Exhibit 1.1
HCA INC.
$500,000,000
8% Senior Notes due 2018
UNDERWRITING AGREEMENT
September 27, 2011
Barclays Capital Inc.
Deutsche Bank Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
RBC Capital Markets, LLC
Wells Fargo Securities, LLC
As Representatives of the Underwriters
c/o Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
Ladies and Gentlemen:
HCA Inc., a Delaware corporation (the
Company
), proposes to issue and sell to the
several parties named in
Schedule I
hereto (each an
Underwriter
and together, the
Underwriters
), for whom you (the
Representatives
) are acting as representatives
of, the respective amounts set forth in such
Schedule I
of $500,000,000 aggregate principal
amount of its 8% Senior Notes due 2018 (the
Securities
).
The Securities will be issued pursuant to a base indenture, dated August 1, 2011 (the
Indenture
), among the Company, the Parent Guarantor (as defined below), Law Debenture
Trust Company of New York, as trustee (in such capacity, the
Trustee
) and Deutsche Bank
Trust Company Americas, as registrar, paying agent and transfer agent (the
Registrar
), as
supplemented by the third supplemental indenture, to be dated on or about October 3, 2011, among
the Company, the Parent Guarantor, the Trustee and the Registrar (as supplemented, amended or
modified from time to time, the
Senior Indenture
).
The Securities will be unconditionally guaranteed on a senior unsecured basis (the
Guarantee
) by HCA Holdings, Inc., a Delaware corporation and the Companys parent (the
Parent Guarantor
).
In connection with the offer and sale of the Securities, the Company and the Parent Guarantor
have prepared and filed with the Securities and Exchange Commission (the
Commission
) a
registration statement on Form S-3 (File No. 333-175791), which contains a
base prospectus relating to the debt securities to be issued from time to time by the Company
(the
Base Prospectus
). The Company has also filed or proposed to file, with the
Commission pursuant to Rule 424 under the Act a prospectus supplement specifically relating to the
Securities (the
Prospectus Supplement
). Such registration statement, as amended at the
time it became effective under the Act, including any required information deemed to be a part
thereof at the time of effectiveness pursuant to Rule 430A, 430B or 430C under the Act (the
Rule 430 Information
), is called the
Registration Statement
. The term
Prospectus
shall mean the Base Prospectus as supplemented by the Prospectus Supplement
specifically relating to the Securities in the form first used (or made available upon request of
purchasers pursuant to Rule 173 under the Act) in connection with the confirmation and sales of the
Securities, and the term
Preliminary Prospectus
means the preliminary prospectus
supplement specifically relating to the Securities together with the Base Prospectus. Any
reference herein to the Registration Statement, the Preliminary Prospectus or the Prospectus shall
be deemed to refer to and include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 under the Act as of the effective date of the Registration Statement or the date of
such Preliminary Prospectus or Prospectus as the case may be; any reference to any amendment or
supplement to the Registration Statement, the Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents filed after the date of such Registration Statement,
any Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder (collectively, the
Exchange Act
), and incorporated by reference in such Registration Statement, any
Preliminary Prospectus or Prospectus, as the case may be. The term
Disclosure Package
shall mean (i) a Preliminary Prospectus dated September 27, 2011 and (ii) any free writing
prospectus as defined in Rule 405 of the Act identified in
Annex A
hereto, which shall
include the term sheet prepared pursuant to Section 5 hereto (the
Pricing Term Sheet
),
which were available to purchasers of the Securities at or prior to the time when sales of the
Securities were first made (the
Applicable Time
). For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system
(
EDGAR
) or its Interactive Data Electronic Applications system (
IDEA
).
For the purposes of this Agreement, the term
Transaction
means, collectively, the
offering of the Securities and the use of proceeds therefrom described herein and in the Disclosure
Package and the Prospectus.
1.
Representations and Warranties
. As of the date hereof and at the Closing Date, the
Company and the Parent Guarantor, jointly and severally, represent and warrant to each Underwriter
as follows (unless the context otherwise indicates, references in this Section 1 to the
Prospectus
are to (x) the Disclosure Package in the case of representations and
warranties made as of the date hereof and (y) both the Disclosure Package and the Prospectus in the
case of representations and warranties made as of the Closing Date):
(a) No order preventing or suspending the use of any Preliminary Prospectus has been
issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof,
complied in all material respects with the Act and did not contain any untrue
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statement of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided
that the Company
makes no representation or warranty with respect to any statements or omissions made in
reliance upon and in conformity with information relating to any Underwriter furnished to
the Company in writing by such Underwriter through the Representatives, expressly for use in
any Preliminary Prospectus.
(b) At the Applicable Time, the Disclosure Package does not and, on the Closing Date,
will not, contain any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading;
provided
,
however
, that the Company and the
Parent Guarantor make no representation or warranty as to the information contained in or
omitted from the Disclosure Package in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of the Underwriters through the
Representatives specifically for inclusion therein.
(c) The Company (including its agents and representatives, other than the Underwriters
in their capacity as such) has not prepared, made, used, authorized, approved or referred to
and will not prepare, make, use, authorize, approve or refer to any written communication
(as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of
an offer to buy the Securities (each such communication by the Company or its agents and
representatives (other than a communication referred to in clauses (i) (ii) and (iii) below)
an
Issuer Free Writing Prospectus
) other than (i) any document not constituting a
prospectus pursuant to Section 2(a)(10)(a) of the Act or Rule 134 under the Act, (ii) the
Preliminary Prospectus, (iii) the Prospectus, (iv) the documents identified in
Annex
A
(including the Pricing Term Sheet) and (v) any electronic road show or other written
communications, in each case approved in writing in advance by the Representatives. Each
such Issuer Free Writing Prospectus complied in all material respects with the Act, has been
or will be (within the time period specified in Rule 433) filed in accordance with the Act
(to the extent required thereby) and, when taken together with the Preliminary Prospectus
filed prior to the first use of such Issuer Free Writing Prospectus, did not, and at the
Closing Date will not, contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided
that the Company
and the Parent Guarantor make no representation or warranty with respect to any statements
or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in
conformity with information relating to any Underwriter furnished to the Company in writing
by such Underwriter through the Representatives expressly for use in any Issuer Free Writing
Prospectus.
(d) The Registration Statement is an automatic shelf registration statement as
defined under Rule 405 of the Act that has been filed with the Commission not earlier than
three years prior to the date hereof; and no notice of objection of the Commission to the
use of such Registration Statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Act has been received by the Company. No order suspending
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the effectiveness of the Registration Statement has been issued by the Commission and
no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or
related to the offering has been initiated or threatened by the Commission; as of the
effective date of the Registration Statement, the Registration Statement complied in all
material respects with the Act and the Trust Indenture Act, and did not contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading; and as of the date of
the Prospectus and any amendment or supplement thereto and as of the Closing Date, the
Prospectus will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided
that the Company and the Parent Guarantor make no representation or
warranty with respect to (i) that part of the Registration Statement that constitutes the
Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust
Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use in the Registration Statement and
the Prospectus and any amendment or supplement thereto.
(e) None of the Parent Guarantor, the Company or any of the Significant Subsidiaries
(as defined below) is or, after giving effect to the offering and sale of the Securities and
the application of the proceeds thereof as described in each of the Registration Statement,
the Disclosure Package and the Prospectus, will be an investment company as defined in the
Investment Company Act, without taking account of any exemption arising out of the number of
holders of the Companys securities.
(f) None of the Parent Guarantor, the Company or any of its subsidiaries or any of its
Affiliates has taken or will take, directly or indirectly, any action designed to or that
has constituted or that would reasonably be expected to cause or result, under the Exchange
Act or otherwise, in stabilization or manipulation of the price of any security of the
Company or any of its subsidiaries to facilitate the sale or resale of the Securities.
(g) Each of Parent Guarantor, the Company and its subsidiaries has been duly organized
and is validly existing as an entity in good standing under the laws of the jurisdiction in
which it is chartered or organized with full corporate or other organizational power and
authority to own or lease, as the case may be, and to operate its properties and conduct its
business as described in the Registration Statement, the Disclosure Package and the
Prospectus, and is duly qualified to do business as a foreign corporation or other entity
and is in good standing under the laws of each jurisdiction where the ownership or leasing
of its properties or the conduct of its business requires such qualification except where
the failure to be so organized or qualified, have such power or authority or be in good
standing would not reasonably be expected to have a material adverse effect on the condition
(financial or otherwise), business or results of operations of the Company and its
subsidiaries, taken as a whole and after giving effect to the Transaction (a
Material
Adverse Effect
).
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(h) The Company (i) has no subsidiaries other than those subsidiaries listed on
Annex C-1
and (ii) does not own or control, directly or indirectly, any significant
subsidiary, as defined in Rule 1-02(w) of Regulation S-X under the Act, other than those
subsidiaries listed on
Annex C-2
(each, a
Significant Subsidiary
).
(i) As of June 30, 2011, on an as adjusted basis, after giving effect to the
consummation of the Transaction and otherwise as adjusted as described in the Disclosure
Package and the Prospectus, the Parent Guarantor, the Company and its subsidiaries would
have had the issued and outstanding capitalization as set forth in each of the Registration
Statement, the Disclosure Package and the Prospectus under the heading Capitalization and
all the outstanding membership interests or shares of capital stock, as applicable, of the
Parent Guarantor and the Company have been duly authorized and validly issued, are fully
paid and nonassessable, if applicable, and were not issued in violation of any preemptive or
similar rights and, except as otherwise set forth in the Registration Statement, the
Disclosure Package and the Prospectus, as of the Closing Date, all outstanding shares of
capital stock or membership interests of the subsidiaries held by the Parent Guarantor or
the Company are owned either directly or indirectly free and clear of any security interest,
claim, lien or encumbrance (other than liens, encumbrances and restrictions imposed in
connection with the Credit Facilities, under the other secured indebtedness set forth in the
Registration Statement, the Disclosure Package and the Prospectus under the heading
Capitalization, or permitted under the Credit Facilities and the Senior Indenture and by
the Act and the state securities or blue sky laws of certain jurisdictions). Except as
disclosed in the Registration Statement, the Disclosure Package and the Prospectus, there
will be, on the Closing Date and after giving effect to the consummation of the Transaction,
no (i) outstanding options, warrants or other rights to purchase, (ii) agreements or other
obligations to issue or (iii) other rights to convert any obligation into, or exchange any
securities for, shares of capital stock of or ownership interests in the Parent Guarantor,
the Company or any of its subsidiaries.
(j) (i) This Agreement has been duly authorized, executed and delivered by the Company
and the Parent Guarantor; (ii) the Senior Indenture, on the Closing Date, will have been
duly authorized, executed and delivered by the Company and the Parent Guarantor and,
assuming due authorization, execution and delivery thereof by the Trustee and the Registrar,
will constitute a legally valid and binding instrument enforceable against the Company and
the Parent Guarantor in accordance with its terms (in each case subject, as to the
enforcement of remedies, to the effects of (x) bankruptcy, reorganization, insolvency,
fraudulent conveyance, moratorium or other laws affecting creditors rights generally from
time to time in effect, (y) general principles of equity (whether considered in a proceeding
in equity or at law) and (z) an implied covenant of good faith and fair dealing
(collectively, the
Enforceability Limitations
)); (iii) the Securities, on the
Closing Date, will have been duly authorized by the Company and, when executed and
authenticated by the Trustee in accordance with the provisions of the Senior Indenture and
delivered to and paid for by the Underwriters, will have been duly executed and delivered by
the Company and will constitute the legal, valid and binding obligations of the Company,
enforceable against the Company and entitled to the benefits of the Senior Indenture
(subject to the Enforceability Limitations); and (iv) the Guarantee, on the Closing
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Date, will constitute the legal, valid and binding obligation of the Parent Guarantor,
enforceable against the Parent Guarantor in accordance with its terms and entitled to the
benefits of the Senior Indenture (subject to the Enforceability Limitations).
(k) The term
Transaction Documents
refers to this Agreement, the Securities
and the Senior Indenture (including the Guarantee). Each of the Transaction Documents
conforms in all material respects to the description thereof in the Registration Statement,
the Disclosure Package and the Prospectus, to the extent described therein.
(l) No consent, approval, authorization or filing with or order of any United States
(or any political subdivision thereof) court or governmental agency or body, or to the
knowledge of the Company, any non-United States court or governmental agency or body, is
required in connection with the execution, delivery and performance of the Transaction
Documents (including, without limitation, the issuance of the Securities), except such (i)
as may be required under the blue sky laws of any jurisdiction in which the Securities are
offered and sold in connection with the transactions contemplated hereby or (ii) as shall
have been obtained or made prior to the Closing Date.
(m) None of the execution and delivery of the Transaction Documents, the issuance and
sale of the Securities, the issuance of the Guarantee or the consummation of any other of
the transactions herein or therein contemplated, or the fulfillment of the terms hereof or
thereof will conflict with or result in a breach or violation of or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or the Parent Guarantor
pursuant to (i) the terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition, covenant or instrument
to which the Company or the Parent Guarantor is a party or bound or to which its or their
property is subject; or (ii) any statute, law, rule, regulation, judgment, order or decree
of any court, regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or the Parent Guarantor or any of their
properties, other than in the cases of clauses (i) and (ii), such breaches, violations,
liens, charges, or encumbrances that would not reasonably be expected to, individually or in
the aggregate, have a Material Adverse Effect; or result in the violation of the charter,
bylaws or any equivalent governance document of the Company or the Parent Guarantor.
(n) The consolidated financial statements of the Parent Guarantor and its consolidated
subsidiaries included or incorporated by reference in the Registration Statement, the
Disclosure Package and the Prospectus comply in all material respects with the applicable
requirements of the Act and the Exchange Act, as applicable, and present fairly in all
material respects the consolidated financial position, results of operations and cash flows
of the Parent Guarantor and its consolidated subsidiaries as of the dates and for the
periods indicated and have been prepared in conformity with United States generally accepted
accounting principles applied on a consistent basis throughout the periods involved (except
as otherwise noted therein); and the selected financial data set forth under the caption
SummarySummary Financial Data in the Registration Statement, the Disclosure Package and
the Prospectus and in Updated Item 6, Selected Financial Data
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to the Companys annual report on Form 10-K for the year ended December 31, 2010,
filed with the Parent Guarantors Current Report on Form 8-K filed on July 26, 2011
incorporated by reference therein fairly present in all material respects, on the basis
stated therein, the information included therein.
(o) Except as set forth in or contemplated in the Registration Statement, the
Disclosure Package and the Prospectus (in each case, exclusive of any amendment or
supplement thereto), no action, suit, proceeding, investigation or audit by or before any
court or governmental agency, authority or body or any arbitrator involving the Parent
Guarantor, the Company or any of its subsidiaries or any of their respective property is
pending or, to the knowledge of the Company, threatened or contemplated that (i) would
reasonably be expected to have a material adverse effect on the performance of the
Transaction Documents or the consummation of any of the transactions contemplated thereby or
(ii) would reasonably be expected to have a Material Adverse Effect.
(p) Each of the Parent Guarantor, the Company and its subsidiaries owns or leases all
such real properties as are necessary to the conduct of their respective operations as
currently conducted, except as would not reasonably be expected to have a Material Adverse
Effect.
(q) Except as set forth in or contemplated in each of the Registration Statement, the
Disclosure Package and the Prospectus (in each case, exclusive of any amendment or
supplement thereto), none of the Parent Guarantor, the Company or any of its subsidiaries is
in violation or default of (i) any provision of its charter, bylaws or any equivalent
governance document; (ii) the terms of any indenture, contract, lease, mortgage, deed of
trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is subject; or (iii) any
statute, law, rule, regulation, judgment, order or decree applicable to the Parent
Guarantor, the Company or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having jurisdiction
over the Parent Guarantor, the Company, any of the Companys subsidiaries or any of their
respective properties, as applicable, other than in the cases of clauses (i) (if such entity
is not the Parent Guarantor, the Company or a Significant Subsidiary), (ii) and (iii), such
violations and defaults that would not reasonably be expected to have a Material Adverse
Effect.
(r) Ernst & Young LLP, who have audited the consolidated financial statements of the
Parent Guarantor and its subsidiaries as of December 31, 2010 and 2009 and for each of the
three years in the period ended December 31, 2010 incorporated by reference in each of the
Registration Statement, the Disclosure Package and the Prospectus, are independent
registered public accountants with respect to the Parent Guarantor and its subsidiaries
within the meaning of the Act and the rules of the Public Company Accounting Oversight
Board.
(s) Except as set forth in or contemplated in each of the Registration Statement, the
Disclosure Package and the Prospectus (in each case, exclusive of any amendment
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or supplement thereto), the Parent Guarantor, the Company and its subsidiaries
have filed all non-U.S., U.S. federal, state and local tax returns that are required to be
filed or have requested extensions thereof except in any case in which the failure so to
file would not reasonably be expected to have a Material Adverse Effect and have paid all
taxes required to be paid by them and any other tax assessment, fine or penalty levied
against them, to the extent that any of the foregoing is due and payable, except for any
such tax assessment, fine or penalty that is currently being contested in good faith or as
would not reasonably be expected to have a Material Adverse Effect.
(t) Immediately after giving effect to the Transaction, no subsidiary of the Company
will be prohibited, directly or indirectly, from paying any dividends to the Parent
Guarantor or the Company or any subsidiary of the Company (except as may be limited by
applicable state or foreign corporation, limited liability company, limited partnership,
partnership, insurance or other applicable regulatory law), from making any other
distribution on such subsidiarys capital stock or membership interests (except as may be
limited by applicable state or foreign corporation, limited liability company, limited
partnership, partnership, insurance or other applicable regulatory law), from repaying to
the Parent Guarantor or the Company or any other subsidiary of the Company any loans or
advances to such subsidiary from the Parent Guarantor or the Company or any other subsidiary
of the Company or from transferring any of such subsidiarys property or assets to the
Parent Guarantor or the Company or any other subsidiary of the Company, except as described
in each of the Registration Statement, the Disclosure Package and the Prospectus (in each
case, exclusive of any amendment or supplement thereto) or contemplated pursuant to (i) the
Companys senior secured credit facilities, (ii) the indentures governing the Companys
existing secured notes, in each case as defined in the Disclosure Package and the Prospectus
and (iii) the Parent Guarantors indenture governing its 7
3
/
4
% Senior Notes due 2021.
(u) Except as set forth in or contemplated in each of the Registration Statement, the
Disclosure Package and the Prospectus (in each case, exclusive of any amendment or
supplement thereto), (i) the Parent Guarantor, the Company and its subsidiaries possess all
licenses, certificates, permits and other authorizations issued by the appropriate U.S.
federal, state or non-U.S. regulatory authorities necessary to conduct their respective
businesses, except where the failure to possess such licenses, certificates, permits and
other authorizations would not reasonably be expected to have a Material Adverse Effect, and
(ii) none of the Parent Guarantor, the Company or any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of any such certificate,
authorization or permit that, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would reasonably be expected to have a Material
Adverse Effect.
(v) The Parent Guarantor and its subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with managements general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset accountability;
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(iii) access to assets is permitted only in accordance with managements general or
specific authorization; and (iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken with respect to any
differences.
(w) Except as set forth in or contemplated in each of the Registration Statement, the
Disclosure Package and the Prospectus (in each case, exclusive of any amendment or
supplement thereto), the Parent Guarantor, the Company and its subsidiaries (i) are in
compliance with any and all applicable non-U.S., U.S. federal, state and local laws and
regulations relating to the protection of human health and safety (as such is affected by
hazardous or toxic substances or wastes (including, without limitation, medical waste),
pollutants or contaminants), the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (
Environmental Laws
); (ii) have received and are in
compliance with all permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses; (iii) have not received notice of
any actual or potential liability under any Environmental Law; and (iv) have not been named
as a potentially responsible party under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, except where such non-compliance with
Environmental Laws, failure to receive or comply with required permits, licenses or other
approvals, liability or status as a potentially responsible party would not reasonably be
expected to, individually or in the aggregate, have a Material Adverse Effect.
(x) No forward-looking statement (within the meaning of Section 27A of the Act and
Section 21E of the Exchange Act) or presentation of market-related or statistical data
contained in each of the Registration Statement, the Disclosure Package and the Prospectus
has been made or reaffirmed without a reasonable basis or has been disclosed other than in
good faith.
(y) Except as set forth in or contemplated in each of the Registration Statement, the
Disclosure Package and the Prospectus (in each case, exclusive of any amendment or
supplement thereto), (i) the Parent Guarantor, the Company and its subsidiaries possess all
required permits, licenses, provider numbers, certificates, approvals (including, without
limitation, certificate of need approvals), consents, orders, certifications (including,
without limitation, certification under the Medicare, Medicaid, TRICARE programs and other
governmental healthcare programs in which they participate), accreditations (including,
without limitation, accreditation by The Joint Commission) and other authorizations
(collectively,
Governmental Licenses
) issued by, and have made all required
declarations and filings with, the appropriate federal, state, local or foreign regulatory
agencies or bodies and accreditation organizations necessary to conduct the business now
operated by them (including, without limitation, Government Licenses as are required (a)
under such federal and state healthcare laws as are applicable to the Parent Guarantor, the
Company and its subsidiaries and (b) with respect to those facilities operated by the Parent
Guarantor, the Company or any of the Companys subsidiaries that participate in the
Medicare, Medicaid and/or TRICARE programs, to receive reimbursement thereunder), except
where the failure to possess such Governmental Licenses or to make
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such declarations and filings would not reasonably be expected to result in a Material
Adverse Effect; (ii) the Parent Guarantor, the Company and its subsidiaries are in
compliance with the terms and conditions of all such Governmental Licenses, except where the
failure so to comply would not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect; (iii) all of the Governmental Licenses are valid and in
full force and effect, except where the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect would not reasonably be
expected to result in a Material Adverse Effect and (iv) none of the Parent Guarantor, the
Company or any of its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be
expected to result in a Material Adverse Effect. All of the acute care hospitals,
psychiatric hospitals and inpatient rehabilitation facilities operated by the Parent
Guarantor, the Company or any of its subsidiaries are providers (as defined in the Social
Security Act and the regulations promulgated thereunder (collectively,
SSA
)), and
all ambulatory surgery centers, diagnostic and imaging centers, radiation and oncology
centers and other healthcare operations operated by the Parent Guarantor, the Company or any
of its subsidiaries are suppliers, as defined in the SSA, and all such providers of
services and suppliers are eligible to participate in the Medicare and (to the extent
disclosed in the Registration Statement, the Disclosure Package and the Prospectus) Medicaid
and TRICARE programs. For purposes of this Agreement,
Medicaid
means any
state-operated means-tested entitlement program under Title XIX of the SSA that provides
federal grants to states for medical assistance based on specific eligibility criteria,
Medicare
means that government-sponsored entitlement program under Title XVIII of
the SSA that provides for a health insurance system for eligible elderly and disabled
persons including eligible persons with end-stage renal disease and
TRICARE
means
the healthcare program established by the U.S. Department of Defense under Title 10,
Subtitle A, Part II, Chapter 55 (10 U.S.C. § 1071
et
seq
.) for members of
the military, military retirees and their dependants, and includes the competitive selection
of contractors to financially underwrite the delivery of healthcare services under the
Civilian Health and Medical Program of the Uniformed Services.
(z) The accounts receivable of the Parent Guarantor, the Company and its subsidiaries
have been adjusted to reflect material changes in the reimbursement policies of third party
payors such as Medicare, Medicaid, private insurance companies, health maintenance
organizations, preferred provider organizations, managed care systems and other third party
payors (including, without limitation, Blue Cross plans). The accounts receivable, after
giving effect to the allowance for doubtful accounts, relating to such third party payors do
not materially exceed amounts the Parent Guarantor, the Company and its subsidiaries are
entitled to receive, except as set forth in or contemplated in the Registration Statement,
the Disclosure Package or the Prospectus (in each case, exclusive of any amendment or
supplement thereto).
(aa) Except as set forth in or contemplated in each of the Registration Statement, the
Disclosure Package and the Prospectus (in each case, exclusive of any amendment or
supplement thereto), none of the Parent Guarantor, the Company, or, to the
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knowledge of the Company, any officers, directors, stockholders, members, employees or
other agents of the Parent Guarantor, the Company or any of its subsidiaries or any of the
hospitals operated by them, has engaged in any activities which are prohibited under federal
Medicare and Medicaid statutes, including, but not limited to, 42 U.S.C. Section 1320a-7
(Program Exclusion), Section 1320a-7a (Civil Monetary Penalties), 1320a-7b (the
Anti-kickback Statute), Sections 1395nn and 1396b (the Stark law, prohibiting certain
self-referrals), the federal TRICARE statute, 10 U.S.C. Section 1071
et
seq
., the Federal Civil False Claims Act, 31 U.S.C. Sections 3729-32, Federal
Criminal False Claims Act, 18 U.S.C. Section 287, False Statements Relating to Health Care
Matters, 18 U.S.C. Section 1035, Health Care Fraud, 18 U.S.C. Section 1347, the privacy,
security and transactions provisions of the Health Insurance Portability and Accountability
Act of 1996 (Public Law 104-191), or the federal Food, Drug & Cosmetics Act, 21 U.S.C.
Section 360aaa, or any regulations promulgated pursuant to such statutes, or related state
or local statutes or regulations or any rules of professional conduct, including but not
limited to the following: (i) knowingly and willfully making or causing to be made a false
statement or representation of a material fact in any applications for any benefit or
payment under the Medicare or Medicaid program or other federal or state healthcare program
or from any third party (where applicable federal or state law prohibits such payments to
third parties); (ii) knowingly and willfully making or causing to be made any false
statement or representation of a material fact for use in determining rights to any benefit
or payment under the Medicare or Medicaid program or other federal or state healthcare
program or from any third party (where applicable federal or state law prohibits such
payments to third parties); (iii) failing to disclose knowledge by a claimant of the
occurrence of any event affecting the initial or continued right to any benefit or payment
under the Medicare or Medicaid program or other federal or state healthcare program or from
any third party (where applicable federal or state law prohibits such payments to third
parties) on its own behalf or on behalf of another, with intent to secure such benefit or
payment fraudulently; (iv) knowingly and willfully offering, paying, soliciting or receiving
any remuneration (including any kickback, bribe or rebate), directly or indirectly, overtly
or covertly, in cash or in kind (a) in return for referring an individual to a person for
the furnishing or arranging for the furnishing of any other item or service for which
payment may be made in whole or in part by Medicare or Medicaid or other federal or state
healthcare program or any third party (where applicable federal or state law prohibits such
payments to third parties), or (b) in return for purchasing, leasing or ordering or
arranging for or recommending the purchasing, leasing or ordering of any good, facility,
service or item for which payment may be made in whole or in part by Medicare or Medicaid or
other federal or state healthcare program or any third party (where applicable federal or
state law prohibits such payments to third parties); (v) referring an individual to a person
with which it has ownership or certain other financial arrangements or billing Medicare or
Medicaid or any beneficiary of such program or other person for any designated health
service or other item or service (where applicable federal law prohibits such referrals);
(vi) knowingly and willfully presenting or causing to be presented a claim for a medical or
other item or service that was not provided as claimed, or is for a medical or other item or
service and the person knew or should have known the claim was false or fraudulent; (vii)
violating any corporate integrity agreement or other agreement with any government agency
(including, without limitation, the United States Department of Justice
-11-
(
DOJ
) and the Office of Inspector General of the United States
Department of Health and Human Services (
OIG
); and (viii) violating any
enforcement initiative instituted by any governmental agency (including, without limitation,
the OIG and the DOJ), except, in each case set forth in this paragraph, for any such
activities which would not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect.
(bb) The Company is not an ineligible issuer, and the Parent Guarantor is a well-known
seasoned issuer, in each case as defined in Rule 405 of the Act, in each case, at the times
specified in the Act in connection with the offering of the Securities.
Any certificate signed by any officer of the Parent Guarantor, the Company or its subsidiaries
and delivered to the Representatives or counsel for the Underwriters in connection with the
offering of the Securities and, when issued, the Guarantee, shall be deemed a joint and several
representation and warranty by each of the Parent Guarantor, the Company and its subsidiaries, as
to matters covered thereby, to each Underwriter.
2.
Purchase and Sale
. Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to issue and sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company,
at a purchase price of 98.875% of the gross proceeds to the Company (i.e. less a discount of
$5,625,000), plus accrued interest, if any, from October 3, 2011 to the Closing Date, the principal
amount of the Securities set forth opposite such Underwriters name in
Schedule I
hereto.
3.
Delivery and Payment
. Delivery of and payment for the Securities shall be made at
the offices of Simpson Thacher & Bartlett LLP, 425 Lexington Avenue, New York, New York 10017, New
York City time on October 3, 2011 or at such time on such later date not more than three Business
Days after the foregoing date as the Representatives shall designate, which date and time may be
postponed by agreement between the Representatives and the Company or as provided in Section 9
hereof (such date and time of delivery and payment for the Securities being herein called the
Closing Date
). Delivery of the Securities shall be made to the Representatives for the
respective accounts of the several Underwriters against payment by the several Underwriters through
the Representatives of the purchase price thereof to or upon the order of the Company by wire
transfer payable in same-day funds to the account specified by the Company in writing to the
Representatives. Delivery of the Securities shall be made through the facilities of The Depository
Trust Company (
DTC
) unless the Representatives shall otherwise instruct.
4.
Offering by Underwriters
. Each Underwriter acknowledges that:
(a) it has not used and will not use, authorize use of, refer to, or participate in the
planning for use of, any free writing prospectus as defined under Rule 405 of the Act
(which term includes use of any written information furnished to the Commission by the
Company and not incorporated by reference into the Registration Statement and any press
release issued by the Company), other than (i) a free writing prospectus that, solely
-12-
as a result of use by such Underwriter, would not trigger an obligation to file such
free writing prospectus with the Commission pursuant to Rule 433 under the Act, (ii) any
Issuer Free Writing Prospectus listed in
Annex B
or prepared pursuant to Section
1(c) above or Section 5(d) below (including any electronic road show), or (iii) any free
writing prospectus prepared by such Underwriter and approved by the Company in advance in
writing (each such free writing prospectus referred to in clauses (i) or (iii), an
Underwriter Free Writing Prospectus
). Notwithstanding the foregoing, the
Underwriters may use a Pricing Term Sheet substantially in the form of
Annex A
hereto; and
(b) it is not subject to any proceeding under Section 8A of the Act with respect to the
offering (and will promptly notify the Company if any such proceeding against it is
initiated during the Prospectus Delivery Period (as defined below)).
5.
Agreements
. The Company and the Parent Guarantor jointly and severally agree, in
each case with each Underwriter as follows:
(a) The Company will file the final Prospectus with the Commission within the time
periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Act, will file any
Issuer Free Writing Prospectus (including the Pricing Term Sheet in the form of
Annex
A
hereto) to the extent required by Rule 433 under the Act; and will file all reports
and any definitive proxy or information statements required to be filed by the Company with
the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent
to the date of the Prospectus and for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities; and the Company will furnish copies
of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously
delivered, electronically or otherwise) to the Underwriters in New York City on the second
business day succeeding the date of this Agreement in such quantities as the Representatives
may reasonably request. The Company will pay the registration fees for this offering within
the time period required by Rule 456(b)(1)(i) under the Act (without giving effect to the
proviso therein) and in any event prior to the Closing Date.
(b) The Company has (i) furnished or will deliver to the Representatives and counsel
for the Underwriters, without charge, signed copies of the Registration Statement as
originally filed and each amendment thereto (including exhibits filed therewith) and signed
copies of all consents and certificates of experts, and will also deliver to the
Representatives, without charge, a conformed copy of the Registration Statement as
originally filed and each amendment thereto (without exhibits) for each of the Underwriters.
The copies of the Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. The
Company has delivered to each Underwriter, without charge, as many copies of each
preliminary prospectus as such Underwriter reasonably requested, and the Company hereby
consents to the use of such copies for purposes permitted by the Act and (ii) Company will
furnish to each Underwriter, without charge, during the period when a prospectus relating to
the Securities is (or, but for the exception afforded by Rule 172, would be)
-13-
required to be delivered under the Act (such period, the
Prospectus Delivery
Period
), such number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or supplements
thereto furnished to the Underwriters will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted
by Regulation S-T.
(c) Before making, preparing, using, authorizing, approving, referring to or filing any
Issuer Free Writing Prospectus, and before filing any amendment or supplement to the
Registration Statement or the Prospectus, the Company will furnish to Barclays Capital Inc.
(
Barclays
) and counsel for the Underwriters a copy of the proposed Issuer Free
Writing Prospectus, amendment or supplement for review and will not make, prepare, use,
authorize, approve, refer to or file any such Issuer Free Writing Prospectus required to be
filed or file any such proposed amendment or supplement to which Barclays reasonably
objects.
(d) The Company will advise the Representatives promptly, and confirm such advice in
writing, (i) when any amendment to the Registration Statement has been filed; (ii) when any
supplement to the Prospectus or any amendment to the Prospectus or any Issuer Free Writing
Prospectus has been filed; (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or the receipt of
any comments from the Commission relating to the Registration Statement or any other request
by the Commission for any additional information; (iv) of the issuance by the Commission of
any order suspending the effectiveness of the Registration Statement or preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or the initiation or
threatening of any proceeding for that purpose or pursuant to Section 8A of the Act; (v) of
the occurrence of any event within the Prospectus Delivery Period as a result of which the
Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances existing when the Prospectus, the Disclosure
Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not
misleading; (vi) of the receipt by the Company of any notice of objection of the Commission
to the use of the Registration Statement or any post-effective amendment thereto pursuant to
Rule 401(g)(2) under the Act; and (vii) of the receipt by the Company of any notice with
respect to any suspension of the qualification of the Securities for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose; and the
Company will use every reasonable effort to prevent the issuance of any such order
suspending the effectiveness of the Registration Statement, preventing or suspending the use
of any Preliminary Prospectus or the Prospectus or suspending any such qualification of the
Securities and, if any such order is issued, will obtain as soon as possible the withdrawal
thereof.
(e) If at any time prior to the Closing Date (i) any event shall occur or condition
shall exist as a result of which, in the opinion of counsel for the Underwriters or the
Company, the Disclosure Package as then amended or supplemented would include any
-14-
untrue statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances, not misleading or
(ii) it is necessary to amend or supplement the Disclosure Package to comply with law, the
Company will promptly notify Barclays on behalf of the Representatives thereof and forthwith
prepare and, subject to paragraph (c) above, file with the Commission (to the extent
required) and furnish to the Underwriters and to such dealers as the Representatives may
designate, such amendments or supplements to the Disclosure Package as may be necessary so
that the statements in the Disclosure Package as so amended or supplemented will not, in the
light of the circumstances, be misleading or so that the Disclosure Package will comply with
law.
(f) If during the Prospectus Delivery Period (i) any event shall occur or condition
shall exist as a result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in the light of
the circumstances existing when the Prospectus is delivered to a purchaser, not misleading
or (ii) it is necessary to amend or supplement the Prospectus to comply with law, the
Company will promptly notify Barclays on behalf of the Representatives thereof and forthwith
prepare and, subject to paragraph (c) above, file with the Commission and furnish to the
Underwriters and to such dealers as the Representatives may designate, such amendments or
supplements to the Prospectus as may be necessary so that the statements in the Prospectus
as so amended or supplemented will not, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply
with law.
(g) The Company will use reasonable best efforts to assist the Underwriters in
arranging, if necessary, for the qualification of the Securities for sale by the
Underwriters under the applicable securities laws of such jurisdictions in the United States
as the Representatives may designate and will maintain such qualifications in effect so long
as required for the sale of the Securities;
provided
that in no event shall the
Company or the Parent Guarantor be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would reasonably be expected to
subject it to service of process in suits, other than those arising out of the offering or
sale of the Securities, in any jurisdiction where it is not now so subject or to subject
themselves to taxation in excess of a nominal amount in respect of doing business in any
jurisdiction. The Company will promptly advise Barclays, on behalf of the Representatives,
of the receipt by it of any notification with respect to the suspension of the qualification
of the Securities or the Guarantee for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose.
(h) The Company will cooperate with the Representatives and use its commercially
reasonable efforts to permit the Securities to be eligible for clearance and settlement
through DTC.
(i) The Company will not, for a period of 30 days following the date of the Prospectus,
without the prior written consent of Barclays, offer, sell or contract to sell,
-15-
pledge or otherwise dispose of (or enter into any transaction that is designed to, or
might reasonably be expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by the Company, the
Parent Guarantor or any of their respective Affiliates or any person in privity with the
Company, the Parent Guarantor or any of their respective Affiliates), directly or
indirectly, or announce the offering of, any capital markets debt securities issued or
guaranteed by the Company or the Parent Guarantor (other than the Securities and the
Guarantee).
(j) The Company and the Parent Guarantor jointly and severally agree to pay the costs
and expenses incident to the following matters: (i) the fees of the Trustee (and its
counsel); (ii) the preparation, printing (or reproduction), delivery (including postage, air
freight charges and charges for counting and packaging) and filing under the Act, of such
copies of the Registration Statement, the Disclosure Package, and Issuer Free Writing
Prospectus and the Prospectus, and all amendments or supplements to either of them, as may,
in each case, be reasonably requested for use in connection with the offering and sale of
the Securities; (iii) any stamp or transfer taxes in connection with the original issuance
and sale of the Securities; (iv) the printing (or reproduction) and delivery of any blue sky
memorandum to investors in connection with the offering of the Securities; (v) any
registration or qualification of the Securities for offer and sale under the securities or
blue sky laws of the several states and any other jurisdictions specified pursuant to
Section 5(g) (including filing fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such registration and qualification); (vi) the approval of the
Securities for book-entry transfer by DTC; (vii) the transportation and other expenses
incurred by or on behalf of representatives of the Company in connection with presentations
to prospective purchasers of the Securities; (viii) the fees and expenses of the Companys
and the Parent Guarantors accountants and the fees and expenses of counsel (including local
and special counsel) to the Company; and (ix) all other costs and expenses incident to the
performance by the Company of their obligations hereunder;
provided
,
however
, that except as specifically provided in this paragraph (j), in Section 7
and in Section 8, the Underwriters shall pay their own costs and expenses in connection with
presentations for prospective purchasers of the Securities.
(k) The Company will use the proceeds from the sale of the Securities in the manner
described in each of the Registration Statement, the Disclosure Package and the Prospectus
under the caption Use of Proceeds.
(l) The Company and the Parent Guarantor jointly and severally acknowledge and agree
that the Underwriters are acting solely in the capacity of an arms length contractual
counterparty to the Company and the Parent Guarantor with respect to the offering of
Securities contemplated hereby (including in connection with determining the terms of the
offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company, the
Parent Guarantor or any other person. Additionally, no Underwriter is advising the Company,
the Parent Guarantor or any other person as to any legal, tax, investment, accounting or
regulatory matters in any jurisdiction. The Company and the Parent Guarantor shall consult
with their own advisors concerning such matters and shall
be responsible for making their own independent investigation and appraisal of the
transactions
-16-
contemplated hereby, and the Underwriters shall have no responsibility or
liability to the Company or the Parent Guarantor with respect thereto. Any review by the
Underwriters of the Company and the Parent Guarantor, the transactions contemplated hereby
or other matters relating to such transactions will be performed solely for the benefit of
the Underwriters and shall not be on behalf of the Company or the Parent Guarantor.
(m) The Company will, pursuant to reasonable procedures developed in good faith, retain
copies of each Issuer Free Writing Prospectus that is not filed with the Commission in
accordance with Rule 433 under the Act.
6.
Conditions to the Obligations of the Underwriters
. The obligations of the
Underwriters to purchase the Securities shall be subject to the accuracy in all material respects
(except to the extent already qualified by materiality, in which case such obligations shall be
subject to the accuracy in all respects) of the representations and warranties of the Company and
the Parent Guarantor contained herein at the Applicable Time, to the accuracy in all material
respects (except to the extent already qualified by materiality, in which case such obligations
shall be subject to the accuracy in all respects) of the representations and warranties of the
Company and the Parent Guarantor contained herein at the Closing Date, to the accuracy of the
statements of the Company or the Parent Guarantor made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations hereunder and to the
following additional conditions:
(a) No order suspending the effectiveness of the Registration Statement shall be in
effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to
Section 8A under the Act shall be pending before or threatened by the Commission; the
Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the
Commission under the Act (in the case of a Issuer Free Writing Prospectus, to the extent
required by Rule 433 under the Act) and in accordance with Section 5(a) hereof; and all
requests by the Commission for additional information shall have been complied with to the
reasonable satisfaction of the Representatives.
(b) The Company shall have requested and caused Simpson Thacher & Bartlett LLP, counsel
for the Company, to furnish to the Underwriters an opinion letter and an advice letter, each
dated the Closing Date and substantially in the forms of
Exhibit A
and
Exhibit
B
, respectively, hereto and an opinion of Bass, Berry & Sims PLC, special regulatory
counsel for the Company, dated the Closing Date and substantially in the form of
Exhibit
C
hereto. The Company shall have requested and caused the general counsel of the
Company to furnish to the Underwriters an opinion letter with regards to such matters as the
Representatives shall reasonably require.
(c) The Underwriters shall have received from Cahill Gordon & Reindel
llp
,
counsel for the Underwriters, such opinion letter and advice letter, each dated the Closing
Date and addressed to the Underwriters, with respect to the issuance and sale of the
Securities, the Senior Indenture, the Disclosure Package and the Prospectus (as amended or
supplemented at the Closing Date) and other related matters as the Underwriters may reasonably
-17-
require; and the Company shall have furnished to such counsel such documents as
they reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Underwriters a certificate of the Company,
signed by (x) the chairman, chief executive officer, president or vice president and (y) the
chief financial officer, treasurer or principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such certificate have
carefully examined the Disclosure Package and the Prospectus, any amendment or supplement to
the Disclosure Package or the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company and the Parent Guarantor
in this Agreement are true and correct in all material respects (except to the
extent already qualified by materiality, in which case such representations and
warranties are true and correct in all respects) at the Applicable Time and on the
Closing Date, and the Company and the Parent Guarantor have complied in all material
respects with all the agreements and satisfied all the conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date; and
(ii) since the date of the most recent financial statements included or
incorporated by reference in each of the Disclosure Package and the Prospectus
(exclusive of any amendment or supplement thereto), there has been no material
adverse change in the condition (financial or otherwise), business or results of
operations of the Company and its subsidiaries, taken as a whole, except as set
forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of
any amendment or supplement thereto).
(e) At the Applicable Time and at the Closing Date, the Company shall have requested
and caused Ernst & Young LLP to furnish to the Underwriters a comfort letter, dated as of
the Applicable Time, and a bring-down comfort letter, dated as of the Closing Date,
respectively, in form and substance reasonably satisfactory to the Representatives,
confirming that they are independent registered public accountants within the meaning of the
Exchange Act and within the meaning of the rules of the Public Company Accounting Oversight
Board and confirming certain matters with respect to the audited and unaudited financial
statements and other financial and accounting information contained in the Registration
Statement, the Disclosure Package and the Prospectus, including any amendment or supplement
thereto at the date of the applicable letter.
(f) Subsequent to the Applicable Time or, if earlier, the dates as of which information
is given in the Disclosure Package and the Prospectus (exclusive of any amendment or
supplement thereto), there shall not have been any change or development in the condition
(financial or otherwise), business or results of operations of the Parent Guarantor and its
subsidiaries, taken as a whole, and after giving effect to the Transaction, except as set
forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any
amendment or supplement thereto), the effect of which is, or would reasonably be expected to
become, in the judgment of Barclays, so material and adverse as to make it impractical or
inadvisable to proceed with the offering, sale or delivery of the
-18-
Securities on the terms and in the manner contemplated in the Registration Statement,
the Disclosure Package and the Prospectus (exclusive of any amendment or supplement
thereto).
(g) At the Closing Date, the Company, the Parent Guarantor and the Trustee shall have
entered into the Senior Indenture, and the Representatives shall have received counterparts,
conformed as executed, thereof.
(h) Subsequent to the Applicable Time, there shall not have been any decrease in the
rating of the Securities by any nationally recognized statistical rating organization (as
defined for purposes of the Exchange Act) or any notice given of any intended or potential
decrease in any such rating or of a possible change in any such rating that does not
indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have furnished to the Representatives
such further information, certificates and documents as the Representatives may reasonably
request, as set forth in the closing memorandum relating to the offering of the Securities.
