of any of the foregoing (including
any options to enter into any of the foregoing), whether or not any such transaction is governed by
or subject to any master agreement, and (b) any and all transactions of any kind, and the related
confirmations, that are subject to the terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives Association, Inc., any International
Foreign Exchange Master Agreement, or any other master agreement (any such master agreement,
together with any related schedules, a
Master Agreement
), including any such obligations or
liabilities under any Master Agreement.
Swingline Commitment
shall mean $100,000,000.
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Swingline Lender
shall mean Bank of America, in its capacity as lender of Swingline Loans
hereunder.
Swingline Loans
shall have the meaning provided in
Section 2.1(c)
.
Swingline Maturity Date
shall mean, with respect to any Swingline Loan, the date that is
five Business Days prior to the Final Maturity Date.
Syndications
shall have the meaning provided in the definition of Disqualified Equity
Interests.
Taxes
shall mean any and all present or future taxes, duties, levies, imposts, assessments,
deductions, withholdings or other similar charges imposed by any Governmental Authority whether
computed on a separate, consolidated, unitary, combined or other basis and any interest, fines,
penalties or additions to tax with respect to the foregoing.
Test Period
shall mean, for any determination under this Agreement, the four consecutive
fiscal quarters of the Parent Borrower then last ended.
Third Party Payor
shall mean any governmental entity, insurance company, health maintenance
organization, professional provider organization or similar entity that is obligated to make
payments on any Account.
Toggle Notes
shall
have the meaning set forth in the preamble hereto.
mean $1,500,000,000
aggregate original principal amount of 9
5
/
8
10
3
/
8
% senior secured toggle notes due 2016 and any PIK
Interest Amount with respect thereto.
Total New Revolving Exposure
shall mean, at any date, the Total New Revolving Credit
Commitment at such date (or, if the Total New Revolving Credit Commitment shall have terminated on
such date, the aggregate New Revolving Exposure of all Lenders at such date).
Total New Revolving Credit Commitment
shall mean the sum of the New Revolving Credit
Commitments of all the Lenders.
Transaction Expenses
shall
mean any fees or expenses incurred or paid by the Parent Borrower
or any of its Subsidiaries in connection with the Transactions, this Agreement and the other Credit
Documents (including fees and expenses related to the Amendment Agreement and the amendment and
restatement of this Agreement) and the transactions contemplated hereby and thereby
have the
meaning given such term by the Amended and Restated Credit Agreement
.
Transactions
shall
mean, collectively, the transactions contemplated by (i) this Agreement
to be made on the Amendment and Restatement Date, and (ii) the transactions contemplated by the
Original Credit Agreement, the CF Agreement, the Junior Lien Notes Indenture, the Debt Repayment,
the Merger and the Equity Investments and the intercompany transfers of the proceeds of the CF
Facilities, Junior Lien Notes and Loans made on the Original
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Closing Date.
have the meaning
given such term by the Amended and Restated Credit Agreement.
Transferee
shall have the meaning provided in
Section 14.6(e)
.
TRICARE
shall mean, collectively, a program of medical benefits covering former and active
members of the uniformed services and certain of their dependents, financed and administered by the
United States Departments of Defense, Health and Human Services and Transportation, which program
was formerly know as the Civilian Health and Medical Program
of the Uniformed Services (CHAMPUS), and all laws, rules, regulations, manuals, orders and
administrative, reimbursement and other guidelines of all Governmental Authorities promulgated in
connection with such program (whether or not having the force of law), in each case as the same may
be amended, supplemented or otherwise modified from time to time.
TRICARE Account
shall mean an Account payable pursuant to TRICARE.
Trigger Date
shall mean the day following the date on which Section 9.1 Financials are
delivered to the Lenders for the fiscal quarter ending after the First Amendment Date.
2014 Cash Pay Notes
shall have the meaning provided in the preamble to this Agreement.
2016 Cash Pay Notes
shall have the meaning provided in the preamble to this Agreement.
Type
shall mean as to any New Revolving Credit Loan, its nature as an ABR Loan or a LIBOR
Loan.
UCC
shall mean the Uniform Commercial Code of the State of New York or of any other state
the laws of which are required to be applied in connection with the perfection of security
interests in any Collateral.
UFCA
shall have the meaning provided in
Section 14.20
.
UFTA
shall have the meaning provided in
Section 14.20
.
Unfunded Current Liability
of any Plan shall mean the amount, if any, by which the
Accumulated Benefit Obligation (as defined under Statement of Financial Accounting Standards No. 87
(
SFAS 87
)) under the Plan as of the close of its most recent plan year, determined in accordance
with SFAS 87 as in effect on the Original Closing Date, exceeds the fair market value of the assets
allocable thereto.
Unpaid Drawing
shall have the meaning provided in
Section 3.4(a)
.
Unrestricted Subsidiary
shall mean (a) any Subsidiary of the Parent Borrower that is formed
or acquired after the Original Closing Date,
provided
that at such time (or
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promptly
thereafter) the Parent Borrower designates such Subsidiary an Unrestricted Subsidiary in a written
notice to the Administrative Agent, (b) any Restricted Subsidiary subsequently designated as an
Unrestricted Subsidiary by the Parent Borrower in a written notice to the Administrative Agent,
provided
that in the case of
(b)
, no Restricted Subsidiary may be designated as an
Unrestricted Subsidiary if it previously had been designated as an Unrestricted Subsidiary; and
provided
further in the case of
(a)
and
(b)
, (x) such designation shall be
deemed to be an Investment (or reduction in an outstanding Investment, in the case of a designation
of an Unrestricted Subsidiary as a Restricted Subsidiary), on the date of such designation in an
amount equal to the sum of (i) the Parent Borrowers direct or indirect equity ownership percentage
of the net worth of such designated Restricted Subsidiary immediately prior to such designation
(such net worth to be calculated without regard to any guarantee provided by such designated
Restricted Subsidiary) and (ii) without duplication, the aggregate principal amount of any
Indebtedness owed by such designated Restricted Subsidiary to the Parent Borrower or any other
Restricted Subsidiary immediately prior to such designation, all calculated, except as set forth in
the parenthetical to
clause (i)
, on a consolidated basis in accordance with GAAP and (y) no
Default or Event of Default would result from such designation after giving Pro Forma Effect
thereto and the Parent Borrower shall be in compliance with the covenant set forth in
Section
10.9
determined on a Pro Forma Basis after giving effect to such designation and (c) each
Subsidiary of an Unrestricted Subsidiary. The Parent Borrower may, by written notice to the
Administrative Agent, re-designate any Unrestricted Subsidiary as a Restricted Subsidiary, and
thereafter, such Subsidiary shall no longer constitute an Unrestricted Subsidiary, but only if no
Default or Event of Default would result from such re-designation. On or promptly after the date
of its formation, acquisition, designation or re-designation, as applicable, each Unrestricted
Subsidiary (other than an Unrestricted Subsidiary that is a Foreign Subsidiary) shall have entered
into a tax sharing agreement containing terms that, in the reasonable judgment of the
Administrative Agent, provide for an appropriate allocation of tax liabilities and benefits.
Voting Stock
shall mean, with respect to any Person, such Persons Stock or Stock
Equivalents having the right to vote for the election of directors of such Person under ordinary
circumstances.
1.2.
Other Interpretive Provisions
. With reference to this Agreement and each
other Credit Document, unless otherwise specified herein or in such other Credit Document:
(a) The meanings of defined terms are equally applicable to the singular and plural forms of
the defined terms.
(b) The words herein, hereto, hereof and hereunder and words of similar import when
used in any Credit Document shall refer to such Credit Document as a whole and not to any
particular provision thereof.
(c) Article, Section, Exhibit and Schedule references are to the Credit Document in which such
reference appears.
(d) The term including is by way of example and not limitation.
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(e) The term documents includes any and all instruments, documents, agreements,
certificates, notices, reports, financial statements and other writings, however evidenced, whether
in physical or electronic form.
(f) In the computation of periods of time from a specified date to a later specified date, the
word from means from and including; the words to and until each mean to but excluding;
and the word through means to and including.
(g) Section headings herein and in the other Credit Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any other Credit
Document.
1.3.
Accounting Terms.
(a)
All accounting terms not specifically
or completely defined herein shall be construed in conformity with, and all financial data
(including financial ratios and other financial calculations) required to be submitted pursuant to
this Agreement shall be prepared in conformity with, GAAP.
(b) Notwithstanding anything to the contrary herein, for purposes of determining compliance
with any test or covenant contained in this Agreement with respect to any period during which any
Specified Transaction occurs, the Consolidated Total Debt to Consolidated EBITDA Ratio shall be
calculated with respect to such period and such Specified Transaction on a Pro Forma Basis.
1.4.
Rounding
. Any financial ratios required to be maintained by the Parent
Borrower pursuant to this Agreement (or required to be satisfied in order for a specific action to
be permitted under this Agreement) shall be calculated by dividing the appropriate component by the
other component, carrying the result to one place more than the number of places by which such
ratio is expressed herein and rounding the result up or down to the nearest number (with a
rounding-up if there is no nearest number).
1.5.
References to Agreements, Laws, Etc
. Unless otherwise expressly
provided herein, (a) references to organizational documents, agreements (including the Credit
Documents) and other Contractual Requirements shall be deemed to include all subsequent amendments,
restatements, amendment and restatements, extensions, supplements and other modifications thereto,
but only to the extent that such amendments, restatements, amendment and restatements, extensions,
supplements and other modifications are permitted by any Credit Document; and (b) references to any
Requirement of Law shall include all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting such Requirement of Law.
1.6.
Exchange Rates
. For purposes of determining compliance under
Sections 10.4
,
10.5
and
10.6
with respect to any amount in a currency other
than Dollars (other than with respect to (x) any amount derived from the financial statements of
Holdings, the Parent Borrower or its Subsidiaries, or (y) any Indebtedness denominated in a
currency other than Dollars), such amount shall be deemed to equal the Dollar Equivalent thereof
based on the average Spot Rate for such currency other than Dollars for the most recent
twelve-month period immediately prior to the date of determination determined in a manner
consistent with that used in calculating
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Consolidated EBITDA for the related period. For purposes
of determining compliance with
Sections 10.1
,
10.2
and
10.5
, with respect
to any amount of Indebtedness denominated in a currency other than Dollars, compliance will be
determined at the time of incurrence or advancing thereof using the Dollar Equivalent thereof at
the Spot Rate in effect at the time of such incurrence or advancement.
1.7. [Reserved]
SECTION 2.
Amount and Terms of Credit.
2.1.
Commitments
.
Effect of Restatement on Loans and Letters of Credit
Under Second Amended and Restated Credit Agreement.
(a)
Subject to and upon the terms and conditions herein set forth upon the
effectiveness of this Agreement on the Second Restatement Effective Date:
(i)
each Revolving Credit Loan of each Lender under the Original Credit
Agreement shall remain outstanding under this Agreement as a Revolving Credit Loan from such
Lender to the Parent Borrower;
(ii)
each Swingline Loan under the Original Credit Agreement shall remain
outstanding under this Agreement as a Swingline Loan to the Parent Borrower;
(iii)
each Existing Letter of Credit shall continue as a Letter of Credit
under this Agreement; and
(iv)
(a) [Reserved].
each New Revolving Credit Loan of each Lender under the
Amended and Restated Credit Agreement shall remain outstanding under this Agreement as a New
Revolving Credit Loan from such Lender to the Parent Borrower.
(b) (i) Subject to and upon the terms and conditions herein set forth, each Lender having a
New Revolving Credit Commitment severally agrees to make a loan or loans denominated in Dollars
(each a
New Revolving Credit Loan
and, collectively, the
New Revolving Credit Loans
) to the
Parent Borrower on behalf of the Borrowers, which New Revolving Credit Loans (A) shall be made at
any time and from time to time
on and after the Amendment and Restatement Date and
prior to the
Final Maturity Date, (B) may, at the option of the Parent Borrower on behalf of the Borrowers be
incurred and maintained as, and/or converted into, ABR Loans or LIBOR Loans,
provided
that
all New Revolving Credit Loans made by each of the Lenders pursuant to the same Borrowing shall,
unless otherwise specifically provided herein, consist entirely of New Revolving Credit Loans of
the same Type, (C) may be repaid and reborrowed in accordance with the provisions hereof, (D) shall
not, for any Lender at any time, after giving effect thereto and to the application of the proceeds
thereof, result in such Lenders New Revolving Exposure at such time exceeding such Lenders New
Revolving Credit Commitment at such time and (E) shall not, after giving effect thereto and to the
application of the proceeds thereof, result at any time in the aggregate amount of the Lenders New
Revolving Exposures at such time exceeding the lesser of the Borrowing Base and the Total New
Revolving Credit Commitment, in each case as then in effect (subject to
Section 2.1(e)
).
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(i)
(ii)
Each Lender may at its option make any LIBOR Loan by causing any
domestic or foreign branch or Affiliate of such Lender to make such Loan,
provided
that (A) any exercise of such option shall not affect the obligation of the Borrowers to
repay such Loan and (B) in exercising such option, such Lender shall use its reasonable
efforts to minimize any increased costs to the Borrowers resulting therefrom (which
obligation of the Lender shall not require it to take, or refrain from taking, actions that
it determines would result in increased costs for which it will not be compensated hereunder
or that it determines would be otherwise disadvantageous to it and in the event of such
request for costs for which compensation is provided under this Agreement, the provisions of
Section 2.10
shall apply). On the Final Maturity Date, all New Revolving Credit
Loans shall be repaid in full.
(c) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its
individual capacity agrees, at any time and from time to time
on and after the Original Closing
Date
and prior to the Swingline Maturity Date, to make a loan or loans (each a
Swingline Loan
and, collectively, the
Swingline Loans
) to the Parent Borrower on behalf of the Borrowers, which
Swingline Loans (i) shall be ABR Loans, (ii) shall have the benefit of the provisions of
Section 2.1(d)
, (iii) shall not exceed at any time outstanding the Swingline Commitment,
(iv) shall not, after giving effect thereto and to the application of the proceeds thereof, result
at any time in the aggregate amount of the Lenders New Revolving Exposures at such time exceeding
the lesser of the Borrowing Base and the Total New Revolving Credit Commitment then in effect and
(v) may be repaid and reborrowed in accordance with the provisions hereof. Each outstanding
Swingline Loan shall be repaid in full on the earlier of (a) 15 Business Days after such Swingline
Loan is initially Borrowed and (b) the Swingline Maturity Date. The Swingline Lender shall not
make any Swingline Loan after receiving a written notice from the Parent Borrower on behalf of the
Borrowers or any Lender stating that a Default or Event of Default exists and is continuing until
such time as the Swingline Lender shall have received written notice of (i) rescission of all such
notices from the party or parties originally delivering such notice or (ii) the waiver of such
Default or Event of Default in accordance with the provisions of
Section 14.1
.
(d) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to each
New Revolving Lender that all then-outstanding Swingline Loans shall be funded with a Borrowing of
New Revolving Credit Loans, in which case New Revolving Credit Loans constituting ABR Loans (each
such Borrowing, a
Mandatory Borrowing
) shall be made on the immediately succeeding Business Day
by each New Revolving Lender
pro rata
based on each Lenders New Revolving Credit Commitment
Percentage, and the proceeds thereof shall be applied directly to the Swingline Lender to repay the
Swingline Lender for such outstanding Swingline Loans. Each New Revolving Lender hereby
irrevocably agrees to make such New Revolving Credit Loans upon one Business Days notice pursuant
to each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and
on the date specified to it in writing by the Swingline Lender notwithstanding (i) that the amount
of the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in
Section 2.2
, (ii) whether any conditions specified in
Section 7
are then satisfied,
(iii) whether a Default or an Event of Default has occurred and is continuing, (iv) the date of
such Mandatory Borrowing or (v) any reduction in the Total New Revolving Credit Commitment or the
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Borrowing Base after any such Swingline Loans were made. In the event that, in the sole judgment
of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made on the date
otherwise required above (including as a result of the commencement of a proceeding under the
Bankruptcy Code in respect of any Borrower), each New Revolving Lender hereby agrees that it shall
forthwith purchase from the Swingline Lender (without recourse or warranty) such participation of
the outstanding Swingline Loans as shall be necessary to cause the Lenders to share in such
Swingline Loans ratably based upon their respective New Revolving Credit Commitment Percentages,
provided
that all principal and interest payable on such Swingline Loans shall be for the
account of the Swingline Lender until the date the respective participation is purchased and, to
the extent attributable to the purchased participation, shall be payable to such Lender purchasing
same from and after such date of purchase.
(e) Subject to the limitations set forth below (and notwithstanding anything to the contrary
in
Section 2.1(b)(i)(E)
or in
Section 7)
the Administrative Agent is authorized by
the Parent Borrower on behalf of the Borrowers and the Lenders, from time to time in the
Administrative Agents sole discretion (but shall have absolutely no obligation), to make New
Revolving Credit Loans that are ABR Loans on behalf of all Lenders to the Parent Borrower on behalf
of the Borrowers, at any time that any condition precedent set forth in
Section 7
has not
been satisfied or waived, which the Administrative Agent, in its Permitted Discretion, deems
necessary or desirable (x) to preserve or protect the Collateral, or any portion thereof or (y) to
enhance the likelihood of, or maximize the amount of, repayment of the Loans and other Obligations
(each such loan, a
Protective Advance
). Any Protective Advance may be made in a principal amount
that would cause the aggregate amount of the Lenders New Revolving Exposures to exceed the
Borrowing Base;
provided
that no Protective Advance may be made to the extent that, after
giving effect to such Protective Advance (together with the outstanding principal amount of any
outstanding Protective Advances) the aggregate principal amount of all Protective Advances
outstanding hereunder would exceed 5% of the Borrowing Base as determined on the date of such
proposed Protective Advance;
provided
further
that the aggregate amount of
outstanding Protective Advances plus the aggregate New Revolving Exposures at such time shall not
exceed the Total New Revolving Credit Commitment as then in effect. Each Protective Advance shall
be secured by the Liens in favor of the Collateral Agent on behalf of the Secured Parties in and to
the Collateral and shall constitute Obligations hereunder. The Administrative Agents
authorization to make Protective Advances may be revoked at any time by the Required Lenders. Any
such revocation must be in writing and will become effective prospectively upon the Administrative
Agents receipt thereof. The making of a Protective Advance on any one occasion shall not obligate
the Administrative Agent to make any Protective Advance on any other occasion and under no
circumstance shall the Parent Borrower have the right to require that a Protective Advance be made.
At any time that the conditions precedent set forth in
Section 7
have been satisfied or
waived, the Administrative Agent may request the New Revolving Lenders to make a New Revolving
Credit Loan to repay a Protective Advance. At any other time, the Administrative Agent may require
the Lenders to fund their risk participations described in
Section 2.1(f)
.
(f) Upon the making of a Protective Advance by the Administrative Agent (whether before or
after the occurrence of a Default or an Event of Default), each Lender shall be deemed, without
further action by any party hereto, unconditionally and irrevocably to have
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purchased from the
Administrative Agent, without recourse or warranty, an undivided interest and participation in such
Protective Advance in proportion to its New Revolving Credit Commitment Percentage. From and after
the date, if any, on which any Lender is required to fund its participation in any Protective
Advance purchased hereunder, the Administrative Agent shall promptly distribute to such Lender,
such Lenders New Revolving Credit Commitment Percentage of all payments of principal and interest
and all proceeds of Collateral received by the Administrative Agent in respect of such Protective
Advance.
2.2.
Minimum Amount of Each Borrowing; Maximum Number of Borrowings
. The
aggregate principal amount of (i) each Borrowing of New Revolving Credit Loans shall be in a
minimum amount of at least the Minimum Borrowing Amount for such Type of Loans and in a multiple of
$1,000,000 in excess thereof and (ii) Swingline Loans shall be in a minimum amount of $500,000 and
in a multiple of $100,000 in excess thereof (except that Mandatory
Borrowings and Protective Advances shall be made in the amounts required by
Sections
2.1(d)
and
2.1(e)
, respectively, and New Revolving Credit Loans to reimburse the Letter
of Credit Issuer with respect to any Unpaid Drawing shall be made in the amounts required by
Section 3.3
or
Section 3.4
, as applicable). More than one Borrowing may be
incurred on any date, provided that at no time shall there be outstanding more than 30 Borrowings
of LIBOR Loans under this Agreement.
2.3.
Notice of Borrowing.
(a) [Reserved].
(b) Whenever any Borrower desires to incur New Revolving Credit Loans (other than Mandatory
Borrowings or borrowings to repay Unpaid Drawings), the Parent Borrower on behalf of the Borrowers
shall give the Administrative Agent at the Administrative Agents Office, (i) prior to 12:00 Noon
(New York City Time) at least three Business Days prior written notice (or telephonic notice
promptly confirmed in writing) of each Borrowing of LIBOR Loans
(or prior to 9:00 a.m. (New York
City time) two Business Days prior written notice in the case of a Borrowing of New Revolving
Credit Loans to be made on the Amendment and Restatement Date initially as LIBOR Loans) and (ii)
prior to 10
and (ii) prior to 12
:00
a.m.
Noon
(New York City time) on the date of
such Borrowing prior written notice (or telephonic notice promptly confirmed in writing) of each
Borrowing of New Revolving Credit Loans that are ABR Loans. Each such notice (together with each
notice of a Borrowing of Swingline Loans pursuant to
Section 2.3(c)
, a
Notice of
Borrowing
), except as otherwise expressly provided in
Section 2.10
, shall specify (i) the
aggregate principal amount of the New Revolving Credit Loans to be made pursuant to such Borrowing,
(ii) the date of Borrowing (which shall be a Business Day) and (iii) whether the respective
Borrowing shall consist of ABR Loans or LIBOR Loans and, if LIBOR Loans, the Interest Period to be
initially applicable thereto. The Administrative Agent shall promptly give each New Revolving
Lender written notice (or telephonic notice promptly confirmed in writing) of each proposed
Borrowing of New Revolving Credit Loans, of such Lenders New Revolving Credit Commitment
Percentage thereof and of the other matters covered by the related Notice of Borrowing.
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(c) Whenever any Borrower desires to incur Swingline Loans hereunder, the Parent Borrower on
behalf of the Borrowers shall give the Administrative Agent written notice (or telephonic notice
promptly confirmed in writing) of each Borrowing of Swingline Loans prior to 2:30 p.m. (New York
City time) on the date of such Borrowing. Each such notice shall specify (i) the aggregate
principal amount of the Swingline Loans to be made pursuant to such Borrowing and (ii) the date of
Borrowing (which shall be a Business Day). The Administrative Agent shall promptly give the
Swingline Lender written notice (or telephonic notice promptly confirmed in writing) of each
proposed Borrowing of Swingline Loans and of the other matters covered by the related Notice of
Borrowing.
(d) Mandatory Borrowings shall be made upon the notice specified in
Section 2.1(d)
,
with the Parent Borrower on behalf of the Borrowers irrevocably agreeing, by its incurrence of any
Swingline Loan, to the making of Mandatory Borrowings as set forth in such Section.
(e) Borrowings to reimburse Unpaid Drawings shall be made upon the notice specified in
Section 3.4(a)
.
(f) Without in any way limiting the obligation of any Borrower to confirm in writing any
notice it may give hereunder by telephone, the Administrative Agent may act prior to receipt of
written confirmation without liability upon the basis of such telephonic notice believed by the
Administrative Agent in good faith to be from an Authorized Officer of such Borrower.
2.4.
Disbursement of Funds
.
(a) No later than 2:00 p.m. (New York City time) on the date specified in each Notice of
Borrowing (including Mandatory Borrowings), each Lender will make available its
pro rata
portion,
if any, of each Borrowing requested to be made on such date in the manner provided below, provided
that all Swingline Loans shall be made available in the full amount thereof by the Swingline Lender
no later than 3:00 p.m. (New York City time) on the date requested.
(b) Each Lender shall make available all amounts it is to fund to the Parent Borrower on
behalf of the Borrowers under any Borrowing for its applicable Commitments, and in immediately
available funds to the Administrative Agent at the Administrative Agents Office and the
Administrative Agent will (except in the case of Mandatory Borrowings and Borrowings to repay
Unpaid Drawings) make available to the Parent Borrower on behalf of the Borrowers, by depositing to
an account designated by the Parent Borrower on behalf of the Borrowers to the Administrative Agent
the aggregate of the amounts so made available. Unless the Administrative Agent shall have been
notified by any Lender prior to the date of any such Borrowing that such Lender does not intend to
make available to the Administrative Agent its portion of the Borrowing or Borrowings to be made on
such date, the Administrative Agent may assume that such Lender has made such amount available to
the Administrative Agent on such date of Borrowing, and the Administrative Agent, in reliance upon
such assumption, may (in its sole discretion and without any obligation to do so) make available to
the Parent Borrower on behalf of the Borrowers a corresponding amount. If such corresponding
amount is not in fact made available to the Administrative Agent by such Lender and the
Administrative Agent has
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made available such amount to the Parent Borrower on behalf of the
Borrowers, the Administrative Agent shall be entitled to recover such corresponding amount from
such Lender. If such Lender does not pay such corresponding amount forthwith upon the
Administrative Agents demand therefor the Administrative Agent shall promptly notify the Borrowers
and the Borrowers shall immediately pay such corresponding amount to the Administrative Agent. The
Administrative Agent shall also be entitled to recover from such Lender or the Borrowers interest
on such corresponding amount in respect of each day from the date such corresponding amount was
made available by the Administrative Agent to the Borrowers to the date such corresponding amount
is recovered by the Administrative Agent, at a rate
per annum
equal to (i) if paid by such Lender,
the Federal Funds Effective Rate or (ii) if paid by the Borrowers, the then-applicable rate of
interest or fees, calculated in accordance with
Section 2.8
, for the respective Loans.
Nothing in this
Section 2.4
shall be deemed to relieve any Lender from its obligation to
fulfill its commitments hereunder or to prejudice any rights that any Borrower may have against any
Lender as a result of any default by such Lender hereunder (it being understood, however, that no Lender shall be responsible for the failure of any other Lender to fulfill its commitments
hereunder).
2.5.
Repayment of Loans; Evidence of Debt
.
(a) The Parent Borrower on behalf of the Borrowers shall repay to the Administrative Agent,
for the benefit of the applicable Lenders, on the Final Maturity Date, the then-outstanding New
Revolving Credit Loans made to the Borrowers. The Parent Borrower on behalf of the Borrowers shall
repay to the Administrative Agent, for the account of the Swingline Lender, on the Swingline
Maturity Date, the then-outstanding Swingline Loans.
(b) The Parent Borrower on behalf of the Borrowers shall repay to the Administrative Agent the
then unpaid amount of each Protective Advance on the Final Maturity Date.
(c) [Reserved].
(d) [Reserved].
(e) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrowers to the appropriate lending office of such Lender
resulting from each Loan made by such lending office of such Lender from time to time, including
the amounts of principal and interest payable and paid to such lending office of such Lender from
time to time under this Agreement.
(f) The Administrative Agent shall maintain the Register pursuant to
Section 14.6(b)
,
and a subaccount for each Lender, in which Register and subaccounts (taken together) shall be
recorded (i) the amount of each Loan made hereunder, whether such Loan is a New Revolving Credit
Loan, Protective Advance or Swingline Loan, as applicable, the Type of each Loan made, and the
Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or
to become due and payable from the Borrowers to each Lender or the Swingline Lender hereunder and
(iii) the amount of any sum received by the Administrative Agent hereunder from the Borrowers and
each Lenders share thereof.
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(g) The entries made in the Register and accounts and subaccounts maintained pursuant to
clauses (e)
and
(f)
of this
Section 2.5
shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the obligations of the
Borrowers therein recorded;
provided
,
however
, that the failure of any Lender or
the Administrative Agent to maintain such account, such Register or such subaccount, as applicable,
or any error therein, shall not in any manner affect the obligation of the applicable Borrower to
repay (with applicable interest) the Loans made to the Borrowers by such Lender in accordance with
the terms of this Agreement.
2.6.
Conversions and Continuations
(a) Subject to the penultimate sentence of this clause (a), the Parent Borrower on behalf of the
Borrowers shall have the option on any Business Day to convert all or a portion equal to at least
$10,000,000 of the outstanding principal amount of New Revolving Credit Loans made to the Parent
Borrower on behalf of the Borrowers of one Type into a Borrowing or Borrowings of another Type and
the Parent Borrower, on behalf of the Borrowers, shall have the option on any Business Day to
continue the outstanding principal amount of any LIBOR Loans as LIBOR Loans for an additional
Interest Period,
provided
that (i) no partial conversion of LIBOR Loans shall reduce the
outstanding principal amount of LIBOR Loans made pursuant to a single Borrowing to less than the
Minimum Borrowing Amount, (ii) ABR Loans may not be converted into LIBOR Loans if a Default or
Event of Default is in existence on the date of the conversion and the Administrative Agent has or
the Required Lenders have determined in its or their sole discretion not to permit such conversion,
(iii) LIBOR Loans may not be continued as LIBOR Loans for an additional Interest Period if a
Default or Event of Default is in existence on the date of the proposed continuation and the
Administrative Agent has or the Required Lenders have determined in its or their sole discretion
not to permit such continuation, (iv) Borrowings resulting from conversions pursuant to this
Section 2.6
shall be limited in number as provided in
Section 2.2
and (v) Swingline
Loans and Protective Advances may not be converted to LIBOR Loans under any circumstances. Each
such conversion or continuation shall be effected by the Parent Borrower by giving the
Administrative Agent at the Administrative Agents Office prior to 12:00 Noon (New York City time)
at least three Business Days (or one Business Days in the case of a conversion into ABR Loans)
prior written notice (or telephonic notice promptly confirmed in writing) (each, a
Notice of
Conversion or Continuation
) specifying the New Revolving Credit Loans to be so converted or
continued, the Type of New Revolving Credit Loans to be converted or continued and, if such New
Revolving Credit Loans are to be converted into or continued as LIBOR Loans, the Interest Period to
be initially applicable thereto. The Administrative Agent shall give each applicable Lender notice
as promptly as practicable of any such proposed conversion or continuation affecting any of its New
Revolving Credit Loans. If any Default or Event of Default is in existence at the time of any
proposed continuation of any LIBOR Loans and the Administrative Agent has or the Required Lenders
have determined in its or their sole discretion not to permit such continuation, such LIBOR Loans
shall be automatically converted on the last day of the current Interest Period into ABR Loans. If
upon the expiration of any Interest Period in respect of LIBOR Loans, the Parent Borrower has
failed to elect a new Interest Period to be applicable thereto as provided in
clause (a)
above, the Parent Borrower shall be deemed to have elected to continue such
Borrowing of LIBOR Loans into a Borrowing of ABR Loans, effective as of the expiration date of such
current Interest Period.
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2.7.
Pro Rata Borrowings
. Each Borrowing of New Revolving Credit Loans under this
Agreement shall be made by the Lenders
pro rata
on the basis of their then-applicable New Revolving
Credit Commitment Percentages. It is understood that (a) no Lender shall be responsible for any
default by any other Lender in its obligation to make Loans hereunder and that each Lender
severally but not jointly shall be obligated to make the Loans provided to be made by it hereunder,
regardless of the failure of any other Lender to fulfill its commitments hereunder and (b) other
than as expressly provided herein with respect to a Defaulting Lender, failure by a Lender to
perform any of its obligations under any of the Credit Documents shall not release any Person from
performance of its obligation under any Credit Document.
2.8.
Interest
.
(a) The unpaid principal amount of each ABR Loan shall bear interest from the date of the
Borrowing thereof until maturity thereof (whether by acceleration or otherwise) at a rate
per annum
that shall at all times be the Applicable ABR Margin plus the ABR, in each case, in effect from
time to time.
(b) The unpaid principal amount of each LIBOR Loan shall bear interest from the date of the
Borrowing thereof until maturity thereof (whether by acceleration or otherwise) at a rate
per annum
that shall at all times be the Applicable LIBOR Margin plus the relevant LIBOR Rate, in each case,
in effect from time to time.
(c) If all or a portion of (i) the principal amount of any Loan or (ii) any interest payable
thereon shall not be paid when due (whether at the stated maturity, by acceleration or otherwise),
such overdue amount shall bear interest at a rate
per annum
that is (the
Default Rate
) (x) in the
case of overdue principal, the rate that would otherwise be applicable thereto
plus
2% or
(y) in the case of any overdue interest, to the extent permitted by applicable law, the rate
described in
Section 2.8(a)
plus
2% from the date of such non-payment to the date
on which such amount is paid in full (after as well as before judgment).
(d) Interest on each Loan shall accrue from and including the date of any Borrowing to but
excluding the date of any repayment thereof and shall be payable (i) in respect of each ABR Loan,
quarterly in arrears on the last Business Day of each March, June, September and December, (ii) in
respect of each LIBOR Loan, on the last day of each Interest Period applicable thereto and, in the
case of an Interest Period in excess of three months, on each date occurring at three-month
intervals after the first day of such Interest Period, (iii) in respect of each Loan, (A) on any
prepayment (on the amount prepaid but excluding in any event prepayments of ABR Loans), (B) at
maturity (whether by acceleration or otherwise) and (C) after such maturity, on demand.
(e) All computations of interest hereunder shall be made in accordance with
Section
5.5
.
(f) The Administrative Agent, upon determining the interest rate for any Borrowing of LIBOR
Loans, shall promptly notify the Parent Borrower and the relevant Lenders thereof. Each such
determination shall, absent clearly demonstrable error, be final and conclusive and binding on all
parties hereto.
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2.9.
Interest Periods
. At the time the Parent Borrower gives a Notice of Borrowing or
Notice of Conversion or Continuation in respect of the making of, or conversion into or
continuation as, a Borrowing of LIBOR Loans in accordance with
Section 2.6(a)
, the Parent
Borrower shall have the right to elect by giving the Administrative Agent written notice (or
telephonic notice promptly confirmed in writing) the Interest Period applicable to such Borrowing,
which Interest Period shall, at the option of the Parent Borrower be a one, two, three, six or (in
the case of New Revolving Credit Loans, if available to all the Lenders making such loans as
determined by such Lenders in good faith based on prevailing market conditions) a nine or twelve
month period (or such other period of less than six months as to which the Administrative Agent may
consent).Notwithstanding anything to the contrary contained above:
(a) the initial Interest Period for any Borrowing of LIBOR Loans shall commence on the date of
such Borrowing (including the date of any conversion from a Borrowing of ABR Loans) and each
Interest Period occurring thereafter in respect of such Borrowing shall commence on the day on
which the next preceding Interest Period expires;
(b) if any Interest Period relating to a Borrowing of LIBOR Loans begins on the last Business
Day of a calendar month or begins on a day for which there is no numerically corresponding day in
the calendar month at the end of such Interest Period, such Interest Period shall end on the last
Business Day of the calendar month at the end of such Interest Period;
(c) if any Interest Period would otherwise expire on a day that is not a Business Day, such
Interest Period shall expire on the next succeeding Business Day,
provided
that if any
Interest Period in respect of a LIBOR Loan would otherwise expire on a day that is not a Business
Day but is a day of the month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day; and
(d) no Borrower shall be entitled to elect any Interest Period in respect of any LIBOR Loan if
such Interest Period would extend beyond the Final Maturity Date.
2.10.
Increased Costs, Illegality, Etc
.
(a) In the event that (x) in the case of
clause (i)
below, the Administrative Agent or
(y) in the case of
clauses (ii)
and
(iii)
below, any Lender shall have reasonably
determined (which determination shall, absent clearly demonstrable error, be final and
conclusive and binding upon all parties hereto):
(i) on any date for determining the LIBOR Rate for any Interest Period that (x) Dollar
deposits in the principal amounts of the Loans comprising such LIBOR Borrowing are not
generally available in the relevant market or (y) by reason of any changes arising on or
after the Original Closing Date affecting the interbank LIBOR market, adequate and fair
means do not exist for ascertaining the applicable interest rate on the basis provided for
in the definition of LIBOR Rate; or
(ii) at any time, that such Lender shall incur increased costs or reductions in the
amounts received or receivable hereunder with respect to any LIBOR Loans (other than any
increase or reduction attributable to Taxes) because of (x) any change since the
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Original
Closing Date in any applicable law, governmental rule, regulation, guideline or order (or in
the interpretation or administration thereof and including the introduction of any new law
or governmental rule, regulation, guideline or order), such as, for example, without
limitation, a change in official reserve requirements, and/or (y) other circumstances
affecting the interbank LIBOR market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any LIBOR Loan has become unlawful
by compliance by such Lender in good faith with any law, governmental rule, regulation,
guideline or order (or would conflict with any such governmental rule, regulation, guideline
or order not having the force of law even though the failure to comply therewith would not
be unlawful), or has become impracticable as a result of a contingency occurring after the
Original Closing Date that materially and adversely affects the interbank LIBOR market;
then, and in any such event, such Lender (or the Administrative Agent, in the case of
clause
(i)
above) shall within a reasonable time thereafter give notice (if by telephone, confirmed in
writing) to the Parent Borrower on behalf of the Borrowers and to the Administrative Agent of such
determination (which notice the Administrative Agent shall promptly transmit to each of the other
Lenders). Thereafter (x) in the case of
clause (i)
above, LIBOR Loans shall no longer be
available until such time as the Administrative Agent notifies the Parent Borrower and the Lenders
that the circumstances giving rise to such notice by the Administrative Agent no longer exist
(which notice the Administrative Agent agrees to give at such time when such circumstances no
longer exist), and any Notice of Borrowing or Notice of Conversion given by the Parent Borrower
with respect to LIBOR Loans that have not yet been incurred shall be deemed rescinded by the Parent
Borrower, (y) in the case of
clause (ii)
above, the Borrowers shall pay to such Lender,
promptly after receipt of written demand therefor such additional amounts (in the form of an
increased rate of, or a different method of calculating, interest or otherwise as such Lender in
its reasonable discretion shall determine) as shall be required to compensate such Lender for such
increased costs or reductions in amounts receivable hereunder (it being agreed that a written
notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis for
the calculation thereof, submitted to the Parent Borrower by such Lender shall, absent clearly
demonstrable error, be final and conclusive and binding upon all parties hereto) and (z) in the
case of
subclause (iii)
above, the Borrowers shall take one of the
actions specified in
Section 2.10(b)
as promptly as possible and, in any event, within the
time period required by law.
