Exhibit 4.1
INDENTURE
Dated as of November 17, 2006
Among
HCA INC.,
THE GUARANTORS NAMED ON SCHEDULE I HERETO
and
THE BANK OF NEW YORK,
as Trustee
9 1/8% SENIOR SECURED NOTES DUE 2014
9 1/4% SENIOR SECURED NOTES DUE 2016
and
9 5/8%/10 3/8% SENIOR SECURED TOGGLE NOTES DUE 2016
CROSS-REFERENCE TABLE*
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Trust Indenture Act Section
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Indenture Section
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310 (a)(1)
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7.10
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(a)(2)
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7.10
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(a)(3)
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N.A.
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(a)(4)
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N.A.
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(a)(5)
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7.10
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(b)
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7.10
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(c)
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N.A.
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311 (a)
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7.11
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(b)
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7.11
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(c)
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N.A.
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312 (a)
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2.05
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(b)
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14.03
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(c)
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14.03
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313 (a)
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7.06
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(b)(1)
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N.A.
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(b)(2)
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7.06; 7.07
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(c)
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7.06; 14.02
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(d)
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7.06; 14.02
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314 (a)
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4.03; 14.02; 14.05
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(b)
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11.05
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(c)(1)
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14.04
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(c)(2)
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14.04
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(c)(3)
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N.A.
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(d)
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11.05
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(e)
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14.05
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(f)
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N.A.
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315 (a)
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7.01
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(b)
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7.05; 14.02.
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(c)
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7.01
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(d)
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7.01
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(e)
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6.14
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316 (a)(last sentence)
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2.09
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(a)(1)(A)
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6.05
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(a)(1)(B)
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6.04
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(a)(2)
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N.A.
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(b)
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6.07
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(c)
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2.12; 9.04
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317 (a)(1)
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6.08
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(a)(2)
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6.12
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(b)
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2.04
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318 (a)
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14.01
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(b)
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N.A.
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(c)
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14.01
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N.A. means not applicable.
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*
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This Cross-Reference Table is not part of the Indenture.
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TABLE OF CONTENTS
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Page
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ARTICLE 1
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DEFINITIONS AND INCORPORATION BY REFERENCE
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Section 1.01
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Definitions
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1
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Section 1.02
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Other Definitions
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37
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Section 1.03
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Incorporation by Reference of Trust Indenture Act
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38
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Section 1.04
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Rules of Construction.
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38
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Section 1.05
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Acts of Holders
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39
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ARTICLE 2
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THE NOTES
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Section 2.01
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Form and Dating; Terms
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40
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Section 2.02
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Execution and Authentication
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42
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Section 2.03
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Registrar and Paying Agent
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43
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Section 2.04
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Paying Agent to Hold Money in Trust
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43
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Section 2.05
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Holder Lists
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43
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Section 2.06
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Transfer and Exchange
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44
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Section 2.07
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Replacement Notes
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55
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Section 2.08
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Outstanding Notes
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55
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Section 2.09
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Treasury Notes
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55
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Section 2.10
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Temporary Notes
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56
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Section 2.11
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Cancellation
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56
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Section 2.12
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Defaulted Cash Interest
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56
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Section 2.13
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CUSIP and ISIN Numbers
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57
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ARTICLE 3
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REDEMPTION
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Section 3.01
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Notices to Trustee
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57
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Section 3.02
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Selection of Notes to Be Redeemed or Purchased
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57
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Section 3.03
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Notice of Redemption
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58
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Section 3.04
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Effect of Notice of Redemption
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58
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Section 3.05
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Deposit of Redemption or Purchase Price
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59
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Section 3.06
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Notes Redeemed or Purchased in Part
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59
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Section 3.07
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Optional Redemption
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59
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Section 3.08
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Mandatory Redemption
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62
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Section 3.09
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Asset Sales of Collateral
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63
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Section 3.10
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Asset Sales
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65
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-i-
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Page
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ARTICLE 4
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COVENANTS
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Section 4.01
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Payment of Notes
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66
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Section 4.02
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Maintenance of Office or Agency
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67
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Section 4.03
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Reports and Other Information
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67
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Section 4.04
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Compliance Certificate
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68
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Section 4.05
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Taxes
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69
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Section 4.06
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Stay, Extension and Usury Laws
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69
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Section 4.07
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Limitation on Restricted Payments
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69
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Section 4.08
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Limitation on Prepayment or Modification of Existing Notes
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76
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Section 4.09
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Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries
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76
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Section 4.10
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Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock
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78
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Section 4.11
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Asset Sales
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83
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Section 4.12
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Transactions with Affiliates
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86
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Section 4.13
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Liens
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88
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Section 4.14
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Corporate Existence
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89
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Section 4.15
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Offer to Repurchase upon Change of Control
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89
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Section 4.16
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Limitation on Guarantees of Indebtedness by Restricted Subsidiaries
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91
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Section 4.17
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Discharge and Suspension of Covenants
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92
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Section 4.18
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After-Acquired Collateral; Principal Properties
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93
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ARTICLE 5
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SUCCESSORS
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Section 5.01
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Merger, Consolidation or Sale of All or Substantially All Assets
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93
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Section 5.02
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Successor Corporation Substituted
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95
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ARTICLE 6
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DEFAULTS AND REMEDIES
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Section 6.01
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Events of Default
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96
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Section 6.02
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Acceleration
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98
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Section 6.03
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Other Remedies
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98
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Section 6.04
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Waiver of Past Defaults
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98
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Section 6.05
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Control by Majority
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99
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Section 6.06
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Limitation on Suits
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99
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Section 6.07
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Rights of Holders of Notes to Receive Payment
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99
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Section 6.08
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Collection Suit by Trustee
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99
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Section 6.09
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Restoration of Rights and Remedies
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100
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Section 6.10
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Rights and Remedies Cumulative
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100
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Section 6.11
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Delay or Omission Not Waiver
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100
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Section 6.12
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Trustee May File Proofs of Claim
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100
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Section 6.13
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Priorities
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101
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Section 6.14
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Undertaking for Costs
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101
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-ii-
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Page
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ARTICLE 7
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TRUSTEE
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Section 7.01
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Duties of Trustee
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101
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Section 7.02
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Rights of Trustee
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102
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Section 7.03
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Individual Rights of Trustee
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103
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Section 7.04
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Trustees Disclaimer
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104
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Section 7.05
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Notice of Defaults
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104
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Section 7.06
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Reports by Trustee to Holders of the Notes
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104
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Section 7.07
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Compensation and Indemnity
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104
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Section 7.08
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Replacement of Trustee
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105
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Section 7.09
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Successor Trustee by Merger, etc
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106
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Section 7.10
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Eligibility; Disqualification
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106
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Section 7.11
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Preferential Collection of Claims Against Issuer
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106
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ARTICLE 8
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LEGAL DEFEASANCE AND COVENANT DEFEASANCE
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Section 8.01
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Option to Effect Legal Defeasance or Covenant Defeasance
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106
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Section 8.02
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Legal Defeasance and Discharge
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106
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Section 8.03
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Covenant Defeasance
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107
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Section 8.04
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Conditions to Legal or Covenant Defeasance
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108
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Section 8.05
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Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions
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109
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Section 8.06
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Repayment to Issuer
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109
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Section 8.07
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Reinstatement
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110
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ARTICLE 9
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AMENDMENT, SUPPLEMENT AND WAIVER
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Section 9.01
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Without Consent of Holders of Notes
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110
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Section 9.02
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With Consent of Holders of Notes
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111
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Section 9.03
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Compliance with Trust Indenture Act
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113
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Section 9.04
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Revocation and Effect of Consents
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113
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Section 9.05
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Notation on or Exchange of Notes
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114
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Section 9.06
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Trustee to Sign Amendments, etc
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114
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Section 9.07
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Payment for Consent
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114
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ARTICLE 10
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RANKING OF NOTE LIENS
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Section 10.01
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Relative Rights
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114
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-iii-
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Page
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ARTICLE 11
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COLLATERAL
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Section 11.01
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Security Documents
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116
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Section 11.02
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Collateral Agent
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116
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Section 11.03
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Authorization of Actions to Be Taken
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117
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Section 11.04
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Release of Collateral
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118
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Section 11.05
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Filing, Recording and Opinions
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119
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Section 11.06
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Powers Exercisable by Receiver or Trustee
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120
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Section 11.07
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Release upon Termination of the Issuers Obligations
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120
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Section 11.08
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Designations
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120
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ARTICLE 12
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GUARANTEES
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Section 12.01
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Guarantee
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120
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Section 12.02
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Limitation on Guarantor Liability
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122
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Section 12.03
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Execution and Delivery
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122
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Section 12.04
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Subrogation
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123
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Section 12.05
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Benefits Acknowledged
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123
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Section 12.06
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Release of Guarantees
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123
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ARTICLE 13
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SATISFACTION AND DISCHARGE
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Section 13.01
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Satisfaction and Discharge
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124
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Section 13.02
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Application of Trust Money
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125
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ARTICLE 14
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MISCELLANEOUS
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Section 14.01
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Trust Indenture Act Controls
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125
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Section 14.02
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Notices
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125
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Section 14.03
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Communication by Holders of Notes with Other Holders of Notes
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126
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Section 14.04
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Certificate and Opinion as to Conditions Precedent
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126
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Section 14.05
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Statements Required in Certificate or Opinion
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126
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Section 14.06
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Rules by Trustee and Agents
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127
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Section 14.07
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No Personal Liability of Directors, Officers, Employees and Stockholders
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127
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Section 14.08
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Governing Law
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127
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Section 14.09
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Waiver of Jury Trial
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127
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Section 14.10
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Force Majeure
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127
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Section 14.11
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No Adverse Interpretation of Other Agreements
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128
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Section 14.12
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Successors
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128
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Section 14.13
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Severability
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128
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Section 14.14
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Counterpart Originals
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128
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Section 14.15
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Table of Contents, Headings, etc
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128
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-iv-
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Page
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Section 14.16
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Qualification of Indenture
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128
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SCHEDULES
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Schedule I
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Guarantors
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EXHIBITS
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Exhibit A-1
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Form of 2014 Cash-Pay Note
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Exhibit A-2
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Form of 2016 Cash-Pay Note
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Exhibit A-3
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Form of Toggle Note
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Exhibit B
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Form of Certificate of Transfer
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Exhibit C
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Form of Certificate of Exchange
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Exhibit D
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Form of Supplemental Indenture to Be Delivered by Subsequent Guarantors
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-v-
INDENTURE, dated as of November 17, 2006, among HCA Inc., a Delaware corporation (the
Issuer
), the Guarantors (as defined herein) listed on the signature pages hereto and The
Bank of New York, a New York banking corporation, as Trustee.
W
I
T
N
E
S
S
E
T
H
WHEREAS, the Issuer has duly authorized the creation of (i) an issue of $1,000,000,000
aggregate principal amount of 9 1/8% Senior Secured Notes due 2014 (the
Initial 2014 Cash-Pay
Notes
), (ii) an issue of $3,200,000,000 aggregate principal amount of 9 1/4% Senior Secured
Notes due 2016 (the
Initial 2016 Cash-Pay Notes
) and (iii) an issue of $1,500,000,000
aggregate principal amount of 9 5/8%/10 3/8% Senior Secured Toggle Notes due 2016 (the
Initial
Toggle Notes
); and
WHEREAS, the Issuer and each of the Guarantors has duly authorized the execution and delivery
of this Indenture.
NOW, THEREFORE, the Issuer, the Guarantors and the Trustee 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
.
144A Global Note
means a Global Note substantially in the form of
Exhibit
A-1
,
Exhibit A-2
or
Exhibit A-3
attached hereto, as the case may be, bearing
the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and
registered in the name of, the Depositary or its nominee that will be issued in a denomination
equal to the outstanding principal amount of the Notes sold in reliance on Rule 144A.
2014 Cash-Pay Notes
means the Initial 2014 Cash-Pay Notes and any Additional 2014
Cash-Pay Notes.
2016 Cash-Pay Notes
means the Initial 2016 Cash-Pay Notes and any Additional 2016
Cash-Pay Notes.
ABL Collateral Agent
means Bank of America, N.A., in its capacity as administrative
agent and collateral agent for the lenders and other secured parties under the ABL Facility and the
credit, guarantee and security documents governing the ABL Obligations, together with its
successors and permitted assigns under the ABL Facility exercising substantially the same rights
and powers; and in each case provided that if such ABL Collateral Agent is not Bank of America,
N.A., such ABL Collateral Agent shall have become a party to the Shared Receivables Intercreditor
Agreement and the other applicable Shared Receivables Security Documents.
ABL Facility
means the Asset-Based Revolving Credit Agreement dated as of the Issue
Date by and among the Issuer, the lenders party thereto in their capacities as lenders thereunder
and Bank of America, N.A., as Administrative Agent, including any guarantees, collateral documents,
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 (
provided
that such increase in borrowings is permitted under Section 4.10 hereof).
ABL Facility Cap
means an amount equal to the greater of (x) $2,000.0 million and
(y) 75% of the consolidated accounts receivable of the Issuer and its subsidiaries determined in
accordance with GAAP.
ABL Financing Entity
means the Issuer and certain of its subsidiaries from time to
time named as borrowers or guarantors under the ABL Facility.
ABL Obligations
means Obligations under the ABL Facility.
ABL Secured Parties
means each of (i) the ABL Collateral Agent on behalf of itself
and the lenders under the ABL Facility and lenders or their affiliates counterparty to related
Hedging Obligations and (ii) each other holder of ABL Obligations.
Acquired Indebtedness
means, with respect to any specified Person,
(1) Indebtedness of any other Person existing at the time such other Person is merged
with or into or became a Restricted Subsidiary of such specified Person, including
Indebtedness incurred in connection with, or in contemplation of, such other Person merging
with or into or becoming a Restricted Subsidiary of such specified Person, and
(2) Indebtedness secured by a Lien encumbering any asset acquired by such specified
Person.
Additional Interest
means all additional interest then owing pursuant to the
Registration Rights Agreement.
Additional 2014 Cash-Pay Notes
means additional 2014 Cash-Pay Notes (other than the
Initial 2014 Cash-Pay Notes and other than Exchange Notes for such Initial 2014 Cash-Pay Notes)
issued from time to time under this Indenture in accordance with Sections 2.01 and 4.10 hereof;
provided
that such term shall not include any PIK Notes.
Additional 2016 Cash-Pay Notes
means additional 2016 Cash-Pay Notes (other than the
Initial 2016 Cash-Pay Notes and other than Exchange Notes for such Initial 2016 Cash-Pay Notes)
issued from time to time under this Indenture in accordance with Sections 2.01 and 4.10 hereof;
provided
that such term shall not include any PIK Notes.
Additional Notes
means Additional 2014 Cash-Pay Notes, Additional 2016 Cash-Pay
Notes and Additional Toggle Notes.
Additional Toggle Notes
means additional Toggle Notes (other than the Initial Toggle
Notes and other than Exchange Notes issued for such Initial Toggle Notes) issued from time to time
under this Indenture in accordance with Sections 2.01 and 4.10 hereof;
provided
that such
term shall not include any PIK Notes.
-2-
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.
Agent
means any Registrar or Paying Agent.
Applicable Premium
means, with respect to any Note on any Redemption Date, the
greater of:
(1) 1.0% of the principal amount of such Note; and
(2) (A) with respect to the 2016 Cash-Pay Notes and the Toggle Notes, the excess, if
any, of (a) the present value at such Redemption Date of (i) the redemption price of such
Note at November 15, 2011 (such redemption price being set forth in the tables appearing
under Section 3.07(i) hereof and Section 3.07(o) hereof, respectively,
plus
(ii) all
required interest payments (in the case of the Toggle Notes, calculated based on the cash
interest rate payable on the Toggle Notes) due on such Note through November 15, 2011
(excluding accrued but unpaid interest to the Redemption Date), computed using a discount
rate equal to the Treasury Rate as of such Redemption Date plus 50 basis points; over (b)
the principal amount of such Note, or
(B) with respect to the 2014 Cash-Pay Notes, the excess, if any, of (a) the present
value at such Redemption Date of (i) the redemption price of such 2014 Cash-Pay Note at
November 15, 2010 (such redemption price being set forth in the table appearing under
Section 3.07(c) hereof),
plus
(ii) all required interest payments due on such 2014 Cash-Pay
Note through November 15, 2010 (excluding accrued but unpaid interest to the Redemption
Date), computed using a discount rate equal to the Treasury Rate as of such Redemption Date
plus 50 basis points; over (b) the principal amount of such 2014 Cash-Pay Note.
Applicable Procedures
means, with respect to any transfer or exchange of or for
beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear
and/or Clearstream that apply to such transfer or exchange.
Asset Sale
means:
(1) the sale, conveyance, transfer or other disposition, whether in a single
transaction or a series of related transactions, of property or assets (including by way of
a Sale and Lease-Back Transaction) of the Issuer or any of its Restricted Subsidiaries (each
referred to in this definition as a
disposition
); or
(2) the issuance or sale of Equity Interests of any Restricted Subsidiary, whether in a
single transaction or a series of related transactions (other than Preferred Stock of
Restricted Subsidiaries issued in compliance with Section 4.10 hereof);
in each case, other than:
(a) any disposition of Cash Equivalents or Investment Grade Securities or obsolete or
worn out equipment in the ordinary course of business or any disposition of inventory or
goods (or other assets) held for sale in the ordinary course of business;
-3-
(b) the disposition of all or substantially all of the assets of the Issuer in a manner
permitted pursuant to the provisions described under Section 5.01 hereof or any disposition
that constitutes a Change of Control pursuant to this Indenture;
(c) the making of any Restricted Payment or Permitted Investment that is permitted to
be made, and is made, under Section 4.07 hereof;
(d) any disposition of assets or issuance or sale of Equity Interests of any Restricted
Subsidiary in any transaction or series of related transactions with an aggregate fair
market value of less than $100.0 million;
(e) any disposition of property or assets or issuance of securities by a Restricted
Subsidiary of the Issuer to the Issuer or by the Issuer or a Restricted Subsidiary of the
Issuer to another Restricted Subsidiary of the Issuer;
(f) to the extent allowable under Section 1031 of the Code or any comparable or
successor provision, any exchange of like property (excluding any boot thereon) for use in a
Similar Business;
(g) the lease, assignment or sublease of any real or personal property in the ordinary
course of business;
(h) any issuance or sale of Equity Interests in, or Indebtedness or other securities
of, an Unrestricted Subsidiary;
(i) foreclosures on assets;
(j) sales of accounts receivable, or participations therein, in connection with the ABL
Facility or any Receivables Facility;
(k) any financing transaction with respect to property built or acquired by the Issuer
or any Restricted Subsidiary after the Issue Date, including Sale and Lease-Back
Transactions and asset securitizations permitted by this Indenture;
(l) dispositions in the ordinary course of business by any Restricted Subsidiary
(including, without limitation, HCI) engaged in the insurance business in order to provide
insurance to the Issuer and its Subsidiaries;
(m) sales, transfers and other dispositions of Investments in joint ventures 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;
(n) any issuance or sale of Equity Interests or dispositions in connection with
ordinary course syndications of Subsidiaries or joint ventures owning or operating one or
more healthcare facilities, including, without limitation, hospitals, ambulatory surgery
centers, outpatient diagnostic centers or imaging centers, in any transaction or series of
related transactions with an aggregate fair market value of less than $100.0 million; and
(o) any issuance or sale of Equity Interests of any Restricted Subsidiary (including,
without limitation, HealthTrust Purchasing Group, L.P.) to any Person operating in a Similar
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Business for which such Restricted Subsidiary provides shared purchasing, billing,
collection or similar services in the ordinary course of business.
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.
Broker-Dealer
has the meaning set forth in the Registration Rights Agreement.
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.
Capitalized Software Expenditures
means, for any period, the aggregate of all
expenditures (whether paid in cash or accrued as liabilities) by a Person and its Restricted
Subsidiaries during such period in respect of purchased software or internally developed software
and software enhancements that, in conformity with GAAP, are or are required to be reflected as
capitalized costs on the consolidated balance sheet of a Person and its Restricted Subsidiaries.
Cash Equivalents
means:
(1) United States dollars;
(2) euro or any national currency of any participating member state of the EMU or such
local currencies held by the Issuer and its Restricted 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
-5-
exceeding one year and overnight bank deposits, in each case with any commercial bank
having capital 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.
Cash Interest
means the portion of interest due on the Toggle Notes which the Issuer
elects to pay in cash.
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
-6-
than the Permitted Holders, in a single transaction or in a series of related
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 companies holding directly or indirectly 100%
of the total voting power of the Voting Stock of the Issuer.
Clearstream
means Clearstream Banking, Société Anonyme.
Code
means the Internal Revenue Code of 1986, as amended, or any successor thereto.
Collateral
means, collectively, all of the property and assets that are from time to
time subject to the Lien of the Security Documents including the Liens, if any, required to be
granted pursuant to Section 4.18 and otherwise required pursuant to the other provisions of this
Indenture.
Collateral Agent
shall mean (i) so long as the Notes are outstanding, the Trustee,
in its capacity as Trustee and collateral agent for the Holders and other secured parties under
this Indenture and the Security Documents, and (ii) at any time thereafter, such agent or trustee
as is designated Collateral Agent by Junior Lien Secured Parties holding a majority in principal
amount of the Junior Lien Obligations then outstanding or pursuant to such other arrangements as
agreed to among the holders of the Junior Lien Obligations, it being understood that as of the
Issue Date, the Trustee shall be so designated Collateral Agent.
Consolidated Depreciation and Amortization Expense
means with respect to any Person
for any period, the total amount of depreciation and amortization expense, including the
amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses and
Capitalized Software Expenditures, of such Person and its Restricted Subsidiaries for such period
on a consolidated basis and otherwise determined in accordance with GAAP.
Consolidated Interest Expense
means, with respect to any Person for any period,
without duplication, the sum of:
(1) consolidated interest expense of such Person and its Restricted Subsidiaries for
such period, to the extent such expense was deducted (and not added back) in computing
Consolidated Net Income (including (a) amortization of original issue discount resulting
from the issuance of Indebtedness at less than par, (b) all commissions, discounts and other
fees and charges owed with respect to letters of credit or bankers acceptances, (c)
non-cash interest payments (but excluding any non-cash interest expense attributable to the
movement in the mark to market valuation of Hedging Obligations or other derivative
instruments pursuant to GAAP), (d) the interest component of Capitalized Lease Obligations,
and (e) net payments, if any, pursuant to interest rate Hedging Obligations with respect to
Indebtedness, and excluding (u) accretion or accrual of discounted liabilities not
constituting Indebtedness, (v) any expense resulting from the discounting of the Existing
Notes or other Indebtedness in connection with the application of recapitalization
accounting or, if applicable, purchase accounting, (w) any Additional Interest and any
comparable additional interest with respect to other securities, (x) amortization of
deferred financing fees, debt issuance costs, commissions, fees and expenses, (y) any
expensing of bridge, commitment and other financing fees and (z) commissions, discounts,
yield and other fees and charges (including any interest expense) related to any Receivables
Facility); plus
-7-
(2) consolidated capitalized interest of such Person and its Restricted Subsidiaries
for such period, whether paid or accrued; less
(3) interest income for such period.
For purposes of this definition, interest on a Capitalized Lease Obligation shall be deemed to
accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit
in such Capitalized Lease Obligation in accordance with GAAP.
Consolidated Leverage Ratio
, with respect to any Person as of any date of
determination, means the ratio of (x) Consolidated Total Indebtedness of such Person as of the end
of the most recent fiscal quarter for which internal financial statements are available immediately
preceding the date on which such event for which such calculation is being made shall occur to (y)
the aggregate amount of EBITDA of such Person for the period of the most recently ended four full
consecutive fiscal quarters for which internal financial statements are available immediately
preceding the date on which such event for which such calculation is being made shall occur, in
each case with such
pro forma
adjustments to Consolidated Total Indebtedness and EBITDA as are
appropriate and consistent with the
pro forma
adjustment provisions set forth in the definition of
Fixed Charge Coverage Ratio.
Consolidated Net Income
means, with respect to any Person for any period, the
aggregate of the Net Income of such Person for such period, on a consolidated basis, and otherwise
determined in accordance with GAAP;
provided
,
however
, that, without duplication,
(1) any after-tax effect of extraordinary, non-recurring or unusual gains or losses
(less all fees and expenses relating thereto) or expenses (including relating to the
Transaction to the extent incurred on or prior to December 31, 2007), severance, relocation
costs, consolidation and closing costs, integration and facilities opening costs, business
optimization costs, transition costs, restructuring costs, signing, retention or completion
bonuses, and curtailments or modifications to pension and post-retirement employee benefit
plans shall be excluded,
(2) the cumulative effect of a change in accounting principles during such period shall
be excluded,
(3) any after-tax effect of income (loss) from disposed, abandoned or discontinued
operations and any net after-tax gains or losses on disposal of disposed, abandoned,
transferred, closed or discontinued operations shall be excluded,
(4) any after-tax effect of gains or losses (less all fees and expenses relating
thereto) attributable to asset dispositions or abandonments other than in the ordinary
course of business, as determined in good faith by the Issuer, shall be excluded,
(5) the Net Income for such period of any Person that is an Unrestricted Subsidiary
shall be excluded, and, solely for the purpose of determining the amount available for
Restricted Payments under clause 3(a) of Section 4.07(a) hereof, the Net Income for such
period of any Person that is not a Subsidiary or that is accounted for by the equity method
of accounting shall be excluded;
provided
that Consolidated Net Income of the Issuer
shall be increased by the amount of dividends or distributions or other payments that are
actually paid in cash (or to the extent converted into cash) to the referent Person or a
Restricted Subsidiary thereof in respect of such period,
-8-
(6) solely for the purpose of determining the amount available for Restricted Payments
under clause (3)(a) of Section 4.07(a) hereof, the Net Income for such period of any
Restricted Subsidiary (other than any Guarantor) shall be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Restricted Subsidiary
of its Net Income is not at the date of determination wholly permitted without any prior
governmental approval (which has not been obtained) or, directly or indirectly, by the
operation of the terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule, or governmental regulation applicable to that Restricted Subsidiary or its
stockholders, unless such restriction with respect to the payment of dividends or similar
distributions has been legally waived;
provided
that Consolidated Net Income of the
Issuer will be increased by the amount of dividends or other distributions or other payments
actually paid in cash (or to the extent converted into cash) or Cash Equivalents to the
Issuer or a Restricted Subsidiary thereof in respect of such period, to the extent not
already included therein,
(7) effects of adjustments (including the effects of such adjustments pushed down to
the Issuer and its Restricted Subsidiaries) in the property, equipment, inventory, software
and other intangible assets, deferred revenue and debt line items in such Persons
consolidated financial statements pursuant to GAAP resulting from the application of
recapitalization accounting or, if applicable, purchase accounting in relation to the
Transaction or any consummated acquisition or the amortization or write-off of any amounts
thereof, net of taxes, shall be excluded,
(8) any after-tax effect of income (loss) from the early extinguishment of Indebtedness
or Hedging Obligations or other derivative instruments shall be excluded,
(9) any impairment charge or asset write-off, including, without limitation, impairment
charges or asset write-offs related to intangible assets, long-lived assets or investments
in debt and equity securities, in each case, pursuant to GAAP and the amortization of
intangibles arising pursuant to GAAP shall be excluded,
(10) any non-cash compensation expense recorded from grants of stock appreciation or
similar rights, stock options, restricted stock or other rights, and any cash charges
associated with the rollover, acceleration or payout of Equity Interests by management of
the Issuer or any of its direct or indirect parent companies in connection with the
Transaction, shall be excluded,
(11) any fees and expenses incurred during such period, or any amortization thereof for
such period, in connection with any acquisition, Investment, Asset Sale, issuance or
repayment of Indebtedness, issuance of Equity Interests, refinancing transaction or
amendment or modification of any debt instrument (in each case, including any such
transaction consummated prior to the Issue 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 shall be excluded,
(12) accruals and reserves that are established or adjusted within twelve months after
the Issue Date that are so required to be established as a result of the Transaction in
accordance with GAAP, or changes as a result of adoption or modification of accounting
policies, shall be excluded, and
(13) to the extent covered by insurance and actually reimbursed, or, so long as the
Issuer 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
-9-
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 365 days), expenses with respect to liability or casualty
events or business interruption shall be excluded.
Notwithstanding the foregoing, for the purpose of Section 4.07 hereof only (other than clause
(3)(d) of Section 4.07(a) hereof), there shall be excluded from Consolidated Net Income any income
arising from any sale or other disposition of Restricted Investments made by the Issuer and its
Restricted Subsidiaries, any repurchases and redemptions of Restricted Investments from the Issuer
and its Restricted Subsidiaries, any repayments of loans and advances which constitute Restricted
Investments by the Issuer or any of its Restricted Subsidiaries, any sale of the stock of an
Unrestricted Subsidiary or any distribution or dividend from an Unrestricted Subsidiary, in each
case only to the extent such amounts increase the amount of Restricted Payments permitted under
clause (3)(d) of Section 4.07(a) hereof.
Consolidated Secured Debt Ratio
as of any date of determination, means the ratio of
(1) Consolidated Total Indebtedness of the Issuer and its Restricted Subsidiaries that is secured
by Liens as of the end of the most recent fiscal period for which internal financial statements are
available immediately preceding the date on which such event for which such calculation is being
made shall occur to (2) the Issuers EBITDA for the most recently ended four full fiscal quarters
for which internal financial statements are available immediately preceding the date on which such
event for which such calculation is being made shall occur, in each case with such
pro forma
adjustments to Consolidated Total Indebtedness and EBITDA as are appropriate and consistent with
the
pro forma
adjustment provisions set forth in the definition of Fixed Charge Coverage Ratio.
Consolidated Total Indebtedness
means, as at any date of determination, an amount
equal to the sum of (1) the aggregate amount of all outstanding Indebtedness of the Issuer and its
Restricted Subsidiaries on a consolidated basis consisting of Indebtedness for borrowed money,
Obligations in respect of Capitalized Lease Obligations and debt obligations evidenced by
promissory notes and similar instruments (and excluding, for the avoidance of doubt, all
obligations relating to Receivables Facilities) and (2) the aggregate amount of all outstanding
Disqualified Stock of the Issuer and all Preferred Stock of its Restricted Subsidiaries on a
consolidated basis, with the amount of such Disqualified Stock and Preferred Stock equal to the
greater of their respective voluntary or involuntary liquidation preferences and maximum fixed
repurchase prices, in each case determined on a consolidated basis in accordance with GAAP. For
purposes hereof, the
maximum fixed repurchase price
of any Disqualified Stock or
Preferred Stock that does not have a fixed repurchase price shall be calculated in accordance with
the terms of such Disqualified Stock or Preferred Stock as if such Disqualified Stock or Preferred
Stock were purchased on any date on which Consolidated Total Indebtedness shall be required to be
determined pursuant to this Indenture, and if such price is based upon, or measured by, the fair
market value of such Disqualified Stock or Preferred Stock, such fair market value shall be
determined reasonably and in good faith by the Issuer.
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
-10-
(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 14.02 hereof or such other address as to which the Trustee may give notice to
the Holders and the Issuer.
Credit Facilities
means, with respect to the Issuer or any of its Restricted
Subsidiaries, one or more debt facilities, including the Senior Credit Facilities, or other
financing arrangements (including, without limitation, commercial paper facilities or indentures)
providing for revolving credit loans, term loans, letters of credit or other long-term
indebtedness, including any notes, mortgages, guarantees, collateral documents, instruments and
agreements executed in connection therewith, and any amendments, supplements, modifications,
extensions, renewals, restatements or refundings thereof and any indentures or credit facilities or
commercial paper facilities 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 permitted to be borrowed thereunder or
alters the maturity thereof (
provided
that such increase in borrowings is permitted under
Section 4.10 hereof) or adds Restricted Subsidiaries as additional borrowers or guarantors
thereunder and whether by the same or any other agent, lender or group of lenders.
Custodian
means the Trustee, 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(c) hereof, substantially in the form of
Exhibit A-1
,
Exhibit A-2
or
Exhibit A-3
hereto, as the case may be, 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.
Delayed Equity Amount
means any equity contribution of the Investors, the Frist
Entities or certain other management investors described in the Offering Memorandum on or before
March 31, 2007 the proceeds of which are used to repay borrowings under the senior secured
revolving credit facility included in the General Credit Facility or the ABL Facility in the manner
described in the Offering Memorandum.
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 Indenture.
Designated Non-cash Consideration
means the fair market value of non-cash
consideration received by the Issuer or a Restricted Subsidiary in connection with an Asset Sale
that is so designated as Designated Non-cash Consideration pursuant to an Officers Certificate,
setting forth the
-11-
basis of such valuation, executed by the principal financial officer of the Issuer, less the
amount of cash or Cash Equivalents received in connection with a subsequent sale of or collection
on such Designated Non-cash Consideration.
Designated Preferred Stock
means Preferred Stock of the Issuer or any parent
corporation thereof (in each case other than Disqualified Stock) that is issued for cash (other
than to a Restricted Subsidiary or an employee stock ownership plan or trust established by the
Issuer or any of its Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to
an Officers Certificate executed by the principal financial officer of the Issuer or the
applicable parent corporation thereof, as the case may be, on the issuance date thereof, the cash
proceeds of which are excluded from the calculation set forth in clause (3) of Section 4.07(a)
hereof.
Discharge of First Lien Obligations
means the satisfaction and discharge of all of
the First Lien Obligations in full in cash, pursuant to the First Lien Documents and the General
Intercreditor Agreement.
Discharge of ABL Obligations
means the satisfaction and discharge of all of the ABL
Obligations in full in cash, pursuant to the ABL Facility, the Shared Receivables Documents and the
Shared Receivables Intercreditor Agreement.
Disqualified Stock
means, with respect to any Person, any Capital Stock of such
Person which, by its terms, or by the terms of any security into which it is convertible or for
which it is putable or exchangeable, or upon the happening of any event, matures or is mandatorily
redeemable (other than solely as a result of a change of control or asset sale) pursuant to a
sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other
than solely as a result of a change of control or asset sale), in whole or in part, in each case
prior to the date 91 days after the earlier of the maturity date of the Notes or the date the Notes
are no longer outstanding;
provided
,
however
, that if such Capital Stock is issued
to any plan for the benefit of employees of the Issuer or its Subsidiaries or by any such plan to
such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be
required to be repurchased by the Issuer or its Subsidiaries in order to satisfy applicable
statutory or regulatory obligations.
EBITDA
means, with respect to any Person for any period, the Consolidated Net Income
of such Person for such period
(1) increased (without duplication) by:
(a) provision for taxes based on income or profits or capital gains, including,
without limitation, foreign, federal, state, franchise and similar taxes (such as
the Pennsylvania capital tax) and foreign withholding taxes (including penalties and
interest related to such taxes or arising from tax examinations) of such Person paid
or accrued during such period deducted (and not added back) in computing
Consolidated Net Income;
plus
(b) Fixed Charges of such Person for such period (including (x) net losses on
Hedging Obligations or other derivative instruments entered into for the purpose of
hedging interest rate risk and (y) costs of surety bonds in connection with
financing activities, in each case, to the extent included in Fixed Charges),
together with items excluded from the definition of Consolidated Interest Expense
pursuant to clauses (1)(u), (v), (w), (x), (y) and (z) of the definition thereof,
and, in each such case, to the
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extent the same were deducted (and not added back) in calculating such
Consolidated Net Income;
plus
(c) Consolidated Depreciation and Amortization Expense of such Person for such
period to the extent the same was deducted (and not added back) in computing
Consolidated Net Income;
plus
(d) any expenses or charges (other than depreciation or amortization expense)
related to any Equity Offering, Permitted Investment, acquisition, disposition,
recapitalization or the incurrence of Indebtedness permitted to be incurred by this
Indenture (including a refinancing thereof) (whether or not successful), including
(i) such fees, expenses or charges related to the offering of the Notes and any
Credit Facilities and (ii) any amendment or other modification of the Notes, and, in
each case, deducted (and not added back) in computing Consolidated Net Income;
plus
(e) the amount of any restructuring charge or reserve deducted (and not added
back) in such period in computing Consolidated Net Income, including any one-time
costs incurred in connection with acquisitions after the Issue Date and costs
related to the closure and/or consolidation of facilities;
plus
(f) any other non-cash charges, including any write-offs or write-downs,
reducing Consolidated Net Income for such period (
provided
that if any such
non-cash charges 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 EBITDA to such extent, and excluding amortization of a prepaid cash
item that was paid in a prior period);
plus
(g) the amount of any minority interest expense consisting of income
attributable to minority equity interests of third parties deducted (and not added
back) in such period in calculating Consolidated Net Income;
plus
(h) the amount of management, monitoring, consulting and advisory fees and
related expenses paid in such period to the Investors and the Frist Entities to the
extent otherwise permitted under Section 4.12 hereof;
plus
(i) the amount of net cost savings projected by the Issuer in good faith to be
realized as a result of specified actions taken or to be taken (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 (w) such cost savings are reasonably identifiable and
factually supportable, (x) such actions have been taken or are to be taken within 15
months after the date of determination to take such action, (y) no cost savings
shall be added pursuant to this clause (i) to the extent duplicative of any expenses
or charges relating to such cost savings that are included in clause (e) above with
respect to such period and (z) the aggregate amount of cost savings added pursuant
to this clause (i) shall not exceed $150.0 million for any four consecutive quarter
period (which adjustments may be incremental to
pro forma
adjustments made pursuant
to the second paragraph of the definition of Fixed Charge Coverage Ratio);
plus
(j) the amount of loss on sales of receivables and related assets to the
Receivables Subsidiary in connection with a Receivables Facility;
plus
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(k) any costs or expense incurred by the Issuer or a Restricted Subsidiary
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 cost or expenses are funded with cash proceeds
contributed to the capital of the Issuer or net cash proceeds of an issuance of
Equity Interests of the Issuer (other than Disqualified Stock) solely to the extent
that such net cash proceeds are excluded from the calculation set forth in clause
(3) of Section 4.07(a) hereof;
(2) decreased by (without duplication) non-cash gains increasing Consolidated Net
Income of such Person for such period, excluding any non-cash gains to the extent they
represent the reversal of an accrual or reserve for a potential cash item that reduced
EBITDA in any prior period; and
(3) increased or decreased by (without duplication):
(a) any net gain or loss resulting in such period from Hedging Obligations and
the application of Statement of Financial Accounting Standards No. 133;
plus
or
minus
, as applicable,
(b) any net gain or loss resulting in such period from currency translation
gains or losses related to currency remeasurements of Indebtedness (including any
net loss or gain resulting from Hedging Obligations for currency exchange risk).
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.
Equity Offering
means any public or private sale of common stock or Preferred Stock
of the Issuer or any of its direct or indirect parent companies (excluding Disqualified Stock),
other than:
(1) public offerings with respect to the Issuers or any direct or indirect parent
companys common stock registered on Form S-8;
(2) issuances to any Subsidiary of the Issuer; and
(3) any such public or private sale that constitutes an Excluded Contribution.
euro
means the single currency of participating member states of the EMU.
Euroclear
means Euroclear S.A./N.V., as operator of the Euroclear system.
European Collateral
means the present and future assets of the European subsidiary
borrowers and guarantors under the General Credit Facility pledged as security to the First Lien
Collateral Agent pursuant to the European Security Documents (as defined in the General Credit
Facility).
Exchange Act
means the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the SEC promulgated thereunder.
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Exchange Notes
means any notes issued in exchange for the Notes pursuant to Section
2.06(f) hereof.
Exchange Offer
has the meaning set forth in any Registration Rights Agreement.
Exchange Offer Registration Statement
has the meaning set forth in the Registration
Rights Agreement.
Excluded Contribution
means net cash proceeds, marketable securities or Qualified
Proceeds received by the Issuer after the Issue Date from
(1) contributions to its common equity capital, and
(2) the sale (other than to a Subsidiary of the Issuer or to any management equity plan
or stock option plan or any other management or employee benefit plan or agreement of the
Issuer) of Capital Stock (other than Disqualified Stock and Designated Preferred Stock) of
the Issuer,
in each case designated as Excluded Contributions pursuant to an Officers Certificate executed by
the principal financial officer of the Issuer on the date such capital contributions are made or
the date such Equity Interests are sold, as the case may be, which are excluded from the
calculation set forth in clause (3) of Section 4.07(a) hereof.
Existing Notes
means the $121.2 million aggregate principal amount of 8.700%
medium-term notes due 2010, $691.2 million aggregate principal amount of 8.750% notes due 2010,
£150.0 million aggregate principal amount of 8.750% notes due 2010, $475.8 million aggregate
principal amount of 7.875% notes due 2011, $500.0 million aggregate principal amount of 6.950%
notes due 2012, $500.0 million aggregate principal amount of 6.300% notes due 2012, $500.0 million
aggregate principal amount of 6.250% notes due 2013, $500.0 million aggregate principal amount of
6.750% notes due 2013, $500.0 million aggregate principal amount of 5.750% notes due 2014, $121.1
million aggregate principal amount of 9.000% medium term notes due 2014, $750.0 million aggregate
principal amount of 6.375% notes due 2015, $150.0 million aggregate principal amount of 7.190%
debentures due 2015, $1,000.0 million aggregate principal amount of 6.500% notes due 2016, $135.6
million aggregate principal amount of 7.500% debentures due 2023, $150.0 million aggregate
principal amount of 8.360% debentures due 2024, $291.4 million aggregate principal amount of 7.690%
notes due 2025, $125.0 million aggregate principal amount of 7.580% medium-term notes due 2025,
$150.0 million aggregate principal amount of 7.050% debentures due 2027, $250.0 million aggregate
principal amount of 7.500% notes due 2033, $100.0 million aggregate principal amount of 7.750%
debentures due 2036 and $200.0 million aggregate principal amount of 7.500% debentures due 2095,
each issued by the Issuer and outstanding on the Issue Date.
Existing Notes Indenture
means that certain Indenture, dated as of December 16,
1993, between Columbia Healthcare Corporation and The First National Bank of Chicago, as Trustee,
as amended by the First Supplemental Indenture, dated as of May 25, 2000, between the Issuer and
Bank One Trust Company, N.A., as Trustee, the Second Supplemental Indenture, dated as of July 1,
2001, between the Issuer and Bank One Trust Company, N.A., as Trustee, and the Third Supplemental
Indenture, dated as of December 5, 2001, between the Issuer and The Bank of New York, as Trustee.
First Lien Collateral Agent
means Bank of America, N.A., in its capacity as
administrative agent and collateral agent for the lenders and other secured parties under the
General Credit Facility and the other First Lien Documents, together with its successors and
permitted assigns
-15-
under the General Credit Facility exercising substantially the same rights and powers; and in
each case provided that if such First Lien Collateral Agent is not Bank of America, N.A., such
First Lien Collateral Agent shall have become a party to the Intercreditor Agreements and the other
applicable First Lien Security Documents.
First Lien Documents
means the credit, guarantee and security documents governing
the First Lien Obligations, including, without limitation, the General Credit Facility and the
First Lien Security Documents.
First Lien Obligations
means (a) all General Credit Facility Obligations and (b) all
other Obligations of the Issuer and its Subsidiaries under any refinancings of the General Credit
Facility Obligations (and any related Hedging Obligations). For the avoidance of doubt,
Obligations with respect to the ABL Facility shall not constitute First Lien Obligations.
First Lien Secured Parties
means, at any relevant time, the holders of First Lien
Obligations at such time, including, without limitation, the lenders and agents under the General
Credit Facility and the First Lien Collateral Agent.
First Lien Security Documents
means the Security Documents (as defined in the
General Credit Facility) and any other agreement, document or instrument pursuant to which a Lien
is granted or purported to be granted securing First Lien Obligations or under which rights or
remedies with respect to such Liens are governed.
First Priority Liens
means the first priority Liens securing the First Lien
Obligations.
Fixed Charge Coverage Ratio
means, with respect to any Person for any period, the
ratio of EBITDA of such Person for such period to the Fixed Charges of such Person for such period.
In the event that the Issuer or any Restricted Subsidiary incurs, assumes, guarantees, redeems,
retires or extinguishes any Indebtedness (other than Indebtedness incurred under any revolving
credit facility unless such Indebtedness has been permanently repaid and has not been replaced) or
issues or redeems Disqualified Stock or Preferred Stock subsequent to the commencement of the
period for which the Fixed Charge Coverage Ratio is being calculated but prior to or simultaneously
with the event for which the calculation of the Fixed Charge Coverage Ratio is made (the
Fixed
Charge Coverage Ratio Calculation Date
), then the Fixed Charge Coverage Ratio shall be
calculated giving
pro forma
effect to such incurrence, assumption, guarantee, redemption,
retirement or extinguishment of Indebtedness, or such issuance or redemption of Disqualified Stock
or Preferred Stock, as if the same had occurred at the beginning of the applicable four-quarter
period.
For purposes of making the computation referred to above, Investments, acquisitions,
dispositions, mergers, consolidations and disposed operations (as determined in accordance with
GAAP) that have been made by the Issuer or any of its Restricted Subsidiaries during the
four-quarter reference period or subsequent to such reference period and on or prior to or
simultaneously with the Fixed Charge Coverage Ratio Calculation Date shall be calculated on a
pro
forma
basis assuming that all such Investments, acquisitions, dispositions, mergers,
consolidations and disposed operations (and the change in any associated fixed charge obligations
and the change in EBITDA resulting therefrom) had occurred on the first day of the four-quarter
reference period. If, since the beginning of such period, any Person that subsequently became a
Restricted Subsidiary or was merged with or into the Issuer or any of its Restricted Subsidiaries
since the beginning of such period shall have made any Investment, acquisition, disposition,
merger, consolidation or disposed operation that would have required adjustment pursuant to this
definition, then the Fixed Charge Coverage Ratio shall be calculated giving
pro forma
effect
thereto
-16-
for such period as if such Investment, acquisition, disposition, merger, consolidation or
disposed operation had occurred at the beginning of the applicable four-quarter period.
For purposes of this definition, whenever
pro forma
effect is to be given to a transaction,
the
pro forma
calculations shall be made in good faith by a responsible financial or accounting
officer of the Issuer. If any Indebtedness bears a floating rate of interest and is being given
pro forma
effect, the interest on such Indebtedness shall be calculated as if the rate in effect
on the Fixed Charge Coverage Ratio Calculation Date had been the applicable rate for the entire
period (taking into account any Hedging Obligations applicable to such Indebtedness). Interest on
a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined
by a responsible financial or accounting officer of the Issuer to be the rate of interest implicit
in such Capitalized Lease Obligation in accordance with GAAP. For purposes of making the
computation referred to above, interest on any Indebtedness under a revolving credit facility
computed on a
pro forma
basis shall be computed based upon the average daily balance of such
Indebtedness during the applicable period except as set forth in the first paragraph of this
definition. Interest on Indebtedness that may optionally be determined at an interest rate based
upon a factor of a prime or similar rate, a eurocurrency interbank offered rate or other rate shall
be deemed to have been based upon the rate actually chosen, or, if none, then based upon such
optional rate chosen as the Issuer may designate.
Fixed Charges
means, with respect to any Person for any period, the sum of:
(1) Consolidated Interest Expense of such Person for such period;
(2) all cash dividends or other distributions paid (excluding items eliminated in
consolidation) on any series of Preferred Stock during such period; and
(3) all cash dividends or other distributions paid (excluding items eliminated in
consolidation) on any series of Disqualified Stock during such period.
Foreign Subsidiary
means, with respect to any Person, any Restricted Subsidiary of
such Person that is not organized or existing under the laws of the United States, any state
thereof or the District of Columbia and any Restricted Subsidiary of such Foreign Subsidiary.
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
the Issue Date.
GAAP
means generally accepted accounting principles in the United States which are
in effect on the Issue Date.
General Credit Facility
means the credit agreement to be entered into as of the
Issue Date by and among the Issuer, the European subsidiary borrowers party thereto, the lenders
party thereto in their capacities as lenders thereunder and Bank of America, N.A., as U.S.
Administrative Agent and as European Administrative Agent, including any guarantees, collateral
documents, 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 (
provided
that such increase in borrowings is permitted under Section 4.10
hereof).
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General Credit Facility Obligations
means Obligations as defined in the General
Credit Facility.
General Intercreditor Agreement
means the General Intercreditor Agreement, dated as
of the Issue Date, between the Collateral Agent and the First Lien Collateral Agent.
Global Note Legend
means the legend set forth in Section 2.06(g)(ii) hereof, which
is required to be placed on all Global Notes issued under this Indenture.
Global Notes
means, individually and collectively, each of the Restricted Global
Notes and the Unrestricted Global Notes, substantially in the form of
Exhibit A-1
,
Exhibit A-2
or
Exhibit A-3
hereto, as the case may be, issued in accordance with
Section 2.01, 2.06(b), 2.06(d) or 2.06(f) hereof.
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 any Guarantor of the Issuers Obligations under
this Indenture.
Guarantor
means, each Restricted Subsidiary that Guarantees the Notes in accordance
with the terms of this Indenture.
HCI
means Health Care Indemnity, Inc., an insurance company formed under the laws of
the State of Colorado and a Wholly-Owned Subsidiary of the Issuer.
Hedging Arrangements
means the fixed-pay interest rate swap agreements entered into
by Hercules Holding II, LLC on or about September 13, 2006 and with respect to which the Issuer
will be the counterparty in connection with the Transaction, relating to $8,000 million of the
outstanding principal amount under the First Lien Obligations and the ABL Obligations.
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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
(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.
Indenture
means this Indenture, as amended or supplemented from time to time.
Independent Financial Advisor
means an accounting, appraisal, investment banking
firm or consultant to Persons engaged in Similar Businesses of nationally recognized standing that
is, in the good faith judgment of the Issuer, qualified to perform the task for which it has been
engaged.
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Indirect Participant
means a Person who holds a beneficial interest in a Global Note
through a Participant.
Initial 2014 Cash-Pay Notes
has the meaning set forth in the recitals hereto.
Initial 2016 Cash-Pay Notes
has the meaning set forth in the recitals hereto.
Initial Notes
means the Initial 2014 Cash-Pay Notes, the Initial 2016 Cash-Pay Notes
and the Initial Toggle Notes.
Initial Purchasers
means Citigroup Global Markets Inc., Banc of America Securities
LLC, J.P. Morgan Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Deutsche Bank
Securities Inc., Wachovia Capital Markets, LLC, ABN AMRO Incorporated, Barclays Capital Inc., BNP
Paribas Securities Corp., Calyon Securities (USA) Inc., GE Capital Markets, Inc., Goldman, Sachs &
Co., Greenwich Capital Markets, Inc., HVB Capital Markets, Inc., ING Financial Markets LLC and
Mizuho International plc.
Initial Toggle Notes
has the meaning set forth in the recitals hereto.
Insolvency or Liquidation Proceeding
means:
(1) any case commenced by or against the Issuer or any Guarantor under any Bankruptcy
Law for the relief of debtors, any other proceeding for the reorganization, recapitalization
or adjustment or marshalling of the assets or liabilities of the Issuer or any Guarantor,
any receivership or assignment for the benefit of creditors relating to the Issuer or any
Guarantor or any similar case or proceeding relative to the Issuer or any Guarantor or its
creditors, as such, in each case whether or not voluntary;
(2) any liquidation, dissolution, marshalling of assets or liabilities or other winding
up of or relating to the Issuer or any Guarantor, in each case whether or not voluntary and
whether or not involving bankruptcy or insolvency; or
(3) any other proceeding of any type or nature in which substantially all claims of
creditors of the Issuer or any Guarantor are determined and any payment or distribution is
or may be made on account of such claims.
Intercreditor Agreements
means, collectively, the Shared Receivables Intercreditor
Agreement and the General Intercreditor Agreement.
Interest Payment Date
means May 15 and November 15 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.
Investment Grade Securities
means:
(1) securities issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof (other than Cash Equivalents);
-20-
(2) debt securities or debt instruments with an Investment Grade Rating, but excluding
any debt securities or instruments constituting loans or advances among the Issuer and its
Subsidiaries;
(3) investments in any fund that invests exclusively in investments of the type
described in clauses (1) and (2) which fund may also hold immaterial amounts of cash pending
investment or distribution; and
(4) corresponding instruments in countries other than the United States customarily
utilized for high quality investments.
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. For purposes of the definition of Unrestricted
Subsidiary and Section 4.07 hereof:
(1) Investments shall include the portion (proportionate to the Issuers equity
interest in such Subsidiary) of the fair market value of the net assets of a Subsidiary of
the Issuer at the time that such Subsidiary is designated an Unrestricted Subsidiary;
provided
,
however
, that upon a redesignation of such Subsidiary as a
Restricted Subsidiary, the Issuer shall be deemed to continue to have a permanent
Investment in an Unrestricted Subsidiary in an amount (if positive) equal to:
(a) the Issuers Investment in such Subsidiary at the time of such
redesignation;
less
(b) the portion (proportionate to the Issuers equity interest in such
Subsidiary) of the fair market value of the net assets of such Subsidiary at the
time of such redesignation; and
(2) any property transferred to or from an Unrestricted Subsidiary shall be valued at
its fair market value at the time of such transfer, in each case fair market value as
determined in good faith by the Issuer.
Investors
means Bain Capital Partners, LLC, Kohlberg Kravis Roberts & Co. L.P.,
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 November 17, 2006.
Issuer
has the meaning set forth in the recitals hereto;
provided
that when
used in the context of determining the fair market value of an asset or liability under this
Indenture, Issuer shall be deemed to mean the board of directors of the Issuer when the fair
market value is equal to or in excess of $500.0 million (unless otherwise expressly stated).
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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.
Junior Lien Documents
means the credit and security documents governing the Junior
Lien Obligations, including, without limitation, this Indenture, the related Security Documents and
Intercreditor Agreements.
Junior Lien Obligations
means the Notes and Obligations with respect to other
Indebtedness permitted to be incurred under this Indenture and the General Credit Facility which is
by its terms intended to be secured equally and ratably with the Notes or on a basis junior to the
Liens securing the Notes;
provided
such Lien is permitted to be incurred under this
Indenture and the General Credit Facility;
provided
,
further
, that the holders of
such Indebtedness or their Junior Lien Representative is a party to the Security Documents in
accordance with the terms thereof and has appointed the Collateral Agent as collateral agent for
such holders of Junior Lien Obligations with respect to all or a portion of the Collateral.
Junior Lien Representative
means any duly authorized representative of any holders
of Junior Lien Obligations, which representative is party to the Security Documents.
Junior Lien Secured Parties
means (i) Holders (including the Holders of any
Additional Notes subsequently issued under and in compliance with the terms of this Indenture),
(ii) the Collateral Agent and (iii) the holders from time to time of any other Junior Lien
Obligations and each Junior Lien Representative.
Junior Liens
means the Liens securing the Junior Lien Obligations.
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.
Letter of Transmittal
means the letter of transmittal to be prepared by the Issuer
and sent to all Holders of the Notes for use by such Holders in connection with the Exchange Offer.
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.
Moodys
means Moodys Investors Service, Inc. and any successor to its rating agency
business.
Net Income
means, with respect to any Person, the net income (loss) of such Person,
determined in accordance with GAAP and before any reduction in respect of Preferred Stock
dividends.
Net Proceeds
means the aggregate cash proceeds received by the Issuer or any of its
Restricted Subsidiaries in respect of any Asset Sale, including any cash received upon the sale or
other disposition of any Designated Non-cash Consideration received in any Asset Sale, net of the
direct costs relating to such Asset Sale and the sale or disposition of such Designated Non-cash
Consideration,
-22-
including legal, accounting and investment banking fees, and brokerage and sales commissions,
any relocation expenses incurred as a result thereof, taxes paid or payable as a result thereof
(after taking into account any available tax credits or deductions and any tax sharing
arrangements), amounts required to be applied to the repayment of principal, premium, if any, and
interest on Senior Indebtedness required (other than required by clause (1) of Section 4.11(b)
hereof) to be paid as a result of such transaction and any deduction of appropriate amounts to be
provided by the Issuer or any of its Restricted Subsidiaries as a reserve in accordance with GAAP
against any liabilities associated with the asset disposed of in such transaction and retained by
the Issuer or any of its Restricted Subsidiaries after such sale or other disposition thereof,
including pension and other post-employment benefit liabilities and liabilities related to
environmental matters or against any indemnification obligations associated with such transaction.
Non-Conforming Plan of Reorganization
means any Plan of Reorganization that grants
the Collateral Agent or any Junior Lien Secured Party any right or benefit, directly or indirectly,
which right or benefit is prohibited at such time by the provisions of the General Intercreditor
Agreement.
Non-Receivables Collateral
means all the present and future assets of the Issuer and
the Guarantors in which a security interest has been granted pursuant to (a) the Security
Agreement, (b) the Pledge Agreement and (c) the other Security Documents other than the Shared
Receivables Security Documents and any Security Documents relating to the Separate Receivables
Collateral; provided that the Non-Receivables Collateral securing the Junior Lien Obligations shall
not include any (x) European Collateral and (y) until after the Discharge of the First Lien
Obligations, any Principal Properties.
Non-Receivables Security Documents
means, collectively, the General Intercreditor
Agreement, the Security Agreement, the Pledge Agreement and the other security agreements relating
to the Non-Receivables Collateral and the mortgages and instruments filed and recorded in
appropriate jurisdictions to preserve and protect the Liens on the Non-Receivables Collateral
(including, without limitation, financing statements under the Uniform Commercial Code of the
relevant states) applicable to the Non-Receivables Collateral, each for the benefit of the
Collateral Agent and as in effect on the Issue Date and as amended, amended and restated, modified,
renewed or replaced from time to time.
Non U.S. Person
means a Person who is not a U.S. Person.
Notes
means the Initial 2014 Cash-Pay Notes, the Initial 2016 Cash-Pay Notes and the
Initial Toggle Notes and more particularly means any Note authenticated and delivered under this
Indenture. For all purposes of this Indenture, the term Notes shall also include any Additional
2014 Cash-Pay Notes, Additional 2016 Cash-Pay Notes and Additional Toggle Notes that may be issued
under a supplemental indenture. The 2014 Cash-Pay Notes (including any Exchange Notes issued in
exchange therefor), the 2016 Cash-Pay Notes (including any Exchange Notes issued in exchange
therefor) and the Toggle Notes (including any Exchange Notes issued in exchange therefor) are
separate series of Notes, but shall be treated as a single class for all purposes under this
Indenture, except as set forth herein. For purposes of this Indenture, all references to Notes to
be issued or authenticated upon transfer, replacement or exchange shall be deemed to refer to Notes
of the applicable series.
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.
-23-
Offering Memorandum
means the offering memorandum, dated November 9, 2006, relating
to the sale of the Initial Notes.
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.
Officers Certificate
means a certificate 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, that meets the
requirements set forth in this 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 Trustee.
Partial PIK Interest
has the meaning set forth in Exhibit A-3 hereto.
Participant
means, with respect to the Depositary, Euroclear or Clearstream, a
Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and, with
respect to DTC, shall include Euroclear and Clearstream).
Permitted Asset Swap
means the concurrent purchase and sale or exchange of Related
Business Assets or a combination of Related Business Assets and cash or Cash Equivalents between
the Issuer or any of its Restricted Subsidiaries and another Person;
provided
that any cash
or Cash Equivalents received must be applied in accordance with Section 4.11 hereof.
Permitted Holders
means each of the Investors, the Frist Entities, the Management
Participants (as defined in the Offering Memorandum), Citigroup Inc. and Banc of America Securities
LLC (which institutions are assignees of certain equity commitments of the Investors as of the
Issue Date) 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.
Permitted Investments
means:
(1) any Investment in the Issuer or any of its Restricted Subsidiaries;
(2) any Investment in cash and Cash Equivalents or Investment Grade Securities;
(3) any Investment by the Issuer or any of its Restricted Subsidiaries in a Person that
is engaged in a Similar Business if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary; or
(b) such Person, in one transaction or a series of related transactions, is
merged or consolidated with or into, or transfers or conveys substantially all of
its assets to, or is liquidated into, the Issuer or a Restricted Subsidiary,
-24-
and, in each case, any Investment held by such Person;
provided
that such Investment
was not acquired by such Person in contemplation of such acquisition, merger, consolidation
or transfer;
(4) any Investment in securities or other assets not constituting cash, Cash
Equivalents or Investment Grade Securities and received in connection with an Asset Sale
made pursuant to the provisions described under Section 4.11 hereof or any other disposition
of assets not constituting an Asset Sale;
(5) any Investment existing on the Issue Date;
(6) any Investment acquired by the Issuer or any of its Restricted Subsidiaries:
(a) in exchange for any other Investment or accounts receivable held by the
Issuer or any such Restricted Subsidiary in connection with or as a result of a
bankruptcy, workout, reorganization or recapitalization of the issuer of such other
Investment or accounts receivable; or
(b) as a result of a foreclosure by the Issuer or any of its Restricted
Subsidiaries with respect to any secured Investment or other transfer of title with
respect to any secured Investment in default;
(7) Hedging Obligations permitted under clause (10) of Section 4.10(b) hereof;
(8) any Investment in a Similar Business having an aggregate fair market value, taken
together with all other Investments made pursuant to this clause (8) that are at that time
outstanding, not to exceed 5% of Total Assets at the time of such Investment (with the fair
market value of each Investment being measured at the time made and without giving effect to
subsequent changes in value);
(9) Investments the payment for which consists of Equity Interests (exclusive of
Disqualified Stock) of the Issuer or any of its direct or indirect parent companies;
provided
,
however
, that such Equity Interests will not increase the amount
available for Restricted Payments under clause (3) of Section 4.07(a) hereof;
(10) guarantees of Indebtedness permitted under Section 4.10 hereof;
(11) any transaction to the extent it constitutes an Investment that is permitted and
made in accordance with the provisions of Section 4.12(b) hereof (except transactions
described in clauses (2), (5) and (9) of Section 4.12(b) hereof);
(12) Investments consisting of purchases and acquisitions of inventory, supplies,
material or equipment;
(13) additional Investments having an aggregate fair market value, taken together with
all other Investments made pursuant to this clause (13) that are at that time outstanding
(without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds
of such sale do not consist of cash or marketable securities), not to exceed 5% of Total
Assets at the time of such Investment (with the fair market value of each Investment being
measured at the time made and without giving effect to subsequent changes in value);
-25-
(14) Investments relating to an ABL Financing Entity or a Receivables Subsidiary that,
in the good faith determination of the Issuer, are necessary or advisable to effect the ABL
Facility or any Receivables Facility, as the case may be;
(15) advances to, or guarantees of Indebtedness of, employees not in excess of $50.0
million outstanding at any one time, in the aggregate;
(16) loans and advances to officers, directors and employees for business-related
travel expenses, moving expenses and other similar expenses, in each case incurred in the
ordinary course of business or consistent with past practices or to fund such Persons
purchase of Equity Interests of the Issuer or any direct or indirect parent company thereof;
(17) Physician Support Obligations made by the Issuer or any Restricted Subsidiary;
(18) any Investment in any joint venture existing on the Issue Date that owns or
operates one or more healthcare facilities, including, without limitation, hospitals,
ambulatory surgery centers, outpatient diagnostic centers or imaging centers, to the extent
contemplated by the organizational documents of such joint venture as in existence on the
Issue Date;
(19) any Investment in the ordinary course of business or as may be required by
applicable law by any Restricted Subsidiary (including, without limitation, HCI) engaged in
the insurance business in order to provide insurance to the Issuer and its Subsidiaries;
(20) any Investment pursuant to any customary buy/sell arrangement in favor of
investors or joint venture parties in connection with syndications of healthcare facilities,
including, without limitation, hospitals, ambulatory surgery centers, outpatient diagnostic
centers or imaging centers; and
(21) any Investment in any Subsidiary or any joint venture in connection with
intercompany cash management arrangements or related activities arising in the ordinary
course of business.
Permitted Liens
means, with respect to any Person:
(1) pledges or deposits by such Person under workmens compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits in connection with bids,
tenders, contracts (other than for the payment of Indebtedness) or leases to which such
Person is a party, or deposits to secure public or statutory obligations of such Person or
deposits of cash or U.S. government bonds to secure surety or appeal bonds to which such
Person is a party, or deposits as security for contested taxes or import duties or for the
payment of rent, in each case incurred in the ordinary course of business;
(2) Liens imposed by law, such as carriers, warehousemens and mechanics Liens, in
each case for sums not yet overdue for a period of more than 30 days or being contested in
good faith by appropriate proceedings or other Liens arising out of judgments or awards
against such Person with respect to which such Person shall then be proceeding with an
appeal or other proceedings for review if adequate reserves with respect thereto are
maintained on the books of such Person in accordance with GAAP;
(3) Liens for taxes, assessments or other governmental charges not yet overdue for a
period of more than 30 days or payable or subject to penalties for nonpayment or which are
being
-26-
contested in good faith by appropriate proceedings diligently conducted, if adequate
reserves with respect thereto are maintained on the books of such Person in accordance with
GAAP;
(4) Liens in favor of issuers of performance and surety bonds or bid bonds or with
respect to other regulatory requirements or letters of credit issued pursuant to the request
of and for the account of such Person in the ordinary course of its business;
(5) minor survey exceptions, minor encumbrances, easements or reservations of, or
rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other restrictions as to the use of
real properties or Liens incidental to the conduct of the business of such Person or to the
ownership of its properties which were not incurred in connection with Indebtedness and
which do not in the aggregate materially adversely affect the value of said properties or
materially impair their use in the operation of the business of such Person;
(6) Liens securing Indebtedness permitted to be incurred pursuant to clause (4), (12),
(13), (18) or (19) of Section 4.10(b) hereof;
provided
that (a) Liens securing
Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred pursuant to
clause (13) relate only to Refinancing Indebtedness that serves to refund or refinance
Indebtedness, Disqualified Stock or Preferred Stock incurred under clause (4) or (12) of
Section 4.10(b) hereof, (b) Liens securing Indebtedness permitted to be incurred pursuant to
clause (18) extend only to the assets of Foreign Subsidiaries, (c) Liens securing
Indebtedness permitted to be incurred pursuant to clause (19) are solely on acquired
property or the assets of the acquired entity, as the case may be and (d) Liens securing
Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred pursuant to
clause (4) of Section 4.10(b) hereof extend only to the assets so financed, purchased,
constructed or improved;
(7) Liens existing on the Issue Date (other than Liens in favor of the lenders under
the Senior Credit Facilities);
(8) Liens on property or shares of stock of a Person at the time such Person becomes a
Subsidiary;
provided
,
however
, such Liens are not created or incurred in
connection with, or in contemplation of, such other Person becoming such a Subsidiary;
provided
,
further
,
however
, that such Liens may not extend to any
other property owned by the Issuer or any of its Restricted Subsidiaries;
(9) Liens on property at the time the Issuer or a Restricted Subsidiary acquired the
property, including any acquisition by means of a merger or consolidation with or into the
Issuer or any of its Restricted Subsidiaries;
provided
,
however
, that such
Liens are not created or incurred in connection with, or in contemplation of, such
acquisition;
provided
,
further
,
however
, that the Liens may not
extend to any other property owned by the Issuer or any of its Restricted Subsidiaries;
(10) Liens securing Indebtedness or other obligations of a Restricted Subsidiary owing
to the Issuer or another Restricted Subsidiary permitted to be incurred in accordance with
Section 4.10 hereof;
(11) Liens securing Hedging Obligations so long as the related Indebtedness is, and is
permitted to be under this Indenture, secured by a Lien on the same property securing such
Hedging Obligations;
-27-
(12) Liens on specific items of inventory or other goods and proceeds of any Person
securing such Persons obligations in respect of bankers acceptances issued or created for
the account of such Person to facilitate the purchase, shipment or storage of such inventory
or other goods;
(13) leases, subleases, licenses or sublicenses granted to others in the ordinary
course of business which do not materially interfere with the ordinary conduct of the
business of the Issuer or any of its Restricted Subsidiaries and do not secure any
Indebtedness;
(14) Liens arising from Uniform Commercial Code financing statement filings regarding
operating leases entered into by the Issuer and its Restricted Subsidiaries in the ordinary
course of business;
(15) Liens in favor of the Issuer or any Guarantor;
(16) Liens on equipment of the Issuer or any of its Restricted Subsidiaries granted in
the ordinary course of business;
(17) Liens on accounts receivable and related assets incurred in connection with a
Receivables Facility;
(18) Liens to secure any refinancing, refunding, extension, renewal or replacement (or
successive refinancings, refundings, extensions, renewals or replacements), as a whole or in
part, of any Indebtedness secured by any Lien referred to in the foregoing clauses (6), (7),
(8) and (9);
provided
,
however
, that (a) such new Lien shall be limited to
all or part of the same property that secured the original Lien (plus improvements on such
property), and (b) the Indebtedness secured by such Lien at such time is not increased to
any amount greater than the sum of (i) the outstanding principal amount or, if greater,
committed amount of the Indebtedness described under clauses (6), (7), (8) and (9) at the
time the original Lien became a Permitted Lien under this Indenture, and (ii) an amount
necessary to pay any fees and expenses, including premiums, related to such refinancing,
refunding, extension, renewal or replacement;
(19) deposits made in the ordinary course of business to secure liability to insurance
carriers;
(20) other Liens securing obligations incurred in the ordinary course of business which
obligations do not exceed $100.0 million at any one time outstanding;
(21) Liens securing judgments for the payment of money not constituting an Event of
Default under clause (5) under Section 6.01 hereof so long as such Liens are adequately
bonded and any appropriate legal proceedings that may have been duly initiated for the
review of such judgment have not been finally terminated or the period within which such
proceedings may be initiated has not expired;
(22) 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 in the ordinary
course of business;
(23) Liens (i) of a collection bank arising under Section 4-210 of the Uniform
Commercial Code, or any comparable or successor provision, on items in the course of
collection, (ii) attaching to commodity trading accounts or other commodity brokerage
accounts incurred in
-28-
the ordinary course of business, and (iii) in favor of banking institutions arising as
a matter of law encumbering deposits (including the right of set-off) and which are within
the general parameters customary in the banking industry;
(24) Liens deemed to exist in connection with Investments in repurchase agreements
permitted under Section 4.10 hereof;
provided
that such Liens do not extend to any
assets other than those that are the subject of such repurchase agreements;
(25) 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;
(26) 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 Issuer or any of its Restricted
Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the
ordinary course of business of the Issuer and its Restricted Subsidiaries or (iii) relating
to purchase orders and other agreements entered into with customers of the Issuer or any of
its Restricted Subsidiaries in the ordinary course of business; and
(27) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for the sale or purchase of goods entered into by the Issuer or any Restricted
Subsidiary in the ordinary course of business.
For purposes of this definition, the term Indebtedness shall be deemed to include interest
on such Indebtedness.
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.
Physician Support Obligation
means (1) a loan to or on behalf of, or a guarantee of
Indebtedness or income of, a physician or healthcare professional providing service to patients in
the service area of a healthcare facility operated by the Issuer, any of its Restricted
Subsidiaries or any affiliated joint venture otherwise permitted by this Indenture made or given by
the Issuer or any Restricted Subsidiary of the Issuer in the ordinary course of business and
pursuant to a written agreement having a period not to exceed five years or (2) guarantees by the
Issuer or any Restricted Subsidiary of the Issuer of leases and loans to acquire property (real or
personal) for or on behalf of a physician or healthcare professional providing service to patients
in the service area of a healthcare facility operated by the Issuer, any of its Restricted
Subsidiaries or any affiliated joint venture otherwise permitted by this Indenture.
PIK Interest
has the meaning set forth in
Exhibit A-3
hereto.
Plan of Reorganization
means any plan of reorganization, plan of liquidation,
agreement for composition, or other type of plan of arrangement proposed in or in connection with
any Insolvency or Liquidation Proceeding.
Pledge Agreement
means the Pledge Agreement, dated as of the Issue Date, among the
Issuer, the subsidiary pledgors named therein and the Collateral Agent.
-29-
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 (used in this definition as defined in
the Existing Notes Indenture) and located in the United States of America.
Priority Lien Obligations
means, collectively, ABL Obligations and First Lien
Obligations.
Priority Lien Secured Parties
means, collectively, the ABL Secured Parties and the
First Lien Secured Parties.
Private Placement Legend
means the legend set forth in Section 2.06(g)(i) hereof to
be placed on all Notes issued under this Indenture, except where otherwise permitted by the
provisions of this Indenture.
Purchase Money Obligations
means any Indebtedness incurred to finance or refinance
the acquisition, leasing, construction or improvement of property (real or personal) or assets
(other than Capital Stock), and whether acquired through the direct acquisition of such property or
assets, or otherwise.
QIB
means a qualified institutional buyer as defined in Rule 144A.
Qualified Proceeds
means assets that are used or useful in, or Capital Stock of any
Person engaged in, a Similar Business;
provided
that the fair market value of any such
assets or Capital Stock shall be determined by the Issuer in good faith.
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 Collateral
means all the assets pledged to the ABL Collateral Agent on
behalf of the ABL Secured Parties as security for the ABL Obligations.
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 Restricted
Subsidiaries (other than a Receivables Subsidiary) pursuant to which the Issuer or any of its
Restricted Subsidiaries purports to sell its accounts receivable to either (a) a Person that is not
a Restricted 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 Restricted Subsidiary or by
borrowing from such Person or from another Receivables Subsidiary that in turn funds itself by
borrowing from such Person.
Receivables Fees
means distributions or payments made directly or by means of
discounts with respect to any accounts receivable or participation interest therein issued or sold
in
-30-
connection with, and other fees paid to a Person that is not a Restricted Subsidiary in
connection with any Receivables Facility.
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 Additional Interest, if any, payable on any
applicable Interest Payment Date means May 1 or November 1 (whether or not a Business Day) next
preceding such Interest Payment Date.
Registration Rights Agreement
means the Registration Rights Agreement related to the
Notes, dated as of the Issue Date, among the Issuer, the Guarantors and the Initial Purchasers, as
such agreement may be amended, modified or supplemented from time to time and, with respect to any
Additional Notes, one or more registration rights agreements between the Issuer and the other
parties thereto, as such agreement(s) may be amended, modified or supplemented from time to time,
relating to rights given by the Issuer to the purchasers of Additional Notes to register such
Additional Notes under the Securities Act.
Regulation S
means Regulation S promulgated under the Securities Act.
Regulation S Global Note
means a Regulation S Temporary Global Note or Regulation S
Permanent Global Note, as applicable.
Regulation S Permanent Global Note
means a permanent Global Note in the form of
Exhibit A-1
,
Exhibit A-2
or
Exhibit A-3
hereto, as the case may be, bearing
the Global Note Legend and the Private Placement Legend and deposited with or on behalf of and
registered in the name of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Regulation S Temporary Global Note upon expiration of the
Restricted Period.
Regulation S Temporary Global Note
means a temporary Global Note in the form of
Exhibit A-1
,
Exhibit A-2
or
Exhibit A-3
hereto, as the case may be, bearing
the Global Note Legend, the Private Placement Legend and the Regulation S Temporary Global Note
Legend and deposited with or on behalf of and registered in the name of the Depositary or its
nominee, issued in a denomination equal to the outstanding principal amount of the Notes initially
sold in reliance on Rule 903.
Regulation S Temporary Global Note Legend
means the legend set forth in Section
2.06(g)(iii) hereof.
Related Business Assets
means assets (other than cash or Cash Equivalents) used or
useful in a Similar Business;
provided
that any assets received by the Issuer or a
Restricted Subsidiary in exchange for assets transferred by the Issuer or a Restricted Subsidiary
will not be deemed to be Related Business Assets if they consist of securities of a Person, unless
upon receipt of the securities of such Person, such Person would become a Restricted Subsidiary.
Responsible Officer
means, when used with respect to the Trustee, any officer within
the corporate trust department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, 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
-31-
familiarity with the particular subject and who shall have direct responsibility for the
administration of this Indenture.
Restricted Definitive Note
means a Definitive Note bearing the Private Placement
Legend.
Restricted Global Note
means a Global Note bearing the Private Placement Legend.
Restricted Investment
means an Investment other than a Permitted Investment.
Restricted Period
means the 40-day distribution compliance period as defined in
Regulation S.
Restricted Subsidiary
means, at any time, any direct or indirect Subsidiary of the
Issuer (including any Foreign Subsidiary) that is not then an Unrestricted Subsidiary;
provided
,
however
, that upon an Unrestricted Subsidiarys ceasing to be an
Unrestricted Subsidiary, such Subsidiary shall be included in the definition of Restricted
Subsidiary.
Rule 144
means Rule 144 promulgated under the Securities Act.
Rule 144A
means Rule 144A promulgated under the Securities Act.
Rule 903
means Rule 903 promulgated under the Securities Act.
Rule 904
means Rule 904 promulgated under the Securities Act.
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 Restricted Subsidiaries of any real or tangible personal property, which
property has been or is to be sold or transferred by the Issuer or such Restricted Subsidiary to a
third Person in contemplation of such leasing.
SEC
means the U.S. Securities and Exchange Commission.
Secured Indebtedness
means any Indebtedness of the Issuer or any of its Restricted
Subsidiaries secured by a Lien.
Securities Act
means the Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
Security Agreement
means the Security Agreement, dated as of the Issue Date, among
the Issuer, the subsidiary grantors named therein and the Collateral Agent.
Security Documents
means, collectively, the Intercreditor Agreements, the security
agreements relating to the Collateral and the mortgages and instruments filed and recorded in
appropriate jurisdictions to preserve and protect the Liens on the Collateral (including, without
limitation, financing statements under the Uniform Commercial Code of the relevant states)
applicable to the Collateral, each for the benefit of the Collateral Agent, as in effect on the
Issue Date and as amended, amended and restated, modified, renewed or replaced from time to time.
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Senior Credit Facilities
means the ABL Facility and the General Credit Facility.
Senior Indebtedness
means:
(1) all Indebtedness of the Issuer or any Guarantor outstanding under the Senior Credit
Facilities or Notes and related Guarantees (including interest accruing on or after the
filing of any petition in bankruptcy or similar proceeding or for reorganization of the
Issuer or any Guarantor (at the rate provided for in the documentation with respect thereto,
regardless of whether or not a claim for post-filing interest is allowed in such
proceedings)), and any and all other fees, expense reimbursement obligations,
indemnification amounts, penalties, and other amounts (whether existing on the Issue Date or
thereafter created or incurred) and all obligations of the Issuer or any Guarantor to
reimburse any bank or other Person in respect of amounts paid under letters of credit,
acceptances or other similar instruments;
(2) all Hedging Obligations (and guarantees thereof) owing to a Lender (as defined in
the Senior Credit Facilities) or any Affiliate of such Lender (or any Person that was a
Lender or an Affiliate of such Lender at the time the applicable agreement giving rise to
such Hedging Obligation was entered into);
provided
that such Hedging Obligations
are permitted to be incurred under the terms of this Indenture;
(3) any other Indebtedness of the Issuer or any Guarantor permitted to be incurred
under the terms of this Indenture, unless the instrument under which such Indebtedness is
incurred expressly provides that it is subordinated in right of payment to the Notes or any
related Guarantee; and
(4) all Obligations with respect to the items listed in the preceding clauses (1), (2)
and (3);
provided
,
however
, that Senior Indebtedness shall not include:
(a) any obligation of such Person to the Issuer or any of its Subsidiaries;
(b) any liability for federal, state, local or other taxes owed or owing by such
Person;
(c) any accounts payable or other liability to trade creditors arising in the ordinary
course of business;
(d) any Indebtedness or other Obligation of such Person which is subordinate or junior
in any respect to any other Indebtedness or other Obligation of such Person; or
(e) that portion of any Indebtedness which at the time of incurrence is incurred in
violation of this Indenture.
Separate Receivables Collateral
means the Receivables Collateral other than the
Shared Receivables Collateral.
Shared Receivables Collateral
means the portion of the Receivables Collateral which
secures the General Credit Facility on a second priority basis pursuant to the First Lien Security
Documents and the Notes on a third-priority basis pursuant to the Security Documents.
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Shared Receivables Intercreditor Agreement
means the Receivables Intercreditor
Agreement dated as of the Issue Date among the Collateral Agent, the ABL Collateral Agent and the
First Lien Collateral Agent with respect to the Shared Receivables Collateral.
Shared Receivables Security Documents
means, collectively, the Shared Receivables
Intercreditor Agreement, the security agreement relating to the Shared Receivables Collateral, the
control agreements and deposit agreements and the instruments filed and recorded in appropriate
jurisdictions to preserve and protect the Liens on the Shared Receivables Collateral (including,
without limitation, financing statements under the Uniform Commercial Code of the relevant states)
applicable to the Shared Receivables Collateral, each for the benefit of the Collateral Agent as in
effect on the Issue Date and as amended, amended and restated, modified, renewed or replaced from
time to time.
Shelf Registration Statement
means the Shelf Registration Statement as defined in
the Registration Rights Agreement.
Significant Subsidiary
means any Restricted Subsidiary that would be a significant
subsidiary as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the
Securities Act, as such regulation is in effect on the Issue Date.
Similar Business
means any business conducted or proposed to be conducted by the
Issuer and its Restricted Subsidiaries on the Issue Date or any business that is similar,
reasonably related, incidental or ancillary thereto.
Sponsor Management Agreement
means the management agreement between certain of the
management companies associated with the Investors, the Frist Entities and the Issuer.
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 any Guarantor which is by its terms subordinated in right of
payment to the Guarantee of such entity of the Notes.
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 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
(x) more than 50% of the capital accounts, distribution rights, total equity
and voting interests or general or limited partnership interests, as applicable, are
owned or controlled, directly or indirectly, by such Person or one or more of the
other
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Subsidiaries of that Person or a combination thereof whether in the form of
membership, general, special or limited partnership or otherwise, and
(y) such Person or any Restricted Subsidiary of such Person is a controlling
general partner or otherwise controls such entity.
Toggle Notes
means the Initial Toggle Notes and any Additional Toggle Notes.
Total Assets
means the total assets of the Issuer and its Restricted Subsidiaries on
a consolidated basis, as shown on the most recent consolidated balance sheet of the Issuer or such
other Person as may be expressly stated.
Transaction
means the transactions contemplated by the Transaction Agreement, the
issuance of the Notes and borrowings under the Senior Credit Facilities as in effect on the Issue
Date.
Transaction Agreement
means the Agreement and Plan of Merger, dated as of July 24,
2006, between Hercules Holding II, LLC, Hercules Acquisition Corporation and the Issuer, as the
same may be amended prior to the Issue Date.
Treasury Rate
means, as of any Redemption Date, the yield to maturity as of such
Redemption Date of United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15 (519) that 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)) most nearly
equal to the period from the Redemption Date to November 15, 2010 with respect to the 2014 Cash-Pay
Notes and November 15, 2011 with respect to the 2016 Cash-Pay Notes and the Toggle Notes;
provided
,
however
, that if the period from the Redemption Date to November 15, 2010
with respect to the 2014 Cash-Pay Notes and November 15, 2011 with respect to the 2016 Cash-Pay
Notes and the Toggle Notes is less than one year, the weekly average yield on actually traded
United States Treasury securities adjusted to a constant maturity of one year will be used.
Trust Indenture Act
means the Trust Indenture Act of 1939, as amended (15 U.S.C §§
77aaa-777bbbb).
Trustee
means The Bank of New York, as trustee, until a successor replaces it in
accordance with the applicable provisions of this Indenture and thereafter means the successor
serving hereunder.
Unrestricted Definitive Note
means one or more Definitive Notes that do not bear and
are not required to bear the Private Placement Legend.
Unrestricted Global Note
means a permanent Global Note, substantially in the form of
Exhibit A-1
,
Exhibit A-2
or
Exhibit A-3
attached hereto, as the case may
be, that bears the Global Note Legend and that has the Schedule of Exchanges of Interests in the
Global Note attached thereto, and that is deposited with or on behalf of and registered in the
name of the Depositary, representing Notes that do not bear the Private Placement Legend.
Unrestricted Subsidiary
means:
(1) any Subsidiary of the Issuer which at the time of determination is an Unrestricted
Subsidiary (as designated by the Issuer, as provided below); and
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(2) any Subsidiary of an Unrestricted Subsidiary.
The Issuer may designate any Subsidiary of the Issuer (including any existing Subsidiary and
any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such
Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or
holds any Lien on, any property of, the Issuer or any Subsidiary of the Issuer (other than solely
any Subsidiary of the Subsidiary to be so designated);
provided
that
(1) any Unrestricted Subsidiary must be an entity of which the Equity Interests
entitled to cast at least a majority of the votes that may be cast by all Equity Interests
having ordinary voting power for the election of directors or Persons performing a similar
function are owned, directly or indirectly, by the Issuer;
(2) such designation complies with Section 4.07 hereof; and
(3) each of:
(a) the Subsidiary to be so designated; and
(b) its Subsidiaries
has not at the time of designation, and does not thereafter, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable with respect to any
Indebtedness pursuant to which the lender has recourse to any of the assets of the
Issuer or any Restricted Subsidiary.
The Issuer may designate any Unrestricted Subsidiary to be a Restricted Subsidiary;
provided
that, immediately after giving effect to such designation, no Default shall have
occurred and be continuing and either:
(1) the Issuer could incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test described in Section 4.10(a) hereof; or
(2) the Fixed Charge Coverage Ratio for the Issuer and its Restricted Subsidiaries
would be greater than such ratio for the Issuer and its Restricted Subsidiaries immediately
prior to such designation,
in each case on a
pro forma
basis taking into account such designation.
Any such designation by the Issuer shall be notified by the Issuer to the Trustee by promptly
filing with the Trustee a copy of the resolution of the board of directors of the Issuer or any
committee thereof giving effect to such designation and an Officers Certificate certifying that
such designation complied with the foregoing provisions.
U.S. Person
means a U.S. person as defined in Rule 902(k) under the Securities Act.
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.
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Weighted Average Life to Maturity
means, when applied to any Indebtedness,
Disqualified Stock or Preferred Stock, as the case may be, at any date, the quotient obtained by
dividing:
(1) the sum of the products of the number of years from the date of determination to
the date of each successive scheduled principal payment of such Indebtedness or redemption
or similar payment with respect to such Disqualified Stock or Preferred Stock multiplied by
the amount of such payment; by
(2) the sum of all such payments.
Wholly-Owned Subsidiary
of any Person means a Subsidiary of such Person, 100% of the
outstanding Equity Interests of which (other than directors qualifying shares) shall at the time
be owned by such Person or by one or more Wholly-Owned Subsidiaries of such Person.
Section 1.02
Other Definitions
.
|
|
|
|
|
|
|
Defined in
|
Term
|
|
Section
|
Acceptable Commitment
|
|
|
4.11
|
|
Affiliate Transaction
|
|
|
4.12
|
|
Asset Sale Offer
|
|
|
4.11
|
|
Authentication Order
|
|
|
2.02
|
|
AHYDO Redemption Date
|
|
|
3.08
|
|
Change of Control Offer
|
|
|
4.15
|
|
Change of Control Payment
|
|
|
4.15
|
|
Change of Control Payment Date
|
|
|
4.15
|
|
Collateral Asset Sale Offer
|
|
|
4.11
|
|
Collateral Excess Proceeds
|
|
|
4.11
|
|
Collateral Offer Amount
|
|
|
3.09
|
|
Collateral Offer Period
|
|
|
3.09
|
|
Collateral Purchase Date
|
|
|
3.09
|
|
Covenant Defeasance
|
|
|
8.03
|
|
Covenant Suspension Event
|
|
|
4.17
|
|
DTC
|
|
|
2.03
|
|
Event of Default
|
|
|
6.01
|
|
Excess Proceeds
|
|
|
4.11
|
|
incur
|
|
|
4.10
|
|
Legal Defeasance
|
|
|
8.02
|
|
Mandatory Principal Redemption
|
|
|
3.08
|
|
Mandatory Principal Redemption Amount
|
|
|
3.08
|
|
Note Register
|
|
|
2.03
|
|
Offer Amount
|
|
|
3.10
|
|
Offer Period
|
|
|
3.10
|
|
Paying Agent
|
|
|
2.03
|
|
Payment Discharge
|
|
|
11.04
|
|
PIK Notes
|
|
|
2.01
|
|
PIK Payment
|
|
|
2.01
|
|
Purchase Date
|
|
|
3.10
|
|
Redemption Date
|
|
|
3.07
|
|
Refinancing Indebtedness
|
|
|
4.10
|
|
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|
|
|
|
|
|
|
Defined in
|
Term
|
|
Section
|
Refunding Capital Stock
|
|
|
4.07
|
|
Registrar
|
|
|
2.03
|
|
Restricted Payments
|
|
|
4.07
|
|
Reversion Date
|
|
|
4.17
|
|
Second Commitment
|
|
|
4.11
|
|
Successor Company
|
|
|
5.01
|
|
Successor Person
|
|
|
5.01
|
|
Suspended Covenants
|
|
|
4.17
|
|
Suspension Period
|
|
|
4.17
|
|
Treasury Capital Stock
|
|
|
4.07
|
|
Section 1.03
Incorporation by Reference of Trust Indenture Act
.
Whenever this Indenture refers to a provision of the Trust Indenture Act, the provision is
incorporated by reference in and made a part of this Indenture.
The following Trust Indenture Act terms used in this Indenture have the following meanings:
indenture securities means the Notes;
indenture security Holder means a Holder of a Note;
indenture to be qualified means this Indenture;
indenture trustee or institutional trustee means the Trustee; and
obligor on the Notes and the Guarantees means the Issuer and the Guarantors,
respectively, and any successor obligor upon the Notes and the Guarantees, respectively.
All other terms used in this 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;
(e) will shall be interpreted to express a command;
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(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 Indenture; and
(i) the words herein, hereof and hereunder and other words of similar import
refer to this Indenture as a whole and not any particular Article, Section, clause or other
subdivision.
Section 1.05
Acts of Holders
.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by this 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. 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 Indenture and (subject to Section 7.01) conclusive in favor of the Trustee
and the Issuer, 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 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.
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(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 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
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
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-1
(in the case of the 2014 Cash-Pay Notes);
Exhibit A-2
(in the case of the 2016 Cash-Pay Notes); and
Exhibit A-3
(in the case
of the Toggle Notes) hereto. The Notes may have notations, legends or endorsements 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-1
(in the case of the 2014 Cash-Pay Notes);
Exhibit A-2
(in the case of
the 2016 Cash-Pay Notes) and
Exhibit A-3
(in the case of the Toggle Notes) 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-1
(in the case of the 2014 Cash-Pay
Notes);
Exhibit A-2
(in the case of the 2016 Cash-Pay Notes) and
Exhibit A-3
(in the case of the Toggle Notes) 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
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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)
Temporary Global Notes
. Notes offered and sold in reliance on Regulation S shall
be issued initially in the form of the Regulation S Temporary Global Note, which shall be deposited
on behalf of the purchasers of the Notes represented thereby with the Trustee, as custodian for the
Depositary, and registered in the name of the Depositary or the nominee of the Depositary for the
accounts of designated agents holding on behalf of Euroclear or Clearstream, duly executed by the
Issuer and authenticated by the Trustee as hereinafter provided. The Restricted Period shall be
terminated upon the receipt by the Trustee of:
(i) a written certificate from the Depositary, together with copies of certificates
from Euroclear and Clearstream certifying that they have received certification of
non-United States beneficial ownership of 100% of the aggregate principal amount of the
Regulation S Temporary Global Note (except to the extent of any beneficial owners thereof
who acquired an interest therein during the Restricted Period pursuant to another exemption
from registration under the Securities Act and who shall take delivery of a beneficial
ownership interest in a 144A Global Note bearing a Private Placement Legend, all as
contemplated by Section 2.06(b) hereof); and
(ii) an Officers Certificate from the Issuer.
(iii) Following the termination of the Restricted Period, beneficial interests in the
Regulation S Temporary Global Note shall be exchanged for beneficial interests in the
Regulation S Permanent Global Note pursuant to the Applicable Procedures. Simultaneously
with the authentication of the Regulation S Permanent Global Note, the Trustee shall cancel
the Regulation S Temporary Global Note. The aggregate principal amount of the Regulation S
Temporary Global Note and the Regulation S Permanent Global Note may from time to time be
increased or decreased by adjustments made on the records of the Trustee and the Depositary
or its nominee, as the case may be, in connection with transfers of interest as hereinafter
provided.
(d)
Terms
. The aggregate principal amount of Notes that may be authenticated and
delivered under this Indenture is unlimited.
The terms and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture and the Issuer, the Guarantors and the Trustee, by their execution
and delivery of this 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 Indenture, the provisions of this Indenture shall govern and be controlling.
The Notes shall be subject to repurchase by the Issuer pursuant to an Asset Sale Offer or
Collateral Asset Sale Offer as provided in Section 4.11 hereof or a Change of Control Offer as
provided in Section 4.15 hereof. The Notes shall not be redeemable, other than as provided in
Article 3.
Additional Notes ranking
pari passu
with the Initial 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;
provided
that the Issuers ability to issue
Additional Notes shall be subject to the Issuers compliance with Section 4.10 hereof. In
addition, in connection with the payment of PIK Interest or Partial PIK Interest in respect of the
Toggle Notes, the Issuer is entitled to, without the consent of the Holders and without regard to
Section 4.10, increase the outstanding principal amount of the
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Toggle Notes or issue additional
Toggle Notes (the
PIK Notes
) under this Indenture on the same terms and conditions as the
Toggle Notes offered hereby (in each case, the
PIK Payment
). The 2014 Cash-Pay Notes,
the 2016 Cash-Pay Notes and the Toggle Notes are each a separate series of Notes but will be
treated as a single class of securities under this Indenture, except as otherwise stated herein.
As a result, Holders of each series of Notes will not have separate rights to, among other things,
give notice of Defaults or to direct the Trustee to exercise remedies during an Event of Default or
otherwise. Except as described under Article 9 hereof, the Notes offered by the Issuer, the PIK
Notes and any Additional Notes subsequently issued under this Indenture will be treated as a single
class for all purposes under this Indenture, including waivers, amendments, redemptions and offers
to purchase. Unless the context requires otherwise, references to Notes for all purposes of this
Indenture include any PIK Notes and Additional Notes that are actually issued, and references to
principal amount of the Notes includes any increase in the principal amount of the outstanding
Notes as a result of a PIK Payment. Any Additional Notes shall be issued with the benefit of an
indenture supplemental to this Indenture.
(e)
Euroclear and Clearstream Procedures Applicable
. The provisions of the Operating
Procedures of the Euroclear System and Terms and Conditions Governing Use of Euroclear and the
General Terms and Conditions of Clearstream Banking and Customer Handbook of Clearstream shall
be applicable to transfers of beneficial interests in the Regulation S Temporary Global Note and
the Regulation S Permanent Global Notes that are held by Participants through Euroclear or
Clearstream.
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 Indenture or be valid or obligatory for
any purpose until authenticated substantially in the form provided for in
Exhibit A-1
(with
respect to the 2014 Cash-Pay Notes),
Exhibit A-2
(with respect to the 2016 Cash-Pay Notes)
or
Exhibit A-3
(with respect to the Toggle Notes) attached hereto, as the case may be, by
the manual or facsimile signature of the Trustee. The signature shall be conclusive evidence that
the Note has been duly authenticated and delivered under this Indenture.
On the Issue Date, the Trustee shall, upon receipt of an Issuer Order (an
Authentication
Order
), authenticate and deliver (i) the Initial 2014 Cash-Pay Notes; (ii) the Initial 2016
Cash-Pay Notes; (iii) the Initial Toggle Notes. In addition, at any time, from time to time, the
Trustee shall upon an Authentication Order authenticate and deliver any (i) Additional Notes, (ii)
any PIK Notes issued in payment of PIK Interest or Partial PIK Interest and (iii) Exchange Notes or
private exchange notes for issue only in an Exchange Offer or a private exchange, respectively,
pursuant to a Registration Rights
Agreement, for a like principal amount of Initial Notes. Such Authentication Order shall
specify the amount of the Notes to be authenticated and, in the case of any issuance of Additional
Notes pursuant to Section 2.01 hereof, shall certify that such issuance is in compliance with
Section 4.10 of this Indenture. On any Interest Payment Date on which the Issuer pays PIK Interest
and Partial PIK Interest with respect to a Global Note, the Trustee shall increase the principal
amount of such Global Note by an amount equal to the interest payable, rounded up to the nearest
$1,000, for the relevant Interest Period on the principal amount of such Global Note as of the
relevant Record Date for such Interest Payment Date, to the credit of the Holders on such Record
Date, pro rata in accordance with their interests, and an adjustment shall be made on the books and
records of the Trustee (if it is then the Custodian for such Global Note) with
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respect to such
Global Note, by the Trustee or the Custodian, to reflect such increase. On any Interest Payment
Date on which the Issuer pays PIK Interest or Partial PIK Interest by issuing definitive PIK Notes,
the principal amount of any such PIK Notes issued to any Holder, for the relevant Interest Period
as of the relevant Record Date for such Interest Payment Date, shall be rounded up to the nearest
$1.00.