(j) Prior to the Closing Date, the Company shall have taken all action reasonably
required to be taken by it to have the Securities declared eligible for clearance and
settlement through DTC.
All opinions, letters, evidence and certificates mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to the Representatives and counsel for the Underwriters.
The documents required to be delivered by this Section 6 will be available for inspection at
the office of Simpson Thacher & Bartlett LLP, at 425 Lexington Avenue, New York, New York 10017, on
the Business Day prior to the Closing Date.
7.
Reimbursement of Expenses
. If the sale of the Securities provided for herein is
not consummated because any condition to the obligations of the Underwriters set forth in Section 6
hereof is not satisfied, because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company or the Parent Guarantor to perform any
agreement herein or to comply with any provision hereof other than by reason of a default by any of
the Underwriters, including as described in Section 9 hereof, the Company and the Parent Guarantor,
jointly and severally, will reimburse the Underwriters through the Representatives on behalf of the
Underwriters on demand for all reasonable expenses (including reasonable fees and disbursements of
Cahill Gordon & Reindel
llp
) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities.
8.
Indemnification and Contribution
.
(a) The Company and the Parent Guarantor jointly and severally agree to indemnify and hold
harmless each Underwriter, the directors, officers and Affiliates of each Underwriter
-19-
and each person who controls any Underwriter within the meaning of either the Act or
the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or other U.S. federal
or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement or caused by any omission or alleged omission to state therein a material fact required
to be stated therein or necessary in order to make the statements therein, not misleading, (ii) or
any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or
any amendment or supplement thereto), the Disclosure Package, any Issuer Free Writing Prospectus or
any written communication that constitutes an offer to sell or a solicitation of any offer to buy
the Securities used by the Company or the Parent Guarantor in violation of the provisions of this
Agreement, or arise out of or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and agree (subject to the limitations set forth in the
provisos to this sentence) to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by it in connection with investigating or defending any such
loss, claim, damage, liability or action;
provided
,
however
, that the Company and
the Parent Guarantor will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement, the Prospectus (or
any amendment or supplement thereto), the Disclosure Package or any Issuer Free Writing Prospectus
in reliance upon and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for inclusion therein. This
indemnity agreement will be in addition to any liability that the Company and the Parent Guarantor
may otherwise have. The Company and the Parent Guarantor shall not be liable under this Section 8
to any indemnified party regarding any settlement or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless such settlement, compromise
or consent is consented to by the Company or the Parent Guarantor, as applicable, which consent
shall not be unreasonably withheld.
(b) Each Underwriter severally, and not jointly, agrees to indemnify and hold harmless (i) the
Company and the Parent Guarantor, (ii) each person, if any, who controls (within the meaning of
either the Act or the Exchange Act) the Company or the Parent Guarantor, and (iii) the directors
and officers of the Company and the Parent Guarantor, to the same extent as the foregoing indemnity
from the Company and the Parent Guarantor, to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the Registration Statement,
the Prospectus (or any amendment or supplement thereto), the Disclosure Package or any Issuer Free
Writing Prospectus. This indemnity agreement will be in addition to any liability that any
Underwriter may otherwise have. The Company and the Parent Guarantor acknowledge that the third,
sixth, eighth, ninth, tenth and eleventh paragraphs and the third sentence of the seventh paragraph
under the heading Underwriting in the Disclosure Package and the Prospectus constitute the only
information furnished in writing by or on behalf
-20-
of the Underwriters for inclusion in the Registration Statement, the Prospectus (or any
amendment or supplement thereto), the Disclosure Package or any Issuer Free Writing Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 8, notify the indemnifying party in writing
of the commencement thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the indemnifying party
of substantial rights or defenses and (ii) will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above, except as provided in paragraph (d) below. The indemnifying party
shall be entitled to appoint counsel (including local counsel) of the indemnifying partys choice
at the indemnifying partys expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel, other than local counsel if not appointed by the
indemnifying party, retained by the indemnified party or parties except as set forth below);
provided
,
however
, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying partys election to appoint counsel (including
local counsel) to represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party would present such counsel with
a conflict of interest (based on the advice of counsel to the indemnified person); (ii) such action
includes both the indemnified party and the indemnifying party, and the indemnified party shall
have reasonably concluded (based on the advice of counsel to the indemnified person) that there may
be legal defenses available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party; (iii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action; or (iv) the
indemnifying party shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. It is understood and agreed that the indemnifying person shall not, in
connection with any proceeding or related proceeding in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to any local counsel) for
all indemnified persons. Any such separate firm for any Underwriter, its Affiliates, directors and
officers and any control persons of such Underwriter shall be designated in writing by Barclays,
and any such separate firm for the Company or the Parent Guarantor and any control persons,
officers or directors of the Company or the Parent Guarantor shall be designated in writing by the
Company or the Parent Guarantor, as the case may be. In the event that any Underwriter, its
Affiliates, directors and officers or any control persons of such Underwriter are Indemnified
Persons collectively entitled, in connection with a proceeding in a single jurisdiction, to the
payment of fees and expenses of a single separate firm under this Section 8(c), and any such
Underwriter, its Affiliates, directors and officers or any control
persons of such Underwriter
cannot agree to a mutually acceptable separate firm to act as counsel thereto, then such separate
firm for all such Indemnified Persons shall be designated in writing by Barclays. An indemnifying
party will not, without the prior written consent of the indemnified parties, settle or compromise
or consent to
-21-
the entry of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought hereunder (whether or
not the indemnified parties are actual or potential parties to such claim, action, suit or
proceeding) unless such settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action, suit or proceeding and does
not include any statement as to, or any admission of, fault, culpability or failure to act by or on
behalf of any indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party for any reason (other than by
virtue of the failure of an indemnified party to notify the indemnifying party of its right to
indemnification pursuant to subsection (a) or (b) above, where such failure materially prejudices
the indemnifying party (through the forfeiture of substantial rights or defenses)), the Company and
the Parent Guarantor, on the one hand, and the Underwriters, on the other hand, severally agree to
contribute to the aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending any loss, claim, damage,
liability or action) (collectively
Losses
) to which the Company or the Parent Guarantor
and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Parent Guarantor, on the one hand, and by the
Underwriters, on the other hand, from the offering of the Securities. If the allocation provided
by the immediately preceding sentence is unavailable for any reason or not permitted by applicable
law, the Company and the Parent Guarantor, on the one hand, and the Underwriters, on the other
hand, severally shall contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and the Parent Guarantor, on the one
hand, and the Underwriters, on the other hand, in connection with the statements or omissions that
resulted in such Losses, as well as any other relevant equitable considerations. Benefits received
by the Company and the Parent Guarantor shall be deemed to be equal to the total net proceeds from
the offering (before deducting expenses) received by them, and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting discounts and commissions
received by them. Relative fault shall be determined by reference to, among other things, whether
any untrue or alleged untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information provided by the Company or the Parent Guarantor, on
the one hand, or the Underwriters, on the other hand, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such untrue statement or
omission and any other equitable considerations appropriate in the circumstances. The Company and
the Parent Guarantor and the Underwriters agree that it would not be just and equitable if the
amount of such contribution were determined by pro rata allocation or any other method of
allocation that does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation.
Notwithstanding the provisions of this Section 8, in no event under this Section 8(d) shall any
Underwriter be responsible for any amount in excess of the amount by which the total underwriting
discounts and commissions received by such Underwriter with respect to the offering of the
Securities exceeds the amount of any damages that such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement of a material fact or omission
-22-
or alleged omission to state a material fact. The Underwriters obligations to contribute
pursuant to this Section 8 are several in proportion to their respective purchase obligations
hereunder and not joint. For purposes of this Section 8, each person, if any, who controls an
Underwriter within the meaning of either the Act or the Exchange Act and each director, officer,
employee, Affiliate and agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company or the Parent Guarantor within the meaning of
either the Act or the Exchange Act and the respective officers and directors of the Company and the
Parent Guarantor shall have the same rights to contribution as the Company and the Parent
Guarantor, subject in each case to the applicable terms and conditions of this paragraph (d).
9.
Default by an Underwriter
. If any one or more Underwriters shall fail to purchase
and pay for the Securities agreed to be purchased by such Underwriter hereunder, and such failure
to purchase shall constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the
respective proportions that the principal amount of the Securities set forth opposite their names
in
Schedule I
hereto bears to the aggregate principal amount of the Securities set forth
opposite the names of all the remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase;
provided
,
however
, that
in the event that the aggregate principal amount of the Securities that the defaulting Underwriter
or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate principal amount of
Securities set forth in
Schedule I
hereto, the Company shall be entitled to a period of 36
hours within which to procure another party or parties reasonably satisfactory to the
non-defaulting Underwriters, as the case may be, to purchase no less than the amount of such
unpurchased Securities that exceeds 10% of the principal amount thereof upon such terms herein set
forth. If, however, the Company shall not have completed such arrangements within 72 hours after
such default and the principal amount of unpurchased Securities exceeds 10% of the principal amount
of such Securities to be purchased on such date, then this Agreement will terminate without
liability to any non-defaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed for such period,
not exceeding five Business Days, to effect any changes that in the opinion of counsel for the
Company or counsel for the Representatives are necessary in the Registration Statement and the
Prospectus or in any other documents or arrangements. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to the Company or any nondefaulting
Underwriter for damages occasioned by its default hereunder.
10.
Termination
. This Agreement shall be subject to termination in the absolute
discretion of a majority of the Representatives, by notice given to the Company prior to delivery
of and payment for the Securities, if at any time prior to such time (i) trading in any securities
generally or trading of any securities issued or guaranteed by the Company or the Parent Guarantor
on the New York Stock Exchange or the NASDAQ Global Market shall have been suspended or materially
limited or minimum prices shall have been established on such exchange or the NASDAQ Global Market;
(ii) a banking moratorium shall have been declared either by U.S. federal or New York state
authorities; or (iii) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war or other calamity or crisis the
effect of which on financial markets is such as to make it, in the judgment of Barclays,
impractical or inadvisable to proceed with the offering, sale or delivery of the Securities
-23-
as contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment
or supplement thereto).
11.
Representations and Indemnities to Survive
. The respective agreements,
representations, warranties, indemnities and other statements of the Company and the Parent
Guarantor or their respective officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any investigation made by or on
behalf of the Underwriters or the Company and the Parent Guarantor, or any of the indemnified
persons referred to in Section 8 hereof, and will survive delivery of and payment for the
Securities. The provisions of Sections 5(j), 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12.
Notices
. All communications hereunder will be in writing and effective only on
receipt and, if sent to the Representatives, will be mailed, delivered or faxed to Barclays Capital
Inc., 745 Seventh Avenue, New York, New York 10019, (fax: (636) 834-8133); Attention: Syndicate
Registration or, if sent to the Company or the Parent Guarantor, will be mailed, delivered or faxed
c/o HCA Inc. (fax no.: (615) 344-1531) and confirmed to it at One Park Plaza, Nashville, Tennessee
37203, Attention: General Counsel, with a copy to Joseph H. Kaufman, Simpson Thacher & Bartlett
LLP, 425 Lexington Avenue, New York, New York (fax no.: (212) 455-2502). The Company shall be
entitled to act and rely upon any request, consent, notice or agreement given or made on behalf of
the Underwriters by Barclays.
13.
Successors
. This Agreement will inure to the benefit of and be binding upon the
parties hereto and at and after the Closing Date, the Company and the Parent Guarantor and their
respective successors and the indemnified persons referred to in Section 8 hereof and their
respective successors and no other person will have any right or obligation hereunder. No
purchaser of Securities from any Underwriter shall be deemed to be a successor merely by reason of
such purchase.
14.
Applicable Law
. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WITHIN THE
STATE OF NEW YORK. THE PARTIES HERETO EACH HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
15.
Counterparts
. This Agreement may be signed in one or more counterparts (which may
be delivered in original form, facsimile or pdf file thereof), each of which when so executed
shall constitute an original and all of which together shall constitute one and the same agreement.
16.
Headings
. The section headings used herein are for convenience only and shall not
affect the construction hereof.
-24-
17.
Definitions
. The terms that follow, when used in this Agreement, shall have the
meanings indicated.
Act
shall mean the Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder.
Affiliate
shall have the meaning specified in Rule 501(b) of Regulation D.
Agreement
shall mean this purchase agreement.
Applicable Time
shall mean 3:20 p.m., Eastern time on September 27, 2011.
Business Day
shall mean any day other than a Saturday, a Sunday or a legal holiday
or a day on which commercial banking institutions or trust companies are authorized or required by
law to close in New York City.
Commission
shall mean the Securities and Exchange Commission.
Exchange Act
shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder.
Investment Company Act
shall mean the Investment Company Act of 1940, as amended,
and the rules and regulations of the Commission promulgated thereunder.
subsidiary
means Subsidiary as defined in the Registration Statement, the
Disclosure Package and the Prospectus under the caption Description of the Notes.
Trust Indenture Act
shall mean the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission promulgated thereunder.
-25-
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement between the Company and the several Underwriters.
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Very truly yours,
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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Senior Vice President Finance and Treasurer
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HCA HOLDINGS, INC.,
as Parent Guarantor
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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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Senior Vice President Finance
and Treasurer
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Signature Page to Underwriting Agreement
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Barclays Capital Inc.
For itself and as the Representative of
the several Underwriters named in
Schedule I
to the foregoing
Agreement.
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By:
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Barclays Capital Inc.
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By:
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/s/ John Skrobe
Name: John Skrobe
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Title: Managing Director
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Signature Page to Underwriting Agreement
SCHEDULE I
Securities
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Principal Amount
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of Securities to be
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Underwriters
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Purchased
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Barclays Capital Inc.
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$
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75,000,000
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Deutsche Bank Securities Inc.
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$
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75,000,000
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Goldman, Sachs & Co.
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$
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75,000,000
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Morgan Stanley & Co. LLC
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$
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75,000,000
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RBC Capital Markets, LLC
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$
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75,000,000
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Wells Fargo Securities, LLC
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$
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75,000,000
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Credit Agricole Securities (USA) Inc.
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$
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12,500,000
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Credit Suisse Securities (USA) LLC
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$
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12,500,000
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Mizuho Securities USA Inc.
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$
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12,500,000
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SunTrust Robinson Humphrey, Inc.
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$
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12,500,000
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Total
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$
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500,000,000
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ANNEX A
Disclosure Package
Pricing Term Sheet, dated September 27, 2011, to the Preliminary Prospectus
See attached.
Filed pursuant to Rule 433
Issuer Free Writing Prospectus, dated September 27, 2011
Supplementing the Preliminary Prospectus Supplement, dated September 27, 2011
Registration No. 333-175791
HCA Inc.
$500,000,000 8% Senior Notes due 2018 (the Notes)
Pricing Supplement
Pricing Supplement dated September 27, 2011 to HCA Inc.s Preliminary Prospectus
Supplement dated September 27, 2011. This Pricing Supplement is qualified in its
entirety by reference to the Preliminary Prospectus Supplement. The information in
this Pricing Supplement supplements the Preliminary Prospectus Supplement and
supersedes the information in the Preliminary Prospectus Supplement to the extent it
is inconsistent with the information in the Preliminary Prospectus Supplement.
Financial information present in the Preliminary Prospectus Supplement is deemed to
have changed to the extent affected by changes described herein. Capitalized terms
used in this Pricing Supplement but not defined have the meanings given them in the
Preliminary Prospectus Supplement.
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Issuer
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HCA Inc.
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Aggregate Principal Amount
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$500,000,000
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Title of Security
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8% Senior Notes due 2018
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Maturity
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October 1, 2018
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Spread to Treasury
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+652 basis points
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Benchmark Treasury
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UST 1.5% due August 31, 2018
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Coupon
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8%
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Public Offering Price
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100% plus accrued interest, if any, from October 3, 2011
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Yield to Maturity
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8%
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Interest Payment Dates
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April 1 and October 1 of each year, beginning on April
1, 2012
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Record Dates
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March 15 and September 15 of each year
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Gross Proceeds
|
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$500,000,000
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Underwriting Discount
|
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1.125%
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Net Proceeds to Issuer
Before Expenses
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$494,375,000
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Optional Redemption (Make
Whole Call)
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The Notes will be redeemable, at our option, at any
time in whole or from time to time in part, at a
redemption, or make-whole, price equal to the greater
of:
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(i)
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100% of the aggregate principal amount of the Notes
to be redeemed, and
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(ii)
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an amount equal to sum of the present value of the
remaining scheduled payments of principal of and
interest on the Notes to be redeemed (excluding accrued
and unpaid interest to the redemption date and subject
to the right of holders on the relevant record date to
receive interest due on the relevant interest payment
date) discounted from their scheduled date of payment
to the redemption date on a semi-annual basis (assuming
a 360-day year consisting of twelve 30-day months)
using a discount rate equal to the Treasury Rate plus
50 basis points
plus, in each of the above cases, accrued and unpaid
interest, if any, to such redemption date.
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Change of Control
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Upon certain change of control events, each holder may
require the Issuer to repurchase at 101%, plus accrued
and unpaid interest, if any.
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Trade Date
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September 27, 2011
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Settlement Date:
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October 3, 2011 (T+4)
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We expect that delivery of the notes will be made to
investors on or about October 3, 2011, which will be
the fourth business day following the date of this
pricing term sheet (such settlement being referred to
as T+4). Under Rule 15c6-1 under the Exchange Act,
trades in the secondary market are required
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to settle
in three business days, unless the parties to any such
trade expressly agree otherwise. Accordingly,
purchasers who wish to trade notes prior to the
delivery of the notes hereunder will be required, by
virtue of the fact that the notes initially settle in
T+4, to specify an alternate settlement arrangement at
the time of any such trade to prevent a failed
settlement. Purchasers of the notes who wish to trade
the notes prior to their date of delivery hereunder
should consult their advisors.
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Denominations
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$2,000 and integral multiples of $1,000
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CUSIP/ISIN Numbers
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CUSIP: 404119BL2
ISIN: US404119BL22
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Form of Offering
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SEC Registered (Registration No. 333-175791)
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Joint Book-Running
Managers
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Barclays Capital Inc.
Deutsche Bank Securities Inc.
Goldman, Sachs & Co.
Morgan Stanley & Co. LLC
RBC Capital Markets, LLC
Wells Fargo Securities, LLC
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Co Managers
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Credit Agricole Securities (USA) Inc.
Credit Suisse Securities (USA) LLC
Mizuho Securities USA Inc.
SunTrust Robinson Humphrey, Inc.
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Use of Proceeds
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We estimate that our net proceeds from this offering,
after deducting underwriter discounts and commissions
and estimated offering expenses, will be approximately
$492,000,000. We intend to use the net proceeds from
the notes offered hereby for general corporate
purposes, which may include funding a portion of the
acquisition of the remaining ownership interest in our
HCA-HealthONE LLC joint venture currently owned by the
Colorado Health Foundation and to pay related fees and
expenses. See Use of Proceeds and Capitalization.
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The issuer has filed a registration statement (including a prospectus and a related
prospectus supplement) with the United States Securities and Exchange Commission
(SEC) for the offering to which this communication relates. Before you invest,
you should read the prospectus in that registration statement, the prospectus
supplement and other documents HCA Holdings, Inc. has filed with the SEC for more
complete information about the issuer and this offering. You may get these
documents for free by visiting EDGAR on the SEC Web site at www.sec.gov.
Alternatively, copies of the prospectus supplement and accompanying prospectus may
be obtained by calling Barclays Capital Inc. at 1-888-603-5847.
This communication should be read in conjunction with the preliminary prospectus
supplement and the accompanying prospectus. The information in this communication
supersedes the information in the preliminary prospectus supplement and the
accompanying prospectus to the extent inconsistent with the information in such
preliminary prospectus supplement and the accompanying prospectus.
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS
COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE
AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG
OR ANOTHER EMAIL SYSTEM.
ANNEX C-1
Subsidiaries of the Company
AB TIC Investments, LLC
AC Med, LLC
Acadiana Care Center, Inc.
Acadiana Practice Management, Inc.
Acadiana Regional Pharmacy, Inc.
ACH, Inc.
Acworth Immediate Care, LLC
Administrative Physicians of North Texas, PLLC
Advanced Neurosurgery, LLC
Advanced Orthopedics, LLC
Advanced Plastic Surgery Center of Terre Haute, LLC
Advanced Radiation Oncology Care, LLC
Albany Family Practice, LLC
Albany Neurosurgery Center, LLC
Aligned Business Consortium Group, L.P.
All About Staffing (India) Ltd.
All About Staffing (UK) Limited
All About Staffing of Texas, Inc.
All About Staffing Philippines, Inc.
All About Staffing, Inc.
Alleghany General and Bariatric Services, LLC
Alleghany Hospitalists, LLC
Alleghany Primary Care, Inc.
Alleghany Specialists, LLC
Alpharetta Imaging Services, LLC
Alta Internal Medicine, LLC
Alternaco, LLC
Ambulatory Endoscopy Clinic of Dallas, Ltd.
Ambulatory Laser Associates, GP
Ambulatory Services Management Corporation of Chesterfield County, Inc.
Ambulatory Surgery Center Group, Ltd.
American Medicorp Development Co.
Ami-Point GA, LLC
AOGN, LLC
AOSC Sports Medicine, Inc.
Appledore Medical Group II, Inc.
Appledore Medical Group, Inc.
Appomattox Imaging, LLC
AR Holding 1, LLC
AR Holding 10, LLC
AR Holding 11, LLC
AR Holding 12, LLC
AR Holding 13, LLC
AR Holding 14, LLC
AR Holding 15, LLC
AR Holding 16, LLC
AR Holding 17, LLC
AR Holding 18, LLC
AR Holding 19, LLC
AR Holding 2, LLC
AR Holding 20, LLC
AR Holding 21, LLC
AR Holding 22, LLC
AR Holding 23, LLC
AR Holding 24, LLC
AR Holding 25, LLC
AR Holding 26, LLC
AR Holding 27, LLC
AR Holding 28, LLC
AR Holding 29, LLC
AR Holding 3, LLC
AR Holding 30, LLC
AR Holding 4, LLC
AR Holding 5, LLC
AR Holding 6, LLC
AR Holding 7, LLC
AR Holding 8, LLC
AR Holding 9, LLC
Arkansas Medical Park, LLC
Arlington Diagnostic South, Inc.
Arlington Neurosurgeons, PLLC
Arlington Primary Care, PLLC
Arlington Primary Medicine, PLLC
Arlington Surgery Center, L.P.
Arlington Surgicare, LLC
Arlington Vascular Surgery, PLLC
Arthritis Specialists of Nashville, Inc.
ASD Shared Services, LLC
Ashburn ASC, LLC
Ashburn Imaging, LLC
Athens Community Hospital, Inc.
Atlanta Healthcare Management, L.P.
Atlanta Home Care, L.P.
Atlanta Market GP, Inc.
Atlanta Orthopaedic Surgical Center, Inc.
Atlanta Outpatient Surgery Center, Inc.
Atlanta Surgery Center, Ltd.
Atlantis Surgicare, LLC
Atrium Surgery Center, L.P.
Atrium Surgery Center, Ltd.
Atrium Surgicare, LLC
Augusta Inpatient Services, LLC
Augusta Multispecialty Services, LLC
Augusta Primary Care Services, LLC
Augusta Specialty Hospitalists, LLC
Austin Heart Cardiology MSO, LLC
Austin Heart, PLLC
Austin Medical Center, Inc.
Austin Physicians Management, LLC
Austin Urogynecology, PLLC
Aventura Cancer Center Manager, LLC
Aventura Comprehensive Cancer Research Group of Florida, Inc.
Aventura Healthcare Specialists LLC
Aventura Neurosurgery, LLC
Avoyelles Family Care (A Medical Limited Liability Company)
Bailey Square Ambulatory Surgical Center, Ltd.
Bailey Square Outpatient Surgical Center, Inc.
BAMI Property, LLC
Bannerman Family Care, LLC
Barrow Medical Center CT Services, Ltd.
Basic American Medical, Inc.
Bay Area Healthcare Group, Ltd.
Bay Area Surgical Center Investors, Ltd.
Bay Area Surgicare Center, Inc.
Bay Hospital, Inc.
Bayonet Point Surgery Center, Ltd.
Bayshore Occupational and Family Medicine, PLLC
Bayshore Partner, LLC
Bayshore Surgery Center, Ltd.
Beach Primary Care, LLC
Bedford-Northeast Community Hospital, Inc.
Behavioral Health Sciences of West Florida, LLC
Bellaire Imaging, Inc.
Belleair Surgery Center, Ltd.
Belton Family Practice Clinic, LLC
Big Cypress Medical Center, Inc.
Blacksburg Family Care, LLC
Boca Raton Open Imaging Center, LLC
Bonita Bay Surgery Center, Inc.
Bonita Bay Surgery Center, Ltd.
Bountiful Surgery Center, LLC
Boynton Beach EFL Imaging Center, LLC
Bradenton Cardiology Physician Network, LLC
Bradenton Outpatient Services, LLC
Brandon Imaging Manager, LLC
Brandon Regional Cancer Center, LLC
Brandon SRS Management Services, LLC
Brandon Surgi-Center, Ltd.
Brigham City Community Hospital Physician Services, LLC
Brigham City Community Hospital, Inc.
Brigham City Health Plan, Inc.
Brookwood Medical Center of Gulfport, Inc.
Broward Cardiovascular Surgeons, LLC
Broward Healthcare System, Inc.
Broward Neurosurgeons, LLC
Brownsville Specialists of Texas, PLLC
Brownsville Surgical Specialists, PLLC
Brownsville-Valley Regional Medical Center, Inc.
Brunswick Anesthesia, LLC
Buckhead Surgical Services, L.P.
Buford Road Imaging, L.L.C.
Byron Family Practice, LLC
C. Medrano, M.D., PLLC
C/HCA Capital, Inc.
C/HCA Development, Inc.
C/HCA, Inc.
Calder Urgent Care, PLLC
California Imaging Center Manager, LLC
Calloway Creek Surgery Center, L.P.
Calloway Creek Surgicare, LLC
Cancer Centers of North Florida, LLC
Cancer Services of Aventura, LLC
Cape Coral Surgery Center, Inc.
Cape Coral Surgery Center, Ltd.
Capital Anesthesia Services, LLC
Capital Area Cardiology
Capital Area Occupational Medicine, PLLC
Capital Area Primary Care, PLLC
Capital Area Providers
Capital Area Specialists, PLLC
Capital Area Surgeons, PLLC
Capital Division, Inc.
Capital Network Services, Inc.
Capital Regional Healthcare, LLC
Cardiac Surgical Associates, LLC
Cardio Vascular Surgeons of North Texas, PLLC
Cardiology Associates Medical Group, LLC
Cardiology Specialists of North Texas, PLLC
Cardiothoracic Surgeons of Roanoke Valley, LLC
Cardiovascular Center of Fort Worth, L.P.
Cardiovascular Ventures of Fort Worth, LLC
Care for Women, LLC
Career Staffing USA, Inc.
CareOne Home Health Services, Inc.
CareOne Home Health Services, Inc.
Carlin Springs Urgent Care, LLC
Carolina Regional Surgery Center, Inc.
Carolina Regional Surgery Center, Ltd.
Carriford Management Limited
Cartersville Medical Center, LLC
Cartersville Occupational Medicine Center, LLC
Cartersville Physician Practice I, LLC
Cartersville Urgent Care, LLC
CCH-GP, Inc.
Cedar Creek Medical Group, LLC
Cedarcare, Inc.
Cedars BTW Program, Inc.
Cedars Gastroenterologists, LLC
Cedars Healthcare Group, Ltd.
Cedars International Cardiology Consultants, LLC
Cedars Medical Center Hospitalists, LLC
Centennial Cardiovascular Consultants, LLC
Centennial CyberKnife Center, LLC
Centennial CyberKnife Manager, LLC
Centennial Heart, LLC
Centennial Neuroscience, LLC
Centennial Primary Care, LLC
Centennial Psychiatric Associates, LLC
Centennial Surgery Center, L.P.
Centennial Surgical Associates, LLC
Centennial Surgical Clinic, LLC
Center for Advanced Imaging, LLC
Center for Colorectal Care, LLC
Center for Digestive Diseases, LLC
Centerpoint Cardiology Services, LLC
Centerpoint Clinic of Blue Springs, LLC
Centerpoint Hospital Based Physicians, LLC
Centerpoint Medical Center of Independence, LLC
Centerpoint Medical Specialists, LLC
Centerpoint Orthopedics, LLC
Centerpoint Physicians Group, LLC
Centerpoint Womens Services, LLC
Central Florida Cardiology Interpretations, LLC
Central Florida Diagnostic Cardiology Center, LLC
Central Florida Division Practice, Inc.
Central Florida Imaging Services, LLC
Central Florida Obstetrics & Gynecology Associates, LLC
Central Florida Physician Network, LLC
Central Florida Regional Hospital, Inc.
Central Health Holding Company, Inc.
Central Health Services Hospice, Inc.
Central San Antonio Surgical Center Investors, Ltd.
Central Shared Services, LLC
Central Tennessee Hospital Corporation
Central Texas Cardiac Arrhythmia Physicians, PLLC
CFC Investments, Inc.
CH Systems
Chatsworth Hospital Corp.
Chattanooga ASC, LLC
Chattanooga Diagnostic Associates, LLC
Chattanooga Healthcare Network Partner, Inc.
Chattanooga Healthcare Network, L.P.
CHC Finance Co.
CHC Holdings, Inc.
CHC Management, Ltd.
CHC Payroll Agent, Inc.
CHC Payroll Company
CHC Realty Company
CHC Venture Co.
CHCA Bayshore, L.P.
CHCA Clear Lake, L.P.
CHCA Conroe, L.P.
CHCA Hospital LP, Inc.
CHCA Mainland, L.P.
CHCA Palmyra Partner, Inc.
CHCA Pearland, L.P.
CHCA West Houston, L.P.
CHCA Womans Hospital, L.P.
CHC-El Paso Corp.
CHCK, Inc.
CHC-Miami Corp.
Chelsea Outpatient Centre LLP
Cheray and Samuels, LLC
Chesterfield Imaging, LLC
Chicago Grant Hospital, Inc.
Childrens Multi-Specialty Group, LLC
Chino Community Hospital Corporation, Inc.
Chippenham & Johnston-Willis Hospitals, Inc.
Chippenham & Johnston-Willis Sports Medicine, LLC
Chippenham Ambulatory Surgery Center, LLC
Chippenham Pediatric Specialists, LLC
Christiansburg Family Medicine, LLC
Christiansburg Internal Medicine, LLC
Christina Cano-Gonzalez, M.D., PLLC
Chugach PT, Inc.
Church Street Partners
CIS Holdings, Inc.
CJW Infectious Disease, LLC
CJW Wound Healing Center, LLC
CLASC Manager, LLC
Clear Lake Cardiac Catheterization Center, L.P.
Clear Lake Cardiac GP, LLC
Clear Lake Family Physicians, PLLC
Clear Lake Merger, LLC
Clear Lake Multi-Specialty Group, PLLC
Clear Lake Regional Medical Center, Inc.
Clear Lake Regional Partner, LLC
Clear Lake Surgicare, Ltd.
ClinicServ, LLC
Clinishare, Inc.
Clipper Cardiovascular Associates, Inc.
CMS GP, LLC
Coastal Bend Hospital CT Services, Ltd.
Coastal Bend Hospital, Inc.
Coastal Carolina Home Care, Inc.
Coastal Carolina Multispecialty Associates, LLC
Coastal Carolina Primary Care, LLC
Coastal Healthcare Services, Inc.
Coastal Imaging Center of Gulfport, Inc.
Coastal Imaging Center, L.P.
Coastal Inpatient Physicians, LLC
Cobb Imaging Services, LLC
Coliseum Health Group, Inc.
Coliseum Health Group, LLC
Coliseum Medical Center, LLC
Coliseum Park Hospital, Inc.
Coliseum Primary Care Services, LLC
Coliseum Primary Healthcare Macon, LLC
Coliseum Primary Healthcare Riverside, LLC
Coliseum Professional Associates, LLC
Coliseum Psychiatric Center, LLC
Coliseum Same Day Surgery Center, L.P.
Coliseum Surgery Center, L.L.C.
Colleton Ambulatory Care, LLC
Colleton Diagnostic Center, LLC
Colleton Medical Anesthesia, LLC
Colleton Medical Hospitalists, LLC
Colleton Neurology Associates, LLC
Colleton Otolaryngology, Head and Neck Surgery, LLC
Collier County Home Health Agency, Inc.
Collin County Diagnostic Associates, PLLC
COL-NAMC Holdings, Inc.
Colonial Heights Ambulatory Surgery Center, L.P.
Colonial Heights Surgicare, LLC
Colorado Health Systems, Inc.
Columbia Ambulatory Surgery Division, Inc.
Columbia Arlington Healthcare System, L.L.C.
Columbia ASC Management, L.P.
Columbia Bay Area Realty, Ltd.
Columbia Behavioral Health, LLC
Columbia Behavioral Health, Ltd.
Columbia Behavioral Healthcare of South Florida, Inc.
Columbia Behavioral Healthcare, Inc.
Columbia Call Center, Inc.
Columbia Central Florida Division, Inc.
Columbia Central Group, Inc.
Columbia Champions Treatment Center, Inc.
Columbia Chicago Division, Inc.
Columbia Coliseum Same Day Surgery Center, Inc.
Columbia Development of Florida, Inc.
Columbia Doctors Hospital of Tulsa, Inc.
Columbia Eye and Specialty Surgery Center, Ltd.
Columbia Florida Group, Inc.
Columbia GP of Mesquite, Inc.
Columbia Greater Houston Division Healthcare Network, Inc.
Columbia Health System of Arkansas, Inc.
Columbia Healthcare of Central Virginia, Inc.
Columbia Healthcare System of Louisiana, Inc.
Columbia Hospital (Palm Beaches) Limited Partnership
Columbia Hospital at Medical City Dallas Subsidiary, L.P.
Columbia Hospital Corporation at the Medical Center
Columbia Hospital Corporation of Arlington
Columbia Hospital Corporation of Bay Area
Columbia Hospital Corporation of Central Miami
Columbia Hospital Corporation of Corpus Christi
Columbia Hospital Corporation of Fort Worth
Columbia Hospital Corporation of Houston
Columbia Hospital Corporation of Kendall
Columbia Hospital Corporation of Massachusetts, Inc.
Columbia Hospital Corporation of Miami
Columbia Hospital Corporation of Miami Beach
Columbia Hospital Corporation of North Miami Beach
Columbia Hospital Corporation of South Broward
Columbia Hospital Corporation of South Dade
Columbia Hospital Corporation of South Florida
Columbia Hospital Corporation of South Miami
Columbia Hospital Corporation of Tamarac
Columbia Hospital Corporation of West Houston
Columbia Hospital Corporation-Delaware
Columbia Hospital Corporation-SMM
Columbia Hospital-El Paso, Ltd.
Columbia Integrated Health Systems, Inc.
Columbia Jacksonville Healthcare System, Inc.
Columbia LaGrange Hospital, Inc.
Columbia Lake Worth Surgical Center Limited Partnership
Columbia Medical Arts Hospital Subsidiary, L.P.
Columbia Medical Center at Lancaster Subsidiary, L.P.
Columbia Medical Center Dallas Southwest Subsidiary, L.P.
Columbia Medical Center of Arlington Subsidiary, L.P.
Columbia Medical Center of Denton Subsidiary, L.P.
Columbia Medical Center of Las Colinas, Inc.
Columbia Medical Center of Lewisville Subsidiary, L.P.
Columbia Medical Center of McKinney Subsidiary, L.P.
Columbia Medical Center of Plano Subsidiary, L.P.
Columbia Medical Group Centennial, Inc.
Columbia Medical Group Daystar, Inc.
Columbia Medical Group Parkridge, Inc.
Columbia Medical Group Southern Hills, Inc.
Columbia Medical Group Southwest Virginia, Inc.
Columbia Medical Group The Frist Clinic, Inc.
Columbia Midtown Joint Venture
Columbia North Alaska Healthcare, Inc.
Columbia North Central Florida Health System Limited Partnership
Columbia North Florida Regional Medical Center Limited Partnership
Columbia North Hills Hospital Subsidiary, L.P.
Columbia North Texas Healthcare System, L.P.
Columbia North Texas Subsidiary GP, LLC
Columbia North Texas Surgery Center Subsidiary, L.P.
Columbia Northwest Medical Center Partners, Ltd.
Columbia Northwest Medical Center, Inc.
Columbia Ocala Regional Medical Center Physician Group, Inc.
Columbia Ogden Medical Center, Inc.
Columbia Oklahoma Division, Inc.
Columbia Palm Beach GP, LLC
Columbia Palm Beach Healthcare System Limited Partnership
Columbia Park Healthcare System, Inc.
Columbia Park Medical Center, Inc.
Columbia Parkersburg Healthcare System, LLC
Columbia Physician Services Florida Group, Inc.
Columbia Plaza Medical Center of Fort Worth Subsidiary, L.P.
Columbia Polk General Hospital, Inc.
Columbia Primary Care, LLC
Columbia Psychiatric Management Co.
Columbia Resource Network, Inc.
Columbia Rio Grande Healthcare, L.P.
Columbia Riverside, Inc.
Columbia South Texas Division, Inc.
Columbia Specialty Hospital of Dallas Subsidiary, L.P.
Columbia Specialty Hospitals, Inc.
Columbia Surgery Group, Inc.
Columbia Surgicare North Michigan Ave., L.P.
Columbia Surgicare of Augusta, Ltd.
Columbia Tampa Bay Division, Inc.
Columbia U.K. Finance Limited
Columbia Valley Healthcare System, L.P.
Columbia West Bank Hospital, Inc.
Columbia Westbank Healthcare, L.P.
Columbia/Alleghany Regional Hospital, Incorporated
Columbia/HCA Healthcare Corporation of Central Louisiana, Inc.
Columbia/HCA Healthcare Corporation of Central Texas
Columbia/HCA Healthcare Corporation of Northern Ohio
Columbia/HCA Healthcare Corporation of South Carolina
Columbia/HCA Heartcare of Corpus Christi, Inc.
Columbia/HCA International Group, Inc.
Columbia/HCA John Randolph, Inc.
Columbia/HCA Middle East Management Company
Columbia/HCA of Baton Rouge, Inc.
Columbia/HCA of Houston, Inc.
Columbia/HCA of New Orleans, Inc.
Columbia/HCA of North Texas, Inc.
Columbia/HCA Physician Hospital Organization Medical Center Hospital
Columbia/HCA San Clemente, Inc.
Columbia-Georgia PT, Inc.
Columbia-Osceola Imaging Center, Inc.
Columbia-Quantum, Inc.
Columbia-SDH Holdings, Inc.
Columbine Psychiatric Center, Inc.
Columbus Cardiology, Inc.
Columbus Cath Lab, Inc.
Columbus Cath Lab, LLC
Columbus Doctors Hospital, Inc.
Commonwealth Perinatal Services, LLC
Commonwealth Specialists of Kentucky, LLC
Community Hospital Family Practice, LLC
Comprehensive Radiology Management Services, Ltd.
Concept EFL Imaging Center, LLC
Concept West EFL Imaging Center, LLC
Congenital Heart Surgery Center, PLLC
Conroe Hospital Corporation
Conroe Orthopedic Specialists, PLLC
Conroe Partner, LLC
Conroe Specialists of Texas, PLLC
Continental Division I, Inc.
Coral Springs Surgi-Center, Ltd.
CoralStone Management, Inc.
Corpus Christi Healthcare Group, Ltd.
Corpus Christi Primary Care Associates, PLLC
Corpus Christi Radiation Oncology, PLLC
Corpus Christi Surgery Center, L.P.
Corpus Christi Surgery, Ltd.
Corpus Surgicare, Inc.
COSCORP, LLC
Countryside Surgery Center, Ltd.
CPS TN Processor 1, Inc.
Crewe Outpatient Imaging, LLC
CRMC-M, LLC
Cumberland Medical Center, Inc.
CVMC Property, LLC
Daleville Imaging Manager, LLC
Daleville Imaging, L.P.
Dallas Cardiology Specialists, PLLC
Dallas CardioThoracic Surgery Consultants, PLLC
Dallas Hand Surgery Center, PLLC
Dallas Neuro-Stroke Affiliates, PLLC
Dallas/Ft. Worth Physician, LLC
Dauterive Hospital Corporation
Dauterive Physicians, LLC
Daytona Medical Center, Inc.
Deep Purple Investments, LLC
Delray EFL Imaging Center, LLC
Delta Division, Inc.
Denton Cancer Center, PLLC
Denton County Hospitalist Program, PLLC
Denton Pediatric Physicians, PLLC
Denton Primary Care, PLLC
Denton Regional Ambulatory Surgery Center, L.P.
Derry ASC, Inc.
DFW Physicians Group, PLLC
Diagnostic Breast Center, Inc.
Diagnostic Services, G.P.
Dickson Corporate Health Services, LLC
Dickson Surgery Center, L.P.
Doctors Hospital (Conroe), Inc.
Doctors Hospital Center for Occupational Medicine, LLC
Doctors Hospital Columbus GA-Joint Venture
Doctors Hospital North Augusta Imaging Center, LLC
Doctors Hospital of Augusta Neurology, LLC
Doctors Hospital of Augusta, LLC
Doctors Hospital of Opelousas Limited Partnership
Doctors Hospital Surgery Center, L.P.
Doctors Memorial Hospital of Spartanburg, L.P.
Doctors Osteopathic Medical Center, Inc.
Doctors Same Day Surgery Center, Inc.
Doctors Same Day Surgery Center, Ltd.
Doctors-I, Inc.
Doctors-II, Inc.
Doctors-III, Inc.
Doctors-IV, Inc.
Doctors-IX, Inc.
Doctors-V, Inc.
Doctors-VI, Inc.
Doctors-VII, Inc.
Doctors-VIII, Inc.
Doctors-X, Inc.
DOMC Property, LLC
Dominion Hospital Physicians Group, LLC
Douglasville Imaging Services, LLC
Drake Management Company
Dublin Community Hospital, LLC
Dublin Heart Specialists, LLC
Dublin Multispecialty, LLC
Dunwoody Physician Practice Network, Inc.
E.P. Physical Therapy Centers, Inc.
East Falls Cardiovascular and Thoracic Surgery, LLC
East Falls OBGYN, LLC
East Falls Plastic Surgery, LLC
East Florida Behavioral Health Network, LLC
East Florida Division, Inc.
East Florida Emergency Physician Group, LLC
East Florida Hospitalists, LLC
East Florida Imaging Holdings, LLC
East Florida Primary Care, LLC
East Houston Specialists, PLLC
East Layton Internal Medicine, LLC
East Pointe Hospital, Inc.
Eastern Idaho Health Services, Inc.
Eastern Idaho Regional Medical Center Physician Services, LLC
Eastside General Surgery, LLC
Eastside Medical Center, LLC
Eastside Surgery Center, LLC
Edisto Multispecialty Associates, Inc.
Edmond General Surgery, LLC
Edmond Hospitalists, LLC
Edmond Intensivists, LLC
Edmond Physician Hospital Organization, Inc.
Edmond Physician Services, LLC
Edmond Podiatry Associates, LLC
Edmond Spine and Orthopedic Services, LLC
Edward White Hospital, Inc.
EHCA Diagnostics, LLC
EHCA Eastside Occupational Medicine Center, LLC
EHCA Metropolitan, LLC
EHCA Parkway, LLC
EHCA Peachtree, LLC
EHCA West Paces, LLC
EHCA, LLC
EIRMC Hospitalist Services, LLC
El Paso Healthcare Provider Network
El Paso Healthcare System Physician Services, LLC
El Paso Healthcare System, Ltd.
El Paso Nurses Unlimited, Inc.
El Paso Primary Care, PLLC
El Paso Surgery Centers, L.P.
El Paso Surgicenter, Inc.