(b) At any time that any LIBOR Loan is affected by the circumstances described in
Section
2.10(a)(ii)
or
(iii)
, the Parent Borrower on behalf of the Borrowers may (and in the
case of a LIBOR Loan affected pursuant to
Section 2.10(a)(iii)
shall) either (x) if the
affected LIBOR Loan is then being made pursuant to a Borrowing, cancel such Borrowing by giving the
Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the same date
that the Parent Borrower was notified by a Lender pursuant to
Section 2.10(a)(ii)
or
(iii)
or (y) if the affected LIBOR Loan is then outstanding, upon at least three Business
Days notice to the Administrative Agent, require the affected Lender to convert each such LIBOR
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Loan into an ABR Loan,
provided
that if more than one Lender is affected at any time, then
all affected Lenders must be treated in the same manner pursuant to this
Section 2.10(b)
.
(c) If, after the Original Closing Date, any Change in Law relating to capital adequacy of any
Lender or compliance by any Lender or its parent with any Change in Law relating to capital
adequacy occurring after the Original Closing Date, has or would have the effect of reducing the
rate of return on such Lenders or its parents or its Affiliates capital or assets as a
consequence of such Lenders commitments or obligations hereunder to a level below that which such
Lender or its parent or its Affiliate could have achieved but for such Change in Law (taking into
consideration such Lenders or its parents policies with respect to capital adequacy), then from
time to time, promptly after demand by such Lender (with a copy to the Administrative Agent), the
Borrowers shall pay to such Lender such additional amount or amounts as will compensate such Lender
or its parent for such reduction, it being understood and agreed, however, that a Lender shall not
be entitled to such compensation as a result of such Lenders compliance with, or pursuant to any
request or directive to comply with, any such law, rule or regulation as in effect on the Original
Closing Date. Each Lender, upon determining in good faith that any additional amounts will be
payable pursuant to this
Section 2.10(c)
, will give prompt written notice thereof to the
Parent Borrower, which notice shall set forth in reasonable detail the basis of the calculation of
such additional amounts, although the failure to give any such notice shall not, subject to
Section 2.13
, release or diminish the Borrowers obligations to pay additional amounts
pursuant to this
Section 2.10(c)
upon receipt of such notice.
(d) It is understood that this
Section 2.10
shall not apply to (i) Taxes indemnifiable
under
Section 5.4
, (ii) net income taxes and franchise and excise taxes (imposed in lieu of
net income taxes) imposed on any Agent or Lender or (iii) Taxes included under
clause (b)
of the definition of Excluded Taxes.
2.11.
Compensation
. If (a) any payment of principal of any LIBOR Loan is made by any
Borrower to or for the account of a Lender other than on the last day of the Interest Period for
such LIBOR Loan as a result of a payment or conversion pursuant to
Section 2.5
,
2.6
,
2.10
,
5.1
,
5.2
or
14.7
, as a result of acceleration of
the maturity of the Loans pursuant to Section 11 or for any other reason, (b) any Borrowing of
LIBOR Loans is not made as a result of a withdrawn Notice of Borrowing, (c) any ABR Loan is not
converted into a LIBOR Loan as a result of a withdrawn
Notice of Conversion or Continuation, (d) any LIBOR Loan is not continued as a LIBOR Loan, as
the case may be, as a result of a withdrawn Notice of Conversion or Continuation or (e) any
prepayment of principal of any LIBOR Loan is not made as a result of a withdrawn notice of
prepayment pursuant to
Section 5.1
or
5.2
, the Borrowers shall, after the Parent
Borrowers receipt of a written request by such Lender (which request shall set forth in reasonable
detail the basis for requesting such amount), pay to the Administrative Agent for the account of
such Lender any amounts required to compensate such Lender for any additional losses, costs or
expenses that such Lender may reasonably incur as a result of such payment, failure to convert,
failure to continue or failure to prepay, including any loss, cost or expense (excluding loss of
anticipated profits) actually incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by any Lender to fund or maintain such LIBOR Loan.
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2.12.
Change of Lending Office
. Each Lender agrees that, upon the occurrence of any event
giving rise to the operation of
Section 2.10(a)(ii)
,
2.10(a)(iii)
,
2.10(b)
,
3.5
or
5.4
with respect to such Lender, it will, if requested by the Parent
Borrower use reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event,
provided
that such
designation is made on such terms that such Lender and its lending office suffer no economic, legal
or regulatory disadvantage, with the object of avoiding the consequence of the event giving rise to
the operation of any such Section. Nothing in this
Section 2.12
shall affect or postpone
any of the obligations of the Borrowers or the right of any Lender provided in
Section
2.10
,
3.5
or
5.4
.
2.13.
Notice of Certain Costs
. Notwithstanding anything in this Agreement to the contrary,
to the extent any notice required by
Section 2.10
,
2.11
,
3.5
or
5.4
is given by any Lender more than 120 days after such Lender has knowledge (or should have had
knowledge) of the occurrence of the event giving rise to the additional cost, reduction in amounts,
loss, tax or other additional amounts described in such Sections, such Lender shall not be entitled
to compensation under
Section 2.10
,
2.11
,
3.5
or
5.4
, as the case
may be, for any such amounts incurred or accruing prior to the 121st day prior to the giving of
such notice to the Parent Borrower.
2.14.
Incremental Facilities
.
(a)
The
At any time following the Second Restatement Effective Date, the
Parent Borrower on
behalf of the Borrowers may by written notice to Administrative Agent elect to request the
establishment of one or more increases in New Revolving Credit Commitments (the
Incremental
Revolving Credit Commitments
), by an aggregate amount not in excess of (when taken together with
the aggregate amount (the
Excess Amount
) of New Loan Commitments (as defined in the CF Agreement
as in
after giving
effect
on the Original Closing Date
to any exclusions thereto
)
under the CF Facility on the date such Incremental Revolving Credit Commitments become effective)
$1,500,000,000 in the aggregate and not less than
$100,000,000 individually (or such lesser amount as (x) may be approved by the Administrative
Agent or (y) shall constitute the difference between $1,500,000,000 and all such Incremental
Revolving Credit Commitments (when taken together with the Excess Amount on the date such
Incremental Revolving Credit Commitments become effective) obtained on or prior to such date).
Each such notice shall specify the date (each, an
Increased Amount Date
) on which the Parent
Borrower on behalf of the Borrowers proposes that the Incremental Revolving Credit Commitments
shall be effective, which shall be a date not less than ten Business Days after the date on which
such notice is delivered to the Administrative Agent. The Parent Borrower may approach any Lender
or any other Person (other than a natural person) to provide all or a portion of the Incremental
Revolving Credit Commitments; provided that any Lender offered or approached to provide all or a
portion of the Incremental Revolving Credit Commitments may elect or decline, in its sole
discretion, to provide a Incremental Revolving Credit Commitment. In each case, such Incremental
Revolving Credit Commitments shall become effective, as of the applicable Increased Amount Date;
provided that (i) no Default or Event of Default shall exist on such Increased Amount Date before
or after giving effect to such Incremental Revolving Credit Commitments, as applicable; (ii) both
before and after giving effect to the making of any Incremental Revolving Loans, each of the
conditions set forth in
Section 7
shall be satisfied; (iii)
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the Parent Borrower and its Restricted Subsidiaries shall be in Pro Forma Compliance with the covenant set forth in
Section
10.9
10.8
of the CF Agreement as of the last day of the most recently ended fiscal
quarter after giving effect to such Incremental Revolving Credit Commitments and any Investment to
be consummated in connection therewith; (iv) the Incremental Revolving Credit Commitments shall be
effected pursuant to one or more Joinder Agreements executed and delivered by the Borrowers and
Administrative Agent, and each of which shall be recorded in the Register and shall be subject to
the requirements set forth in
Sections 5.4(d)
and
(e)
; (v) the Parent Borrower on
behalf of the Borrowers shall make any payments required pursuant to
Section 2.11
in
connection with the Incremental Revolving Credit Commitments, as applicable; and (vi) the Parent
Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably
requested by Administrative Agent in connection with any such transaction. The Parent Borrower on
behalf of the Borrowers shall give the Administrative Agent prompt written notice of any increase
in the aggregate amount committed in respect of the CF Facility. On any Increased Amount Date on
which Incremental Revolving Loan Commitments are effected, subject to the satisfaction of the
foregoing terms and conditions, (a) each of the Lenders with New Revolving Credit Commitments shall
assign to each Lender with a Incremental Revolving Credit Commitment (each, a
Incremental
Revolving Loan Lender
) and each of the Incremental Revolving Loan Lenders shall purchase from each
of the Lenders with New Revolving Credit Commitments, at the principal amount thereof (together
with accrued interest), such interests in the New Revolving Credit Loans outstanding on such
Increased Amount Date as shall be necessary in order that, after giving effect to all such
assignments and purchases, such New Revolving Credit Loans will be held by existing New Revolving
Lenders and Incremental Revolving Loan Lenders ratably in accordance with their New Revolving
Credit Commitments after giving effect to the addition of such Incremental Revolving Credit
Commitments to the New Revolving Credit Commitments, (b) each Incremental Revolving Credit
Commitment shall be deemed for all purposes a New Revolving Credit Commitment and each Loan made
thereunder (a
Incremental Revolving Loan
) shall be deemed, for all purposes, a New Revolving
Credit Loan and (c) each Incremental Revolving
Loan Lender shall become a Lender with respect to the Incremental Revolving Loan Commitment
and all matters relating thereto.
(c) [Reserved].
(d) The terms and provisions of the Incremental Revolving Loans and Incremental Revolving
Credit Commitments shall be identical to the New Revolving Credit Loans and the New Revolving
Credit Commitments.
(e) Each Joinder Agreement may, without the consent of any other Lenders, effect such
amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in
the opinion of the Administrative Agent, to effect the provision of this
Section 2.14
.
2.15.
Reserves
. Notwithstanding anything to the contrary, the Administrative Agent may at
any time and from time to time in the exercise of its Permitted Discretion establish and increase
or decrease Reserves; provided that the Administrative Agent shall have provided the Parent
Borrower at least 3 Business Days prior written notice of any such establishment or
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increase; and provided further that the Administrative Agent may only establish or increase a Reserve after the
Original Closing Date based on an event, condition or other circumstance arising after the Original
Closing Date or based on facts not known to the Administrative Agent as of the Original Closing
Date. The amount of any Reserve established by the Administrative Agent shall have a reasonable
relationship to the event, condition, other circumstance or new fact that is the basis for the
Reserve. Upon delivery of such notice, the Administrative Agent shall be available to discuss the
proposed Reserve or increase, and the Borrowers may take such action as may be required so that the
event, condition, circumstance or new fact that is the basis for such Reserve or increase no longer
exists, in a manner and to the extent reasonably satisfactory to the Administrative Agent in the
exercise of its Permitted Discretion. In no event shall such notice and opportunity limit the
right of the Administrative Agent to establish or change such Reserve, unless the Administrative
Agent shall have determined in its Permitted Discretion that the event, condition, other
circumstance or new fact that is the basis for such new Reserve or such change no longer exists or
has otherwise been adequately addressed by the Borrowers.
SECTION 3.
Letters of Credit.
3.1.
Letters of Credit.
(a) Subject to and upon the terms and conditions herein set forth, at any time and from time
to time
after the Amendment and Restatement Date and
prior to the L/C Maturity Date, the Letter of
Credit Issuer agrees, in reliance upon the agreements of the New Revolving Lenders set forth in
this
Section 3
, to issue from time to time
from the Amendment and Restatement Date
through
the L/C Maturity Date upon the request of the Parent Borrower, and for the direct or indirect
benefit of, the Borrowers and the Restricted Subsidiaries, a letter of credit or letters of credit
(the
Letters of Credit
and each, a
Letter of Credit
) in such form
as may be approved by the Letter of Credit Issuer in its reasonable discretion; provided that
the Parent Borrower shall be a co-applicant, and jointly and severally liable with respect to, each
Letter of Credit issued for the account of a Restricted Subsidiary that is not a Borrower.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount
of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of
Credit Commitment then in effect; (ii) no Letter of Credit shall be issued the Stated Amount of
which would cause the aggregate amount of the Lenders New Revolving Exposures at such time to
exceed the lesser of the Borrowing Base and the New Revolving Credit Commitment then in effect;
(iii) each Letter of Credit shall have an expiration date occurring no later than one year after
the date of issuance thereof, unless otherwise agreed upon by the Administrative Agent and the
Letter of Credit Issuer,
provided
that in no event shall such expiration date occur later
than the L/C Maturity Date; (iv) each Letter of Credit shall be denominated in Dollars; (v) no
Letter of Credit shall be issued if it would be illegal under any applicable law for the
beneficiary of the Letter of Credit to have a Letter of Credit issued in its favor; and (vi) no
Letter of Credit shall be issued by a Letter of Credit Issuer after it has received a written
notice from any Credit Party or any Lender stating that a Default or Event of Default has occurred
and is continuing until such time as the Letter of Credit Issuer shall have received a written
notice of (x) rescission of such notice from the party or parties originally delivering such
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notice or (y) the waiver of such Default or Event of Default in accordance with the provisions of
Section 14.1
.
(c) Upon at least one Business Days prior written notice (or telephonic notice promptly
confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which notice the
Administrative Agent shall promptly transmit to each of the applicable Lenders), the Parent
Borrower on behalf of the Borrowers shall have the right, on any day, permanently to terminate or
reduce the Letter of Credit Commitment in whole or in part,
provided
that, after giving
effect to such termination or reduction, the Letters of Credit Outstanding shall not exceed the
Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of
Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter
of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive
(whether or not having the force of law) from any Governmental Authority with jurisdiction
over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer
refrain from, the issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of
Credit any restriction, reserve or capital requirement (for which the Letter of Credit
Issuer is not otherwise compensated hereunder) not in effect on the Original Closing Date,
or shall impose upon the Letter of Credit Issuer any unreimbursed loss, cost or expense
which was not applicable on the Original Closing Date and which the Letter of Credit Issuer
in good faith deems material to it;
(ii) the issuance of such Letter of Credit would violate one or more policies of the
Letter of Credit Issuer applicable to letters of credit generally;
(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit
Issuer, such Letter of Credit is in an initial Stated Amount less than $100,000, in the case
of a commercial Letter of Credit, or $10,000, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is to be denominated in a currency other than Dollars;
(v) such Letter of Credit contains any provisions for automatic reinstatement of the
Stated Amount after any drawing thereunder; or
(vi) a default of any New Revolving Lenders obligations to fund under
Section
3.3
exists or any New Revolving Lender is at such time a Defaulting Lender hereunder,
unless, in each case, the Letter of Credit Issuer has entered into satisfactory
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arrangements with the Parent Borrower or such New Revolving Lender to eliminate the Letter of Credit
Issuers risk with respect to such New Revolving Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit
Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under
the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if
(A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of
Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit
does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the New Revolving Lenders with respect
to any Letters of Credit issued by it and the documents associated therewith, and the Letter of
Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative
Agent in
Section 13
with respect to any acts taken or omissions suffered by the Letter of
Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and
Issuer Documents pertaining to such Letters of Credit as fully as if the term Administrative
Agent as used in
Section 13
included the Letter of Credit Issuer with respect to such acts
or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
3.2.
Letter of Credit Requests
.
(a) Whenever any Borrower desires that a Letter of Credit be issued for its account or
amended, the Parent Borrower on behalf of such Borrower shall give the Administrative Agent and the
Letter of Credit Issuer a Letter of Credit Request by no later than 11:00 a.m. (New York City time)
at least two (or such lesser number as may be agreed upon by the Administrative Agent and the
Letter of Credit Issuer) Business Days prior to the proposed
date of issuance or amendment. Each notice shall be executed by the Parent Borrower and shall
be in the form of
Exhibit
G
A
to
the Original Credit
this
Agreement (each a
Letter of Credit Request
).
(b) In the case of a request for an initial issuance of a Letter of Credit, such Letter of
Credit Request shall specify in form and detail satisfactory to the Letter of Credit Issuer: (A)
the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B)
the Stated Amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary
thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder;
(F) the full text of any certificate to be presented by such beneficiary in case of any drawing
thereunder; and (G) such other matters as the Letter of Credit Issuer may reasonably require. In
the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit
Request shall specify in form and detail satisfactory to the Letter of Credit Issuer (A) the Letter
of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business
Day); (C) the nature of the proposed amendment; and (D) such other matters as the Letter of Credit
Issuer may reasonably require. Additionally, the Parent Borrower shall furnish to the Letter of
Credit Issuer and the Administrative Agent such other documents and information pertaining to such
requested Letter of Credit issuance or amendment,
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including any Issuer Documents, as the Letter of Credit Issuer or the Administrative Agent may require.
(c) Promptly after receipt of any Letter of Credit Request, the Letter of Credit Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent
has received a copy of such Letter of Credit Request from the Parent Borrower on behalf of the
applicable Borrower and, if not, the Letter of Credit Issuer will provide the Administrative Agent
with a copy thereof. Unless the Letter of Credit Issuer has received written notice from any New
Revolving Lender, the Administrative Agent or any Credit Party, at least one Business Day prior to
the requested date of issuance or amendment of the applicable Letter of Credit, that one or more
applicable conditions contained in
Sections 6
and
7
shall not then be satisfied,
then, subject to the terms and conditions hereof, the Letter of Credit Issuer shall, on the
requested date, issue a Letter of Credit for the account of the applicable Borrower (or the
applicable Restricted Subsidiary) or enter into the applicable amendment, as the case may be, in
each case in accordance with the Letter of Credit Issuers usual and customary business practices.
(d) If the Parent Borrower on behalf of any Borrower so requests in any applicable Letter of
Credit Request, the Letter of Credit Issuer may, in its sole and absolute discretion, agree to
issue a Letter of Credit that has automatic extension provisions (each, an
Auto-Extension Letter
of Credit
);
provided
that any such Auto-Extension Letter of Credit must permit the Letter
of Credit Issuer to prevent any such extension at least once in each twelve-month period
(commencing with the date of issuance of such Letter of Credit) by giving prior notice to the
beneficiary thereof not later than a day (the
Non-Extension Notice Date
) in each such
twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless
otherwise directed by the Letter of Credit Issuer, the Parent Borrower shall not be required to
make a specific request to the Letter of Credit Issuer for any such extension. Once an
Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized
(but may not require) the Letter of Credit Issuer to permit the extension of such Letter of Credit
at any time to an expiry date not later than the L/C Maturity Date;
provided
,
however
, that the Letter of Credit Issuer shall not permit any such extension if (A) the
Letter of Credit Issuer has determined that it would not be permitted, or would have no obligation,
at such time to issue such Letter of Credit in its revised form (as extended) under the terms
hereof (by reason of the provisions of
clause (b)
or
(e)
of
Section 3.1
or
otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before
the day that is five Business Days before the Non-Extension Notice Date (1) from the Administrative
Agent that the Required Lenders have elected not to permit such extension or (2) from the
Administrative Agent, any Lender or the Parent Borrower that one or more of the applicable
conditions specified in
Sections 6
and
7
are not then satisfied, and in each such
case directing the Letter of Credit Issuer not to permit such extension.
(e) If the Parent Borrower on behalf of any Borrower so requests in any applicable Letter of
Credit Request, the Letter of Credit Issuer may, in its sole and absolute discretion, agree to
issue a Letter of Credit that permits the automatic reinstatement of all or a portion of the stated
amount thereof after any drawing thereunder (each, an
Auto-Reinstatement Letter of Credit
).
Unless otherwise directed by the Letter of Credit Issuer, the
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Parent Borrower shall not be required to make a specific request to the Letter of Credit Issuer to permit such reinstatement. Once an
Auto-Reinstatement Letter of Credit has been issued, except as provided in the following sentence,
the Lenders shall be deemed to have authorized (but may not require) the Letter of Credit Issuer to
reinstate all or a portion of the stated amount thereof in accordance with the provisions of such
Letter of Credit. Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit
permits the Letter of Credit Issuer to decline to reinstate all or any portion of the stated amount
thereof after a drawing thereunder by giving notice of such non-reinstatement within a specified
number of days after such drawing (the
Non-Reinstatement Deadline
), the Letter of Credit Issuer
shall not permit such reinstatement if it has received a notice (which may be by telephone or in
writing) on or before the day that is five Business Days before the Non-Reinstatement Deadline (A)
from the Administrative Agent that the Required Lenders have elected not to permit such
reinstatement or (B) from the Administrative Agent, any Lender or the Parent Borrower that one or
more of the applicable conditions specified in
Sections 6
and
7
are not then
satisfied (treating such reinstatement as the issuance of a Letter of Credit for purposes of this
clause) and, in each case, directing the Letter of Credit Issuer not to permit such reinstatement.
(f) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit
to an advising bank with respect thereto or to the beneficiary thereof, the Letter of Credit Issuer
will also deliver to the Parent Borrower and the Administrative Agent a true and complete copy of
such Letter of Credit or amendment. On the last Business Day of each March, June, September and
December, each Letter of Credit Issuer shall provide the Administrative Agent a list of all Letters
of Credit issued by it that are outstanding at such time.
(g) The making of each Letter of Credit Request shall be deemed to be a representation and
warranty by the applicable Borrower that the Letter of Credit may be issued in accordance with, and
will not violate the requirements of,
Section 3.1(b)
.
3.3.
Letter of Credit Participations
.
(a) Immediately upon the issuance by the Letter of Credit Issuer of any Letter of Credit, the
Letter of Credit Issuer shall be deemed to have sold and transferred to each New Revolving Lender
(each such New Revolving Lender, in its capacity under this
Section 3.3
, an
L/C
Participant
), and each such L/C Participant shall be deemed irrevocably and unconditionally to
have purchased and received from the Letter of Credit Issuer, without recourse or warranty, an
undivided interest and participation (each an
L/C Participation
), to the extent of such L/C
Participants New Revolving Credit Commitment Percentage, in each Letter of Credit, each substitute
therefor, each drawing made thereunder and the obligations of the Borrowers under this Agreement
with respect thereto, and any security therefor or guaranty pertaining thereto; provided that the
Letter of Credit Fees will be paid directly to the Administrative Agent for the ratable account of
the L/C Participants as provided in
Section 4.1(b)
and the L/C Participants shall have no
right to receive any portion of any Fronting Fees.
(b) In determining whether to pay under any Letter of Credit, the relevant Letter of Credit
Issuer shall have no obligation relative to the L/C Participants other than to confirm that any
documents required to be delivered under such Letter of Credit have been
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delivered and that they appear to comply on their face with the requirements of such Letter of Credit. Any action taken or
omitted to be taken by the relevant Letter of Credit Issuer under or in connection with any Letter
of Credit issued by it, if taken or omitted in the absence of gross negligence or willful
misconduct, shall not create for the Letter of Credit Issuer any resulting liability.
(c) In the event that the Letter of Credit Issuer makes any payment under any Letter of Credit
issued by it and the Borrowers shall not have repaid such amount in full to the respective Letter
of Credit Issuer pursuant to
Section 3.4(a)
, the Letter of Credit Issuer shall promptly
notify the Administrative Agent and each L/C Participant of such failure, and each such L/C
Participant shall promptly and unconditionally pay to the Administrative Agent for the account of
the Letter of Credit Issuer, the amount of such L/C Participants New Revolving Credit Commitment
Percentage of such unreimbursed payment in Dollars and in immediately available funds;
provided
,
however
, that no L/C Participant shall be obligated to pay to the
Administrative Agent for the account of the Letter of Credit Issuer its New Revolving Credit
Commitment Percentage of such unreimbursed amount arising from any wrongful payment made by the
Letter of Credit Issuer under any such Letter of Credit as a result of acts or omissions
constituting willful misconduct or gross negligence on the part of the Letter of Credit Issuer. If
the Letter of Credit Issuer so notifies, prior to 11:00 a.m. (New York City time) on any Business
Day, any L/C Participant required to fund a payment under a Letter of Credit, such L/C Participant
shall make available to the Administrative Agent for the account of the Letter of Credit Issuer
such L/C Participants New Revolving Credit Commitment Percentage of the amount of such payment no
later than 1:00 p.m. (New York City time) on such Business Day in immediately available funds. If
and to the extent such L/C Participant shall not have so made its New Revolving Credit Commitment
Percentage of the amount of such payment available to the Administrative Agent for the account of
the Letter of Credit Issuer, such L/C Participant agrees to pay to the Administrative Agent for the
account of the Letter of Credit Issuer, forthwith on demand, such amount, together with interest
thereon for each day from such date until the date such amount is paid to the Administrative Agent
for the account of the Letter of Credit Issuer at a
rate per annum equal to the Overnight Rate from time to time then in effect, plus any
administrative, processing or similar fees customarily charged by the Letter of Credit Issuer in
connection with the foregoing. The failure of any L/C Participant to make available to the
Administrative Agent for the account of the Letter of Credit Issuer its New Revolving Credit
Commitment Percentage of any payment under any Letter of Credit shall not relieve any other L/C
Participant of its obligation hereunder to make available to the Administrative Agent for the
account of the Letter of Credit Issuer its New Revolving Credit Commitment Percentage of any
payment under such Letter of Credit on the date required, as specified above, but no L/C
Participant shall be responsible for the failure of any other L/C Participant to make available to
the Administrative Agent such other L/C Participants New Revolving Credit Commitment Percentage of
any such payment.
(d) Whenever the Letter of Credit Issuer receives a payment in respect of an unpaid
reimbursement obligation as to which the Administrative Agent has received for the account of the
Letter of Credit Issuer any payments from the L/C Participants pursuant to
clause (c)
above, the Letter of Credit Issuer shall pay to the Administrative Agent and the Administrative
Agent shall promptly pay to each L/C Participant that has paid its New Revolving
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Credit Commitment
Percentage of such reimbursement obligation, in Dollars and in immediately available funds, an
amount equal to such L/C Participants share (based upon the proportionate aggregate amount
originally funded by such L/C Participant to the aggregate amount funded by all L/C Participants)
of the principal amount so paid in respect of such reimbursement obligation and interest thereon
accruing after the purchase of the respective L/C Participations at the Overnight Rate.
(e) The obligations of the L/C Participants to make payments to the Administrative Agent for
the account of a Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and
not subject to counterclaim, set-off or other defense or any other qualification or exception
whatsoever and shall be made in accordance with the terms and conditions of this Agreement under
all circumstances, including under any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit
Documents;
(ii) the existence of any claim, set-off, defense or other right that a Borrower may
have at any time against a beneficiary named in a Letter of Credit, any transferee of any
Letter of Credit (or any Person for whom any such transferee may be acting), the
Administrative Agent, the Letter of Credit Issuer, any Lender or other Person, whether in
connection with this Agreement, any Letter of Credit, the transactions contemplated herein
or any unrelated transactions (including any underlying transaction between a Borrower and
the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of
any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default;
provided
,
however
, that no L/C Participant shall be obligated to pay to the
Administrative Agent for the account of the Letter of Credit Issuer its New Revolving Credit
Commitment Percentage of any unreimbursed amount arising from any wrongful payment made by the
Letter of Credit Issuer under a Letter of Credit as a result of acts or omissions constituting
willful misconduct or gross negligence on the part of the Letter of Credit Issuer.
3.4.
Agreement to Repay Letter of Credit Drawings
.
(a) The Borrowers hereby agree to reimburse the Letter of Credit Issuer, by making payment in
Dollars to the Administrative Agent in immediately available funds for any payment or disbursement
made by the Letter of Credit Issuer under any Letter of Credit (each such amount so paid until
reimbursed, an
Unpaid Drawing
) no later than the date that is one Business Day after the date on
which the Parent Borrower receives notice of such payment or
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disbursement (the
Reimbursement
Date
), with interest on the amount so paid or disbursed by the Letter of Credit Issuer, to the
extent not reimbursed prior to 5:00 p.m. (New York City time) on the Reimbursement Date, from the
Reimbursement Date to the date the Letter of Credit Issuer is reimbursed therefor at a rate
per
annum
that shall at all times be the Applicable ABR Margin plus the ABR as in effect from time to
time,
provided
that, notwithstanding anything contained in this Agreement to the contrary,
(i) unless the Parent Borrower shall have notified the Administrative Agent and the relevant Letter
of Credit Issuer prior to 12:00 noon (New York City time) on the Reimbursement Date that the Parent
Borrower on behalf of the Borrowers intends to reimburse the relevant Letter of Credit Issuer for
the amount of such drawing with funds other than the proceeds of Loans, the Parent Borrower on
behalf of the Borrowers shall be deemed to have given a Notice of Borrowing requesting that, with
respect to Letters of Credit, the Lenders with New Revolving Credit Commitments make New Revolving
Credit Loans (which shall be ABR Loans) on the Reimbursement Date in the amount of such drawing and
(ii) the Administrative Agent shall promptly notify each relevant L/C Participant of such drawing
and the amount of its New Revolving Credit Loan to be made in respect thereof, and each L/C
Participant shall be irrevocably obligated to make a New Revolving Credit Loan to the Parent
Borrower on behalf of the Borrowers in the manner deemed to have been requested in the amount of
its New Revolving Credit Commitment Percentage of the applicable Unpaid Drawing by 2:00 p.m. (New
York City time) on such Reimbursement Date by making the amount of such New Revolving Credit Loan
available to the Administrative Agent. Such New Revolving Credit Loans shall be made without
regard to the Minimum Borrowing Amount. The Administrative Agent shall use the proceeds of such
New Revolving Credit Loans solely for purpose of reimbursing the Letter of Credit Issuer for the
related Unpaid Drawing. In the event that the Parent Borrower fails to Cash Collateralize any
Letter of Credit that is outstanding on the Final Maturity Date, the full amount of the Letters of
Credit Outstanding in respect of such Letter of Credit shall be deemed to be an Unpaid Drawing
subject to the provisions of this
Section 3.4
except that the Letter of Credit Issuer shall
hold the proceeds received from the L/C Participants
as contemplated above as cash collateral for such Letter of Credit to reimburse any Drawing
under such Letter of Credit and shall use such proceeds first, to reimburse itself for any Drawings
made in respect of such Letter of Credit following the L/C Maturity Date, second, to the extent
such Letter of Credit expires or is returned undrawn while any such cash collateral remains, to the
repayment of obligations in respect of any New Revolving Credit Loans that have not paid at such
time and third, to the Parent Borrower or as otherwise directed by a court of competent
jurisdiction. Nothing in this
Section 3.4(a)
shall affect the Parent Borrowers obligation
to repay all outstanding New Revolving Credit Loans when due in accordance with the terms of this
Agreement.
(b) The obligations of the Borrowers under this
Section 3.4
to reimburse the Letter of
Credit Issuer with respect to Unpaid Drawings (including, in each case, interest thereon) shall be
absolute and unconditional under any and all circumstances and irrespective of any set-off,
counterclaim or defense to payment that any Borrower or any other Person may have or have had
against the Letter of Credit Issuer, the Administrative Agent or any Lender (including in its
capacity as an L/C Participant), including any defense based upon the failure of any drawing under
a Letter of Credit (each a
Drawing
) to conform to the terms of the Letter of Credit or any
non-application or misapplication by the beneficiary of the proceeds of such Drawing,
provided
that the Borrowers shall not be obligated to reimburse the Letter of Credit
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Issuer for any wrongful payment made by the Letter of Credit Issuer under the Letter of Credit issued by
it as a result of acts or omissions constituting willful misconduct or gross negligence on the part
of the Letter of Credit Issuer.
3.5.
Increased Costs
.
If after the Original Closing Date, the adoption of any applicable law, rule or regulation, or
any change therein, or any change in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or actual compliance by the Letter of Credit Issuer or any L/C Participant
with any request or directive made or adopted after the Original Closing Date (whether or not
having the force of law), by any such authority, central bank or comparable agency shall either (a)
impose, modify or make applicable any reserve, deposit, capital adequacy or similar requirement
against letters of credit issued by the Letter of Credit Issuer, or any L/C Participants L/C
Participation therein, or (b) impose on the Letter of Credit Issuer or any L/C Participant any
other conditions affecting its obligations under this Agreement in respect of Letters of Credit or
L/C Participations therein or any Letter of Credit or such L/C Participants L/C Participation
therein, and the result of any of the foregoing is to increase the cost to the Letter of Credit
Issuer or such L/C Participant of issuing, maintaining or participating in any Letter of Credit, or
to reduce the amount of any sum received or receivable by the Letter of Credit Issuer or such L/C
Participant hereunder (other than any such increase or reduction attributable to (i) taxes
indemnified under
Section 5.4
, (ii) net income taxes and franchise and excise taxes
(imposed in lieu of net income taxes) imposed on any Agent or Lender and, to the extent not
duplicative, any Taxes imposed on any Agent or Lender where that Tax is imposed upon or calculated
by reference to the net income received or receivable (but not any sum deemed to be received or
receivable) by such Agent or Lender or (iii) Taxes included under
clause (b)
of the definition of Excluded Taxes) in respect of Letters of Credit or
L/C Participations therein, then, promptly after receipt of written demand to the Parent Borrower
by the Letter of Credit Issuer or such L/C Participant, as the case may be (a copy of which notice
shall be sent by the Letter of Credit Issuer or such L/C Participant to the Administrative Agent),
the Borrowers shall pay to the Letter of Credit Issuer or such L/C Participant such additional
amount or amounts as will compensate the Letter of Credit Issuer or such L/C Participant for such
increased cost or reduction, it being understood and agreed, however, that the Letter of Credit
Issuer or an L/C Participant shall not be entitled to such compensation as a result of such
Persons compliance with, or pursuant to any request or directive to comply with, any such law,
rule or regulation as in effect on the Original Closing Date. A certificate submitted to the
Parent Borrower by the relevant Letter of Credit Issuer or an L/C Participant, as the case may be
(a copy of which certificate shall be sent by the Letter of Credit Issuer or such L/C Participant
to the Administrative Agent), setting forth in reasonable detail the basis for the determination of
such additional amount or amounts necessary to compensate the Letter of Credit Issuer or such L/C
Participant as aforesaid shall be conclusive and binding on the Borrowers absent clearly
demonstrable error.
3.6.
New or Successor Letter of Credit Issuer
.
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(a) The Letter of Credit Issuer may resign as a Letter of Credit Issuer upon 60 days prior
written notice to the Administrative Agent, the Lenders and the Parent Borrower. The Parent
Borrower may replace the Letter of Credit Issuer for any reason upon written notice to the
Administrative Agent and the Letter of Credit Issuer. The Parent Borrower may add Letter of Credit
Issuers at any time upon notice to the Administrative Agent. If the Letter of Credit Issuer shall
resign or be replaced, or if the Parent Borrower shall decide to add a new Letter of Credit Issuer
under this Agreement, then the Parent Borrower may appoint from among the Lenders a successor
issuer of Letters of Credit or a new Letter of Credit Issuer, as the case may be, or, with the
consent of the Administrative Agent (such consent not to be unreasonably withheld), another
successor or new issuer of Letters of Credit, whereupon such successor issuer shall succeed to the
rights, powers and duties of the replaced or resigning Letter of Credit Issuer under this Agreement
and the other Credit Documents, or such new issuer of Letters of Credit shall be granted the
rights, powers and duties of a Letter of Credit Issuer hereunder, and the term Letter of Credit
Issuer shall mean such successor or such new issuer of Letters of Credit effective upon such
appointment. At the time such resignation or replacement shall become effective, the Parent
Borrower, on behalf of the Borrowers, shall pay to the resigning or replaced Letter of Credit
Issuer all accrued and unpaid fees pursuant to
Sections 4.1(c)
and
4.1(d)
. The
acceptance of any appointment as a Letter of Credit Issuer hereunder whether as a successor issuer
or new issuer of Letters of Credit in accordance with this Agreement, shall be evidenced by an
agreement entered into by such new or successor issuer of Letters of Credit, in a form satisfactory
to the Parent Borrower and the Administrative Agent and, from and after the effective date of such
agreement, such new or successor issuer of Letters of Credit shall become a Letter of Credit
Issuer hereunder. After the resignation or replacement of a Letter of Credit Issuer hereunder,
the resigning or replaced Letter of Credit Issuer shall remain a party hereto and shall continue to
have all the rights and obligations of a Letter of Credit Issuer under this Agreement and the other
Credit Documents with respect to Letters of Credit issued by it prior to
such resignation or replacement, but shall not be required to issue additional Letters of
Credit. In connection with any resignation or replacement pursuant to this
clause (a)
(but, in case of any such resignation, only to the extent that a successor issuer of Letters of
Credit shall have been appointed), either (i) the Parent Borrower, the resigning or replaced Letter
of Credit Issuer and the successor issuer of Letters of Credit shall arrange to have any
outstanding Letters of Credit issued by the resigning or replaced Letter of Credit Issuer replaced
with Letters of Credit issued by the successor issuer of Letters of Credit or (ii) the Parent
Borrower shall cause the successor issuer of Letters of Credit, if such successor issuer is
reasonably satisfactory to the replaced or resigning Letter of Credit Issuer, to issue back-stop
Letters of Credit naming the resigning or replaced Letter of Credit Issuer as beneficiary for each
outstanding Letter of Credit issued by the resigning or replaced Letter of Credit Issuer, which new
Letters of Credit shall have a face amount equal to the Letters of Credit being back-stopped and
the sole requirement for drawing on such new Letters of Credit shall be a drawing on the
corresponding back-stopped Letters of Credit. After any resigning or replaced Letter of Credit
Issuers resignation or replacement as Letter of Credit Issuer,
the provisions of this Agreement
relating to a Letter of Credit Issuer shall inure to its benefit as to any actions taken or omitted
to be taken by it (A) while it was a Letter of Credit Issuer under this Agreement or (B) at any
time with respect to Letters of Credit issued by such Letter of Credit Issuer.