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 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 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 the Trustee to act as the Paying Agent and Registrar for the
Notes and 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 Additional Interest, 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 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
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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
. Except as otherwise set forth in this
Section 2.06, a Global Note may be transferred, in whole and not in part, only to another nominee
of the Depositary or to a successor Depositary or a nominee of such successor Depositary. A
beneficial interest in a Global Note may not be exchanged for a Definitive Note unless (i) the
Depositary (x) notifies the Issuer that it is unwilling or unable to continue as Depositary for
such Global Note or (y) has ceased to be a clearing agency registered under the Exchange Act and,
in either case, a successor Depositary is not appointed by the Issuer within 120 days or (ii) there
shall have occurred and be continuing a Default with respect to the Notes. Upon the occurrence of
any of the preceding events in (i) or (ii) above, Definitive Notes delivered in exchange for any
Global Note or beneficial interests therein will be registered in the names, and issued in any
approved denominations, requested by or on behalf of the Depositary (in accordance with its
customary procedures). Global Notes also may be exchanged or replaced, in whole or in part, as
provided in 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 Section 2.07
or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note,
except for Definitive Notes issued subsequent to any of the preceding events in (i) or (ii) above
and pursuant to Section 2.06(c) hereof. A Global Note may not be exchanged for another Note other
than as provided in this Section 2.06(a);
provided
,
however
, beneficial interests
in a Global Note may be transferred and exchanged as provided in Section 2.06(b), (c) or (f)
hereof.
(b)
Transfer and Exchange of Beneficial Interests in the Global Notes
. The transfer
and exchange of beneficial interests in the Global Notes shall be effected through the Depositary,
in accordance with the provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes shall be subject to restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act. Transfers of beneficial
interests in the Global Notes also shall require compliance with either subparagraph (i) or (ii)
below, as applicable, as well as one or more of the other following subparagraphs, as applicable:
(i)
Transfer of Beneficial Interests in the Same Global Note
. Beneficial
interests in any Restricted Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in the same Restricted Global Note in
accordance with the transfer
restrictions set forth in the Private Placement Legend;
provided
,
however
, that prior to the expiration of the Restricted Period, transfers of
beneficial interests in the Regulation S Temporary Global Note may not be made to a U.S.
Person or for the account or benefit of a U.S. Person (other than an Initial Purchaser).
Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take
delivery thereof in the form of a beneficial interest in an Unrestricted 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)(i).
(ii)
All Other Transfers and Exchanges of Beneficial Interests in Global Notes
.
In connection with all transfers and exchanges of beneficial interests that are not subject
to Section 2.06(b)(i) hereof, the transferor of such beneficial interest must deliver to the
Registrar either (A) (1) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged and (2) instructions given
in accordance with the Applicable
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Procedures containing information regarding the
Participant account to be credited with such increase or (B) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an
amount equal to the beneficial interest to be transferred or exchanged and (2) instructions
given by the Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Note shall be registered to effect the transfer or exchange
referred to in (1) above;
provided
that in no event shall Definitive Notes be issued
upon the transfer or exchange of beneficial interests in the Regulation S Temporary Global
Note prior to (A) the expiration of the Restricted Period and (B) the receipt by the
Registrar of any certificates required pursuant to Rule 903. Upon consummation of an
Exchange Offer by the Issuer in accordance with Section 2.06(f) hereof, the requirements of
this Section 2.06(b)(ii) shall be deemed to have been satisfied upon receipt by the
Registrar of the instructions contained in the Letter of Transmittal delivered by the Holder
of such beneficial interests in the Restricted Global Notes. Upon satisfaction of all of
the requirements for transfer or exchange of beneficial interests in Global Notes contained
in this Indenture and the Notes or otherwise applicable under the Securities Act, the
Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section
2.06(h) hereof.
(iii)
Transfer of Beneficial Interests to Another Restricted Global Note
. A
beneficial interest in any Restricted Global Note may be transferred to a Person who takes
delivery thereof in the form of a beneficial interest in another Restricted Global Note if
the transfer complies with the requirements of Section 2.06(b)(ii) hereof and the Registrar
receives the following:
(A) if the transferee will take delivery in the form of a beneficial interest
in the 144A Global Note, then the transferor must deliver a certificate in the form
of
Exhibit B
hereto, including the certifications in item (1) thereof; or
(B) if the transferee will take delivery in the form of a beneficial interest
in the Regulation S Global Note, then the transferor must deliver a certificate in
the form of
Exhibit B
hereto, including the certifications in item (2)
thereof.
(iv)
Transfer and Exchange of Beneficial Interests in a Restricted Global Note for
Beneficial Interests in an Unrestricted Global Note
. A beneficial interest in any
Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in
an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the
form of a beneficial interest in an
Unrestricted Global Note if the exchange or transfer complies with the requirements of
Section 2.06(b)(ii) hereof and:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the holder of the beneficial
interest to be transferred, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal that it is not
(1) a Broker-Dealer, (2) a Person participating in the distribution of the Exchange
Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the Issuer;
(B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or
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(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a beneficial interest
in an Unrestricted Global Note, a certificate from such Holder substantially
in the form of
Exhibit C
hereto, including the certifications in
item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such holder in the form of
Exhibit B
hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or transfer
is in compliance with the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D) above at a time
when an Unrestricted Global Note has not yet been issued, the Issuer shall issue and, upon
receipt of an Authentication Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to
the aggregate principal amount of beneficial interests transferred pursuant to subparagraph
(B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or
transferred to Persons who take delivery thereof in the form of, a beneficial interest in a
Restricted Global Note.
(c)
Transfer or Exchange of Beneficial Interests for Definitive Notes
.
(i)
Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes
.
If any holder of a beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a
Person who takes
delivery thereof in the form of a Restricted Definitive Note, then, upon the occurrence of any
of the events in paragraph (i) or (ii) of Section 2.06(a) hereof and receipt by the Registrar of
the following documentation:
(A) if the holder of such beneficial interest in a Restricted Global Note proposes to
exchange such beneficial interest for a Restricted Definitive Note, a certificate from such
holder substantially in the form of
Exhibit C
hereto, including the certifications
in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB in accordance with Rule
144A, a certificate substantially in the form of
Exhibit B
hereto, including the
certifications in item (1) thereof;
(C) if such beneficial interest is being transferred to a Non-U.S. Person in an
offshore transaction in accordance with Rule 903 or Rule 904, a certificate substantially in
the form of
Exhibit B
hereto, including the certifications in item (2) thereof;
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(D) if such beneficial interest is being transferred pursuant to an exemption from the
registration requirements of the Securities Act in accordance with Rule 144, a certificate
substantially in the form of
Exhibit B
hereto, including the certifications in item
(3)(a) thereof;
(E) if such beneficial interest is being transferred to the Issuer or any of its
Restricted Subsidiaries, a certificate substantially in the form of
Exhibit B
hereto, including the certifications in item (3)(b) thereof; or
(F) if such beneficial interest is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate substantially in the form of
Exhibit B
hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(h) hereof, and the Issuer shall execute and the Trustee shall
authenticate and mail to the Person designated in the instructions a Definitive Note in the
applicable principal amount. Any Definitive Note issued in exchange for a beneficial interest in a
Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names
and in such authorized denomination or denominations as the holder of such beneficial interest
shall instruct the Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall mail such Definitive Notes to the Persons in whose names
such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest in
a Restricted Global Note pursuant to this Section 2.06(c)(i) shall bear the Private Placement
Legend and shall be subject to all restrictions on transfer contained therein.
(ii)
Beneficial Interests in Regulation S Temporary Global Note to Definitive Notes
.
Notwithstanding Sections 2.06(c)(i)(A) and (C) hereof, a beneficial interest in the Regulation S
Temporary Global Note may not be exchanged for a Definitive Note or transferred to a Person who
takes delivery thereof in the form of a Definitive Note prior to (A) the expiration of the
Restricted Period and (B) the receipt by the Registrar of any certificates required pursuant to
Rule 903(b)(3)(ii)(B) of the Securities Act, except in the case of a transfer pursuant to an
exemption from the registration requirements of the Securities Act other than Rule 903 or Rule 904.
(iii)
Beneficial Interests in Restricted Global Notes to Unrestricted Definitive
Notes
. A holder of a beneficial interest in a Restricted Global Note may exchange such
beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to
a Person who takes delivery
thereof in the form of an Unrestricted Definitive Note only upon the occurrence of any of the
events in subsection (i) or (ii) of Section 2.06(a) hereof and if:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the holder of such beneficial interest, in the
case of an exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a Broker-Dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a Person who is an affiliate
(as defined in Rule 144) of the Issuer;
(B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or
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(D) the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted Global Note
proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a
certificate from such holder substantially in the form of
Exhibit C
hereto,
including the certifications in item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a Restricted Global Note
proposes to transfer such beneficial interest to a Person who shall take delivery
thereof in the form of an Unrestricted Definitive Note, a certificate from such
holder substantially in the form of
Exhibit B
hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so requests or
if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain compliance with the Securities
Act.
(iv)
Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive
Notes
. If any holder of a beneficial interest in an Unrestricted 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 the occurrence of
any of the events in subsection (i) or (ii) of Section 2.06(a) hereof and satisfaction of the
conditions set forth in Section 2.06(b)(ii) hereof, the Trustee shall cause the aggregate principal
amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof,
and the Issuer shall execute and the Trustee shall authenticate and mail to the Person designated
in the instructions a Definitive Note in the applicable principal amount. Any Definitive Note
issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) shall be
registered in such name or names and in such authorized denomination or denominations as the holder
of such beneficial interest shall instruct the Registrar through instructions from or through the
Depositary and the Participant or Indirect Participant. The Trustee shall mail such Definitive
Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section 2.06(c)(iv) shall not bear the Private
Placement Legend.
(d)
Transfer and Exchange of Definitive Notes for Beneficial Interests
.
(i)
Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes
.
If any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial
interest in a Restricted Global Note or to transfer such Restricted Definitive Note to a Person who
takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon
receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note proposes to exchange such Note for
a beneficial interest in a Restricted Global Note, a certificate from such Holder
substantially in the form of
Exhibit C
hereto, including the certifications in item
(2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred to a QIB in accordance with
Rule 144A, a certificate substantially in the form of
Exhibit B
hereto, including
the certifications in item (1) thereof;
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(C) if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an
offshore transaction in accordance with Rule 903 or Rule 904, a certificate substantially in
the form of
Exhibit B
hereto, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred pursuant to an exemption
from the registration requirements of the Securities Act in accordance with Rule 144, a
certificate substantially in the form of
Exhibit B
hereto, including the
certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred to the Issuer or any of its
Restricted Subsidiaries, a certificate substantially in the form of
Exhibit B
hereto, including the certifications in item (3)(b) thereof; or
(F) if such Restricted Definitive Note is being transferred pursuant to an effective
registration statement under the Securities Act, a certificate substantially in the form of
Exhibit B
hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or cause to be increased the
aggregate principal amount of, in the case of clause (A) above, the applicable Restricted Global
Note, in the case of clause (B) above, the applicable 144A Global Note, and in the case of clause
(C) above, the applicable Regulation S Global Note.
(ii)
Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes
.
A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in an
Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in accordance
with the Registration Rights Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal
that it is not (1) a Broker-Dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144) of the Issuer;
(B) such transfer is effected pursuant to the Shelf Registration Statement in
accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the Exchange Offer
Registration Statement in accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Definitive Notes proposes to exchange such Notes for
a beneficial interest in the Unrestricted Global Note, a certificate from such
Holder substantially in the form of
Exhibit C
hereto, including the
certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Notes proposes to transfer such Notes to a
Person who shall take delivery thereof in the form of a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder substantially in the form
of
Exhibit B
hereto, including the certifications in item (4) thereof;
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and, in each such case set forth in this subparagraph (D), if the Registrar so requests or
if the Applicable Procedures so require, an Opinion of Counsel in form reasonably acceptable
to the Registrar to the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain compliance with the Securities
Act.
Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.06(d)(ii),
the Trustee shall cancel the Definitive Notes and increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Note.
(iii)
Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global
Notes
. A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial
interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time.
Upon receipt of a request for such an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount
of one of the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a beneficial interest is effected
pursuant to subparagraph (ii)(B), (ii)(D) or (iii) above at a time when an Unrestricted Global Note
has not yet been issued, the Issuer shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more Unrestricted Global
Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so
transferred.
(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 shall register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting Holder shall 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 shall provide any additional certifications,
documents and information, as applicable, required pursuant to the following provisions of this
Section 2.06(e):
(i)
Restricted Definitive Notes to Restricted Definitive Notes
. Any Restricted
Definitive Note may be transferred to and registered in the name of Persons who take
delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the
following:
(A) if the transfer will be made pursuant to a QIB in accordance with Rule
144A, then the transferor must deliver a certificate substantially in the form of
Exhibit B
hereto, including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule 904 then the
transferor must deliver a certificate in the form of
Exhibit B
hereto,
including the certifications in item (2) thereof; or
(C) if the transfer will be made pursuant to any other exemption from the
registration requirements of the Securities Act, then the transferor must deliver a
certificate in the form of
Exhibit B
hereto, including the certifications
required by item (3) thereof, if applicable.
(ii)
Restricted Definitive Notes to Unrestricted Definitive Notes
. Any
Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted
Definitive Note or
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transferred to a Person or Persons who take delivery thereof in the form
of an Unrestricted Definitive Note if:
(A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a Broker-Dealer, (2) a Person participating
in the distribution of the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Issuer;
(B) any such transfer is effected pursuant to the Shelf Registration Statement
in accordance with the Registration Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer pursuant to the Exchange
Offer Registration Statement in accordance with the Registration Rights Agreement;
or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive Notes proposes to
exchange such Notes for an Unrestricted Definitive Note, a certificate from
such Holder substantially in the form of
Exhibit C
hereto, including
the certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof in the form
of an Unrestricted Definitive Note, a certificate from such Holder
substantially in the form of
Exhibit B
hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Registrar so
requests, an Opinion of Counsel in form reasonably acceptable to the Registrar to
the effect that such exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the Securities
Act.
(iii)
Unrestricted Definitive Notes to Unrestricted Definitive Notes
. A Holder
of Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to
register such a transfer, the Registrar shall register the Unrestricted Definitive Notes
pursuant to the instructions from the Holder thereof.
(f)
Exchange Offer
. Upon the occurrence of an Exchange Offer in accordance with the
Registration Rights Agreement, the Issuer shall issue and, upon receipt of an Authentication Order
in accordance with Section 2.02 hereof, the Trustee shall authenticate (i) one or more Unrestricted
Global Notes in an aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered for acceptance by Persons that certify in the
applicable Letters of Transmittal that (x) they are not Broker-Dealers, (y) they are not
-51-
participating in a distribution of any Exchange Notes and (z) they are not affiliates (as defined
in Rule 144) of the Issuer, and accepted for exchange in the Exchange Offer and (ii) Unrestricted
Definitive Notes in an aggregate principal amount equal to the principal amount of the Restricted
Definitive Notes tendered for acceptance by Persons that certify in the applicable Letters of
Transmittal that (x) they are not Broker-Dealers, (y) they are not participating in a distribution
of the Exchange Notes and (z) they are not affiliates (as defined in Rule 144) of the Issuer, and
accepted for exchange in the Exchange Offer. Concurrently with the issuance of such Notes, the
Trustee shall cause the aggregate principal amount of the applicable Restricted Global Notes to be
reduced accordingly, and the Issuer shall execute and the Trustee shall authenticate and mail to
the Persons designated by the Holders of Definitive Notes so accepted Unrestricted Definitive Notes
in the applicable principal amount. Any Notes that remain outstanding after the consummation of an
Exchange Offer, and Exchange Notes issued in connection with an Exchange Offer, shall be treated as
a single class of securities under this Indenture.
(g)
Legends
. The following legends shall appear on the face of all Global Notes and
Definitive Notes issued under this Indenture unless specifically stated otherwise in the applicable
provisions of this Indenture:
(i)
Private Placement Legend
.
(A) Except as permitted by subparagraph (B) below, each Global Note and each
Definitive Note (and all Notes issued in exchange therefor or substitution therefor)
shall bear the legend in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE SECURITIES ACT) AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT (A) IT IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT, (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL
ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A)
TO THE ISSUER OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) OUTSIDE THE
UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL IF THE ISSUER SO REQUESTS), OR (F) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (3) AGREES
THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS OFFSHORE
TRANSACTION, UNITED STATES AND U.S. PERSON HAVE THE MEANING GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT.
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(B) Notwithstanding the foregoing, any Global Note or Definitive Note issued
pursuant to subparagraph (b)(iv), (c)(iii), (c)(iv), (d)(ii), (d)(iii), (e)(ii),
(e)(iii) or (f) of this Section 2.06 (and all Notes issued in exchange therefor or
substitution thereof) shall not bear the Private Placement Legend.
(ii)
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 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(h) OF THE INDENTURE, (II) THIS GLOBAL NOTE
MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE 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 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.
(iii)
Regulation S Temporary Global Note Legend
. The Regulation S Temporary
Global Note shall bear a legend in substantially the following form:
BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S.
PERSON, NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON, AND IS ACQUIRING
THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER
THE SECURITIES ACT.
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(h)
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 canceled in whole and not in part, each such Global
Note shall be returned to or retained and canceled 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.
(i)
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, 3.09, 3.10, 4.11, 4.15 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 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 registered as the
absolute owner of such Note for the purpose of receiving payment of principal of (and premium, if
any) and interest (including Additional Interest, if any) 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
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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 may charge for
its 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 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 canceled 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.
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
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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
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 Cash Interest
.
If the Issuer defaults in a payment of cash 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 cash 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 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.
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Subject to the foregoing provisions of this Section 2.12 and for greater certainty, each Note
delivered under this 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, 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 paragraph or subparagraph of such Note and/or
Section of this Indenture pursuant to which the redemption shall occur, (ii) the redemption date,
(iii) the principal amount of the 2014 Cash-Pay Notes, 2016 Cash-Pay Notes and/or Toggle Notes, as
the case may be, to be redeemed and (iv) the redemption price.
Section 3.02
Selection of Notes to Be Redeemed or Purchased
.
If less than all of the 2014 Cash-Pay Notes, 2016 Cash-Pay Notes and/or Toggle Notes, as the
case may be, are to be redeemed or purchased in an offer to purchase at any time, the Trustee 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 the
Trustee considers fair and appropriate. 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 Trustee from the
outstanding Notes not previously called for redemption or purchase.
The Trustee 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 Indenture that apply to Notes called for redemption or purchase also apply to
portions of Notes called for redemption or purchase.
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Section 3.03
Notice of Redemption
.
Subject to Sections 3.09 and 3.10 hereof, 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 13 hereof. Except as set forth in Section 3.07(e), Section 3.07(k) and Section 3.07(q)
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;
(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 name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying Agent to collect
the redemption price;
(f) 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;
(g) the paragraph or subparagraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed;
(h) 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
(i) if in connection with a redemption pursuant to Section 3.07(c) or 3.07(d) hereof,
any condition to such redemption.
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(e), 3.07(k) and 3.07(q) hereof). The notice, if mailed in
a manner
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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 (including Additional Interest, if any) 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 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.
Section 3.07
Optional Redemption
.
(a) Except as set forth below, the Issuer will not be entitled to redeem 2014 Cash-Pay Notes
at its option prior to November 15, 2010.
(b) At any time prior to November 15, 2010, the Issuer may redeem all or a part of the 2014
Cash-Pay Notes, upon not less than 30 nor more than 60 days prior notice mailed by first-class
mail to the registered address of each Holder of 2014 Cash-Pay Notes or otherwise in accordance
with the procedures of DTC, at a redemption price equal to 100% of the principal amount of the 2014
Cash-Pay Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest and
Additional Interest, if any, to the date of redemption (the
Redemption Date
), subject to
the rights of Holders of 2014 Cash-Pay Notes on the relevant record date to receive interest due on
the relevant interest payment date.
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(c) On and after November 15, 2010, the Issuer may redeem the 2014 Cash-Pay Notes, in whole or
in part, upon not less than 30 nor more than 60 days prior notice mailed by first-class mail to
the registered address of each Holder of 2014 Cash-Pay Notes or otherwise in accordance with the
procedures of DTC, at the redemption prices (expressed as percentages of principal amount of the
2014 Cash-Pay Notes to be redeemed) set forth below, plus accrued and unpaid interest thereon and
Additional Interest, if any, to the applicable Redemption Date, subject to the right of Holders of
2014 Cash-Pay Notes of record on the relevant record date to receive interest due on the relevant
interest payment date, if
redeemed during the twelve-month period beginning on November 15 of each of the years
indicated below:
|
|
|
|
|
Year
|
|
Percentage
|
2010
|
|
|
104.563
|
%
|
2011
|
|
|
102.281
|
%
|
2012 and thereafter
|
|
|
100.000
|
%
|
(d) In addition, until November 15, 2009, the Issuer may, at its option, on one or more
occasions redeem up to 35% of the aggregate principal amount of 2014 Cash-Pay Notes at a redemption
price equal to 109.125% of the aggregate principal amount thereof, plus accrued and unpaid interest
thereon and Additional Interest, if any, to the applicable Redemption Date, subject to the right of
Holders of 2014 Cash-Pay Notes of record on the relevant Record Date to receive interest due on the
relevant Interest Payment Date, with the net cash proceeds of one or more Equity Offerings;
provided
that at least 50% of the sum of the original aggregate principal amount of 2014
Cash-Pay Notes issued under this Indenture and the original principal amount of any Additional
Notes that are 2014 Cash-Pay Notes issued under this Indenture after the Issue Date remains
outstanding immediately after the occurrence of each such redemption;
provided further
that
each such redemption occurs within 90 days of the date of closing of each such Equity Offering.
(e) 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.
(f) If the Issuer redeems less than all of the outstanding 2014 Cash-Pay Notes, the Trustee
shall select the 2014 Cash-Pay Notes to be redeemed in the manner described under Section 3.02
hereof.
(g) Except as set forth below, the Issuer will not be entitled to redeem 2016 Cash-Pay Notes
at its option prior to November 15, 2011.
(h) At any time prior to November 15, 2011, the Issuer may redeem all or a part of the 2016
Cash-Pay Notes, upon not less than 30 nor more than 60 days prior notice mailed by first-class
mail to the registered address of each Holder of 2016 Cash-Pay Notes or otherwise in accordance
with the procedures of DTC, at a redemption price equal to 100% of the principal amount of the 2016
Cash-Pay Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest and
Additional Interest, if any, to the Redemption Date, subject to the rights of Holders of 2016
Cash-Pay Notes on the relevant record date to receive interest due on the relevant interest payment
date.
(i) On and after November 15, 2011, the Issuer may redeem the 2016 Cash-Pay Notes, in whole or
in part, upon not less than 30 nor more than 60 days prior notice mailed by first-class mail to
the registered address of each Holder of 2016 Cash-Pay Notes or otherwise in accordance with the
procedures of DTC, at the redemption prices (expressed as percentages of principal amount of the
2016
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Cash-Pay Notes to be redeemed) set forth below, plus accrued and unpaid interest thereon and
Additional Interest, if any, to the applicable Redemption Date, subject to the right of Holders of
2016 Cash-Pay Notes of record on the relevant record date to receive interest due on the relevant
interest payment date, if redeemed during the twelve-month period beginning on November 15 of each
of the years indicated below:
|
|
|
|
|
Year
|
|
Percentage
|
2011
|
|
|
104.625
|
%
|
2012
|
|
|
103.083
|
%
|
2013
|
|
|
101.542
|
%
|
2014 and thereafter
|
|
|
100.000
|
%
|
(j) In addition, until November 15, 2009, the Issuer may, at its option, on one or more
occasions redeem up to 35% of the aggregate principal amount of 2016 Cash-Pay Notes at a redemption
price equal to 109.250% of the aggregate principal amount thereof, plus accrued and unpaid interest
thereon and Additional Interest, if any, to the applicable Redemption Date, subject to the right of
Holders of 2016 Cash-Pay Notes of record on the relevant Record Date to receive interest due on the
relevant Interest Payment Date, with the net cash proceeds of one or more Equity Offerings;
provided
that at least 50% of the sum of the original aggregate principal amount of 2016
Cash-Pay Notes issued under this Indenture and the original principal amount of any Additional
Notes that are 2016 Cash-Pay Notes issued under this Indenture after the Issue Date remains
outstanding immediately after the occurrence of each such redemption;
provided further
that
each such redemption occurs within 90 days of the date of closing of each such Equity Offering.
(k) 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.
(l) If the Issuer redeems less than all of the outstanding 2016 Cash-Pay Notes, the Trustee
shall select the 2016 Cash-Pay Notes to be redeemed in the manner described under Section 3.02
hereof.
(m) Except as set forth below, the Issuer will not be entitled to redeem Toggle Notes at its
option prior to November 15, 2011.
(n) At any time prior to November 15, 2011, the Issuer may redeem all or a part of the Toggle
Notes, upon not less than 30 nor more than 60 days prior notice mailed by first-class mail to the
registered address of each Holder of Toggle Notes or otherwise in accordance with the procedures of
DTC, at a redemption price equal to 100% of the principal amount of the Toggle Notes redeemed plus
the Applicable Premium as of, and accrued and unpaid interest and Additional Interest, if any, to
the Redemption Date, subject to the rights of Holders of Toggle Notes on the relevant record date
to receive interest due on the relevant interest payment date.
(o) On and after November 15, 2011, the Issuer may redeem the Toggle Notes, in whole or in
part, upon not less than 30 nor more than 60 days prior notice mailed by first-class mail to the
registered address of each Holder of Toggle Notes or otherwise in accordance with the procedures of
DTC, at the redemption prices (expressed as percentages of principal amount of the Toggle Notes to
be redeemed) set forth below, plus accrued and unpaid interest thereon and Additional Interest, if
any, to the applicable Redemption Date, subject to the right of Holders of Toggle Notes of record
on the relevant
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record date to receive interest due on the relevant interest payment date, if
redeemed during the twelve-month period beginning on November 15 of each of the years indicated
below:
|
|
|
|
|
Year
|
|
Percentage
|
2011
|
|
|
104.813
|
%
|
2012
|
|
|
103.208
|
%
|
2013
|
|
|
101.604
|
%
|
2014 and thereafter
|
|
|
100.000
|
%
|
(p) In addition, until November 15, 2009, the Issuer may, at its option, on one or more
occasions redeem up to 35% of the aggregate principal amount of Toggle Notes at a redemption price
equal to 109.625% of the aggregate principal amount thereof, plus accrued and unpaid interest
thereon and Additional Interest, if any, to the applicable Redemption Date, subject to the right of
Holders of Toggle Notes of record on the relevant record date to receive interest due on the
relevant interest payment date, with the net cash proceeds of one or more Equity Offerings;
provided
that at least 50% of the sum of the original aggregate principal amount of Toggle
Notes issued under this Indenture and the original principal amount of any Additional Notes that
are Toggle Notes issued under this Indenture after the Issue Date remains outstanding immediately
after the occurrence of each such redemption;
provided further
that each such redemption
occurs within 90 days of the date of closing of each such Equity Offering.
(q) 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.
(r) If the Issuer redeems less than all of the outstanding Toggle Notes, the Trustee shall
select the Toggle Notes to be redeemed in the manner described under Section 3.02 hereof.
(s) 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
.
(a) Except as set forth in Section 3.08(b), the Issuer will not be required to make any
mandatory redemption or sinking fund payments with respect to the Notes.
(b) If the Toggle Notes would otherwise constitute applicable high yield discount
obligations within the meaning of Section 163(i)(1) of the Code, at the end of the first accrual
period ending after the fifth anniversary of the Toggle Notes issuance (the
AHYDO redemption
date
), the Issuer will be required to redeem for cash a portion of each Toggle Note then
outstanding equal to the Mandatory Principal Redemption Amount (such redemption, a
Mandatory
Principal Redemption
). The redemption price for the portion of each Toggle Note redeemed
pursuant to a Mandatory Principal Redemption will be 100% of the principal amount of such portion
plus any accrued interest thereon on the date of redemption. The
Mandatory Principal
Redemption Amount
means the portion of a Toggle Note required to be redeemed to prevent such
Toggle Note from being treated as an applicable high yield discount obligation within the meaning
of Section 163(i)(1) of the Code. No partial redemption or repurchase of the Toggle Notes prior to
the AHYDO redemption date pursuant to any other provision of this Indenture will alter the Issuers
obligation to make the Mandatory Principal Redemption with respect to any Toggle Notes that remain
outstanding on the AHYDO redemption date.
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Any redemption pursuant to this Section 3.08 shall be made pursuant to the provisions of
Section 3.01 through 3.06 hereof.
Section 3.09
Asset Sales of Collateral
.
(a) In the event that, pursuant to Section 4.11 hereof, the Issuer shall be required to
commence a Collateral Asset Sale Offer, it shall follow the procedures specified below.
(b) The Collateral Asset Sale Offer shall remain open for a period of 20 Business Days
following its commencement and no longer, except to the extent that a longer period is required by
applicable law (the
Collateral Offer Period
). No later than five Business Days after the
termination of the Collateral Offer Period (the
Collateral Purchase Date
), the Issuer
shall apply all Collateral Excess Proceeds (the
Collateral Offer Amount
) to the purchase
of Notes and, if required, Junior Lien Obligations which are not subordinated to the Notes or
Obligations secured by a Lien permitted (on a
pro rata
basis, if applicable) under this Indenture
(which Lien is not subordinate to the Liens of the Notes with respect to the Collateral), or, if
less than the Collateral Offer Amount has been tendered, all Notes and Junior Lien Obligations or
such other Obligations tendered in response to the Collateral Asset Sale Offer. Payment for any
Notes so purchased shall be made in the same manner as interest payments are made.
(c) If the Collateral Purchase Date is on or after a Record Date and on or before the related
Interest Payment Date, any accrued and unpaid interest and Additional Interest, if any, up to but
excluding the Collateral Purchase Date, shall be paid to the Person in whose name a Note is
registered at the close of business on such Record Date, and no additional interest shall be
payable to Holders who tender Notes pursuant to the Collateral Asset Sale Offer.
(d) Upon the commencement of a Collateral Asset Sale Offer, the Issuer shall send, by
first-class mail, a notice to each of the Holders, with a copy to the Trustee. The notice shall
contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to
the Collateral Asset Sale Offer. The Collateral Asset Sale Offer shall be made to all Holders and
holders of Junior Lien Obligations which are not subordinated to the Notes or Obligations secured
by a Lien permitted under this Indenture (which Lien is not subordinate to the Liens of the Notes
with respect to the Collateral ). The notice, which shall govern the terms of the Collateral Asset
Sale Offer, shall state:
(i) that the Collateral Asset Sale Offer is being made pursuant to this Section 3.09
and Section 4.11 hereof and the length of time the Collateral Asset Sale Offer shall remain
open;
(ii) the Collateral Offer Amount, the purchase price and the Collateral Purchase Date;
(iii) that any Note not tendered or accepted for payment shall continue to accrue
interest;
(iv) that, unless the Issuer defaults in making such payment, any Note accepted for
payment pursuant to the Collateral Asset Sale Offer shall cease to accrue interest after the
Collateral Purchase Date;
(v) that Holders electing to have a Note purchased pursuant to a Collateral Asset Sale
Offer may elect to have Notes purchased in the minimum amount of $2,000 or an integral
multiple of $1,000 in excess thereof only;
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(vi) that Holders electing to have a Note purchased pursuant to any Collateral Asset
Sale Offer shall be required to surrender the Note, with the form entitled Option of Holder
to Elect Purchase attached to the Note completed, or transfer by book-entry transfer, to
the Issuer, the Depositary, if appointed by the Issuer, or a Paying Agent at the address
specified in the notice at least three days before the Collateral Purchase Date;
(vii) that Holders shall be entitled to withdraw their election if the Issuer, the
Depositary or the Paying Agent, as the case may be, receives, not later than the expiration
of the Collateral Offer Period, a facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Note the Holder delivered for purchase and a
statement that such Holder is withdrawing his election to have such Note purchased;
(viii) that, if the aggregate principal amount of Notes and Junior Lien Obligations
which are not subordinated to the Notes or Obligations secured by a Lien permitted under
this Indenture (which Lien is not subordinate to the Liens of the Notes with respect to the
Collateral ) surrendered by the holders thereof exceeds the Collateral Offer Amount, the
Trustee shall select the Notes and such Junior Lien Obligations or other Obligations to be
purchased on a
pro rata
basis based on the accreted value or principal amount of the Notes
or such Junior Lien Obligations or other Obligations tendered (with such adjustments as may
be deemed appropriate by the Trustee so that only Notes in minimum denominations of $2,000,
or integral multiples of $1,000 in excess thereof, shall be purchased); and
(ix) that Holders whose Notes were purchased only in part shall be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered (or
transferred by book-entry transfer) representing the same indebtedness to the extent not
repurchased.
(e) On or before the Collateral Purchase Date, the Issuer shall, to the extent lawful, (1)
accept for payment, on a
pro rata
basis to the extent necessary, the Collateral Offer Amount of
Notes or portions thereof validly tendered pursuant to the Collateral Asset Sale Offer, or if less
than the Collateral Offer Amount has been tendered, all Notes tendered and (2) deliver or cause to
be delivered to the Trustee the Notes properly accepted together with an Officers Certificate
stating the aggregate principal amount of Notes or portions thereof so tendered.
(f) The Issuer, the Depositary or the Paying Agent, as the case may be, shall promptly mail or
deliver to each tendering Holder an amount equal to the purchase price of the Notes properly
tendered by such Holder and accepted by the Issuer for purchase, and the Issuer shall promptly
issue a new Note, and the Trustee, upon receipt of an Authentication Order, shall authenticate and
mail or deliver (or cause to be transferred by book-entry) such new Note to such Holder (it being
understood that, notwithstanding anything in this Indenture to the contrary, no Opinion of Counsel
or Officers Certificate is required for the Trustee to authenticate and mail or deliver such new
Note) in a principal amount equal to any unpurchased portion of the Note surrendered representing
the same indebtedness to the extent not repurchased;
provided
, that each such new Note
shall be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. Any
Note not so accepted shall be promptly mailed or delivered by the Issuer to the Holder thereof.
The Issuer shall publicly announce the results of the Collateral Asset Sale Offer on or as soon as
practicable after the Collateral Purchase Date.
Other than as specifically provided in this Section 3.09 or Section 4.11, any purchase
pursuant to this Section 3.09 shall be made pursuant to the applicable provisions of Sections 3.01
through 3.06 hereof.
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Section 3.10
Asset Sales
.
(a) In the event that, pursuant to Section 4.11 hereof, the Issuer shall be required to
commence an Asset Sale Offer, it shall follow the procedures specified below.
(b) The Asset Sale Offer shall remain open for a period of 20 Business Days following its
commencement and no longer, except to the extent that a longer period is required by applicable law
(the
Offer Period
). No later than five Business Days after the termination of the Offer
Period (the
Purchase Date
), the Issuer shall apply all Excess Proceeds (the
Offer
Amount
) to the purchase of Notes and, if required or permitted by the terms thereof, any
Senior Indebtedness (on a
pro rata
basis), or, if less than the Offer Amount has been tendered, all
Notes and Senior Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes
so purchased shall be made in the same manner as interest payments are made.
(c) If the Purchase Date is on or after a Record Date and on or before the related Interest
Payment Date, any accrued and unpaid interest and Additional Interest, if any, up to but excluding
the Purchase Date, shall be paid to the Person in whose name a Note is registered at the close of
business on such Record Date, and no additional interest shall be payable to Holders who tender
Notes pursuant to the Asset Sale Offer.
(d) Upon the commencement of an Asset Sale Offer, the Issuer shall send, by first-class mail,
a notice to each of the Holders, with a copy to the Trustee. The notice shall contain all
instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset
Sale Offer. The Asset Sale Offer shall be made to all Holders and holders of Senior Indebtedness.
The notice, which shall govern the terms of the Asset Sale Offer, shall state:
(i) that the Asset Sale Offer is being made pursuant to this Section 3.10 and Section
4.11 hereof and the length of time the Asset Sale Offer shall remain open;
(ii) the Offer Amount, the purchase price and the Purchase Date;
(iii) that any Note not tendered or accepted for payment shall continue to accrue
interest;
(iv) that, unless the Issuer defaults in making such payment, any Note accepted for
payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Purchase
Date;
(v) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may
elect to have Notes purchased in the minimum amount of $2,000 or an integral multiple of
$1,000 in excess thereof only;
(vi) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer
shall be required to surrender the Note, with the form entitled Option of Holder to Elect
Purchase attached to the Note completed, or transfer by book-entry transfer, to the Issuer,
the Depositary, if appointed by the Issuer, or a Paying Agent at the address specified in
the notice at least three days before the Purchase Date;
(vii) that Holders shall be entitled to withdraw their election if the Issuer, the
Depositary or the Paying Agent, as the case may be, receives, not later than the expiration
of the
Offer Period, a facsimile transmission or letter setting forth the name of the Holder,
the principal
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amount of the Note the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Note purchased;
(viii) that, if the aggregate principal amount of Notes and Senior Indebtedness
surrendered by the holders thereof exceeds the Offer Amount, the Trustee shall select the
Notes and such Senior Indebtedness to be purchased on a
pro rata
basis based on the accreted
value or principal amount of the Notes or such Senior Indebtedness tendered (with such
adjustments as may be deemed appropriate by the Trustee so that only Notes in minimum
denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall be
purchased); and
(ix) that Holders whose Notes were purchased only in part shall be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered (or
transferred by book-entry transfer) representing the same indebtedness to the extent not
repurchased.
(e) On or before the Purchase Date, the Issuer shall, to the extent lawful, (1) accept for
payment, on a
pro rata
basis to the extent necessary, the Offer Amount of Notes or portions thereof
validly tendered pursuant to the Asset Sale Offer or, if less than the Offer Amount has been
tendered, all Notes tendered and (2) deliver or cause to be delivered to the Trustee the Notes
properly accepted together with an Officers Certificate stating the aggregate principal amount of
Notes or portions thereof so tendered.
(f) The Issuer, the Depositary or the Paying Agent, as the case may be, shall promptly mail or
deliver to each tendering Holder an amount equal to the purchase price of the Notes properly
tendered by such Holder and accepted by the Issuer for purchase, and the Issuer shall promptly
issue a new Note, and the Trustee, upon receipt of an Authentication Order, shall authenticate and
mail or deliver (or cause to be transferred by book-entry) such new Note to such Holder (it being
understood that, notwithstanding anything in this Indenture to the contrary, no Opinion of Counsel
or Officers Certificate is required for the Trustee to authenticate and mail or deliver such new
Note) in a principal amount equal to any unpurchased portion of the Note surrendered representing
the same indebtedness to the extent not repurchased;
provided
that each such new Note shall
be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. Any Note
not so accepted shall be promptly mailed or delivered by the Issuer to the Holder thereof. The
Issuer shall publicly announce the results of the Asset Sale Offer on or as soon as practicable
after the Purchase Date.
Other than as specifically provided in this Section 3.10 or Section 4.11, any purchase
pursuant to this Section 3.10 shall be made pursuant to the applicable provisions of Sections 3.01
through 3.06 hereof.
ARTICLE 4
COVENANTS
Section 4.01
Payment of Notes
.
The Issuer shall pay or cause to be paid the principal of, premium, if any, Additional
Interest, if any, and interest on the Notes on the dates and in the manner provided in the Notes.
Principal, premium, if any, cash Additional Interest, if any, and cash 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.
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The Issuer shall pay all Additional Interest, if any, in the same manner on the dates and in
the amounts set forth in any Registration Rights Agreement.
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 and Additional Interest
(without regard to any applicable grace period) at the same rate to the extent lawful.
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 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 Corporate Trust Office of the Trustee as one such office or
agency of the Issuer in accordance with Section 2.03 hereof.
Section 4.03
Reports and Other Information
.
(a) Notwithstanding that the Issuer may not be subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on
forms provided for such annual and quarterly reporting pursuant to rules and regulations
promulgated by the SEC, the Issuer shall file with the SEC (and make available to the Trustee and
Holders of the Notes (without exhibits), without cost to any Holder, within 15 days after the
Issuer files them with the SEC) from and after the Issue Date,
(1) within 90 days (or any other time period then in effect under the rules and
regulations of the Exchange Act with respect to the filing of a Form 10-K by a
non-accelerated filer) after the end of each fiscal year, annual reports on Form 10-K, or
any successor or comparable form, containing the information required to be contained
therein, or required in such successor or comparable form;
(2) within 45 days after the end of each of the first three fiscal quarters of each
fiscal year, reports on Form 10-Q containing all quarterly information that would be
required to be contained in Form 10-Q, or any successor or comparable form;
(3) promptly from time to time after the occurrence of an event required to be therein
reported, such other reports on Form 8-K, or any successor or comparable form; and
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(4) any other information, documents and other reports which the Issuer would be
required to file with the SEC if it were subject to Section 13 or 15(d) of the Exchange Act;
in each case in a manner that complies in all material respects with the requirements specified in
such form;
provided
that the Issuer shall not be so obligated to file such reports with the
SEC if the SEC does not permit such filing, in which event the Issuer shall make available such
information to prospective purchasers of Notes, in addition to providing such information to the
Trustee and the Holders of the Notes, in each case within 15 days after the time the Issuer would
be required to file such information with the SEC if it were subject to Section 13 or 15(d) of the
Exchange Act. In addition, to the extent not satisfied by the foregoing, the Issuer shall, for so
long as any Notes are outstanding, furnish or otherwise make available to Holders and to securities
analysts and prospective investors, upon their request, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act.
In the event that any direct or indirect parent company of the Issuer becomes a Guarantor of
the Notes, the Issuer may satisfy its obligations under this Section 4.03 with respect to financial
information relating to the Issuer by furnishing financial information relating to such parent;
provided
that the same is accompanied by consolidating 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 Issuer and its Restricted Subsidiaries on a standalone basis,
on the other hand.
Notwithstanding the foregoing, the requirements of this Section 4.03 shall be deemed satisfied
prior to the commencement of the Exchange Offer or the effectiveness of the Shelf Registration
Statement described in the Registration Rights Agreement dated the date hereof (1) by the filing
with the SEC of the Exchange Offer Registration Statement or Shelf Registration Statement (or any
other similar registration statement), and any amendments thereto, with such financial information
that satisfies Regulation S-X, subject to exceptions consistent with the presentation of financial
information in the Offering Memorandum, to the extent filed within the times specified above, or
(2) by posting reports that would be required to be filed substantially in the form required by the
SEC on the Issuers website (or that of any of its parent companies) or providing such reports to
the Trustee, the financial information (including a Managements Discussion and Analysis of
Financial Condition and Results of Operations section) that would be required to be included in
such reports, subject to exceptions consistent with the presentation of financial information in
the Offering Memorandum, in each case, to the extent filed within the times specified above.
Section 4.04
Compliance Certificate
.
(a) The Issuer and each Guarantor (to the extent that such Guarantor is so required under the
Trust Indenture Act) shall deliver to the Trustee, within 90 days after the end of each fiscal year
ending after the Issue Date, a certificate from the principal executive officer, principal
financial officer or principal accounting officer 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 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 Indenture and is not in default in the performance
or observance of any of the terms, provisions, covenants and conditions of this 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 Indenture, or if the Trustee or
the holder of any other evidence of Indebtedness of the Issuer or any Subsidiary gives any
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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 4.05
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.
Section 4.06
Stay, Extension and Usury Laws
.
The Issuer and each of the Guarantors 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 Indenture; and the
Issuer and each of the Guarantors (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 4.07
Limitation on Restricted Payments
.
(a) The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly
or indirectly:
(I) declare or pay any dividend or make any payment or distribution on account of the
Issuers, or any of its Restricted Subsidiaries Equity Interests, including any dividend or
distribution payable in connection with any merger or consolidation other than:
(A) dividends or distributions by the Issuer payable solely in Equity Interests
(other than Disqualified Stock) of the Issuer; or
(B) dividends or distributions by a Restricted Subsidiary so long as, in the
case of any dividend or distribution payable on or in respect of any class or series
of securities issued by a Restricted Subsidiary other than a Wholly-Owned
Subsidiary, the Issuer or a Restricted Subsidiary receives at least its
pro rata
share of such dividend or distribution in accordance with its Equity Interests in
such class or series of securities;
(II) purchase, redeem, defease or otherwise acquire or retire for value any Equity
Interests of the Issuer or any direct or indirect parent of the Issuer, including in
connection with any merger or consolidation;
(III) make any principal payment on, or redeem, repurchase, defease or otherwise
acquire or retire for value in each case, prior to any scheduled repayment, sinking fund
payment or maturity, any Subordinated Indebtedness, other than:
(A) Indebtedness permitted under clauses (7) and (8) of Section 4.10 hereof; or
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(B) the purchase, repurchase or other acquisition of Subordinated Indebtedness
purchased in anticipation of satisfying a sinking fund obligation, principal
installment or final maturity, in each case due within one year of the date of
purchase, repurchase or acquisition; or
(IV) make any Restricted Investment
(all such payments and other actions set forth in clauses (I) through (IV) above (other than any
exception thereto) being collectively referred to as
Restricted Payments
), unless, at the
time of such Restricted Payment:
(1) no Default shall have occurred and be continuing or would occur as a consequence
thereof;
(2) immediately after giving effect to such transaction on a
pro forma
basis, the
Issuer could incur $1.00 of additional Indebtedness under Section 4.10(a) hereof; and
(3) such Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Issuer and its Restricted Subsidiaries after the Issue Date (including
Restricted Payments permitted by clauses (1), (2) (with respect to the payment of dividends
on Refunding Capital Stock pursuant to clause (b) thereof only), (6)(c), (9) and (14) of
Section 4.07(b) hereof but excluding all other Restricted Payments permitted by Section
4.07(b) hereof, is less than the sum of (without duplication):
(a) 50% of the Consolidated Net Income of the Issuer for the period (taken as
one accounting period) beginning October 1, 2006, to the end of the Issuers most
recently ended fiscal quarter for which internal financial statements are available
at the time of such Restricted Payment, or, in the case such Consolidated Net Income
for such period is a deficit, minus 100% of such deficit;
plus
(b) 100% of the aggregate net cash proceeds and the fair market value, as
determined in good faith by the Issuer, of marketable securities or other property
received by the Issuer since immediately after the Issue Date (other than net cash
proceeds to the extent such net cash proceeds have been used to incur Indebtedness,
Disqualified Stock
or Preferred Stock pursuant to clause (12)(a) of Section 4.10(b) hereof) from
the issue or sale of:
(i) (A) Equity Interests of the Issuer, including Treasury Capital
Stock, but excluding cash proceeds and the fair market value, as determined
in good faith by the Issuer, of marketable securities or other property
received from the sale of:
(x) Equity Interests to members of management, directors or
consultants of the Issuer, any direct or indirect parent company of
the Issuer and the Issuers Subsidiaries after the Issue Date to the
extent such amounts have been applied to Restricted Payments made in
accordance with clause (4) of Section 4.07(b); and
(y) Designated Preferred Stock; and
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(B) to the extent such net cash proceeds are actually contributed to
the Issuer, Equity Interests of the Issuers direct or indirect parent
companies (excluding contributions of the proceeds from the sale of
Designated Preferred Stock of such companies or contributions to the extent
such amounts have been applied to Restricted Payments made in accordance
with clause (4) of Section 4.07(b) hereof); or
(ii) debt securities of the Issuer that have been converted into or
exchanged for such Equity Interests of the Issuer;
provided
,
however
, that this clause (b) shall not include the
proceeds from (V) Refunding Capital Stock, (W) Equity Interests or convertible debt
securities of the Issuer sold to a Restricted Subsidiary, as the case may be, (X)
Disqualified Stock or debt securities that have been converted into Disqualified
Stock or (Y) Excluded Contributions or (Z) the Delayed Equity Amount;
plus
(c) 100% of the aggregate amount of cash and the fair market value, as
determined in good faith by the Issuer, of marketable securities or other property
contributed to the capital of the Issuer following the Issue Date (other than net
cash proceeds to the extent such net cash proceeds (i) have been used to incur
Indebtedness, Disqualified Stock or Preferred Stock pursuant to clause (12)(a) of
Section 4.10(b) hereof, (ii) are contributed by a Restricted Subsidiary, (iii)
constitute Excluded Contributions, or (iv) constitute the Delayed Equity Amount);
plus
(d) 100% of the aggregate amount received in cash and the fair market value, as
determined in good faith by the Issuer, of marketable securities or other property
received by means of:
(i) the sale or other disposition (other than to the Issuer or a
Restricted Subsidiary) of Restricted Investments made by the Issuer or its
Restricted Subsidiaries and repurchases and redemptions of such Restricted
Investments from the Issuer or its Restricted Subsidiaries and repayments of
loans or advances, and releases of guarantees, which constitute Restricted
Investments by the Issuer or its Restricted Subsidiaries, in each case after
the Issue Date; or
(ii) the sale (other than to the Issuer or a Restricted Subsidiary) of
the stock of an Unrestricted Subsidiary or a distribution from an
Unrestricted Subsidiary (other than in each case to the extent the
Investment in such Unrestricted Subsidiary was made by the Issuer or a
Restricted Subsidiary pursuant to clause (7) of Section 4.07(b) hereof or to
the extent such Investment constituted a Permitted Investment) or a dividend
from an Unrestricted Subsidiary after the Issue Date;
plus
(e) in the case of the redesignation of an Unrestricted Subsidiary as a
Restricted Subsidiary after the Issue Date, the fair market value of the Investment
in such Unrestricted Subsidiary, as determined by the Issuer in good faith (or if
such fair market value exceeds $250.0 million, in writing by an Independent
Financial Advisor), at the time of the redesignation of such Unrestricted Subsidiary
as a Restricted Subsidiary other than to the extent the Investment in such
Unrestricted Subsidiary was made by the Issuer
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or a Restricted Subsidiary pursuant
to clause (7) of Section 4.07(b) or to the extent such Investment constituted a
Permitted Investment.
(b) The foregoing provisions of Section 4.07(a) shall not prohibit:
(1) the payment of any dividend within 60 days after the date of declaration thereof,
if at the date of declaration such payment would have complied with the provisions of this
Indenture;
(2) (a) the redemption, repurchase, retirement or other acquisition of any Equity
Interests (
Treasury Capital Stock
) or Subordinated Indebtedness of the Issuer or
any Equity Interests of any direct or indirect parent company of the Issuer, in exchange
for, or out of the proceeds of the substantially concurrent sale (other than to a Restricted
Subsidiary) of, Equity Interests of the Issuer or any direct or indirect parent company of
the Issuer to the extent contributed to the Issuer (in each case, other than any
Disqualified Stock) (
Refunding Capital Stock
) and (b) if immediately prior to the
retirement of Treasury Capital Stock, the declaration and payment of dividends thereon was
permitted under clause (6) of this Section 4.07(b), the declaration and payment of dividends
on the Refunding Capital Stock (other than Refunding Capital Stock the proceeds of which
were used to redeem, repurchase, retire or otherwise acquire any Equity Interests of any
direct or indirect parent company of the Issuer) in an aggregate amount per year no greater
than the aggregate amount of dividends per annum that were declarable and payable on such
Treasury Capital Stock immediately prior to such retirement;
(3) the redemption, repurchase or other acquisition or retirement of Subordinated
Indebtedness of the Issuer or a Guarantor made in exchange for, or out of the proceeds of
the substantially concurrent sale of, new Indebtedness of the Issuer or a Guarantor, as the
case may be, which is incurred in compliance with Section 4.10 hereof so long as:
(a) the principal amount (or accreted value) of such new Indebtedness does not
exceed the principal amount of (or accreted value, if applicable), plus any accrued
and unpaid interest on, the Subordinated Indebtedness being so redeemed,
repurchased, acquired or retired for value, plus the amount of any reasonable
premium (including reasonable tender premiums), defeasance costs and any reasonable
fees and expenses incurred in connection with the issuance of such new Indebtedness;
(b) such new Indebtedness is subordinated to the Notes or the applicable
Guarantee at least to the same extent as such Subordinated Indebtedness so
purchased, exchanged, redeemed, repurchased, acquired or retired for value;
(c) such new Indebtedness has a final scheduled maturity date equal to or later
than the final scheduled maturity date of the Subordinated Indebtedness being so
redeemed, repurchased, acquired or retired; and
(d) such new Indebtedness has a Weighted Average Life to Maturity equal to or
greater than the remaining Weighted Average Life to Maturity of the Subordinated
Indebtedness being so redeemed, repurchased, acquired or retired;
(4) a Restricted Payment to pay for the repurchase, retirement or other acquisition or
retirement for value of Equity Interests (other than Disqualified Stock) of the Issuer or
any of its direct or indirect parent companies held by any future, present or former
employee, director or consultant of the Issuer, any of its Subsidiaries or any of its direct
or indirect parent companies
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pursuant to any management equity plan or stock option plan or
any other management or employee benefit plan or agreement, including any Equity Interests
rolled over by management of the Issuer or any of its direct or indirect parent companies in
connection with the Transaction;
provided
,
however
, that the aggregate
Restricted Payments made under this clause (4) do not exceed in any calendar year $75.0
million (which shall increase to $150.0 million subsequent to the consummation of an
underwritten public Equity Offering by the Issuer or any direct or indirect parent entity of
the Issuer) (with unused amounts in any calendar year being carried over to succeeding
calendar years subject to a maximum (without giving effect to the following proviso) of
$225.0 million in any calendar year (which shall increase to $450.0 million subsequent to
the consummation of an underwritten public Equity Offering by the Issuer or any direct or
indirect parent corporation of the Issuer));
provided
further
that such
amount in any calendar year may be increased by an amount not to exceed:
(a) the cash proceeds from the sale of Equity Interests (other than
Disqualified Stock) of the Issuer and, to the extent contributed to the Issuer,
Equity Interests of any of the Issuers direct or indirect parent companies, in each
case to members of management, directors or consultants of the Issuer, any of its
Subsidiaries or any of its direct or indirect parent companies that occurs after the
Issue Date, to the extent the cash proceeds from the sale of such Equity Interests
have not otherwise been applied to the payment of Restricted Payments by virtue of
clause (3) of Section 4.07(a);
plus
(b) the cash proceeds of key man life insurance policies received by the Issuer
or its Restricted Subsidiaries after the Issue Date;
less
(c) the amount of any Restricted Payments previously made with the cash
proceeds described in clauses (a) and (b) of this clause (4);
and
provided
,
further
, that cancellation of Indebtedness owing to the Issuer
or any Restricted Subsidiary from members of management of the Issuer, any of the Issuers
direct or indirect parent companies or any of the Issuers Restricted Subsidiaries in
connection with a repurchase of Equity Interests of the Issuer or any of its direct or
indirect parent companies will not be deemed to constitute a Restricted Payment for purposes
of this Section 4.07 or any other provision of this Indenture;
(5) the declaration and payment of dividends to holders of any class or series of
Disqualified Stock of the Issuer or any of its Restricted Subsidiaries or any class or
series of Preferred Stock of any Restricted Subsidiary issued in accordance with Section
4.10 hereof to the extent such dividends are included in the definition of Fixed Charges;
(6) (a) the declaration and payment of dividends to holders of any class or series of
Designated Preferred Stock (other than Disqualified Stock) issued by the Issuer after the
Issue Date;
(b) the declaration and payment of dividends to a direct or indirect parent company of
the Issuer, the proceeds of which will be used to fund the payment of dividends to holders
of any class or series of Designated Preferred Stock (other than Disqualified Stock) of such
parent corporation issued after the Issue Date;
provided
that the amount of
dividends paid pursuant to this clause (b) shall not exceed the aggregate amount of cash
actually contributed to the Issuer from the sale of such Designated Preferred Stock; or
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(c) the declaration and payment of dividends on Refunding Capital Stock that is
Preferred Stock in excess of the dividends declarable and payable thereon pursuant to clause
(2) of this Section 4.07(b);
provided
,
however
, in the case of each of (a) and (c) of this clause (6),
that for the most recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date of issuance of such Designated
Preferred Stock or the declaration of such dividends on Refunding Capital Stock that is
Preferred Stock, after giving effect to such issuance or declaration on a
pro forma
basis,
the Issuer and its Restricted Subsidiaries on a consolidated basis would have had a Fixed
Charge Coverage Ratio of at least 2.00 to 1.00;
(7) Investments in Unrestricted Subsidiaries having an aggregate fair market value,
taken together with all other Investments made pursuant to this clause (7) that are at the
time outstanding, without giving effect to the sale of an Unrestricted Subsidiary to the
extent the proceeds of such sale do not consist of cash or marketable securities, not to
exceed 2.5% of Total Assets at the time of such Investment (with the fair market value of
each Investment being measured at the time made and without giving effect to subsequent
changes in value);
(8) repurchases of Equity Interests deemed to occur upon exercise of stock options or
warrants if such Equity Interests represent a portion of the exercise price of such options
or warrants;
(9) the declaration and payment of dividends on the Issuers common stock (or the
payment of dividends to any direct or indirect parent entity to fund a payment of dividends
on such entitys common stock), following consummation of the first public offering of the
Issuers common stock or the common stock of any of its direct or indirect parent companies
after the Issue Date, of up to 6% per annum of the net cash proceeds received by or
contributed to the Issuer in or from any such public offering, other than public offerings
with respect to the Issuers common stock registered on Form S-8 and other than any public
sale constituting an Excluded Contribution;
(10) Restricted Payments that are made with Excluded Contributions;
(11) other Restricted Payments in an aggregate amount taken together with all other
Restricted Payments made pursuant to this clause (11) not to exceed 3.0% of Total Assets at
the time made;
(12) distributions or payments of Receivables Fees;
(13) any Restricted Payment made as part of the Transaction and the fees and expenses
related thereto or used to fund amounts owed to Affiliates (including dividends to any
direct or indirect parent of the Issuer to permit payment by such parent of such amount), in
each case to the extent permitted by Section 4.12 hereof;
(14) the repurchase, redemption or other acquisition or retirement for value of any
Subordinated Indebtedness in accordance with provisions similar to those described under
Sections 4.11 and 4.15 hereof;
provided
that all Notes tendered by Holders in
connection with a Change of Control Offer, Collateral Asset Sale Offer or Asset Sale Offer,
as applicable, have been repurchased, redeemed or acquired for value;
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(15) the declaration and payment of dividends by the Issuer to, or the making of loans
to, any direct or indirect parent in amounts required for any direct or indirect parent
companies to pay, in each case without duplication,
(a) franchise and excise taxes and other fees, taxes and expenses required to
maintain their corporate existence;
(b) foreign, federal, state and local income taxes, to the extent such income
taxes are attributable to the income of the Issuer and its Restricted Subsidiaries
and, to the extent of the amount actually received from its Unrestricted
Subsidiaries, in amounts required to pay such taxes to the extent attributable to
the income of such Unrestricted Subsidiaries;
provided
that in each case the
amount of such payments in any fiscal year does not exceed the amount that the
Issuer and its Restricted Subsidiaries would be required to pay in respect of
foreign, federal, state and local taxes for such fiscal year were the Issuer, its
Restricted Subsidiaries and its Unrestricted Subsidiaries (to the extent described
above) to pay such taxes separately from any such parent entity;
(c) for as long as Hercules Holding II, LLC is a parent of the Issuer,
distributions equal to any taxable income of Hercules Holding II, LLC resulting from
the Hedging Arrangements multiplied by 45%;
(d) customary salary, bonus and other benefits payable to officers and
employees of any direct or indirect parent company of the Issuer to the extent such
salaries, bonuses and other benefits are attributable to the ownership or operation
of the Issuer and its Restricted Subsidiaries;
(e) general corporate operating and overhead costs and expenses of any direct
or indirect parent company of the Issuer to the extent such costs and expenses are
attributable to the ownership or operation of the Issuer and its Restricted
Subsidiaries; and
(f) fees and expenses other than to Affiliates of the Issuer related to any
unsuccessful equity or debt offering of such parent entity; and
(16) the distribution, by dividend or otherwise, of shares of Capital Stock of, or
Indebtedness owed to the Issuer or a Restricted Subsidiary by, Unrestricted Subsidiaries
(other than Unrestricted Subsidiaries, the primary assets of which are cash and/or Cash
Equivalents);
provided
,
however
, that at the time of, and after giving effect to, any Restricted
Payment permitted under clauses (11) and (16), of this Section 4.07(b) no Default shall have
occurred and be continuing or would occur as a consequence thereof.
The Issuer shall not permit any Unrestricted Subsidiary to become a Restricted Subsidiary
except pursuant to the last sentence of the definition of Unrestricted Subsidiary. For purposes
of designating any Restricted Subsidiary as an Unrestricted Subsidiary, all outstanding Investments
by the Issuer and its Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so
designated shall be deemed to be Restricted Payments in an amount determined as set forth in the
last sentence of the definition of Investments. Such designation shall be permitted only if a
Restricted Payment in such amount would be permitted at such time, whether pursuant to Section
4.07(a) hereof or under clause (7), (10) or (11) of Section 4.07(b), or pursuant to the definition
of Permitted Investments, and if such Subsidiary otherwise meets the definition of an
Unrestricted Subsidiary.
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Section 4.08
Limitation on Prepayment or Modification of Existing Notes
.
The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly purchase, redeem, defease or otherwise acquire or retire for value any of the Existing
Notes prior to the final maturity date thereof (as in effect on the Issue Date);
provided
that the Issuer may:
(1) purchase, redeem, defease or otherwise acquire or retire for value any of the
Existing Notes which have a final maturity date (as in effect on the Issue Date) on or prior
to December 31, 2011; and
(2) purchase, redeem, defease or otherwise acquire or retire for value any other
Existing Notes which have a final maturity date (as in effect on the Issue Date) on or prior
to November 15, 2016;
provided
that, in the case of any such prepayment funded with
the proceeds of the issuance of Secured Indebtedness, at the time of incurrence and after
giving
pro forma
effect thereto and to the application of the proceeds thereof, (x) the
Consolidated Secured Debt Ratio would be no greater than 5.25 to 1.0 and (y) the
Consolidated Leverage Ratio would be no greater than 7.0 to 1.0.
The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, amend the
Existing Notes Indenture, or any supplemental indenture in respect thereof, in any way to advance
the final maturity date or shorten the Weighted Average Life to Maturity of any series of the
Existing Notes such that any Existing Notes with a maturity date following the maturity of the
Notes would have a maturity date on or prior to the date one year following the maturity date of
the 2016 Cash-Pay Notes or which would prohibit the making of the Guarantees or the creation of
Liens in favor of the Notes and the Guarantees on the Collateral.
The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, designate
any additional subsidiaries as Restricted Subsidiaries (as defined in the Existing Notes
Indenture) for purposes of the Existing Notes Indenture.
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Section 4.09
|
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Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries
.
|
(a) The Issuer shall not, and shall not permit any of its Restricted Subsidiaries that are not
Guarantors to, directly or indirectly, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or consensual restriction on the ability of any such
Restricted Subsidiary to:
(1) (A) pay dividends or make any other distributions to the Issuer or any of its
Restricted Subsidiaries on its Capital Stock or with respect to any other interest or
participation in, or measured by, its profits, or
(B) pay any Indebtedness owed to the Issuer or any of its Restricted Subsidiaries;
(2) make loans or advances to the Issuer or any of its Restricted Subsidiaries; or
(3) sell, lease or transfer any of its properties or assets to the Issuer or any of its
Restricted Subsidiaries.
(b) The restrictions in Section 4.09(a) hereof shall not apply to encumbrances or restrictions
existing under or by reason of:
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(1) contractual encumbrances or restrictions in effect on the Issue Date, including
pursuant to the Senior Credit Facilities and the related documentation and the Existing
Notes Indenture and the related documentation;
(2) this Indenture and the Notes;
(3) purchase money obligations for property acquired in the ordinary course of business
that impose restrictions of the nature discussed in clause (3) of Section 4.09(a) hereof on
the property so acquired;
(4) applicable law or any applicable rule, regulation or order;
(5) any agreement or other instrument of a Person acquired by the Issuer or any
Restricted Subsidiary in existence at the time of such acquisition (but not created in
contemplation thereof), which encumbrance or restriction is not applicable to any Person, or
the properties or assets of any Person, other than the Person and its Subsidiaries, or the
property or assets of the Person and its Subsidiaries, so acquired;
(6) contracts for the sale of assets, including customary restrictions with respect to
a Subsidiary of the Issuer pursuant to an agreement that has been entered into for the sale
or disposition of all or substantially all of the Capital Stock or assets of such
Subsidiary;
(7) Secured Indebtedness otherwise permitted to be incurred pursuant to Section 4.10
hereof and Section 4.13 hereof that limit the right of the debtor to dispose of the assets
securing such Indebtedness;
(8) restrictions on cash or other deposits or net worth imposed by customers under
contracts entered into in the ordinary course of business;
(9) other Indebtedness, Disqualified Stock or Preferred Stock of Foreign Subsidiaries
permitted to be incurred subsequent to the Issue Date pursuant Section 4.10 hereof;
(10) customary provisions in joint venture agreements and other agreements or
arrangements relating solely to such joint venture;
(11) customary provisions contained in leases or licenses of intellectual property and
other agreements, in each case, entered into in the ordinary course of business;
(12) any encumbrances or restrictions of the type referred to in clauses (1), (2) and
(3) of Section 4.09(a) hereof imposed by any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings of the contracts,
instruments or obligations referred to in clauses (1) through (11) of this Section 4.09(b);
provided
that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings are, in the good faith judgment of the
Issuer, no more restrictive with respect to such encumbrance and other restrictions taken as
a whole than those prior to such amendment, modification, restatement, renewal, increase,
supplement, refunding, replacement or refinancing; and
(13) restrictions created in connection with any Receivables Facility that, in the good
faith determination of the Issuer are necessary or advisable to effect the transactions
contemplated under such Receivables Facility.
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Section 4.10
|
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Limitation on Incurrence of Indebtedness and Issuance of
Disqualified Stock and Preferred Stock
.
|
(a) The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly
or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly
liable, contingently or otherwise (collectively,
incur
and collectively, an
incurrence
), with respect to any Indebtedness (including Acquired Indebtedness), and the
Issuer shall not issue any shares of Disqualified Stock and shall not permit any Restricted
Subsidiary to issue any shares of Disqualified Stock or Preferred Stock;
provided
,
however
, that the Issuer may incur Indebtedness (including Acquired Indebtedness) or issue
shares of Disqualified Stock, and any of its Restricted Subsidiaries may incur Indebtedness
(including Acquired Indebtedness), issue shares of Disqualified Stock and issue shares of Preferred
Stock, if the Fixed Charge Coverage Ratio on a consolidated basis for the Issuer and its Restricted
Subsidiaries most recently ended four fiscal quarters for which internal financial statements are
available immediately preceding the date on which such additional Indebtedness is incurred or such
Disqualified Stock or Preferred Stock is issued would have been at least 2.00 to 1.00, determined
on a
pro forma
basis (including a
pro forma
application of the net proceeds therefrom), as if the
additional Indebtedness had been incurred, or the Disqualified Stock or Preferred Stock had been
issued, as the case may be, and the application of proceeds therefrom had occurred at the beginning
of such four-quarter period;
provided
,
further
, that Restricted Subsidiaries that
are not Guarantors may not incur Indebtedness or Disqualified Stock or Preferred Stock if, after
giving
pro forma
effect to such incurrence or issuance (including a
pro forma
application of the
net proceeds therefrom), more than an aggregate of $2,000.0 million of Indebtedness or Disqualified
Stock or Preferred Stock of Restricted Subsidiaries that are not
Guarantors would be outstanding pursuant to this Section 4.10(a) and clauses (12), (14) and
(19) of Section 4.10(b) at such time.
(b) The provisions of Section 4.10(a) hereof shall not apply to:
(1) the incurrence of Indebtedness under (x) Credit Facilities (other than the ABL
Facility) by the Issuer or any of its Restricted Subsidiaries and the issuance and creation
of letters of credit and bankers acceptances thereunder (with letters of credit and
bankers acceptances being deemed to have a principal amount equal to the face amount
thereof), up to an aggregate principal amount of $16,500.0 million outstanding at any one
time and (y) the ABL Facility by the Issuer or any of its Restricted Subsidiaries and the
issuance and creation of letters of credit and bankers acceptances thereunder (with letters
of credit and bankers acceptances being deemed to have a principal amount equal to the face
amount thereof), up to an aggregate principal amount equal to the ABL Facility Cap;
(2) the incurrence by the Issuer and any Guarantor of Indebtedness represented by the
Notes (including any PIK Notes and any Guarantee) (other than any Additional Notes and any
Exchange Notes (including Guarantees thereof));
(3) Indebtedness of the Issuer and its Restricted Subsidiaries in existence on the
Issue Date (other than Indebtedness described in clauses (1) and (2), of this Section
4.10(b)) including the Existing Notes;
(4) Indebtedness consisting of Capitalized Lease Obligations and Purchase Money
Obligations, so long as such Indebtedness exists at the date of such purchase, lease or
improvement, or is created within 270 days thereafter;
(5) Indebtedness incurred by the Issuer or any of its Restricted Subsidiaries
constituting reimbursement obligations with respect to letters of credit issued in the
ordinary
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course of business, including letters of credit in respect of workers
compensation, medical malpractice or employee health claims, or other Indebtedness with
respect to reimbursement-type obligations regarding workers compensation, medical
malpractice or employee health claims;
provided
,
however
, that upon the
drawing of such letters of credit or the incurrence of such Indebtedness, such obligations
are reimbursed within 30 days following such drawing or incurrence;
(6) Indebtedness arising from agreements of the Issuer or its Restricted Subsidiaries
providing for indemnification, adjustment of purchase price or similar obligations, in each
case, incurred or assumed in connection with the disposition of any business, assets or a
Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or
any portion of such business, assets or a Subsidiary for the purpose of financing such
acquisition;
provided
,
however
, that such Indebtedness is not reflected on
the balance sheet of the Issuer or any of its Restricted Subsidiaries (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 clause (6));
(7) Indebtedness of the Issuer to a Restricted Subsidiary;
provided
that any
such Indebtedness owing to a Restricted Subsidiary that is not a Guarantor is expressly
subordinated in right of payment to the Notes;
provided
,
further
, that any
subsequent issuance or transfer of any Capital Stock or any other event which results in any
Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer
of any such Indebtedness (except to the
Issuer or another Restricted Subsidiary) shall be deemed, in each case, to be an
incurrence of such Indebtedness;
(8) Indebtedness of a Restricted Subsidiary to the Issuer or another Restricted
Subsidiary;
provided
that if a Guarantor incurs such Indebtedness to a Restricted
Subsidiary that is not a Guarantor, such Indebtedness is expressly subordinated in right of
payment to the Guarantee of the Notes of such Guarantor;
provided
,
further
,
that any subsequent transfer of any such Indebtedness (except to the Issuer or another
Restricted Subsidiary) shall be deemed, in each case, to be an incurrence of such
Indebtedness not permitted by this clause (8);
(9) shares of Preferred Stock of a Restricted Subsidiary issued to the Issuer or
another Restricted Subsidiary;
provided
that any subsequent issuance or transfer of
any Capital Stock or any other event which results in any such Restricted Subsidiary ceasing
to be a Restricted Subsidiary or any other subsequent transfer of any such shares of
Preferred Stock (except to the Issuer or another of its Restricted Subsidiaries) shall be
deemed in each case to be an issuance of such shares of Preferred Stock not permitted by
this clause (9);
(10) Hedging Obligations (excluding Hedging Obligations entered into for speculative
purposes) for the purpose of limiting interest rate risk with respect to any Indebtedness
permitted to be incurred pursuant to this Section 4.10, exchange rate risk or commodity
pricing risk;
(11) obligations in respect of performance, bid, appeal and surety bonds and completion
guarantees provided by the Issuer or any of its Restricted Subsidiaries in the ordinary
course of business;
(12) (a) Indebtedness or Disqualified Stock of the Issuer and Indebtedness,
Disqualified Stock or Preferred Stock of the Issuer or any Restricted Subsidiary equal to
200.0% of the net cash proceeds received by the Issuer since immediately after the Issue
Date from the issue or sale of Equity Interests of the Issuer or cash contributed to the
capital of the Issuer (in
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each case, other than Excluded Contributions or proceeds of
Disqualified Stock or sales of Equity Interests to the Issuer or any of its Subsidiaries) as
determined in accordance with clauses (3)(b) and (3)(c) of Section 4.07(a) hereof to the
extent such net cash proceeds or cash have not been applied pursuant to such clauses to make
Restricted Payments or to make other Investments, payments or exchanges pursuant to Section
4.07(b) hereof or to make Permitted Investments (other than Permitted Investments specified
in clauses (1) and (3) of the definition thereof) and (b) Indebtedness or Disqualified Stock
of the Issuer and Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or any
Restricted Subsidiary not otherwise permitted hereunder in an aggregate principal amount or
liquidation preference, which when aggregated with the principal amount and liquidation
preference of all other Indebtedness, Disqualified Stock and Preferred Stock then
outstanding and incurred pursuant to this clause (12)(b), does not at any one time
outstanding exceed $1,500.0 million;
provided
,
however
, that on a
pro forma
basis, together with any amounts incurred and outstanding by Restricted Subsidiaries that
are not Guarantors pursuant to the second proviso to Section 4.10(a) and clauses (14) and
(19), no more than $2,000.0 million of Indebtedness, Disqualified Stock or Preferred Stock
at any one time outstanding and incurred pursuant to this clause (12)(b) shall be incurred
by Restricted Subsidiaries that are not Guarantors (it being understood that any
Indebtedness, Disqualified Stock or Preferred Stock incurred pursuant to this clause (12)(b)
shall cease to be deemed incurred or outstanding for purposes of this clause (12)(b) but
shall be deemed incurred for the purposes of Section 4.10(a) hereof from and after the first
date on which the Issuer or such Restricted Subsidiary could have incurred such
Indebtedness, Disqualified Stock or Preferred Stock under Section 4.10(a) hereof
without reliance on this clause (12)(b));
(13) the incurrence or issuance by the Issuer or any Restricted Subsidiary of
Indebtedness, Disqualified Stock or Preferred Stock which serves to refund or refinance any
Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or any Restricted
Subsidiary incurred as permitted under Section 4.10(a) hereof and clauses (2), (3), (4) and
(12)(a) of this Section 4.10(b) above, this clause (13) and clause (14) of this Section
4.10(b) or any Indebtedness, Disqualified Stock or Preferred Stock of the Issuer or any
Restricted Subsidiary issued to so refund or refinance such Indebtedness, Disqualified Stock
or Preferred Stock of the Issuer or any Restricted Subsidiary including additional
Indebtedness, Disqualified Stock or Preferred Stock incurred to pay premiums (including
reasonable tender premiums), defeasance costs and fees in connection therewith (the
Refinancing Indebtedness
) prior to its respective maturity;
provided
,
however
, that such Refinancing Indebtedness:
(a) has a Weighted Average Life to Maturity at the time such Refinancing
Indebtedness is incurred which is not less than the remaining Weighted Average Life
to Maturity of the Indebtedness, Disqualified Stock or Preferred Stock being
refunded or refinanced,
(b) to the extent such Refinancing Indebtedness refinances (i) Indebtedness
subordinated or
pari passu
to the Notes or any Guarantee thereof, such Refinancing
Indebtedness is subordinated or
pari passu
to the Notes or the Guarantee at least to
the same extent as the Indebtedness being refinanced or refunded or (ii)
Disqualified Stock or Preferred Stock, such Refinancing Indebtedness must be
Disqualified Stock or Preferred Stock, respectively, and
(c) shall not include Indebtedness, Disqualified Stock or Preferred Stock of a
Subsidiary of the Issuer that is not a Guarantor that refinances Indebtedness,
Disqualified Stock or Preferred Stock of the Issuer or a Guarantor;
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and
provided
further
, that subclause (a) of this clause (13) will not apply
to any refunding or refinancing of any Priority Lien Obligations and Obligations secured by
Permitted Liens;
(14) Indebtedness, Disqualified Stock or Preferred Stock of (x) the Issuer or a
Restricted Subsidiary incurred to finance an acquisition or (y) Persons that are acquired by
the Issuer or any Restricted Subsidiary or merged into the Issuer or a Restricted Subsidiary
in accordance with the terms of this Indenture;
provided
that after giving effect to
such acquisition or merger, either
(a) the Issuer would be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section
4.10(a) hereof, or
(b) the Fixed Charge Coverage Ratio of the Issuer and the Restricted
Subsidiaries is greater than immediately prior to such acquisition or merger;
provided
,
however
that on a
pro forma
basis, together with amounts incurred
and outstanding pursuant to the second proviso to Section 4.10(a) and clauses (12) and (19)
of this Section 4.10(b), no more than $2,000.0 million of Indebtedness, Disqualified Stock
or Preferred Stock at any one
time outstanding and incurred by Restricted Subsidiaries that are not Guarantors pursuant to
this clause (14) shall be incurred and outstanding;
(15) Indebtedness arising from the honoring by a bank or other financial institution of
a check, draft or similar instrument drawn against insufficient funds in the ordinary course
of business;
provided
that such Indebtedness is extinguished within two Business
Days of its incurrence;
(16) Indebtedness of the Issuer or any of its Restricted Subsidiaries supported by a
letter of credit issued pursuant to any Credit Facilities, in a principal amount not in
excess of the stated amount of such letter of credit;
(17) (a) any guarantee by the Issuer or a Restricted Subsidiary of Indebtedness or
other obligations of any Restricted Subsidiary, so long as the incurrence of such
Indebtedness incurred by such Restricted Subsidiary is permitted under the terms of this
Indenture, or (b) any guarantee by a Restricted Subsidiary of Indebtedness of the Issuer;
provided
that such guarantee is incurred in accordance with Section 4.16 hereof;
(18) Indebtedness of Foreign Subsidiaries of the Issuer in an amount not to exceed at
any one time outstanding and together with any other Indebtedness incurred under this clause
(18) 7.5% of the Total Assets of the Foreign Subsidiaries (it being understood that any
Indebtedness incurred pursuant to this clause (18) shall cease to be deemed incurred or
outstanding for purposes of this clause (18) but shall be deemed incurred for the purposes
of Section 4.10(a) hereof from and after the first date on which the Issuer or such
Restricted Subsidiaries could have incurred such Indebtedness under Section 4.10(a) hereof
without reliance on this clause (18));
(19) Indebtedness, Disqualified Stock or Preferred Stock of a Restricted Subsidiary
incurred to finance or assumed in connection with an acquisition in a principal amount not
to exceed $200.0 million in the aggregate at any one time outstanding together with all
other Indebtedness, Disqualified Stock and/or Preferred Stock issued under this clause (19)
(it being understood that any Indebtedness, Disqualified Stock or Preferred Stock incurred
pursuant to this
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clause (19) shall cease to be deemed incurred or outstanding for purposes
of this clause (19) but shall be deemed incurred for the purposes of Section 4.10(a) hereof
from and after the first date on which such Restricted Subsidiary could have incurred such
Indebtedness, Disqualified Stock or Preferred Stock under Section 4.10(a) hereof without
reliance on this clause (19));
provided
,
however
, that, on a
pro forma
basis, together with amounts incurred and outstanding by Restricted Subsidiaries that are
not Guarantors pursuant to the second proviso to Section 4.10(a) and clauses (12) and (14)
of this Section 4.10(b), no more than $2,000.0 million of Indebtedness would be incurred and
outstanding by Restricted Subsidiaries that are not Guarantors;
(20) Indebtedness of the Issuer or any of its Restricted Subsidiaries consisting of (i)
the financing of insurance premiums or (ii) take-or-pay obligations contained in supply
arrangements, in each case, incurred in the ordinary course of business;
(21) Indebtedness consisting of Indebtedness issued by the Issuer or any of its
Restricted Subsidiaries to current or former officers, directors and employees thereof,
their respective estates, spouses or former spouses, in each case to finance the purchase or
redemption of Equity Interests of the Issuer or any direct or indirect parent company of the
Issuer to the extent described in clause (4) of Section 4.07(b) hereof;
(22) Physician Support Obligations incurred by the Issuer or any Restricted Subsidiary;
and
(23) Indebtedness of the Issuer or any of its Restricted Subsidiaries undertaken in
connection with cash management and related activities with respect to any Subsidiary or
joint venture operating one or more healthcare facilities, including, without limitation,
hospitals, ambulatory surgery centers, outpatient diagnostic centers or imaging centers, in
each case, in the ordinary course of business.
For purposes of determining compliance with this Section 4.10:
(1) in the event that an item of Indebtedness, Disqualified Stock or Preferred Stock
(or any portion thereof) meets the criteria of more than one of the categories of permitted
Indebtedness, Disqualified Stock or Preferred Stock described in clauses (1) through (23) of
this Section 4.10(b) or is entitled to be incurred pursuant to Section 4.10(a) hereof, the
Issuer, in its sole discretion, shall classify or reclassify such item of Indebtedness,
Disqualified Stock or Preferred Stock (or any portion thereof) and shall only be required to
include the amount and type of such Indebtedness, Disqualified Stock or Preferred Stock in
one of the above clauses;
provided
that all Indebtedness outstanding under the
Credit Facilities on the Issue Date shall be treated as incurred on the Issue Date under
clause (1) of Section 4.10(b) hereof; and
(2) at the time of incurrence, the Issuer will be entitled to divide and classify an
item of Indebtedness in more than one of the types of Indebtedness described in Section
4.10(a) and 4.10(b) hereof.
Accrual of interest, the accretion of accreted value and the payment of interest in the form
of additional Indebtedness, Disqualified Stock or Preferred Stock shall not be deemed to be an
incurrence of Indebtedness, Disqualified Stock or Preferred Stock for purposes of this Section
4.10.
For purposes of determining compliance with any U.S. dollar-denominated restriction on the
incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated
in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on
the date
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such Indebtedness was incurred, in the case of term debt, or first committed, in the case
of revolving credit debt;
provided
that if such Indebtedness is incurred to refinance other
Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable
U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange
rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be
deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness
does not exceed the principal amount of such Indebtedness being refinanced.
The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred
in a different currency from the Indebtedness being refinanced, shall be calculated based on the
currency exchange rate applicable to the currencies in which such respective Indebtedness is
denominated that is in effect on the date of such refinancing.
Notwithstanding anything to the contrary, the Issuer shall not, and shall not permit any
Guarantor to, directly or indirectly, incur any Indebtedness (including Acquired Indebtedness) that
is subordinated or junior in right of payment to any Indebtedness of the Issuer or such Guarantor,
as the case may be, unless such Indebtedness is expressly subordinated in right of payment to the
Notes or such Guarantors Guarantee to the extent and in the same manner as such Indebtedness is
subordinated to other Indebtedness of the Issuer or such Guarantor, as the case may be.
For purposes of this Indenture, Indebtedness that is unsecured is not deemed to be
subordinated or junior to Secured Indebtedness merely because it is unsecured, and Senior
Indebtedness not deemed to be subordinated or junior to any other Senior Indebtedness merely
because it has a junior priority with respect to the same collateral.
Section 4.11
Asset Sales
.
(a) The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to
consummate, directly or indirectly, an Asset Sale, unless:
(1) the Issuer or such Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the fair market value (as
determined in good faith by the Issuer) of the assets sold or otherwise disposed of; and
(2) except in the case of a Permitted Asset Swap, at least 75% of the consideration
therefor received by the Issuer or such Restricted Subsidiary, as the case may be, is in the
form of cash or Cash Equivalents;
provided
that the amount of:
(A) any liabilities (as shown on the Issuers or such Restricted Subsidiarys
most recent balance sheet or in the footnotes thereto) of the Issuer or such
Restricted Subsidiary, other than liabilities that are by their terms subordinated
to the Notes, that are assumed by the transferee of any such assets and for which
the Issuer and all of its Restricted Subsidiaries have been validly released by all
creditors in writing,
(B) any securities received by the Issuer or such Restricted Subsidiary from
such transferee that are converted by the Issuer or such Restricted Subsidiary into
cash (to the extent of the cash received) within 180 days following the closing of
such Asset Sale, and
(C) any Designated Non-cash Consideration received by the Issuer or such
Restricted Subsidiary in such Asset Sale having an aggregate fair market value,
taken
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together with all other Designated Non-cash Consideration received pursuant to
this clause (C) that is at that time outstanding, not to exceed 5% of Total Assets
at the time of the receipt of such Designated Non-cash Consideration, 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,
shall be deemed to be cash for purposes of this provision and for no other purpose.
(b) Within 450 days after the receipt of any Net Proceeds of any Asset Sale, the Issuer or
such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale,
(1) to permanently reduce:
(A) Obligations under Priority Lien Obligations and to correspondingly reduce
commitments with respect thereto;
(B) Obligations under Senior Indebtedness (other than any Junior Lien Obligation) that
is secured by a Lien permitted under this Indenture (which Lien is senior to the Lien of the
Notes with respect to the Collateral), and to correspondingly reduce commitments with
respect thereto;
(C) Obligations under Junior Lien Obligations (and to correspondingly reduce
commitments with respect thereto) through open-market purchases (to the extent such
purchases are at or above 100% of the principal amount thereof) or by making an Asset Sale
Offer or a Collateral Asset Sale Offer in accordance with the procedures set forth below;
provided
that the Issuer shall equally and ratably reduce Obligations under the
Notes as provided under Section 3.07 hereof, through open-market purchases or otherwise by
making an offer (in accordance with the procedures set forth under Section 4.11(c) hereof)
to all Holders to purchase their Notes at 100% of the principal amount thereof, plus the
amount of accrued but unpaid interest, if any, on the amount of the Notes that would
otherwise be prepaid;
(D) Obligations under the Existing Notes which have a final maturity date (as in effect
on the Issue Date) on or prior to November 15 , 2016;
provided
that, at the time of,
and after giving effect to, such repurchase, redemption or defeasance, the aggregate amount
of Net Proceeds used to repurchase, redeem or defease Existing Notes pursuant to this
subclause (D) following the Issue Date shall not exceed 5% of Total Assets at such time; or
(E) Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than
Indebtedness owed to the Issuer or another Restricted Subsidiary (or any affiliate thereof);
(2) to make (a) an Investment in any one or more businesses,
provided
that such
Investment in any business is in the form of the acquisition of Capital Stock and results in the
Issuer or another of its Restricted Subsidiaries, as the case may be, owning an amount of the
Capital Stock of such business such that it constitutes a Restricted Subsidiary, (b) capital
expenditures or (c) acquisitions of other assets, in each of (a), (b) and (c), used or useful in a
Similar Business; or
(3) to make an investment in (a) any one or more businesses,
provided
that such
Investment in any business is in the form of the acquisition of Capital Stock and results in the
Issuer or another of its Restricted Subsidiaries, as the case may be, owning an amount of the
Capital Stock of such business such that it constitutes a Restricted Subsidiary, (b) properties or
(c) acquisitions of other assets
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that, in each of (a), (b) and (c), replace the businesses,
properties and/or assets that are the subject of such Asset Sale;
provided
that, in the case of clauses (2) and (3) above, a binding commitment shall be
treated as a permitted application of the Net Proceeds from the date of such commitment so long as
the Issuer, or such other Restricted Subsidiary enters into such commitment with the good faith
expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of
such commitment (an
Acceptable Commitment
) and, in the event any Acceptable Commitment is
later cancelled or terminated for any reason before the Net Proceeds are applied in connection
therewith, the Issuer or such Restricted Subsidiary enters into another Acceptable Commitment (a
Second Commitment
) within 180 days of such cancellation or termination;
provided
,
further
, that if any Second Commitment is later cancelled or terminated for any reason
before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds.
(c) Any Net Proceeds from Asset Sales of Collateral that are not invested or applied as set
forth in Section 4.11(b) shall be deemed to constitute
Collateral Excess Proceeds
. When
the aggregate amount of Collateral Excess Proceeds exceeds $200.0 million, the Issuer shall make an
offer to all Holders of the Notes and, if required by the terms of any Junior Lien Obligations
which are not subordinated to the Notes or Obligations secured by a Lien permitted under this
Indenture (which Lien is
not subordinate to the Lien of the Notes with respect to the Collateral), to the holders of
such Junior Lien Obligations or such other Obligations (a
Collateral Asset Sale Offer
),
to purchase the maximum aggregate principal amount of the Notes and such Junior Lien Obligations or
such other Obligations that is a minimum of $2,000 or an integral multiple of $1,000 in excess
thereof that may be purchased out of the Collateral Excess Proceeds at an offer price in cash in an
amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and
Additional Interest, if any, to the date fixed for the closing of such offer, in accordance with
the procedures set forth in this Indenture. The Issuer will commence a Collateral Asset Sale Offer
with respect to Collateral Excess Proceeds within ten Business Days after the date that Collateral
Excess Proceeds exceed $200.0 million by mailing the notice required pursuant to the terms of this
Indenture, with a copy to the Trustee.
Any Net Proceeds from Asset Sales of non-Collateral that are not invested or applied as
provided and within the time period set forth Section 4.11(b) shall be deemed to constitute
Excess Proceeds
. When the aggregate amount of Excess Proceeds exceeds $200.0 million,
the Issuer shall make an offer to all Holders of the Notes and, if required or permitted by the
terms of any Senior Indebtedness, to the holders of such Senior Indebtedness (an
Asset Sale
Offer
), to purchase the maximum aggregate principal amount of the Notes and such Senior
Indebtedness that is a minimum of $2,000 or an integral multiple of $1,000 in excess thereof that
may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of
the principal amount thereof, plus accrued and unpaid interest and Additional Interest, if any, to
the date fixed for the closing of such offer, in accordance with the procedures set forth in this
Indenture. The Issuer will commence an Asset Sale Offer with respect to Excess Proceeds within ten
Business Days after the date that Excess Proceeds exceed $200.0 million by mailing the notice
required pursuant to the terms of this Indenture, with a copy to the Trustee.
To the extent that the aggregate amount of Notes and such Junior Lien Obligations or
Obligations secured by a Lien permitted by this Indenture (which Lien is not subordinate to the
Lien of the Notes with respect to the Collateral) tendered pursuant to a Collateral Asset Sale
Offer is less than the Collateral Excess Proceeds, the Issuer may use any remaining Collateral
Excess Proceeds for general corporate purposes, subject to other covenants contained in this
Indenture. To the extent that the aggregate amount of Notes and such Senior Indebtedness tendered
pursuant to an Asset Sale Offer is
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less than the Excess Proceeds, the Issuer may use any remaining
Excess Proceeds for general corporate purposes, subject to other covenants contained in this
Indenture. If the aggregate principal amount of Notes or Junior Lien Obligations or such other
Obligations surrendered by such holders thereof exceeds the amount of Collateral Excess Proceeds,
the Trustee shall select the Notes and such Junior Lien Obligations or such other Obligations to be
purchased on a
pro rata
basis based on the accreted value or principal amount of the Notes or such
Junior Lien Obligations or such other Obligations tendered. If the aggregate principal amount of
Notes or the Senior Indebtedness surrendered by such holders thereof exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes and such Senior Indebtedness to be purchased on a
pro
rata
basis based on the accreted value or principal amount of the Notes or such Senior Indebtedness
tendered. Upon completion of any such Collateral Asset Sale Offer or Asset Sale Offer, the amount
of Collateral Excess Proceeds or Excess Proceeds, as the case may be, shall be reset at zero.
Additionally, the Issuer may, at its option, make a Collateral Asset Sale Offer or an Asset Sale
Offer using proceeds from any Asset Sale at any time after consummation of such Asset Sale;
provided
that such Collateral Asset Sale Offer or Asset Sale Offer shall be in an aggregate
amount of not less than $50.0 million. Upon consummation of such Collateral Asset Sale Offer or
Asset Sale Offer, any Net Proceeds not required to be used to purchase Notes shall not be deemed
Excess Proceeds.
(d) Pending the final application of any Net Proceeds pursuant to this Section 4.11, the
holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness
outstanding under a revolving credit facility or otherwise invest such Net Proceeds in any
manner not prohibited by this Indenture.
(e) 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 the Notes pursuant to a Collateral Asset Sale Offer
or an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations
conflict with the provisions of this Indenture, the Issuer shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its obligations described
in this Indenture by virtue thereof.
Section 4.12
Transactions with Affiliates
.
(a) The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, make any
payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of
the Issuer (each of the foregoing, an
Affiliate Transaction
) involving aggregate payments
or consideration in excess of $40.0 million, unless:
(1) such Affiliate Transaction is on terms that are not materially less favorable to
the Issuer or its relevant Restricted Subsidiary than those that would have been obtained in
a comparable transaction by the Issuer or such Restricted Subsidiary with an unrelated
Person on an arms-length basis; and
(2) the Issuer delivers to the Trustee with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate payments or consideration in
excess of $80.0 million, a resolution adopted by the majority of the board of directors of
the Issuer approving such Affiliate Transaction and set forth in an Officers Certificate
certifying that such Affiliate Transaction complies with clause (1) of this Section 4.12(a).
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(b) The provisions of Section 4.12(a) hereof shall not apply to the following:
(1) transactions between or among the Issuer or any of its Restricted Subsidiaries;
(2) Restricted Payments permitted by Section 4.07 hereof and the definition of
Permitted Investments;
(3) the payment of management, consulting, monitoring and advisory fees and related
expenses to the Investors and the Frist Entities pursuant to the Sponsor Management
Agreement (plus any unpaid management, consulting, monitoring and advisory fees and related
expenses within such amount accrued in any prior year) and the termination fees pursuant to
the Sponsor Management Agreement, in each case as in effect on the Issue Date, or any
amendments thereto (so long as any such amendment is not disadvantageous in the good faith
judgment of the board of directors of the Issuer to the Holders when taken as a whole
compared to the Sponsor Management Agreement in effect on the Issue Date;
(4) the payment of reasonable and customary fees paid to, and indemnities provided for
the benefit of, officers, directors, employees or consultants of Issuer, any of its direct
or indirect parent companies or any of its Restricted Subsidiaries;
(5) transactions in which the Issuer or any of its Restricted Subsidiaries, as the case
may be, delivers to the Trustee a letter from an Independent Financial Advisor stating that
such transaction is fair to the Issuer or such Restricted Subsidiary from a financial point
of view or stating that the terms are not materially less favorable to the Issuer or its
relevant Restricted Subsidiary than those that would have been obtained in a comparable
transaction by the Issuer or such Restricted Subsidiary with an unrelated Person on an
arms-length basis;
(6) any agreement as in effect as of the Issue Date, or any amendment thereto (so long
as any such amendment is not disadvantageous to the Holders when taken as a whole as
compared to the applicable agreement as in effect on the Issue Date);
(7) the existence of, or the performance by the Issuer or any of its Restricted
Subsidiaries of its obligations under the terms of, any stockholders agreement (including
any registration rights agreement or purchase agreement related thereto) to which it is a
party as of the Issue Date and any similar agreements which it may enter into thereafter;
provided
,
however
, that the existence of, or the performance by the Issuer
or any of its Restricted Subsidiaries of obligations under any future amendment to any such
existing agreement or under any similar agreement entered into after the Issue Date shall
only be permitted by this clause (7) to the extent that the terms of any such amendment or
new agreement are not otherwise disadvantageous to the Holders when taken as a whole;
(8) the Transaction and the payment of all fees and expenses related to the
Transaction, in each case as disclosed in the Offering Memorandum;
(9) transactions with customers, clients, suppliers, or purchasers or sellers of goods
or services, in each case in the ordinary course of business and otherwise in compliance
with the terms of this Indenture which are fair to the Issuer and its Restricted
Subsidiaries, in the reasonable determination of the board of directors of the Issuer or the
senior management thereof, or are on terms at least as favorable as might reasonably have
been obtained at such time from an unaffiliated party;
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(10) the issuance of Equity Interests (other than Disqualified Stock) of the Issuer to
any Permitted Holder or to any director, officer, employee or consultant;
(11) sales of accounts receivable, or participations therein, in connection with the
ABL Facility and any Receivables Facility;
(12) payments by the Issuer or any of its Restricted Subsidiaries to any of the
Investors or the Frist Entities made for any financial advisory, financing, underwriting or
placement services or in respect of other investment banking activities, including, without
limitation, in connection with acquisitions or divestitures, which payments are approved by
a majority of the board of directors of the Issuer in good faith;
(13) payments or loans (or cancellation of loans) to employees or consultants of the
Issuer, any of its direct or indirect parent companies or any of its Restricted Subsidiaries
and employment agreements, stock option plans and other similar arrangements with such
employees or consultants which, in each case, are approved by the Issuer in good faith;
(14) investments by the Investors or the Frist Entities in securities of the Issuer or
any of its Restricted Subsidiaries so long as (i) the investment is being offered generally
to other
investors on the same or more favorable terms and (ii) the investment constitutes less
than 5% of the proposed or outstanding issue amount of such class of securities;
(15) payments to or from, and transactions with, any joint venture owning or operating
one or more healthcare facilities, including, without limitation, hospitals, ambulatory
surgery centers, outpatient diagnostic centers or imaging centers, in each case in the
ordinary course of business (including, without limitation, any cash management activities
related thereto); and
(16) payments by the Issuer (and any direct or indirect parent thereof) and its
Subsidiaries pursuant to tax sharing agreements among the Issuer (and any such parent) and
its Subsidiaries on customary terms to the extent attributable to the ownership or operation
of the Issuer and its Subsidiaries;
provided
that in each case the amount of such
payments in any fiscal year does not exceed the amount that the Issuer, its Restricted
Subsidiaries and its Unrestricted Subsidiaries (to the extent of amounts received from
Unrestricted Subsidiaries) would be required to pay in respect of foreign, federal, state
and local taxes for such fiscal year were the Issuer and its Restricted Subsidiaries (to the
extent described above) to pay such taxes separately from any such parent entity.