Eldridge Family Practitioners, PLLC
Elite Family Health of Plano, PLLC
Elite OB-GYN Services of El Paso, PLLC
Elite Orthopaedics of El Paso, PLLC
Elite Orthopaedics of Irving, PLLC
Elite Orthopaedics of Plano, PLLC
Emergency Providers Group LLC
Emergency Psychiatric Medicine, PLLC
EMMC, LLC
Encino Hospital Corporation, Inc.
Endocrinology Associates of Lees Summit, LLC
Endoscopy Clinic of Dallas, Inc.
Endoscopy of Plano, L.P.
Endoscopy Surgicare of Plano, LLC
Englewood Community Hospital, Inc.
Enhancecorp Limited
EP Health, LLC
EP Holdco, LLC
EPIC Development, Inc.
EPIC Diagnostic Centers, Inc.
EPIC Healthcare Management Company
EPIC Properties, Inc.
EPIC Surgery Centers, Inc.
EPSC, L.P.
Extendicare Properties, Inc.
Eye Care Surgicare, Ltd.
Eye Surgicare of Independence, LLC
Fairfax Surgical Center, L.P.
Fairview Medical Services, LLC
Fairview Park GP, LLC
Fairview Park, Limited Partnership
Fairview Partner, LLC
Family Care at Arbor Walk, LLC
Family Care of E. Jackson County, LLC
Family Care Partners, LLC
Family First Medicine in Brownsville, PLLC
Family Health Medical Group of Overland Park, LLC
Family Health Specialists of Lees Summit, LLC
Family Medicine Associates of Edmond, LLC
Family Medicine of Blacksburg, LLC
Family Medicine of Terre Haute, LLC
Family Practice at Forest Hill, LLC
Family Practice at Retreat, LLC
Family Practitioners of Montgomery, PLLC
Family Practitioners of Pearland, PLLC
Far West Division, Inc.
Fawcett Memorial Hospital, Inc.
FHAL, LLC
Florida Home Health Services-Private Care, Inc.
Florida Outpatient Surgery Center, Ltd.
Flower Mound Surgery Center, Ltd.
Foot & Ankle Specialty Services, LLC
Forest Park Surgery Pavilion, Inc.
Forest Park Surgery Pavilion, L.P.
Fort Bend Hospital, Inc.
Fort Chiswell Family Practice, LLC
Fort Myers Market, Inc.
Fort Pierce Immediate Care Center, Inc.
Fort Pierce Orthopaedics, LLC
Fort Pierce Surgery Center, Ltd.
Fort Walton Beach Medical Center, Inc.
Fort Worth Investments, Inc.
Four Rivers Medical Center PHO, Inc.
Frankfort Hospital, Inc.
Frankfort Orthopedics, LLC
Frankfort Wound Care, LLC
Freeport Family Medicine, LLC
Fremont Womens Health, LLC
Frisco Warren Parkway 91, Inc.
Frist Clinic Express, LLC
Ft. Pierce Surgicare, LLC
Ft. Walton Beach Anesthesia Services, LLC
G. Rowe, M.D. , PLLC
G. Schnider, M.D., PLLC
Gainesville GYN Oncology of North Florida Regional Medical Center, LLC
Gainesville Physicians, LLC
Galen (Kansas) Merger, LLC
Galen BH, Inc.
Galen Diagnostic Multicenter, Ltd.
Galen Finance, LLC
Galen Global Finance, Inc.
Galen GOK, LLC
Galen Health Partners Limited
Galen Holdco, LLC
Galen Hospital Alaska, Inc.
Galen Hospital of Baytown, Inc.
Galen Hospital-Pembroke Pines, Inc.
Galen International Capital, Inc.
Galen International Holdings, Inc.
Galen KY, LLC
Galen LA, LLC
Galen MCS, LLC
Galen Medical Corporation
Galen MRMC, LLC
Galen NMC, LLC
Galen NSH, LLC
Galen of Aurora, Inc.
Galen of Florida, Inc.
Galen of Illinois, Inc.
Galen of Kentucky, Inc.
Galen of Mississippi, Inc.
Galen of Virginia, Inc.
Galen of West Virginia, Inc.
Galen Property, LLC
Galen SOM, LLC
Galen SSH, LLC
Galen Virginia Hospital Corporation
Galencare, Inc.
Galendeco, Inc.
Galen-Soch, Inc.
Galichia Anesthesia Services, LLC
GalTex, LLC
Garden Park Community Hospital Limited Partnership
Garden Park Hospitalist Program, LLC
Garden Park Investments, L.P.
Garden Park Physician Services Corporation
Gardens EFL Imaging Center, LLC
Gastroenterology Specialists of Middle Tennessee, LLC
General and Cardiovascular Surgeons of Conroe, PLLC
General Hospitals of Galen, Inc.
General Surgeons of Houston, PLLC
General Surgeons of North Richland Hills, PLLC
General Surgeons of Pasadena, PLLC
Generations Family Practice, Inc.
Georgia Health Holdings, Inc.
Georgia Psychiatric Company, Inc.
Georgia, L.P.
GHC-Galen Health Care, LLC
GI Associates of Denton, PLLC
Glemm SA
Good Samaritan Hospital, L.P.
Good Samaritan Hospital, LLC
Good Samaritan Surgery Center, L.P.
Goppert-Trinity Family Care, LLC
GPCH-GP, Inc.
Grace Family Practice, LLC
Gramercy Surgery Center, Ltd.
Grand Strand Regional Medical Center, LLC
Grand Strand Senior Health Center, LLC
Grand Strand Specialty Associates, LLC
Grand Strand Surgical Specialists, LLC
Grandview Health Care Clinic, LLC
Grant Center Hospital of Ocala, Inc.
Grayson Primary Care, LLC
Greater Gwinnett Internal Medicine Associates, LLC
Greater Gwinnett Physician Corporation
Greater Houston Preferred Provider Option, Inc.
Green Oaks Hospital Subsidiary, L.P.
Greenview Hospital, Inc.
Greenview PrimeCare, LLC
Gulf Coast Division, Inc.
Gulf Coast Inpatient Specialists, LLC
Gulf Coast Medical Center Primary Care, LLC
Gulf Coast Medical Ventures, Inc.
Gulf Coast Multispecialty Services, LLC
Gulf Coast Physician Administrators, Inc.
Gwinnett Community Hospital, Inc.
Gynecology Specialists of Utah, LLC
GYN-Oncology of Southwest Virginia, LLC
H.H.U.K., Inc.
H2U Wellness Centers PISD, PLLC
H2U Wellness Centers San Benito CISD, PLLC
H2U Wellness Centers, LLC
Hamilton Memorial Hospital, Inc.
Hamsard 3160 Limited
Hamsard 3214 LLP
Hanover Outpatient Surgery Center, L.P.
Harley Street Cardiac Diagnostic Centre LLP
Harley Street Clinic @ The Groves LLP
HCA Information Technology & Services, Inc.
HCA IT&S Field Operations, Inc.
HCA IT&S Inventory Management, Inc.
HCA IT&S TN Field Operations, Inc.
HCA Raleigh Community Hospital, Inc.
HCA Viera ALF, LLC
HCA WHS Progressive, LLC
HCA WHS Services, LLC
HCA ASD Financial Operations, LLC
HCA ASD Sales Services, LLC
HCA Central Group, Inc.
HCA Central/West Texas Physicians Management, LLC
HCA Chattanooga Market, Inc.
HCA Development Company, Inc.
HCA Eastern Group, Inc.
HCA Family Care Center, Inc.
HCA Finance, LP
HCA Health Services of California, Inc.
HCA Health Services of Florida, Inc.
HCA Health Services of Georgia, Inc.
HCA Health Services of Louisiana, Inc.
HCA Health Services of Miami, Inc.
HCA Health Services of Midwest, Inc.
HCA Health Services of New Hampshire, Inc.
HCA Health Services of Oklahoma, Inc.
HCA Health Services of Tennessee, Inc.
HCA Health Services of Texas, Inc.
HCA Health Services of Virginia, Inc.
HCA Health Services of West Virginia, Inc.
HCA Holdco, LLC
HCA Imaging Services of North Florida, Inc.
HCA International Finance LLP
HCA International Holdings Limited
HCA International Limited
HCA Long Term Health Services of Miami, Inc.
HCA Luxembourg 1 Sarl
HCA Luxembourg 2 Sarl
HCA Luxembourg Finance Limited
HCA Management Services, L.P.
HCA Medical Services, Inc.
HCA Midwest Comprehensive Care, Inc.
HCA Outpatient Clinic Services of Miami, Inc.
HCA Outpatient Imaging Services Group, Inc.
HCA Pearland GP, Inc.
HCA Physician Services, Inc.
HCA Plano Imaging, Inc.
HCA Property GP, LLC
HCA Psychiatric Company
HCA Purchasing Limited
HCA Realty, Inc.
HCA Richmond Division, Inc.
HCA Squared, LLC
HCA Staffing Limited
HCA Switzerland Finance Sàrl
HCA Switzerland Holding Sàrl
HCA UK Capital Limited
HCA UK Holdings Limited
HCA UK Investments Limited
HCA UK Limited
HCA UK Services, Ltd.
HCA United Kingdom Limited
HCA Wesley Rehabilitation Hospital, Inc.
HCA Western Group, Inc.
HCA-Access Healthcare Partner, Inc.
HCA-EmCare Holdings, LLC
HCA-EMS Holdings, LLC
HCA-HealthONE LLC
HCAPS Anesthesia Manager, LLC
HCOL, Inc.
HD&S Corp. Successor, Inc.
HDH Thoracic Surgeons, LLC
Healdsburg General Hospital, Inc.
Health Care Indemnity, Inc.
Health Insight Capital, LLC
Health Midwest Insurance Company, Ltd.
Health Midwest Medical Group, Inc.
Health Midwest Office Facilities Corporation
Health Midwest Ventures Group, Inc.
Health Service Partners, Inc.
Health Services (Delaware), Inc.
Health Services Merger, Inc.
Health to You, LLC
Healthcare Oklahoma, Inc.
Healthcare Sales National Management Services Group, LLC
Healthcare Technology Assessment Corporation
Healthco, LLC
HealthCoast Physician Group, LLC
Healthnet of Kentucky, LLC
HealthONE of Denver, Inc.
Healthserv Acquisition, LLC
Healthtrust MOB Tennessee, LLC
Healthtrust Purchasing Group, L.P.
Healthtrust Utah Management Services, Inc.
Healthtrust, Inc. The Hospital Company
Healthtrust, Inc. The Hospital Company
Healthtrust-Europe Company Limited
Healthtrust-Europe LLP
Heart Specialist of North Texas, PLLC
Heartcare of Texas, Ltd.
Hearthstone Home Health, Inc.
Heartland Womens Group at Wesley, LLC
Heathrow Imaging, LLC
Heathrow Internal Medicine, LLC
HEI Missouri, Inc.
Hendersonville Hospital Corporation
Hendersonville Hospitalist Services, Inc.
Hendersonville OB/GYN, LLC
Hendersonville ODC, LLC
Hendersonville Primary Care, LLC
Henrico Doctors Family Medicine, LLC
Henrico Doctors Hospital Forest Campus Property, LLC
Henrico Doctors Neurology Associates, LLC
Henrico Doctors OB GYN Specialists, LLC
Henrico Radiation Oncology, LLC
Henrico Surgical Specialists, LLC
Heritage Family Care, LLC
Heritage Hospital, Inc.
Heritage Medical Care, LLC
Hermitage Primary Care, LLC
HHNC, LLC
Hidalgo County Family Practitioners, PLLC
Hidden Lakes Health Center, PLLC
Highway 50 Real Estate, LLC
HM Acquisition, LLC
HM OMCOS, LLC
Homecare North, Inc.
Hometrust Management Services, Inc.
Horizon Orthopedics, LLC
Horizon Surgical, LLC
Hospital Corp., LLC
Hospital Corporation of America
Hospital Corporation of Lake Worth
Hospital Corporation of Tennessee
Hospital Corporation of Utah
Hospital Development Properties, Inc.
Hospital Partners Merger, LLC
Hospital Realty Corporation
Hospitalists at Centennial Medical Center, LLC
Hospitalists at Fairview Park, LLC
Hospitalists at Greenview Regional Hospital, LLC
Hospitalists at Horizon Medical Center, LLC
Hospitalists at Parkridge, LLC
Hospitalists at StoneCrest, LLC
Hospitalists of the Wabash Valley, LLC
Houston Healthcare Holdings, Inc.
Houston Northwest Surgical Partners, Inc.
Houston Pediatric Specialty Group, PLLC
Houston Womans Hospital Partner, LLC
HPG Energy, L.P.
HPG GP, LLC
HSCC LLP
HSS Holdco, LLC
HSS Systems VA, LLC
HSS Systems, LLC
HSS Virginia, L.P.
HTI Gulf Coast, Inc.
HTI Health Services of North Carolina, Inc.
HTI Health Services, Inc.
HTI Hospital Holdings, Inc.
HTI Memorial Hospital Corporation
HTI MOB, LLC
HTI Physician Services of Utah, Inc.
Hughston Hospital Services, LLC
HWCA, PLLC
Hyperbaric and Wound Care Services of Ocala, LLC
Idaho Physician Services, Inc.
Illinois Psychiatric Hospital Company, Inc.
Imaging Centers of California, L.P.
Imaging Services of Appomattox, LLC
Imaging Services of Jacksonville, LLC
Imaging Services of Louisiana Manager, LLC
Imaging Services of Louisiana, LLC
Imaging Services of Orlando, LLC
Imaging Services of Richmond, LLC
Imaging Services of Roanoke, LLC
Imaging Services of West Boynton, LLC
IMX Holdings, LLC
Indemed Managed Services Limited
Independence Neurosurgery Services, LLC
Independence Regional Medical Group, LLC
Independence Surgicare, Inc.
Indian Path Hospital, Inc.
Indian Path Rehabilitation Center, Inc.
Indian Path, LLC
Indianapolis Hospital Partner, LLC
Infectious Diseases Consultants of Southwest Georgia, LLC
Institute of Advanced ENT Surgery, LLC
Integrated Regional Lab, LLC
Integrated Regional Laboratories Pathology Services, LLC
Integrated Regional Laboratories, LLP
Internal Medicine Associates of Huntsville, PLLC
Internal Medicine Associates of Southern Hills, LLC
Internal Medicine of Blacksburg, LLC
Internal Medicine Services of Osceola, LLC
J. M. Garcia, M.D., PLLC
Jackson County Medical Group, LLC
Jacksonville Multispecialty Services, LLC
Jacksonville Specialists, LLC
Jacksonville Surgery Center, Ltd.
James River Internists, LLC
JCSH, LLC
JCSHLP, LLC
Jeffersonville MediVision, Inc.
JFK Internal Medicine Faculty Practice, LLC
JFK Medical Center Limited Partnership
JFK Occupational Medicine, LLC
JFK Real Properties, Ltd.
John Randolph Family Practice, LLC
John Randolph OB/GYN, LLC
John Randolph Surgeons, LLC
Johns Creek Physician Services Corporation
Johnson County Neurology, LLC
Johnson County Surgery Center, L.P.
Johnson County Surgicenter, L.L.C.
Jordan Family Health, L.L.C.
Jupiter EFL Imaging Center, LLC
JV Investor, LLC
Kansas City Neurology Associates, LLC
Kansas City Perfusion Services, Inc.
Kansas City Pulmonology Practice, LLC
Kansas City Vascular & General Surgery Group, LLC
Kansas Healthserv, LLC
Kansas Pulmonary and Sleep Specialists, LLC
Kansas Trauma and Critical Care Specialists, LLC
Kathy L. Summers, M.D., PLLC
Katy Medical Center, Inc.
Kendall Healthcare Group, Ltd.
Kendall Regional Medical Center, LLC
Kendall Vascular Surgery, LLC
Kennedale Primary Care PLLC
Kentucky Cardiopulmonary Interpretation Services, LLC
Kingsley Family Care, LLC
Kingwood Multi-Specialty Group, PLLC
Kingwood Surgery Center, LLC
Kissimmee Surgicare, Ltd.
KPH-Consolidation, Inc.
Kyle Primary Care, PLLC
L E Corporation
La Tour Finance Limited Partnership
LAD Imaging, LLC
Lafayette OB Hospitalists, LLC
Lafayette Pediatric Neurology Center, LLC
Lafayette Surgery Center Limited Partnership
Lafayette Surgicare, Inc.
Lafayette Urogynecology & Urology Center, LLC
Lake City Imaging, LLC
Lake City Regional Medical Group, LLC
Lake Nona Hospital, Inc.
Lakeland Medical Center, LLC
Lakeside Radiology, LLC
Lakeside Womens Services, LLC
Lakeview Hospital Physician Services, LLC
Lakeview Internal Medicine, LLC
Lakeview Medical Center, LLC
Lakeview Multispecialty Group, LLC
Lakeview Neurosurgery Clinic, LLC
Lakeview Professional Billing, LLC
Lakeview Urology & General Surgery, LLC
Laredo Medco, LLC
Largo Cardiology, LLC
Largo Medical Center, Inc.
Largo Physician Group, LLC
Las Colinas Primary Care, PLLC
Las Colinas Surgery Center, Ltd.
Las Encinas Hospital
Las Vegas ASC, LLC
Las Vegas Physical Therapy, Inc.
Las Vegas Surgical Center, a Nevada limited partnership
Las Vegas Surgicare, Inc.
Las Vegas Surgicare, Ltd.
Laurel Grove Surgery Center, LLC
Lawnwood Cardiovascular Surgery, LLC
Lawnwood Healthcare Specialists, LLC
Lawnwood Medical Center, Inc.
Lawnwood Pavilion Physician Services, LLC
Layton Family Practice, LLC
Leaders in Oncology Care Limited
Leaders in Oncology Care Network Limited
Leadership Healthcare Holdings II L.P., L.L.P.
Leadership Healthcare Holdings L.P., L.L.P.
Lees Summit Family Care, LLC
Lees Summit Urgent Care, LLC
Leslie Cohan, M.D., PLLC
Lewis Gale Physicians Specialists, LLC
Lewis-Gale Hospital, Incorporated
Lewis-Gale Medical Center, LLC
Lewis-Gale Physicians, LLC
LGMC Ambulatory Surgery Center, LLC
Live Oak Immediate Care Center, LLC
LOC @ The London Bridge Hospital LLP
LOC @ The Wellington Hospital LLP
LOC Partnership LLP
London Back Limited
London Oncology Clinic LLP
London Radiography & Radiotherapy Services Limited
Lone Peak General Surgery, LLC
Longview Regional Physician Hospital Organization, Inc.
Lookout Valley Medical Center, LLC
Lorain County Surgery Center, Ltd.
Los Gatos Surgical Center, a California Limited Partnership
Los Robles Regional Medical Center
Los Robles SurgiCenter, LLC
Loudoun Surgery Center, L.P.
Loudoun Surgery Center, LLC
Louisiana Psychiatric Company, Inc.
Low Country Health Services, Inc. of the Southeast
M & M of Ocala, Inc.
M. Jamshidi, D.O., PLLC
Macon Healthcare, LLC
Macon Northside Health Group, LLC
Macon Northside Hospital, LLC
Madison Behavioral Health, LLC
Madison Internal Medicine, LLC
Mainland Family Medicine, PLLC
Mainland Multi-Specialty Group, PLLC
Mainland Primary Care Physicians, PLLC
Management Services Holdings, Inc.
Management Services LP, LLC
Management Services of the Virginias, Inc.
Manatee Surgicare, Ltd.
Marietta Outpatient Medical Building, Inc.
Marietta Outpatient Surgery, Ltd.
Marietta Surgical Center, Inc.
Marion Community Hospital, Inc.
Mark Gottesman, M.D., PLLC
Mary Alice Cowan, M.D., PLLC
Maternal Fetal Medicine Specialists of Corpus Christi, PLLC
Maternal Fetal Services of Utah, LLC
Mayhill Cancer Center, LLC
MCA Investment Company
McKinney Surgeons, PLLC
McMinnville Cardiology, LLC
Mechanicsville Imaging, LLC
Mecklenburg Surgical Land Development, Ltd.
Med City Dallas Outpatient Surgery Center, L.P.
Med Corp., Inc.
Med Group Southern Hills Hospitalists, LLC
Med-Center Hosp./Houston, Inc.
MedFirst, Inc.
Medi Flight of Oklahoma, LLC
Medical Arts Hospital of Texarkana, Inc.
Medical Associates of Ocala, LLC
Medical Care America, LLC
Medical Care Financial Services Corp.
Medical Care Real Estate Finance, Inc.
Medical Care Surgery Center, Inc.
Medical Center West, Inc.
Medical Center Imaging, Inc.
Medical Center of Baton Rouge, Inc.
Medical Center of Plano Partner, LLC
Medical Center of Port St. Lucie, Inc.
Medical Center of Santa Rosa, Inc.
Medical Centers of Oklahoma, LLC
Medical City Dallas Hospital, Inc.
Medical City Dallas Partner, LLC
Medical Corporation of America
Medical Group Dickson, Inc.
Medical Group Southern Hills of Brentwood, LLC
Medical Group Southern Hills of Nolensville, LLC
Medical Group Stonecrest FP, Inc.
Medical Group Stonecrest Pulmonology, LLC
Medical Group StoneCrest, Inc.
Medical Group Summit, Inc.
Medical Imaging Center of Ocala [General Partnership]
Medical Imaging, Inc.
Medical Office Buildings of Kansas, LLC
Medical Oncology Associates, LLC
Medical Partners of North Florida, LLC
Medical Plaza Ambulatory Surgery Center Associates, L.P.
Medical Plaza MRI, L.P.
Medical Specialties, Inc.
MediPurchase, Inc.
MediStone Healthcare Ventures, Inc.
MediVision of Mecklenburg County, Inc.
MediVision of Tampa, Inc.
MediVision, Inc.
Med-Point of New Hampshire, Inc.
Memorial Family Practice Associates, LLC
Memorial Health Primary Care at St. Johns Bluff, LLC
Memorial Healthcare Group, Inc.
Memorial Neurosurgery Group, LLC
Memorial Surgicare, Ltd.
Menorah Medical Group, LLC
Menorah Urgent Care, LLC
Mercy ASC, LLC
Metairie Primary Care Associates, LLC
Methodist Healthcare System of San Antonio, Ltd., L.L.P.
Methodist Medical Center ASC, L.P.
Metroplex Surgicenters, Inc.
Metropolitan Multispecialty Physicians Group, Inc.
MGH Medical, Inc.
MHS Partnership Holdings JSC, Inc.
MHS Partnership Holdings SDS, Inc.
MHS SC Partner, L.L.C.
MHS Surgery Centers, L.P.
Miami Beach EFL Imaging Center, LLC
Miami Beach Healthcare Group, Ltd.
Miami Lakes Surgery Center, Ltd.
MidAmerica Oncology, LLC
Mid-America Surgery Center, LLC
Mid-America Surgery Institute, LLC
Mid-Cities Surgi-Center, Inc.
Mid-Continent Health Services, Inc.
Middle Georgia Hospital, LLC
Middle Tennessee Neurology LLC
Mid-State Physicians, LLC
Mid-States Financial Services, Inc.
Midtown Diagnostics, LLC
Midwest Cardiology Specialists, LLC
Midwest Cardiovascular & Thoracic Surgery, LLC
Midwest Cardiovascular and Thoracic Surgeons of Kansas, LLC
Midwest Division ACH, LLC
Midwest Division CMC, LLC
Midwest Division LRHC, LLC
Midwest Division LSH, LLC
Midwest Division MCI, LLC
Midwest Division MII, LLC
Midwest Division MMC, LLC
Midwest Division OPRMC, LLC
Midwest Division PFC, LLC
Midwest Division RBH, LLC
Midwest Division RMC, LLC
Midwest Division RPC, LLC
Midwest Division TLM, LLC
Midwest Division Spine Care, LLC
Midwest Division, Inc.
Midwest Doctors Group, LLC
Midwest Holdings, Inc.
Midwest Infectious Disease Specialists, LLC
Midwest Medicine Associates, LLC
Midwest Metropolitan Physicians Group, LLC
Midwest Oncology Associates, LLC
Midwest Specialty Care Lees Summit, LLC
Midwest Trauma Services, LLC
Midwest Womens Healthcare Specialists, LLC
Mill Creek Outpatient Services, LLC
Millenium Health Care of Oklahoma, Inc.
Mira Healthcare, LLC
Mission Bay Memorial Hospital, Inc.
Missouri Healthcare System, L.P.
MMC Sleep Lab Management, LLC
Mobile Corps., Inc.
Montgomery Cancer Center, LLC
Montgomery Hospitalists, LLC
Montgomery Regional Hospital, Inc.
Montgomery Surgery Associates, LLC
MOSC Sports Medicine, Inc.
Mountain Division, Inc.
Mountain View Hospital, Inc.
Mountain View Medical Office Building, Ltd.
Mountain View MRI Associates, Ltd.
Mountain West Surgery Center, LLC
MountainStar Brigham General Surgery, LLC
Mountainstar Brigham OBGYN, LLC
MountainStar Canyon Surgical Clinic, LLC
MountainStar Cardiology Ogden Regional, LLC
MountainStar Cardiology St. Marks, LLC
Mountainstar Cardiovascular Services, LLC
MountainStar Medical Group Brigham City Community Hospital, LLC
MountainStar Medical Group Ogden Regional Medical Center, LLC
MountainStar Medical Group St. Marks Hospital, LLC
MountainStar Medical Group Neurosurgery St. Marks, LLC
Mountainstar Ogden Pediatrics, LLC
MOVCO, Inc.
Movement Disorders of North Texas, PLLC
MRT&C, Inc.
MVH Professional Services, LLC
Nashville Psychiatric Company, Inc.
Nashville Shared Services General Partnership
Natchez Surgery Center, LLC
National Association of Senior Friends
National Patient Account Services, Inc.
Navarre Family Care, LLC
Navarro Memorial Hospital, Inc.
Network Management Services, Inc.
Network MS of Florida, Inc.
Neuro Affiliates Company
Neuro Texas, PLLC
Neuro-Hospitalist of Clear Lake, PLLC
Neurological Eye Specialists of North Texas, PLLC
Neurological Specialists of McKinney, PLLC
Neurological Specialists, PLLC
Neurology Associates of Hendersonville, LLC
Neurology Associates of Kansas, LLC
Neuroscience Associates of Kansas City, LLC
Neurosurgical Specialists of El Paso, PLLC
Neurosurgical Specialists of North Texas, PLLC
Nevada Surgery Center of Southern Hills, L.P.
Nevada Surgicare of Southern Hills, LLC
New Port Richey Hospital, Inc.
New Port Richey Surgery Center, Ltd.
New Rose Holding Company, Inc.
Niceville Family Practice, LLC
North Augusta Imaging Management, LLC
North Augusta Imaging Services, LLC
North Augusta Rehab Health Center, LLC
North Austin Maternal Fetal Medicine, PLLC
North Austin Plastic Surgery Associates, PLLC
North Austin Surgery Center, L.P.
North Brandon Imaging, LLC
North Central Florida Health System, Inc.
North Central Methodist ASC, L.P.
North Charleston Diagnostic Imaging Center, LLC
North Florida Cancer Center Lake City, LLC
North Florida Cancer Center Live Oak, LLC
North Florida Cancer Center Tallahassee, LLC
North Florida Division I, Inc.
North Florida Division Practice, Inc.
North Florida GI Center GP, Inc.
North Florida GI Center, Ltd.
North Florida Immediate Care Center, Inc.
North Florida Neurosurgery, LLC
North Florida Outpatient Imaging Center, Ltd.
North Florida Physician Services, Inc.
North Florida Physicians, LLC
North Florida Radiation Oncology, LLC
North Florida Regional Freestanding Surgery Center, L.P.
North Florida Regional Investments, Inc.
North Florida Regional Medical Center, Inc.
North Florida Regional Otolaryngology, LLC
North Florida Rehab Investments, LLC
North Florida Surgical Associates, LLC
North Georgia Primary Care Group, LLC
North Hills Cardiac Catheterization Center, L.P.
North Hills Catheterization Lab, LLC
North Hills Primary Care, PLLC
North Hills Surgicare, L.P.
North Miami Beach Surgery Center Limited Partnership
North Miami Beach Surgical Center, LLC
North Nashville Family Health Center, LLC
North Palm Beach County Surgery Center, LLC
North River Physician Network, LLC
North Shore Specialists of Texas, PLLC
North Tampa Imaging, LLC
North Texas Cardiology, PLLC
North Texas Division, Inc.
North Texas General, L.P.
North Texas Geriatrics, PLLC
North Texas Heart Surgery Center, PLLC
North Texas Internal Medicine Specialists, PLLC
North Texas Medical Center, Inc.
North Texas Neuro Stroke OP, PLLC
North Texas of Hope, PLLC
North Texas Pulmonary Critical Care, PLLC
North Texas Sports and Orthopedics Center, PLLC
North Texas Stroke Center, PLLC
North Transfer Center, LLC
Northeast Florida Cancer Services, LLC
Northeast Methodist Surgicare, Ltd.
Northeast PHO, Inc.
Northern Utah Healthcare Corporation
Northern Utah Healthcare Imaging Holdco, LLC
Northern Utah Imaging, LLC
Northern Virginia Community Hospital, LLC
Northern Virginia Hospital Corporation
Northlake Medical Center, LLC
Northlake MultiSpecialty Associates, LLC
Northlake Physician Practice Network, Inc.
Northlake Surgical Center, L.P.
Northlake Surgicare, Inc.
Northside MRI, Inc.
Northwest Fla. Home Health Agency, Inc.
Northwest Florida Cardiology, LLC
Northwest Florida Healthcare Systems, Inc.
Northwest Florida Multispecialty Physicians, LLC
Northwest Florida Primary Care, LLC
Northwest Medical Center, Inc.
Notami (Opelousas), Inc.
Notami Hospitals of Florida, Inc.
Notami Hospitals of Louisiana, Inc.
Notami Hospitals of Missouri, Inc.
Notami Hospitals, LLC
Notami, LLC
Notco, LLC
NPAS Affiliate, Inc.
NPAS Solutions, LLC
NPAS, Inc.
NTGP, LLC
NTMC Ambulatory Surgery Center, L.P.
NTMC Management Company
NTMC Venture, Inc.
Nuclear Diagnosis, Inc.
Oak Hill Acquisition, Inc.
Oak Hill Family Care, LLC
Oak Hill Hospitalists, LLC
Oakwood Surgery Center, Ltd., LLP
OB Hospitalists of Womans Hospital, PLLC
OB/Gyn Associates of Denton, PLLC
OB/GYN of Brownsville, PLLC
Ocala Health Imaging Services, LLC
Ocala Health Primary Care, LLC
Ocala Health Surgical Group, LLC
Ocala Regional Outpatient Services, Inc.
Ocala Stereotactic Radiosurgery Partner, LLC
Ocala Stereotactic Radiosurgery, LLC
Occupational and Family Medicine of South Texas
Occupational Health Services of PRH, LLC
Odyssey Project Limited
Ogden Imaging, LLC
Ogden Internal Medicine & Urology, LLC
Ogden Regional Health Plan, Inc.
Ogden Regional Medical Center Professional Billing, LLC
Ogden Senior Center, LLC
Ogden Tomotherapy Manager, LLC
Ogden Tomotherapy, LLC
OHH Imaging Services, LLC
Okaloosa Hospital, Inc.
Okeechobee Hospital, Inc.
Oklahoma Outpatient Surgery Limited Partnership
Oklahoma Physicians Medical Specialties LLC
Oklahoma Physicians Obstetrics and Gynecology LLC
Oklahoma Physicians Primary Care LLC
Oklahoma Physicians Surgical Specialties LLC
Oklahoma Surgicare, Inc.
Oklahoma Transplant Physicians, LLC
Old Fort Village, LLC
Oncology Services of Corpus Christi Manager, LLC
Oncology Services of Corpus Christi, LLC
OneSourceMed, Inc.
OPRMC-HBP, LLC
Orange Grove Surgical Associates, LLC
Orange Park Hospitalists, LLC
Orange Park Medical Center, Inc.
Orlando Outpatient Surgical Center, Inc.
Orlando Outpatient Surgical Center, Ltd.
Orlando Surgicare, Ltd.
Orthopaedic Specialty Associates, L.P.
Orthopaedic Sports Specialty Associates, Inc.
Orthopedic Hospital, Ltd.
Orthopedics Specialists, LLC
Osceola Neurological Associates, LLC
Osceola Physician Network, LLC
Osceola Regional Hospital, Inc.
Osceola Regional Hospitalists, LLC
Osceola Surgical Associates, LLC
Outpatient Cardiovascular Center of Central Florida, LLC
Outpatient GP, LLC
Outpatient LP, LLC
Outpatient Services LAD, LLC
Outpatient Services Holdings, Inc.
Outpatient Surgical Services, Ltd.
Outpatient Womens and Childrens Surgery Center, Ltd.
Overland Park Cardiovascular, Inc.
Overland Park Medical Specialists, LLC
Overland Park Orthopedics, LLC
Overland Park Surgical Specialties, LLC
Ozarks Medical Services, Inc.
P&L Associates
Palm Beach EFL Imaging Center, LLC
Palm Beach General Surgery, LLC
Palm Beach Healthcare System, Inc.
Palm Beach Hospitalists Program, LLC
Palmer Medical Center, LLC
Palms West Gastroenterology, LLC
Palms West Hospital Limited Partnership
Palms West Pediatric Neurosurgery, Inc.
Palms West Surgery Center, Ltd.
Palmyra Brain & Spine Center, LLC
Palmyra Park GP, Inc.
Palmyra Park Hospital, Inc.
Palmyra Professional Fees, LLC
Paragon of Texas Health Properties, Inc.
Paragon Physicians Hospital Organization of South Texas, Inc.
Paragon SDS, Inc.
Paragon Surgery Centers of Texas, Inc.
Paragon WSC, Inc.
Paragyn Surgical, LLC
Parallon Business Solutions, LLC
Park Central Surgical Center, Ltd.
Park South Imaging Center, Ltd.
Park View Insurance Company
Parkersburg SJ Holdings, Inc.
Parkland Hospitalists Program, LLC
Parkland Oncology, LLC
Parkland Physician Services, Inc.
Parkridge East Specialty Associates, LLC
Parkridge Hospitalists, Inc.
Parkridge Medical Associates, LLC
Parkridge Medical Center, Inc.
Parkridge Professionals, Inc.
Parkside Surgery Center, Inc.
Parkway Cardiac Center, Ltd.
Parkway Hospital, Inc.
Parkway Surgery Services, Ltd.
Parthenon Insurance Company, Limited
Pasadena Bayshore Hospital, Inc.
Patients First Neonatology, LLC
Patients First Neurology, LLC
Pearland Partner, LLC
Pediatric Cardiac Intensivists of North Texas, PLLC
Pediatric Hospitalists of Conroe, PLLC
Pediatric Intensivist Group, LLC
Pediatric Intensivists of El Paso, PLLC
Pediatric Specialists for CJW, LLC
Pediatric Specialists of Clear Lake, PLLC
Pediatric Specialty Clinic LLC
Pediatric Surgicare, Inc.
Pensacola Primary Care, Inc.
PET CT LLP
Physician Associates of Corporate Woods, LLC
Physicians Ambulatory Surgery Center, LLC
Pinellas Medical, LLC
Pinellas Surgery Center, Ltd.
Pinnacle Physician Network, LLC
Pioneer Medical, LLC
Plains Healthcare System, Inc.
Plano Ambulatory Surgery Associates, L.P.
Plano Heart Institute, L.P.
Plano Heart Management, LLC
Plano Urology, PLLC
Plantation General Hospital, L.P.
Plaza Primary Care, PLLC
Plaza Transplant Center, PLLC
PMM, Inc.
POH Holdings, LLC
Port St. Lucie Surgery Center, Ltd.
Portland Primary Care, LLC
Portland Surgical, LLC
Portsmouth Regional Ambulatory Surgery Center, LLC
Precise Imaging, Inc.
Preferred Hospitals, Inc.
Preferred Works WC, LLC
Premier Medical Management, Ltd.
PRH Oncology, LLC
Primary Care Acquisition, Inc.
Primary Care Medical Associates, Inc.
Primary Care of West End, LLC
Primary Care Plano, PLLC
Primary Care South, PLLC
Primary Care West, PLLC
Primary Health Group, Inc.
Primary Health Network of South Texas
Primary Medical Management, Inc.
Pulaski Community Hospital, Inc.
Pulaski Radiologists, LLC
Pulaski Urology, LLC
Pulmonary Medicine of Dickson, LLC
Putnam Hospital, Inc.
Quantum/Bellaire Imaging, Ltd.
Quick Care Centers, LLC
Quivira Internal Medicine, Inc.
Radford Family Medicine, LLC
Radiation Oncology Manager, LLC
Raleigh Community Medical Office Building, Ltd.
Rapides Healthcare System, L.L.C.
Rapides Regional Physician Group Primary Care, LLC
Rapides Regional Physician Group Specialty Care, LLC
Rapides Regional Physician Group, LLC
Rapides Surgery Center, LLC
Raulerson Gastroenterology, LLC
Raulerson GYN, LLC
Raulerson Primary Care, LLC
Raymore Medical Group, LLC
RCH, LLC
Red Rock at Maryland Parkway, LLC
Red Rock at Smoke Ranch, LLC
Red Rock Holdco, LLC
Redmond Anesthesia Services, LLC
Redmond Hospital Services, LLC
Redmond Neurosurgery, LLC
Redmond Park Health Services, Inc.
Redmond Park Hospital, LLC
Redmond Physician Practice Company
Redmond Physician Practice Company II
Redmond Physician Practice Company III
Redmond Physician Practice XI, LLC
Regional Hospital Healthcare Partners, LLC
Research Cardiology Associates, LLC
Research Family Physicians, LLC
Research Internal Medicine, LLC
Research Multi-Specialty Physicians Group, LLC
Research Neurology Associates, LLC
Research Neuroscience Institute, LLC
Research Psychiatric 1500, LLC
Reston Hospital Center, LLC
Reston Hospitalists, LLC
Reston Surgery Center, L.P.
Retreat Cardiology, LLC
Retreat Hospital, LLC
Retreat Internal Medicine, LLC
Retreat Surgical Associates, LLC
RHA MSO, LLC
Rhodes Limited-Liability Company
Richmond Imaging Employer Corp.
Richmond Multi-Specialty, LLC
Richmond Pediatric Surgeons, LLC
Rim Building Partners, L.P.
Rio Grande Healthcare MSO, Inc.
Rio Grande NP, Inc.
Rio Grande Regional Hospital, Inc.
Rio Grande Regional Investments, Inc.
Rio Grande Surgery Center Associates, L.P.
Rio Grande Valley Cardiology, PLLC
Riverside CyberKnife Manager, LLC
Riverside CyberKnife, LLC
Riverside Healthcare System, L.P.
Riverside Holdings, Inc.
Riverside Hospital, Inc.
Riverside Imaging, LLC
Riverside Surgicenter, L.P.
RMC Pulmonary, LLC
RMC HBP, LLC
RMC Transplant Physicians, LLC
RMCA Professionals Mgmt, LLC
Roanoke Imaging, LLC
Roanoke Neurosurgery, LLC
Roanoke Surgery Center, L.P.
Roanoke Valley Gynecology, LLC
Robotic Radiosurgery LLP
Rockbridge Primary Care, LLC
Rome Imaging Center Limited Partnership
Roodlane Medical Limited
Rosewood Medical Center, Inc.
Rosewood Professional Building, Ltd.
Round Rock Hospital, Inc.
Royal Oaks Surgery Center, L.P.
S. Faro, M.D. & C. Faro, M.D., PLLC
S.A. Medical Center, Inc.
Sahara Outpatient Surgery Center, Ltd.
Salem Hospitalists, LLC
Salem Surgery Center, Limited Partnership
Salt Lake City Surgicare, Inc.
Samaritan, LLC
San Antonio Division, Inc.
San Antonio Regional Hospital, Inc.
San Bernardino Imaging, LLC
San Joaquin Surgical Center, Inc.
San Jose Healthcare System, LP
San Jose Hospital, L.P.
San Jose Medical Center, LLC
San Jose Pathology Outreach, LLC
San Jose, LLC
Sante Fe Family Practitioners, PLLC
SAPN, LLC
Sarah Cannon Research Institute, LLC
Sarah Cannon Research UK Limited
Sarasota Doctors Hospital, Inc.
SCRI Global Services Limited
SCRI Holdings, LLC
SCRI Services, LLC
Selma Medical Center Hospital, Inc.
Shadow Mountain Family Medicine, LLC
Shelbyville Cardiology, LLC
Short Pump Imaging, LLC
Signal Mountain Primary Care, LLC
Sino American Healthcare Consulting, LLC
SJMC, LLC
Skyline Medical Group, LLC
Skyline Neuroscience Associates, LLC
Skyline Primary Care, LLC
Skyline Rehab Associates, LLC
Skyline Riverside Medical Group, LLC
SMCH, LLC
Smith Laboratories, Inc.
South Atlantic Division, Inc.
South Austin Surgery Center, Ltd.
South Bay Imaging, LLC
South Brandon Imaging, LLC
South Broward Practices, Inc.
South Carolina Imaging Employer Corp.
South Florida Division Practice, Inc.
South Texas Surgicare, Inc.
South Transfer Center, LLC
South Valley Hospital, L.P.
Southeast Surgical Solutions, LLC
Southern Hills Medical Center, LLC
Southern Hills Neurology Consultants, LLC
Southern Hills Orthopaedic Consultants, LLC
Southern Kentucky Medicine Associates, LLC
Southern Kentucky Neurosurgical Associates, LLC
Southern Kentucky Urology, LLC
Southern Texas Physicians Network
Southern Urology Associates, LLC
Southtown Womens Clinic, LLC
Southwest Florida Health System, Inc.
Southwest Florida Regional Medical Center, Inc.
Southwest Medical Center Family Practice, LLC
Southwest Medical Center Multi-Specialty Group, LLC
Southwest Medical Center Surgical Group, LLC
Southwest Surgical Clinic, Inc.
Southwest Virginia Fertility Center, LLC
Southwest Virginia Orthopedics and Spine, LLC
Space Coast Surgical Center, Ltd.
Specialist Group at Centennial, LLC
Specialty Associates of West Houston, PLLC
Specialty Hospitalists at Ft. Walton Beach, LLC
Specialty Physicians of Northern Virginia, LLC
Specialty Surgicare of Las Vegas, LP
Spinal Disorder and Pain Treatment Institute, LLC
Spotsylvania Condominium Property, LLC
Spotsylvania Medical Center, Inc.
Spotsylvania Multi-Specialty Group, LLC
Spotsylvania Regional Surgery Center, LLC
Spring Branch Family Practitioners, PLLC
Spring Branch Medical Center, Inc.
Spring Hill Hospital, Inc.
Spring Hill Imaging, LLC
Spring Hill Physicians, LLC
Springview KY, LLC
SRS Acquisition, Inc.
St. Davids Healthcare Partnership, L.P., LLP
St. Davids Cardiology, PLLC
St. Davids Neurology, PLLC
St. Davids OB Hospitalist, PLLC
St. Lucie Hospitalists, LLC
St. Lucie Medical Center Hyperbarics, LLC
St. Lucie Medical Center Walk-In Clinic, LLC
St. Lucie Medical Specialists, LLC
St. Lucie West Primary Care, LLC
St. Marks Ambulatory Surgery Associates, L.P.
St. Marks Gynecology Oncology Care, LLC
St. Marks Investments, Inc.
St. Marks Lone Peak Hospital, Inc.
St. Marks Physicians, Inc.
St. Marks Professional Services, LLC
St. Marks South Jordan Family Practice, LLC
St. Martins Healthcare Limited
St. Martins Ltd.
St. Martins Medical Services Limited
St. Petersburg General Surgery, LLC
Stafford Imaging, LLC
Statland Medical Group, LLC
Stereotactic Radiosurgery Systems of Brandon, LLC
Sterling Primary Care Associates, LLC
Stonecrest Medical Group Family Practice of Murfreesboro, LLC
Stonecrest Medical Group SC Murfreesboro Family Practice, LLC
Stones River Hospital, LLC
STPN Manager, LLC
Suburban Medical Center at Hoffman Estates, Inc.
Sugar Land Surgery Center, Ltd.