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(b) To the extent that there are, at the time of any resignation or replacement as set forth
in
clause (a)
above, any outstanding Letters of Credit, nothing herein shall be deemed to
impact or impair any rights and obligations of any of the parties hereto with respect to such
outstanding Letters of Credit (including, without limitation, any obligations related to the
payment of Fees or the reimbursement or funding of amounts drawn), except that the Parent Borrower,
the resigning or replaced Letter of Credit Issuer and the successor issuer of Letters of Credit
shall have the obligations regarding outstanding Letters of Credit described in
clause (a)
above.
3.7.
Role of Letter of Credit Issuer
. Each Lender and the Parent Borrower
agree that, in paying any drawing under a Letter of Credit, the Letter of Credit Issuer shall not
have any responsibility to obtain any document (other than any sight draft, certificates and
documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity
or accuracy of any such document or the authority of the Person executing or delivering any such
document. None of the Letter of Credit Issuer, the Administrative Agent, any of their respective
affiliates nor any correspondent, participant or assignee of the Letter of Credit Issuer shall be
liable to any Lender for (i) any action taken or omitted in connection herewith at the request or
with the approval of the Required Lenders; (ii) any action taken or omitted in the absence of gross
negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or Issuer Document.
The Borrowers hereby assume all risks of the acts or omissions of any beneficiary or transferee
with respect to its use of any Letter of Credit; provided that this assumption is not intended to,
and shall not, preclude the
Borrowers pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the Letter of Credit Issuer, the
Administrative Agent, any of their respective affiliates nor any correspondent, participant or
assignee of the Letter of Credit Issuer shall be liable or responsible for any of the matters
described in
Section 3.3(e)
;
provided
that anything in such Section to the contrary
notwithstanding, the Borrowers may have a claim against the Letter of Credit Issuer, and the Letter
of Credit Issuer may be liable to the Borrowers, to the extent, but only to the extent, of any
direct, as opposed to consequential or exemplary, damages suffered by the any Borrower which any
Borrower proves were caused by the Letter of Credit Issuers willful misconduct or gross negligence
or the Letter of Credit Issuers willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with
the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the
foregoing, the Letter of Credit Issuer may accept documents that appear on their face to be in
order, without responsibility for further investigation, regardless of any notice or information to
the contrary, and the Letter of Credit Issuer shall not be responsible for the validity or
sufficiency of any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason.
3.8.
Cash Collateral
.
(a) Upon the request of the Administrative Agent, (A) if the Letter of Credit Issuer has
honored any full or partial drawing request under any Letter of Credit and such drawing has
resulted in an L/C Borrowing, or (B) if, as of the L/C Maturity Date, there are any
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Letters of
Credit Outstanding, the Parent Borrower, on behalf of the Borrowers, shall, in each case,
immediately Cash Collateralize the then Letters of Credit Outstanding.
(b) The Administrative Agent may, at any time and from time to time after the initial deposit
of Cash Collateral, request that additional Cash Collateral be provided in order to protect against
the results of exchange rate fluctuations.
(c) If any Event of Default shall occur and be continuing, the Administrative Agent or New
Revolving Lenders with Letter of Credit Exposure representing greater than 50% of the total Letter
of Credit Exposure may require that the L/C Obligations be Cash Collateralized.
(d) For purposes of this
Section 3.8
,
Cash Collateralize
means to pledge and deposit
with or deliver to the Administrative Agent, for the benefit of the Letter of Credit Issuer and the
Lenders, as collateral for the applicable L/C Obligations, cash or deposit account balances in an
amount equal to the amount of the Letters of Credit Outstanding required to be Cash Collateralized
pursuant to documentation in form and substance satisfactory to the Administrative Agent and the
Letter of Credit Issuer (which documents are hereby consented to by the Lenders). Derivatives of
such term have corresponding meanings. The Parent Borrower
hereby grants to the Administrative Agent, for the benefit of the Letter of Credit Issuer and
the L/C Participants, a security interest in all such cash, deposit accounts and all balances
therein and all proceeds of the foregoing. Cash Collateral shall be maintained in blocked,
non-interest bearing deposit accounts with the Administrative Agent.
3.9.
Applicability of ISP and UCP
. Unless otherwise expressly agreed by the
Letter of Credit Issuer and the Parent Borrower when a Letter of Credit is issued, (i) the rules of
the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the Uniform Customs and
Practice for Documentary Credits, as most recently published by the International Chamber of
Commerce at the time of issuance, shall apply to each commercial Letter of Credit.
3.10.
Conflict with Issuer Documents
. In the event of any conflict between
the terms hereof and the terms of any Issuer Document, the terms hereof shall control.
3.11.
Letters of Credit Issued for Restricted Subsidiaries
. Notwithstanding
that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is
for the account of, a Restricted Subsidiary that is not a Borrower, the Parent Borrower shall be
obligated to reimburse the Letter of Credit Issuer hereunder for any and all drawings under such
Letter of Credit. The Parent Borrower hereby acknowledges that the issuance of Letters of Credit
for the account of Restricted Subsidiaries that are not Borrowers inures to the benefit of the
Parent Borrower, and that the Parent Borrowers business derives substantial benefits from the
businesses of such Restricted Subsidiaries.
SECTION 4.
Fees; Commitments
4.1.
Fees.
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(a) The Borrowers agree to pay to the Administrative Agent in Dollars, for the account of each
New Revolving Lender (in each case
pro rata
according to the respective New Revolving Credit
Commitments of all such Lenders), a commitment fee (the
Commitment Fee
) for each day from the
Amendment and Restatement Date
most recent date such fees were paid under the Amended and
Restated Credit Agreement (or if such fees have not been paid under the Amended and Restated Credit
Agreement, from the most recent date fees have been paid with respect to such Commitments became effective)
to the New Revolving
Termination Date. Each Commitment Fee shall be payable by the Parent Borrower on behalf of the
Borrowers (x) quarterly in arrears on the last Business Day of each March, June, September and
December (for the three-month period (or portion thereof) ended on such day for which no payment
has been received) and (y) on the New Revolving Termination Date (for the period ended on such date
for which no payment has been received pursuant to clause (x) above), and shall be computed for
each day during such period at a rate
per annum
equal to the Commitment Fee Rate in effect on such
day on the Available Commitment in effect on such day.
(b) The Borrowers agree to pay to the Administrative Agent in Dollars for the account of the
Lenders
pro rata
on the basis of their respective Letter of Credit Exposure, a fee in respect of
each Letter of Credit (the
Letter of Credit Fee
), for the period from the date of issuance of
such Letter of Credit
(or the most recent date from which such fee was paid under the Amended
and Restated Credit Agreement)
to the termination date of such Letter of Credit computed at the
per annum
rate for each day equal to the Applicable LIBOR Margin for New Revolving Credit Loans
minus 0.125%
per annum
on the average daily Stated Amount of such Letter of Credit. Such Letter of
Credit Fees shall be due and payable (x) quarterly in arrears on the last Business Day of each
March, June, September and December and (y) on the date upon which the Total New Revolving Credit
Commitment terminates and the Letters of Credit Outstanding shall have been reduced to zero.
(c) The Borrowers agree to pay to each Letter of Credit Issuer a fee in respect of each Letter
of Credit issued by it (the
Fronting Fee
), for the period from the date of issuance of such
Letter of Credit
(or the most recent date from which such fee was paid under the Amended and
Restated Credit Agreement)
to the termination date of such Letter of Credit, computed at the
rate for each day equal to 0.125%
per annum
on the average daily Stated Amount of such Letter of
Credit. Such Fronting Fees shall be due and payable by the Parent Borrower on behalf of the
Borrowers (x) quarterly in arrears on the last Business Day of each March, June, September and
December and (y) on the date upon which the Total New Revolving Credit Commitment terminates and
the Letters of Credit Outstanding shall have been reduced to zero.
(d) The Parent Borrower on behalf of the Borrowers agrees to pay directly to the Letter of
Credit Issuer upon each issuance of, drawing under, and/or amendment of, a Letter of Credit issued
by it such amount as the Letter of Credit Issuer and the Parent Borrower shall have agreed upon for
issuances of, drawings under or amendments of, letters of credit issued by it.
(e) Notwithstanding the foregoing, the Borrowers shall not be obligated to pay any amounts to
any Defaulting Lender pursuant to this
Section 4.1
.
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4.2.
Voluntary Reduction of New Revolving Credit Commitments
. Upon at least
one Business Days prior written notice (or telephonic notice promptly confirmed in writing) to the
Administrative Agent at the Administrative Agents Office (which notice the Administrative Agent
shall promptly transmit to each of the Lenders), the Parent Borrower (on behalf of itself) shall
have the right, without premium or penalty, on any
day, permanently to terminate or reduce the New Revolving Credit Commitments in whole or in
part, provided that (a) any such reduction shall apply proportionately and permanently to reduce
the New Revolving Credit Commitment of each of the Lenders, (b) any partial reduction pursuant to
this
Section 4.2
shall be in the amount of at least $10,000,000 and (c) after giving effect
to such termination or reduction and to any prepayments of the Loans made on the date thereof in
accordance with this Agreement (including pursuant to
Section 5.2(b)(i)
), the aggregate
amount of the Lenders New Revolving Exposures shall not exceed the Total New Revolving Credit
Commitment.
4.3.
Mandatory Termination of Commitments
.
(a) The New Revolving Credit Commitment shall terminate at 5:00 p.m. (New York City time) on
the Final Maturity Date.
(b) The Swingline Commitment shall terminate at 5:00 p.m. (New York City time) on the
Swingline Maturity Date.
SECTION 5.
Payments
5.1.
Voluntary Prepayments
. The Borrowers shall have the right to prepay New
Revolving Credit Loans and Swingline Loans, in each case, without premium or penalty, in whole or
in part from time to time on the following terms and conditions: (a) the Parent Borrower, on
behalf of the Borrowers, shall give the Administrative Agent at the Administrative Agents Office
written notice (or telephonic notice promptly confirmed in writing) of its intent to make such
prepayment, the amount of such prepayment and (in the case of LIBOR Loans) the specific
Borrowing(s) pursuant to which made, which notice shall be given by the Parent Borrower, on behalf
of the Borrowers, no later than 12:00 noon (New York City time) (i) in the case of LIBOR Loans,
three Business Days prior to, (ii) in the case of ABR Loans (other than Swingline Loans and
Protective Advances), one Business Day prior to or (iii) in the case of Swingline Loans and
Protective Advances, on, the date of such prepayment and shall promptly be transmitted by the
Administrative Agent to each of the Lenders or the Swingline Lender, as the case may be; (b) each
partial prepayment of (i) any Borrowing of LIBOR Loans shall be in a minimum amount of $10,000,000
and in multiples of $1,000,000 in excess thereof, (ii) any ABR Loans (other than Swingline Loans
and Protective Advances) shall be in a minimum amount of $1,000,000 and in multiples of $1,000,000
in excess thereof and (iii) Swingline Loans shall be in a minimum amount of $500,000 and in
multiples of $100,000 in excess thereof,
provided
that no partial prepayment of LIBOR Loans
made pursuant to a single Borrowing shall reduce the outstanding LIBOR Loans made pursuant to such
Borrowing to an amount less than the Minimum Borrowing Amount for LIBOR Loans and (c) any
prepayment of LIBOR Loans pursuant to this
Section 5.1
on any day other than the last day
of an Interest Period applicable thereto shall be subject to compliance by the Parent Borrower with
the applicable provisions of
Section 2.11
. At the Parent Borrowers election in connection
with any prepayment pursuant to
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this
Section 5.1
, such prepayment shall not be applied to
any New Revolving Credit Loan of a Defaulting Lender.
5.2.
Mandatory Prepayments
.
(a) [Reserved].
(b)
Repayment of New Revolving Credit Loans
. (i) If on any date the aggregate amount
of the Lenders New Revolving Exposures (collectively, the
Aggregate New Revolving Outstandings
)
for any reason exceeds 100% of the Total New Revolving Credit Commitment then in effect, the
Borrowers shall forthwith repay on such date the principal amount of any Protective Advances and
after all Protective Advances have been paid in full, Swingline Loans and, after all Swingline
Loans have been paid in full, New Revolving Credit Loans in an amount equal to such excess. If,
after giving effect to the prepayment of all outstanding Protective Advances, Swingline Loans and
New Revolving Credit Loans, the Aggregate New Revolving Outstandings exceed the Total New Revolving
Credit Commitment then in effect, the Borrowers shall Cash Collateralize the L/C Obligations to the
extent of such excess.
(i)
(ii)
Except for Protective Advances, if on any date the Aggregate New
Revolving Outstandings for any reason
exceed
exceeds
100% of the Borrowing Base then
in effect, the Borrowers shall forthwith repay on such date the principal amount of
Swingline Loans and, after all Swingline Loans have been paid in full, New Revolving Credit
Loans in an amount equal to such excess. If, after giving effect to the prepayment of all
outstanding Swingline Loans and New Revolving Credit Loans, the Aggregate New Revolving
Outstandings exceed the Borrowing Base then in effect, the Borrowers shall Cash
Collateralize the L/C Obligations to the extent of such excess.
(c) At all times following the establishment of the Cash Management Systems pursuant to
Section 9.15(a)
and after the occurrence and during the continuation of a Cash Dominion
Event and notification thereof by the Administrative Agent to the Parent Borrower (subject to the
provisions of the Security Agreement and the Intercreditor Agreement), on each Business Day, at or
before 1:00 p.m. New York City time, the Administrative Agent shall apply all immediately available
funds credited to the Collection Account, first to pay any fees or expense reimbursements then due
to the Administrative Agent, the Letter of Credit Issuer and the Lenders (other than in connection
with Secured Cash Management Agreements or Secured Hedge Agreements), pro rata, second to pay
interest due and payable in respect of any Loans (including Swingline Loans and Protective
Advances) that may be outstanding, pro rata, third to prepay the principal of any Protective
Advances that may be outstanding, pro rata, fourth to prepay the principal of the New Revolving
Credit Loans and Swingline Loans and to Cash Collateralize outstanding Letter of Credit Exposure,
pro rata and fifth to pay any fees or expense reimbursements then due to any Cash Management Bank
or Hedge Bank, pro rata. Notwithstanding the foregoing (x) if a Cash Dominion Event arose under
clause (ii) of the definition thereof, then at the Parent Borrowers election and (y) if an Event
of Default under
Section 11.1
or
11.5
has occurred and is continuing, then at the
Administrative Agents election, in each case in connection with any application of funds credited
to the Collection Account
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under this clause (c), such application of funds shall not be applied to
any fees, expenses, reimbursements, interest or principal due in respect of any New Revolving Credit Loan of a
Defaulting Lender.
(d) [Reserved].
(e)
Application to New Revolving Credit Loans
. With respect to each prepayment of New
Revolving Credit Loans required by
Section 5.2(b)
, the Parent Borrower may designate (i)
the Types of Loans that are to be prepaid and the specific Borrowing(s) pursuant to which made and
(ii) the New Revolving Credit Loans to be prepaid,
provided
that (y) each prepayment of any
Loans made pursuant to a Borrowing shall be applied
pro rata
among such Loans; and (z)
notwithstanding the provisions of the preceding
clause (y)
, no prepayment of New Revolving
Credit Loans shall be applied to the New Revolving Credit Loans of any Defaulting Lender unless
otherwise agreed in writing by the Parent Borrower. In the absence of a designation by the Parent
Borrower as described in the preceding sentence, the Administrative Agent shall, subject to the
above, make such designation in its reasonable discretion with a view, but no obligation, to
minimize breakage costs owing under
Section 2.11
.
(f)
LIBOR Interest Periods
. In lieu of making any payment pursuant to this
Section 5.2
in respect of any LIBOR Loan other than on the last day of the Interest Period
therefor so long as no Event of Default shall have occurred and be continuing, the Parent Borrower
at its option may deposit on behalf of the Borrowers with the Administrative Agent an amount equal
to the amount of the LIBOR Loan to be prepaid and such LIBOR Loan shall be repaid on the last day
of the Interest Period therefor in the required amount. Such deposit shall be held by the
Administrative Agent in a corporate time deposit account established on terms reasonably
satisfactory to the Administrative Agent, earning interest at the then-customary rate for accounts
of such type. Such deposit shall constitute cash collateral for the LIBOR Loans to be so prepaid,
provided
that the Parent Borrower may at any time direct that such deposit be applied to
make the applicable payment required pursuant to this
Section 5.2
.
5.3.
Method and Place of Payment
.
(a) Except as otherwise specifically provided herein, all payments under this Agreement shall
be made by the Parent Borrower on behalf of the Borrowers, without set-off, counterclaim or
deduction of any kind, to the Administrative Agent for the ratable account of the Lenders entitled
thereto, the Letter of Credit Issuer or the Swingline Lender entitled thereto, as the case may be,
not later than 2:00 p.m. (New York City time), in each case, on the date when due and shall be made
in immediately available funds at the Administrative Agents Office or at such other office as the
Administrative Agent shall specify for such purpose by notice to the Parent Borrower, it being
understood that written or facsimile notice by the Parent Borrower to the Administrative Agent to
make a payment from the funds in the Parent Borrowers account at the Administrative Agents Office
shall constitute the making of such payment to the extent of such funds held in such account. All
payments under each Credit Document shall, unless otherwise specified in such Credit Document be
made in Dollars. The Administrative Agent will thereafter cause to be distributed on the same day
(if payment was actually received by the Administrative Agent prior to 2:00 p.m. (New York City
time) or, otherwise, on the next
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Business Day), in like funds relating to the payment of principal or interest or Fees ratably
to the Lenders entitled thereto.
(b) Any payments under this Agreement that are made later than 2:00 p.m. (New York City time)
shall be deemed to have been made on the next succeeding Business Day. Whenever any payment to be
made hereunder shall be stated to be due on a day that is not a Business Day, the due date thereof
shall be extended to the next succeeding Business Day and, with respect to payments of principal,
interest shall be payable during such extension at the applicable rate in effect immediately prior
to such extension.
5.4.
Net Payments
.
(a) Any and all payments made by or on behalf of any Borrower under this Agreement or any
other Credit Document shall be made free and clear of, and without deduction or withholding for or
on account of, any Indemnified Taxes;
provided
that if any Borrower shall be required by
applicable Requirements of Law to deduct or withhold any Indemnified Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all required deductions
and withholdings (including deductions or withholdings applicable to additional sums payable under
this
Section 5.4
) the Administrative Agent, the Collateral Agent or any Lender, as the case
may be, receives an amount equal to the sum it would have received had no such deductions or
withholdings been made, (ii) the applicable Borrower shall make such deductions or withholdings and
(iii) the applicable Borrower shall timely pay the full amount deducted or withheld to the relevant
Governmental Authority within the time allowed and in accordance with applicable Requirements of
Law. Whenever any Indemnified Taxes are payable by any Borrower, as promptly as possible
thereafter, such Borrower shall send to the Administrative Agent for its own account or for the
account of such Lender, as the case may be, a certified copy of an original official receipt (or
other evidence acceptable to such Lender, acting reasonably) received by such Borrower showing
payment thereof.
(b) The Borrowers shall timely pay and shall indemnify and hold harmless the Administrative
Agent, each Collateral Agent and each Lender (whether or not such Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority) with regard to any Other Taxes.
(c) The Borrowers shall indemnify and hold harmless the Administrative Agent, the Collateral
Agent and each Lender within 15 Business Days after written demand therefor, for the full amount of
any Indemnified Taxes imposed on the Administrative Agent, the Collateral Agent or such Lender as
the case may be, on or with respect to any payment by or on account of any obligation of any
Borrower hereunder or under any other Credit Document (including Indemnified Taxes imposed or
asserted on or attributable to amounts payable under this
Section 5.4
) and any reasonable
expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate
setting forth in reasonable detail the amount of such payment or liability delivered to the Parent
Borrower by a Lender, the Administrative Agent or
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the Collateral Agent (as applicable) on its own behalf or on behalf of a Lender shall be
conclusive absent manifest error.
(d) Each Non-U.S. Lender shall, to the extent it is legally entitled to do so:
(i) deliver to the Parent Borrower and the Administrative Agent two copies of either
(x) in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding tax
under Section 871(h) or 881(c) of the Code with respect to payments of portfolio interest,
United States Internal Revenue Service Form W-8BEN (together with a certificate representing
that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a
10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the
Parent Borrower and is not a controlled foreign corporation related to the Parent Borrower
(within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form
W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S.
Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on
payments by the Parent Borrower under this Agreement; and
(ii) deliver to the Parent Borrower and the Administrative Agent two further copies of
any such form or certification (or any applicable successor form) on or before the date that
any such form or certification expires or becomes obsolete and after the occurrence of any
event requiring a change in the most recent form previously delivered by it to the Parent
Borrower;
unless in any such case any Change in Law has occurred prior to the date on which any such delivery
would otherwise be required that renders any such form inapplicable or would prevent such Non-U.S.
Lender from duly completing and delivering any such form with respect to it and such Non-U.S.
Lender promptly so advises the Parent Borrower and the Administrative Agent. Each Person that
shall become a Participant pursuant to
Section 14.6
or a Lender pursuant to
Section
14.6
shall, upon the effectiveness of the related transfer, be required to provide all the
forms and statements required pursuant to this
Section 5.4(d)
,
;
provided
that in the case of a Participant such Participant shall furnish all such required forms and
statements to the Lender from which the related participation shall have been purchased.
(e) Each Lender and Agent that is entitled to an exemption from or reduction of non-U.S.
withholding tax under the laws of the jurisdiction in which any Borrower is organized, or any
treaty to which such jurisdiction is a party, with respect to payments under this Agreement or any
other Credit Document by such Borrower shall deliver to such Borrower (with a copy to the
applicable Administrative Agent), as applicable, at the time or times prescribed by applicable law
and as reasonably requested by such Borrower, as applicable, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be made without such
withholding or at such reduced rate,
;
provided
that such Lender or Agent is legally
entitled to complete, execute and deliver such documentation and such documentation is necessary in
order for such exemption or reduction to apply.
(f) If any Lender, the Administrative Agent or the Collateral Agent, as applicable,
determines, in its sole discretion, that it had received and retained a refund of an
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Indemnified Tax or Other Tax for which a payment has been made by any Borrower pursuant to
this Agreement, which refund in the good faith judgment of such Lender, the Administrative Agent or
the Collateral Agent, as the case may be, is attributable to such payment made by such Borrower,
then the Lender, the Administrative Agent or the Collateral Agent, as the case may be, shall
reimburse such Borrower for such amount (together with any interest received thereon) as the
Lender, Administrative Agent or the Collateral Agent, as the case may be, determines in its sole
discretion to be the proportion of the refund as will leave it, after such reimbursement, in no
better or worse position (taking into account expenses or any taxes imposed on the refund) than it
would have been in if the payment had not been required;
provided
that such Borrower, upon
the request of the Lender, the Administrative Agent or the Collateral Agent, agrees to repay the
amount paid over to such Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Lender, the Administrative Agent or the Collateral Agent in
the event the Lender, the Administrative Agent or the Collateral Agent is required to repay such
refund to such Governmental Authority. A Lender, the Administrative Agent or the Collateral Agent
shall claim any refund that it determines is available to it, unless it concludes in its sole
discretion that it would be adversely affected by making such a claim. Neither the Lender, the
Administrative Agent nor the Collateral Agent shall be obliged to disclose any information
regarding its tax affairs or computations to any Credit Party in connection with this
clause
(f)
or any other provision of this
Section 5.4
.
(g) If the Parent Borrower determines that a reasonable basis exists for contesting a Tax,
each Lender or Agent, as the case may be, shall use reasonable efforts to cooperate with the
Borrowers as the Parent Borrower may reasonably request in challenging such Tax. Subject to the
provisions of
Section 2.12
, each Lender and Agent agrees to use reasonable efforts to
cooperate with the Borrowers as the Parent Borrower may reasonably request to minimize any amount
payable by any Borrower or Guarantor pursuant to this
Section 5.4
. The Borrowers shall
indemnify and hold each Lender and Agent harmless against any out-of-pocket expenses incurred by
such Person in connection with any request made by the Parent Borrower pursuant to this
Section
5.4(g)
. Nothing in this
Section 5.4(g)
shall obligate any Lender or Agent to take any
action that such Person, in its sole judgment, determines may result in a material detriment to
such Person.
(h) Each Lender and Agent that is a United States person under Section 7701(a)(30) of the Code
shall, at the reasonable request of the Parent Borrower or the Administrative Agent, deliver to the
Parent Borrower and the Administrative Agent two United States Internal Revenue Service Forms W-9
(or substitute or successor form), properly completed and duly executed, certifying that such
Lender or Agent is exempt from United States backup withholding;
provided
that, for the
avoidance of doubt, the failure to deliver such forms shall not subject any Lender that may be
treated as an exempt recipient based on the indicators described in Treasury Regulation
1.6049-4(c)(i)(ii) to backup withholding.
(i) The agreements in this
Section 5.4
shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
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5.5.
Computations of Interest and Fees
.
(a) Interest on LIBOR Loans and, except as provided in the next succeeding sentence, ABR Loans
shall be calculated on the basis of a 360-day year for the actual days elapsed. Interest on ABR
Loans in respect of which the rate of interest is calculated on the basis of the Administrative
Agents prime rate and interest on overdue interest shall be calculated on the basis of a 365- (or
366-, as the case may be) day year for the actual days elapsed.
(b) Fees and the average daily Stated Amount of Letters of Credit shall be calculated on the
basis of a 360-day year for the actual days elapsed.
5.6.
Limit on Rate of Interest
.
(a)
No Payment Shall Exceed Lawful Rate
. Notwithstanding any other term of this
Agreement, the Borrowers shall not be obliged to pay any interest or other amounts under or in
connection with this Agreement or otherwise in respect of the Obligations in excess of the amount
or rate permitted under or consistent with any applicable law, rule or regulation.
(b)
Payment at Highest Lawful Rate
. If any Borrower is not obliged to make a payment
that it would otherwise be required to make, as a result of
Section 5.6(a)
, such Borrower
shall make such payment to the maximum extent permitted by or consistent with applicable laws,
rules and regulations.
(c)
Adjustment if Any Payment Exceeds Lawful Rate
. If any provision of this Agreement
or any of the other Credit Documents would obligate any Borrower to make any payment of interest or
other amount payable to any Lender in an amount or calculated at a rate that would be prohibited by
any applicable law, rule or regulation, then notwithstanding such provision, such amount or rate
shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of
interest, as the case may be, as would not be so prohibited by law, such adjustment to be effected,
to the extent necessary, by reducing the amount or rate of interest required to be paid by such
Borrower to the affected Lender under
Section 2.8
.
Notwithstanding the foregoing, and after giving effect to all adjustments contemplated
thereby, if any Lender shall have received from any Borrower an amount in excess of the maximum
permitted by any applicable law, rule or regulation, then such Borrower shall be entitled, by
notice in writing to the Administrative Agent to obtain reimbursement from that Lender in an amount
equal to such excess, and pending such reimbursement, such amount shall be deemed to be an amount
payable by that Lender to such Borrower.
SECTION
6.
Conditions Precedent
to
Second
Amendment and
Restatement
The initial Borrowing under this Agreement on the Amendment and Restatement Date is subject to
the
This Agreement shall become effective upon
satisfaction of the following
conditions
precedent, except as otherwise agreed between the Parent Borrower and the
Administrative Agent
.
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6.1.
Credit Documents
.
The Administrative Agent shall have received:
On or
prior to the Second Restatement Effective Date:
(a)
this
the Administrative Agent shall have received the Second Amendment
Agreement,
executed and delivered by a duly authorized officer of the Parent Borrower, each Subsidiary
Borrower and
each Lender;
the Required Lenders;
(b)
the Administrative Agent shall have received
a Borrowing Base Certificate,
certified as complete and correct in all material respects, which calculates the Borrowing Base as
of the last Business Day of the most recent month ended at least 25 days prior to the
Second
Amendment and Restatement
Date.
;
6.2. Amendment Agreement Conditions
(c)
no Default or Event of Default exists; and
(d)
. All conditions in Section 4 of the Amendment Agreement shall have been
satisfied or waived
all representations and warranties contained in any Credit Document are true
and correct in all material respects with the same effect as though such representations and
warranties had been made on the date hereof (except that any representation or warranty which by
its terms is made only as of a specified date is true and correct in all material respects only as
of such specified date)
.
SECTION 7.
Conditions Precedent to All Credit Events
The agreement of each Lender to make any Loan requested to be made by it on any date
(excluding Mandatory Borrowings, Protective Advances and New Revolving Credit Loans to be made by
the New Revolving Lenders in respect of Unpaid Drawings pursuant to
Sections 3.3
and
3.4
) and the obligation of the Letter of Credit Issuer to issue Letters of Credit on any
date is subject to the satisfaction of the following conditions precedent:
7.1.
No Default; Representations and Warranties
. At the time of each Credit
Event and also after giving effect thereto (a) no Default or Event of Default shall have occurred
and be continuing and (b) all representations and warranties made by any Credit Party contained
herein or in the other Credit Documents shall be true and correct in all material respects with the
same effect as though such representations and warranties had been made on and as of the date of
such Credit Event (except where such representations and warranties expressly relate to an earlier
date, in which case such representations and warranties shall have been true and correct in all
material respects as of such earlier date).
7.2.
Notice of Borrowing; Letter of Credit Request
.
(a) Prior to the making of each New Revolving Credit Loan (other than any New Revolving Credit
Loan made pursuant to
Section 3.4(a)
or
2.1(e)
) and each Swingline Loan, the
Administrative Agent shall have received a Notice of Borrowing (whether in writing or by telephone)
meeting the requirements of
Section 2.3
.
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(b) Prior to the issuance of each Letter of Credit, the Administrative Agent and the Letter of
Credit Issuer shall have received a Letter of Credit Request meeting the requirements of
Section 3.2(a)
.
The acceptance of the benefits of each Credit Event shall constitute a representation and warranty
by each Credit Party to each of the Lenders that all the applicable conditions specified in
Section 7
above have been satisfied as of that time.
SECTION 8.
Representations, Warranties and Agreements
In order to induce the Lenders to enter into this Agreement, to make the Loans and issue or
participate in Letters of Credit as provided for herein, each Borrower makes the following
representations and warranties to, and agreements with, the Lenders, all of which shall survive the
execution and delivery of this Agreement and the making of the Loans and the issuance of the
Letters of Credit (it being understood that the following representations and warranties shall be
deemed made with respect to any Foreign Subsidiary only to the extent relevant under applicable
law):
8.1.
Corporate Status
. Each of the Parent Borrower and each Material
Subsidiary (a) is a duly organized and validly existing corporation or other entity in good
standing under the laws of the jurisdiction of its organization and has the corporate or other
organizational power and authority to own its property and assets and to transact the business in
which it is engaged and (b) has duly qualified and is authorized to do business and is in good
standing (if applicable) in all jurisdictions where it is required to be so qualified, except where
the failure to be so qualified could not reasonably be expected to result in a Material Adverse
Effect.
8.2.
Corporate Power and Authority
. Each Credit Party has the corporate or
other organizational power and authority to execute, deliver and carry out the terms and provisions
of the Credit Documents to which it is a party and has taken all necessary corporate or other
organizational action to authorize the execution, delivery and performance of the Credit Documents
to which it is a party. Each Credit Party has duly executed and delivered each Credit Document to
which it is a party and each such Credit Document constitutes the legal, valid and binding
obligation of such Credit Party
enforceable in accordance with its terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency or similar laws affecting creditors rights generally and subject to
general principles of equity.
8.3.
No Violation
. Neither the execution, delivery or performance by any
Credit Party of the Credit Documents to which it is a party nor compliance with the terms and
provisions thereof nor the consummation of the Merger and the other transactions contemplated
hereby or thereby will (a) contravene any applicable provision of any material law, statute, rule,
regulation, order, writ, injunction or decree of any court or governmental instrumentality, (b)
result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of (or the obligation to create or impose)
any Lien upon any of the property or assets of such Credit Party or any of the Restricted
Subsidiaries (other than Liens created under the Credit Documents or Liens subject to the
Intercreditor Agreement) pursuant to the terms of any material indenture, loan agreement, lease
agreement,
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mortgage, deed of trust, agreement or other material instrument to which such Credit
Party or any of the Restricted Subsidiaries is a party or by which it or any of its property or
assets is bound (any such term, covenant, condition or provision, a
Contractual Requirement
) or
(c) violate any provision of the certificate of incorporation, by-laws or other organizational
documents of such Credit Party or any of the Restricted Subsidiaries.
8.4.
Litigation
. Except as set forth on Schedule 8.4 to the Original Credit
Agreement, there are no actions, suits or proceedings (including Environmental Claims) pending or,
to the knowledge of the Parent Borrower, threatened with respect to the Parent Borrower or any of
its Subsidiaries that could reasonably be expected to result in a Material Adverse Effect.
8.5.
Margin Regulations
. Neither the making of any Loan hereunder nor the use
of the proceeds thereof will violate the provisions of
Regulation T,
Regulation
U or
Regulation
X of the Board.
8.6.
Governmental Approvals
. The execution, delivery and performance of the
Acquisition Agreement or any Credit Document do not require any consent or approval of,
registration or filing with, or other action by, any Governmental Authority, except for (i) such as
have been obtained or made and are in full force and effect, (ii) filings and recordings in respect
of the Liens created pursuant to the Security Agreement and (iii) such licenses, approvals,
authorizations or consents the failure to obtain or make could not reasonably be expected to have a
Material Adverse Effect.
8.7.
Investment Company Act.
No Borrower is an investment company within the meaning of the Investment Company Act of
1940, as amended.
8.8.
True and Complete Disclosure
.
(a) .
None of the written factual
information and written data (taken as a whole) furnished by or on behalf of the Parent Borrower on
or before the Original Closing Date, any of the Subsidiaries or any of their respective authorized
representatives to the Administrative Agent, any Joint Lead Arranger and/or any Lender on or before
the Original Closing Date (including all such information and data contained in (i) the
Confidential Information Memorandum (as updated prior to the Original Closing Date) and (ii) the
Credit Documents) for purposes of or in connection with this Agreement or any transaction
contemplated herein contained any untrue statement of any material fact or omitted to state any
material fact necessary to make such information and data (taken as a whole) not misleading at such
time in light of the circumstances under which such information or data was furnished, it being
understood and agreed that for purposes of this
Section
8.8(a)
,
8.8,
such factual
information and data shall not include projections (including financial estimates, forecasts and
other forward-looking information) and information of a general economic or general industry
nature.
(b) The projections (including financial estimates, forecasts and other forward-looking
information) contained in the information and data referred to in
clause (a)
above were
based on good faith estimates and assumptions believed by such Persons to be reasonable at the time
made, it being recognized by the Lenders that such projections as to future events are not to be
viewed as facts and that actual results during the period or periods covered by any such
projections may differ from the projected results.
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8.9.
Financial Condition; Financial Statements
.
(a) The unaudited historical consolidated financial information of HCA as set forth in the
Confidential Information Memorandum, and (b) the Historical Financial Statements, in each case
present fairly in all material respects the consolidated financial position of HCA at the
respective dates of said information, statements and results of operations for the respective
periods covered thereby. The financial statements referred to in
clause (b)
of this
Section 8.9
have been prepared in accordance with GAAP consistently applied except to the
extent provided in the notes to said financial statements.
After the Original Closing Date,
there
There
has been no Material Adverse Effect since December 31,
2005.
2010.
8.10.
Tax Matters
. Each of the Parent Borrower and the Subsidiaries has filed
all federal income tax returns and all other material tax returns, domestic and foreign, required
to be filed by it and all such tax returns are true and correct in all material respects and has
paid all material taxes payable by it that have become due, other than those (a) not yet delinquent
or (b) contested in
good faith as to which adequate reserves have been provided to the extent required by law and
in accordance with GAAP and which could not reasonably be expected to result in a Material Adverse
Effect. Each Borrower and each of the Subsidiaries have paid, or have provided adequate reserves
to the extent required by law and in accordance with GAAP for the payment of, all material federal,
state, provincial and foreign taxes applicable for the current fiscal year to the Original Closing
Date.