Section 4.13
Liens
.
The Issuer shall not, and shall not permit any Guarantor to, directly or indirectly, create,
incur, assume or suffer to exist any Lien (except Permitted Liens) that secures obligations under
any Indebtedness or any related Guarantee, on any asset or property of the Issuer or any Guarantor,
or any income or profits therefrom, or assign or convey any right to receive income therefrom,
unless:
(1) in the case of Liens securing Subordinated Indebtedness, the Notes and related
Guarantees are secured by a Lien on such property, assets or proceeds that is senior in
priority to such Liens; or
(2) in all other cases, the Notes or the Guarantees are equally and ratably secured or
are secured by a Lien on such property, assets or proceeds that is senior in priority to
such Liens;
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except that the foregoing shall not apply to (a) Liens securing the Notes and the related
Guarantees, (b) Liens securing Indebtedness permitted to be incurred under Credit Facilities,
including any letter of credit relating thereto, that was permitted by the terms this Indenture to
be incurred pursuant to clause (1) of Section 4.10(b) hereof;
provided
that, with respect
to Liens securing Obligations permitted under this subclause (b), the Notes and the related
Guarantees are secured by Liens on the assets subject to such Liens (except any European
Collateral) to the extent, with the priority and subject to intercreditor arrangements, in each
case no less favorable to the holders of the Notes than those described under Article 10 hereof and
(c) Liens which are senior in priority to the Liens securing the Notes and related Guarantees and
are incurred to secure Obligations in respect of any Indebtedness permitted to be incurred pursuant
to Section 4.10 hereof;
provided
that, with respect to Liens securing Obligations permitted
under this subclause (c), (i) at the time of incurrence and after giving
pro forma
effect thereto,
the ratio of (1) the aggregate amount of Indebtedness subject to a Lien incurred pursuant to
subclause (b) above, this subclause (c) and clause (6) of the definition of Permitted Liens
(other than Liens securing Indebtedness incurred pursuant to clauses (4) and (18) of Section
4.10(b) hereof) to (2) the Issuers EBITDA for the most recently ended four full fiscal quarters
for which internal financial statements are available immediately preceding the date on which such
event for which such calculation is being made
shall occur, in each case with such
pro forma
adjustments to Indebtedness and EBITDA as are
appropriate and consistent with the
pro forma
adjustment provisions set forth in the definition of
Fixed Charge Coverage Ratio would be no greater than 4.25 to 1.0 and (ii) the Notes and the
Guarantees are secured by Liens with the priority and subject to intercreditor arrangements no less
favorable to the holders of the Notes than those described under Article 10 hereof.
Section 4.14
Corporate Existence
.
Subject to Article 5 hereof, the Issuer shall do or cause to be done all things necessary to
preserve and keep in full force and effect (i) its corporate existence, and the corporate,
partnership or other existence of each of its Restricted Subsidiaries, in accordance with the
respective organizational documents (as the same may be amended from time to time) of the Issuer or
any such Restricted Subsidiary and (ii) the rights (charter and statutory), licenses and franchises
of the Issuer and its Restricted Subsidiaries;
provided
that the Issuer shall not be
required to preserve any such right, license or franchise, or the corporate, partnership or other
existence of any of its Restricted Subsidiaries, if the Issuer in good faith shall determine that
the preservation thereof is no longer desirable in the conduct of the business of the Issuer and
its Restricted Subsidiaries, taken as a whole.
Section 4.15
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 and Additional 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, to each Holder of Notes to
the address of such Holder appearing in the security register with a copy to the Trustee or
otherwise in accordance with the procedures of DTC, with the following information:
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(1) that a Change of Control Offer is being made pursuant to this Section 4.15 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 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) that if the Issuer is redeeming less than all of the Notes, the Holders of the
remaining 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
4.15, 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 4.15, the Issuer shall comply with the applicable securities
laws and regulations and shall not be deemed to have breached its obligations under this Section
4.15 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 4.15 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 4.15, any purchase pursuant to this
Section 4.15 shall be made pursuant to the provisions of Sections 3.02, 3.05 and 3.06 hereof.
Section 4.16
Limitation on Guarantees of Indebtedness by Restricted Subsidiaries
.
The Issuer shall not permit any of its Wholly-Owned Subsidiaries that are Restricted
Subsidiaries (and non-Wholly-Owned Subsidiaries if such non-Wholly-Owned Subsidiaries guarantee
other capital markets debt securities of the Issuer or any Guarantor), other than a Guarantor, a
Foreign Subsidiary or a Receivables Subsidiary, to guarantee the payment of any Indebtedness of the
Issuer or any other Guarantor unless:
(1) such Restricted Subsidiary within 30 days executes and delivers a supplemental
indenture to this Indenture, the form of which is attached as
Exhibit D
hereto,
providing for a Guarantee by such Restricted Subsidiary, except that with respect to a
guarantee of Indebtedness of the Issuer or any Guarantor:
(a) if the Notes or such Guarantors Guarantee are subordinated in right of
payment to such Indebtedness, the Guarantee under the supplemental indenture shall
be subordinated to such Restricted Subsidiarys guarantee with respect to such
Indebtedness substantially to the same extent as the Notes are subordinated to such
Indebtedness; and
(b) if such Indebtedness is by its express terms subordinated in right of
payment to the Notes or such Guarantors Guarantee, any such guarantee by such
Restricted Subsidiary with respect to such Indebtedness shall be subordinated in
right of payment to such Guarantee substantially to the same extent as such
Indebtedness is subordinated to the Notes; and
(2) such Restricted Subsidiary waives and shall not in any manner whatsoever claim or
take the benefit or advantage of, any rights of reimbursement, indemnity or subrogation or
any
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other rights against the Issuer or any other Restricted Subsidiary as a result of any
payment by such Restricted Subsidiary under its Guarantee;
provided
that this Section 4.16 shall not be applicable to (i) any guarantee of any
Restricted Subsidiary that existed at the time such Person became a Restricted Subsidiary and was
not incurred in connection with, or in contemplation of, such Person becoming a Restricted
Subsidiary and (ii) guarantees of the ABL Facility by the ABL Financing Entities or of any
Receivables Facility by any Receivables Subsidiary.
Section 4.17
Discharge and Suspension of Covenants
.
(a) If on any date following the date of the Issue Date (i) any series of Notes have
Investment Grade Ratings from both Rating Agencies, and (ii) no Default has occurred and is
continuing under this Indenture (the occurrence of the events described in the foregoing clauses
(i) and (ii) being collectively referred to as a
Covenant Suspension Event
), Section 4.07
hereof, Section 4.09 hereof,
Section 4.10 hereof, Section 4.11 hereof, Section 4.12 hereof, Section 4.15 hereof and clause
(4) of Section 5.01 hereof shall no longer be applicable to such series of Notes (collectively, the
Suspended Covenants
).
(b) In the event that the Issuer and the Restricted Subsidiaries are not subject to the
Suspended Covenants under this 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 (a)
withdraw their Investment Grade Rating or downgrade the rating assigned to any series of Notes
below an Investment Grade Rating and/or (b) the Issuer or any of its Affiliates enter 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 any series of Notes below an
Investment Grade Rating, then the Issuer and the Restricted Subsidiaries shall thereafter again be
subject to the Suspended Covenants under this Indenture with respect to future events, including,
without limitation, a proposed transaction described in clause (b) above.
(c) The period of time between the Suspension Date and the Reversion Date is referred to in
this description as the
Suspension Period
. Additionally, upon the occurrence of a
Covenant Suspension Event, the amount of Excess Proceeds from Net Proceeds shall be reset at zero.
In the event of any such reinstatement, no action taken or omitted to be taken by the Issuer or any
of its Restricted Subsidiaries prior to such reinstatement will give rise to a Default or Event of
Default under this Indenture with respect to any applicable series of Notes; provided that (1) with
respect to Restricted Payments made after any such reinstatement, the amount of Restricted Payments
made will be calculated as though Section 4.07 hereof had been in effect prior to, but not during
the Suspension Period, provided that any Subsidiaries designated as Unrestricted Subsidiaries
during the Suspension Period shall automatically become Restricted Subsidiaries on the Reversion
Date (subject to the Issuers right to subsequently designate them as Unrestricted Subsidiaries in
compliance with Section 4.07 hereof and the definition of Unrestricted Subsidiary hereunder) and
(2) all Indebtedness incurred, or Disqualified Stock or Preferred Stock issued, during the
Suspension Period will be classified to have been incurred or issued pursuant to clause (3) of
Section 4.10(b) hereof.
(d) The Issuer shall deliver promptly to the Trustee an Officers Certificate notifying it of
any such occurrence under this Section 4.17.
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Section 4.18
After-Acquired Collateral; Principal Properties
.
(a) From and after the Issue Date, (a) if the Issuer or any Guarantor creates any additional
security interest upon any property or asset that would constitute Collateral to secure any First
Lien Obligations (other than Principal Properties prior to the Discharge of First Lien Obligations
and so long as no First Lien Obligations are outstanding and other than European Collateral and
Separate Receivables Collateral), it shall concurrently grant a second-priority perfected security
interest (subject to Permitted Liens) upon such property as security for the Notes and the other
Obligations under this Indenture and (b) if the Issuer or any Guarantor creates any additional
security interest upon any property or asset that would constitute Shared Receivables Collateral to
secure any Priority Lien Obligations, it must concurrently grant a third-priority perfected
security interest (subject to Permitted Liens) upon such property as security for the Notes and the
other Obligations under this Indenture.
(b) The Issuer shall cause each Restricted Subsidiary upon execution and delivery to the
Trustee of a supplemental indenture substantially in the form of Exhibit D hereto to become a party
to
the Security Documents, as applicable, and to execute and file all documents and instruments
necessary to grant to the Collateral Agent a perfected security in the Collateral of such
Restricted Subsidiary.
(c) Upon Discharge of First Lien Obligations, and for so long as no First Lien Obligations are
outstanding, the Principal Properties that constitute Collateral under, and as defined, in the
First Lien Security Documents shall become Collateral with respect to the Notes, subject to the
same limitation on the amount of Obligations secured thereby as is contained in the First Lien
Security Documents.
ARTICLE 5
SUCCESSORS
Section 5.01
Merger, Consolidation or Sale of All or Substantially All Assets
.
(a) The Issuer shall not consolidate or merge with or into or wind up into (whether or not the
Issuer is the surviving corporation), or sell, assign, transfer, lease, convey or otherwise dispose
of all or substantially all of its properties or assets, in one or more related transactions, to
any Person unless:
(1) either: (x) the Issuer is the surviving corporation; or (y) the Person formed by
or surviving any such consolidation or merger (if other than the Issuer) or to which such
sale, assignment, transfer, lease, conveyance or other disposition 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
Company
);
(2) the Successor Company, if other than the Issuer, expressly assumes all the
obligations of the Issuer under the Notes and the Security Documents pursuant to
supplemental indentures or other documents or instruments in form reasonably satisfactory to
the Trustee;
(3) immediately after such transaction, no Default exists;
(4) immediately after giving
pro forma
effect to such transaction and any related
financing transactions, as if such transactions had occurred at the beginning of the
applicable four-quarter period,
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(A) the Successor Company would be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth
in Section 4.10(a) hereof, or
(B) the Fixed Charge Coverage Ratio for the Successor Company, the Issuer and
its Restricted Subsidiaries would be greater than such ratio for the Issuer and its
Restricted Subsidiaries immediately prior to such transaction;
(5) each Guarantor, unless it is the other party to the transactions described above,
in which case Section 5.01(c)(1)(B) hereof shall apply, shall have by supplemental indenture
confirmed that its Guarantee shall apply to such Persons obligations under this Indenture,
the Notes and the Registration Rights Agreement; and
(6) the Collateral owned by the Successor Company will (a) continue to constitute
Collateral under this Indenture and the Security Documents, (b) be subject to a Lien in
favor of the Collateral Agent for the benefit of the Trustee and the Holders of the Notes
and (c) not be subject to any other Lien, other than Permitted Liens;
(7) to the extent any assets of the Person which is merged or consolidated with or into
the Successor Company are assets of the type which would constitute Collateral under the
Security Documents, the Successor Company will take such action as may be reasonably
necessary to cause such property and assets to be made subject to the Lien of the Security
Documents in the manner and to the extent required in this Indenture or any of the Security
Documents and shall take all reasonably necessary action so that such Lien is perfected to
the extent required by the Security Documents; and
(8) the Issuer 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 indentures, if any, comply with this Indenture and, if a supplemental indenture
or any supplement to any Security Document is required in connection with such transaction,
such supplement shall comply with the applicable provisions of this Indenture.
(b) The Successor Company shall succeed to, and be substituted for the Issuer, as the case may
be, under this Indenture, the Guarantees and the Notes, as applicable. Notwithstanding clauses (3)
and (4) of Section 5.01(a) hereof,
(1) any Restricted 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, the District of Columbia or any territory thereof so long as the amount of
Indebtedness of the Issuer and its Restricted Subsidiaries is not increased thereby.
(c) Subject to certain limitations described in this Indenture governing release of a
Guarantee upon the sale, disposition or transfer of a Guarantor, no Guarantor shall, and the Issuer
shall not permit any Guarantor to, consolidate or merge with or into or wind up into (whether or
not the Issuer or Guarantor is the surviving corporation), or sell, assign, transfer, lease, convey
or otherwise dispose of all or substantially all of its properties or assets, in one or more
related transactions, to any Person unless:
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(1) (A) such Guarantor is the surviving corporation or the Person formed by or
surviving any such consolidation or merger (if other than such Guarantor) or to which such
sale, assignment, transfer, lease, conveyance or other disposition will have been made is a
corporation, partnership, limited partnership, limited liability corporation or trust
organized or existing under the laws of the jurisdiction of organization of such Guarantor,
as the case may be, or the laws of the United States, any state thereof, the District of
Columbia, or any territory thereof (such Guarantor or such Person, as the case may be, being
herein called the
Successor Person
);
(B) the Successor Person, if other than such Guarantor, expressly assumes all the
obligations of such Guarantor under this Indenture and such Guarantors related Guarantee
pursuant to supplemental indentures or other documents or instruments in form reasonably
satisfactory to the Trustee;
(C) immediately after such transaction, no Default exists; and
(D) the Issuer 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 indentures, if any, comply with this Indenture; or
(2) the transaction is made in compliance with Section 4.11 hereof.
(d) Subject to certain limitations described in this Indenture, the Successor Person shall
succeed to, and be substituted for, such Guarantor under this Indenture and such Guarantors
Guarantee. Notwithstanding the foregoing, any Guarantor may (i) merge into or transfer all or part
of its properties and assets to another Guarantor or the Issuer, (ii) merge with an Affiliate of
the Issuer solely for the purpose of reincorporating the Guarantor in the United States, any state
thereof, the District of Columbia or any territory thereof or (iii) convert into a corporation,
partnership, limited partnership, limited liability corporation or trust organized or existing
under the laws of the jurisdiction of organization of such Guarantor.
(e) Notwithstanding anything to the contrary, the mergers contemplated by the Transaction
Agreement shall be permitted without compliance with this Section 5.01.
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 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
Indenture referring to the Issuer shall refer instead to the successor corporation and not to the
Issuer), and may exercise every right and power of the Issuer under this Indenture with the same
effect as if such successor Person had been named as the Issuer herein;
provided
that the
predecessor Issuer shall not be relieved from the obligation to pay the principal of and interest
and Additional Interest, if any, 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.
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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 30 days or more in the payment when due of interest or Additional
Interest on or with respect to the Notes;
(3) failure by the Issuer or any Guarantor for 60 days after receipt of written notice
given by the Trustee or the Holders of not less 30% in principal amount of the Notes to
comply with any of its obligations, covenants or agreements (other than a default referred
to in clauses (1) and (2) above) contained in this Indenture or the Notes;
(4) default under any mortgage, indenture or instrument under which there is issued or
by which there is secured or evidenced any Indebtedness for money borrowed by the Issuer or
any of its Restricted Subsidiaries or the payment of which is guaranteed by the Issuer or
any of its Restricted Subsidiaries, other than Indebtedness owed to the Issuer or a
Restricted Subsidiary, whether such Indebtedness or guarantee now exists or is created after
the issuance of the Notes, if both:
(a) such default either results from the failure to pay any principal of such
Indebtedness at its stated final maturity (after giving effect to any applicable
grace periods) or relates to an obligation other than the obligation to pay
principal of any such Indebtedness at its stated final maturity and results in the
holder or holders of such Indebtedness causing such Indebtedness to become due prior
to its stated maturity; and
(b) the principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness in default for failure to pay principal at
stated final maturity (after giving effect to any applicable grace periods), or the
maturity of which has been so accelerated, aggregate $200.0 million or more at any
one time outstanding;
(5) failure by the Issuer or any Significant Subsidiary to pay final judgments
aggregating in excess of $200.0 million, which final judgments remain unpaid, undischarged
and unstayed for a period of more than 60 days after such judgment becomes final, and in the
event such judgment is covered by insurance, an enforcement proceeding has been commenced by
any creditor upon such judgment or decree which is not promptly stayed;
(6) the Issuer or any of its Restricted Subsidiaries that is a Significant Subsidiary
or any group of Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:
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(i) commences proceedings to be adjudicated bankrupt or insolvent;
(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;
(7) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:
(i) is for relief against the Issuer or any of its Restricted Subsidiaries that
is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken
together, would constitute a Significant Subsidiary, in a proceeding in which the
Issuer or any such Restricted Subsidiaries, that is a Significant Subsidiary or any
group of Restricted Subsidiaries that, taken together, would constitute a
Significant Subsidiary, is to be adjudicated bankrupt or insolvent;
(ii) appoints a receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Issuer or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of Restricted Subsidiaries that, taken together,
would constitute a Significant Subsidiary, or for all or substantially all of the
property of the Issuer or any of its Restricted Subsidiaries that is a Significant
Subsidiary or any group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary; or
(iii) orders the liquidation of the Issuer or any of its Restricted
Subsidiaries that is a Significant Subsidiary or any group of Restricted
Subsidiaries that, taken together, would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive days; or
(8) the Guarantee of any Significant Subsidiary shall for any reason cease to be in
full force and effect or be declared null and void or any responsible officer of any
Guarantor that is a Significant Subsidiary, as the case may be, 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 Indenture or the release of any such Guarantee in accordance with
this Indenture; or
(9) with respect to any Collateral having a fair market value in excess of $200.0
million, individually or in the aggregate, (a) the security interest under the Security
Documents, at any time, ceases to be in full force and effect for any reason other than in
accordance with the terms of this Indenture, the Security Documents and the Intercreditor
Agreements, (b) any security interest created thereunder or under this Indenture is declared
invalid or unenforceable by a court of competent jurisdiction or (c) the Issuer or any
Guarantor asserts, in any pleading in any court of competent jurisdiction, that any such
security interest is invalid or unenforceable.
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(b) In the event of any Event of Default specified in clause (4) of Section 6.01(a) hereof,
such Event of Default and all consequences thereof (excluding any resulting payment default, other
than as a result of acceleration of the Notes) shall be annulled, waived and rescinded,
automatically and without any action by the Trustee or the Holders, if within 20 days after such
Event of Default arose:
(1) the Indebtedness or guarantee that is the basis for such Event of Default has been
discharged; or
(2) holders thereof have rescinded or waived the acceleration, notice or action (as the
case may be) giving rise to such Event of Default; or
(3) the default that is the basis for such Event of Default has been cured.
Section 6.02
Acceleration
.
(a) If any Event of Default (other than an Event of Default specified in clause (6) or (7) of
Section 6.01(a) hereof) occurs and is continuing under this Indenture, the Trustee or the Holders
of at least 30% in principal amount of the then total 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. 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 (6)
or (7) 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 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, Additional Interest, if any, or
premium that has become due solely because of the acceleration) have been cured or waived.
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, this Indenture or any Security Document.
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.
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 continuing Default in the payment of the principal
of, premium,
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if any, Additional Interest, if any, or interest on, any Note held by a non-consenting
Holder (including in connection with an Asset Sale Offer or a Change of Control Offer);
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 Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
Section 6.05
Control by Majority
.
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 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.
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
Indenture, the Notes or any Security Document unless:
(1) such Holder has previously given the Trustee notice that an Event of Default is
continuing;
(2) Holders of at least 30% 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 reasonable security or indemnity
against any loss, liability or expense;
(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 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 Indenture, the right of any Holder of a Note to
receive payment of principal, premium, if any, and Additional Interest, if any, and interest on the
Note, on or after the respective due dates expressed in the Note (including in connection with an
Asset Sale Offer or 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
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trust against the Issuer for the whole amount of principal of, premium, if any, and Additional
Interest, 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 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 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 Guarantors), 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
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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
.
Subject to the Security Documents, 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, its 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 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 Additional Interest, if any, and interest, ratably, without preference
or priority of any kind, according to the amounts due and payable on the Notes for
principal, premium, if any, and Additional Interest, if any, and interest, respectively; and
(iii) to the Issuer or to such party as a court of competent jurisdiction shall direct
including a 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.
Section 6.14
Undertaking for Costs
.
In any suit for the enforcement of any right or remedy under this 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 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.
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(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 Indenture and the Trustee need perform only those duties that are specifically set
forth in this Indenture and no others, and no implied covenants or obligations shall be read
into this 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
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 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.
(d) Whether or not therein expressly so provided, every provision of this 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 Indenture at the request or direction of any of the Holders of the Notes unless the Holders
have offered to the Trustee reasonable indemnity or security 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
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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
Indenture.
(e) Unless otherwise specifically provided in this 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 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 Indenture
(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.
(j) In the event the Issuer is required to pay Additional Interest, the Issuer will provide
written notice to the Trustee of the Issuers obligation to pay Additional Interest no later than
15 days prior to the next Interest Payment Date, which notice shall set forth the amount of the
Additional Interest to be paid by the Issuer. The Trustee shall not at any time be under any duty
or responsibility to any Holders to determine whether the Additional Interest is payable and the
amount thereof.
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.
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Section 7.04
Trustees Disclaimer
.
The Trustee shall not be responsible for and makes no representation as to the validity or
adequacy of this 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 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 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
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).
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 Guarantors, jointly and severally, shall pay to the Trustee from time to
time such compensation for its acceptance of this 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 Guarantors, 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 Guarantors, 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 Indenture against the Issuer or any of the Guarantors (including this Section 7.07)
or defending itself against any claim
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whether asserted by any Holder, the Issuer or any Guarantor,
or liability in connective 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 under this Section 7.07 shall survive the satisfaction and
discharge of this Indenture or the earlier resignation or removal of the Trustee.
Notwithstanding anything contrary in Section 4.13 hereto, to secure the payment obligations of
the Issuer and the Guarantors 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 Indenture.
When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.01(a)(6) or (7) 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.
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
7.08. The Trustee may resign in writing at any time 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.
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.
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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 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.
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.
Section 7.10
Eligibility; Disqualification
.
There shall at all times be a Trustee hereunder that is a corporation 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 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 Guarantors shall, subject to the satisfaction of the conditions set forth
in
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Section 8.04 hereof, be deemed to have been discharged from their obligations with respect to
all outstanding Notes and Guarantees 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 Indenture referred to in (a) and (b) below, and to have satisfied
all its other obligations under such Notes and this Indenture including that of the Guarantors (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 Indenture referred to in Section 8.04 hereof;
(b) the Issuers obligations with respect to Notes concerning issuing temporary Notes,
registration of such Notes, mutilated, destroyed, lost or stolen Notes and the maintenance
of an office or agency for payment and money for security payments held in trust;
(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 and the Guarantors shall, subject to the satisfaction of the conditions set forth
in Section 8.04 hereof, be released from their obligations under the covenants contained in
Sections 4.03, 4.04, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16 and 4.18
hereof and clauses (4) and (5) of Section 5.01(a), Sections 5.01(c) and 5.01(d) 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 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(3), 6.01(4), 6.01(5), 6.01(6) (solely with respect to
Restricted Subsidiaries that are Significant Subsidiaries), 6.01(7) (solely with respect to
Restricted Subsidiaries that are Significant Subsidiaries) and 6.01(8) hereof shall not constitute
Events of Default.
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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
(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 such 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 the Senior Credit Facilities or any other
material agreement or instrument (other than this Indenture) to which the Issuer or any
Guarantor is a party or by which the Issuer or any 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
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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 any 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 Indenture, to the payment, either directly or through any Paying Agent (including
the Issuer or a 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
Additional Interest, if any, 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 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(a) 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 and Additional Interest, if any, or interest on any
Note and remaining unclaimed for two years after such principal, and premium and Additional
Interest, if any, 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.
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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 8.02 or 8.03 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 Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or 8.03
hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.02 or 8.03 hereof, as the case may be;
provided
that, if the
Issuer makes any payment of principal of, premium and Additional Interest, if any, 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, any Guarantor (with respect to a Guarantee or
this Indenture) and the Trustee may amend or supplement this Indenture, any Guarantee, any Security
Document or Notes without the consent of any Holder:
(1) to cure any ambiguity, omission, mistake, defect or inconsistency;
(2) to provide for uncertificated Notes of such series in addition to or in place of
certificated Notes;
(3) to comply with Section 5.01 hereof;
(4) to provide for the assumption of the Issuers or any Guarantors obligations to the
Holders;
(5) to make any change that would provide any additional rights or benefits to the
Holders or that does not adversely affect the legal rights under this Indenture of any such
Holder;
(6) to add covenants for the benefit of the Holders or to surrender any right or power
conferred upon the Issuer or any Guarantor;
(7) to comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the Trust Indenture Act;
(8) to evidence and provide for the acceptance and appointment under this Indenture of
a successor Trustee thereunder pursuant to the requirements thereof;
(9) to provide for the issuance of Exchange Notes or private exchange notes, which are
identical to Exchange Notes except that they are not freely transferable;
(10) to add a Guarantor under this Indenture;
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(11) to conform the text of this Indenture, the Security Documents, Guarantees or the
Notes to any provision of the Description of Notes section of the Offering Memorandum to
the extent that such provision in such Description of Notes section was intended to be a
verbatim recitation of a provision of this Indenture, the Security Documents, Guarantee or
Notes;
(12) to make any amendment to the provisions of this Indenture relating to the transfer
and legending of Notes as permitted by this Indenture, including, without limitation to
facilitate the issuance and administration of the Notes;
provided
,
however
,
that (i) compliance with this 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;
(13) to mortgage, pledge, hypothecate or grant any other Lien in favor of the Trustee
for the benefit of the Holders of the Notes, as additional security for the payment and
performance of all or any portion of the Obligations, in any property or assets, including
any which are required to be mortgaged, pledged or hypothecated, or in which a Lien is
required to be granted to or for the benefit of the Trustee or the Collateral Agent pursuant
to this Indenture, any of the Security Documents or otherwise;
(14) to release Collateral from the Lien of this Indenture and the Security Documents
when permitted or required by the Security Documents or this Indenture; or
(15) in the event that PIK Notes are issued in certificated form, to make appropriate
amendments to this Indenture to reflect an appropriate minimum denomination of certificated
PIK Notes and establish minimum redemption amounts for certificated PIK Notes.
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 Guarantors in the execution of any amended or supplemental indenture authorized or
permitted by the terms of this 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
Indenture or otherwise. Notwithstanding the foregoing, no Opinion of Counsel shall be required in
connection with the addition of a Guarantor under this Indenture upon execution and delivery by
such Guarantor and the Trustee of a supplemental indenture to this Indenture, the form of which is
attached as
Exhibit D
hereto, and delivery of an Officers Certificate.
Section 9.02
With Consent of Holders of Notes
.
Except as provided below in this Section 9.02, the Issuer and the Trustee may amend or
supplement this Indenture, the Notes, the Guarantees and any Security Document 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 and Additional Interest, if any, or
interest on the Notes, except a payment default resulting from an acceleration that has been
rescinded) or compliance with any provision of this Indenture, the Guarantees, the Security
Documents 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
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offer for, or purchase
of, the Notes);
provided
,
however
, that if any amendment, waiver or other
modification will affect only the Cash-Pay Notes or Toggle Notes, only the consent of the Holders
of at least a majority in principal amount of the then outstanding Cash-Pay Notes or Toggle Notes
(and not the consent of at least a majority of all Notes), as the case may be, shall be required. 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 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) reduce the principal amount of such Notes whose Holders must consent to an
amendment, supplement or waiver;
(2) reduce the principal of or change the fixed final maturity of any such Note or
alter or waive the provisions with respect to the redemption of such Notes (other than
provisions relating to Section 3.09, Section 3.10, Section 4.11 and Section 4.15 hereof to
the extent that any such amendment or waiver does not have the effect of reducing the
principal of or changing the fixed final maturity of any such Note or altering or waiving
the provisions with respect to the redemption of such Notes);
(3) reduce the rate of or change the time for payment of interest on any Note;
(4) waive a Default in the payment of principal of or premium, if any, or interest on
the Notes, except a rescission of acceleration of the Notes by the Holders of at least a
majority in aggregate principal amount of the Notes and a waiver of the payment default that
resulted from such acceleration, or in respect of a covenant or provision contained in this
Indenture or any Guarantee which cannot be amended or modified without the consent of all
Holders;
(5) make any Note payable in money other than that stated therein;
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(6) make any change in the provisions of this Indenture relating to waivers of past
Defaults or the rights of Holders to receive payments of principal of or premium, if any, or
interest on the Notes;
(7) make any change in these amendment and waiver provisions;
(8) impair the right of any Holder to receive payment of principal of, or interest on
such Holders Notes on or after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to such Holders Notes;
(9) make any change to or modify the ranking of the Notes or the subordination of the
Liens with respect to the Notes that would adversely affect the Holders; or
(10) except as expressly permitted by this Indenture, modify the Guarantees of any
Significant Subsidiary in any manner adverse to the Holders of the Notes.
In addition, without the consent of at least 75% in aggregate principal amount of Notes then
outstanding, an amendment, supplement or waiver may not:
(1) modify any Security Document or the provisions of this Indenture dealing with the
Security Documents or application of trust moneys, or otherwise release any Collateral, in
any manner materially adverse to the Holders other than in accordance with this Indenture,
the Security Documents and the Intercreditor Agreements; or
(2) modify any Intercreditor Agreement in any manner materially adverse to the Holders
other than in accordance with this Indenture, the Security Documents and the Intercreditor
Agreements.
Section 9.03
Compliance with Trust Indenture Act
.
Every amendment or supplement to this 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.
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.
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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 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 14.04 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 Indenture and that such amendment, supplement or
waiver is the legal, valid and binding obligation of the Issuer and any Guarantors party thereto,
enforceable against them in accordance with its terms, subject to customary exceptions, and
complies with the provisions hereof (including Section 9.03). Notwithstanding the foregoing, no
Opinion of Counsel will be required for the Trustee to execute any amendment or supplement adding a
new Guarantor under this Indenture.
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
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
RANKING OF NOTE LIENS
Section 10.01
Relative Rights
.
The Intercreditor Agreements define the relative rights, as lienholders, of holders of ABL
Obligations, Junior Lien Obligations and First Lien Obligations. Nothing in this Indenture or the
Intercreditor Agreements will:
(a) impair, as between the Issuer and Holders of each series of Notes, the obligation
of the Issuer, which is absolute and unconditional, to pay principal of, premium and
interest on such series of Notes in accordance with their terms or to perform any other
obligation of the Issuer or any Guarantor under this Indenture, the Notes, the Guarantees
and the Security Documents;
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(b) restrict the right of any Holder to sue for payments that are then due and owing,
in a manner not inconsistent with the provisions of the Intercreditor Agreements;
(c) prevent the Trustee, the Collateral Agent or any Holder from exercising against the
Issuer or any Guarantor any of its other available remedies upon a Default or Event of
Default (other than its rights as a secured party, which are subject to the Intercreditor
Agreements); or
(d) restrict the right of the Trustee, the Collateral Agent or any Holder:
(i) to file and prosecute a petition seeking an order for relief in an
involuntary bankruptcy case as to the Issuer or any Guarantor or otherwise to
commence, or seek relief commencing, any Insolvency or Liquidation Proceeding
involuntarily against the Issuer or any Guarantor;
(ii) to make, support or oppose any request for an order for dismissal,
abstention or conversion in any Insolvency or Liquidation Proceeding;
(iii) to make, support or oppose, in any Insolvency or Liquidation Proceeding,
any request for an order extending or terminating any period during which the debtor
(or any other Person) has the exclusive right to propose a plan of reorganization or
other dispositive restructuring or liquidation plan therein;
(iv) to seek the creation of, or appointment to, any official committee
representing creditors (or certain of the creditors) in any Insolvency or
Liquidation Proceeding and, if appointed, to serve and act as a member of such
committee without being in any respect restricted or bound by, or liable for, any of
the obligations under this Article 10;
(v) to seek or object to the appointment of any professional person to serve in
any capacity in any Insolvency or Liquidation Proceeding or to support or object to
any request for compensation made by any professional person or others therein;
(vi) to make, support or oppose any request for order appointing a trustee or
examiner in any Insolvency or Liquidation Proceeding; or
(vii) otherwise to make, support or oppose any request for relief in any
Insolvency or Liquidation Proceeding that it is permitted by law to make, support or
oppose:
(x) as if it were a holder of unsecured claims; or
(y) as to any matter relating to any plan of reorganization or other
restructuring or liquidation plan or as to any matter relating to the
administration of the estate or the disposition of the case or proceeding
(in each case set forth in this clause (vii) except as set forth in the
Intercreditor Agreements).
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ARTICLE 11
COLLATERAL
Section 11.01
Security Documents
.
The payment of the principal of and interest and premium, if any, on the Notes of each series
when due, whether on an interest payment date, at maturity, by acceleration, repurchase, redemption
or otherwise and whether by the Issuer pursuant to the Notes or by any Guarantor pursuant to its
Guarantee, the payment of all other Obligations and the performance of all other obligations of the
Issuer and the Guarantors under this Indenture, the Notes, the Guarantees and the Security
Documents are secured as provided in the Security Documents which the Issuer and the Guarantors
have entered into simultaneously with the execution of this Indenture and will be secured by
Security Documents hereafter delivered as required or permitted by this Indenture. The Issuer
shall, and shall cause each Guarantor to, and each Guarantor shall, do all filings (including
filings of continuation statements and amendments to Uniform Commercial Code financing statements
that may be necessary to continue the effectiveness of such Uniform Commercial Code financing
statements) and all other actions as are necessary or required by the Security Documents to
maintain (at the sole cost and expense of the Issuer and the Guarantors) the security interest
created by the Security Documents in the Collateral as a perfected security interest, subject only
to Liens permitted by this Indenture.
Section 11.02
Collateral Agent
.
(a) The Collateral Agent is authorized and empowered to appoint one or more co-Collateral
Agents as it deems necessary or appropriate.
(b) Subject to Section 7.01 hereof, Section 6.2 of the Security Agreement and Section 11 of
the Pledge Agreement, neither the Trustee nor the Collateral Agent nor any of their respective
officers, directors, employees, attorneys or agents will be responsible or liable for the
existence, genuineness, value or protection of any Collateral, for the legality, enforceability,
effectiveness or sufficiency of the Security Documents, for the creation, perfection, priority,
sufficiency or protection of any Junior Lien, or for any defect or deficiency as to any such
matters, or for any failure to demand, collect, foreclose or realize upon or otherwise enforce any
of the Junior Liens or Security Documents or any delay in doing so.
(c) The Collateral Agent will be subject to such directions as may be given it by the Trustee
from time to time (as required or permitted by this Indenture). Except as directed by the Trustee
as required or permitted by this Indenture and any other representatives, the Collateral Agent will
not be obligated:
(i) to act upon directions purported to be delivered to it by any other Person;
(ii) to foreclose upon or otherwise enforce any Junior Lien; or
(iii) to take any other action whatsoever with regard to any or all of the Junior
Liens, Security Documents or Collateral.
(d) The Collateral Agent will be accountable only for amounts that it actually receives as a
result of the enforcement of the Junior Liens or Security Documents.
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(e) In acting as Collateral Agent or co-Collateral Agent, the Collateral Agent and each
co-Collateral Agent may rely upon and enforce each and all of the rights, powers, immunities,
indemnities and benefits of the Trustee under Article 7 hereof.
(f) If the Issuer (i) incurs Priority Lien Obligations at any time when no Intercreditor
Agreement is in effect or at any time when Indebtedness constituting Priority Lien Obligations
entitled to the benefit of the Intercreditor Agreements is concurrently retired, and (ii) delivers
to the Collateral Agent an Officers Certificate so stating and requesting the Collateral Agent to
enter into an intercreditor agreement (on substantially the same terms as the Intercreditor
Agreements in effect on the Issue Date) in favor of a designated agent or representative for the
holders of the Priority Lien Obligations so incurred, the Collateral Agent shall (and is hereby
authorized and directed to) enter into such intercreditor agreement, bind the Holders on the terms
set forth therein and perform and observe its obligations thereunder.
Section 11.03
Authorization of Actions to Be Taken
.
(a) Each Holder of Notes of each such series, by its acceptance thereof, consents and agrees
to the terms of each Security Document and each Intercreditor Agreement, as originally in effect
and as amended, supplemented or replaced from time to time in accordance with its terms or the
terms of this Indenture, authorizes and directs the Trustee and the Collateral Agent to enter into
the Security Documents to which it is a party, authorizes and empowers the Trustee to direct the
Collateral Agent to enter into, and the Collateral Agent to execute and deliver, the Intercreditor
Agreements, and authorizes and empowers the Trustee and the Collateral Agent to bind the Holders of
Notes of each such series and other holders of Junior Lien Obligations as set forth in the Security
Documents to which it is a party and the Intercreditor Agreements and to perform its obligations
and exercise its rights and powers thereunder.
(b) The Collateral Agent and the Trustee are authorized and empowered to receive for the
benefit of the Holders of Notes of each series any funds collected or distributed under the
Security Documents to which the Collateral Agent or Trustee is a party and, subject to the terms of
the Security Documents, to make further distributions of such funds to the Holders of Notes of each
series according to the provisions of this Indenture.
(c) Subject to the provisions of Section 7.01, Section 7.02, and the Intercreditor Agreements,
the Trustee may, in its sole discretion and without the consent of the Holders, direct, on behalf
of the Holders, the Collateral Agent to take all actions it deems necessary or appropriate in order
to:
(i) foreclose upon or otherwise enforce any or all of the Junior Liens;
(ii) enforce any of the terms of the Security Documents to which the Collateral Agent
or Trustee is a party; or
(iii) collect and receive payment of any and all Obligations.
Subject to the Intercreditor Agreements and at the Issuers sole cost and expense, the Trustee
is authorized and empowered to institute and maintain, or direct the Collateral Agent to institute
and maintain, such suits and proceedings as it may deem reasonably expedient to protect or
enforce the Junior Liens or the Security Documents to which the Collateral Agent or Trustee is a
party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation
of the Security Documents to which the Collateral Agent or Trustee is a party or this Indenture,
and such suits and proceedings as the Trustee or the Collateral Agent may deem reasonably
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expedient, at the Issuers sole cost and expense, to preserve or protect its interests and the
interests of the Holders of Notes in the Collateral, including power to institute and maintain
suits or proceedings to restrain the enforcement of or compliance with any legislative or other
governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the
enforcement of, or compliance with, such enactment, rule or order would impair the security
interest hereunder or be prejudicial to the interests of Holders, the Trustee or the Collateral
Agent.
Section 11.04
Release of Collateral
.
(a) Collateral may be released from the Lien and security interest created by the Security
Documents at any time or from time to time in accordance with the provisions of the Security
Documents or the Intercreditor Agreements. In addition, upon the request of the Issuer pursuant to
an Officers Certificate and Opinion of Counsel certifying that all conditions precedent hereunder
have been met, the Issuer and the Guarantors will be entitled to the release of assets included in
the Collateral from the Liens securing the Notes, and the Collateral Agent and the Trustee (if the
Trustee is not then the Collateral Agent) shall release the same from such Liens at the Issuers
sole cost and expense, under any one or more of the following circumstances:
(1) to enable the Issuer to consummate the sale, transfer or other disposition of such
property or assets to the extent not prohibited under Section 4.11 hereof;
(2) the release of Excess Proceeds or Collateral Excess Proceeds that remain unexpended
after the conclusion of an Asset Sale Offer or a Collateral Asset Sale Offer conducted in
accordance with this Indenture;
(3) in the case of a Guarantor that is released from its Guarantee with respect to the
Notes pursuant to the terms of this Indenture, the release of the property and assets of
such Guarantor;
(4) with the consent of the holders of at least 75% of the aggregate principal amount
of the Notes then outstanding and affected thereby and a majority of all Junior Lien
Obligations (including the Notes) then outstanding and affected thereby (including, without
limitation, consents obtained in connection with a tender offer or exchange offer for, or
purchase of, Junior Lien Obligations); or
(5) as described in Article 9 hereof.
(b) The Junior Liens on any Collateral securing the Junior Lien Obligations will also
terminate and be released automatically if the Liens on such Collateral securing Priority Lien
Obligations are released by the First Lien Collateral Agent and, if applicable, the ABL Collateral
Agent on behalf of the Priority Lien Secured Parties, unless such release occurs in connection
with, and after giving effect to, a Discharge of First Lien Obligations and, if applicable, a
Discharge of ABL Obligations, which discharge is not in connection with a foreclosure of, or other
exercise of remedies with respect to, Collateral by the Priority Lien Secured Parties (such
discharge not in connection with any such foreclosure or exercise of remedies, a
Payment
Discharge
) (
provided
that, in the case of a Payment
Discharge, the Liens on any Collateral disposed of in satisfaction in whole or in part of
Priority Lien Obligations shall be automatically released but any proceeds thereof not used for
purposes of the Discharge of First Lien Obligations or the Discharge of ABL Obligations or
otherwise in accordance with this Indenture shall be subject to Liens in favor of the Junior Lien
Secured Parties). In the event of a Payment Discharge, the Junior Liens on Collateral shall become
first-priority security interests, subject to Permitted Liens, other Liens permitted under this
Indenture, any intercreditor agreements or arrangements among Junior Lien Secured Parties permitted
under the General Intercreditor Agreement and, with respect
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to Shared Receivables Collateral,
subject to the Shared Receivables Intercreditor Agreement;
provided
that if the Issuer or
the Guarantors incur at any time thereafter any new or replacement Priority Lien Obligations
permitted under this Indenture, then such Payment Discharge shall automatically be deemed not to
have occurred for all purposes of the General Intercreditor Agreement, the Shared Receivables
Intercreditor Agreement, the First Lien Documents, the ABL Facility and the Junior Lien Documents,
and such new Obligations shall automatically be treated as Priority Lien Obligations for all
purposes of the General Intercreditor Agreement and the Shared Receivables Intercreditor Agreement,
including for purposes of the Lien priorities and rights in respect of Collateral set forth
therein, and the related documents shall be treated as First Lien Documents or documents relating
to the ABL Facility, as the case may be.
(c) To the extent necessary and for so long as required for such Subsidiary not to be subject
to any requirement pursuant to Rule 3-16 of Regulation S-X under the Securities Act to file
separate financial statements with the SEC (or any other governmental agency), the Capital Stock of
any Subsidiary of the Issuer shall not be included in the Collateral with respect to the respective
Notes so affected and shall not be subject to the Liens securing such Notes and the Junior Lien
Obligations in accordance with and only to the extent provided in Section 2(d) of the Security
Agreement and Section 2 of the Pledge Agreement.
(d) The Junior Liens on the Collateral securing the Notes and the Guarantees also will be
released automatically upon (i) payment in full of the principal of, together with accrued and
unpaid interest (including Additional Interest, if any) on, the Notes and all other Obligations
under this Indenture, the Guarantees and the Security Documents that are due and payable at or
prior to the time such principal, together with accrued and unpaid interest (including Additional
Interest, if any), are paid or (ii) a legal defeasance or covenant defeasance under Article 8
hereof or a discharge under Article 13 hereof.
Section 11.05
Filing, Recording and Opinions
.
(a) The Issuer will comply with the provisions of Trust Indenture Act Sections 314(b) and
314(d), in each case following qualification of this Indenture pursuant to the Trust Indenture Act,
except to the extent not required as set forth in any SEC regulation or interpretation (including
any no-action letter issued by the Staff of the SEC, whether issued to the Issuer or any other
Person). Following such qualification, to the extent the Issuer is required to furnish to the
Trustee an Opinion of Counsel pursuant to Trust Indenture Act Section 314(b)(2), the Issuer will
furnish such opinion not more than 60 but not less than 30 days prior to each September 30.
(b) Any release of Collateral permitted by Section 11.04 hereof will be deemed not to impair
the Liens under this Indenture and the Security Documents in contravention thereof and any person
that is required to deliver an Officers Certificate or Opinion of Counsel pursuant to Section
314(d) of the Trust Indenture Act shall be entitled to rely upon the foregoing as a basis for
delivery of such certificate or opinion. The Trustee shall, to the extent permitted by Section
7.01 and 7.02 hereof,
accept as conclusive evidence of compliance with the foregoing provisions the appropriate
statements contained in such Officers Certificate or Opinion of Counsel.
(c) If any Collateral is released in accordance with this Indenture or any Security Document,
the Trustee will determine whether it has received all documentation required by Trust Indenture
Act Section 314(d) in connection with such release and, based on such determination and the Opinion
of Counsel delivered pursuant to Section 11.04(a), will, upon request, deliver a certificate to the
Collateral Agent and the Issuer setting forth such determination.
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(d) The Issuer shall provide the Officers Certificate required pursuant to Section 4.3(d) of
the Security Agreement within the period specified therein.
Section 11.06
Powers Exercisable by Receiver or Trustee
.
In case the Collateral shall be in the possession of a receiver or trustee, lawfully
appointed, the powers conferred in this Article 11 upon the Issuer or a Guarantor with respect to
the release, sale or other disposition of such property may be exercised by such receiver or
trustee, and an instrument signed by such receiver or trustee shall be deemed the equivalent of any
similar instrument of the Issuer or a Guarantor or of any officer or officers thereof required by
the provisions of this Article 11; and if the Trustee shall be in the possession of the Collateral
under any provision of this Indenture, then such powers may be exercised by the Trustee.
Section 11.07
Release upon Termination of the Issuers Obligations
.
In the event (i) that the Issuer delivers to the Trustee, in form and substance acceptable to
it, an Officers Certificate and Opinion of Counsel certifying that all the Obligations under this
Indenture, the Notes and the Security Documents have been satisfied and discharged by the payment
in full of the Issuers obligations under the Notes, this Indenture and the Security Documents, and
all such Obligations have been so satisfied, or (ii) a discharge, legal defeasance or covenant
defeasance of this Indenture occurs under Article 8 or 13, the Trustee shall deliver to the Issuer
and the Collateral Agent a notice stating that the Trustee, on behalf of the Holders, disclaims and
gives up any and all rights it has in or to the Collateral, and any rights it has under the
Security Documents, and upon receipt by the Collateral Agent of such notice, the Collateral Agent
shall be deemed not to hold a Lien in the Collateral on behalf of the Trustee and shall do or cause
to be done, at the Issuers sole cost and expense, all acts reasonably necessary to release such
Lien as soon as is reasonably practicable.
Section 11.08
Designations
.
Except as provided in the next sentence, for purposes of the provisions hereof and the
Intercreditor Agreements requiring the Issuer to designate Indebtedness for the purposes of the
terms ABL Obligations, First Lien Obligations and other Junior Lien Obligations or any other such
designations hereunder or under the Intercreditor Agreements, any such designation shall be
sufficient if the relevant designation provides in writing that such ABL Obligations, First Lien
Obligations or other Junior Lien Obligations are permitted under this Indenture and is signed on
behalf of the Issuer by an Officer and delivered to the Trustee, the Collateral Agent, the First
Lien Collateral Agent and the ABL Collateral
Agent. For all purposes hereof and the Intercreditor Agreements, the Issuer hereby designates
the Obligations pursuant to the Senior Credit Facilities as in effect on the Issue Date as Priority
Lien Obligations.
ARTICLE 12
GUARANTEES
Section 12.01
Guarantee
.
Subject to this Article 12, each of the Guarantors hereby, jointly and severally, fully and
unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and
to the Trustee and its successors and assigns, irrespective of the validity and enforceability of
this Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that: (a) the
principal of, interest, premium and Additional Interest, if any, on the Notes shall be promptly
paid in full when due, whether at maturity,
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by acceleration, redemption or otherwise, and interest
on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations
of the Issuer to the Holders or the Trustee hereunder or thereunder shall be promptly paid in full
or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension
of time of payment or renewal of any Notes or any of such other obligations, that same shall be
promptly paid in full when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise. Failing payment when due of any
amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors shall be
jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.
The Guarantors hereby agree that their obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with
respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any
action to enforce the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest,
notice and all demands whatsoever and covenants that this Guarantee shall not be discharged except
by complete performance of the obligations contained in the Notes and this Indenture.
Each Guarantor also agrees to pay any and all costs and expenses (including reasonable
attorneys fees) incurred by the Trustee or any Holder in enforcing any rights under this Section
12.01.
If any Holder or the Trustee is required by any court or otherwise to return to the Issuer,
the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation
to either the Issuer or the Guarantors, any amount paid either to the Trustee or such Holder, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to
the Holders in respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on
the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes
of this Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such
obligations as provided in Article 6 hereof, such obligations (whether or not due and payable)
shall forthwith become due and payable by the Guarantors for the purpose of this Guarantee. The
Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the
exercise of such right does not impair the rights of the Holders under the Guarantees.
Each 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 Guarantees,
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
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extent permitted by law, be
reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or
returned.
In case any provision of any Guarantee 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.
The Guarantee issued by any Guarantor shall be a senior obligation of such Guarantor and will
be secured by a second-priority lien on the Non-Receivables Collateral and by a third-priority lien
on the Shared Receivables Collateral. The Guarantees shall rank equally in right of payment with
all existing and future Senior Indebtedness of the Guarantor but, to the extent of the value of the
Collateral, will be effectively senior to all of the Guarantors unsecured Senior Indebtedness and,
to the extent of the Collateral, will be effectively subordinated to the Guarantors Obligations
under the Senior Credit Facilities and any future Priority Lien Obligations. The Guarantees will
be senior in right of payment to all existing and future Subordinated Indebtedness of each
Guarantor. The Notes will be structurally subordinated to Indebtedness and other liabilities of
Subsidiaries of the Issuer that do not Guarantee the Notes.
Each payment to be made by a Guarantor in respect of its Guarantee shall be made without
set-off, counterclaim, reduction or diminution of any kind or nature.
Section 12.02
Limitation on Guarantor Liability
.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the
intention of all such parties that the Guarantee of such Guarantor 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 any
Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors
hereby irrevocably agree that the obligations of each Guarantor shall be limited to the maximum
amount as will, after giving effect to such maximum amount and all other contingent and fixed
liabilities of such Guarantor that are relevant under such laws and after giving effect to any
collections from, rights to receive contribution from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under this Article 12, result in
the obligations of such Guarantor under its Guarantee not
constituting a fraudulent conveyance or fraudulent transfer under applicable law. Each
Guarantor that makes a payment under its Guarantee shall be entitled upon payment in full of all
guaranteed obligations under this Indenture to a contribution from each other Guarantor in an
amount equal to such other Guarantors
pro rata
portion of such payment based on the respective net
assets of all the Guarantors at the time of such payment determined in accordance with GAAP.
Section 12.03
Execution and Delivery
.
To evidence its Guarantee set forth in Section 12.01 hereof, each Guarantor hereby agrees that
this Indenture shall be executed on behalf of such Guarantor by its President, one of its Vice
Presidents or one of its Assistant Vice Presidents.
Each Guarantor hereby agrees that its Guarantee set forth in Section 12.01 hereof shall remain
in full force and effect notwithstanding the absence of the endorsement of any notation of such
Guarantee on the Notes.
If an Officer whose signature is on this Indenture no longer holds that office at the time the
Trustee authenticates the Note, the Guarantee shall be valid nevertheless.
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The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Guarantee set forth in this Indenture on behalf of the Guarantors.
If required by Section 4.16 hereof, the Issuer shall cause any newly created or acquired
Restricted Subsidiary to comply with the provisions of Section 4.16 hereof and this Article 12, to
the extent applicable.
Section 12.04
Subrogation.
Each Guarantor shall be subrogated to all rights of Holders of Notes against the Issuer in
respect of any amounts paid by any Guarantor pursuant to the provisions of Section 12.01 hereof;
provided
that, if an Event of Default has occurred and is continuing, no Guarantor shall be
entitled to enforce or receive any payments arising out of, or based upon, such right of
subrogation until all amounts then due and payable by the Issuer under this Indenture or the Notes
shall have been paid in full.
Section 12.05
Benefits Acknowledged
.
Each Guarantor acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by this Indenture and that the guarantee and waivers made by it
pursuant to its Guarantee are knowingly made in contemplation of such benefits.
Section 12.06
Release of Guarantees
.
A Guarantee by a Guarantor shall be automatically and unconditionally released and discharged,
and no further action by such Guarantor, the Issuer or the Trustee is required for the release of
such Guarantors Guarantee, upon:
(1) (A) any sale, exchange or transfer (by merger or otherwise) of the Capital Stock
of such Guarantor (including any sale, exchange or transfer), after which the applicable
Guarantor is no longer a Restricted Subsidiary or all or substantially all the assets of
such Guarantor which sale, exchange or transfer is made in compliance with the applicable
provisions of this Indenture;
(B) the release or discharge of the guarantee by such Guarantor of the Senior Credit
Facilities or such other guarantee that resulted in the creation of such Guarantee, except a
discharge or release by or as a result of payment under such guarantee;
(C) the designation of any Restricted Subsidiary that is a Guarantor as an Unrestricted
Subsidiary in compliance with Section 4.07 hereof and the definition of Unrestricted
Subsidiary hereunder; or
(D) the exercise by Issuer of its Legal Defeasance option or Covenant Defeasance option
in accordance with Article 8 hereof or the Issuers obligations under this Indenture being
discharged in accordance with the terms of this Indenture; and
(2) such Guarantor delivering to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for in this Indenture relating
to such transaction have been complied with.
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ARTICLE 13
SATISFACTION AND DISCHARGE
Section 13.01
Satisfaction and Discharge
.
This Indenture shall be discharged and shall cease to be of further effect as to all Notes,
when either:
(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 any 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 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 the Senior Credit Facilities or any other material agreement or
instrument (other than this Indenture) to which the Issuer or any Guarantor is a party or by
which the Issuer or any Guarantor 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
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 Indenture, if money shall have been
deposited with the Trustee pursuant to subclause (A) of clause (2) of this Section 13.01, the
provisions of Section 13.02 and Section 8.06 hereof shall survive.
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Section 13.02
Application of Trust Money
.
Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee
pursuant to Section 13.01 hereof shall be held in trust and applied by it, in accordance with the
provisions of the Notes and this 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 and Additional Interest, 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.
If the Trustee or Paying Agent is unable to apply any money or Government Securities in
accordance with Section 13.01 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 any Guarantors obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to Section 13.01 hereof;
provided
that if the Issuer has made any payment of principal of, premium and Additional
Interest, if any, 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 14
MISCELLANEOUS
Section 14.01
Trust Indenture Act Controls
.
If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by
Trust Indenture Act Section 318(c), the imposed duties shall control.
Section 14.02
Notices.
Any notice or communication by the Issuer, any 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 and/or any Guarantor:
c/o HCA Inc.
One Park Plaza
Nashville, Tennessee 37203
Fax No.: (615) 344-1531
Attention: General Counsel
If to the Trustee:
The Bank of New York
101 Barclay Street
Corporate Trust Administration Floor 8W
New York, New York 10286
Fax No.: (212) 815-5704
Attention: HCA Trustee
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The Issuer, any 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 14.03
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 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 14.04
Certificate and Opinion as to Conditions Precedent
.
(a) Upon any request or application by the Issuer or any of the Guarantors to the Trustee to
take any action under this Indenture, the Issuer or such Guarantor, as the case may be, shall
furnish to the Trustee:
(b) An Officers Certificate in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 14.05 hereof) stating that, in the opinion
of the signers, all conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(c) An Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which
shall include the statements set forth in Section 14.05 hereof) stating that, in the opinion of
such counsel, all such conditions precedent and covenants have been satisfied.
Section 14.05
Statements Required in Certificate or Opinion
.
Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to Section 4.04 hereof or Trust
Indenture Act Section 314(a)(4)) shall comply with the provisions of Trust Indenture Act Section
314(e) and shall include:
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(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 14.06
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 14.07
No Personal Liability of Directors, Officers, Employees and Stockholders
.
No director, officer, employee, incorporator or stockholder of the Issuer or any Guarantor or
any of their parent companies (other than the Issuer and the Guarantors) shall have any liability
for any obligations of the Issuer or the Guarantors under the Notes, the Guarantees or this
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 14.08
Governing Law
.
THIS INDENTURE, THE NOTES AND ANY GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
Section 14.09
Waiver of Jury Trial
.
EACH OF THE ISSUER, THE GUARANTORS 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 OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 14.10
Force Majeure
.
In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations under this 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.
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Section 14.11
No Adverse Interpretation of Other Agreements
.
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the
Issuer or its Restricted Subsidiaries or of any other Person. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
Section 14.12
Successors
.
All agreements of the Issuer in this Indenture and the Notes shall bind its successors. All
agreements of the Trustee in this Indenture shall bind its successors. All agreements of each
Guarantor in this Indenture shall bind its successors, except as otherwise provided in Section
12.06 hereof.
Section 14.13
Severability
.
In case any provision in this 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 14.14
Counterpart Originals
.
The parties may sign any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
Section 14.15
Table of Contents, Headings, etc
.
The Table of Contents, Cross-Reference Table and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be considered a part of
this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
Section 14.16
Qualification of Indenture
.
The Issuer and the Guarantors shall qualify this Indenture under the Trust Indenture Act in
accordance with 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
Guarantors and the Trustee) incurred in connection therewith, including, but not limited to, costs
and expenses of qualification of this Indenture and the Notes and printing this Indenture and the
Notes. The Trustee shall be entitled to receive from the Issuer and the Guarantors any such Officers Certificates,
Opinions of Counsel or other documentation as it may reasonably request in connection with any such
qualification of this Indenture under the Trust Indenture Act.
[Signatures on following pages]
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HCA INC.
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By:
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/s/ R. Milton Johnson
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Name:
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R. Milton Johnson
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Title:
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Executive Vice President and Chief
Financial Officer
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Signature Page to Indenture
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Each of the GUARANTORS
listed on Schedule I hereto
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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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Vice President and Treasurer
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Signature Page to Indenture
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THE BANK OF NEW YORK
as Trustee
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By:
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/s/ Mary LaGumina
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Name:
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Mary LaGumina
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Title:
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Vice President
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SCHEDULE I
Guarantors
BAY HOSPITAL, INC.
BRIGHAM CITY COMMUNITY HOSPITAL, INC.
BROOKWOOD MEDICAL CENTER OF GULFPORT, INC.
CAPITAL DIVISION, INC.
CENTERPOINT MEDICAL CENTER OF INDEPENDENCE, LLC
CENTRAL FLORIDA REGIONAL HOSPITAL, INC.
CENTRAL SHARED SERVICES, LLC
CENTRAL TENNESSEE HOSPITAL CORPORATION
CHCA BAYSHORE, L.P.
CHCA CONROE, L.P.
CHCA EAST HOUSTON, L.P.
CHCA MAINLAND, L.P.
CHCA WEST HOUSTON, L.P.
CHCA WOMANS HOSPITAL, L.P.
CHIPPENHAM & JOHNSTON-WILLIS HOSPITALS, INC.
CMS GP, LLC
COLORADO HEALTH SYSTEMS, INC.
COLUMBIA ASC MANAGEMENT, L.P.
COLUMBIA JACKSONVILLE HEALTHCARE SYSTEM, INC.
COLUMBIA LAGRANGE HOSPITAL, INC.
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 NORTH HILLS HOSPITAL SUBSIDIARY, L.P.
COLUMBIA OGDEN MEDICAL CENTER, INC.
COLUMBIA PARKERSBURG HEALTHCARE SYSTEM, LLC
COLUMBIA PLAZA MEDICAL CENTER OF FORT WORTH SUBSIDIARY, L.P.
COLUMBIA POLK GENERAL HOSPITAL, INC.
COLUMBIA RIO GRANDE HEALTHCARE, L.P.
COLUMBIA RIVERSIDE, INC.
COLUMBIA VALLEY HEALTHCARE SYSTEM, L.P.
COLUMBIA/ALLEGHANY REGIONAL HOSPITAL INCORPORATED
COLUMBIA/HCA JOHN RANDOLPH, INC.
COLUMBINE PSYCHIATRIC CENTER, INC.
COLUMBUS CARDIOLOGY, INC.
CONROE HOSPITAL CORPORATION
DALLAS/FT. WORTH PHYSICIAN, LLC
DAUTERIVE HOSPITAL CORPORATION
DUBLIN COMMUNITY HOSPITAL, LLC
EASTERN IDAHO HEALTH SERVICES, INC.
EDMOND REGIONAL MEDICAL CENTER, LLC
EDWARD WHITE HOSPITAL, INC.
EL PASO SURGICENTER, INC.
ENCINO HOSPITAL CORPORATION, INC.
EP HEALTH, LLC
FAIRVIEW PARK GP, LLC
FAIRVIEW PARK, LIMITED PARTNERSHIP
FRANKFORT HOSPITAL, INC.
GALEN PROPERTY, LLC
GENERAL HEALTHSERV, LLC
GOOD SAMARITAN HOSPITAL, L.P.
GOPPERT-TRINITY FAMILY CARE, LLC
GPCH-GP, INC.
GRAND STRAND REGIONAL MEDICAL CENTER, LLC
GREEN OAKS HOSPITAL SUBSIDIARY, L.P.
GREENVIEW HOSPITAL, INC.
HAMILTON MEDICAL CENTER, INC.
HCA CENTRAL GROUP, INC.
HCA HEALTH SERVICES OF FLORIDA, INC.
HCA HEALTH SERVICES OF LOUISIANA, INC.
HCA HEALTH SERVICES OF OKLAHOMA, INC.
HCA HEALTH SERVICES OF TENNESSEE, INC.
HCA HEALTH SERVICES OF VIRGINIA, INC.
HCA MANAGEMENT SERVICES, L.P.
HD&S CORP. SUCCESSOR, INC.
HEALTH MIDWEST OFFICE FACILITIES CORPORATION
HEALTH MIDWEST VENTURES GROUP, INC.
HEALTHTRUST MOB, LLC
HENDERSONVILLE HOSPITAL CORPORATION
HOSPITAL CORPORATION OF NORTH CAROLINA
HOSPITAL CORPORATION OF TENNESSEE
HOSPITAL CORPORATION OF UTAH
HOSPITAL DEVELOPMENT PROPERTIES, INC.
HSS HOLDCO, LLC
HSS SYSTEMS VA, LLC
HSS SYSTEMS, LLC
HSS VIRGINIA, L.P.
HTI MEMORIAL HOSPITAL CORPORATION
INTEGRATED REGIONAL LAB, LLC
INTEGRATED REGIONAL LABORATORIES, LLP
JFK MEDICAL CENTER LIMITED PARTNERSHIP
KPH-CONSOLIDATION, INC.
LAKELAND MEDICAL CENTER, LLC
LAKEVIEW MEDICAL CENTER, LLC
LARGO MEDICAL CENTER, INC.
LAS VEGAS SURGICARE, INC.
LAWNWOOD MEDICAL CENTER, INC.
LEWIS-GALE HOSPITAL, INCORPORATED
LEWIS-GALE MEDICAL CENTER, LLC
LEWIS-GALE PHYSICIANS, LLC
LOS ROBLES REGIONAL MEDICAL CENTER
MANAGEMENT SERVICES HOLDINGS, INC.
MARIETTA SURGICAL CENTER, INC.
MARION COMMUNITY HOSPITAL, INC.
MCA INVESTMENT COMPANY
MEDICAL CENTERS OF OKLAHOMA, LLC
MEDICAL OFFICE BUILDINGS OF KANSAS, LLC
MEMORIAL HEALTHCARE GROUP, INC.
MIDWEST DIVISION ACH, LLC
MIDWEST DIVISION LRHC, LLC
MIDWEST DIVISION LSH, LLC
MIDWEST DIVISION MCI, 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 HOLDINGS, INC.
MONTGOMERY REGIONAL HOSPITAL, INC.
MOUNTAIN VIEW HOSPITAL, INC.
NASHVILLE SHARED SERVICES GENERAL PARTNERSHIP
NATIONAL PATIENT ACCOUNT SERVICES, INC.
NEW PORT RICHEY HOSPITAL, INC.
NEW ROSE HOLDING COMPANY, INC.
NORTH FLORIDA IMMEDIATE CARE CENTER, INC.
NORTH FLORIDA REGIONAL MEDICAL CENTER, INC.
NORTHERN UTAH HEALTHCARE CORPORATION
NORTHERN VIRGINIA COMMUNITY HOSPITAL, LLC
NORTHLAKE MEDICAL CENTER, LLC
NOTAMI HOSPITALS OF LOUISIANA, INC.
NOTAMI HOSPITALS, LLC
OKALOOSA HOSPITAL, INC.
OKEECHOBEE HOSPITAL, INC.
OUTPATIENT CARDIOVASCULAR CENTER OF CENTRAL FLORIDA, LLC
PALMS WEST HOSPITAL LIMITED PARTNERSHIP
PALMYRA PARK HOSPITAL, INC.
PLANTATION GENERAL HOSPITAL, L.P.
PULASKI COMMUNITY HOSPITAL, INC.
REDMOND PARK HOSPITAL, LLC
REDMOND PHYSICIAN PRACTICE COMPANY
REDMOND PHYSICIAN PRACTICE VIII, LLC
RESTON HOSPITAL CENTER, LLC
RETREAT HOSPITAL, INC.
RIO GRANDE REGIONAL HOSPITAL, INC.
RIVERSIDE HEALTHCARE SYSTEM, L.P.
RIVERSIDE HOSPITAL, INC.
SAMARITAN, LLC
SAN JOSE HEALTHCARE SYSTEM, LP
SAN JOSE HOSPITAL, L.P.
SAN JOSE MEDICAL CENTER, LLC
SAN JOSE, LLC
SARASOTA DOCTORS HOSPITAL, INC.
SJMC, LLC
SOUTHERN HILLS MEDICAL CENTER, LLC
SPOTSYLVANIA MEDICAL CENTER, INC.
SPRING BRANCH MEDICAL CENTER, INC.
SPRING HILL HOSPITAL, INC.
ST. MARKS LONE PEAK HOSPITAL, INC.
SUN CITY HOSPITAL, INC.
SUNBELT REGIONAL MEDICAL CENTER, INC.
SUNRISE MOUNTAINVIEW HOSPITAL, INC.
SURGICARE OF BRANDON, INC.
SURGICARE OF FLORIDA, INC.
SURGICARE OF HOUSTON WOMENS, INC.
SURGICARE OF MANATEE, INC.
SURGICARE OF NEWPORT RICHEY, INC.
SURGICARE OF PALMS WEST, LLC
SURGICARE OF RIVERSIDE, LLC
TALLAHASSEE MEDICAL CENTER, INC.
TCMC MADISON-PORTLAND, INC.
TERRE HAUTE HOSPITAL GP, INC.
TERRE HAUTE HOSPITAL HOLDINGS, INC.
TERRE HAUTE MOB, L.P.
TERRE HAUTE REGIONAL HOSPITAL, L.P.
TIMPANOGOS REGIONAL MEDICAL SERVICES, INC.
TRIDENT MEDICAL CENTER, LLC
UTAH MEDCO, LLC
VH HOLDCO, INC.
VH HOLDINGS, INC.
VIRGINIA PSYCHIATRIC COMPANY, INC.
W & C HOSPITAL, INC.
WALTERBORO COMMUNITY HOSPITAL, INC.
WESLEY MEDICAL CENTER, LLC
WEST FLORIDA REGIONAL MEDICAL CENTER, INC.
WEST VALLEY MEDICAL CENTER, INC.
WESTERN PLAINS CAPITAL, INC.
WHMC, INC.
WOMANS HOSPITAL OF TEXAS, INCORPORATED
WOMENS AND CHILDRENS HOSPITAL, INC.
EXHIBIT A-1
[Face of 2014 Cash-Pay Note]
[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the provisions of the
Indenture]
[Insert the Regulation S Temporary Global Note Legend, if applicable pursuant to the
provisions of the Indenture]
A-1-1
CUSIP [ ]
ISIN [ ]
1
[[RULE 144A][REGULATION S] GLOBAL NOTE
representing up to
$[______________]
9 1/8% Senior Secured Notes due 2014
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 November 15, 2014.
Interest Payment Dates: May 15 and November 15
Record Dates: May 1 and November 1
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1
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Rule 144A Note CUSIP: 404119 AS 8
Rule 144A Note ISIN: US404119AS83
Regulation S Note CUSIP: U24788 AA 6
Regulation S Note ISIN: USU24788AA66
Exchange Note CUSIP: 404119 AU 3
Exchange Note ISIN: US404119AU30
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A-1-2
IN WITNESS HEREOF, the Issuer has caused this instrument to be duly executed.
Dated: November 17, 2006
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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-1-3
This is one of the 2014 Cash-Pay Notes referred to in the within-mentioned Indenture:
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THE BANK OF NEW YORK,
as Trustee
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By:
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Authorized Signatory
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A-1-4
[Back of 2014 Cash-Pay Note]
9 1/8% Senior Secured Notes due 2014
Capitalized terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.
1. INTEREST. HCA Inc., a Delaware corporation, promises to pay interest on the principal
amount of this 2014 Cash-Pay Note at 9 1/8% per annum from November 17, 2006 until maturity and
shall pay the Additional Interest, if any, payable pursuant to the Registration Rights Agreement
referred to below. The Issuer will pay interest and Additional Interest, if any, semi-annually in
arrears on May 15 and November 15 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 2014
Cash-Pay 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 May 15, 2007. 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 2014 Cash-Pay Notes; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Additional Interest, if any, (without regard to any applicable grace periods) from
time to time on demand at the interest rate on the 2014 Cash-Pay 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 2014 Cash-Pay Notes and Additional
Interest, if any, to the Persons who are registered Holders of 2014 Cash-Pay Notes at the close of
business on the May 1 or November 1 (whether or not a Business Day), as the case may be, next
preceding the Interest Payment Date, even if such 2014 Cash-Pay Notes are canceled after such
record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the
Indenture with respect to defaulted interest. Payment of interest and Additional Interest, if any,
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 and Additional Interest, if any, 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, The Bank of New York, the Trustee under the
Indenture, 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. INDENTURE. The Issuer issued the 2014 Cash-Pay Notes under an Indenture, dated as of
November 17, 2006 (the
Indenture
), among HCA Inc., the Guarantors named therein and the
Trustee. This 2014 Cash-Pay Note is one of a duly authorized issue of notes of the Issuer
designated as its 9 1/8% Senior Secured Notes due 2014. The Issuer shall be entitled to issue
Additional 2014 Cash-Pay Notes pursuant to Sections 2.01 and 4.10 of the Indenture. The 2014
Cash-Pay Notes (including any Exchange Notes issued in exchange therefor), 2016 Cash-Pay Notes
(including any Exchange Notes issued in exchange therefor) and the Toggle Notes issued under the
Indenture (including any Exchange Notes issued in exchange therefor) (collectively, referred to
herein as the
Notes
) are separate series of Notes, but shall be treated as a single class
of securities under the Indenture, unless otherwise specified in the Indenture. The terms of the
2014 Cash-Pay Notes include those stated in the Indenture and those
A-1-5
made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (the
Trust Indenture Act
). The 2014 Cash-Pay Notes are subject to all such terms, and Holders
are referred to the Indenture and such Act for a statement of such terms. To the extent any
provision of this 2014 Cash-Pay Note conflicts with the express provisions of the Indenture, the
provisions of the Indenture shall govern and be controlling.
5. OPTIONAL REDEMPTION.
(a) Except as set forth below, the Issuer will not be entitled to redeem 2014 Cash-Pay Notes
at its option prior to November 15, 2010.
(b) At any time prior to November 15, 2010, the Issuer may redeem all or a part of the 2014
Cash-Pay Notes, upon not less than 30 nor more than 60 days prior notice mailed by first-class
mail to the registered address of each Holder of 2014 Cash-Pay Notes or otherwise in accordance
with the procedures of DTC, at a redemption price equal to 100% of the principal amount of the 2014
Cash-Pay Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest and
Additional Interest, if any, to the date of redemption (the
Redemption Date
), subject to the
rights of Holders of 2014 Cash-Pay Notes on the relevant record date to receive interest due on the
relevant interest payment date.
(c) On and after November 15, 2010, the Issuer may redeem the 2014 Cash-Pay Notes, in whole or
in part, upon not less than 30 nor more than 60 days prior notice mailed by first-class mail to
the registered address of each Holder of 2014 Cash-Pay Notes or otherwise in accordance with the
procedures of DTC, at the redemption prices (expressed as percentages of principal amount of the
2014 Cash-Pay Notes to be redeemed) set forth below, plus accrued and unpaid interest thereon and
Additional Interest, if any, to the applicable Redemption Date, subject to the right of Holders of
2014 Cash-Pay Notes of record on the relevant record date to receive interest due on the relevant
interest payment date, if redeemed during the twelve-month period beginning on November 15 of each
of the years indicated below:
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Year
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Percentage
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2010
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104.563
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%
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2011
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102.281
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%
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2012 and thereafter
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100.000
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%
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(d) In addition, until November 15, 2009, the Issuer may, at its option, on one or more
occasions redeem up to 35% of the aggregate principal amount of 2014 Cash-Pay Notes at a redemption
price equal to 109.125% of the aggregate principal amount thereof, plus accrued and unpaid interest
thereon and Additional Interest, if any, to the applicable Redemption Date, subject to the right of
Holders of 2014 Cash-Pay Notes of record on the relevant Record Date to receive interest due on the
relevant Interest Payment Date, with the net cash proceeds of one or more Equity Offerings;
provided
that at least 50% of the sum of the original aggregate principal amount of 2014 Cash-Pay
Notes issued under the Indenture and the original principal amount of any Additional Notes that are
2014 Cash-Pay Notes issued under the Indenture after the Issue Date remains outstanding immediately
after the occurrence of each such redemption;
provided further
that each such redemption occurs
within 90 days of the date of closing of each such Equity Offering.
(e) 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.
A-1-6
(f) If the Issuer redeems less than all of the outstanding 2014 Cash-Pay Notes, the Trustee
shall select the 2014 Cash-Pay Notes to be redeemed in the manner described under Section 3.02 of
the Indenture.
(g) Any redemption pursuant to this paragraph 5 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 of the Indenture.
6. MANDATORY REDEMPTION. The Issuer shall not be required to make mandatory redemption or
sinking fund payments with respect to the 2014 Cash-Pay Notes.
7. NOTICE OF REDEMPTION. Subject to Section 3.03 of the 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 or Article 11 of the Indenture) to each Holder whose
2014 Cash-Pay Notes are to be redeemed at its registered address. 2014 Cash-Pay 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 2014 Cash-Pay Notes or portions thereof called for
redemption.
8. OFFERS TO REPURCHASE.
(a) 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 2014 Cash-Pay Notes at a purchase price
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest and
Additional Interest thereon, if any, to the date of purchase (the
Change of Control
Payment
). The Change of Control Offer shall be made in accordance with Section 4.15 of the
Indenture.
(b) If the Issuer or any of its Restricted Subsidiaries consummates an Asset Sale of
Collateral, within 10 Business Days of each date that the aggregate amount of Collateral Excess
Proceeds exceeds $200.0 million, the Issuer shall make an offer to all Holders of the Notes and, if
required by the terms of any Junior Lien Obligations which are not subordinated to the Notes or
Obligations secured by a Lien permitted under the Indenture (which Lien is not subordinate to the
Lien of the Notes with respect to the Collateral), to the holders of such Junior Lien Obligations
or such other Obligations (a
Collateral Asset Sale Offer
), to purchase the maximum
aggregate principal amount of the Notes and such Junior Lien Obligations or such other Obligations
that is a minimum of $2,000 or an integral multiple of $1,000 in excess thereof that may be
purchased out of the Collateral Excess Proceeds at an offer price in cash in an amount equal to
100% of the principal amount thereof, plus accrued and unpaid interest and Additional Interest, if
any, to the date fixed for the closing of such offer, in accordance with the procedures set forth
in the Indenture. To the extent that the aggregate amount of Notes and such Junior Lien
Obligations or Obligations secured by a Lien permitted by the Indenture (which Lien is not
subordinate to the Lien of the Notes with respect to the Collateral) tendered pursuant to a
Collateral Asset Sale Offer is less than the Collateral Excess Proceeds, the Issuer may use any
remaining Collateral Excess Proceeds for general corporate purposes, subject to other covenants
contained in the Indenture. If the aggregate principal amount of Notes or Junior Lien Obligations
or such other Obligations surrendered by such holders thereof exceeds the amount of Collateral
Excess Proceeds, the Trustee shall select the Notes and such Junior Lien Obligations or such other
Obligations to be purchased on a
pro rata
basis based on the accreted value or principal amount of
the Notes or such Junior Lien Obligations or such other Obligations tendered. Upon completion of
any such Collateral Asset Sale Offer, the amount of Collateral Excess Proceeds shall be reset at
zero.
A-1-7
(c) If the Issuer or any of its Restricted Subsidiaries consummates an Asset Sale of
non-Collateral, within 10 Business Days of each date that the aggregate amount of Excess Proceeds
exceeds $200.0 million, the Issuer shall make an offer to all Holders of the Notes and, if required
or permitted by the terms of any Senior Indebtedness, to the holders of such Senior Indebtedness
(an
Asset Sale Offer
), to purchase the maximum aggregate principal amount of the Notes
and such Senior Indebtedness that is a minimum of $2,000 or an integral multiple of $1,000 in
excess thereof that may be purchased out of the Excess Proceeds at an offer price in cash in an
amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and
Additional Interest, if any, to the date fixed for the closing of such offer, in accordance with
the procedures set forth in the Indenture. To the extent that the aggregate amount of Notes and
such Senior Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds,
the Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to other
covenants contained in the Indenture. If the aggregate principal amount of Notes or Senior
Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee
shall select the Notes and such Senior Indebtedness to be purchased on a
pro rata
basis based on
the accreted value or principal amount of the Notes or such Senior Indebtedness tendered. Upon
completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(d) The Issuer may, at its option, make a Collateral Asset Sale Offer or Asset Sale Offer
using proceeds from any Asset Sale at any time after consummation of such Asset Sale;
provided
that
such Collateral Asset Sale Offer or Asset Sale Offer shall be in an aggregate amount of not less
than $50.0 million. Upon consummation of such Collateral Asset Sale Offer or Asset Sale Offer, any
Net Proceeds not required to be used to purchase Notes shall not be deemed Excess Proceeds.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The 2014 Cash-Pay Notes are in registered form without
coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The
transfer of 2014 Cash-Pay Notes may be registered and 2014 Cash-Pay Notes may be exchanged as
provided in the 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 Indenture. The Issuer need not exchange
or register the transfer of any 2014 Cash-Pay Notes or portion of a 2014 Cash-Pay Notes selected
for redemption, except for the unredeemed portion of any 2014 Cash-Pay Notes being redeemed in
part. Also, the Issuer need not exchange or register the transfer of any 2014 Cash-Pay Notes for a
period of 15 days before a selection of 2014 Cash-Pay Notes to be redeemed.
10. PERSONS DEEMED OWNERS. The registered Holder of a 2014 Cash-Pay Notes may be treated as
its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture, the Guarantees or the Notes may be
amended or supplemented as provided in the Indenture.
12. DEFAULTS AND REMEDIES. The Events of Default relating to the 2014 Cash-Pay Notes are
defined in Section 6.01 of the Indenture. If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 30% in 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 Indenture, the 2014 Cash-Pay Notes or the Guarantees except as provided in the 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
A-1-8
2014 Cash-Pay Notes notice of any continuing Default (except a Default relating to the payment
of principal, premium, if any, Additional Interest, 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 Indenture except a continuing
Default in payment of the principal of, premium, if any, Additional Interest, if any, or interest
on, any of the Notes held by a non-consenting Holder. The Issuer and each Guarantor (to the extent
that such Guarantor is so required under the Trust Indenture Act) is required to deliver to the
Trustee annually a statement regarding compliance with the 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 2014 Cash-Pay Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose until authenticated by the manual signature of
the Trustee.
14. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE NOTES.
In addition to the rights provided to Holders of 2014 Cash-Pay Notes under the Indenture, Holders
of Restricted Global Notes and Restricted Definitive Notes shall have all the rights set forth in
the Registration Rights Agreement, dated as of November 17, 2006, among HCA Inc., the Guarantors
named therein and the other parties named on the signature pages thereof (the
Registration
Rights Agreement
), including the right to receive Additional Interest (as defined in the
Registration Rights Agreement).
15. GOVERNING LAW. THIS INDENTURE, THE 2014 CASH-PAY 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
2014 Cash-Pay 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 2014 Cash-Pay Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
The Issuer will furnish to any Holder upon written request and without charge a copy of the
Indenture and/or the Registration Rights Agreement. Requests may be made to the Issuer at the
following address:
c/o HCA Inc.
One Park Plaza
Nashville, Tennessee 37203
Fax No.: (615) 344-1531
Attention: General Counsel
A-1-9
ASSIGNMENT FORM
To assign this 2014 Cash-Pay Note, fill in the form below:
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(I) or (we) assign and transfer this 2014 Cash-Pay Note to:
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(Insert assignee legal name)
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(Insert assignees soc. sec. or tax I.D. no.)
(Print or type assignees name, address and zip code)
to transfer this 2014 Cash-Pay 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
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the face of this 2014 Cash-Pay 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).
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A-1-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this 2014 Cash-Pay Note purchased by the Issuer pursuant to
Section 4.11 or 4.15 of the Indenture, check the appropriate box below:
o
Section 4.11
o
Section 4.15
If you want to elect to have only part of this 2014 Cash-Pay Note purchased by the Issuer
pursuant to Section 4.11 or Section 4.15 of the 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
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the face of this 2014 Cash-Pay 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).
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A-1-11
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 or Definitive Note for an interest in this Global
Note, have been made:
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Principal Amount
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of
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Amount of
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Amount of increase
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this Global Note
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Signature of
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decrease
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in Principal
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following such
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authorized officer
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Date of
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in Principal
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Amount of this
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decrease or
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of Trustee or
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Exchange
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Amount
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Global Note
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increase
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Custodian
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*
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This schedule should be included only if the Note is issued in global form.
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A-1-12
EXHIBIT A-2
[Face of 2016 Cash-Pay Note]
[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the provisions of the
Indenture]
[Insert the Regulation S Temporary Global Note Legend, if applicable pursuant to the
provisions of the Indenture]
A-2-1
CUSIP [ ]
ISIN [ ]
2
[[RULE 144A][REGULATION S] GLOBAL NOTE
representing up to
$[
]
9 1/4% Senior Secured Notes due 2016
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 November 15, 2016.
Interest Payment Dates: May 15 and November 15
Record Dates: May 1 and November 1
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2
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Rule 144A Note CUSIP: 404119 AV 1
Rule 144A Note ISIN: US404119AV13
Regulation S Note CUSIP: U24788 AB 4
Regulation S Note ISIN: USU24788AB40
Exchange Note CUSIP: 404119 AX 7
Exchange Note ISIN: US404119AX78
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A-2-2
IN WITNESS HEREOF, the Issuer has caused this instrument to be duly executed.
Dated: November 17, 2006
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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-2-3
This is one of the 2016 Cash-Pay Notes referred to in the within-mentioned Indenture:
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THE BANK OF NEW YORK,
as Trustee
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By:
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Authorized Signatory
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A-2-4
[Back of 2016 Cash-Pay Note]
9 1/4% Senior Secured Notes due 2016
Capitalized terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.
1. INTEREST. HCA Inc., a Delaware corporation, promises to pay interest on the principal
amount of this 2016 Cash-Pay Note at 9 1/4% per annum from November 17, 2006 until maturity and
shall pay the Additional Interest, if any, payable pursuant to the Registration Rights Agreement
referred to below. The Issuer will pay interest and Additional Interest, if any, semi-annually in
arrears on May 15 and November 15 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 2016
Cash-Pay 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 May 15, 2007. 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 2016 Cash-Pay Notes; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and Additional Interest, if any, (without regard to any applicable grace periods) from
time to time on demand at the interest rate on the 2016 Cash-Pay 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 2016 Cash-Pay Notes and Additional
Interest, if any, to the Persons who are registered Holders of 2016 Cash-Pay Notes at the close of
business on the May 1 or November 1 (whether or not a Business Day), as the case may be, next
preceding the Interest Payment Date, even if such 2016 Cash-Pay Notes are canceled after such
record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the
Indenture with respect to defaulted interest. Payment of interest and Additional Interest, if any,
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 and Additional Interest, if any, 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, The Bank of New York, the Trustee under the
Indenture, 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. INDENTURE. The Issuer issued the 2016 Cash-Pay Notes under an Indenture, dated as of
November 17, 2006 (the
Indenture
), among HCA Inc., the Guarantors named therein and the
Trustee. This 2016 Cash-Pay Note is one of a duly authorized issue of notes of the Issuer
designated as its 9 1/4% Senior Secured Notes due 2016. The Issuer shall be entitled to issue
Additional 2016 Cash-Pay Notes pursuant to Sections 2.01 and 4.10 of the Indenture. The 2014
Cash-Pay Notes (including any Exchange Notes issued in exchange therefor), 2016 Cash-Pay Notes
(including any Exchange Notes issued in exchange therefor) and the Toggle Notes issued under the
Indenture (including any Exchange Notes issued in exchange therefor) (collectively, referred to
herein as the
Notes
) are separate series of Notes, but shall be treated as a single class
of securities under the Indenture, unless otherwise specified in the Indenture. The terms of the
2016 Cash-Pay Notes include those stated in the Indenture and those
A-2-5
made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (the
Trust Indenture Act
). The 2016 Cash-Pay Notes are subject to all such terms, and Holders
are referred to the Indenture and such Act for a statement of such terms. To the extent any
provision of this 2016 Cash-Pay Note conflicts with the express provisions of the Indenture, the
provisions of the Indenture shall govern and be controlling.
5. OPTIONAL REDEMPTION.
(a) Except as set forth below, the Issuer will not be entitled to redeem 2016 Cash-Pay Notes
at its option prior to November 15, 2011.
(b) At any time prior to November 15, 2011, the Issuer may redeem all or a part of the 2016
Cash-Pay Notes, upon not less than 30 nor more than 60 days prior notice mailed by first-class
mail to the registered address of each Holder of 2016 Cash-Pay Notes or otherwise in accordance
with the procedures of DTC, at a redemption price equal to 100% of the principal amount of the 2016
Cash-Pay Notes redeemed plus the Applicable Premium as of, and accrued and unpaid interest and
Additional Interest, if any, to the date of redemption (the
Redemption Date
), subject to
the rights of Holders of 2016 Cash-Pay Notes on the relevant record date to receive interest due on
the relevant interest payment date.
(c) On and after November 15, 2011, the Issuer may redeem the 2016 Cash-Pay Notes, in whole or
in part, upon not less than 30 nor more than 60 days prior notice mailed by first-class mail to
the registered address of each Holder of 2016 Cash-Pay Notes or otherwise in accordance with the
procedures of DTC, at the redemption prices (expressed as percentages of principal amount of the
2016 Cash-Pay Notes to be redeemed) set forth below, plus accrued and unpaid interest thereon and
Additional Interest, if any, to the applicable Redemption Date, subject to the right of Holders of
2016 Cash-Pay Notes of record on the relevant record date to receive interest due on the relevant
interest payment date, if redeemed during the twelve-month period beginning on November 15 of each
of the years indicated below:
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Year
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Percentage
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2011
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104.625
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%
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2012
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103.083
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%
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2013
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101.542
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%
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2014 and thereafter
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100.000
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%
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(d) In addition, until November 15, 2009, the Issuer may, at its option, on one or more
occasions redeem up to 35% of the aggregate principal amount of 2016 Cash-Pay Notes at a redemption
price equal to 109.250% of the aggregate principal amount thereof, plus accrued and unpaid interest
thereon and Additional Interest, if any, to the applicable Redemption Date, subject to the right of
Holders of 2016 Cash-Pay Notes of record on the relevant Record Date to receive interest due on the
relevant Interest Payment Date, with the net cash proceeds of one or more Equity Offerings;
provided
that at least 50% of the sum of the original aggregate principal amount of 2016 Cash-Pay
Notes issued under the Indenture and the original principal amount of any Additional Notes that are
2016 Cash-Pay Notes issued under the Indenture after the Issue Date remains outstanding immediately
after the occurrence of each such redemption;
provided further
that each such redemption occurs
within 90 days of the date of closing of each such Equity Offering.
A-2-6
(e) 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.
(f) If the Issuer redeems less than all of the outstanding 2016 Cash-Pay Notes, the Trustee
shall select the 2016 Cash-Pay Notes to be redeemed in the manner described under Section 3.02 of
the Indenture.
(g) Any redemption pursuant to this paragraph 5 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 of the Indenture.
6. MANDATORY REDEMPTION. The Issuer shall not be required to make mandatory redemption or
sinking fund payments with respect to the 2016 Cash-Pay Notes.
7. NOTICE OF REDEMPTION. Subject to Section 3.03 of the 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 or Article 11 of the Indenture) to each Holder whose
2016 Cash-Pay Notes are to be redeemed at its registered address. 2016 Cash-Pay 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 2016 Cash-Pay Notes or portions thereof called for
redemption.
8. OFFERS TO REPURCHASE.
(a) 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 2016 Cash-Pay Notes at a purchase price
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest and
Additional Interest thereon, if any, to the date of purchase (the
Change of Control
Payment
). The Change of Control Offer shall be made in accordance with Section 4.15 of the
Indenture.
(b) If the Issuer or any of its Restricted Subsidiaries consummates an Asset Sale of
Collateral, within 10 Business Days of each date that the aggregate amount of Collateral Excess
Proceeds exceeds $200.0 million, the Issuer shall make an offer to all Holders of the Notes and, if
required by the terms of any Junior Lien Obligations which are not subordinated to the Notes or
Obligations secured by a Lien permitted under the Indenture (which Lien is not subordinate to the
Lien of the Notes with respect to the Collateral), to the holders of such Junior Lien Obligations
or such other Obligations (a
Collateral Asset Sale Offer
), to purchase the maximum
aggregate principal amount of the Notes and such Junior Lien Obligations or such other Obligations
that is a minimum of $2,000 or an integral multiple of $1,000 in excess thereof that may be
purchased out of the Collateral Excess Proceeds at an offer price in cash in an amount equal to
100% of the principal amount thereof, plus accrued and unpaid interest and Additional Interest, if
any, to the date fixed for the closing of such offer, in accordance with the procedures set forth
in the Indenture. To the extent that the aggregate amount of Notes and such Junior Lien
Obligations or Obligations secured by a Lien permitted by the Indenture (which Lien is not
subordinate to the Lien of the Notes with respect to the Collateral) tendered pursuant to a
Collateral Asset Sale Offer is less than the Collateral Excess Proceeds, the Issuer may use any
remaining Collateral Excess Proceeds for general corporate purposes, subject to other covenants
contained in the Indenture. If the aggregate principal amount of Notes or Junior Lien Obligations
or such other Obligations surrendered by such holders thereof exceeds the amount of Collateral
Excess Proceeds, the Trustee shall select the Notes and such Junior Lien
A-2-7
Obligations or such other Obligations to be purchased on a
pro rata
basis based on the
accreted value or principal amount of the Notes or such Junior Lien Obligations or such other
Obligations tendered. Upon completion of any such Collateral Asset Sale Offer, the amount of
Collateral Excess Proceeds shall be reset at zero.
(c) If the Issuer or any of its Restricted Subsidiaries consummates an Asset Sale of
non-Collateral, within 10 Business Days of each date that the aggregate amount of Excess Proceeds
exceeds $200.0 million, the Issuer shall make an offer to all Holders of the Notes and, if required
or permitted by the terms of any Senior Indebtedness, to the holders of such Senior Indebtedness
(an
Asset Sale Offer
), to purchase the maximum aggregate principal amount of the Notes
and such Senior Indebtedness that is a minimum of $2,000 or an integral multiple of $1,000 in
excess thereof that may be purchased out of the Excess Proceeds at an offer price in cash in an
amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and
Additional Interest, if any, to the date fixed for the closing of such offer, in accordance with
the procedures set forth in the Indenture. To the extent that the aggregate amount of Notes and
such Senior Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds,
the Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to other
covenants contained in the Indenture. If the aggregate principal amount of Notes or Senior
Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee
shall select the Notes and such Senior Indebtedness to be purchased on a
pro rata
basis based on
the accreted value or principal amount of the Notes or such Senior Indebtedness tendered. Upon
completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(d) The Issuer may, at its option, make a Collateral Asset Sale Offer or Asset Sale Offer
using proceeds from any Asset Sale at any time after consummation of such Asset Sale;
provided
that
such Collateral Asset Sale Offer or Asset Sale Offer shall be in an aggregate amount of not less
than $50.0 million. Upon consummation of such Collateral Asset Sale Offer or Asset Sale Offer, any
Net Proceeds not required to be used to purchase Notes shall not be deemed Excess Proceeds.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The 2016 Cash-Pay Notes are in registered form without
coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The
transfer of 2016 Cash-Pay Notes may be registered and 2016 Cash-Pay Notes may be exchanged as
provided in the 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 Indenture. The Issuer need not exchange
or register the transfer of any 2016 Cash-Pay Notes or portion of a 2016 Cash-Pay Notes selected
for redemption, except for the unredeemed portion of any 2016 Cash-Pay Notes being redeemed in
part. Also, the Issuer need not exchange or register the transfer of any 2016 Cash-Pay Notes for a
period of 15 days before a selection of 2016 Cash-Pay Notes to be redeemed.
10. PERSONS DEEMED OWNERS. The registered Holder of a 2016 Cash-Pay Notes may be treated as
its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture, the Guarantees or the Notes may be
amended or supplemented as provided in the Indenture.
12. DEFAULTS AND REMEDIES. The Events of Default relating to the 2016 Cash-Pay Notes are
defined in Section 6.01 of the Indenture. If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 30% in 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
A-2-8
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 Indenture, the 2016 Cash-Pay Notes or the Guarantees except as provided in the
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 2016 Cash-Pay Notes notice of any continuing Default
(except a Default relating to the payment of principal, premium, if any, Additional Interest, 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 Indenture except a continuing Default in payment of the principal of, premium, if any,
Additional Interest, if any, or interest on, any of the Notes held by a non-consenting Holder. The
Issuer and each Guarantor (to the extent that such Guarantor is so required under the Trust
Indenture Act) is required to deliver to the Trustee annually a statement regarding compliance with
the 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 2016 Cash-Pay Note shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose until authenticated by the manual signature of
the Trustee.
14. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE NOTES.
In addition to the rights provided to Holders of 2016 Cash-Pay Notes under the Indenture, Holders
of Restricted Global Notes and Restricted Definitive Notes shall have all the rights set forth in
the Registration Rights Agreement, dated as of November 17, 2006, among HCA Inc., the Guarantors
named therein and the other parties named on the signature pages thereof (the
Registration
Rights Agreement
), including the right to receive Additional Interest (as defined in the
Registration Rights Agreement).
15. GOVERNING LAW. THIS INDENTURE, THE 2016 CASH-PAY 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
2016 Cash-Pay 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 2016 Cash-Pay Notes or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
The Issuer will furnish to any Holder upon written request and without charge a copy of the
Indenture and/or the Registration Rights Agreement. Requests may be made to the Issuer at the
following address:
c/o HCA Inc.
One Park Plaza
Nashville, Tennessee 37203
Fax No.: (615) 344-1531
Attention: General Counsel
A-2-9
ASSIGNMENT FORM
To assign this 2016 Cash-Pay Note, fill in the form below:
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|
(I) or (we) assign and transfer this 2016 Cash-Pay Note to:
|
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|
|
|
|
(Insert assignee legal name)
|
|
|
(Insert assignees soc. sec. or tax I.D. no.)
(Print or type assignees name, address and zip code)
to transfer this 2016 Cash-Pay 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
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|
the face of this 2016 Cash-Pay Note)
|
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|
Signature Guarantee*:
|
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|
*
|
|
Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
|
A-2-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this 2016 Cash-Pay Note purchased by the Issuer pursuant to
Section 4.11 or 4.15 of the Indenture, check the appropriate box below:
o
Section 4.11
o
Section 4.15
If you want to elect to have only part of this 2016 Cash-Pay Note purchased by the Issuer
pursuant to Section 4.11 or Section 4.15 of the 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
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|
the face of this 2016 Cash-Pay 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-2-11
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 or Definitive Note for an interest in this Global
Note, have been made:
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Principal Amount
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of
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Amount of
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Amount of increase
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this Global Note
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Signature of
|
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|
decrease
|
|
|
in Principal
|
|
|
following such
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|
authorized officer
|
|
Date of
|
|
in Principal
|
|
|
Amount of this
|
|
|
decrease or
|
|
|
of Trustee or
|
|
Exchange
|
|
Amount
|
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|
Global Note
|
|
|
increase
|
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Custodian
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*
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This schedule should be included only if the Note is issued in global form.
|
A-2-12
EXHIBIT A-3
[Face of Toggle Note]
[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the provisions of the
Indenture]
[Insert the Regulation S Temporary Global Note Legend, if applicable pursuant to the
provisions of the Indenture]
A-3-1
CUSIP [ ]
ISIN [ ]
3
[[RULE 144A][REGULATION S] GLOBAL NOTE
representing up to
$[
]
9 5/8%/ 10 3/8% Senior Secured Toggle Notes due 2016
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 November 15, 2016.
Interest Payment Dates: May 15 and November 15
Record Dates: May 1 and November 1
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3
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Rule 144A Note CUSIP: 404119 AY 5
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Rule 144A Note ISIN: US404119AY51
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Regulation S Note CUSIP: U24788 AC 2
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Regulation S Note ISIN: USU24788AC23
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Exchange Note CUSIP: 404119 BA 6
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Exchange Note ISIN: US404119BA66
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A-3-2
IN WITNESS HEREOF, the Issuer has caused this instrument to be duly executed.
Dated: November 17, 2006
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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-3-3
This is one of the Toggle Notes referred to in the within-mentioned Indenture:
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THE BANK OF NEW YORK,
as Trustee
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By:
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Authorized Signatory
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A-3-4
[Back of Toggle Note]
9 5/8%/10 3/8% Senior Secured Toggle Notes due 2016
Capitalized terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.
1. INTEREST. HCA Inc., a Delaware corporation, promises to pay interest on the principal
amount of this Toggle Note as follows: Cash Interest on the Toggle Notes will accrue at a rate of 9
5/8% per annum and be payable in cash. PIK Interest on the Toggle Notes will accrue at a rate of
10 3/8% per annum and be payable (x) with respect to Toggle Notes represented by one or more global
notes registered in the name of, or held by, The Depository Trust Company (
DTC
) or its
nominee on the relevant record date, by increasing the principal amount of the outstanding global
Toggle Note by an amount equal to the amount of PIK Interest for the applicable interest period
(rounded up to the nearest $1,000) and (y) with respect to Toggle Notes represented by certificated
notes, by issuing PIK Notes in certificated form in an aggregate principal amount equal to the
amount of PIK Interest for the applicable period (rounded up to the nearest whole dollar), and the
Trustee will, at the request of the Issuer, authenticate and deliver such PIK Notes in certificated
form for original issuance to the Holders on the relevant record date, as shown by the records of
the register of Holders. In the event that the Issuer elects to pay Partial PIK Interest for any
interest period, each Holder will be entitled to receive Cash Interest in respect of 50% of the
principal amount of the Toggle Notes held by such Holder on the relevant record date and PIK
Interest in respect of 50% of the principal amount of the Toggle Notes held by such Holder on the
relevant record date. Following an increase in the principal amount of the outstanding global
Toggle Notes as a result of a PIK Payment, the global Toggle Notes will bear interest on such
increased principal amount from and after the date of such PIK Payment. Any PIK Notes issued in
certificated form will be dated as of the applicable interest payment date and will bear interest
from and after such date. All Toggle Notes issued pursuant to a PIK Payment will mature on
November 15, 2016 and will be governed by, and subject to the terms, provisions and conditions of,
the Indenture and shall have the same rights and benefits as the Toggle Notes issued on the Issue
Date. Any certificated PIK Notes will be issued with the description PIK on the face of such PIK
Note.
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 Toggle Notes; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and Additional Interest,
if any, (without regard to any applicable grace periods) from time to time on demand at the
interest rate on the Toggle Notes. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months.
2. METHOD OF PAYMENT. For any interest payment period after the initial interest payment
period and prior to November 15, 2011, the Issuer may, at its option, elect to pay interest on the
Toggle Notes:
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entirely in cash (
Cash Interest
);
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entirely by increasing the principal amount of the outstanding Toggle Notes or
by issuing PIK Notes (
PIK Interest
); or
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on 50% of the outstanding principal amount of the Toggle Notes in cash and on
50% of the principal amount by increasing the principal amount of the outstanding
Toggle Notes or by issuing PIK Notes (
Partial PIK Interest
).
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A-3-5
The Issuer must elect the form of interest payment with respect to each interest period by
delivering a notice to the Trustee prior to the beginning of each interest period. The Trustee
shall promptly deliver a corresponding notice to the Holders. In the absence of such an election
for any interest period, interest on the Toggle Notes shall be payable according to the election
for the previous interest period. Interest for the first interest period commencing on the Issue
Date shall be payable entirely in cash. After November 15, 2011, the Issuer will make all interest
payments on the Toggle Notes entirely in cash. Notwithstanding anything to the contrary, the
payment of accrued interest in connection with any redemption of Toggle Notes as described under
Sections 3.07, 4.11 and 4.15 of the Indenture shall be made solely in cash.
The Issuer will pay Cash Interest on the Toggle Notes and Additional Interest, if any, to the
Persons who are registered Holders of Toggle Notes at the close of business on the May 1 or
November 1 (whether or not a Business Day), as the case may be, next preceding the Interest Payment
Date, even if such Toggle Notes are canceled after such record date and on or before such Interest
Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted
interest. Payment of interest and Additional Interest, if any, 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 and Additional Interest, if any, 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, The Bank of New York, the Trustee under the
Indenture, 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. INDENTURE. The Issuer issued the Toggle Notes under an Indenture, dated as of November 17,
2006 (the
Indenture
), among HCA Inc., the Guarantors named therein and the Trustee. This
Toggle Note is one of a duly authorized issue of notes of the Issuer designated as its 9 5/8%/10
3/8% Senior Secured Toggle Notes due 2016. The Issuer shall be entitled to issue Additional Toggle
Notes pursuant to Sections 2.01 and 4.10 of the Indenture. The 2014 Cash-Pay Notes (including any
Exchange Notes issued in exchange therefor), 2016 Cash-Pay Notes (including any Exchange Notes
issued in exchange therefor) and the Toggle Notes issued under the Indenture (including any
Exchange Notes issued in exchange therefor) (collectively, referred to herein as the
Notes
) are separate series of Notes, but shall be treated as a single class of securities
under the Indenture, unless otherwise specified in the Indenture. The terms of the Toggle Notes
include those stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939, as amended (the
Trust Indenture Act
). The Toggle Notes are
subject to all such terms, and Holders are referred to the Indenture and such Act for a statement
of such terms. To the extent any provision of this Toggle Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
5. OPTIONAL REDEMPTION.
(a) Except as set forth below, the Issuer will not be entitled to redeem Toggle Notes at its
option prior to November 15, 2011.
(b) At any time prior to November 15, 2011, the Issuer may redeem all or a part of the Toggle
Notes, upon not less than 30 nor more than 60 days prior notice mailed by first-class mail to the
registered address of each Holder of Toggle Notes or otherwise in accordance with the procedures of
A-3-6
DTC, at a redemption price equal to 100% of the principal amount of the Toggle Notes redeemed
plus the Applicable Premium as of, and accrued and unpaid interest and Additional Interest, if any,
to the date of redemption (the
Redemption Date
), subject to the rights of Holders of
Toggle Notes on the relevant record date to receive interest due on the relevant interest payment
date.
(c) On and after November 15, 2011, the Issuer may redeem the Toggle Notes, in whole or in
part, upon not less than 30 nor more than 60 days prior notice mailed by first-class mail to the
registered address of each Holder of Toggle Notes or otherwise in accordance with the procedures of
DTC, at the redemption prices (expressed as percentages of principal amount of the Toggle Notes to
be redeemed) set forth below, plus accrued and unpaid interest thereon and Additional Interest, if
any, to the applicable Redemption Date, subject to the right of Holders of Toggle Notes of record
on the relevant record date to receive interest due on the relevant interest payment date, if
redeemed during the twelve-month period beginning on November 15 of each of the years indicated
below:
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Year
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Percentage
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2011
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104.813
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%
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2012
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103.208
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%
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2013
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101.604
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%
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2014 and thereafter
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100.000
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%
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(d) In addition, until November 15, 2009, the Issuer may, at its option, on one or more
occasions redeem up to 35% of the aggregate principal amount of Toggle Notes at a redemption price
equal to 109.625% of the aggregate principal amount thereof, plus accrued and unpaid interest
thereon and Additional Interest, if any, to the applicable Redemption Date, subject to the right of
Holders of Toggle Notes of record on the relevant Record Date to receive interest due on the
relevant Interest Payment Date, with the net cash proceeds of one or more Equity Offerings;
provided
that at least 50% of the sum of the original aggregate principal amount of Toggle Notes
issued under the Indenture and the original principal amount of any Additional Notes that are
Toggle Notes issued under the Indenture after the Issue Date remains outstanding immediately after
the occurrence of each such redemption;
provided further
that each such redemption occurs within 90
days of the date of closing of each such Equity Offering.
(e) 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.
(f) If the Issuer redeems less than all of the outstanding Toggle Notes, the Trustee shall
select the Toggle Notes to be redeemed in the manner described under Section 3.02 of the Indenture.
(g) Any redemption pursuant to this paragraph 5 shall be made pursuant to the provisions of
Sections 3.01 through 3.06 of the Indenture.
6. MANDATORY REDEMPTION. Except as set forth below, the Issuer will not be required to make
any mandatory redemption or sinking fund payments with respect to the Notes.
If the Toggle Notes would otherwise constitute applicable high yield discount obligations
within the meaning of Section 163(i)(1) of the Code, at the end of the first accrual period ending
after the fifth anniversary of the Toggle Notes issuance (the
AHYDO redemption date
),
the Issuer will be required to redeem for cash a portion of each toggle note then outstanding equal
to the Mandatory Principal Redemption Amount (such redemption, a
Mandatory Principal
Redemption
).
A-3-7
The redemption price for the portion of each toggle note redeemed pursuant to a Mandatory
Principal Redemption will be 100% of the principal amount of such portion plus any accrued interest
thereon on the date of redemption. The
Mandatory Principal Redemption Amount
means the
portion of a toggle note required to be redeemed to prevent such toggle note from being treated as
an applicable high yield discount obligation within the meaning of Section 163(i)(1) of the Code.
No partial redemption or repurchase of the Toggle Notes prior to the AHYDO redemption date
pursuant to any other provision of the Indenture will alter the Issuers obligation to make the
Mandatory Principal Redemption with respect to any Toggle Notes that remain outstanding on the
AHYDO redemption date.
7. NOTICE OF REDEMPTION. Subject to Section 3.03 of the 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 or Article 11 of the Indenture) to each Holder whose
Toggle Notes are to be redeemed at its registered address. Toggle 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 Toggle Notes or portions thereof called for redemption.
8. OFFERS TO REPURCHASE.
(a) 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 Toggle Notes at a purchase price equal to
101% of the aggregate principal amount thereof plus accrued and unpaid interest and Additional
Interest thereon, if any, to the date of purchase (the
Change of Control Payment
). The
Change of Control Offer shall be made in accordance with Section 4.15 of the Indenture.
(b) If the Issuer or any of its Restricted Subsidiaries consummates an Asset Sale of
Collateral, within 10 Business Days of each date that the aggregate amount of Collateral Excess
Proceeds exceeds $200.0 million, the Issuer shall make an offer to all Holders of the Notes and, if
required by the terms of any Junior Lien Obligations which are not subordinated to the Notes or
Obligations secured by a Lien permitted under the Indenture (which Lien is not subordinate to the
Lien of the Notes with respect to the Collateral), to the holders of such Junior Lien Obligations
or such other Obligations (a
Collateral Asset Sale Offer
), to purchase the maximum
aggregate principal amount of the Notes and such Junior Lien Obligations or such other Obligations
that is a minimum of $2,000 or an integral multiple of $1,000 in excess thereof that may be
purchased out of the Collateral Excess Proceeds at an offer price in cash in an amount equal to
100% of the principal amount thereof, plus accrued and unpaid interest and Additional Interest, if
any, to the date fixed for the closing of such offer, in accordance with the procedures set forth
in the Indenture. To the extent that the aggregate amount of Notes and such Junior Lien
Obligations or Obligations secured by a Lien permitted by the Indenture (which Lien is not
subordinate to the Lien of the Notes with respect to the Collateral) tendered pursuant to a
Collateral Asset Sale Offer is less than the Collateral Excess Proceeds, the Issuer may use any
remaining Collateral Excess Proceeds for general corporate purposes, subject to other covenants
contained in the Indenture. If the aggregate principal amount of Notes or Junior Lien Obligations
or such other Obligations surrendered by such holders thereof exceeds the amount of Collateral
Excess Proceeds, the Trustee shall select the Notes and such Junior Lien Obligations or such other
Obligations to be purchased on a
pro rata
basis based on the accreted value or principal amount of
the Notes or such Junior Lien Obligations or such other Obligations tendered. Upon completion of
any such Collateral Asset Sale Offer, the amount of Collateral Excess Proceeds shall be reset at
zero.
A-3-8
(c) If the Issuer or any of its Restricted Subsidiaries consummates an Asset Sale of
non-Collateral, within 10 Business Days of each date that the aggregate amount of Excess Proceeds
exceeds $200.0 million, the Issuer shall make an offer to all Holders of the Notes and, if required
or permitted by the terms of any Senior Indebtedness, to the holders of such Senior Indebtedness
(an
Asset Sale Offer
), to purchase the maximum aggregate principal amount of the Notes
and such Senior Indebtedness that is a minimum of $2,000 or an integral multiple of $1,000 in
excess thereof that may be purchased out of the Excess Proceeds at an offer price in cash in an
amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest and
Additional Interest, if any, to the date fixed for the closing of such offer, in accordance with
the procedures set forth in the Indenture. To the extent that the aggregate amount of Notes and
such Senior Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds,
the Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to other
covenants contained in the Indenture. If the aggregate principal amount of Notes or Senior
Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee
shall select the Notes and such Senior Indebtedness to be purchased on a
pro rata
basis based on
the accreted value or principal amount of the Notes or such Senior Indebtedness tendered. Upon
completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
(d) The Issuer may, at its option, make a Collateral Asset Sale Offer or Asset Sale Offer
using proceeds from any Asset Sale at any time after consummation of such Asset Sale;
provided
that
such Collateral Asset Sale Offer or Asset Sale Offer shall be in an aggregate amount of not less
than $50.0 million. Upon consummation of such Collateral Asset Sale Offer or Asset Sale Offer, any
Net Proceeds not required to be used to purchase Notes shall not be deemed Excess Proceeds.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Toggle Notes are in registered form without coupons
in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The transfer of
Toggle Notes may be registered and Toggle Notes may be exchanged as provided in the 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 Indenture. The Issuer need not exchange or register the
transfer of any Toggle Notes or portion of a Toggle Notes selected for redemption, except for the
unredeemed portion of any Toggle Notes being redeemed in part. Also, the Issuer need not exchange
or register the transfer of any Toggle Notes for a period of 15 days before a selection of Toggle
Notes to be redeemed.
10. PERSONS DEEMED OWNERS. The registered Holder of a Toggle Notes may be treated as its
owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture, the Guarantees or the Notes may be
amended or supplemented as provided in the Indenture.
12. DEFAULTS AND REMEDIES. The Events of Default relating to the Toggle Notes are defined in
Section 6.01 of the Indenture. If any Event of Default occurs and is continuing, the Trustee or
the Holders of at least 30% in 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
Indenture, the Toggle Notes or the Guarantees except as provided in the 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 Toggle Notes notice of any
A-3-9
continuing Default (except a Default relating to the payment of principal, premium, if any,
Additional Interest, 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 Indenture except a continuing Default in payment of the principal
of, premium, if any, Additional Interest, if any, or interest on, any of the Notes held by a
non-consenting Holder. The Issuer and each Guarantor (to the extent that such Guarantor is so
required under the Trust Indenture Act) is required to deliver to the Trustee annually a statement
regarding compliance with the 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 Toggle Note shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose until authenticated by the manual signature of the
Trustee.
14. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE NOTES.
In addition to the rights provided to Holders of Toggle Notes under the Indenture, Holders of
Restricted Global Notes and Restricted Definitive Notes shall have all the rights set forth in the
Registration Rights Agreement, dated as of November 17, 2006, among HCA Inc., the Guarantors named
therein and the other parties named on the signature pages thereof (the
Registration Rights
Agreement
), including the right to receive Additional Interest (as defined in the Registration
Rights Agreement).
15. GOVERNING LAW. THIS INDENTURE, THE TOGGLE 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
Toggle 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
Toggle Notes or as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Issuer will furnish to any Holder upon written request and without charge a copy of the
Indenture and/or the Registration Rights Agreement. Requests may be made to the Issuer at the
following address:
c/o HCA Inc.
One Park Plaza
Nashville, Tennessee 37203
Fax No.: (615) 344-1531
Attention: General Counsel
A-3-10
ASSIGNMENT FORM
To assign this Toggle Note, fill in the form below:
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(I) or (we) assign and transfer this Toggle Note to:
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(Insert assignee legal name)
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(Insert assignees soc. sec. or tax I.D. no.)
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(Print or type assignees name, address and zip code)
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and irrevocably appoint
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to transfer this Toggle Note on the books of the Issuer. The agent may substitute another to act
for him.
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Date:
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Your Signature:
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(Sign exactly as your name appears on
the face of this Toggle Note)
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* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-3-11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Toggle Note purchased by the Issuer pursuant to Section 4.11
or 4.15 of the Indenture, check the appropriate box below:
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o
Section 4.11
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o
Section 4.15
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If you want to elect to have only part of this Toggle Note purchased by the Issuer pursuant to
Section 4.11 or Section 4.15 of the Indenture, state the amount you elect to have purchased:
$
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Date:
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Your Signature:
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(Sign exactly as your name appears on
the face of this Toggle Note)
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Tax Identification No.:
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* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-3-12
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 or Definitive Note for an interest in this Global
Note, have been made:
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Principal Amount
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of
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Amount of
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Amount of increase
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this Global Note
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Signature of
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decrease
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in Principal
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following such
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authorized officer
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Date of
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in Principal
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Amount of this
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decrease or
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of Trustee or
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Exchange
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Amount
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Global Note
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increase
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Custodian
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*This schedule should be included only if the Note is issued in global form.
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A-3-13
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
HCA Inc.
One Park Plaza
Nashville, Tennessee 37203
Fax No.: (615) 344-1531
Attention: General Counsel
The Bank of New York
101 Barclay Street
Corporate Trust Administration Floor 8W
New York, New York 10286
Fax No.: (212) 815-5704
Attention: HCA Trustee
Re: [9 1/8% Cash-Pay Notes due 2014] [9 1/4% Cash-Pay Notes due 2016] [9 5/8%/10 3/8% Toggle
Notes due 2016]
Reference is hereby made to the Indenture, dated as of November 17, 2006 (the
Indenture
), among HCA Inc., the Guarantors named therein and the Trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the Indenture.
(the
Transferor
) owns and proposes to transfer the Note[s] or
interest in such Note[s] specified in Annex A hereto, in the principal amount of $
in
such Note[s] or interests (the
Transfer
), to
(the
Transferee
),
as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby
certifies that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE 144A GLOBAL
NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A. The Transfer is being effected pursuant to and in
accordance with Rule 144A under the United States Securities Act of 1933, as amended (the
Securities Act
), and, accordingly, the Transferor hereby further certifies that the
beneficial interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believes is purchasing the beneficial interest or Definitive Note for its own account,
or for one or more accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a qualified institutional buyer within the meaning of
Rule 144A in a transaction meeting the requirements of Rule 144A and such Transfer is in compliance
with any applicable blue sky securities laws of any state of the United States.
2. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE REGULATION S
GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO REGULATION S. The Transfer is being effected pursuant
to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the
Transferor hereby further certifies that (i) the Transfer is not being made to a person in the
United States and (x) at the time the buy order was originated, the Transferee was outside the
United States or such Transferor and any Person acting on its behalf reasonably believed and
believes that the Transferee was outside the United States or (y) the transaction was executed in,
on or through the facilities of a designated offshore securities market and neither such
B-1
Transferor nor any Person acting on its behalf knows that the transaction was prearranged with
a buyer in the United States, (ii) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act (iii) the
transaction is not part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the
Restricted Period, the transfer is not being made to a U.S. Person or for the account or benefit of
a U.S. Person (other than an Initial Purchaser). Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on Transfer enumerated in the Indenture and the Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION
S. The Transfer is being effected in compliance with the transfer restrictions applicable to
beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and
in accordance with the Securities Act and any applicable blue sky securities laws of any state of
the United States, and accordingly the Transferor hereby further certifies that (check one):
(a) [ ] such Transfer is being effected pursuant to and in accordance with Rule 144
under the Securities Act;
or
(b) [ ] such Transfer is being effected to the Issuer or a subsidiary thereof;
or
(c) [ ] such Transfer is being effected pursuant to an effective registration
statement under the Securities Act and in compliance with the prospectus delivery
requirements of the Securities Act.
4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN AN UNRESTRICTED
GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a) [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is being effected
pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the
transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with the Securities Act.
Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on
Restricted Definitive Notes and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance
with the transfer restrictions contained in the Indenture and any applicable blue sky securities
laws of any state of the United States and (ii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the
B-2
Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to
the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes, on Restricted Definitive Notes and in the Indenture.
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The Transfer is being effected
pursuant to and in compliance with an exemption from the registration requirements of the
Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities laws of any State of
the United States and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or
Restricted Definitive Notes and in the Indenture.
B-3
This certificate and the statements contained herein are made for your benefit and the benefit
of the Issuer.
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[Insert Name of Transferor]
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By:
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Name:
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Title:
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Dated:
B-4
ANNEX A TO CERTIFICATE OF TRANSFER
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1.
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The Transferor owns and proposes to transfer the following:
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[CHECK ONE OF (a) OR (b)]
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(a)
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[ ] a beneficial interest in the:
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(i)
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[ ] 144A Global Note (CUSIP
[ ]
4
[ ]
5
[
]
6
), or
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(ii)
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[ ] Regulation S Global Note (CUSIP [ ]
4
[ ]
5
[
]
6
), or
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(b)
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[ ] a Restricted Definitive Note.
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2.
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After the Transfer the Transferee will hold:
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[CHECK ONE]
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(a)
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[ ] a beneficial interest in the:
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(i)
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[ ] 144A Global Note (CUSIP [ ]
4
[ ]
5
[
]
6
), or
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(ii)
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[ ] Regulation S Global Note (CUSIP [
]
4
[ ]
5
[ ]
6
), or
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(iii)
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[ ] Unrestricted Global Note (CUSIP [
]
4
[ ]
5
[ ]
6
); or
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(b)
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[ ] a Restricted Definitive Note; or
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(c)
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[ ] an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
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2
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2014 Cash-Pay Notes.
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3
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2016 Cash-Pay Notes.
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4
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Toggle Notes
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B-5
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
HCA Inc.
One Park Plaza
Nashville, Tennessee 37203
Fax No.: (615) 344-1531
Attention: General Counsel
The Bank of New York
101 Barclay Street
Corporate Trust Administration Floor 8W
New York, New York 10286
Fax No.: (212) 815-5704
Attention: HCA Trustee
Re: [ 9 1/8% Cash-Pay Notes due 2014], [9 1/4% Cash-Pay Notes due 2016] [9 5/8 %/ 10 3/8%
Toggle Notes due 2016]
Reference is hereby made to the Indenture, dated as of November 17, 2006 (the
Indenture
), among HCA Inc., the Guarantors named therein and the Trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the Indenture.
(the
Owner
) owns and proposes to exchange the Note[s] or interest in
such Note[s] specified herein, in the principal amount of $
in such Note[s] or interests
(the
Exchange
). In connection with the Exchange, the Owner hereby certifies that:
1) EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL NOTE
FOR UNRESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE
a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL
NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Exchange of the Owners beneficial interest in a Restricted Global Note for a
beneficial interest in an Unrestricted Global Note in an equal principal amount, the
Owner hereby certifies (i) the beneficial interest is being acquired for the Owners
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Global Notes and pursuant to and in
accordance with the United States Securities Act of 1933, as amended (the
Securities Act
), (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest in an
Unrestricted Global Note is being acquired in compliance with any applicable blue
sky securities laws of any state of the United States.
b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL
NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the
Owners beneficial interest in a Restricted Global Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Definitive
C-1
Note is being acquired for the Owners own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions applicable
to the Restricted Global Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Definitive Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL
INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the Owners Exchange of
a Restricted Definitive Note for a beneficial interest in an Unrestricted Global
Note, the Owner hereby certifies (i) the beneficial interest is being acquired for
the Owners own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to Restricted Definitive Notes
and pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.
d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO UNRESTRICTED
DEFINITIVE NOTE. In connection with the Owners Exchange of a Restricted Definitive
Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the
Unrestricted Definitive Note is being acquired for the Owners own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Unrestricted Definitive Note is
being acquired in compliance with any applicable blue sky securities laws of any
state of the United States.
2) EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES
FOR RESTRICTED DEFINITIVE NOTES OR BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES
a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A RESTRICTED GLOBAL
NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the Exchange of the Owners
beneficial interest in a Restricted Global Note for a Restricted Definitive Note
with an equal principal amount, the Owner hereby certifies that the Restricted
Definitive Note is being acquired for the Owners own account without transfer.
Upon consummation of the proposed Exchange in accordance with the terms of the
Indenture, the Restricted Definitive Note issued will continue to be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on the
Restricted Definitive Note and in the Indenture and the Securities Act.
b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO BENEFICIAL
INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the Exchange of the
Owners Restricted Definitive Note for a beneficial interest in the [CHECK ONE] [ ]
144A Global Note [ ] Regulation S Global Note,
C-2
with an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owners own account without transfer and (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with the
Securities Act, and in compliance with any applicable blue sky securities laws of
any state of the United States. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the beneficial interest issued will be
subject to the restrictions on transfer enumerated in the Private Placement Legend
printed on the relevant Restricted Global Note and in the Indenture and the
Securities Act.
This certificate and the statements contained herein are made for your benefit and the benefit
of the Issuer and are dated
.
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[Insert Name of Transferor]
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By:
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Name:
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Title:
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Dated:
C-3
EXHIBIT D
[FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS]
Supplemental Indenture (this
Supplemental Indenture
), dated as of
, among
(the
Guaranteeing Subsidiary
), a subsidiary of HCA Inc., a Delaware
Corporation (the
Issuer
), and The Bank of New York, as trustee (the
Trustee
).
W I T N E S S E T H
WHEREAS, each of HCA Inc. and the Guarantors (as defined in the Indenture referred to below)
has heretofore executed and delivered to the Trustee an indenture (the
Indenture
), dated
as of November 17, 2006, providing for the issuance of an unlimited aggregate principal amount of 9
1/8% Cash-Pay Notes due 2014, 9 1/4% Cash-Pay Notes due 2016 and 9 5/8%/10 3/8% Toggle Notes due
2016 (together, the
Notes
);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary
shall execute and deliver to the Trustee a supplemental indenture pursuant to which the
Guaranteeing Subsidiary shall unconditionally guarantee all of the Issuers Obligations under the
Notes and the Indenture on the terms and conditions set forth herein and under the Indenture (the
Guarantee
); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and
deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree
for the equal and ratable benefit of the Holders of the Notes as follows:
(1)
Capitalized Terms
. Capitalized terms used herein without definition shall have
the meanings assigned to them in the Indenture.
(2)
Agreement to Guarantee
. The Guaranteeing Subsidiary hereby agrees as follows:
(a) Along with all Guarantors named in the Indenture, to jointly and severally
unconditionally guarantee to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, irrespective of the validity and
enforceability of the Indenture, the Notes or the obligations of the Issuer hereunder or
thereunder, that:
(i) the principal of and interest, premium and Additional Interest, if any, on
the Notes will be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue principal of and
interest on the Notes, if any, if lawful, and all other obligations of the Issuer to
the Holders or the Trustee hereunder or thereunder will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and
D-1
(ii) in case of any extension of time of payment or renewal of any Notes or any
of such other obligations, that same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise. Failing payment when due of any
amount so guaranteed or any performance so guaranteed for whatever reason, the
Guarantors and the Guaranteeing Subsidiary shall be jointly and severally obligated
to pay the same immediately. This is a guarantee of payment and not a guarantee of
collection.
(b) The obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of the Notes or the Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect to any
provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to
enforce the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor.
(c) The following is hereby waived: diligence, presentment, demand of payment, filing
of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to
require a proceeding first against the Issuer, protest, notice and all demands whatsoever.
(d) This Guarantee shall not be discharged except by complete performance of the
obligations contained in the Notes, the Indenture and this Supplemental Indenture, and the
Guaranteeing Subsidiary accepts all obligations of a Guarantor under the Indenture.
(e) If any Holder or the Trustee is required by any court or otherwise to return to the
Issuer, the Guarantors (including the Guaranteeing Subsidiary), or any custodian, trustee,
liquidator or other similar official acting in relation to either the Issuer or the
Guarantors, any amount paid either to the Trustee or such Holder, this Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect.
(f) The Guaranteeing Subsidiary shall not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until payment in
full of all obligations guaranteed hereby.
(g) As between the Guaranteeing Subsidiary, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article 6 of the Indenture for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such acceleration in
respect of the obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article 6 of the Indenture, such obligations
(whether or not due and payable) shall forthwith become due and payable by the Guaranteeing
Subsidiary for the purpose of this Guarantee.
(h) The Guaranteeing Subsidiary shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the rights of the
Holders under this Guarantee.
(i) Pursuant to Section 12.02 of the Indenture, after giving effect to all other
contingent and fixed liabilities that are relevant under any applicable Bankruptcy or
fraudulent conveyance laws, and after giving effect to any collections from, rights to
receive contribution
D-2
from or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under Article 12 of the Indenture, this new Guarantee
shall be limited to the maximum amount permissible such that the obligations of such
Guaranteeing Subsidiary under this Guarantee will not constitute a fraudulent transfer or
conveyance.
(j) This 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 and 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 Note 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) In case any provision of this Guarantee 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.
(l) This Guarantee shall be a general senior obligation of such Guaranteeing
Subsidiary, ranking equally in right of payment with all existing and future senior
Indebtedness of the Guaranteeing Subsidiary but, to the extent of the value of the
Collateral, will be effectively senior to all of the Guaranteeing Subsidiarys unsecured
senior Indebtedness and, to the extent of the Collateral, will be effectively subordinated
to the Guaranteeing Subsidiarys Obligations under the Senior Credit Facilities and any
future Priority Lien Obligations. The Guarantees will be senior in right of payment to all
existing and future Subordinated Indebtedness of each Guarantor. The Notes will be
structurally subordinated to Indebtedness and other liabilities of Subsidiaries of the
Issuer that do not Guarantee the Notes, if any.
(m) Each payment to be made by the Guaranteeing Subsidiary in respect of this Guarantee
shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
(3)
Execution and Delivery
. The Guaranteeing Subsidiary agrees that the Guarantee
shall remain in full force and effect notwithstanding the absence of the endorsement of any
notation of such Guarantee on the Notes.
(4)
Merger, Consolidation or Sale of All or Substantially All Assets
.
(a) Except as otherwise provided in Section 5.01(c) of the Indenture, the Guaranteeing
Subsidiary may not consolidate or merge with or into or wind up into (whether or not the Issuer or
Guaranteeing Subsidiary is the surviving corporation), or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or assets, in one or more related
transactions, to any Person unless:
D-3
(i) such Guarantor is the surviving corporation or the Person formed by or surviving
any such consolidation or merger (if other than such Guarantor) or to which such sale,
assignment, transfer, lease, conveyance or other disposition will have been made is a
corporation, partnership, limited partnership, limited liability corporation or trust
organized or existing under the laws of the jurisdiction of organization of such Guarantor,
as the case may be, or the laws of the United States, any state thereof, the District of
Columbia, or any territory thereof (such Guarantor or such Person, as the case may be, being
herein called the
Successor Person
);
(ii) the Successor Person, if other than such Guarantor, expressly assumes all the
obligations of such Guarantor under the Indenture and such Guarantors related Guarantee
pursuant to supplemental indentures or other documents or instruments in form reasonably
satisfactory to the Trustee;
(iii) immediately after such transaction, no Default exists; and
(iv) the Issuer shall have delivered to the Trustee an Officers Certificate, each
stating that such consolidation, merger or transfer and such supplemental indentures, if
any, comply with the Indenture; or
(v) the transaction is made in compliance with Section 4.11 of the Indenture.
(b) Subject to certain limitations described in the Indenture, the Successor Person will
succeed to, and be substituted for, such Guarantor under the Indenture and such Guarantors
Guarantee. Notwithstanding the foregoing, any Guarantor may (i) merge into or transfer all or part
of its properties and assets to another Guarantor or the Issuer, (ii) merge with an Affiliate of
the Issuer solely for the purpose of reincorporating the Guarantor in the United States, any state
thereof, the District of Columbia or any territory thereof or (iii) convert into a corporation,
partnership, limited partnership, limited liability corporation or trust organized or existing
under the laws of the jurisdiction of organization of such Guarantor.
(5)
Releases
.
The Guarantee of the Guaranteeing Subsidiary shall be automatically and unconditionally
released and discharged, and no further action by the Guaranteeing Subsidiary, the Issuer or the
Trustee is required for the release of the Guaranteeing Subsidiarys Guarantee, upon:
(1) (A) any sale, exchange or transfer (by merger or otherwise) of the Capital Stock
of such Guarantor (including any sale, exchange or transfer), after which the applicable
Guarantor is no longer a Restricted Subsidiary or all or substantially all the assets of
such Guarantor which sale, exchange or transfer is made in compliance with the applicable
provisions of this Indenture;
(B) the release or discharge of the guarantee by such Guarantor of the Senior Credit
Facilities or such other guarantee that resulted in the creation of such Guarantee, except a
discharge or release by or as a result of payment under such guarantee;
(C) the designation of any Restricted Subsidiary that is a Guarantor as an Unrestricted
Subsidiary in compliance with Section 4.07 hereof; or
D-4
(D) the exercise by Issuer of its Legal Defeasance option or Covenant Defeasance option
in accordance with Article 8 hereof or the Issuers obligations under this Indenture being
discharged in accordance with the terms of this Indenture; and
(2) such Guarantor delivering to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for in this Indenture relating
to such transaction have been complied with.
(6)
No Recourse Against Others
. No director, officer, employee, incorporator or
stockholder of the Guaranteeing Subsidiary shall have any liability for any obligations of the
Issuer or the Guarantors (including the Guaranteeing Subsidiary) under the Notes, any Guarantees,
the Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder by accepting Notes waives and releases all
such liability. The waiver and release are part of the consideration for issuance of the Notes.
(7)
Governing Law
. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(8)
Counterparts
. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.
(9)
Effect of Headings
. The Section headings herein are for convenience only and
shall not affect the construction hereof.
(10)
The Trustee
. The Trustee shall not be responsible in any manner whatsoever for
or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made solely by the Guaranteeing
Subsidiary.
(11)
Subrogation
. The Guaranteeing Subsidiary shall be subrogated to all rights of
Holders of Notes against the Issuer in respect of any amounts paid by the Guaranteeing Subsidiary
pursuant to the provisions of Section 2 hereof and Section 12.01 of the Indenture;
provided
that, if an Event of Default has occurred and is continuing, the Guaranteeing Subsidiary shall not
be entitled to enforce or receive any payments arising out of, or based upon, such right of
subrogation until all amounts then due and payable by the Issuer under the Indenture or the Notes
shall have been paid in full.
(12)
Benefits Acknowledged
. The Guaranteeing Subsidiarys Guarantee is subject to the
terms and conditions set forth in the Indenture. The Guaranteeing Subsidiary acknowledges that it
will receive direct and indirect benefits from the financing arrangements contemplated by the
Indenture and this Supplemental Indenture and that the guarantee and waivers made by it pursuant to
this Guarantee are knowingly made in contemplation of such benefits.
(13)
Successors
. All agreements of the Guaranteeing Subsidiary in this Supplemental
Indenture shall bind its Successors, except as otherwise provided in Section 2(k) hereof or
elsewhere in this Supplemental Indenture. All agreements of the Trustee in this Supplemental
Indenture shall bind its successors.
D-5
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed, all as of the date first above written.
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[GUARANTEEING SUBSIDIARY]
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By:
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Name:
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Title:
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THE BANK OF NEW YORK,
as Trustee
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By:
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Name:
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Title:
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D-6
EXHIBIT
4.2
SECURITY AGREEMENT
THIS SECURITY AGREEMENT dated as of November 17, 2006, among HCA Inc., a Delaware corporation
(the
Company
), each of the Subsidiaries of the Company listed on
Schedule 1
hereto or that becomes a party hereto pursuant to Section 8.13 (each such entity being a
Subsidiary Grantor
and, collectively, the
Subsidiary Grantors
; the Subsidiary
Grantors and the Company are referred to collectively as the
Grantors
), and The Bank of
New York, as Collateral Agent (in such capacity, the
Collateral Agent
) for the benefit of
the Secured Parties (as defined below).
W
I
T
N
E
S
S
E
T
H
:
WHEREAS, pursuant to the terms, conditions and provisions of (a) the Indenture dated as of the
date hereof (as amended, restated, supplemented or otherwise modified from time to time, the
Indenture
), among the Company, the Guarantors listed on the signature pages thereto and
The Bank of New York, as Trustee (the
Trustee
), (b) the Purchase Agreement dated November
9, 2006 (as amended, restated, supplemented, waived or otherwise modified from time to time, the
Purchase Agreement
), among Hercules Holding II, LLC (
Hercules Holding
) and the
several parties named in Schedule I thereto (the
Initial Purchasers
) and (c) the Joinder
Agreement dated as of the date hereof (the
Joinder Agreement
) among the Company, the
Subsidiary Grantors and the Initial Purchasers by which the Company and the Subsidiary Grantors
will assume all of Hercules Holdings obligations under the Purchase Agreement, the Company is
issuing (i) $1,000,000,000 aggregate principal amount of its
9
1
/
8
% Senior Secured Notes due 2014 (the
2014 Cash Pay Notes
), (ii) $3,200,000,000 aggregate principal amount of its 9
1
/
4
% Senior
Secured Notes due 2016 (the
2016 Cash Pay Notes
) and (iii) $1,500,000,000 aggregate
principal amount of its
9
5
/
8
%/10
3
/
8
% Senior Secured Toggle Notes due 2016 (the
Toggle Notes
and, together with the 2014 Cash Pay Notes and the 2016 Cash Pay Notes, the
Notes
), which
will be guaranteed on a senior secured basis by each of the Subsidiary Grantors;
WHEREAS, pursuant to the Credit Agreement dated as of the date hereof (as the same may be
amended, restated, supplemented or otherwise modified, refinanced or replaced in accordance with
the terms of the Indenture from time to time, the
Credit Agreement
) among the Company,
HCA UK Capital Limited, a limited liability company (company no. 04779021) formed under the laws of
England and Wales (the
European Subsidiary Borrower
and, together with the Company, the
Borrowers
), the lenders or other financial institutions or entities from time to time
parties thereto (the
Lenders
) and Bank of America, N.A., as Administrative Agent and as
Collateral Agent (the
First Lien Collateral Agent
), the Grantors have granted to the
First Lien Collateral Agent a senior priority lien and security interest in the Collateral (as
defined below);
WHEREAS, the Collateral Agent and the First Lien Collateral Agent have entered into an
Intercreditor Agreement with respect to the Non-Receivables Collateral dated as of the date hereof
(as amended, restated, supplemented or otherwise modified from time to time, the
General Intercreditor Agreement
), pursuant to which the lien upon and security
interest in the Non-Receivables Collateral granted by this Agreement are and shall be subordinated
in all respects to the lien upon and security interest in the Non-Receivables Collateral granted
pursuant to, and subject to the terms and conditions of, the First Lien Loan Documents (as defined
below);
WHEREAS, pursuant to the Credit Agreement dated as of the date hereof (as the same may be
amended, restated, supplemented or otherwise modified, refinanced or replaced in accordance with
the terms of the Indenture from time to time, the
ABL Credit Agreement
) among the
Company, the several subsidiary borrowers party thereto, the lenders or other financial
institutions or entities from time to time parties thereto and Bank of America, N.A., as
Administrative Agent and as Collateral Agent (the
ABL Collateral Agent
), the Grantors
have granted to the ABL Collateral Agent a senior priority lien and security interest in the
Receivables Collateral;
WHEREAS, the Collateral Agent, the ABL Collateral Agent and the First Lien Collateral Agent
have entered into an Intercreditor Agreement with respect to the Receivables Collateral dated as of
the date hereof (as amended, restated, supplemented or otherwise modified from time to time, the
Shared Receivables Intercreditor Agreement
), pursuant to which the lien upon and security
interest in the Receivables Collateral granted by this Agreement are and shall be subordinated in
all respects to the lien upon and security interest in the Receivables Collateral granted pursuant
to, and subject to the terms and conditions of, the First Lien Loan Documents;
WHEREAS, pursuant to the Indenture, each Subsidiary Grantor party thereto has unconditionally
and irrevocably guaranteed, as primary obligor and not merely as surety, to the Collateral Agent
for the benefit of the Secured Parties the prompt and complete payment and performance when due
(whether at the stated maturity, by acceleration or otherwise) of the Obligations (as defined
below);
WHEREAS, the proceeds of the issuance of the Notes will be used in part to enable valuable
transfers to the Subsidiary Grantors in connection with the operation of their respective
businesses;
WHEREAS, each Grantor acknowledges that it will derive substantial direct and indirect benefit
from the issuance of the Notes;
WHEREAS, it is a condition precedent to the obligation of the Initial Purchasers to purchase
the Notes under the Purchase Agreement that the Company and the Subsidiary Grantors shall have
executed and delivered this Security Agreement to the Collateral Agent for the benefit of the
Secured Parties; and
NOW, THEREFORE, for and in consideration of the premises, and of the mutual covenants herein
contained, and in order to induce the Trustee to enter into the Indenture and the Initial
Purchasers to purchase the Notes, each Grantor and the Collateral Agent, on behalf of itself and
each Secured Party (and each of their respective successors or assigns), hereby agree as follows:
-2-
1.
Defined Terms
.
(a) Unless otherwise defined herein, terms defined in the Indenture and used herein shall have
the meanings given to them in the Indenture.
(b) Terms used herein without definition that are defined in the UCC have the meanings given
to them in the UCC, including the following terms (which are capitalized herein): Account, Chattel
Paper, Commodity Contract, Documents, Instruments, Inventory, Letter of Credit, Letter-of-Credit
Right, Security Entitlement and Supporting Obligation.
(c) The following terms shall have the following meanings:
2014 Cash Pay Notes
shall have the meaning assigned to such term in the recitals
hereto.
2016 Cash Pay Notes
shall have the meaning assigned to such term in the recitals
hereto.
ABL Collateral Agent
shall have the meaning assigned to such term in the recitals
hereto.
ABL Controlled Accounts
shall mean, collectively, with respect to each Grantor, (i)
all deposit accounts and all securities accounts as such terms are defined in the UCC and all
accounts and sub-accounts relating to any of the foregoing accounts and (ii) all cash, funds,
checks, notes, securities entitlements (as such terms are defined in the UCC) and instruments
from time to time on deposit in any of the accounts or sub-accounts described in clause (i) of this
definition, in each case, which are subject to a control agreement in favor of the ABL Collateral
Agent (it being understood that no such account or funds shall be deemed to be an ABL Controlled
Account at any time that such account or funds are not subject to a control agreement in favor of
the ABL Collateral Agent unless an Event of Default has occurred and is continuing on the date such
account or funds would have otherwise ceased to constitute an ABL Controlled Account ).
ABL Credit Agreement
shall have the meaning assigned to such term in the recitals
hereto.
Account Debtor
shall mean account debtor as defined in Article 9 of the UCC, and
any other Person who may become obligated to an Indenture Party under, with respect to, or on
account of an Account of such Indenture Party (including without limitation any guarantor or
performance of an Account).
Additional Secured Debt Documents
means any document or instrument executed and
delivered with respect to any Additional Secured Obligations.
Additional Secured Obligations
shall have the meaning provided in Section 8.17.
-3-
Additional Secured Parties
shall mean the holders from time to time of Additional
Secured Obligations.
Additional Secured Party Consent
shall mean a completed Additional Secured Party
consent in the form of
Annex C
hereto.
Applicable Control Agreement
shall mean any Control Agreement in favor of the ABL
Collateral Agent as to which the ABL Collateral Agent has agreed in writing that its Control over
the ABL Controlled Accounts covered thereby is also for the benefit of the Secured Parties.
Authorized Officer
shall mean the President, the Chief Financial Officer, the
Treasurer, the Vice President-Finance or any other senior officer of the Company designated as such
in writing to the Collateral Agent by the Company.
Authorized Representative
means (i) the Trustee for so long as the Notes are
Obligations hereunder and (ii) any duly authorized representative of any Additional Secured Parties
designated as an Authorized Representative for any Additional Secured Parties in an Additional
Secured Party Consent delivered to the Collateral Agent and the other Authorized Representatives in
accordance with Section 8.17 for so long as the Additional Secured Obligations for which such party
is serving in such capacity constitutes Secured Obligations hereunder.
Change in Law
shall mean (a) the adoption of any law, treaty, order, policy, rule or
regulation after the date of this Agreement, (b) any change in any law, treaty, order, policy, rule
or regulation or in the interpretation or application thereof by any Governmental Authority after
the date of this Agreement or (c) any guideline, request or directive issued or made after the date
hereof by any central bank or other governmental or quasi-governmental authority (whether or not
having the force of law) that requires compliance by a Holder.
Collateral
shall have the meaning provided in Section 2.
Collateral Account
shall mean any collateral account established by the Collateral
Agent as provided in Section 5.1 or Section 5.3.
Collateral Agent
shall have the meaning provided in the preamble hereto.
Company
shall have the meaning assigned to such term in the preamble hereto.
Control
shall mean control, as such term is defined in Section 9-104 or 9-106, as
applicable, of the UCC.
Contractual Requirement
means (a) any applicable provision of any material law,
statute, rule, regulation, order, writ, injunction or decree of any court or governmental
instrumentality, (b) any of the terms, covenants, conditions or provisions of, or constitute a
default under, or result in the creation or imposition of (or the obligation to create or impose)
any Lien upon any of the property or assets of such Indenture Party or any of the Restricted
Subsidiaries (other than Liens created under the Indenture Documents or Liens subject to the
Intercreditor
-4-
Agreements) pursuant to, the terms of any material indenture, loan agreement, lease
agreement, mortgage, deed of trust, agreement or other material instrument to which such Indenture
Party or any of the Restricted Subsidiaries is a party or by which it or any of its property or
assets is bound.
Control Agreement
shall mean an agreement (which, if in favor of the Collateral
Agent, shall be in form reasonably satisfactory to the Collateral Agent) establishing a Persons
Control with respect to any ABL Controlled Account (it being understood that any such agreement in
favor of the Collateral Agent may be the same agreement granting Control to the ABL Collateral
Agent).
Copyright License
shall mean any written agreement, now or hereafter in effect,
granting any right to any third party under any copyright now or hereafter owned by any Grantor
(including all Copyrights) or that any Grantor otherwise has the right to license, or granting any
right to any Grantor under any copyright now or hereafter owned by any third party, and all rights
of any Grantor under any such agreement, including those listed on
Schedule I
.
copyrights
shall mean, with respect to any Person, all of the following now owned or
hereafter acquired by such Person: (i) all copyright rights in any work subject to the copyright
laws of the United States or any other country, whether as author, assignee, transferee or
otherwise, and (ii) all registrations and applications for registration of any such copyright in
the United States or any other country, including registrations, recordings, supplemental
registrations and pending applications for registration in the United States Copyright Office.
Copyrights
shall mean all copyrights now owned or hereafter acquired by any Grantor,
including those listed on
Schedule II
.
Credit Agreement
shall have the meaning assigned to such term in the recitals
hereto.
equipment
shall mean all equipment, as such term is defined in Article 9 of the
UCC, now or hereafter owned by any Grantor or to which any Grantor has rights and, in any event,
shall include all machinery, equipment, furnishings, movable trade fixtures and vehicles now or
hereafter owned by any Grantor or to which any Grantor has rights and any and all Proceeds,
additions, substitutions and replacements of any of the foregoing, wherever located, together with
all attachments, components, parts, equipment and accessories installed thereon or affixed thereto;
but excluding equipment to the extent it is subject to a Lien, in each case, in connection with
Indebtedness permitted by the Indenture, and the terms of the Indebtedness secured by such Lien
prohibit assignment of, or granting of a security interest in, such Grantors rights and interests
therein (other than to the extent that any such prohibition would be rendered ineffective pursuant
to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor provision or provisions) of
any relevant jurisdiction or any other applicable law),
provided
, that immediately upon the
repayment of all Indebtedness secured by such Lien, such Grantor shall be deemed to have granted a
Security Interest in all the rights and interests with respect to such equipment.
-5-
Excluded Stock and Stock Equivalents
shall mean (i) any Stock or Stock Equivalents
subject to a Lien permitted by clauses (8), (9) and (18) (to the extent such Lien secures a
refinancing, refunding, extension, renewal or replacement of any Indebtedness secured by a Lien
referred to in clause (8) or (9)) of the definition of Permitted Liens in the Indenture, (ii) any
Stock or Stock Equivalents with respect to which, in the reasonable judgment of the Company
(confirmed in writing by notice to the Collateral Agent), the cost or other consequences (including
any adverse tax consequences) of doing so shall be excessive in view of the benefits to be obtained
by the Secured Parties therefrom, (iii) any Stock or Stock Equivalents of any class of any Foreign
Subsidiary in excess of 65% of the outstanding Stock or Stock Equivalents of such class (such
percentage to be adjusted upon any Change in Law as may be required to avoid adverse U.S. federal
income tax consequences to the Company or any Subsidiary of the Company), (iv) any Stock or Stock
Equivalents to the extent the pledge thereof would violate any applicable Requirement of Law, (v)
in the case of Stock or Stock Equivalents of any Subsidiary that is not wholly-owned by the Company
and its Subsidiaries at the time such Subsidiary becomes a Subsidiary, any Stock or Stock
Equivalents of such Subsidiary to the extent (A) that a pledge thereof to secure the Obligations is
prohibited by any applicable Contractual Requirement (other than customary non-assignment
provisions which are ineffective under the Uniform Commercial Code or other applicable law), (B)
any Contractual Requirement prohibits such a pledge without the consent of any other party;
provided
that this clause (B) shall not apply if (I) such other party is an Indenture Party
or Wholly-Owned Subsidiary of the Company or (II) such consent has been obtained (it being
understood that the foregoing shall not be deemed to obligate the Company or any Subsidiary of the
Company to obtain any such consent)) and for so long as such Contractual Requirement or replacement
or renewal thereof is in effect, or (C) a pledge thereof to secure the Obligations would give any
other party (other than an Indenture Party or Wholly-Owned Subsidiary of the Company) to any
contract, agreement, instrument or indenture governing such Stock or Stock Equivalents the right to
terminate its obligations thereunder (other than customary non-assignment provisions which are
ineffective under the Uniform Commercial Code or other applicable law) and (vi) any Stock or Stock
Equivalents of any Subsidiary of the Company to the extent that (A) the pledge of such Stock or
Stock Equivalents would result in adverse tax consequences to the Company or any Subsidiary as
reasonably determined by the Company and (B) such Stock or Stock Equivalents have been identified
in writing to the Collateral Agent by an Authorized Officer of the Company.
First Lien Collateral Agent
shall have the meaning assigned to such term in the
recitals hereto.
General Intangibles
shall mean all general intangibles as such term is defined in
Article 9 of the UCC and, in any event, including with respect to any Grantor, all contracts,
agreements, instruments and indentures in any form, and portions thereof, to which such Grantor is
a party or under which such Grantor has any right, title or interest or to which such Grantor or
any property of such Grantor is subject, as the same may from time to time be amended, supplemented
or otherwise modified, including (a) all rights of such Grantor to receive moneys due and to become
due to it thereunder or in connection therewith, (b) all rights of such Grantor to receive proceeds
of any insurance, indemnity, warranty or guarantee with respect thereto, (c) all claims of such
Grantor for damages arising out of any breach of or default thereunder and (d) all rights of such
Grantor to terminate, amend, supplement, modify or exercise rights or options
-6-
thereunder, to perform thereunder and to compel performance and otherwise exercise all
remedies thereunder, in each case to the extent the grant by such Grantor of a Security Interest
pursuant to this Security Agreement in its right, title and interest in any such contract,
agreement, instrument or indenture (i) is not prohibited by such contract, agreement, instrument or
indenture without the consent of any other party thereto (other than an Indenture Party), (ii)
would not give any other party (other than an Indenture Party) to any such contract, agreement,
instrument or indenture the right to terminate its obligations thereunder or (iii) is permitted
with consent if all necessary consents to such grant of a Security Interest have been obtained from
the other parties thereto (other than to the extent that any such prohibition referred to in
clauses (i), (ii) and (iii) would be rendered ineffective pursuant to Sections 9-406, 9-407, 9-408
or 9 409 of the Uniform Commercial Code (or any successor provision or provisions) of any relevant
jurisdiction or any other applicable law) (it being understood that the foregoing shall not be
deemed to obligate such Grantor to obtain such consents),
provided
that the foregoing
limitation shall not affect, limit, restrict or impair the grant by such Grantor of a Security
Interest pursuant to this Security Agreement in any Account or any money or other amounts due or to
become due under any such contract, agreement, instrument or indenture.
General Intercreditor Agreement
shall have the meaning assigned to such term in the
recitals hereto.
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.
Grantor
shall have the meaning assigned to such term in the preamble hereto.
Hercules Holding
shall have the meaning assigned to such term in the recitals
hereto.
Indenture
shall have the meaning assigned to such term in the recitals hereto.
Indenture Documents
means (a) the Indenture, the Notes, the other Security Documents
and this Agreement and (b) any other related documents or instruments executed and delivered
pursuant to the Indenture or any Security Document, in each case, as such agreements may be
amended, restated, supplemented or otherwise modified from time to time.
Indenture Party
means the Company and the Guarantors.
Intellectual Property
shall mean all of the following now owned or hereafter
acquired by any Grantor: (A) all Copyrights, Trademarks and Patents, and (B) all rights, priorities
and privileges relating to intellectual property, whether arising under United States,
multinational or foreign laws or otherwise now owned or hereafter acquired, including (a) all
information used or useful arising from the business including all goodwill, trade secrets, trade
secret rights, know-how, customer lists, processes of production, ideas, confidential business
information, techniques, processes, formulas and all other proprietary information, and (b) rights,
priorities and privileges relating to the Copyrights, the Patents, the Trademarks and the Licenses
and all
-7-
rights to sue at law or in equity for any infringement or other impairment thereof,
including the right to receive all proceeds and damages therefrom, in each case to the extent the
grant by such Grantor of a Security Interest pursuant to this Security Agreement in any such
rights, priorities and privileges relating to intellectual property (i) is not prohibited by any
contract, agreement or other instrument governing such rights, priorities and privileges without
the consent of any other party thereto (other than an Indenture Party), (ii) would not give any
other party (other than an Indenture Party) to any such contract, agreement or other instrument the
right to terminate its obligations thereunder or (iii) is permitted with consent if all necessary
consents to such grant of a Security Interest have been obtained from the relevant parties (other
than to the extent that any such prohibition referred to in clauses (i), (ii) and (iii) would be
rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor
provision or provisions) of any relevant jurisdiction or any other applicable law) (it being
understood that the foregoing shall not be deemed to obligate such Grantor to obtain such
consents).
Initial Purchasers
shall have the meaning assigned to such term in the recitals
hereto.
Investment Property
shall mean all Securities (whether certificated or
uncertificated), Security Entitlements and Commodity Contracts of any Grantor (other than (i) as
pledged pursuant to the Pledge Agreement and (ii) any Stock or Stock Equivalents of any Foreign
Subsidiary in excess of 65% of the outstanding class of such Stock or Stock Equivalents), whether
now or hereafter acquired by any Grantor, except, in each case, to the extent the grant by a
Grantor of a Security Interest therein pursuant to this Security Agreement in its right, title and
interest in any such Investment Property (i) is prohibited by any contract, agreement, instrument
or indenture governing such Investment Property without the consent of any other party thereto
(other than an Indenture Party or a Wholly-Owned Subsidiary) unless such consent has been expressly
obtained (it being understood that there shall be no obligation to seek or obtain such consent), or
(ii) would give any other party (other than an Indenture Party or a Wholly-Owned Subsidiary) to any
such contract, agreement, instrument or indenture the right to terminate its obligations thereunder
(other than to the extent that any such prohibition referred to in clauses (i) and (ii) would be
rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the UCC (or any successor
provision or provisions) of any relevant jurisdiction or any other applicable law) (it being
understood that the foregoing shall not be deemed to obligate any Grantor to seek or obtain any
such consents referred to in clauses (i) or (ii) above).
Joinder Agreement
shall have the meaning assigned to such term in the recitals
hereto.
License
shall mean any Patent License, Trademark License, Copyright License or other
license or sublicense to which any Grantor is a party.
Mortgage
shall mean a Mortgage, Assignment of Leases and Rents, Security Agreement
and Financing Statement or other security document entered into by the owner of a Mortgaged
Property and the Collateral Agent in respect of that Mortgaged Property to secure the
Obligations, substantially in the form as required by the General Credit Facility, as the same
may be amended, supplemented or otherwise modified from time to time.
-8-
Mortgaged Property
shall mean, initially, each parcel of real estate and the
improvements thereto owned by the Issuer or any Grantor and identified on Schedule VIII, and
includes each other parcel of real property and improvements thereto with respect to which a
Mortgage is granted pursuant to Section 4.5.
Notes
shall have the meaning assigned to such term in the recitals hereto.
Obligations
shall mean (i) any principal, interest (including any interest accruing
subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding with
respect to any Indenture Party at the rate provided for in the Indenture Documents, whether or not
such interest is an allowed claim under applicable state, federal or foreign law), premium,
penalties, fees, indemnifications, reimbursements, damages and other liabilities, and guarantees of
payment of such principal, interest, penalties, fees, indemnifications, reimbursements, damages and
other liabilities, payable to any Secured Party under the Notes, the Indenture and any other
Indenture Documents and all other obligations, covenants and duties of, any Indenture Party arising
under any Indenture Document or otherwise with respect to any Indenture Document, and (ii) if any
Additional Secured Obligations are incurred, all obligations, liabilities and indebtedness
(including, without limitation, principal, premium, interest (including any interest accruing
subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding with
respect to any Grantor at the rate provided for in the respective documentation, whether or not
such interest is an allowed claim under any applicable state, federal or foreign law)) owing to any
holder of Additional Secured Obligations (that has been designated as Additional Secured
Obligations pursuant to Section 8.17) under any Additional Secured Debt Documents.
Patent License
shall mean any written agreement, now or hereafter in effect,
granting to any third party any right to make, use or sell any invention on which a patent, now or
hereafter owned by any Grantor (including all Patents) or that any Grantor otherwise has the right
to license, is in existence, or granting to any Grantor any right to make, use or sell any
invention on which a patent, now or hereafter owned by any third party, is in existence, and all
rights of any Grantor under any such agreement, including those listed on
Schedule III
.
patents
shall mean, with respect to any Person, all of the following now owned or
hereafter acquired by such Person: (a) all letters patent of the United States or the equivalent
thereof in any other country, all registrations and recordings thereof, and all applications for
letters patent of the United States or the equivalent thereof in any other country, including
registrations, recordings and pending applications in the United States Patent and Trademark Office
or any similar offices in any other country, and (b) all reissues, continuations, divisions,
continuations-in-part, renewals or extensions thereof, and the inventions disclosed or claimed
therein, including the right to make, use and/or sell the inventions disclosed or claimed therein.
Patents
shall mean all patents now owned or hereafter acquired by any Grantor,
including those listed on
Schedule IV
.
Proceeds
shall mean all proceeds as such term is defined in Article 9 of the UCC
and, in any event, shall include with respect to any Grantor, any consideration received from the
sale, exchange, license, lease or other disposition of any asset or property that constitutes
Collateral, any value received as a consequence of the possession of any Collateral and any
-9-
payment received from any insurer or other Person or entity as a result of the destruction, loss, theft,
damage or other involuntary conversion of whatever nature of any asset or property that constitutes
Collateral, and shall include (a) all cash and negotiable instruments received by or held on behalf
of the Collateral Agent, (b) any claim of any Grantor against any third party for (and the right to
sue and recover for and the rights to damages or profits due or accrued arising out of or in
connection with) (i) past, present or future infringement of any Patent now or hereafter owned by
any Grantor, or licensed under a Patent License, (ii) past, present or future infringement or
dilution of any Trademark now or hereafter owned by any Grantor or licensed under a Trademark
License or injury to the goodwill associated with or symbolized by any Trademark now or hereafter
owned by any Grantor, (iii) past, present or future breach of any License and (iv) past, present or
future infringement of any Copyright now or hereafter owned by any Grantor or licensed under a
Copyright License and (c) any and all other amounts from time to time paid or payable under or in
connection with any of the Collateral.
Purchase Agreement
shall have the meaning assigned to such term in the recitals
hereto.
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.
Secured Parties
shall mean, collectively, (a) the Collateral Agent, (b) each Holder
(including the Holders of any Additional Notes issued under and in compliance with the terms of the
Indenture), (c) the beneficiaries of each indemnification obligation undertaken by any Indenture
Party under any Indenture Document, (d) the Trustee, (e) Additional Secured Parties and their
Authorized Representatives;
provided
that such Additional Secured Parties and their
Authorized Representatives comply with Section 8.17 hereof and execute an Additional Secured Party
Consent and (f) the successors and permitted assigns of each of the foregoing.
Security Agreement
shall mean this Security Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.
Security Interest
shall have the meaning provided in Section 2.
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 Intercreditor Agreement
shall have the meaning assigned to such
term in the recitals hereto.
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
-10-
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.
Subsidiary Grantor
shall have the meaning assigned to such term in the preamble
hereto.
Third Party Payor
shall mean any governmental entity, insurance company, health
maintenance organization, professional provider organization or similar entity that is obligated to
make payments on any Account.
Toggle Notes
shall have the meaning assigned to such term in the recitals hereto.
Trademark License
shall mean any written agreement, now or hereafter in effect,
granting to any third party any right to use any trademark now or hereafter owned by any Grantor
(including any Trademark) or that any Grantor otherwise has the right to license, or granting to
any Grantor any right to use any trademark now or hereafter owned by any third party, and all
rights of any Grantor under any such agreement, including those listed on
Schedule V
.
trademarks
shall mean, with respect to any Person, all of the following now owned or
hereafter acquired by such Person: (i) all trademarks, service marks, trade names, corporate
names, company names, business names, fictitious business names, trade styles, trade dress, logos,
other source or business identifiers, designs and general intangibles of like nature, now existing
or hereafter adopted or acquired, all registrations and recordings thereof (if any), and all
registration and recording applications filed in connection therewith, including registrations and
registration applications in the United States Patent and Trademark Office or any similar offices
in any State of the United States or any other country or any political subdivision thereof, and
all extensions or renewals thereof, (ii) all goodwill associated therewith or symbolized thereby
and (iii) all other assets, rights and interests that uniquely reflect or embody such goodwill.
Trademarks
shall mean all trademarks now owned or hereafter acquired by any Grantor,
including those listed on
Schedule VI
hereto;
provided
that any intent to use
Trademark applications for which a statement of use has not been filed (but only until such
statement is filed) are excluded from this definition.
Trustee
shall have the meaning assigned to such term in the recitals hereto.
UCC
shall mean the Uniform Commercial Code as from time to time in effect in the
State of New York;
provided
,
however
, that, in the event that, by reason of
mandatory provisions of law, any of the attachment, perfection or priority of the Collateral
Agents and the Secured Parties security interest in any Collateral is governed by the Uniform
Commercial Code
-11-
as in effect in a jurisdiction other than the State of New York, the term
UCC
shall mean the Uniform Commercial Code
as in effect in such other jurisdiction for
purposes of the provisions hereof relating to such attachment, perfection or priority and for
purposes of definitions related to such provisions.
(d) The words hereof, herein, hereto and hereunder and words of similar import when
used in this Security Agreement shall refer to this Security Agreement as a whole and not to any
particular provision of this Security Agreement, and Section, subsection, clause and Schedule
references are to this Security Agreement unless otherwise specified. The words include,
includes and including shall be deemed to be followed by the phrase without limitation.
(e) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.
(f) Where the context requires, terms relating to the Collateral or any part thereof, when
used in relation to a Grantor, shall refer to such Grantors Collateral or the relevant part
thereof.
2.
Grant of Security Interest
.
(a) Each Grantor hereby bargains, sells, conveys, assigns, sets over, mortgages, pledges,
hypothecates and transfers to the Collateral Agent, for the benefit of the Secured Parties, and
grants to the Collateral Agent, for the benefit of the Secured Parties, a lien on and security
interest in (the
Security Interest
), all of its right, title and interest in, to and
under all of the following property now owned or at any time hereafter acquired by such Grantor or
in which such Grantor now has or at any time in the future may acquire any right, title or interest
(collectively, the
Collateral
), as collateral security for the prompt and complete
payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of
the Obligations:
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all Documents;
(iv) all equipment;
(v) all General Intangibles;
(vi) all Instruments;
(vii)
all Intellectual Property;
(viii)
all Inventory;
(ix) all Investment Property;
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(x) all Letters of Credit and Letter-of-Credit Rights;
(xi)
all Supporting Obligations;
(xii) all Collateral Accounts and all ABL Controlled Accounts;
(xiii) all books and records pertaining to the Collateral; and
(xiv) the extent not otherwise included, all Proceeds and products of any and all of
the foregoing;
provided
, that (x) the Collateral for any Obligations shall not include any Excluded Stock
and Stock Equivalents with respect to such Obligations, (y) none of the items included in clauses
(i) through (xiv) above shall constitute Collateral to the extent (and only to the extent) that the
grant of the Security Interest therein would violate any Requirement of Law applicable to such
Collateral and (z) notwithstanding the foregoing or anything else in this Agreement to the
contrary, the Collateral shall not include any Principal Properties.
(b) Each Grantor hereby irrevocably authorizes the Collateral Agent and its Affiliates,
counsel and other representatives, at any time and from time to time, to file or record financing
statements, amendments to financing statements and, with notice to the Company, and other filing or
recording documents or instruments with respect to the Collateral in such form and in such offices
as the Collateral Agent reasonably determines appropriate to perfect the security interests of the
Collateral Agent under this Security Agreement, and such financing statements and amendments may
described the Collateral covered thereby as all assets, all personal property or words of
similar effect (except that, in any event, such financing statement shall also contain an express
exclusion with respect to the limitation of the Security Interest in Principal Properties
substantially to the effect set forth in clause (c) below). Each Grantor hereby also authorizes
the Collateral Agent and its Affiliates, counsel and other representatives, at any time and from
time to time, to file continuation statements with respect to previously filed financing
statements. A photographic or other reproduction of this Security Agreement shall be sufficient as
a financing statement or other filing or recording document or instrument for filing or recording
in any jurisdiction to the Collateral Agent.
Each Grantor hereby agrees to provide to the Collateral Agent, promptly upon request, any
information reasonably necessary to effectuate the filings or recordings authorized by this Section
2(b).
The Collateral Agent is further authorized to file with the United States Patent and Trademark
Office or United States Copyright Office (or any successor office or any similar office in any
other country) such documents as may be necessary or advisable for the purpose of
perfecting, confirming, continuing, enforcing or protecting the Security Interest granted by
each Grantor, without the signature of any Grantor, and naming any Grantor or the Grantors as
debtors and the Collateral Agent, as the case may be, as secured party.
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The Security Interests are granted as security only and shall not subject the Collateral Agent
or any other Secured Party to, or in any way alter or modify, any obligation or liability of any
Grantor with respect to or arising out of the Collateral.
(c) Notwithstanding any other provision hereof, to the extent that any portion of the
Collateral is construed to include one or more Principal Properties (it being understood that any
such construction would be in direct violation of clause (z) of the proviso to Section 2(a) above),
the principal amount of Obligations secured by all such Principal Properties shall be limited to
the maximum aggregate principal amount of indebtedness that may be secured at any time without
giving rise to any requirement under the Existing Notes Indenture to secure any obligation
thereunder equally and ratably (or prior to) the Obligations (it being understood that the
principal amount of Obligations secured by the Principal Properties of any Grantor shall in no
event be reduced as a result of any security interest granted or obligation incurred after the
Issue Date and during the pendency of any Insolvency or Liquidation Proceeding with respect to such
Grantor). If after the Issue Date any Existing Note becomes required to be secured by a Lien on
Principal Properties as a result of (a) the Company or any Subsidiary granting a Lien on any
Principal Property, but only if such requirement would have arisen solely as a result of Liens on
Principal Properties other than Liens granted pursuant to any Security Document, (b) the Company or
any Subsidiary entering into any Sale and Lease-Back Transaction (as defined in the Existing Notes
Indenture, as in effect on the Issue Date), (c) any Restricted Subsidiary under and as defined in
the Existing Notes Indenture incurring Debt (as defined in the Existing Notes Indenture, as in
effect on the Issue Date) or issuing Preferred Stock (as defined in the Existing Notes Indenture,
as in effect on the Issue Date), or (ii) the Existing Notes Indenture ceases to be in effect as a
result of a satisfaction and discharge or defeasance thereof in accordance with its terms, then, in
each such case, the Obligations secured hereunder by Collateral consisting of one or more Principal
Properties shall become equal to the maximum aggregate amount of Obligations outstanding.
(d) Notwithstanding anything to the contrary in this Section 2, the term Collateral for the
purposes hereof shall not include any of the following:
(i) the European Collateral and the Separate Receivables Collateral;
(ii) any Capital Stock and other securities of a Subsidiary (excluding
Healthtrust, Inc.The Hospital Company, a Delaware corporation and its successors
and assigns) to the extent that the pledge of such Capital Stock and other
securities would result in the Company being required to file separate financial
statements of such Subsidiary with the SEC, but only to the extent necessary to not
be subject to such requirement and only for so long as such requirement is in
existence and only with respect to the relevant Notes affected;
provided
that
neither the Company nor any Subsidiary shall take any action in the form of a
reorganization, merger or other restructuring a principal purpose of
which is to provide for the release of the Lien on any Capital Stock pursuant
to this clause (ii). In addition, in the event that Rule 3-16 of Regulation S-X
under the Securities Act is amended, modified or interpreted by the SEC to require
(or is replaced with another rule or regulation, or any other law, rule or
regulation is adopted, which
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would require) the filing with the SEC (or any other
Governmental Authority) of separate financial statements of any Subsidiary of the
Company due to the fact that such Subsidiarys Capital Stock secures the Obligations
affected thereby, then the Capital Stock of such Subsidiary will automatically be
deemed not to be part of the Collateral securing the relevant Obligations affected
thereby but only to the extent necessary to not be subject to such requirement and
only for so long as required to not be subject to such requirement. In such event,
this Agreement may be amended or modified, without the consent of any Secured Party,
to the extent necessary to release the Security Interests in favor of the Collateral
Agent on the shares of Capital Stock that are so deemed to no longer constitute part
of the Collateral for the relevant Obligations. In the event that Rule 3-16 of
Regulation S-X under the Securities Act is amended, modified or interpreted by the
SEC to permit (or is replaced with another rule or regulation, or any other law,
rule or regulation is adopted, which would permit) such Subsidiarys Capital Stock
to secure the Obligations in excess of the amount then pledged without the filing
with the SEC (or any other Governmental Authority) of separate financial statements
of such Subsidiary, then the Capital Stock of such Subsidiary will automatically be
deemed to be a part of the Collateral for the relevant Obligations but only to the
extent necessary to not be subject to any such financial statement requirement;
(iii) any leaseholds and motor vehicles of the Company or any Guarantor; and
(iv) proceeds and products from any and all of the foregoing excluded
collateral described in clauses (i) through (iii), unless such proceeds or products
would otherwise constitute Collateral hereunder.
3.
Representations and Warranties
.
Each Grantor hereby represents and warrants to the Collateral Agent and each Secured Party
that:
3.1
Title; No Other Liens
. Except for (a) the Security Interest granted to the
Collateral Agent for the benefit of the Secured Parties pursuant to this Security Agreement, (b)
the Liens permitted by the Indenture and (c) any Liens securing Indebtedness which is no longer
outstanding or any Liens with respect to commitments to lend which have been terminated, such
Grantor owns each item of the Collateral free and clear of any and all Liens or claims of others.
No security agreement, financing statement or other public notice with respect to all or any part
of the Collateral that evidences a Lien securing any material Indebtedness is on file or of record
in any public office, except such as (i) have been filed in favor of the Collateral Agent for the
benefit of the Secured Parties pursuant to this Security Agreement, the First Lien Secured
Parties or the ABL Secured Parties or (ii) are permitted by the Indenture.
3.2
Perfected Liens
.
(a) This Security Agreement is effective to create in favor of the Collateral Agent, for its
benefit and for the benefit of the Secured Parties, legal, valid and en-
-15-
forceable Security Interests
in the Collateral, subject to the effects of bankruptcy, insolvency or similar laws affecting
creditors rights generally and general equitable principles.
(b) Subject to the limitations set forth in clause (c) of this Section 3.2, the Security
Interests granted pursuant to this Security Agreement (i) will constitute valid and perfected
Security Interests in the Collateral (as to which perfection may be obtained by the filings or
other actions described in clause (A), (B) or (C) of this paragraph) in favor of the Collateral
Agent, for the benefit of the Secured Parties, as collateral security for the Obligations, upon (A)
the completion of the filing in the applicable filing offices of all financing statements, in each
case, naming each Grantor as debtor and the Collateral Agent as secured party and describing
the Collateral, (B) subject to Section 8.15, delivery of all Instruments, Chattel Paper,
Certificated Securities and negotiable Documents in each case, properly endorsed for transfer to
the Collateral Agent or in blank and (C) completion of the filing, registration and recording of a
fully executed agreement in the form hereof (or a supplement hereto) and containing a description
of all Collateral constituting Intellectual Property in the United States Patent and Trademark
Office (or any successor office) within the three-month period (commencing as of the date hereof)
or, in the case of Collateral constituting Intellectual Property acquired after the date hereof,
thereafter pursuant to 35 USC § 261 and 15 USC § 1060 and the regulations thereunder with respect
to United States Patents and United States registered Trademarks and in the United States Copyright
Office (or any successor office) within the one-month period (commencing as of the applicable date
of acquisition or filing) or, in the case of Collateral constituting Intellectual Property acquired
after the date hereof, thereafter with respect to United States registered Copyrights pursuant to
17 USC § 205 and the regulations thereunder as soon as reasonably practicable, and otherwise as may
be required pursuant to the laws of any other necessary jurisdiction to the extent that a security
interest may be perfected by such filings, registrations and recordings, and (ii) are prior to or
equal to all other Liens on the Collateral other than Permitted Liens and Liens permitted pursuant
to sub-clauses (b) and (c) of Section 4.13 of the Indenture.
(c) Notwithstanding anything to the contrary herein, no Grantor shall be required to perfect
the Security Interests granted by this Security Agreement (including Security Interests in
Investment Property) by any means other than by (i) filings pursuant to the Uniform Commercial Code
of the relevant State(s), (ii) filings approved by United States government offices with respect to
Intellectual Property, (iii) subject to Section 8.16, delivery to the Collateral Agent to be held
in its possession of all Collateral consisting of tangible Chattel Paper, Instruments or
Certificated Securities with a fair market value in excess of $10,000,000 individually and (iv) to
the extent required by Section 4.1(e), the execution of Control Agreements in favor of the
Collateral Agent.
(d) It is understood and agreed that the Security Interests in Investment Property created
hereunder shall not prevent the Grantors from using such assets in the ordinary course of their
respective businesses.
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4.
Covenants
.
Each Grantor hereby covenants and agrees with the Collateral Agent and the Secured Parties
that, from and after the date of this Security Agreement until the Obligations are paid in full:
4.1
Maintenance of Perfected Security Interest; Further Documentation
.
(a) Such Grantor shall maintain the Security Interest created by this Security Agreement as a
perfected Security Interest having at least the priority described in Section 3.1 and shall defend
such Security Interest against the claims and demands of all Persons whomsoever, in each case
subject to Section 3.2(c).
(b) Such Grantor will furnish to the Collateral Agent, on behalf of the holders of any
Obligations, from time to time statements and schedules further identifying and describing the
assets and property of such Grantor and such other reports in connection therewith as the
Collateral Agent may reasonably request.
(c) Subject to clause (d) below and Section 3.2(c), each Grantor agrees that at any time and
from time to time, at the expense of such Grantor, it will 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, including all applicable
documents required under Section 3.2(b)(i)(C)), which may be required under any applicable law, or
which, subject to the terms of the Intercreditor Agreements, the Collateral Agent may reasonably
request, in order (i) to grant, preserve, protect and perfect the validity and priority of the
Security Interests created or intended to be created hereby or (ii) to enable the Collateral Agent
to exercise and enforce its rights and remedies hereunder with respect to any Collateral, including
the filing of any financing or continuation statements under the Uniform Commercial Code in effect
in any jurisdiction with respect to the Security Interests created hereby and all applicable
documents required under Section 3.2(b)(i)(C), all at the expense of such Grantor.
(d) Notwithstanding anything in this Section 4.1 to the contrary, (i) with respect to any
assets acquired by such Grantor after the date hereof that are required to be subject to the Lien
created hereby or (ii) with respect to any Person that, subsequent to the date hereof, becomes a
Subsidiary that is required by the Indenture to become a party hereto, the relevant Grantor after
the acquisition or creation thereof shall promptly take all actions required by the Indenture or
this Agreement.
(e) In order better to perfect the security interest of the Secured Parties in ABL Controlled
Accounts which are subject to Applicable Control Agreements, each Grantor hereby grants to the ABL
Collateral Agent, for the benefit of the Secured Parties, and to the First Lien Collateral Agent
for the benefit of the Secured Parties a lien on and security
interest in, all of its right, title and interest in, to and under the ABL Controlled
Accounts. In the event any Applicable Control Agreement ceases to be in effect upon repayment in
full of the ABL Facility and the General Credit Facility, if an Event of Default exists at the time
such Applicable Control Agreement so ceases to be in effect, each Grantor shall cause its ABL
Con-
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trolled Accounts that were subject to such Applicable Control Agreements to become subject to a
Control Agreement on substantially similar terms in favor of the Collateral Agent. The Collateral
Agent hereby agrees that unless an Event of Default has occurred and is continuing, it will not
provide any notice of sole control (or equivalent notice) under any such Control Agreement.
4.2
Damage or Destruction of Collateral
. The Grantors agree promptly to notify the
Collateral Agent if any material portion of the Collateral is damaged or destroyed.
4.3
Notices
.
(a) Each Grantor will advise the Collateral Agent on behalf of the holders of any Obligations
promptly, in reasonable detail, of any Lien of which it has knowledge (other than the Security
Interests created hereby or Liens permitted under the Indenture) on any of the Collateral which
would adversely affect, in any material respect, the ability of the Collateral Agent to exercise
any of its remedies hereunder.
(b)
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 Indenture Party, (ii) in the
jurisdiction of organization or location of any Indenture Party for purposes of the Uniform
Commercial Code, (iii) in the identity or type of organization of any Indenture Party or
(iv) in the Federal Taxpayer Identification Number or organizational identification number
of any Indenture Party. The Company shall also promptly provide the Collateral Agent with
certified organizational documents reflecting any of the changes described in the first
sentence of this clause (b).
(c)
Certain Collateral Releases
. The Company shall deliver an Officers
Certificate to the Collateral Agent, within 30 calendar days following the end of each
six-month period that begins on May 15 and November 15 of each year, to the effect that all
releases and withdrawals of Collateral during the preceding six-month period (or since the
Issue Date, in the case of the first such certificate) in the ordinary course of the
Companys and the other Grantors business pursuant to SEC regulations or interpretations of
Section 314 of the Trust Indenture Act (including any no-action letter issued by the Staff
of the SEC, whether issued to the Company or any other Person), were not prohibited by the
Indenture.
4.4
Intellectual Property Collateral
. At the time of the delivery of the financial
statements provided for in Section 4.03 of the Indenture, the Company will deliver a written
supplement substantially in the form of
Annex A
hereto with respect to any additional
Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks and Trademark Licenses that
are registered (or for which an application to register such items has been filed) with the United
States Patent and Trademark Office or the United States Copyright Office (or any
successor to either such office) acquired by any Grantor following the Issue Date (or
following the date of the last supplement provided to the Collateral Agent pursuant to this Section
4.4), all in reasonable detail.
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4.5
Post-Closing Real Property Requirements
. To the extent such items have not been
delivered as of the Issue Date, within ninety (90) days after the Issue Date, unless waived or
extended by the Trustee in its sole discretion, the Issuer or Guarantor, as applicable, shall
deliver to the Trustee, with respect to each Mortgaged Property set forth on Schedule VIII, the
following:
(a) a Mortgage, executed and delivered by a duly authorized officer of each mortgagor party
thereto;
(b) all documents and instruments, including Uniform Commercial Code or other applicable
fixture security financing statements, reasonably requested by the Collateral Agent to be filed,
registered or recorded to create the Liens intended to be created by any Mortgage and perfect such
Liens to the extent required by, and with the priority required by, such Mortgage;
(c) a policy or policies of title insurance, or unconditional commitments therefor, issued by
a nationally recognized title insurance company insuring the Lien of each Mortgage as a valid Lien
on the Mortgaged Property described therein, free of any other Liens except as expressly permitted
by Section 4.13 of the Indenture or consented to by the Collateral Agent, together with such
endorsements, coinsurance and reinsurance as the Collateral Agent may reasonably request having the
effect of a valid, issued and binding title insurance policy;
(d) a completed Federal Emergency Management Agency Standard Flood Hazard Determination; and
(e) written opinions of local counsel in the states in which each such Mortgaged Property is
located in form and substance reasonably acceptable to the Collateral Agent.
5.
Remedial Provisions
.
5.1
Certain Matters Relating to Accounts
.
(a) Subject to the terms of the Intercreditor Agreements, at any time after the occurrence and
during the continuance of an Event of Default and after giving reasonable notice to the Company and
any other relevant Grantor, the Collateral Agent shall have the right, but not the obligation to
make test verifications of the Accounts in any manner and through any medium that the Collateral
Agent reasonably considers advisable, and each Grantor shall furnish all such assistance and
information as the Collateral Agent may require in connection with such test verifications. The
Collateral Agent shall have the absolute right to share any information it gains from such
inspection or verification with any Secured Party.
(b) Subject to the terms of the Intercreditor Agreements, the Collateral Agent hereby
authorizes each Grantor to collect such Grantors Accounts and the Collateral Agent may curtail or
terminate said authority at any time after the occurrence and during the continuance of an Event of
Default. If required in writing by the Collateral Agent at any time after the occurrence and
during the continuance of an Event of Default, any payments of Accounts, when collected by any
Grantor, (i) shall be forthwith (and, in any event, within two Busi-
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ness Days) deposited by such
Grantor in the exact form received, duly endorsed by such Grantor to the Collateral Agent if
required, in a Collateral Account maintained under the sole dominion and control of and on terms
and conditions reasonably satisfactory to the Collateral Agent, subject to withdrawal by the
Collateral Agent for the account of the Secured Parties only as provided in Sections 5.4 and 5.5,
and (ii) until so turned over, shall be held by such Grantor in trust for the Collateral Agent and
the Secured Parties, segregated from other funds of such Grantor. Each such deposit of Proceeds of
Accounts shall be accompanied by a report identifying in reasonable detail the nature and source of
the payments included in the deposit.
(c) Subject to the terms of the Intercreditor Agreements, at the Collateral Agents request at
any time after the occurrence and during the continuance of an Event of Default, each Grantor shall
deliver to the Collateral Agent all original and other documents evidencing, and relating to, the
agreements and transactions which gave rise to the Accounts, including all original orders,
invoices and shipping receipts.
(d) Upon the occurrence and during the continuance of an Event of Default, a Grantor shall not
grant any extension of the time of payment of any of the Accounts, compromise, compound or settle
the same for less than the full amount thereof, release, wholly or partly, any Person liable for
the payment thereof, or allow any credit or discount whatsoever thereon if the Collateral Agent
shall have instructed the Grantors not to grant or make any such extension, credit, discount,
compromise or settlement under any circumstances during the continuance of such Event of Default.
(e) Subject to the terms of the General Intercreditor Agreement, at the direction of the
Collateral Agent, upon the occurrence and during the continuance of an Event of Default, each
Grantor shall grant to the Collateral Agent to the extent assignable, an irrevocable,
non-exclusive, fully paid-up, royalty-free, worldwide license to use, assign, license or sublicense
any of the Intellectual Property now owned or hereafter acquired by such Grantor. Such license
shall include access to all media in which any of the licensed items may be recorded or stored and
to all computer programs used for the compilation or printout thereof.
5.2
Communications with Credit Parties; Grantors Remain Liable
.
(a) The Collateral Agent in its own name or in the name of others may at any time after the
occurrence and during the continuance of an Event of Default, after giving reasonable notice to the
relevant Grantor of its intent to do so, communicate with obligors under the Accounts to verify
with them to the Collateral Agents satisfaction the existence, amount and terms of any Accounts.
The Collateral Agent shall have the absolute right to share any information it gains from such
inspection or verification with any Secured Party.
(b) Subject to the terms of the Intercreditor Agreements, upon the written request of the
Collateral Agent at any time after the occurrence and during the continuance of an Event of
Default, each Grantor shall notify obligors on the Accounts that the Accounts have been assigned to
the Collateral Agent for the benefit of the Secured Parties and that payments in respect thereof
shall be made directly to the Collateral Agent.
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(c) Anything herein to the contrary notwithstanding, each Grantor shall remain liable under
each of the Accounts to observe and perform all the conditions and obligations to be observed and
performed by it thereunder, all in accordance with the terms of any agreement giving rise thereto.
Neither the Collateral Agent nor any Secured Party shall have any obligation or liability under any
Account (or any agreement giving rise thereto) by reason of or arising out of this Security
Agreement or the receipt by the Collateral Agent or any Secured Party of any payment relating
thereto, nor shall the Collateral Agent or any Secured Party be obligated in any manner to perform
any of the obligations of any Grantor under or pursuant to any Account (or any agreement giving
rise thereto), to make any payment, to make any inquiry as to the nature or the sufficiency of any
payment received by it or as to the sufficiency of any performance by any party thereunder, to
present or file any claim, to take any action to enforce any performance or to collect the payment
of any amounts which may have been assigned to it or to which it may be entitled at any time or
times.
5.3
Proceeds to be Turned Over to Collateral Agent
. In addition to the rights of the
Collateral Agent and the Secured Parties specified in Section 5.1 with respect to payments of
Accounts and subject to the terms of the Intercreditor Agreements, if an Event of Default shall
occur and be continuing and the Collateral Agent so requires by notice in writing to the relevant
Grantor (it being understood that the exercise of remedies by the Secured Parties in connection
with an Event of Default under Article 6 of the Indenture shall be deemed to constitute a request
by the Collateral Agent for the purposes of this sentence and in such circumstances, no such
written notice shall be required), all Proceeds received by any Grantor consisting of cash, checks
and other near cash items shall be held by such Grantor in trust for the Collateral Agent and the
Secured Parties, segregated from other funds of such Grantor, and shall, forthwith upon receipt by
such Grantor, be turned over to the Collateral Agent in the exact form received by such Grantor
(duly endorsed by such Grantor to the Collateral Agent, if required). All Proceeds received by the
Collateral Agent hereunder shall be held by the Collateral Agent in a Collateral Account maintained
under its dominion and control and on terms and conditions reasonably satisfactory to the
Collateral Agent. All Proceeds while held by the Collateral Agent in a Collateral Account (or by
such Grantor in trust for the Collateral Agent and the Secured Parties) shall continue to be held
as collateral security for all the Obligations and shall not constitute payment thereof until
applied as provided in Section 5.4.
5.4
Application and Sharing of Proceeds
. (a) Upon any sale of the Collateral by the
Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial
proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a
sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or
purchasers shall not be obligated to see to the application of any part of the purchase money paid
over to the Collateral Agent or such officer or be answerable in any way for the
misapplication thereof. The Collateral Agent shall apply the proceeds of any collection or
sale of the Collateral as well as any Collateral consisting of cash, at any time after receipt, as
follows:
(i) first, to pay amounts owing to the Collateral Agent or the Trustee pursuant
to this Agreement, any Indenture Document or any Additional Secured Debt Documents;
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(ii) second, to reimburse the Secured Parties for any indemnification amounts
paid to the Collateral Agent;
(iii) third, to the payment of all amounts owing in respect of the Obligations
on a pro rata basis in accordance with the respective amounts of the Obligations
owed to Secured Parties; and
(iv) fourth, the balance, if any, to the Company or Grantors or such other
persons as are entitled thereto.
Upon the request of the Collateral Agent prior to any distribution under this Section 5.4, each
Secured Party or their Authorized Representative shall provide to the Collateral Agent
certificates, in form and substance reasonably satisfactory to the Collateral Agent, setting forth
the respective amounts referred to in Section 5.4(a) that each such Secured Party or their
Authorized Representative believes it is entitled to receive, and the Collateral Agent shall be
fully entitled to rely on such certificates.
(b) If, despite the provisions of this Section 5.4, any Secured Party shall receive any
payment or other recovery in excess of its portion of payments on account of the Obligations to
which it is then entitled in accordance with this Agreement, such Secured Party shall hold such
payment or other recovery in trust for the benefit of all Secured Parties hereunder for
distribution in accordance with clause (a) above.
5.5
Code and Other Remedies
. Subject to the terms of the Intercreditor Agreements, if
an Event of Default shall occur and be continuing, the Collateral Agent may exercise in respect of
the Collateral, in addition to all other rights and remedies provided for herein or otherwise
available to it, all the rights and remedies of a secured party upon default under the UCC or any
other applicable law and also may with notice to the relevant Grantor, sell the Collateral or any
part thereof in one or more parcels at public or private sale or sales, at any exchange, brokers
board or office of the Collateral Agent or elsewhere for cash or on credit or for future delivery
at such price or prices and upon such other terms as are commercially reasonable irrespective of
the impact of any such sales on the market price of the Collateral. The Collateral Agent shall be
authorized at any such sale (if it deems it advisable to do so) to restrict the prospective bidders
or purchasers of Collateral to Persons who will represent and agree that they are purchasing the
Collateral for their own account for investment and not with a view to the distribution or sale
thereof, and, upon consummation of any such sale, the Collateral Agent shall have the right to
assign, transfer and deliver to the purchaser or purchasers thereof the Collateral so sold. Each
purchaser at any such sale shall hold the property sold absolutely free from any claim or right on
the part of any Grantor, and each Grantor hereby waives (to the extent permitted by law) all rights
of redemption, stay and/or appraisal that it now has or may at any
time in the future have under any rule of law or statute now existing or hereafter enacted.
The Collateral Agent and any Secured Party shall have the right upon any such public sale, and, to
the extent permitted by law, upon any such private sale, to purchase the whole or any part of the
Collateral so sold, and the Collateral Agent or such Secured Party may pay the purchase price by
crediting the amount thereof against the Obligations. Each Grantor agrees that, to the extent
notice of sale shall be required by law, at least ten days notice to such Grantor of the time and
place of any
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public sale or the time after which any private sale is to be made shall constitute
reasonable notification. The Collateral Agent shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. The Collateral Agent may adjourn any
public or private sale from time to time by announcement at the time and place fixed therefor, and
such sale may, without further notice, be made at the time and place to which it was so adjourned.
To the extent permitted by law, each Grantor hereby waives any claim against the Collateral Agent
arising by reason of the fact that the price at which any Collateral may have been sold at such a
private sale was less than the price that might have been obtained at a public sale, even if the
Collateral Agent accepts the first offer received and does not offer such Collateral to more than
one offeree. Each Grantor further agrees, at the Collateral Agents request to assemble the
Collateral and make it available to the Collateral Agent, at places which the Collateral Agent
shall reasonably select, whether at such Grantors premises or elsewhere. The Collateral Agent
shall apply the net proceeds of any action taken by it pursuant to this Section 5.5 in accordance
with the provisions of Section 5.4.
5.6
Deficiency
. Each Grantor shall remain liable for any deficiency if the proceeds
of any sale or other disposition of the Collateral are insufficient to pay its Obligations and the
fees and disbursements of any attorneys employed by the Collateral Agent or any Secured Party to
collect such deficiency.
5.7
Amendments, etc. with Respect to the Obligations; Waiver of Rights
. Each Grantor
shall remain obligated hereunder notwithstanding that, without any reservation of rights against
any Grantor and without notice to or further assent by any Grantor, (a) any demand for payment of
any of the Obligations made by the Collateral Agent or any other Secured Party may be rescinded by
such party and any of the Obligations continued, (b) the Obligations, or the liability of any other
party upon or for any part thereof, or any collateral security or guarantee therefor or right of
offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released by the Collateral
Agent or any other Secured Party, (c) the Indenture and any other documents executed and delivered
in connection therewith may be amended, modified, supplemented or terminated, in whole or in part,
as the Trustee (or the applicable percentage of Holders pursuant to Section 9.02 of the Indenture,
as the case may be) may deem advisable from time to time, and (d) any collateral security,
guarantee or right of offset at any time held by the Collateral Agent or any other Secured Party
for the payment of the Obligations may be sold, exchanged, waived, surrendered or released.
Neither the Collateral Agent nor any other Secured Party shall have any obligation to protect,
secure, perfect or insure any Lien at any time held by it as security for the Obligations or for
this Security Agreement or any property subject thereto. When making any demand hereunder against
any Grantor, the Collateral Agent or any other Secured Party may, but shall be under no obligation
to, make a similar demand on any Grantor or any other Person, and any failure by the Collateral
Agent or any other Secured Party to make any
such demand or to collect any payments from the Company or any other Grantor or any other
Person or any release of the Company or any other Grantor or any other Person shall not relieve any
Grantor in respect of which a demand or collection is not made or any Grantor not so released of
its several obligations or liabilities hereunder, and shall not impair or affect the rights and
remedies, express or implied, or as a matter of law, of the Collateral Agent or any other Se-
-23-
cured Party against any Grantor. For the purposes hereof demand shall include the commencement and
continuance of any legal proceedings.