Sullins Surgical Center, Inc.
Summit Convenient Care at Lebanon, LLC
Summit General Partner, Inc.
Summit Heart, LLC
Summit Medical Assoc., LLC
Summit Outpatient Diagnostic Center, LLC
Summit Research Solutions, LLC
Summit Surgery Center, L.P.
Summit Surgical Associates, LLC
Summit Walk-in Clinic, LLC
Sun Bay Medical Office Building, Inc.
Sun City Hospital, Inc.
Sun City Imaging, LLC
Sun Towers/Vista Hills Holding Co.
Sun-Med, LLC
Sunrise Anesthesia Services, LLC
Sunrise Flamingo Surgery Center, Limited Partnership
Sunrise Hospital and Medical Center, LLC
Sunrise Mountainview Hospital, Inc.
Sunrise Neuro Sciences, LLC
Sunrise Outpatient Services, Inc.
Sunrise Physician Services, LLC
Sunrise Trauma Services, LLC
Surgery Center of Atlantis, LLC
Surgery Center of Aventura, Ltd.
Surgery Center of Chattanooga, L.P.
Surgery Center of Ft. Pierce, Ltd
Surgery Center of Greenview, L.P.
Surgery Center of Independence, L.P.
Surgery Center of Overland Park, L.P.
Surgery Center of Port Charlotte, Ltd.
Surgery Center of Rome, L.P.
Surgical Associates of Southwest Virginia, LLC
Surgical Associates of the New River Valley, LLC
Surgical Center of Irving, Inc.
Surgical Facility of West Houston, L.P.
Surgical Park Center, Ltd.
Surgical Specialists of Clear Lake, PLLC
Surgical Specialists of Corpus Christi, PLLC
Surgicare America Winter Park, Inc.
Surgicare Merger Company of Louisiana
Surgicare of Altamonte Springs, Inc.
Surgicare of Arlington, LLC
Surgicare of Ashburn, LLC
Surgicare of Augusta, Inc.
Surgicare of Aventura, LLC
Surgicare of Bayonet Point, Inc.
Surgicare of Bountiful, LLC
Surgicare of Brandon, Inc.
Surgicare of Buckhead, LLC
Surgicare of Central Florida, Inc.
Surgicare of Central San Antonio, Inc.
Surgicare of Chattanooga, LLC
Surgicare of Chippenham, LLC
Surgicare of Countryside, Inc.
Surgicare of Denton, Inc.
Surgicare of Dickson, LLC
Surgicare of Eastside, LLC
Surgicare of Evans, Inc.
Surgicare of Fairfax, Inc.
Surgicare of Florida, Inc.
Surgicare of Flower Mound, Inc.
Surgicare of Fort Worth Co-GP, LLC
Surgicare of Fort Worth, Inc.
Surgicare of Ft. Pierce, Inc.
Surgicare of Good Samaritan, LLC
Surgicare of Gramercy, Inc.
Surgicare of Greenview, Inc.
Surgicare of Hanover, Inc.
Surgicare of Houston Womens, Inc.
Surgicare of Indianapolis, Inc.
Surgicare of Kansas City, LLC
Surgicare of Kingwood, LLC
Surgicare of Kissimmee, Inc.
Surgicare of Lakeview, Inc.
Surgicare of Las Vegas, Inc.
Surgicare of Laurel Grove, LLC
Surgicare of Lorain County, Inc.
Surgicare of Los Gatos, Inc.
Surgicare of Los Robles, LLC
Surgicare of Madison, Inc.
Surgicare of Manatee, Inc.
Surgicare of McKinney, Inc.
Surgicare of Medical City Dallas, LLC
Surgicare of Merritt Island, Inc.
Surgicare of Miami Lakes, LLC
Surgicare of Mountain West, LLC
Surgicare of Natchez, LLC
Surgicare of New Port Richey, Inc.
Surgicare of North Austin, LLC
Surgicare of North San Antonio, Inc.
Surgicare of Northeast San Antonio, Inc.
Surgicare of Northwest Oklahoma Limited Partnership
Surgicare of Orange Park, Inc.
Surgicare of Orange Park, Ltd.
Surgicare of Orlando, Inc.
Surgicare of Overland Park, LLC
Surgicare of Palms West, LLC
Surgicare of Pasadena, Inc.
Surgicare of Pinellas, Inc.
Surgicare of Plano, Inc.
Surgicare of Plantation, Inc.
Surgicare of Port Charlotte, LLC
Surgicare of Port St. Lucie, Inc.
Surgicare of Reston, Inc.
Surgicare of Riverside, LLC
Surgicare of Roanoke, LLC
Surgicare of Rome, Inc.
Surgicare of Round Rock, Inc.
Surgicare of Royal Oaks, LLC
Surgicare of Salem, LLC
Surgicare of South Austin, Inc.
Surgicare of Southern Hills, Inc.
Surgicare of Southwest Houston, LLC
Surgicare of Spotsylvania, LLC
Surgicare of St. Andrews, Inc.
Surgicare of St. Andrews, Ltd.
Surgicare of Stuart, Inc.
Surgicare of Sugar Land, Inc.
Surgicare of Tallahassee, Inc.
Surgicare of Terre Haute, LLC
Surgicare of Travis Center, Inc.
Surgicare of Tuckahoe, Inc.
Surgicare of Tulsa, Inc.
Surgicare of Utah, LLC
Surgicare of Wasatch Front, LLC
Surgicare of West Hills, Inc.
Surgicare of Westlake, Inc.
Surgicare of Wichita, Inc.
Surgicare of Wichita, LLC
Surgicare of Wilson County, LLC
Surgicare Outpatient Center of Baton Rouge, Inc.
Surgicare Outpatient Center of Jackson, Inc.
Surgicenter of East Jefferson, Inc.
Surgicenter of Johnson County, Ltd.
Surgicenter of Kansas City, L.L.C.
Surgico, LLC
SWMC, Inc.
Sycamore Shoals Hospital, Inc.
Tallahassee Community Network, Inc.
Tallahassee Medical Center, Inc.
Tallahassee Orthopaedic Surgery Partners, Ltd.
Tampa Bay Health System, Inc.
Tampa Surgi-Centre, Inc.
Tarrant County Surgery Center, L.P.
TBHI Outpatient Services, LLC
TCMC Madison-Portland, Inc.
Teays Valley Health Services, LLC
Tennessee Healthcare Management, Inc.
Tennessee Valley Outpatient Diagnostic Center, LLC
Terre Haute Heart Lung Vascular Associates, LLC
Terre Haute Hospital GP, Inc.
Terre Haute Hospital Holdings, Inc.
Terre Haute MOB, L.P.
Terre Haute Obstetrics and Gynecology, LLC
Terre Haute Regional Hospital, L.P.
Texas Psychiatric Company, Inc.
The Christie Clinic LLP
The Harley Street Cancer Clinic Limited
The HCA International Foundation
The London Stone Centre Limited
The Medical Group of Kansas City, LLC
The Neurohealth Sciences Center, LLC
The Rankin Foundation
The Regional Health System of Acadiana, LLC
The Wasatch Endoscopy Center, Ltd.
The West Texas Division of Columbia, Inc.
THN Physicians Association, Inc.
Timpanogos Pain Specialists, LLC
Timpanogos Professional Services, LLC
Timpanogos Regional Medical Services, Inc.
Total Imaging Hudson, LLC
Total Imaging North St. Petersburg, LLC
Total Imaging Parsons, LLC
Town Plaza Family Practice, LLC
Travel Medicine and Infections, LLC
Travis Surgery Center, L.P.
Tri Cities Health Services Corp.
Tri-City Multi-Specialty, LLC
Tri-County Community Hospital, Inc.
Tri-County Surgical Specialists, LLC
Trident Ambulatory Surgery Center, L.P.
Trident Behavioral Health Services, LLC
Trident Eye Surgery Center, L.P.
Trident Medical Center, LLC
Trident Medical Services, Inc.
Trident Neonatology Services, LLC
TriStar Cardiovascular Surgery, LLC
TriStar Health System, Inc.
TriStar Medical Group Southern Hills Cardiology, LLC
TriStar OB/GYN, LLC
Tuckahoe Surgery Center, LP
TUHC Anesthesiology Group, LLC
TUHC Hospitalist Group, LLC
TUHC Physician Group, LLC
TUHC Primary Care and Pediatrics Group, LLC
TUHC Radiology Group, LLC
Tulane Clinic, LLC
Tulane Professionals Management, L.L.C.
Twenty Seven Welbeck Street Limited
Ultra Imaging Management Services, LLC
Ultra Imaging of Tampa, LLC
University Healthcare Specialists, LLC
University Healthcare System, L.C.
University Hospital, Ltd.
Uptown Primary Care Associates, LLC
Urological Specialists of Arlington, PLLC
Urology Center of North Georgia, LLC
Urology Services of El Paso, PLLC
Urology Specialists of Richmond, LLC
Utah Imaging GP, LLC
Utah Medco, LLC
Utah Surgery Center, L.P.
Value Health Holdings, Inc.
Value Health Management, Inc.
Vascular and Endovascular Specialists, LLC
Venture Ambulatory Surgery Center, LLC
Venture Medical Management, LLC
VH Holdco, Inc.
VH Holdings, Inc.
VHSC Plantation, LLC
Vicksburg Diagnostic Services, L.P.
Village Oaks Medical Center, Inc.
VIP, Inc.
Virginia Gynecologic Oncology, LLC
Virginia Hematology & Oncology Associates, Inc.
Virginia Hospitalists, Inc.
Virginia Psychiatric Company, Inc.
W & C Hospital, Inc.
Wabash Cardiology Associates, LLC
Wabash Valley Hospitalists, LLC
Wake Psychiatric Hospital, Inc.
Walterboro Community Hospital, Inc.
Wasatch Front Surgery Center, LLC
Washington Holdco, LLC
Wellington Diagnostic Services LLP
Wesley Cath Lab, LLC
Wesley Manager, LLC
Wesley Medical Center, LLC
Wesley Physician Services, LLC
Wesley Physicians Anesthesiologist, LLC
Wesley Physicians Cardiovascular, LLC
Wesley Physicians Medical Specialties LLC
Wesley Physicians Obstetrics and Gynecology LLC
Wesley Physicians Primary Care LLC
Wesley Physicians Surgical Specialties LLC
West Boynton Beach Open Imaging Center, LLC
West Creek Ambulatory Surgery Center, LLC
West Creek Medical Center, Inc.
West Florida Behavioral Health, Inc.
West Florida Cardiology Network, LLC
West Florida Division, Inc.
West Florida Gulf Coast Primary Care, LLC
West Florida HealthWorks, LLC
West Florida Imaging Services, LLC
West Florida Internal Medicine, LLC
West Florida PET Services, LLC
West Florida Physician Network, LLC
West Florida Regional Medical Center, Inc.
West Florida Specialty Physicians, LLC
West Florida Trauma Network, LLC
West Hills Hospital
West Hills Surgical Center, Ltd.
West Houston ASC, Inc.
West Houston Healthcare Group, Ltd.
West Houston Internal Specialists, PLLC
West Houston Outpatient Medical Facility, Inc.
West Houston Surgicare, Inc.
West Houston, LLC
West Jacksonville Medical Center, Inc.
West Jordan Hospital Corporation
West Los Angeles Physicians Hospital, Inc.
West LPN Fort Worth Oncology, PLLC
West LPN, Inc.
West McKinney Imaging Services, LLC
West Paces Services, Inc.
West Park Surgery Center, L.P.
West Valley Imaging, LLC
West Valley Medical Center, Inc.
West Valley Medical Group, LLC
West Valley Professional Fee Billing, LLC
West Valley Therapy Services, LLC
Westbury Hospital, Inc.
Western Kentucky Gastroenterology, LLC
Western Plains Capital, Inc.
Westlake Surgicare, L.P.
Westminster Community Hospital
Westside Surgery Center, Ltd.
WGH, Inc.
WHG Medical, LLC
WHMC, Inc.
Wildwood Medical Center, Inc.
Wilson County Outpatient Surgery Center, L.P.
WJHC, LLC
Womans Health Group, PLLC
Womans Hospital Merger, LLC
Womans Hospital of Texas, Incorporated
Women Practitioners of Houston, PLLC
Women Specialists of Bayshore, PLLC
Women Specialists of Mainland, PLLC
Womens & Childrens Center, LLC
Womens & Childrens Pediatric Hematology/Oncology Center, LLC
Womens & Childrens Pediatric Orthopedic Center, LLC
Womens & Childrens Pulmonology Clinic, LLC
Womens and Childrens Professional Management, L.L.C.
Womens Center at Brookside, LLC
Womens Health Center of Central Florida, LLC
Womens Health Center of SWVA, LLC
Womens Hospital Indianapolis GP, Inc.
Womens Hospital Indianapolis, L.P.
Womens Multi-Specialty Group, LLC
WomensLink Center of Wylie A Medical Center of Plano Facility, LLC
ANNEX C-2
Significant Subsidiaries of the Company
Healthtrust, Inc. The Hospital Company (DE)
Galen Holdco, LLC
Hospital Corp., LLC
HTI Hospital Holdings, Inc.
Healthserv Acquisition, LLC
Exhibit 4.2
HCA INC.,
as Issuer,
HCA HOLDINGS, INC.,
as Parent Guarantor,
LAW DEBENTURE TRUST COMPANY OF NEW YORK,
as Trustee,
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Paying Agent, Registrar and Transfer Agent
8.00% SENIOR NOTES DUE 2018
SUPPLEMENTAL INDENTURE NO. 3
Dated as of October 3, 2011
To BASE INDENTURE
Dated as of August 1, 2011
CROSS-REFERENCE TABLE*
|
|
|
|
|
|
Trust Indenture Act Section
|
|
Indenture Section
|
|
310
|
(a)(1)
|
|
|
7.10
|
|
|
(a)(2)
|
|
|
7.10
|
|
|
(a)(3)
|
|
|
N.A.
|
|
|
(a)(4)
|
|
|
N.A.
|
|
|
(a)(5)
|
|
|
7.10
|
|
|
(b)
|
|
|
7.10
|
|
|
(c)
|
|
|
N.A.
|
|
311
|
(a)
|
|
|
7.11
|
|
|
(b)
|
|
|
7.11
|
|
|
(c)
|
|
|
N.A.
|
|
312
|
(a)
|
|
|
2.05
|
|
|
(b)
|
|
|
11.03
|
|
|
(c)
|
|
|
11.03
|
|
313
|
(a)
|
|
|
7.06
|
|
|
(b)(1)
|
|
|
N.A.
|
|
|
(b)(2)
|
|
|
7.06; 7.07
|
|
|
(c)
|
|
|
7.06; 11.02
|
|
|
(d)
|
|
|
7.06; 11.02
|
|
314
|
(a)
|
|
|
11.02; 11.05
|
|
|
(b)
|
|
|
N.A.
|
|
|
(c)(1)
|
|
|
11.04
|
|
|
(c)(2)
|
|
|
11.04
|
|
|
(c)(3)
|
|
|
N.A.
|
|
|
(d)
|
|
|
N.A.
|
|
|
(e)
|
|
|
11.05
|
|
|
(f)
|
|
|
N.A.
|
|
315
|
(a)
|
|
|
7.01
|
|
|
(b)
|
|
|
7.05
|
|
|
(c)
|
|
|
7.01
|
|
|
(d)
|
|
|
7.01
|
|
|
(e)
|
|
|
6.14
|
|
316
|
(a)(last sentence)
|
|
|
2.09
|
|
|
(a)(1)(A)
|
|
|
6.05
|
|
|
(a)(1)(B)
|
|
|
6.04
|
|
|
(a)(2)
|
|
|
N.A.
|
|
|
(b)
|
|
|
6.07
|
|
|
(c)
|
|
|
2.12; 9.04
|
|
317
|
(a)(1)
|
|
|
6.08
|
|
|
(a)(2)
|
|
|
6.12
|
|
|
(b)
|
|
|
2.04
|
|
318
|
(a)
|
|
|
11.01
|
|
|
(b)
|
|
|
N.A.
|
|
|
(c)
|
|
|
11.01
|
|
N.A. means not applicable.
|
|
|
*
|
|
This Cross-Reference Table is not part of this Third Supplemental Indenture.
|
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page
|
|
ARTICLE 1
|
|
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|
|
DEFINITIONS AND INCORPORATION BY REFERENCE
|
|
|
|
|
|
Section 1.01 Definitions
|
|
|
1
|
|
Section 1.02 Other Definitions
|
|
|
11
|
|
Section 1.03 Incorporation by Reference of Trust Indenture Act
|
|
|
12
|
|
Section 1.04 Rules of Construction.
|
|
|
12
|
|
Section 1.05 Acts of Holders
|
|
|
13
|
|
|
ARTICLE 2
|
|
|
|
|
|
THE NOTES
|
|
|
|
|
|
Section 2.01 Form and Dating; Terms
|
|
|
14
|
|
Section 2.02 Execution and Authentication
|
|
|
15
|
|
Section 2.03 Registrar and Paying Agent
|
|
|
16
|
|
Section 2.04 Paying Agent to Hold Money in Trust
|
|
|
16
|
|
Section 2.05 Holder Lists
|
|
|
16
|
|
Section 2.06 Transfer and Exchange
|
|
|
17
|
|
Section 2.07 Replacement Notes
|
|
|
20
|
|
Section 2.08 Outstanding Notes
|
|
|
20
|
|
Section 2.09 Treasury Notes
|
|
|
21
|
|
Section 2.10 Temporary Notes
|
|
|
21
|
|
Section 2.11 Cancellation
|
|
|
21
|
|
Section 2.12 Defaulted Interest
|
|
|
21
|
|
Section 2.13 CUSIP and ISIN Numbers
|
|
|
22
|
|
|
ARTICLE 3
|
|
|
|
|
|
REDEMPTION
|
|
|
|
|
|
Section 3.01 Notices to Trustee
|
|
|
22
|
|
Section 3.02 Selection of Notes to Be Redeemed or Purchased
|
|
|
22
|
|
Section 3.03 Notice of Redemption
|
|
|
23
|
|
Section 3.04 Effect of Notice of Redemption
|
|
|
24
|
|
Section 3.05 Deposit of Redemption or Purchase Price
|
|
|
24
|
|
Section 3.06 Notes Redeemed or Purchased in Part
|
|
|
24
|
|
Section 3.07 Optional Redemption
|
|
|
25
|
|
Section 3.08 Mandatory Redemption
|
|
|
25
|
|
|
ARTICLE 4
|
|
|
|
|
|
COVENANTS
|
|
|
|
|
|
Section 4.01 Payment of Notes
|
|
|
25
|
|
-i-
|
|
|
|
|
|
|
Page
|
|
Section 4.02 Maintenance of Office or Agency
|
|
|
26
|
|
Section 4.03 Compliance Certificate
|
|
|
26
|
|
Section 4.04 Taxes
|
|
|
26
|
|
Section 4.05 Stay, Extension and Usury Laws
|
|
|
27
|
|
Section 4.06 Limitations on Mortgages
|
|
|
27
|
|
Section 4.07 Limitations on Sale and Lease-Back
|
|
|
28
|
|
Section 4.08 Exempted Transactions
|
|
|
28
|
|
Section 4.09 Corporate Existence
|
|
|
28
|
|
Section 4.10 Offer to Repurchase upon Change of Control
|
|
|
28
|
|
Section 4.11 Discharge and Suspension of Covenants
|
|
|
30
|
|
|
ARTICLE 5
|
|
|
|
|
|
SUCCESSORS
|
|
|
|
|
|
Section 5.01 Merger, Consolidation or Sale of All or Substantially All Assets
|
|
|
31
|
|
Section 5.02 Successor Corporation Substituted
|
|
|
32
|
|
|
ARTICLE 6
|
|
|
|
|
|
DEFAULTS AND REMEDIES
|
|
|
|
|
|
Section 6.01 Events of Default
|
|
|
32
|
|
Section 6.02 Acceleration
|
|
|
33
|
|
Section 6.03 Other Remedies
|
|
|
34
|
|
Section 6.04 Waiver of Past Defaults
|
|
|
34
|
|
Section 6.05 Control by Majority
|
|
|
34
|
|
Section 6.06 Limitation on Suits
|
|
|
34
|
|
Section 6.07 Rights of Holders of Notes to Receive Payment
|
|
|
35
|
|
Section 6.08 Collection Suit by Trustee
|
|
|
35
|
|
Section 6.09 Restoration of Rights and Remedies
|
|
|
35
|
|
Section 6.10 Rights and Remedies Cumulative
|
|
|
35
|
|
Section 6.11 Delay or Omission Not Waiver
|
|
|
35
|
|
Section 6.12 Trustee May File Proofs of Claim
|
|
|
36
|
|
Section 6.13 Priorities
|
|
|
36
|
|
Section 6.14 Undertaking for Costs
|
|
|
37
|
|
|
ARTICLE 7
|
|
|
|
|
|
TRUSTEE
|
|
|
|
|
|
Section 7.01 Duties of Trustee
|
|
|
37
|
|
Section 7.02 Rights of Trustee
|
|
|
38
|
|
Section 7.03 Individual Rights of Trustee
|
|
|
39
|
|
Section 7.04 Trustees Disclaimer
|
|
|
39
|
|
Section 7.05 Notice of Defaults
|
|
|
39
|
|
Section 7.06 Reports by Trustee to Holders of the Notes
|
|
|
39
|
|
Section 7.07 Compensation and Indemnity
|
|
|
40
|
|
Section 7.08 Replacement of Trustee
|
|
|
40
|
|
Section 7.09 Successor Trustee by Merger, etc.
|
|
|
41
|
|
Section 7.10 Eligibility; Disqualification
|
|
|
42
|
|
-ii-
|
|
|
|
|
|
|
Page
|
|
Section 7.11 Preferential Collection of Claims Against Issuer
|
|
|
42
|
|
|
ARTICLE 8
|
|
|
|
|
|
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
|
|
|
|
|
|
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance
|
|
|
42
|
|
Section 8.02 Legal Defeasance and Discharge
|
|
|
42
|
|
Section 8.03 Covenant Defeasance
|
|
|
43
|
|
Section 8.04 Conditions to Legal or Covenant Defeasance
|
|
|
43
|
|
Section 8.05 Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions
|
|
|
44
|
|
Section 8.06 Repayment to Issuer
|
|
|
45
|
|
Section 8.07 Reinstatement
|
|
|
45
|
|
|
ARTICLE 9
|
|
|
|
|
|
AMENDMENT, SUPPLEMENT AND WAIVER
|
|
|
|
|
|
Section 9.01 Without Consent of Holders of Notes
|
|
|
45
|
|
Section 9.02 With Consent of Holders of Notes
|
|
|
47
|
|
Section 9.03 Compliance with Trust Indenture Act
|
|
|
48
|
|
Section 9.04 Revocation and Effect of Consents
|
|
|
48
|
|
Section 9.05 Notation on or Exchange of Notes
|
|
|
48
|
|
Section 9.06 Trustee to Sign Amendments, etc
|
|
|
49
|
|
Section 9.07 Payment for Consent
|
|
|
49
|
|
|
ARTICLE 10
|
|
|
|
|
|
GUARANTEE
|
|
|
|
|
|
Section 10.01 Guarantee
|
|
|
49
|
|
|
ARTICLE 11
|
|
|
|
|
|
SATISFACTION AND DISCHARGE
|
|
|
|
|
|
Section 11.01 Satisfaction and Discharge
|
|
|
51
|
|
Section 11.02 Application of Trust Money
|
|
|
52
|
|
|
ARTICLE 12
|
|
|
|
|
|
MISCELLANEOUS
|
|
|
|
|
|
Section 12.01 Trust Indenture Act Controls
|
|
|
53
|
|
Section 12.02 Notices
|
|
|
53
|
|
Section 12.03 Communication by Holders of Notes with Other Holders of Notes
|
|
|
54
|
|
Section 12.04 Certificate and Opinion as to Conditions Precedent
|
|
|
54
|
|
Section 12.05 Statements Required in Certificate or Opinion
|
|
|
55
|
|
Section 12.06 Rules by Trustee and Agents
|
|
|
55
|
|
Section 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders
|
|
|
55
|
|
-iii-
|
|
|
|
|
|
|
Page
|
|
Section 12.08 Governing Law
|
|
|
55
|
|
Section 12.09 Waiver of Jury Trial
|
|
|
55
|
|
Section 12.10 Force Majeure
|
|
|
56
|
|
Section 12.11 No Adverse Interpretation of Other Agreements
|
|
|
56
|
|
Section 12.12 Successors
|
|
|
56
|
|
Section 12.13 Severability
|
|
|
56
|
|
Section 12.14 Counterpart Originals
|
|
|
56
|
|
Section 12.15 Table of Contents, Headings, etc
|
|
|
56
|
|
Section 12.16 Qualification of Third Supplemental Indenture
|
|
|
56
|
|
Section 12.17 USA Patriot Act
|
|
|
57
|
|
EXHIBITS
Exhibit A Form of Note
-iv-
SUPPLEMENTAL INDENTURE NO. 3 (the
Third Supplemental Indenture
), dated as of October
3, 2011, among HCA Inc., a Delaware corporation (the
Issuer
), HCA Holdings, Inc. (the
Parent Guarantor
), Law Debenture Trust Company of New York, as Trustee, and Deutsche Bank
Trust Company Americas, as Paying Agent, Registrar and Transfer Agent.
W
I
T
N
E
S
S
E
T
H
WHEREAS, the Issuer, the Parent Guarantor and the Trustee have executed and delivered a base
indenture, dated as of August 1, 2011 (as amended, supplemented or otherwise modified from time to
time, the
Base Indenture
) to provide for the future issuance of the Issuers senior debt
securities to be issued from time to time in one or more series; and
WHEREAS, the Issuer has duly authorized the creation of an issue of $500,000,000 aggregate
principal amount of 8.00% Senior Notes due 2018 (the
Initial Notes
), which shall be
guaranteed by the Parent Guarantor (the
Guarantee
), which has been duly authenticated by
the Parent Guarantor; and in connection therewith, each of the Issuer and the Parent Guarantor has
duly authorized the execution and delivery of this Third Supplemental Indenture to set forth the
terms and provisions of the Notes as contemplated by the Base Indenture. This Third Supplemental
Indenture restates in their entirety the terms of the Base Indenture as supplemented by this Third
Supplemental Indenture and does not incorporate the terms of the Base Indenture. The changes,
modifications and supplements to the Base Indenture affected by this Third Supplemental Indenture
shall be applicable only with respect to, and shall only govern the terms of, the Notes, except as
otherwise provided herein, and shall not apply to any other securities that may be issued under the
Base Indenture unless a supplemental indenture with respect to such other securities specifically
incorporates such changes, modifications and supplements.
NOW, THEREFORE, the Issuer, the Parent Guarantor, the Trustee and the Paying Agent, Registrar
and Transfer Agent agree as follows for the benefit of each other and for the equal and ratable
benefit of the Holders of the Notes.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01
Definitions
.
Additional Notes
means additional Notes (other than the Initial Notes) issued from
time to time under this Third Supplemental Indenture in accordance with Section 2.01.
Affiliate
of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified Person.
For purposes of this definition,
control
(including, with correlative meanings, the
terms
controlling
,
controlled by
and
under common control with
), as
used with respect to any Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
Affiliated Entity
means any Person which (i) does not transact any substantial
portion of its business or regularly maintain any substantial portion of its operating assets
within the continental limits of the United States of America, (ii) is principally engaged in the
business of financing (including, without limitation, the purchase, holding, sale or discounting of
or lending upon any notes, contracts, leases or other forms of obligations) the sale or lease of
merchandise, equipment or services (1) by the Issuer , (2) by a Subsidiary (whether such sales or
leases have been made before or after the date which
such Person became a Subsidiary), (3) by another Affiliated Entity or (4) by any Person prior
to the time which substantially all its assets have heretofore been or shall hereafter have been
acquired by the Issuer , (iii) is principally engaged in the business of owning, leasing, dealing
in or developing real property, (iv) is principally engaged in the holding of stock in, and/or the
financing of operations of, an Affiliated Entity, or (v) is principally engaged in the business of
(1) offering health benefit products or (2) insuring against professional and general liability
risks of the Issuer.
Agent
means any Registrar or Paying Agent.
Bankruptcy Code
means Title 11 of the United States Code, as amended.
Bankruptcy Law
means the Bankruptcy Code and any similar federal, state or foreign
law for the relief of debtors.
Business Day
means each day which is not a Legal Holiday.
Capital Stock
means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership or
membership interests (whether general or limited); and
(4) any other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing Person.
Capitalized Lease Obligation
means, at the time any determination thereof is to be
made, the amount of the liability in respect of a capital lease that would at such time be required
to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto)
in accordance with GAAP.
Cash Equivalents
means:
(1)
United States dollars;
(2)
euros or any national currency of any participating member state of the EMU or such
local currencies held by the Issuer and its Subsidiaries from time to time in the ordinary
course of business;
(3)
securities issued or directly and fully and unconditionally guaranteed or insured
by the U.S. government (or any agency or instrumentality thereof the securities of which are
unconditionally guaranteed as a full faith and credit obligation of the U.S. government)
with maturities of 24 months or less from the date of acquisition;
(4)
certificates of deposit, time deposits and eurodollar time deposits with maturities
of one year or less from the date of acquisition, bankers acceptances with maturities not
exceeding one year and overnight bank deposits, in each case with any commercial bank having
capital
-2-
and surplus of not less than $500.0 million in the case of U.S. banks and $100.0
million (or the U.S. dollar equivalent as of the date of determination) in the case of
non-U.S. banks;
(5)
repurchase obligations for underlying securities of the types described in clauses
(3) and (4) entered into with any financial institution meeting the qualifications specified
in clause (4) above;
(6)
commercial paper rated at least P-1 by Moodys or at least A-1 by S&P and in each
case maturing within 24 months after the date of creation thereof;
(7)
marketable short-term money market and similar securities having a rating of at
least P-2 or A-2 from either Moodys or S&P, respectively (or, if at any time neither
Moodys nor S&P shall be rating such obligations, an equivalent rating from another Rating
Agency), and in each case maturing within 24 months after the date of creation thereof;
(8)
investment funds investing 95% of their assets in securities of the types described
in clauses (1) through (7) above;
(9)
readily marketable direct obligations issued by any state, commonwealth or
territory of the United States or any political subdivision or taxing authority thereof
having an Investment Grade Rating from either Moodys or S&P with maturities of 24 months or
less from the date of acquisition;
(10)
Indebtedness or Preferred Stock issued by Persons with a rating of A or higher
from S&P or A2 or higher from Moodys with maturities of 24 months or less from the date of
acquisition; and
(11)
Investments with average maturities of 24 months or less from the date of
acquisition in money market funds rated AAA- (or the equivalent thereof) or better by S&P or
Aaa3 (or the equivalent thereof) or better by Moodys.
Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in
currencies other than those set forth in clauses (1) and (2) above;
provided
that such
amounts are converted into any currency listed in clauses (1) and (2) as promptly as practicable
and in any event within ten Business Days following the receipt of such amounts.
Change of Control
means the occurrence of any of the following:
(1)
the sale, lease or transfer, in one or a series of related transactions, of all or
substantially all of the assets of the Issuer and its Subsidiaries, taken as a whole, to any
Person other than a Permitted Holder; or
(2)
the Issuer becomes aware (by way of a report or any other filing pursuant to
Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) of the
acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section
14(d)(2) of the Exchange Act, or any successor provision), including any group acting for
the purpose of acquiring, holding or disposing of securities (within the meaning of Rule
13d-5(b)(1) under the Exchange Act), other than the Permitted Holders, in a single
transaction or in a related series of transactions, by way of merger, consolidation or other
business combination or purchase of beneficial ownership (within the meaning of Rule 13d-3
under the Exchange Act, or any successor provision) of 50% or more of the total voting power
of the Voting Stock of the Issuer or any of its direct or indirect parent
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companies holding directly or indirectly 100% of the total voting power of the Voting
Stock of the Issuer.
Code
means the Internal Revenue Code of 1986, as amended, or any successor thereto.
Comparable Treasury Issue
means, the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining term (
Remaining
Life
) of a Note being redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the Remaining Life of such Notes.
Comparable Treasury Price
means, with respect to any Redemption Date for any Note:
(1) the average of the Reference Treasury Dealer Quotations for that Redemption Date, after
excluding the highest and lowest of four such Reference Treasury Dealer Quotations; or (2) if the
Independent Investment Banker is given fewer than four Reference Treasury Dealer Quotations, the
average of all quotations obtained by the Independent Investment Banker.
Consolidated Net Tangible Assets
means, with respect to any Person, the total amount
of assets (less applicable reserves and other properly deductible items) after deducting therefrom
(a) all current liabilities as disclosed on the consolidated balance sheet of such Person
(excluding any thereof which are by their terms extendible or renewable at the option of the
obligor thereon to a time more than 12 months after the time as of which the amount thereof is
being computed and further excluding any deferred income taxes that are included in current
liabilities) and (b) all goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangible assets, all as set forth on the most recent consolidated balance
sheet of the Issuer and computed in accordance with generally accepted accounting principles.
Contingent Obligations
means, with respect to any Person, any obligation of such
Person guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness
(
primary obligations
) of any other Person (the
primary obligor
) in any manner,
whether directly or indirectly, including, without limitation, any obligation of such Person,
whether or not contingent,
(1) to purchase any such primary obligation or any property constituting direct or
indirect security therefor,
(2) to advance or supply funds:
(a) for the purchase or payment of any such primary obligation, or
(b) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, or
(3) to purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation against loss in respect thereof.
Corporate Trust Office of the Trustee
shall be at the address of the Trustee
specified in Section 12.02 hereof or such other address as to which the Trustee may give notice to
the Holders and the Issuer.
-4-
Custodian
means the Paying Agent and Registrar, as custodian with respect to
the Notes in global form, or any successor entity thereto.
Default
means any event that is, or with the passage of time or the giving of notice
or both would be, an Event of Default.
Definitive Note
means a certificated Note registered in the name of the Holder
thereof and issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit A
hereto except that such Note shall not bear the Global Note Legend and shall not have the Schedule
of Exchanges of Interests in the Global Note attached thereto.
Depositary
means, with respect to the Notes issuable or issued in whole or in part
in global form, the Person specified in Section 2.03 hereof as the Depositary with respect to the
Notes, and any and all successors thereto appointed as Depositary hereunder and having become such
pursuant to the applicable provision of this Third Supplemental Indenture.
EMU
means the economic and monetary union as contemplated in the Treaty on European
Union.
Equity Interests
means Capital Stock and all warrants, options or other rights to
acquire Capital Stock, but excluding any debt security that is convertible into, or exchangeable
for, Capital Stock.
euro
means the single currency of participating member states of the EMU.
Exchange Act
means the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the SEC promulgated thereunder.
Third Supplemental Indenture
means this Third Supplemental Indenture, as amended or
supplemented from time to time.
Frist Entities
means Dr. Thomas F. Frist, Jr., any Person controlled by Dr. Frist
and any charitable organization selected by Dr. Frist that holds Equity Interests of the Issuer on
November 17, 2006.
Funded Debt
means any Indebtedness for money borrowed, created, issued, incurred,
assumed or guaranteed that would, in accordance with generally accepted accounting principles, be
classified as long-term debt, but in any event including all Indebtedness for money borrowed,
whether secured or unsecured, maturing more than one year, or extendible at the option of the
obligor to a date more than one year, after the date of determination thereof (excluding any amount
thereof included in current liabilities).
GAAP
means generally accepted accounting principles in the United States which were
in effect on November 17, 2006.
Global Note Legend
means the legend set forth in Section 2.06(f) hereof, which is
required to be placed on all Global Notes issued under this Third Supplemental Indenture.
Global Notes
means the Global Notes deposited with or on behalf of and registered in
the name of the Depositary or its nominee, substantially in the form of Exhibit A hereto and that
bears the Global Note Legend and that has the Schedule of Exchanges of Interests in the Global
Note attached thereto, issued in accordance with Section 2.01, 2.06(b), or 2.06(d) hereof.
-5-
Government Securities
means securities that are:
(1) direct obligations of the United States of America for the timely payment of which
its full faith and credit is pledged; or
(2) obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United States of
America,
which, in either case, are not callable or redeemable at the option of the issuers thereof, and
shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act), as custodian with respect to any such Government Securities or a specific payment
of principal of or interest on any such Government Securities held by such custodian for the
account of the holder of such depository receipt;
provided
that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of the Government
Securities or the specific payment of principal of or interest on the Government Securities
evidenced by such depository receipt.
guarantee
means a guarantee (other than by endorsement of negotiable instruments for
collection in the ordinary course of business), direct or indirect, in any manner (including
letters of credit and reimbursement agreements in respect thereof), of all or any part of any
Indebtedness or other obligations.
Guarantee
means the guarantee by the Parent Guarantor of the Parent Guaranteed
Obligations under this Third Supplemental Indenture.
Hedging Obligations
means, with respect to any Person, the obligations of such
Person under any interest rate swap agreement, interest rate cap agreement, interest rate collar
agreement, commodity swap agreement, commodity cap agreement, commodity collar agreement, foreign
exchange contract, currency swap agreement or similar agreement providing for the transfer or
mitigation of interest rate or currency risks either generally or under specific contingencies.
Holder
means the Person in whose name a Note is registered on the Registrars books.
Indebtedness
means, with respect to any Person, without duplication:
(1) any indebtedness (including principal and premium) of such Person, whether or not
contingent:
(a) in respect of borrowed money;
(b) evidenced by bonds, notes, debentures or similar instruments or letters of
credit or bankers acceptances (or, without duplication, reimbursement agreements in
respect thereof);
(c) representing the balance deferred and unpaid of the purchase price of any
property (including Capitalized Lease Obligations), except (i) any such balance that
constitutes a trade payable or similar obligation to a trade creditor, in each case
accrued in the ordinary course of business and (ii) any earn-out obligations until
such obligation becomes a liability on the balance sheet of such Person in
accordance with GAAP; or
-6-
(d) representing any Hedging Obligations;
if and to the extent that any of the foregoing Indebtedness (other than letters of credit
and Hedging Obligations) would appear as a liability upon a balance sheet (excluding the
footnotes thereto) of such Person prepared in accordance with GAAP;
(2) to the extent not otherwise included, any obligation by such Person to be liable
for, or to pay, as obligor, guarantor or otherwise on, the obligations of the type referred
to in clause (1) of a third Person (whether or not such items would appear upon the balance
sheet of the such obligor or guarantor), other than by endorsement of negotiable instruments
for collection in the ordinary course of business; and
(3) to the extent not otherwise included, the obligations of the type referred to in
clause (1) of a third Person secured by a Lien on any asset owned by such first Person,
whether or not such Indebtedness is assumed by such first Person;
provided
,
however
, that notwithstanding the foregoing, Indebtedness shall be deemed
not to include (a) Contingent Obligations incurred in the ordinary course of business or (b)
obligations under or in respect of Receivables Facilities.
Independent Investment Banker
means one of the Reference Treasury Dealers, to be
appointed by the Issuer.
Indirect Participant
means a Person who holds a beneficial interest in a Global Note
through a Participant.
Initial Notes
has the meaning set forth in the recitals hereto.
Interest Payment Date
means April 1 and October 1 of each year to stated maturity.
Investment Grade Rating
means a rating equal to or higher than Baa3 (or the
equivalent) by Moodys and BBB- (or the equivalent) by S&P, or an equivalent rating by any other
Rating Agency.
Investments
means, with respect to any Person, all investments by such Person in
other Persons (including Affiliates) in the form of loans (including guarantees), advances or
capital contributions (excluding accounts receivable, trade credit, advances to customers,
commissions, travel and similar advances to officers and employees, in each case made in the
ordinary course of business), purchases or other acquisitions for consideration of Indebtedness,
Equity Interests or other securities issued by any other Person and investments that are required
by GAAP to be classified on the balance sheet (excluding the footnotes) of the Issuer in the same
manner as the other investments included in this definition to the extent such transactions involve
the transfer of cash or other property.
Investors
means Bain Capital Partners, LLC, Kohlberg Kravis Roberts & Co. L.P., BAML
Capital Partners, the successor organization to both Merrill Lynch Global Private Equity, Inc. and
Merrill Lynch Global Partners, Inc., and each of their respective Affiliates but not including,
however, any portfolio companies of any of the foregoing.
Issue Date
means October 3, 2011.
-7-
Issuer Order
means a written request or order signed on behalf of the Issuer by an
Officer of the Issuer, who must be the principal executive officer, the principal financial
officer, the treasurer or the principal accounting officer of the Issuer, and delivered to the
Trustee.
Legal Holiday
means a Saturday, a Sunday or a day on which commercial banking
institutions are not required to be open in the State of New York.
Lien
means, with respect to any asset, any mortgage, lien (statutory or otherwise),
pledge, hypothecation, charge, security interest, preference, priority or encumbrance of any kind
in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable
law, including any conditional sale or other title retention agreement, any lease in the nature
thereof, any option or other agreement to sell or give a security interest in and any filing of or
agreement to give any financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction;
provided
that in no event shall an operating lease be deemed
to constitute a Lien.
Maturity Date
means October 1, 2018, the date the Notes will mature.
Moodys
means Moodys Investors Service, Inc. and any successor to its rating agency
business.
Mortgages means mortgages, liens, pledges or other encumbrances.
Notes
means the Initial Notes and more particularly means any Note authenticated and
delivered under this Third Supplemental Indenture. For all purposes of this Third Supplemental
Indenture, the term Notes shall also include any Additional Notes that may be issued under a
supplemental indenture.
Obligations
means any principal, interest (including any interest accruing
subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the
rate provided for in the documentation with respect thereto, whether or not such interest is an
allowed claim under applicable state, federal or foreign law), premium, penalties, fees,
indemnifications, reimbursements (including reimbursement obligations with respect to letters of
credit and bankers acceptances), damages and other liabilities, and guarantees of payment of such
principal, interest, penalties, fees, indemnifications, reimbursements, damages and other
liabilities, payable under the documentation governing any Indebtedness.
Officer
means the Chairman of the Board, the Chief Executive Officer, the President,
any Executive Vice President, Senior Vice President or Vice President, the Treasurer or the
Secretary of the Issuer, the Parent Guarantor or a Subsidiary, as applicable.
Officers Certificate
means a certificate signed on behalf of the Issuer by an
Officer of the Issuer, on behalf of the Parent Guarantor by an Officer of the Parent Guarantor or
on behalf of a Subsidiary by any Officer of such Subsidiary, as applicable, that meets the
requirements set forth in this Third Supplemental Indenture.
Opinion of Counsel
means a written opinion from legal counsel who is acceptable to
the Trustee. The counsel may be an employee of or counsel to the Issuer or the Parent Guarantor,
as the case may be.
Parent Guarantor
means the Person named as the Parent Guarantor in the recitals
(i) until released pursuant to the provisions of this Third Supplemental Indenture or (ii) until a
successor Person shall have become such pursuant to the applicable provisions of this Third
Supplemental Indenture,
-8-
and thereafter Parent Guarantor shall mean that successor Person until released pursuant to
the provisions of this Third Supplemental Indenture.
Permitted Holders
means each of the Investors, the Frist Entities, members of
management of the Issuer (or its direct or indirect parent), Citigroup Inc. and Merrill Lynch,
Pierce, Fenner & Smith Incorporated, successor by merger to Banc of America Securities LLC (which
institutions were assignees of certain equity commitments of the Investors as of November 17,
2006), and each of their respective Affiliates or successors, that are holders of Equity Interests
of the Issuer (or any of its direct or indirect parent companies) and any group (within the meaning
of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) of which
any of the foregoing are members;
provided
that, in the case of such group and without
giving effect to the existence of such group or any other group, such Investors, Frist Entities,
members of management and assignees of the equity commitments of the Investors, collectively, have
beneficial ownership of more than 50% of the total voting power of the Voting Stock of the Issuer
or any of its direct or indirect parent companies.
Person
means any individual, corporation, limited liability company, partnership,
joint venture, association, joint stock company, trust, unincorporated organization, government or
any agency or political subdivision thereof or any other entity.
Preferred Stock
means any Equity Interest with preferential rights of payment of
dividends or upon liquidation, dissolution or winding up.