8.11.
Compliance with ERISA
. Each Plan is in compliance with ERISA, the Code
and any applicable Requirement of Law; no Reportable Event has occurred (or is reasonably likely to
occur) with respect to any Plan; no Plan is insolvent or in reorganization (or is reasonably likely
to be insolvent or in reorganization), and no written notice of any such insolvency or
reorganization has been given to the Parent Borrower or any ERISA Affiliate; no Plan (other than a
multiemployer plan) has an accumulated or waived funding deficiency (or is reasonably likely to
have such a deficiency); none of the Parent Borrower or any ERISA Affiliate has incurred (or is
reasonably likely to incur) any liability to or on account of a Plan pursuant to Section 409,
502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of the
Code or has been notified in writing that it will incur any liability under any of the foregoing
Sections with respect to any Plan; no proceedings have been instituted (or are reasonably likely to
be instituted) to terminate or to reorganize any Plan or to appoint a trustee to administer any
Plan, and no written notice of any such proceedings has been given to the Parent Borrower or any
ERISA Affiliate; and no lien imposed under the Code or ERISA on the assets of the Parent Borrower
or any ERISA Affiliate exists (or is reasonably likely to exist) nor has the Parent Borrower or any
ERISA Affiliate been notified in writing that such a lien will be imposed on the assets of the
Parent Borrower or any ERISA Affiliate on account of any Plan, except to the extent that a breach
of any of the representations, warranties or agreements in this
Section 8.11
would not
result, individually or in the aggregate, in an amount of liability that would be reasonably likely
to have a Material Adverse Effect. No Plan (other than a multiemployer plan) has an Unfunded
Current Liability that would, individually or when taken together with any other liabilities
referenced in this
Section 8.11
, be reasonably likely to have a Material Adverse Effect.
With respect to Plans that are multiemployer plans (as defined in Section 3(37) of ERISA), the
representations and warranties in this
Section 8.11
, other than
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any made with respect to
(i) liability under Section 4201 or 4204 of ERISA or (ii) liability for termination or
reorganization of such Plans under ERISA, are made to the best knowledge of each Borrower.
8.12.
Subsidiaries
.
Schedule 8.12
to the Original Credit Agreement
lists each Subsidiary of the Parent Borrower (and the direct and indirect ownership interest of the
Parent Borrower therein), in each case existing on the Original Closing
Date and the Amendment and
Restatement
Date. Each Material Subsidiary (under clause (i) of the definition thereof) and each
1993 Indenture Restricted Subsidiary as of the Original Closing Date has been so designated on
Schedule 8.12
to the Original Credit Agreement.
8.13.
Intellectual Property
. The Parent Borrower and each of the Restricted
Subsidiaries have obtained all intellectual
property, free from burdensome restrictions, that are necessary for the operation of their
respective businesses as currently conducted and as proposed to be conducted, except where the
failure to obtain any such rights could not reasonably be expected to have a Material Adverse
Effect.
8.14.
Environmental Laws
.
(a) Except as could not reasonably be expected to have a Material Adverse Effect: (i) the
Parent Borrower and each of the Subsidiaries and all Real Estate are in compliance with all
Environmental Laws; (ii) neither the Parent Borrower nor any Subsidiary is subject to any
Environmental Claim or any other liability under any Environmental Law; (iii) neither the Parent
Borrower nor any Subsidiary is conducting any investigation, removal, remedial or other corrective
action pursuant to any Environmental Law at any location; and (iv) no underground storage tank or
related piping, or any impoundment or other disposal area containing Hazardous Materials is located
at, on or under any Real Estate currently owned or leased by the Parent Borrower or any of its
Subsidiaries.
(b) Neither the Parent Borrower nor any of the Subsidiaries has treated, stored, transported,
released or disposed or arranged for disposal or transport for disposal of Hazardous Materials at,
on, under or from any currently or formerly owned or leased Real Estate or facility in a manner
that could reasonably be expected to have a Material Adverse Effect.
8.15.
Properties
. The Parent Borrower and each of the Subsidiaries have good
and marketable title to or leasehold interests in all properties that are necessary for the
operation of their respective businesses as currently conducted and as proposed to be conducted,
free and clear of all Liens (other than any Liens permitted by this Agreement) and except where the
failure to have such good title could not reasonably be expected to have a Material Adverse Effect.
8.16.
Solvency
. On the Original Closing Date (after giving effect to the
Transactions described in clause (ii) of the definition thereof), immediately following the making
of each Loan and after giving effect to the application of the proceeds of such Loans, the Parent
Borrower on a consolidated basis with its Subsidiaries will be Solvent.
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8.17.
Delayed Equity Arrangements
. On the Original Closing Date, (i) the
Parent Borrower received a written commitment from Holdings to contribute the Delayed Equity Amount
to the Parent Borrower, to the extent not otherwise received by the Parent Borrower, on or prior to
March 31, 2007 and (ii)
Holdings has received written commitments from certain of the Investors to provide the Delayed
Equity Amount to Holdings, to the extent not otherwise received on or prior to March 31, 2007 (the
commitments referred to in subclauses (i) and (ii) being referred to collectively as the
Delayed
Equity Arrangements
).
SECTION 9.
Affirmative Covenants
.
Each Borrower hereby covenants and agrees that on the Original Closing Date and thereafter,
until the Commitments, the Swingline Commitment and each Letter of Credit have terminated and the
Loans and Unpaid Drawings, together with interest, Fees and all other Obligations incurred
hereunder, are paid in full:
9.1.
Information Covenants
. The Parent Borrower will furnish to the
Administrative Agent (which shall make such information available to the Lenders in accordance with
its customary practice):
(a)
Annual Financial Statements
. As soon as available and in any event within 5
days
Business Days
after the date on which such financial statements are required to be
filed with the SEC or, if earlier, on the date such financial statements are delivered to the
holders of
Existing
Junior Lien Notes (or, if such financial statements are not required to
be filed with the SEC or delivered to the holders of the
Existing
Junior Lien Notes, on or
before the date that is 90 days
(or, in the case of the fiscal year ending December 31, 2006, 120
days)
after the end of each such fiscal year), the consolidated balance sheets of the Parent
Borrower and the Subsidiaries and, if different, the Parent Borrower and the Restricted
Subsidiaries, in each case as at the end of such fiscal year, and the related consolidated
statements of operations and cash flows for such fiscal year, setting forth comparative
consolidated figures for the preceding fiscal years (or, in lieu of such audited financial
statements of the Parent Borrower and the Restricted Subsidiaries, a detailed reconciliation,
reflecting such financial information for the Parent Borrower and the Restricted Subsidiaries, on
the one hand, and the Parent Borrower and the Subsidiaries, on the other hand), and certified by
independent certified public accountants of recognized national standing whose opinion shall not be
qualified as to the scope of audit or as to the status of the Parent Borrower or any of the
Material Subsidiaries (or group of Subsidiaries that together would constitute a Material
Subsidiary) as a going concern, together in any event with a certificate of such accounting firm
stating that in the course of either (i) its regular audit of the consolidated business of the
Parent Borrower, which audit was conducted in accordance with generally accepted auditing standards
or (ii) performing certain other procedures permitted by professional standards, such accounting
firm has obtained no knowledge of any Event of Default relating to
Section 10.9
that has
occurred and is continuing or, if in the opinion of such accounting firm such an Event of Default
has occurred and is continuing, a statement as to the nature thereof.
(b)
Periodic Financial Statements
. As soon as available and in any event within 5
days
Business Days
after the date on which such financial statements are required to be
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filed with the SEC or, if earlier, on the date on which such financial statements are delivered to
the holders of
the
Existing
Junior Lien Notes with respect to each of the first three
quarterly accounting periods in each fiscal year of the Parent Borrower (or, if such financial
statements are not required to be filed with the SEC or delivered to the holders of the
Existing
Junior Lien Notes, on or before the date that is 45 days after the end of each such
quarterly accounting period), the consolidated balance sheets of the Parent Borrower and the
Subsidiaries and, if different, the Parent Borrower and the Restricted Subsidiaries, in each case
as at the end of such quarterly period and the related consolidated statements of operations for
such quarterly accounting period and for the elapsed portion of the fiscal year ended with the last
day of such quarterly period, and the related consolidated statement of cash flows for the elapsed
portion of the fiscal year ended with the last day of such quarterly period, and setting forth
comparative consolidated figures for the related periods in the prior fiscal year or, in the case
of such consolidated balance sheet, for the last day of the prior fiscal year (or, in lieu of such
unaudited financial statements of the Parent Borrower and the Restricted Subsidiaries, a detailed
reconciliation, reflecting such financial information for the Parent Borrower and the Restricted
Subsidiaries, on the one hand, and the Parent Borrower and the Subsidiaries, on the other hand),
all of which shall be certified by an Authorized Officer of the Parent Borrower, subject to changes
resulting from audit and normal year-end audit adjustments.
(c)
Budgets
. Within 90 days after the commencement of each fiscal year of the Parent
Borrower, a budget of the Parent Borrower in reasonable detail for such fiscal year as customarily
prepared by management of the Parent Borrower for their internal use consistent in scope with the
financial statements provided pursuant to
Section 9.1(a)
, setting forth the principal
assumptions upon which such budget is based.
(d)
Officers Certificates
. At the time of the delivery of the financial statements
provided for in
Sections 9.1(a)
and
(b)
, a certificate of an Authorized Officer of
the Parent Borrower to the effect that no Default or Event of Default exists or, if any Default or
Event of Default does exist, specifying the nature and extent thereof, which certificate shall set
forth (i) the calculations required to establish whether the Parent Borrower and the Subsidiaries
were in compliance with the provisions of
Section 10.9
(whether or not such covenant is
then applicable) as at the end of such fiscal year or period, as the case may be, (ii) a
specification of any change in the identity of the Restricted Subsidiaries and Unrestricted
Subsidiaries as at the end of such fiscal year or period, as the case may be, from the Restricted
Subsidiaries and Unrestricted Subsidiaries, respectively, provided to the Lenders on the Original
Closing Date or the most recent fiscal year or period, as the case may be, (iii) the then
applicable Status and (iv) the amount of any Pro Forma Adjustment not previously set forth in a Pro
Forma Adjustment Certificate or any change in the amount of a Pro Forma Adjustment set forth in any
Pro Forma Adjustment Certificate previously provided and, in either case, in reasonable detail, the
calculations and basis therefor. At the time of the delivery of the financial statements provided
for in
Section 9.1(a)
, (i) a certificate of an Authorized Officer of the Parent Borrower
setting forth in reasonable detail the Applicable Amount as at the end of the fiscal year to which
such financial statements relate and (ii) a certificate of an Authorized Officer of the Parent
Borrower setting forth the information required pursuant to
Section 1(a)
of the Perfection
Certificate or confirming that there has been no change in such information since the Original
Closing Date or the date of the most recent certificate delivered pursuant to this
clause
(d)
, as the case may be.
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(e)
Notice of Default or Litigation
. Promptly after an Authorized Officer of the
Parent Borrower or any of the Subsidiaries obtains knowledge thereof, notice of (i) the occurrence
of any event that constitutes a Default or Event of Default, which notice shall specify the nature
thereof, the period of existence thereof and what action the Parent Borrower proposes to take with
respect thereto and (ii) any litigation or governmental proceeding pending against the Parent
Borrower or any of the Subsidiaries that could reasonably be expected to be determined adversely
and, if so determined, to result in a Material Adverse Effect.
(f)
Environmental Matters
. Promptly after obtaining knowledge of any one or more of
the following environmental matters, unless such environmental matters would not, individually or
when aggregated with all other such matters, be reasonably expected to result in a Material Adverse
Effect, notice of:
(i) any pending or threatened Environmental Claim against any Credit Party or any Real
Estate;
(ii) any condition or occurrence on any Real Estate that (x) could reasonably be
expected to result in noncompliance by any Credit Party with any applicable Environmental
Law or (y) could reasonably be anticipated to form the basis of an Environmental Claim
against any Credit Party or any Real Estate;
(iii) any condition or occurrence on any Real Estate that could reasonably be
anticipated to cause such Real Estate to be subject to any restrictions on the ownership,
occupancy, use or transferability of such Real Estate under any Environmental Law; and
(iv) the conduct of any investigation, or any removal, remedial or other corrective
action in response to the actual or alleged presence, release or threatened release of any
Hazardous Material on, at, under or from any Real Estate.
All such notices shall describe in reasonable detail the nature of the claim, investigation,
condition, occurrence or removal or remedial action and the response thereto. The term
Real Estate
shall mean land, buildings and improvements owned or leased by any Credit
Party, but excluding all operating fixtures and equipment, whether or not incorporated into
improvements.
(g)
Other Information
. Promptly upon filing thereof, copies of any filings (including
on Form 10-K, 10-Q or 8-K) or registration statements with, and reports to, the SEC or any
analogous Governmental Authority in any relevant jurisdiction by the Parent Borrower or any of the
Subsidiaries (other than amendments to any registration statement (to the extent such registration
statement, in the form it becomes effective, is delivered to the Lenders and the Administrative
Agent), exhibits to any registration statement and, if applicable, any registration statements on
Form S-8) and copies of all financial statements, proxy statements, notices and reports that the
Parent Borrower or any of the Subsidiaries shall send to the holders of any publicly issued debt of
the Parent Borrower and/or any of the Subsidiaries (including the
Existing
Junior Lien
Notes (whether publicly issued or not)) and lenders and agents under the CF Facility, in each case
in their capacity as such holders, lenders or agents (in each case to the
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extent not theretofore delivered to the Lenders and the Administrative Agent pursuant to this
Agreement) and, with reasonable promptness, such other information (financial or otherwise) as the
Administrative Agent on its own behalf or on behalf of any Lender (acting through the
Administrative Agent) may reasonably request in writing from time to time.
(h)
Pro Forma Adjustment Certificate
. Not later than any date on which financial
statements are delivered with respect to any Test Period in which a Pro Forma Adjustment is made as
a result of the consummation of the acquisition of any Acquired Entity or Business by the Parent
Borrower or any Restricted Subsidiary for which there shall be a Pro Forma Adjustment, a
certificate of an Authorized Officer of the Parent Borrower setting forth the amount of such Pro
Forma Adjustment and, in reasonable detail, the calculations and basis therefor.
(i)
Borrowing Base Certificate
. On the 25th day of each calendar month, a Borrowing
Base Certificate showing the Borrowing Base and the calculation of Excess Facility Availability in
each case as of the close of business on the last day of the immediately preceding calendar month,
each such Borrowing Base Certificate to be certified as complete and correct in all material
respects on behalf of the Parent Borrower by a Financial Officer of the Parent Borrower (each a
Monthly Borrowing Base Certificate
). In addition, solely (i) during the continuance of a Cash
Dominion Event or (ii) if any Event of Default has occurred and is continuing, a Borrowing Base
Certificate showing the Parent Borrowers reasonable estimate (which shall be based on the most
current accounts receivable aging reasonably available and shall be calculated in a consistent
manner with the most recent Monthly Borrowing Base Certificates delivered pursuant to this Section)
of the Borrowing Base (but not the calculation of Excess Facility Availability) as of the close of
business on the last day of the immediately preceding calendar week, unless the Administrative
Agent otherwise agrees, shall be furnished on Wednesday of each week (or, if Wednesday is not a
Business Day, on the next succeeding Business Day).
(j)
Collateral Reporting
.
(i) At the time of the delivery of the financial statements provided for in
Section
9.1(b)
, a certificate of an Authorized Officer setting forth (x) the amount of Potential
Medicaid Accounts at the end of such period and the aggregate amount of Potential Medicaid
Accounts that became Medicaid Accounts during such period and (y) the collection history of
Self-Pay Accounts for the immediately preceding 12 month period.
(ii) At the time of the delivery of the Monthly Borrowing Base Certificate provided for
in
Section 9.1(i)
, the Parent Borrower shall provide a current accounts receivable
aging for the Borrowers along with a reconciliation between the amounts that appear on such
aging and the amount of accounts receivable presented on the concurrently delivered balance
sheet.
(k)
Change of Name, Locations, Etc
. Not later than 60 days following the occurrence
of any change referred to in
subclauses (i)
through
(iv)
below, written notice of
any change (i) in the legal name of any Credit Party, (ii) in the jurisdiction of organization or
location
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of any Credit Party for purposes of the Uniform Commercial Code, (iii) in the identity or type
of organization of any Credit Party or (iv) in the Federal Taxpayer Identification Number or
organizational identification number of any Credit Party. The Parent Borrower shall also promptly
provide the Collateral Agent with certified organizational documents reflecting any of the changes
described in the first sentence of this
clause (k)
.
Notwithstanding the foregoing, the obligations in
clauses (a)
and
(b)
of this
Section 9.1
may be satisfied with respect to financial information of the Parent Borrower
and the Restricted Subsidiaries by furnishing (A) the applicable financial statements of any direct
or indirect parent of the Parent Borrower or (B) the Parent Borrowers (or any direct or indirect
parent thereof), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC;
provided
that, with respect to each of
subclauses (A)
and
(B)
of this
paragraph, to the extent such information relates to a parent of the Parent Borrower, such
information is accompanied by consolidating or other information that explains in reasonable detail
the differences between the information relating to such parent, on the one hand, and the
information relating to the Parent Borrower and the Restricted Subsidiaries on a standalone basis,
on the other hand.
9.2.
Books, Records and Inspections
.
(a) The Parent Borrower will, and will cause each Restricted Subsidiary to, permit officers
and designated representatives of the Administrative Agent or the Required Lenders to visit and
inspect any of the properties or assets of the Parent Borrower and any such Subsidiary in
whomsoevers possession to the extent that it is within such partys control to permit such
inspection, and to examine the books and records of the Parent Borrower and any such Subsidiary and
discuss the affairs, finances and accounts of the Parent Borrower and of any such Subsidiary with,
and be advised as to the same by, its and their officers and independent accountants, all at such
reasonable times and intervals and to such reasonable extent as the Administrative Agent or the
Required Lenders may desire (and subject, in the case of any such meetings or advice from such
independent accountants, to such accountants customary policies and procedures);
provided
that, excluding any such visits and inspections during the continuation of an Event of Default,
only the Administrative Agent on behalf of the Required Lenders may exercise rights of the
Administrative Agent and the Lenders under this
Section 9.2
and only one such visit shall
be at the Parent Borrowers expense;
provided
further
that when an Event of Default
exists, the Administrative Agent or any Lender (or any of their respective representatives or
independent contractors) may do any of the foregoing at the expense of the Parent Borrower at any
time during normal business hours and upon reasonable advance notice. The Administrative Agent and
the Lenders shall give the Parent Borrower the opportunity to participate in any discussions with
the Parent Borrowers independent public accountants. During the course of the above-described
visits, inspections, examinations and discussions, representatives of the Agents and the Lenders
may encounter individually identifiable healthcare information as defined under the Administrative
Simplification (including privacy and security) regulations promulgated pursuant to the Health
Insurance Portability and Accountability Act of 1996, as amended (collectively,
HIPAA
), or other
confidential information relating to healthcare patients (collectively, the
Confidential
Healthcare Information
). The Parent Borrower or the
Restricted Subsidiary maintaining such Confidential Healthcare Information shall, consistent
with HIPAAs minimum necessary provisions, permit such disclosure for their healthcare
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operations purposes. Unless otherwise required by law, the Agents, the Lenders and their
respective representatives shall not require or perform any act that would cause the Parent
Borrower or any of its Subsidiaries to violate any laws, regulations or ordinances intended to
protect the privacy rights of healthcare patients, including, without limitation, HIPAA.
(b) Independently of or in connection with the visits and inspections provided for in
clause (a)
above, but not more than twice a year (unless required by applicable law or an
Event of Default has occurred and is continuing in which case the Administrative Agent may cause
additional appraisals and field examinations to be undertaken at the expense of the Borrowers) upon
the request of the Administrative Agent after reasonable prior notice, the Parent Borrower will,
and will cause each Subsidiary Borrower to, permit the Administrative Agent or professionals
reasonably acceptable to the Parent Borrower (including investment bankers, consultants,
accountants, lawyers and appraisers) retained by the Administrative Agent to conduct appraisals,
commercial finance examinations and other evaluations, including, without limitation, (i) of the
Parent Borrowers practices in the computation of the Borrowing Base, and (ii) inspecting,
verifying and auditing the Collateral. The Borrowers shall pay the fees and expenses of the
Administrative Agent or such professionals with respect to such evaluations and appraisals.
9.3.
Maintenance of Insurance
. The Parent Borrower will, and will cause each
Material Subsidiary to, at all times maintain in full force and effect, pursuant to self-insurance
arrangements or with insurance companies that the Parent Borrower believes (in the good faith
judgment of the management of the Parent Borrower) are financially sound and responsible at the
time the relevant coverage is placed or renewed, insurance in at least such amounts and against at
least such risks (and with such risk retentions) as are usually insured against in the same general
area by companies engaged in the same or a similar business; and will furnish to the Lenders, upon
written request from the Administrative Agent, information presented in reasonable detail as to the
insurance so carried.
9.4.
Payment of Taxes
. The Parent Borrower will pay and discharge, and will
cause each of the Subsidiaries to pay and discharge, all material taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits, or upon any
properties belonging to it, prior to the date on which material penalties attach thereto, and all
lawful material claims in respect of any Taxes imposed, assessed or levied that, if unpaid, could
reasonably be expected to become a material Lien upon any properties of the Parent Borrower or any
of the Restricted Subsidiaries, provided that neither the Parent Borrower nor any of the
Subsidiaries shall be required to pay any such tax, assessment, charge, levy or claim that is being
contested in good faith and by proper proceedings if it has maintained adequate reserves with
respect thereto to the extent required by law and in accordance with GAAP and the failure to pay
could not reasonably be expected to result in a Material Adverse Effect.
9.5.
Consolidated Corporate Franchises
. The Parent Borrower will do, and will
cause each Material Subsidiary to do, or cause to be done, all things necessary to preserve and
keep in full force and effect its existence, corporate rights and authority, except to the extent
that the failure to do so could not reasonably be expected to have a Material Adverse Effect;
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provided, however, that the Parent Borrower and its Subsidiaries may consummate any transaction
permitted under
Section 10.3
,
10.4
or
10.5
.
9.6.
Compliance with Statutes, Regulations, Etc
. The Parent Borrower will,
and will cause each Subsidiary to, comply with all applicable laws, rules, regulations and orders
applicable to it or its property, including all governmental approvals or authorizations required
to conduct its business, and to maintain all such governmental approvals or authorizations in full
force and effect, in each case except where the failure to do so could not reasonably be expected
to have a Material Adverse Effect.
9.7.
ERISA
. Promptly after the Parent Borrower or any ERISA Affiliate knows
or has reason to know of the occurrence of any of the following events that, individually or in the
aggregate (including in the aggregate such events previously disclosed or exempt from disclosure
hereunder, to the extent the liability therefor remains outstanding), would be reasonably likely to
have a Material Adverse Effect, the Parent Borrower will deliver to the Administrative Agent and
each of the Lenders a certificate of an Authorized Officer or any other senior officer of the
Parent Borrower setting forth details as to such occurrence and the action, if any, that the Parent
Borrower or such ERISA Affiliate is required or proposes to take, together with any notices
(required, proposed or otherwise) given to or filed with or by the Parent Borrower such ERISA
Affiliate, the PBGC, a Plan participant (other than notices relating to an individual participants
benefits) or the Plan administrator with respect thereto: that a Reportable Event has occurred;
that an accumulated funding deficiency has been incurred or an application is to be made to the
Secretary of the Treasury for a waiver or modification of the minimum funding standard (including
any required installment payments) or an extension of any amortization period under Section 412 of
the Code with respect to a Plan; that a Plan having an Unfunded Current Liability has been or is to
be terminated, reorganized, partitioned or declared insolvent under Title IV of ERISA (including
the giving of written notice thereof); that a Plan has an Unfunded Current Liability that has or
will result in a lien under ERISA or the Code; that proceedings will be or have been instituted to
terminate a Plan having an Unfunded Current Liability (including the giving of written notice
thereof); that a proceeding has been instituted against the Parent Borrower or an ERISA Affiliate
pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan; that the PBGC has
notified the Parent Borrower or any ERISA Affiliate of its intention to appoint a trustee to
administer any Plan; that the Parent Borrower or any ERISA Affiliate has failed to make a required
installment or other payment pursuant to Section 412 of the Code with respect to a Plan; or that
the Parent Borrower or any ERISA Affiliate has incurred or will incur (or has been notified in
writing that it will incur) any liability (including any contingent or secondary liability) to or
on account of a Plan pursuant to Section 409, 502(i),
502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of the
Code.
9.8.
Maintenance of Properties
. The Parent Borrower will, and will cause each
of the Restricted Subsidiaries to, keep and maintain all property material to the conduct of its
business in good working order and condition, ordinary wear and tear excepted, except to the extent
that the failure to do so could reasonably be expected to have a Material Adverse Effect.
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9.9.
Transactions with Affiliates
. The Parent Borrower will conduct, and
cause each of the Restricted Subsidiaries to conduct, all transactions with any of its Affiliates
(other than the Parent Borrower and the Restricted Subsidiaries) on terms that are substantially as
favorable to the Parent Borrower or such Restricted Subsidiary as it would obtain in a comparable
arms-length transaction with a Person that is not an Affiliate, provided that the foregoing
restrictions shall not apply to (a) the payment of customary fees to the Sponsors for management,
consulting and financial services rendered to the Parent Borrower and the Subsidiaries and
customary investment banking fees paid to the Sponsors for services rendered to the Parent Borrower
and the Subsidiaries in connection with divestitures, acquisitions, financings and other
transactions, (b) transactions permitted by
Section 10.6
, (c) the payment of the
Transaction Expenses, (d) the issuance of Stock or Stock Equivalents of
Hercules Holdings
or
Holdings to the management of the Parent Borrower (or any direct or indirect parent thereof)
or any of its Subsidiaries in connection with the Transactions or pursuant to arrangements
described in
clause (f)
of this
Section 9.9
, (e) loans, advances and other
transactions between or among the Parent Borrower, any Subsidiary or any joint venture (regardless
of the form of legal entity) in which the Parent Borrower or any Subsidiary has invested (and which
Subsidiary or joint venture would not be an Affiliate of the Parent Borrower but for the Parent
Borrowers or a Subsidiarys ownership of Stock or Stock Equivalents in such joint venture or
Subsidiary) to the extent permitted under
Section 10
, (f) employment and severance
arrangements between the Parent Borrower and the Subsidiaries and their respective officers and
employees in the ordinary course of business, (g) payments by the Parent Borrower (and any direct
or indirect parent thereof) and the Subsidiaries pursuant to the tax sharing agreements among the
Parent Borrower (and any such parent) and the Subsidiaries on customary terms to the extent
attributable to the ownership or operation of the Parent Borrower and the Subsidiaries;
provided
that in each case the amount of such payments in any fiscal year does not exceed the amount that
the Parent Borrower and its Restricted Subsidiaries would be required to pay in respect of federal,
state and local taxes for such fiscal year were the Parent Borrower and its Restricted Subsidiaries
(to the extent described above) to pay such taxes separately from any such parent entity, (h) the
payment of customary fees and reasonable out of pocket costs to, and indemnities provided on behalf
of, directors, managers, consultants, officers and employees of the Parent Borrower and the
Subsidiaries in the ordinary course of business to the extent attributable to the ownership or
operation of the Parent Borrower and the Subsidiaries and (i) transactions pursuant to permitted
agreements in existence on the Original Closing Date and set forth on
Schedule 9.9
to the
Original Credit Agreement or any amendment thereto to the extent such an amendment is not adverse,
taken as a whole, to the Lenders in any material
respect. The Parent Borrower will not permit any Consolidated
Entity
Person
to engage
in any transaction with any Sponsor or any Frist Shareholder (or any controlling Affiliate of any
Sponsor or Frist Shareholder), to the extent that such Consolidated
Entity
Person
would be
prohibited from engaging in such transaction if it was a Restricted Subsidiary for purposes of this
Section 9.9
.
9.10.
End of Fiscal Years; Fiscal Quarters
. The Parent Borrower will, for
financial reporting purposes, cause (a) each of its, and each of its Subsidiaries, fiscal years to
end on December 31 of each year and (b) each of its, and each of its Subsidiaries, fiscal quarters
to end on dates consistent with such fiscal year-end and the Parent Borrowers past practice;
provided, however, that the Parent Borrower may, upon written notice to the Administrative Agent
change the financial reporting convention specified above to any other financial reporting
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convention reasonably acceptable to the Administrative Agent, in which case the Parent Borrower and
the Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments to
this Agreement that are necessary in order to reflect such change in financial reporting.
9.11.
Additional Borrowers
. Except as otherwise provided in
Section
10.1
(j) or
10.1(k)
and subject to any applicable limitations set forth in the Security
Documents, the Parent Borrower will cause each direct or indirect Domestic Subsidiary (excluding
any Excluded Subsidiary) formed or otherwise purchased or acquired after the Original Closing Date
(including pursuant to a Permitted Acquisition) and each other Domestic Subsidiary that ceases to
constitute an Excluded Subsidiary), to execute a joinder to this Agreement in order to become a
Subsidiary Borrower and a supplement to the Security Agreement in order to become a grantor under
the Security Agreement or, to the extent reasonably requested by the Collateral Agent, enter into a
new Security Document substantially consistent with the analogous existing Security Documents and
otherwise in form and substance reasonably satisfactory to such Collateral Agent and take all other
action reasonably requested by the Collateral Agent to grant a perfected security interest in its
assets to substantially the same extent as the Credit Parties on the Original Closing Date.
9.12.
[
Reserved
].
9.13.
Use of Proceeds
. The Borrowers will use Letters of Credit, New
Revolving Credit Loans and Swingline Loans for general corporate purposes (including Permitted
Acquisitions).
The Borrowers will also use the proceeds of the New Revolving Credit Loans to effect
the Exchange and the Repayment and to pay fees and expenses related thereto.
9.14.
Further Assurances
. The Parent Borrower will, and will cause each other Credit Party to, execute any and all
further documents, financing statements, agreements and instruments, and take all such further
actions (including the filing and recording of financing statements and other documents) that may
be required under any applicable law, or that the Collateral Agent or the Required Lenders may
reasonably request, in order to grant, preserve, protect and perfect the validity and priority of
the security interests created or intended to be created by the Security Agreement, all at the
expense of the Parent Borrower and the Restricted Subsidiaries.
9.15.
Cash Management Systems.
(a) The Credit Parties will establish and maintain the cash management systems described below
(the
Cash Management Systems
):
(i) Within 60 calendar days after the Original Closing Date (or such later date as the
Administration Agent may, in its sole reasonable discretion, consent to in writing), (x) the
Parent Borrower will, or will cause each of the applicable Subsidiaries to, request in
writing and otherwise take reasonable steps to provide that all Account Debtors in respect
of Governmental Accounts that constitute Collateral forward payment directly to an account
of a Borrower designated as a Government Receivables Deposit Account on
Schedule
9.15(a)
to the Original Credit Agreement (such schedule to be delivered to the
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Administrative Agent on or before the 60th calendar day after the Original Closing Date (or
such later date as the Administration Agent may, in its sole reasonable discretion, consent
to in writing)) (each a
Government Receivables Deposit Account
), (y) the Credit Parties
will, or will cause each of their Subsidiaries to, establish lock boxes (
Lock Boxes
) or,
at the Administrative Agents discretion, blocked accounts (
Blocked Accounts
) listed on
Schedule 9.15(c)
to the Original Credit Agreement (such schedule to be delivered to
the Administrative Agent on or before the 60
th
calendar day after the Original
Closing Date (or such later date as the Administrative Agent may, in its sole reasonable
discretion, consent to in writing)) at one or more banks that are reasonably acceptable to
the Collateral Agent, and shall request in writing and otherwise take reasonable steps to
provide that all Account Debtors with respect to Private Accounts that constitute Collateral
forward payments directly to such Lock Boxes or Blocked Accounts and (z) each Borrower will
deposit and cause its Subsidiaries to deposit or cause to be deposited promptly, and in any
event no later than the first Business Day after the date of receipt thereof, all cash,
checks, drafts or other similar items of payment relating to or constituting payments made
in respect of any and all Collateral (whether or not otherwise delivered to a Lock Box) into
the Blocked Accounts. Until so deposited, all such payments shall be held in trust by each
Borrower and any of its Subsidiaries for the Administrative Agent and shall not be
commingled with any other funds or property of any Borrower. Within 60 calendar days after
the Original Closing Date (or such later date as the Administrative Agent may, in its sole
reasonable discretion, consent to in writing), the Parent Borrower shall have established a
concentration account in its name (the
Concentration Account
) (with a bank reasonably
acceptable to the Administrative Agent (it being agreed that
Wachovia Bank
Wells Fargo
Capital Finance, LLC
is acceptable to the Administrative Agent)) that shall be designated as the
Concentration Account for the Parent Borrower listed on
Schedule 9.15(a)
to the
Original Credit Agreement.
(ii) The Parent Borrower may maintain, in its name, one or more accounts (any such
account, a
Disbursement Account
) at any bank reasonably acceptable to the Administrative
Agent into which the Administrative Agent shall, from time to time, deposit proceeds of
Loans made to the Parent Borrower pursuant to
Section 2.1
for use by the Parent
Borrower solely in accordance with the provisions of
Section 9.13
(it being
understood that the Administrative Agent may also deposit or wire proceeds of Loans into any
other account designated by the Parent Borrower at any time other than during the
continuance of any Cash Dominion Event). The Parent Borrower may also maintain, in its
name, one or more accounts that (x) do not contain any funds that are proceeds of Accounts
that otherwise constitute Collateral or (y) include funds that are proceeds of Accounts that
otherwise constitute Collateral and that are neither Government Receivables Deposit Accounts
nor subject to a Blocked Account Agreement ,but solely (in the case of this clause (y) only)
to the extent that any such accounts are not subject to a blocked account or control
agreement with any other party (each a
Non-Controlled Account
).
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(iii) Within 60 calendar days after the Original Closing Date (or such later date as
the Administrative Agent may, in its sole discretion, consent to in writing), each Borrower
that owns or originates Government Accounts shall deliver to the Collateral Agent (x) for
each Government Receivables Deposit Account established or maintained by such Borrower, a
tri-party deposit account agreement between the Collateral Agent, the bank at which such
Government Receivables Deposit Account (each a
Government Receivables Bank
) is maintained
and such Borrower, in form and substance reasonably satisfactory to the Collateral Agent
(each a
Government Receivables Deposit Account Agreement
), and (y) for the accounts of any
Borrower designated as a Blocked Account on
Schedule 9.15(c)
to the Original Credit
Agreement and for the Concentration Account and any Disbursement Accounts, a tri-party
blocked account agreement or lockbox account agreement between the Collateral Agent, the
bank at which each such Blocked Account, Concentration Account or Disbursement Account is
maintained and the relevant Borrowers, in form and substance reasonably satisfactory to the
Collateral Agent (each a
Blocked Account Agreement
). Each such Blocked Account Agreement
with respect to any Blocked Account shall provide, among other things, that from and after
the date thereof the bank at which any such Blocked Account is maintained, agrees to forward
immediately all amounts in each such account to the Concentration Account. In addition, any
such Blocked Account Agreement shall provide, among other things, that at all times
following the establishment of the Cash Management Systems pursuant to this
Section
9.15(a)
, upon the occurrence and during the continuation of a Cash Dominion Event, the
bank at which such Blocked Account, Concentration Account or Disbursement Account is
maintained shall, upon receipt of notice by the Collateral Agent of such Cash Dominion
Event, commence the process of daily sweeps from such accounts into the Collection Account
(it being understood that any such daily sweep in respect of any cash or other amount in a
Disbursement Account shall be subject to the rights of the
Borrowers to transfer, apply or otherwise use the proceeds of any Loans hereunder for
any purpose in accordance with
Section 9.13
by moving any cash or other amount on
deposit in any Disbursement Account out of such account for any such purpose);
provided
that any amounts in the Concentration Accounts reasonably identified (with
reasonably detailed written support) to the Administrative Agent as not constituting
Collateral will be distributed as directed by the Administrative Agent as requested by the
Parent Borrower, including to one or more Non-Controlled Accounts. Notwithstanding anything
to the contrary herein or in any other Credit Document, no cash or other amount that is
disbursed or otherwise transferred from the Disbursement Account (other than to the extent
swept back into the Collection Account) shall constitute Collateral.
(iv) Following the establishment of the Cash Management Systems pursuant to
Section
9.15(a)
, by 10:00 a.m. (New York time) on each Business Day, each Borrower will cause
the entire available balance in each Government Receivables Deposit Account to be
transferred by ACH or book entry transfer to the Concentration Account. The Borrowers will
not transfer any funds out of the Government Receivables Deposit Account or any Blocked
Account except to the Concentration Account. The balance from time to time standing to the
credit of the Blocked Accounts shall be distributed as directed in accordance with the
provisions of the Blocked Account Agreements. Prior to the occurrence of any first Cash
Dominion Event, the balance from time to time standing
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to the credit of the Concentration
Account shall be distributed as directed by the Parent Borrower, including to one or more
Non-Controlled Accounts. The Parent Borrower shall not, and shall not cause or permit any
Subsidiary thereof to, accumulate or maintain cash (other than cash that is not proceeds of
any Collateral) in disbursement accounts or payroll accounts as of any date of determination
in excess of checks outstanding against such accounts as of the date and amounts necessary
to meet minimum balance, near-term funding requirements or near-term operating requirements.