6.
The Collateral Agent
.
6.1
Collateral Agents Appointment as Attorney-in-Fact, etc
.
(a) Subject to the terms of the Intercreditor Agreements, each Grantor hereby appoints, which
appointment is irrevocable and coupled with an interest, effective upon the occurrence and during
the continuance of an Event of Default, the Collateral Agent and any officer or agent thereof, with
full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and
authority in the place and stead of such Grantor and in the name of such Grantor or otherwise, for
the purpose of carrying out the terms of this Security Agreement, to take any and all appropriate
action and to execute any and all documents and instruments that may be necessary or desirable to
accomplish the purposes of this Security Agreement, and, without limiting the generality of the
foregoing, each Grantor hereby gives the Collateral Agent the power and right, on behalf of such
Grantor, either in the Collateral Agents name or in the name of such Grantor or otherwise, without
assent by such Grantor, to do any or all of the following, in each case after the occurrence and
during the continuance of an Event of Default and after written notice by the Collateral Agent of
its intent to do so:
(i) take possession of and endorse and collect any checks, drafts, notes, acceptances
or other instruments for the payment of moneys due under any Account or with respect to any
other Collateral and file any claim or take any other action or proceeding in any court of
law or equity or otherwise deemed appropriate by the Collateral Agent for the purpose of
collecting any and all such moneys due under any Account or with respect to any other
Collateral whenever payable;
(ii) in the case of any Intellectual Property, execute and deliver, and have recorded,
any and all agreements, instruments, documents and papers as the Collateral Agent may
request to evidence the Collateral Agents and the Secured Parties Security Interest in
such Intellectual Property and the goodwill and general intangibles of such Grantor relating
thereto or represented thereby;
(iii) pay or discharge taxes and Liens levied or placed on or threatened against the
Collateral;
(iv) execute, in connection with any sale provided for in Section 5.5, any
endorsements, assignments or other instruments of conveyance or transfer with respect to the
Collateral;
(v) obtain and adjust insurance in an amount usual and customary;
(vi) direct any party liable for any payment under any of the Collateral to make
payment of any and all moneys due or to become due thereunder directly to the Collateral
Agent or as the Collateral Agent shall direct;
-24-
(vii) ask or demand for, collect and receive payment of and receipt for, any and all
moneys, claims and other amounts due or to become due at any time in respect of or arising
out of any Collateral;
(viii) sign and endorse any invoices, freight or express bills, bills of lading,
storage or warehouse receipts, drafts against debtors, assignments, verifications, notices
and other documents in connection with any of the Collateral;
(ix) commence and prosecute any suits, actions or proceedings at law or in equity in
any court of competent jurisdiction to collect the Collateral or any portion thereof and to
enforce any other right in respect of any Collateral;
(x) defend any suit, action or proceeding brought against such Grantor with respect to
any Collateral (with such Grantors consent to the extent such action or its resolution
could materially affect such Grantor or any of its affiliates in any manner other than with
respect to its continuing rights in such Collateral);
(xi) settle, compromise or adjust any such suit, action or proceeding and, in
connection therewith, give such discharges or releases as the Collateral Agent may deem
appropriate (with such Grantors consent to the extent such action or its resolution could
materially affect such Grantor or any of its affiliates in any manner other than with
respect to its continuing rights in such Collateral);
(xii) assign any Copyright, Patent or Trademark (along with the goodwill of the
business to which any such Copyright, Patent or Trademark pertains), throughout the world
for such term or terms, on such conditions, and in such manner, as the Collateral Agent
shall in its sole discretion determine; and
(xiii) generally, sell, transfer, pledge and make any agreement with respect to or
otherwise deal with any of the Collateral as fully and completely as though the Collateral
Agent were the absolute owner thereof for all purposes, and do, at the Collateral Agents
option and such Grantors expense, at any time, or from time to time, all acts and things
that the Collateral Agent deems necessary to protect, preserve or realize upon the
Collateral and the Collateral Agents and the Secured Parties Security Interests therein
and to effect the intent of this Security Agreement, all as fully and effectively as such
Grantor might do.
Anything in this Section 6.1(a) to the contrary notwithstanding and subject to the terms of the
Intercreditor Agreements, the Collateral Agent agrees that it will not exercise any rights under
the power of attorney provided for in this Section 6.1(a) unless an Event of Default shall have
occurred and be continuing.
(b) If any Grantor fails to perform or comply with any of its agreements contained herein, the
Collateral Agent, at its option, but without any obligation so to do, may perform or comply, or
otherwise cause performance or compliance, with such agreement.
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(c) The expenses of the Collateral Agent incurred in connection with actions undertaken as
provided in this Section 6.1, together with interest thereon at a rate per annum equal to the
highest rate per annum at which interest would then be payable on the applicable Notes, from the
date of payment by the Collateral Agent to the date reimbursed by the relevant Grantor, shall be
payable by such Grantor to the Collateral Agent on demand.
(d) Each Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be done
by virtue hereof. All powers, authorizations and agencies contained in this Security Agreement are
coupled with an interest and are irrevocable until this Security Agreement is terminated and the
Security Interests created hereby are released.
6.2
Duty of Collateral Agent
. The Collateral Agents sole duty with respect to the
custody, safekeeping and physical preservation of the Collateral in its possession, under Section
9-207 of the UCC or otherwise, shall be to deal with it in the same manner as the Collateral Agent
deals with similar property for its own account. The Collateral Agent shall be deemed to have
exercised reasonable care in the custody and preservation of any Collateral in its possession if
such Collateral is accorded treatment substantially equal to that which the Collateral Agent
accords its own property. Neither the Collateral Agent, any Secured Party nor any of their
respective officers, directors, employees or agents shall be liable for failure to demand, collect
or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation
to sell or otherwise dispose of any Collateral upon the request of any Grantor or any other Person
or to take any other action whatsoever with regard to the Collateral or any part thereof. The
powers conferred on the Collateral Agent and the Secured Parties hereunder are solely to protect
the Collateral Agents and the Secured Parties interests in the Collateral and shall not impose
any duty upon the Collateral Agent or any Secured Party to exercise any such powers. The
Collateral Agent and the Secured Parties shall be accountable only for amounts that they actually
receive as a result of the exercise of such powers, and neither they nor any of their officers,
directors, employees or agents shall be responsible to any Grantor for any act or failure to act
hereunder, except for their own gross negligence or willful misconduct.
6.3
Authority of Collateral Agent
. Each Grantor acknowledges that the rights and
responsibilities of the Collateral Agent under this Security Agreement with respect to any action
taken by the Collateral Agent or the exercise or non-exercise by the Collateral Agent of any
option, voting right, request, judgment or other right or remedy provided for herein or resulting
or arising out of this Security Agreement shall, as between the Collateral Agent and the Secured
Parties, be governed by the Indenture, and by such other agreements with respect thereto as may
exist from time to time among them, but, as between the Collateral Agent and the Grantors, the
Collateral Agent shall be conclusively presumed to be acting as agent for the applicable Secured
Parties with full and valid authority so to act or refrain from acting, and no
Grantor shall be under any obligation, or entitlement, to make any inquiry respecting such
authority.
6.4
Security Interest Absolute
. All rights of the Collateral Agent hereunder, the
security interest and all obligations of the Grantors hereunder shall be absolute and
unconditional.
6.5
Continuing Security Interest; Assignments Under the Indenture; Release
.
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(a) This Security Agreement shall remain in full force and effect and be binding in accordance
with and to the extent of its terms upon each Grantor and the successors and assigns thereof and
shall inure to the benefit of the Collateral Agent and the other Secured Parties and their
respective successors, indorsees, transferees and assigns until the Liens hereunder on the
Collateral shall be released pursuant to Section 11.04 of the Indenture.
(b) A Subsidiary Grantor shall automatically be released from its obligations hereunder and
the Collateral of such Grantor shall be automatically released from its obligations hereunder upon
such Grantor ceasing to be a Guarantor in accordance with Section 12.06 of the Indenture.
(c) The Security Interest granted hereby in any Collateral shall automatically be released (i)
to the extent provided in Section 11.04 of the Indenture and (ii) upon the effectiveness of any
written consent to the release of the security interest granted hereby in such Collateral pursuant
to Section 11.04 of the Indenture. Any such release in connection with any sale, transfer or other
disposition of such Collateral shall result in such Collateral being sold, transferred or disposed
of, as applicable, free and clear of the Lien and Security Interest created hereby.
(d) In connection with any termination or release pursuant to paragraph (a), (b) or (c), the
Collateral Agent shall execute and deliver to any Grantor, at such Grantors expense, all documents
that such Grantor shall reasonably request to evidence such termination or release. Any execution
and delivery of documents pursuant to this Section 6.5 shall be without recourse to or warranty by
the Collateral Agent.
6.6
Reinstatement
. Each Grantor further agrees that, if any payment made by any
Indenture Party or other Person and applied to the Obligations is at any time annulled, avoided,
set aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required
to be refunded or repaid, or the proceeds of Collateral are required to be returned by any Secured
Party to such Indenture Party, its estate, trustee, receiver or any other party, including any
Grantor, under any bankruptcy law, state or federal law, common law or equitable cause, then, to
the extent of such payment or repayment, any Lien or other Collateral securing such liability shall
be and remain in full force and effect, as fully as if such payment had never been made or, if
prior thereto the Lien granted hereby or other Collateral securing such liability hereunder shall
have been released or terminated by virtue of such cancellation or surrender), such Lien or other
Collateral shall be reinstated in full force and effect, and such prior cancellation or surrender
shall not diminish, release, discharge, impair or otherwise affect any
Lien or other Collateral securing the obligations of any Grantor in respect of the amount of
such payment.
7.
Collateral Agent As Agent
.
(a) The Bank of New York has been appointed to act as the Collateral Agent under the
Indenture. Pursuant to Section 11.02 of the Indenture, the Collateral Agent is authorized to
appoint one or more Co-Collateral Agents, for the purposes of this Section 7(a) only references to
the Collateral Agent shall mean the Collateral Agent and any Co-Collateral Agents appointed in
accordance with the Indenture. The Collateral Agent shall be obligated, and shall have the right
hereunder, to make demands, to give notices, to exercise or re-
-27-
frain from exercising any rights, and
to take or refrain from taking any action (including the release or substitution of Collateral),
solely in accordance with this Security Agreement, the Indenture and the Intercreditor Agreements.
In furtherance of the foregoing provisions of this Section 7(a), each Secured Party, by its
acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon
any of the Collateral hereunder, it being understood and agreed by such Secured Party that all
rights and remedies hereunder may be exercised solely by the Collateral Agent for the benefit of
the Secured Parties in accordance with the terms of this Section 7(a).
(b) The Collateral Agent shall at all times be the same Person that is the Trustee under the
Indenture. Written notice of resignation by the Trustee pursuant to Section 7.08 of the Indenture
shall also constitute notice of resignation as Collateral Agent under this Security Agreement;
removal of the Trustee shall also constitute removal under this Security Agreement; and appointment
of a Trustee pursuant to Section 7.08 of the Indenture shall also constitute appointment of a
successor Collateral Agent under this Security Agreement. Upon the acceptance of any appointment
as Trustee under Section 7.08 of the Indenture by a successor Collateral Agent, that successor
Collateral Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring or removed Collateral Agent under this Security Agreement,
and the retiring or removed Collateral Agent under this Security Agreement shall promptly (i)
transfer to such successor Collateral Agent all sums, securities and other items of Collateral held
hereunder, together with all records and other documents necessary or appropriate in connection
with the performance of the duties of the successor Collateral Agent under this Security Agreement,
and (ii) execute and deliver to such successor Collateral Agent or otherwise authorize the filing
of such amendments to financing statements and take such other actions, as may be necessary or
appropriate in connection with the assignment to such successor Collateral Agent of the Security
Interests created hereunder, whereupon such retiring or removed Collateral Agent shall be
discharged from its duties and obligations under this Security Agreement. After any retiring or
removed Collateral Agents resignation or removal hereunder as Collateral Agent, the provisions of
this Security Agreement shall inure to its benefit as to any actions taken or omitted to be taken
by it under this Security Agreement while it was Collateral Agent hereunder.
8.
Miscellaneous
.
8.1
Amendments in Writing
. None of the terms or provisions of this Security Agreement
may be waived, amended, supplemented or otherwise modified except by a written instrument executed
by the affected Grantor and the applicable Collateral Agent in accordance with Section 9.01 or 9.02
of the Indenture.
8.2
Notices
. All notices, requests and demands pursuant hereto shall be made in
accordance with Section 14.02 of the Indenture. All communications and notices hereunder to any
Subsidiary Grantor shall be given to it in care of the Company at the Companys address set forth
in Section 14.02 of the Indenture.
8.3
No Waiver by Course of Conduct; Cumulative Remedies
. Neither the Collateral Agent
nor any Secured Party shall by any act (except by a written instrument pursuant
-28-
to Section 8.1),
delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or
to have acquiesced in any Default or Event of Default or in any breach of any of the terms and
conditions hereof. No failure to exercise, nor any delay in exercising, on the part of the
Collateral Agent or any other Secured Party, any right, power or privilege hereunder shall operate
as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder
shall preclude any other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Collateral Agent or any other Secured Party of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or remedy that the
Collateral Agent or such other Secured Party would otherwise have on any future occasion. The
rights, remedies, powers and privileges herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any other rights or remedies provided by law.
8.4
Enforcement Expenses; Indemnification
.
(a) Each Grantor agrees to pay any and all expenses (including all reasonable fees and
disbursements of counsel) that may be paid or incurred by any Secured Party in enforcing, or
obtaining advice of counsel in respect of, any rights with respect to, or collecting, any or all of
the Obligations and/or enforcing any rights with respect to, or collecting against, such Grantor
under this Security Agreement.
(b) Each Grantor agrees to pay, and to save the Collateral Agent and the Secured Parties
harmless from, any and all liabilities with respect to, or resulting from any delay in paying, any
and all stamp, excise, sales or other taxes that may be payable or determined to be payable with
respect to any of the Collateral or in connection with any of the transactions contemplated by this
Security Agreement.
(c) Each Grantor agrees to pay, and to save the Collateral Agent and the Secured Parties
harmless from, any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with respect to
the execution, delivery, enforcement, performance and administration of this Security Agreement to
the extent the Company would be required to do so pursuant to Section 7.07 of the Indenture.
(d) The agreements in this Section 8.4 shall survive repayment of the Obligations and all
other amounts payable under the Indenture and the other Indenture Documents.
8.5
Successors and Assigns
. The provisions of this Security Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that no Grantor may assign, transfer or delegate any of its rights
or obligations under this Security Agreement without the prior written consent of the Collateral
Agent except pursuant to a transaction permitted by the Indenture.
8.6
Counterparts
. This Security Agreement may be executed by one or more of the
parties to this Security Agreement on any number of separate counterparts (including by facsimile
or other electronic transmission), and all of said counterparts taken together shall be
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deemed to
constitute one and the same instrument. A set of the copies of this Security Agreement signed by
all the parties shall be lodged with the Collateral Agent and the Company.
8.7
Severability
. Any provision of this Security 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. The parties hereto shall endeavor in good
faith negotiations to replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of the invalid, illegal
or unenforceable provisions.
8.8
Section Headings
. The Section headings used in this Security Agreement are for
convenience of reference only and are not to affect the construction hereof or be taken into
consideration in the interpretation hereof.
8.9
Integration
. This Security Agreement together with the other Indenture Documents
represents the agreement of each of the Grantors with respect to the subject matter hereof and
there are no promises, undertakings, representations or warranties by the Collateral Agent or any
other Secured Party relative to the subject matter hereof not expressly set forth or referred to
herein or in the other Indenture Documents.
8.10
GOVERNING LAW
. THIS SECURITY 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.
8.11
Submission To Jurisdiction Waivers
. Each party hereto hereby irrevocably and
unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to this
Security Agreement and the other Indenture Documents to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the non-
exclusive general jurisdiction of the courts of the State of New York, the courts of the
United States of America for the Southern District of New York, and appellate courts from any
thereof;
(b) consents that any such action or proceeding may be brought in such courts and waives any
objection that it may now or hereafter have to the venue of any such action or proceeding in any
such court or that such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be effected by mailing
a copy thereof by registered or certified mail (or any substantially similar form of mail), postage
prepaid, to such Person at its address referred to in Section 8.2 or at such other address of which
such Person shall have been notified pursuant thereto;
-30-
(d) agrees that nothing herein shall affect the right of any other party hereto (or any
Secured Party) to effect service of process in any other manner permitted by law or shall limit the
right of any party hereto (or any Secured Party) 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 8.11 any special, exemplary,
punitive or consequential damages.
8.12
Acknowledgments
. Each party hereto hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and delivery of this Security
Agreement and the other Indenture Documents to which it is a party;
(b) neither the Collateral Agent nor any other Secured Party has any fiduciary relationship
with or duty to any Grantor arising out of or in connection with this Security Agreement or any of
the other Indenture Documents, and the relationship between the Grantors, on the one hand, and the
Collateral Agent and the other Secured Parties, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Indenture Documents or otherwise exists
by virtue of the transactions contemplated hereby among the Secured Parties or among the Grantors
and any other Secured Party.
8.13
Additional Grantors
. Each Subsidiary of the Company that is required to become a
party to this Security Agreement pursuant to the Indenture shall become a Grantor, with the same
force and effect as if originally named as a Grantor herein, for all purposes of this Security
Agreement upon execution and delivery by such Subsidiary of a written supplement substantially in
the form of
Annex B
hereto. The execution and delivery of any instrument adding an
additional Grantor as a party to this Security Agreement shall not require the consent of any other
Grantor hereunder. The rights and obligations of each Grantor hereunder shall
remain in full force and effect notwithstanding the addition of any new Grantor as a party to
this Security Agreement.
8.14
WAIVER OF JURY TRIAL
. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS SECURITY AGREEMENT, ANY
OTHER INDENTURE DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
8.15
Subject to General Intercreditor Agreement
. Notwithstanding anything herein to
the contrary, (i) the liens and security interests granted to the Collateral Agent pursuant to this
Agreement are expressly subject and subordinate to the liens and security interests granted to the
First Lien Collateral Agent pursuant to the Credit Agreement and (ii) the exercise of any right or
remedy by the Collateral Agent hereunder is subject to the limitations and provisions of the
General Intercreditor Agreement. In the event of any conflict between the terms of the Gen-
-31-
eral
Intercreditor Agreement and the terms of this Agreement, the terms of the General Intercreditor
Agreement shall govern. Notwithstanding anything herein to the contrary, prior to the Discharge of
First Lien Obligations, the requirements of this Agreement to deliver Collateral to the Collateral
Agent shall be deemed satisfied by delivery of such Collateral to the First Lien Collateral Agent.
8.16
Receivables Intercreditor Agreement
. Notwithstanding anything herein to the
contrary, the liens and security interests granted to the Collateral Agent pursuant to this
Agreement and the exercise of any right or remedy by the Collateral Agent hereunder, in each case,
with respect to the Shared Receivables Collateral are subject to the limitations and provisions of
the Shared Receivables Intercreditor Agreement. In the event of any conflict between the terms of
the Shared Receivables Intercreditor Agreement and the terms of this Agreement with respect to the
Shared Receivables Collateral, the terms of the Shared Receivables Intercreditor Agreement shall
govern and control.
8.17
Additional Secured Obligations
. On or after the Issue Date and so long as
permitted by the Indenture, the Company may from time to time designate additional Obligations of
the Company or any Guarantor permitted to be Incurred under the Indenture and to be secured by a
Lien on the Collateral as additional Obligations hereunder (
Additional Secured
Obligations
) by delivering to the Collateral Agent and each Authorized Representative (a) a
certificate signed by an Authorized Officer of the Company (i) identifying the obligations so
designated and the aggregate principal amount or face amount thereof, stating that such obligations
are designated as Additional Secured Obligations for purposes hereof, (ii) representing that such
designation of such obligations as Additional Secured Obligations complies with the terms of the
Indenture Documents and the applicable Additional Secured Debt Documents and (iii) specifying the
name and address of the Authorized Representative for such obligations, (b) a fully executed
Additional Secured Party Consent (in the form attached as Annex C); and (c) an Opinion of Counsel
to the effect that the designation of such obligations as Additional Secured
Obligations is in compliance with the terms of the Indenture and the Notes. Each Authorized
Representative agrees that upon the satisfaction of all conditions set forth in the preceding
sentence, the Collateral Agent shall act as agent under and subject to the terms of this Agreement
for the benefit of all Secured Parties, including without limitation, any Secured Parties that hold
any such Additional Secured Obligations, and each Authorized Representative agrees to the
appointment, and acceptance of the appointment, of the Collateral Agent as agent for the holders of
such Additional Secured Obligations as set forth in each Additional Secured Party Consent and
agrees, on behalf of itself and each Additional Secured Party it represents, to be bound by this
Agreement.
[SIGNATURE PAGES FOLLOW]
-32-
IN WITNESS WHEREOF, each of the undersigned has caused this Security Agreement to be duly
executed and delivered as of the date first above written.
|
|
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|
|
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HCA INC., as Grantor
|
|
|
By:
|
/s/ R. Milton Johnson
|
|
|
|
Name:
|
R. Milton Johnson
|
|
|
|
Title:
|
Executive Vice President and Chief
Financial Officer
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[SIGNATURE PAGE TO SECURITY AGREEMENT]
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|
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Each of the SUBSIDIARY GRANTORS
listed on Schedule 1 hereto
|
|
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By:
|
/s/ David G. Anderson
|
|
|
|
Name:
|
David G. Anderson
|
|
|
|
Title:
|
Vice President and Treasurer
|
|
|
[SIGNATURE PAGE TO SECURITY AGREEMENT]
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THE BANK OF NEW YORK, as Collateral Agent
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|
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By:
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/s/ Mary LaGumina
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Name:
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Mary LaGumina
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Title:
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Vice President
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[SIGNATURE PAGE TO SECURITY AGREEMENT]
SCHEDULE 1
TO SECURITY AGREEMENT
SUBSIDIARY GRANTORS
BAY HOSPITAL, INC.
BRIGHAM CITY COMMUNITY HOSPITAL, INC.
BROOKWOOD MEDICAL CENTER OF GULFPORT, INC.
CAPITAL DIVISION, INC.
CENTERPOINT MEDICAL CENTER OF INDEPENDENCE, LLC
CENTRAL FLORIDA REGIONAL HOSPITAL, INC.
CENTRAL SHARED SERVICES, LLC
CENTRAL TENNESSEE HOSPITAL CORPORATION
CHCA BAYSHORE, L.P.
CHCA CONROE, L.P.
CHCA EAST HOUSTON, L.P.
CHCA MAINLAND, L.P.
CHCA WEST HOUSTON, L.P.
CHCA WOMANS HOSPITAL, L.P.
CHIPPENHAM & JOHNSTON-WILLIS HOSPITALS, INC.
CMS GP, LLC
COLORADO HEALTH SYSTEMS, INC.
COLUMBIA ASC MANAGEMENT, L.P.
COLUMBIA JACKSONVILLE HEALTHCARE SYSTEM, INC.
COLUMBIA LAGRANGE HOSPITAL, INC.
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 NORTH HILLS HOSPITAL SUBSIDIARY, L.P.
COLUMBIA OGDEN MEDICAL CENTER, INC.
COLUMBIA PARKERSBURG HEALTHCARE SYSTEM, LLC
COLUMBIA PLAZA MEDICAL CENTER OF FORT WORTH SUBSIDIARY, L.P.
COLUMBIA POLK GENERAL HOSPITAL, INC.
COLUMBIA RIO GRANDE HEALTHCARE, L.P.
COLUMBIA RIVERSIDE, INC.
COLUMBIA VALLEY HEALTHCARE SYSTEM, L.P.
COLUMBIA/ALLEGHANY REGIONAL HOSPITAL INCORPORATED
COLUMBIA/HCA JOHN RANDOLPH, INC.
COLUMBINE PSYCHIATRIC CENTER, INC.
COLUMBUS CARDIOLOGY, INC.
CONROE HOSPITAL CORPORATION
DALLAS/FT. WORTH PHYSICIAN, LLC
DAUTERIVE HOSPITAL CORPORATION
DUBLIN COMMUNITY HOSPITAL, LLC
EASTERN IDAHO HEALTH SERVICES, INC.
EDMOND REGIONAL MEDICAL CENTER, LLC
EDWARD WHITE HOSPITAL, INC.
EL PASO SURGICENTER, INC.
ENCINO HOSPITAL CORPORATION, INC.
EP HEALTH, LLC
FAIRVIEW PARK GP, LLC
FAIRVIEW PARK, LIMITED PARTNERSHIP
FRANKFORT HOSPITAL, INC.
GALEN PROPERTY, LLC
GENERAL HEALTHSERV, LLC
GOOD SAMARITAN HOSPITAL, L.P.
GOPPERT-TRINITY FAMILY CARE, LLC
GPCH-GP, INC.
GRAND STRAND REGIONAL MEDICAL CENTER, LLC
GREEN OAKS HOSPITAL SUBSIDIARY, L.P.
GREENVIEW HOSPITAL, INC.
HAMILTON MEDICAL CENTER, INC.
HCA CENTRAL GROUP, INC.
HCA HEALTH SERVICES OF FLORIDA, INC.
HCA HEALTH SERVICES OF LOUISIANA, INC.
HCA HEALTH SERVICES OF OKLAHOMA, INC.
HCA HEALTH SERVICES OF TENNESSEE, INC.
HCA HEALTH SERVICES OF VIRGINIA, INC.
HCA MANAGEMENT SERVICES, L.P.
HD&S CORP. SUCCESSOR, INC.
HEALTH MIDWEST OFFICE FACILITIES CORPORATION
HEALTH MIDWEST VENTURES GROUP, INC.
HEALTHTRUST MOB, LLC
HENDERSONVILLE HOSPITAL CORPORATION
HOSPITAL CORPORATION OF NORTH CAROLINA
HOSPITAL CORPORATION OF TENNESSEE
HOSPITAL CORPORATION OF UTAH
HOSPITAL DEVELOPMENT PROPERTIES, INC.
HSS HOLDCO, LLC
HSS SYSTEMS VA, LLC
HSS SYSTEMS, LLC
HSS VIRGINIA, L.P.
HTI MEMORIAL HOSPITAL CORPORATION
INTEGRATED REGIONAL LAB, LLC
INTEGRATED REGIONAL LABORATORIES, LLP
JFK MEDICAL CENTER LIMITED PARTNERSHIP
KPH-CONSOLIDATION, INC.
LAKELAND MEDICAL CENTER, LLC
LAKEVIEW MEDICAL CENTER, LLC
LARGO MEDICAL CENTER, INC.
LAS VEGAS SURGICARE, INC.
LAWNWOOD MEDICAL CENTER, INC.
LEWIS-GALE HOSPITAL, INCORPORATED
LEWIS-GALE MEDICAL CENTER, LLC
LEWIS-GALE PHYSICIANS, LLC
LOS ROBLES REGIONAL MEDICAL CENTER
MANAGEMENT SERVICES HOLDINGS, INC.
MARIETTA SURGICAL CENTER, INC.
MARION COMMUNITY HOSPITAL, INC.
MCA INVESTMENT COMPANY
MEDICAL CENTERS OF OKLAHOMA, LLC
MEDICAL OFFICE BUILDINGS OF KANSAS, LLC
MEMORIAL HEALTHCARE GROUP, INC.
MIDWEST DIVISION ACH, LLC
MIDWEST DIVISION LRHC, LLC
MIDWEST DIVISION LSH, LLC
MIDWEST DIVISION MCI, 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 HOLDINGS, INC.
MONTGOMERY REGIONAL HOSPITAL, INC.
MOUNTAIN VIEW HOSPITAL, INC.
NASHVILLE SHARED SERVICES GENERAL PARTNERSHIP
NATIONAL PATIENT ACCOUNT SERVICES, INC.
NEW PORT RICHEY HOSPITAL, INC.
NEW ROSE HOLDING COMPANY, INC.
NORTH FLORIDA IMMEDIATE CARE CENTER, INC.
NORTH FLORIDA REGIONAL MEDICAL CENTER, INC.
NORTHERN UTAH HEALTHCARE CORPORATION
NORTHERN VIRGINIA COMMUNITY HOSPITAL, LLC
NORTHLAKE MEDICAL CENTER, LLC
NOTAMI HOSPITALS OF LOUISIANA, INC.
NOTAMI HOSPITALS, LLC
OKALOOSA HOSPITAL, INC.
OKEECHOBEE HOSPITAL, INC.
OUTPATIENT CARDIOVASCULAR CENTER OF CENTRAL FLORIDA, LLC
PALMS WEST HOSPITAL LIMITED PARTNERSHIP
PALMYRA PARK HOSPITAL, INC.
PLANTATION GENERAL HOSPITAL, L.P.
PULASKI COMMUNITY HOSPITAL, INC.
REDMOND PARK HOSPITAL, LLC
REDMOND PHYSICIAN PRACTICE COMPANY
REDMOND PHYSICIAN PRACTICE VIII, LLC
RESTON HOSPITAL CENTER, LLC
RETREAT HOSPITAL, INC.
RIO GRANDE REGIONAL HOSPITAL, INC.
RIVERSIDE HEALTHCARE SYSTEM, L.P.
RIVERSIDE HOSPITAL, INC.
SAMARITAN, LLC
SAN JOSE HEALTHCARE SYSTEM, LP
SAN JOSE HOSPITAL, L.P.
SAN JOSE MEDICAL CENTER, LLC
SAN JOSE, LLC
SARASOTA DOCTORS HOSPITAL, INC.
SJMC, LLC
SOUTHERN HILLS MEDICAL CENTER, LLC
SPOTSYLVANIA MEDICAL CENTER, INC.
SPRING BRANCH MEDICAL CENTER, INC.
SPRING HILL HOSPITAL, INC.
ST. MARKS LONE PEAK HOSPITAL, INC.
SUN CITY HOSPITAL, INC.
SUNBELT REGIONAL MEDICAL CENTER, INC.
SUNRISE MOUNTAINVIEW HOSPITAL, INC.
SURGICARE OF BRANDON, INC.
SURGICARE OF FLORIDA, INC.
SURGICARE OF HOUSTON WOMENS, INC.
SURGICARE OF MANATEE, INC.
SURGICARE OF NEWPORT RICHEY, INC.
SURGICARE OF PALMS WEST, LLC
SURGICARE OF RIVERSIDE, LLC
TALLAHASSEE MEDICAL CENTER, INC.
TCMC MADISON-PORTLAND, INC.
TERRE HAUTE HOSPITAL GP, INC.
TERRE HAUTE HOSPITAL HOLDINGS, INC.
TERRE HAUTE MOB, L.P.
TERRE HAUTE REGIONAL HOSPITAL, L.P.
TIMPANOGOS REGIONAL MEDICAL SERVICES, INC.
TRIDENT MEDICAL CENTER, LLC
UTAH MEDCO, LLC
VH HOLDCO, INC.
VH HOLDINGS, INC.
VIRGINIA PSYCHIATRIC COMPANY, INC.
W & C HOSPITAL, INC.
WALTERBORO COMMUNITY HOSPITAL, INC.
WESLEY MEDICAL CENTER, LLC
WEST FLORIDA REGIONAL MEDICAL CENTER, INC.
WEST VALLEY MEDICAL CENTER, INC.
WESTERN PLAINS CAPITAL, INC.
WHMC, INC.
WOMANS HOSPITAL OF TEXAS, INCORPORATED
WOMENS AND CHILDRENS HOSPITAL, INC.
EXHIBIT 4.8
EXECUTION COPY
Published CUSIP No.:
$13,550,000,000
1,000,000,000
CREDIT AGREEMENT
Dated as of November 17, 2006
among
HCA INC.,
as the Parent Borrower,
HCA UK CAPITAL LIMITED,
as the European Subsidiary Borrower,
The Several Lenders
from Time to Time Parties Hereto,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swingline Lender
and Letter of Credit Issuer,
JPMORGAN CHASE BANK, N.A.
and
CITICORP NORTH AMERICA, INC.,
as Co-Syndication Agents,
and
MERRILL LYNCH CAPITAL CORPORATION,
as Documentation Agent
BANC OF AMERICA SECURITIES LLC,
J.P. MORGAN SECURITIES INC.,
CITIGROUP GLOBAL MARKETS INC.
and
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED,
as Joint Lead Arrangers and Bookrunners,
DEUTSCHE BANK SECURITIES INC.
and
WACHOVIA CAPITAL MARKETS, LLC,
as 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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2
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1.1.
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|
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Defined Terms
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2
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1.2.
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Other Interpretive Provisions
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|
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62
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1.3.
|
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Accounting Terms
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|
|
62
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1.4.
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Rounding
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62
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1.5.
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|
|
References to Agreements, Laws, Etc.
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|
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63
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1.6.
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Exchange Rates
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63
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1.7.
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Reserve Amounts
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|
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63
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SECTION 2.
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Amount and Terms of Credit
|
|
|
63
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2.1.
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Commitments
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63
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2.2.
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Minimum Amount of Each Borrowing; Maximum Number of Borrowings
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|
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66
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2.3.
|
|
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Notice of Borrowing
|
|
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66
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2.4.
|
|
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Disbursement of Funds
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|
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68
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2.5.
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Repayment of Loans; Evidence of Debt
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68
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2.6.
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Conversions and Continuations
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|
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71
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2.7.
|
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Pro Rata Borrowings
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72
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2.8.
|
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Interest
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73
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2.9.
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Interest Periods
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75
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2.10.
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Increased Costs, Illegality, Etc.
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75
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2.11.
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Compensation
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78
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2.12.
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Change of Lending Office
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78
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2.13.
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Notice of Certain Costs
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78
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2.14.
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Incremental Facilities
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78
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SECTION 3.
|
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Letters of Credit
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80
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3.1.
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Letters of Credit
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80
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3.2.
|
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Letter of Credit Requests
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82
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3.3.
|
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Letter of Credit Participations
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84
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3.4.
|
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Agreement to Repay Letter of Credit Drawings
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|
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87
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3.5.
|
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Increased Costs
|
|
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88
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3.6.
|
|
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New or Successor Letter of Credit Issuer
|
|
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89
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3.7.
|
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Role of Letter of Credit Issuer
|
|
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90
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3.8.
|
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Cash Collateral
|
|
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91
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3.9.
|
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Applicability of ISP and UCP
|
|
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91
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3.10.
|
|
|
Conflict with Issuer Documents
|
|
|
91
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|
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3.11.
|
|
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Letters of Credit Issued for Restricted Subsidiaries
|
|
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91
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|
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|
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|
|
|
|
|
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SECTION 4.
|
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Fees; Commitments
|
|
|
92
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4.1.
|
|
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Fees
|
|
|
92
|
|
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4.2.
|
|
|
Voluntary Reduction of Revolving Credit Commitments
|
|
|
94
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4.3.
|
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Mandatory Termination of Commitments
|
|
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95
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|
-i-
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Page
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SECTION 5.
|
|
Payments
|
|
|
95
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5.1.
|
|
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Voluntary Prepayments
|
|
|
95
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|
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5.2.
|
|
|
Mandatory Prepayments
|
|
|
96
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|
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5.3.
|
|
|
Method and Place of Payment
|
|
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99
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|
5.4.
|
|
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Net Payments
|
|
|
100
|
|
|
5.5.
|
|
|
Computations of Interest and Fees
|
|
|
105
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|
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5.6.
|
|
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Limit on Rate of Interest
|
|
|
105
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|
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|
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|
|
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|
|
SECTION 6.
|
|
Conditions Precedent to Initial Borrowing
|
|
|
106
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6.1.
|
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Credit Documents
|
|
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106
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|
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6.2.
|
|
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Collateral
|
|
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106
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|
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6.3.
|
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|
Legal Opinions
|
|
|
107
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|
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6.4.
|
|
|
Contemporaneous Debt Financings and Repayments
|
|
|
107
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|
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6.5.
|
|
|
Equity Investments
|
|
|
107
|
|
|
6.6.
|
|
|
Closing Certificates
|
|
|
107
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|
|
6.7.
|
|
|
Authorization of Proceedings of Each Credit Party
|
|
|
107
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6.8.
|
|
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Fees
|
|
|
107
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|
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6.9.
|
|
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Representations and Warranties
|
|
|
107
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|
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6.10.
|
|
|
Related Agreements
|
|
|
108
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|
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6.11.
|
|
|
Solvency Certificate
|
|
|
108
|
|
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6.12.
|
|
|
Merger
|
|
|
108
|
|
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6.13.
|
|
|
Pro Forma Balance Sheet
|
|
|
108
|
|
|
6.14.
|
|
|
No Material Adverse Change
|
|
|
108
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|
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|
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SECTION 7.
|
|
Conditions Precedent to All Credit Events
|
|
|
108
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|
|
7.1.
|
|
|
No Default; Representations and Warranties
|
|
|
108
|
|
|
7.2.
|
|
|
Notice of Borrowing; Letter of Credit Request
|
|
|
109
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|
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|
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|
|
|
|
|
|
SECTION 8.
|
|
Representations, Warranties and Agreements
|
|
|
109
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|
|
8.1.
|
|
|
Corporate Status
|
|
|
109
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|
|
8.2.
|
|
|
Corporate Power and Authority
|
|
|
109
|
|
|
8.3.
|
|
|
No Violation
|
|
|
110
|
|
|
8.4.
|
|
|
Litigation
|
|
|
110
|
|
|
8.5.
|
|
|
Margin Regulations
|
|
|
110
|
|
|
8.6.
|
|
|
Governmental Approvals
|
|
|
110
|
|
|
8.7.
|
|
|
Investment Company Act
|
|
|
110
|
|
|
8.8.
|
|
|
True and Complete Disclosure
|
|
|
110
|
|
|
8.9.
|
|
|
Financial Condition; Financial Statements
|
|
|
111
|
|
|
8.10.
|
|
|
Tax Matters
|
|
|
111
|
|
|
8.11.
|
|
|
Compliance with ERISA
|
|
|
111
|
|
|
8.12.
|
|
|
Subsidiaries
|
|
|
112
|
|
|
8.13.
|
|
|
Intellectual Property
|
|
|
112
|
|
|
8.14.
|
|
|
Environmental Laws
|
|
|
112
|
|
|
8.15.
|
|
|
Properties
|
|
|
113
|
|
|
8.16.
|
|
|
Solvency
|
|
|
113
|
|
|
8.17.
|
|
|
Delayed Equity Arrangements
|
|
|
113
|
|
-ii-
|
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Page
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|
SECTION 9.
|
|
Affirmative Covenants
|
|
|
113
|
|
|
9.1.
|
|
|
Information Covenants
|
|
|
113
|
|
|
9.2.
|
|
|
Books, Records and Inspections
|
|
|
117
|
|
|
9.3.
|
|
|
Maintenance of Insurance
|
|
|
118
|
|
|
9.4.
|
|
|
Payment of Taxes
|
|
|
118
|
|
|
9.5.
|
|
|
Consolidated Corporate Franchises
|
|
|
118
|
|
|
9.6.
|
|
|
Compliance with Statutes, Regulations, Etc.
|
|
|
118
|
|
|
9.7.
|
|
|
ERISA
|
|
|
119
|
|
|
9.8.
|
|
|
Maintenance of Properties
|
|
|
119
|
|
|
9.9.
|
|
|
Transactions with Affiliates
|
|
|
119
|
|
|
9.10.
|
|
|
End of Fiscal Years; Fiscal Quarters
|
|
|
120
|
|
|
9.11.
|
|
|
Additional Guarantors and Grantors
|
|
|
120
|
|
|
9.12.
|
|
|
Pledge of Additional Stock and Evidence of Indebtedness
|
|
|
121
|
|
|
9.13.
|
|
|
Use of Proceeds
|
|
|
122
|
|
|
9.14.
|
|
|
Further Assurances
|
|
|
122
|
|
|
|
|
|
|
|
|
|
|
SECTION 10.
|
|
Negative Covenants
|
|
|
124
|
|
|
10.1.
|
|
|
Limitation on Indebtedness
|
|
|
124
|
|
|
10.2.
|
|
|
Limitation on Liens
|
|
|
131
|
|
|
10.3.
|
|
|
Limitation on Fundamental Changes
|
|
|
134
|
|
|
10.4.
|
|
|
Limitation on Sale of Assets
|
|
|
137
|
|
|
10.5.
|
|
|
Limitation on Investments
|
|
|
140
|
|
|
10.6.
|
|
|
Limitation on Dividends
|
|
|
143
|
|
|
10.7.
|
|
|
Limitations on Debt Payments and Amendments; Matters Relating
to Required Additional Equity Investments
|
|
|
145
|
|
|
10.8.
|
|
|
Limitations on Sale Leasebacks
|
|
|
146
|
|
|
10.9.
|
|
|
Consolidated Total Debt to Consolidated EBITDA Ratio
|
|
|
146
|
|
|
10.10.
|
|
|
Changes in Business
|
|
|
147
|
|
|
10.11.
|
|
|
1993 Indenture Restricted Subsidiaries
|
|
|
147
|
|
|
10.12.
|
|
|
No Impairment of Mortgages on Principal Properties
|
|
|
147
|
|
|
|
|
|
|
|
|
|
|
SECTION 11.
|
|
Events of Default
|
|
|
147
|
|
|
11.1.
|
|
|
Payments
|
|
|
147
|
|
|
11.2.
|
|
|
Representations, Etc.
|
|
|
147
|
|
|
11.3.
|
|
|
Covenants
|
|
|
148
|
|
|
11.4.
|
|
|
Default Under Other Agreements
|
|
|
148
|
|
|
11.5.
|
|
|
Bankruptcy, Etc.
|
|
|
148
|
|
|
11.6.
|
|
|
ERISA
|
|
|
149
|
|
|
11.7.
|
|
|
Guarantee
|
|
|
149
|
|
|
11.8.
|
|
|
Pledge Agreement
|
|
|
149
|
|
|
11.9.
|
|
|
Security Agreement
|
|
|
149
|
|
|
11.10.
|
|
|
Mortgages
|
|
|
150
|
|
|
11.11.
|
|
|
Judgments
|
|
|
150
|
|
|
11.12.
|
|
|
Change of Control
|
|
|
150
|
|
-iii-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
SECTION 12.
|
|
Investors Right to Cure
|
|
|
151
|
|
|
|
|
|
|
|
|
|
|
SECTION 13.
|
|
The Agents
|
|
|
152
|
|
|
13.1.
|
|
|
Appointment
|
|
|
152
|
|
|
13.2.
|
|
|
Delegation of Duties
|
|
|
153
|
|
|
13.3.
|
|
|
Exculpatory Provisions
|
|
|
153
|
|
|
13.4.
|
|
|
Reliance by Agents
|
|
|
153
|
|
|
13.5.
|
|
|
Notice of Default
|
|
|
154
|
|
|
13.6.
|
|
|
Non-Reliance on Administrative Agent, Collateral Agent and Other Lenders
|
|
|
154
|
|
|
13.7.
|
|
|
Indemnification
|
|
|
155
|
|
|
13.8.
|
|
|
Administrative Agent in its Individual Capacity
|
|
|
155
|
|
|
13.9.
|
|
|
Successor Agents
|
|
|
155
|
|
|
13.10.
|
|
|
Withholding Tax
|
|
|
156
|
|
|
13.11.
|
|
|
Swiss Assignment Agreement
|
|
|
156
|
|
|
|
|
|
|
|
|
|
|
SECTION 14.
|
|
Miscellaneous
|
|
|
157
|
|
|
14.1.
|
|
|
Amendments and Waivers
|
|
|
157
|
|
|
14.2.
|
|
|
Notices
|
|
|
160
|
|
|
14.3.
|
|
|
No Waiver; Cumulative Remedies
|
|
|
160
|
|
|
14.4.
|
|
|
Survival of Representations and Warranties
|
|
|
160
|
|
|
14.5.
|
|
|
Payment of Expenses
|
|
|
160
|
|
|
14.6.
|
|
|
Successors and Assigns; Participations and Assignments
|
|
|
161
|
|
|
14.7.
|
|
|
Replacements of Lenders under Certain Circumstances
|
|
|
165
|
|
|
14.8.
|
|
|
Adjustments; Set-off
|
|
|
166
|
|
|
14.9.
|
|
|
Counterparts
|
|
|
167
|
|
|
14.10.
|
|
|
Severability
|
|
|
167
|
|
|
14.11.
|
|
|
Integration
|
|
|
167
|
|
|
14.12.
|
|
|
GOVERNING LAW
|
|
|
167
|
|
|
14.13.
|
|
|
Submission to Jurisdiction; Waivers
|
|
|
167
|
|
|
14.14.
|
|
|
Acknowledgments
|
|
|
168
|
|
|
14.15.
|
|
|
WAIVERS OF JURY TRIAL
|
|
|
169
|
|
|
14.16.
|
|
|
Confidentiality
|
|
|
169
|
|
|
14.17.
|
|
|
Direct Website Communications
|
|
|
170
|
|
|
14.18.
|
|
|
USA PATRIOT Act
|
|
|
171
|
|
|
14.19.
|
|
|
Judgment Currency
|
|
|
171
|
|
|
14.20.
|
|
|
UK Know-Your-Customer Requirements
|
|
|
172
|
|
|
|
|
SCHEDULES
|
|
|
Schedule 1.1(a)
|
|
Existing Letters of Credit
|
Schedule 1.1(b)
|
|
Mortgaged Properties
|
Schedule 1.1(c)
|
|
Commitments and Addresses of Lenders
|
Schedule 1.1(d)(i)
|
|
Excluded Subsidiaries
|
Schedule 1.1(d)(ii)
|
|
Excluded European Subsidiaries
|
Schedule 1.1(e)
|
|
Mandatory Costs
|
-iv-
|
|
|
|
|
|
Schedule 1.1(f)
|
|
Retained Indebtedness
|
Schedule 1.1(g)
|
|
Debt Repayment
|
Schedule 1.1(h)
|
|
Consolidated Persons
|
Schedule 1.1(i)
|
|
European Closing Deliverables
|
Schedule 6.3
|
|
Local Counsel
|
Schedule 8.4
|
|
Litigation
|
Schedule 8.12
|
|
Subsidiaries
|
Schedule 9.9
|
|
Closing Date Affiliate Transactions
|
Schedule 9.14(e)
|
|
Post-Closing Actions
|
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 B-1
|
|
Form of U.S. Guarantee
|
Exhibit B-2
|
|
Form of European Guarantee
|
Exhibit C
|
|
Form of Mortgage (Real Property)
|
Exhibit D
|
|
Form of Perfection Certificate
|
Exhibit E
|
|
Form of U.S. Pledge Agreement
|
Exhibit F
|
|
Form of U.S. Security Agreement
|
Exhibit G
|
|
Form of Letter of Credit Request
|
Exhibit H-1
|
|
Form of Legal Opinion of Simpson Thacher & Bartlett LLP
|
Exhibit H-2
|
|
Form of Legal Opinion of General Counsel
|
Exhibit I
|
|
Form of U.S. Credit Party Closing Certificate
|
Exhibit J
|
|
Form of Assignment and Acceptance
|
Exhibit K-1
|
|
Form of Promissory Note (Tranche A Term Loans)
|
Exhibit K-2
|
|
Form of Promissory Note (Tranche B Term Loans)
|
Exhibit K-3
|
|
Form of Promissory Note (Revolving Credit Loans and Swingline Loans)
|
Exhibit K-4
|
|
Form of Promissory Note (European Tranche Term Loans)
|
Exhibit L
|
|
Form of Joinder Agreement
|
-v-
CREDIT AGREEMENT, dated as of November 17, 2006, among HCA Inc., a Delaware corporation (
HCA
or the
Parent Borrower
), HCA UK CAPITAL LIMITED, a limited liability company (company no.
04779021) formed under the laws of England and Wales (the
European Subsidiary Borrower
and
together with the Parent Borrower, the
Borrowers
and each a
Borrower
), the lending institutions
from time to time parties hereto (each a
Lender
and, collectively, the
Lenders
), BANK OF
AMERICA, N.A., as Administrative Agent, Swingline Lender and Letter of Credit Issuer (such terms
and each other capitalized term used but not defined in this preamble having the meaning provided
in
Section 1
), JPMORGAN CHASE BANK, N.A. and CITICORP NORTH AMERICA, INC., as
Co-Syndication Agents, BANC OF AMERICA SECURITIES LLC, J.P. MORGAN SECURITIES INC., CITIGROUP
GLOBAL MARKETS INC. and MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, as Joint Lead Arrangers
and Bookrunners, DEUTSCHE BANK SECURITIES INC. and WACHOVIA CAPITAL MARKETS LLC, as Joint
Bookrunners, and MERRILL LYNCH CAPITAL CORPORATION, as Documentation Agent.
WHEREAS, pursuant to the Agreement and Plan of Merger (as amended from time to time in
accordance therewith, the
Acquisition Agreement
), dated as of July 24, 2006, by and among HCA,
Holdings and Merger Sub, Merger Sub will merge with and into HCA (the
Merger
), with HCA surviving
the Merger as a wholly-owned Subsidiary of Holdings;
WHEREAS, to fund, in part, the Merger, the Sponsors and certain other investors (including the
Management Investors) will contribute an amount in cash to Holdings and/or a direct or indirect
parent thereof in exchange for Stock and Stock Equivalents (which cash will be contributed to the
Parent Borrower in exchange for common Stock of the Parent Borrower), which together with the
amount of any rollover equity issued to existing shareholders of the Parent Borrower (such
contribution and rollover, collectively, the
Equity Investments
), shall be no less than 15.0% of
the aggregate pro forma capitalization of the Parent Borrower on the Closing Date (the
Minimum
Equity Amount
; it being understood that, for all purposes of this Agreement, the Minimum Equity
Amount will be determined assuming that the Delayed Equity Amount and the Option Note Amount had
each been contributed in cash with, and included in, the Equity Investments received by the Parent
Borrower on the Closing Date and that a corresponding reduction had been made to the amount of
consolidated Indebtedness of the Parent Borrower outstanding on the Closing Date);
WHEREAS, to consummate the transactions contemplated by the Acquisition Agreement, the Parent
Borrower will (a) issue under the Senior Second Lien Notes Indenture $1,000,000,000 aggregate
principal amount of 9 1/8% senior secured notes due 2014 (the
2014 Cash Pay Notes
),
$3,200,000,000 aggregate principal amount of 9 1/4% senior secured notes due 2016 (the
2016 Cash
Pay Notes
and together with the 2014 Cash Pay Notes, the
Cash Pay Notes
) and $1,500,000,000
aggregate principal amount of 9 5/8/10 3/8% senior secured toggle notes due 2016 (the
Toggle
Notes
, and together with the Cash Pay Notes, the
Senior Second Lien Notes
) in sales pursuant to
Rule 144A and Regulation S under the Securities Act of 1933, as amended (the
Senior Second Lien
Notes Offering
), generating aggregate gross proceeds of up to $5,700,000,000 and (b) enter into
the ABL Facility to provide for an aggregate principal amount of up to $2,000,000,000 of revolving
borrowings, of which up to $1,750,000,000 will be borrowed on the Closing Date to finance a portion
of the Transactions;
WHEREAS, in connection with the foregoing, (I) the Borrowers have requested that the Lenders
extend credit in the form of (a) Tranche A Term Loans to the Parent Borrower on the Closing Date in
Dollars, in an aggregate principal amount of $2,750,000,000, (b) Tranche B Term Loans to the Parent
Borrower on the Closing Date in Dollars, in an aggregate principal amount of $8,800,000,000, (c)
European Tranche Term Loans to the European Subsidiary Borrower on the Closing Date in Euro in an
aggregate principal amount of
1,000,000,000, and (d) Revolving Credit Loans made available to the
Parent Borrower at any time and from time to time prior to the Revolving Credit Maturity Date in
Dollars and Alternative Currencies, in an aggregate Dollar Equivalent principal amount at any time
outstanding not in excess of $2,000,000,000 less the sum of (i) the aggregate Letters of Credit
Outstanding at such time and (ii) the aggregate principal amount of all Swingline Loans outstanding
at such time, and (II) the Parent Borrower has requested (a) the Letter of Credit Issuer to issue
Letters of Credit at any time and from time to time prior to the L/C Maturity Date, in Dollars and
Alternative Currencies, in an aggregate Stated Amount at any time outstanding not in excess of
$500,000,000, and (b) to deem the letters of credit identified on
Schedule 1.1(a)
hereto
(the
Existing Letters of Credit
) to be Letters of Credit for all purposes under this Agreement
and (III) 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 Dollars,
in an aggregate principal amount at any time outstanding not in excess of $100,000,000;
WHEREAS, the proceeds of the Term Loans and up to $300,000,000 of Revolving Credit Loans will
be used by the Parent Borrower, together with (a) the net proceeds of the Senior Second Lien Notes
Offering, (b) up to $1,750,000,000 of borrowings under the ABL Facility and (c) the net proceeds of
the Equity Investments, on the Closing Date (or, in the case of the Debt Repayment, such later date
as may be necessary to effect the Debt Repayments in accordance with the tender offers therefor)
solely to effect the Merger, to effect the Debt Repayments and to pay Transaction Expenses.
Proceeds of Revolving Credit Loans and Swingline Loans will be used by the Parent Borrower on or
after the Closing Date for general corporate purposes (including Permitted Acquisitions). Letters
of Credit will be used by the Parent Borrower for general corporate purposes; and
WHEREAS, the Lenders and Letter of Credit Issuer are willing to make available to the
Borrowers such term loans and 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
.
(a) As used herein, the following terms shall have the meanings specified in this
Section
1.1
unless the context otherwise requires (it being understood that defined terms in this
Agreement shall include in the singular number the plural and in the plural the singular):
-2-
ABL Entity
shall mean a direct Restricted Subsidiary of a 1993 Indenture Restricted
Subsidiary, substantially all of the business of which consists of financing the acquisition or
disposition of accounts receivable and related assets.
ABL Facility
shall mean the Asset-Based Revolving Credit Agreement entered into as of the
Closing Date by and among the Parent Borrower, the subsidiary borrowers party thereto, the lenders
party thereto in their capacities as lenders thereunder, and Bank of America, as administrative
agent and collateral agent thereunder, including any guarantees, collateral documents and account
control agreements, instruments and agreements executed in connection therewith, and any
amendments, supplements, modifications, extensions, renewals, restatements, refundings or
refinancings thereof and any indentures or credit facilities or commercial paper facilities with
banks or other institutional lenders or investors that replace, refund or refinance any part of the
loans, notes, other credit facilities or commitments thereunder, including any such replacement,
refunding or refinancing facility or indenture that increases the amount borrowable thereunder or
alters the maturity thereof.
ABL Documents
shall mean the ABL Facility, any guarantees issued thereunder and the
collateral and security documents (and intercreditor agreements) entered into in connection
therewith.
ABR
shall mean for any day a fluctuating rate per annum equal to the higher of (a) the
Federal Funds Effective Rate
plus
1/2 of 1% and (b) the rate of interest in effect for such
day as publicly announced from time to time by the Administrative Agent as its prime rate. The
prime rate is a rate set by the Administrative Agent based upon various factors including the
Administrative Agents costs and desired return, general economic conditions and other factors, and
is used as a reference point for pricing some loans, which may be priced at, above, or below such
announced rate. Any change in the ABR due to a change in such rate announced by the Administrative
Agent or in the Federal Funds Effective Rate shall take effect at the opening of business on the
day specified in the public announcement of such change or on the effective date of such change in
the Federal Funds Effective Rate, respectively.
ABR Loan
shall mean each Loan bearing interest at the rate provided in
Section
2.8(a)
and, in any event, shall (i) include all Swingline Loans and (ii) exclude all Loans
denominated in Alternative Currencies.
Acquired EBITDA
shall mean, with respect to any Acquired Entity or Business or any Converted
Restricted Subsidiary (any of the foregoing, a
Pro Forma Entity
) for any period, the amount for
such period of Consolidated EBITDA of such Pro Forma Entity (determined using such definitions as
if references to the Parent Borrower and its Subsidiaries therein were to such Pro Forma Entity and
its Subsidiaries), all as determined on a consolidated basis for such Pro Forma Entity in a manner
not inconsistent with GAAP.
Acquired Entity or Business
shall have the meaning provided in the definition of the term
Consolidated EBITDA.
Acquisition Agreement
shall have the meaning provided in the preamble to this Agreement.
-3-
Adjusted Total European Tranche Term Loan Commitment
shall mean at any time the Total
European Tranche Term Loan Commitment less the European Tranche Term Loan Commitments of all
Defaulting Lenders.
Adjusted Total Revolving Credit Commitment
shall mean at any time the Total Revolving Credit
Commitment less the aggregate Revolving Credit Commitments of all Defaulting Lenders.
Adjusted Total Term Loan Commitment
shall mean at any time the Total Term Loan Commitment
less the Term Loan Commitments of all Defaulting Lenders.
Adjusted Total Tranche A Term Loan Commitment
shall mean at any time the Total Tranche A
Term Loan Commitment less the Tranche A Term Loan Commitments of all Defaulting Lenders.
Adjusted Total Tranche B Term Loan Commitment
shall mean at any time the Total Tranche B
Term Loan Commitment less the Tranche B Term Loan Commitments of all Defaulting Lenders.
Administrative Agent
shall mean Bank of America, as the administrative agent for the Lenders
under this Agreement and the other Credit Documents, or any successor administrative agent pursuant
to
Section 13
.
Administrative Agents Office
shall mean, with respect to any currency, the Administrative
Agents address and, as appropriate, account as set forth on
Schedule 14.2
with respect to
such currency, or such other address or account as the Administrative Agent may from time to time
notify to the Borrowers and the Lenders.
Administrative Questionnaire
shall have the meaning provided in
Section 14.6(b)
.
Affiliate
shall mean, with respect to any Person, any other Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with such Person. A Person
shall be deemed to control a corporation if such Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of such corporation, whether
through the ownership of voting securities, by contract or otherwise.
Agent Parties
shall have the meaning provided in
Section 14.17(c)
.
Agents
shall mean the Administrative Agent, the Collateral Agent, each Co-Syndication Agent,
each Joint Lead Arranger and Bookrunner, each Joint Bookrunner and the Documentation Agent.
Aggregate Multicurrency Exposures
shall have the meaning provided in
Section 5.2(b)
.
Aggregate Revolving Credit Outstandings
shall have the meaning provided in
Section
5.2(b)
.
-4-
Agreement
shall mean this Credit Agreement, as the same may be amended, supplemented or
otherwise modified from time to time.
Alternative Currency
shall mean Euro or Sterling.
Applicable ABR Margin
shall mean at any date, with respect to each ABR Loan that is a
Tranche A Term Loan, Tranche B Term Loan, Revolving Credit Loan or a Swingline Loan, the applicable
percentage
per annum
set forth below based upon the Status in effect on such date:
|
|
|
|
|
|
|
|
|
|
|
|
|
Status
|
|
Applicable ABR Margin for:
|
|
|
Tranche A
|
|
Tranche B
|
|
Revolving Credit and
|
|
|
Term Loans
|
|
Term Loans
|
|
Swingline Loans
|
Level I Status
|
|
|
1.50
|
%
|
|
|
1.75
|
%
|
|
|
1.50
|
%
|
Level II Status
|
|
|
1.25
|
%
|
|
|
1.50
|
%
|
|
|
1.25
|
%
|
Level III Status
|
|
|
1.00
|
%
|
|
|
1.50
|
%
|
|
|
1.00
|
%
|
Level IV Status
|
|
|
0.75
|
%
|
|
|
1.50
|
%
|
|
|
0.75
|
%
|
Level V Status
|
|
|
0.50
|
%
|
|
|
1.50
|
%
|
|
|
0.50
|
%
|
Notwithstanding the foregoing, Level I Status shall apply during the period from and including the
Closing Date to but excluding the Trigger Date.
Applicable Amount
shall mean, at any time (the
Reference Time
), an amount equal to (a) the
sum, without duplication, of:
(i) an amount equal to the greater of (x) zero and (y) 50% of Cumulative Consolidated
Net Income for the period from October 1, 2006 until the last day of the then most recent
fiscal quarter for which Section 9.1 Financials have been delivered;
provided
that,
for the purposes of
Sections 10.6(c)(iii)
and
10.7(a)(i)(z)
only, the amount
in this
clause (i)
shall only be available if the Consolidated Total Debt to
Consolidated EBITDA Ratio for the most recently ended Test Period is less than 6.00:1.00,
determined on a Pro Forma Basis after giving effect to any dividend or prepayment,
repurchase or redemption actually made pursuant to
Section 10.6(c)(iii)
or
10.7(a)(i)(z)
; and
(ii) the amount of any capital contributions (other than (A) the Equity Investments,
(B) any Cure Amount, (C) any amount added back in the definition of Consolidated EBITDA
pursuant to
clause (a)(ix)
thereof, (D) any contributions in respect of Disqualified
Equity Interests, (E) any amount applied to redeem Stock or Stock Equivalents of the Parent
Borrower pursuant to
Section 10.6(a)
and (F) any amount received by the Parent
Borrower in satisfaction of the requirements of the first sentence of
Section
10.7(e)
) made in cash to, or any proceeds of an equity issuance received by, the Parent
Borrower from and including the Business Day immediately following the Closing Date through
and including the Reference Time, including proceeds from the issuance of Stock or Stock
Equivalents of any direct or indirect parent of the Parent Borrower,
-5-
minus
(b) the sum, without duplication, of:
(i) the aggregate amount of Investments made pursuant to
Section 10.5(g)(ii)(y)
or
10.5(i)(ii)(y)
following the Closing Date and prior to the Reference Time;
(ii) the aggregate amount of dividends pursuant to
Section 10.6(c)(iii)
following the Closing Date and prior to the Reference Time; and
(iii) the aggregate amount of prepayments, repurchases and redemptions of Junior
Indebtedness pursuant to
Section 10.7(a)(i)(z)
following the Closing Date and prior
to the Reference Time.
Applicable Date
shall mean (i) with respect to any fiscal quarter commencing on January 1 of
any year, the last Business Day of April of such year, (ii) with respect to any fiscal quarter
commencing on April 1 of any year, the last Business Day of June of such year, (iii) with respect
to any fiscal quarter commencing on July 1 of any year, the last Business Day of September of such
year and (iv) with respect to any fiscal quarter commencing on October 1 of any year, the last
Business Day of December of such year.
Applicable LIBOR Margin
shall mean, at any date, with respect to each
LIBOR Loan that is a Tranche A Term Loan, Tranche B Term Loan, European Tranche Term Loan or
Revolving Credit Loan, the applicable percentage
per annum
set forth below based upon the Status in
effect on such date:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Status
|
|
Applicable LIBOR Margin for:
|
|
|
|
|
|
|
|
|
|
|
European
|
|
Revolving
|
|
|
Tranche A
|
|
Tranche B
|
|
Tranche
|
|
Credit
|
|
|
Term Loans
|
|
Term Loans
|
|
Term Loans
|
|
Loans
|
Level I Status
|
|
|
2.50
|
%
|
|
|
2.75
|
%
|
|
|
2.50
|
%
|
|
|
2.50
|
%
|
Level II Status
|
|
|
2.25
|
%
|
|
|
2.50
|
%
|
|
|
2.25
|
%
|
|
|
2.25
|
%
|
Level III Status
|
|
|
2.00
|
%
|
|
|
2.50
|
%
|
|
|
2.25
|
%
|
|
|
2.00
|
%
|
Level IV Status
|
|
|
1.75
|
%
|
|
|
2.50
|
%
|
|
|
2.25
|
%
|
|
|
1.75
|
%
|
Level V Status
|
|
|
1.50
|
%
|
|
|
2.50
|
%
|
|
|
2.25
|
%
|
|
|
1.50
|
%
|
Notwithstanding the foregoing, Level I Status shall apply during the period from and including the
Closing Date to but excluding the Trigger Date.
Applicable Quarter
shall have the meaning provided in
Section 2.8(d)
.
Approved Fund
shall mean any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.
Asset Sale Prepayment Event
shall mean any Disposition of any business units, assets or
other property of the Parent Borrower or any of the Restricted Subsidiaries not in the ordinary
course of business (including any Disposition of any Stock or Stock Equivalents of
-6-
any Subsidiary of the Parent Borrower owned by the Parent Borrower or a Restricted Subsidiary
and any issuance of Stock or Stock Equivalents by any Restricted Subsidiary). Notwithstanding the
foregoing, the term Asset Sale Prepayment Event shall not include any transaction permitted by
Section 10.4
(other than transactions permitted by
Section 10.4(b)
).
Assignment and Acceptance
shall mean an assignment and acceptance substantially in the form
of
Exhibit J
, or such other form as may be approved by the Administrative Agent.
Authorized Officer
shall mean the President, the Chief Financial Officer, the Treasurer, the
Vice President-Finance or any other senior officer of the Parent Borrower (or, if expressly used
with reference to the European Subsidiary Borrower, of the European Subsidiary Borrower (and
including any substantially equivalent officer)) designated as such in writing to the
Administrative Agent by the applicable Borrower.
Available Commitment
shall mean an amount equal to the excess, if any, of (a) the amount of
the Total Revolving Credit Commitment over (b) the sum of (i) the aggregate Dollar Equivalent
principal amount of all Revolving Credit Loans (but not Swingline Loans) then outstanding and (ii)
the aggregate Letters of Credit Outstanding at such time.
Bain
shall mean Bain Capital Partners LLC.
Bank of America
shall mean Bank of America, N.A. and its successors.
Bankruptcy Code
shall have the meaning provided in
Section 11.5
.
Board
shall mean the Board of Governors of the Federal Reserve System of the United States
(or any successor).
Borrowers
shall have the meaning provided in the preamble to this Agreement.
Borrowing
shall mean and include (a) the incurrence of Swingline Loans from the Swingline
Lender on a given date, (b) the incurrence of one Type of Term Loan on the Closing Date (or
resulting from conversions on a given date after the Closing Date) having, in the case of LIBOR
Term Loans, the same Interest Period (
provided
that ABR Loans incurred pursuant to
Section 2.10(b)
shall be considered part of any related Borrowing of LIBOR Term Loans) and
(c) the incurrence of one Type of Revolving Credit Loan on a given date (or resulting from
conversions on a given date) having, in the case of LIBOR Revolving Credit Loans, the same Interest
Period (
provided
that ABR Loans incurred pursuant to
Section 2.10(b)
shall be
considered part of any related Borrowing of LIBOR Revolving Credit Loans).
Business Day
shall mean any day excluding Saturday, Sunday and any day that in the
jurisdiction where the Administrative Agents Office for Loans in Dollars is located shall be a
legal holiday or a day on which banking institutions are authorized by law or other governmental
actions to close;
provided
,
however
,
(a) if such day relates to any interest rate settings as to a LIBOR Loan denominated in
Dollars, any fundings, disbursements, settlements and payments in Dollars
-7-
in respect of any such LIBOR Loan, or any other dealings in Dollars to be carried out
pursuant to this Agreement in respect of any such LIBOR Loan, such day shall be a day on
which dealings in deposits in Dollars are conducted by and between banks in the London
interbank eurodollar market;
(b) if such day relates to any interest rate settings as to a LIBOR Loan denominated in
Euro, any fundings, disbursements, settlements and payments in Euro in respect of any such
LIBOR Loan, or any other dealings in Euro to be carried out pursuant to this Agreement in
respect of any such LIBOR Loan, such day shall be a TARGET Day;
(c) if such day relates to any interest rate settings as to a LIBOR Loan denominated in
Sterling, such day shall be a day on which dealings in deposits in Sterling are conducted by
and between banks in the London interbank market; and
(d) if such day relates to any fundings, disbursements, settlements and payments in
Sterling in respect of a LIBOR Loan denominated in Sterling, or any other dealings in
Sterling to be carried out pursuant to this Agreement in respect of any such LIBOR Loan
(other than any interest rate settings), such day shall be a day on which banks are open for
foreign exchange business in London.
Capital Expenditures
shall mean, for any period, the aggregate of all expenditures (whether
paid in cash or accrued as liabilities and including in all events all amounts expended or
capitalized under Capital Leases) by the Parent Borrower and the Restricted Subsidiaries during
such period that, in conformity with GAAP, are or are required to be included as capital
expenditures on a consolidated statement of cash flows of the Parent Borrower and its Subsidiaries.
Capital Lease
shall mean, as applied to any Person, any lease of any property (whether real,
personal or mixed) by that Person as lessee that, in conformity with GAAP, is, or is required to
be, accounted for as a capital lease on the balance sheet of that Person.
Capitalized Lease Obligations
shall mean, as applied to any Person, all obligations under
Capital Leases of such Person or any of its Subsidiaries, in each case taken at the amount thereof
accounted for as liabilities in accordance with GAAP.
Cash Collateralize
shall have the meaning provided in
Section 3.8(d)
.
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 Pay Notes
shall have the meaning provided in the preamble to this Agreement.
-8-
Casualty Event
shall mean, with respect to any property of any Person, any loss of or damage
to, or any condemnation or other taking by a Governmental Authority of, such property for which
such Person or any of its Restricted Subsidiaries receives insurance proceeds, or proceeds of a
condemnation award or other compensation.
Change in Law
shall mean (a) the adoption of any law, treaty, order, policy, rule or
regulation after the date of this Agreement, (b) any change in any law, treaty, order, policy, rule
or regulation or in the interpretation or application thereof by any Governmental Authority after
the date of this Agreement or (c) any guideline, request or directive issued or made after the date
hereof by any central bank or other governmental or quasi-governmental authority (whether or not
having the force of law) that requires compliance by a Lender.
Change of Control
shall mean and be deemed to have occurred if (a) the Sponsors, the Frist
Shareholders and the Management Investors shall at any time not own, in the aggregate, directly or
indirectly, beneficially and of record, at least 35% of the voting power of the outstanding Voting
Stock of the Parent Borrower (other than as the result of one or more widely distributed offerings
of the common Stock of the Parent Borrower or any direct or indirect parent thereof, in each case
whether by the Parent Borrower, such parent, the Sponsors, the Frist Shareholders or the Management
Investors); or (b) any person, entity or group (within the meaning of Section 13(d) or 14(d) of
the Securities Exchange Act of 1934, as amended) shall at any time have acquired direct or indirect
beneficial ownership of a percentage of the voting power of the outstanding Voting Stock of the
Parent Borrower that exceeds the percentage of the voting power of such Voting Stock then
beneficially owned, in the aggregate, by the Sponsors, the Frist Shareholders and the Management
Investors, unless, in the case of either
clause (a)
or
(b)
above, the Sponsors, the
Frist Shareholders and the Management Investors have, at such time, the right or the ability by
voting power, contract or otherwise to elect or designate for election at least a majority of the
board of directors of the Parent Borrower; or (c) Continuing Directors shall not constitute at
least a majority of the board of directors of the Parent Borrower; or (d) at any time, a Change of
Control (as defined in the Senior Second Lien Notes Indenture or any agreement governing
Subordinated Indebtedness) shall have occurred or (e) the Parent Borrower shall cease to directly
own 100% of the Stock and Stock Equivalents of Healthtrust;
provided
that no Change of
Control shall be deemed to have occurred under this
clause (e)
solely as a result of the
preferred Stock of Healthtrust that is owned by ColumbiaSDH and Epic Properties continuing to be
owned by such entities so long as ColumbiaSDH and Epic Properties are direct or indirect
wholly-owned Subsidiaries of Healthtrust.
Class
, when used in reference to any Loan or Borrowing, shall refer to whether such Loan, or
the Loans comprising such Borrowing, are Revolving Credit Loans, New Revolving Loans, Tranche A
Term Loans, Tranche B Term Loans, European Tranche Term Loans, New Term Loans (of each Series) or
Swingline Loans and, when used in reference to any Commitment, refers to whether such Commitment is
a Revolving Credit Commitment, a New Revolving Credit Commitment, Tranche A Term Loan Commitment,
Tranche B Term Loan Commitment, European Tranche Term Loan Commitment or a New Term Loan
Commitment.
Closing Date
shall mean the date of the initial Borrowing hereunder.
-9-
Code
shall mean the Internal Revenue Code of 1986, as amended from time to time, and the
regulations promulgated and rulings issued thereunder. Section references to the Code are to the
Code, as in effect at the date of this Agreement, and any subsequent provisions of the Code,
amendatory thereof, supplemental thereto or substituted therefor.
Collateral
shall mean the U.S. Collateral and the European Collateral, collectively.
Collateral Agent
shall mean Bank of America, as collateral agent under the Security
Documents, or any successor collateral agent pursuant to
Section 13
.
ColumbiaSDH
shall mean ColumbiaSDH Holdings, Inc., a Delaware corporation.
Commitment Fee
shall have the meaning provided in
Section 4.1(a)
.
Commitment Fee Rate
shall mean, with respect to the Available Commitment on any day, the
rate
per annum
set forth below opposite the Status in effect on such day:
|
|
|
|
|
Status
|
|
Commitment Fee Rate
|
Level I Status
|
|
|
0.50
|
%
|
Level II Status
|
|
|
0.50
|
%
|
Level III Status
|
|
|
0.375
|
%
|
Level IV Status
|
|
|
0.375
|
%
|
Level V Status
|
|
|
0.375
|
%
|
Notwithstanding the foregoing, the term Commitment Fee Rate shall mean 0.50% during the period
from and including the Closing Date to but excluding the Trigger Date.
Commitments
shall mean, with respect to each Lender (to the extent applicable), such
Lenders Tranche A Term Loan Commitment, Tranche B Term Loan Commitment, European Tranche Term Loan
Commitment, Revolving Credit Commitment, New Revolving Credit Commitment and New Term Loan
Commitment.
Communications
shall have the meaning provided in
Section 14.17(a)
.
Confidential Healthcare Information
shall have the meaning provided in
Section 9.2
.
Confidential Information
shall have the meaning provided in
Section 14.16
.
Confidential Information Memorandum
shall mean the Confidential Information Memorandum of
the Parent Borrower dated August 2006, the Confidential Information Memorandum of the Parent
Borrower dated September 2006, in each case delivered to the Lenders in connection with this
Agreement, and the Confidential Information Memorandum of the Parent Borrower dated October 2006;
provided that in the event and to the extent of any
-10-
inconsistencies between or among any of the foregoing, Confidential Information Memorandum shall
refer to the most recent thereof.
Consolidated EBITDA
shall mean, for any period, Consolidated Net Income for such period,
plus
:
(a) without duplication and to the extent deducted (and not added back) in arriving at
such Consolidated Net Income, the sum of the following amounts for the Parent Borrower and
the Restricted Subsidiaries for such period:
(i) total interest expense and to the extent not reflected in such total
interest expense, any losses on hedging obligations or other derivative instruments
entered into for the purpose of hedging interest rate risk, net of interest income
(other than interest income of HCI) and gains on such hedging obligations, and costs
of surety bonds in connection with financing activities,
(ii) provision for taxes based on income, profits or capital, including
federal, foreign state, franchise, excise and similar taxes and foreign withholding
taxes paid or accrued during such period, including any penalties and interest
relating to any tax examinations,
(iii) depreciation and amortization,
(iv) Non-Cash Charges,
(v) extraordinary losses, unusual or non-recurring charges, severance costs,
relocation costs, integration and facilities opening costs, signing costs, retention
or completion bonuses, transition costs and costs from curtailments or modifications
to pension and post-retirement employee benefit plans,
(vi) restructuring charges or reserves (including restructuring costs related
to acquisitions after the date hereof and to closure and/or consolidation of
facilities),
(vii) the amount of any minority interest expense consisting of Subsidiary
income attributable to minority equity interests of third parties in any
non-wholly-owned Subsidiary deducted (and not added back) in such period to
Consolidated Net Income,
(viii) the amount of management, monitoring, consulting and advisory fees and
related expenses paid to the Sponsors,
(ix) any costs or expenses pursuant to any management equity plan or stock
option plan or any other management or employee benefit plan or agreement or any
stock subscription or shareholder agreement, to the extent that such costs or
expenses are funded with cash proceeds contributed to the capital of the Parent
Borrower or net cash proceeds of an issuance of Stock or Stock Equivalents (other
than Disqualified Equity Interests) of the Parent Borrower (
provided
-11-
such capital contributions are not included in the Cure Amount and have not been
applied to increase the Applicable Amount pursuant to
clause (ii)
of the
definition thereof),
(x) the amount of net cost savings projected by the Parent Borrower in good
faith to be realized as a result of specified actions (i) taken by the Parent
Borrower and its Restricted Subsidiaries prior to such date of determination or (ii)
expected to be taken on or prior to the third anniversary of the Closing Date (in
each case, calculated on a Pro Forma Basis as though such cost savings had been
realized on the first day of such period), net of the amount of actual benefits
realized during such period from such actions,
provided
that (A) such cost
savings are reasonably identifiable and factually supportable, (B) in the case of
subclause (ii)
above, such actions are taken on or prior to the third
anniversary of the Closing Date, (C) no cost savings shall be added pursuant to this
clause (x) to the extent duplicative of any expenses or charges relating to such
cost savings that are included in
clause (vi)
above with respect to such
period and (D) the aggregate amount of cost savings added pursuant to this
clause (x)
shall not exceed $200,000,000 for any period consisting of four
consecutive quarters,
(xi) to the extent covered by insurance and actually reimbursed, or, so long as
the Parent Borrower has made a determination that there exists reasonable evidence
that such amount will in fact be reimbursed by the insurer and only to the extent
that such amount is (A) not denied by the applicable carrier in writing within 180
days and (B) in fact reimbursed within 365 days of the date of such evidence (with a
deduction for any amount so added back to the extent not so reimbursed within such
365 days), expenses with respect to liability or casualty events or business
interruption, and
(xii) the amount of losses on Dispositions of receivables and related assets in
connection with any Permitted Receivables Financing,
less
(b) without duplication and to the extent included in arriving at such Consolidated Net
Income, the sum of the following amounts for such period:
(i) extraordinary gains and unusual or non-recurring gains,
(ii) non-cash gains (excluding any non-cash gain to the extent it represents
the reversal of an accrual or reserve for a potential cash item that reduced
Consolidated Net Income or Consolidated EBITDA in any prior period),
(iii) gains on asset sales (other than asset sales in the ordinary course of
business), and
(iv) any net after-tax income from the early extinguishment of Indebtedness or
hedging obligations or other derivative instruments,
-12-
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 Subsidiary for such period
(including the portion thereof occurring prior to such sale, transfer or disposition or
conversion).
Notwithstanding anything to the contrary contained herein and subject to adjustment as provided in
clauses (iii)
and
(iv)
of the immediately preceding proviso with respect to
acquisitions and dispositions occurring following the Closing Date, Consolidated EBITDA shall be
deemed to be
-13-
$1,233,000,000, $1,112,000,000 and $974,000,000, respectively, for the fiscal quarters ended March
31, 2006, June 30, 2006, and September 30, 2006.
Consolidated EBITDA to Consolidated Interest Expense Ratio
shall mean, as of any date of
determination, the ratio of (a) Consolidated EBITDA for the relevant Test Period to (b)
Consolidated Interest Expense for such Test Period.
Consolidated First Lien Debt
shall mean Consolidated Total Debt secured by a Lien on any
assets of the Parent Borrower or any of its Restricted Subsidiaries (other than (i) a Lien ranking
junior to the Lien securing the Obligations on a basis at least as substantially favorable to the
Lenders as the basis on which the Lien securing the Senior Second Lien Notes ranks junior to the
Lien securing the Obligations and (ii) Liens on assets not constituting Collateral permitted
pursuant to
Section 10.2
).
Consolidated First Lien Debt to Consolidated EBITDA Ratio
shall mean, as of any date of
determination, the ratio of (a) Consolidated First Lien Debt as of such date to (b) Consolidated
EBITDA for the Test Period then last ended.
Consolidated Interest Expense
shall mean, for any period, the sum of (i) the cash interest
expense including that attributable to Capital Leases in accordance with GAAP (
provided
that any payment of cash interest pursuant to
Section 10.6(e)
on the required date of
determination of Consolidated Interest Expense for any purpose under this Agreement shall be added
to Consolidated Interest Expense for the period for which such determination is being made), net of
cash interest income (other than interest income of HCI), of Holdings, the Parent Borrower and the
Restricted Subsidiaries on a consolidated basis in accordance with GAAP with respect to all
outstanding Indebtedness of Holdings, the Parent Borrower and the Restricted Subsidiaries,
including all commissions, discounts and other fees and charges owed with respect to letters of
credit and bankers acceptance financing and net costs under Hedge Agreements (other than currency
swap agreements, currency future or option contracts and other similar agreements) and (ii) any
cash payments made during such period in respect of obligations referred to in
clause (b)
below relating to Funded Debt that were amortized or accrued in a previous period (other than any
such obligations resulting from the discounting of Indebtedness in connection with the application
of purchase accounting in connection with the Transaction or any Permitted Acquisition), but
excluding, however, (a) amortization of deferred financing costs and any other amounts of non-cash
interest, (b) the accretion or accrual of discounted liabilities during such period, and (c) all
non-recurring cash interest expense consisting of liquidated damages for failure to timely comply
with registration rights obligations and financing fees, all as calculated on a consolidated basis
in accordance with GAAP and excluding, for the avoidance of doubt, any interest in respect of items
excluded from Indebtedness in the proviso to the definition thereof,
provided
that (a)
except as provided in
clause (b)
below, there shall be excluded from Consolidated Interest
Expense for any period the cash interest expense (or cash interest income) of all Unrestricted
Subsidiaries for such period to the extent otherwise included in Consolidated Interest Expense, (b)
there shall be included in determining Consolidated Interest Expense for any period the cash
interest expense (or income) of any Acquired Entity or Business acquired during such period 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
-14-
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, based on the cash interest expense (or income) relating to any Indebtedness relieved,
retired or repaid in connection with any such disposition of such Sold Entity or Business for such
period (including the portion thereof occurring prior to such disposal) assuming such debt
relieved, retired or repaid in connection with such disposition had been relieved, retired or
repaid on the first day of such period.
Consolidated Net Income
shall mean, for any period, the net income (loss) of the Parent
Borrower and the Restricted Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP, excluding, without duplication,
(a) extraordinary items for such period,
(b) the cumulative effect of a change in accounting principles during such period to
the extent included in Consolidated Net Income,
(c) in the case of any period that includes a period ending prior to or during the
fiscal quarter ending September 30, 2007, Transaction Expenses,
(d) any fees and expenses incurred during such period, or any amortization thereof for
such period, in connection with any acquisition, investment, recapitalization, asset
disposition, issuance or repayment of debt, issuance of equity securities, refinancing
transaction or amendment or other modification of any debt instrument (in each case,
including any such transaction consummated prior to the Closing Date and any such
transaction undertaken but not completed) and any charges or non-recurring merger costs
incurred during such period as a result of any such transaction,
(e) any income (loss) for such period attributable to the early extinguishment of
Indebtedness or to hedging obligations or other derivative instruments,
(f) accruals and reserves required to be established or adjusted as a result of the
Transactions in accordance with GAAP or changes as a result of adoption of or modification
of accounting policies, in each case, within twelve months after the Closing Date, and
(g) the income (loss) for such period of any Unrestricted Subsidiary, except to the
extent distributed to the Parent Borrower or any Restricted Subsidiary.
There shall be excluded from Consolidated Net Income for any period the purchase accounting effects
of adjustments to inventory, property, equipment and intangible assets and deferred revenue in
component amounts required or permitted by GAAP and related authoritative pronouncements (including
the effects of such adjustments pushed down to the Parent Borrower and the Restricted
Subsidiaries), as a result of the Transactions, any consummated acquisition whether consummated
before or after the Closing Date, or the amortization or write-off of any amounts thereof.
-15-
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) all Indebtedness of
the types described in
clause (a)
,
clause (c)
(but, in the case of
clause
(c)
, only to the extent of any unreimbursed drawings under any letter of credit) and
clause
(e)
of the definition thereof actually owing by the Parent Borrower and the Restricted
Subsidiaries on such date to the extent appearing on the balance sheet of the Parent Borrower
determined on a consolidated basis in accordance with GAAP (
provided
that the amount of any
Capitalized Lease Obligations or any such Indebtedness issued at a discount to its face value shall
be determined in accordance with GAAP)
minus
(b) the aggregate cash and cash equivalents
included in the cash and cash equivalents accounts listed on the balance sheet of the Parent
Borrower and the Restricted Subsidiaries as at such date determined on a consolidated basis in
accordance with GAAP excluding (x) all cash of HCI and (y) any cash subject to a Lien other than
nonconsensual Liens permitted by
Section 10.2
and Liens permitted by
Section
10.2(m)
,
(n)
and
(o)
.
Consolidated Total Debt to Consolidated EBITDA Ratio
shall mean, as of any date of
determination, the ratio of (a) Consolidated Total Debt as of the last day of the relevant Test
Period to (b) Consolidated EBITDA for such Test Period.
Consolidated Working Capital
shall mean, at any date, the excess of (a) the sum of all
amounts (other than cash and Permitted Investments) that would, in conformity with GAAP, be set
forth opposite the caption total current assets (or any like caption) on a consolidated balance
sheet of the Parent Borrower and the Restricted Subsidiaries at such date over (b) the sum of all
amounts that would, in conformity with GAAP, be set forth opposite the caption total current
liabilities (or any like caption) on a consolidated balance sheet of the Parent Borrower and the
Restricted Subsidiaries on such date, including deferred revenue but excluding, without
duplication, (i) the current portion of any Funded Debt and (ii) all Indebtedness consisting of
Loans and Letter of Credit Exposure to the extent otherwise included therein.
Continuing Director
shall mean, at any date, an individual (a) who is a member of the board
of directors of the Parent Borrower on the date hereof, (b) who, as of the date of determination,
has been a member of such board of directors for at least the twelve preceding months, (c) who has
been nominated to be a member of such board of directors, directly or indirectly, by a Sponsor or
Persons nominated by a Sponsor or (d) who has been nominated to be a member of such board of
directors by a majority of the other Continuing Directors then in office.
Contract Consideration
shall have the meaning provided in the definition of Excess Cash
Flow.
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Contractual Requirement
shall have the meaning provided in
Section 8.3
.
Converted Restricted Subsidiary
shall have the meaning provided in the definition of the
term Consolidated EBITDA.
Converted Unrestricted Subsidiary
shall have the meaning provided in the definition of the
term Consolidated EBITDA.
Co-Syndication Agents
shall mean JPMorgan Chase Bank, N.A. and Citicorp North America, Inc.,
together with their respective affiliates, as co-syndication agents for the Lenders under this
Agreement and the other Credit Documents.
Credit Documents
shall mean this Agreement, the Guarantees, the Security Documents, each
Letter of Credit and any promissory notes issued by a Borrower hereunder.
Credit Event
shall mean and include the making (but not the conversion or continuation) of a
Loan and the issuance of a Letter of Credit.
Credit Facilities
shall mean, collectively, each category of Commitments and each extension
of credit hereunder.
Credit Facility
shall mean a category of Commitments and extensions of credit thereunder.
Credit Party
shall mean each of the Borrowers, the Guarantors and each other Subsidiary of
the Parent Borrower that is a party to a Credit Document.
Cumulative Consolidated Net Income
shall mean, for any period, Consolidated Net Income for
such period, taken as a single accounting period. Cumulative Consolidated Net Income may be a
positive or negative amount.
Cure Amount
shall have the meaning provided in
Section 12
.
Cure Right
shall have the meaning provided in
Section 12
.
Debt Incurrence Prepayment Event
shall mean any issuance or incurrence by the Parent
Borrower or any of the Restricted Subsidiaries of any Indebtedness (excluding any Indebtedness
permitted to be issued or incurred under
Section 10.1
other than
Section 10.1(o)
).
Debt Repayment
shall mean the repayment, prepayment, repurchase or defeasance of the
Indebtedness of the Parent Borrower under the 1993 Indenture that is identified on
Schedule
1.1(g)
and that is repaid, prepaid, repurchased or defeased on the 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.
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Defaulting Lender
shall mean any Lender with respect to which a Lender Default is in effect.
Deferred Net Cash Proceeds
shall have the meaning provided such term in the definition of
Net Cash Proceeds.
Deferred Net Cash Proceeds Payment Date
shall have the meaning provided such term in the
definition of Net Cash Proceeds.
Delayed Equity Arrangements
shall have the meaning provided in
Section 8.17
.
Delayed Equity Amount
means an amount, in Dollars, equal to the lesser of (x) $100,000,000
and (y) the amount by which the Equity Investment actually made on the Closing Date would have to
have been increased (assuming (I) a corresponding decrease in the amount of consolidated
Indebtedness of the Parent Borrower and its Subsidiaries outstanding on the Closing Date and (II)
that such consolidated Indebtedness had been further reduced by the Option Note Amount) in order
for the sum of (i) the Equity Investment actually made on the Closing Date and (ii) the Option Note
Amount to have constituted 15% of the aggregate pro forma capitalization of the Parent Borrower on
the Closing Date. For the avoidance of doubt, no amount deemed received by the Parent Borrower in
respect of the Option Note Amount for purposes of the first sentence of
Section 10.7(e)
shall also be deemed received by the Parent Borrower in respect of the Delayed Equity Amount for
purposes of such sentence.
Designated Non-Cash Consideration
shall mean the fair market value of non-cash consideration
received by the Parent Borrower or a Restricted Subsidiary in connection with a Disposition
pursuant to
Section 10.4(b)
or
Section 10.4(c)
that is designated as Designated
Non-Cash Consideration pursuant to a certificate of an Authorized Officer of the Parent Borrower,
setting forth the basis of such valuation (which amount will be reduced by the fair market value of
the portion of the non-cash consideration converted to cash within 180 days following the
consummation of the applicable Disposition).
Designated Non-Guarantor Subsidiary
shall mean any Restricted Subsidiary of the Parent
Borrower that is designated as a Designated Non-Guarantor Subsidiary by the Parent Borrower in a
written notice to the Administrative Agent, provided that (a) each of (i) an amount equal to the
Parent Borrowers direct or indirect equity ownership percentage of the net worth of such
Restricted Subsidiary immediately prior to such designation (such net worth to be calculated
without regard to any guarantee provided by such designated Restricted Subsidiary) and (ii) without
duplication of any amount included in the preceding
clause (i)
, the aggregate principal
amount of any Indebtedness owed by such designated Restricted Subsidiary to the Parent Borrower or
any other Credit Party immediately prior to such designation, shall be deemed to be an Investment
by the Parent Borrower, on the date of such designation, in a Restricted Subsidiary that is not a
U.S. Credit Party, all calculated, except as set forth in the parenthetical to
clause (i)
above, on a consolidated basis in accordance with GAAP and (b) no Default or Event of Default would
result from such designation after giving effect thereto. The Parent Borrower may, by written
notice to the Administrative Agent, re-designate any Designated Non-Guarantor Subsidiary as a
Guarantor, and thereafter, such Subsidiary shall no longer constitute a
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Designated Non-Guarantor Subsidiary, but only if (x) no Default or Event of Default would result
from such re-designation and (y) such Subsidiary becomes a party to the applicable Guarantee and
Security Documents in order to become a Guarantor and grantor or pledgor, as applicable,
thereunder.
Designated Obligations
shall mean all obligations of the Borrowers with respect to (a)
principal of and interest on the Loans, (b) Unpaid Drawings and interest thereon and (c) accrued
and unpaid fees under the Credit Documents.
Disposed EBITDA
shall mean, with respect to any Sold Entity or Business or any Converted
Unrestricted Subsidiary for any period, the amount for such period of Consolidated EBITDA of such
Sold Entity or Business or Converted Unrestricted Subsidiary (determined as if references to the
Parent Borrower and the Restricted Subsidiaries in the definition of Consolidated EBITDA were
references to such Sold Entity or Business or Converted Unrestricted Subsidiary and its respective
Subsidiaries), all as determined on a consolidated basis for such Sold Entity or Business or
Converted Unrestricted Subsidiary, as the case may be.
Disposition
shall have the meaning provided in
Section 10.4(b)
.
Disqualified Equity Interests
shall mean any Stock or Stock Equivalent which, by its terms
(or by the terms of any security or other Stock or Stock Equivalent into which it is convertible or
for which it is exchangeable), or upon the happening of any event or condition (a) matures or is
mandatorily redeemable (other than solely for Qualified Equity Interests), pursuant to a sinking
fund obligation or otherwise (except (i) as a result of a change of control or asset sale so long
as any rights of the holders thereof upon the occurrence of a change of control or asset sale event
shall be subject to the prior repayment in full of the Loans and all other Obligations that are
accrued and payable and the termination of the Commitments or (ii) pursuant to any put option with
respect to any Stock or Stock Equivalent of a Subsidiary granted in favor of any Facility
Syndication Partner in connection with syndications of ambulatory surgery centers, outpatient
diagnostic or imaging centers, hospitals or other healthcare businesses operated or conducted by
such Subsidiary (collectively,
Syndications
)), (b) is redeemable at the option of the holder
thereof (other than solely for Qualified Equity Interests), in whole or in part, (c) provides for
scheduled payments of dividends in cash (other than, in the case of Stock or Stock Equivalents of a
Subsidiary issued to a Facility Syndication Partner in connection with a Syndication or held by a
Restricted Subsidiary, periodic distributions of available cash (determined in good faith by the
Parent Borrower) to the holders of such class of Stock or Stock Equivalents on a
pro rata
basis),
or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Stock or Stock
Equivalent that would constitute Disqualified Equity Interests, in each case, prior to the date
that is 180 days after the Final Maturity Date.
Dividends
or
dividends
shall have the meaning provided in
Section 10.6
.
Documentation Agent
shall mean Merrill Lynch Capital Corporation.
Dollar Equivalent
shall mean, at any time, (a) with respect to any amount denominated in
Dollars, such amount, and (b) with respect to any amount denominated in any currency other than
Dollars, the equivalent amount thereof in Dollars as determined by the
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Administrative Agent or the Letter of Credit Issuer, as the case may be, on the basis of the Spot
Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with
such currency.
Dollars
and
$
shall mean dollars in lawful currency of the United States of America.
Domestic Subsidiary
shall mean each Subsidiary of the Parent Borrower that is organized
under the laws of the United States, any state or territory thereof, or the District of Columbia.
Drawing
shall have the meaning provided in
Section 3.4(b)
.
EMU
shall mean the economic and monetary union in accordance with the Treaty of Rome 1957,
as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam Treaty
of 1998.
EMU Legislation
shall mean the legislative measures of the European Council for the
introduction of, changeover to or operation of a single or unified European currency.
Environmental Claims
shall mean any and all actions, suits, orders, decrees, demands, demand
letters, claims, liens, notices of noncompliance, violation or potential responsibility or
investigation (other than internal reports prepared by the Parent Borrower or any of the
Subsidiaries (a) in the ordinary course of such Persons business or (b) as required in connection
with a financing transaction or an acquisition or disposition of real estate) or proceedings
relating in any way to any Environmental Law or any permit issued, or any approval given, under any
such Environmental Law (hereinafter,
Claims
), including, without limitation, (i) any and all
Claims by governmental or regulatory authorities for enforcement, cleanup, removal, response,
remedial or other actions or damages pursuant to any applicable Environmental Law and (ii) any and
all Claims by any third party seeking damages, contribution, indemnification, cost recovery,
compensation or injunctive relief relating to the presence, release or threatened release of
Hazardous Materials or arising from alleged injury or threat of injury to health or safety (to the
extent relating to human exposure to Hazardous Materials), or the environment including, without
limitation, ambient air, surface water, groundwater, land surface and subsurface strata and natural
resources such as wetlands.
Environmental Law
shall mean any applicable Federal, state, foreign or local statute, law,
rule, regulation, ordinance, code and rule of common law now or hereafter in effect and in each
case as amended, and any binding judicial or administrative interpretation thereof, including any
binding judicial or administrative order, consent decree or judgment, relating to the protection of
environment, including, without limitation, ambient air, surface water, groundwater, land surface
and subsurface strata and natural resources such as wetlands, or human health or safety (to the
extent relating to human exposure to Hazardous Materials), or Hazardous Materials.
Epic Properties
shall mean Epic Properties, Inc., a Texas corporation.
-20-
Equity Investments
shall have the meaning provided in the preamble to this Agreement.
ERISA
shall mean the Employee Retirement Income Security Act of 1974, as amended from time
to time. Section references to ERISA are to ERISA as in effect at the date of this Agreement 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.