Principal Property
means 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 Issuer and/or one or more of its Subsidiaries and located in the United States of
America.
Prospectus
means the prospectus, dated September 27, 2011, relating to the sale of
the Initial Notes.
Rating Agencies
means Moodys and S&P or if Moodys or S&P or both shall not make a
rating on the Notes publicly available, a nationally recognized statistical rating agency or
agencies, as the case may be, selected by the Issuer which shall be substituted for Moodys or S&P
or both, as the case may be.
Receivables Facility
means any of one or more receivables financing facilities as
amended, supplemented, modified, extended, renewed, restated or refunded from time to time, the
Obligations of which are non-recourse (except for customary representations, warranties, covenants
and indemnities made in connection with such facilities) to the Issuer or any of its Subsidiaries
(other than a Receivables Subsidiary) pursuant to which the Issuer or any of its Subsidiaries
purports to sell its accounts receivable to either (a) a Person that is not a Subsidiary or (b) a
Receivables Subsidiary that in turn funds such purchase by purporting to sell its accounts
receivable to a Person that is not a Subsidiary or by borrowing from such a Person or from another
Receivables Subsidiary that in turn funds itself by borrowing from such a Person.
Receivables Subsidiary
means any Subsidiary formed for the purpose of facilitating
or entering into one or more Receivables Facilities, and in each case engages only in activities
reasonably related or incidental thereto.
Record Date
for the interest or payable on any applicable Interest Payment Date
means March 15 or September 15 (whether or not a Business Day) next preceding such Interest Payment
Date.
-9-
Reference Treasury Dealer
means (i) Barclays Capital Inc., Deutsche Bank Securities
Inc., Goldman, Sachs & Co., Morgan Stanley & Co. LLC, RBC Capital Markets, LLC and Wells Fargo
Securities, LLC (or their respective affiliates that are Primary Treasury Dealers) and their
respective successors; provided, however, that if any of the foregoing shall cease to be a primary
U.S. Government securities dealer in New York City (a
Primary Treasury Dealer
), the
Issuer will substitute therefor another Primary Treasury Dealer, and (ii) any other Primary
Treasury Dealer selected by the Issuer.
Reference Treasury Dealer Quotations
means, with respect to each Reference Treasury
Dealer and any Redemption Date for any Note, the average, as determined by the Independent
Investment Banker, of the bid and asked prices for the Comparable Treasury Issue, expressed in each
case as a percentage of its principal amount, quoted in writing to the Independent Investment
Banker by such Reference Treasury Dealer at 3:00 p.m., New York City time, on the third Business
Day preceding such Redemption Date.
Remaining Life
has the meaning ascribed to such term in the definition of
Comparable Treasury Issue.
Responsible Officer
means, when used with respect to the Trustee, any officer within
the corporate trust department of the Trustee, including any managing director, director, vice
president, assistant vice president, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred because of such
Persons knowledge of and familiarity with the particular subject and who shall have direct
responsibility for the administration of this Third Supplemental Indenture.
S&P
means Standard & Poors, a division of The McGraw-Hill Companies, Inc., and any
successor to its rating agency business.
Sale and Lease-Back Transaction
means any arrangement providing for the leasing by
the Issuer or any of its Subsidiaries for a period of more than three years of any Principal
Property, which property has been or is to be sold or transferred by the Issuer or such Subsidiary
to a third Person in contemplation of such leasing.
SEC
means the U.S. Securities and Exchange Commission.
Securities Act
means the Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
Subordinated Indebtedness
means, with respect to the Notes, (1) any Indebtedness of
the Issuer which is by its terms subordinated in right of payment to the Notes, and (2) any
Indebtedness of the Parent Guarantor which is by its terms subordinated in right of payment to the
Guarantee.
Subsidiary
means, with respect to any Person:
(1) any corporation, association, or other business entity (other than a partnership,
joint venture, limited liability company or similar entity) of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees thereof is at
the time of determination owned or controlled, directly or indirectly, by such Person or one
or more of the other Subsidiaries
-10-
of that Person or a combination thereof or is consolidated under GAAP with
such Person at such time; and
(2) any partnership, joint venture, limited liability company or similar entity of
which more than 50% of the equity ownership, whether in the form of a membership, general,
special or limited partnership interests or otherwise is owned or controlled, directly or
indirectly, by such Person or one or more of the other Subsidiaries of that Person or a
combination thereof or is consolidated under GAAP with such Person at such time;
provided
,
however
, that for purposes of Sections 4.06, 4.07 and 4.08, any
Person that is an Affiliated Entity shall not be considered a Subsidiary.
Transfer Agent
means the Person specified in Section 2.03 hereof as the Transfer
Agent, and any and all successors thereto, to receive on behalf of the Registrar any Notes for
transfer or exchange pursuant to this Third Supplemental Indenture.
Treasury Rate
means, at the time of computation, (1) the semi-annual equivalent
yield to maturity of the United States Treasury Securities with a constant maturity (as compiled
and published in the most recent Federal Reserve Statistical Release H.15(519) which has become
publicly available at least two Business Days prior to the Redemption Date or, if such Statistical
Release is no longer published, any publicly available source of similar market data) for the
maturity corresponding to the Comparable Treasury Issue;
provided
,
however
, that if
no maturity is within three months before or after the Maturity Date for the Notes, yields for the
two published maturities most closely corresponding to the Comparable Treasury Issue will be
determined and the Treasury Rate will be interpolated or extrapolated from those yields on a
straight line basis, rounding to the nearest month; or (2) if that release, or any successor
release, is not published during the week preceding the calculation date or does not contain such
yields, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for that Redemption
Date. The Treasury Rate will be calculated on the third Business Day preceding the Redemption Date.
Trust Indenture Act
means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§
77aaa-77bbbb).
Trustee
means Law Debenture Trust Company of New York, as trustee, until a successor
replaces it in accordance with the applicable provisions of this Third Supplemental Indenture and
thereafter means the successor serving hereunder.
Voting Stock
of any Person as of any date means the Capital Stock of such Person
that is at the time entitled to vote in the election of the board of directors of such Person.
Section 1.02
Other Definitions
.
|
|
|
|
|
Defined in
|
Term
|
|
Section
|
Authentication Order
|
|
2.02
|
Change of Control Offer
|
|
4.10
|
Change of Control Payment
|
|
4.10
|
Change of Control Payment Date
|
|
4.10
|
Covenant Defeasance
|
|
8.03
|
DTC
|
|
2.03
|
Event of Default
|
|
6.01
|
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|
|
|
|
|
Defined in
|
Term
|
|
Section
|
Legal Defeasance
|
|
8.02
|
Note Register
|
|
2.03
|
Parent Guaranteed Obligations.
|
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10.01
|
Paying Agent
|
|
2.03
|
Redemption Date
|
|
3.07
|
Registrar
|
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2.03
|
Reversion Date
|
|
4.11
|
Successor Entity
|
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5.01
|
Suspended Covenant
|
|
4.11
|
Section 1.03
Incorporation by Reference of Trust Indenture Act
.
Whenever this Third Supplemental Indenture refers to a provision of the Trust Indenture Act
the provision is by reference in and made a part of this Third Supplemental Indenture. If and to
the extent that any provision of this Third Supplemental Indenture limits, qualifies or conflicts
with another provision included in this Third Supplemental Indenture, by operation of Sections 310
to 317, inclusive, of the Trust Indenture Act (an incorporated provision), such incorporated
provision shall control.
The following Trust Indenture Act terms used in this Third Supplemental Indenture have the
following meanings:
indenture securities mean the Notes;
indenture security Holder means a Holder of a Note;
indenture to be qualified means this Third Supplemental Indenture;
indenture trustee or institutional trustee means the Trustee; and
obligor on the Notes and the Guarantee means the Issuer and the Parent Guarantor,
respectively, and any successor obligor upon the Notes and the Guarantee, respectively.
All other terms used in this Third Supplemental Indenture that are defined by the Trust
Indenture Act, defined by Trust Indenture Act reference to another statute or defined by SEC rule
under the Trust Indenture Act have the meanings so assigned to them.
Section 1.04
Rules of Construction
.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(c) or is not exclusive;
(d) words in the singular include the plural, and in the plural include the singular;
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(e) will shall be interpreted to express a command;
(f) provisions apply to successive events and transactions;
(g) references to sections of, or rules under, the Securities Act shall be deemed to
include substitute, replacement or successor sections or rules adopted by the SEC from time
to time;
(h) unless the context otherwise requires, any reference to an Article, Section or
clause refers to an Article, Section or clause, as the case may be, of this Third
Supplemental Indenture; and
(i) the words herein, hereof and hereunder and other words of similar import
refer to this Third Supplemental Indenture as a whole and not any particular Article,
Section, clause or other subdivision.
In addition, this Third Supplemental Indenture restates in their entirety the terms of the
Base Indenture as supplemented by this Third Supplemental Indenture and does not incorporate the
terms of the Base Indenture. The changes, modifications and supplements to the Base Indenture
effected by this Third Supplemental Indenture shall be applicable only with respect to, and shall
only govern the terms of, the Notes, except as otherwise provided herein, and shall not apply to
any other securities that may be issued under the Base Indenture unless a supplemental indenture
with respect to such other securities specifically incorporates such changes, modifications and
supplements.
Section 1.05
Acts of Holders
.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this Third Supplemental Indenture to be given or taken by Holders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly required, to the Issuer or the Parent
Guarantor, as applicable. Proof of execution of any such instrument or of a writing appointing any
such agent, or the holding by any Person of a Note, shall be sufficient for any purpose of this
Third Supplemental Indenture and (subject to Section 7.01) conclusive in favor of the Trustee and
the Issuer and the Parent Guarantor, as applicable, if made in the manner provided in this Section
1.05.
(b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by the certificate of any notary public
or other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by or on behalf of any legal entity other than an individual, such certificate or affidavit
shall also constitute proof of the authority of the Person executing the same. The fact and date
of the execution of any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner that the Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other action by
the Holder of any Note shall bind every future Holder of the same Note and the Holder of every
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Note issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof, in respect of any action taken, suffered or omitted by the Trustee or the Issuer in
reliance thereon, whether or not notation of such action is made upon such Note.
(e) The Issuer may, in the circumstances permitted by the Trust Indenture Act, set a record
date for purposes of determining the identity of Holders entitled to give any request, demand,
authorization, direction, notice, consent, waiver or take any other act, or to vote or consent to
any action by vote or consent authorized or permitted to be given or taken by Holders. Unless
otherwise specified, if not set by the Issuer prior to the first solicitation of a Holder made by
any Person in respect of any such action, or in the case of any such vote, prior to such vote, any
such record date shall be the later of 30 days prior to the first solicitation of such consent or
the date of the most recent list of Holders furnished to the Trustee prior to such solicitation.
(f) Without limiting the foregoing, a Holder entitled to take any action hereunder with regard
to any particular Note may do so with regard to all or any part of the principal amount of such
Note or by one or more duly appointed agents, each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount. Any notice given or action taken by a
Holder or its agents with regard to different parts of such principal amount pursuant to this
paragraph shall have the same effect as if given or taken by separate Holders of each such
different part.
(g) Without limiting the generality of the foregoing, a Holder, including DTC that is the
Holder of a Global Note, may make, give or take, by a proxy or proxies duly appointed in writing,
any request, demand, authorization, direction, notice, consent, waiver or other action provided in
this Third Supplemental Indenture to be made, given or taken by Holders, and DTC that is the Holder
of a Global Note may provide its proxy or proxies to the beneficial owners of interests in any such
Global Note through such depositarys standing instructions and customary practices.
(h) The Issuer may fix a record date for the purpose of determining the Persons who are
beneficial owners of interests in any Global Note held by DTC entitled under the procedures of such
depositary to make, give or take, by a proxy or proxies duly appointed in writing, any request,
demand, authorization, direction, notice, consent, waiver or other action provided in this Third
Supplemental Indenture to be made, given or taken by Holders. If such a record date is fixed, the
Holders on such record date or their duly appointed proxy or proxies, and only such Persons, shall
be entitled to make, give or take such request, demand, authorization, direction, notice, consent,
waiver or other action, whether or not such Holders remain Holders after such record date. No such
request, demand, authorization, direction, notice, consent, waiver or other action shall be valid
or effective if made, given or taken more than 90 days after such record date.
ARTICLE 2
THE NOTES
In accordance with Section 301 of the Base Indenture, the Issuer hereby creates the Notes as a
series of its Securities issued pursuant to this Third Supplemental Indenture. In accordance with
Section 301 of the Base Indenture, the Notes shall be known and designated as the 8.00% Senior
Notes due 2018 of the Issuer.
Section 2.01
Form and Dating; Terms
.
(a)
General
. The Notes and the Trustees certificate of authentication shall be
substantially in the form of
Exhibit A
hereto. The Notes may have notations, legends or
endorsements
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required by law, stock exchange rules or usage. Each Note shall be dated the date of its
authentication. The Notes shall be in minimum denominations of $2,000 and integral multiples of
$1,000 in excess thereof.
(b)
Global Notes
. Notes issued in global form shall be substantially in the form of
Exhibit A
hereto (including the Global Note Legend thereon and the Schedule of Exchanges
of Interests in the Global Note attached thereto). Notes issued in definitive form shall be
substantially in the form of
Exhibit A
attached hereto (but without the Global Note Legend
thereon and without the Schedule of Exchanges of Interests in the Global Note attached thereto).
Each Global Note shall represent such of the outstanding Notes as shall be specified in the
Schedule of Exchanges of Interests in the Global Note attached thereto and each shall provide
that it shall represent up to the aggregate principal amount of Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding Notes represented thereby may from
time to time be reduced or increased, as applicable, to reflect exchanges and redemptions. Any
endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby shall be made by the Trustee or the
Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.06 hereof.
(c)
Terms
. The aggregate principal amount of Notes that may be authenticated and
delivered under this Third Supplemental Indenture is unlimited.
The terms and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Third Supplemental Indenture and the Issuer, the Parent Guarantor and the
Trustee, by their execution and delivery of this Third Supplemental Indenture, expressly agree to
such terms and provisions and to be bound thereby. However, to the extent any provision of any
Note conflicts with the express provisions of this Third Supplemental Indenture, the provisions of
this Third Supplemental Indenture shall govern and be controlling.
The Notes shall be subject to repurchase by the Issuer pursuant to a Change of Control Offer
as provided in Section 4.10 hereof. The Notes shall not be redeemable, other than as provided in
Article 3.
Additional Notes may be created and issued from time to time by the Issuer without notice to
or consent of the Holders and shall be consolidated with and form a single class with the Initial
Notes and shall have the same terms as to status, redemption or otherwise as the Initial Notes.
Except as described under Article 9 hereof, the Notes offered by the Issuer and any Additional
Notes subsequently issued under this Third Supplemental Indenture will be treated as a single class
for all purposes under this Third Supplemental Indenture, including waivers, amendments,
redemptions and offers to purchase. Unless the context requires otherwise, references to Notes
for all purposes of this Third Supplemental Indenture include any Additional Notes that are
actually issued. Any Additional Notes shall be issued with the benefit of an indenture
supplemental to this Third Supplemental Indenture.
Section 2.02
Execution and Authentication
.
At least one Officer shall execute the Notes on behalf of the Issuer by manual or facsimile
signature.
If an Officer whose signature is on a Note no longer holds that office at the time a Note is
authenticated, the Note shall nevertheless be valid.
A Note shall not be entitled to any benefit under this Third Supplemental Indenture or be
valid or obligatory for any purpose until authenticated substantially in the form provided for in
Exhibit A
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attached hereto, by the manual signature of the Trustee. The signature shall be conclusive
evidence that the Note has been duly authenticated and delivered under this Third Supplemental
Indenture.
On the Issue Date, the Trustee shall, upon receipt of an Issuer Order (an
Authentication
Order
), authenticate and deliver the Initial Notes. In addition, at any time, from time to
time, the Trustee shall upon an Authentication Order authenticate and deliver any Additional Notes.
Such Authentication Order shall specify the amount of the Notes to be authenticated.
The Trustee may appoint an authenticating agent acceptable to the Issuer to authenticate
Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Third Supplemental Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an Agent to deal with
Holders or an Affiliate of the Issuer.
Section 2.03
Registrar and Paying Agent
.
The Issuer shall maintain an office or agency where Notes may be presented for registration of
transfer or for exchange (
Registrar
) and an office or agency where Notes may be presented
for payment (
Paying Agent
). The Registrar shall keep a register of the Notes (
Note
Register
) and of their transfer and exchange. The Issuer may appoint one or more
co-registrars and one or more additional paying agents. The term Registrar includes any
co-registrar and the term Paying Agent includes any additional paying agent. The Issuer may
change any Paying Agent or Registrar without prior notice to any Holder. The Issuer shall notify
the Trustee in writing of the name and address of any Agent not a party to this Third Supplemental
Indenture. If the Issuer fails to appoint or maintain another entity as Registrar or Paying Agent,
the Trustee shall act as such. The Issuer or any of its Subsidiaries may act as Paying Agent or
Registrar.
The Issuer initially appoints The Depository Trust Company (
DTC
) to act as
Depositary with respect to the Global Notes.
The Issuer initially appoints Deutsche Bank Trust Company Americas to act as the Paying Agent,
Registrar and Transfer Agent for the Notes and the Registrar to act as Custodian with respect to
the Global Notes.
Section 2.04
Paying Agent to Hold Money in Trust
.
The Issuer shall require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by the
Paying Agent for the payment of principal, premium, if any, or interest on the Notes, and will
notify the Trustee of any default by the Issuer in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The
Issuer at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon
payment over to the Trustee, the Paying Agent (if other than the Issuer or a Subsidiary) shall have
no further liability for the money. If the Issuer or a Subsidiary acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Issuer, the
Trustee shall serve as Paying Agent for the Notes.
Section 2.05
Holder Lists
.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of all Holders and shall otherwise comply with
Trust
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Indenture Act Section 312(a). If the Trustee is not the Registrar, the Issuer shall furnish
to the Trustee at least two Business Days before each Interest Payment Date and at such other times
as the Trustee may request in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of the Holders of Notes and the Issuer shall
otherwise comply with Trust Indenture Act Section 312(a).
Section 2.06
Transfer and Exchange
.
(a)
Transfer and Exchange of Global Notes
. A Global Note may not be transferred
except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary
to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary. All Global Notes will be
exchanged by the Issuer for Definitive Notes if:
(A) the Issuer delivers to the Trustee notice from the Depositary that the
Depositary is unwilling or unable to continue to act as Depositary or that it is no
longer a clearing agency registered under the Exchange Act and, in either case, a
successor Depositary is not appointed by the Issuer within 120 days after the date
of such notice from the Depositary;
(B) the Issuer in its sole discretion determines that the Global Notes (in
whole but not in part) should be exchanged for Definitive Notes and delivers a
written notice to such effect to the Trustee; or
(C) there has occurred and is continuing a Default or Event of Default with
respect to the Notes, and the Depositary has notified the Issuer and the Trustee of
its desire to exchange the Global Notes for Definitive Notes.
Upon the occurrence of either of the preceding events in (A) or (B) above, Definitive Notes shall
be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may be
exchanged or replaced, in whole or in part, pursuant to this Section 2.06 or Sections 2.07 and 2.10
hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or
any portion thereof, pursuant to this Section 2.06 or Sections 2.07 or 2.10 hereof, shall be
authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not be
exchanged for another Note other than as provided in this Section 2.06(a), however, beneficial
interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b) or (c)
hereof.
(b)
Transfer and Exchange of Beneficial Interests in the Global Notes
. The transfer
and exchange of beneficial interests in the Global Notes will be effected through the Depositary,
in accordance with the provisions of this Third Supplemental Indenture. Beneficial interests in
any Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial
interest in a Global Note. No written orders or instructions shall be required to be delivered to
the Registrar to effect the transfers described in this Section 2.06(b) and Section 2.06(d) hereof.
(c)
Transfer or Exchange of Beneficial Interests for Definitive Notes
. If any holder
of a beneficial interest in a Global Note proposes to exchange such beneficial interest for a
Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in
the form of a Definitive Note, then, upon satisfaction of the conditions set forth in Section
2.06(b) hereof, the Trustee will cause the aggregate principal amount of the applicable Global Note
to be reduced accordingly pursuant to Section 2.06(g) hereof, and the Issuer will execute and the
Trustee will authenticate and deliver to the Person designated in the instructions a Definitive
Note in the appropriate principal amount. Any
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Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c) will
be registered in such name or names and in such authorized denomination or denominations as the
holder of such beneficial interest requests through instructions to the Registrar from or through
the Depositary and the Participant or Indirect Participant. The Trustee will deliver such
Definitive Notes to the Persons in whose names such Notes are registered.
(d)
Transfer and Exchange of Definitive Notes for Beneficial Interests
. A Holder of a
Definitive Note may exchange such Note for a beneficial interest in a Global Note or transfer such
Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a
Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee
shall cancel the applicable Definitive Note and increase or cause to be increased the aggregate
principal amount of one of the Global Notes.
(e)
Transfer and Exchange of Definitive Notes for Definitive Notes
. Upon request by a
Holder of Definitive Notes and such Holders compliance with the provisions of this Section
2.06(e), the Registrar will register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting Holder must present or surrender to the
Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in
form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized
in writing. In addition, the requesting Holder must provide any additional certifications,
documents and information, as applicable, required pursuant to the following provisions of this
Section 2.06(e). A Holder of Definitive Notes may transfer such Notes to a Person who takes
delivery thereof in the form of a Definitive Note.
(f)
Global Note Legend
. Each Global Note shall bear a legend in substantially the
following form:
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE THIRD
SUPPLEMENTAL INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER
ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.06 OF THE THIRD SUPPLEMENTAL INDENTURE, (II) THIS
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF
THE THIRD SUPPLEMENTAL INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE THIRD SUPPLEMENTAL
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY
WITH THE PRIOR WRITTEN CONSENT OF THE ISSUER. UNLESS AND UNTIL IT IS EXCHANGED IN
WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE
OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK)
(DTC) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE
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TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
(g)
Cancellation and/or Adjustment of Global Notes
. At such time as all beneficial
interests in a particular Global Note have been exchanged for Definitive Notes or a particular
Global Note has been redeemed, repurchased or cancelled in whole and not in part, each such Global
Note shall be returned to or retained and cancelled by the Trustee in accordance with Section 2.11
hereof. At any time prior to such cancellation, if any beneficial interest in a Global Note is
exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial
interest in another Global Note or for Definitive Notes, the principal amount of Notes represented
by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction;
and if the beneficial interest is being exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global Note, such other Global
Note shall be increased accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
(h)
General Provisions Relating to Transfers and Exchanges
.
(i) To permit registrations of transfers and exchanges, the Issuer shall execute and
the Trustee shall authenticate Global Notes and Definitive Notes upon receipt of an
Authentication Order in accordance with Section 2.02 hereof or at the Registrars request.
(ii) No service charge shall be made to a holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but
the Issuer may require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to Sections 2.07,
2.10, 3.06, 4.10 and 9.05 hereof).
(iii) Neither the Registrar nor the Issuer shall be required to register the transfer
of or exchange any Note selected for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any registration of transfer or
exchange of Global Notes or Definitive Notes shall be the valid obligations of the Issuer,
evidencing the same debt, and entitled to the same benefits under this Third Supplemental
Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of
transfer or exchange.
(v) The Issuer shall not be required (A) to issue, to register the transfer of or to
exchange any Notes during a period beginning at the opening of business 15 days before the
day of any selection of Notes for redemption under Section 3.02 hereof and ending at the
close of business on the day of selection, (B) to register the transfer of or to exchange
any Note so selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part or (C) to register the transfer of or to exchange a Note
between a Record Date and the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer of any Note, the
Trustee, any Agent and the Issuer may deem and treat the Person in whose name any Note is
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registered as the absolute owner of such Note for the purpose of receiving payment of
principal of (and premium, if any) and interest on such Notes and for all other purposes,
and none of the Trustee, any Agent or the Issuer shall be affected by notice to the
contrary.
(vii) Upon surrender for registration of transfer of any Note at the office or agency
of the Issuer designated pursuant to Section 4.02 hereof, the Issuer shall execute, and the
Trustee shall authenticate and mail, in the name of the designated transferee or
transferees, one or more replacement Notes of any authorized denomination or denominations
of a like aggregate principal amount.
(viii) At the option of the Holder, Notes may be exchanged for other Notes of any
authorized denomination or denominations of a like aggregate principal amount upon surrender
of the Notes to be exchanged at such office or agency. Whenever any Global Notes or
Definitive Notes are so surrendered for exchange, the Issuer shall execute, and the Trustee
shall authenticate and mail, the replacement Global Notes and Definitive Notes which the
Holder making the exchange is entitled to in accordance with the provisions of Section 2.02
hereof.
(ix) All certifications, certificates and Opinions of Counsel required to be submitted
to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or
exchange may be submitted by facsimile.
Section 2.07
Replacement Notes
.
If any mutilated Note is surrendered to the Trustee, the Registrar or the Issuer and the
Trustee receives evidence to its satisfaction of the ownership and destruction, loss or theft of
any Note, the Issuer shall issue and the Trustee, upon receipt of an Authentication Order, shall
authenticate a replacement Note if the Trustees requirements are met. If required by the Trustee
or the Issuer, an indemnity bond must be supplied by the Holder that is sufficient in the judgment
of the Trustee and the Issuer to protect the Issuer, the Trustee, any Agent and any authenticating
agent from any loss that any of them may suffer if a Note is replaced. The Issuer and/or the
Trustee may charge for their expenses in replacing a Note.
Every replacement Note is a contractual obligation of the Issuer and shall be entitled to all
of the benefits of this Third Supplemental Indenture equally and proportionately with all other
Notes duly issued hereunder.
Section 2.08
Outstanding Notes
.
The Notes outstanding at any time are all the Notes authenticated by the Trustee except for
those cancelled by it, those delivered to it for cancellation, those reductions in the interest in
a Global Note effected by the Trustee in accordance with the provisions hereof, and those described
in this Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a Note does
not cease to be outstanding because the Issuer or an Affiliate of the Issuer holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to
be outstanding and interest on it ceases to accrue.
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If the Paying Agent (other than the Issuer, a Subsidiary or an Affiliate of any thereof)
holds, on a Redemption Date or Maturity Date, money sufficient to pay Notes payable on that date,
then on and after that date such Notes shall be deemed to be no longer outstanding and shall cease
to accrue interest.
Section 2.09
Treasury Notes
.
In determining whether the Holders of the required principal amount of Notes have concurred in
any direction, waiver or consent, Notes owned by the Issuer, or by any Affiliate of the Issuer,
shall be considered as though not outstanding, except that for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes that
a Responsible Officer of the Trustee knows are so owned shall be so disregarded. Notes so owned
which have been pledged in good faith shall not be disregarded if the pledgee establishes to the
satisfaction of the Trustee the pledgees right to deliver any such direction, waiver or consent
with respect to the Notes and that the pledgee is not the Issuer or any obligor upon the Notes or
any Affiliate of the Issuer or of such other obligor.
Section 2.10
Temporary Notes
.
Until certificates representing Notes are ready for delivery, the Issuer may prepare and the
Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes. Temporary
Notes shall be substantially in the form of certificated Notes but may have variations that the
Issuer considers appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the Issuer shall prepare and the Trustee shall authenticate
definitive Notes in exchange for temporary Notes.
Holders and beneficial holders, as the case may be, of temporary Notes shall be entitled to
all of the benefits accorded to Holders, or beneficial holders, respectively, of Notes under this
Third Supplemental Indenture.
Section 2.11
Cancellation
.
The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and
Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee or, at the direction of the Trustee, the Registrar or
the Paying Agent and no one else shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall destroy cancelled Notes (subject to the
record retention requirement of the Exchange Act). Certification of the destruction of all
cancelled Notes shall be delivered to the Issuer. The Issuer may not issue new Notes to replace
Notes that it has paid or that have been delivered to the Trustee for cancellation.
Section 2.12
Defaulted Interest
.
If the Issuer defaults in a payment of interest on the Notes, it shall pay the defaulted
interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted
interest to the Persons who are Holders on a subsequent special record date, in each case at the
rate provided in the Notes and in Section 4.01 hereof. The Issuer shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and the date of the
proposed payment, and at the same time the Issuer shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such defaulted interest or shall
make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the
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benefit of the Persons entitled to such defaulted interest as provided in this Section 2.12.
The Trustee shall fix or cause to be fixed each such special record date and payment date;
provided
that no such special record date shall be less than 10 days prior to the related
payment date for such defaulted interest. The Trustee shall promptly notify the Issuer of such
special record date. At least 15 days before the special record date, the Issuer (or, upon the
written request of the Issuer, the Trustee in the name and at the expense of the Issuer) shall mail
or cause to be mailed, first-class postage prepaid, to each Holder a notice at his or her address
as it appears in the Note Register that states the special record date, the related payment date
and the amount of such interest to be paid.
Subject to the foregoing provisions of this Section 2.12 and for greater certainty, each Note
delivered under this Third Supplemental Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Note.
Section 2.13
CUSIP and ISIN Numbers
.
The Issuer in issuing the Notes may use CUSIP and/or ISIN numbers (if then generally in use)
and, if so, the Trustee shall use CUSIP and/or ISIN numbers in notices of redemption as a
convenience to Holders;
provided
, that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Notes or as contained in any
notice of redemption and that reliance may be placed only on the other identification numbers
printed on the Notes, and any such redemption shall not be affected by any defect in or omission of
such numbers. The Issuer will as promptly as practicable notify the Trustee of any change in the
CUSIP or ISIN numbers.
ARTICLE 3
REDEMPTION
Section 3.01
Notices to Trustee
.
If the Issuer elects to redeem Notes pursuant to Section 3.07 hereof, it shall furnish to the
Trustee and the Registrar and Paying Agent, at least 2 Business Days before notice of redemption is
required to be mailed or caused to be mailed to Holders pursuant to Section 3.03 hereof but not
more than 60 days before a Redemption Date, an Officers Certificate setting forth (i) the clause
of this Third Supplemental Indenture or the subparagraph of such Note pursuant to which the
redemption shall occur, (ii) the Redemption Date; (iii) the principal amount of Notes to be
redeemed, (iv) the redemption price (or the method of calculating it) and (v) each place that
payment will be made upon presentation and surrender of the Notes to be redeemed.
Section 3.02
Selection of Notes to Be Redeemed or Purchased
.
If less than all of the Notes, are to be redeemed or purchased in an offer to purchase at any
time, the Registrar and Paying Agent shall select the Notes to be redeemed or purchased (a) if the
Notes are listed on any national securities exchange, in compliance with the requirements of the
principal national securities exchange on which the Notes are listed, (b) on a
pro rata
basis or
(c) by lot or by such other method in accordance with the procedures of DTC. In the event of
partial redemption or purchase by lot, the particular Notes to be redeemed or purchased shall be
selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior to the
Redemption Date by the Registrar and Paying Agent from the outstanding Notes not previously called
for redemption or purchase.
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The Registrar and Paying Agent shall promptly notify the Issuer in writing of the Notes
selected for redemption or purchase and, in the case of any Note selected for partial redemption or
purchase, the principal amount thereof to be redeemed or purchased. Notes and portions of Notes
selected shall be in amounts of $2,000 or whole multiples of $1,000 in excess thereof; no Notes of
$2,000 or less can be redeemed in part, except that if all of the Notes of a Holder are to be
redeemed or purchased, the entire outstanding amount of Notes held by such Holder, even if not
$2,000 or a multiple of $1,000 in excess thereof, shall be redeemed or purchased. Except as
provided in the preceding sentence, provisions of this Third Supplemental Indenture that apply to
Notes called for redemption or purchase also apply to portions of Notes called for redemption or
purchase.
Section 3.03
Notice of Redemption
.
The Issuer shall mail or cause to be mailed by first-class mail notices of redemption at least
30 days but not more than 60 days before the Redemption Date to each Holder of Notes to be redeemed
at such Holders registered address or otherwise in accordance with the procedures of DTC, except
that redemption notices may be mailed more than 60 days prior to a Redemption Date if the notice is
issued in connection with Article 8 or Article 11 hereof. Except as set forth in Section 3.07(c)
hereof, notices of redemption may not be conditional.
The notice shall identify the Notes to be redeemed and shall state:
(a) the Redemption Date;
(b) the redemption price (or method of calculating it);
(c) if any Note is to be redeemed in part only, the portion of the principal amount of
that Note that is to be redeemed and that, after the Redemption Date upon surrender of such
Note, a new Note or Notes in principal amount equal to the unredeemed portion of the
original Note representing the same indebtedness to the extent not redeemed will be issued
in the name of the Holder of the Notes upon cancellation of the original Note;
(d) the place and address that payment will be made upon presentation and surrender of
the Notes to be redeemed;
(e) the name and address of the Paying Agent;
(f) that Notes called for redemption must be surrendered to the Paying Agent to collect
the redemption price;
(g) that, unless the Issuer defaults in making such redemption payment, interest on
Notes called for redemption ceases to accrue on and after the Redemption Date;
(h) the paragraph or subparagraph of the Notes and/or Section of this Third
Supplemental Indenture pursuant to which the Notes called for redemption are being redeemed;
(i) that no representation is made as to the correctness or accuracy of the CUSIP
and/or ISIN number, if any, listed in such notice or printed on the Notes; and
(j) if in connection with a redemption pursuant to Section 3.07 hereof, any condition
to such redemption.
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At the Issuers request, the Trustee shall give the notice of redemption in the Issuers name
and at its expense;
provided
that the Issuer shall have delivered to the Trustee, at least
2 Business Days before notice of redemption is required to be mailed or caused to be mailed to
Holders pursuant to this Section 3.03 (unless a shorter notice shall be agreed to by the Trustee),
an Officers Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in the preceding paragraph.
Section 3.04
Effect of Notice of Redemption
.
Once notice of redemption is mailed in accordance with Section 3.03 hereof, Notes called for
redemption become irrevocably due and payable on the Redemption Date at the redemption price
(except as provided for in Section 3.07(c) hereof). The notice, if mailed in a manner herein
provided, shall be conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in the notice to the
Holder of any Note designated for redemption in whole or in part shall not affect the validity of
the proceedings for the redemption of any other Note. Subject to Section 3.05 hereof, on and after
the Redemption Date, interest ceases to accrue on Notes or portions thereof called for redemption.
Section 3.05
Deposit of Redemption or Purchase Price
.
Prior to 10:00 a.m. (New York City time) on the redemption or purchase date, the Issuer shall
deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or
purchase price of and accrued and unpaid interest on all Notes to be redeemed or purchased on that
date. The Trustee or the Paying Agent shall promptly return to the Issuer any money deposited with
the Trustee or the Paying Agent by the Issuer in excess of the amounts necessary to pay the
redemption price of, and accrued and unpaid interest on, all Notes to be redeemed or purchased.
If the Issuer complies with the provisions of the preceding paragraph, on and after the
redemption or purchase date, interest shall cease to accrue on the Notes or the portions of Notes
called for redemption or purchase. If a Note is redeemed or purchased on or after a Record Date
but on or prior to the related Interest Payment Date, then any accrued and unpaid interest to the
redemption or purchase date shall be paid to the Person in whose name such Note was registered at
the close of business on such Record Date. If any Note called for redemption or purchase shall not
be so paid upon surrender for redemption or purchase because of the failure of the Issuer to comply
with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption
or purchase date until such principal is paid, and to the extent lawful on any interest accrued to
the redemption or purchase date not paid on such unpaid principal, in each case at the rate
provided in the Notes and in Section 4.01 hereof.
Section 3.06
Notes Redeemed or Purchased in Part
.
Upon surrender of a Note that is redeemed or purchased in part, the Issuer shall issue and the
Trustee shall authenticate for the Holder at the expense of the Issuer a new Note equal in
principal amount to the unredeemed or unpurchased portion of the Note surrendered representing the
same indebtedness to the extent not redeemed or purchased;
provided
that each new Note will
be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. It is
understood that, notwithstanding anything in this Third Supplemental Indenture to the contrary,
only an Authentication Order and not an Opinion of Counsel or Officers Certificate is required for
the Trustee to authenticate such new Note.
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Section 3.07
Optional Redemption
.
(a) Except as set forth below, the Issuer will not be entitled to redeem Notes at its option
prior to the Maturity Date.
(b) The Notes will be redeemable, at the Issuers option, at any time in whole or from time to
time in part, at a redemption, or make-whole, price equal to the greater of: (i) 100% of the
aggregate principal amount of the Notes to be redeemed, and (ii) an amount equal to sum of the
present value of the remaining scheduled payments of principal of and interest on the Notes to be
redeemed (excluding accrued and unpaid interest to the date of redemption (the
Redemption
Date
) and subject to the right of Holders on the relevant Record Date to receive interest due
on the relevant Interest Payment Date) discounted from their scheduled date of payment to the
Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
using a discount rate equal to the Treasury Rate
plus
50 basis points plus, in each of the above
cases, accrued and unpaid interest, if any, to such Redemption Date.
(c) Any notice of any redemption may be given prior to the redemption thereof, and any such
redemption or notice may, at the Issuers discretion, be subject to one or more conditions
precedent, including, but not limited to, completion of an Equity Offering or other corporate
transaction.
(d) If the Issuer redeems less than all of the outstanding Notes, the Registrar and Paying
Agent shall select the Notes to be redeemed in the manner described under Section 3.02 hereof.
(e) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
Section 3.08
Mandatory Redemption
.
The Issuer shall not be required to make any mandatory redemption or sinking fund payments
with respect to the Notes.
ARTICLE 4
COVENANTS
Section 4.01
Payment of Notes
.
The Issuer shall pay or cause to be paid the principal of, premium, if any, and interest on
the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and
interest shall be considered paid on the date due if the Paying Agent, if other than the Issuer or
a Subsidiary, holds as of noon Eastern Time on the due date money deposited by the Issuer in
immediately available funds and designated for and sufficient to pay all principal, premium, if
any, and interest then due.
The Issuer shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal at the rate equal to the then applicable interest rate on the
Notes to the extent lawful; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any
applicable grace period) at the same rate to the extent lawful.
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Section 4.02
Maintenance of Office or Agency
.
The Issuer shall maintain in the Borough of Manhattan in the City of New York, an office or
agency (which may be an office of the Trustee or an Affiliate of the Trustee, Registrar or
co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where
notices and demands to or upon the Issuer in respect of the Notes and this Third Supplemental
Indenture may be served. The Issuer shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any time the Issuer
shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee.
The Issuer may also from time to time designate one or more other offices or agencies where
the Notes may be presented or surrendered for any or all such purposes and may from time to time
rescind such designations;
provided
that no such designation or rescission shall in any
manner relieve the Issuer of its obligation to maintain an office or agency in the Borough of
Manhattan in the City of New York, for such purposes. The Issuer shall give prompt written notice
to the Trustee of any such designation or rescission and of any change in the location of any such
other office or agency.
The Issuer hereby designates the office of the Registrar at the address specified in Section
12.02 hereof (or such other address as to which the Registrar may give notice to the Holders and
the Issuer) as one such office or agency of the Issuer in accordance with Section 2.03 hereof.
Section 4.03
Compliance Certificate
.
(a) The Issuer shall deliver to the Trustee, within 90 days after the end of each fiscal year
ending after the Issue Date, an Officers Certificate stating that a review of the activities of
the Issuer and its Restricted Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officer with a view to determining whether the Issuer has kept,
observed, performed and fulfilled its obligations under this Third Supplemental Indenture, and
further stating, as to such Officer signing such certificate, that to the best of his or her
knowledge the Issuer has kept, observed, performed and fulfilled each and every condition and
covenant contained in this Third Supplemental Indenture and is not in default in the performance or
observance of any of the terms, provisions, covenants and conditions of this Third Supplemental
Indenture (or, if a Default shall have occurred, describing all such Defaults of which he or she
may have knowledge and what action the Issuer is taking or proposes to take with respect thereto).
(b) When any Default has occurred and is continuing under this Third Supplemental Indenture,
or if the Trustee or the holder of any other evidence of Indebtedness of the Issuer or any
Subsidiary gives any notice or takes any other action with respect to a claimed Default, the Issuer
shall promptly (which shall be no more than five (5) Business Days) deliver to the Trustee by
registered or certified mail or by facsimile transmission an Officers Certificate specifying such
event and what action the Issuer proposes to take with respect thereto.
Section 4.04
Taxes
.
The Issuer shall pay, and shall cause each of its Restricted Subsidiaries to pay, prior to
delinquency, all material taxes, assessments, and governmental levies except such as are contested
in good faith and by appropriate negotiations or proceedings or where the failure to effect such
payment is not adverse in any material respect to the Holders of the Notes.
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Section 4.05
Stay, Extension and Usury Laws
.
The Issuer and the Parent Guarantor covenant (to the extent that they may lawfully do so) that
they shall not at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this Third Supplemental
Indenture; and the Issuer and the Parent Guarantor (to the extent that they may lawfully do so)
hereby expressly waive all benefit or advantage of any such law, and covenant that they shall not,
by resort to any such law, hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as though no such law has
been enacted.
Section 4.06
Limitations on Mortgages
.
(a) Nothing in this Third Supplemental Indenture or in the Notes shall in any way restrict or
prevent the Issuer, the Parent Guarantor or any Subsidiary from incurring any Indebtedness,
provided
,
however
, that neither the Issuer nor any of its Subsidiaries will issue,
assume or guarantee any indebtedness or obligation secured by Mortgages upon any Principal
Property, unless the Notes shall be secured equally and ratably with (or prior to) such
Indebtedness.
(b) The provisions of Section 4.06(a) shall not apply to:
(1) Mortgages securing all or any part of the purchase price of property acquired or
cost of construction of property or cost of additions, substantial repairs, alterations or
improvements or property, if the Indebtedness and the related Mortgages are incurred within
18 months of the later of the acquisition or completion of construction and full operation
or additions, repairs, alterations or improvements;
(2) Mortgages existing on property at the time of its acquisition by the Issuer or a
Subsidiary or on the property of a Person at the time of the acquisition of such Person by
the Issuer or a Subsidiary (including acquisitions through merger or consolidation);
(3) Mortgages to secure Indebtedness on which the interest payments to holders of the
related indebtedness are excludable from gross income for federal income tax purposes under
Section 103 of the Code;
(4) Mortgages in favor of the Issuer or any Subsidiary;
(5) Mortgages existing on the date of this Third Supplemental Indenture;
(6) Mortgages in favor of a government or governmental entity that (i) secure
Indebtedness which is guaranteed by the government or governmental entity, (ii) secure
Indebtedness incurred to finance all or some of the purchase price or cost of construction
of goods, products or facilities produced under contract or subcontract for the government
or governmental entity, or (iii) secure Indebtedness incurred to finance all or some of the
purchase price or cost of construction of the property subject to the Mortgage;
(7) Mortgages incurred in connection with the borrowing of funds where such funds are
used to repay within 120 days after entering into such Mortgage, Indebtedness in the same
principal amount secured by other Mortgages on Principal Property with at least the same
appraised fair market value; and
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(8) any extension, renewal or replacement of any Mortgage referred to in clauses (1)
through (7) above, provided the amount secured is not increased and such extension, renewal
or replacement Mortgage relates to the same property.
Section 4.07
Limitations on Sale and Lease-Back
.
Neither the Issuer nor any Subsidiary will enter into any Sale and Lease-Back Transaction with
respect to any Principal Property with another Person (other than with the Issuer or a Subsidiary)
unless either:
(a) the Issuer or such Subsidiary could incur indebtedness secured by a mortgage on the
property to be leased without equally and ratably securing the Notes; or
(b) within 120 days, the Issuer applies the greater of the net proceeds of the sale of
the leased property or the fair value of the leased property, net of all Notes delivered
under this Third Supplemental Indenture, to the voluntary retirement of Funded Debt and/or
the acquisition or construction of a Principal Property.
Section 4.08
Exempted Transactions
.
Notwithstanding the provisions of Sections 4.06 and 4.07, if the aggregate outstanding
principal amount of all Indebtedness of the Issuer and its Subsidiaries that is subject to and not
otherwise permitted under these restrictions does not exceed 15% of the Consolidated Net Tangible
Assets of the Issuer and its Subsidiaries, then:
(a) the Issuer or any of its Subsidiaries may issue, assume or guarantee Indebtedness secured
by Mortgages; and
(b) the Issuer or any of its Subsidiaries may enter into any Sale and Lease-Back Transaction.