Notwithstanding anything to the contrary, cash held in overnight deposit or investment
accounts shall be deemed to be in the Concentration Account overnight.
(v) So long as no Default or Event of Default has occurred and is continuing, the
Parent Borrower, following the establishment of the Cash Management Systems pursuant to
Section 9.15
and the delivery of the applicable schedules related thereto, may amend
Schedules 9.15(a)
and
(c)
to the Original Credit Agreement to add or replace
a bank, any Government Receivables Deposit Account, the Concentration Account, any Blocked
Account or any Disbursement Account;
provided
that (x) the Administrative Agent
shall have consented in writing in advance to the opening of such new or replacement account
with the relevant bank (which consent shall not be unreasonably withheld) and (y) prior to
the time of the opening of such account, the applicable Borrower and such bank shall have
executed and delivered to the Collateral Agent a tri-party agreement, in form and substance
reasonably satisfactory to the Collateral Agent in it sole discretion. Each Borrower shall
cease using any account to hold proceeds of Collateral promptly and in any event within 30
days (or such later date as the Administrative Agent may, in its sole reasonable discretion,
consent to in writing) following notice from the Administrative Agent to the Parent Borrower
that the creditworthiness of the bank holding such account is no longer acceptable in the
Administrative Agents reasonable credit judgment, or as promptly as practicable and in
any event within 60 days (or such later date as the Administrative Agent may, in its sole
reasonable discretion, consent to in writing) following notice from the Administrative Agent
to the Parent Borrower that the operating performance, funds transfer or availability
procedures or performance with respect to accounts or lockboxes of the bank holding such
account or Agents liability under any tri-party blocked account agreement with such bank is
no longer acceptable in the Administrative Agents reasonable credit judgment.
(vi) The Government Receivables Deposit Accounts, the Concentration Account, the
Blocked Accounts and the Disbursement Accounts (subject to the last two sentences of
Section 9.15(a)(iii)
) shall be cash collateral accounts, with all cash, checks and
other similar items of payment in such accounts (to the extent constituting proceeds of
Accounts otherwise constituting Collateral) securing payment of the Loans and all other
Obligations, and in which the applicable Borrower shall have granted a Lien to the
Collateral Agent, on behalf of itself and Lenders, pursuant to the Security Agreement. The
Borrowers shall use commercially reasonable efforts to ensure that all cash, checks and
other similar items of payment in the Government Receivables Deposit Accounts, the
Concentration Account and the Blocked Accounts are solely in respect of Accounts that
otherwise constitute Collateral;
provided
that
,
following the establishment
of the Cash
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Management Systems pursuant to
Section 9.15(a)
,
credit card,
debit card and internet bill inquiry and payment system (IBIP) payments received in the
Concentration Account that do not constitute proceeds of Accounts otherwise constituting
Collateral shall be permitted in the Concentration Account so long as the Borrowers use
their commercially reasonable efforts to distribute such amounts to a Non-Controlled Account
within three (3) Business Days of receipt thereof.
(vii) All amounts deposited in the Collection Account shall be deemed received by the
Administrative Agent in accordance with
Section 5
and shall be applied (and
allocated) by the Administrative Agent in accordance with
Section 5
. In no event
shall any amount be so applied unless and until such amount shall have been credited in
immediately available funds to the Collection Account.
(viii) The Borrowers shall and shall cause their respective Affiliates, officers,
employees, agents, directors or other Persons acting for or in concert with a Borrower (each
a
Related Person
) to (x) hold in trust for the Administrative Agent, for the benefit of
itself and Lenders, all checks, cash and other items of payment received by a Borrower or by
a Related Person on behalf of a Borrower in respect of Accounts that constitute Collateral,
and (y) following the establishment of the Cash Management Systems pursuant to
Section
9.15(a)
, within 1 Business Day after receipt by a Borrower or by a Related Person on
behalf of a Borrower of any checks, cash or other items of payment in respect of Accounts
that constitute Collateral, deposit the same into a Blocked Account or the Concentration
Account. Each Borrower and each Related Person thereof acknowledges and agrees that all
cash, checks or other items of payment constituting proceeds of Collateral are part of the
Collateral. Following the establishment of the Cash Management Systems pursuant to
Section 9.15(a)
, all proceeds of the sale or other
disposition of any Collateral, shall be deposited directly into a Blocked Account or
the Concentration Account (or if proceeds of Government Accounts, into a Government
Receivables Deposit Account).
(b) (i) During the continuance of a Cash Dominion Event following the establishment of the
Cash Management Systems pursuant to
Section 9.15(a)
, the Borrowers shall provide the
Collateral Agent with an accounting of the contents of the Government Receivables Deposit Accounts,
the Blocked Accounts and the Concentration Account, which shall identify, to the reasonable
satisfaction of the Collateral Agent, the proceeds from the Collateral which were deposited into a
Blocked Account and swept to the Concentration Account.
(i)
(ii)
Within 1 Business Day of the occurrence of a Cash Dominion Event
following the establishment of the Cash Management Systems pursuant to
Section
9.15(a)
, the Borrowers shall deposit into the Collection Account an amount equal to the
entire amount of cash constituting Collateral held in any Non-Controlled Account.
(c) Upon the occurrence and during the continuance of a Cash Dominion Event following the
establishment of the Cash Management Systems pursuant to
Section 9.15(a)
, the Concentration
Account and each Blocked Account shall at all times be under the sole dominion and control of the
Collateral Agent. The Borrowers hereby acknowledge and agree
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that during the continuance of a Cash
Dominion Event following the establishment of the Cash Management Systems pursuant to
Section
9.15(a)
, (i) the Borrowers have no right of withdrawal from the Concentration Account (subject
to the proviso to the last sentence of
Section 9.15(a)(iii)
), (ii) the funds on deposit in
the Concentration Account shall at all times be collateral security for all of the Obligations
(other than to the extent such funds do not constitute proceeds of Accounts that are otherwise
Collateral) and (iii) the funds on deposit in the Concentration Account shall be applied as
provided in this Agreement. In the event that, notwithstanding the provisions of this
Section
9.15
, any Borrower receives or otherwise has dominion and control of any proceeds or
collections of Accounts that otherwise constitute Collateral outside of the Government Receivables
Deposit Accounts, the Concentration Account, any Blocked Account and any Disbursement Account, such
proceeds and collections shall be held in trust by such Borrower for the Collateral Agent and
shall, not later than the Business Day after receipt thereof, be deposited into the Concentration
Account or dealt with in such other fashion as such Borrower may be instructed by the Collateral
Agent.
(d) [Intentionally Omitted].
(e) (i) Annexed as
Schedule 9.15(e)
to the Original Credit Agreement (such schedule
to be delivered to the Administrative Agent on or before the 60th calendar day after the Original
Closing Date (or such later date as the Administration Agent may, in its sole reasonable
discretion, consent to in writing)) is a list as of the date such Schedule is or was delivered, of
all arrangements to which any Borrower is a party with respect to the payment to such Borrower of
the proceeds of all credit card charges for services by such Borrower.
(i)
(ii)
Within 60 calendar days after the Original Closing Date (or such later
date as the Administrative Agent may, in its sole discretion, consent in writing), each
Borrower shall deliver to the Collateral Agent notifications (each, a
Credit Card
Notification
) in form and substance reasonably satisfactory to the Collateral Agent
which have been executed on behalf of such Borrower and addressed to such Borrowers credit
card clearinghouses and processors listed on
Schedule 9.15(e)
to the Original Credit
Agreement. Each Credit Card Notification shall provide, among other things, that from and
after the date thereof, all amounts owing to a Borrower and constituting proceeds of
Collateral shall be forwarded immediately to the Concentration Account.
(ii)
(iii)
Unless consented to in writing by the Collateral Agent, after the
delivery of
Schedule 9.15(e)
to the Original Credit Agreement the Borrowers shall
not enter into any agreements with credit card processors other than the ones expressly
contemplated herein unless contemporaneously therewith, a Credit Card Notification, is
executed and delivered to the Collateral Agent.
(f) After the occurrence of any first Cash Dominion Event following the establishment of the
Cash Management Systems pursuant to
Section 9.15(a)
, the Borrowers will be prohibited from
depositing cash constituting Collateral in any deposit account other than Government Receivables
Deposit Accounts, Blocked Accounts, the Concentration Account, Disbursement Accounts and the
Collection Account.
SECTION 10.
Negative Covenants
.
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The Parent Borrower hereby covenants and agrees that on the Original Closing Date (immediately
after consummation of the Merger) and thereafter, until the Commitments, the Swingline Commitment
and each Letter of Credit have terminated and the Loans and Unpaid Drawings, together with
interest, Fees and all other Obligations incurred hereunder, are paid in full:
10.1.
Limitation on Indebtedness
. The Parent Borrower will not, and will not
permit any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) (w) Indebtedness arising under the Credit Documents, (x) Indebtedness arising under any
Permitted Receivables Financing in an aggregate principal amount not to exceed, together with
Indebtedness arising under the Credit Documents, $2,000,000,000, (y) Indebtedness arising under the
CF Facility in an aggregate principal amount not to exceed $14,800,000,000 at any time outstanding
minus
the net cash proceeds received from any Indebtedness incurred under
Section
10.1(y)(i)
(plus additional Indebtedness under
subclauses (x)
or
(y)
above or
under any amendment thereto, which together with any Incremental Revolving Credit Commitments
incurred pursuant to
Section 2.14
of this Agreement
(other than Ratio First Lien
Indebtedness)
, do not exceed $1,500,000,000 in aggregate principal amount) and (z) intercompany
Indebtedness of Restricted Subsidiaries, and any Guarantee Obligations in respect thereof, to
allocate the Parent Borrowers cost of borrowing
to such Subsidiaries
with respect to
Indebtedness referred to in
subclauses (w), (x)
and
(y)
to such Subsidiaries
or
in respect of Indebtedness incurred following the Original Closing Date by the Parent Borrower
;
(b) Subject to compliance with
Section 10.5
, Indebtedness of the Parent Borrower or
any Restricted Subsidiary owed to the Parent Borrower or any Restricted Subsidiary;
provided
that, in each case, all such Indebtedness of any Credit Party owed to any Person
that is not a Credit Party shall be subordinated to the Obligations of such Credit Party on
customary terms;
(c) Indebtedness in respect of any bankers acceptance, bank guarantees, letter of credit,
warehouse receipt or similar facilities entered into in the ordinary course of business (including
in respect of workers compensation claims, health, disability or other employee benefits or
property, casualty or liability insurance or self-insurance or other Indebtedness with respect to
reimbursement-type obligations regarding workers compensation claims);
(d) subject to compliance with
Section 10.5
, Guarantee Obligations incurred by (i)
Restricted Subsidiaries in respect of Indebtedness of the Parent Borrower or other Restricted
Subsidiaries that is permitted to be incurred under this Agreement (except to the extent of any
express restriction on Guarantee Obligations relating to such Indebtedness provided for herein) and
(ii) the Parent Borrower in respect of Indebtedness of Restricted Subsidiaries that is permitted to
be incurred under this Agreement,
provided
that, except as provided in
clauses (j)
and
(k)
below, there shall be no guarantee by a Restricted Subsidiary that is not a
Subsidiary Borrower of any Indebtedness of a Credit Party;
(e) Guarantee Obligations (i) incurred in the ordinary course of business in respect of
obligations of (or to) suppliers, customers, franchisees, lessors and licensees or (ii)
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otherwise constituting Investments permitted by
Sections 10.5
(e), 10.5(
g)
(ii)
,
10.5(i)
,
10.5(q),
or
10.5(
q
y
)
;
(f) (i) Indebtedness (including Indebtedness arising under Capital Leases) incurred within 270
days of the acquisition, construction or improvement of fixed or capital assets to finance the
acquisition, construction or improvement of such fixed or capital assets, (ii) Indebtedness arising
under Capital Leases entered into in connection with Permitted Sale Leasebacks and (iii)
Indebtedness arising under Capital Leases, other than Capital Leases in effect on the Original
Closing Date and Capital Leases entered into pursuant to
subclauses (i)
and
(ii)
above,
provided
that the aggregate amount of Indebtedness incurred pursuant to this
subclause (iii)
at any time outstanding shall not exceed $300,000,000, and (iv) any
modification, replacement, refinancing, refunding, renewal or extension of any Indebtedness
specified in
subclause (i)
,
(ii)
or
(iii)
above,
provided
that,
except to the extent otherwise expressly permitted hereunder, the principal amount thereof does not
exceed the principal amount thereof outstanding immediately prior to such modification,
replacement, refinancing, refunding, renewal or extension except by an amount equal to the unpaid
accrued interest and premium thereon plus other reasonable amounts paid and fees and expenses
incurred in connection with such modification, replacement, refinancing, refunding, renewal or
extension;
(g) (i) Indebtedness outstanding on the Original Closing Date listed on
Schedule 10.1
to the Original Credit Agreement
(other than Retained Indebtedness with a stated final maturity (as
of the Original Closing Date) prior to the Final Maturity Date)
, (ii) Indebtedness existing on the
Original Closing Date (after giving effect to the Transactions
described in clause (ii) of the definition thereof) and owed by the Parent Borrower or any
Restricted Subsidiary to the Parent Borrower or any Restricted Subsidiary, and any Guarantee
Obligations in respect thereof, but only for so long as such Indebtedness or any refinancing,
refunding or renewal thereof permitted by this
subclause(ii)
is held by the Parent
Borrower, such Restricted Subsidiary or a Credit Party and, in the case of each of the preceding
subclauses (i)
and
(ii)
, any modification, replacement, refinancing, refunding,
renewal or extension thereof (or, in the case of this
subclause (ii)
only, any intercompany
transfer of creditor positions in respect thereof pursuant to intercompany debt restructurings);
provided
that all such Indebtedness arising as a result of any such transfer of creditor
positions as contemplated by
subclause (ii)
of any Credit Party owed to any Person that is
not a Credit Party shall be subordinated to the Obligations of such Credit Party on customary
terms;
provided
,
further
, that, except to the extent otherwise expressly permitted
hereunder, in the case of any such modification, replacement, refinancing, refunding, renewal or
extension (but not any such transfer or creditor positions), (x) the principal amount thereof does
not exceed the principal amount thereof outstanding immediately prior to such modification,
replacement, refinancing, refunding, renewal or extension, except by an amount equal to the unpaid
accrued interest and premium thereon plus other reasonable amounts paid and fees and expenses
incurred in connection with such modification, replacement, refinancing, refunding, renewal or
extension, (y) the direct and contingent obligors with respect to such Indebtedness are not changed
(except that any
refinancing of Retained Indebtedness may provide for guarantees by the Subsidiary
Borrowers on a subordinated basis to such Subsidiary Borrowers obligations hereunder), and (z) no
portion of such Indebtedness matures prior to the Final Maturity Date (
Credit Party may also be
an obligor thereunder), and (z)
except in the case of a refinancing of Indebtedness pursuant to
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subclause (ii)
) and
, either
(
iii
I
)
Retained
such
Indebtedness
with
has
a
stated final maturity (as of the Original Closing Date)
later final maturity
and longer weighted average life to maturity than the Indebtedness being refinanced or (II) no
portion of such refinancing Indebtedness matures
prior to the Final Maturity Date
and any
modification, refinancing, refunding renewal or extension thereof;
provided
that (x) the
principal amount thereof does not exceed the principal amount thereof outstanding immediately prior
to such modification, replacement, refinancing, refunding, renewal or extension, except by an
amount equal to the unpaid accrued interest and premium thereon plus other reasonable amounts paid
and fees and expenses incurred in connection with such modification, replacement, refinancing,
refunding, renewal or extension, (y) no portion of such Indebtedness matures prior to the stated
final maturity of such Retained Indebtedness as of the Original Closing Date and (z) no portion of
such Indebtedness shall be issued by or guaranteed by any Restricted Subsidiary unless such
Restricted Subsidiary is a Subsidiary Borrower
(determined as of the date such Indebtedness is
incurred)
;
(h) Indebtedness in respect of Hedge Agreements;
(i) Indebtedness in respect of (i)
Existing
Junior Lien Notes
in an aggregate
principal amount not to exceed $5,700,000,000 plus, in respect of the Toggle Notes, the PIK
Interest Amount
, (ii) any modification, replacement, refinancing, refunding, renewal or extension
of Indebtedness referred to in the foregoing
subclause (i)
that constitutes Permitted
Junior Lien
Additional
Debt;
provided
that the principal amount thereof does not
exceed the principal amount thereof outstanding immediately prior to such modification,
replacement, refinancing, refunding, renewal or extension, except by an amount equal to the unpaid
accrued interest and
premium thereon plus other reasonable amounts paid and fees and expenses incurred in
connection with such modification, replacement, refinancing, refunding, renewal or extension and
(z) intercompany Indebtedness of Restricted Subsidiaries, and any Guarantee Obligations in respect
thereof, to allocate the Parent Borrowers cost of borrowing with respect to Indebtedness referred
to in
subclauses (x)
and
(y)
to such Subsidiaries
or in respect of Indebtedness
incurred following the Original Closing Date by the Parent Borrower
;
(j) (i) Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in
either case, becomes a Restricted Subsidiary (or is a Restricted Subsidiary that survives a merger
with such Person) or Indebtedness attaching to assets that are acquired by the Parent Borrower or
any Restricted Subsidiary, in each case after the Original Closing Date as the result of a
Permitted Acquisition;
provided
that
(w) such Indebtedness existed at the time such Person became a Restricted
Subsidiary or at the time such assets were acquired and, in each case, was not
created in anticipation thereof,
(x) such Indebtedness is not guaranteed in any respect by the Parent Borrower
or any Restricted Subsidiary (other than by any such Person that so becomes a
Restricted Subsidiary or is the survivor of a merger with such Person or any of its
Subsidiaries),
(y) such Person executes a joinder hereto to become a Subsidiary Borrower, a
supplement to the Security Agreement (or an alternative security
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agreement in relation to the Obligations reasonably acceptable to the Collateral Agent) and a
supplemental acknowledgement to the Intercreditor Agreement, in each case to the
extent required under
Section 9.11
;
provided
that the requirements
of this
subclause (y)
shall not apply to (I) an aggregate amount at any time
outstanding of up to $600,000,000 of the sum of (1) such Indebtedness (and
modifications, replacements, refinancing, refundings, renewals and extensions
thereof pursuant to
subclause (ii)
below) and (2) all Indebtedness as to
which the proviso to
clause (k)(i)(y)
below then applies and (II) any
Indebtedness of the type that could have been incurred under
subclause (i)
or
(ii)
of
Section 10.1(f)
; and
(z) (A) after giving Pro Forma Effect to the incurrence of such Indebtedness
and the application of proceeds thereof, the Parent Borrower is in compliance with
Section
10.9
10.8
of the CF Agreement for the most recently ended
Test Period
for which Section 9.1 Financials have been delivered
and (B)
except for Indebtedness consisting of Capital Lease Obligations, revenue bonds,
purchase money Indebtedness or mortgages or other Liens on specific assets, (1)
no
portion of such Indebtedness matures prior to the Final Maturity Date
after
giving effect to the incurrence of such Indebtedness, the aggregate amount of
Scheduled Inside Payments does not exceed the greater of (I) $3,000,000,000 and (II)
50% of Consolidated EBITDA for the most recent Test Period for which Section 9.1
Financials have been delivered
, and (2) except for Indebtedness
permitted by the proviso to
subclause (y)
above, no portion of such
Indebtedness is issued or guaranteed by a Person that is, or as a result of such
acquisition becomes, a Restricted Subsidiary that is not a Subsidiary Borrower; and
(ii) any modification, replacement, refinancing, refunding, renewal or extension of any
Indebtedness specified in
subclause (i)
above,
provided
that, except to the
extent otherwise expressly permitted hereunder, (x) the principal amount of any such
Indebtedness does not exceed the principal amount thereof outstanding immediately prior to
such modification, replacement, refinancing, refunding, renewal or extension except by an
amount equal to the unpaid accrued interest and premium thereon
plus
other
reasonable amounts paid and fees and expenses incurred in connection with such modification,
replacement, refinancing, refunding, renewal or extension, (y) the direct and contingent
obligors with respect to such Indebtedness are not changed and (z) if the Indebtedness being
refinanced, or any guarantee thereof, constituted Subordinated Indebtedness, then such
replacement or refinancing Indebtedness, or such guarantee, respectively, shall be
subordinated to the Obligations to substantially the same extent;
(k) (i)(A) Permitted Additional Debt incurred to finance a Permitted Acquisition and (B)
Indebtedness of the Parent Borrower or any Restricted Subsidiary to finance a Permitted Acquisition
as to which the proviso to
subclause (y)
below applies and that is not incurred or
guaranteed in any respect by any Restricted Subsidiary (other than by any Person acquired as a
result of such Permitted Acquisition or the Restricted Subsidiary incurring such Indebtedness) or,
in the case of Indebtedness of any Restricted Subsidiary, by the Parent Borrower;
provided
that
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(x) such acquired Person executes a joinder to this Agreement to become a
Subsidiary Borrower and a supplement to the Security Agreement (or an alternative
security agreement in relation to the Obligations reasonably acceptable to the
Collateral Agent) and a supplemental acknowledgement to the Intercreditor Agreement,
in each case to the extent required under
Section 9.11
;
provided
that the requirements of this
subclause (x)
shall not apply to (I) an
aggregate amount at any time outstanding of up to $600,000,000 of the sum of (1)
such Indebtedness (and modifications, replacements, refinancing, refundings,
renewals and extensions thereof pursuant to
subclause (ii)
below) and (2)
all Indebtedness as to which
clause (I)
of the proviso to
clause
(j)(i)(y)
above then applies, and
(y) (A) after giving Pro Forma Effect to the incurrence of such Indebtedness
and the application of proceeds thereof, the Parent Borrower is in compliance with
Section
10.9
10.8
of the CF Agreement for the most recently ended
Test Period
for which Section 9.1 Financials have been delivered
and (B) (1)
no portion of such Indebtedness matures prior to the Final Maturity Date
after
giving effect to the incurrence of such Indebtedness, the aggregate amount of
Scheduled Inside Payments does not exceed the greater of (I) $3,000,000,000 and (II)
50% of Consolidated EBITDA for the most recent Test Period for which Section 9.1
Financials have been delivered
, and (2) except for Indebtedness
permitted by the proviso to
subclause (x)
above, no portion of such
Indebtedness is issued or guaranteed by a Person that is, or as a result of such
acquisition becomes, a Restricted Subsidiary that is not a Subsidiary Borrower; and
(ii) any modification, replacement, refinancing, refunding, renewal or extension of any
Indebtedness specified in
subclause (i)
above,
provided
that, except to the
extent otherwise expressly permitted hereunder, (w) the principal amount of any such
Indebtedness does not exceed the principal amount thereof outstanding immediately prior to
such modification, replacement, refinancing, refunding, renewal or extension except by an
amount equal to the unpaid accrued interest and premium thereon
plus
other
reasonable amounts paid and fees and expenses incurred in connection with such modification,
replacement, refinancing, refunding, renewal or extension, (x) the direct and contingent
obligors with respect to such Indebtedness are not changed, (y) there is no scheduled
repayment, mandatory redemption or sinking fund obligation with respect to such Indebtedness
prior to the Final Maturity Date (other than customary offers to purchase upon a change of
control, asset sale or event of loss and customary acceleration rights after an event of
default)
except to the extent that after giving effect to the incurrence of such
Indebtedness, the aggregate amount of Scheduled Inside Payments does not exceed the greater
of (I) $3,000,000,000 and (II) 50% of Consolidated EBITDA for the most recent Test Period
for which Section 9.1 Financials have been delivered
and (z) if the Indebtedness being
refinanced, or any guarantee thereof, constituted Subordinated Indebtedness, then such
replacement or refinancing Indebtedness, or such guarantee, respectively, shall be
subordinated to the Obligations to substantially the same extent;
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(l) Indebtedness in respect of performance bonds, bid bonds, appeal bonds, surety bonds and
completion guarantees and similar obligations not in connection with money borrowed, in each case
provided in the ordinary course of business, including those incurred to secure health, safety and
environmental obligations in the ordinary course of business;
(m) (i) Indebtedness incurred in connection with any Permitted Sale Leaseback
(
provided
that the Net Cash Proceeds (as defined in the CF Agreement) thereof are promptly
applied to permanently reduce Indebtedness of one or more Borrowers to the extent required by the
CF Agreement and (ii) any refinancing, refunding, renewal or extension of any Indebtedness
specified in
subclause (i)
above,
provided
that, except to the extent otherwise
permitted hereunder, (x) the principal amount of any such Indebtedness is not increased above the
principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or
extension and (y) the direct and contingent obligors with respect to such Indebtedness are not
changed;
(n) (i) additional Indebtedness and (ii) any refinancing, refunding, renewal or extension of
any Indebtedness specified in
subclause (i)
above;
provided
that the aggregate
amount of Indebtedness incurred and remaining outstanding pursuant to this
clause (n)
shall
not at any time exceed $1,500,000,000 (of which amount, no more than $500,000,000 shall be
Indebtedness of any Restricted Subsidiary that is not a Borrower);
(o) Indebtedness in respect of (i) Permitted Additional Debt to the extent that the Net Cash
Proceeds (as defined in the CF Agreement) therefrom are, immediately after the receipt thereof,
applied to permanently reduce Indebtedness of one or more Borrowers to the extent required by the
CF Agreement and (ii) any refinancing, refunding, renewal or extension of any Indebtedness
specified in
subclause (i)
above,
;
provided
that, except to the extent
otherwise permitted hereunder, (x) the principal amount of any such Indebtedness is not increased
above the principal amount thereof outstanding immediately prior to such refinancing, refunding,
renewal or extension, (y) the direct and contingent obligors with respect to such Indebtedness are
not changed and (z) if the Indebtedness being refinanced, or any guarantee thereof, constituted
Subordinated Indebtedness, then such replacement or refinancing Indebtedness, or such guarantee,
respectively, shall be subordinated to the Obligations to substantially the same extent;
(p) Indebtedness in respect of overdraft facilities, employee credit card programs, netting
services, automatic clearinghouse arrangements and other cash management and similar arrangements
in the ordinary course of business;
(q) unsecured Indebtedness in respect of obligations of the Parent Borrower or any Restricted
Subsidiary to pay the deferred purchase price of goods or services or progress payments in
connection with such goods and
services
,
;
provided
that such obligations are
incurred in connection with open accounts extended by suppliers on customary trade terms in the
ordinary course of business and not in connection with the borrowing of money or Hedge Agreements;
(r) Indebtedness arising from agreements of the Parent Borrower or any Restricted Subsidiary
providing for indemnification, adjustment of purchase price or similar obligations, in each case
entered into in connection with the disposition of any business, assets or
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Stock permitted
hereunder, other than Guarantee Obligations incurred by any Person acquiring all or any portion of
such business, assets or Stock for the purpose of financing such acquisition,
;
provided
that such amount is not Indebtedness required to be reflected on the balance sheet
of the Parent Borrower or any Restricted Subsidiary in accordance with GAAP (contingent obligations
referred to in a footnote to financial statements and not otherwise reflected on the balance sheet
will not be deemed to be reflected on such balance sheet for purposes of this proviso);
(s) Indebtedness of the Parent Borrower or any Restricted Subsidiary consisting of (i)
obligations to pay insurance premiums or (ii) take or pay obligations contained in supply
agreements, in each case arising in the ordinary course of business and not in connection with the
borrowing of money or Hedge Agreements;
(t) Indebtedness representing deferred compensation to employees of the Parent Borrower (or
any direct or indirect parent thereof) and the Restricted Subsidiaries incurred in the ordinary
course of business;
(u) Indebtedness consisting of promissory notes issued by any Borrower or any Guarantor (as
defined in the CF Agreement) to current or former officers, managers, consultants, directors and
employees (or their respective spouses, former spouses, successors, executors, administrators,
heirs, legatees or distributees) to finance the purchase or redemption of
Stock or Stock Equivalents of the Parent Borrower (or any direct or indirect parent thereof)
permitted by
Section 10.6(b)
;
(v) Indebtedness consisting of obligations of the Parent Borrower and the Restricted
Subsidiaries under deferred compensation or other similar arrangements to officers, employees and
directors incurred by such Person in connection with the Transactions described in clause (ii) of
the definition thereof and Permitted Acquisitions or any other Investment expressly permitted
hereunder;
(w) additional Indebtedness of Foreign Subsidiaries in an aggregate principal amount that at
the time of incurrence does not cause the aggregate principal amount of Indebtedness incurred in
reliance on this
clause (w)
to exceed 2.5% of Consolidated Total Assets at such time;
provided
that for purposes of this
clause (w)
only, Consolidated Total Assets
shall be determined only with reference to the assets of Foreign Subsidiaries;
(x) Indebtedness of the Parent Borrower or any Restricted Subsidiary to any joint venture
(regardless of the form of legal entity) that is not a Subsidiary arising in the ordinary course of
business in connection with the cash management operations (including with respect to intercompany
self-insurance arrangements) of the Parent Borrower and its Restricted Subsidiaries;
(y) Indebtedness in respect of (i) Future Secured
Notes
Debt
to the extent that such
Future Secured Debt constitute Ratio First Lien
Indebtedness
, (ii) such Future Secured
Debt
is
incurred no earlier than 90 days before the First Amendment Date and the net cash
proceeds therefrom are, within three (3) Business Days (or within 180 days in the case of any such
Indebtedness incurred prior to the First Amendment Date) after the receipt thereof, applied to
permanently repay Term Loans (as defined in the CF Agreement) under the CF Agreement on a
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pro rata
basis across the several tranches thereof and (ii
the Existing First Lien Notes or are
designated as Refinancing Future Secured Debt and (iii
) any refinancing, refunding, renewal or
extension of any Indebtedness specified in
subclause (i)
or (ii)
above;
provided
that,
in the case of this subclause (iii),
except to the extent otherwise
permitted hereunder, (x) the principal amount of any such Indebtedness is not increased above the
principal amount thereof outstanding immediately prior to such refinancing, refunding, renewal or
extension (except for any original issue discount thereon and the amount of fees, expenses and
premium in connection with such refinancing), (y) the direct and contingent obligors with respect
to such Indebtedness are not changed and (z) such Indebtedness otherwise complies with
clauses
(a)
and
(b)
of the definition of Future Secured
Notes
Debt; and
(z)
(i) Permitted Additional Debt so long as after giving Pro Forma Effect to the
incurrence of such Indebtedness and the application of proceeds thereof, the Parent Borrower is in
compliance with the covenant set forth in Section 10.8 of the CF Agreement for the most recently
ended Test Period for which Section 9.1 Financials have been delivered and (ii) any refinancing,
refunding, renewal or extension of any Indebtedness specified in subclause (i) above, provided
that, except to the extent otherwise permitted hereunder, (x) the principal amount of any such
Indebtedness is not increased above the principal amount thereof outstanding immediately prior to
such refinancing, refunding, renewal or extension, (y) the direct and
contingent obligors with respect to such Indebtedness are not changed and (z) if the
Indebtedness being refinanced, or any guarantee thereof, constituted Subordinated Indebtedness,
then such replacement or refinancing Indebtedness, or such guarantee, respectively, shall be
subordinated to the Obligations to substantially the same extent
.
Notwithstanding the foregoing, the Parent Borrower shall not permit any 1993 Indenture Restricted
Subsidiary to create, incur, assume or suffer to exist any Indebtedness, except that the 1993
Indenture Restricted Subsidiaries (other than Healthtrust, except in the case of Indebtedness owing
to any Credit Party) may create, incur, assume or suffer to exist (x) Indebtedness under
clause
(b)
above that is owed to a Credit Party or another 1993 Indenture Restricted Subsidiary to the
extent permitted under section 1107 of the 1993 Indenture and (y) Indebtedness that is otherwise
permitted in accordance with an exception set forth above in an aggregate principal amount
outstanding at any time that, when aggregated (without duplication) with (i) the aggregate
principal amount of all other Indebtedness (other than Indebtedness permitted by
subclause
(x)
above) secured by Liens on any assets of 1993 Indenture Restricted Subsidiaries and (ii)
the aggregate principal amount of all Indebtedness (other than the Obligations) secured by Liens on
Principal Properties, does not exceed at any time outstanding the lesser of (A) $600,000,000 and
(B) 5% of Consolidated Net Tangible Assets (as defined in the 1993 Indenture as in effect on the
Original Closing Date) determined as of the date of such incurrence, in each case, to the extent
permitted by Section 1107 or 1108 of the 1993 Indenture.
10.2.
Limitation on Liens
. The Parent Borrower will not, and will not permit
any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any
property or assets of any kind (real or personal, tangible or intangible) of the Parent Borrower or
any Restricted Subsidiary, whether owned as of the Original Closing Date or thereafter acquired,
except:
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(a) Liens arising under the Credit Documents;
(b) Liens securing the CF Facility arising under CF Documents and Liens securing the
Indebtedness permitted by
Section 10.1(y)
;
provided
that, with respect to any such
Liens on the Shared Receivables Collateral, at the time such Liens are created, the holders of the
Indebtedness secured thereby (or a representative thereof on behalf of such holders) shall have
entered into the Intercreditor Agreement with such obligations as Subordinated Lien Obligations (as
defined in the Intercreditor Agreement) or an Additional Receivables Intercreditor Agreement (it
being understood that this condition as to the Liens securing the CF Facility arising under the CF
Documents was satisfied as a result of the receipt by the Administrative Agent of the Intercreditor
Agreement pursuant to
Section 6.1(d)
of the Original Credit Agreement);
(c) Liens on the Junior Lien Notes Collateral securing the
Existing
Junior Lien Notes
and other Permitted Additional Debt permitted by
clauses (i)
,
(k)
, (o),
or
(
o
y
) of
Section 10.1
;
provided
that, with respect to any such Liens
on the Shared Receivables Collateral, at the time such Liens are incurred, the holders of the
Indebtedness secured thereby (or a representative thereof on behalf of such holders) shall have
entered into the Intercreditor Agreement (or, in the case of Permitted Additional Debt that is not
of the same series as any
Existing
Junior Lien Notes, either the Intercreditor Agreement or an intercreditor
agreement reasonably acceptable to the Collateral Agent providing that the Lien on the Shared
Receivables Collateral securing such Indebtedness shall rank junior to the Lien on the Shared
Receivables Collateral securing the Obligations on a basis at least as substantially favorable to
the Lenders as the basis on which the Lien
securing
on
the
Existing
Junior Lien
Notes ranks junior to the Lien on the Shared Receivables Collateral securing the Obligations on the
Original Closing Date pursuant to the Intercreditor Agreement) (it being understood that, with
respect to the
Existing
Junior Lien Notes, this condition is satisfied as a result of the
receipt by the Administrative Agent of the Intercreditor Agreement pursuant to
Section
6.1(d)
of the Original Credit Agreement);
(d) Permitted Liens;
(e) (i) Liens securing Indebtedness permitted pursuant to
Section 10.1(f)
,
provided
that (x) such Liens attach at all times only to the assets so financed except for
accessions to the property financed with the proceeds of such Indebtedness and the proceeds and the
products thereof and (y) that individual financings of equipment provided by one lender may be
cross collateralized to other financings of equipment provided by such lender, and (ii) Liens on
the assets of Restricted Subsidiaries that are Foreign Subsidiaries securing Indebtedness permitted
pursuant to
Sections 10.1(n)
,
(p)
and
(w)
;
(f) Liens existing on the Original Closing Date and listed on
Schedule 10.2
to the
Original Credit Agreement;
(g) the replacement, extension or renewal of any Lien permitted by
clauses (d)
through
(f)
and
clause (h)
of this
Section 10.2
upon or in the same assets
theretofore subject to such Lien (or upon or in after-acquired property that is affixed or
incorporated into the property covered by such Lien) or the replacement, extension or renewal (without increase in the amount
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or change in any direct or contingent obligor except to the extent
otherwise permitted hereunder) of the Indebtedness secured thereby;
(h) Liens existing on the assets of any Person that becomes a Restricted Subsidiary (or is a
Restricted Subsidiary that survives a merger with such Person), or existing on assets acquired,
pursuant to a Permitted Acquisition to the extent the Liens on such assets secure Indebtedness
permitted by
Section 10.1(j)
or other obligations permitted by this Agreement;
provided
that such Liens attach at all times only to the same assets to which such Liens
attached (and after-acquired property that is affixed or incorporated into the property covered by
such Lien), and secure only the same Indebtedness or obligations that such Liens secured,
immediately prior to such Permitted Acquisition and any modification, replacement, refinancing,
refunding, renewal or extension thereof permitted by
Section 10.1(j)
;
(i) (x) Liens placed upon the Stock and Stock Equivalents of any Restricted Subsidiary
acquired pursuant to a Permitted Acquisition to secure Indebtedness incurred pursuant to
Section 10.1(k)
in connection with such Permitted Acquisition and (y) Liens placed upon the
assets of such Restricted Subsidiary to secure Indebtedness of such Restricted Subsidiary or a
guarantee by such Restricted Subsidiary of any Indebtedness of the Parent Borrower or any other
Restricted Subsidiary incurred pursuant to
Section 10.1(k)
, in each case,
in an aggregate amount not to exceed the amount permitted by the proviso to
subclause
(y)
of such
Section 10.1(k)
;
(j) Liens securing Indebtedness or other obligations (i) of the Parent Borrower or a
Restricted Subsidiary in favor of a Credit Party and (ii) of any Restricted Subsidiary that is not
either a Credit Party or a 1993 Indenture Restricted Subsidiary in favor of any Restricted
Subsidiary that is not a Credit Party;
(k) Liens (i) of a collecting bank arising under Section 4-210 of the Uniform Commercial Code
on items in the course of collection, (ii) attaching to commodity trading accounts or other
commodities brokerage accounts incurred in the ordinary course of business; and (iii) in favor of a
banking institution arising as a matter of law encumbering deposits (including the right of
set-off);
(l) Liens (i) on cash advances in favor of the seller of any property to be acquired in an
Investment permitted pursuant to
Section 10.5
to be applied against the purchase price for
such Investment, and (ii) consisting of an agreement to sell, transfer, lease or otherwise dispose
of any property in a transaction permitted under
Section 10.4
, in each case, solely to the
extent such Investment or sale, disposition, transfer or lease, as the case may be, would have been
permitted on the date of the creation of such Lien;
(m) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for sale or purchase of goods entered into by the Parent Borrower or any of the
Restricted Subsidiaries in the ordinary course of business permitted by this Agreement;
(n) Liens encumbering reasonable customary initial deposits and margin deposits and similar
Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary
course of business and not for speculative purposes;
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(o) Liens that are contractual rights of set-off (i) relating to the establishment of
depository relations with banks not given in connection with the issuance of Indebtedness, (ii)
relating to pooled deposit or sweep accounts of the Parent Borrower or any Restricted Subsidiary to
permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business
of the Parent Borrower and the Restricted Subsidiaries or (iii) relating to purchase orders and
other agreements entered into with customers of the Parent Borrower or any Restricted Subsidiary in
the ordinary course of business;
(p) Liens solely on any cash earnest money deposits made by the Parent Borrower or any of the
Restricted Subsidiaries in connection with any letter of intent or purchase agreement permitted
hereunder;
(q) Liens on insurance policies and the proceeds thereof securing the financing of the
premiums with respect thereto incurred in the ordinary course of business;
(r) additional Liens so long as the aggregate principal amount of the obligations secured
thereby does not exceed $1,000,000,000 at any time outstanding (including second Liens on the
Existing
Junior Lien Notes Collateral but only to the extent the holders (or a
representative thereof) of the obligations secured by such junior Liens on the Shared
Receivable
Receivables
Collateral comply with the proviso to
clause (c)
above); and
(s) Liens on accounts receivable and related assets incurred in connection with a Permitted
Receivables Financing.