Euro
and
shall mean the lawful currency of the Participating Member States introduced in
accordance with the EMU Legislation.
European Collateral
shall mean all property pledged or purported to be pledged pursuant to
the terms of the European Security Documents.
European Credit Facility
shall mean the Credit Facility consisting of the European Tranche
Term Loan Commitments and the European Tranche Term Loans.
European Credit Party
shall mean the European Subsidiary Borrower and the European
Guarantors.
European Guarantee
shall mean (a) the Guarantee, made by each European Guarantor in favor of
the Administrative Agent for the benefit of the European Secured Parties, substantially in the form
of
Exhibit B-2
, and (b) any other guarantee of the European Obligations made by a European
Subsidiary that is a Restricted Subsidiary in form and substance reasonably acceptable to the
Administrative Agent, in each case as the same may be amended, supplemented or otherwise modified
from time to time.
European Guarantors
shall mean (a) each European Subsidiary that is party to the European
Guarantee on the Closing Date and (b) each European Subsidiary that becomes a party to the European
Guarantee after the Closing Date pursuant to
Section 9.11
or otherwise.
European Obligations
shall mean all advances to, and debts, liabilities, obligations,
covenants and duties of, any Credit Party arising under any Credit Document or otherwise, in each
case with respect to any European Tranche Term Loan or under any Secured Cash Management Agreement
or Secured Hedge Agreement, and in each case, entered into with the European Subsidiary Borrower or
any other European Subsidiary, whether direct or indirect (including those acquired by assumption),
absolute or contingent, due or to become due, now existing or hereafter arising and including
interest and fees that accrue after the commencement by or against any Credit Party or any
Affiliate thereof of any proceeding under any bankruptcy or insolvency law naming such Person as
the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in
such proceeding.
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European Security Agreement
shall mean the Security Agreement, dated as of November 17,
2006, by and among the European Credit Parties and the Collateral Agent.
European Security Documents
shall mean (a) each European Security Agreement and (b) each
other security agreement or other instrument or document executed and delivered by any European
Credit Party pursuant to
Section 9.11
or
Section 9.14
or pursuant to any agreement
referred to in
clause (a)
above, in each case, to secure the European Obligations.
European Secured Parties
shall mean the Administrative Agent and the Collateral Agent, in
each case, with respect to matters relating to the European Tranche Term Loans or the European
Security Documents, each European Tranche Term Loan Lender, each Hedge Bank that is party to any
Secured Hedge Agreement with any European Subsidiary Borrower or any other European Subsidiary,
each Cash Management Bank that is party to a Secured Cash Management Agreement with any European
Subsidiary Borrower or any other European Subsidiary and each sub-agent pursuant to
Section
13
appointed by the Administrative Agent or the Collateral Agent with respect to the European
Credit Facility or any European Security Document.
European Subsidiary
shall mean each Subsidiary of the Parent Borrower that is incorporated
or formed under the laws of England and Wales.
European Subsidiary Borrower
shall have the meaning provided in the preamble to this
Agreement.
European Tranche Repayment Amount
shall have the meaning provided in
Section 2.5(c)
.
European Tranche Repayment Date
shall have the meaning provided in
Section 2.5(c)
.
European Tranche Term Loan
shall have the meaning provided in
Section 2.1
.
European Tranche Term Loan Commitment
shall mean (a) in the case of each Lender that is a
Lender on the date hereof, the amount set forth opposite such Lenders name on
Schedule
1.1(c)
as such Lenders European Tranche Term Loan Commitment and (b) in the case of any
Lender that becomes a Lender after the date hereof, the amount specified as such Lenders European
Tranche Term Loan Commitment in the Assignment and Acceptance pursuant to which such Lender
assumed a portion of the Total European Tranche Term Loan Commitment, in each case as the same may
be changed from time to time pursuant to the terms hereof. The aggregate amount of the European
Tranche Term Loan Commitments as of the Closing Date is
1,000,000,000.
European Tranche Term Loan Lender
shall mean a Lender with a European Tranche Term Loan
Commitment or an outstanding European Tranche Term Loan.
European Tranche Term Loan Maturity Date
shall mean November 17, 2013 or, if such date is
not a Business Day, the first Business Day thereafter.
-22-
Event of Default
shall have the meaning provided in
Section 11
.
Excess Cash Flow
shall mean, for any period, an amount equal to the excess of
(a) the sum, without duplication, of
(i) Consolidated Net Income for such period,
(ii) an amount equal to the amount of all non-cash charges to the extent
deducted in arriving at such Consolidated Net Income,
(iii) an amount equal to the provision for taxes based on income, profits or
capital of the Parent Borrower and the Restricted Subsidiaries, including federal,
foreign, state, franchise, excise and similar taxes and foreign withholding taxes
paid or accrued during such period to the extent deducted in arriving at such
Consolidated Net Income,
(iv) decreases in Consolidated Working Capital for such period (other than any
such decreases arising from acquisitions by the Parent Borrower and the Restricted
Subsidiaries completed during such period),
(v) an amount equal to the aggregate net non-cash loss on the sale, lease,
transfer or other disposition of assets by the Parent Borrower and the Restricted
Subsidiaries during such period (other than sales, leases, transfers or other
dispositions in the ordinary course of business) to the extent deducted in arriving
at such Consolidated Net Income, and
(vi) cash receipts in respect of Swap Contracts during such fiscal year to the
extent not otherwise included in Consolidated Net Income;
over
(b) the sum, without duplication, of
(i) an amount equal to the amount of all non-cash credits included in arriving
at such Consolidated Net Income and cash charges described in
clauses (a)
through
(f)
of the definition of Consolidated Net Income (other than cash
charges in respect of Transaction Expenses paid on or about the Closing Date to the
extent financed with the proceeds of Indebtedness incurred on the Closing Date or
the Equity Investments) and included in arriving at such Consolidated Net Income,
(ii) without duplication of amounts deducted pursuant to
clause (xi)
below in prior years, the amount of Capital Expenditures made in cash during such
period, except to the extent that such Capital Expenditures were financed with the
proceeds of Indebtedness or a sale of Stock or Stock Equivalents of the Parent
Borrower or the Restricted Subsidiaries,
(iii) the aggregate amount of all principal payments of Indebtedness of the
Parent Borrower and the Restricted Subsidiaries (including (A) the principal
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component of payments in respect of Capitalized Lease Obligations, (B) the amount of
any repayment of Term Loans pursuant to
Section 2.5
and (C) the amount of a
mandatory prepayment of Term Loans pursuant to
Section 5.2(a)
to the extent
required due to a Disposition that resulted in an increase to Consolidated Net
Income and not in excess of the amount of such increase but excluding (x) all other
prepayments of Term Loans and (y) all prepayments of Revolving Credit Loans,
Swingline Loans and loans under the ABL Facility) made during such period (other
than in respect of any revolving credit facility to the extent there is not an
equivalent permanent reduction in commitments thereunder), except to the extent
financed with the proceeds of other Indebtedness of the Parent Borrower or the
Restricted Subsidiaries,
(iv) an amount equal to the aggregate net non-cash gain on the sale, lease,
transfer or other disposition of assets by the Parent Borrower and the Restricted
Subsidiaries during such period (other than sales in the ordinary course of
business) to the extent included in arriving at such Consolidated Net Income,
(v) increases in Consolidated Working Capital for such period (other than any
such increases arising from acquisitions by the Parent Borrower and the Restricted
Subsidiaries completed during such period),
(vi) payments by the Parent Borrower and the Restricted Subsidiaries during
such period in respect of long-term liabilities of the Parent Borrower and the
Restricted Subsidiaries other than Indebtedness,
(vii) without duplication of amounts deducted pursuant to
clause (xi)
below in prior fiscal years, the aggregate amount of cash consideration paid by the
Parent Borrower and the Restricted Subsidiaries (on a consolidated basis) in
connection with Investments (including acquisitions) made during such period
pursuant to
Section 10.5
(other than
Section 10.5(b)
) to the extent
that such Investments were financed with internally generated cash flow of the
Parent Borrower and the Restricted Subsidiaries,
(viii) the amount of dividends paid during such period (on a consolidated
basis) by the Parent Borrower and the Restricted Subsidiaries to the extent such
dividends were financed with internally generated cash flow of the Parent Borrower
and the Restricted Subsidiaries,
(ix) the aggregate amount of expenditures actually made by the Parent Borrower
and the Restricted Subsidiaries in cash during such period (including expenditures
for the payment of financing fees) to the extent that such expenditures are not
expensed during such period,
(x) the aggregate amount of any premium, make-whole or penalty payments
actually paid in cash by the Parent Borrower and the Restricted Subsidiaries during
such period that are required to be made in connection with any prepayment of
Indebtedness,
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(xi) without duplication of amounts deducted from Excess Cash Flow in prior
periods, the aggregate consideration required to be paid in cash by the Parent
Borrower or any of the Restricted Subsidiaries pursuant to binding contracts (the
Contract Consideration
) entered into prior to or during such period relating to
Permitted Acquisitions or Capital Expenditures to be consummated or made during the
period of four consecutive fiscal quarters of the Parent Borrower following the end
of such period,
provided
that to the extent the aggregate amount of
internally generated cash actually utilized to finance such Permitted Acquisitions
or Capital Expenditures during such period of four consecutive fiscal quarters is
less than the Contract Consideration, the amount of such shortfall shall be added to
the calculation of Excess Cash Flow at the end of such period of four consecutive
fiscal quarters,
(xii) the amount of taxes (including penalties and interest) paid in cash in
such period, and
(xiii) cash expenditures in respect of Swap Contracts during such fiscal year
to the extent not deducted in arriving at such Consolidated Net Income.
Excluded European Subsidiary
shall mean (a) each European Subsidiary listed on
Schedule
1.1(d)(ii)
hereto and each future European Subsidiary, in each case, for so long as any such
Subsidiary does not (on a consolidated basis with its Restricted Subsidiaries), have property,
plant and equipment with a book value in excess of $5,000,000 or a contribution to Consolidated
EBITDA for any four fiscal quarter period that includes any date on or after the Closing Date in
excess of $5,000,000, (b) for purposes of
Section 9.11
, any European Subsidiary that is not
a wholly-owned Subsidiary on any date such Subsidiary would otherwise be required to become a
European Guarantor pursuant to the requirements of
Section 9.11
(for so long as such
Subsidiary remains a non-wholly-owned Restricted Subsidiary), (c) any European Subsidiary that is
prohibited by any applicable Contractual Requirement or Requirement of Law from guaranteeing or
granting Liens to secure the European Obligations at the time such Subsidiary becomes a Restricted
Subsidiary (for so long as such restriction or any replacement or renewal thereof is in effect),
(d) any other European Subsidiary with respect to which, (i) in the reasonable judgment of the
Administrative Agent (confirmed in writing by notice to the Parent Borrower), the cost or other
consequences (including any adverse tax consequences) of providing a Guarantee of the European
Obligations shall be excessive in view of the benefits to be obtained by the Lenders therefrom or
(ii) the provision of a Guarantee of the European Obligations would result in adverse tax
consequences to the Parent Borrower or its Subsidiaries as reasonably determined by the Parent
Borrower, (e) each Unrestricted Subsidiary, (f) any other European Subsidiary acquired pursuant to
a Permitted Acquisition financed with secured Indebtedness incurred pursuant to
Section
10.1(j)
or
Section 10.1(k)
and permitted by the proviso to
subclause (y)
of
such Sections and each Restricted Subsidiary thereof that guarantees such Indebtedness to the
extent and so long as the financing documentation relating to such Permitted Acquisition to which
such Restricted Subsidiary is a party prohibits such Restricted Subsidiary from guaranteeing, or
granting a Lien on any of its assets to secure, the Obligations and (g) any Designated
Non-Guarantor Subsidiary.
-25-
Excluded Stock and Stock Equivalents
shall mean (i) any Stock or Stock Equivalents subject
to a Lien permitted by
Section 10.2(h)
or
10.2(i)
, (ii) any Stock or Stock
Equivalents with respect to which, in the reasonable judgment of the Collateral Agent (confirmed in
writing by notice to the Parent Borrower), the cost or other consequences (including any adverse
tax consequences) of doing so shall be excessive in view of the benefits to be obtained by the
Lenders therefrom, (iii) solely in the case of any pledge of Stock and Stock Equivalents of any
Foreign Subsidiary to secure the U.S. Obligations, any Stock or Stock Equivalents of any class of
such Foreign Subsidiary in excess of 65% of the outstanding Stock or Stock Equivalents of such
class (such percentage to be adjusted upon any Change in Law as may be required to avoid adverse
U.S. federal income tax consequences to the Parent Borrower or any Subsidiary), (iv) any Stock or
Stock Equivalents to the extent the pledge thereof would violate any applicable Requirement of Law,
(v) in the case of Stock or Stock Equivalents of any Subsidiary that is not wholly-owned by the
Parent Borrower and its Subsidiaries at the time such Subsidiary becomes a Subsidiary, any Stock or
Stock Equivalents of such Subsidiary to the extent (A) that a pledge thereof to secure the
Obligations is prohibited by any applicable Contractual Requirement (other than customary
non-assignment provisions which are ineffective under the Uniform Commercial Code or other
applicable law), (B) any Contractual Requirement prohibits such a pledge without the consent of any
other party;
provided
that this clause (B) shall not apply if (I) such other party is a
Credit Party or wholly-owned Subsidiary or (II) such consent has been obtained (it being understood
that the foregoing shall not be deemed to obligate the Parent Borrower or any Subsidiary to obtain
any such consent)) and for so long as such Contractual Requirement or replacement or renewal
thereof is in effect, or (C) a pledge thereof to secure the Obligations would give any other party
(other than a Credit Party or wholly-owned Subsidiary) to any contract, agreement, instrument or
indenture governing such Stock or Stock Equivalents the right to terminate its obligations
thereunder (other than customary non-assignment provisions which are ineffective under the Uniform
Commercial Code or other applicable law) and (vi) any Stock or Stock Equivalents of any Subsidiary
to the extent that (A) the pledge of such Stock or Stock Equivalents would result in adverse tax
consequences to the Parent Borrower or any Subsidiary as reasonably determined by the Parent
Borrower and (B) such Stock or Stock Equivalents have been identified in writing to the Collateral
Agent by an Authorized Officer of the Parent Borrower.
Excluded Subsidiary
shall mean (a) each Domestic Subsidiary listed on
Schedule
1.1(d)(i)
hereto and each future Domestic Subsidiary, in each case, for so long as any such
Subsidiary does not (on a consolidated basis with its Restricted Subsidiaries), have property,
plant and equipment with a book value in excess of $5,000,000 or a contribution to Consolidated
EBITDA for any four fiscal quarter period that includes any date on or after the Closing Date in
excess of $5,000,000 (
provided
that no Domestic Subsidiary listed on
Schedule
1.1(d)(i)
hereto that is identified on such Schedule as a Subsidiary with respect to which the
Parent Borrower intends to conduct a Syndication shall cease to be an Excluded Subsidiary pursuant
to this
clause (a)
for so long as the Parent Borrower intends to conduct such Syndication),
(b) each Domestic Subsidiary that is not a wholly-owned Subsidiary on any date such Subsidiary
would otherwise be required to become a U.S. Guarantor pursuant to the requirements of
Section
9.11
(for so long as such Subsidiary remains a non-wholly-owned Restricted Subsidiary), (c)
each Domestic Subsidiary that is prohibited by any applicable Contractual Requirement or
Requirement of Law from guaranteeing or granting Liens to secure the Obligations at the time such
Subsidiary becomes a Restricted Subsidiary (and for so long as such restriction or any replacement
or renewal thereof is in effect), (d) each Domestic Subsidiary that is a Subsidiary of a
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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 the Obligations shall be excessive in view of the benefits to be obtained
by the Lenders therefrom, (g) each Unrestricted Subsidiary, (h) each 1993 Indenture Restricted
Subsidiary for so long as the 1993 Indenture is in effect and such Subsidiary is a Restricted
Subsidiary under the 1993 Indenture, (i) each ABL Entity, (j) any Designated Non-Guarantor
Subsidiary and (k) HCA Health Services of New Hampshire, Inc., a New Hampshire corporation.
Excluded Taxes
shall mean, with respect to any Agent or any Lender, (a) (i) net income taxes
and franchise and excise taxes (imposed in lieu of net income taxes) imposed on such Agent or
Lender and, to the extent not duplicative, any Taxes imposed on such Agent or Lender where that Tax
is imposed upon or calculated by reference to the net income received or receivable (but not any
sum deemed to be received or receivable) by such Agent or Lender and (ii) any Taxes imposed on any
Agent or any Lender as a result of any current or former connection between such Agent or Lender
and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision
or taxing authority thereof or therein (other than any such connection arising from such Agent or
Lender having executed, delivered or performed its obligations or received a payment under, or
having been a party to or having enforced, this Agreement or any other Credit Document) and (b) in
the case of a Non-U.S. Lender (i) any U.S. federal withholding tax that is imposed on amounts
payable to such Non-U.S. Lender under the law in effect at the time such Non-U.S. Lender becomes a
party to this Agreement (or, in the case of a Non-U.S. Participant, on the date such Non-U.S.
Participant became a Participant hereunder);
provided
that this
subclause (b)(i)
shall not apply to the extent that (x) the indemnity payments or additional amounts any Lender (or
Participant) would be entitled to receive (without regard to this
subclause (b)(i)
) do not
exceed the indemnity payment or additional amounts that the person making the assignment,
participation or transfer to such Lender (or Participant) would have been entitled to receive in
the absence of such assignment, participation or transfer or (y) any Tax is imposed on a Lender in
connection with an interest or participation in any Loan or other obligation that such Lender was
required to acquire pursuant to
Section 14.8(a)
or that such Lender acquired pursuant to
Section 14.7
(it being understood and agreed, for the avoidance of doubt, that any
withholding tax imposed on a Non-U.S. Lender as a result of a Change in Law occurring after the
time such Non-U.S. Lender became a party to this Agreement (or designates a new lending office)
shall not be an Excluded Tax) or (ii) any Tax to the extent attributable to such Non-U.S. Lenders
failure to comply with
Section 5.4(e)
;
provided
that, for the avoidance of doubt,
any deduction or withholding under section 349 of the Taxes Act (or any successor provision) for or
on account of any Taxes, shall not be an Excluded Tax.
Existing Letters of Credit
shall have the meaning provided in the preamble to this Agreement
and shall in any event include amendments, extensions and renewals thereof.
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Facility Syndication Partners
shall mean, with respect to any Subsidiary, a Physician or
employee performing services with respect to a facility operated by such Subsidiary or a
not-for-profit entity.
Federal Funds Effective Rate
shall mean, for any day, the weighted average of the
per annum
rates on overnight federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers on such day, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York;
provided
that (a) if such day is not a Business Day, the
Federal Funds Effective Rate for such day shall be such rate on such transactions on the next
preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate
is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day
shall be the average rate charged to the Administrative Agent on such day on such transactions as
determined by the Administrative Agent.
Fees
shall mean all amounts payable pursuant to, or referred to in,
Section 4.1
.
Final Maturity Date
shall mean November 17, 2013 or, if the European Tranche Term Loans and
the Tranche B Term Loans shall have been repaid in full, November 17, 2012.
Foreign Asset Sale
shall have the meaning provided in
Section 5.2(h)
.
Foreign Plan
shall mean any employee benefit plan, program, policy, arrangement or agreement
maintained or contributed to by the Parent Borrower or any of its Subsidiaries with respect to
employees employed outside the United States.
Foreign Subsidiary
shall mean each Subsidiary of the Parent Borrower that is not a Domestic
Subsidiary.
Frist Shareholders
shall mean (i) Thomas F. Frist, Jr. and any executor, administrator,
guardian, conservator or similar legal representative thereof, (ii) any member of the immediate
family of Thomas F. Frist, Jr., (iii) any person directly or indirectly controlled by one or more
of the immediate family members of Thomas F. Frist, Jr., (iv) any Person acting as agent for any
Person described in
clauses (i)
through
(iii)
hereof and (v) the HCA Foundation so
long as a majority of the members of its board of directors consist of (a) Frist Shareholders, (b)
Continuing Directors, (c) Management Investors and/or (d) any other member of management of the
Parent Borrower (provided in the case of this
subclause (v)(d)
that no Change of Control
under
clause (a)
of the definition thereof (with any reference in such
clause (a)
to the Frist Shareholders determined without regard to this
subclause (v)(d)
) shall have
occurred on the date such person became a member of management of the Parent Borrower.
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.
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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.
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 date
hereof any change in GAAP that affects in any respect the calculation of any covenant contained in
Section 10
, the Lenders and the Parent Borrower shall negotiate in good faith amendments to
the provisions of this Agreement that relate to the calculation of such covenant with the intent of
having the respective positions of the Lenders and the Parent Borrower after such change in GAAP
conform as nearly as possible to their respective positions as of the date of this Agreement and,
until any such amendments have been agreed upon, the covenants in
Section 10
shall be
calculated as if no such change in GAAP has occurred.
General Intercreditor Agreement
shall mean the Intercreditor Agreement, dated as of the
Closing Date, among the Collateral Agent and the trustee under the Senior Second Lien Notes
Indenture, as the same may be amended, restated, modified or waived from time to time.
Governmental Authority
shall mean any nation, sovereign or government, any state, province,
territory or other political subdivision thereof, and any entity or authority exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining to government,
including a central bank or stock exchange.
Guarantee
shall mean the U.S. Guarantee and/or the European Guarantee, as the context
requires.
Guarantee Obligations
shall mean, as to any Person, any obligation of such Person
guaranteeing or intended to guarantee any Indebtedness of any other Person (the
primary obligor
)
in any manner, whether directly or indirectly, including any obligation of such Person, whether or
not contingent, (a) to purchase any such Indebtedness or any property constituting direct or
indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any
such Indebtedness or (ii) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the owner of any such Indebtedness of
the ability of the primary obligor to make payment of such Indebtedness or (d) otherwise to assure
or hold harmless the owner of such Indebtedness against loss in respect thereof;
provided
,
however
, that the term Guarantee Obligations shall not include endorsements of
instruments for deposit or collection in the ordinary course of business or customary and
reasonable indemnity obligations in effect on the Closing Date or entered into in connection
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with any acquisition or disposition of assets permitted under this Agreement (other than such
obligations with respect to Indebtedness). The amount of any Guarantee Obligation shall be deemed
to be an amount equal to the stated or determinable amount of the Indebtedness in respect of which
such Guarantee Obligation is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to perform thereunder)
as determined by such Person in good faith.
Guarantors
shall mean the U.S. Guarantors and the European Guarantors.
Hazardous Materials
shall mean (a) any petroleum or petroleum products, radioactive
materials, friable asbestos, urea formaldehyde foam insulation, transformers or other equipment
that contain dielectric fluid containing regulated levels of polychlorinated biphenyls, and radon
gas; (b) any chemicals, materials or substances defined as or included in the definition of
hazardous substances, hazardous waste, hazardous materials, extremely hazardous waste,
restricted hazardous waste, toxic substances, toxic pollutants, contaminants, or
pollutants, or words of similar import, under any applicable Environmental Law; and (c) any other
chemical, material or substance, which is prohibited, limited or regulated by any Environmental
Law.
HCA
shall have the meaning provided in the preamble to this Agreement.
HCI
shall mean Health Care Indemnity, Inc., an insurance company formed under the laws of
the State of Colorado.
Healthtrust
shall mean Healthtrust, Inc. The Hospital Company, a Delaware corporation, and
its successors and assigns.
Hedge Agreements
shall mean interest rate swap, cap or collar agreements, interest rate
future or option contracts, currency swap agreements, cross-currency rate swap agreements, currency
future or option contracts, commodity price protection agreements or other commodity price hedging
agreements, and other similar agreements entered into by the Parent Borrower or any Restricted
Subsidiary in the ordinary course of business (and not for speculative purposes) for the principal
purpose of protecting the Parent Borrower or any of the Restricted Subsidiaries against
fluctuations in interest rates, currency exchange rates or commodity prices.
Hedge Bank
shall mean any Person that either (x) at the time it enters into a Secured Hedge
Agreement or (y) on the Closing Date, is a Lender or an Affiliate of a Lender, in its capacity as a
party to such Secured Hedge Agreement.
HIPAA
shall have the meaning provided in
Section 9.2
.
Historical Financial Statements
shall mean the audited consolidated balance sheets of the
Parent Borrower as of December 31, 2004 and December 31, 2005 and the audited consolidated
statements of income, stockholders equity and cash flows of the Parent Borrower for each of the
fiscal years in the three year period ending on December 31, 2005.
Holdings
shall mean Hercules Holdings II, LLC, a Delaware limited liability company, and its
successors.
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Increased Amount Date
shall have the meaning provided in
Section 2.14
.
Indebtedness
of any Person shall mean (a) all indebtedness of such Person for borrowed
money, (b) the deferred purchase price of assets or services that in accordance with GAAP would be
included as a liability on the balance sheet of such Person, (c) the face amount of all letters of
credit issued for the account of such Person and, without duplication, all drafts drawn thereunder,
(d) all Indebtedness of any other Person secured by any Lien on any property owned by such Person,
whether or not such Indebtedness has been assumed by such Person, (e) the principal component of
all Capitalized Lease Obligations of such Person, (f) all obligations of such Person under interest
rate swap, cap or collar agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts, commodity price protection agreements or other
commodity price hedging agreements and other similar agreements, (g) all obligations of such Person
in respect of Disqualified Equity Interests and (h) without duplication, all Guarantee Obligations
of such Person,
provided
that Indebtedness shall not include (i) trade payables and accrued
expenses arising in the ordinary course of business, (ii) deferred or prepaid revenue, (iii)
purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy
warranty or other unperformed obligations of the respective seller and (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.
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 Agreements
shall mean the Receivables Intercreditor Agreement and the General
Intercreditor Agreement.
Interest Period
shall mean, with respect to any Term Loan or Revolving Credit Loan, the
interest period applicable thereto, as determined pursuant to
Section 2.9
.
Investment
shall mean, for any Person: (a) the acquisition (whether for cash, property,
services or securities or otherwise) of Stock, Stock Equivalents (or any other capital
contribution), bonds, notes, debentures, partnership or other ownership interests or other
securities of any other Person (including any short sale or any sale of any securities at a time
when such securities are not owned by the Person entering into such sale); (b) the making of any
deposit with, or advance, loan or other extension of credit or capital contribution to, any other
Person (including the purchase of property from another Person subject to an understanding or
agreement, contingent or otherwise, to resell such property to such Person), but excluding any such
advance, loan or extension of credit having a term not exceeding 364 days (inclusive of any
rollover or extension of terms) arising in the ordinary course of business; or; (c) the entering
into of any guarantee of, or other contingent obligation with respect to, Indebtedness; or (d) the
purchase or other acquisition (in one transaction or a series of transactions) of all or
substantially all of the property and assets or business of another Person or assets constituting a
business unit, line of business or division of such Person;
provided
that, in the event
that any Investment is made by the Parent Borrower or any Restricted Subsidiary in any Person
through substantially concurrent interim transfers of any amount through one or more other
Restricted Subsidiaries,
-31-
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 providing a portion of the Equity Investments on the Closing Date.
ISP
shall mean, with respect to any Letter of Credit, the International Standby Practices
1998 published by the Institute of International Banking Law & Practice (or such later version
thereof as may be in effect at the time of issuance).
Issuer Documents
shall mean with respect to any Letter of Credit, the Letter of Credit
Request, and any other document, agreement and instrument entered into by the Letter of Credit
Issuer and the Parent Borrower (or any Restricted Subsidiary) or in favor of the Letter of Credit
Issuer and relating to such Letter of Credit.
Joinder Agreement
shall mean an agreement substantially in the form of
Exhibit L
.
Joint Bookrunners
shall mean Deutsche Bank Securities Inc. and Wachovia Capital Markets,
LLC.
Joint Lead Arrangers and Bookrunners
shall mean Banc of America Securities LLC, J.P. Morgan
Securities Inc., Citigroup Global Markets Inc. and Merrill Lynch, Pierce, Fenner & Smith
Incorporated.
Junior Indebtedness
shall have the meaning provided in
Section 10.7(a)
.
JV Distribution Amount
means, at any time, the aggregate amount of cash distributed to the
Parent Borrower or any Restricted Subsidiary by any joint venture that is not a Subsidiary
(regardless of the form of legal entity) since the Closing Date and prior to such time (without
duplication of any amount treated as a reduction in the outstanding amount of Investments by the
Parent Borrower or any Restricted Subsidiary pursuant to
clause (d)
,
(i)
or
(v)
of
Section 10.5
) and only to the extent that neither the Parent Borrower nor
any Restricted Subsidiary is under any obligation to repay such amount to such joint venture.
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 Revolving
Credit Maturity Date.
L/C Obligations
shall mean, as at any date of determination, the aggregate amount available
to be drawn under all outstanding Letters of Credit
plus
the aggregate of all
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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 or to fund its portion of any unreimbursed payment under
Section 3.3
or (b) a Lender having notified the Administrative Agent and/or the Parent
Borrower that it does not intend to comply with the obligations under
Section 2.1(a)
,
2.1(b)
,
2.1(d)
or
3.3
, in the case of either
clause (a)
or
(b)
above or (c) a Lender becoming the subject of a bankruptcy or insolvency proceeding.
Letter of Credit
shall mean each letter of credit issued pursuant to
Section 3.1
and
shall include the Existing Letters of Credit.
Letter of Credit Commitment
shall mean $500,000,000, 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 Dollar Equivalent amount of the principal amount of any Unpaid Drawings in respect of which
such Lender has made (or is required to have made) payments to the Letter of Credit Issuer pursuant
to
Section 3.4(a)
at such time and (b) such Lenders Revolving Credit Commitment Percentage
of the Letters of Credit Outstanding at such time (excluding the portion thereof consisting of
Unpaid Drawings in respect of which the Lenders have made (or are required to have made) payments
to the Letter of Credit Issuer pursuant to
Section 3.4(a)
).
Letter of Credit Fee
shall have the meaning provided in
Section 4.1(b)
.
Letter of Credit Issuer
shall mean (a) Bank of America, any of its Affiliates or any
replacement or successor pursuant to
Section 3.6
and (b) in the case of the Existing
Letters of Credit, JPMorgan Chase Bank, N.A. The Letter of Credit Issuer may, in its discretion,
arrange for one or more Letters of Credit to be issued by Affiliates of the Letter of Credit
Issuer, and in each such case the term Letter of Credit Issuer shall include any such Affiliate
with respect to Letters of Credit issued by such Affiliate. In the event that there is more than
one Letter of Credit Issuer at any time, references herein and in the other Credit Documents to the
Letter of Credit Issuer shall be deemed to refer to the Letter of Credit Issuer in respect of the
applicable Letter of Credit or to all Letter of Credit Issuers, as the context requires.
Letters of Credit Outstanding
shall mean, at any time, the sum of, without duplication, (a)
the aggregate Stated Amount of all outstanding Letters of Credit and (b) the aggregate Dollar
Equivalent amount of the principal amount of all Unpaid Drawings.
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Letter of Credit Request
shall have the meaning provided in
Section 3.2
.
Level I Status
shall mean, on any date, the circumstance that the Consolidated Total Debt to
Consolidated EBITDA Ratio is greater than or equal to 6.00 to 1.00 as of such date.
Level II Status
shall mean, on any date, the circumstance that Level I Status does not exist
and the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than or equal to 5.50 to
1.00 as of such date.
Level III Status
shall mean, on any date, the circumstance that neither Level I Status nor
Level II Status exists and the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than
or equal to 5.00 to 1.00 as of such date.
Level IV Status
shall mean, on any date, the circumstance that none of Level I Status, Level
II Status and Level III Status exists and the Consolidated Total Debt to Consolidated EBITDA Ratio
is greater than or equal to 4.50 to 1.00 as of such date.
Level V Status
shall mean, on any date, the circumstance that the Consolidated Total Debt to
Consolidated EBITDA Ratio is less than 4.50 to 1.00 as of such date.
LIBOR Loan
shall mean any LIBOR Term Loan or LIBOR Revolving Credit Loan.
LIBOR Rate
shall mean, for any Interest Period with respect to a LIBOR Loan of any currency,
the rate per annum equal to the British Bankers Association LIBOR Rate (
BBA LIBOR
), as published
by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated
by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period (or on the first day of such
Interest Period in the case of any LIBOR Loan denominated in Sterling), for deposits in such
currency (for delivery on the first day of such Interest Period) with a term equivalent to such
Interest Period. If such rate is not available at such time for any reason, then the LIBOR Rate
for such Interest Period shall be the rate per annum determined by the Administrative Agent to be
the rate at which deposits in such currency for delivery on the first day of such Interest Period
in same day funds in the approximate amount of the LIBOR Loan being made, continued or converted by
the Administrative Agent and with a term equivalent to such Interest Period would be offered by the
Administrative Agents London Branch to major banks in the applicable London interbank eurocurrency
market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period (or on the first day of such Interest Period in the case of
any LIBOR Loan denominated in Sterling).
LIBOR Revolving Credit Loan
shall mean any Revolving Credit Loan bearing interest at a rate
determined by reference to the LIBOR Rate.
LIBOR Term Loan
shall mean any Term Loan bearing interest at a rate determined by reference
to the LIBOR Rate.
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Lien
shall mean any mortgage, pledge, security interest, hypothecation, assignment, lien
(statutory or other) or similar encumbrance (including any agreement to give any of the foregoing,
any conditional sale or other title retention agreement or any lease in the nature thereof).
Loan
shall mean any Revolving Credit Loan, Swingline Loan, Term Loan, New Revolving Loan or
New Term Loan made by any Lender hereunder.
Management Investors
shall mean the directors, management officers and employees of the
Parent Borrower and its Subsidiaries on the Closing Date.
Mandatory Borrowing
shall have the meaning provided in
Section 2.1(d)
.
Mandatory Cost
means, with respect to any period, the percentage rate per annum determined
in accordance with
Schedule 1.01(e)
.
Material Adverse Change
shall mean any event, state of facts, circumstance, development,
change, effect or occurrence (an
Effect
) that is materially adverse to the business, financial
condition or results of operations of HCA and its Subsidiaries, taken as a whole, other than (i)
any Effect resulting from (A) changes in general economic or political conditions or the
securities, credit or financial markets in general, (B) general changes or developments in the
industries in which HCA and its Subsidiaries operate, including general changes in law or
regulation across such industries, (C) the announcement of the Acquisition Agreement or the
pendency or consummation of the Merger, including any labor union activities related thereto, (D)
the identity of Holdings or any of its Affiliates as the acquirer of HCA, (E) compliance with the
terms of, or the taking of any action required by, the Acquisition Agreement or consented to by
Holdings, (F) any acts of terrorism or war (other than any of the foregoing that causes any damage
or destruction to or renders unusable any facility or property of HCA or any of its Subsidiaries),
(G) changes in generally accepted accounting principles or the interpretation thereof, or (H) any
weather-related event, except, in the case of the foregoing
clauses (A)
and
(B)
, to
the extent such changes or developments referred to therein would reasonably be expected to have a
materially disproportionate impact on HCA and its Subsidiaries, taken as a whole, relative to other
for-profit participants in the industries and in the geographic markets in which HCA conducts its
businesses after taking into account the size of HCA relative to such other for-profit
participants, or (ii) any failure to meet internal or published projections, forecasts or revenue
or earning predictions for any period (
provided
that the underlying causes of such failure
shall be considered in determining whether there is a Material Adverse Change).
Material Adverse Effect
shall mean a circumstance or condition affecting the business,
assets, operations, properties or financial condition of the Parent Borrower and the Subsidiaries,
taken as a whole, that would materially adversely affect (a) the ability of the Parent Borrower and
the other Credit Parties, taken as a whole, to perform their payment obligations under this
Agreement or any of the other Credit Documents or (b) the rights and remedies of the Administrative
Agent and the Lenders under this Agreement or any of the other Credit Documents.
-35-
Material Subsidiary
shall mean, at any date of determination, (i) each Restricted Subsidiary
of the Borrower (a) whose total assets at the last day of the Test Period ending on the last day of
the most recent fiscal period for which Section 9.1 Financials have been delivered were equal to or
greater than 1% of the consolidated total assets of the Parent Borrower and the Restricted
Subsidiaries at such date or (b) whose revenues during such Test Period were equal to or greater
than 1% of the consolidated revenues of the Parent Borrower and the Restricted Subsidiaries for
such period, in each case determined in accordance with GAAP and (ii) solely for purposes of
Sections 11.5
,
11.7
,
11.8
and
11.9
, each other Restricted
Subsidiary that is the subject of an Event of Default under one or more of such Sections and that,
when such Restricted Subsidiarys total assets and revenues are aggregated with the total assets or
revenues, as applicable, of each other Restricted Subsidiary that is the subject of an Event of
Default under one or more of such Sections, would constitute a Material Subsidiary under
clause
(i)
above using a 4% threshold in replacement of the 1% threshold in such
clause (i)
.
Maturity Date
shall mean the Tranche A Term Loan Maturity Date, the Tranche B Term Loan
Maturity Date, the European Tranche Term Loan Maturity Date or the Revolving Credit Maturity Date.
Merger
shall have the meaning provided in the preamble to this Agreement.
Merger Sub
shall mean Hercules Acquisition Corporation, a Delaware corporation.
Minimum Borrowing Amount
shall mean (a) with respect to a Borrowing of LIBOR Loans
denominated in Dollars, $10,000,000 (or, if less, the entire remaining Commitments under the
applicable Credit Facility at the time of such Borrowing), (b) with respect to a Borrowing of ABR
Loans (other than Swingline Loans), $1,000,000 (or, if less, the entire remaining Commitments under
the applicable Credit Facility at the time of such Borrowing), (c) with respect to a Borrowing of
Revolving Credit Loans denominated in Sterling, £5,000,000 (or, if less, the Available Commitments
at the time of such Borrowing), (d) with respect to a Borrowing of Loans denominated in Euro,
10,000,000 (or, if less in the case of a Borrowing of Revolving Credit Loans, the Available
Commitments at the time of such Borrowing).
Minimum Equity Amount
shall have the meaning provided in the preamble to this Agreement.
MLGP
shall mean Merrill Lynch Global Partners.
Moodys
shall mean Moodys Investors Service, Inc. or any successor by merger or
consolidation to its business.
Mortgage
shall mean a Mortgage, Assignment of Leases and Rents, Security Agreement and
Financing Statement or other security document entered into by the owner of a Mortgaged Property
and the Collateral Agent in respect of that Mortgaged Property to secure the Obligations,
substantially in the form of
Exhibit D
, as the same may be amended, supplemented or
otherwise modified from time to time, and with respect to Mortgages entered into by the European
Subsidiary Borrower or a European Guarantor, a mortgage in form and substance reasonably
-36-
satisfactory to the Collateral Agent, entered into by the owner of a Mortgaged Property
and the Collateral Agent in respect of that Mortgaged Property to secure the European
Obligations.
Mortgaged Property
shall mean, initially, each parcel of real estate and the improvements
thereto owned by a Credit Party and identified on
Schedule 1.1(b)
, and includes each other
parcel of real property and improvements thereto with respect to which a Mortgage is granted
pursuant to
Section 9.14
.
Multicurrency Sublimit
shall mean, at any date, the lesser of (x) $400,000,000 and (y) the
Total Revolving Credit Commitment at such date.
Multicurrency Exposure
shall mean, for any Revolving Credit Lender at any date, the sum of
(a) the aggregate Dollar Equivalent amount of the principal amount of Revolving Credit Loans
denominated in Alternative Currencies of such Lender then outstanding, and (b) such Lenders Letter
of Credit Exposure in respect of Letters of Credit denominated in Alternative Currencies at such
time.
Net Cash Proceeds
shall mean, with respect to any Prepayment Event, (a) the gross cash
proceeds (including payments from time to time in respect of installment obligations, if
applicable) received by or on behalf of the Parent Borrower or any of the Restricted Subsidiaries
in respect of such Prepayment Event, as the case may be, less (b) the sum of:
(i) the amount, if any, of all taxes paid or estimated to be payable by the Parent
Borrower or any of the Restricted Subsidiaries in connection with such Prepayment Event,
(ii) the amount of any reasonable reserve established in accordance with GAAP against
any liabilities (other than any taxes deducted pursuant to
clause (i)
above) (x)
associated with the assets that are the subject of such Prepayment Event and (y) retained by
the Parent Borrower or any of the Restricted Subsidiaries,
provided
that the amount
of any subsequent reduction of such reserve (other than in connection with a payment in
respect of any such liability) shall be deemed to be Net Cash Proceeds of such a Prepayment
Event occurring on the date of such reduction,
(iii) the amount of any Indebtedness secured by a Lien on the assets that are the
subject of such Prepayment Event to the extent that the instrument creating or evidencing
such Indebtedness requires that such Indebtedness be repaid upon consummation of such
Prepayment Event,
(iv) in the case of any Asset Sale Prepayment Event or Casualty Event or Permitted Sale
Leaseback, the amount of any proceeds of such Prepayment Event that the Parent Borrower or
any Restricted Subsidiary has reinvested (or intends to reinvest within the Reinvestment
Period or has entered into a binding commitment prior to the last day of the Reinvestment
Period to reinvest) in the business of the Parent Borrower or any of the Restricted
Subsidiaries (subject to
Section 9.14
),
provided
that any portion of such
proceeds that has not been so reinvested within such Reinvestment Period (with respect to
such Prepayment Event, the
Deferred Net Cash Proceeds
) shall, unless the Parent Borrower
or a Restricted Subsidiary has entered into a binding commitment prior to the
-37-
last day of such Reinvestment Period to reinvest such proceeds, (x) be deemed to be Net Cash
Proceeds of an Asset Sale Prepayment Event or Casualty Event or Permitted Sale Leaseback
occurring on the last day of such Reinvestment Period or, if later, 180 days after the date
such Borrower or such Restricted Subsidiary has entered into such binding commitment, as
applicable (such last day or 180
th
day, as applicable, the
Deferred Net Cash
Proceeds Payment Date
), and (y) be applied to the repayment of Term Loans in accordance
with
Section 5.2(a)(i)
,
(v) in the case of any Asset Sale Prepayment Event, Casualty Event or Permitted Sale
Leaseback, the amount of any proceeds of such Asset Sale Prepayment Event, Casualty Event or
Permitted Sale Leaseback, as applicable, applied during the Reinvestment Period to repay,
repurchase, redeem or defease any Retained Indebtedness (a
Retained Indebtedness
Repayment
) with a stated or final maturity (as of the Closing Date) prior to the Tranche A
Term Loan Maturity Date (or, if all outstanding amounts under the Tranche A Term Loan
Facility have at such time been repaid in full, the Tranche B Term Loan Maturity Date) in an
aggregate amount which, together with all other amounts of Retained Indebtedness repaid,
repurchased, redeemed or deferred pursuant to this
clause (vi)
since the Closing
Date, does not exceed 5% of Consolidated Total Assets as of the then most recent Test Date
with respect to which Section 9.1 Financials have been delivered;
provided
that (a)
not later than five Business Days prior to such application of the proceeds of such Asset
Sale or Casualty Event, the Parent Borrower shall have delivered to the Administrative Agent
a certificate of an Authorized Officer to the effect that such proceeds are being applied to
prepay Retained Indebtedness in compliance with this Agreement and (b) any portion of such
proceeds that has not been used to make a Retained Indebtedness Repayment within such
Reinvestment Period shall be Net Cash Proceeds of such Assets Sale Prepayment Event,
Casualty Event or Permitted Sale Leaseback occurring on the last day of such Reinvestment
Period;
provided
further
that such Retained Indebtedness Repayment is
permitted by
Section 10.7(b)
,
(vii) in the case of any Asset Sale Prepayment Event, Casualty Event or Permitted Sale
Leaseback by a non-wholly-owned Restricted Subsidiary, the pro rata portion of the Net Cash
Proceeds thereof (calculated without regard to this
clause (vii)
) attributable to
minority interests and not available for distribution to or for the account of the Parent
Borrower or a wholly-owned Restricted Subsidiary as a result thereof, and
(viii) reasonable and customary fees paid by the Parent Borrower or a Restricted
Subsidiary in connection with any of the foregoing,
in each case only to the extent not already deducted in arriving at the amount referred to in
clause (a)
above.
New Loan Commitments
shall have the meaning provided in
Section 2.14
.
New Revolving Credit Commitments
shall have the meaning provided in
Section 2.14
.
New Revolving Loan Lender
shall have the meaning provided in
Section 2.14
.
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New Revolving Loans
shall have the meaning provided in
Section 2.14
.
New Term Loan Commitments
shall have the meaning provided in
Section 2.14
.
New Term Loan Lender
shall have the meaning provided in
Section 2.14
.
New Term Loan Maturity Date
shall mean the date on which a New Term Loan matures.
New Term Loan Repayment Amount
shall have the meaning provided in
Section 2.5(d)
.
New Term Loans
shall have the meaning provided in
Section 2.14
.
1993 Indenture
shall mean the Indenture dated as of December 16, 1993 between HCA and First
National Bank of Chicago, as Trustee, as may be amended, supplemented or modified from time to
time.
1993 Indenture Restricted Subsidiary
shall mean any Subsidiary that on the Closing Date
constitutes a Restricted Subsidiary under (and as defined in) the 1993 Indenture, as in effect on
the Closing Date.
Non-Cash Charges
shall mean (a) losses on asset sales, disposals or abandonments, (b) any
impairment charge or asset write-off related to intangible assets (including goodwill), long-lived
assets, and investments in debt and equity securities pursuant to GAAP, (c) all losses from
investments recorded using the equity method, (d) stock-based awards compensation expense,
including any such charges arising from stock options, restricted stock grants or other equity
incentive grants, and any cash compensation charges associated with the rollover or acceleration of
stock-based awards or payment of stock options in connection with the Transactions, and (e) other
non-cash charges (
provided
that if any non-cash charges referred to in this
clause
(e)
represent an accrual or reserve for potential cash items in any future period, the cash
payment in respect thereof in such future period shall be subtracted from Consolidated EBITDA to
such extent).
Non-Consenting Lender
shall have the meaning provided in
Section 14.7(b)
.
Non-Defaulting Lender
shall mean and include each Lender other than a Defaulting Lender.
Non-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
-39-
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.
Notice of Borrowing
shall have the meaning provided in
Section 2.3(a)
.
Notice of Conversion or Continuation
shall have the meaning provided in
Section 2.6
.
Obligations
shall mean the U.S. Obligations and the European Obligations, collectively.
Option Note
shall mean the promissory note, dated as of November 14, 2006, in a principal
amount equal to the Option Note Amount issued by The Community Foundation of Middle Tennessee in
favor of the Parent Borrower.
Option Note Amount
shall mean $63,160,680.
Other Taxes
shall mean any and all present or future stamp, registration, documentary or any
other excise, property or similar taxes (including interest, fines, penalties, additions to tax and
related expenses with regard thereto) arising from any payment made or required to be made under
this Agreement or any other Credit Document or from the execution or delivery of, registration or
enforcement of, consummation or administration of, or otherwise with respect to, this Agreement or
any other Credit Document.
Overnight Rate
shall mean, for any day, (a) with respect to any amount denominated in
Dollars, the greater of (i) the Federal Funds Effective Rate and (ii) an overnight rate determined
by the Administrative Agent, the Letter of Credit Issuer, or the Swingline Lender, as the case may
be, in accordance with banking industry rules on interbank compensation, and (b) with respect to
any amount denominated in any Alternative Currency, the rate of interest per annum at which
overnight deposits in such Alternative Currency, in an amount approximately equal to the amount
with respect to which such rate is being determined, would be offered for such day by a branch or
Affiliate of the Administrative Agent in the applicable offshore interbank market for such
Alternative Currency to major banks in such interbank market.
Parent Borrower
shall have the meaning set forth in the preamble hereto.
Participant
shall have the meaning provided in
Section 14.6(c)
.
Participating Member State
shall mean each state so described in any EMU Legislation.
Patriot Act
shall have the meaning provided in
Section 14.18
.
PBGC
shall mean the Pension Benefit Guaranty Corporation established pursuant to Section
4002 of ERISA, or any successor thereto.
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Perfection Certificate
shall mean a certificate of each Borrower in the form of
Exhibit
D
or any other form approved by the Administrative Agent.
Permitted Acquisition
shall mean the acquisition, by merger or otherwise, by the Parent
Borrower or any of the Restricted Subsidiaries of assets or Stock or Stock Equivalents, so long as
(a) such acquisition and all transactions related thereto shall be consummated in accordance with
applicable law; (b) such acquisition shall result in the issuer of such Stock or Stock Equivalents
becoming a Restricted Subsidiary and a Subsidiary Guarantor, to the extent required by
Section
9.11
; (c) such acquisition shall result in the Administrative Agent, for the benefit of the
applicable Lenders, being granted a security interest in any Stock, Stock Equivalent or any assets
so acquired, to the extent required by
Sections 9.11
,
9.12
and/or
9.14
; (d)
after giving effect to such acquisition, no Default or Event of Default shall have occurred and be
continuing; (e) the aggregate fair market value (as determined in good faith by the Parent
Borrower) of all Investments funded or financed in any Persons that do not become Guarantors in
connection with all such acquisitions following the Closing Date in reliance on
Section
10.5(h)
shall not exceed $1,500,000,000 (it being understood that additional Investments in
Persons that are not Credit Parties may be made in connection with Permitted Acquisitions in
reliance on any exception in
Section 10.5
other than
clause (h)
thereof); and (f)
the Parent Borrower shall be in compliance, on a Pro Forma Basis after giving effect to such
acquisition (including any Indebtedness assumed or permitted to exist or incurred pursuant to
Sections 10.1(j)
and
10.1(k)
, respectively, and any related Pro Forma Adjustment),
with the covenant set forth in
Section 10.9
for the most recently ended Test Period under
such Section as if such acquisition had occurred on the first day of such Test Period.
Permitted Additional Debt
shall mean senior unsecured or senior subordinated notes, or other
Indebtedness or, subject to compliance with
Section 10.2
, second lien secured notes or
other junior lien secured Indebtedness, issued by the Parent Borrower or a U.S. Guarantor, (a) the
terms of which (i) do not provide for any scheduled repayment, mandatory redemption or sinking fund
obligation prior to the date on which the final maturity of the Senior Second Lien Notes occurs (as
in effect on the Closing Date) (other than customary offers to purchase upon a change of control,
asset sale or event of loss and customary acceleration rights after an event of default) and (ii)
to the extent the same are senior subordinated notes, provide for customary subordination to the
Obligations under the Credit Documents, (b) the covenants, events of default, guarantees,
collateral and other terms of which (other than interest rate and redemption premiums), taken as a
whole, are not more restrictive to the Parent Borrower and the Subsidiaries than those in the
Senior Second Lien Notes;
provided
that a certificate of an Authorized Officer of the
Parent Borrower is delivered to the Administrative Agent at least five 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 prior to such incurrence
that it disagrees with such determination (including a reasonable description of the basis upon
which it disagrees) and (c) of which no Subsidiary of the Parent Borrower (other than a U.S.
Guarantor) is an obligor.
-41-
Permitted Investments
shall mean:
(a) securities issued or unconditionally guaranteed by the United States government or
any agency or instrumentality thereof, in each case having maturities of not more than 24
months from the date of acquisition thereof;
(b) securities issued by any state of the United States of America or any political
subdivision of any such state or any public instrumentality thereof or any political
subdivision of any such state or any public instrumentality thereof having maturities of not
more than 24 months from the date of acquisition thereof and, at the time of acquisition,
having an investment grade rating generally obtainable from either S&P or Moodys (or, if at
any time neither S&P nor Moodys shall be rating such obligations, then from another
nationally recognized rating service);
(c) commercial paper issued by any Lender or any bank holding company owning any
Lender;
(d) commercial paper maturing no more than 12 months after the date of creation thereof
and, at the time of acquisition, having a rating of at least A-2 or P-2 from either S&P or
Moodys (or, if at any time neither S&P nor Moodys shall be rating such obligations, an
equivalent rating from another nationally recognized rating service);
(e) domestic and LIBOR certificates of deposit or bankers acceptances maturing no more
than two years after the date of acquisition thereof issued by any Lender or any other bank
having combined capital and surplus of not less than $250,000,000 in the case of domestic
banks and $100,000,000 (or the Dollar Equivalent thereof) in the case of foreign banks;
(f) repurchase agreements with a term of not more than 30 days for underlying
securities of the type described in
clauses (a)
,
(b)
and
(e)
above
entered into with any bank meeting the qualifications specified in
clause (e)
above
or securities dealers of recognized national standing;
(g) marketable short-term money market and similar funds (x) either having assets in
excess of $250,000,000 or (y) having a rating of at least A-2 or P-2 from either S&P or
Moodys (or, if at any time neither S&P nor Moodys shall be rating such obligations, an
equivalent rating from another nationally recognized rating service);
(h) shares of investment companies that are registered under the Investment Company Act
of 1940 and substantially all the investments of which are one or more of the types of
securities described in
clauses (a)
through
(g)
above;
(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
-42-
(j) investments made by HCI that are permitted or required by any Requirement of Law or
otherwise consistent with past practice, including without limitation investments in
exchange-traded funds, common stocks and bonds.
Permitted Liens
shall mean:
(a) Liens for taxes, assessments or governmental charges or claims not yet delinquent
or that are being contested in good faith and by appropriate proceedings for which
appropriate reserves have been established to the extent required by and in accordance with
GAAP;
(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;
-43-
(k) Liens arising from precautionary Uniform Commercial Code financing statement or
similar filings made in respect of operating leases entered into by the Parent Borrower or
any of its Subsidiaries;
(l) Liens created in the ordinary course of business in favor of banks and other
financial institutions over credit balances of any bank accounts of the Parent Borrower and
the Restricted Subsidiaries held at such banks or financial institutions, as the case may
be, to facilitate the operation of cash pooling and/or interest set-off arrangements in
respect of such bank accounts in the ordinary course of business; and
(m) Liens on accounts receivable and related assets incurred in connection with a
Permitted Receivables Financing.
Permitted Receivables Financing
means any customary accounts receivable financing facility
(including customary back-to-back intercompany arrangements in respect thereof) to the extent the
amount thereof does not exceed the amount permitted by
Section 10.1(a)
.
Permitted Sale Leaseback
shall mean any Sale Leaseback consummated by the Borrower or any of
the Restricted Subsidiaries after the Closing Date,
provided
that any such Sale Leaseback
not between (i) a U.S. Credit Party and another U.S. Credit Party, (ii) a European Credit Party and
another European Credit Party, (iii) a Restricted Subsidiary that is not a Credit Party or a 1993
Indenture Restricted Subsidiary to another Restricted Subsidiary that is not a Credit Party or a
1993 Indenture Restricted Subsidiary or (iv) a 1993 Indenture Restricted Subsidiary to another 1993
Indenture Restricted Subsidiary is consummated for fair value as determined at the time of
consummation in good faith by (A) the Parent Borrower or such Restricted Subsidiary and, in the
case of any Sale Leaseback (or series of related Sales Leasebacks) the aggregate proceeds of which
exceed $250,000,000, (B) the board of directors of the Parent Borrower or such Restricted
Subsidiary (which such determination may take into account any retained interest or other
Investment of the Parent Borrower or such Restricted Subsidiary in connection with, and any other
material economic terms of, such Sale Leaseback).
Permitted Senior Second Lien Debt
shall mean the Senior Second Lien Notes and any other
Indebtedness secured by a Lien on the Senior Second Lien Notes Collateral permitted by
Section
10.2(c)
or
(r)
.
Person
shall mean any individual, partnership, joint venture, firm, corporation, limited
liability company, association, trust or other enterprise or any Governmental Authority.
Physician
means a doctor of medicine or osteopathy, a doctor of dental surgery or dental
medicine, a doctor of podiatric medicine, a doctor of optometry or a chiropractor.
PIK Interest Amount
shall mean the aggregate principal amount of all increases in
outstanding principal amount of Toggle Notes and issuances of PIK Notes (as defined in the Senior
Second Lien Notes Indenture) in connection with an election by the Parent Borrower to pay interest
on the Toggle Notes in kind.
-44-
Plan
shall mean any multiemployer or single-employer plan, as defined in Section 4001 of
ERISA and subject to Title IV of ERISA, that is or was within any of the preceding six plan years
maintained or contributed to by (or to which there is or was an obligation to contribute or to make
payments to) the Parent Borrower or an ERISA Affiliate.
Platform
shall have the meaning provided in
Section 14.17(b)
.
Post-Acquisition Period
shall mean, with respect to any Permitted Acquisition, the period
beginning on the date such Permitted Acquisition is consummated and ending on the last day of the
sixth full consecutive fiscal quarter immediately following the date on which such Permitted
Acquisition is consummated.
Prepayment Event
shall mean any Asset Sale Prepayment Event, Debt Incurrence Prepayment
Event, Casualty Event or any Permitted Sale Leaseback.
Prime Rate
shall mean the prime rate referred to in the definition of ABR.
Principal Properties
shall mean each acute care hospital providing general medical and
surgical services (excluding equipment, personal property and hospitals that primarily provide
specialty medical services, such as psychiatric and obstetrical and gynecological services) owned
solely by the Parent Borrower and/or one or more of its Subsidiaries (as defined in the 1993
Indenture as in effect on the Closing Date) and located in the United States of America for so long
as the 1993 Indenture is in effect and such acute care hospital is a Principal Property under the
1993 Indenture.
Principal Properties Certificate
shall mean a certificate of an Authorized Officer of the
Parent Borrower delivered to the Administrative Agent at the time of delivery of the financial
statements set forth in
Section 9.1(a)
, setting forth, as of the end of such fiscal year, a
calculation of the Principal Properties Secured Amount.
Principal Properties Permitted Amount
shall mean an amount equal to 10% of Consolidated Net
Tangible Assets (as defined in the 1993 Indenture on the Closing Date) determined as of the Closing
Date.
Principal Properties Secured Amount
shall mean, as of any date of determination, the
aggregate fair market value of the Principal Properties that are the subject of Mortgages securing
the Obligations, determined by the Parent Borrower acting reasonably and in good faith using a
multiple of five (5) times EBITDA of such Principal Properties for the most recent four fiscal
quarter period as to which Section 9.1 Financials shall have been delivered.
Pro Forma Adjustment
shall mean, for any Test Period that includes all or any part of a
fiscal quarter included in any Post-Acquisition Period, with respect to the Acquired EBITDA of the
applicable Acquired Entity or Business or the Consolidated EBITDA of the Parent Borrower, the pro
forma increase or decrease in such Acquired EBITDA or such Consolidated EBITDA, as the case may be,
projected by the Parent Borrower in good faith as a result of (a) actions taken during such
Post-Acquisition Period for the purposes of realizing reasonably identifiable and factually
supportable cost savings or (b) any additional costs incurred during such Post-Acquisition Period,
in each case in connection with the combination of the operations
-45-
of such Acquired Entity or
Business with the operations of the Parent Borrower and the Restricted Subsidiaries;
provided
that (i) at the election of the Parent Borrower, such Pro Forma Adjustment shall
not be required to be determined for any Acquired Entity or Business to the extent the aggregate
consideration paid in connection with such acquisition was less than $100,000,000 and (ii) so long
as such actions are taken during such Post-Acquisition Period or such costs are incurred during
such Post-Acquisition Period, as applicable, it may be assumed, for purposes of projecting such pro
forma increase or decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case may be,
that the applicable amount of such cost savings will be realizable during the entirety of such Test
Period, or the applicable amount of such additional costs, as applicable, will be incurred during
the entirety of such Test Period;
provided
further
that any such pro forma increase
or decrease to such Acquired EBITDA or such Consolidated EBITDA, as the case may be, shall be
without duplication for cost savings or additional costs already included in such Acquired EBITDA
or such Consolidated EBITDA, as the case may be, for such Test Period.
Pro Forma Adjustment Certificate
shall mean any certificate of an Authorized Officer of the
Parent Borrower delivered pursuant to
Section 9.1(h)
or
Section 9.1(d)
.
Pro Forma Basis
,
Pro Forma Compliance
and
Pro Forma Effect
shall mean, with respect to
compliance with any test or covenant hereunder, that (A) to the extent applicable and other than
for purposes of determining the Applicable Amount, the Applicable ABR Margin, the Applicable LIBOR
Margin and the Commitment Fee Rate, the Pro Forma Adjustment shall have been made and (B) all
Specified Transactions and the following transactions in connection therewith shall be deemed to
have occurred as of the first day of the applicable period of measurement in such test or covenant: (a) income statement items
(whether positive or negative) attributable to the property or Person subject to such Specified
Transaction, (i) in the case of a sale, transfer or other disposition of all or substantially all
Capital Stock in any Subsidiary of the Parent Borrower or any division, product line, or facility
used for operations of the Parent Borrower or any of its Subsidiaries, shall be excluded, and (ii)
in the case of a Permitted Acquisition or Investment described in the definition of Specified
Transaction, shall be included, (b) any retirement of Indebtedness, and (c) any incurrence or
assumption of Indebtedness by the Parent Borrower or any of the Restricted Subsidiaries in
connection therewith (it being agreed that if such Indebtedness has a floating or formula rate,
such Indebtedness shall have an implied rate of interest for the applicable period for purposes of
this definition determined by utilizing the rate that is or would be in effect with respect to such
Indebtedness as at the relevant date of determination);
provided
that, without limiting the
application of the Pro Forma Adjustment pursuant to (A) above (but without duplication thereof),
the foregoing pro forma adjustments may be applied to any such test or covenant solely to the
extent that such adjustments are consistent with the definition of Consolidated EBITDA and give
effect to events (including operating expense reductions) that are (i) (x) directly attributable to
such transaction, (y) expected to have a continuing impact on the Parent Borrower and the
Restricted Subsidiaries and (z) factually supportable or (ii) otherwise consistent with the
definition of Pro Forma Adjustment.
Qualified Equity Interest
shall mean any Stock or Stock Equivalent that does not constitute
a Disqualified Equity Interest.
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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 (except as a result of a change of control or asset sale so long as any rights of the
holders thereof upon the occurrence of a change of control or asset sale event shall be subject to
the prior repayment in full of the Loans and all other Obligations that are accrued and payable and
the termination of the Commitments), and (c) that is not guaranteed by, or secured by a Lien on any
assets of, the Parent Borrower or any of the Restricted Subsidiaries.
Qualifying Lender
shall mean:
(i) a Lender (other than a Lender within sub-paragraph (D) below) which is beneficially
entitled to interest payable to that Lender in respect of an advance under this Agreement
and/or any other Credit Document; and is
(A) a Lender:
(1) which is a bank (as defined for the purpose of section 349 of the
Taxes Act) making an advance under this Agreement and/or any other Credit
Document; or
(2) in respect of an advance made under this Agreement and/or any other
Credit Document by a person that was a bank (as defined for the
purpose of section 349 of the Taxes Act) at the time that the advance
was made,
and which is within the charge to United Kingdom corporation tax as respects
any payments of interest made in respect of the advance; or
(B) a Lender which is:
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(1)
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a company resident in the United Kingdom for United Kingdom tax
purposes;
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(2)
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a partnership each member of which is:
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(a)
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a company resident of the United
Kingdom for United Kingdom tax purposes; or
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(b)
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a company not so resident in the
United Kingdom which carries on a trade in the United Kingdom
through a permanent establishment and which brings into account
in computing its chargeable profits for the purposes of section
11(2) of the Taxes Act) the whole of any share of interest
payable in respect of that advance that falls to it by reason of
sections 114 and 115 of the Taxes Act;
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(3) a company not so resident in the United Kingdom which carries on a
trade in the United Kingdom through a permanent establishment and which
brings into account interest payable in respect of that advance in computing
the chargeable profits (for the purposes of section 11(2) of the Taxes Act)
of that company; or
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(C)
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a Treaty Lender; or
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(D)
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a building society (as defined for the purpose of section 477A
of the Taxes Act).
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Real Estate
shall have the meaning provided in
Section 9.1(f)
.
Receivables Collateral
shall have the meaning set forth in the Receivables Intercreditor
Agreement.
Receivables Collateral Agent
shall mean the collateral agent under the ABL Facility.
Receivables Intercreditor Agreement
shall mean the Receivables Intercreditor Agreement,
dated as of the Closing Date, among the Collateral Agent, the Receivables Collateral Agent and the
Trustee under the Senior Second Lien Notes Indenture, as the same may be amended, restated,
modified or waived from time to time.
Register
shall have the meaning provided in
Section 14.6(b)(iv)
.
Regulation D
shall mean Regulation D of the Board as from time to time in effect and any
successor to all or a portion thereof establishing reserve requirements.
Regulation T
shall mean Regulation T of the Board as from time to time in effect and any
successor to all or a portion thereof establishing margin requirements.
Regulation U
shall mean Regulation U of the Board as from time to time in effect and any
successor to all or a portion thereof establishing margin requirements.
Regulation X
shall mean Regulation X of the Board as from time to time in effect and any
successor to all or a portion thereof establishing margin requirements.
Reinvestment Period
shall mean 15 months following the date of receipt of Net Cash Proceeds
of an Asset Sale Prepayment Event or Casualty Event.
Related Parties
shall mean, with respect to any specified Person, such Persons Affiliates
and the directors, officers, employees, agents, trustees, advisors of such Person and any Person
that possesses, directly or indirectly, the power to direct or cause the direction of the
management or policies of such Person, whether through the ability to exercise voting power, by
contract or otherwise.
-48-
Repayment Amount
shall mean the Tranche A Repayment Amount, the Tranche B Repayment Amount,
the European Tranche Repayment Amount or a new Term Loan Repayment Amount with respect to any
Series, as applicable.
Reportable Event
shall mean an event described in Section 4043 of ERISA and the regulations
thereunder, other than any event as to which the thirty day notice period has been waived.
Required European Tranche Term Loan Lenders
shall mean, at any date, Non-Defaulting Lenders
having or holding a Dollar Equivalent of a majority of the sum of (a) the Adjusted Total European
Tranche Term Loan Commitment at such date and (b) the aggregate outstanding principal amount of the
European Tranche Term Loans (excluding European Tranche Term Loans held by Defaulting Lenders) at
such date.
Required Lenders
shall mean, at any date, (a) Non-Defaulting Lenders having or holding a
majority of the Dollar Equivalent of the sum of (i) the Adjusted Total Revolving Credit Commitment
at such date, (ii) the Adjusted Total Term Loan Commitment at such date and (iii) the outstanding
principal amount of the Term Loans (excluding Term Loans held by Defaulting Lenders) at such date
or (b) if the Total Revolving Credit Commitment and the Total Term Loan Commitment have been
terminated or for the purposes of acceleration pursuant to
Section 11
, Non-Defaulting
Lenders having or holding a majority of the Dollar Equivalent of the outstanding principal amount
of the Loans and Letter of Credit Exposure (excluding the Loans and Letter of Credit Exposure of
Defaulting Lenders) in the aggregate at such date.
Required Revolving Credit Lenders
shall mean, at any date, Non-Defaulting Lenders holding a
majority of the Adjusted Total Revolving Credit Commitment at such date (or, if the Total Revolving
Credit Commitment has been terminated at such time, a majority of the Revolving Credit Exposure
(excluding Revolving Credit Exposure of Defaulting Lenders) at such time).
Required Tranche A Term Loan Lenders
shall mean, at any date, Non-Defaulting Lenders having
or holding a majority of the sum of (a) the Adjusted Total Tranche A Term Loan Commitment at such
date and (b) the aggregate outstanding principal amount of the Tranche A Term Loans (excluding
Tranche A Term Loans held by Defaulting Lenders) at such date.
Required Tranche B Term Loan Lenders
shall mean, at any date, Non-Defaulting Lenders having
or holding a majority of the sum of (a) the Adjusted Total Tranche B Term Loan Commitment at such
date and (b) the aggregate outstanding principal amount of the Tranche B Term Loans (excluding
Tranche B Term Loans held by Defaulting Lenders) at such date.
Requirement of Law
shall mean, as to any Person, the certificate of incorporation and
by-laws or other organizational or governing documents of such Person, and any law, treaty, rule or
regulation or determination of an arbitrator or a court or other Governmental Authority, in each
case applicable to or binding upon such Person or any of its property or assets or to which such
Person or any of its property or assets is subject.
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Reserve Amount
shall mean:
(a) with respect to any Tranche A Term Loan, Revolving Credit Loan or Swingline Loan
for any period, (i) if Level I Status, Level II Status or Level III Status is in effect as
of the beginning of such period, an amount equal to 0.50%
per annum
on the average aggregate
daily principal amount of such Loan over such period, (ii) if Level IV Status is in effect
as of the beginning of such period, an amount equal to 0.25%
per annum
on the average
aggregate principal amount of such Loan over such period and (iii) if Level V Status is in
effect as of the beginning of such period, zero;
(b) with respect to any Tranche B Term Loan or European Tranche Term Loan for any
period, (i) if Level I Status is in effect as of the beginning of such period, an amount
equal to 0.25%
per annum
on the average aggregate principal amount of such Loan over such
period and (ii) if Level II Status, Level III Status, Level IV Status or Level V Status is
in effect as of the beginning of such period, zero;
(c) with respect to any Letter of Credit Fee on any Letter of Credit for any period,
(i) if Level I Status, Level II Status or Level III Status is in effect as of the beginning
of such period, an amount equal to 0.50%
per annum
on the average aggregate daily Stated
Amount of such Letters of Credit over such period, (ii) if Level IV Status is in effect as
of the beginning of such period, an amount equal to 0.25%
per annum
on the average aggregate
daily Stated Amount of such Letters of Credit over such period, and (iii) if Level V Status
is in effect as of the beginning of such period, zero;
(d) with respect to any Commitment Fee on any Available Commitment for any period, (i)
if Level I Status or Level II Status is in effect as of the beginning of such period, an
amount equal to 0.125%
per annum
on the average aggregate daily amount of such Available
Commitment over such period and (ii) if Level III Status, Level IV Status or Level V Status
is in effect as of the beginning of such period, zero;
provided
that notwithstanding the foregoing, during the fiscal quarter during which the
Revolving Credit Maturity Date (in the case of Revolving Credit Loans, Swingline Loans, Letter of
Credit Fees and Commitment Fees), Tranche A Term Loan Maturity Date (in the case of Tranche A Term
Loans), Tranche B Term Loan Maturity Date (in the case of Tranche B Term Loans) or European Tranche
Term Loan Maturity Date (in the case of European Tranche Term Loans) is scheduled to occur, the
Reserve Amount for such Loan, Letter of Credit Fee or Commitment Fee, as applicable, shall be zero.
For the avoidance of doubt, the
per annum
rate to be used in the determination of the Reserve
Amount for any interest, Letter of Credit Fee or Commitment Fee shall be determined in the same
manner as for the underlying interest or fee in accordance with
Section 5.5
.
Restricted Foreign Subsidiary
shall mean a Foreign Subsidiary that is a Restricted
Subsidiary.
Restricted Subsidiary
shall mean any Subsidiary of the Parent Borrower other than an
Unrestricted Subsidiary;
provided
that, solely for purposes of calculating any financial
definition set forth in this agreement for the Parent Borrower and its Restricted Subsidiaries on a
-50-
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)
.
Revaluation Date
shall mean (a) with respect to any Revolving Credit Loan, each of the
following: (i) each date of a Borrowing of a Revolving Credit Loan or Swingline Loan, (ii) each
date of a continuation of a Revolving Credit Loan pursuant to
Section 2.6
, and (iii) such
additional dates as the Administrative Agent shall determine or the Required Revolving Credit
Lenders shall require; and (b) with respect to any Letter of Credit, each of the following: (i)
each date of issuance of any such Letter of Credit, (ii) each date of an amendment of any such
Letter of Credit having the effect of increasing the amount thereof (solely with respect to the
increased amount), (iii) each date of any payment by the Letter of Credit Issuer under any Letter
of Credit, and (iv) such additional dates as the Administrative Agent or the Letter of Credit
Issuer shall determine or the Required Revolving Credit Lenders shall require.
Revolving Credit Commitment
shall mean, (a) with respect to each Lender that is a Lender on
the date hereof, the amount set forth opposite such Lenders name on
Schedule 1.1(c)
as
such Lenders Revolving Credit Commitment and (b) in the case of any Lender that becomes a Lender
after the date hereof, 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 $2,000,000,000.
Revolving Credit Commitment Percentage
shall mean at any time, for each Lender, the
percentage obtained by dividing (a) such Lenders Revolving Credit Commitment at such time by (b)
the amount of the Total Revolving Credit Commitment at such time,
provided
that at any time
when the Total Revolving Credit Commitment shall have been terminated, each Lenders Revolving
Credit Commitment Percentage shall be the percentage obtained by dividing (a) such Lenders
Revolving Credit Exposure at such time by (b) the Revolving Credit Exposure of all Lenders at such
time.
Revolving Credit Exposure
shall mean, with respect to any Lender at any time, the sum of (a)
the aggregate Dollar Equivalent amount of the principal amount of Revolving Credit Loans of such
Lender then outstanding, (b) such Lenders Letter of Credit Exposure at such time and (c) such
Lenders Revolving Credit Commitment Percentage of the aggregate principal amount of all
outstanding Swingline Loans at such time.
Revolving Credit Facility
shall mean the Credit Facility consisting of the Revolving Credit
Commitments and the extensions of credit thereunder.
Revolving Credit Lender
shall mean, at any time, any Lender that has a Revolving Credit
Commitment at such time.
Revolving Credit Loans
shall have the meaning provided in
Section 2.1(b)
.
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Revolving Credit Maturity Date
shall mean November 17, 2012, or, if such date is not a
Business Day, the next preceding Business Day.
Revolving Credit Termination Date
shall mean the date on which the Revolving Credit
Commitments shall have terminated, no Revolving Credit Loans shall be outstanding and the Letters
of Credit Outstanding shall have been reduced to zero or Cash Collateralized.
S&P
shall mean Standard & Poors Ratings Services or any successor by merger or
consolidation to its business.
Sale Leaseback
shall mean any transaction or series of related transactions pursuant to
which the Parent Borrower or any of the Restricted Subsidiaries (a) sells, transfers or otherwise
disposes of any property, real or personal, whether now owned or hereafter acquired, and (b) as
part of such transaction, thereafter rents or leases such property or other property that it
intends to use for substantially the same purpose or purposes as the property being sold,
transferred or disposed.
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 U.S. Secured Parties and the European Secured Parties,
collectively.
Securitization
shall mean a public or private offering by a Lender or any of its Affiliates
or their respective successors and assigns of securities or notes which represent an interest in,
or which are collateralized, in whole or in part, by the Loans and the Lenders rights under the
Credit Documents.
Security Documents
shall mean the U.S. Security Documents and the European Security
Documents, collectively.
Senior Second Lien Notes
shall have the meaning set forth in the preamble.
Senior Second Lien Notes Collateral
shall mean the U.S. Collateral (other than any Principal
Properties except to the extent that the 1993 Indenture has ceased to be in effect as a result of a
satisfaction and discharge or defeasance thereof in accordance with its terms).
-52-
Senior Second Lien Notes Indenture
shall mean the Indenture dated as of the Closing Date,
among the Parent Borrower, the guarantors party thereto and The Bank of New York, as trustee,
pursuant to which the Senior Second Lien Notes are issued, as the same may be amended, supplemented
or otherwise modified from time to time in accordance therewith.
Series
shall have the meaning as provided in
Section 2.14
.
Sold Entity or Business
shall have the meaning provided in the definition of the term
Consolidated EBITDA.
Solvent
shall mean, with respect to any Person, that as of the Closing Date, (a) (i) the sum
of such Persons debt (including contingent liabilities) does not exceed the present fair saleable
value of such Persons present assets; (ii) such Persons capital is not unreasonably small in
relation to its business as contemplated on the Closing Date; and (iii) such Person has not
incurred and does not intend to incur, or believe that it will incur, debts including current
obligations beyond its ability to pay such debts as they become due (whether at maturity or
otherwise); and (b) such Person is solvent within the meaning given that term and similar terms
under applicable laws relating to fraudulent transfers and conveyances. For purposes of this
definition, the amount of any contingent liability at any time shall be computed as the
amount that, in light of all of the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured liability (irrespective
of whether such contingent liabilities meet the criteria for accrual under Statement of Financial
Accounting Standard No. 5).
Specified Subsidiary
shall mean, at any date of determination (a) any Material Subsidiary or
(b) any Unrestricted Subsidiary (i) whose total assets at the last day of the Test Period ending on
the last day of the most recent fiscal period for which Section 9.1 Financials have been delivered
were equal to or greater than 6% of the consolidated total assets of the Parent Borrower and the
Subsidiaries at such date, or (ii) whose revenues during such Test Period were equal to or greater
than 6% of the consolidated revenues of the Parent Borrower and the Subsidiaries for such period,
in each case determined in accordance with GAAP, and (c) each other Unrestricted Subsidiary that is
the subject of an Event of Default under
Section 11.5
and that, when such Subsidiarys
total assets or revenues are aggregated with the total assets or revenues, as applicable, of each
other Subsidiary that is the subject of an Event of Default under
Section 11.5
would
constitute a Specified Subsidiary under
clause (b)
above using a 10% threshold in
replacement of the 6% threshold in such
clause (b)
.
Specified Transaction
shall mean, with respect to any period, any Investment, sale, transfer
or other disposition of assets, incurrence or repayment of Indebtedness, Dividend, Subsidiary
designation, New Term Loan, New Revolving Credit Commitment or other event that by the terms of
this Agreement requires Pro Forma Compliance with a test or covenant hereunder or requires such
test or covenant to be calculated on a Pro Forma Basis.
Sponsor
shall mean any of KKR, Bain and MLGP and their respective Affiliates but excluding
portfolio companies of any of the foregoing.
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Spot Rate
for a currency shall mean the rate determined by the Administrative Agent to be
the rate quoted by the Administrative Agent as the spot rate for the purchase by the Administrative
Agent of such currency with another currency through its principal foreign exchange trading office
at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign
exchange computation is made;
provided
that the Administrative Agent may obtain such spot
rate from another financial institution designated by the Administrative Agent if it does not have
as of the date of determination a spot buying rate for any such currency.
Stated Amount
of any Letter of Credit shall mean the Dollar Equivalent of the maximum amount
from time to time available to be drawn thereunder, determined without regard to whether any
conditions to drawing could then be met;
provided
,
however
, that with respect to
any Letter of Credit that by its terms or the terms of any Issuer Document provides for one or more
automatic increases in the stated amount thereof, the Stated Amount shall be deemed to be the
Dollar Equivalent of the maximum stated amount of such Letter of Credit after giving effect to all
such increases, whether or not such maximum stated amount is in effect at such time.
Status
shall mean, as to the Parent Borrower as of any date, the existence of Level I
Status, Level II Status, Level III Status or Level IV 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 following each date that (a) Section 9.1
Financials are delivered to the Lenders under
Section 9.1
and (b) an officers certificate
is delivered by the Parent Borrower to the Lenders setting forth, with respect to such Section 9.1
Financials, the then-applicable Status, and shall remain in effect until the next change to be
effected pursuant to this definition,
provided
that each determination of the Consolidated
Total Debt to Consolidated EBITDA Ratio pursuant to this definition shall be made as of the end of
the Test Period ending at the end of the fiscal period covered by the relevant Section 9.1
Financials.
Sterling
or
£
shall mean lawful currency of the United Kingdom.
Stock
shall mean shares of capital stock or shares in the capital, as the case may be
(whether denominated as common stock or preferred stock or ordinary shares or preferred shares, as
the case may be), beneficial, partnership or membership interests, participations or other
equivalents (regardless of how designated) of or in a corporation, partnership, limited liability
company or equivalent entity, whether voting or non-voting.
Stock Equivalents
shall mean all securities convertible into or exchangeable for Stock and
all warrants, options or other rights to purchase or subscribe for any Stock, whether or not
presently convertible, exchangeable or exercisable.
Subordinated Indebtedness
shall mean Indebtedness of any Borrower or any Guarantor that is
by its terms subordinated in right of payment to the obligations of such Borrower and such
Guarantor, as applicable, under this Agreement.
Subsidiary
of any Person shall mean and include (a) any corporation more than 50% of whose
Stock of any class or classes having by the terms thereof ordinary voting power to
-54-
elect a majority
of the directors of such corporation (irrespective of whether or not at the time Stock of any class
or classes of such corporation shall have or might have voting power by reason of the happening of
any contingency) is at the time owned by such Person directly or indirectly through Subsidiaries,
(b) any limited liability company, partnership, association, joint venture or other entity of which
such Person (i) directly or indirectly through Subsidiaries owns or controls more than 50% of the
capital accounts, distribution rights, total equity and voting interests or general or limited
partner interests and (ii) is a controlling general partner or otherwise controls such entity at
such time. Unless otherwise expressly provided, all references herein to a Subsidiary shall mean
a Subsidiary of the Parent Borrower.
Successor Borrower
shall have the meaning provided in
Section 10.3(a)
.
Successor Parent Borrower
shall have the meaning provided in
Section 10.3(a)
.
Survey
shall mean a survey of any Mortgaged Property (and all improvements thereon) that is
(a) (i) prepared by a surveyor or engineer licensed to perform surveys in the jurisdiction where
such Mortgaged Property is located, (ii) dated (or redated) not earlier than six months prior to
the date of delivery thereof unless there shall have occurred within six months prior to such date
of delivery any exterior construction on the site of such Mortgaged Property or
any easement, right of way or other interest in the Mortgaged Property shall have been granted
or become effective through operation of law or otherwise with respect to such Mortgaged Property
which, in either case, can be depicted on a survey, in which events, as applicable, such survey
shall be dated (or redated) after the completion of such construction or if such construction shall
not have been completed as of such date of delivery, not earlier than 20 days prior to such date of
delivery, or after the grant or effectiveness of any such easement, right of way or other interest
in the Mortgaged Property, (iii) certified by the surveyor (in a manner reasonably acceptable to
the Administrative Agent) to the Administrative Agent, the Collateral Agent and the title insurance
company issuing the corresponding Mortgage, (iv) complying in all material respects with the
minimum detail requirements of the American Land Title Association as such requirements are in
effect on the date of preparation of such survey and (v) sufficient for the title insurance company
to remove all standard survey exceptions from the title insurance policy (or commitment) relating
to such Mortgaged Property and issue such endorsements as the Collateral Agent may reasonably
request or (b) otherwise acceptable to the Collateral Agent.
Swap Contract
shall mean (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or other similar transactions or any combination of any of the foregoing (including
any options to enter into any of the foregoing), whether or not any such transaction is governed by
or subject to any master agreement, and (b) any and all transactions of any kind, and the related
confirmations, that are subject to the terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives Association, Inc., any International
Foreign Exchange Master Agreement, or any other master
-55-
agreement (any such master agreement,
together with any related schedules, a
Master Agreement
), including any such obligations or
liabilities under any Master Agreement.
Swingline Commitment
shall mean $100,000,000.
Swingline Lender
shall mean Bank of America, in its capacity as lender of Swingline Loans
hereunder.
Swingline Loans
shall have the meaning provided in
Section 2.1(c)
.
Swingline Maturity Date
shall mean, with respect to any Swingline Loan, the date that is
five Business Days prior to the Revolving Credit Maturity Date.
Swiss Assignment Agreement
shall mean the Security Assignment of Intra-Group Receivables
dated as of the Closing Date between the European Subsidiary Borrower, as the security provider,
and the Collateral Agent.
Swiss Secured Loan Agreement
shall mean the approximately Swiss Francs 62.5 million
Intercompany Loan Agreement dated as of the Closing Date between the European Subsidiary Borrower,
as the lender, and La Tour S.A., as the borrower.
Syndications
shall have the meaning provided in the definition of Disqualified Equity
Interests.
TARGET Day
shall mean any day on which the Trans-European Automated Real-time Gross
Settlement Express Transfer (TARGET) payment system (or, if such payment system ceases to be
operative, such other payment system (if any) determined by the Administrative Agent to be a
suitable replacement) is open for the settlement of payments in Euro.
Tax Confirmation
shall mean a confirmation by a Lender that the person beneficially entitled
to interest payable to that Lender in respect of an advance under this Agreement and/or any other
Credit Document is either:
(i) a company resident in the United Kingdom for United Kingdom Tax purposes; or
(ii) a partnership each member of which is:
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(A)
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a company so resident in the United Kingdom; or
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(B)
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a company not so resident in the United Kingdom
which carries on a trade in the United Kingdom through a permanent
establishment and which brings into account in computing its chargeable
profits (for the purposes of section 11(2) of the Taxes Act) the whole
of any share of interest payable in respect of that advance that falls
to it by reason of sections 114 and 115 of the Taxes Act; or
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-56-
(iii) a company not so resident in the United Kingdom which carries on a trade in the
United Kingdom through a permanent establishment and which brings into account interest
payable in respect of that advance in computing the chargeable profits (for the purposes of
section 11(2) of the Taxes Act)of that company.
Taxes
shall mean any and all present or future taxes, duties, levies, imposts, assessments,
deductions, withholdings or other similar charges imposed by any Governmental Authority whether
computed on a separate, consolidated, unitary, combined or other basis and any interest, fines,
penalties or additions to tax with respect to the foregoing.
Taxes Act
shall mean the Income and Corporation Taxes Act of 1988.
Term Loan Commitment
shall mean, with respect to each Lender, such Lenders Tranche A Term
Loan Commitment, Tranche B Term Loan Commitment, European Tranche Term Loan Commitment and, if
applicable, New Term Loan Commitment with respect to any Series.
Term Loans
shall mean the Tranche A Term Loans, the Tranche B Term Loans, the European
Tranche Term Loans and any New Term Loans, collectively.
Test Period
shall mean, for any determination under this Agreement, the four consecutive
fiscal quarters of the Parent Borrower then last ended.
Toggle Notes
shall have the meaning set forth in the preamble to this Agreement.
Total Credit Exposure
shall mean, at any date, the sum, without duplication, of (a) the
Total Revolving Credit Commitment at such date (or, if the Total Revolving Credit Commitment shall
have terminated on such date, the aggregate Revolving Credit Exposure of all Lenders at such date),
(b) the Total Term Loan Commitment at such date and (c) without duplication of
clause (b)
,
the Dollar Equivalent of the aggregate outstanding principal amount of all Term Loans at such date.
Total European Tranche Term Loan Commitment
shall mean the sum of European Tranche Term Loan
Commitments of all Lenders.
Total Revolving Credit Commitment
shall mean the sum of the Revolving Credit Commitments of
all the Lenders.
Total Term Loan Commitment
shall mean the sum of the Tranche A Term Loan Commitments, the
Tranche B Term Loan Commitments, the European Tranche Term Loan Commitments and the New Term Loan
Commitments, if applicable, of all the Lenders.
Total Tranche A Term Loan Commitment
shall mean the sum of the Tranche A Term Loan
commitments of all Lenders.
Total Tranche B Term Loan Commitment
shall mean the sum of the Tranche B Term Loan
commitments of all Lenders.
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Tranche A Repayment Amount
shall have the meaning provided in
Section 2.5(b)
.
Tranche A Repayment Date
shall have the meaning provided in
Section 2.5(b)
.
Tranche A Term Loan
shall have the meaning provided in
Section 2.1
.
Tranche A Term Loan Commitment
shall mean (a) in the case of each Lender that is a Lender on
the date hereof, the amount set forth opposite such Lenders name on
Schedule 1.1(c)
as
such Lenders Tranche A Term Loan Commitment and (b) in the case of any Lender that becomes a
Lender after the date hereof, the amount specified as such Lenders Tranche A Term Loan
Commitment in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the
Total Tranche A Term Loan Commitment, in each case as the same may be changed from time to time
pursuant to the terms hereof. The aggregate amount of the Tranche A Term Loan Commitments as of
the Closing Date is $2,750,000,000.
Tranche A Term Loan Facility
shall mean the Credit Facility consisting of the Tranche A Term
Loan Commitments and the Tranche A Term Loans.
Tranche A Term Loan Lender
shall mean a Lender with a Tranche A Term Loan Commitment or an
outstanding Tranche A Term Loan.
Tranche A Term Loan Maturity Date
shall mean November 17 2012, or, if such date is not a
Business Day, the next preceding Business Day.
Tranche B Repayment Amount
shall have the meaning provided in
Section 2.5(c)
.
Tranche B Repayment Date
shall have the meaning provided in
Section 2.5(c)
.
Tranche B Term Loan
shall have the meaning provided in
Section 2.1
.
Tranche B Term Loan Commitment
shall mean, (a) in the case of each Lender that is a Lender
on the date hereof, the amount set forth opposite such Lenders name on
Schedule 1.1(c)
as
such Lenders Tranche B Term Loan Commitment and (b) in the case of any Lender that becomes a
Lender after the date hereof, the amount specified as such Lenders Tranche B Term Loan
Commitment in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the
Total Tranche B Term Loan Commitment, in each case as the same may be changed from time to time
pursuant to the terms hereof. The aggregate amount of the Tranche B Term Loan Commitments as of
the Closing Date is $8,800,000,000.
Tranche B Term Loan Facility
shall mean the Credit Facility consisting of the Tranche B Term
Loan Commitments and the Tranche B Term Loans.
Tranche B Term Loan Lender
shall mean a Lender with a Tranche B Term Loan Commitment or an
outstanding Tranche B Term Loan.
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Tranche B Term Loan Maturity Date
shall mean November 17, 2013, or, if such date is not a
Business Day, the first Business Day thereafter.
Transaction Expenses
shall mean any fees or expenses incurred or paid by the Parent Borrower
or any of its Subsidiaries in connection with the Transactions, this Agreement and the other Credit
Documents and the transactions contemplated hereby and thereby.
Transactions
shall mean, collectively, the transactions contemplated by this Agreement, the
ABL Facility, the Senior Second Lien Notes Indenture, the Debt Repayment, the Merger and the Equity
Investments and the intercompany transfers of the proceeds of the ABL Facility, the Senior Second
Lien Notes and the Loans to be made on the Closing Date.
Transferee
shall have the meaning provided in
Section 14.6(e)
.
Treaty Lender
shall mean a Lender which:
(i) is treated as a resident of a Treaty State for the purposes of the relevant Treaty;
and
(ii) does not carry on a business in the United Kingdom through a permanent
establishment with which that Lenders participation in a Loan is effectively connected.
Treaty State
shall mean a jurisdiction having a double taxation agreement (a
Treaty
) with
the United Kingdom which makes provision for full exemption from Tax imposed by the United Kingdom
on interest.
Trigger Date
shall mean the day following the date on which Section 9.1 Financials are
delivered to the Lenders for the fiscal year ending on December 31, 2006.
2014 Cash Pay Notes
shall have the meaning provided in the preamble to this Agreement.
2016 Cash Pay Notes
shall have the meaning provided in the preamble to this Agreement.
Type
shall mean (a) as to any Term Loan, its nature as an ABR Loan or a LIBOR Term Loan and
(b) as to any Revolving Credit Loan, its nature as an ABR Loan or a LIBOR Revolving Credit Loan.
UK Pension Letter of Credit
shall mean that certain Letter of Credit to be issued to the
trustees of the HCA International Final Salary Pension Scheme by Bank of America, N.A., as a Letter
of Credit Issuer under this Agreement, with a face amount of approximately £20,408,000 and an
expiry date of approximately February 20, 2015.
Unfunded Current Liability
of any Plan shall mean the amount, if any, by which the
Accumulated Benefit Obligation (as defined under Statement of Financial Accounting Standards No. 87
(
SFAS 87
) under the Plan as of the close of its most recent plan year, deter-
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mined 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.
Notwithstanding the foregoing, the European Subsidiary Borrower shall always be a Restricted
Subsidiary for so long as any European Tranche Term Loans are outstanding.
U.S. Collateral
shall mean all property pledged or purported to be pledged pursuant to the
U.S. Security Documents.
U.S. Credit Facilities
shall mean the Tranche A Term Loan Facility, the Tranche B Term Loan
Facility and the Revolving Credit Facility.
U.S. Credit Party
shall mean the Parent Borrower and the U.S. Guarantors.
U.S. Guarantee
shall mean (a) the Guarantee made by the Parent Borrower and each U.S.
Guarantor in favor of the Administrative Agent for the benefit of the Secured Parties,
substantially in the form of
Exhibit B-1
, and (b) any other guarantee of the Obligations
made by
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a Restricted Subsidiary that is a Domestic Subsidiary in form and substance reasonably
acceptable to the Administrative Agent, in each case as the same may be amended, supplemented or
otherwise modified from time to time.
U.S. Guarantors
shall mean (a) each Domestic Subsidiary that is party to the U.S. Guarantee
on the Closing Date and (b) each Domestic Subsidiary that becomes a party to the U.S. Guarantee
after the Closing Date pursuant to
Section 9.11
or otherwise.
U.S. Obligations
shall means all advances to, and debts, liabilities, obligations, covenants
and duties of, any Credit Party arising under any Credit Document or otherwise with respect to any
Revolving Credit Commitment, Loan or Letter of Credit (other than any such advances to and debts,
liabilities, obligations, covenants and duties of any Credit Party in respect of the European
Obligations) or under any Secured Cash Management Agreement or Secured Hedge Agreement, in each
case, entered into with the Parent Borrower or any of its Domestic Subsidiaries, whether direct or
indirect (including those acquired by assumption), absolute or contingent, due or to become due,
now existing or hereafter arising and including interest and fees that accrue after the
commencement by or against any Credit Party or any Affiliate thereof
of any proceeding under any bankruptcy or insolvency law naming such Person as the debtor in
such proceeding, regardless of whether such interest and fees are allowed claims in such
proceeding.
U.S. Pledge Agreement
shall mean (a) the U.S. Pledge Agreement, entered into by the U.S.
Credit Parties party thereto and the Collateral Agent for the benefit of the Secured Parties,
substantially in the form of
Exhibit E
, on the Closing Date, and (b) any other pledge
agreement with respect to all of the Obligations delivered pursuant to
Section 9.12
, in
each case, as the same may be amended, supplemented or otherwise modified from time to time.
U.S. Secured Parties
shall mean the Administrative Agent, the Collateral Agent, the Letter
of Credit Issuer and each Lender, in each case with respect to the U.S. Credit Facilities, each
Hedge Bank that is party to any Secured Hedge Agreement with the Parent Borrower or any Domestic
Subsidiary, each Cash Management Bank that is party to a Secured Cash Management Agreement with the
Parent Borrower or any Domestic Subsidiary and each sub-agent pursuant to
Section 13
appointed by the Administrative Agent with respect to matters relating to the U.S. Credit
Facilities or the Collateral Agent with respect to matters relating to any U.S. Security Document.
U.S. Security Agreement
shall mean the Security Agreement entered into by the Parent
Borrower, the other grantors party thereto and the Collateral Agent for the benefit of the Secured
Parties, substantially in the form of
Exhibit F
, as the same may be amended, supplemented
or otherwise modified from time to time.
U.S. Security Documents
shall mean, collectively, (a) the U.S. Guarantee, (b) the U.S.
Pledge Agreement, (c) the U.S. Security Agreement, (d) the Mortgages, (e) the Intercreditor
Agreements and (f) each other security agreement or other instrument or document executed and
delivered pursuant to
Section 9.11
,
9.12
or
9.14
or pursuant to any other
such U.S. Security Documents to secure all of the Obligations.
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Voting Stock
shall mean, with respect to any Person, such Persons Stock or Stock
Equivalents having the right to vote for the election of directors of such Person under ordinary
circumstances.
1.2.
Other Interpretive Provisions
. With reference to this Agreement and each other
Credit Document, unless otherwise specified herein or in such other Credit Document:
(a) The meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms.
(b) The words herein, hereto, hereof and hereunder and words of similar import
when used in any Credit Document shall refer to such Credit Document as a whole and not to
any particular provision thereof.
(c) Article, Section, Exhibit and Schedule references are to the Credit Document in
which such reference appears.
(d) The term including is by way of example and not limitation.
(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
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such
ratio is expressed herein and rounding the result up or down to the nearest number (with a
rounding-up if there is no nearest number).
1.5.
References to Agreements, Laws, Etc
. Unless otherwise expressly provided herein,
(a) references to organizational documents, agreements (including the Credit Documents) and other
Contractual Requirements shall be deemed to include all subsequent amendments, restatements,
amendment and restatements, extensions, supplements and other modifications thereto, but only to
the extent that such amendments, restatements, amendment and restatements, extensions, supplements
and other modifications are permitted by any Credit Document; and (b) references to any Requirement
of Law shall include all statutory and regulatory provisions consolidating, amending, replacing,
supplementing or interpreting such Requirement of Law.
1.6.