Section 4.09
Corporate Existence
.
Subject to Article 5 hereof the Issuer, and so long as any Notes in respect of which the
Guarantee is been outstanding, the Parent Guarantor, shall do or cause to be done all things
necessary to preserve and keep in full force and effect (i) its corporate existence, rights
(charter or statutory), licenses and franchises;
provided
that neither the Issuer nor the
Parent Guarantor shall be required to preserve any such right, license or franchise, if respective
board of directors shall in good faith determine that the preservation thereof is no longer
desirable in the conduct of the business.
Section 4.10
Offer to Repurchase upon Change of Control
.
(a) If a Change of Control occurs, unless the Issuer has previously or concurrently mailed a
redemption notice with respect to all the outstanding Notes as described under Section 3.07 hereof,
the Issuer shall make an offer to purchase all of the Notes pursuant to the offer described below
(the
Change of Control Offer
) at a price in cash (the
Change of Control
Payment
) equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest, if any, to the date of purchase, subject to the right of Holders of the Notes of record
on the relevant Record Date to receive interest due on the relevant Interest Payment Date. Within
30 days following any Change of Control, the Issuer shall send notice of such Change of Control
Offer by first-class mail, with a copy to the Trustee and the Registrar, to each Holder of Notes to
the address of such Holder appearing in the security register with a copy
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to the Trustee and the Registrar or otherwise in accordance with the procedures of DTC, with
the following information:
(1) that a Change of Control Offer is being made pursuant to this Section 4.10 and that
all Notes properly tendered pursuant to such Change of Control Offer will be accepted for
payment by the Issuer;
(2) the purchase price and the purchase date, which will be no earlier than 30 days nor
later than 60 days from the date such notice is mailed (the
Change of Control Payment
Date
);
(3) that any Note not properly tendered will remain outstanding and continue to accrue
interest;
(4) that unless the Issuer defaults in the payment of the Change of Control Payment,
all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue
interest on the Change of Control Payment Date;
(5) that Holders electing to have any Notes purchased pursuant to a Change of Control
Offer will be required to surrender such Notes, with the form entitled Option of Holder to
Elect Purchase on the reverse of such Notes completed, to the paying agent specified in the
notice at the address specified in the notice prior to the close of business on the third
Business Day preceding the Change of Control Payment Date;
(6) that Holders shall be entitled to withdraw their tendered Notes and their election
to require the Issuer to purchase such Notes,
provided
that the paying agent
receives, not later than the close of business on the 30th day following the date of the
Change of Control notice, a telegram, facsimile transmission or letter setting forth the
name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a
statement that such Holder is withdrawing its tendered Notes and its election to have such
Notes purchased;
(7) Holders tendering less than all of their Notes will be issued new Notes and such
new Notes will be equal in principal amount to the unpurchased portion of the Notes
surrendered. The unpurchased portion of the Notes must be equal to $2,000 or an integral
multiple of $1,000 in excess thereof; and
(8) the other instructions, as determined by the Issuer, consistent with this Section
4.10, that a Holder must follow.
The notice, if mailed in a manner herein provided, shall be conclusively presumed to have been
given, whether or not the Holder receives such notice. If (a) the notice is mailed in a manner
herein provided and (b) any Holder fails to receive such notice or a Holder receives such notice
but it is defective, such Holders failure to receive such notice or such defect shall not affect
the validity of the proceedings for the purchase of the Notes as to all other Holders that properly
received such notice without defect. The Issuer shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder to the extent such
laws or regulations are applicable in connection with the repurchase of Notes pursuant to a Change
of Control Offer. To the extent that the provisions of any securities laws or regulations conflict
with the provisions of this Section 4.10, the Issuer shall comply with the applicable securities
laws and regulations and shall not be deemed to have breached its obligations under this Section
4.10 by virtue thereof.
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(b) On the Change of Control Payment Date, the Issuer shall, to the extent permitted by law,
(1) accept for payment all Notes issued by it or portions thereof properly tendered
pursuant to the Change of Control Offer;
(2) deposit with the Paying Agent an amount equal to the aggregate Change of Control
Payment in respect of all Notes or portions thereof so tendered; and
(3) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so
accepted together with an Officers Certificate to the Trustee stating that such Notes or
portions thereof have been tendered to and purchased by the Issuer.
(c) The Issuer shall not be required to make a Change of Control Offer following a Change of
Control if a third party makes the Change of Control Offer in the manner, at the times and
otherwise in compliance with the requirements set forth in this Section 4.10 applicable to a Change
of Control Offer made by the Issuer and purchases all Notes validly tendered and not withdrawn
under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of
Control Offer may be made in advance of a Change of Control, conditional upon such Change of
Control, if a definitive agreement is in place for the Change of Control at the time of making of
the Change of Control Offer.
(d) Other than as specifically provided in this Section 4.10, any purchase pursuant to this
Section 4.10 shall be made pursuant to the provisions of Sections 3.02, 3.05 and 3.06 hereof.
Section 4.11
Discharge and Suspension of Covenants
.
(a) If on any date following the Issue Date (i) the Notes have Investment Grade Ratings from
both Rating Agencies and (ii) no Default has occurred and is continuing under this Third
Supplemental Indenture, the Issuer and the Subsidiaries will not be subject to Section 4.10 hereof
(the
Suspended Covenant
).
(b) In the event that the Issuer and the Subsidiaries are not subject to the Suspended
Covenant under this Third Supplemental Indenture for any period of time as a result of the
foregoing, and on any subsequent date (the
Reversion Date
) one or both of the Rating
Agencies (1) withdraw their Investment Grade Rating or downgrade the rating assigned to the Notes
below an Investment Grade Rating and/or (2) the Issuer or any of its Affiliates enters into an
agreement to effect a transaction that would result in a Change of Control and one or more of the
Rating Agencies indicate that if consummated, such transaction (alone or together with any related
recapitalization or refinancing transactions) would cause such Rating Agency to withdraw its
Investment Grade Rating or downgrade the ratings assigned to the Notes below an Investment Grade
Rating, then the Issuer and the Subsidiaries shall thereafter again be subject to the Suspended
Covenant under this Third Supplemental Indenture with respect to future events, including, without
limitation, a proposed transaction described in clause (2) above.
(c) In the event of any such reinstatement, no action taken or omitted to be taken by the
Issuer or any of its Subsidiaries prior to such reinstatement shall give rise to a Default or Event
of Default under this Third Supplemental Indenture with respect to Notes.
(d) The Issuer shall deliver promptly to the Trustee an Officers Certificate notifying it of
any such occurrence under this Section 4.11.
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ARTICLE 5
SUCCESSORS
Section 5.01
Merger, Consolidation or Sale of All or Substantially All Assets
.
(a) Neither the Issuer nor the Parent Guarantor, as applicable, shall consolidate or merge
with or into or transfer or lease all or substantially all of its assets to (whether or not the
Issuer or the Parent Guarantor, as applicable, is the surviving corporation), any Person unless:
(1) either: (x) the Issuer or the Parent Guarantor, as applicable, is the surviving
corporation; or (y) (i) in the case of the Issuer, the Person formed by or surviving any
such consolidation or merger (if other than the Issuer) or to which such sale or lease, will
have been made is a corporation organized or existing under the laws of the jurisdiction of
organization of the Issuer or the laws of the United States, any state thereof, the District
of Columbia, or any territory thereof (such Person, as the case may be, being herein called
the
Successor Entity
) expressly assumes, pursuant to supplemental indentures or
other documents or instruments in form reasonably satisfactory to the Trustee, all
obligations of the Issuer under the Notes and this Third Supplemental Indenture as if such
Successor Entity were a party to this Third Supplemental Indenture; and (ii) in the case of
the Parent Guarantor, the Successor Entity assumes the Parent Guarantors obligations under
this Third Supplemental Indenture and the Guarantee, as if such Successor Entity were an
original party to this Third Supplemental Indenture and such Guarantee;
(2) after giving effect to such transaction, no Event of Default, and no event which,
after notice or lapse of time or both, would become an Event of Default, shall have occurred
and be continuing;
(3) if, as a result of any such consolidation or merger or such conveyance, transfer or
lease, properties or assets of the Issuer or the Parent Guarantor, as applicable, would
become subject to a mortgage, pledge, lien, security interest or other encumbrance that
would not be permitted by this Third Supplemental Indenture, the Issuer or the Parent
Guarantor, as applicable, or such Successor Entity or Person, as the case may be, shall take
such steps as shall be necessary effectively to secure all the Notes or the Guarantee, as
applicable, equally and ratably with (or prior to) all indebtedness secured thereby; and,
(4) the Issuer or the Parent Guarantor, as applicable, shall have delivered to the
Trustee an Officers Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture, if any, comply with this
Third Supplemental Indenture and, if a supplemental indenture is required in connection with
such transaction, such supplement shall comply with the applicable provisions of this Third
Supplemental Indenture.
(b) The Successor Entity shall succeed to, and be substituted for the Issuer or the Parent
Guarantor, as applicable, as the case may be, under this Third Supplemental Indenture and the Notes
or the Guarantee, each as applicable. Notwithstanding clause (3) of Section 5.01(a) hereof,
(1) any Subsidiary may consolidate with or merge into or transfer all or part of its
properties and assets to the Issuer, and
(2) the Issuer may merge with an Affiliate of the Issuer, as the case may be, solely
for the purpose of reincorporating the Issuer in a State of the United States or any state
thereof,
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the District of Columbia or any territory thereof so long as the amount of Indebtedness
of the Issuer and its Subsidiaries is not increased thereby.
Section 5.02
Successor Corporation Substituted
.
Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of the assets of the Issuer or the Parent Guarantor,
as applicable, in accordance with Section 5.01 hereof, the successor corporation formed by such
consolidation or into or with which the Issuer is merged or to which such sale, assignment,
transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for
(so that from and after the date of such consolidation, merger, sale, lease, conveyance or other
disposition, the provisions of this Third Supplemental Indenture referring to the Issuer or the
Parent Guarantor, as applicable, shall refer instead to the successor corporation and not to the
Issuer or the Parent Guarantor, as applicable), and may exercise every right and power of the
Issuer or the Parent Guarantor, as applicable, under this Third Supplemental Indenture with the
same effect as if such successor Person had been named as the Issuer or the Parent Guarantor, as
applicable, herein;
provided
that the predecessor Issuer shall not be relieved from the
obligation to pay the principal of and interest on the Notes except in the case of a sale,
assignment, transfer, conveyance or other disposition of all of the Issuers assets that meets the
requirements of Section 5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01
Events of Default
.
(a) An
Event of Default
wherever used herein, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or
be effected by operation of law or pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body):
(1) default in payment when due and payable, upon redemption, acceleration or
otherwise, of principal of, or premium, if any, on the Notes;
(2) default for a period of 30 days or more in the payment when due of interest on or
with respect to the Notes;
(3) default in any deposit of any sinking fund payment in respect of the Notes when and
as due by the terms of the Notes;
(4) default in the performance, or breach, of any covenant or warranty of the Issuer in
this Third Supplemental Indenture (other than a covenant or warranty in whose performance or
whose breach is elsewhere in this Section specifically dealt with), and continuance of such
default or breach for a period of 60 days after there has been given written notice by the
Holders of at least 10% in principal amount of the outstanding Notes specifying such default
or breach and requiring it to be remedied and stating that such notice is a Notice of
Default hereunder;
(5) the Issuer or the Parent Guarantor pursuant to or within the meaning of any
Bankruptcy Law:
(i) commences proceedings to be adjudicated bankrupt or insolvent;
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(ii) consents to the institution of bankruptcy or insolvency proceedings
against it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under applicable Bankruptcy Law;
(iii) consents to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator or other similar official of it or for all or substantially all of its
property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) generally is not paying its debts as they become due;
(6) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:
(i) is for relief against the Issuer or the Parent Guarantor, in a proceeding
in which the Issuer or the Parent Guarantor is to be adjudicated bankrupt or
insolvent;
(ii) appoints a receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Issuer or the Parent Guarantor, or for all or substantially
all of the property of the Issuer or the Parent Guarantor; or
(iii) orders the liquidation of the Issuer or the Parent Guarantor;
and the order or decree remains unstayed and in effect for 60 consecutive days; or
(7) The Guarantee shall for any reason cease to be in full force and effect or be
declared null and void or any responsible officer of the Parent Guarantor denies that it has
any further liability under its Guarantee or gives notice to such effect, other than by
reason of the termination of this Third Supplemental Indenture or the release of any such
Guarantee in accordance with this Third Supplemental Indenture.
Section 6.02
Acceleration
.
(a) If any Event of Default (other than an Event of Default specified in clause (5) or (6) of
Section 6.01(a) hereof) occurs and is continuing under this Third Supplemental Indenture, the
Trustee or the Holders of at least 25% in aggregate principal amount of the then total outstanding
Notes may declare the principal amount of all the then outstanding Notes to be due and payable
immediately. Upon the effectiveness of such declaration, such principal and interest shall be due
and payable immediately. The Trustee shall have no obligation to accelerate the Notes if and so
long as a committee of its Responsible Officers in good faith determines acceleration is not in the
best interest of the Holders of the Notes.
(b) Notwithstanding the foregoing, in the case of an Event of Default arising under clause (5)
or (6) of Section 6.01(a) hereof, all outstanding Notes shall be due and payable immediately
without further action or notice.
(c) The Holders of a majority in aggregate principal amount of the then outstanding Notes by
written notice to the Issuer and the Trustee may on behalf of all of the Holders rescind an
acceleration and its consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default (except nonpayment of principal, interest or premium that has
become due solely because of the acceleration) have been cured or waived.
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Section 6.03
Other Remedies
.
|
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal, premium, if any, and interest on the Notes or to enforce the
performance of any provision of the Notes or this Third Supplemental Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not
produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note
in exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
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Section 6.04
Waiver of Past Defaults
.
|
Holders of not less than a majority in aggregate principal amount of the then outstanding
Notes by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing
Default and its consequences hereunder, except a past Default in the payment (a) in principal of,
premium if any, or interest on, any Note, or in the payment of any sinking fund installment with
respect to the Notes, or (b) in respect of a covenant or provision hereof which pursuant to Article
9 hereof cannot be modified or amended, without the consent of Holders of each outstanding Note
affected);
provided
, subject to Section 6.02 hereof, that the Holders of a majority in
aggregate principal amount of the then outstanding Notes may rescind an acceleration and its
consequences, including any related payment default that resulted from such acceleration. Upon any
such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be
deemed to have been cured for every purpose of this Third Supplemental Indenture; but no such
waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
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Section 6.05
Control by Majority
.
|
The Holders of a majority in principal amount of the then total outstanding Notes may direct
the time, method and place of conducting any proceeding for any remedy available to the Trustee or
of exercising any trust or power conferred on the Trustee. The Trustee, however, may refuse to
follow any direction that conflicts with law or this Third Supplemental Indenture or that the
Trustee determines is unduly prejudicial to the rights of any other Holder of a Note or that would
involve the Trustee in personal liability.
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Section 6.06
Limitation on Suits
.
|
Subject to Section 6.07 hereof, no Holder of a Note may pursue any remedy with respect to this
Third Supplemental Indenture or the Notes unless:
(1) such Holder has previously given the Trustee notice that an Event of Default is
continuing;
(2) Holders of at least 25% in principal amount of the total outstanding Notes have
requested the Trustee to pursue the remedy;
(3) Holders of the Notes have offered the Trustee security or indemnity reasonably
satisfactory to it against any loss, liability or expense;
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(4) the Trustee has not complied with such request within 60 days after the receipt
thereof and the offer of security or indemnity; and
(5) Holders of a majority in principal amount of the total outstanding Notes have not
given the Trustee a direction inconsistent with such request within such 60-day period.
A Holder of a Note may not use this Third Supplemental Indenture to prejudice the rights of
another Holder of a Note or to obtain a preference or priority over another Holder of a Note.
Section 6.07
Rights of Holders of Notes to Receive Payment
.
Notwithstanding any other provision of this Third Supplemental Indenture, the right of any
Holder of a Note to receive payment of principal and premium, if any, and interest on the Note, on
or after the respective due dates expressed in the Note (including in connection with a Change of
Control Offer), or to bring suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such Holder.
Section 6.08
Collection Suit by Trustee
.
If an Event of Default specified in Section 6.01(a)(1) or (2) hereof occurs and is continuing,
the Trustee is authorized to recover judgment in its own name and as trustee of an express trust
against the Issuer for the whole amount of principal of, premium, if any, and interest remaining
unpaid on the Notes and interest on overdue principal and, to the extent lawful, interest and such
further amount as shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel.
Section 6.09
Restoration of Rights and Remedies
.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Third Supplemental Indenture and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the Trustee or to such Holder, then and in every
such case, subject to any determination in such proceedings, the Issuer, the Trustee and the
Holders shall be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such
proceeding has been instituted.
Section 6.10
Rights and Remedies Cumulative
.
Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes in Section 2.07 hereof, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.11
Delay or Omission Not Waiver
.
No delay or omission of the Trustee or of any Holder of any Note to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by
this Article or
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by law to the Trustee or to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.12
Trustee May File Proofs of Claim
.
The Trustee is authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Issuer
(or any other obligor upon the Notes including the Parent Guarantor), its creditors or its property
and shall be entitled and empowered to participate as a member in any official committee of
creditors appointed in such matter and to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the
event that the Trustee shall consent to the making of such payments directly to the Holders, to pay
to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 hereof out of the estate in any such proceeding, shall be denied for any
reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the Holders may be entitled
to receive in such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.13
Priorities
.
If the Trustee collects any money pursuant to this Article 6, it shall pay out the money in
the following order:
(i) to the Trustee, Paying Agent, Registrar, Transfer Agent, their agents and attorneys
for amounts due under Section 7.07 hereof, including payment of all compensation, expenses
and liabilities incurred, and all advances made, by the Trustee, Paying Agent, Registrar or
Transfer Agent and the costs and expenses of collection;
(ii) to Holders of Notes for amounts due and unpaid on the Notes for principal,
premium, if any, and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal and premium, if any, and
interest, respectively; and
(iii) to the Issuer or to such party as a court of competent jurisdiction shall direct,
including the Parent Guarantor, if applicable.
The Trustee may fix a record date and payment date for any payment to Holders of Notes
pursuant to this Section 6.13.
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Section 6.14
Undertaking for Costs
.
In any suit for the enforcement of any right or remedy under this Third Supplemental Indenture
or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in
its discretion may require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable costs, including
reasonable attorneys fees, against any party litigant in the suit, having due regard to the merits
and good faith of the claims or defenses made by the party litigant. This Section 6.14 does not
apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a
suit by Holders of more than 10% in principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01
Duties of Trustee
.
(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Third Supplemental Indenture, and use the same degree of
care and skill in its exercise, as a prudent person would exercise or use under the circumstances
in the conduct of such persons own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the express provisions of
this Third Supplemental Indenture and the Trustee need perform only those duties that are
specifically set forth in this Third Supplemental Indenture and no others, and no implied
covenants or obligations shall be read into this Third Supplemental Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Third Supplemental Indenture. However, in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished to the Trustee, the
Trustee shall examine the certificates and opinions to determine whether or not they conform
to the requirements of this Third Supplemental Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of this Section 7.01;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved in a court of competent jurisdiction that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.05
hereof.
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(d) Whether or not therein expressly so provided, every provision of this Third Supplemental
Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this
Section 7.01.
(e) The Trustee shall be under no obligation to exercise any of its rights or powers under
this Third Supplemental Indenture at the request or direction of any of the Holders of the Notes
unless the Holders have offered to the Trustee indemnity or security reasonably satisfactory to it
against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Issuer. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
Section 7.02
Rights of Trustee
.
(a) The Trustee may conclusively rely upon any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not investigate any fact or
matter stated in the document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the books, records and
premises of the Issuer, personally or by agent or attorney at the sole cost of the Issuer and shall
incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(b) Before the Trustee acts or refrains from acting, it may require an Officers Certificate
or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such Officers Certificate or Opinion of Counsel. The Trustee
may consult with counsel of its selection and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be responsible for the
misconduct or negligence of any agent or attorney appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith
that it believes to be authorized or within the rights or powers conferred upon it by this Third
Supplemental Indenture.
(e) Unless otherwise specifically provided in this Third Supplemental Indenture, any demand,
request, direction or notice from the Issuer shall be sufficient if signed by an Officer of the
Issuer.
(f) None of the provisions of this Third Supplemental Indenture shall require the Trustee to
expend or risk its own funds or otherwise to incur any liability, financial or otherwise, in the
performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory
to it against such risk or liability is not assured to it.
(g) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a Default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Notes and this Third Supplemental Indenture.
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(h) In no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action.
(i) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and
other Person employed to act hereunder.
Section 7.03
Individual Rights of Trustee
.
The Trustee in its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with the Issuer or any Affiliate of the Issuer with the same rights it would
have if it were not Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for permission to
continue as trustee or resign. Any Agent may do the same with like rights and duties. The Trustee
is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04
Trustees Disclaimer
.
The Trustee shall not be responsible for and makes no representation as to the validity or
adequacy of this Third Supplemental Indenture or the Notes, it shall not be accountable for the
Issuers use of the proceeds from the Notes or any money paid to the Issuer or upon the Issuers
direction under any provision of this Third Supplemental Indenture, it shall not be responsible for
the use or application of any money received by any Paying Agent other than the Trustee, and it
shall not be responsible for any statement or recital herein or any statement in the Notes or any
other document in connection with the sale of the Notes or pursuant to this Third Supplemental
Indenture other than its certificate of authentication.
Section 7.05
Notice of Defaults
.
If a Default occurs and is continuing and if it is known to the Trustee, the Trustee shall
mail to Holders of Notes a notice of the Default within 90 days after it occurs. Except in the
case of a Default relating to the payment of principal, premium, if any, or interest on any Note,
the Trustee may withhold from the Holders notice of any continuing Default if and so long as a
committee of its Responsible Officers in good faith determines that withholding the notice is in
the interests of the Holders of the Notes. The Trustee shall not be deemed to know of any Default
unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice
of any event which is such a Default is received by the Trustee at the Corporate Trust Office of
the Trustee.
Section 7.06
Reports by Trustee to Holders of the Notes
.
Within 60 days after each May 15, beginning with the May 15 following the date of this Third
Supplemental Indenture, and for so long as Notes remain outstanding, the Trustee shall mail to the
Holders of the Notes a brief report dated as of such reporting date that complies with Trust
Indenture Act Section 313(a) (but if no event described in Trust Indenture Act Section 313(a) has
occurred within the twelve months preceding the reporting date, no report need be transmitted).
The Trustee also shall comply with Trust Indenture Act Section 313(b)(2). The Trustee shall also
transmit by mail all reports as required by Trust Indenture Act Section 313(c).
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A copy of each report at the time of its mailing to the Holders of Notes shall be mailed to
the Issuer and filed with the SEC and each stock exchange on which the Notes are listed in
accordance with Trust Indenture Act Section 313(d). The Issuer shall promptly notify the Trustee
when the Notes are listed on any stock exchange.
Section 7.07
Compensation and Indemnity
.
The Issuer and the Parent Guarantor, jointly and severally, shall pay to the Trustee from time
to time such compensation for its acceptance of this Third Supplemental Indenture and services
hereunder as the parties shall agree in writing from time to time. The Trustees compensation
shall not be limited by any law on compensation of a trustee of an express trust. The Issuer and
the Parent Guarantor, jointly and severally, shall reimburse the Trustee promptly upon request for
all reasonable disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustees agents and counsel.
The Issuer and the Parent Guarantor, jointly and severally, shall indemnify the Trustee for,
and hold the Trustee harmless against, any and all loss, damage, claims, liability or expense
(including attorneys fees) incurred by it in connection with the acceptance or administration of
this trust and the performance of its duties hereunder (including the costs and expenses of
enforcing this Third Supplemental Indenture against the Issuer or the Parent Guarantor (including
this Section 7.07) or defending itself against any claim whether asserted by any Holder or the
Issuer or the Parent Guarantor, or liability in connection with the acceptance, exercise or
performance of any of its powers or duties hereunder). The Trustee shall notify the Issuer
promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the
Issuer shall not relieve the Issuer of its obligations hereunder. The Issuer shall defend the
claim and the Trustee may have separate counsel and the Issuer shall pay the fees and expenses of
such counsel. The Issuer need not reimburse any expense or indemnify against any loss, liability
or expense incurred by the Trustee through the Trustees own willful misconduct, negligence or bad
faith.
The obligations of the Issuer and the Parent Guarantor under this Section 7.07 shall survive
the satisfaction and discharge of this Third Supplemental Indenture or the earlier resignation or
removal of the Trustee.
To secure the payment obligations of the Issuer and the Guarantee in this Section 7.07, the
Trustee shall have a Lien prior to the Notes on all money or property held or collected by the
Trustee, except that held in trust to pay principal and interest on particular Notes. Such Lien
shall survive the satisfaction and discharge of this Third Supplemental Indenture.
When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.01(a)(5) or (6) hereof occurs, the expenses and the compensation for the services
(including the fees and expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
The Trustee shall comply with the provisions of Trust Indenture Act Section 313(b)(2) to the
extent applicable. As used in this Section 7.07, the term Trustee shall also include each of the
Paying Agent, Registrar, and Transfer Agent, as applicable.
Section 7.08
Replacement of Trustee
.
A resignation or removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustees acceptance of appointment as provided in this Section
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7.08. The Trustee may resign in writing at any time and the Registrar, Paying Agent and
Transfer Agent may resign with 90 days prior written notice and be discharged from the trust hereby
created by so notifying the Issuer. The Holders of a majority in principal amount of the then
outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuer in writing and
may remove the Registrar, Paying Agent or Transfer Agent by so notifying such Registrar, Paying
Agent or Transfer Agent, as applicable, with 90 days prior written notice. The Issuer may remove
the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Issuer shall promptly appoint a successor Trustee. Within one year after the successor
Trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes
may appoint a successor Trustee to replace the successor Trustee appointed by the Issuer.
If a successor Trustee does not take office within 60 days after the retiring Trustee resigns
or is removed, the retiring Trustee (at the Issuers expense), the Issuer or the Holders of at
least 10% in principal amount of the then outstanding Notes may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee, after written request by any Holder who has been a Holder for at least six
months, fails to comply with Section 7.10 hereof, such Holder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Issuer. Thereupon, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Third Supplemental Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee;
provided
all sums owing to the Trustee hereunder have
been paid and subject to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement
of the Trustee pursuant to this Section 7.08, the Issuers obligations under Section 7.07 hereof
shall continue for the benefit of the retiring Trustee.
As used in this Section 7.08, the term Trustee shall also include each of the Paying Agent,
Registrar and Transfer Agent, as applicable.
Section 7.09
Successor Trustee by Merger, etc
.
If the Trustee consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation, the successor corporation without any further
act shall be the successor Trustee.
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Section 7.10
Eligibility; Disqualification
.
There shall at all times be a Trustee hereunder that is a corporation or national banking
association organized and doing business under the laws of the United States of America or of any
state thereof that is authorized under such laws to exercise corporate trustee power, that is
subject to supervision or examination by federal or state authorities and that has a combined
capital and surplus of at least $50,000,000 as set forth in its most recent published annual report
of condition.
This Third Supplemental Indenture shall always have a Trustee who satisfies the requirements
of Trust Indenture Act Sections 310(a)(1), (2) and (5). The Trustee is subject to Trust Indenture
Act Section 310(b).
Section 7.11
Preferential Collection of Claims Against Issuer
.
The Trustee is subject to Trust Indenture Act Section 311(a), excluding any creditor
relationship listed in Trust Indenture Act Section 311(b). A Trustee who has resigned or been
removed shall be subject to Trust Indenture Act Section 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01
Option to Effect Legal Defeasance or Covenant Defeasance
.
The Issuer may, at its option and at any time, elect to have either Section 8.02 or 8.03
hereof applied to all outstanding Notes upon compliance with the conditions set forth below in this
Article 8.
Section 8.02
Legal Defeasance and Discharge
.
Upon the Issuers exercise under Section 8.01 hereof of the option applicable to this Section
8.02, the Issuer and the Parent Guarantor shall, subject to the satisfaction of the conditions set
forth in Section 8.04 hereof, be deemed to have been discharged from their obligations with respect
to all outstanding Notes and the Guarantee on the date the conditions set forth below are satisfied
(
Legal Defeasance
). For this purpose, Legal Defeasance means that the Issuer shall be
deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes,
which shall thereafter be deemed to be outstanding only for the purposes of Section 8.05 hereof
and the other Sections of this Third Supplemental Indenture referred to in (a) and (b) below, and
to have satisfied all its other obligations under such Notes and this Third Supplemental Indenture
including that of the Parent Guarantor (and the Trustee, on demand of and at the expense of the
Issuer, shall execute proper instruments acknowledging the same), except for the following
provisions which shall survive until otherwise terminated or discharged hereunder:
(a) the rights of Holders of Notes to receive payments in respect of the principal of,
premium, if any, and interest on the Notes when such payments are due solely out of the
trust created pursuant to this Third Supplemental Indenture referred to in Section 8.04
hereof;
(b) the Issuers obligations with respect to such Notes under Article 2 and Section
4.02 hereof;
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(c) the rights, powers, trusts, duties and immunities of the Trustee, and the Issuers
obligations in connection therewith; and
(d) this Section 8.02.
Subject to compliance with this Article 8, the Issuer may exercise its option under this
Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.
Section 8.03
Covenant Defeasance
.
Upon the Issuers exercise under Section 8.01 hereof of the option applicable to this Section
8.03, the Issuer shall, subject to the satisfaction of the conditions set forth in Section 8.04
hereof, be released from its obligations under the covenants contained in Sections 4.03, 4.04,
4.06, 4.07, 4.08, 4.09 and 4.10 hereof and Section 5.01(a) hereof with respect to the outstanding
Notes on and after the date the conditions set forth in Section 8.04 hereof are satisfied
(
Covenant Defeasance
), and the Notes shall thereafter be deemed not outstanding for the
purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences
of any thereof) in connection with such covenants, but shall continue to be deemed outstanding
for all other purposes hereunder (it being understood that such Notes shall not be deemed
outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with
respect to the outstanding Notes, the Issuer may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any
reference in any such covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under Section 6.01 hereof,
but, except as specified above, the remainder of this Third Supplemental Indenture and such Notes
shall be unaffected thereby. In addition, upon the Issuers exercise under Section 8.01 hereof of
the option applicable to this Section 8.03 hereof, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, Sections 6.01(a)(3), 6.01(a)(5), 6.01(a)(6) and 6.01(a)(7) hereof
shall not constitute Events of Default.
Section 8.04
Conditions to Legal or Covenant Defeasance
.
The following shall be the conditions to the application of either Section 8.02 or 8.03 hereof
to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the Notes:
(1) the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders of the Notes, cash in U.S. dollars, Government Securities, or a combination
thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay the principal of, premium, if any, and
interest due on the Notes on the stated Maturity Date or on the Redemption Date, as the case
may be, of such principal, premium, if any, or interest on such Notes, and the Issuer must
specify whether such Notes are being defeased to maturity or to a particular Redemption
Date;
(2) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an
Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject to
customary assumptions and exclusions,
(a) the Issuer has received from, or there has been published by, the United
States Internal Revenue Service a ruling, or
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(b) since the issuance of the Notes, there has been a change in the applicable
U.S. federal income tax law,
in either case to the effect that, and based thereon such Opinion of Counsel shall confirm
that, subject to customary assumptions and exclusions, the Holders of the Notes will not
recognize income, gain or loss for U.S. federal income tax purposes, as applicable, as a
result of such Legal Defeasance and will be subject to U.S. federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee
an Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject to
customary assumptions and exclusions, the Holders of the Notes will not recognize income,
gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance
and will be subject to U.S. federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default (other than that resulting from borrowing funds to be applied to make
such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in
each case, the granting of Liens in connection therewith) shall have occurred and be
continuing on the date of such deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under any material agreement or instrument (other than
this Third Supplemental Indenture) to which the Issuer or the Parent Guarantor is a party or
by which the Issuer or the Parent Guarantor is bound (other than that resulting from
borrowing funds to be applied to make the deposit required to effect such Legal Defeasance
or Covenant Defeasance and any similar and simultaneous deposit relating to other
Indebtedness and, in each case, the granting of Liens in connection therewith);
(6) the Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect
that, as of the date of such opinion and subject to customary assumptions and exclusions
following the deposit, the trust funds will not be subject to the effect of Section 547 of
Title 11 of the United States Code;
(7) the Issuer shall have delivered to the Trustee an Officers Certificate stating
that the deposit was not made by the Issuer with the intent of defeating, hindering,
delaying or defrauding any creditors of the Issuer or the Parent Guarantor or others; and
(8) the Issuer shall have delivered to the Trustee an Officers Certificate and an
Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and
exclusions) each stating that all conditions precedent provided for or relating to the Legal
Defeasance or the Covenant Defeasance, as the case may be, have been complied with.
Section 8.05
Deposited Money and Government Securities to Be Held in
Trust; Other Miscellaneous Provisions
.
Subject to Section 8.06 hereof, all money and Government Securities (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this
Section 8.05, the
Trustee
) pursuant to Section 8.04 hereof in respect of the outstanding
Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such
Notes and this Third
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Supplemental Indenture, to the payment, either directly or through any Paying Agent (including
the Issuer or the Parent Guarantor acting as Paying Agent) as the Trustee may determine, to the
Holders of such Notes of all sums due and to become due thereon in respect of principal, premium
and interest, but such money need not be segregated from other funds except to the extent required
by law.
The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against the cash or Government Securities deposited pursuant to Section 8.04 hereof or
the principal and interest received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay
to the Issuer from time to time upon the written request of the Issuer any money or Government
Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section 8.04(2) hereof), are in
excess of the amount thereof that would then be required to be deposited to effect an equivalent
Legal Defeasance or Covenant Defeasance.
Section 8.06
Repayment to Issuer
.
Any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust
for the payment of the principal of, premium or interest on any Note and remaining unclaimed for
two years after such principal, premium or interest has become due and payable shall be paid to the
Issuer on its request or (if then held by the Issuer) shall be discharged from such trust; and the
Holder of such Note shall thereafter look only to the Issuer for payment thereof, and all liability
of the Trustee or such Paying Agent with respect to such trust money, and all liability of the
Issuer as trustee thereof, shall thereupon cease.
Section 8.07
Reinstatement
.
If the Trustee or Paying Agent is unable to apply any United States dollars or Government
Securities in accordance with Section 8.04 or 8.05 hereof, as the case may be, by reason of any
order or judgment of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Issuers obligations under this Third Supplemental Indenture
and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section
8.04 or 8.05 hereof until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with Section 8.04 or 8.05 hereof, as the case may be;
provided
that, if
the Issuer makes any payment of principal of, premium or interest on any Note following the
reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01
Without Consent of Holders of Notes
.
Notwithstanding Section 9.02 hereof, the Issuer, the Parent Guarantor (with respect to the
Guarantee or this Third Supplemental Indenture) and the Trustee may amend or supplement this Third
Supplemental Indenture, Notes or the Guarantee without the consent of any Holder:
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(1) to evidence the succession of another corporation to the Issuer or the Parent
Guarantor and the assumption by such successor of the covenants of the Issuer or the Parent
Guarantor in compliance with the requirements set forth in this Third Supplemental
Indenture; or
(2) to add to the covenants for the benefit of the Holders or to surrender any right or
power herein conferred upon the Issuer or the Parent Guarantor; or
(3) to add any additional Events of Default; or
(4) to change or eliminate any of the provisions of this Third Supplemental Indenture,
provided
that any such change or elimination shall become effective only when there
are no outstanding Notes of any series created prior to the execution of such supplemental
indenture that is entitled to the benefit of such provision and as to which such
supplemental indenture would apply; or
(5) to secure the Notes; or
(6) to supplement any of the provisions of this Third Supplemental Indenture to such
extent necessary to permit or facilitate the defeasance and discharge of the Notes,
provided
that any such action does not adversely affect the interests of the Holders
of the Notes in any material respect; or
(7) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee and to add to or change any of the provisions of this Third Supplemental Indenture
necessary to provide for or facilitate the administration of the trusts by more than one
Trustee; or
(8) to cure any ambiguity to correct or supplement any provision of this Third
Supplemental Indenture which may be defective or inconsistent with any other provision; or
(9) to change any place or places where the principal of and premium, if any, and
interest, if any, on the Notes shall be payable, the Notes may be surrendered for
registration or transfer, the Notes may be surrendered for exchange, and notices and demands
to or upon the Issuer may be served; or
(10) to comply with requirements of the SEC in order to effect or maintain the
qualification of this Third Supplemental Indenture under the Trust Indenture Act; or
(11) to conform the text of this Third Supplemental Indenture, the Guarantee or the
Notes to any provision of the Description of the Notes section of the Prospectus to the
extent that such provision in such Description of the Notes section was intended to be a
verbatim recitation of a provision of this Third Supplemental Indenture, the Guarantee or
the Notes; or
(12) to make any amendment to the provisions of this Third Supplemental Indenture
relating to the transfer and legending of Notes as permitted by this Third Supplemental
Indenture, including, without limitation to facilitate the issuance and administration of
the Notes;
provided
,
however
, that (i) compliance with this Third
Supplemental Indenture as so amended would not result in Notes being transferred in
violation of the Securities Act or any applicable securities law and (ii) such amendment
does not materially and adversely affect the rights of Holders to transfer Notes.
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Upon the request of the Issuer accompanied by a resolution of its board of directors
authorizing the execution of any such amended or supplemental indenture, and upon receipt by the
Trustee of the documents described in Section 7.02 hereof, the Trustee shall join with the Issuer
and the Parent Guarantor in the execution of any amended or supplemental indenture authorized or
permitted by the terms of this Third Supplemental Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall not be obligated
to enter into such amended or supplemental indenture that affects its own rights, duties or
immunities under this Third Supplemental Indenture or otherwise.
Section 9.02
With Consent of Holders of Notes
.
Except as provided below in this Section 9.02, the Issuer, the Parent Guarantor and the
Trustee may amend or supplement this Third Supplemental Indenture, the Guarantee and the Notes with
the consent of the Holders of at least a majority in principal amount of the Notes (including
Additional Notes, if any) then outstanding voting as a single class (including, without limitation,
consents obtained in connection with a tender offer or exchange offer for, or purchase of, the
Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default
(other than a Default or Event of Default in the payment of the principal of, premium or interest
on the Notes, except a payment default resulting from an acceleration that has been rescinded) or
compliance with any provision of this Third Supplemental Indenture, the Guarantee or the Notes may
be waived with the consent of the Holders of a majority in principal amount of the then outstanding
Notes (including Additional Notes, if any) voting as a single class (including consents obtained in
connection with a tender offer or exchange offer for, or purchase of, the Notes). Section 2.08
hereof and Section 2.09 hereof shall determine which Notes are considered to be outstanding for
the purposes of this Section 9.02.
Upon the request of the Issuer accompanied by a resolution of its board of directors
authorizing the execution of any such amended or supplemental indenture, and upon the filing with
the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the
Trustee shall join with the Issuer in the execution of such amended or supplemental indenture
unless such amended or supplemental indenture directly affects the Trustees own rights, duties or
immunities under this Third Supplemental Indenture or otherwise, in which case the Trustee may in
its discretion, but shall not be obligated to, enter into such amended or supplemental indenture.
It shall not be necessary for the consent of the Holders of Notes under this Section 9.02 to
approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such
consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Issuer
shall mail to the Holders of Notes affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Issuer to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such amended or supplemental
indenture or waiver.
Without the consent of each affected Holder of Notes, an amendment or waiver under this
Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):
(1) change the stated maturity of the principal of, or installment of interest, if any,
on, the Notes, or reduce the principal amount thereof or the interest thereon or any premium
payable upon redemption thereof;
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(2) change the currency in which the principal of (and premium, if any) or interest on
such Notes are denominated or payable;
(3) adversely affect the right of repayment or repurchase, if any, at the option of the
Holder after such obligation arises, or reduce the amount of, or postpone the date fixed
for, any payment under any sinking fund or impair the right to institute suit for the
enforcement of any payment on or after the stated maturity thereof (or, in the case of
redemption, on or after the Redemption Date);
(4) reduce the percentage of Holders whose consent is required for modification or
amendment of this Third Supplemental Indenture or for waiver of compliance with certain
provisions of this Third Supplemental Indenture or certain defaults;
(5) modify the provisions that require Holder consent to modify or amend this Third
Supplemental Indenture or that permit Holders to waive compliance with certain provisions of
this Third Supplemental Indenture or certain defaults; or
(6) except as expressly permitted by this Third Supplemental Indenture, modify the
Guarantee in any manner adverse to the Holders of the Notes.
Section 9.03
Compliance with Trust Indenture Act
.
Every amendment or supplement to this Third Supplemental Indenture or the Notes shall be set
forth in an amended or supplemental indenture that complies with the Trust Indenture Act as then in
effect.
Section 9.04
Revocation and Effect of Consents
.
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a
Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holders Note, even if notation of
the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written notice of revocation
before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter binds every Holder;
provided
that any amendment or waiver that requires the consent of each affected Holder
shall not become effective with respect to any non-consenting Holder.
The Issuer may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to consent to any amendment, supplement, or waiver. If a record
date is fixed, then, notwithstanding the preceding paragraph, those Persons who were Holders at
such record date (or their duly designated proxies), and only such Persons, shall be entitled to
consent to such amendment, supplement, or waiver or to revoke any consent previously given, whether
or not such Persons continue to be Holders after such record date. No such consent shall be valid
or effective for more than 120 days after such record date unless the consent of the requisite
number of Holders has been obtained.
Section 9.05
Notation on or Exchange of Notes
.
The Trustee may place an appropriate notation about an amendment, supplement or waiver on any
Note thereafter authenticated. The Issuer in exchange for all Notes may issue and the
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Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect
the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not affect the validity and
effect of such amendment, supplement or waiver.
Section 9.06
Trustee to Sign Amendments, etc
.
The Trustee shall sign any amendment, supplement or waiver authorized pursuant to this Article
9 if the amendment or supplement does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. The Issuer may not sign an amendment, supplement or waiver until the
board of directors approves it. In executing any amendment, supplement or waiver, the Trustee
shall be entitled to receive and (subject to Section 7.01 hereof) shall be fully protected in
relying upon, in addition to the documents required by Section 12.04 hereof, an Officers
Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental
indenture is authorized or permitted by this Third Supplemental Indenture and that such amendment,
supplement or waiver is the legal, valid and binding obligation of the Issuer and the Parent
Guarantor, enforceable against them in accordance with its terms, subject to customary exceptions,
and complies with the provisions hereof (including Section 9.03).
Section 9.07
Payment for Consent
.
Neither the Issuer nor any Affiliate of the Issuer shall, directly or indirectly, pay or cause
to be paid any consideration, whether by way of interest, fee or otherwise, to any Holder for or as
an inducement to any consent, waiver or amendment of any of the terms or provisions of this Third
Supplemental Indenture or the Notes unless such consideration is offered to all Holders and is paid
to all Holders that so consent, waive or agree to amend in the time frame set forth in solicitation
documents relating to such consent, waiver or agreement.
ARTICLE 10
GUARANTEE
Section 10.01
Guarantee
.
(a) The Parent Guarantor hereby unconditionally guarantees the punctual payment when due,
whether at stated maturity, by acceleration or otherwise, of all of the monetary obligations of the
Issuer under this Third Supplemental Indenture and the Notes, whether for principal or interest on
the Notes, expenses, indemnification or otherwise (all such obligations of the Parent Guarantor
being herein referred to as the
Parent Guaranteed Obligations
).
(b) It is the intention of the Parent Guarantor that the Guarantee not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to the
Guarantee. To effectuate the foregoing intention, the amount guaranteed by the Parent Guarantor
under the Guarantee shall be limited to the maximum amount as will, after giving effect to such
maximum amount and all other contingent and fixed liabilities of the Parent Guarantor that are
relevant under such laws, result in the obligations of the Parent Guarantor under the Guarantee not
constituting a fraudulent transfer or conveyance.