Notwithstanding the foregoing, (A) the Parent Borrower will not, and will not permit any
Restricted Subsidiary to, create, incur, assume or suffer to exist any Lien on any Collateral other
than (i) Liens securing the Obligations, (ii) Liens otherwise permitted by
Sections
10.2(b)
,
(c)
,
(d)
,
(h)
,
(k)
and
(o)
and (iii)
additional Liens permitted hereunder pursuant to any other clause of
Section 10.2
(other
than
clause (s)
) attaching to Collateral having an aggregate fair value not to exceed $20.0
million at any time outstanding, and (B) the Parent Borrower will not permit any 1993 Indenture
Restricted Subsidiary to create, incur, assume or suffer to exist any Lien on any of its assets
other than (i) Liens permitted by the definition of Permitted Liens, (ii) Liens in favor of the
Credit Parties to the extent permitted under section 1107 of the 1993 Indenture and (iii)
additional Liens otherwise permitted by this
Section 10.2
so long as the aggregate
principal amount of the obligations secured thereby, when aggregated (without duplication) with (I)
the aggregate principal amount of Indebtedness of 1993 Indenture Restricted Subsidiaries (other
than Indebtedness owing to a U.S. Credit Party (as defined in the CF Agreement) or another 1993
Indenture Restricted Subsidiary to the extent permitted under section 1107 of the 1993 Indenture)
and (II) the aggregate principal amount of Indebtedness (other than the Obligations (as defined in
the CF Agreement) secured by Liens on Principal Properties, does not exceed at any time outstanding
the lesser of (x) $600,000,000 and (y) 5% of Consolidated Net Tangible Assets (as defined in the
1993 Indenture as in effect on the Original Closing Date) determined as of the date of such
incurrence.
10.3.
Limitation on Fundamental Changes
. Except as expressly permitted by
Section 10.4
or
10.5
, the Parent Borrower will not, and will not permit any of the
Restricted Subsidiaries to, enter into any merger, consolidation or amalgamation, or liquidate, wind up or
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dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease,
assign, transfer or otherwise dispose of, all or substantially all its business units, assets or
other properties, except that:
(a) so long as no Default or Event of Default would result therefrom, any Subsidiary of the
Parent Borrower or any other Person may be merged, amalgamated or consolidated with or into the
Parent Borrower
,
;
provided
that (i) except as permitted by
subclause (ii)
below, the Parent Borrower shall be the continuing or surviving corporation, (ii) if the Person
formed by or surviving any such merger, amalgamation or consolidation is not the Parent Borrower
(such other Person, the
Successor Borrower
), the Successor Borrower shall be an entity organized
or existing under the laws of the United States, any state thereof, the District of Columbia or any
territory thereof (such Parent Borrower or such Successor Borrower, as the case may be, being
herein referred to as the
Successor Parent Borrower
), (iii) any Successor Borrower shall
expressly assume all the obligations of the Parent Borrower under this Agreement and the other
Credit Documents pursuant to a supplement hereto or thereto in form reasonably satisfactory to the
Administrative Agent, (iv) each Subsidiary Borrower, unless it is
the other party to such merger or consolidation, shall have by a supplement to this Agreement
confirmed that its obligation hereunder shall apply to any Successor Borrowers obligations under
this Agreement, (v) each Subsidiary grantor and each Subsidiary pledgor, unless it is the other
party to such merger or consolidation, shall have by a supplement to the Security Agreement
confirmed that its obligations thereunder shall apply to any Successor Borrowers obligations under
this Agreement, (vi) the Successor Parent Borrower shall be in compliance, on a Pro Forma Basis
after giving effect to such merger or consolidation, with the covenant set forth in
Section
10.9
10.8
of the CF Agreement for the most
recent
recently ended
Test Period
for which Section 9.1 Financials have been delivered
, and (vii) the Successor Parent Borrower
shall have delivered to the Administrative Agent (x) an officers certificate stating that such
merger or consolidation complies with this Agreement and such supplements (if any) preserve the
enforceability of this Agreement and the perfection and priority of the Liens under the applicable
Security Documents and (y) if reasonably requested by the Administrative Agent, an opinion of
counsel to the effect that the merger and consolidation does not violate this Agreement or any
other Credit Document (it being understood that if the foregoing are satisfied, the Successor
Parent Borrower will succeed to, and be substituted for, the Parent Borrower under this Agreement);
(b) any Subsidiary of the Parent Borrower or any other Person (in each case, other than the
Parent Borrower) may be merged, amalgamated or consolidated with or into any one or more
Subsidiaries of the Parent Borrower,
;
provided
that (i) in the case of any merger,
amalgamation or consolidation involving one or more Restricted Subsidiaries, (A) a Restricted
Subsidiary shall be the continuing or surviving Person or (B) the Parent Borrower shall take all
steps necessary to cause the Person formed by or surviving any such merger, amalgamation or
consolidation (if other than a Restricted Subsidiary) to become a Restricted Subsidiary, (ii) in
the case of any merger, amalgamation or consolidation involving one or more Subsidiary Borrowers, a
Subsidiary Borrower shall be the continuing or surviving Person or the Person formed by or
surviving any such merger, amalgamation or consolidation (if other than a Subsidiary Borrower)
shall execute a joinder to this Agreement to become a Subsidiary Borrower and a supplement to the
relevant Security Documents in form and substance reasonably satisfactory to the
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Administrative
Agent in order to become a grantor thereunder for the benefit of the Secured Parties, (iii) in the
case of any merger, amalgamation or consolidation involving one or more 1993 Indenture Restricted
Subsidiaries (other than any such transaction subject to
subclause (ii)
above), a 1993
Indenture Restricted Subsidiary shall be the continuing or surviving Person, (iv) no Default or
Event of Default would result from the consummation of such merger, amalgamation or consolidation,
(v) the Parent Borrower shall be in compliance, on a Pro Forma Basis after giving effect to such
merger, amalgamation or consolidation, with the covenant set forth in
Section
10.9
10.8
of the CF Agreement for the most recently ended Test Period
for which
Section 9.1 Financials have been delivered
, and (vi) Parent Borrower shall have delivered to
the Administrative Agent an officers certificate stating that such merger, amalgamation or
consolidation complies with this Agreement and, in the case of any merger, amalgamation or
consolidation involving any Borrower, any such supplements to any Credit Document as necessary to
preserve the perfection and priority of the Liens under the applicable Security Documents;
(c) any Restricted Subsidiary that is not a Borrower or a 1993 Indenture Restricted Subsidiary
may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the Parent Borrower or any other Restricted Subsidiary;
(d) any Subsidiary may sell, lease, transfer or otherwise dispose of any or all of its assets
(other than any Principal Property owned by a Subsidiary that is not a Subsidiary Borrower) (upon
voluntary liquidation or otherwise) to any Borrower,
provided
that the consideration for
any such disposition by any Person other than a Subsidiary Borrower shall not exceed the fair value
of such assets; and
(e) any Restricted Subsidiary may liquidate or dissolve if (i) the Parent Borrower determines
in good faith that such liquidation or dissolution is in the best interests of the Parent Borrower
and is not materially disadvantageous to the Lenders, (ii) to the extent such Restricted Subsidiary
is a Borrower or a 1993 Indenture Restricted Subsidiary, any assets or business not otherwise
disposed of or transferred in accordance with
Section 10.4
or
10.5
or, in the case
of any such business, discontinued, shall be transferred to, or otherwise owned or conducted by, a
Borrower (or, in the case of a liquidation or dissolution of a 1993 Indenture Restricted
Subsidiary, another 1993 Indenture Restricted Subsidiary) after giving effect to such liquidation
or dissolution.
10.4.
Limitation on Sale of Assets
.
(i) The Parent Borrower will not, and will not permit any of the Restricted Subsidiaries
to, convey, sell, lease, assign, transfer or otherwise dispose of any of its property, business or
assets (including receivables, Stock and Stock Equivalents of any other Person and leasehold
interests), whether owned as of the Original Closing Date or thereafter acquired (other than any
such sale, transfer, assignment or other disposition resulting from any casualty or condemnation,
of any assets of the Parent Borrower or the Restricted Subsidiaries) and (ii) the Parent Borrower
will not permit any Restricted Subsidiary to issue any Stock and Stock Equivalents, except, in each
case:
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(a) the Parent Borrower and the Restricted Subsidiaries may sell, transfer or otherwise
dispose of (i) inventory, used or surplus equipment, vehicles and other assets in the ordinary
course of business and (ii) Permitted Investments;
(b) Restricted Subsidiaries may issue Stock and Stock Equivalents and the Parent Borrower and
the Restricted Subsidiaries may sell, transfer or otherwise dispose of assets (each of the
foregoing, a
Disposition
), excluding a Disposition of accounts receivable, except in connection
with the Disposition of any business to which such accounts receivable relate, for fair value in an
aggregate amount pursuant to this
clause (b)
, when aggregated with the amount of Permitted
Sale Leaseback Transactions consummated pursuant to
Section 10.4(h)
, not to exceed
$
6,600,000,000,
6,600,000,000;
provided
that (i) with respect to any Disposition
pursuant to this
clause (b)
for a purchase price in excess of $100,000,000, the Parent
Borrower or a Restricted Subsidiary shall receive not less than 75% of such consideration in the
form of cash or
Permitted Investments;
provided
that for the purposes of this
clause (i)
the
following shall be deemed to be cash: (A) any liabilities (as shown on the Parent Borrowers or
such Restricted Subsidiarys most recent balance sheet provided hereunder or in the footnotes
thereto) of the Parent Borrower or such Restricted Subsidiary, other than liabilities that are by
their terms subordinated to the payment in cash of the Obligations, that are assumed by the
transferee with respect to the applicable Disposition and for which the Parent Borrower and all of
the Restricted Subsidiaries shall have been validly released by all applicable creditors in
writing, (B) any securities received by the Parent Borrower or such Restricted Subsidiary from such
transferee that are converted by the Parent Borrower or such Restricted Subsidiary into cash (to
the extent of the cash received) within 180 days following the closing of the applicable
Disposition and (C) any Designated Non-Cash Consideration received by the Parent Borrower or such
Restricted Subsidiary in respect of such Disposition having an aggregate fair market value, taken
together with all other Designated Non-Cash Consideration received pursuant to this
Section
10.4(b)
and
Section 10.4(c)
that is at that time outstanding, shall not be in excess of
the sum of (x) 1.5% of Consolidated Total Assets at the time of the receipt of such Designated
Non-Cash Consideration,
plus
(y) $100,000,000, with the fair market value of each item of
Designated Non-Cash Consideration being measured at the time received and without giving effect to
subsequent changes in value, (ii) with respect to any such sale, transfer or disposition (or series
of related sales, transfers or dispositions), the Parent Borrower shall be in compliance, on a Pro
Forma Basis after giving effect to such sale, transfer or disposition, with the covenant set forth
in
Section
10.9
10.8
of the CF Agreement for the most recently ended Test Period
for which Section 9.1 Financials have been delivered
and (iii) after giving effect to any such
sale, transfer or disposition, no Default or Event of Default shall have occurred and be
continuing;
(c) the Parent Borrower and the Restricted Subsidiaries may make Dispositions to the Parent
Borrower or to any Restricted Subsidiary,
;
provided
that with respect to any such
Dispositions (x) from Borrowers to Restricted Subsidiaries that are not Borrowers, (y) from 1993
Indenture Restricted Subsidiaries to the Parent Borrower or any Restricted Subsidiary that is not a
1993 Indenture Restricted Subsidiary or (z) from Restricted Subsidiaries that are not Borrowers or
1993 Indenture Restricted Subsidiaries to any Borrower or 1993 Indenture Restricted Subsidiary (i)
such sale, transfer or disposition shall be for fair value and (ii) with respect to any Disposition
pursuant to this
clause (c)
for a purchase price in excess of $100,000,000, the Person
making such Disposition shall receive not less than 75% of such
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consideration in the form of cash
or Permitted Investments;
provided
that for the purposes of this
subclause (ii)
the
following shall be deemed to be cash: (A) any liabilities (as shown on the Parent Borrowers or
such Restricted Subsidiarys most recent balance sheet provided hereunder or in the footnotes
thereto) of the Parent Borrower or such Restricted Subsidiary, other than liabilities that are by
their terms subordinated to the payment in cash of the Obligations, that are assumed by the
transferee with respect to the applicable Disposition and for which the Parent Borrower and all of
the Restricted Subsidiaries shall have been validly released by all applicable creditors in
writing, (B) any securities received by the Person making such Disposition from the purchaser that
are converted by such Person into cash (to the extent of the cash received) within 180 days
following the closing of the applicable Disposition, and (C) any Designated Non-Cash Consideration
received by the Person making such Disposition having an aggregate fair market value, taken
together with all other Designated Non-Cash Consideration received pursuant to this
Section
10.4(c)
and
Section 10.4(b)
that is at that time outstanding, shall not be in excess of
the
sum of (x) 1.5% of Consolidated Total Assets at the time of the receipt of such Designated
Non-Cash Consideration, plus (y) $100,000,000, with the fair market value of each item of
Designated Non-Cash Consideration being measured at the time received and without giving effect to
subsequent changes in value;
(d) the Parent Borrower and any Restricted Subsidiary may effect any transaction permitted by
Section 10.3
,
10.5
or
10.6
(including the making of any dividend (as
defined in
Section 10.6
) by any Subsidiary);
(e) Dispositions of accounts receivable and related assets of 1993 Indenture Restricted
Subsidiaries to ABL Entities;
(f) the Parent Borrower and the Restricted Subsidiaries may lease, sublease, license or
sublicense (on a non-exclusive basis with respect to any intellectual property) real, personal or
intellectual property in the ordinary course of business;
(g) Dispositions of property (including like-kind exchanges) to the extent that (i) such
property is exchanged for credit against the purchase price of similar replacement property or (ii)
the proceeds of such Disposition are promptly applied to the purchase price of such replacement
property, in each case under section 1031 of the Code or otherwise;
(h) Dispositions of property pursuant to Permitted Sale Leaseback transactions in an aggregate
amount pursuant to this
clause (h)
when aggregated with the amount of Dispositions made
pursuant to
clause (b)
above not to exceed $6,600,000,000;
(i) Dispositions of Investments in joint ventures (regardless of the form of legal entity) to
the extent required by, or made pursuant to, customary buy/sell arrangements between the joint
venture parties set forth in joint venture arrangements and similar binding arrangements;
(j) customary Dispositions in connection with any Permitted Receivables Financing;
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(k) dispositions of Stock and Stock Equivalents of any Subsidiary or joint venture for fair
market value to Facility Syndication Partners in connection with any Syndication;
provided
that the fair market value of the aggregate amount of Stock and Stock Equivalents disposed of
pursuant to this
clause (k)
with respect to any individual Subsidiary (and not subsequently
repurchased or redeemed by the Parent Borrower or any Restricted Subsidiary) shall not exceed
$5,000,000
10,000,000
; and
(l) a Disposition of any asset between or among the Parent Borrower and/or its Restricted
Subsidiaries as a substantially concurrent interim Disposition in connection with a Disposition
otherwise permitted pursuant to
clauses (a)
through
(k)
above.
10.5.
Limitation on Investments
. The Parent Borrower will not, and will not permit any of the Restricted Subsidiaries to,
make any Investment except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Permitted Investments;
(c) loans and advances to officers, directors and employees of the Parent Borrower (or any
direct or indirect parent thereof) or any of its Subsidiaries or to Physicians with whom the Parent
Borrower or any of its Subsidiaries have contractual relationships (i) for reasonable and customary
business-related travel, entertainment, relocation and analogous ordinary business purposes
(including employee payroll advances), (ii) in connection with such Persons purchase of Stock or
Stock Equivalents of the Parent Borrower (or any direct or indirect parent thereof) to the extent
that the amount of such loans and advances
are
is
directly or indirectly contributed to the
Parent Borrower in cash and (iii) for purposes not described in the foregoing
subclauses (i)
and (ii)
, in an aggregate principal amount outstanding pursuant to this
subclause (iii)
not to exceed $20,000,000;
(d) Investments existing on, or contemplated as of, the Original Closing Date and either (x)
constituting Indebtedness that is permitted pursuant to
Section 10.1(g)(ii)
or (y) listed
on
Schedule 10.5
to the Original Credit Agreement and any extensions, renewals or
reinvestments thereof, so long as the aggregate amount of all Investments pursuant to this
clause (d)
is not increased at any time above the amount of such Investments existing on
the Original Closing Date;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or
customers and in settlement of delinquent obligations of, and other disputes with, customers
arising in the ordinary course of business or upon foreclosure with respect to any secured
Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock
Equivalents of
Holdings or Hercules
Holdings;
(g) Investments
(i)
(a) by the Parent Borrower or any Restricted Subsidiary in any Subsidiary
Borrower, (b) between or among 1993 Indenture Restricted Subsidiaries, (c)
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between or among Restricted Subsidiaries that are neither Subsidiary Borrowers nor 1993 Indenture Restricted
Subsidiaries
and
,
(d) consisting of intercompany Investments incurred in the ordinary
course of business in connection with the cash management operations (including with respect to
intercompany self-insurance arrangements) among the Parent Borrower and the Restricted Subsidiaries
(
provided
that any such intercompany Investment in connection with cash management
arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an
intercompany loan or advance) and (
ii) (a) by Credit
Parties in
e) by the
Parent Borrower
or
any Restricted Subsidiary
that is not a Credit Party, (b) by 1993 Indenture Restricted Subsidiaries
in any Restricted Subsidiary that is not a 1993 Indenture Restricted Subsidiary or (c) by any
Restricted Subsidiary that is neither a Credit Party nor a 1993 Indenture Restricted Subsidiary in
any 1993 Indenture Restricted Subsidiary, in each case valued at the fair market
value (determined by the Parent Borrower acting in good faith) of such Investment at the time
each such Investment was made, in an aggregate amount pursuant to this
subclause (ii)
that,
at the time each such Investment is made, would not exceed (x) the excess of (A) $1,500,000,000
over (B) the amount of Investments outstanding at such time in reliance on
Section
10.5(i)(ii)(x)
at such time
plus
(y) the Applicable Amount at such time
in any
Restricted Subsidiary, provided that such Investment is used, directly or as a result of
substantially concurrent transfers, to repay intercompany Indebtedness owed to any Credit
Party
;
(h) Investments constituting Permitted Acquisitions;
(i)
Investments (including, but not limited to (i) minority Investments and Investments in
Unrestricted Subsidiaries and (ii) Investments in joint ventures (regardless of the form of legal
entity) or similar Persons that do not constitute Restricted Subsidiaries), in each case, as valued
at the fair market value (determined by the Parent Borrower acting in good faith) of such
Investment at the time each such Investment is made, in an aggregate amount pursuant to this
clause (i)
that, at the time each such Investment is made, would not exceed the sum of (x)
the excess of (A) $1,500,000,000 over (B) the amount of Investments outstanding at such time in
reliance on
Section 10.5(g)(ii)(x)
at such time,
plus
(y) the Applicable Amount at
such time
plus
(z) without duplication of any amount that increased the JV Distribution
Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and
similar amounts actually received in cash in respect of any such Investment (which amount referred
to in this
subclause (z)
shall not exceed the amount of such Investment valued at the fair
market value of such Investment at the time such Investment was made);
additional Investments in
an aggregate principal amount at any time not to exceed $500,000,000;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent
permitted by
Section 10.4
;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Parent Borrower
or any direct or indirect parent thereof owned by any employee or any employee stock ownership plan
or key employee stock ownership plan of the Parent Borrower (or any direct or indirect parent
thereof);
(l) Investments permitted under
Section 10.6
;
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(m) loans and
advance
advances
to any direct or indirect parent of the Parent Borrower
in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to
such parent in accordance with
Section 10.6
;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course of business, and
Investments received in satisfaction or partial satisfaction thereof from financially troubled
account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection
or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Parent Borrower or any Restricted Subsidiary of leases (other
than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case
entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after
the Original Closing Date otherwise in accordance with this
Section 10.5
to the extent that
such Investments were not made in contemplation of or in connection with such acquisition, merger
or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments by 1993 Indenture Restricted Subsidiaries of accounts receivable and related
assets in ABL Entities;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments by the Parent Borrower in the European Subsidiary Borrower (as defined in the
CF Agreement) arising as a result of any payment made by the Parent Borrower in respect of
European
-1
Tranche Term Loans (as defined in the CF Agreement) pursuant to
Section
5.2(a)(ii)
of the CF Agreement;
(v) Investments by the Parent Borrower and the Restricted Subsidiaries in any joint venture
(regardless of the form of legal entity) or Restricted Subsidiary in an aggregate amount at any
time outstanding not to exceed the sum of (A) $600,000,000
plus
(B) the JV Distribution
Amount
plus
(C) without duplication of any amount that increased the JV Distribution
Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and
similar amounts actually received in cash in respect of any such Investment (which amount referred
to in this
subclause (C)
shall not exceed the amount of such Investment valued at the fair
market value of such Investment at the time such Investment was made);
provided
, that the
aggregate amount of Investments made in reliance on
subclause (B)
or
(C)
above by
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Credit Parties shall not exceed the aggregate of the amounts referred to in such subclauses that
were directly or indirectly received by Credit Parties;
(v)
(w)
any redemption by Healthtrust, or transfer to Healthtrust or the Parent
Borrower, of shares of Stock of Healthtrust held by Columbia SDH and Epic Properties;
(w)
(x)
intercompany transfers of creditor positions
(i)
in respect of
Indebtedness outstanding pursuant to
Sections
Section
10.1(a)
,
10.1(g)(ii)
or
10.1(i)
; and
, and (ii) in respect of any other intercompany Indebtedness; provided
that the transfer of credit positions described in this clause (ii) is used, directly or as a
result of substantially concurrent transfers, to repay intercompany Indebtedness owed to any Credit
Party;
(x)
(y)
Investments constituting Indebtedness outstanding pursuant to
Section
Sections
10.1(a)(z)
and
10.1(i)(z)
;
and
(y)
other Investments that satisfy the Payment Conditions.
10.6.
Limitation on Dividends
. The Parent Borrower will not declare or pay
any dividends (other than dividends payable solely in its Qualified Equity Interests) or return any
capital to its stockholders (including any option holders) or make any other distribution, payment
or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or
otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock
or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent outstanding
as of the Original Closing Date or thereafter outstanding, or set aside any funds for any of the
foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or otherwise acquire
for consideration (other than in connection with an Investment permitted by
Section 10.5
)
any Stock or Stock Equivalents of the Parent Borrower, outstanding as of the Original Closing Date
or thereafter outstanding (all of the foregoing,
dividends
), provided that, so long as no Default
or Event of Default exists or would exist after giving effect thereto:
(a) the Parent Borrower may (or may pay dividends to permit any direct or indirect parent
thereof to) redeem in whole or in part any of its (or such parents) Stock or Stock Equivalents for
another class of its Stock or Stock Equivalents or with proceeds from substantially concurrent
equity contributions or issuances of new Stock or Stock Equivalents
(other than any amount received
by the Parent Borrower in satisfaction of the requirements of the first sentence of
Section
10.7(d)
)
,
;
provided
that such new Stock or Stock Equivalents contain terms and
provisions at least as advantageous to the Lenders in all respects material to their interests as
those contained in the Stock or Stock Equivalents redeemed thereby;
(b) the Parent Borrower may (or may pay dividends to permit any direct or indirect parent
thereof to) repurchase shares of its (or such parents) Stock or Stock Equivalents held by
officers, directors and employees of the Parent Borrower and its Subsidiaries (other than the Frist
Shareholders), so long as such repurchase is pursuant to, and in accordance with the terms of,
management and/or employee stock plans, stock subscription agreements or shareholder agreements;
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(c) the
Parent Borrower may pay dividends on the Stock or Stock
Equivalents
,
;
provided
that the amount of any such dividends pursuant to this
clause (c)
shall
not exceed an amount equal to (i) $600,000,000,
less
(ii) the amount of Junior Indebtedness
purchased in reliance on
Section 10.7(a)(i)(x)
of the Original Credit Agreement
,
plus
(iii) the Applicable Amount at such time;
(d) the Parent Borrower may pay dividends:
(i) the proceeds of which will be used to pay (or to pay dividends to allow any direct
or indirect parent of the Parent Borrower to pay) (A) the tax liability to each relevant
jurisdiction in respect of consolidated, combined, unitary or affiliated returns for the
relevant jurisdiction of such parent attributable to the Parent Borrower or its Restricted
Subsidiaries determined as if the Parent Borrower and its Restricted Subsidiaries filed
separately and (B) for as long as
Hercules
Holdings is a direct or
indirect parent of the Parent Borrower, distributions equal to any taxable income of
Holdings
or Hercules Holdings
resulting from the hedging arrangements entered into
by
Hercules
Holdings on or about September 13, 2006 and with respect to which the
Parent Borrower
will be
is
a counterparty multiplied by 45%;
(ii) the proceeds of which shall be used to allow any direct or indirect parent of the
Parent Borrower to pay (A) its operating expenses incurred in the ordinary course of
business and other corporate overhead costs and expenses (including administrative, legal,
accounting and similar expenses provided by third parties), which are reasonable and
customary and incurred in the ordinary course of business, in an aggregate amount not to
exceed $10,000,000 in any fiscal year of the Parent Borrower
plus
any reasonable and
customary indemnification claims made by directors or officers of the Parent Borrower (or
any parent thereof) attributable to the ownership or operations of the Parent Borrower and
its Restricted Subsidiaries or (B) fees and expenses otherwise due and payable by the Parent
Borrower or any of its Restricted Subsidiaries and permitted to be paid by the Parent
Borrower or such Restricted Subsidiary under this Agreement;
(iii) the proceeds of which shall be used to pay franchise and excise taxes and other
fees, taxes and expenses required to maintain the corporate existence of any of its direct
or indirect parent of the Parent Borrower;
and
(iv) to any direct or indirect parent of the Parent Borrower to finance any Investment
permitted to be made by the Parent Borrower or a Restricted Subsidiary pursuant to
Section 10.5
;
provided
that (A) such dividend shall be made substantially
concurrently with the closing of such Investment, (B) such parent shall, immediately
following the closing thereof, cause (1) all property acquired (whether assets, Stock or
Stock Equivalents) to be contributed to the Parent Borrower or such Restricted Subsidiary or
(2) the merger (to the extent permitted in
Section 10.5
) of the Person formed or
acquired into the Parent Borrower or its Restricted Subsidiaries and (C) the Parent Borrower
shall comply with
Section 9.11
to the extent applicable;
and
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(e) the Parent Borrower may pay cash dividends to Holdings for Holdings to pay cash dividends,
after the fifth anniversary of the date of issuance of any Qualified Holdings Debt, solely for the
purpose of paying regularly scheduled interest payments with respect to such Qualified Holdings
Debt, so long as on a Pro Forma Basis after giving effect to the payments of such dividends, (i)
the Parent Borrower shall be in compliance with the covenant set forth in
Section
10.9
10.8
of the CF Agreement for the most recently ended Test Period
for which
Section 9.1 Financials have been delivered
and (ii) the Consolidated EBITDA to Consolidated
Interest Expense Ratio would be greater than or equal to 1.75 to 1.00 for the most recently ended
Test Period
for which Section 9.1 Financials have been delivered; and
(f)
dividends that satisfy the Payment Conditions.
10.7.
Limitations on Debt Payments and Amendments; Matters Relating to
Required Additional Equity Investments
.
(a) The Parent Borrower will not, and will not permit any Restricted
Subsidiary
Subsidi-ary
to, prepay, repurchase or redeem or otherwise defease or acquire
prior to the scheduled
maturity
ma-turity
thereof any Subordinated Indebtedness, Retained
Indebtedness (except as permitted in clause (b) below) or Permitted Junior Lien Debt (collectively,
Junior Indebtedness
);
provided
,
however
, that
so long as no Default or Event of
Default shall have occurred and be continuing at the date of such prepayment, repurchase,
redemption or other defeasance or would result therefrom,
the Parent Borrower or any Restricted
Subsidiary may prepay, repurchase or redeem Junior Indebtedness
(i) for an aggregate price not in
excess of (x) $600,000,000
less
(y) the amount of Restricted Payments made pursuant to
Section 10.6(c)(i)
,
plus
(z) the Applicable Amount at the time of such prepayment,
repurchase or redemption (ii) in the case of Subordinated Indebtedness, with the proceeds of
Subordinated Indebtedness that (I) is permitted by
Section 10.1
(other than
Section
10.1(o)
) and (II) if such Junior Indebtedness being repaid, repurchased or redeemed is
Subordinated Indebtedness, has terms not materially less advantageous to the Lenders than those of
the Indebtedness being refinanced or (iii) in the case of Permitted Junior Lien Debt, with the
proceeds of refinancing Indebtedness otherwise permitted by
Section 10.1
constituting
Permitted Additional Debt or Permitted Junior Lien Debt
so long as each of the Payment
Conditions is satisfied
. Notwithstanding the foregoing, nothing in this
Section 10.7
shall prohibit (A) the repayment or prepayment of intercompany Subordinated Indebtedness owed among
the Parent Borrower and, the Restricted Subsidiaries, in either case unless an Event of Default has
occurred and is continuing and the Parent Borrower has received a notice from the Collateral Agent
instructing it not to make or permit any such repayment or prepayment, or (B) transfers of creditor
positions in connection with intercompany debt restructurings so long as such Indebtedness is
permitted by
Section 10.1
after giving effect to such transfers. For the avoidance of
doubt, nothing in this
Section 10.7
shall restrict the making of any AHYDO catch up
payment in respect of the
Junior Lien Notes
Existing Junior Lien Notes or (C) any prepayment,
repurchase, redemption or defeasance that satisfies the Payment Conditions (it being understood and
agreed that, if an irrevocable notice or contractual obligation is given, made or arises in respect
of any such prepayment, repurchase, redemption or defeasance, the foregoing conditions only need to
be satisfied at the time of the giving of such irrevocable notice or entering into (or
effectiveness of) any such contractual obligations)
.
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(b) Except as permitted pursuant to clause (a) above, the Parent Borrower will not, and will
not permit any Restricted Subsidiary to, prepay, repurchase, or redeem or otherwise defease or
acquire any Retained Indebtedness (other than pursuant to any tender offer in effect on the
Original Closing Date in connection with the Debt Repayment) prior to the stated final maturity
date thereof (as in effect on the Original Closing Date);
provided
,
however
, that
so long as no Default or Event of Default shall have occurred and be continuing at the date of such
prepayment, repurchase, defeasance or acquisition or would result therefrom, (i) Retained
Indebtedness
Indebted-ness
may be prepaid, repurchased, redeemed or defeased prior to its
stated maturity if, as of the Original Closing Date, such Retained Indebtedness to be repaid has a
stated final maturity
occurring
occur-ring
on any date on or between January 1, 2010 and
December 31, 2011, (ii) the Parent Borrower may prepay, repurchase, redeem, defease or acquire,
prior to the stated final maturity thereof
Retained
Re-tained
Indebtedness with a stated
final maturity (as of the Original Closing Date) prior to the Tranche A
-1
Term Loan
Maturity Date (as defined in the CF Agreement) (and if at such time all Tranche A
-1
Term
Loans (as defined in the CF Agreement) have been repaid in full, the Tranche B
-1
Term Loan
Maturity Date (as defined in
the CF Agreement)) if on a Pro Forma Basis after giving effect to such repayment the
Consolidated First Lien Debt to Consolidated EBITDA Ratio for the most
recent
recently ended
Test Period
for which Section 9.1 Financials have been delivered
is no greater than 4.0:
1
and
1,
(iii) Retained Indebtedness may be
refinanced
refi-nanced
with the proceeds of
refinancing Indebtedness with respect to such Retained Indebtedness that is permitted under
Section 10.1(g)
, and (iv) notwithstanding the foregoing, Retained Indebtedness may be
prepaid, repurchased, redeemed or defeased at any time prior to its stated maturity so long as each
of the Payment Conditions is satisfied (it being understood and agreed that, if an irrevocable
notice or contractual obligation is given, made or arises in respect of any such prepayment,
repurchase, redemption or defeasance, the foregoing conditions only need to be satisfied at the
time of the giving of such irrevocable notice or entering into (or effectiveness of) any such
contractual obligations)
.
(c) The Parent Borrower will not waive, amend, modify, terminate or release any Junior
Indebtedness or any Retained Indebtedness to the extent that any such waiver, amendment,
modification, termination or release would be adverse to the Lenders in any material respect.
(d) The Parent Borrower shall have received (i) the Option Note Amount from either (x) the
repayment or prepayment of the Option Note (including through the cancellation pursuant to the
Merger of Stock or Stock Equivalents of the Parent Borrower owned by the issuer of, and having a
value equivalent to, the Option Note) or (y) contributions to its common equity, in either case no
later than December 2, 2006 and (ii) additional common equity in an amount equal to the Delayed
Equity Amount no later than March 31, 2007. Prior to the satisfaction of the requirements of
clause (i)
of the first sentence of this
Section 10.7(d)
, the Parent Borrower will
not permit any waiver, amendment, modification or termination of the Option Note or fail to enforce
its right under the Option Note if the result of any of the foregoing would be adverse in any
material respect to the Lenders. Prior to the satisfaction of the requirements of clause (ii) of
the fist sentence of this
Section 10.7 (d)
, the Parent Borrower will not permit any waiver,
amendment, modification or termination of the Delayed Equity Arrangements or fail to enforce
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its
right under the Delayed Equity Arrangements if the result of any of the foregoing would be adverse
in any material respect to the Lenders.
(e) Epic Properties and ColumbiaSDH shall not permit any consensual Liens to exist on any
shares of Stock of Healthtrust owned by them (other than Liens in favor of the Parent Borrower or
Healthtrust). Following the occurrence and during the continuance of an Event of Default, the
Parent Borrower shall not permit Healthtrust to make any distribution on, or redemption of, Stock
of Healthtrust owned by Epic Properties or ColumbiaSDH unless the Collateral Agent shall have
consented thereto.
10.8.
Limitations on Sale Leasebacks
. The Parent Borrower will not, and will
not permit any of the Restricted Subsidiaries to, enter into or effect any Sale Leasebacks, other
than Permitted Sale Leasebacks.
10.9.