Exchange Rates
. For purposes of determining compliance under
Sections
10.4
,
10.5
and
10.6
with respect to any amount in a currency other than Dollars
(other than with respect to (x) any amount derived from the financial statements of Holdings, the
Parent Borrower or its Subsidiaries or (y) any Indebtedness denominated in a currency other than
Dollars), such amount shall be deemed to equal the Dollar Equivalent thereof based on the average
Spot Rate for such currency for the most recent twelve-month period immediately prior to the date
of determination determined in a manner consistent with that used in calculating Consolidated
EBITDA for the related period. For purposes of determining compliance with
Sections 10.1
,
10.2
and
10.5
, with respect to any amount of Indebtedness denominated in a currency
other than Dollars, compliance will be determined at the time of incurrence or advancing thereof
using the Dollar Equivalent thereof at the Spot Rate in effect at the time of such incurrence or
advancement.
1.7.
Reserve Amounts
. The provisions of
Section 2.8
and
Section 4.1
relating to the establishment of Reserve Amounts are intended to give the Borrowers, the Lenders
and the L/C Participants the practical benefits of any change in Status (whether resulting in an
increase or decrease in the fees payable hereunder from time to time) resulting from delivery of
Section 9.1 Financials with respect to the immediately preceding fiscal quarter within certain time
periods following the commencement of a fiscal quarter as though any such change of Status had
occurred on the first day of such fiscal quarter. The Administrative Agent and the Borrowers may
amend the provisions of
Section 2.8
and
Section 4.1
without the consent of any
Lender in any manner reasonably believed by the Administrative Agent and the Borrowers to be not
materially adverse the Lenders in order to better effectuate the provisions set forth therein for
achieving such benefits.
SECTION 2.
Amount and Terms of Credit
2.1.
Commitments
.
(a) Subject to and upon the terms and conditions herein set forth,
(i) each Lender having a Tranche A Term Loan Commitment severally agrees to make a loan
or loans (each a
Tranche A Term Loan
) on the Closing Date to the Parent Borrower in
Dollars, which Tranche A Term Loans shall not exceed for any such
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Lender the Tranche A Term
Loan Commitment of such Lender and in the aggregate shall not exceed $2,750,000,000;
(ii) each Lender having a Tranche B Term Loan Commitment severally agrees to make a
loan or loans (each a
Tranche B Term Loan
) on the Closing Date to the Parent Borrower in
Dollars, which Tranche B Term Loans shall not exceed for any such Lender the Tranche B Term
Loan Commitment of such Lender and in the aggregate shall not exceed $8,800,000,000; and
(iii) each Lender having a European Tranche Term Loan Commitment severally agrees to
make a loan or loans (each a
European Tranche Term Loan
) on the Closing Date to the
European Subsidiary Borrower in Euro, which European Tranche Term Loans shall not exceed for
any such Lender the European Tranche Term Loan Commitment of such Lender and in the
aggregate shall not exceed
1,000,000,000.
Such Term Loans (i) shall be made on the Closing Date, (ii) may at the option of the Parent
Borrower be incurred and maintained as, and/or converted into, ABR Loans (except in the case of
European Tranche Term Loans) or LIBOR Term Loans,
provided
that all Term Loans made by each
of the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein,
consist entirely of Term Loans of the same Type, (iii) may be repaid or prepaid in accordance with
the provisions hereof, but once repaid or prepaid, may not be reborrowed, (iv) shall not exceed for
any such Lender the Tranche A Term Loan Commitment, Tranche B Term Loan Commitment or European
Tranche Term Loan Commitment, as applicable, of such Lender and (v) shall not exceed in the
aggregate the Total Tranche A Term Loan Commitments, Total Tranche B Term Loan Commitments or Total
European Tranche Term Loan Commitments, as applicable. On the Tranche A Term Loan Maturity Date,
all then unpaid Tranche A Term Loans shall be repaid in full in Dollars. On the Tranche B Term
Loan Maturity Date, all then unpaid Tranche B Term Loans shall be repaid in full in Dollars. On
the European Tranche Term Loan Maturity Date, all then unpaid European Tranche Term Loans shall be
repaid in full in Euro.
(b) (i) Subject to and upon the terms and conditions herein set forth, each Lender having a
Revolving Credit Commitment severally agrees to make a loan or loans denominated in Dollars or
Alternative Currencies (each a
Revolving Credit Loan
and, collectively, the
Revolving Credit
Loans
) to the Parent Borrower, which Revolving Credit Loans (A) shall be made at any time and from
time to time on and after the Closing Date and prior to the Revolving Credit Maturity Date, (B)
may, at the option of the Parent Borrower be incurred and maintained as, and/or converted into, ABR
Loans (in the case of Revolving Credit Loans denominated in Dollars only) or LIBOR Revolving Credit
Loans,
provided
that all Revolving Credit Loans made by each of the Lenders pursuant to the
same Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving
Credit Loans of the same Type, (C) may be repaid and reborrowed in accordance with the provisions
hereof, (D) shall not, for any Lender at any time, after giving effect thereto and to the
application of the proceeds thereof, result in such Lenders Revolving Credit Exposure at such time
exceeding such Lenders Revolving Credit Commitment at such time, (E) shall not, after giving
effect thereto and to the application of the proceeds thereof, result at any time in the aggregate
amount of the Lenders Revolving Credit Exposures at such time exceeding the Total Revolving Credit
Commitment then in effect and (F) shall not, after giving effect thereto and to the application of
the proceeds
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thereof, result at any time in the Aggregate Multicurrency Exposures at such time
exceeding the Multicurrency Sublimit then in effect.
(ii) Each Lender may at its option make any LIBOR Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan,
provided
that (A) any exercise of
such option shall not affect the obligation of the Parent Borrower to repay such Loan and (B) in
exercising such option, such Lender shall use its reasonable efforts to minimize any increased
costs to the Parent Borrower resulting therefrom (which obligation of the Lender shall not require
it to take, or refrain from taking, actions that it determines would result in increased
costs for which it will not be compensated hereunder or that it determines would be otherwise
disadvantageous to it and in the event of such request for costs for which compensation is provided
under this Agreement, the provisions of
Section 2.10
shall apply). On the Revolving Credit
Maturity Date, all Revolving Credit Loans shall be repaid in full.
(c) Subject to and upon the terms and conditions herein set forth, the Swingline Lender in its
individual capacity agrees, at any time and from time to time 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 in Dollars, which Swingline Loans (i)
shall be ABR Loans, (ii) shall have the benefit of the provisions of
Section 2.1(d)
, (iii)
shall not exceed at any time outstanding the Swingline Commitment, (iv) shall not, after giving
effect thereto and to the application of the proceeds thereof, result at any time in the aggregate
amount of the Lenders Revolving Credit Exposures at such time exceeding the Total Revolving Credit
Commitment then in effect and (v) may be repaid and reborrowed in accordance with the provisions
hereof. Each outstanding Swingline Loan shall be repaid in full on the earlier of (a) 15 Business
Days after such Swingline Loan is initially Borrowed and (b) the Swingline Maturity Date. The
Swingline Lender shall not make any Swingline Loan after receiving a written notice from the Parent
Borrower or any Lender stating that a Default or Event of Default exists and is continuing until
such time as the Swingline Lender shall have received written notice of (i) rescission of all such
notices from the party or parties originally delivering such notice or (ii) the waiver of such
Default or Event of Default in accordance with the provisions of
Section 14.1
.
(d) On any Business Day, the Swingline Lender may, in its sole discretion, give notice to each
Revolving Credit Lender that all then-outstanding Swingline Loans shall be funded with a Borrowing
of Revolving Credit Loans denominated in Dollars, in which case Revolving Credit Loans denominated
in Dollars constituting ABR Loans (each such Borrowing, a
Mandatory Borrowing
) shall be made on
the immediately succeeding Business Day by each Revolving Credit Lender
pro rata
based on each
Lenders Revolving Credit Commitment 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 Credit Lender hereby irrevocably agrees to make such Revolving Credit Loans upon one
Business Days notice pursuant to each Mandatory Borrowing in the amount and in the manner
specified in the preceding sentence and on the date specified to it in writing by the Swingline
Lender notwithstanding (i) that the amount of the Mandatory Borrowing may not comply with the
minimum amount for each Borrowing specified in
Section 2.2
, (ii) whether any conditions
specified in
Section 7
are then satisfied, (iii) whether a Default or an Event of Default
has occurred and is continuing, (iv) the date of such Mandatory Borrowing or (v) any reduction in
the Total Revolving Credit Com-
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mitment after any such Swingline Loans were made. In the event that,
in the sole judgment of the Swingline Lender, any Mandatory Borrowing cannot for any reason be made
on the date otherwise required above (including as a result of the commencement of a proceeding
under the Bankruptcy Code in respect of the Parent Borrower), each Revolving Credit Lender hereby
agrees that it shall forthwith purchase from the Swingline Lender (without recourse or warranty)
such participation of the outstanding Swingline Loans as shall be necessary to cause the Lenders to
share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment
Percentages,
provided
that all principal and interest payable on such Swingline Loans shall
be for the account of the Swingline Lender until
the date the respective participation is purchased and, to the extent attributable to the
purchased participation, shall be payable to such Lender purchasing same from and after such date
of purchase.
2.2.
Minimum Amount of Each Borrowing; Maximum Number of Borrowings
. The aggregate
principal amount of each Borrowing of Term Loans or Revolving Credit Loans shall be in a minimum
amount of at least the Minimum Borrowing Amount for such Type of Loans and in a multiple of
$1,000,000 in excess thereof (or £500,000 in the case of Loans denominated in Sterling, or
1,000,000 in the case of Loans denominated in Euro) and Swingline Loans shall be in a minimum
amount of $500,000 and in a multiple of $100,000 in excess thereof (except that Mandatory
Borrowings shall be made in the amounts required by
Section 2.1(d)
and Revolving Credit
Loans to reimburse the Letter of Credit Issuer with respect to any Unpaid Drawing shall be made in
the amounts required by
Section 3.3
or
Section 3.4
, as applicable). More than one
Borrowing may be incurred on any date,
provided
that at no time shall there be outstanding
more than 30 Borrowings of LIBOR Loans under this Agreement.
2.3.
Notice of Borrowing
.
(a) The applicable Borrower shall give the Administrative Agent at the Administrative Agents
Office (i) prior to 12:00 Noon (New York City time) at least three Business Days prior written
notice (or telephonic notice promptly confirmed in writing) of the Borrowing of Term Loans if such
Term Loans are to be initially LIBOR Loans denominated in Dollars (or prior to 9:00 a.m. (New York
City time) two Business Days prior written notice in the case of a Borrowing of Term Loans to be
made on the Closing Date initially as LIBOR Loans denominated in Dollars), (ii) prior to 9:00 a.m.
(New York City time) at least two Business Days prior written notice (a telephone notice promptly
confirmed in writing) of the Borrowing of European Tranche Term Loans on the Closing Date and (iii)
written notice (or telephonic notice promptly confirmed in writing) prior to 12:00 Noon (New York
City time) on the date of the Borrowing of Term Loans if such Term Loans are to be ABR Loans. Such
notice (together with each notice of a Borrowing of Revolving Credit Loans pursuant to
Section
2.3(b)
and each notice of a Borrowing of Swingline Loans pursuant to
Section 2.3(c)
, a
Notice of Borrowing
) shall specify (i) the identity of the applicable Borrower(s), (ii) the
aggregate principal amount of the Term Loans to be made under each Term Loan Facility, (iii) the
date of the Borrowing (which shall be the Closing Date) and (iv) whether the Term Loans shall
consist of ABR Term Loans (in the case of Loans denominated in Dollars) and/or LIBOR Term Loans
and, if the Term Loans are to include LIBOR Term Loans, the Interest Period to be initially
applicable thereto. The Administrative Agent shall promptly give each Lender written notice (or
telephonic notice promptly confirmed in writing) of the proposed Borrowing of Term Loans, of such
Lenders proportionate share thereof and of the other matters covered by the related Notice of
Borrowing.
-66-
(b) Whenever the Parent Borrower desires to incur Revolving Credit Loans (other than Mandatory
Borrowings or borrowings to repay Unpaid Drawings), it shall give the Administrative Agent at the
Administrative Agents Office, (i) prior to 12:00 Noon (New York City Time) at least three Business
Days prior written notice (or telephonic notice promptly
confirmed in writing) of each Borrowing of LIBOR Revolving Credit Loans denominated in Dollars
(or prior to 9:00 a.m. (New York City time) two Business Days prior written notice in the case of
a Borrowing of Revolving Credit Loans to be made on the Closing Date initially as LIBOR Loans
denominated in Dollars), (ii) prior to 12:00 Noon (New York City time) at least four Business Days
prior written notice (or telephone notice promptly confirmed in writing) of the Borrowing of
Revolving Credit Loans denominated in Alternative Currencies and (iii) prior to 10:00 a.m. (New
York City time) on the date of such Borrowing prior written notice (or telephonic notice promptly
confirmed in writing) of each Borrowing of Revolving Credit Loans that are ABR Loans. Each such
Notice of Borrowing, except as otherwise expressly provided in
Section 2.10
, shall specify
(i) the aggregate principal amount of the Revolving Credit Loans to be made pursuant to such
Borrowing, (ii) the date of Borrowing (which shall be a Business Day) and (iii) whether the
respective Borrowing shall consist of ABR Loans (in the case of Revolving Credit Loans denominated
in Dollars) or LIBOR Revolving Credit Loans and, if LIBOR Revolving Credit Loans, the Interest
Period to be initially applicable thereto. The Administrative Agent shall promptly give each
Revolving Credit Lender written notice (or telephonic notice promptly confirmed in writing) of each
proposed Borrowing of Revolving Credit Loans, of such Lenders Revolving Credit Commitment
Percentage thereof and of the other matters covered by the related Notice of Borrowing.
(c) Whenever the Parent Borrower desires to incur Swingline Loans hereunder, it shall give the
Administrative Agent written notice (or telephonic notice promptly confirmed in writing) of each
Borrowing of Swingline Loans prior to 2:30 p.m. (New York City time) on the date of such Borrowing.
Each such notice shall specify (i) the aggregate principal amount of the Swingline Loans to be
made pursuant to such Borrowing and (ii) the date of Borrowing (which shall be a Business Day).
The Administrative Agent shall promptly give the Swingline Lender written notice (or telephonic
notice promptly confirmed in writing) of each proposed Borrowing of Swingline Loans and of the
other matters covered by the related Notice of Borrowing.
(d) Mandatory Borrowings shall be made upon the notice specified in
Section 2.1(d)
,
with the Parent Borrower irrevocably agreeing, by its incurrence of any Swingline Loan, to the
making of Mandatory Borrowings as set forth in such Section.
(e) Borrowings to reimburse Unpaid Drawings shall be made upon the notice specified in
Section 3.4(a)
.
(f) Without in any way limiting the obligation of any Borrower to confirm in writing any
notice it may give 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.
-67-
2.4.
Disbursement of Funds
.
(a) No later than 2:00 p.m. (New York City time) on the date specified in each Notice of
Borrowing (including Mandatory Borrowings), each Lender will make available its
pro
rata
portion, if any, of each Borrowing requested to be made on such date in the manner
provided below,
provided
that all Swingline Loans shall be made available in the full
amount thereof by the Swingline Lender no later than 3:00 p.m. (New York City time) on the date
requested.
(b) Each Lender shall make available all amounts it is to fund to the applicable Borrower
under any Borrowing for its applicable Commitments, and in immediately available funds to the
Administrative Agent at the Administrative Agents Office in the applicable currency and the
Administrative Agent will (except in the case of Mandatory Borrowings and Borrowings to repay
Unpaid Drawings) make available to the applicable Borrower, by depositing to an account designated
by the applicable Borrower to the Administrative Agent the aggregate of the amounts so made
available in the applicable currency. Unless the Administrative Agent shall have been notified by
any Lender prior to the date of any such Borrowing that such Lender does not intend to make
available to the Administrative Agent its portion of the Borrowing or Borrowings to be made on such
date, the Administrative Agent may assume that such Lender has made such amount available to the
Administrative Agent on such date of Borrowing, and the Administrative Agent, in reliance upon such
assumption, may (in its sole discretion and without any obligation to do so) make available to the
applicable Borrower a corresponding amount. If such corresponding amount is not in fact made
available to the Administrative Agent by such Lender and the Administrative Agent has made
available such amount to the applicable Borrower, the Administrative Agent shall be entitled to
recover such corresponding amount from such Lender. If such Lender does not pay such corresponding
amount forthwith upon the Administrative Agents demand therefor the Administrative Agent shall
promptly notify the applicable Borrower and the applicable Borrower shall immediately pay such
corresponding amount to the Administrative Agent in the applicable currency. The Administrative
Agent shall also be entitled to recover from such Lender or the applicable Borrower interest on
such corresponding amount in respect of each day from the date such corresponding amount was made
available by the Administrative Agent to the applicable Borrower to the date such corresponding
amount is recovered by the Administrative Agent, at a rate
per annum
equal to (i) if paid by such
Lender, the Overnight Rate or (ii) if paid by the applicable Borrower, the then-applicable rate of
interest or fees, calculated in accordance with
Section 2.8
, for the respective Loans.
(c) Nothing in this
Section 2.4
shall be deemed to relieve any Lender from its
obligation to fulfill its commitments hereunder or to prejudice any rights that any Borrower may
have against any Lender as a result of any default by such Lender hereunder (it being understood,
however, that no Lender shall be responsible for the failure of any other Lender to fulfill its
commitments hereunder).
2.5.
Repayment of Loans; Evidence of Debt
.
(a) The Parent Borrower shall repay to the Administrative Agent, for the benefit of the
applicable Lenders, (i) on the Tranche A Term Loan Maturity Date, the then-outstanding Tranche A
Term Loans, in Dollars and (ii) on the Tranche B Term Loan Maturity
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Date, the then-outstanding
Tranche B Term Loans, in Dollars. The European Subsidiary Borrower shall repay to the Administrative Agent, for the benefit of the European Tranche Term
Lenders, on the European Tranche Term Loan Maturity Date, the then-outstanding European Tranche
Term Loans, in Euro. The Parent Borrower shall repay to the Administrative Agent for the benefit
of the Revolving Credit Lenders, on the Revolving Credit Maturity Date, the then outstanding
Revolving Credit Loans made to the Parent Borrower in the currencies in which such Revolving Credit
Loans are denominated. The Parent Borrower shall repay to the Administrative Agent, in Dollars,
for the account of the Swingline Lender, on the Swingline Maturity Date, the then-outstanding
Swingline Loans.
(b) The Parent Borrower shall repay to the Administrative Agent, in Dollars, for the benefit
of the Tranche A Term Loan Lenders, on each date set forth below (or, if not a Business Day, the
immediately preceding Business Day) (each, a
Tranche A Repayment Date
), a principal amount in
respect of the Tranche A Term Loans equal to the applicable amount set forth below (each, a
Tranche A Repayment Amount
):
|
|
|
|
|
|
|
Tranche A
|
Date
|
|
Repayment Amount
|
March 31, 2007
|
|
$
|
28,125,000
|
|
June 30, 2007
|
|
$
|
28,125,000
|
|
September 30, 2007
|
|
$
|
28,125,000
|
|
December 31, 2007
|
|
$
|
28,125,000
|
|
March 31, 2008
|
|
$
|
28,125,000
|
|
June 30, 2008
|
|
$
|
28,125,000
|
|
September 30, 2008
|
|
$
|
28,125,000
|
|
December 31, 2008
|
|
$
|
28,125,000
|
|
March 31, 2009
|
|
$
|
56,250,000
|
|
June 30, 2009
|
|
$
|
56,250,000
|
|
September 30, 2009
|
|
$
|
56,250,000
|
|
December 31, 2009
|
|
$
|
56,250,000
|
|
March 31, 2010
|
|
$
|
56,250,000
|
|
June 30, 2010
|
|
$
|
56,250,000
|
|
September 30, 2010
|
|
$
|
56,250,000
|
|
December 31, 2010
|
|
$
|
56,250,000
|
|
March 31, 2011
|
|
$
|
112,500,000
|
|
June 30, 2011
|
|
$
|
112,500,000
|
|
September 30, 2011
|
|
$
|
112,500,000
|
|
December 31, 2011
|
|
$
|
112,500,000
|
|
March 31, 2012
|
|
$
|
281,250,000
|
|
June 30, 2012
|
|
$
|
281,250,000
|
|
September 30, 2012
|
|
$
|
281,250,000
|
|
Tranche A Term Loan
Maturity Date
|
|
Remaining outstanding amounts
|
(c) (i) The Parent Borrower shall repay to the Administrative Agent, in Dollars, for the
benefit of the Tranche B Term Loan Lenders, on each date set forth below (each, a
-69-
Tranche B
Repayment Date
), a principal amount in respect of the Tranche B Term Loans
equal to (x) the outstanding principal amount of Tranche B Term Loans immediately after
closing on the Closing Date multiplied by (y) the percentage set forth below opposite such Tranche
B Repayment Date (each, a
Tranche B Repayment Amount
) and (ii) the European Subsidiary Borrower
shall pay to the Administrative Agent, in Euro, for the benefit of the European Tranche Term Loan
Lenders, on each date set forth below (or, if not a Business Day, the immediately preceding
Business Day) (each, a
European Tranche Repayment Date
), the principal amount of the European
Tranche Term Loans equal to (x) the outstanding principal amount of European Tranche Term Loans
immediately after closing on the Closing Date multiplied by (y) the percentage set forth below
opposite such European Tranche Repayment Date (each, a
European Tranche B Repayment Amount
):
|
|
|
|
|
|
|
Tranche B
|
|
|
Repayment Amount and European Tranche
|
Date
|
|
Repayment Amount
|
March 31, 2007
|
|
|
0.25
|
%
|
June 30, 2007
|
|
|
0.25
|
%
|
September 30, 2007
|
|
|
0.25
|
%
|
December 31, 2007
|
|
|
0.25
|
%
|
March 31, 2008
|
|
|
0.25
|
%
|
June 30, 2008
|
|
|
0.25
|
%
|
September 30, 2008
|
|
|
0.25
|
%
|
December 31, 2008
|
|
|
0.25
|
%
|
March 31, 2009
|
|
|
0.25
|
%
|
June 30, 2009
|
|
|
0.25
|
%
|
September 30, 2009
|
|
|
0.25
|
%
|
December 31, 2009
|
|
|
0.25
|
%
|
March 31, 2010
|
|
|
0.25
|
%
|
June 30, 2010
|
|
|
0.25
|
%
|
September 30, 2010
|
|
|
0.25
|
%
|
December 31, 2010
|
|
|
0.25
|
%
|
March 31, 2011
|
|
|
0.25
|
%
|
June 30, 2011
|
|
|
0.25
|
%
|
September 30, 2011
|
|
|
0.25
|
%
|
December 31, 2011
|
|
|
0.25
|
%
|
March 31, 2012
|
|
|
0.25
|
%
|
June 30, 2012
|
|
|
0.25
|
%
|
September 30, 2012
|
|
|
0.25
|
%
|
December 31, 2012
|
|
|
0.25
|
%
|
-70-
|
|
|
|
|
|
|
Tranche B
|
|
|
Repayment Amount and European Tranche
|
Date
|
|
Repayment Amount
|
March 31, 2013
|
|
|
0.25
|
%
|
June 30, 2013
|
|
|
0.25
|
%
|
September 30, 2013
|
|
|
0.25
|
%
|
Tranche B Term Loan
Maturity Date and European
Tranche Term Loan Maturity
Date
|
|
Remaining outstanding amounts
|
(d) In the event that any New Term Loans are made, such New Term Loans shall, subject to
Section 2.14(d)
, be repaid by the Parent Borrower in the amounts (each, a
New Term Loan
Repayment Amount
) and on the dates (each a
New Repayment Date
) set forth in the applicable
Joinder Agreement.
(e) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the applicable Borrower to the appropriate lending office of such
Lender resulting from each Loan made by such lending office of such Lender from time to time,
including the amounts of principal and interest payable and paid to such lending office of such
Lender from time to time under this Agreement.
(f) The Administrative Agent shall maintain the Register pursuant to
Section 14.6(b)
,
and a subaccount for each Lender, in which Register and subaccounts (taken together) shall be
recorded (i) the amount of each Loan made hereunder, whether such Loan is a Tranche A Term Loan,
Tranche B Term Loan, European Tranche Term Loan, Revolving Credit Loan or Swingline Loan, as
applicable, the Type of each Loan made, the currency in which made and the Interest Period, if any,
applicable thereto, (ii) the amount of any principal or interest due and payable or to become due
and payable from the applicable Borrower to each Lender or the Swingline Lender hereunder and (iii)
the amount of any sum received by the Administrative Agent hereunder from such Borrower and each
Lenders share thereof.
(g) The entries made in the Register and accounts and subaccounts maintained pursuant to
clauses (e)
and
(f)
of this
Section 2.5
shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the obligations of the
applicable Borrower therein recorded;
provided
,
however
, that the failure of any
Lender or the Administrative Agent to maintain such account, such Register or such subaccount, as
applicable, or any error therein, shall not in any manner affect the obligation of the applicable
Borrower to repay (with applicable interest) the Loans made to the applicable Borrower by such
Lender in accordance with the terms of this Agreement.
2.6.
Conversions and Continuations
.
(a) Subject to the penultimate sentence of this
clause (a)
, (x) the Parent Borrower
shall have the option on any Business Day to convert all or a portion equal to at least $10,000,000
of the outstanding principal amount of Term Loans or Revolving Credit Loans de-
-71-
nominated in Dollars
of one Type into a Borrowing or Borrowings of another Type and (y) each Borrower shall have the
option on any Business Day to continue the outstanding principal amount of any LIBOR Loans as LIBOR
Loans for an additional Interest Period,
provided
that (i) no partial conversion of LIBOR
Loans shall reduce the outstanding principal amount of LIBOR Loans made pursuant to a single
Borrowing to less than the Minimum Borrowing Amount, (ii) ABR Loans may not be converted into LIBOR
Loans if a Default or Event of Default is in existence on the date of the conversion and the
Administrative Agent has or the Required Lenders have determined in its or their sole discretion
not to permit such conversion, (iii) LIBOR Loans may not be continued as LIBOR Loans for an
additional Interest Period if a Default or Event of Default is in existence on the date of the
proposed continuation and the Administrative
Agent has or the Required Lenders have determined in its or their sole discretion not to
permit such continuation, (iv) Borrowings resulting from conversions pursuant to this
Section
2.6
shall be limited in number as provided in
Section 2.2
and (v) European Tranche Term
Loans and Revolving Credit Loans denominated in Alternative Currencies may not be converted to ABR
Loans. Each such conversion or continuation shall be effected by the applicable Borrower by giving
the Administrative Agent at the Administrative Agents Office prior to 12:00 Noon (New York City
time) at least (i) three Business Days notice, in the case of a continuation of or conversion to
LIBOR Loans denominated in Dollars, (ii) four Business Days notice, in the case of a continuation
or conversion to LIBOR Loans denominated in an Alternative Currency or (iii) one Business Days
notice in the case of a conversion into ABR Loans prior written notice (or telephonic notice
promptly confirmed in writing) (each, a
Notice of Conversion or Continuation
) specifying the
Loans to be so converted or continued, the Type of Loans to be converted or continued into and, if
such Loans are to be converted into or continued as LIBOR Loans, the Interest Period to be
initially applicable thereto. The Administrative Agent shall give each applicable Lender notice as
promptly as practicable of any such proposed conversion or continuation affecting any of its Loans.
(b) If any Default or Event of Default is in existence at the time of any proposed
continuation of any LIBOR Loans (other than Loans denominated in Alternative Currencies) and the
Administrative Agent has or the Required Lenders have determined in its or their sole discretion
not to permit such continuation, such LIBOR Loans shall be automatically converted on the last day
of the current Interest Period into ABR Loans. If upon the expiration of any Interest Period in
respect of LIBOR Loans (other than Borrowings of LIBOR Loans denominated in Alternative
Currencies), the applicable Borrower has failed to elect a new Interest Period to be applicable
thereto as provided in
clause (a)
, such Borrower shall be deemed to have elected to convert
such Borrowing of LIBOR Loans into a Borrowing of ABR Loans, effective as of the expiration date of
such current Interest Period. Notwithstanding the foregoing, with respect to Borrowings of LIBOR
Loans denominated in Alternative Currencies, in connection with the occurrence of any of the events
described in the preceding two sentences, at the expiration of the then current Interest Period
each such Borrowing shall be automatically continued as a Borrowing of LIBOR Loans with an Interest
Period of one month.
(c) No Loan may be converted into or continued as a Loan denominated in a different currency.
2.7.
Pro Rata Borrowings
. Each Borrowing of (i) Tranche A Term Loans, (ii) Tranche B
Term Loans and (iii) European Tranche Term Loans under this Agreement shall
-72-
be made by the Lenders
pro rata
on the basis of their then-applicable Tranche A Term Loan Commitments, Tranche B Term Loan
Commitments and European Tranche Term Loan Commitments, respectively. Each Borrowing of Revolving
Credit Loans under this Agreement shall be made by the Revolving Credit Lenders
pro rata
on the
basis of their then-applicable Revolving Credit Commitment Percentages. Each Borrowing of New Term
Loans under this Agreement shall be made by the Lenders
pro rata
on the basis of their
then-applicable New Term Loan Commitments. It is understood that (a) no Lender shall be
responsible for any default by any other Lender in its obligation to make Loans hereunder and that
each Lender severally but not jointly shall be obligated to make the Loans
provided to be made by it hereunder, regardless of the failure of any other Lender to fulfill
its commitments hereunder and (b) other than as expressly provided herein with respect to a
Defaulting Lender, failure by a Lender to perform any of its obligations under any of the Credit
Documents shall not release any Person from performance of its obligation under any Credit
Document.
2.8.
Interest
.
(a) The unpaid principal amount of each ABR Loan shall bear interest from the date of the
Borrowing thereof until maturity (whether by acceleration or otherwise) at a rate
per annum
that
shall at all times be the Applicable ABR Margin plus the ABR, in each case, in effect from time to
time.
(b) The unpaid principal amount of each LIBOR Loan shall bear interest from the date of the
Borrowing thereof until maturity thereof (whether by acceleration or otherwise) at a rate
per annum
that shall at all times be the Applicable LIBOR Margin plus the relevant LIBOR Rate
plus
(in the case of a LIBOR Loan of any Lender that is loaned from a lending office in the United
Kingdom or a Participating Member State) the Mandatory Cost, in each case, in effect from time to
time.
(c) If all or a portion of (i) the principal amount of any Loan or (ii) any interest payable
thereon shall not be paid when due (whether at the stated maturity, by acceleration or otherwise),
such overdue amount shall bear interest at a rate
per annum
that is (the
Default Rate
) (x) in the
case of overdue principal, the rate that would otherwise be applicable thereto
plus
2% or
(y) in the case of any overdue interest, to the extent permitted by applicable law, the rate
described in
Section 2.8(a)
plus
2% from the date of such non-payment to the date
on which such amount is paid in full (after as well as before judgment).
(d) Interest on each Loan shall accrue from and including the date of any Borrowing to but
excluding the date of any repayment thereof and shall be payable in the same currency in which such
Loan is denominated. Except as provided below, interest shall be payable (i) in respect of each
ABR Loan, quarterly in arrears on the last Business Day of each March, June, September and
December, (ii) in respect of each LIBOR Loan, on the last day of each Interest Period applicable
thereto and, in the case of an Interest Period in excess of three months, on each date occurring at
three-month intervals after the first day of such Interest Period, (iii) in respect of each Loan,
(A) on any prepayment (on the amount prepaid but excluding in any event prepayments of ABR Loans),
(B) at maturity (whether by acceleration or otherwise) and (C) after such maturity, on demand.
Notwithstanding the foregoing, with respect to any fiscal quarter of the Parent Borrower beginning
on or after January 1, 2007 (each, an
Applicable Quarter
),
-73-
on any date during such Applicable
Quarter (I) that is prior to the date on which Section 9.1 Financials are due with respect to the
fiscal quarter immediately preceding such Applicable Quarter and (II) on which interest is payable
on any Loan pursuant to this
subclause (d)
(other than pursuant to
subclause
(iii)(B)
above) in respect of any period (including any portion of an Interest Period) included
in such Applicable Quarter (commencing on the first day of such Applicable Quarter), the amount of
such interest required to be paid on such date in
respect of any Loan for such period (as to any Loan, an
Interest Payment
) shall be reduced
by an amount equal to the Reserve Amount with respect to such Loan for such period;
provided
that, if the amount of any Interest Payment on any Loan shall have been reduced
during any Applicable Quarter pursuant to the foregoing provisions, then, on the date (the
Interest Gross-Up Date
) that is the earlier of (x) the Applicable Date in respect of such
Applicable Quarter and (y) (I) if such Loan is a Tranche A Term Loan, Tranche B Term Loan or
European Tranche Term Loan, the date on which all Tranche A Term Loans, Tranche B Term Loans or
European Term Loans, respectively, are repaid in full or (II) if such Loan is a Revolving Credit
Loan or Swingline Loan, the Revolving Credit Termination Date, the applicable Borrower shall pay
additional interest on such Loan in an amount equal to the aggregate of the Reserve Amounts for
such Loan so deducted during such Applicable Quarter unless:
(1) the Parent Borrower shall have delivered, at least four Business Days prior to such
Interest Gross-Up Date, Section 9.1 Financials for the fiscal quarter immediately preceding
such Applicable Quarter and
(2) either:
(A) such Section 9.1 Financials reveal a change in Status that results in a
decrease in the Applicable ABR Margin and Applicable LIBOR Margin for such Loan, in
which case, in lieu of paying the aggregate of the Reserve Amounts for such Loan for
such period as provided above, such Borrower shall pay on such Interest Gross-Up
Date an amount equal to the excess (if any) of (I) the aggregate amount of interest
that would have been payable on such Loan during such Applicable Quarter in respect
of any period included therein if such change of Status had taken effect on the
first day of such Applicable Quarter over (II) the aggregate amount of all interest
payments actually made on such Loan during such Applicable Quarter in respect of any
period included therein; or
(B) such Section 9.1 Financials reveal a change in Status that results in an
increase in the Applicable ABR Margin and Applicable LIBOR Margin for such Loan, in
which case, such Borrower shall pay the aggregate of the Reserve Amounts for such
Loan for such period as provided above, and shall also pay additional interest in
respect of such Loan on such Interest Gross-Up Date in an amount equal to the amount
(if any) by which (I) the sum of (x) the aggregate amount of all interest payments
actually made on such Loan during such Applicable Quarter in respect of any period
included therein
plus
(y) the aggregate of the Reserve Amounts for such Loan
for such Applicable Quarter is less than (II) the aggregate amount of interest that
would have been payable on such Loan during such Applicable Quarter in respect of
any period included therein if such change of Status had taken effect on the first
day of such Applicable Quarter.
-74-
(e) All computations of interest hereunder shall be made in accordance with
Section
5.5
.
(f) The Administrative Agent, upon determining the interest rate for any Borrowing of LIBOR
Loans, shall promptly notify the applicable Borrower and the relevant
Lenders thereof. Each such determination shall, absent clearly demonstrable error, be final
and conclusive and binding on all parties hereto.
2.9.
Interest Periods
. At the time a Borrower gives a Notice of Borrowing or Notice
of Conversion or Continuation in respect of the making of, or conversion into or continuation as, a
Borrowing of LIBOR Loans in accordance with
Section 2.6(a)
, such Borrower shall have the
right to elect by giving the Administrative Agent written notice (or telephonic notice promptly
confirmed in writing) the Interest Period applicable to such Borrowing, which Interest Period
shall, at the option of such Borrower be a one, two, three, six or (in the case of Revolving Credit
Loans, if available to all the Lenders making such loans as determined by such Lenders in good
faith based on prevailing market conditions) a nine or twelve month period (or such other period of
less than six months as to which the Administrative Agent may consent).
Notwithstanding anything to the contrary contained above:
(a) the initial Interest Period for any Borrowing of LIBOR Loans shall commence on the
date of such Borrowing (including the date of any conversion from a Borrowing of ABR Loans)
and each Interest Period occurring thereafter in respect of such Borrowing shall commence on
the day on which the next preceding Interest Period expires;
(b) if any Interest Period relating to a Borrowing of LIBOR Loans begins on the last
Business Day of a calendar month or begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period, such Interest
Period shall end on the last Business Day of the calendar month at the end of such Interest
Period;
(c) if any Interest Period would otherwise expire on a day that is not a Business Day,
such Interest Period shall expire on the next succeeding Business Day,
provided
that
if any Interest Period in respect of a LIBOR Loan would otherwise expire on a day that is
not a Business Day but is a day of the month after which no further Business Day occurs in
such month, such Interest Period shall expire on the next preceding Business Day; and
(d) the applicable Borrower shall not be entitled to elect any Interest Period in
respect of any LIBOR Loan if such Interest Period would extend beyond the Maturity Date of
such Loan.
2.10.
Increased Costs, Illegality, Etc
.
(a) In the event that (x) in the case of
clause (i)
below, the Administrative Agent or
(y) in the case of
clauses (ii)
and
(iii)
below, any Lender shall have reasonably
determined (which deter-
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mination shall, absent clearly demonstrable error, be final and conclusive
and binding upon all parties hereto):
(i) on any date for determining the LIBOR Rate for any Interest Period that (x)
deposits in the principal amounts and currencies of the Loans comprising such LIBOR
Borrowing are not generally available in the relevant market or (y) by reason of any changes
arising on or after the Closing Date affecting the interbank LIBOR market, adequate and fair
means do not exist for ascertaining the applicable interest rate on the basis provided for
in the definition of LIBOR Rate; or
(ii) at any time, that such Lender shall incur increased costs or reductions in the
amounts received or receivable hereunder with respect to any LIBOR Loans (other than any
increase or reduction attributable to Taxes) because of (x) any change since the date hereof
in any applicable law, governmental rule, regulation, guideline or order (or in the
interpretation or administration thereof and including the introduction of any new law or
governmental rule, regulation, guideline or order), such as, for example, without
limitation, a change in official reserve requirements, and/or (y) other circumstances
affecting the interbank LIBOR market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any LIBOR Loan has become unlawful
by compliance by such Lender in good faith with any law, governmental rule, regulation,
guideline or order (or would conflict with any such governmental rule, regulation, guideline
or order not having the force of law even though the failure to comply therewith would not
be unlawful), or has become impracticable as a result of a contingency occurring after the
date hereof that materially and adversely affects the interbank LIBOR market;
then, and in any such event, such Lender (or the Administrative Agent, in the case of
clause
(i)
above) shall within a reasonable time thereafter give notice (if by telephone, confirmed in
writing) to the Parent Borrower and to the Administrative Agent of such determination (which notice
the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in
the case of
clause (i)
above, LIBOR Term Loans and LIBOR Revolving Credit Loans (other than
the European Tranche Term Loans, which shall automatically continue as LIBOR Loans with Interest
Periods of one month duration) shall no longer be available until such time as the Administrative
Agent notifies the applicable Borrower and the Lenders that the circumstances giving rise to such
notice by the Administrative Agent no longer exist (which notice the Administrative Agent agrees to
give at such time when such circumstances no longer exist), and any Notice of Borrowing or Notice
of Conversion given by the applicable Borrower with respect to LIBOR Term Loans or LIBOR Revolving
Credit Loans that have not yet been incurred shall be deemed rescinded by the applicable Borrower,
(y) in the case of
clause (ii)
above, the applicable Borrower shall pay to such Lender,
promptly after receipt of written demand therefor such additional amounts (in the form of an
increased rate of, or a different method of calculating, interest or otherwise as such Lender in
its reasonable discretion shall determine) as shall be required to compensate such Lender for such
increased costs or reductions in amounts receivable hereunder (it being agreed that a written
notice as to the additional amounts owed to such Lender, showing in reasonable detail the basis for
the calculation thereof, submitted to the applicable Borrower by such Lender shall, absent clearly
demonstrable error, be final and conclusive and binding upon
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all parties hereto) and (z) in the
case of
subclause (iii)
above, the applicable Borrower shall take one of the actions
specified in
subclauses (A)
or
(B)
, as
applicable, of
Section 2.10(b)
as promptly as possible and, in any event, within the time
period required by law.
(b) At any time that (A) any LIBOR Loan denominated in Dollars is affected by the
circumstances described in
Section 2.10(a)(ii)
or
(iii)
, the Parent Borrower may
(and in the case of a LIBOR Loan affected pursuant to
Section 2.10(a)(iii)
shall) either
(x) if the affected LIBOR Loan is then being made pursuant to a Borrowing, cancel such Borrowing by
giving the Administrative Agent telephonic notice (confirmed promptly in writing) thereof on the
same date that such Borrower was notified by a Lender pursuant to
Section 2.10(a)(ii)
or
(iii)
or (y) if the affected LIBOR Loan is then outstanding, upon at least three Business
Days notice to the Administrative Agent, require the affected Lender to convert each such LIBOR
Loan into an ABR Loan,
provided
that if more than one Lender is affected at any time, then
all affected Lenders must be treated in the same manner pursuant to this
Section 2.10(b)
,
or (B) any LIBOR Loan denominated in an Alternative Currency is affected by the circumstances
described in
Section 2.10(a)(ii)
or
(iii)
, the applicable Borrower may (and in the
case of a LIBOR Loan affected pursuant to
Section 2.10(a)(iii)
shall) either (x) prepay
each such LIBOR Loan or (y) keep such LIBOR Loan outstanding, in which case the LIBOR Rate with
respect to such Loan shall be deemed to be the rate reasonably determined by such Lender as the
all-in-cost of funds to fund such Loan with maturities comparable to the Interest Period applicable
thereto.
(c) If, after the date hereof, 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 date hereof, has or would have the effect of reducing the rate of return on
such Lenders or its parents or its Affiliates capital or assets as a consequence of such
Lenders commitments or obligations hereunder to a level below that which such Lender or its parent
or its Affiliate could have achieved but for such Change in Law (taking into consideration such
Lenders or its parents policies with respect to capital adequacy), then from time to time,
promptly after demand by such Lender (with a copy to the Administrative Agent), the applicable
Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender
or its parent for such reduction, it being understood and agreed, however, that a Lender shall not
be entitled to such compensation as a result of such Lenders compliance with, or pursuant to any
request or directive to comply with, any law, rule or regulation as in effect on the date hereof.
Each Lender, upon determining in good faith that any additional amounts will be payable pursuant to
this
Section 2.10(c)
, will give prompt written notice thereof to the applicable Borrower,
which notice shall set forth in reasonable detail the basis of the calculation of such additional
amounts, although the failure to give any such notice shall not, subject to
Section 2.13
,
release or diminish the applicable Borrowers obligations to pay additional amounts pursuant to
this
Section 2.10(c)
upon receipt of such notice.
(d) It is understood that this
Section 2.10
shall not apply to (i) Taxes indemnifiable
under Section 5.4, (ii) net income taxes and franchise and excise taxes (imposed in lieu of net
income taxes) imposed on any Agent or Lender and, to the extent not duplicative, any Taxes imposed
on any Agent or Lender where that Tax is imposed upon or calculated by reference to the net income
received or receivable (but not any sum deemed to be received or receivable) by such Agent or
Lender or (iii) Taxes included under clause (b) of the definition of Excluded Taxes.
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2.11.
Compensation
. If (a) any payment of principal of any LIBOR Loan is made by any
Borrower to or for the account of a Lender other than on the last day of the Interest Period for
such LIBOR Loan as a result of a payment or conversion pursuant to
Section 2.5
,
2.6
,
2.10
,
5.1
,
5.2
or
14.7
, as a result of acceleration of
the maturity of the Loans pursuant to
Section 11
or for any other reason, (b) any Borrowing
of LIBOR Loans is not made as a result of a withdrawn Notice of Borrowing, (c) any ABR Loan is not
converted into a LIBOR Loan as a result of a withdrawn Notice of Conversion or Continuation, (d)
any LIBOR Loan is not continued as a LIBOR Loan, as the case may be, as a result of a withdrawn
Notice of Conversion or Continuation or (e) any prepayment of principal of any LIBOR Loan is not
made as a result of a withdrawn notice of prepayment pursuant to
Section 5.1
or
5.2
, the applicable Borrower shall, after receipt of a written request by such Lender
(which request shall set forth in reasonable detail the basis for requesting such amount), pay to
the Administrative Agent for the account of such Lender any amounts required to compensate such
Lender for any additional losses, costs or expenses that such Lender may reasonably incur as a
result of such payment, failure to convert, failure to continue or failure to prepay, including any
loss, cost or expense (excluding loss of anticipated profits) actually incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain
such LIBOR Loan.
2.12.
Change of Lending Office
. Each Lender agrees that, upon the occurrence of any
event giving rise to the operation of
Section 2.10(a)(ii)
,
2.10(a)(iii)
,
2.10(b)
,
3.5
or
5.4
with respect to such Lender, it will, if requested by
the applicable Borrower use reasonable efforts (subject to overall policy considerations of such
Lender) to designate another lending office for any Loans affected by such event,
provided
that such designation is made on such terms that such Lender and its lending office suffer no
economic, legal or regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of any such Section. Nothing in this
Section 2.12
shall
affect or postpone any of the obligations of the applicable Borrower or the right of any Lender
provided in
Section 2.10
,
3.5
or
5.4
.
2.13.
Notice of Certain Costs
. Notwithstanding anything in this Agreement to the
contrary, to the extent any notice required by
Section 2.10
,
2.11
,
3.5
or
5.4
is given by any Lender more than 120 days after such Lender has knowledge (or should
have had knowledge) of the occurrence of the event giving rise to the additional cost, reduction in
amounts, loss, tax or other additional amounts described in such Sections, such Lender shall not be
entitled to compensation under
Section 2.10
,
2.11
,
3.5
or
5.4
, as
the case may be, for any such amounts incurred or accruing prior to the 121st day prior to the
giving of such notice to the applicable Borrower.
2.14.
Incremental Facilities
.
(a) The Parent Borrower may by written notice to Administrative Agent elect to request the
establishment of one or more (x) additional tranches of term loans (the
commitments thereto, the
New Term Loan Commitments
) and/or (y) increases in Revolving Credit
Commitments (the
New Revolving Credit Commitments
and, together with the New Term Loan
Commitments, the
New Loan Commitments
), by an aggregate amount not in excess of (when taken
together with the amount (the
Excess Amount
) by which the aggregate amount, without duplication,
of the ABL Facility and any Permitted Receivables Financing exceeds $2,000,000,000 on the date such
New Loan Commitments become effective) $1,500,000,000 in the aggregate and not less than
$100,000,000 individually (or such lesser amount as (x) may be
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approved by the Administrative Agent
or (y) shall constitute the difference between $1,500,000,000 and all such New Loan Commitments
(when taken together with the Excess Amount on the date such New Loan Commitments become effective)
obtained on or prior to such date). Each such notice shall specify the date (each, an
Increased
Amount Date
) on which the Parent Borrower proposes that the New Loan Commitments shall be
effective, which shall be a date not less than ten Business Days after the date on which such
notice is delivered to the Administrative Agent. The Parent Borrower may approach any Lender or
any Person (other than a natural person) to provide all or a portion of the New Loan Commitments;
provided
that any Lender offered or approached to provide all or a portion of the New Loan
Commitments may elect or decline, in its sole discretion, to provide a New Loan Commitment. In
each case, such New Loan Commitments shall become effective as of the applicable Increased Amount
Date;
provided
that (i) no Default or Event of Default shall exist on such Increased Amount
Date before or after giving effect to such New Loan Commitments, as applicable; (ii) both before
and after giving effect to the making of any Series of New Term Loans or New Revolving Loans, each
of the conditions set forth in
Section 7
shall be satisfied; (iii) the Parent Borrower and
its Restricted Subsidiaries shall be in Pro Forma Compliance with the covenant set forth in
Section 10.9
as of the last day of the most recently ended fiscal quarter after giving
effect to such New Loan Commitments and any Investment to be consummated in connection therewith;
(iv) the New Loan Commitments shall be effected pursuant to one or more Joinder Agreements executed
and delivered by the Parent Borrower and Administrative Agent, and each of which shall be recorded
in the Register and shall be subject to the requirements set forth in
Section 5.4(e)
and
(f)
; (v) the Parent Borrower shall make any payments required pursuant to
Section
2.11
in connection with the New Loan Commitments, as applicable; and (vi) the Parent Borrower
shall deliver or cause to be delivered any legal opinions or other documents reasonably requested
by Administrative Agent in connection with any such transaction. Any New Term Loans made on an
Increased Amount Date shall be designated, a separate series (a
Series
) of New Term Loans for all
purposes of this Agreement. The Parent Borrower shall give the Administrative Agent prompt written
notice of any increase in the aggregate amount committed in respect of the ABL Facility.
(b) On any Increased Amount Date on which New Revolving Credit Commitments are effected,
subject to the satisfaction of the foregoing terms and conditions, (a) each of the Lenders with
Revolving Credit Commitments shall assign to each Lender with a New Revolving Credit Commitment
(each, a
New Revolving Loan Lender
) and each of the New Revolving Loan Lenders shall purchase
from each of the Lenders with Revolving Credit Commitments, at the principal amount thereof and in
the applicable currencies, such interests in the Revolving Credit Loans outstanding on such
Increased Amount Date as shall be necessary in order that, after giving effect to all such
assignments and purchases, the Revolving Credit Loans will be held by existing Revolving Credit
Lenders and New Revolving Loan Lenders ratably in accordance with their Revolving Credit
Commitments after giving effect to the addition of such
New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each New Revolving
Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made
thereunder (a
New Revolving Loan
) shall be deemed, for all purposes, a Revolving Credit Loan and
(c) each New Revolving Loan Lender shall become a Lender with respect to the New Revolving Credit
Commitment and all matters relating thereto.
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(c) On any Increased Amount Date on which any New Term Loan Commitments of any Series are
effective, subject to the satisfaction of the foregoing terms and conditions, (i) each Lender with
a New Term Loan Commitment (each, a
New Term Loan Lender
) of any Series shall make a Loan to the
Parent Borrower (a
New Term Loan
) in an amount equal to its New Term Loan Commitment of such
Series, and (ii) each New Term Loan Lender of any Series shall become a Lender hereunder with
respect to the New Term Loan Commitment of such Series and the New Term Loans of such Series made
pursuant thereto.
(d) The terms and provisions of the New Term Loans and New Term Loan Commitments of any Series
shall be, except as otherwise set forth herein or in the applicable Joinder Agreement, identical to
the existing Tranche B Term Loans;
provided
that (i) the applicable New Term Loan Maturity
Date of each Series shall be no earlier than the Tranche B Term Loan Maturity Date and mandatory
prepayment and other payment rights (other than scheduled amortization) of the New Term Loans and
the existing Tranche B Term Loans shall be identical, (ii) the rate of interest and the
amortization schedule applicable to the New Term Loans of each Series shall be determined by the
Parent Borrower and the applicable new Lenders and shall be set forth in each applicable Joinder
Agreement;
provided
that the weighted average life to maturity of all New Term Loans shall
be no shorter than the weighted average life to maturity of the Tranche B Term Loans and (iii) all
other terms applicable to the New Term Loans of each Series that differ from the existing Tranche B
Term Loans shall be reasonably acceptable to the Administrative Agent (as evidenced by its
execution of the applicable Joinder Agreement). The terms and provisions of the New Revolving
Loans and New Revolving Credit Commitments shall be identical to the Revolving Credit Loans and the
Revolving Credit Commitments.
(e) Each Joinder Agreement may, without the consent of any other Lenders, effect such
amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in
the opinion of the Administrative Agent, to effect the provision of this
Section 2.14
.
SECTION 3.
Letters of Credit
3.1.
Letters of Credit
.
(a) Subject to and upon the terms and conditions herein set forth, at any time and from time
to time after the Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer
agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this
Section 3
, to issue from time to time from the Closing Date through the L/C Maturity Date
upon the request of, and for the direct or indirect benefit of, the Parent Borrower and the
Restricted Subsidiaries, a letter of credit or letters of credit (the
Letters of Credit
and each,
a
Letter of Credit
) in such form as may be approved by the Letter of Credit Issuer in its
reasonable discretion;
provided
that the Parent Borrower shall be a co-applicant, and
jointly and severally liable with respect to, each Letter of Credit issued for the account of a
Restricted Subsidiary.
(b) Notwithstanding the foregoing, (i) no Letter of Credit shall be issued the Stated Amount
of which, when added to the Letters of Credit Outstanding at such time, would exceed the Letter of
Credit Commitment then in effect; (ii) no Letter of Credit shall be issued the Stated Amount of
which would cause the aggregate amount of the Lenders Revolving Credit
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Exposures at the time of the issuance thereof to exceed the
Total Revolving Credit Commitment then in effect; (iii) no Letter of
Credit in an Alternative Currency shall be issued the Stated Amount of which would cause the Aggregate Multicurrency Exposures at the time of the issuance thereof to exceed the Multicurrency Sublimit then in effect; (iv) each Letter of Credit, other than the UK Pension Letter
of Credit, shall have an expiration date occurring no later than one year after the date of
issuance thereof, unless otherwise agreed upon by the Administrative Agent and the Letter of Credit
Issuer,
provided
that, except in the case of the UK Pension Letter of Credit, in no event
shall such expiration date occur later than the L/C Maturity Date; (v) each Letter of Credit shall
be denominated in Dollars or an Alternative Currency; (vi) no Letter of Credit shall be issued if
it would be illegal under any applicable law for the beneficiary of the Letter of Credit to have a
Letter of Credit issued in its favor; and (vii) no Letter of Credit shall be issued by a Letter of
Credit Issuer after it has received a written notice from any Credit Party or any Lender stating
that a Default or Event of Default has occurred and is continuing until such time as the Letter of
Credit Issuer shall have received a written notice of (x) rescission of such notice from the party
or parties originally delivering such notice or (y) the waiver of such Default or Event of Default
in accordance with the provisions of
Section 14.1
.
(c) Upon at least one Business Days prior written notice (or telephonic notice promptly
confirmed in writing) to the Administrative Agent and the Letter of Credit Issuer (which notice the
Administrative Agent shall promptly transmit to each of the applicable Lenders), the Parent
Borrower shall have the right, on any day, permanently to terminate or reduce the Letter of Credit
Commitment in whole or in part,
provided
that, after giving effect to such termination or
reduction, the Letters of Credit Outstanding shall not exceed the Letter of Credit Commitment.
(d) The parties hereto agree that the Existing Letters of Credit shall be deemed to be Letters
of Credit for all purposes under this Agreement, without any further action by the Parent Borrower,
the Letter of Credit Issuer or any other Person.
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of
Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter
of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive
(whether or not having the force of law) from any Governmental Authority with jurisdiction
over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer
refrain from, the issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of
Credit any restriction, reserve or capital requirement (for which the Letter of Credit
Issuer is not otherwise compensated hereunder) not in effect on the 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;
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(iii) except as otherwise agreed by the Administrative Agent and the Letter of Credit
Issuer, such Letter of Credit is in an initial Stated Amount less than the Dollar Equivalent
of $100,000, in the case of a commercial Letter of Credit, or $10,000, in the case of a
standby Letter of Credit;
(iv) such Letter of Credit is to be denominated in a currency other than Dollars or an
Alternative Currency;
(v) the Letter of Credit Issuer does not as of the issuance date of such requested
Letter of Credit issue letters of credit in the requested currency;
(vi) such Letter of Credit contains any provisions for automatic reinstatement of the
Stated Amount after any drawing thereunder; or
(vii) a default of any Revolving Credit Lenders obligations to fund under
Section
3.3
exists or any Revolving Credit Lender is at such time a Defaulting Lender hereunder,
unless, in each case, the Letter of Credit Issuer has entered into satisfactory arrangements with the Parent Borrower or such Revolving Credit Lender to eliminate the
Letter of Credit Issuers risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit
Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under
the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if
(A) the Letter of Credit Issuer would have no obligation at such time to issue such Letter of
Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit
does not accept the proposed amendment to such Letter of Credit.
(h) The Letter of Credit Issuer shall act on behalf of the Revolving Credit Lenders with
respect to any Letters of Credit issued by it and the documents associated therewith and the Letter
of Credit Issuer shall have all of the benefits and immunities (A) provided to the Administrative
Agent in
Section 13
with respect to any acts taken or omissions suffered by the Letter of
Credit Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and
Issuer Documents pertaining to such Letters of Credit as fully as if the term Administrative
Agent as used in
Section 13
included the Letter of Credit Issuer with respect to such acts
or omissions, and (B) as additionally provided herein with respect to the Letter of Credit Issuer.
3.2.
Letter of Credit Requests
.
(a) Whenever the Parent Borrower desires that a Letter of Credit be issued for its account or
amended, it shall give the Administrative Agent and the Letter of Credit Issuer a Letter of Credit
Request by no later than 11:00 a.m. (New York City time) at least two (or such lesser number as may
be agreed upon by the Administrative Agent and the Letter of Credit Issuer) Business Days prior to
the proposed date of issuance or amendment. Each notice shall be executed by the Parent Borrower
and shall be in the form of
Exhibit G
(each a
Letter of Credit Request
).
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(b) In the case of a request for an initial issuance of a Letter of Credit, such Letter of
Credit Request shall specify in form and detail satisfactory to the Letter of Credit Issuer: (A)
the proposed issuance date of the requested Letter of Credit (which shall be a Business Day)); (B)
the Stated Amount thereof and the currency thereof (which shall be Dollars or an Alternative
Currency); (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E)
the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full
text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G)
in the case of the UK Pension Letter of Credit, a copy of the proposed form of such Letter of
Credit and (H) such other matters as the Letter of Credit Issuer may reasonably require. In the
case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit
Request shall specify in form and detail satisfactory to the Letter of Credit Issuer (A) the Letter
of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business
Day); (C) the nature of the proposed amendment; and (D) such other matters as the Letter of Credit
Issuer may reasonably require. Additionally, the Parent Borrower shall furnish
to the Letter of Credit Issuer and the Administrative Agent such other documents and
information pertaining to such requested Letter of Credit issuance or amendment, including any
Issuer Documents, as the Letter of Credit Issuer or the Administrative Agent may require.
(c) Promptly after receipt of any Letter of Credit Request, the Letter of Credit Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent
has received a copy of such Letter of Credit Request from the Parent Borrower and, if not, the
Letter of Credit Issuer will provide the Administrative Agent with a copy thereof. Unless the
Letter of Credit Issuer has received written notice from any Revolving Credit Lender, the
Administrative Agent or any Credit Party, at least one Business Day prior to the requested date of
issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions
contained in
Sections 6
and
7
shall not then be satisfied, then, subject to the
terms and conditions hereof, the Letter of Credit Issuer shall, on the requested date, issue a
Letter of Credit for the account of the Parent Borrower (or the applicable Restricted Subsidiary)
or enter into the applicable amendment, as the case may be, in each case in accordance with the
Letter of Credit Issuers usual and customary business practices.
(d) If the Parent Borrower so requests in any applicable Letter of Credit Request, the Letter
of Credit Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that
has automatic extension provisions (each, an
Auto-Extension Letter of Credit
);
provided
that any such Auto-Extension Letter of Credit must permit the Letter of Credit Issuer to prevent
any such extension at least once in each twelve-month period (commencing with the date of issuance
of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day
(the
Non-Extension Notice Date
) in each such twelve-month period to be agreed upon at the time
such Letter of Credit is issued. Unless otherwise directed by the Letter of Credit Issuer, the
Parent Borrower shall not be required to make a specific request to the Letter of Credit Issuer for
any such extension. Once an Auto-Extension Letter of Credit has been issued, the Lenders shall be
deemed to have authorized (but may not require) the Letter of Credit Issuer to permit the extension
of such Letter of Credit at any time to an expiry date not later than the L/C Maturity Date;
provided
,
however
, that the Letter of Credit Issuer shall not permit any such
extension if (A) the Letter of Credit Issuer has determined that it would not be permitted, or
would have no obligation, at such time to issue such Letter of Credit in its revised form (as
extended) under the terms hereof (by reason of the provisions of
clause (b)
or
(e)
of
Section 3.1
or
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otherwise), or (B) it has received notice (which may be by telephone or
in writing) on or before the day that is five Business Days before the Non-Extension Notice Date
(1) from the Administrative Agent that the Required Revolving Credit Lenders have elected not to
permit such extension or (2) from the Administrative Agent, any Lender or the Parent Borrower that
one or more of the applicable conditions specified in
Sections 6
and
7
are not then
satisfied, and in each such case directing the Letter of Credit Issuer not to permit such
extension.
(e) If the Parent Borrower so requests in any applicable Letter of Credit Request, the Letter
of Credit Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that
permits the automatic reinstatement of all or a portion of the stated amount thereof after any
drawing thereunder (each, an
Auto-Reinstatement Letter of Credit
). Unless otherwise directed by
the Letter of Credit Issuer, the Parent Borrower shall not be required to make a specific request
to the Letter of Credit Issuer to permit such reinstatement. Once an Auto-Reinstatement Letter of
Credit has been issued, except as provided in the following sentence, the
Lenders shall be deemed to have authorized (but may not require) the Letter of Credit Issuer
to reinstate all or a portion of the stated amount thereof in accordance with the provisions of
such Letter of Credit. Notwithstanding the foregoing, if such Auto-Reinstatement Letter of Credit
permits the Letter of Credit Issuer to decline to reinstate all or any portion of the stated amount
thereof after a drawing thereunder by giving notice of such non-reinstatement within a specified
number of days after such drawing (the
Non-Reinstatement Deadline
), the Letter of Credit Issuer
shall not permit such reinstatement if it has received a notice (which may be by telephone or in
writing) on or before the day that is five Business Days before the Non-Reinstatement Deadline (A)
from the Administrative Agent that the Required Revolving Credit Lenders have elected not to permit
such reinstatement or (B) from the Administrative Agent, any Lender or the Parent Borrower that one
or more of the applicable conditions specified in
Sections 6
and
7
are not then
satisfied (treating such reinstatement as the issuance of a Letter of Credit for purposes of this
clause) and, in each case, directing the Letter of Credit Issuer not to permit such reinstatement.
(f) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit
(including any Existing Letter of Credit) to an advising bank with respect thereto or to the
beneficiary thereof, the Letter of Credit Issuer will also deliver to the Parent Borrower and the
Administrative Agent a true and complete copy of such Letter of Credit or amendment. On the last
Business Day of each March, June, September and December, each Letter of Credit Issuer shall
provide the Administrative Agent a list of all Letters of Credit (including any Existing Letter of
Credit) issued by it that are outstanding at such time.
(g) The making of each Letter of Credit Request shall be deemed to be a representation and
warranty by the Parent Borrower that the Letter of Credit may be issued in accordance with, and
will not violate the requirements of,
Section 3.1(b)
.
3.3.
Letter of Credit Participations
.
(a) Immediately upon the issuance by the Letter of Credit Issuer of any Letter of Credit, the
Letter of Credit Issuer shall be deemed to have sold and transferred to each Revolving Credit
Lender (each such Revolving Credit Lender, in its capacity under this
Section 3.3
, an
L/C
Participant
), and each such L/C Participant shall be deemed irrevocably and unconditionally
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to have purchased and received from the Letter of Credit Issuer, without recourse or warranty, an
undivided interest and participation (each an
L/C Participation
), to the extent of such L/C
Participants Revolving Credit Commitment Percentage in each Letter of Credit, each substitute
therefor, each drawing made thereunder and the obligations of the Parent Borrower under this
Agreement with respect thereto, and any security therefor or guaranty pertaining thereto;
provided
that the Letter of Credit Fees will be paid directly to the Administrative Agent
for the ratable account of the L/C Participants as provided in
Section 4.1(b)
and the L/C
Participants shall have no right to receive any portion of any Fronting Fees.
(b) In determining whether to pay under any Letter of Credit, the Letter of Credit Issuer
shall have no obligation relative to the L/C Participants other than to confirm that any documents
required to be delivered under such Letter of Credit have been delivered and that
they appear to comply on their face with the requirements of such Letter of Credit. Any
action taken or omitted to be taken by the relevant Letter of Credit Issuer under or in connection
with any Letter of Credit issued by it, if taken or omitted in the absence of gross negligence or
willful misconduct, shall not create for the Letter of Credit Issuer any resulting liability.
(c) In the event that the Letter of Credit Issuer makes any payment under any Letter of Credit
issued by it and the Parent Borrower shall not have repaid such amount in full to the respective
Letter of Credit Issuer pursuant to
Section 3.4(a)
, the Letter of Credit Issuer shall
promptly notify the Administrative Agent and each L/C Participant of such failure, and each L/C
Participant shall promptly and unconditionally pay to the Administrative Agent for the account of
the Letter of Credit Issuer, the amount of such L/C Participants Revolving Credit Commitment
Percentage of the Dollar Equivalent of such unreimbursed payment in Dollars and in immediately
available funds;
provided
,
however
, that no L/C Participant shall be obligated to
pay to the Administrative Agent for the account of the Letter of Credit Issuer its Revolving Credit
Commitment Percentage of such unreimbursed amount arising from any wrongful payment made by the
Letter of Credit Issuer under any such Letter of Credit as a result of acts or omissions
constituting willful misconduct or gross negligence on the part of the Letter of Credit Issuer. If
the Letter of Credit Issuer so notifies, prior to 11:00 a.m. (New York City time) on any Business
Day, any L/C Participant required to fund a payment under a Letter of Credit, such L/C Participant
shall make available to the Administrative Agent for the account of the Letter of Credit Issuer
such L/C Participants Revolving Credit Commitment Percentage of the amount of such payment no
later than 1:00 p.m. (New York City time) on such Business Day in Dollars and in immediately
available funds. If and to the extent such L/C Participant shall not have so made its Revolving
Credit Commitment Percentage of the amount of such payment available to the Administrative Agent
for the account of the Letter of Credit Issuer, such L/C Participant agrees to pay to the
Administrative Agent for the account of the Letter of Credit Issuer, forthwith on demand, such
amount, together with interest thereon for each day from such date until the date such amount is
paid to the Administrative Agent for the account of the Letter of Credit Issuer at a rate per annum
equal to the Overnight Rate from time to time then in effect, plus any administrative, processing
or similar fees customarily charged by the Letter of Credit Issuer in connection with the
foregoing. The failure of any L/C Participant to make available to the Administrative Agent for
the account of the Letter of Credit Issuer its Revolving Credit Commitment Percentage of any
payment under any Letter of Credit shall not relieve any other L/C Participant of its obligation
hereunder to make available to the Administrative Agent for the account of the Letter of Credit
Issuer its Revolving Credit Commitment Percentage of any payment under such Letter of Credit
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on the
date required, as specified above, but no L/C Participant shall be responsible for the failure of
any other L/C Participant to make available to the Administrative Agent such other L/C
Participants Revolving Credit Commitment Percentage of any such payment.
(d) Whenever the Letter of Credit Issuer receives a payment in respect of an unpaid
reimbursement obligation as to which the Administrative Agent has received for the account of the
Letter of Credit Issuer any payments from the L/C Participants pursuant to
clause (c)
above, the Letter of Credit Issuer shall pay to the Administrative Agent and the Administrative
Agent shall promptly pay to each L/C Participant that has paid its Revolving Credit Commitment
Percentage of such reimbursement obligation, in Dollars and in immediately available funds, an
amount equal to such L/C Participants share (based upon the proportionate aggregate amount
originally funded by such L/C Participant to the aggregate amount funded by all L/C Participants) of the Dollar Equivalent of the amount so paid in respect of such reimbursement
obligation and interest thereon accruing after the purchase of the respective L/C Participations at
the Overnight Rate.
(e) The obligations of the L/C Participants to make payments to the Administrative Agent for
the account of a Letter of Credit Issuer with respect to Letters of Credit shall be irrevocable and
not subject to counterclaim, set-off or other defense or any other qualification or exception
whatsoever and shall be made in accordance with the terms and conditions of this Agreement under
all circumstances, including under any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of the other Credit
Documents;
(ii) the existence of any claim, set-off, defense or other right that the Parent
Borrower may have at any time against a beneficiary named in a Letter of Credit, any
transferee of any Letter of Credit (or any Person for whom any such transferee may be
acting), the Administrative Agent, the Letter of Credit Issuer, any Lender or other Person,
whether in connection with this Agreement, any Letter of Credit, the transactions
contemplated herein or any unrelated transactions (including any underlying transaction
between the Parent Borrower and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of
any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default;
provided
,
however
, that no L/C Participant shall be obligated to pay to the
Administrative Agent for the account of the Letter of Credit Issuer its Revolving Credit Commitment
Percentage of any unreimbursed amount arising from any wrongful payment made by the Letter of
Credit Issuer under any such Letter of Credit as a result of acts or omissions constituting willful
misconduct or gross negligence on the part of the Letter of Credit Issuer.
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3.4.
Agreement to Repay Letter of Credit Drawings
.
(a) The Parent Borrower hereby agrees to reimburse the Letter of Credit Issuer, by making
payment in with respect to any drawing under any Letter of Credit in the same currency in which
such drawing was made unless (A) the Letter of Credit Issuer (at its option) shall have specified
in the notice of drawing that it will require reimbursement in Dollars, or (B) in the absence of
any such requirement for reimbursement in Dollars, the Parent Borrower shall have notified the
Letter of Credit Issuer promptly following receipt of the notice of drawing that the Parent
Borrower will reimburse the Letter of Credit Issuer in Dollars. In the case of any reimbursement
in Dollars of a drawing of a Letter of Credit denominated in an Alternative Currency, the Letter of Credit Issuer shall notify the Parent Borrower of the Dollar Equivalent
of the amount of the drawing promptly following the determination thereof. Any such reimbursement
shall be made by the Parent Borrower to the Administrative Agent in immediately available funds for
any payment or disbursement made by the Letter of Credit Issuer under any Letter of Credit (each
such amount so paid until reimbursed, an
Unpaid Drawing
) no later than the date that is one
Business Day after the date on which the Parent Borrower receives notice of such payment or
disbursement (the
Reimbursement Date
), with interest on the amount so paid or disbursed by the
Letter of Credit Issuer, to the extent not reimbursed prior to 5:00 p.m. (New York City time) on
the Reimbursement Date, from the Reimbursement Date to the date the Letter of Credit Issuer is
reimbursed therefor at a rate
per annum
that shall at all times be the Applicable ABR Margin plus
the ABR as in effect from time to time,
provided
that, notwithstanding anything contained
in this Agreement to the contrary, (i) unless the Parent Borrower shall have notified the
Administrative Agent and the relevant Letter of Credit Issuer prior to 12:00 noon (New York City
time) on the Reimbursement Date that the Parent Borrower intends to reimburse the relevant Letter
of Credit Issuer for the amount of such drawing with funds other than the proceeds of Loans, the
Parent Borrower shall be deemed to have given a Notice of Borrowing requesting that, with respect
to Letters of Credit, the Revolving Credit Lenders make Revolving Credit Loans (which shall be
denominated in Dollars and which shall be ABR Loans) on the Reimbursement Date in the amount, or
Dollar Equivalent of the amount, as applicable, of such drawing and (ii) the Administrative Agent
shall promptly notify each L/C Participant of such drawing and the amount of its Revolving Credit
Loan to be made in respect thereof, and each L/C Participant shall be irrevocably obligated to make
a Revolving Credit Loan to the Parent Borrower in Dollars in the manner deemed to have been
requested in the amount of its Revolving Credit Commitment Percentage of the applicable Unpaid
Drawing by 2:00 p.m. (New York City time) on such Reimbursement Date by making the amount of such
Revolving Credit Loan available to the Administrative Agent. Such Revolving Credit Loans shall be
made without regard to the Minimum Borrowing Amount. The Administrative Agent shall use the
proceeds of such Revolving Credit Loans solely for purpose of reimbursing the Letter of Credit
Issuer for the related Unpaid Drawing. In the event that the Parent Borrower fails to Cash
Collateralize any Letter of Credit (including, without limitation, the UK Pension Letter of Credit)
that is outstanding on the L/C Facility Maturity Date, the full amount of the Letters of Credit
Outstanding in respect of such Letter of Credit shall be deemed to be an Unpaid Drawing subject to
the provisions of this
Section 3.4
except that the Letter of Credit Issuer shall hold the
proceeds received from the L/C Participants as contemplated above as cash collateral for such
Letter of Credit to reimburse any Drawing under such Letter of Credit and shall use such proceeds
first, to reimburse itself for any Drawings made in respect of such Letter of Credit following the
L/C Maturity Date, second, to the extent such Letter of Credit expires or is returned undrawn while
any such cash collateral remains,
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to the repayment of obligations in respect of any Revolving
Credit Loans that have not paid at such time and third, to the Parent Borrower or as otherwise
directed by a court of competent jurisdiction. Nothing in this
Section 3.4(a)
shall affect
the Parent Borrowers obligation to repay all outstanding Revolving Credit Loans when due in
accordance with the terms of this Agreement.
(b) The obligations of the Parent Borrower under this
Section 3.4
to reimburse the
Letter of Credit Issuer with respect to Unpaid Drawings (including, in each case, interest thereon)
shall be absolute and unconditional under any and all circumstances and irrespective of any
set-off, counterclaim or defense to payment that the Parent Borrower or any other Person
may have or have had against the Letter of Credit Issuer, the Administrative Agent or any
Lender (including in its capacity as an L/C Participant), including any defense based upon the
failure of any drawing under a Letter of Credit (each a
Drawing
) to conform to the terms of the
Letter of Credit or any non-application or misapplication by the beneficiary of the proceeds of
such Drawing and without regard to any adverse change in the relevant exchange rates or in the
availability of the Alternative Currency to the Parent Borrower or in the relevant currency markets
generally,
provided
that the Parent Borrower shall not be obligated to reimburse the Letter
of Credit Issuer for any wrongful payment made by the Letter of Credit Issuer under the Letter of
Credit issued by it as a result of acts or omissions constituting willful misconduct or gross
negligence on the part of the Letter of Credit Issuer.
3.5.
Increased Costs
. If after the date hereof, 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 date hereof (whether or
not having the force of law), by any such authority, central bank or comparable agency shall either
(a) impose, modify or make applicable any reserve, deposit, capital adequacy or similar requirement
against letters of credit issued by the Letter of Credit Issuer, or any L/C Participants L/C
Participation therein, or (b) impose on the Letter of Credit Issuer or any L/C Participant any
other conditions affecting its obligations under this Agreement in respect of Letters of Credit or
L/C Participations therein or any Letter of Credit or such L/C Participants L/C Participation
therein, and the result of any of the foregoing is to increase the cost to the Letter of Credit
Issuer or such L/C Participant of issuing, maintaining or participating in any Letter of Credit, or
to reduce the amount of any sum received or receivable by the Letter of Credit Issuer or such L/C
Participant hereunder (other than any such increase or reduction attributable to (i) taxes
indemnified under
Section 5.4
, (ii) net income taxes and franchise and excise taxes
(imposed in lieu of net income taxes) imposed on any Agent or Lender and, to the extent not
duplicative, any Taxes imposed on any Agent or Lender where that Tax is imposed upon or calculated
by reference to the net income received or receivable (but not any sum deemed to be received or
receivable) by such Agent or Lender or (iii) Taxes included under clause (b) of the definition of
Excluded Taxes) in respect of Letters of Credit or L/C Participations therein, then, promptly after
receipt of written demand to the Parent Borrower by the Letter of Credit Issuer or such L/C
Participant, as the case may be (a copy of which notice shall be sent by the Letter of Credit
Issuer or such L/C Participant to the Administrative Agent (with respect to Letter of Credit issued
on account of the Parent Borrower)), the Parent Borrower shall pay to the Letter of Credit Issuer
or such L/C Participant such additional amount or amounts as will compensate the Letter of Credit
Issuer or such
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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 date hereof. A
certificate submitted to the Parent Borrower by the relevant Letter of Credit Issuer or an L/C
Participant, as the case may be (a copy of which certificate shall be sent by the Letter of Credit
Issuer or such L/C Participant to the Administrative Agent), setting forth in reasonable detail the
basis for the determination of such additional amount or amounts necessary to compensate the Letter
of Credit Issuer or such L/C Participant
as aforesaid shall be conclusive and binding on the Parent Borrower absent clearly
demonstrable error.
3.6.
New or Successor Letter of Credit Issuer
.
(a) The Letter of Credit Issuer may resign as a Letter of Credit Issuer upon 60 days prior
written notice to the Administrative Agent, the Lenders and the Parent Borrower. The Parent
Borrower may replace the Letter of Credit Issuer for any reason upon written notice to the
Administrative Agent and the Letter of Credit Issuer. The Parent Borrower may add Letter of Credit
Issuers at any time upon notice to the Administrative Agent. If the Letter of Credit Issuer shall
resign or be replaced, or if the Parent Borrower shall decide to add a new Letter of Credit Issuer
under this Agreement, then the Parent Borrower may appoint from among the Lenders a successor
issuer of Letters of Credit or a new Letter of Credit Issuer, as the case may be, or, with the
consent of the Administrative Agent (such consent not to be unreasonably withheld), another
successor or new issuer of Letters of Credit, whereupon such successor issuer shall succeed to the
rights, powers and duties of the replaced or resigning Letter of Credit Issuer under this Agreement
and the other Credit Documents, or such new issuer of Letters of Credit shall be granted the
rights, powers and duties of a Letter of Credit Issuer hereunder, and the term Letter of Credit
Issuer shall mean such successor or such new issuer of Letters of Credit effective upon such
appointment. At the time such resignation or replacement shall become effective, the Parent
Borrower shall pay to the resigning or replaced Letter of Credit Issuer all accrued and unpaid fees
pursuant to
Sections 4.1(c)
and
4.1(d)
. The acceptance of any appointment as a
Letter of Credit Issuer hereunder whether as a successor issuer or new issuer of Letters of Credit
in accordance with this Agreement, shall be evidenced by an agreement entered into by such new or
successor issuer of Letters of Credit, in a form satisfactory to the Parent Borrower and the
Administrative Agent and, from and after the effective date of such agreement, such new or
successor issuer of Letters of Credit shall become a Letter of Credit Issuer hereunder. After
the resignation or replacement of a Letter of Credit Issuer hereunder, the resigning or replaced
Letter of Credit Issuer shall remain a party hereto and shall continue to have all the rights and
obligations of a Letter of Credit Issuer under this Agreement and the other Credit Documents with
respect to Letters of Credit issued by it prior to such resignation or replacement, but shall not
be required to issue additional Letters of Credit. In connection with any resignation or
replacement pursuant to this
clause (a)
(but, in case of any such resignation, only to the
extent that a successor issuer of Letters of Credit shall have been appointed), either (i) the
Parent Borrower, the resigning or replaced Letter of Credit Issuer and the successor issuer of
Letters of Credit shall arrange to have any outstanding Letters of Credit issued by the resigning
or replaced Letter of Credit Issuer replaced with Letters of Credit issued by the successor issuer
of Letters of Credit or (ii) the Parent Borrower shall cause the successor issuer of Letters of
Credit, if such successor issuer is reasonably satisfactory to the replaced or resigning Letter of
Credit Issuer, to issue back-stop
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Letters of Credit naming the resigning or replaced Letter of
Credit Issuer as beneficiary for each outstanding Letter of Credit issued by the resigning or
replaced Letter of Credit Issuer, which new Letters of Credit shall be denominated in the same
currency as, and shall have a face amount equal to, the Letters of Credit being back-stopped and
the sole requirement for drawing on such new Letters of Credit shall be a drawing on the
corresponding back-stopped Letters of Credit. After any resigning or replaced Letter of Credit
Issuers resignation or replacement as Letter of
Credit Issuer, the provisions of this Agreement relating to a Letter of Credit Issuer shall
inure to its benefit as to any actions taken or omitted to be taken by it (A) while it was a Letter
of Credit Issuer under this Agreement or (B) at any time with respect to Letters of Credit issued
by such Letter of Credit Issuer.
(b) To the extent that there are, at the time of any resignation or replacement as set forth
in
clause (a)
above, any outstanding Letters of Credit, nothing herein shall be deemed to
impact or impair any rights and obligations of any of the parties hereto with respect to such
outstanding Letters of Credit (including, without limitation, any obligations related to the
payment of Fees or the reimbursement or funding of amounts drawn), except that the Parent Borrower,
the resigning or replaced Letter of Credit Issuer and the successor issuer of Letters of Credit
shall have the obligations regarding outstanding Letters of Credit described in
clause (a)
above.
3.7.
Role of Letter of Credit Issuer
. Each Lender and the Parent Borrower agree that,
in paying any drawing under a Letter of Credit, the Letter of Credit Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates and documents
expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or
accuracy of any such document or the authority of the Person executing or delivering any such
document. None of the Letter of Credit Issuer, the Administrative Agent, any of their respective
affiliates nor any correspondent, participant or assignee of the Letter of Credit Issuer shall be
liable to any Lender for (i) any action taken or omitted in connection herewith at the request or
with the approval of the Required Revolving Credit Lenders; (ii) any action taken or omitted in the
absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness,
validity or enforceability of any document or instrument related to any Letter of Credit or Issuer
Document. The Parent Borrower hereby assumes all risks of the acts or omissions of any beneficiary
or transferee with respect to its use of any Letter of Credit;
provided
that this
assumption is not intended to, and shall not, preclude the Parent Borrowers pursuing such rights
and remedies as it may have against the beneficiary or transferee at law or under any other
agreement. None of the Letter of Credit Issuer, the Administrative Agent, any of their respective
affiliates nor any correspondent, participant or assignee of the Letter of Credit Issuer shall be
liable or responsible for any of the matters described in
Section 3.3(e)
;
provided
that anything in such Section to the contrary notwithstanding, the Parent Borrower may have a claim
against the Letter of Credit Issuer, and the Letter of Credit Issuer may be liable to the Parent
Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or
exemplary, damages suffered by the Parent Borrower which the Parent Borrower proves were caused by
the Letter of Credit Issuers willful misconduct or gross negligence or the Letter of Credit
Issuers willful failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of
a Letter of Credit. In furtherance and not in limitation of the foregoing, the Letter of Credit
Issuer may accept documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice
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or information to the contrary, and the Letter of
Credit Issuer shall not be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason.
3.8.
Cash Collateral
.
(a) Upon the request of the Administrative Agent, (A) if the Letter of Credit Issuer has
honored any full or partial drawing request under any Letter of Credit and such drawing has
resulted in an L/C Borrowing, or (B) if, as of the L/C Maturity Date, there are any Letters of
Credit Outstanding (including Letters of Credit Outstanding with respect to the UK Pension Letter
of Credit), the Parent Borrower shall, in each case, immediately Cash Collateralize the then
Letters of Credit Outstanding.
(b) The Administrative Agent may, at any time and from time to time after the initial deposit
of Cash Collateral, request that additional Cash Collateral be provided in order to protect against
the results of exchange rate fluctuations.
(c) If any Event of Default shall occur and be continuing, the Administrative Agent or
Revolving Credit Lenders with Letter of Credit Exposure representing greater than 50% of the total
Letter of Credit Exposure may require that the L/C Obligations be Cash Collateralized.
(d) For purposes of this
Section 3.8
,
Cash Collateralize
means to pledge and deposit
with or deliver to the Administrative Agent, for the benefit of the Letter of Credit Issuer and the
Lenders, as collateral for the L/C Obligations, cash or deposit account balances in the currencies
in which the Letters of Credit Outstanding are denominated and in an amount equal to the amount of
the Letters of Credit Outstanding required to be Cash Collateralized pursuant to documentation in
form and substance satisfactory to the Administrative Agent and the Letter of Credit Issuer (which
documents are hereby consented to by the Lenders). Derivatives of such term have corresponding
meanings. The Parent Borrower hereby grants to the Administrative Agent, for the benefit of the
Letter of Credit Issuer and the L/C Participants, a security interest in all such cash, deposit
accounts and all balances therein and all proceeds of the foregoing. Cash Collateral shall be
maintained in blocked, non-interest bearing deposit accounts with the Administrative Agent.
3.9.
Applicability of ISP and UCP
. Unless otherwise expressly agreed by the L/C
Issuer and the Parent Borrower when a Letter of Credit is issued (including any such agreement
applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby
Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits,
as most recently published by the International Chamber of Commerce at the time of issuance, shall
apply to each commercial Letter of Credit.
3.10.
Conflict with Issuer Documents
. In the event of any conflict between the terms
hereof and the terms of any Issuer Document, the terms hereof shall control.
3.11.
Letters of Credit Issued for Restricted Subsidiaries
. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of
any obligations of, or is for the
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account of, a Restricted Subsidiary, the Parent Borrower shall be
obligated to reimburse the Letter of Credit Issuer hereunder for any and all drawings under such
Letter of Credit. The Parent Borrower hereby acknowledges that the issuance of Letters of Credit
for the account of Restricted Subsidiaries inures to the benefit of the Parent Borrower, and that
the Parent Borrowers business derives substantial benefits from the businesses of such Restricted
Subsidiaries.
SECTION 4.
Fees; Commitments
4.1.
Fees.
(a) The Parent Borrower agrees to pay to the Administrative Agent in Dollars, for the account
of each Revolving Credit Lender (in each case
pro rata
according to the respective Revolving Credit
Commitments of all such Lenders), a commitment fee (the
Commitment Fee
) for each day from the
Closing Date to the Revolving Credit Termination Date. Except as provided below, each Commitment
Fee shall be payable (x) quarterly in arrears on the last Business Day of each March, June,
September and December (for the three-month period (or portion thereof) ended on such day for which
no payment has been received) and (y) on the Revolving Credit Termination Date (for the period
ended on such date for which no payment has been received pursuant to
clause (x)
above),
and shall be computed for each day during such period at a rate
per annum
equal to the Commitment
Fee Rate in effect on such day on the Available Commitment in effect on such day. Notwithstanding
the foregoing, with respect to any Applicable Quarter, on any date during such Applicable Quarter
(I) that is prior to the date on which Section 9.1 Financials are due with respect to the fiscal
quarter immediately preceding such Applicable Quarter and (II) on which any Commitment Fee is
payable on any Available Commitment pursuant to this
subclause (a)
(other than pursuant to
subclause (y)
above) in respect of any period included in such Applicable Quarter, the
amount of such Commitment Fee required to be paid on such date in respect of such Available
Commitment and such period (as to any Available Commitment, a
Commitment Fee Payment
) shall be
reduced by an amount equal to the Reserve Amount with respect to such Commitment Fee for such
period;
provided
that, if the amount of any Commitment Fee Payment on any Available
Commitment shall have been reduced during any Applicable Quarter pursuant to the foregoing
provisions, then, on the date (the
Commitment Fee Gross-Up Date
) that is the earlier of (x) the
Applicable Date in respect of such Applicable Quarter and (y) the date on which all Revolving
Credit Commitments have been terminated in full, the Parent Borrower shall pay an additional
commitment fee on such Available Commitment in an amount equal to the aggregate of the Reserve
Amounts for such Available Commitment so deducted during such Applicable Quarter unless:
(1) the Parent Borrower shall have delivered, at least four Business Days prior to such
Commitment Fee Gross-Up Date, Section 9.1 Financials for the fiscal quarter immediately
preceding such Applicable Quarter and
(2) either:
(A) such Section 9.1 Financials reveal a change in Status that results in a
decrease in the Commitment Fee Rate, in which case, no payment of any such Reserve
Amounts for such Available Commitment shall be required; or
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(B) such Section 9.1 Financials reveal a change in Status that results in an
increase in the Commitment Fee Rate, in which case, the Parent Borrower shall pay
the aggregate of the Reserve Amounts for such Available Commitment for such period
as provided above, and shall also pay an additional commitment fee in respect of
such Available Commitment on such Commitment Fee Gross-Up Date in an amount equal to
the amount (if any) by which (I) the sum of (x) the aggregate amount of all
Commitment Fees actually paid during such Applicable Quarter in respect of such
Available Commitment for any period included therein
plus
(y) the aggregate
of the Reserve Amounts for such Available Commitment for such Applicable Quarter is
less than (II) the aggregate amount of Commitment Fees that would have been payable
on such Available Commitment during such Applicable Quarter in respect of any period
included therein if such change of Status had taken effect on the first day of such
Applicable Quarter.
(b) The Parent Borrower agrees to pay to the Administrative Agent in Dollars for the account
of the Revolving Credit Lenders
pro rata
on the basis of their respective Letter of Credit
Exposure, a fee in respect of each Letter of Credit (the
Letter of Credit Fee
), for the period
from the date of issuance of such Letter of Credit to the termination date of such Letter of Credit
computed at the
per annum
rate for each day equal to the Applicable LIBOR Margin for Revolving
Credit Loans minus 0.125%
per annum
on the average daily Stated Amount of such Letter of Credit
(provided that in no event shall the payment of Letter of Credit Fees in excess of the amounts
payable pursuant to the last two sentences of this
subclause (b)
be required). Except as
provided below, such Letter of Credit Fees shall be due and payable (x) quarterly in arrears on the
last Business Day of each March, June, September and December and (y) on the date upon which the
Total Revolving Credit Commitment terminates and the Letters of Credit Outstanding shall have been
reduced to zero. Notwithstanding the foregoing, with respect to any Applicable Quarter, on any
date during such Applicable Quarter (I) that is prior to the date on which Section 9.1 Financials
are due with respect to the fiscal quarter immediately preceding such Applicable Quarter and (II)
on which any Letter of Credit Fee is payable on any Letter of Credit pursuant to this
subclause
(b)
(other than pursuant to
subclause (y)
above) in respect of any period included in
such Applicable Quarter, the amount of such Letter of Credit Fee required to be paid on such date
in respect of such Letter of Credit for such period (as to any Letter of Credit, an
L/C Fee
Payment
) shall be reduced by an amount equal to the Reserve Amount with respect to such Letter of
Credit Fee for such period;
provided
that, if the amount of any L/C Fee Payment on any
Letter of Credit shall have been reduced during any Applicable Quarter pursuant to the foregoing
provisions, then, on the date (the
L/C Fee Gross-Up Date
) that is the earlier of (x) the
Applicable Date in respect of such Applicable Quarter and (y) the Revolving Credit Termination
Date, the Parent Borrower shall pay an additional letter of credit fee on such Letter of Credit in
an amount equal to the aggregate of the Reserve Amounts for such Letter of Credit so deducted
during such Applicable Quarter unless:
(1) the Parent Borrower shall have delivered, at least four Business Days prior to such
L/C Fee Gross-Up Date, Section 9.1 Financials for the fiscal quarter immediately preceding
such Applicable Quarter and
(2) either:
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(A) such Section 9.1 Financials reveal a change in Status that results in a
decrease in the Letter of Credit Fee rate with respect to such Letter of Credit, in
which case, in lieu of paying the aggregate of the Reserve Amount for such Letter of
Credit for such period as provided above, the Parent Borrower shall pay on such L/C
Fee Gross-Up Date an amount equal to the excess (if any) of (I) the aggregate amount
of Letter of Credit Fees that would have been payable on such Letter of Credit
during such Applicable Quarter in respect of any period included therein if such
change of Status had taken effect on the first day of such Applicable Quarter over
(II) the aggregate amount of all Letter of Credit Fee payments actually made on such
Letter of Credit during such Applicable Quarter in respect of any period included
therein; or
(B) such Section 9.1 Financials reveal a change in Status that results in an
increase in the Letter of Credit Fee rate, in which case, the Parent Borrower shall
pay the aggregate of the Reserve Amounts for such Letter of Credit for such period
as provided above, and shall also pay additional letter of credit fees in respect of
such Letter of Credit on such L/C Fee Gross-Up Date in an amount equal to the amount
(if any) by which (I) the sum of (x) the aggregate amount of all Letter of Credit
Fees actually paid during such Applicable Quarter in respect of such Letter of
Credit for any period included therein
plus
(y) the aggregate of the Reserve
Amounts for such Letter of Credit for such Applicable Quarter is less than (II) the
aggregate amount of Letter of Credit Fees that would have been payable on such
Letter of Credit during such Applicable Quarter in respect of any period included
therein if such change of Status had taken effect on the first day of such
Applicable Quarter.
(c) The Parent Borrower agrees to pay to each Letter of Credit Issuer a fee in Dollars in
respect of each Letter of Credit issued by it (the
Fronting Fee
), for the period from the date of
issuance of such Letter of Credit to the termination date of such Letter of Credit, computed at the
rate for each day equal to 0.125%
per annum
on the average daily Stated Amount of such Letter of
Credit. Such Fronting Fees shall be due and payable (x) quarterly in arrears on the last Business
Day of each March, June, September and December and (y) on the date upon which the Total Revolving
Credit Commitment terminates and the Letters of Credit Outstanding shall have been reduced to zero.
(d) The Parent Borrower agrees to pay directly to the Letter of Credit Issuer in Dollars upon
each issuance of, drawing under, and/or amendment of, a Letter of Credit issued by it such amount
as the Letter of Credit Issuer and the Parent Borrower shall have agreed upon for issuances of,
drawings under or amendments of, letters of credit issued by it.
(e) Notwithstanding the foregoing, the Parent Borrower shall not be obligated to pay any
amounts to any Defaulting Lender pursuant to this
Section 4.1
.
4.2.
Voluntary Reduction of Revolving Credit Commitments
. Upon at least one Business
Days prior written notice (or telephonic notice promptly confirmed in writing) to the
Administrative Agent at the Administrative Agents Office (which notice the Administrative Agent
shall promptly transmit to each of the Lenders), the Parent Borrower (on behalf of itself)
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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, the aggregate
amount of the Lenders Revolving Credit Exposures shall not exceed the Total Revolving Credit
Commitment.
4.3.
Mandatory Termination of Commitments
.
(a) The Tranche A Term Loan Commitments shall terminate at 5:00 p.m. (New York City time) on
the Closing Date.
(b) The Tranche B Term Loan Commitments shall terminate at 5:00 p.m. (New York City time) on
the Closing Date.
(c) The European Tranche Term Loan Commitments shall terminate at 5:00 p.m. (New York City
time) on the Closing Date.
(d) The Revolving Credit Commitment shall terminate at 5:00 p.m. (New York City time) on the
Revolving Credit Maturity Date.
(e) The Swingline Commitment shall terminate at 5:00 p.m. (New York City time) on the
Swingline Maturity Date.
(f) The New Term Loan Commitment for any Series shall, unless otherwise provided in the
applicable Joinder Agreement, terminate at 5:00 p.m. (New York City time) on the Increased Amount
Date for such Series.
SECTION 5.
Payments
5.1.
Voluntary Prepayments
. Each Borrower shall have the right to prepay its Term
Loans, 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) such Borrower shall
give the Administrative Agent at the Administrative Agents Office written notice (or telephonic
notice promptly
confirmed in writing) of its intent to make such prepayment, the amount of such prepayment and
(in the case of LIBOR Loans) the specific Borrowing(s) pursuant to which made, which notice shall
be given by such Borrower no later than 12:00 noon (New York City time) (i) in the case of LIBOR
Loans denominated in Dollars, three Business Days prior to, (ii) in the case of Loans denominated
in an Alternative Currency, four Business Days prior to, (iii) in the case of ABR Loans (other than
Swingline Loans), one Business Day prior to or (iv) in the case of Swingline Loans, on, the date of
such prepayment and shall promptly be transmitted by the Administrative Agent to each of the
Lenders or the Swingline Lender, as the case may be; (b) each partial prepayment of (i) any
Borrowing of LIBOR Loans denominated in Dollars shall be in a minimum amount of $10,000,000 and in
multiples of $1,000,000 in excess thereof, (ii) any ABR Loans (other than Swingline Loans) shall be
in a minimum amount of $1,000,000 and in multiples of $1,000,000 in excess thereof, (iii) any Loans
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denominated in Euro shall be in a minimum amount of
10,000,000 and in multiples of
1,000,000 in excess thereof, (iv) any Loans denominated in Sterling shall be in a minimum
amount of £5,000,000 and in multiples of £1,000,000 in excess thereof and (v) Swingline Loans shall
be in a minimum amount of $500,000 and in multiples of $100,000 in excess thereof,
provided
that no partial prepayment of LIBOR Loans made pursuant to a single Borrowing shall reduce the
outstanding LIBOR Loans made pursuant to such Borrowing to an amount less than the applicable
Minimum Borrowing Amount for such LIBOR Loans and (c) any prepayment of LIBOR Loans pursuant to
this
Section 5.1
on any day other than the last day of an Interest Period applicable
thereto shall be subject to compliance by the Parent Borrower with the applicable provisions of
Section 2.11
. Each prepayment in respect of any Term Loans pursuant to this
Section
5.1
shall be (a) applied to the Class or Classes of Term Loans as the Parent Borrower may
specify and (b) applied to reduce Tranche A Repayment Amounts, Tranche B Repayment Amounts,
European Tranche Repayment Amounts and/or any New Term Loan Repayment Amounts, as the case may be,
in such order as the Parent Borrower may specify. At the Parent Borrowers election in connection
with any prepayment pursuant to this
Section 5.1
, such prepayment shall not be applied to
any Term Loan or Revolving Credit Loan of a Defaulting Lender.