(c) The Parent Guarantor guarantees that the Parent Guaranteed Obligations will be paid
strictly in accordance with the terms of this Third Supplemental Indenture, regardless of any law,
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regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms
or the rights of Holders of the Notes with respect thereto. The liability of the Parent Guarantor
under the Guarantee shall be absolute and unconditional irrespective of:
(i) any lack of validity, enforceability or genuineness of any provision of this Third
Supplemental Indenture, the Notes or any other agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or in any other term of,
all or any of the Parent Guaranteed Obligations, or any other amendment or waiver of or any
consent to departure from this Third Supplemental Indenture;
(iii) any exchange, release or non-perfection of any collateral, or any release or
amendment or waiver of or consent to departure from any other guarantee, for all or any of
the Parent Guaranteed Obligations; or
(iv) any other circumstance that might otherwise constitute a defense available to, or
a discharge of, the Issuer or a guarantor.
(d) The Parent Guarantor covenants and agrees that its obligation to make payments of the
Parent Guaranteed Obligations hereunder constitutes an unsecured obligation of the Parent Guarantor
ranking
pari passu
with all existing and future senior unsecured indebtedness of the Parent
Guarantor that is not subordinated in right of payment to the Guarantee.
(e) The Parent Guarantor hereby waives promptness, diligence, notice of acceptance and any
other notice with respect to the Guarantee and any requirement that the Trustee, or the Holders of
any Notes protect, secure, perfect or insure any security interest or lien or any property subject
thereto or exhaust any right or take any action against the Issuer or any other Person or any
collateral.
(f) The Parent Guarantor hereby irrevocably waives any claims or other rights that it may now
or hereafter acquire against the Issuer that arise from the existence, payment, performance or
enforcement of the Parent Guarantors obligations under the Guarantee or this Third Supplemental
Indenture, including, without limitation, any right of subrogation, reimbursement, exoneration,
contribution or indemnification and any right to participate in any claim or remedy of the Trustee,
or the Holders of any Notes against the Issuer or any collateral, whether or not such claim, remedy
or right arises in equity or under contract, statute or common law, including, without limitation,
the right to take or receive from the Issuer, directly or indirectly, in cash or other property or
by set-off or in any other manner, payment or security on account of such claim, remedy or right.
If any amount shall be paid to the Parent Guarantor in violation of the preceding sentence at any
time prior to the cash payment in full of the Parent Guaranteed Obligations and all other amounts
payable under the Guarantee, such amount shall be held in trust for the benefit of the Trustee and
the Holders of any Notes and shall forthwith be paid to the Trustee, to be credited and applied to
the Parent Guaranteed Obligations and all other amounts payable under the Guarantee, whether
matured or unmatured, in accordance with the terms of this Third Supplemental Indenture and the
Guarantee, or be held as collateral for any Parent Guarantor Obligations or other amounts payable
under the Guarantee thereafter arising. The Parent Guarantor acknowledges that it will receive
direct and indirect benefits from the financing arrangements contemplated by this Third
Supplemental Indenture and the Guarantee and that the waiver set forth in this Section 10.01 is
knowingly made in contemplation of such benefits.
(g) No failure on the part of the Trustee or any Holder of the Notes to exercise, and no delay
in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or
partial
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exercise of any right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
(h) The Guarantee is a continuing guarantee and shall (a) subject to paragraph 10.01(i),
remain in full force and effect until payment in full of the principal amount of all outstanding
Notes (whether by payment at maturity, purchase, redemption, defeasance, retirement or other
acquisition) and all other applicable Parent Guaranteed Obligations of the Parent Guarantor then
due and owing, (b) be binding upon the Parent Guarantor, its successors and assigns, and (c) inure
to the benefit of and be enforceable by the Trustee, any Holder of Notes, and by their respective
successors, transferees, and assigns.
(i) The Parent Guarantor will automatically and unconditionally be released from all Parent
Guarantee Obligations, and the Guarantee shall thereupon terminate and be discharged and of no
further force of effect, (i) upon any merger or consolidation of such Parent Guarantor with the
Issuer, (ii) upon exercise by the Issuer of its Legal Defeasance option or Covenant Defeasance
option in accordance with Article 8 hereof or the discharge of the Issuers obligations under this
Third Supplemental Indenture, in accordance with the terms of this Third Supplemental Indenture, or
(iii) upon payment in full of the aggregate principal amount of all Notes then outstanding and all
other applicable Parent Guaranteed Obligations of the Parent Guarantor then due and owing.
Upon any such occurrence specified in this paragraph 10.01(i), the Trustee shall execute upon
request by the Issuer, any documents reasonably required in order to evidence such release,
discharge and termination in respect of the Guarantee. Neither the Issuer nor the Parent Guarantor
shall be required to make a notation on the Notes to reflect the Guarantee or any such release,
termination or discharge.
(j) The Guarantee shall remain in full force and effect and continue to be effective should
any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer
become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee
be appointed for all or any significant part of the Issuers assets, and shall, to the fullest
extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any
time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in
amount, or must otherwise be restored or returned by any obligee on the Notes or Guarantee, whether
as a voidable preference, fraudulent transfer or otherwise, all as though such payment or
performance had not been made. In the event that any payment or any part thereof, is rescinded,
reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be
reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or
returned.
(k) The Parent Guarantor may amend the Guarantee at any time for any purpose without the
consent of the Trustee or any Holder of the Notes;
provided
,
however
, that if such
amendment adversely affects (a) the rights of the Trustee or (b) any Holder of the Notes, the prior
written consent of the Trustee (in the case of (b), acting at the written direction of the Holders
of more than 50% in aggregate principal amount of Notes) shall be required.
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01
Satisfaction and Discharge
.
This Third Supplemental Indenture shall be discharged and shall cease to be of further effect
as to all Notes, when either:
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(1) all Notes theretofore authenticated and delivered, except lost, stolen or destroyed
Notes which have been replaced or paid and Notes for whose payment money has theretofore
been deposited in trust, have been delivered to the Trustee for cancellation; or
(2) (A) all Notes not theretofore delivered to the Trustee for cancellation have
become due and payable by reason of the making of a notice of redemption or otherwise, shall
become due and payable within one year or may be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Issuer, and the Issuer or the Parent
Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust
funds in trust solely for the benefit of the Holders of the Notes, cash in U.S. dollars,
Government Securities, or a combination thereof, in such amounts as will be sufficient
without consideration of any reinvestment of interest to pay and discharge the entire
indebtedness on the Notes not theretofore delivered to the Trustee for cancellation for
principal, premium, if any, and accrued interest to the date of maturity or redemption;
(B) no Default (other than that resulting from borrowing funds to be applied to make
such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in
each case, the granting of Liens in connection therewith) with respect to this Third
Supplemental Indenture or the Notes shall have occurred and be continuing on the date of
such deposit or shall occur as a result of such deposit and such deposit will not result in
a breach or violation of, or constitute a default under, any material agreement or
instrument (other than this Third Supplemental Indenture) to which the Issuer or the Parent
Guarantor is a party or by which the Issuer is bound (other than that resulting from
borrowing funds to be applied to make such deposit and any similar and simultaneous deposit
relating to other Indebtedness and in each case, the granting of Liens in connection
therewith);
(C) the Issuer has paid or caused to be paid all sums payable by it under this Third
Supplemental Indenture; and
(D) the Issuer has delivered irrevocable instructions to the Trustee to apply the
deposited money toward the payment of the Notes at maturity or the Redemption Date, as the
case may be.
In addition, the Issuer must deliver an Officers Certificate and an Opinion of Counsel to the
Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.
Notwithstanding the satisfaction and discharge of this Third Supplemental Indenture, if money
shall have been deposited with the Trustee pursuant to subclause (A) of clause (2) of this Section
11.01, the provisions of Section 11.02 and Section 8.06 hereof shall survive.
Section 11.02
Application of Trust Money
.
Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee
pursuant to Section 11.01 hereof shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this Third Supplemental Indenture, to the payment, either directly or
through any Paying Agent (including the Issuer acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for
whose payment such money has been deposited with the Trustee; but such money need not be segregated
from other funds except to the extent required by law.
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If the Trustee or Paying Agent is unable to apply any money or Government Securities in
accordance with Section 11.01 hereof by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Issuers and the Parent Guarantors obligations under this Third Supplemental
Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant
to Section 11.01 hereof;
provided
that if the Issuer has made any payment of principal of,
premium or interest on any Notes because of the reinstatement of its obligations, the Issuer shall
be subrogated to the rights of the Holders of such Notes to receive such payment from the money or
Government Securities held by the Trustee or Paying Agent.
ARTICLE 12
MISCELLANEOUS
Section 12.01
Trust Indenture Act Controls
.
If any provision of this Third Supplemental Indenture limits, qualifies or conflicts with the
duties imposed by Trust Indenture Act Section 318(c), the imposed duties shall control.
Section 12.02
Notices
.
Any notice or communication by the Issuer, the Parent Guarantor or the Trustee to the others
is duly given if in writing and delivered in person or mailed by first-class mail (registered or
certified, return receipt requested), fax or overnight air courier guaranteeing next day delivery,
to the others address:
If to the Issuer:
HCA Inc.
One Park Plaza
Nashville, Tennessee 37203
Fax No.: (615) 344-1531; Attention: General Counsel
Fax No.: (866) 741-5906; Attention: Treasurer
If to the Parent Guarantor:
HCA Holdings, Inc.
c/o HCA Inc.
One Park Plaza
Nashville, Tennessee 37203
Fax No.: (615) 344-1531; Attention: General Counsel
Fax No.: (866) 741-5906; Attention: Treasurer
If to the Trustee:
Law Debenture Trust Company of New York
400 Madison Avenue
New York, New York 10017
Fax No.: (212) 750-1361
Attention: Corporate Trust Administration
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If to the Registrar, Paying Agent or Transfer Agent:
Deutsche Bank Trust Company Americas
c/o Deutsche Bank National Trust Company
Trust & Securities Services
100 Plaza One, Mailstop JCY03-0699
Jersey City, New Jersey 07311
Fax No.: (732) 578-4635
Attn: Corporates Team Deal Manager HCA Inc.
The Issuer, the Parent Guarantor or the Trustee, by notice to the others, may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five calendar days after being
deposited in the mail, postage prepaid, if mailed by first-class mail; when receipt acknowledged,
if faxed; and the next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery;
provided
that any notice or communication delivered
to the Trustee shall be deemed effective upon actual receipt thereof.
Any notice or communication to a Holder shall be mailed by first-class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to
its address shown on the register kept by the Registrar. Any notice or communication shall also be
so mailed to any Person described in Trust Indenture Act Section 313(c), to the extent required by
the Trust Indenture Act. Failure to mail a notice or communication to a Holder or any defect in it
shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.
If the Issuer mails a notice or communication to Holders, it shall mail a copy to the Trustee
and each Agent at the same time.
Section 12.03
Communication by Holders of Notes with Other Holders of Notes
.
Holders may communicate pursuant to Trust Indenture Act Section 312(b) with other Holders with
respect to their rights under this Third Supplemental Indenture or the Notes. The Issuer, the
Trustee, the Registrar and anyone else shall have the protection of Trust Indenture Act Section
312(c).
Section 12.04
Certificate and Opinion as to Conditions Precedent
.
Upon any request or application by the Issuer or the Parent Guarantor to the Trustee to take
any action under this Third Supplemental Indenture, the Issuer or the Parent Guarantor, as the case
may be, shall furnish to the Trustee:
(a) An Officers Certificate in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 12.05 hereof) stating that, in the opinion
of the signers, all conditions precedent and covenants, if any, provided for in this Third
Supplemental Indenture relating to the proposed action have been satisfied; and
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(b) An Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which
shall include the statements set forth in Section 12.05 hereof) stating that, in the opinion of
such counsel, all such conditions precedent and covenants have been satisfied.
Section 12.05
Statements Required in Certificate or Opinion
.
Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Third Supplemental Indenture (other than a certificate provided pursuant to Section
4.03 hereof or Trust Indenture Act Section 314(a)(4)) shall comply with the provisions of Trust
Indenture Act Section 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion has read such
covenant or condition;
(b) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied with (and, in the case of an
Opinion of Counsel, may be limited to reliance on an Officers Certificate as to matters of
fact); and
(d) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been complied with.
Section 12.06
Rules by Trustee and Agents
.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar
or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
Section 12.07
No Personal Liability of Directors, Officers, Employees and Stockholders
.
No director, officer, employee, incorporator or stockholder of the Issuer or the Parent
Guarantor shall have any liability for any obligations of the Issuer or the Parent Guarantor under
the Notes, the Guarantee or this Third Supplemental Indenture or for any claim based on, in respect
of, or by reason of such obligations or their creation. Each Holder by accepting the Notes waives
and releases all such liability. The waiver and release are part of the consideration for issuance
of the Notes.
Section 12.08
Governing Law
.
THIS THIRD SUPPLEMENTAL INDENTURE, THE NOTES AND ANY GUARANTEE WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 12.09
Waiver of Jury Trial
.
EACH OF THE ISSUER, THE PARENT GUARANTOR AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT
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OF OR RELATING TO THIS THIRD SUPPLEMENTAL INDENTURE, THE GUARANTEE, THE NOTES OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section 12.10
Force Majeure
.
In no event shall the Trustee, Paying Agent, Registrar or Transfer Agent be responsible or
liable for any failure or delay in the performance of its obligations under this Third Supplemental
Indenture arising out of or caused by, directly or indirectly, forces beyond its reasonable
control, including without limitation strikes, work stoppages, accidents, acts of war or terrorism,
civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions,
loss or malfunctions of utilities, communications or computer (software or hardware) services.
Section 12.11
No Adverse Interpretation of Other Agreements
.
This Third Supplemental Indenture may not be used to interpret any other indenture, loan or
debt agreement of the Issuer or its Subsidiaries or of any other Person. Any such indenture, loan
or debt agreement may not be used to interpret this Third Supplemental Indenture.
Section 12.12
Successors
.
All agreements of the Issuer in this Third Supplemental Indenture and the Notes shall bind its
successors. All agreements of the Trustee and the Paying Agent, Registrar and Transfer Agent in
this Third Supplemental Indenture shall bind their respective successors.
Section 12.13
Severability
.
In case any provision in this Third Supplemental Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
Section 12.14
Counterpart Originals
.
The parties may sign any number of copies of this Third Supplemental Indenture. Each signed
copy shall be an original, but all of them together represent the same agreement.
Section 12.15
Table of Contents, Headings, etc
.
The Table of Contents, Cross-Reference Table and headings of the Articles and Sections of this
Third Supplemental Indenture have been inserted for convenience of reference only, are not to be
considered a part of this Third Supplemental Indenture and shall in no way modify or restrict any
of the terms or provisions hereof.
Section 12.16
Qualification of Third Supplemental Indenture
.
The Issuer and the Parent Guarantor shall qualify this Third Supplemental Indenture under the
Trust Indenture Act in accordance with and to the extent required by the terms and conditions of
the Registration Rights Agreement and shall pay all reasonable costs and expenses (including
attorneys fees and expenses for the Issuer, the Parent Guarantor and the Trustee) incurred in
connection therewith, including, but not limited to, costs and expenses of qualification of this
Third Supplemental Indenture and the Notes and printing this Third Supplemental Indenture and the
Notes. The Trustee shall be entitled to receive from the Issuer and the Parent Guarantor any such
Officers Certificates, Opinions of Counsel or
-56-
other documentation as it may reasonably request in connection with any such qualification of
this Third Supplemental Indenture under the Trust Indenture Act.
Section 12.17
USA Patriot Act
.
The parties hereto acknowledge that in accordance with Section 326 of the USA Patriot Act, the
Trustee and Agents, like all financial institutions and in order to help fight the funding of
terrorism and money laundering, are required to obtain, verify, and record information that
identifies each person or legal entity that establishes a relationship or opens an account. The
parties to this agreement agree that they will provide the Trustee and the Agents with such
information as they may request in order to satisfy the requirements of the USA Patriot Act.
[Signatures on following pages]
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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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Senior Vice President Finance and Treasurer
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HCA HOLDINGS, INC., as Parent Guarantor
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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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Senior Vice President Finance and Treasurer
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Signature Page to Indenture
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LAW DEBENTURE TRUST COMPANY OF NEW YORK, as Trustee
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By:
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/s/ James D. Heaney
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Name:
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James D. Heaney
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Title:
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Managing Director
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Signature Page to Indenture
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DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Paying Agent, Registrar and Transfer Agent
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By:
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Deutsche Bank National Trust Company
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By:
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/s/ Irina Golovashchuk
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Name:
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Irina Golovashchuk
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Title:
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Assistant Vice President
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By:
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/s/ Chris Niesz
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Name:
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Chris Niesz
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Title:
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Associate
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Signature Page to Indenture
EXHIBIT A
[Face of Note]
[Insert the Global Note Legend, if applicable, pursuant to the provisions of the Third Supplemental Indenture]
CUSIP [ ]
ISIN [ ]
1
GLOBAL NOTE
8.00% Senior Notes Due 2018
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No. ___
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[$______________]
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HCA INC.
promises to pay to CEDE & CO. or registered assigns, the principal sum [set forth on the Schedule
of Exchanges of Interests in the Global Note attached hereto] [of ________________________ United
States Dollars] on October 1, 2018.
Interest Payment Dates: April 1 and October 1
Record Dates: March 15 and September 15
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1
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CUSIP Numbers:
404119BL2
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ISIN Numbers:
US404119BL22
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A-2
IN WITNESS HEREOF, the Issuer has caused this instrument to be duly executed.
Dated: October 3, 2011
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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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A-3
This is one of the Notes referred to in the within-mentioned Third Supplemental Indenture:
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LAW DEBENTURE TRUST COMPANY OF NEW YORK, as Trustee
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By:
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Authorized Signatory
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A-4
[Back of Note]
8.00% Senior Notes Due 2018
Capitalized terms used herein shall have the meanings assigned to them in the Supplemental
Indenture referred to below unless otherwise indicated.
1. INTEREST. HCA Inc., a Delaware corporation, promises to pay interest on the principal
amount of this Note at 8.00% per annum from October 3, 2011 until maturity. The Issuer will pay
interest semi-annually in arrears on April 1 and October 1 of each year, or if any such day is not
a Business Day, on the next succeeding Business Day (each, an
Interest Payment Date
).
Interest on the Notes will accrue from the most recent date to which interest has been paid or, if
no interest has been paid, from the date of issuance;
provided
that the first Interest
Payment Date shall be April 1, 2012. The Issuer will pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from
time to time on demand at the interest rate on the Notes; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest (without regard to any applicable grace periods) from time to time on demand at the
interest rate on the Notes. Interest will be computed on the basis of a 360-day year comprised of
twelve 30-day months.
2. METHOD OF PAYMENT. The Issuer will pay interest on the Notes to the Persons who are
registered Holders of Notes at the close of business on the March 15 and September 15 (whether or
not a Business Day), as the case may be, next preceding the Interest Payment Date, even if such
Notes are cancelled after such record date and on or before such Interest Payment Date, except as
provided in Section 2.12 of the Third Supplemental Indenture with respect to defaulted interest.
Payment of interest may be made by check mailed to the Holders at their addresses set forth in the
register of Holders,
provided
that payment by wire transfer of immediately available funds
will be required with respect to principal of and interest, premium on, all Global Notes and all
other Notes the Holders of which shall have provided wire transfer instructions to the Issuer or
the Paying Agent. Such payment shall be in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, Deutsche Bank Trust Company Americas will act as
Paying Agent and Registrar. The Issuer may change any Paying Agent or Registrar without notice to
the Holders. The Issuer or any of its Subsidiaries may act in any such capacity.
4. THIRD SUPPLEMENTAL INDENTURE. The Issuer issued the Notes under the Base Indenture dated
as of August 1, 2011 (the
Base Indenture
) among the HCA Inc., the Parent Guarantor, the
Trustee and the Paying Agent, Registrar and Transfer Agent, as supplemented by Supplemental
Indenture No. 3, dated as of October 3, 2011 (the
Third Supplemental Indenture
), among
HCA Inc., the Parent Guarantor, the Trustee and the Paying Agent, Registrar and Transfer Agent.
This Note is one of a duly authorized issue of notes of the Issuer designated as its 8.00% Senior
Notes due 2018. The Issuer shall be entitled to issue Additional Notes pursuant to Section 2.01 of
the Third Supplemental Indenture. The terms of the Notes include those stated in the Third
Supplemental Indenture and those made part of the Third Supplemental Indenture by reference to the
Trust Indenture Act of 1939, as amended (the
Trust Indenture Act
). The Notes are subject
to all such terms, and Holders are referred to the Third Supplemental Indenture and such Act for a
statement of such terms. To the extent any provision of this Note conflicts with the express
provisions of the Third Supplemental Indenture or the Base Indenture, the provisions of the Third
Supplemental Indenture shall govern and be controlling.
A-5
5. OPTIONAL REDEMPTION.
(a) Except as set forth below, the Issuer will not be entitled to redeem Notes at its option
prior to the Maturity Date.
(b) The Notes will be redeemable, at the Issuers option, at any time in whole or from time to
time in part, at a redemption, or make-whole, price equal to the greater of: 100% of the
aggregate principal amount of the Notes to be redeemed, and an amount equal to sum of the present
value of the remaining scheduled payments of principal of and interest on the Notes to be redeemed
(excluding accrued and unpaid interest to the Redemption Date and subject to the right of Holders
on the relevant Record Date to receive interest due on the relevant Interest Payment Date)
discounted from their scheduled date of payment to the Redemption Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) using a discount rate equal to the
Treasury Rate
plus
50 basis points plus, in each of the above cases, accrued and unpaid interest,
if any, to such Redemption Date.
(c) Any notice of any redemption may be given prior to the redemption thereof, and any such
redemption or notice may, at the Issuers discretion, be subject to one or more conditions
precedent, including, but not limited to, completion of an Equity Offering or other corporate
transaction.
(d) If the Issuer redeems less than all of the outstanding Notes, the Registrar and Paying
Agent shall select the Notes to be redeemed in the manner described under Section 3.02 of the Third
Supplemental Indenture.
(e) Any redemption pursuant to this paragraph 5 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 of the Third Supplemental Indenture.
6. MANDATORY REDEMPTION. The Issuer shall not be required to make mandatory redemption or
sinking fund payments with respect to the Notes.
7. NOTICE OF REDEMPTION. Subject to Section 3.03 of the Third Supplemental Indenture, notice
of redemption will be mailed by first-class mail at least 30 days but not more than 60 days before
the Redemption Date (except that redemption notices may be mailed more than 60 days prior to a
Redemption Date if the notice is issued in connection with Article 8 of the Third Supplemental
Indenture) to each Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000 in
excess thereof, unless all of the Notes held by a Holder are to be redeemed. On and after the
Redemption Date interest ceases to accrue on Notes or portions thereof called for redemption.
8. OFFERS TO REPURCHASE. Upon the occurrence of a Change of Control, the Issuer shall make an
offer (a
Change of Control Offer
) to each Holder to repurchase all or any part (equal to
$2,000 or an integral multiple of $1,000 in excess thereof) of each Holders Notes at a purchase
price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if
any, to the date of purchase (the
Change of Control Payment
). The Change of Control
Offer shall be made in accordance with Section 4.10 of the Third Supplemental Indenture.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in
denominations of $2,000 and integral multiples of $1,000 in excess thereof. The transfer of Notes
may be registered and Notes may be exchanged as provided in the Third Supplemental Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Issuer may require a Holder to pay any taxes and fees
required by law or permitted by the Third Supplemental Indenture. The Issuer need not exchange or
register
A-6
the transfer of any Notes or portion of Notes selected for redemption, except for the
unredeemed portion of any Notes being redeemed in part. Also, the Issuer need not exchange or
register the transfer of any Notes for a period of 15 days before a selection of Notes to be
redeemed.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for
all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. The Third Supplemental Indenture, the Guarantee or the
Notes may be amended or supplemented as provided in the Third Supplemental Indenture.
12. DEFAULTS AND REMEDIES. The Events of Default relating to the Notes are defined in Section
6.01 of the Third Supplemental Indenture. If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes
may declare the principal, premium, if any, interest and any other monetary obligations on all the
then outstanding Notes to be due and payable immediately. Notwithstanding the foregoing, in the
case of an Event of Default arising from certain events of bankruptcy or insolvency, all
outstanding Notes will become due and payable immediately without further action or notice.
Holders may not enforce the Third Supplemental Indenture, the Notes or the Guarantee except as
provided in the Third Supplemental Indenture. Subject to certain limitations, Holders of a
majority in aggregate principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of the Notes notice of any
continuing Default (except a Default relating to the payment of principal, premium, if any, or
interest) if it determines that withholding notice is in their interest. The Holders of a majority
in aggregate principal amount of the Notes then outstanding by notice to the Trustee may on behalf
of the Holders of all of the Notes waive any existing Default or and its consequences under the
Third Supplemental Indenture except a continuing Default in payment of the principal of, premium,
if any, or interest on, any of the Notes held by a non-consenting Holder. The Issuer is required
to deliver to the Trustee annually a statement regarding compliance with the Third Supplemental
Indenture, and the Issuer is required within five (5) Business Days after becoming aware of any
Default, to deliver to the Trustee a statement specifying such Default and what action the Issuer
proposes to take with respect thereto.
13. AUTHENTICATION. This Note shall not be entitled to any benefit under the Third
Supplemental Indenture or be valid or obligatory for any purpose until authenticated by the manual
signature of the Trustee.
14. [RESERVED].
15. GOVERNING LAW. THIS THIRD SUPPLEMENTAL INDENTURE, THE NOTES AND ANY GUARANTEE WILL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. CUSIP/ISIN NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer has caused CUSIP/ISIN numbers to be printed on the
Notes and the Trustee may use CUSIP/ISIN numbers in notices of redemption as a convenience to
Holders. No representation is made as to the accuracy of such numbers either as printed on the
Notes or as contained in any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
A-7
The Issuer will furnish to any Holder upon written request and without charge a copy of the
Third Supplemental Indenture. Requests may be made to the Issuer at the following address:
HCA Inc.
One Park Plaza
Nashville, Tennessee 37203
Fax No.: (615) 344-1531; Attention: General Counsel
Fax No.: (866) 741-5906; Attention: Treasurer
A-8
ASSIGNMENT FORM
To assign this Note, fill in the form below:
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(I) or (we) assign and transfer this Note to:
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(Insert assignees legal name)
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(Insert assignees soc. sec. or tax I.D. no.)
(Print or type assignees name, address and zip code)
and irrevocably appoint _________________________________________________ to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Date: _____________________
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Your Signature:
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(Sign exactly as your name appears on the face of this Note)
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Signature Guarantee*: ________________________
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*
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Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
|
A-9
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.10 of the
Third Supplemental Indenture, check the appropriate box below:
[ ] Section 4.10
If you want to elect to have only part of this Note purchased by the Issuer pursuant to
Section 4.10 of the Third Supplemental Indenture, state the amount you elect to have purchased:
$_______________
Date: _____________________
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Your Signature:
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(Sign exactly as your name appears on the face of this Note)
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Tax Identification No.:
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Signature Guarantee*: ________________________.
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*
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|
Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
|
A-10
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The initial outstanding principal amount of this Global Note is $_________. The following
exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive
Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this
Global Note, have been made:
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Date of
exchange
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Amount of
decrease
in principal
amount of this
Global Note
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Amount of increase
in principal
amount of this
Global Note
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Principal amount
of
this Global Note
following such
decrease or
increase
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Signature of
authorized officer
of Trustee or
Registrar
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*
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This schedule should be included only if the Note is issued in global form.
|
A-11
Exhibit 4.4
$2,500,000,000
CREDIT AGREEMENT
Dated as of September 30, 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,
CITIGROUP GLOBAL MARKETS INC., J.P. MORGAN SECURITIES LLC
and
WELLS FARGO CAPITAL FINANCE LLC
as Co-Syndication Agents,
and
BARCLAYS
CAPITAL, THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK PLC,
DEUTSCHE BANK SECURITIES INC.
and
ROYAL BANK OF CANADA
as Co-Documentation Agents
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
CITIGROUP GLOBAL MARKETS INC., J.P. MORGAN SECURITIES LLC, WELLS
FARGO
CAPITAL FINANCE LLC, BARCLAYS CAPITAL, DEUTSCHE BANK SECURITIES INC.
and
RBC CAPITAL MARKETS
as Joint Lead Arrangers and Joint Bookrunners
Cahill Gordon & Reindel
llp
80 Pine Street
New York, New York 10005
TABLE OF CONTENTS
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Page
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SECTION 1.
|
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DEFINITIONS
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1
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1.1.
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DEFINED TERMS
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1
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1.2.
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OTHER INTERPRETIVE PROVISIONS
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54
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1.3.
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ACCOUNTING TERMS
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55
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1.4.
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ROUNDING
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55
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1.5.
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|
REFERENCES TO AGREEMENTS, LAWS, ETC
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|
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55
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1.6.
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EXCHANGE RATES
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56
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SECTION 2.
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AMOUNT AND TERMS OF CREDIT
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56
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2.1.
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COMMITMENTS
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56
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2.2.
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|
MINIMUM AMOUNT OF EACH BORROWING; MAXIMUM NUMBER OF BORROWINGS
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|
|
58
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2.3.
|
|
NOTICE OF BORROWING
|
|
|
59
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2.4.
|
|
DISBURSEMENT OF FUNDS
|
|
|
60
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|
2.5.
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|
REPAYMENT OF LOANS; EVIDENCE OF DEBT
|
|
|
61
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|
2.6.
|
|
CONVERSIONS AND CONTINUATIONS
|
|
|
61
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|
2.7.
|
|
PRO RATA BORROWINGS
|
|
|
62
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|
2.8.
|
|
INTEREST
|
|
|
62
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|
2.9.
|
|
INTEREST PERIODS
|
|
|
63
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|
2.10.
|
|
INCREASED COSTS, ILLEGALITY, ETC
|
|
|
64
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|
2.11.
|
|
COMPENSATION
|
|
|
66
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|
2.12.
|
|
CHANGE OF LENDING OFFICE
|
|
|
66
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|
2.13.
|
|
NOTICE OF CERTAIN COSTS
|
|
|
67
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|
2.14.
|
|
INCREMENTAL FACILITIES
|
|
|
67
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|
2.15.
|
|
RESERVES
|
|
|
68
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|
|
|
|
|
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SECTION 3.
|
|
LETTERS OF CREDIT
|
|
|
69
|
|
|
|
|
|
|
|
|
3.1.
|
|
LETTERS OF CREDIT
|
|
|
69
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|
3.2.
|
|
LETTER OF CREDIT REQUESTS
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|
|
71
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|
3.3.
|
|
LETTER OF CREDIT PARTICIPATIONS
|
|
|
73
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|
3.4.
|
|
AGREEMENT TO REPAY LETTER OF CREDIT DRAWINGS
|
|
|
75
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|
3.5.
|
|
INCREASED COSTS
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|
|
76
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|
3.6.
|
|
NEW OR SUCCESSOR LETTER OF CREDIT ISSUER
|
|
|
77
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|
3.7.
|
|
ROLE OF LETTER OF CREDIT ISSUER
|
|
|
78
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|
3.8.
|
|
CASH COLLATERAL
|
|
|
79
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|
3.9.
|
|
APPLICABILITY OF ISP AND UCP
|
|
|
79
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|
3.10.
|
|
CONFLICT WITH ISSUER DOCUMENTS
|
|
|
79
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3.11.
|
|
LETTERS OF CREDIT ISSUED FOR RESTRICTED SUBSIDIARIES
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|
|
80
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|
-i-
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Page
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SECTION 4.
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FEES; COMMITMENTS
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|
|
80
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|
|
|
|
|
|
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4.1.
|
|
FEES
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|
|
80
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|
4.2.
|
|
VOLUNTARY REDUCTION OF REVOLVING CREDIT COMMITMENTS
|
|
|
81
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|
4.3.
|
|
MANDATORY TERMINATION OF COMMITMENTS
|
|
|
81
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|
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|
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SECTION 5.
|
|
PAYMENTS
|
|
|
81
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|
|
|
|
|
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|
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5.1.
|
|
VOLUNTARY PREPAYMENTS
|
|
|
81
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|
5.2.
|
|
MANDATORY PREPAYMENTS
|
|
|
82
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|
5.3.
|
|
METHOD AND PLACE OF PAYMENT
|
|
|
83
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|
5.4.
|
|
NET PAYMENTS
|
|
|
84
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|
5.5.
|
|
COMPUTATIONS OF INTEREST AND FEES
|
|
|
86
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|
5.6.
|
|
LIMIT ON RATE OF INTEREST
|
|
|
87
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|
|
|
|
|
|
|
|
SECTION 6.
|
|
CONDITIONS PRECEDENT TO INITIAL BORROWING
|
|
|
87
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|
|
|
|
|
|
|
|
6.1.
|
|
CREDIT DOCUMENTS
|
|
|
87
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|
6.2.
|
|
COLLATERAL
|
|
|
88
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|
6.3.
|
|
LEGAL OPINIONS
|
|
|
88
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|
6.4.
|
|
REPAYMENT OF EXISTING CREDIT FACILITY
|
|
|
88
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|
6.5.
|
|
CLOSING CERTIFICATES
|
|
|
88
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|
6.6.
|
|
AUTHORIZATION OF PROCEEDINGS OF EACH CREDIT PARTY
|
|
|
89
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|
6.7.
|
|
FEES
|
|
|
89
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|
6.8.
|
|
FIELD EXAMINATION
|
|
|
89
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|
|
|
|
|
|
|
|
SECTION 7.
|
|
CONDITIONS PRECEDENT TO ALL CREDIT EVENTS
|
|
|
89
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|
|
|
|
|
|
|
|
7.1.
|
|
NO DEFAULT; REPRESENTATIONS AND WARRANTIES
|
|
|
89
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|
7.2.
|
|
NOTICE OF BORROWING; LETTER OF CREDIT REQUEST
|
|
|
89
|
|
|
|
|
|
|
|
|
SECTION 8.
|
|
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
|
|
|
90
|
|
|
|
|
|
|
|
|
8.1.
|
|
CORPORATE STATUS
|
|
|
90
|
|
8.2.
|
|
CORPORATE POWER AND AUTHORITY
|
|
|
90
|
|
8.3.
|
|
NO VIOLATION
|
|
|
90
|
|
8.4.
|
|
LITIGATION
|
|
|
91
|
|
8.5.
|
|
MARGIN REGULATIONS
|
|
|
91
|
|
8.6.
|
|
GOVERNMENTAL APPROVALS
|
|
|
91
|
|
8.7.
|
|
INVESTMENT COMPANY ACT
|
|
|
91
|
|
-ii-
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
8.8.
|
|
TRUE AND COMPLETE DISCLOSURE
|
|
|
91
|
|
8.9.
|
|
FINANCIAL CONDITION; FINANCIAL STATEMENTS
|
|
|
91
|
|
8.10.
|
|
TAX MATTERS
|
|
|
92
|
|
8.11.
|
|
COMPLIANCE WITH ERISA
|
|
|
92
|
|
8.12.
|
|
SUBSIDIARIES
|
|
|
92
|
|
8.13.
|
|
INTELLECTUAL PROPERTY
|
|
|
93
|
|
8.14.
|
|
ENVIRONMENTAL LAWS
|
|
|
93
|
|
8.15.
|
|
PROPERTIES
|
|
|
93
|
|
8.16.
|
|
SOLVENCY
|
|
|
93
|
|
|
|
|
|
|
|
|
SECTION 9.
|
|
AFFIRMATIVE COVENANTS
|
|
|
93
|
|
|
|
|
|
|
|
|
9.1.
|
|
INFORMATION COVENANTS
|
|
|
93
|
|
9.2.
|
|
BOOKS, RECORDS AND INSPECTIONS
|
|
|
97
|
|
9.3.
|
|
MAINTENANCE OF INSURANCE
|
|
|
99
|
|
9.4.
|
|
PAYMENT OF TAXES
|
|
|
99
|
|
9.5.
|
|
CONSOLIDATED CORPORATE FRANCHISES
|
|
|
99
|
|
9.6.
|
|
COMPLIANCE WITH STATUTES, REGULATIONS, ETC
|
|
|
99
|
|
9.7.
|
|
ERISA
|
|
|
99
|
|
9.8.
|
|
MAINTENANCE OF PROPERTIES
|
|
|
100
|
|
9.9.
|
|
TRANSACTIONS WITH AFFILIATES
|
|
|
100
|
|
9.10.
|
|
END OF FISCAL YEARS; FISCAL QUARTERS
|
|
|
101
|
|
9.11.
|
|
ADDITIONAL BORROWERS
|
|
|
101
|
|
9.12.
|
|
[RESERVED]
|
|
|
101
|
|
9.13.
|
|
USE OF PROCEEDS
|
|
|
101
|
|
9.14.
|
|
FURTHER ASSURANCES
|
|
|
102
|
|
9.15.
|
|
CASH MANAGEMENT SYSTEMS
|
|
|
102
|
|
|
|
|
|
|
|
|
SECTION 10.
|
|
NEGATIVE COVENANTS
|
|
|
106
|
|
|
|
|
|
|
|
|
10.1.
|
|
LIMITATION ON INDEBTEDNESS
|
|
|
107
|
|
10.2.
|
|
LIMITATION ON LIENS
|
|
|
114
|
|
10.3.
|
|
LIMITATION ON FUNDAMENTAL CHANGES
|
|
|
117
|
|
10.4.
|
|
LIMITATION ON SALE OF ASSETS
|
|
|
119
|
|
10.5.
|
|
LIMITATION ON INVESTMENTS
|
|
|
122
|
|
10.6.
|
|
LIMITATION ON DIVIDENDS
|
|
|
124
|
|
10.7.
|
|
LIMITATIONS ON DEBT PAYMENTS AND AMENDMENTS
|
|
|
126
|
|
10.8.
|
|
LIMITATIONS ON SALE LEASEBACKS
|
|
|
127
|
|
10.9.
|
|
MINIMUM INTEREST COVERAGE RATIO
|
|
|
127
|
|
10.10.
|
|
CHANGES IN BUSINESS
|
|
|
127
|
|
10.11.
|
|
1993 INDENTURE RESTRICTED SUBSIDIARIES
|
|
|
128
|
|
|
|
|
|
|
|
|
SECTION 11.
|
|
EVENTS OF DEFAULT
|
|
|
128
|
|
-iii-
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
11.1.
|
|
PAYMENTS
|
|
|
128
|
|
11.2.
|
|
REPRESENTATIONS, ETC
|
|
|
128
|
|
11.3.
|
|
COVENANTS
|
|
|
128
|
|
11.4.
|
|
DEFAULT UNDER OTHER AGREEMENTS
|
|
|
128
|
|
11.5.
|
|
BANKRUPTCY, ETC
|
|
|
129
|
|
11.6.
|
|
ERISA
|
|
|
129
|
|
11.7.
|
|
[RESERVED]
|
|
|
130
|
|
11.8.
|
|
[RESERVED]
|
|
|
130
|
|
11.9.
|
|
SECURITY AGREEMENT
|
|
|
130
|
|
11.10.
|
|
[RESERVED]
|
|
|
130
|
|
11.11.
|
|
JUDGMENTS
|
|
|
130
|
|
11.12.
|
|
CHANGE OF CONTROL
|
|
|
130
|
|
|
|
|
|
|
|
|
SECTION 12.
|
|
INVESTORS RIGHT TO CURE
|
|
|
132
|
|
|
|
|
|
|
|
|
SECTION 13.
|
|
THE AGENTS
|
|
|
132
|
|
|
|
|
|
|
|
|
13.1.
|
|
APPOINTMENT
|
|
|
132
|
|
13.2.
|
|
DELEGATION OF DUTIES
|
|
|
133
|
|
13.3.
|
|
EXCULPATORY PROVISIONS
|
|
|
133
|
|
13.4.
|
|
RELIANCE BY AGENTS
|
|
|
133
|
|
13.5.
|
|
NOTICE OF DEFAULT
|
|
|
134
|
|
13.6.
|
|
NON-RELIANCE ON ADMINISTRATIVE
AGENT, COLLATERAL AGENT AND OTHER LENDERS
|
|
|
134
|
|
13.7.
|
|
INDEMNIFICATION
|
|
|
135
|
|
13.8.
|
|
ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY
|
|
|
135
|
|
13.9.
|
|
SUCCESSOR AGENTS
|
|
|
135
|
|
13.10.
|
|
WITHHOLDING TAX
|
|
|
136
|
|
13.11.
|
|
REPORTS AND FINANCIAL STATEMENTS
|
|
|
137
|
|
|
|
|
|
|
|
|
SECTION 14.
|
|
MISCELLANEOUS
|
|
|
138
|
|
|
|
|
|
|
|
|
14.1.
|
|
AMENDMENTS AND WAIVERS
|
|
|
138
|
|
14.2.
|
|
NOTICES
|
|
|
140
|
|
14.3.
|
|
NO WAIVER; CUMULATIVE REMEDIES
|
|
|
140
|
|
14.4.
|
|
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
|
|
|
141
|
|
14.5.
|
|
PAYMENT OF EXPENSES
|
|
|
141
|
|
14.6.
|
|
SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS
|
|
|
141
|
|
14.7.
|
|
REPLACEMENTS OF LENDERS UNDER CERTAIN CIRCUMSTANCES
|
|
|
145
|
|
14.8.
|
|
ADJUSTMENTS; SET-OFF
|
|
|
146
|
|
14.9.
|
|
COUNTERPARTS
|
|
|
147
|
|
14.10.
|
|
SEVERABILITY
|
|
|
147
|
|
14.11.
|
|
INTEGRATION
|
|
|
147
|
|
-iv-
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
14.12.
|
|
GOVERNING LAW
|
|
|
147
|
|
14.13.
|
|
SUBMISSION TO JURISDICTION; WAIVERS
|
|
|
147
|
|
14.14.
|
|
ACKNOWLEDGMENTS
|
|
|
148
|
|
14.15.
|
|
WAIVERS OF JURY TRIAL
|
|
|
149
|
|
14.16.
|
|
CONFIDENTIALITY
|
|
|
149
|
|
14.17.
|
|
DIRECT WEBSITE COMMUNICATIONS
|
|
|
150
|
|
14.18.
|
|
USA PATRIOT ACT
|
|
|
151
|
|
14.19.
|
|
JOINT AND SEVERAL LIABILITY
|
|
|
151
|
|
14.20.
|
|
CONTRIBUTION AND INDEMNIFICATION AMONG THE BORROWERS
|
|
|
152
|
|
14.21.
|
|
AGENCY OF THE PARENT BORROWER FOR EACH OTHER BORROWER
|
|
|
153
|
|
14.22.
|
|
REINSTATEMENT
|
|
|
153
|
|
14.23.
|
|
EXPRESS WAIVERS BY BORROWERS IN
RESPECT OF CROSS GUARANTIES AND CROSS COLLATERALIZATION
|
|
|
153
|
|
|
|
|
SCHEDULES
|
|
|
|
Schedule 1
|
|
Commitments and Addresses of Lenders
|
Schedule 1.1(d)
|
|
Excluded Subsidiaries
|
Schedule 1.1(f)
|
|
Retained Indebtedness
|
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
|
|
|
|
EXHIBITS
|
|
|
|
Exhibit A
|
|
Form of Borrowing Base Certificate
|
Exhibit B
|
|
Form of Perfection Certificate
|
Exhibit C
|
|
Form of Security Agreement
|
Exhibit D
|
|
Form of Letter of Credit Request
|
Exhibit E
|
|
Form of Legal Opinion of Simpson Thacher & Bartlett LLP
|
Exhibit F
|
|
Form of Closing Certificate
|
Exhibit G
|
|
Form of Assignment and Acceptance
|
Exhibit H
|
|
Form of Joinder Agreement
|
Exhibit I
|
|
Form of Note
|
-v-
CREDIT AGREEMENT, dated as of September 30, 2011 (this
Agreement
), 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
), 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
), and the other agents and
bookrunners party hereto.