Minimum Interest Coverage Ratio
. During the continuance of a Covenant Compliance Event, the Parent Borrower will not permit
the Consolidated EBITDA to Consolidated Interest Coverage Ratio, calculated as of the last day of
the fiscal quarter for the Test Period most recently then ended for which
the Administrative Agent
has received financial statements of the Parent Borrower
Section 9.1 Financials have been
delivered
, to be less than 1.50:1.00.
10.10.
Changes in Business
.
(a) The Parent Borrower and the Subsidiaries, taken as a whole, will not fundamentally and
substantively alter the character of their business, taken as a whole, from the business conducted
by the Parent Borrower and the Subsidiaries, taken as a whole, on the Original Closing Date and
other business activities incidental or related to any of the foregoing.
(b) Healthtrust shall not engage in any business other than (i) owning (x) its ownership in
the Stock and Stock Equivalents of Subsidiaries of the Parent Borrower and activities and
properties incidental thereto and (y) other assets owned by it on the Original Closing Date and
(ii) performing its obligations pursuant to agreements in effect on the Original Closing Date and
any automatic extensions thereof.
10.11.
1993 Indenture Restricted Subsidiaries
. The Parent Borrower shall not
designate any additional Subsidiary as a Restricted Subsidiary under the 1993 Indenture or
reorganize or change the ownership structure of any of its Subsidiaries such that after giving
effect to such reorganization or change a Subsidiary that constituted an Unrestricted Subsidiary
under the 1993 Indenture subsequently constitutes a Restricted Subsidiary thereunder.
SECTION 11.
Events of Default
.
Upon the occurrence of any of the following specified events (each an
Event of Default
):
11.1.
Payments
. Any Borrower shall (a) default in the payment when due of any
principal of the Loans or (b) default, and such default shall continue for five or more days, in
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the payment when due of any interest on the Loans or any Fees or any Unpaid Drawings or of any
other amounts owing hereunder or under any other Credit Document; or
11.2.
Representations, Etc
. Any representation, warranty or statement made or
deemed made by any Credit Party herein or in any Credit Document or any certificate delivered or
required to be delivered
pursuant hereto or thereto shall prove to be untrue in any material respect on the date as of
which made or deemed made; or
11.3.
Covenants
. Any Credit Party shall: default in the due performance or
observance by it of any term, covenant or agreement contained in
Section 9.1(e)
or
Section 10
; or
(b) default in the due performance or observance by it of any term, covenant or agreement
(other than those referred to in
Section 11.1
or
11.2
or
clause (a)
or
(c)
of this
Section 11.3
) contained in this Agreement, any Security Document, the
Fee Letter dated July 24, 2006 between
Hercules
Holdings and the Agents
,
or the Fee
Letter dated June 20, 2007 between
Hercules
Holdings and Banc of America Securities
LLC
,
and such default shall continue unremedied for a period of at least 30 days after
receipt of written notice by the Parent Borrower from any Administrative Agent or the Required
Lenders; or
(c) default in the due performance or observance by it of any term, covenant or agreement
contained in
Section 9.15
(other than any such default resulting solely from actions taken
by one or more Persons not controlled directly or indirectly by the Parent Borrower or such
Persons (or Persons) failure to act in accordance with the instructions of the Parent Borrower or
the Administrative Agent) and such default shall continue unremedied for a period of at least 15
Business Days after an Authorized Officer obtaining knowledge of such default; or
11.4.
Default Under Other Agreements
.
(a) The Parent Borrower or any of the Restricted Subsidiaries shall (i) default in any payment
with respect to any Indebtedness (other than the Obligations) in excess of $150,000,000 in the
aggregate, for the Parent Borrower and such Restricted Subsidiaries, beyond the period of grace, if
any, provided in the instrument or agreement under which such Indebtedness was created or (ii)
default in the observance or performance of any agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto,
or any other event shall occur or condition exist (other than, with respect to Indebtedness
consisting of any Hedge Agreements, termination events or equivalent events pursuant to the terms
of such Hedge Agreements), the effect of which default or other event or condition is to cause, or
to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such
holder or holders) to cause, any such Indebtedness to become due prior to its stated maturity; or
(b) without limiting the provisions of
clause (a)
above, any such Indebtedness shall be
declared to be due and payable, or required to be prepaid other than by a regularly scheduled
required prepayment or as a mandatory prepayment (and, with respect to Indebtedness consisting of
any Hedge Agreements, other than due to a termination event or equivalent event pursuant to the
terms of such Hedge Agreements), prior to the stated maturity thereof; or
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11.5.
Bankruptcy, Etc
. The Parent Borrower or any Specified Subsidiary shall
commence a voluntary case, proceeding or action concerning itself under (a) Title 11 of the United
States Code entitled Bankruptcy, or (b) in the case of any Foreign Subsidiary that is a Specified
Subsidiary, any domestic or foreign law relating to bankruptcy, judicial management, insolvency,
reorganization, administration or relief of debtors legislation of its jurisdiction of
incorporation, in each case as in effect as of the Original Closing Date or thereafter in effect,
or any successor thereto (collectively, the
Bankruptcy Code
); or an involuntary case, proceeding
or action is commenced against the Parent Borrower or any Specified Subsidiary and the petition is
not controverted within 30 days after commencement of the case, proceeding or action; or an
involuntary case, proceeding or action is commenced against the Parent Borrower or any Specified
Subsidiary and the petition is not dismissed within 60 days after commencement of the case,
proceeding or action; or a custodian (as defined in the Bankruptcy Code), judicial manager,
receiver, receiver manager, trustee, administrator or similar person is appointed for, or takes
charge of, all or substantially all of the property of the Parent Borrower or any Specified
Subsidiary; or the Parent Borrower or any Specified Subsidiary commences any other voluntary
proceeding or action under any reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency, administration or liquidation or similar law of any jurisdiction whether
in effect as of the Original Closing Date or thereafter in effect relating to the Parent Borrower
or any Specified Subsidiary; or there is commenced against the Parent Borrower or any Specified
Subsidiary any such proceeding or action that remains undismissed for a period of 60 days; or the
Parent Borrower or any Specified Subsidiary is adjudicated insolvent or bankrupt; or any order of
relief or other order approving any such case or proceeding or action is entered; or the Parent
Borrower or any Specified Subsidiary suffers any appointment of any custodian receiver, receiver
manager, trustee, administrator or the like for it or any substantial part of its property to
continue undischarged or unstayed for a period of 60 days; or the Parent Borrower or any Specified
Subsidiary makes a general assignment for the benefit of creditors; or any corporate action is
taken by the Parent Borrower or any Specified Subsidiary for the purpose of effecting any of the
foregoing; or
11.6.
ERISA
. (a) Any Plan shall fail to satisfy the minimum funding standard
required for any plan year or part thereof or a waiver of such standard or extension of any
amortization period is sought or granted under Section 412 of the Code; any Plan is or shall have
been terminated or is the subject of termination proceedings under ERISA (including the giving of
written notice thereof); an event shall have occurred or a condition shall exist in either case
entitling the PBGC to terminate any Plan or to appoint a trustee to administer any Plan (including
the giving of written notice thereof); any Plan shall have an accumulated funding deficiency
(whether or not waived); the Parent Borrower or any ERISA Affiliate has incurred or is likely to
incur a liability to or on account of a Plan under Section 409, 502(i), 502(l), 515, 4062, 4063,
4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of the Code (including the giving of
written notice thereof); (b) there could result from any event or events set forth in
clause
(a)
of this
Section 11.6
the imposition of a lien, the granting of a security interest,
or a liability, or the reasonable
likelihood of incurring a lien, security interest or liability; and (c) such lien, security
interest or liability will or would be reasonably likely to have a Material Adverse Effect; or
11.7.
[
Reserved
]; or
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11.8.
[
Reserved
]; or
11.9.
Security Agreement
. The Security Agreement pursuant to which the assets
of the Borrowers are pledged as Collateral or any material provision thereof shall cease to be in
full force or effect (other than pursuant to the terms hereof or thereof or as a result of acts or
omissions of the Collateral Agent or any Lender) or any grantor thereunder or any Credit Party
shall deny or disaffirm in writing any grantors obligations under the Security Agreement (or any
of the foregoing shall occur with respect to Collateral provided by a Subsidiary that is not a
Material Subsidiary and shall continue unremedied for a period of at least 30 days after receipt of
written notice by the Parent Borrower from the Administrative Agent, the Collateral Agent or the
Required Lenders); or
11.10.
[
Reserved
]; or
11.11.
Judgments
. One or more judgments or decrees shall be entered against
the Parent Borrower or any of the Restricted Subsidiaries involving a liability of $150,000,000 or
more in the aggregate for all such judgments and decrees for the Parent Borrower and the Restricted
Subsidiaries (to the extent not paid or covered by insurance provided by a carrier not disputing
coverage) and any such judgments or decrees shall not have been satisfied, vacated, discharged or
stayed or bonded pending appeal within 60 days after the entry thereof; or
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11.12.
Change of Control
. A Change of Control shall occur;
then, and in any such event, and at any time thereafter, if any Event of Default shall
then be continuing, the Administrative Agent shall, upon the written request of the Required
Lenders, by written notice to the Parent Borrower, take any or all of the following actions,
without prejudice to the rights of the Administrative Agent or any Lender to enforce its claims
against the Borrowers, except as otherwise specifically provided for in this Agreement (
provided
that, if an Event of Default specified in
Section 11.5
shall occur with respect to the Parent
Borrower, the result that would occur upon the giving of written notice by the Administrative Agent
as specified in
clauses (i)
,
(ii)
and
(iv)
below shall occur automatically without the giving of
any such notice): (i) declare the Total New Revolving Credit Commitment and Swingline Commitment
terminated, whereupon the New Revolving Credit Commitment and Swingline Commitment, if any, of each
Lender or the Swingline Lender, as the case may be, shall forthwith terminate immediately and any
Fees theretofore accrued shall forthwith become due and payable without any other notice of any
kind; (ii) declare the principal of and any accrued interest and fees in respect of all Loans and
all Obligations owing hereunder and thereunder to be, whereupon the same shall become, forthwith
due and payable without presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Parent Borrower; (iii) terminate any Letter of Credit that may be terminated
in accordance with its terms; and/or (iv) direct the Parent Borrower to pay (and the Parent
Borrower agrees that upon receipt of such notice, or upon the occurrence of an Event of Default
specified in
Section 11.5
with respect to the Parent Borrower, it will pay) to the Administrative
Agent at the Administrative Agents Office such additional amounts of cash, to be held as security
for the Parent Borrowers respective reimbursement obligations for Drawings that may subsequently
occur thereunder, equal to the aggregate Stated Amount of all Letters of Credit issued and then
outstanding.
Any amount received by the Administrative Agent or the Collateral Agent from any Credit Party
following any acceleration of the Obligations under this Agreement or any Event of Default with
respect to the Parent Borrower under
Section 11.5
shall be applied:
(i) first, to the payment of all reasonable and documented costs and expenses incurred
by the Administrative Agent or Collateral Agent in connection with such collection or sale
or otherwise in connection with any Credit Document, including all court costs and the
reasonable fees and expenses of its agents and legal counsel, the repayment of all advances
made by the Administrative Agent or the Collateral Agent hereunder or under any other Credit
Document on behalf of any Credit Party and any other reasonable and documented costs or
expenses incurred in connection with the exercise of any right or remedy hereunder or under
any other Credit Document (other than in connection with Secured Cash Management Agreements
or Secured Hedge Agreements);
(ii) second, to the repayment of all Protective Advances;
(iii) third, to the Secured Parties, an amount (x) equal to all Obligations (other than
Secured Cash Management Agreements and Secured Hedge Agreements) owing to them on the date
of any distribution and (y) sufficient to Cash Collateralize all
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Letters of Credit Outstanding on the date of any distribution, and, if such moneys shall be
insufficient to pay such amounts in full and Cash Collateralize all Letters of Credit
Outstanding, then ratably (without priority of any one over any other) to such Secured
Parties in proportion to the unpaid amounts thereof and to Cash Collateralize the Letters of
Credit Outstanding;
(iv) fourth, to any Cash Management Bank or Hedge Bank, an amount equal to all
Obligations in respect of Secured Cash Management Agreements or Secured Hedge Agreements, as
the case may be, owing to them on the date of any distribution; and
(v) fifth, any surplus then remaining shall be paid to the applicable Credit Parties or
their successors or assigns or to whomsoever may be lawfully entitled to receive the same or
as a court of competent jurisdiction may direct.
11.13. Certain Amendments and Waivers to CF Agreement
. In the event that (A)
Section 10.9 of the CF Agreement (or the definition of Consolidated Total Debt to Consolidated
Total EBITDA Ratio or any of its constituent definitions) is amended or the applicability thereof
waived and (B) the agents or lenders under the CF Facility are paid fees in respect of any such
amendment or waiver, then no such amendment or waiver shall be binding upon the parties to this
Agreement (and each reference to Section 10.9 of the CF Agreement hereunder shall read as if such
amendment or waiver had not been executed) unless and until a proportionate fee (based on the
relative aggregate principal amounts of the loans, letters of credit and commitments outstanding
under the CF Facility, on the one hand, and the Loans, Letters of Credit, Protective Advances and
Commitments outstanding hereunder, on the other hand and assuming that each Lender under the CF
Facility consented to such amendment or waiver) is paid to the Administrative Agent for the benefit
of the Lenders hereunder.
SECTION 12.
Investors Right
To
to Cure
.
(a) Notwithstanding anything to the contrary contained in
Section 11.3(a)
, in the
event that the Parent Borrower fails to comply with the requirement of the covenant set forth in
Section 10.9
, until the expiration of the tenth day after the date on which
Section
9.1
Financials with respect to the Test Period in which the covenant set forth in such Section
is being measured are required to be delivered pursuant to
Section 9.1
, any of the
Investors shall have the right to make a direct or indirect equity investment
(other than any
amount invested in satisfaction of the requirements set forth in the first sentence of
Section
10.7(d)
)
in the Parent Borrower in cash (the
Cure Right
), and upon the receipt by the Parent
Borrower of net cash proceeds pursuant to the exercise of the Cure Right (including through the
capital contribution of any such net cash proceeds to such person, the
Cure Amount
), the covenant
set forth in such Section shall be recalculated, giving effect to a
pro forma
increase to
Consolidated EBITDA for such Test Period in an amount equal to such net cash proceeds;
provided
that such
pro forma
adjustment to Consolidated EBITDA shall be given solely for
the purpose of determining the existence of a Default or an Event of Default under the covenant set
forth in such Section with respect to any Test Period that includes the fiscal quarter for which such Cure Right was
exercised and not for any other purpose under any Credit Document.
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(b) If, after the exercise of the Cure Right and the recalculations pursuant to
clause
(a)
above, the Parent Borrower shall then be in compliance with the requirements of the
covenant set forth in
Section 10.9
during such Test Period (including for purposes of
Section 7.1
), the Parent Borrower shall be deemed to have satisfied the requirements of
such covenant as of the relevant date of determination with the same effect as though there had
been no failure to comply therewith at such date, and the applicable Default or Event of Default
under
Section 11.3
that had occurred shall be deemed cured;
provided
that (i) in
each Test Period there shall be at least one fiscal quarter in which no Cure Right is exercised and
(ii) with respect to any exercise of the Cure Right, the Cure Amount shall be no greater than the
amount required to cause the Parent Borrower to be in compliance with the covenant set forth in
Section 10.9
.
SECTION 13.
The Agents
13.1.
Appointment.
(a) Each Lender hereby irrevocably designates and appoints the Administrative Agent as the
agent of such Lender under this Agreement and the other Credit Documents and irrevocably authorizes
the Administrative Agent, in such capacity, to take such action on its behalf under the provisions
of this Agreement and the other Credit Documents and to exercise such powers and perform such duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Credit Documents, together with
such other powers as are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Credit Document or otherwise exist against the
Administrative Agent.
(b) The Administrative Agent, each Lender, the Swingline Lender and the Letter of Credit
Issuer hereby irrevocably designate and appoint the Collateral Agent as the agent with respect to
the Collateral, and each of the Administrative Agent, each Lender, the Swingline Lender and the
Letter of Credit Issuer irrevocably authorizes the Collateral Agent, in such capacity, to take such
action on its behalf under the provisions of this Agreement and the other Credit Documents and to
exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by
the terms of this Agreement and the other Credit Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Collateral Agent shall not have any duties or responsibilities except those
expressly set forth herein, or any fiduciary relationship with any of the Administrative Agent, the
Lenders, the Swingline Lender or the Letter of Credit Issuers, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other
Credit Document or otherwise exist against the Collateral Agent.
(c) Each of the Co-Syndication Agents, Joint Lead Arrangers and Bookrunners, Joint Bookrunners
and the Documentation Agent, each in its capacity as such, shall
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not have any obligations, duties or responsibilities under this Agreement but shall be entitled to all benefits of this
Section
13
.
13.2.
Delegation of Duties
. The Administrative Agent and the Collateral Agent
may each execute any of its duties under this Agreement and the other Credit Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. Neither the Administrative Agent nor the Collateral Agent shall
be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it
with reasonable care.
13.3.
Exculpatory Provisions
. No Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates shall be (a) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with this Agreement or any
other Credit Document (except for its or such Persons own gross negligence or willful misconduct)
or (b) responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by any of any Borrower, any other Credit Party or any officer
thereof contained in this Agreement or any other Credit Document or in any certificate, report,
statement or other document referred to or provided for in, or received by such Agent under or in
connection with, this Agreement or any other Credit Document or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Credit Document or for any failure of any Borrower or
any other Credit Party to perform its obligations hereunder or thereunder. No Agent shall be under
any obligation to any Lender to ascertain or to inquire as to the observance or performance of any
of the agreements contained in, or conditions of, this Agreement or any other Credit Document, or
to inspect the properties, books or records of any Credit Party. The Collateral Agent shall not be
under any obligation to the Administrative Agent, any Lender, the Swingline Lender or any Letter of
Credit Issuer to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Credit Document, or to
inspect the properties, books or records of any Credit Party.
13.4.
Reliance by Agents
. The Administrative Agent and the Collateral Agent
shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution,
notice, consent, certificate, affidavit, letter, telecopy, telex or teletype message, statement,
order or other document or instruction believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and statements of legal
counsel (including counsel to any Borrower), independent accountants and other experts selected by
the Administrative Agent or the Collateral Agent. The Administrative Agent may deem and treat the
Lender specified in the Register with respect to any amount owing hereunder as the owner thereof
for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have
been filed with the Administrative Agent. The Administrative Agent and the Collateral Agent shall
be fully justified in failing or refusing to take any action under this Agreement
or any other Credit Document unless it shall first receive such advice or concurrence of the Required Lenders as
it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against
any and all liability and expense that may be incurred by it by reason of taking or continuing to
take any such action. The Administrative Agent and the Collateral Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement
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and the other Credit Documents in accordance with a request of the Required Lenders, and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future
holders of the Loans.
13.5.
Notice of Default
. Neither the Administrative Agent nor the Collateral
Agent shall be deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent or Collateral Agent has received notice from a
Lender or a Borrower referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a notice of default. In the event that the Administrative Agent
receives such a notice, it shall give notice thereof to the Lenders and the Collateral Agent. The
Administrative Agent shall take such action with respect to such Default or Event of Default as
shall be reasonably directed by the Required Lenders,
;
provided
that unless and
until the Administrative Agent shall have received such directions, the Administrative Agent may
(but shall not be obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best interests of the Lenders
except to the extent that this
Agreement requires that such action be taken only with the approval of the Required Lenders or
each of the Lenders, as applicable).
13.6.
Non-Reliance on Administrative Agent, Collateral Agent and Other
Lenders
. Each Lender expressly acknowledges that neither the Administrative Agent nor the
Collateral Agent nor any of their respective officers, directors, employees, agents,
attorneys-in-fact or Affiliates has made any representations or warranties to it and that no act by
the Administrative Agent or Collateral Agent hereinafter taken, including any review of the affairs
of any Borrower or any other Credit Party, shall be deemed to constitute any representation or
warranty by the Administrative Agent or Collateral Agent to any Lender, the Swingline Lender or any
Letter of Credit Issuer. Each Lender, the Swingline Lender and each Letter of Credit Issuer
represents to the Administrative Agent and the Collateral Agent that it has, independently and
without reliance upon the Administrative Agent, Collateral Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other condition and
creditworthiness of each Borrower and other Credit Party and made its own decision to make its
Loans hereunder and enter into this Agreement. Each Lender also represents that it will,
independently and without reliance upon the Administrative Agent, Collateral Agent or any other
Lender, and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Credit Documents, and to make such investigation as it deems
necessary to inform itself as to the business, operations, property, financial and other condition
and creditworthiness of the Borrowers and any other Credit Party. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the Administrative Agent
hereunder, neither the Administrative Agent nor the Collateral Agent shall have any duty or
responsibility to provide any Lender with any credit or other information concerning the business,
assets, operations, properties, financial condition, prospects or creditworthiness of any Borrower
or any other Credit Party that may come into the possession of the Administrative Agent or
Collateral Agent any of their respective officers, directors, employees, agents, attorneys-in-fact
or Affiliates.
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13.7.
Indemnification
. The Lenders agree to indemnify the Administrative
Agent and the Collateral Agent, each in its capacity as such (to the extent not reimbursed by the
Borrowers and without limiting the obligation of the Borrowers to do so), ratably according to
their respective portions of the Total New Revolving Exposure in effect on the date on which
indemnification is sought (or, if indemnification is sought after the date upon which the
Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance
with their respective portions of the Total New Revolving Exposure in effect immediately prior to
such date), from and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any
time (including at any time following the payment of the Loans) be imposed on, incurred by or
asserted against the Administrative Agent or the Collateral Agent in any way relating to or arising
out of, the Commitments, this Agreement, any of the other Credit Documents or any documents contemplated
by or referred to herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Administrative Agent or the Collateral Agent under or in connection
with any of the foregoing,
provided
that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Administrative Agents or the Collateral
Agents gross negligence or willful misconduct as determined by a final judgment of a court of
competent jurisdiction. The agreements in this
Section 13.7
shall survive the payment of
the Loans and all other amounts payable hereunder.
13.8.
Administrative Agent in its Individual Capacity
. The Administrative
Agent and its Affiliates may make loans to, accept deposits from and generally engage in any kind
of business with any Borrower, and any other Credit Party as though the Administrative Agent were
not the Administrative Agent hereunder and under the other Credit Documents. With respect to the
Loans made by it, the Administrative Agent shall have the same rights and powers under this
Agreement and the other Credit Documents as any Lender and may exercise the same as though it were
not the Administrative Agent, and the terms Lender and Lenders shall include the Administrative
Agent in its individual capacity.
13.9.
Successor Agents
. Each of the Administrative Agent and Collateral Agent
may at any time give notice of its resignation to the Lenders, the Letter of Credit Issuer and the
Parent Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have
the right, subject to the reasonable consent of the Parent Borrower so long as no Default under
Section 11.1
or
11.5
is continuing, to appoint a successor, which shall be a bank
with an office in the United States, or an Affiliate of any such bank with an office in the United
States. If no such successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Agent gives notice of its resignation,
then the retiring Agent may on behalf of the Lenders and the Letter of Credit Issuer, appoint a
successor Agent meeting the qualifications set forth above;
provided
that if the retiring
Agent shall notify the Parent Borrower and the Lenders that no qualifying Person has accepted such
appointment, then such resignation shall nonetheless become effective in accordance with such
notice and (1) the retiring Agent shall be discharged from its duties and obligations hereunder and
under the other Credit Documents (except in the case of the Collateral Agent holding collateral
security on behalf of any Secured Parties, the retiring Collateral Agent shall continue to hold
such collateral security as nominee until such time as a successor Collateral Agent is appointed)
and (2) all
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payments, communications and determinations provided to be made by, to or through such
Agent shall instead be made by or to each Lender and the Letter of Credit Issuer directly, until
such time as the Required Lenders appoint a successor Agent as provided for above in this Section.
Upon the acceptance of a successors appointment as the Administrative Agent or Collateral Agent,
as the case may be, hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or retired) Agent, and the retiring Agent
shall be discharged from all of its duties and obligations hereunder or under the other Credit
Documents (if not already discharged therefrom as provided above in this Section). The fees payable by
the Borrowers (following the effectiveness of such appointment) to such Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Parent Borrower and such
successor. After the retiring Agents resignation hereunder and under the other Credit Documents,
the provisions of this
Section
13
(including
Section
13.7
) and
Section
14.5
shall continue in effect for the benefit of such retiring Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be taken by any of them
while the retiring Agent was acting as an Agent.
Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also
constitute its resignation as Letter of Credit Issuer and
Swing Line
Swingline
Lender. Upon
the acceptance of a successors appointment as Administrative Agent hereunder, (a) such successor
shall succeed to and become vested with all of the rights, powers, privileges and duties of the
retiring Letter of Credit Issuer and
Swing Line
Swingline
Lender, (b) the retiring Letter of
Credit Issuer and
Swing Line
Swingline
Lender shall be discharged from all of their
respective duties and obligations hereunder or under the other Credit Documents, and (c) the
successor Letter of Credit Issuer shall issue letters of credit in substitution for the Letters of
Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory
to the retiring Letter of Credit Issuer to effectively assume the obligations of the retiring
Letter of Credit Issuer with respect to such Letters of Credit.
13.10.
Withholding Tax
. To the extent required by any applicable law, the
Administrative Agent may withhold from any interest payment to any Lender an amount equivalent to
any applicable withholding tax. If the Internal Revenue Service or any authority of the United
States or other jurisdiction asserts a claim that the Administrative Agent did not properly
withhold tax from amounts paid to or for the account of any Lender (because the appropriate form
was not delivered, was not properly executed, or because such Lender failed to notify the
Administrative Agent of a change in circumstances that rendered the exemption from, or reduction
of, withholding tax ineffective, or for any other reason), such Lender shall indemnify the
Administrative Agent (to the extent that the Administrative Agent has not already been reimbursed
by the Borrowers and without limiting the obligation of the Borrowers to do so) and/or the
Borrowers fully for all amounts paid, directly or indirectly, by the Administrative Agent or a
Borrower as tax or otherwise, including penalties and interest, together with all expenses
incurred, including legal expenses, allocated staff costs and any out of pocket expenses.
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13.11.
Reports and Financial Statements
. By signing this Agreement, each
Lender:
(a) is deemed to have requested that the Administrative Agent furnish such Lender, promptly
after they become available, copies of all financial statements required to be delivered by the
Parent Borrower hereunder and all field examinations, audits and appraisals of the Collateral
received by the Agents (collectively, the
Reports
);
(b) expressly agrees and acknowledges that the Administrative Agent (i) makes no
representation or warranty as to the accuracy of the Reports, and (ii) shall not be liable for any
information contained in any Report;
(c) expressly agrees and acknowledges that the Reports are not comprehensive audits or
examinations, that the Administrative Agent or any other party performing any audit or examination
will inspect only specific information regarding the Credit Parties and will rely significantly
upon the Credit Parties books and records, as well as on representations of the Credit Parties
personnel;
(d) agrees to keep all Reports confidential and strictly for its internal use, and not to
distribute except to its participants, or use any Report in any other manner; and
(e) without limiting the generality of any other indemnification provision contained in this
Agreement, agrees: (i) to hold the Administrative Agent and any such other Lender preparing a
Report harmless from any action the indemnifying Lender may take or conclusion the indemnifying
Lender may reach or draw from any Report in connection with any Loans or Letters of Credit that the
indemnifying Lender has made or may make to the Parent Borrower, or the indemnifying Lenders
participation in, or the indemnifying Lenders purchase of, a Loan or Loans of the Parent Borrower;
and (ii) to pay and protect, and indemnify, defend, and hold the Administrative Agent and any such
other Lender preparing a Report harmless from and against, the claims, actions, proceedings,
damages, costs, expenses, and other amounts (including attorney costs) incurred by the Agents and
any such other Lender preparing a Report as the direct or indirect result of any third parties who
might obtain all or part of any Report through the indemnifying Lender.
|
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SECTION 14.
Miscellaneous
|
14.1.
Amendments and Waivers
. Neither this Agreement nor any other Credit
Document, nor any terms hereof or thereof, may be amended, supplemented or modified except in
accordance with the provisions of this
Section 14.1
. The Required Lenders may, or, with
the written consent of the Required Lenders, the Administrative Agent and/or the Collateral Agent
may, from time to time, (a) enter into with the relevant Credit Party or Credit Parties written
amendments, supplements or modifications hereto and to the other Credit Documents for the purpose
of adding any provisions to this Agreement or the other Credit Documents or changing in any manner
the rights of the Lenders or of the Credit Parties hereunder or thereunder or (b) waive, on such
terms and conditions as the Required Lenders or the Administrative Agent and/or Collateral Agent,
as the case may be, may specify in such instrument, any of the requirements of this Agreement or
the other Credit Documents or any Default or Event of Default and its
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consequences;
provided
,
however
, that no such waiver and no such amendment, supplement or
modification shall directly (i) forgive or reduce any portion of any Loan or extend the final
scheduled maturity date of any Loan or reduce the stated rate (it being understood that any change
to the definition of Consolidated Total Debt to Consolidated EBITDA Ratio or in the component
definitions thereof shall not constitute a reduction in the rate and only the consent of the
Required Lenders shall be necessary to waive any obligation of the Borrowers to pay interest at the
default rate
Default Rate
or amend
Section 2.8(c)
), or forgive any portion, or extend the date for
the payment, of any interest or fee payable hereunder (other than as a result of waiving the
applicability of any post-default increase in interest rates
or any amendment contemplated by
Section 1.7
), or extend the final expiration date of any Lenders Commitment or extend the
final expiration date of any Letter of Credit beyond the L/C Maturity Date, or increase the
aggregate amount of the Commitments of any Lender (it being understood that the making of any
Protective Advance, so long as it is in compliance with the provisions of
Section 2.1(e)
,
shall not constitute an increase of any Commitment of any Lender), or amend or modify any
provisions of
Section 5.3(a)
(with respect to the ratable allocation of any payments only)
and
14.8(a)
, or make any Loan, interest, Fee or other amount payable in any currency other
than Dollars in each case without the written consent of each Lender directly and adversely
affected thereby, or (ii) amend, modify or waive any provision of this
Section 14.1
or
reduce the percentages specified in the definitions of the term Required Lenders or
Supermajority Lenders, consent to the assignment or transfer by any Borrower of its rights and
obligations under any Credit Document to which it is a party (except as permitted pursuant to
Section 10.3
) or alter the order of application set forth in the final paragraph of
Section 11
, in each case without the written consent of each Lender directly and adversely
affected thereby, or (iii) amend, modify or waive any provision of
Section 13
without the
written consent of the then-current Administrative Agent and Collateral Agent, or (iv) amend,
modify or waive any provision of
Section 3
with respect to any Letter of Credit without the
written consent of the Letter of Credit Issuer, or (v) amend, modify or waive any provisions hereof
relating to Swingline Loans without the written consent of the Swingline Lender, or (vi)
[Reserved], or (vii) release all or substantially all of the Collateral under the Security
Documents (except as expressly permitted by the Security Documents or this Agreement) without the
prior written consent of each Lender, or (viii) amend
Section 2.9
so as to permit Interest
Period intervals greater than six months without regard to availability to Lenders, without the
written consent of each Lender directly and adversely affected thereby, or (ix) change the
definition of the term Borrowing Base or any component definition thereof if as a result thereof
the amounts available to be borrowed by the Parent Borrower would be increased, without the written
consent of the Supermajority Lenders,
;
provided
that the foregoing shall not limit
the discretion of the Administrative Agent to change, establish or eliminate any Reserves without
the consent of any Lenders. Any such waiver and any such amendment, supplement or modification
shall apply equally to each of the affected Lenders and shall be binding upon the Borrowers, such
Lenders, the Administrative Agent and all future holders of the affected Loans. In the case of any
waiver, the Borrowers, the Lenders and the Administrative Agent shall be restored to their former
positions and rights hereunder and under the other Credit Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing, it being understood that no such
waiver shall extend to any subsequent or other Default or Event of Default or impair any right
consequent thereon.
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Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of
such Lender may not be increased or extended without the consent of such Lender (it being
understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be
excluded for a vote of the Lenders hereunder requiring any consent of the Lenders).
Notwithstanding the foregoing, in addition to any credit extensions and related Joinder
Agreement(s) effectuated without the consent of Lenders in accordance with
Section 2.14
,
this Agreement may be amended (or amended and restated) with the written consent of the Required
Lenders, the Administrative Agent and the Parent Borrower (a) to add one or more additional credit
facilities to this Agreement and to permit the extensions of credit from time to time outstanding
thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of
this Agreement and the other Loan Documents with the New Revolving Credit Loans and the accrued
interest and fees in respect thereof and (b) to include appropriately the Lenders holding such
credit facilities in any determination of the Required Lenders and other definitions related to
such new New Revolving Credit Loans.
The Lenders hereby irrevocably agree that the Liens granted to the Collateral Agent by the
Credit Parties on any Collateral shall be automatically released (i) in full, upon the payment of
the Obligations (other than contingent Obligations that survive in accordance with their terms) in
cash upon the termination of this Agreement, (ii) upon the sale or other disposition such
Collateral (including as part of or in connection with any other sale or other disposition
permitted hereunder) to any Person other than another Credit Party, to the extent such sale or
other disposition is made in compliance with the terms of this Agreement (and the Collateral Agent
may rely conclusively on a certificate to that effect provided to it by any Credit Party upon its
reasonable request without further inquiry), (iii) if the release of such Lien is approved,
authorized or ratified in writing by the Required Lenders (or such other percentage of the Lenders
whose consent may be required in accordance with this
Section 14.1
), (iv) to the extent the
property constituting Collateral is owned by any Subsidiary Borrower, upon the release of such
Subsidiary Borrower from its obligations hereunder (in accordance with the following sentence) and
(v) as required to effect any sale or other disposition of such Collateral in connection with any
exercise of remedies of the Collateral Agent pursuant to the Collateral Documents. Any such
release shall not in any manner discharge, affect or impair the Obligations or any Liens (other
than those being released) upon (or obligations (other than those being released) of the Credit
Parties in respect of) all interests retained by the Credit Parties, including the proceeds of any
sale, all of which shall continue to constitute part of the Collateral except to the extent
otherwise released in accordance with the provisions of the Credit Documents. Additionally, the
Lenders hereby irrevocably agree that the Subsidiary Borrowers shall be released from the (i)
Obligations upon the consummation of any transaction resulting in such Subsidiary Borrower ceasing
to constitute a Restricted Subsidiary or (ii) including upon the designation of such Subsidiary
Borrower as a Designated Non-Borrower Subsidiary (in accordance with the definition thereof)). The
Lenders hereby authorize the Administrative Agent and the Collateral Agent, as applicable, to
execute and deliver any instruments, documents, and agreements necessary or desirable to evidence
and confirm the release of any
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Subsidiary Borrower or Collateral pursuant to the foregoing
provisions of this paragraph, all without the further consent or joinder of any Lender.
14.2.
Notices
. Unless otherwise expressly provided herein, all notices and
other communications provided for hereunder or under any other Credit Document shall be in writing
(including by facsimile transmission). All such written notices shall be mailed, faxed or
delivered to the applicable address, facsimile number or electronic mail address, and all
notices and other communications expressly permitted hereunder to be given by telephone shall be
made to the applicable telephone number, as follows:
(a) if to the Parent Borrower, any Subsidiary Borrower, the Administrative Agent, the
Collateral Agent, the Letter of Credit Issuer or the Swingline Lender, to the address, facsimile
number, electronic mail address or telephone number specified for such Person on
Schedule
14.2
to the Original Credit Agreement or to such other address, facsimile number, electronic
mail address or telephone number as shall be designated by such party in a notice to the other
parties; and
(b) if to any other Lender, to the address, facsimile number, electronic mail address or
telephone number specified in its Administrative Questionnaire or to such other address, facsimile
number, electronic mail address or telephone number as shall be designated by such party in a
notice to the Parent Borrower, the Administrative Agent, the Collateral Agent, the Letter of Credit
Issuer and the Swingline Lender.
All such notices and other communications shall be deemed to be given or made upon the earlier to
occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by
courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail,
three (3) Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile,
when sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail,
when delivered;
provided
that notices and other communications to the Administrative Agent
or the Lenders pursuant to
Sections 2.3
,
2.6
,
2.9
,
4.2
and
5.1
shall not be effective until received.
14.3.
No Waiver; Cumulative Remedies
. No failure to exercise and no delay in
exercising, on the part of the Administrative Agent, the Collateral Agent or any Lender, any right,
remedy, power or privilege hereunder or under the other Credit Documents shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
14.4.
Survival of Representations and Warranties
. All representations and
warranties made hereunder, in the other Credit Documents and in any document, certificate or
statement delivered pursuant hereto or in connection herewith shall survive the execution and
delivery of this Agreement and the making of the Loans hereunder.
14.5.