WHEREAS, (a) the Borrowers have requested that the Lenders extend credit in the form of
Revolving Credit Loans, in an aggregate principal amount of up to $2,500,000,000, (b) the Borrowers
have requested that the Letter of Credit Issuer issue Letters of Credit at any time and from time
to time after the Closing Date and prior to the L/C Maturity Date, in an aggregate principal amount
at any time outstanding not in excess of $250,000,000 and (c) the Parent Borrower has requested the
Swingline Lender to extend credit in the form of Swingline Loans at any time and from time to time
prior to the Swingline Maturity Date, in an aggregate principal amount at any time outstanding not
in excess of $125,000,000.
WHEREAS, the proceeds of Revolving Credit Loans and Swingline Loans will be used by the
Borrowers on or after the Closing Date to repay amounts outstanding under the Existing Credit
Agreement and 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;
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.
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 Closing Date or thereafter),
any accounts receivable, any heath-care-insurance receivables (as that term is defined in the UCC
on the Closing Date or thereafter), any payment intangibles (as that term is defined in the UCC
on the Closing Date or thereafter) 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 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.
Additional Receivables Intercreditor Agreement
shall mean (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
-2-
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, (iv) the Additional Receivables Intercreditor Agreement, dated as of August 1, 2011, by and
between the Collateral Agent and the New First Lien Collateral Agent and (v) any additional
receivables intercreditor agreement entered into by the Collateral Agent following the Closing 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 Revolving Credit Commitment
shall mean at any time the Total Revolving Credit
Commitment less the aggregate 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
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 Joint Bookrunner, each Joint Bookrunner and each Co-Documentation
Agent.
Aggregate Revolving Outstandings
shall have the meaning provided in
Section 5.2(b)
.
Agreement
shall mean this Credit Agreement, as the same may be amended, restated,
supplemented or otherwise modified from time to time.
Allocable Amount
shall have the meaning provided in
Section 14.20
.
-3-
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 for the first two full fiscal
quarters after the Closing 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 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(d)
of the 2007 ARCA) 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 2007 ARCA following the Original Closing Date and prior to
May 4, 2011;
-4-
(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 2007 ARCA following the
Original Closing Date and prior to May 4, 2011.
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 for the first two full fiscal quarters
after the Closing 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 G
, 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, the Secretary, or any 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
-5-
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 Revolving Credit Commitment over (b) the sum of (i) the aggregate 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
.
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 Revolving Credit 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) 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) Eligible Accounts outstanding 181 or
more days from the original invoice date (excluding Self-Pay Accounts) shall not exceed the lower
of: (a) the aggregate amount of cash collections received during the four calendar month period
then most recently completed for which internal financial statements are available in respect of
such Eligible Accounts and (b) $125,000,000, (ii) Self-Pay Accounts shall not exceed the lower of
(a) the aggregate amount of cash collections received during the four calendar month period then
most recently completed for which internal financial statements are available in respect of
Self-
-6-
Pay Accounts and (b) $250,000,000 and (iii) Potential Medicaid Accounts shall not exceed
$125,000,000
plus
(B) $173,456,000 solely from the Closing Date until the earliest to occur
of (i) the termination of the acquisition agreement with respect to the HealthONE Acquisition
without consummation thereof, (ii) the delivery of the Monthly Borrowing Base Certificate in
November 2011 and (iii) the inclusion in clause (A) of this definition of Accounts originated by
HCA-HealthONE LLC or any of its subsidiaries. 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
hereto.
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 Excess Global Availability of at least the greater of (x) 10% of the lesser of the
aggregate Commitments outstanding or the Borrowing Base effective at any time of determination and
(y) $325,000,000, 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 as required hereunder,
until (A) Excess Global Availability has exceeded the greater of (1) 10% of the lesser of the
aggregate Commitments outstanding or the Borrowing Base effective at any time of determination and
(2)
-7-
$325,000,000, 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 exceeds 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 Closing 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)
.
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 Citigroup Global Markets Inc., as
co-syndication agents, Banc of America Securities LLC, J.P. Morgan Securities LLC, Citigroup Global
Markets, Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as joint lead arrangers and
bookrunners, Deutsche Bank Securities Inc. and Wells Fargo Capital 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 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.
-8-
CF Obligations
shall mean Obligations as defined in the CF Agreement.
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 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;
provided
that notwithstanding anything
herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all
requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all
requests, rules, guidelines or directives promulgated by the Bank for International settlements,
the Basel Committee on Banking Supervision (or any successor or similar authority) or the United
States regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to
be a Change in Law, regardless of the date enacted, adopted or issued; and, provided, further,
that the increased costs associated with a Change in Law based on the foregoing clauses (x) and (y)
may only be imposed to the extent the applicable Lender imposes the same charges on other similarly
situated borrowers under comparable credit facilities.
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 any agreement governing Existing
Unsecured Notes or 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
-9-
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, Protective Advances, Incremental
Revolving Loans or Swingline Loans and, when used in reference to any Commitment, refers to whether
such Commitment is a Revolving Credit Commitment or a Incremental Revolving Credit Commitment.
Closing Date
shall mean the first date on which all the conditions precedent in
Section
6
are satisfied or waived in accordance with
Section 6
.
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.
Co-Documentation Agents
shall mean Barclays Capital, the Investment Banking Division of
Barclays Bank PLC, Deutsche Bank Securities Inc. and Royal Bank of Canada.
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.
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 the rate
per annum
on any day set forth below opposite the
Available Commitment (measured as a percentage of the Total Revolving Credit Commitment) on such
day:
|
|
|
|
|
Available Commitment
|
|
Commitment Fee Rate
|
|
<50%
|
|
|
0.250
|
%
|
³
50%
|
|
|
0.375
|
%
|
-10-
Commitments
shall mean, with respect to each Lender (to the extent applicable), such
Lenders 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
.
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,
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(viii) [Reserved],
(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),
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(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
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Subsidiary for such period (including the portion thereof occurring prior to such sale, transfer or disposition or
conversion).
Notwithstanding anything to the contrary, Consolidated EBITDA (prior to application of paragraphs
(iii) and (iv) immediately above) shall be deemed to be $1,461,000,000, $1,599,000,000 and
$1,448,000,000, respectively for the fiscal quarters ended December 31, 2010, March 31, 2011 and
June 30, 2011.
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.
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 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
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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 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 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.
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, Original 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,
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(f) accruals and reserves required to be established or adjusted as a result of the
Original 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.
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 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)
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 on the Closing Date, (b) who, as of the date of determination,
has been a member of such board of directors for at least the twelve preceding
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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
.
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 Citigroup Global Markets
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 Global Availability at any time is less than the
greater of (x) 10% of the lesser of aggregate then outstanding Commitments and the Borrowing Base
and (y) $325,000,000. For purposes hereof, the occurrence of a Covenant Compliance Event shall be deemed continuing until Excess Global Availability has exceeded
the greater of (x) 10% of the lesser of aggregate then outstanding Commitments and the Borrowing
Base and (y) $325,000,000 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, the Security Documents, each Letter of Credit
and any promissory notes issued by a Borrower hereunder, in each case, as amended, restated,
supplemented or otherwise modified from time to time in accordance with its terms.
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
.
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Debt Repayment
shall mean the repayment, prepayment, repurchase or defeasance of the
Indebtedness of the Parent Borrower under the 1993 Indenture 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).
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.
Default Rate
shall have the meaning set forth in
Section 2.8(c)
.
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 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 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
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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
.
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)
.
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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)
;
(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;
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(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 360 days following the original invoice date
(it being understood that with respect to Medicaid Accounts that were formerly
Potential Medicaid Accounts, the 360-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 (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;
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(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 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:
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(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 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.
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Environmental Law
shall mean any applicable federal, state, foreign or local statute, law,
rule, regulation, ordinance, code and rule of common law in effect on the 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 mean, collectively, the cash amounts (together with the amount of
any rollover equity originally issued to existing shareholders of the Parent Borrower) contributed
by the Sponsors and certain other investors (including the Management Investors) to Parent Borrower
and/or a direct or indirect parent (including for the avoidance of doubt, Hercules Holdings)
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) in each case in connection with the
Original Transactions.
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 as of the 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 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 Revolving Credit
Commitment hereunder
minus
(y) the aggregate 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.
Excluded Subsidiary
shall mean (a) each Domestic Subsidiary listed on
Schedule
1.1(d)
hereto and each subsequently formed or acquired Domestic Subsidiary, in each case,
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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)
hereto 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 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), (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
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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 Credit Agreement
shall mean that certain Credit Agreement, dated as of November 17,
2006, by and among the Parent Borrower, the Subsidiary Borrowers party thereto, the Administrative
Agent and the lenders signatory thereto, as amended and restated on June 20, 2007, and as further
amended and restated on May 4, 2011.
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, (iii) $1,400,000,000 aggregate
principal amount of the Parent Borrowers 7
1
/
4
% senior secured notes due 2020 and (iv) $3,000,000,000
aggregate principal amount of the Parent Borrowers 6
1
/
2
% senior secured notes due 2020, outstanding
on the Closing Date.
Existing Junior Lien Notes
shall mean $201,500,000 aggregate principal amount of the Parent
Borrowers 9
7
/
8
%% senior secured notes due 2017, outstanding on the Closing Date.
Existing Unsecured Notes
shall mean $2,000,000,000 aggregate principal amount of the Parent
Borrowers 7
1
/
2
% senior notes due 2022, outstanding on the Closing Date.
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
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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 September 30, 2016, 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.
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.
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 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) including any such
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Indebtedness of a Person that becomes a U.S. Guarantor (as defined in the CF Agreement) 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 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
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.
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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 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 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
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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.
HealthONE Acquisition
shall mean the acquisition of the remaining equity interests of The
Colorado Health Foundation in HCA-HealthONE LLC pursuant to that certain Membership Interest
Purchase Agreement, dated as of August 2, 2011.
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 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, 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 (i) the audited consolidated balance sheets of
the Parent Borrower as of December 31, 2009 and December 31, 2010 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, 2010 and (ii) the unaudited
consolidated balance sheet of the Parent Borrower as of June 30, 2011 and the unaudited
consolidated financial statements of income, stockholders equity and cashflows for the three and
six months ended June 30, 2011.
Holdings
shall mean HCA Holdings Inc., a Delaware 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
.
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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, (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.
Intercreditor Agreement
shall mean that certain Receivables Intercreditor Agreement, dated
as of the Original Closing Date, among the Collateral Agent and the CF Collateral Agent, as the
same may be amended, restated, modified or waived from time to time.
Interest Period
shall mean, with respect to any 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
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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
.
Investors
shall mean the Sponsors, the Management Investors, the Frist Shareholders and each
other investor that provided 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 H
,
with such changes thereto as are consistent with
Section 2.14
and are agreed to by the
Parent Borrower and the Administrative Agent.
Joint Lead Arrangers and Joint Bookrunners
shall mean Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Citigroup Global Markets Inc., J.P. Morgan Securities LLC, Wells Fargo Capital
Finance LLC, Barclays Capital, Deutsche Bank Securities Inc. and RBC Capital Markets.
Junior Indebtedness
shall have the meaning provided in
Section 10.7(a)
.
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)).
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.
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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.
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.
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
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 $250,000,000, 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 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)
).
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.
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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 4.50 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 3.50 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 3.50 to 1.00 as of such date.
LIBOR Loan
shall mean any 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 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 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)
.
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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 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.
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Merger
shall mean the merger of Merger Sub with and into the Parent Borrower, which occurred
pursuant to an agreement and plan of merger, dated as of July 24, 2006, by and among the Parent
Borrower, Hercules Holdings and Merger Sub.
Merger Sub
shall mean Hercules Acquisition Corporation, a Delaware corporation.
Minimum Borrowing Amount
shall mean (a) with respect to a Borrowing of LIBOR Loans,
$10,000,000 (or, if less, the aggregate Commitments at the time of such Borrowing), (b) with
respect to a Borrowing of ABR Loans, $1,000,000 (or, if less, the aggregate Commitments at the time
of such Borrowing), and (c) with respect to a Borrowing of Swingline Loans, $500,000 (or, if less,
the aggregate 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 First Lien Agreement
shall mean that certain Base Indenture, dated as of August 1, 2011
among the Parent Borrower, Holdings and the other parties signatory thereto, as supplemented by the
Supplemental Indenture No. 2 for the 6.50% senior secured notes due 2020, dated as of August 1,
2011, and as may be further amended, supplemented or modified from time to time.
New First Lien Collateral Agent
shall mean (i) so long as obligations are outstanding under
the New First Lien Agreement, Bank of America, N.A., in its capacity as collateral agent for the
noteholders and other secured parties under the New First Lien Agreement and the other security
documents thereunder, and (ii) at any time thereafter, such agent or trustee as is designated New
First Lien Collateral Agent by the Additional First Lien Secured Parties (as defined in the New
First Lien Agreement) holding a majority in principal amount of the Additional First Lien
Obligations (as defined in the New First Lien Agreement) then outstanding or
pursuant to such other arrangements as agreed to among the holders of the Additional First
Lien Obligations (as defined in the New First Lien Agreement); it being understood that, as of
August 1, 2011, Bank of America, N.A. was such New First Lien Collateral Agent.
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 constituted a Restricted Subsidiary under (and as defined in) the 1993 Indenture, as in effect
on the Original Closing Date.
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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 Merger, 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.
Non-U.S. Participant
shall mean any Participant that if it were a Lender would qualify as a
Non-U.S. Lender.
Note
shall mean a Note substantially in the form set forth in
Exhibit I
.
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),
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absolute or contingent, due or to become due, existing on the 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.
Original Closing Date
shall mean November 17, 2006.
Original Transactions
shall mean, collectively, the transactions contemplated by the
Existing Credit Agreement, the CF Agreement, the Junior Lien Notes Indenture (as defined in the
Existing Credit Agreement), the Debt Repayment, the Merger and the Equity Investments and the
intercompany transfers of the proceeds of the CF Facilities, Junior Lien Notes (as defined in the
Existing Credit Agreement) and Loans (as defined in the Existing Credit Agreement) made on the
Original Closing Date.
Original Transactions Expenses
shall mean any fees or expenses incurred or paid by the
Parent Borrower or any of its Subsidiaries in connection with the Original Transactions, the
Existing Credit Agreement and the transactions contemplated thereby.
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, 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)
.
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;
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(b) Excess Global Availability of at least (x) 10% of the lesser of the aggregate
amount of then outstanding Commitments or the Borrowing Base and (y) $325,000,000, 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 the perfection certificate of the Credit Parties
substantially in the form of
Exhibit B
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) 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 (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 10.8
of the CF Agreement for the most 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) (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
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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 Closing Date or based on facts not known to the Administrative Agent as of the 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 Closing Date in any material respect in
any concentration of risk with respect to Eligible Accounts and (ii) any other factors arising
after the 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);
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(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 Junior Lien Debt
shall mean the Existing Junior Lien Notes and any other
Indebtedness secured by a Lien on the Junior Lien Notes Collateral permitted by Section 10.2(e) 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;
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(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; 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.
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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 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.
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.
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
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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 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
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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.
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 (as defined in the CF Agreement) 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
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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 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 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.
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Related Person
shall have the meaning provided in
Section 9.15(a)
.
Repaid First Lien Indebtedness
shall have the meaning provided in the 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 Revolving Credit Commitment at such date or (b) if the Total
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.
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 Closing Date equal $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)
.
Revolving Credit Commitment
shall mean, (a) with respect to each Lender that is a Lender on
the Closing Date, the amount set forth opposite such Lenders name on
Schedule 1
hereto as
such Lenders Revolving Credit Commitment and (b) in the case of any Lender that becomes a Lender
after the Closing 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 Closing Date is
$2,500,000,000.
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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 Commitments 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 (a) such Lenders
Revolving Exposure at such time by (b) the Revolving Exposure of all Lenders at such time.
Revolving Credit Loans
shall have the meaning provided in
Section 2.1(b)
.
Revolving Exposure
shall mean, with respect to any Lender at any time, the sum of (a) the
aggregate principal amount of the Revolving Credit Loans of such Lender then outstanding, (b) such
Lenders Letter of Credit Exposure at such time, (c) such Lenders Revolving Credit Commitment
Percentage of the aggregate principal amount of all outstanding Swingline Loans and (d) with
respect to Protective Advances, such Lenders 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 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.
Revolving Lender
shall mean, at any time, any Lender that has a Revolving Credit Commitment
at such time.
Revolving 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 Closing 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.
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SEC
shall mean the Securities and Exchange Commission or any successor thereto.
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 the Closing Date 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 C
, 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.
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.
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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 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.
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.
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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 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.
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Subsidiary Borrowers
shall mean (a) each Domestic Subsidiary that is a party hereto as of
the Closing Date, (b) each Domestic Subsidiary that becomes a party to this Agreement on or after
the Closing 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 Revolving Credit Commitment at such date or (b) if the Total
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 $125,000,000.
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 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
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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.
Total Revolving Credit Commitment
shall mean the sum of the Revolving Credit Commitments of
all the Lenders.
Total Revolving Exposure
shall mean, at any date, the Total Revolving Credit Commitment at
such date (or, if the Total Revolving Credit Commitment shall have terminated on such date, the
aggregate Revolving Exposure of all Lenders at such date).
Transactions
shall mean the transactions contemplated by this 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.
2007 ARCA
shall mean the Borrowers ABL Credit Agreement as amended and restated on June 20,
2007.
Type
shall mean as to any 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
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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 date hereof, 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 10.9
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.
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(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.
(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;
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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
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.
SECTION 2.
Amount and Terms of Credit
.
2.1.
Commitments
.
(a) [Reserved]
(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 (each a
Revolving Credit Loan
and, collectively, the
Revolving Credit Loans
) to the Parent Borrower on
behalf of the Borrowers, which Revolving Credit Loans (A) shall be made at any time and from time
to time on or after the Closing Date, 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 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
Exposure at such time exceeding such Lenders 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 Revolving Exposures at such time exceeding the
lesser of the Borrowing Base and the Total Revolving Credit Commitment, in each case as then in
effect (subject to
Section 2.1(e)
).
(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
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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 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 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 Revolving Exposures at such
time exceeding the lesser of the Borrowing Base and 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
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
Revolving Lender that all then-outstanding Swingline Loans shall be funded with a Borrowing of
Revolving Credit Loans, in which case Revolving Credit Loans constituting ABR Loans (each such
Borrowing, a
Mandatory Borrowing
) shall be made on the immediately succeeding Business Day by
each Revolving Lender
pro rata
based on each Lenders 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 Revolving 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 or the
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 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 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
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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 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 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 Revolving Exposures at such time shall not exceed the Total
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 Revolving Lenders to make a 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 purchased from the
Administrative Agent, without recourse or warranty, an undivided interest and participation in such
Protective Advance in proportion to its 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 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 Revolving Credit Loans shall be in a
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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 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 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 and (ii) prior to 12:00 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 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 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 Revolving 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 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.
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(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 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
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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
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 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.
(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 Revolving Credit Loans
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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 Revolving Credit Loans to be so converted or
continued, the Type of Revolving Credit Loans to be converted or continued and, if such 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
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.
2.7.
Pro Rata Borrowings
. Each Borrowing of Revolving Credit Loans under this Agreement
shall be made by the Lenders
pro rata
on the basis of their then-applicable 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
.
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(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
2.00%
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
2.00% 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.
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 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).
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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 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 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
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(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 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
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 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
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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 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.
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
.
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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) At any time following the Closing 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 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 after giving effect 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) the Parent Borrower and its Restricted Subsidiaries shall be in Pro Forma
Compliance with the covenant set forth in
Section 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
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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 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 Revolving
Credit Commitments, at the principal amount thereof (together with accrued interest), 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, such Revolving
Credit Loans will be held by existing Revolving Lenders and Incremental Revolving Loan Lenders
ratably in accordance with their Revolving Credit Commitments after giving effect to the addition
of such Incremental Revolving Credit Commitments to the Revolving Credit Commitments, (b) each
Incremental Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit
Commitment and each Loan made thereunder (a
Incremental Revolving Loan
) shall be deemed, for all
purposes, a 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 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
.
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 increase; and
provided
further
that the Administrative Agent may only establish or increase a
Reserve after the Closing Date based on an event, condition or other circumstance arising after the
Closing Date or based on facts not known to the Administrative Agent as of the 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
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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 prior to the L/C Maturity Date, the Letter of Credit Issuer agrees, in reliance upon the
agreements of the Revolving 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 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 Revolving Exposures at such time to exceed
the lesser of the Borrowing Base and the 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 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:
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(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 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 $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 Revolving Lenders obligations to fund under
Section 3.3
exists or any Revolving Lender is at such time a Defaulting Lender hereunder, unless, in
each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the
Parent Borrower or such Revolving Lender to eliminate the Letter of Credit Issuers risk
with respect to such 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 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
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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 D
to
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, 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
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
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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 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,
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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 Revolving Lender (each
such 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 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 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 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 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 Revolving Credit Commitment Percentage of the amount of such payment no later than
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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 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 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 or any unrelated
transactions (including any underlying transaction between a Borrower and the beneficiary
named in any such Letter of Credit);
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(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 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 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 Revolving Credit Commitments make 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 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 on behalf of
the Borrowers 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 that is
outstanding on the Final Maturity Date, the full amount of the Letters of Credit Outstanding in
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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 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 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 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
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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 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
.
(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
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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.
(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
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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, 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
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.
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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
.
(a) The Borrowers agree to pay to the Administrative Agent in Dollars, for the account of each
Revolving 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 Closing Date to
the Revolving Termination Date. The 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 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 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. 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 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 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 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
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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
.
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
proportionately and permanently to reduce the 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 Revolving Exposures shall not
exceed the Total Revolving Credit Commitment.
4.3.
Mandatory Termination of Commitments
.
(a) The 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 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, one Business Day 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
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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 this
Section 5.1
, such prepayment
shall not be applied to any Revolving Credit Loan of a Defaulting Lender.
5.2.
Mandatory Prepayments
.
(a) [Reserved].
(b)
Repayment of Revolving Credit Loans
. (i) If on any date the aggregate amount of
the Lenders Revolving Exposures (collectively, the
Aggregate Revolving Outstandings
) for any
reason exceeds 100% of the Total 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, 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 Revolving
Credit Loans, the Aggregate Revolving Outstandings exceed the Total Revolving Credit Commitment
then in effect, the Borrowers shall Cash Collateralize the L/C Obligations to the extent of such
excess.
(ii) Except for Protective Advances, if on any date the Aggregate Revolving Outstandings for
any reason 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, 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
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 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
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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 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 Revolving Credit Loan of a Defaulting Lender.
(d) [Reserved].
(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 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
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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), 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 the
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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 Indemnified
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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.
5.5.
Computations of Interest and Fees
.
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(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 Initial Borrowing
.
The initial Borrowing under this Agreement is subject to the satisfaction of the following
conditions precedent, except as otherwise agreed between the Parent Borrower and the Administrative
Agent.
6.1.
Credit Documents
. The Administrative Agent shall have received:
(a) this Agreement, executed and delivered by a duly authorized officer of the Parent
Borrower, each Subsidiary Borrower and each Lender;
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(b) a Note executed by the Parent Borrower in favor of each Lender that requests a Note
no later than three Business Days prior to the Closing Date; and
(c) 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 Closing Date.
6.2.
Collateral
.
(a) The Administrative Agent shall have received the Security Agreement, executed and
delivered by a duly authorized officer of each grantor party thereto;
(b) All documents and instruments, including UCC or other applicable personal property
financing statements, reasonably requested by the Collateral Agent to be filed, registered or
recorded to create the Liens intended to be created by any Security Agreement and perfect such
Liens to the extent required by, and with the priority required by, such Security Agreement shall
have been filed, registered or recorded or delivered to the Collateral Agent for filing,
registration or recording (except those to be filed, registered, recorded, or delivered pursuant to
Section 9.14
and
9.15
); and
(c) The Parent Borrower shall have delivered to the Collateral Agent a completed Perfection
Certificate, executed and delivered by an Authorized Officer of the Parent Borrower, together with
all attachments contemplated thereby, including the results of a search of the Uniform Commercial
Code (or equivalent) filings made with respect to the Credit Parties in the jurisdictions
contemplated by the Perfection Certificate and such other searches as the Administrative Agent may
reasonably request (including intellectual property, tax and judgment searches) and copies of the
financing statements (or similar documents) disclosed by such search and evidence reasonably
satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or
similar documents) are permitted by
Section 10.2
or have been released;
provided
that the Collateral Agent may, in its reasonable judgment, grant extensions of time for compliance
with the Security Agreement by any Credit Party.
6.3.
Legal Opinions
. The Administrative Agent shall have received the executed legal
opinions of (a) Simpson Thacher & Bartlett LLP, special New York counsel to the Parent Borrower,
substantially in the form of
Exhibit E
and (b) local counsel to the Administrative Agent in
the jurisdictions listed on
Schedule 6.3(a)
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 opinions.
6.4.
Repayment of Existing Credit Facility
. The Administrative Agent shall have received
such pay-off letters and other evidence regarding the repayment of amounts outstanding under the
Existing Credit Agreement and the release of all liens or security interests related thereto as it
shall reasonably require.
6.5.
Closing Certificates
. The Administrative Agent shall have received (1) a certificate
of the Parent Borrower, dated the Closing Date, substantially in the form of
Exhibit F
,
with appropriate insertions, executed by the President or any Vice President and the Secretary or
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any Assistant Secretary of the Parent Borrower, and attaching the documents referred to in
Section 6.6
and the certificate of incorporation and bylaws or other formation and
organizational documents to such Credit Party and (2) certificates of each other Credit Party,
dated the Closing Date, substantially in the form of
Exhibit F
, with appropriate
insertions, executed by the President or
any Vice President and the Secretary or any Assistant
Secretary of the Subsidiary Borrower, and attaching the documents referred to in
Section
6.6
and (a) the certificate of incorporation and bylaws or other formation and organizational
documents to such Credit Party, or (b) if there has been no change to the certificates delivered in
connection with the most recent Existing First Lien Notes, then confirmation that no such change
has occurred.
6.6.
Authorization of Proceedings of Each Credit Party
. The Administrative Agent shall
have received a copy of the resolutions, in form and substance satisfactory to the Administrative
Agent, of the board of directors or other managers of each Credit Party (or a duly authorized
committee thereof) authorizing (a) the execution, delivery and performance of the Credit Documents
(and any agreements relating thereto) to which it is a party and (b) in the case of each Borrower,
the extensions of credit contemplated hereunder.
6.7.
Fees
. The Agents shall have received the fees in the amounts previously agreed in
writing by the Agents to be received on the Closing Date and all expenses (including the reasonable
fees, disbursements and other charges of counsel) payable by the Credit Parties for which invoices
have been presented three Business Days prior to the Closing Date shall have been paid or will be
paid on the Closing Date out of the initial Borrowing.
6.8.
Field Examination
. The Administrative Agent or its designee shall have completed a
field examination of the Borrowers Accounts and related working capital matters and of the
Borrowers related data processing and other systems, the results of which shall be reasonably
satisfactory to the Administrative Agent.
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 Revolving Credit Loans to be made by the
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
.
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(a) Prior to the making of each Revolving Credit Loan (other than any 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
.
(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 other transactions contemplated hereby 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
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(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, 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
, 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 any Credit
Document does 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
. 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 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 Closing Date
(including all such information and data contained in 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
. 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 this
Section 8.9
have
been prepared in accordance with GAAP consistently applied except to the extent provided in the
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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
. 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 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
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
.
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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 Closing Date, 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.
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 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 such financial statements are not required to be filed with the
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SEC, 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 10.9
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 Business Days after the date on which such financial statements are required to be
filed with the SEC (or, if such financial statements are not required to be filed with the
SEC, 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.
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(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 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)
, as the case may be.
(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;
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(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 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 Global
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
).
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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 Global 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, (y) the collection history of
Self-Pay Accounts for the immediately preceding 12 month period and (z) the collection
history for Accounts 180 to 360 days from the original invoice date.
(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 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
.
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(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 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 once per year (unless (x) required by applicable law,
(y) an Event of Default has occurred and is continuing, or (z) when Global Excess Availability for
five consecutive Business Days is less than the greater of (1) 10% of the lesser of the aggregate
amount of then outstanding Commitments or the Borrowing Base or (2) $325,000,000, in which case the
Administrative Agent may cause appraisals and field examinations to be undertaken twice per year 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
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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; 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
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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.
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) [Reserved], (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 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
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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
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
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 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 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, Revolving Credit Loans and
Swingline Loans for (i) general corporate purposes (including Permitted Acquisitions)
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and (ii) to
repay amounts outstanding under the Existing Credit Agreement (including all costs and expenses
associated therewith). Notwithstanding anything to the contrary, the Borrowers shall only be
permitted to make Revolving Credit Loans and use the proceeds thereof in reliance on clause (B) of
the Borrowing Base definition in connection with and for the purpose of consummating the HealthONE
Acquisition.
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 maintain the cash management systems described below (the
Cash
Management Systems
):
(i) (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)
(each a
Government Receivables Deposit Account
), (y) the Credit
Parties will, or will cause each of their Subsidiaries to, maintain lock boxes (
Lock
Boxes
) or, at the Administrative Agents discretion, blocked accounts (
Blocked Accounts
)
listed on
Schedule 9.15(c)
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. The
Parent Borrower shall maintain a concentration account in its name (the
Concentration
Account
) (with a bank reasonably acceptable to the Administrative Agent (it being agreed
that 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)
.
(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
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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
).
(iii) Within 60 calendar days after the 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)
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 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
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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) 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 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 may amend
Schedules 9.15(a)
and
(c)
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
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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, 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) 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.
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, 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.
(ii) Within 1 Business Day of the occurrence of a Cash Dominion Event, 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
entry into Government Receivables Deposit Account Agreements and
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Blocked Account Agreements, 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 that during the
continuance of a Cash Dominion Event following the entry into Government Receivables Deposit
Account Agreements and Blocked Account Agreements, (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) Within 60 calendar days after the 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)
. 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) Unless consented to in writing by the Collateral Agent, after the delivery of
Schedule 9.15(e)
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, 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
.
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 Drawings, together with interest,
Fees and all other Obligations incurred hereunder, are paid in full:
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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, $2,500,000,000, (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)
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 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 Agree
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)
otherwise constituting Investments permitted by
Sections 10.5(e)
,
10.5(g)
,
10.5(i)
,
10.5(q)
, or
10.5(y)
;
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(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 Credit Agreement, (ii) Indebtedness existing on the Closing Date 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
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, re
funding, 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 Credit Party may also be an obligor thereunder), and (z) except in
the case of a refinancing of Indebtedness pursuant to
subclause (ii)
, either (I)
such Indebtedness has a 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;
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(i) Indebtedness in respect of (i) Existing Junior Lien Notes, (ii) any
modification, replacement, refinancing, refunding, renewal or extension of Indebtedness
referred to in the foregoing
subclause (i)
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 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 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 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 10.8
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
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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 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
(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 10.8
of the CF Agreement for the most recently ended Test Period for
which Section 9.1 Financials have been delivered and (B) (1) after giving effect to
the incurrence of such Indebtedness, the aggregate amount of Scheduled
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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;
(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
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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 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;
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(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 and existing on the Closing Date 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 constitute Ratio First Lien Indebtedness, (ii) such Future Secured Debt is 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 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,
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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 In
debtedness, 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 Closing Date or thereafter acquired, except:
(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);
(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 (
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
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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 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;
(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 Closing Date and listed on
Schedule 10.2
;
(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 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)
,
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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;
(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
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second
Liens on the 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
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
$20,000,000 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
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
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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 10.8
of the CF Agreement for the most 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 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
10.8
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;
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(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
. 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
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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 10.8
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 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)
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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;
(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.
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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 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 Closing Date and either (x)
constituting Indebtedness that is permitted pursuant to
Section 10.1(g)(ii)
or (y)
listed on
Schedule 10.5
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 (a) by the Parent Borrower or any Restricted Subsidiary in any
Subsidiary Borrower, (b) between or among 1993 Indenture Restricted Subsidiaries, (c)
between or among Restricted Subsidiaries that are neither Subsidiary Borrowers nor 1993
Indenture Restricted Subsidiaries, (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 (e) by the Parent
Borrower or any Restricted Subsidiary 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;
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(h) Investments constituting Permitted Acquisitions;
(i) 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
;
(m) loans and 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 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;
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(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) 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) intercompany transfers of creditor positions (i) in respect of Indebtedness
outstanding pursuant to
Section 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 Credit
Party;
(x) Investments constituting Indebtedness outstanding pursuant to
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 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 (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;
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 Existing 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 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
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Restricted Subsidiaries and (C) the Parent Borrower shall comply with
Section 9.11
to the extent applicable;
(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 10.8
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
.
(a) The Parent Borrower will not, and will not permit any Restricted Subsidiary to, prepay,
repurchase or redeem or otherwise defease or acquire prior to the scheduled maturity thereof any
Subordinated Indebtedness, Retained Indebtedness (except as permitted in clause (b) below) or
Permitted Junior Lien Debt (collectively,
Junior Indebtedness
);
provided
,
however
, that the Parent Borrower or any Restricted Subsidiary may prepay, repurchase or
redeem Junior Indebtedness 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 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).
(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 or such later date as may be necessary to effect the Debt Repayment) prior to
the stated final maturity date thereof (as in effect on the 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 may be prepaid, repurchased, redeemed or defeased prior to its
stated maturity
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if, as of the Closing Date, such Retained Indebtedness to be repaid has a stated
final maturity occurring on any date on or between January 1, 2011 and December 31, 2011, (ii) the
Parent Borrower may prepay, repurchase, redeem, defease or acquire, prior to the stated final
maturity thereof Retained Indebtedness with a stated final maturity (as of the 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
recently ended Test Period for which Section 9.1 Financials have been delivered is no greater than
4.0:1, (iii) Retained Indebtedness may be refinanced 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.
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 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 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.
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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 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)
or
(c)
of this
Section 11.3
) contained in this Agreement,
any Security Document, the Fee Letter dated September 30, 2011 between the Parent Borrower
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
. 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
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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
. 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 now or hereafter 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 now or hereafter 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
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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
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
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 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
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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 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.
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SECTION 12.
Investors Right 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 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.
(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
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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 Joint Bookrunners and the
Co-Documentation Agents, 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 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,
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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 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
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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.
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 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 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
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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 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
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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.
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 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
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
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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.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder (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), except that the Commitment of such
Lender may not be increased or extended without the consent of such Lender.
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 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 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
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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 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
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,
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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, 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
.
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(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 to 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 if an Event of Default under
Section 11.1
or
Section
11.5
has occurred and is continuing; 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
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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; 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
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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 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
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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, 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 (such consent not to be unreasonably withheld or delayed).
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.
(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
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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 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,
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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;
(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
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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
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
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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
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
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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) (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) 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 shall be deemed to have authorized
the Administrative Agent and the other Agents to make such Borrower
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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 to it, and such Borrowers Obligations
arising as a result of the joint and several liability of such Borrower hereunder with
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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 now or hereafter 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 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 now has or may hereafter have 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 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
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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.
14.23.
Express Waivers by Borrowers in Respect of Cross Guaranties and Cross
Collateralization
. Each Borrower agrees as follows:
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(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 now or at any time
hereafter have 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 payment of the Obligations, or enforce, exchange, release,
or waive any security for the Obligations;
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(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.
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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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/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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Senior Vice President Finance and Treasurer
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Credit Agreement Signature Page
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The SUBSIDIARY BORROWERS listed on Annex
1 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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Authorized Officer
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Credit Agreement Signature Page
Annex I
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 Sole
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Subsidiary Borrower
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Partner
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Member
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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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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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*
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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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Credit Agreement Signature Page
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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 Sole
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Subsidiary Borrower
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Partner
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Member
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Member
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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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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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Hendersonville Hospital Corporation
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Hospital Corporation of Tennessee
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Credit Agreement Signature Page
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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 Sole
|
|
Subsidiary Borrower
|
|
Partner
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Member
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|
Member
|
|
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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HTI MOB, LLC
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*
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Integrated Regional Lab, LLC
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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
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Credit Agreement Signature Page
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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 Sole
|
|
Subsidiary Borrower
|
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Partner
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Member
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Member
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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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Northern Utah Healthcare Corporation
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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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Credit Agreement Signature Page
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By its
|
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By its
|
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|
By the General
|
|
|
|
General
|
|
|
Sole
|
|
|
Partner of its Sole
|
|
Subsidiary Borrower
|
|
Partner
|
|
|
Member
|
|
|
Member
|
|
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 Newport Richey, Inc.
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Surgicare of Palms West, LLC
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Surgicare of Riverside, LLC
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*
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Tallahassee Medical Center, Inc.
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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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*
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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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Credit Agreement Signature Page
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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 Sole
|
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Subsidiary Borrower
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Partner
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Member
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Member
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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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AR Holding 10, LLC
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*
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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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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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|
|
Credit Agreement Signature Page
|
|
|
|
|
|
BANK OF AMERICA, N.A., as Administrative Agent,
as Collateral Agent, as Swingline Lender, as
Letter of Credit Issuer and as a Lender
|
|
|
By:
|
/s/ Christopher Kelly Wall
|
|
|
|
Name:
|
Christopher Kelly Wall
|
|
|
|
Title:
|
Managing Director
|
|
|
Credit Agreement Signature Page
|
|
|
|
|
|
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED, as
Joint Lead Arranger and Joint Bookrunner
|
|
|
By:
|
/s/ Christopher Kelly Wall
|
|
|
|
Name:
|
Christopher Kelly Wall
|
|
|
|
Title:
|
Managing Director
|
|
|
Credit Agreement Signature Page
|
|
|
|
|
|
CITIGROUP GLOBAL MARKETS INC., as
Joint Lead Arranger, Joint Bookrunner and
Co-Syndication Agent
|
|
|
By:
|
/s/ Shane V. Azzara
|
|
|
|
Name:
|
Shane V. Azzara
|
|
|
|
Title:
|
Director
|
|
|
Credit Agreement Signature Page
|
|
|
|
|
|
Citicorp North America, Inc., as Lender
|
|
|
By:
|
/s/ Shane V. Azzara
|
|
|
|
Name:
|
Shane V. Azzara
|
|
|
|
Title:
|
Director
|
|
|
Credit Agreement Signature Page
|
|
|
|
|
|
J.P. MORGAN SECURITIES LLC, as
Joint Lead Arranger, Joint Bookrunner and
Co-Syndication Agent
|
|
|
By:
|
/s/ Gregory Maxin
|
|
|
|
Name:
|
Gregory Maxin
|
|
|
|
Title:
|
Vice President
|
|
|
Credit Agreement Signature Page
|
|
|
|
|
|
JPMORGAN CHASE BANK, N.A., as
Lender
|
|
|
By:
|
/s/ Dawn LeeLum
|
|
|
|
Name:
|
Dawn LeeLum
|
|
|
|
Title:
|
Executive Director
|
|
|
Credit Agreement Signature Page
|
|
|
|
|
|
WELLS FARGO CAPITAL FINANCE LLC, as
Joint Lead Arranger, Joint Bookrunner and
Co-Syndication Agent
|
|
|
By:
|
/s/ Reza Sabahi
|
|
|
|
Name:
|
Reza Sabahi
|
|
|
|
Title:
|
Authorized Signatory
|
|
|
Credit Agreement Signature Page
|
|
|
|
|
|
WELLS FARGO BANK, N.A., as Lender
|
|
|
By:
|
/s/ Reza Sabahi
|
|
|
|
Name:
|
Reza Sabahi
|
|
|
|
Title:
|
Authorized Signatory
|
|
|
Credit Agreement Signature Page
|
|
|
|
|
|
BARCLAYS BANK PLC, as Joint Lead Arranger, Joint
Bookrunner, Co-Documentation Agent and as a
Lender
|
|
|
By:
|
/s/ Vanessa A. Kurbatskiy
|
|
|
|
Name:
|
Vanessa A. Kurbatskiy
|
|
|
|
Title:
|
Vice President
|
|
|
Credit Agreement Signature Page
|
|
|
|
|
|
DEUTSCHE BANK SECURITIES INC., as Joint Lead
Arranger, Joint Bookrunner and
Co-Documentation Agent
|
|
|
By:
|
/s/ Frank Fazio
|
|
|
|
Name:
|
Frank Fazio
|
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
|
By:
|
/s/ Stephen R. Lapidus
|
|
|
|
Name:
|
Stephen R. Lapidus
|
|
|
|
Title:
|
Director
|
|
|
Credit Agreement Signature Page
|
|
|
|
|
|
Deutsche Bank Trust Company Americas, as Lender
|
|
|
By:
|
/s/ Carin Keegan
|
|
|
|
Name:
|
Carin Keegan
|
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
By:
|
/s/ Marguerite Sutton
|
|
|
|
Name:
|
Marguerite Sutton
|
|
|
|
Title:
|
Director
|
|
|
Credit Agreement Signature Page
|
|
|
|
|
|
RBC CAPITAL MARKETS, as Joint Lead Arranger and
Joint Bookrunner
|
|
|
By:
|
/s/ Daniel Gioia
|
|
|
|
Name:
|
Daniel Gioia
|
|
|
|
Title:
|
Authorized Signatory
|
|
|
Credit Agreement Signature Page
|
|
|
|
|
|
GOLDMAN SACHS BANK USA, as Lender
|
|
|
By:
|
/s/ Mark Walton
|
|
|
|
Name:
|
Mark Walton
|
|
|
|
Title:
|
Authorized Signatory
|
|
|
Credit Agreement Signature Page
|
|
|
|
|
|
SunTrust Bank, as Lender
|
|
|
By:
|
/s/ John Burer
|
|
|
|
Name:
|
John Burer
|
|
|
|
Title:
|
Vice President
|
|
|
Credit Agreement Signature Page
|
|
|
|
|
|
MORGAN STANLEY SENIOR FUNDING, INC., as
Lender
|
|
|
|
|
|
By:
|
/s/ Lisa Hanson
|
|
|
|
Name:
|
Lisa Hanson
|
|
|
|
Title:
|
Authorized Signatory
|
|
|
Credit Agreement Signature Page
|
|
|
|
|
|
MORGAN STANLEY BANK, N.A., as Lender
|
|
|
By:
|
/s/ Lisa Hanson
|
|
|
|
Name:
|
Lisa Hanson
|
|
|
|
Title:
|
Authorized Signatory
|
|
|
Credit Agreement Signature Page
|
|
|
|
|
|
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,
as Lender
|
|
|
|
|
|
By:
|
/s/ Shaheen Malik
|
|
|
|
Name:
|
Shaheen Malik
|
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
By:
|
/s/ Kevin Buddhdew
|
|
|
|
Name:
|
Kevin Buddhdew
|
|
|
|
Title:
|
Associate
|
|
|
Credit Agreement Signature Page
|
|
|
|
|
|
CITY NATIONAL BANK, a national banking
association,
as Lender
|
|
|
By:
|
/s/ Mia Bolin
|
|
|
|
Name:
|
Mia Bolin
|
|
|
|
Title:
|
Vice President
|
|
|
Credit Agreement Signature Page
|
|
|
|
|
|
Credit Agricole Corporate and Investment Bank, as
Lender
|
|
|
By:
|
/s/ Thomas Randolph
|
|
|
|
Name:
|
Thomas Randolph
|
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
|
By:
|
/s/ David Chrisiansen
|
|
|
|
Name:
|
David Chrisiansen
|
|
|
|
Title:
|
Director
|
|
|
Credit Agreement Signature Page
|
|
|
|
|
|
Fifth Third Bank, as Lender
|
|
|
By:
|
/s/ William D. Priester
|
|
|
|
Name:
|
William D. Priester
|
|
|
|
Title:
|
Vice President
|
|
|
Credit Agreement Signature Page
|
|
|
|
|
|
Webster Business Credit Corporation, as Lender
|
|
|
By:
|
/s/ Deborah Kos-Harmon
|
|
|
|
Name:
|
Deborah Kos-Harmon
|
|
|
|
Title:
|
Vice President
|
|
|
Credit Agreement Signature Page
|
|
|
|
|
|
RAYMOND JAMES BANK, FSB, as Lender
|
|
|
By:
|
/s/ Alexander L. Rody
|
|
|
|
Name:
|
Alexander L. Rody
|
|
|
|
Title:
|
Senior Vice President
|
|
|
Credit Agreement Signature Page