Payment of Expenses
. The Borrowers agree (a) to pay or reimburse the
Agents for all their reasonable out-of-pocket costs and expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement or modification to,
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this Agreement and the other Credit Documents and any other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and thereby, including the
reasonable fees, disbursements and other charges of Cahill Gordon & Reindel
llp
and one
counsel in each local jurisdiction to the extent consented to by the Parent Borrower (such consent
not to be unreasonably withheld), (b) to pay or reimburse the Agent for all its reasonable and
documented costs and expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Credit Documents and any such other documents, including the
reasonable fees, disbursements and other charges of counsel to the Agent, (c) to pay, indemnify,
and hold harmless each Lender and Agent from, any and all recording and filing fees, (d) to pay,
indemnify, and hold harmless each Lender and Agent and their respective directors, officers,
employees, trustees, investment advisors and agents from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever, including reasonable and documented fees,
disbursements and other charges of counsel, with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the other Credit Documents and any such other
documents, including, without limitation, any of the foregoing relating to the violation of,
noncompliance with or liability under, any Environmental Law (other than by such indemnified person
or any of its Related Parties) or to any actual or alleged presence, release or threatened release
of Hazardous Materials involving or attributable to the operations of the Parent Borrower, any of
its Subsidiaries or any of the Real Estate (all the foregoing in this
clause (d)
,
collectively, the
indemnified liabilities
) and (e) to pay for up to two appraisals and field
examinations and the preparation of Reports related thereto in each calendar year based on the fees
charged by third parties retained by the Administrative Agent (notwithstanding any reference to
out-of-pocket above in this
Section 14.5
);
provided
that the Borrowers shall have
no obligation hereunder to any Administrative Agent or any Lender nor any of their respective
Related Parties with respect to indemnified liabilities to the extent attributable to (i) the gross
negligence, bad faith or willful misconduct of the party to be indemnified or any of its Related
Parties, (ii) any material breach of any Credit Document by the party to be indemnified or (iii)
disputes among the Administrative Agent, the Lenders and/or their transferees. All amounts payable
under this
Section 14.5
shall be paid within ten Business Days of receipt by the Parent
Borrower of an invoice relating thereto setting forth such expense in reasonable retail. The
agreements in this
Section 14.5
shall survive repayment of the Loans and all other amounts
payable hereunder.
14.6.
Successors and Assigns; Participations and Assignments
.
(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby (including any
Affiliate of the Letter of Credit Issuer that issues any Letter of Credit), except that (i) except
as expressly permitted by
Section 10.3
, no Borrower may assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent of the Administrative Agent
and each Lender (and any attempted assignment or transfer by any Borrower without such consent
shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this
Section 14.6
. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby (including any Affiliate of the
Letter of
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Credit Issuer that issues any Letter of Credit), Participants (to the extent provided in
clause (c)
of this
Section 14.6
) and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent, the Collateral Agent, the Letter of Credit
Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of this
Agreement.
(b) (i) Subject to the conditions set forth in
clause (b)(ii)
below, any Lender may at
any time assign to one or more assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitments and the Loans (including participations in
L/C Obligations or Swingline Loans) at the time owing to it) with the prior written consent (such
consent not be unreasonably withheld or delayed; it being understood that, without limitation, the
Parent Borrower shall have the right to withhold or delay its consent to any assignment if, in
order for such assignment to comply with applicable law, any Borrower would be required to obtain
the consent of, or make any filing or registration with, any Governmental Authority) of:
(A) the Parent Borrower (which consent shall not be unreasonably withheld or delayed),
provided
that, subject to
clause (g)
below, no consent of the Parent
Borrower shall be required for
an assignment to a Lender, an Affiliate of a Lender (unless
increased costs would result therefrom unless
if
an Event of Default under
Section 11.1
or
Section 11.5
has occurred and
is continuing
),
an Approved
Fund or, if an Event of Default under
Section 11.1
or
Section 11.5
has
occurred and is continuing, any other assignee
; and
(B) the Administrative Agent (which consent shall not be unreasonably withheld or
delayed), the Swingline Lender and the applicable Letter of Credit Issuer.
Notwithstanding the foregoing, no such assignment shall be made to a natural person.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning Lenders
Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning
Lender subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative Agent) shall
not be less than $5,000,000, and increments of $1,000,000 in excess thereof, or unless each
of the Parent Borrower and the Administrative Agent otherwise consents (which consents shall
not be unreasonably withheld or delayed),
provided
that no such consent of the
Parent Borrower shall be required if an Event of Default under
Section 11.1
or
Section 11.5
has occurred and is continuing;
provided
,
further
, that
contemporaneous assignments to a single assignee made by Affiliates of Lenders and related
Approved Funds shall be aggregated for purposes of meeting the minimum assignment amount
requirements stated above;
(B) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lenders rights and obligations under this
Agreement
,
;
provided
that this clause shall not be construed to prohibit the assignment of a proportionate
part of
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all the assigning Lenders rights and obligations in respect of one Class of
Commitments or Loans;
(C) The parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, together with a processing and recordation fee in the
amount of $3,500;
provided
that the Administrative Agent may, in its sole
discretion, elect to waive such processing and recordation fee in the case of any
assignment; and
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an administrative questionnaire in a form approved by the Administrative Agent (the
Administrative Questionnaire
).
(iii) Subject to acceptance and recording thereof pursuant to
clause (b)(iv)
of
this
Section 14.6
, from and after the effective date specified in each Assignment
and Acceptance, the assignee thereunder shall be a party hereto and, to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Acceptance, be released from its obligations under
this Agreement (and, in the case of an Assignment and Acceptance covering all of the
assigning Lenders rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of
Sections
2.10
,
2.11
,
3.5
,
5.4
and
14.5
). Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not comply with
this
Section 14.6
shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
clause
(c)
of this
Section 14.6
.
(iv) The Administrative Agent, acting for this purpose as an agent of the Borrowers,
shall maintain at the Administrative Agents Office a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amount of the Loans and any payment made by
the Letter of Credit Issuer under any Letter of Credit owing to, each Lender pursuant to the
terms hereof from time to time (the
Register
). Further, each Register shall contain the
name and address of the Administrative Agent and the lending office through which each such
Person acts under this Agreement. The entries in the Register shall be conclusive, and the
Borrowers, the Administrative Agent, the Collateral Agent, the Letter of Credit Issuer and
the Lenders shall treat each Person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by the Borrowers,
the Collateral Agent, the Letter of Credit Issuer and any Lender, at any reasonable time and
from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Acceptance executed by an
assigning Lender and an assignee, the assignees completed
Administrative Questionnaire (unless the assignee shall already be a Lender hereunder),
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the processing and recordation fee referred to in
clause (b)
of this
Section
14.6
and any written consent to such assignment required by
clause (b)
of this
Section 14.6
, the Administrative Agent shall accept such Assignment and Acceptance
and record the information contained therein in the Register.
(c) (i) Any Lender may, without the consent of any Borrower, any Administrative Agent, the
Letter of Credit Issuer or the Swingline Lender, sell participations to one or more banks or other
entities (each, a
Participant
) in all or a portion of such Lenders rights and obligations under
this Agreement (including all or a portion of its Commitments and the
Loans owing to
it),
;
provided
that (A) such Lenders obligations under this Agreement shall remain unchanged,
(B) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (C) the Borrowers, the Administrative Agent, the Letter of Credit Issuer and
the other Lenders shall continue to deal solely and directly with such Lender in connection with
such Lenders rights and obligations under this Agreement. Any agreement or instrument pursuant to
which a Lender sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or waiver of any
provision of this Agreement or any other Credit Document,
provided
that such agreement or
instrument may provide that such Lender will not, without the consent of the Participant, agree to
any amendment, modification or waiver described in
clause (i)
of the proviso to
Section
14.1
that affects such Participant. Subject to
clause (c)(ii)
of this
Section
14.6
, the Borrowers agree that each Participant shall be entitled to the benefits of
Sections 2.10
,
2.11
and
5.4
to the same extent as if it were a Lender,
provided
that such Participant agrees to be subject to the requirements of those Sections
as though it were a Lender and had acquired its interest by assignment pursuant to
clause
(b)
of this
Section 14.6
. To the extent permitted by law, each Participant also shall
be entitled to the benefits of
Section 14.8(b)
as though it were a Lender,
provided
such Participant agrees to be subject to
Section 14.8(a)
as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater payment under
Section 2.10
,
2.11
or
5.4
than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the Parent Borrowers prior
written consent (which consent shall not be unreasonably withheld).
(d) Any Lender may, without the consent of any Borrower or the Administrative Agent, at any
time pledge or assign a security interest in all or any portion of its rights under this Agreement
to secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this
Section 14.6
shall not apply to any such pledge or
assignment of a security interest,
provided
that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or substitute any such
pledgee or assignee for such Lender as a party hereto. In order to facilitate such pledge or
assignment, the Borrowers hereby agree that, upon request of any Lender at any time and from time
to time after any Borrower has made its initial borrowing hereunder, each Borrower shall provide to
such Lender, at such Borrowers own expense, a promissory note,
substantially
in
the form of
Exhibit K
evidencing the New Revolving Credit Loans and
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Swingline
Loans, respectively,
form reasonably acceptable to the
Administrative Agent, representing the
Loan
owing to such Lender.
(e) Subject to
Section 14.16
, the Borrowers authorize each Lender to disclose to any
Participant, secured creditor of such Lender or assignee (each, a
Transferee
) and any prospective
Transferee any and all financial information in such Lenders possession concerning a Borrower and
its Affiliates that has been delivered to such Lender by or on behalf of such Borrower and its
Affiliates pursuant to this Agreement or that has been delivered to such Lender by or on behalf of
such Borrower and its Affiliates in connection with such Lenders credit evaluation of such
Borrower and its Affiliates prior to becoming a party to this Agreement.
(f) The words execution, signed, signature, and words of like import in any Assignment
and Acceptance shall be deemed to include electronic signatures or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or enforceability as a
manually executed signature or the use of a paper-based recordkeeping system, as the case may be,
to the extent and as provided for in any applicable law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic Signatures and
Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
(g) Notwithstanding anything to the contrary in
clause (b)
above, unless an Event of
Default under
Section 11.1
or
Section 11.5
has occurred and is continuing, no
assignment by any Lender of all or any portion of its rights and obligations under this Agreement
shall be permitted without the consent of the Parent Borrower if, after giving effect to such
assignment, the assignee in respect thereof, taken together with its Affiliates and Approved Funds,
would hold in the aggregate more than 25% of the Total New Revolving Exposure.
14.7.
Replacements of Lenders under Certain Circumstances
.
(a) The Borrowers shall be permitted to replace any Lender that (a) requests reimbursement for
amounts owing pursuant to
Section 2.10
,
3.5
or
5.4
, (b) is affected in the
manner described in
Section 2.10(a)(iii)
and as a result thereof any of the actions
described in such Section is required to be taken or (c) becomes a Defaulting Lender, with a
replacement bank or other financial institution,
provided
that (i) such replacement does
not conflict with any Requirement of Law, (ii) no Event of Default under
Section 11.1
or
11.5
shall have occurred and be continuing at the time of such replacement, (iii) the
Borrowers shall repay (or the replacement bank or institution shall purchase, at par) all Loans and
other amounts (other than any disputed amounts), pursuant to
Section 2.10
,
2.11
,
3.5
or
5.4
, as the case may be) owing to such replaced Lender prior to the date of
replacement, (iv) the replacement bank or institution, if not already a Lender, and the terms and
conditions of such replacement, shall be reasonably satisfactory to the Administrative Agent, (v)
the replaced Lender shall be obligated to make such replacement in accordance with the provisions
of
Section 14.6
(
provided
that the Borrowers shall be obligated to pay the
registration and processing fee referred to therein) and (vi) any such replacement shall not be
deemed to be a waiver of any rights that the Borrowers, the Administrative Agent or any other
Lender shall have against the replaced Lender.
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(b) If any Lender (such Lender, a
Non-Consenting Lender
) has failed to consent to a proposed
amendment, waiver, discharge or termination that pursuant to the terms of
Section 14.1
requires the consent of all of the Lenders affected or the Supermajority Lenders and with respect
to which the Required Lenders shall have granted their consent, then provided no Event of Default
then exists, the Borrowers shall have the right (unless such Non-Consenting Lender grants such
consent) to replace such Non-Consenting Lender by requiring such Non-Consenting Lender to assign
its Loans, and its Commitments hereunder to one or more assignees reasonably acceptable to the
Administrative Agent,
provided
that: (a) all Obligations of the Borrowers owing to such
Non-Consenting Lender being replaced shall be paid in full to such Non-Consenting Lender
concurrently with such assignment, and (b) the replacement Lender shall purchase the foregoing by
paying to such Non-Consenting Lender a price equal to the principal amount thereof plus accrued and
unpaid interest thereon. In connection with any such assignment, the Borrowers, Administrative
Agent, such Non-Consenting Lender and the replacement Lender shall otherwise comply with
Section 14.6
.
14.8.
Adjustments; Set-off
.
(a) If any Lender (a
benefited Lender
) shall at any time receive any payment of all or part
of its Loans, or interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred
to in
Section 11.5
, or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other Lenders Loans, or
interest thereon, such benefited Lender shall purchase for cash from the other Lenders a
participating interest in such portion of each such other Lenders Loan, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such benefited Lender to share the excess payment or benefits of such collateral
or proceeds ratably with each of the Lenders;
provided
,
however
, that if all or any
portion of such excess payment or benefits is thereafter recovered from such benefited Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.
(b) After the occurrence and during the continuance of an Event of Default, in addition to any
rights and remedies of the Lenders provided by law, except as provided in the last sentence of this
subclause (b)
, each Lender shall have the right, without prior notice to any Borrower, any
such notice being expressly waived by each Borrower to the extent permitted by applicable law, upon
any amount becoming due and payable by any Borrower hereunder (whether at the stated maturity, by
acceleration or otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute
or contingent, matured or unmatured, at any time held or owing by such Lender or any branch or
agency thereof to or for the credit or the account of the Borrowers. Each Lender agrees promptly
to notify such Borrower (and the Parent Borrower, if other) and the Administrative Agent after any
such set-off and application made by such Lender,
provided
that the failure to give such
notice shall not affect the validity of such set-off and
application. Notwithstanding anything to the contrary in any Credit Document, any Secured
Party and its Affiliates (and each Participant of any Lender or any of its Affiliates) that is a
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Government Receivables Bank shall not have the right and hereby expressly waives any rights it
might otherwise have, to set-off or appropriate and apply any or all deposits (general or special,
time or demand, provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured
or unmatured, at any time held or owing by such Secured Party or its Affiliates (and each
Participant of any Lender or any of its Affiliates) or any branch or agency thereof in a Government
Receivables Deposit Account (but no other deposit account or any subsequent accounts to which the
proceeds of Government Accounts may be transferred) to or for the credit or the account of the
Borrowers, in each case to the extent necessary for the Credit Parties and each Secured Party and
its Affiliates (and each Participant of any Lender and its Affiliates) to remain in compliance with
Medicare, Medicaid, TRICARE, CHAMPVA or any other applicable laws, rules or regulations of a
Government Agency.
14.9.
Counterparts
. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by facsimile or other
electronic transmission), and all of said counterparts taken together shall be deemed to constitute
one and the same instrument. A set of the copies of this Agreement signed by all the parties shall
be lodged with the Borrowers and the Administrative Agent.
14.10.
Severability
. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
14.11.
Integration
. This Agreement and the other Credit Documents represent
the agreement of the Borrowers, the Collateral Agent, the Administrative Agent and the Lenders with
respect to the subject matter hereof, and there are no promises, undertakings, representations or
warranties by any Borrower, the Administrative Agent, the Collateral Agent nor any Lender relative
to subject matter hereof not expressly set forth or referred to herein or in the other Credit
Documents.
14.12.
GOVERNING LAW
. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW
OF THE STATE OF NEW YORK.
14.13.
Submission to Jurisdiction; Waivers
. Each Borrower irrevocably and
unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to this
Agreement and the other Credit Documents to which it is a party, or for recognition and enforcement
of any judgment in respect thereof, to the non-exclusive general jurisdiction of the courts of the
State of New York, the courts of the United States of America for the Southern District of New York
and appellate courts from any thereof;
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(b) consents that any such action or proceeding may be brought in such courts and waives any
objection that it may have had as of the Original Closing Date or thereafter have to the venue of
any such action or proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be effected by mailing
a copy thereof by registered or certified mail (or any substantially similar form of mail), postage
prepaid, to such Person at its address set forth on
Schedule 14.2
to the Original Credit
Agreement at such other address of which the Administrative Agent shall have been notified pursuant
to
Section 14.2
;
(d) agrees that nothing herein shall affect the right to effect service of process in any
other manner permitted by law or shall limit the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it may have to claim or
recover in any legal action or proceeding referred to in this
Section 14.13
any special,
exemplary, punitive or consequential damages.
14.14.
Acknowledgments
. Each Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Credit Documents;
(b) (i) the credit facilities provided for hereunder and any related arranging or other
services in connection therewith (including in connection with any amendment, waiver or other
modification hereof or of any other Credit Document) are an arms-length commercial transaction
between the Borrowers, on the one hand, and the Administrative Agent, the Lender and the other
Agents on the other hand, and the Borrowers and the other Credit Parties are capable of evaluating
and understanding and understand and accept the terms, risks and conditions of the transactions
contemplated hereby and by the other Credit Documents (including any amendment, waiver or other
modification hereof or thereof); (ii) in connection with the process leading to such transaction,
each of the Administrative Agent and the other Agents, is and has been acting solely as a principal
and is not the financial advisor, agent or fiduciary for any of the Borrowers, any other Credit
Parties or any of their respective Affiliates, stockholders, creditors or employees or any other
Person; (iii) neither the Administrative Agent nor any other
Agent has assumed or will assume an advisory, agency or fiduciary responsibility in favor of
any Borrower or any other Credit Party with respect to any of the transactions contemplated hereby
or the process leading thereto, including with respect to any amendment, waiver or other
modification hereof or of any other Credit Document (irrespective of whether the Administrative
Agent or other Agent has advised or is currently advising any of the Borrowers, the other Credit
Parties or their respective Affiliates on other matters) and neither the Administrative Agent or
other Agent has any obligation to any of any Borrowers, the other Credit Parties or their
respective Affiliates with respect to the transactions contemplated hereby except those obligations
expressly set forth herein and in the other Credit Documents; (iv) the Administrative Agent and its
Affiliates may be engaged in a broad range of transactions that involve interests that differ from
those of the Borrowers and their respective Affiliates, and neither the Administrative Agent nor
other Agent has any obligation to disclose any of such interests by
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virtue of any advisory, agency or fiduciary relationship; and (v) neither the Administrative Agent nor any other Agent has
provided and none will provide any legal, accounting, regulatory or tax advice with respect to any
of the transactions contemplated hereby (including any amendment, waiver or other modification
hereof or of any other Credit Document) and each Borrower has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has deemed appropriate. Each Borrower hereby waives
and releases, to the fullest extent permitted by law, any claims that it may have against the
Administrative Agent or any other Agent with respect to any breach or alleged breach of agency or
fiduciary duty; and
(c) no joint venture is created hereby or by the other Credit Documents or otherwise exists by
virtue of the transactions contemplated hereby among the Lenders or among any Borrower on the one
hand, and any Lender on the other hand.
14.15.
WAIVERS OF JURY TRIAL
. EACH BORROWER, EACH AGENT AND EACH LENDER
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
14.16.
Confidentiality
. The Administrative Agent and each Lender shall hold
all non-public information furnished by or on behalf of the Parent Borrower or any of its
Subsidiaries in connection with such Lenders evaluation of whether to become a Lender hereunder or
obtained by such Lender or the Administrative Agent pursuant to the requirements of this Agreement
(
Confidential Information
), confidential in accordance with its customary procedure for handling
confidential information of this nature and (in the case of a Lender that is a bank) in accordance
with safe and sound banking practices and in any event may make disclosure as required or requested
by any governmental agency or representative thereof or pursuant to legal process or (a) to such
Lenders or the Administrative Agents attorneys, professional advisors, independent auditors,
trustees or Affiliates, (b) to an investor or prospective investor in a Securitization that agrees
its access to information regarding the Credit Parties, the Loans and the Credit Documents is
solely for purposes of evaluating an investment in a Securitization and who
agrees to treat such information as confidential, (c) to a trustee, collateral manager,
servicer, backup servicer, noteholder or secured party in connection with the administration,
servicing and reporting on the assets serving as collateral for a securitization and who agrees to
treat such information as confidential and (d) to a nationally recognized ratings agency that
requires access to information regarding the Credit Parties, the Loans and Credit Documents in
connection with ratings issued with respect to a Securitization;
provided
that unless
specifically prohibited by applicable law or court order, each Lender and the Administrative Agent
shall notify the Parent Borrower of any request made to such Lender or the Administrative Agent by
any governmental agency or representative thereof (other than any such request in connection with
an examination of the financial condition of such Lender by such governmental agency) for
disclosure of any such non-public information prior to disclosure of such information, and
provided, further, that in no event shall any Lender or the Administrative Agent be obligated or
required to return any materials furnished by the Parent Borrower or any Subsidiary. Each Lender
and the Administrative Agent agrees that it will not provide to prospective Transferees or to any
pledgee referred to in
Section 14.6
or to prospective direct or
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indirect contractual counterparties in swap agreements to be entered into in connection with Loans made hereunder any of
the Confidential Information unless such Person is advised of and agrees to be bound by the
provisions of this
Section 14.16
.
14.17.
Direct Website Communications
.
(a) (i) Any Borrower may, at its option, provide to the Administrative Agent any information,
documents and other materials that it is obligated to furnish to the Administrative Agent pursuant
to the Credit Documents, including, without limitation, all notices, requests, financial
statements, financial and other reports, certificates and other information materials, but
excluding any such communication that (A) relates to a request for a new, or a conversion of an
existing, borrowing or other extension of credit (including any election of an interest rate or
interest period relating thereto), (B) relates to the payment of any principal or other amount due
under this Agreement prior to the scheduled date therefor, (C) provides notice of any default or
event of default under this Agreement or (D) is required to be delivered to satisfy any condition
precedent to the effectiveness of this Agreement and/or any borrowing or other extension of credit
thereunder (all such non-excluded communications being referred to herein collectively as
Communications
), by transmitting the Communications in an electronic/soft medium in a format
reasonably acceptable to the Administrative Agent to the Administrative Agent at
liliana.claar@bankofamerica.com. Nothing in this
Section 14.17
shall prejudice the right
of the Borrowers, the Administrative Agent or any Lender to give any notice or other communication
pursuant to any Credit Document in any other manner specified in such Credit Document.
(ii)
(ii)
The Administrative Agent agrees that the receipt of the Communications by
the Administrative Agent at its e-mail address set forth above shall constitute effective delivery
of the Communications to the Administrative Agent for purposes of the Credit Documents. Each
Lender agrees that notice to it (as provided in the next sentence) specifying that the
Communications have been posted to the Platform shall constitute effective delivery of
the Communications to such Lender for purposes of the Credit Documents. Each Lender agrees
(A) to notify the Administrative Agent in writing (including by electronic communication) from time
to time of such Lenders e-mail address to which the foregoing notice may be sent by electronic
transmission and (B) that the foregoing notice may be sent to such e-mail address.
(b) The Borrowers hereby acknowledge that (a) the Administrative Agent and/or the other Agents
will make available to the Lenders and the Letter of Credit Issuer materials and/or information
provided by or on behalf of the Borrowers hereunder (collectively,
Borrower Materials
) by posting
the Borrower Materials on IntraLinks or another similar electronic system (the
Platform
) and (b)
certain of the Lenders may be public-side Lenders (
i.e
., Lenders that do not wish to receive
material non-public information with respect to the Borrowers or their securities) (each, a
Public
Lender
). Each Borrower hereby agrees that it will use commercially reasonable efforts to identify
that portion of the Borrower Materials that do not contain any material non-public information and
that may be distributed to the Public Lenders and that (x) all such Borrower Materials shall be
clearly and conspicuously marked PUBLIC which, at a minimum, shall mean that the word PUBLIC
shall appear prominently on the first page thereof and (y) by marking Borrower Materials PUBLIC,
the Parent Borrower
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shall be deemed to have authorized the Administrative Agent and the other
Agents to make such Borrower Materials available through a portion of the Platform designated
Public Investor. Notwithstanding the foregoing or any other provision of this Agreement to the
contrary, neither the Parent Borrower nor any of its Related Parties shall be liable, or
responsible in any manner, for the use by any Agent, any Lender, any Participant or any of their
Related Parties of the Borrower Materials. In addition, it is agreed that (i) to the extent any
Borrower Materials constitute Confidential Information, they shall be subject to the
confidentiality provisions of
Section 14.16
and (ii) the Borrowers shall be under no
obligation to designate any Borrower Materials as PUBLIC.
(c) THE PLATFORM IS PROVIDED AS IS AND AS AVAILABLE. THE AGENT PARTIES (AS DEFINED BELOW)
DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE
PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.
NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR
OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE
PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively,
the
Agent Parties
) have any liability to any Borrower, any Lender, the Letter of Credit Issuer or
any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort,
contract or otherwise) arising out of any Borrowers or the Administrative Agents transmission of
Borrower Materials through the internet, except to the extent the liability of any Agent Party
resulted from such Agent Partys (or any of its Related Parties) gross negligence, bad faith or
willful misconduct or material breach of the Credit Documents.
14.18.
USA Patriot Act
. Each Lender hereby notifies the Borrowers that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
Patriot Act
),
it is required to obtain, verify and record information that identifies each Borrower, which
information includes the name and address of each Borrower and other information that will allow
such Lender to identify each Borrower in accordance with the Patriot Act.
14.19.
Joint and Several Liability
. All Loans, upon funding, shall be deemed
to be jointly funded to and received by the Borrowers. Each Borrower is jointly and severally
liable under this Agreement for all Obligations, regardless of the manner or amount in which
proceeds of Loans are used, allocated, shared or disbursed by or among the Borrowers themselves, or
the manner in which an Agent and/or any Lender accounts for such Loans or other extensions of
credit on its books and records. Each Borrower shall be liable for all amounts due to an Agent
and/or any Lender from the Borrowers under this Agreement, regardless of which Borrower actually
receives Loans or other extensions of credit hereunder or the amount of such Loans and extensions
of credit received or the manner in which such Agent and/or such Lender accounts for such Loans or
other extensions of credit on its books and records. Each Borrowers Obligations with respect to
Loans and other extensions of credit made
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to it, and such Borrowers Obligations arising as a
result of the joint and several liability of such Borrower hereunder with respect to Loans made to
the other Borrowers hereunder shall be separate and distinct obligations, but all such Obligations
shall be primary obligations of such Borrower. The Borrowers acknowledge and expressly agree with
the Agents and each Lender that the joint and several liability of each Borrower is required solely
as a condition to, and is given solely as inducement for and in consideration of, credit or
accommodations extended or to be extended under the Credit Documents to any or all of the other
Borrowers and is not required or given as a condition of extensions of credit to such Borrower.
Each Borrowers Obligations under this Agreement shall, to the fullest extent permitted by law, be
unconditional irrespective of (i) the validity or enforceability, avoidance, or subordination of
the Obligations of any other Borrower or of any promissory note or other document evidencing all or
any part of the Obligations of any other Borrower, (ii) the absence of any attempt to collect the
Obligations from any other Borrower, or any other security therefor, or the absence of any other
action to enforce the same, (iii) the waiver, consent, extension, forbearance, or granting of any
indulgence by an Agent and/or any Lender with respect to any provision of any instrument evidencing
the Obligations of any other Borrower, or any part thereof, or any other agreement executed as of
the Original Closing Date or thereafter executed by any other Borrower and delivered to an Agent
and/or any Lender, (iv) the failure by an Agent and/or any Lender to take any steps to perfect and
maintain its security interest in, or to preserve its rights to, any security or collateral for the
Obligations of any other Borrower, (v) an Agents and/or any Lenders election, in any proceeding
instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy
Code, (vi) any borrowing or grant of a security interest by any other Borrower, as
debtor-in-possession under Section 364 of the Bankruptcy Code, (vii) the disallowance of all or any
portion of an Agents and/or any Lenders claim(s) for the repayment of the Obligations of any
other Borrower under Section 502 of the
Bankruptcy Code, or (viii) any other circumstances which might constitute a legal or equitable
discharge or defense of a guarantor or of any other Borrower. With respect to any Borrowers
Obligations arising as a result of the joint and several liability of the Borrowers hereunder with
respect to New Revolving Credit Loans or other extensions of credit made to any of the other
Borrowers hereunder, such Borrower waives, until the Obligations shall have been paid in full and
this Agreement shall have been terminated, any right to enforce any right of subrogation or any
remedy which an Agent and/or any Lender had as of the Original Closing Date or may have thereafter
against any other Borrower, any endorser or any guarantor of all or any part of the Obligations,
and any benefit of, and any right to participate in, any security or collateral given to an Agent
and/or any Lender to secure payment of the Obligations or any other liability of any Borrower to an
Agent and/or any Lender. Upon any Event of Default, the Agents may proceed directly and at once,
without notice, against any Borrower to collect and recover the full amount, or any portion of the
Obligations, without first proceeding against any other Borrower or any other Person, or against
any security or collateral for the Obligations. Each Borrower consents and agrees that the Agents
shall be under no obligation to marshal any assets in favor of any Borrower or against or in
payment of any or all of the Obligations. Notwithstanding anything to the contrary in the
foregoing, none of the
foregoing provisions of this
Section 14.19
shall apply to any Person
released from its Obligations as a Borrower in accordance with
Section 14.1
.
14.20.
Contribution and Indemnification Among the Borrowers
. Each Borrower is
obligated to repay the Obligations as a joint and several obligor under this Agreement. To the
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extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of
the Obligations constituting Loans made to another Borrower hereunder or other Obligations incurred
directly and primarily by any other Borrower (an
Accommodation Payment
), then the Borrower making
such Accommodation Payment shall be entitled to contribution and indemnification from, and be
reimbursed by, each of the other Borrowers in an amount, for each of such other Borrowers, equal to
a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrowers
Allocable Amount (as defined below) and the denominator of which is the sum of the Allocable
Amounts of all of the Borrowers. As of any date of determination, the
Allocable Amount
of each
Borrower shall be equal to the maximum amount of liability for Accommodation Payments which could
be asserted against such Borrower hereunder without (a) rendering such Borrower insolvent within
the meaning of Section 101(31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer
Act (
UFTA
) or Section 2 of the Uniform Fraudulent Conveyance Act (
UFCA
), (b) leaving such
Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the
Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Borrower
unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code
or Section 4 of the UFTA, or Section 5 of the UFCA. All rights and claims of contribution,
indemnification, and reimbursement under this
Section
14.20
shall be subordinate in
right of payment to the prior payment in full of the Obligations. The provisions of this
Section
14.20
shall, to the extent expressly inconsistent with any provision in any
Credit Document, supersede such inconsistent provision.
14.21.
Agency of the Parent Borrower for Each Other Borrower
. Each of the other
Borrowers irrevocably appoints the Parent Borrower as its agent for all
purposes relevant to this Agreement, including the giving and receipt of notices and execution and
delivery of all documents, instruments, and certificates contemplated herein (including, without
limitation, execution and delivery to the Agents of Borrowing Base Certificates, Borrowing Requests
and Notices of Conversion or Continuation) and all modifications hereto. Any acknowledgment,
consent, direction, certification, or other action which might otherwise be valid or effective only
if given or taken by all or any of the Borrowers or acting singly, shall be valid and effective if
given or taken only by the Parent Borrower, whether or not any of the other Borrowers join therein,
and the Agents and the Lenders shall have no duty or obligation to make further inquiry with
respect to the authority of the Parent Borrower under this
Section 14.21
;
provided
that nothing in this
Section 14.21
shall limit the effectiveness of, or the right of the
Agents and the Lenders to rely upon, any notice (including without limitation a Borrowing Request
or Notices of Conversion or Continuation), document, instrument, certificate, acknowledgment,
consent, direction, certification or other action delivered by any Borrower pursuant to this
Agreement.
14.22.
Reinstatement
. This Agreement shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof, of any of the
Obligations is rescinded or must otherwise be restored or returned by the Administrative Agent or
any other Secured Party upon the insolvency, bankruptcy, dissolution, liquidation or reorganization
of the Parent Borrower or any Subsidiary Borrower, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, any Borrower or any
substantial part of its property, or otherwise, all as though such payments had not been made.
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14.23.
Express Waivers by Borrowers in Respect of Cross Guaranties and Cross
Collateralization
. Each Borrower agrees as follows:
(a) Each Borrower hereby waives: (i) notice of acceptance of this Agreement; (ii) notice of
the making of any Loans, the issuance of any Letter of Credit or any other financial accommodations
made or extended under the Credit Documents or the creation or existence of any Obligations; (iii)
notice of the amount of the Obligations, subject, however, to such Borrowers right to make inquiry
of the Administrative Agent to ascertain the amount of the Obligations at any reasonable time; (iv)
notice of any adverse change in the financial condition of any other Borrower or of any other fact
that might increase such Borrowers risk with respect to such other Borrower under the Credit
Documents; (v) notice of presentment for payment, demand, protest, and notice thereof as to any
promissory notes or other instruments among the Credit Documents; and (vii) all other notices
(except if such notice is specifically required to be given to such Borrower hereunder or under any
of the other Credit Documents to which such Borrower is a party) and demands to which such Borrower
might otherwise be entitled;
(b) Each Borrower hereby waives the right by statute or otherwise to require an Agent or any
Lender to institute suit against any other Borrower or to exhaust any rights and remedies which an
Agent or any Lender has or may have against any other Borrower. Each
Borrower further waives any defense arising by reason of any disability or other defense of
any other Borrower (other than the defense of payment in full) or by reason of the cessation from
any cause whatsoever of the liability of any such Borrower in respect thereof.
(c) Each Borrower hereby waives and agrees not to assert against any Agent, any Lender, or any
Letter of Credit Issuer: (i) any defense (legal or equitable) other than a defense of payment,
set-off, counterclaim, or claim which such Borrower may have had as of the Original Closing Date or
may have at any time thereafter against any other Borrower or any other party liable under the Loan
Documents; (ii) any defense, set-off, counterclaim, or claim of any kind or nature available to any
other Borrower (other than a defense of payment) against any Agent, any Lender, or any Letter of
Credit Issuer, arising directly or indirectly from the present or future lack of perfection,
sufficiency, validity, or enforceability of the Obligations or any security therefor; (iii) any
right or defense arising by reason of any claim or defense based upon an election of remedies by
any Agent, any Lender, or any Letter of Credit Issuer under any applicable law; (iv) the benefit of
any statute of limitations affecting any other Borrowers liability hereunder;
(d) Each Borrower consents and agrees that, without notice to or by such Borrower and without
affecting or impairing the obligations of such Borrower hereunder, the Agents may (subject to any
requirement for consent of any of the Lenders to the extent required by this Agreement), by action
or inaction: (i) compromise, settle, extend the duration or the time for the payment of, or
discharge the performance of, or may refuse to or otherwise not enforce the Letter of Credit Issuer
documents; (ii) release all or any one or more parties to any one or more of the Letter of Credit
Issuer documents or grant other indulgences to any other Borrower in respect thereof; (iii) amend
or modify in any manner and at any time (or from time to time) any of the Letter of Credit Issuer
documents; or (iv) release or substitute any Person liable for
-164-
payment of the Obligations, or
enforce, exchange, release, or waive any security for the Obligations;
(e) Each Borrower represents and warrants to the Agents and the Lenders that such Borrower is
currently informed of the financial condition of all other Borrowers and all other circumstances
which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the
Obligations. Each Borrower further represents and warrants that such Borrower has read and
understands the terms and conditions of the Credit Documents. Each Borrower agrees that neither
the Agents, any Lender, nor any Letter of Credit Issuer has any responsibility to inform any
Borrower of the financial condition of any other Borrower or of any other circumstances which bear
upon the risk of nonpayment or nonperformance of the Obligations.
-165-
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Agreement to
be duly executed and delivered as of the date first above written.
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HCA INC.
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By:
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Name:
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Title:
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[ ABL
Credit Agreement Signature Page
]
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The SUBSIDIARY BORROWERS listed on Schedule 1 to the
Original Credit Agreement
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By:
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Name:
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Title:
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[ ABL
Credit Agreement Signature Page
]
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BANK OF AMERICA, N.A., as Administrative Agent, as
Collateral Agent, as Swingline Lender, as Letter
of Credit Issuer and as a Lender
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By:
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Name:
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Title:
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[
ABL
Credit Agreement Signature Page
]
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JPMORGAN CHASE BANK, N.A., as
Co-Syndication Agent and as a Lender
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By:
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Name:
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Title:
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[ ABL
Credit Agreement Signature Page
]
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CITIGROUP GLOBAL MARKETS INC., as
Joint Lead Arranger, Joint Bookrunner and
Co-Syndication Agent
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By:
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Name:
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Title:
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[ ABL
Credit Agreement Signature Page
]
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BANC OF AMERICA SECURITIES, LLC, as
Joint Lead
Arranger and Bookrunner
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By:
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Name:
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Title:
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[ ABL
Credit Agreement Signature Page
]
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J.P. MORGAN SECURITIES INC., as Joint Lead Arranger
and Bookrunner
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By:
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Name:
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Title:
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[ ABL
Credit Agreement Signature Page
]
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CITIGROUP GLOBAL MARKETS INC., as Joint
Lead Arranger
and Bookrunner
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By:
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Name:
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Title:
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[ ABL
Credit Agreement Signature Page
]
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MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
as Joint Lead Arranger and Bookrunner
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By:
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Name:
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Title:
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[ ABL
Credit Agreement Signature Page
]