5.2.
Mandatory Prepayments
.
(a)
Term Loan Prepayments
. (i) On each occasion that a Prepayment Event occurs, the
applicable Borrower shall, within three Business Days after its receipt of the Net Cash Proceeds of
a Debt Incurrence Prepayment Event and within seven Business Days after the occurrence of any other
Prepayment Event (or, in the case of Deferred Net Cash Proceeds, within seven Business Days after
the Deferred Net Cash Proceeds Payment Date), prepay, in accordance with
clause (c)
below,
Term Loans with a Dollar Equivalent principal amount equal to 100% of the Net Cash Proceeds from
such Prepayment Event.
(ii) Not later than the date that is ninety days after the last day of any fiscal year
(commencing with and including the fiscal year ending December 31, 2007), the applicable Borrowers
shall prepay, in accordance with
clause (c)
below, Term Loans with a Dollar Equivalent
principal amount equal to (x) 50% of Excess Cash Flow for such fiscal year,
provided
that
(A) the percentage in this
Section 5.2(a)(ii)
shall be reduced to 25% if the ratio of
Consolidated Total Debt on the date of prepayment (prior to giving effect thereto and as certified
by an Au
thorized Officer of the Parent Borrower) to Consolidated EBITDA for the most recent Test
Period ended prior to such prepayment date is less than or equal to 5.5 to 1.0 but greater than 5.0
to 1.0 and (B) no payment of any Term Loans shall be required under this
Section 5.2(a)(ii)
if the ratio of Consolidated Total Debt on the date of prepayment (prior to giving effect thereto
and as certified by an Authorized Officer of the Parent Borrower) to Consolidated EBITDA for the
most recent Test Period ended prior to such prepayment date is less than or equal to 5.0 to 1.00,
minus
(y) the Dollar Equivalent principal amount of Term Loans voluntarily prepaid pursuant
to
Section 5.1
during such fiscal year.
(b)
Repayment of Revolving Credit Loans
. (i) If on any date the aggregate amount of
the Lenders Revolving Credit Exposures (collectively, the
Aggregate Revolving Credit
Outstandings
) for any reason exceeds 100% of the Total Revolving Credit Commitment then in effect,
the Parent Borrower shall forthwith repay on such date the principal amount
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of Swingline Loans and,
after all Swingline Loans have been paid in full, Revolving Credit Loans in an amount equal to such
excess. If, after giving effect to the prepayment of all outstanding Swingline Loans and Revolving
Credit Loans, the Aggregate Revolving Credit Outstandings exceed the Total Revolving Credit
Commitment then in effect, the Parent Borrower shall Cash Collateralize the Letters of Credit
Outstanding to the extent of such excess.
(ii) If on any date the aggregate amount of the Lenders Multicurrency Exposures (collectively,
the
Aggregate Multicurrency Exposures
) for any reason exceeds 105% of the Multicurrency Sublimit
as then in effect, the Parent Borrower shall forthwith repay on such date Revolving Credit Loans
denominated in Alternative Currencies in a principal amount such that, after giving effect to such
repayment, the Aggregate Multicurrency Exposures do not exceed 100% of the Multicurrency Sublimit.
If, after giving effect to the prepayment of all outstanding Revolving Credit Loans denominated in
Alternative Currencies, the Aggregate Multicurrency Exposures exceed 100% of the Multicurrency
Sublimit, the Parent Borrower shall Cash Collateralize the Letters of Credit Outstanding in respect
of Letters of Credit denominated in Alternative Currencies to the extent of such excess.
(c)
Application to Repayment Amounts
. Subject to
Section 5.2(h)
, each
prepayment of Term Loans required by
Section 5.2(a)(i)
or
(ii)
shall, prior to the
date that is three years after the Closing Date, be allocated using Dollar Equivalent amounts
pro
rata
among the Tranche A Term Loans, the Tranche B Term Loans and European Tranche Term Loans based
on the applicable remaining Repayment Amounts due thereunder during such period and shall be
applied to reduce such Repayment Amounts in the direct order of maturity thereof. Subject to
Section 5.2(h)
, from and after the date that is three years after the Closing Date, each
prepayment of Term Loans pursuant to
Section 5.2(a)(i)
or
(ii)
shall be allocated
pro rata
among the Tranche A Term Loans, the Tranche B Term Loans and the European Tranche Term
Loans based on the applicable remaining Repayment Amounts due thereunder and shall be applied (x)
in the case of Tranche A Term Loans, to reduce the respective Tranche A Repayment Amounts on a
pro
rata
basis and (y) in the case of Tranche B Term Loans and European Tranche Term Loans, first, to
the next eight unpaid Repayment Amounts due in respect of such Term Loans in direct order of
maturity thereof, and, second, on a
pro rata
basis among the remaining unpaid Repayment Amounts due
in respect of such Term Loans. Subject to
Section 5.2(h)
, with respect to each such
prepayment, the applicable Borrower will, not later than the date specified in
Section
5.2(a)
for making such prepayment, give the Administrative Agent telephonic notice (promptly
confirmed
in writing and which shall include a calculation of the amount of such prepayment to be
applied to each Class of Term Loans) requesting that the Administrative Agent provide notice of
such prepayment to each Tranche A Term Loan Lender, Tranche B Term Loan Lender or European Tranche
Term Loan Lender, as applicable.
(d)
Application to Term Loans
. With respect to each prepayment of Term Loans required
by
Section 5.2(a)
, the Parent Borrower may, if applicable, designate the Types of Loans
that are to be prepaid and the specific Borrowing(s) pursuant to which made. In the absence of a
designation by the Parent Borrower as described in the preceding sentence, the Administrative Agent
shall, subject to the above, make such designation in its reasonable discretion with a view, but no
obligation, to minimize breakage costs owing under
Section 2.11
.
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(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 applicable
Borrower at its option may deposit with the Administrative Agent an amount in the applicable
currency equal to the amount of the LIBOR Loan to be prepaid and such LIBOR Loan shall be repaid on
the last day of the Interest Period therefor in the required amount. Such deposit shall be held by
the Administrative Agent in a corporate time deposit account established on terms reasonably
satisfactory to the Administrative Agent, earning interest at the then-customary rate for accounts
of such type. Such deposit shall constitute cash collateral for the LIBOR Loans to be so prepaid,
provided
that the applicable Borrower may at any time direct that such deposit be applied
to make the applicable payment required pursuant to this
Section 5.2
.
(g)
Minimum Amount
. No prepayment shall be required pursuant to
Section
5.2(a)(i)
(i) in the case of any Disposition yielding Net Cash Proceeds of less than $1,000,000
in the aggregate and (ii) unless and until the amount at any time of Net Cash Proceeds from
Prepayment Events required to be applied at or prior to such time pursuant to such Section and not
yet applied at or prior to such time to prepay Term Loans pursuant to such Section exceeds (x)
$10,000,000 for a single Prepayment Event or (y) $50,000,000 in the aggregate for all Prepayment
Events (other than those which are either under the threshold specified in
subclause (i)
or
over the threshold specified in
subclause (ii)(x)
) in any one fiscal year, at which time
all such Net Cash Proceeds referred to in this
subclause (y)
with respect to such fiscal
year shall be applied as a prepayment in accordance with this
Section 5.2
.
(h)
Foreign Asset Sales
. Notwithstanding any other provisions of this
Section
5.2
, (I) until all European Tranche Term Loans have been repaid in full, Net Cash Proceeds of a
Casualty Event or any asset sale by a Restricted Foreign Subsidiary giving rise to an Asset Sale
Prepayment Event (a
Foreign Asset Sale
) shall be allocated first to the European Tranche Term
Loans and until the date that is three years after the Closing Date shall be applied to reduce the
Repayment Amounts of the European Tranche Term Loans in the direct order of maturity thereof and
from and after the date that is three years after the Closing Date first to the next eight unpaid
Repayment Amounts due in respect of the European Tranche Term Loans and second on a
pro rata
basis
among the remaining unpaid Repayment Amounts due in respect of the European Tranche Term Loans, and
(II) after all European Tranche Term Loans have been repaid in full, and at any time in the case of
any Excess Cash Flow, (i) to the extent that any or all of the Net Cash Proceeds from a Foreign
Asset Sale or any amount included in Excess Cash Flow and
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attributable to Foreign Subsidiaries are
prohibited or delayed by applicable local law from being repatriated to the United States, such
portion of the Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied
to repay Tranche A Term Loans or Tranche B Term Loans at the times provided in this
Section
5.2
but may be retained by the applicable Restricted Foreign Subsidiary so long, but only so
long, as the applicable local law will not permit repatriation to the United States (the Parent
Borrower hereby agreeing to cause the applicable Restricted Foreign Subsidiary to promptly take all
actions required by the applicable local law to permit such repatriation), and once such
repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the
applicable local law, such repatriation will be immediately effected and such repatriated Net Cash
Proceeds will be promptly (and in any event not later than two Business Days after such
repatriation) applied (net of additional taxes payable or reserved against as a result thereof) to
the repayment of the Tranche A Term Loans and Tranche B Term Loans as required pursuant to this
Section 5.2
and (ii) to the extent that the Parent Borrower has determined in good faith
that repatriation of any of or all the Net Cash Proceeds of any Foreign Asset Sale or Excess Cash
Flow would have a material adverse tax consequence with respect to such Net Cash Proceeds or Excess
Cash Flow, the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable
Restricted Foreign Subsidiary,
provided
that, in the case of this
clause (ii)
, on
or before the date on which any Net Cash Proceeds or Excess Cash Flow so retained would otherwise
have been required to be applied to reinvestments or prepayments pursuant to
Section
5.2(a)
, (x) the Parent Borrower applies an amount equal to such Net Cash Proceeds or Excess
Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had
been received by the Parent Borrower rather than such Restricted Foreign Subsidiary, less the
amount of additional taxes that would have been payable or reserved against if such Net Cash
Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess
Cash Flow that would be calculated if received by such Foreign Subsidiary) or (y) such Net Cash
Proceeds or Excess Cash Flow are applied to the repayment of Indebtedness of a Restricted Foreign
Subsidiary.
5.3.
Method and Place of Payment
.
(a) Except as otherwise specifically provided herein, all payments under this Agreement shall
be made by the applicable Borrower, without set-off, counterclaim or deduction of any kind, to the
Administrative Agent for the ratable account of the Lenders entitled thereto,
the Letter of Credit Issuer or the Swingline Lender entitled thereto, as the case may be, not
later than 2:00 p.m. (New York City time), in each case, on the date when due and shall be made in
immediately available funds at the Administrative Agents Office or at such other office as the
Administrative Agent shall specify for such purpose by notice to the applicable Borrower, it being
understood that written or facsimile notice by the applicable Borrower to the Administrative Agent
to make a payment from the funds in the Parent Borrowers account at the Administrative Agents
Office shall constitute the making of such payment to the extent of such funds held in such
account. All repayments or prepayments of any Loans (whether of principal, interest or otherwise)
hereunder shall be made in the currency in which such Loans are denominated and all other payments
under each Credit Document shall, unless otherwise specified in such Credit Document, be made in
Dollars. The Administrative Agent will thereafter cause to be distributed on the same day (if
payment was actually received by the Administrative Agent prior to 2:00 p.m. (New York City time)
or, otherwise, on the next Business Day) like funds relating to the payment of principal or
interest or Fees ratably to the Lenders entitled thereto.
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(b) Any payments under this Agreement that are made later than 2:00 p.m. (New York City time)
shall be deemed to have been made on the next succeeding Business Day. Whenever any payment to be
made hereunder shall be stated to be due on a day that is not a Business Day, the due date thereof
shall be extended to the next succeeding Business Day and, with respect to payments of principal,
interest shall be payable during such extension at the applicable rate in effect immediately prior
to such extension.
5.4.
Net Payments
.
(a) Any and all payments made by or on behalf of any Borrower or any Guarantor under this
Agreement or any other Credit Document shall be made free and clear of, and without deduction or
withholding for or on account of, any Indemnified Taxes
;
provided
that if any Borrower or
any Guarantor shall be required by applicable Requirements of Law to deduct or withhold any
Indemnified Taxes from such payments, then (i) the sum payable shall be increased as necessary so
that after making all required deductions and withholdings (including deductions or withholdings
applicable to additional sums payable under this
Section 5.4
) the Administrative Agent, the
Collateral Agent or any Lender, as the case may be, receives an amount equal to the sum it would
have received had no such deductions or withholdings been made, (ii) the applicable Borrower or
such Guarantor shall make such deductions or withholdings and (iii) the applicable Borrower or such
Guarantor shall timely pay the full amount deducted or withheld to the relevant Governmental
Authority within the time allowed and in accordance with applicable Requirements of Law. Whenever
any Indemnified Taxes are payable by any Borrower or Guarantor, as promptly as possible thereafter,
such Borrower or Guarantor shall send to the Administrative Agent for its own account or for the
account of such Lender, as the case may be, a certified copy of an original official receipt (or
other evidence acceptable to such Lender, acting reasonably) received by such Borrower or Guarantor
showing payment thereof.
(b) With respect to the European Tranche Term Loan, the Borrower or Guarantor is not required
to make an increased payment or indemnity payment to the Administrative Agent, the Collateral Agent
or any Lender under
clauses (a)
or
(d)
of this
Section 5.4
for any deduction or withholding or payment for or on account of any Indemnified Taxes where that Tax is
imposed by the United Kingdom from a payment of interest on a Loan if on the date on which the
payment falls due:
(i) the payment could have been made to the relevant Administrative Agent, the
Collateral Agent and the Lender without a deduction or withholding for or an account
of Taxes if it was a Qualifying Lender, but on that date that Lender is not or has
ceased to be a Qualifying Lender other than as a result of any Change in Law after
the date it became an Administrative Agent, Collateral Agent or a Lender under this
Agreement or other Credit Document; or
(ii)
(A) the relevant Lender is a Qualifying Lender solely under
subclause (i)(B)
of the definition of Qualifying Lender; and
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(B) the Board of the Inland Revenue has given (and not revoked) a
direction (a
Direction
) under section 349C of the Taxes Act (as that
provision has effect on the date on which the relevant Lender became a
Party) which relates to that payment and that Lender has received from that
Borrower or Guarantor a certified copy of that Direction; and
(C) the payment could have been made to the Administrative Agent,
Collateral Agent or Lender without any deduction or withholding for or on
account of the Indemnified Taxes in the absence of that Direction; or
(iii) the relevant Lender is a Qualifying Lender solely under
subclause
(i)(B)
of the definition of Qualifying Lender and it has not, other than by
reason of any change after the date of this Agreement or other Credit Document in
(or in the interpretation, administration, or application of) any law, or any
published practice or concession of any relevant Governmental Authority, given a Tax
Confirmation to a Borrower or Guarantor;
(iv) the relevant Lender is a Treaty Lender and the Borrower or Guarantor
making the payment is able to demonstrate that the payment could have been made to
that Lender without the deduction or withholding for or on account of any
Indemnified Taxes had that Lender complied with its obligations under
clause
(f)
below.
(c) The Borrowers shall timely pay and shall indemnify and hold harmless the Administrative
Agent, each Collateral Agent and each Lender (whether or not such Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental Authority) with regard to any Other Taxes.
(d) Subject to any limitation described in
Section 5.4(b)
, the Borrowers shall
indemnify and hold harmless the Administrative Agent, the Collateral Agent and each Lender within
15 Business Days after written demand therefor, for the full amount of any Indemnified
Taxes imposed on the Administrative Agent, the Collateral Agent or such Lender as the case may
be, on or with respect to any payment by or on account of any obligation of any Borrower or any
Guarantor hereunder or under any other Credit Document (including Indemnified Taxes imposed or
asserted on or attributable to amounts payable under this
Section 5.4
) and any reasonable
expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate
setting forth reasonable detail as to the amount of such payment or liability delivered to the
Parent Borrower by a Lender, the Administrative Agent or the Collateral Agent (as applicable) on
its own behalf or on behalf of a Lender shall be conclusive absent manifest error.
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(e) Each Non-U.S. Lender with respect to the Tranche A Term Loan, Tranche B Term Loan or any
other Loan made to the Parent Borrower shall, to the extent it is legally entitled to do so:
(i) deliver to the Parent Borrower and the Administrative Agent two copies of either
(x) in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding tax
under Section 871(h) or 881(c) of the Code with respect to payments of portfolio interest,
United States Internal Revenue Service Form W-8BEN (together with a certificate representing
that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the Code, is not a
10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the
Parent Borrower and is not a controlled foreign corporation related to the Parent Borrower
(within the meaning of Section 864(d)(4) of the Code)), or (y) Internal Revenue Service Form
W-8BEN or Form W-8ECI, in each case properly completed and duly executed by such Non-U.S.
Lender claiming complete exemption from, or reduced rate of, U.S. Federal withholding tax on
payments by the Parent Borrower under this Agreement; and
(ii) deliver to the Parent Borrower and the Administrative Agent two further copies of
any such form or certification (or any applicable successor form) on or before the date that
any such form or certification expires or becomes obsolete and after the occurrence of any
event requiring a change in the most recent form previously delivered by it to the Parent
Borrower;
unless in any such case any Change in Law has occurred prior to the date on which any such delivery
would otherwise be required that renders any such form inapplicable or would prevent such Non-U.S.
Lender from duly completing and delivering any such form with respect to it and such Non-U.S.
Lender promptly so advises the Parent Borrower and the Administrative Agent. Each Person that
shall become a Participant pursuant to
Section 14.6
or a Lender pursuant to
Section
14.6
shall, upon the effectiveness of the related transfer, be required to provide all the
forms and statements required pursuant to this
Section 5.4(e)
,
provided
that in the
case of a Participant such Participant shall furnish all such required forms and statements to the
Lender from which the related participation shall have been purchased.
(f) Each Lender and Agent (including, for the avoidance of doubt, any Treaty Lender and Agent)
that is entitled to an exemption from or reduction of non-U.S. withholding tax under the laws of
the jurisdiction in which any Borrower or Guarantor is organized, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement or any other
Credit Document by such Borrower or Guarantor shall deliver to such Borrower or Guarantor
(with a copy to the applicable Administrative Agent), as applicable, at the time or times
prescribed by applicable law and as reasonably requested by such Borrower or Guarantor, as
applicable, such properly completed and executed documentation prescribed by applicable law as will
permit such payments to be made without such withholding or at such reduced rate,
provided
that such Lender or Agent is legally entitled to complete, execute and deliver such documentation
and such documentation is necessary in order for such exemption or reduction to apply.
(g) Notwithstanding anything to the contrary in this Agreement or any Credit Document, each
European Tranche Term Loan Lender shall:
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(i) deliver to the European Subsidiary Borrower and the Administrative Agent on or
before the date it becomes a party to this Agreement two copies of either (w) in the case of
a European Tranche Term Loan Lender that is able to claim exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of
portfolio interest, United States Internal Revenue Service Form W-8BEN (together with a
certificate representing that such European Tranche Term Loan Lender is not a bank for
purposes of Section 881(c) of the Code, is not a 10-percent shareholder (within the meaning
of Section 871(h)(3)(B) of the Code) of the Parent Borrower or the European Subsidiary
Borrower and is not a controlled foreign corporation related to the Parent Borrower or the
European Subsidiary Borrower (within the meaning of Section 864(d)(4) of the Code)), (x) in
the case of a European Tranche Term Loan Lender that would be entitled to a complete
exemption from U.S. federal withholding tax with respect to payments of interest under an
applicable income tax treaty with the United States, Internal Revenue Service Form W-8BEN
claiming such complete exemption, (y) in the case of a European Tranche Term Loan Lender
that would be entitled to a complete exemption from U.S. federal withholding tax with
respect to payments of interest because such payments are effectively connected with such
Lenders conduct of a United States trade or business, Internal Revenue Service Form W-8ECI, or (z) in the case of a European Tranche Term Loan Lender that is a United States person
under Section 7701(a)(30) of the Code, United States Internal Revenue Service Form W-9 (or
substitute or successor form), in each case properly completed and duly executed; and
(ii) deliver to the European Subsidiary Borrower and the Administrative Agent two
further copies of any such form or certification (or any applicable successor form) on or
before the date that any such form or certification expires or becomes obsolete and after
the occurrence of any event requiring a change in the most recent form previously delivered
by it to the European Subsidiary Borrower unless such Lender is no longer legally entitled
to provide such form due to a Change in Law after the Lender became a Lender;
(h) If any Lender, the Administrative Agent or the Collateral Agent, as applicable,
determines, in its sole discretion, that it had received and retained a refund of an Indemnified
Tax or Other Tax for which a payment has been made by any Borrower pursuant to this Agreement,
which refund in the good faith judgment of such Lender, the Administrative Agent or the Collateral
Agent, as the case may be, is attributable to such payment made by such Bor
rower, 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
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Collateral Agent shall claim any refund that it determines is available to it, unless it concludes in its sole
discretion that it would be adversely affected by making such a claim. Neither the Lender, the
Administrative Agent nor the Collateral Agent shall be obliged to disclose any information
regarding its tax affairs or computations to any Credit Party in connection with this
clause
(h)
or any other provision of this
Section 5.4
.
(i) If the Parent Borrower determines that a reasonable basis exists for contesting a Tax,
each Lender or Agent, as the case may be, shall use reasonable efforts to cooperate with the
Borrowers as the Parent Borrower may reasonably request in challenging such Tax. Subject to the
provisions of
Section 2.12
, each Lender and Agent agree to use reasonable efforts to
cooperate with the Borrowers as the Parent Borrower may reasonably request to minimize any amount
payable by any Borrower or Guarantor pursuant to this
Section 5.4
. The Borrowers shall
indemnify and hold each Lender and Agent harmless against any out-of-pocket expenses incurred by
such Person in connection with any request made by Parent Borrower pursuant to this
Section
5.4(h)
. Nothing in this
Section 5.4(i)
shall obligate any Lender or Agent to take any
action that such Person, in its sole judgment, determines may result in a material detriment to
such Person.
(j) Each Lender and Agent with respect to the Tranche A Term Loan, Tranche B Term Loan and any
other Loan made to the Parent Borrower that is a United States person under Section 7701(a)(30) of
the Code shall, at the reasonable request of the Parent Borrower or the Administrative Agent,
deliver to the Parent Borrower and the Administrative Agent two United States Internal Revenue
Service Form W-9 (or substitute or successor form), properly completed and duly executed,
certifying that such Lender or Agent is exempt from United States backup withholding;
provided
, that for the avoidance of doubt, the failure to deliver such forms shall not
subject any Lender that may be treated as an exempt recipient based on the indicators described in
Treasury Regulation 1.6049-4(c)(i)(ii) to backup withholding.
(k) Any amount payable under this Agreement or any other Credit Document by a Borrower or a
Guarantor is exclusive of any value added tax or any other Tax of a similar nature which might be
chargeable in connection with that amount. If any such Tax is chargeable, the Borrower or
Guarantor, as the case may be, must pay to the Administrative Agent, Collateral Agent or Lender, as
the case may be, (in addition to and at the same time as paying that amount) an amount equal to the
amount of that Tax.
(l) Where this Agreement or any other Credit Document requires any party to this Agreement or
any Credit Document, as the case may be, to reimburse the Administrative Agent, the Collateral
Agent or a Lender for any costs or expenses, that party must also at the same time pay and
indemnify the Administrative Agent, Collateral Agent, or Lender, as the case may be against all
value added tax or any other Tax of a similar nature incurred by the Administrative Agent, the
Collateral Agent or a Lender in respect of the costs and expenses to the extent that the
Administrative Agent, Collateral Agent or Lender acting reasonably determines that it is not
entitled to a credit or repayment from the relevant tax authority in respect of that tax.
(m) The Administrative Agent, Collateral Agent or a Lender, in each case, who is a Qualifying
Lender solely under sub-paragraph (i)(B) of the definition of Qualifying Lender on the day on which
this Agreement or any other Credit Document, as the case may be, is
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entered into gives a Tax Confirmation to the European Subsidiary Borrower and Guarantors by
entering into this Agreement or any other Credit Document, as the case may be.
(n) The agreements in this
Section 5.4
shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
5.5.
Computations of Interest and Fees
.
(a) Except as provided in the next succeeding sentence, interest on LIBOR Loans and ABR Loans
shall be calculated on the basis of a 360-day year for the actual days elapsed. Interest on ABR
Loans in respect of which the rate of interest is calculated on the basis of the Administrative
Agents prime rate, interest on LIBOR Loans denominated in Sterling and interest on overdue
interest shall be calculated on the basis of a 365- (or 366-, as the case may be) day year for the
actual days elapsed.
(b) Fees and the average daily Stated Amount of Letters of Credit shall be calculated on the
basis of a 360-day year for the actual days elapsed.
5.6.
Limit on Rate of Interest
.
(a)
No Payment Shall Exceed Lawful Rate
. Notwithstanding any other term of this
Agreement, the Borrowers shall not be obliged to pay any interest or other amounts under 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.
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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 each
Borrower and each Lender;
(b) the Guarantees, executed and delivered by a duly authorized officer of each
Guarantor;
(c) the U.S. Pledge Agreement, executed and delivered by a duly authorized officer of
each pledgor party thereto;
(d) the U.S. Security Agreement, executed and delivered by a duly authorized officer of
each grantor party thereto;
(e) the European Security Agreement and the other documents listed on
Schedule
1.1(i)
, executed and delivered by a duly authorized officer of each pledgor, grantor or
chargor party thereto; and
(f) the Intercreditor Agreements, executed and delivered by a duly authorized officer
of the applicable Credit Parties and of the Collateral Agent and the other agents party
thereto.
6.2.
Collateral
. Except for any items referred to on
Schedule 9.14(e)
:
(a) (x) All outstanding equity interests in whatever form of each Restricted Subsidiary
directly owned by or on behalf of any U.S. Credit Party and required to be pledged pursuant to the
U.S. Pledge Agreement shall have been pledged pursuant thereto and (y) the Collateral Agent shall
have received all certificates representing securities pledged under the U.S. Pledge Agreement to
the extent certificated, accompanied by instruments of transfer and undated stock powers endorsed
in blank;
(b) All documents and instruments, including Uniform Commercial Code or other applicable
personal property and 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 Document
and perfect such Liens to the extent required by, and with the priority required by, such Security
Document shall have been delivered to the Collateral Agent for filing, registration or recording;
and
(c) The Parent Borrower shall deliver 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.
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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 H-1
, (b) Robert A. Waterman, General Counsel of the
Parent Borrower, substantially in the form of
Exhibit H-2
, (c) local counsel to the
Administrative Agent in the jurisdictions listed on
Schedule 6.3(a)
in form and substance
satisfactory to the Administrative Agent and (d) local counsel to the Borrowers and the
Administrative Agent in the jurisdictions listed on
Schedule 6.3(b
) 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.
Contemporaneous Debt Financings and Repayments
. (i) The Parent Borrower shall
have received gross proceeds of $5,700,000,000 from the issuance of Senior Second Lien Notes under
the Senior Second Lien Notes Indenture, (ii) the Parent Borrower and the applicable borrowers and
guarantors thereunder shall have entered into the ABL Facility providing for revolving borrowings
in an aggregate principal amount of up to $2,000,000,000, and (iii) the Debt Repayment (other than
any portion thereof to occur on a later date in accordance with the tender offers therefor) shall
have occurred substantially contemporaneously with the initial extensions of credit hereunder.
6.5.
Equity Investments
. Equity Investments in an amount not less than the Minimum
Equity Amount shall have been made.
6.6.
Closing Certificates
. The Administrative Agent shall have received a certificate of the U.S. Credit Parties,
dated the Closing Date, substantially in the form of
Exhibit I
, with appropriate
insertions, executed by the President or any Vice President and the Secretary or any Assistant
Secretary of each U.S. Credit Party, and attaching the documents referred to in
Section
6.7
. The Administrative Agent shall have received with respect to each European Credit Party,
such certificates and evidences of authority and authorization with respect to the European Credit
Parties as are set forth on
Schedule 1.1(i)
.
6.7.
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 U.S. 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 the Parent Borrower, the extensions of credit contemplated hereunder.
6.8.
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 prior to the Closing Date shall have been paid.
6.9.
Representations and Warranties
. On the Closing Date, the representations and
warranties made by the Credit Parties in
Section 8.2
,
Section 8.5
,
Section
8.7
and
Section 8.17
, as they relate to the Credit Parties at such time, shall be true
and correct in all material respects.
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6.10.
Related Agreements
. The Administrative Agent shall have received a fully
executed or conformed copy of the Acquisition Agreement which shall be in full force and effect.
6.11.
Solvency Certificate
. On the Closing Date, the Administrative Agent shall have
received a certificate from an Authorized Officer of the Parent Borrower to the effect that after
giving effect to the consummation of the Transactions, the Parent Borrower on a consolidated basis
with its Subsidiaries is Solvent.
6.12.
Merger
. Concurrently with the initial Credit Event hereunder, the Merger shall
have been consummated in accordance with the terms of the Acquisition Agreement (or the Lead
Arrangers shall be reasonably satisfied with the arrangements in place for the consummation of the
Merger reasonably promptly after the initial Credit Event hereunder and shall have received confirmation from representatives of the Parent Borrower that such actions shall be taken
promptly after the initial Credit Event hereunder), without giving effect to any amendments or
waivers thereto that are materially adverse to the Lenders without the reasonable consent of the
Joint Lead Arrangers.
6.13.
Pro Forma Balance Sheet
. The Administrative Agent shall have received a pro
forma consolidated balance sheet of HCA as of the last day of the most recently completed fiscal
quarter ended prior to the Closing Date, after giving effect to the Transactions, together with a
certificate of an Authorized Officer of the Parent Borrower to the effect that such statement
accurately presents the pro forma consolidated financial position of HCA in accordance with GAAP.
6.14.
No Material Adverse Change
. No Material Adverse Change shall have occurred
since December 31, 2005.
SECTION 7.
Conditions Precedent to All Credit Events
The agreement of each Lender to make any Loan requested to be made by it on any date
(excluding Mandatory Borrowings and Revolving Credit Loans required to be made by the Revolving
Credit Lenders in respect of Unpaid Drawings pursuant to
Sections 3.3
and
3.4
) and
the obligation of the Letter of Credit Issuer to issue Letters of Credit on any date is subject to
the satisfaction of the following conditions precedent:
7.1.
No Default; Representations and Warranties
. At the time of each Credit Event and
also after giving effect thereto (other than any Credit Event on the Closing Date) (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).
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7.2.
Notice of Borrowing; Letter of Credit Request
.
(a) Prior to the making of each Term Loan, the Administrative Agent shall have received a
Notice of Borrowing (whether in writing or by telephone) meeting the requirements of
Section
2.3
.
(b) Prior to the making of each Revolving Credit Loan (other than any Revolving Credit Loan
made pursuant to
Section 3.4(a)
) and each Swingline Loan, the Administrative Agent shall
have received a Notice of Borrowing (whether in writing or by telephone) meeting the requirements
of
Section 2.3
.
(c) Prior to the issuance of each Letter of Credit, the Administrative Agent and the Letter of
Credit Issuer shall have received a Letter of Credit Request meeting the requirements of
Section 3.2(a)
.
The acceptance of the benefits of each Credit Event shall constitute a representation and warranty
by each Credit Party to each of the Lenders that all the applicable conditions specified in
Section 7
above have been satisfied as of that time.
SECTION 8.
Representations, Warranties and Agreements
In order to induce the Lenders to enter into this Agreement, to make the Loans and issue or
participate in Letters of Credit as provided for herein, each Borrower makes the following
representations and warranties to, and agreements with, the Lenders, all of which shall survive the
execution and delivery of this Agreement and the making of the Loans and the issuance of the
Letters of Credit (it being understood that the following representations and warranties shall be
deemed made with respect to any Foreign Subsidiary only to the extent relevant under applicable
law):
8.1.
Corporate Status
. Each Borrower and each Material Subsidiary (a) is a duly
organized and validly existing corporation or other entity in good standing under the laws of the
jurisdiction of its organization and has the corporate or other organizational power and authority
to own its property and assets and to transact the business in which it is engaged and (b) has duly
qualified and is authorized to do business and is in good standing (if applicable) in all
jurisdictions where it is required to be so qualified, except where the failure to be so qualified
could not reasonably be expected to result in a Material Adverse Effect.
8.2.
Corporate Power and Authority
. Each Credit Party has the corporate or other
organizational power and authority to execute, deliver and carry out the terms and provisions of
the Credit Documents to which it is a party and has taken all necessary corporate or other
organizational action to authorize the execution, delivery and performance of the Credit Documents
to which it is a party. Each Credit Party has duly executed and delivered each Credit Document to
which it is a party and each such Credit Document constitutes the legal, valid and binding
obligation of such Credit Party enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors rights generally and subject to general principles of equity.
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8.3.
No Violation
. Neither the execution, delivery or performance by any Credit Party
of the Credit Documents to which it is a party nor compliance with the terms and provisions thereof
nor the consummation of the Merger and the other transactions contemplated hereby or thereby will
(a) contravene any applicable provision of any material law, statute, rule, regulation, order,
writ, injunction or decree of any court or governmental instrumentality, (b) result in any breach
of any of the terms, covenants, conditions or provisions of, or constitute a default under, or
result in the
creation or imposition of (or the obligation to create or impose) any Lien upon any of the
property or assets of such Credit Party or any of the Restricted Subsidiaries (other than Liens
created under the Credit Documents or Liens subject to the Intercreditor Agreements) pursuant to,
the terms of any material indenture, loan agreement, lease agreement, mortgage, deed of trust,
agreement or other material instrument to which such Credit Party or 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 any Borrower,
threatened with respect to the Parent Borrower or any of its Subsidiaries that could reasonably be
expected to result in a Material Adverse Effect.
8.5.
Margin Regulations
. Neither the making of any Loan hereunder nor the use of the
proceeds thereof will violate the provisions of Regulation T, U or X of the Board.
8.6.
Governmental Approvals
. The execution, delivery and performance of the
Acquisition Agreement or any Credit Document do not require any consent or approval of,
registration or filing with, or other action by, any Governmental Authority, except for (i) such as
have been obtained or made and are in full force and effect, (ii) filings and recordings in respect
of the Liens created pursuant to the Security Documents and (iii) such licenses, approvals,
authorizations or consents the failure to obtain or make could not reasonably be expected to have a
Material Adverse Effect.
8.7.
Investment Company Act
. No Borrower is an investment company within the
meaning of the Investment Company Act of 1940, as amended.
8.8.
True and Complete Disclosure
.
(a) None of the written factual information and written data (taken as a whole) heretofore or
contemporaneously furnished by or on behalf of any Borrower, any of the Subsidiaries or any of
their respective authorized representatives to the Administrative Agent, any Joint Lead Arranger,
and/or any Lender on or before the Closing Date (including all such information and data contained
in (i) the Confidential Information Memorandum (as updated prior to the Closing Date) and (ii) the
Credit Documents) for purposes of or in connection with this Agreement or any transaction
contemplated herein contained any untrue statement of any material fact or omitted to state any
material fact necessary to make such information and data (taken as a
whole) not misleading at such time in light of the circumstances under which such information
or data was furnished, it being understood and agreed that for purposes of this
Section
8.8(a)
, such
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factual information and data shall not include projections (including financial
estimates, forecasts and other forward-looking information) and information of a general economic
or general industry nature.
(b) The projections (including financial estimates, forecasts and other forward-looking
information) contained in the information and data referred to in
clause (a)
above were
based on good faith estimates and assumptions believed by such Persons to be reasonable at the time
made, it being recognized by the Lenders that such projections as to future events are not to be
viewed as facts and that actual results during the period or periods covered by any such
projections may differ from the projected results.
8.9.
Financial Condition; Financial Statements
. (a) The unaudited historical
consolidated financial information of HCA as set forth in the Confidential Information Memorandum,
and (b) the Historical Financial Statements, in each case present fairly in all material respects
the consolidated financial position of HCA at the respective dates of said information, statements
and results of operations for the respective periods covered thereby. The financial statements
referred to in
clause (b)
of this
Section 8.9
have been prepared in accordance with
GAAP consistently applied except to the extent provided in the notes to said financial statements.
After the Closing Date, there has been no Material Adverse Effect since December 31, 2005.
8.10.
Tax Matters
. Each of the Parent Borrower and the Subsidiaries has filed all
federal income tax returns and all other material tax returns, domestic and foreign, required to be
filed by it and all such tax returns are true and correct in all material respects and has paid all
material taxes payable by it that have become due, other than those (a) not yet delinquent or (b)
contested in good faith as to which adequate reserves have been provided to the extent required by
law and in accordance with GAAP and which could not reasonably be expected to result in a Material
Adverse Effect. Each Borrower and each of the Subsidiaries have paid, or have provided adequate
reserves to the extent required by law and in accordance with GAAP for the payment of, all material
federal, state, provincial and foreign taxes applicable for the current fiscal year to the Closing
Date.
8.11.
Compliance with ERISA
.
(a) Each Plan is in compliance with ERISA, the Code and any applicable Requirement of Law; no
Reportable Event has occurred (or is reasonably likely to occur) with respect to any Plan; no Plan
is insolvent or in reorganization (or is reasonably likely to be insolvent or in reorganization),
and no written notice of any such insolvency or reorganization has been given to the Parent
Borrower or any ERISA Affiliate; no Plan (other than a multiemployer plan) has an accumulated or
waived funding deficiency (or is reasonably likely to have such a deficiency); none of the Parent
Borrower or any ERISA Affiliate has incurred (or is reasonably
likely to incur) any liability to or on account of a Plan pursuant to Section 409, 502(i),
502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of the Code or
has been notified in writing that it will incur any liability under any of the foregoing Sections
with respect to any Plan; no proceedings have been instituted (or are reasonably likely to be
instituted) to terminate or to reorganize any Plan or to appoint a trustee to administer any Plan,
and no written notice of any such proceedings has been given to the Parent Borrower or any ERISA
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Affiliate; and no lien imposed under the Code or ERISA on the assets of the Parent Borrower or any
ERISA Affiliate exists (or is reasonably likely to exist) nor has the Parent Borrower or any ERISA
Affiliate been notified in writing that such a lien will be imposed on the assets of the Parent
Borrower or any ERISA Affiliate on account of any Plan, except to the extent that a breach of any
of the representations, warranties or agreements in this
Section 8.11(a)
would not result,
individually or in the aggregate, in an amount of liability that would be reasonably likely to have
a Material Adverse Effect. No Plan (other than a multiemployer plan) has an Unfunded Current
Liability that would, individually or when taken together with any other liabilities referenced in
this
Section 8.11(a)
, be reasonably likely to have a Material Adverse Effect. With respect
to Plans that are multiemployer plans (as defined in Section 3(37) of ERISA), the representations
and warranties in this
Section 8.11(a)
, other than any made with respect to (i) liability
under Section 4201 or 4204 of ERISA or (ii) liability for termination or reorganization of such
Plans under ERISA, are made to the best knowledge of each Borrower.
(b) All Foreign Plans are in compliance with, and have been established, administered and
operated in accordance with, the terms of such Foreign Plans and applicable law, except for any
failure to so comply, establish, administer or operate the Foreign Plans as would not reasonably be
expected to have a Material Adverse Effect. All contributions or other payments which are due with
respect to each Foreign Plan have been made in full and there are no funding deficiencies
thereunder, except to the extent any such events would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
8.12.
Subsidiaries
.
Schedule 8.12
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
.
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.
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(b) Neither the Parent Borrower nor any of the Subsidiaries has treated, stored, transported,
released or disposed or arranged for disposal or transport for disposal of Hazardous Materials at,
on, under or from any currently or formerly owned or leased Real Estate or facility in a manner
that could reasonably be expected to have a Material Adverse Effect.
8.15.
Properties
.
(a) The Parent Borrower and each of the Subsidiaries have good and marketable title to or
leasehold interests in all properties that are necessary for the operation of their respective
businesses as currently conducted and as proposed to be conducted, free and clear of all Liens
(other than any Liens permitted by this Agreement) and except where the failure to have such good
title could not reasonably be expected to have a Material Adverse Effect and (b) no Mortgage
encumbers improved Real Estate that is located in an area that has been identified by the Secretary
of Housing and Urban Development as an area having special flood hazards within the meaning of the
National Flood Insurance Act of 1968 unless flood insurance available under such Act has been
obtained in accordance with
Section 9.3
.
8.16.
Solvency
. On the Closing Date (after giving effect to the Transactions),
immediately following the making of each Loan and after giving effect to the application of the
proceeds of such Loans, each Borrower on a consolidated basis with its Subsidiaries will be
Solvent.
8.17.
Delayed Equity Arrangements
. On the Closing Date, (i) the Parent Borrower has
received a written commitment from Holdings to contribute the Delayed Equity Amount to the Parent
Borrower, to the extent not otherwise received by the Parent Borrower, on or prior to March 31,
2007 and (ii) Holdings has received written commitments from certain of the Investors to provide
the Delayed Equity Amount to Holdings, to the extent not otherwise received on or prior to March
31, 2007 (the commitments referred to in
subclauses (i)
and
(ii)
being referred to
collectively as the
Delayed Equity Arrangements
).
SECTION 9.
Affirmative Covenants
Each Borrower hereby covenants and agrees that on the Closing Date and thereafter, until the
Commitments, the Swingline Commitment and each Letter of Credit have terminated and the Loans and
Unpaid Drawings, together with interest, Fees and all other Obligations incurred hereunder, are
paid in full:
9.1.
Information Covenants
. The Parent Borrower will furnish to the Administrative
Agent (which shall promptly make such information available to the Lenders in accordance with its
customary practice):
(a)
Annual Financial Statements
. As soon as available and in any event within
5 days after the date on which such financial statements are required to be filed with the
SEC or, if earlier, on the date such financial statements are delivered to the holders of
the Senior Second Lien Notes (or, if such financial statements are not required to be filed
with the SEC or delivered to the holders of the Senior Second Lien Notes, on or before the
date that is 90 days (or, in the case of the fiscal year ending December 31, 2006, 120 days)
after the end of each such fiscal year), the consolidated balance sheets of
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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)
Quarterly Financial Statements
. As soon as available and in any event
within 5 days after the date on which such financial statements are required to be filed
with the SEC or, if earlier, on the date on which such financial statements are delivered to
the holders of the Senior Second Lien Notes with respect to each of the first three
quarterly accounting periods in each fiscal year of the Parent Borrower (or, if such
financial statements are not required to be filed with the SEC or delivered to the holders
of the Senior Second Lien Notes, on or before the date that is 45 days after the end of each
such quarterly accounting period), the consolidated balance sheets of the Parent Borrower
and
the Subsidiaries and, if different, the Parent Borrower and the Restricted
Subsidiaries, in each case as at the end of such quarterly period and the related
consolidated statements of operations for such quarterly accounting period and for the
elapsed portion of the fiscal year ended with the last day of such quarterly period, and the
related consolidated statement of cash flows for the elapsed portion of the fiscal year
ended with the last day of such quarterly period, and setting forth comparative consolidated
figures for the related periods in the prior fiscal year or, in the case of such
consolidated balance sheet, for the last day of the prior fiscal year (or, in lieu of such
unaudited financial statements of the Parent Borrower and the Restricted Subsidiaries, a
detailed reconciliation reflecting such financial information for the Parent Borrower and
the Restricted Subsidiaries, on the one hand, and the Parent Borrower and the Subsidiaries,
on the other hand), all of which shall be certified by an Authorized Officer of the Parent
Borrower, subject to changes resulting from audit and normal year-end audit adjustments.
(c)
Budgets
. Within 90 days after the commencement of each fiscal year of the
Parent Borrower, a budget of the Parent Borrower in reasonable detail for such fiscal year
as customarily prepared by management of the Parent Borrower for their internal use
consistent in scope with the financial statements provided pursuant to
Section
9.1(a)
, setting forth the principal assumptions upon which such budget is based.
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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
as at the end of such fiscal year or period, as the case may be, (ii) a
specification of any change in the identity of the Restricted Subsidiaries and Unrestricted
Subsidiaries as at the end of such fiscal year or period, as the case may be, from the
Restricted Subsidiaries and Unrestricted Subsidiaries, respectively, provided to the Lenders
on the Closing Date or the most recent fiscal year or period, as the case may be, (iii) the
then applicable Status and (iv) the amount of any Pro Forma Adjustment not previously set
forth in a Pro Forma Adjustment Certificate or any change in the amount of a Pro Forma
Adjustment set forth in any Pro Forma Adjustment Certificate previously provided and, in
either case, in reasonable detail, the calculations and basis therefor. At the time of the
delivery of the financial statements provided for in
Section 9.1(a)
, (i) a
certificate of an Authorized Officer of the Parent Borrower setting forth in reasonable
detail the Applicable Amount as at the end of the fiscal year to which such financial
statements relate and (ii) a certificate of an Authorized Officer of the Parent Borrower
setting forth the information required pursuant to Section 1(a) of the Perfection
Certificate or confirming that there has been no change in such information since the
Closing Date or the date of the most recent certificate delivered pursuant to this
clause (d)(ii)
, as the case may be.
(e)
Notice of Default or Litigation
. Promptly after an Authorized Officer of
any Borrower or any of the Subsidiaries obtains knowledge thereof, notice of (i) the
occurrence of any event that constitutes a Default or Event of Default, which notice shall
specify the nature thereof, the period of existence thereof and what action the Parent Borrower proposes to take with respect thereto and (ii) any litigation or governmental
proceeding pending against any Borrower or any of the Subsidiaries that could reasonably be
expected to be determined adversely and, if so determined, to result in a Material Adverse
Effect.
(f)
Environmental Matters
. Promptly after obtaining knowledge of any one or
more of the following environmental matters, unless such environmental matters would not,
individually or when aggregated with all other such matters, be reasonably expected to
result in a Material Adverse Effect, notice of:
(i) any pending or threatened Environmental Claim against any Credit Party or
any Real Estate;
(ii) any condition or occurrence on any Real Estate that (x) could reasonably
be expected to result in noncompliance by any Credit Party with any applicable
Environmental Law or (y) could reasonably be anticipated to form the basis of an
Environmental Claim against any Credit Party or any Real Estate;
(iii) any condition or occurrence on any Real Estate that could reasonably be
anticipated to cause such Real Estate to be subject to any restrictions on the
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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 Senior Second Lien Notes (whether publicly issued or not))
and lenders and agents under the ABL Facility, in each case in their capacity as such
holders, lenders or agents (in each case to the extent not theretofore delivered to the
Lenders and the Administrative Agent pursuant to this Agreement) and, with reasonable
promptness, such other information (financial or otherwise) as the Administrative
Agent on its own behalf or on behalf of any Lender (acting through the Administrative
Agent) may reasonably request in writing from time to time.
(h)
Pro Forma Adjustment Certificate
. Not later than any date on which
financial statements are delivered with respect to any Test Period in which a Pro Forma
Adjustment is made as a result of the consummation of the acquisition of any Acquired Entity
or Business by the Parent Borrower or any Restricted Subsidiary for which there shall be a
Pro Forma Adjustment, a certificate of an Authorized Officer of the Parent Borrower setting
forth the amount of such Pro Forma Adjustment and, in reasonable detail, the calculations
and basis therefor.
(i)
Principal Properties Certificate
. Not later than the date of delivery of
the financial statements required by
Section 9.1(a)
above, a Principal Properties
Certificate.
(j)
Intellectual Property Collateral
. At the time of the delivery of the
financial statements provided for in
Sections 9.1(a)
and
(b)
, a written
supplement substantially in the form of
Annex A
to the U.S. Security Agreement with
respect to any additional Copyrights, Copyright Licenses, Patents, Patent Licenses,
Trademarks and Trademark Licenses (each as defined in the U.S. Security Agreement) that are
registered (or for which an application to register such items has been filed) with the
United States Patent
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and Trademark Office or the United States Copyright Office (or any
successor to either such office) acquired by any U.S. Credit Party following the Closing
Date (or following the date of the last supplement provided to the Collateral Agent pursuant
to this
Section 9.1(j)
), all in reasonable detail.
(k)
Change of Name, Locations, Etc
. Not later than 60 days following the
occurrence of any change referred to in
subclauses (i)
through
(iv)
below,
written notice of any change (i) in the legal name of any Credit Party, (ii) in the
jurisdiction of organization or location of any Credit Party for purposes of the Uniform
Commercial Code, (iii) in the identity or type of organization of any Credit Party or (iv)
in the Federal Taxpayer Identification Number or organizational identification number of any
Credit Party. The Parent Borrower shall also promptly provide the Collateral Agent with
certified organizational documents reflecting any of the changes described in the first
sentence of this
clause (k)
.
Notwithstanding the foregoing, the obligations in
clauses (a)
and
(b)
of this
Section 9.1
may be satisfied with respect to financial information of the Parent Borrower
and the Restricted Subsidiaries by furnishing (A) the applicable financial statements of any direct
or indirect parent of the Parent Borrower or (B) the Parent Borrowers (or any direct or indirect
parent thereof), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC;
provided
that, with respect to each of
subclauses (A)
and
(B)
of this
paragraph, to the extent such information relates to a parent of the Parent Borrower, such
information is accompanied by consolidating or other information that explains in reasonable detail
the differences between the information relating to such parent, on the one hand, and the
information relating to the Parent Borrower and the Restricted Subsidiaries on a standalone basis,
on the other hand.
9.2.
Books, Records and Inspections
. The Parent Borrower will, and will cause each Restricted Subsidiary to, permit officers and
designated representatives of the Administrative Agent or the Required Lenders to visit and inspect
any of the properties or assets of the Parent Borrower and any such Subsidiary in whomsoevers
possession to the extent that it is within such partys control to permit such inspection, and to
examine the books and records of the Parent Borrower and any such Subsidiary and discuss the
affairs, finances and accounts of the Parent Borrower and of any such Subsidiary with, and be
advised as to the same by, its and their officers and independent accountants, all at such
reasonable times and intervals and to such reasonable extent as the Administrative Agent or the
Required Lenders may desire (and subject, in the case of any such meetings or advice from such
independent accountants, to such accountants customary policies and procedures);
provided
that, excluding any such visits and inspections during the continuation of an Event of Default,
only the Administrative Agent on behalf of the Required Lenders may exercise rights of the
Administrative Agent and the Lenders under this
Section 9.2
and only one such visit shall
be at the Parent Borrowers expense;
provided
further
that when an Event of Default
exists, the Administrative Agent or any Lender (or any of their respective representatives or
independent contractors) may do any of the foregoing at the expense of the Parent Borrower at any
time during normal business hours and upon reasonable advance notice. The Administrative Agent and
the Lenders shall give the Parent Borrower the opportunity to participate in any discussions with
the Parent Borrowers independent public accountants. During the course of the above described
visits, inspections and examinations and discussions, representatives of the Agents and the Lenders
may encounter individually identifiable
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healthcare information as defined under the Administrative
Simplification (including privacy and security) regulations promulgated pursuant to the Health
Insurance Portability and Accountability Act of 1996, as amended (collectively
HIPAA
) or other
confidential information relating to health care patients (collectively, the
Confidential
Healthcare Information
). The Parent Borrower or the Restricted Subsidiary maintaining such
Confidential Healthcare Information shall, consistent with HIPAAs minimum necessary provisions,
permit such disclosures for their healthcare operations purposes. Unless otherwise required by
law, the Agents, the Lenders and their respective representatives shall not require or perform any
act that would cause the Parent Borrower or any of its Subsidiaries to violate any laws,
regulations or ordinances intended to protect the privacy rights of healthcare patients, including,
without limitation, HIPAA.
9.3.
Maintenance of Insurance
. The Parent Borrower will, and will cause each Material
Subsidiary to, at all times maintain in full force and effect, pursuant to self-insurance
arrangements or with insurance companies that the Parent Borrower believes (in the good faith
judgment of the management of the Parent Borrower) are financially sound and responsible at the
time the relevant coverage is placed or renewed, insurance in at least such amounts and against at
least such risks (and with such risk retentions) as are usually insured against in the same general
area by companies engaged in the same or a similar business; and will furnish to the Lenders, upon
written request from the Administrative Agent, information presented in reasonable detail as to the
insurance so carried.
9.4.
Payment of Taxes
. The Parent Borrower will pay and discharge, and will cause each of the Subsidiaries to
pay and discharge, all material taxes, assessments and 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.
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9.7.
ERISA
. Promptly after the Parent Borrower or any ERISA Affiliate knows or has
reason to know of the occurrence of any of the following events that, individually or in the
aggregate (including in the aggregate such events previously disclosed or exempt from disclosure
hereunder, to the extent the liability therefor remains outstanding), would be reasonably likely to
have a Material Adverse Effect, the Parent Borrower will deliver to the Administrative Agent and
each of the Lenders a certificate of an Authorized Officer or any other senior officer of the
Parent Borrower setting forth details as to such occurrence and the action, if any, that the Parent
Borrower or such ERISA Affiliate is required or proposes to take, together with any notices
(required, proposed or otherwise) given to or filed with or by the Parent Borrower such ERISA
Affiliate, the PBGC, a Plan participant (other than notices relating to an individual participants
benefits) or the Plan administrator with respect thereto: that a Reportable Event has occurred;
that an accumulated funding deficiency has been incurred or an application is to be made to the
Secretary of the Treasury for a waiver or modification of the minimum funding standard (including
any required installment payments) or an extension of any amortization period under Section 412 of
the Code with respect to a Plan; that a Plan having an Unfunded Current Liability has been or is to
be terminated, reorganized, partitioned or declared insolvent under Title IV of ERISA (including
the giving of written notice thereof); that a Plan has an Unfunded Current Liability that has or
will result in a lien under ERISA or the Code; that proceedings will be or have been instituted to
terminate a Plan having an Unfunded Current Liability (including the giving of written notice
thereof); that a proceeding has been instituted against the Parent Borrower or an ERISA Affiliate
pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan; that the PBGC has
notified the Parent Borrower or any ERISA Affiliate of its intention to appoint a trustee to
administer any Plan; that the Parent Borrower or any ERISA Affiliate has failed to make a required
installment or other payment pursuant to Section 412 of the Code with respect to a Plan; or that
the Parent Borrower or any ERISA Affiliate has incurred or will incur (or has been notified in
writing that it will incur) any liability (including any contingent or secondary liability) to or
on account of a Plan pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or
4204 of ERISA or Section 4971 or 4975 of the Code.
9.8.
Maintenance of Properties
. The Parent Borrower will, and will cause each of the
Restricted Subsidiaries to, keep and maintain all property material to the conduct of its business
in good working order and condition, ordinary wear and tear excepted, except to the extent that the
failure to do so could reasonably be expected to have a Material Adverse Effect.
9.9.
Transactions with Affiliates
. The Parent Borrower will conduct, and cause each
of the Restricted Subsidiaries to conduct, all transactions with any of its Affiliates (other than
the Parent Borrower and the Restricted Subsidiaries) on terms that are substantially as favorable
to the Parent Borrower or such Restricted Subsidiary as it would obtain in a comparable
arms-length transaction with a Person that is not an Affiliate,
provided
that the
foregoing restrictions shall not apply to (a) the payment of customary fees to the Sponsors for
management, consulting and financial services rendered to the Parent Borrower and the Subsidiaries
and customary investment banking fees paid to the Sponsors for services rendered to the Parent
Borrower and the Subsidiaries in connection with divestitures, acquisitions, financings and other
transactions, (b) transactions permitted by
Section 10.6
, (c) the payment of the
Transaction Expenses, (d) the issuance of Stock or Stock Equivalents of Holdings to the management
of the Parent Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries in
connection with the Transactions or pursuant to arrangements described in
clause (f)
of
this
Section 9.9
, (e) loans,
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advances and other transactions between or among the Parent
Borrower, any Subsidiary or any joint venture (regardless of the form of legal entity) in which the
Parent Borrower or any Subsidiary has invested (and which Subsidiary or joint venture would not be
an Affiliate of the Parent Borrower but for the Parent Borrowers or a Subsidiarys ownership of
Stock or Stock Equivalents in such joint venture or Subsidiary) to the extent permitted under
Section 10
, (f) employment and severance arrangements between the Parent Borrower and the
Subsidiaries and their respective officers and employees in the ordinary course of business, (g)
payments by the Parent Borrower (and any direct or indirect parent thereof) and the Subsidiaries
pursuant to the tax sharing agreements among the Parent Borrower (and any such parent) and the
Subsidiaries on customary terms to the extent attributable to the ownership or operation of the
Parent Borrower and the Subsidiaries;
provided
that in each case the amount of such
payments in any fiscal year does not exceed the amount that the Parent Borrower and its Restricted
Subsidiaries would be required to pay in respect of federal, state and local taxes for such fiscal
year were the Parent Borrower and its Restricted Subsidiaries (to the extent described above) to
pay such taxes separately from any such parent entity, (h) the payment of customary fees and
reasonable out of pocket costs to, and indemnities provided on behalf of, directors, managers,
consultants, officers and employees of the Parent Borrower and the Subsidiaries in the ordinary
course of business to the extent attributable to the ownership or operation of the Parent Borrower
and the Subsidiaries, and (i) transactions pursuant to permitted agreements in existence on the
Closing Date and set forth on
Schedule 9.9
or any amendment thereto to the extent such an
amendment is not adverse, taken as a whole, to the Lenders in any material respect. The Parent
Borrower will not permit any Consolidated Entity to engage in any transaction with any Sponsor or
any Frist Shareholder (or any controlling Affiliate of any Sponsor or Frist Shareholder), to the
extent that such Consolidated Entity would be prohibited from engaging in such transaction if it
was a Restricted Subsidiary for purposes of this
Section 9.9
.
9.10.
End of Fiscal Years; Fiscal Quarters
. The Parent Borrower will, for financial
reporting purposes, cause (a) each of its, and each of its Subsidiaries, fiscal years to end on
December 31 of each year and (b) each of its, and each of its Subsidiaries, fiscal quarters to end
on dates consistent with such fiscal year-end and the Parent Borrowers past practice;
provided
, however, that the Parent Borrower may, upon written notice to the Administrative
Agent change the financial reporting convention specified above to any other financial reporting
convention reasonably acceptable to the Administrative Agent, in which case the Parent Borrower and
the Administrative Agent will, and are hereby authorized by the Lenders to, make any adjustments to
this Agreement that are necessary in order to reflect such change in financial reporting.
9.11.
Additional Guarantors and Grantors
. Except as otherwise provided in
Section
10.1(j)
or
10.1(k)
and subject to any applicable limitations set forth in the Security
Documents, the Parent Borrower will cause each direct or indirect Domestic Subsidiary or European
Subsidiary (excluding any Excluded Subsidiary or Excluded European Subsidiary) formed or otherwise
purchased or acquired after the date hereof (including pursuant to a Permitted Acquisition) and
each other Domestic Subsidiary or European Subsidiary that ceases to constitute an Excluded
Subsidiary or Excluded European Subsidiary, respectively, to execute a supplement, in the case of
any Domestic Subsidiary, to each of the U.S. Guarantee, the U.S. Pledge Agreement and the U.S.
Security Agreement and, in the case of any European Subsidiary, to the European Guarantee and
European Security Agreement in order to become a Guarantor under the applicable Guarantee and a
grantor under such Security Documents or, to the extent reasonably re-
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quested by the Collateral Agent, enter into a new Security Document substantially consistent
with the analogous existing Security Documents and otherwise in form and substance reasonably
satisfactory to such Collateral Agent and take all other action reasonably requested by the
Collateral Agent to grant a perfected security interest in its assets to substantially the same
extent as created by the domestic or foreign Credit Parties, as applicable, on the Closing Date
(including actions required pursuant to
Section 9.14(e)
).
9.12.
Pledge of Additional Stock and Evidence of Indebtedness
.
(a) The Parent Borrower will cause (i) all certificates representing Stock and Stock
Equivalents of any Subsidiary (other than (x) any Excluded Stock and Stock Equivalents;
provided
that Excluded Stock and Stock Equivalents of the type specified in
clause
(iii)
of the definition thereof shall not be excluded pursuant to this subclause (x) insofar as
the pledge thereof pursuant to the U.S. Pledge Agreement is given in respect of the European
Obligations and (y) any Stock and Stock Equivalents issued by any Subsidiary for so long as such
Subsidiary does not (on a consolidated basis with its Restricted Subsidiaries) have property, plant
and equipment with a book value in excess of $5,000,000 or a contribution to Consolidated EBITDA
for any four fiscal quarter period that includes any date on or after the Closing Date in excess of
$5,000,000) held directly by the Parent Borrower or any U.S. Guarantor, (ii) all evidences of
Indebtedness in excess of $10,000,000 received by the Parent Borrower or any of the U.S. Guarantors
in connection with any disposition of assets pursuant to
Section 10.4(b)
and (iii) any
promissory notes executed after the date hereof evidencing Indebtedness in excess of $10,000,000 of
the Parent Borrower or any Subsidiary that is owing to the Parent Borrower or any U.S. Guarantor,
in each case, to be delivered to the Collateral Agent as security for the Obligations or the
European Obligations, as applicable, under the U.S. Pledge Agreement. The Borrowers will cause (i)
all certificates representing Stock and Stock Equivalents of any Subsidiary (other than (A) any
Excluded Stock and Stock Equivalents and (B) Stock and Stock Equivalents issued by any Subsidiary
for so long as such Subsidiary does not (on a consolidated basis with its Restricted Subsidiaries),
have property, plant and equipment with a book value in excess of $5,000,000 or a contribution to
Consolidated EBITDA for any four fiscal quarter period that includes any date on or after the
Closing Date in excess of $5,000,000) formed, purchased or otherwise acquired after the Closing
Date and held directly by the European Borrower or any European Guarantor, (ii) all evidences of
Indebtedness in excess of $10,000,000 received by the European Subsidiary Borrower or any of the
European Guarantors in connection with any disposition of assets pursuant to
Section
10.4(b)
and (iii) any promissory notes executed after the date hereof evidencing Indebtedness
in excess of $10,000,000 of the Parent Borrower or any Subsidiary that is owing to the European
Subsidiary Borrower or any European Guarantor, in each case, to be delivered to the Collateral
Agent solely as security for the European Obligations pursuant to the applicable European Security
Agreement.
(b) The Parent Borrower agrees that all Indebtedness in excess of $10,000,000 of any Borrower
or any Subsidiary that is owing to any Credit Party shall be evidenced by one or more promissory
notes.
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9.13.
Use of Proceeds
.
(a) The Borrowers will use the proceeds of all Term Loans and the Senior Second Lien Notes
Offering, up to $300,000,000 of the proceeds of the Revolving Credit Loans and up to $1,750,000,000
of the proceeds from the ABL Facility to effect the Transactions; and
(b) The Borrowers will use Letters of Credit, Revolving Credit Loans and Swingline Loans for
general corporate purposes (including Permitted Acquisitions).
9.14.
Further Assurances
.
(a) The Parent Borrower will, and will cause each other Credit Party to, execute any and all
further documents, financing statements, agreements and instruments, and take all such further
actions (including the filing and recording of financing statements, fixture filings, mortgages,
deeds of trust and other documents) that may be required under any applicable law, or that the
Collateral Agent or the Required Lenders may reasonably request, in order to grant, preserve,
protect and perfect the validity and priority of the security interests created or intended to be
created by the applicable Security Documents, all at the expense of the Parent Borrower and the
Restricted Subsidiaries.
(b) Except with respect to which, in the reasonable judgment of the Administrative Agent
(confirmed in writing by written notice to the Parent Borrower), the cost or other consequences
(including any tax consequence) of doing so shall be excessive in view of the benefits to be
obtained by the Lenders therefrom and subject to applicable limitations set forth in the Security
Documents, (i) if any assets (including any real estate or improvements thereto or any interest
therein but excluding (x) any Principal Properties and (y) Stock and Stock Equivalents of any
Subsidiary) with a book value or fair market value in excess of $10,000,000 are acquired by the
Parent Borrower or any other Credit Party after the Closing Date (other than assets constituting
Collateral under a Security Document that become subject to the Lien of the applicable Security
Document upon acquisition thereof;
provided
that this exception shall not apply in respect
of freehold or leasehold properties in England and Wales) that are of a nature secured by a
Security Document and (ii) upon the 1993 Indenture ceasing to be in effect pursuant to a
satisfaction and discharge or a defeasance thereof in accordance with its terms with respect to all
Retained Indebtedness, the Parent Borrower will notify the Collateral Agent, and, if requested by
the Collateral Agent, the Parent Borrower will cause such assets (including in the case of
clause (ii)
only, Principal Properties) to be subjected to a Lien securing the applicable
Obligations and will take, and cause the other applicable Credit Parties to take, such actions as
shall be necessary or reasonably requested by the Collateral Agent to grant and perfect such Liens
consistent with the applicable requirements of the Security Documents, including actions described
in
clause (a)
of this
Section 9.14
, and, in respect of freehold or leasehold
property in England and Wales, the Parent Borrower will cause the applicable European Credit
Parties to execute and deliver, to the Collateral Agent a legal mortgage in favor of the Collateral
Agent of that property in any form (consistent with the European Security Agreement) which the
Collateral Agent may reasonably require but in any event on terms no more onerous than the European
Security Agreement, all at the expense of the applicable Credit Parties.
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(c) (i) If any Principal Properties Certificate required to be delivered hereunder
demonstrates that the Principal Properties Secured Amount does not exceed the product of (x) the
Principal Properties Permitted Amount multiplied by (y) 1.8 or (ii) if as a result of any
Disposition of a Principal Property that is subject to a Mortgage either (A) the Principal Property
Secured Amount does not exceed the product of (x) the Principal Properties Permitted Amount
multiplied by (y) 2 or (B) there would be fewer than 12 Principal Properties subject to Mortgages,
then the Parent Borrower shall promptly cause additional Principal Properties of U.S. Guarantors
mutually selected by the Administrative Agent and the Parent Borrower having a fair market value
(as reasonably and in good faith determined by the Parent Borrower using a multiple of five (5)
times EBITDA of such Principal Properties for the most recent four fiscal quarter period for which
Section 9.1 Financials have been delivered) that would result, after giving effect to the Mortgage
thereof, in the Principal Properties Secured Amount being at least two (2) times the Principal
Properties Permitted Amount, to be subject to a Mortgage securing the Obligations and shall take
actions to perfect such Liens and to deliver title insurance, surveys and an opinion of local
counsel, all consistent with such actions taken with respect to Principal Properties mortgaged in
favor of the Collateral Agent pursuant to
clause (e)
below.
(d) Any Mortgage delivered to the Collateral Agent in accordance with the preceding
clause
(b)
or
clause (c)
shall be accompanied by (i) in the case of a Mortgage of property in
the United States of America (x) a policy or policies (or an unconditional binding commitment
therefor) of title insurance issued by a nationally recognized title insurance company insuring the
Lien of each Mortgage as a valid Lien (with the priority described therein) on the Mortgaged
Property described therein, free of any other Liens except as expressly permitted by
Section
10.2
, together with such endorsements, coinsurance and reinsurance as the Collateral Agent may
reasonably request and (y) an opinion of local counsel to the mortgagor in form and substance
reasonably acceptable to the Collateral Agent and (ii) in the case of a Mortgage of property in
England and Wales (x) a report of title in a form reasonably acceptable to the Collateral Agent and
from a firm of solicitors reasonably acceptable to the Collateral Agent and (y) a legal opinion
from a firm of solicitors reasonably acceptable to the Collateral Agent in form and substance
reasonably acceptable to the Collateral Agent.
(e) The Parent Borrower agrees that it will, or will cause its relevant Subsidiaries to,
complete each of the actions described on
Schedule 9.14(e)
as soon as commercially
reasonable and by no later than the date set forth in
Schedule 9.14(e)
with respect to such
action or such later date as the Administrative Agent may reasonable agree.
(f) The Parent Borrower agrees that it will use commercially reasonable efforts to cause the
preferred Stock of Healthtrust that is owned by ColumbiaSDH and Epic Properties to be redeemed or
otherwise transferred to Healthtrust or the Parent Borrower as promptly as reasonably practicable
following the Closing Date;
provided
that the Parent Borrower shall not be required to take
any action pursuant to this
clause (f)
to the extent that it determines that any such
redemption or transfer is reasonably likely to result in material adverse tax consequences to the
Parent Borrower or a Subsidiary.
(g) Prior to repayment in full of all European Obligations with respect to the European
Tranche Term Loans, the Parent Borrower will cause each Restricted Subsidiary formed under the laws
of Switzerland to comply in all material respects with the requirements
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applicable to it set forth in the Swiss Secured Loan Agreement and the Swiss Assignment
Agreement.
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:
10.1.
Limitation on Indebtedness
.
The Parent Borrower will not, and will not permit any of the Restricted Subsidiaries to,
create, incur, assume or suffer to exist any Indebtedness, except:
(a) (x) Indebtedness arising under the Credit Documents, (y) Indebtedness in an
aggregate principal amount not to exceed $2,000,000,000 at any time outstanding under the
ABL Facility and any Permitted Receivables Financing (plus additional Indebtedness
thereunder or under any amendment thereto, which together with any New Term Loans and New
Revolving Credit Commitments incurred pursuant to
Section 2.14
of this Agreement, 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 with respect to Indebtedness referred to in
subclauses (x)
and
(y)
to such Subsidiaries;
(b) Subject to compliance with
Section 10.5
, Indebtedness of the Parent
Borrower or any Restricted Subsidiary owed to the Parent Borrower or any Restricted
Subsidiary;
provided
that, in each case, all such Indebtedness of (A) any U.S.
Credit Party owed to any Person that is not a U.S. Credit Party or (B) any European Credit
Party owed to any Person that is not a Credit Party shall be subordinated to the Obligations
of such Credit Party on customary terms;
(c) Indebtedness in respect of any bankers acceptance, bank guarantees, letter of
credit, warehouse receipt or similar facilities entered into in the ordinary course of
business (including in respect of workers compensation claims, health, disability or other
employee benefits or property, casualty or liability insurance or self-insurance or other
Indebtedness with respect to reimbursement-type obligations regarding workers compensation
claims);
(d) subject to compliance with
Section 10.5
, Guarantee Obligations incurred by
(i) Restricted Subsidiaries in respect of Indebtedness of the Parent Borrower or other
Restricted Subsidiaries that is permitted to be incurred under this Agreement (except to the
extent of any express restriction on Guarantee Obligations relating to such Indebtedness
provided for herein) and (ii) the Parent Borrower in respect of Indebtedness of Restricted
Subsidiaries that is permitted to be incurred under this Agreement,
provided
that,
except as provided in
clauses (j)
and
(k)
below, there shall be no guarantee
(a) by a Restricted Subsidiary that is not a U.S. Guarantor of any Indebtedness of a U.S.
Credit
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Party, or (b) by a Restricted Foreign Subsidiary that is not a European Credit Party of
any Indebtedness of any European 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(g)(ii)
,
10.5(i)
or
10.5(q)
;
(f) (i) Indebtedness (including Indebtedness arising under Capital Leases) incurred
within 270 days of the acquisition, construction or improvement of fixed or capital assets
to finance the acquisition, construction or improvement of such fixed or capital assets,
(ii) Indebtedness arising under Capital Leases entered into in connection with Permitted
Sale Leasebacks and (iii) Indebtedness arising under Capital Leases, other than Capital
Leases in effect on the date hereof 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 date hereof listed on
Schedule 10.1
(other than Retained Indebtedness with a stated final maturity (as of the Closing Date)
prior to the Final Maturity Date), (ii) Indebtedness existing on the Closing Date (after
giving effect to the Transactions) and owed by the Parent Borrower or any Restricted
Subsidiary to the Parent Borrower or any Restricted Subsidiary, and any Guarantee
Obligations in respect thereof, but only for so long as such Indebtedness or any
refinancing, refunding or renewal thereof permitted by this
subclause (ii)
is held
by the Parent Borrower, such Restricted Subsidiary or a U.S. Credit Party and, in the case
of each of the preceding
subclauses (i)
and
(ii)
, any modification,
replacement, refinancing, refunding, renewal or extension thereof (or, in the case of this
subclause (ii)
only, any intercompany transfer of creditor positions in respect
thereof pursuant to intercompany debt restructurings);
provided
that all such
Indebtedness arising as a result of any such transfer of creditor positions as contemplated
by
subclause (ii)
of (A) any U.S. Credit Party owed to any Person that is not a U.S.
Credit Party or (B) any European Credit Party owed to any Person that is not a Credit Party
shall be subordinated to the Obligations of such Credit Party on customary terms;
provided
further
that except to the extent otherwise expressly permitted
hereunder, in the case of any such modification, replacement, refinancing, refunding,
renewal or extension (but not any such transfer of creditor positions), (x) the principal
amount thereof does not exceed the principal amount thereof outstanding immediately prior to
such modification, replacement, refinancing, refunding, renewal or extension except by an
amount equal to the unpaid accrued interest and premium thereon plus other reasonable
amounts paid and fees and expenses incurred in connection with such
modifi-
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cation, replacement, refinancing, refunding, renewal or extension, (y) the direct and
contingent obligors with respect to such Indebtedness are not changed (except that any
refinancing of Retained Indebtedness may provide for guarantees by the U.S. Guarantors on a
subordinated basis to such U.S. Guarantors obligations under the U.S. Guarantee), and (z)
no portion of such Indebtedness matures prior to the Final Maturity Date (except in the case
of a refinancing of Indebtedness pursuant to
subclause (ii)
) and (iii) Retained
Indebtedness with a stated final maturity (as of the Closing Date) prior to the Final
Maturity Date and any modification, refinancing, refunding renewal or extension thereof;
provided
that (x) the principal amount thereof does not exceed the principal amount
thereof outstanding immediately prior to such modification, replacement, refinancing,
refunding, renewal or extension, except by an amount equal to the unpaid accrued interest
and premium thereon plus other reasonable amounts paid and fees and expenses incurred in
connection with such modification, replacement, refinancing, refunding, renewal or
extension, (y) no portion of such Indebtedness matures prior to the stated final maturity of
such Retained Indebtedness as of the Closing Date and (z) no portion of such Indebtedness
shall be issued by or guaranteed by any Restricted Subsidiary unless such Restricted
Subsidiary is a U.S. Guarantor;
(h) Indebtedness in respect of Hedge Agreements;
(i) Indebtedness in respect of (x) the Senior Second Lien Notes in an aggregate
principal amount not to exceed $5,700,000,000 (or such lesser aggregate principal amount as
may be incurred on the Closing Date)
plus
, in respect of the Toggle Notes, the PIK
Interest Amount, (y) any modification, replacement, refinancing, refunding, renewal or
extension of Indebtedness referred to in the foregoing
subclause (x)
that
constitutes Permitted Senior Second Lien 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;
(j) (i) Indebtedness of a Person or Indebtedness attaching to assets of a Person that,
in either case, becomes a Restricted Subsidiary (or is a Restricted Subsidiary that survives
a merger with such Person) or Indebtedness attaching to assets that are acquired by the
Parent Borrower or any Restricted Subsidiary, in each case after the Closing Date as the
result of a Permitted Acquisition;
provided
that
(w) such Indebtedness existed at the time such Person became a Restricted
Subsidiary or at the time such assets were acquired and, in each case, was not
created in anticipation thereof, and
(x) such Indebtedness is not guaranteed in any respect by the Parent Borrower
or any Restricted Subsidiary (other than by any such Person that so
be-
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comes a Restricted Subsidiary or is the survivor of a merger with such Person
or any of its Subsidiaries), and
(y) (A) the Stock and Stock Equivalents of such Person are pledged to secure
the U.S. Obligations and/or the European Obligations, as applicable, to the extent
required under
Section 9.12
, and (B) such Person executes a supplement to
the applicable Guarantee and Security Documents (or alternative guarantee and
security agreements in relation to the Obligations reasonably acceptable to the
Collateral Agent) to the extent required under
Section 9.11
or
9.12
,
as applicable;
provided
that the requirements of this
subclause (y)
shall not apply to (I) an aggregate amount at any time outstanding of up to
$600,000,000 of the sum of (1) such Indebtedness (and modifications, replacements,
refinancing, refundings, renewals and extensions thereof pursuant to
subclause
(ii)
below) and (2) all Indebtedness as to which the proviso to
clause
(k)(i)(y)
below then applies and (II) any Indebtedness of the type that could
have been incurred under
subclauses (i)
or
(ii)
of
Section
10.1(f)
; and
(z) (A) after giving Pro Forma Effect to the incurrence of such Indebtedness
and the application of proceeds thereof, the Parent Borrower is in compliance with
the covenant set forth in
Section 10.9
for the most recently ended Test
Period and (B) except for Indebtedness consisting of Capital Lease Obligations,
revenue bonds, purchase money Indebtedness or mortgages or other Liens on specific
assets (1) no portion of such Indebtedness matures prior to the Final Maturity Date,
and (2) except for Indebtedness permitted by the proviso to
subclause (y)
above no portion of such Indebtedness is issued or guaranteed by a Person that is,
or as a result of such acquisition becomes, a Restricted Subsidiary that is not a
U.S. Guarantor; and
(ii) any modification, replacement, refinancing, refunding, renewal or extension of any
Indebtedness specified in
subclause (i)
above,
provided
that, except to the
extent otherwise expressly permitted hereunder, (x) the principal amount of any such
Indebtedness does not exceed the principal amount thereof outstanding immediately prior to
such modification, replacement, refinancing, refunding, renewal or extension except by an
amount equal to the unpaid accrued interest and premium thereon
plus
other
reasonable amounts paid and fees and expenses incurred in connection with such modification,
replacement, refinancing, refunding, renewal or extension, (y) the direct and contingent
obligors with respect to such Indebtedness are not changed and (z) if the Indebtedness being
refinanced, or any guarantee thereof, constituted Subordinated Indebtedness, then such
replacement or refinancing Indebtedness, or such guarantee, respectively, shall be
subordinated to the Obligations to substantially the same extent;
(k) (i) (A) Permitted Additional Debt incurred to finance a Permitted Acquisition and
(B) Indebtedness of the Parent Borrower or any Restricted Subsidiary to finance a Permitted
Acquisition as to which the proviso to
subclause (y)
below applies and that is not
incurred or guaranteed in any respect by any Restricted Subsidiary (other than by any Person
acquired as a result of such Permitted Acquisition or the Restricted
Subsidiary in-
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curring such Indebtedness) or, in the case of Indebtedness of any Restricted
Subsidiary, by the Parent Borrower;
provided
that
(y) (A) the Parent Borrower or another Credit Party pledges the Stock and Stock
Equivalents of such acquired Person to secure the U.S. Obligations and/or the
European Obligations to the extent required under
Section 9.12
and (B) such
acquired Person executes a supplement to the applicable Guarantee and Security
Documents (or alternative guarantee and security arrangements in relation to the
Obligations reasonably acceptable to the Collateral Agent) to the extent required
under
Section 9.11
or
9.12
, as applicable;
provided
that the
requirements of this
subclause (y)
shall not apply to (I) an aggregate
amount at any time outstanding of up to $600,000,000 of the sum of (1) such
Indebtedness (and modifications, replacements, refinancing, refundings, renewals and
extensions thereof pursuant to
subclause (ii)
below) and (2) all
Indebtedness as to which
clause (I)
of the proviso to
clause
(j)(i)(y)
above then applies, and
(z) (A) after giving Pro Forma Effect to the incurrence of such Indebtedness
and the application of proceeds thereof, the Parent Borrower is in compliance with
the covenant set forth in
Section 10.9
for the most recently ended Test
Period, (B) except for Indebtedness permitted by the proviso to
subclause
(y)
above, no portion of such Indebtedness matures prior to the Final Maturity
Date, and (C) except for Indebtedness permitted by the proviso to
subclause
(y)
above, no portion of such Indebtedness is issued or guaranteed by a Person
that is, or as a result of such acquisition becomes, a Restricted Subsidiary that is
not a U.S. Guarantor; and
(ii) any modification, replacement, refinancing, refunding, renewal or extension of any
Indebtedness specified in
subclause (i)
above,
provided
that, except to the
extent otherwise expressly permitted hereunder, (w) the principal amount of any such
Indebtedness does not exceed the principal amount thereof outstanding immediately prior to
such modification, replacement, refinancing, refunding, renewal or extension except by an
amount equal to the unpaid accrued interest and premium thereon
plus
other
reasonable amounts paid and fees and expenses incurred in connection with such modification,
replacement, refinancing, refunding, renewal or extension, (x) the direct and contingent
obligors with respect to such Indebtedness are not changed, (y) there is no scheduled
repayment, mandatory redemption or sinking fund obligation with respect to such Indebtedness
prior to the Final Maturity Date (other than customary offers to purchase upon a change of
control, asset sale or event of loss and customary acceleration rights after an event of
default) 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
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those incurred to secure health, safety and environmental obligations in the ordinary
course of business;
(m) (i) Indebtedness incurred in connection with any Permitted Sale Leaseback
(
provided
that the Net Cash Proceeds thereof are promptly applied to the prepayment
of the Term Loans to the extent required by
Section 5.2
) and (ii) any refinancing,
refunding, renewal or extension of any Indebtedness specified in
subclause (i)
above,
provided
that, except to the extent otherwise permitted hereunder, (x) the
principal amount of any such Indebtedness is not increased above the principal amount
thereof outstanding immediately prior to such refinancing, refunding, renewal or extension
and (y) the direct and contingent obligors with respect to such Indebtedness are not
changed;
(n) (i) additional Indebtedness and (ii) any refinancing, refunding, renewal or
extension of any Indebtedness specified in
subclause (i)
above;
provided
that the aggregate amount of Indebtedness incurred and remaining outstanding pursuant to
this
clause (n)
shall not at any time exceed $1,500,000,000 (of which amount, no
more than $500,000,000 shall be Indebtedness of any Restricted Subsidiary that is not a U.S.
Credit Party);
(o) Indebtedness in respect of (i) Permitted Additional Debt to the extent that the Net
Cash Proceeds therefrom are, immediately after the receipt thereof, applied to the
prepayment of Term Loans in accordance with
Section 5.2
and (ii) any refinancing,
refunding, renewal or extension of any Indebtedness specified in
subclause (i)
above,
provided
that, except to the extent otherwise permitted hereunder, (x) the
principal amount of any such Indebtedness is not increased above the principal amount
thereof outstanding immediately prior to such refinancing, refunding, renewal or extension,
(y) the direct and contingent obligors with respect to such Indebtedness are not changed and
(z) if the Indebtedness being refinanced, or any guarantee thereof, constituted Subordinated
Indebtedness, then such replacement or refinancing Indebtedness, or such guarantee,
respectively, shall be subordinated to the Obligations to substantially the same extent;
(p) Indebtedness in respect of overdraft facilities, employee credit card programs,
netting services, automatic clearinghouse arrangements and other cash management and similar
arrangements in the ordinary course of business;
(q) unsecured Indebtedness in respect of obligations of the Parent Borrower or any
Restricted Subsidiary to pay the deferred purchase price of goods or services or progress
payments in connection with such goods and services,
provided
that such obligations
are incurred in connection with open accounts extended by suppliers on customary trade terms
in the ordinary course of business and not in connection with the borrowing of money or
Hedge Agreements;
(r) Indebtedness arising from agreements of the Parent Borrower or any Restricted
Subsidiary providing for indemnification, adjustment of purchase price or similar
obligations, in each case entered into in connection with the disposition of any business,
assets or Stock permitted hereunder, other than Guarantee Obligations incurred by any Person
acquiring all or any portion of such business, assets or Stock for
the purpose of fi-
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nancing such acquisition,
provided
that such amount is not Indebtedness
required to be reflected on the balance sheet of the Parent Borrower or any Restricted
Subsidiary in accordance with GAAP (contingent obligations referred to in a footnote to
financial statements and not otherwise reflected on the balance sheet will not be deemed to
be reflected on such balance sheet for purposes of this proviso);
(s) Indebtedness of the Parent Borrower or any Restricted Subsidiary consisting of (i)
obligations to pay insurance premiums or (ii) take or pay obligations contained in supply
agreements, in each case arising in the ordinary course of business and not in connection
with the borrowing of money or Hedge Agreements;
(t) Indebtedness representing deferred compensation to employees of the Parent Borrower
(or any direct or indirect parent thereof) and the Restricted Subsidiaries incurred in the
ordinary course of business;
(u) Indebtedness consisting of promissory notes issued by the Parent Borrower or any
Guarantor to current or former officers, managers, consultants, directors and employees (or
their respective spouses, former spouses, successors, executors, administrators, heirs,
legatees or distributees) to finance the purchase or redemption of Stock or Stock
Equivalents of the Parent Borrower (or any direct or indirect parent thereof) permitted by
Section 10.6(b)
; and
(v) Indebtedness consisting of obligations of the Parent Borrower and the Restricted
Subsidiaries under deferred compensation or other similar arrangements to officers,
employees and directors incurred by such Person in connection with the Transactions and
Permitted Acquisitions or any other Investment expressly permitted hereunder;
(w) additional Indebtedness of Foreign Subsidiaries in an aggregate principal amount
that at the time of incurrence does not cause the aggregate principal amount of Indebtedness
incurred in reliance on this
clause (w)
to exceed 2.5% of Consolidated Total Assets
at such time;
provided
that for purposes of this
clause (w)
only,
Consolidated Total Assets shall be determined only with reference to the assets of Foreign
Subsidiaries; and
(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.
Notwithstanding the foregoing, the Parent Borrower shall not permit any 1993 Indenture
Restricted Subsidiary to create, incur, assume or suffer to exist any Indebtedness, except that the
1993 Indenture Restricted Subsidiaries (other than Healthtrust, except in the case of Indebtedness
owing to any U.S. Credit Party) may create, incur, assume or suffer to exist (x) Indebtedness under
clause (b)
above that is owed to a U.S. Credit Party or another 1993 Indenture Restricted
Subsidiary to the extent permitted under section 1107 of the 1993 Indenture and (y) Indebtedness
that is otherwise permitted in accordance with an exception set forth above
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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 Closing Date) determined as of the date of such incurrence, in each
case, to the extent permitted by Section 1107 or 1108 of the 1993 Indenture.
10.2.
Limitation on Liens
.
The Parent Borrower will not, and will not permit any of the Restricted Subsidiaries to,
create, incur, assume or suffer to exist any Lien upon any property or assets of any kind (real or
personal, tangible or intangible) of the Parent Borrower or any Restricted Subsidiary, whether now
owned or hereafter acquired, except:
(a) Liens arising under the Credit Documents;
(b) Liens on the Receivables Collateral securing the ABL Facility under ABL Documents;
(c) Liens on the Senior Second Lien Notes Collateral securing the Senior Second Lien
Notes and other Permitted Additional Debt permitted by
clauses (i)
,
(k)
or
(o)
of
Section 10.1
;
provided
that at the time such Indebtedness is
incurred, the holders of such Indebtedness (or a representative thereof on behalf of such
holders) shall have entered into the General Intercreditor Agreement (or, except in the case
of the Senior Second Lien Notes, an intercreditor agreement reasonably acceptable to the
Collateral Agent providing that the Lien securing such Indebtedness shall rank junior to the
Lien securing the Obligations on a basis at least as substantially favorable to the Lenders
as the basis on which the Lien securing the Senior Second Lien Notes ranks junior to the
Lien securing the Obligations on the Closing Date pursuant to the General Intercreditor
Agreement) (it being understood that, with respect to the Senior Second Lien Notes, this
condition is satisfied as a result of the receipt by the Administrative Agent of the General
Intercreditor Agreement pursuant to
Section 6.1(f)
);
(d) Permitted Liens;
(e) (i) Liens securing Indebtedness permitted pursuant to
Section 10.1(f)
,
provided
that (x) such Liens attach at all times only to the assets so financed
except for accessions to the property financed with the proceeds of such Indebtedness and
the proceeds and the products thereof and (y) that individual financings of equipment
provided by one lender may be cross collateralized to other financings of equipment provided
by such lender, and (ii) Liens on the assets of Restricted Foreign Subsidiaries that are not
European Credit Parties securing Indebtedness permitted pursuant to
Sections
10.1(n)
, and
(p)
and (iii) Liens on assets of Restricted Foreign Subsidiaries
not constituting Collateral securing Indebtedness permitted by
Section 10.1(w)
;
(f) Liens existing on the date hereof and listed on
Schedule 10.2
;
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(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) (i) Liens placed upon the Stock and Stock Equivalents of any Restricted Subsidiary
acquired pursuant to a Permitted Acquisition to secure Indebtedness incurred pursuant to
Section 10.1(k)
in connection with such Permitted Acquisition and (ii) Liens placed
upon the assets of such Restricted Subsidiary to secure Indebtedness of such Restricted
Subsidiary or a guarantee by such Restricted Subsidiary of any Indebtedness of the Parent
Borrower or any other Restricted Subsidiary, incurred pursuant to
Section 10.1(k)
,
in each case, in an aggregate amount not to exceed the amount permitted by the proviso to
subclause (y)
of such
Section 10.1(k)
;
(j) Liens securing Indebtedness or other obligations (i) of the Parent Borrower or a
Restricted Subsidiary in favor of a U.S. Credit Party, (ii) of any Restricted Subsidiary
that is not a U.S. Credit Party or 1993 Indenture Restricted Subsidiary owed to a European
Credit Party and (iii) of any Restricted Subsidiary that is not a Credit Party or a 1993
Indenture Restricted Subsidiary in favor of any Restricted Subsidiary that is not a Credit
Party;
(k) Liens (i) of a collecting bank arising under Section 4-210 of the Uniform
Commercial Code on items in the course of collection, (ii) attaching to commodity trading
accounts or other commodities brokerage accounts incurred in the ordinary course of
business; and (iii) in favor of a banking institution arising as a matter of law encumbering
deposits (including the right of set-off);
(l) Liens (i) on cash advances in favor of the seller of any property to be acquired in
an Investment permitted pursuant to
Section 10.5
to be applied against the purchase
price for such Investment, and (ii) consisting of an agreement to sell, transfer, lease or
otherwise dispose of any property in a transaction permitted under
Section 10.4
, in
each case, solely to the extent such Investment or sale, disposition, transfer or lease, as
the case may be, would have been permitted on the date of the creation of such Lien;
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(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; and
(r) additional Liens so long as the aggregate principal amount of the obligations
secured thereby does not exceed $1,000,000,000 at any time outstanding (including second
Liens on the Senior Second Lien Notes Collateral but only to the extent the holders (or a
representative thereof) of the obligations secured by such second Liens comply with the
proviso to
clause (c)
above).
Notwithstanding the foregoing, (A) the Parent Borrower will not, and will not permit any
Restricted Subsidiary to, create, incur, assume or suffer to exist any Lien on any Principal
Property other than (i) Liens permitted by the definition of Permitted Liens to the extent
permitted under Section 1105 of the 1993 Indenture, (ii) Liens securing the Obligations, and (iii)
Liens otherwise permitted by this
Section 10.2
on Principal Properties that are not
Collateral to secure Indebtedness in an aggregate principal amount at any time outstanding that,
when aggregated (without duplication) with (I) the aggregate principal amount of Indebtedness of
1993 Indenture Restricted Subsidiaries (other than Indebtedness owing to a U.S. Credit Party or
another 1993 Indenture Restricted Subsidiary to the extent permitted under section 1107 of the 1993
Indenture) and (II) the aggregate principal amount of all other Indebtedness (other than
Indebtedness owed to any U.S. Credit Party) secured by Liens on any assets of 1993 Indenture
Restricted Subsidiaries, does not exceed at any time outstanding the lesser of (x) $600,000,000 and
(y) 5% of Consolidated Net Tangible Assets (as defined in the 1993 Indenture as in effect on the
Closing Date) determined as of the date of such incurrence;
provided
, that such Liens are
permitted under the 1993 Indenture without equally and ratably securing the Retained Indebtedness
and (B) the Parent Borrower will not permit any 1993 Indenture Restricted Subsidiary to create,
incur, assume or suffer to exist any Lien on any of its assets other than (i) Liens permitted by
the defini-
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tion of Permitted Liens, (ii) Liens in favor of the U.S. Credit Parties to the extent
permitted under section 1107 of the 1993 Indenture and (iii) additional Liens otherwise permitted
by this Section 10.2 so long as the aggregate principal amount of the obligations secured thereby,
when aggregated (without duplication) with (I) the aggregate principal amount of Indebtedness of
1993 Indenture Restricted Subsidiaries (other than Indebtedness owing to a U.S. Credit Party 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)
secured by Liens on Principal Properties, does not exceed at any time outstanding the lesser of (x)
$600,000,000 and (y) 5% of Consolidated Net Tangible Assets (as defined in the 1993 Indenture as in
effect on the Closing Date) determined as of the date of such incurrence.
10.3.
Limitation on Fundamental Changes
. Except as expressly permitted by
Section 10.4
or
10.5
, the Parent Borrower
will not, and will not permit any of the Restricted Subsidiaries to, enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation
or dissolution), or convey, sell, lease, assign, transfer or otherwise dispose of, all or
substantially all its business units, assets or other properties, except that:
(a) so long as no Default or Event of Default would result therefrom, any Subsidiary of
the Parent Borrower or any other Person may be merged, amalgamated or consolidated with or
into the Parent Borrower,
provided
that (i) except as permitted by
subclause
(ii)
below, the Parent Borrower shall be the continuing or surviving corporation, (ii)
if the Person formed by or surviving any such merger, amalgamation or consolidation is not
the Parent Borrower (such other Person, the
Successor Borrower
), the Successor Borrower
shall be an entity organized or existing under the laws of the United States, any state
thereof, the District of Columbia or any territory thereof (such Parent Borrower or such
Successor Borrower, as the case may be, being herein referred to as the
Successor Parent
Borrower
), (iii) any Successor Borrower shall expressly assume all the obligations of the
Parent Borrower under this Agreement and the other Credit Documents pursuant to a supplement
hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iv) each
U.S. Guarantor, unless it is the other party to such merger or consolidation, shall have by
a supplement to the U.S. Guarantee confirmed that its guarantee thereunder shall apply to
any Successor Borrowers obligations under this Agreement, (v) each Subsidiary grantor and
each Subsidiary pledgor, unless it is the other party to such merger or consolidation, shall
have by a supplement to the U.S. Security Agreement or the U.S. Pledge Agreement, as
applicable, confirmed that its obligations thereunder shall apply to any Successor
Borrowers obligations under this Agreement, (vi) each mortgagor of a Mortgaged Property,
unless it is the other party to such merger or consolidation, shall have confirmed that its
obligations under the applicable Mortgage shall apply to any Successor Borrowers
obligations under this Agreement, (vii) the Successor Parent Borrower shall be in
compliance, on a Pro Forma Basis after giving effect to such merger or consolidation, with
the covenant set forth in
Section 10.9
for the most recent Test Period, and (viii)
the Successor Parent Borrower shall have delivered to the Administrative Agent (x) an
officers certificate stating that such merger or consolidation complies with this Agreement
and such supplements (if any) preserve the enforceability of the U.S. Guarantee and the
perfection and priority of the Liens under the applicable Security Documents and (y) if
reasonably requested by the Administrative Agent, an opinion of counsel to the
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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
a Borrower) may be merged, amalgamated or consolidated with or into any one or more
Subsidiaries of the Parent Borrower,
provided
that (i) in the case of any merger,
amalgamation or consolidation involving one or more Restricted Subsidiaries, (A) a
Restricted Subsidiary shall be the continuing or surviving Person or (B) the Parent Borrower
shall take all steps necessary to cause the Person formed by or surviving any such merger,
amalgamation or consolidation (if other than a Restricted Subsidiary) to become a Restricted
Subsidiary, (ii) in the case of any merger, amalgamation or consolidation involving one or
more U.S. Guarantors, a U.S. Guarantor shall be the continuing or surviving Person or the
Person formed by or surviving any such merger, amalgamation or consolidation (if other than
a U.S. Guarantor) shall execute a supplement to the U.S. Guarantee Agreement and the
relevant U.S. Security Documents in form and substance reasonably satisfactory to the
Administrative Agent in order to become a U.S. Guarantor and pledgor, mortgagor and grantor,
as applicable, thereunder for the benefit of the Secured Parties, (iii) in the case of any
merger, amalgamation or consolidation involving one or more European Guarantors (other than
any such transaction subject to
subclause (ii)
above or
clause (c)
below) a
European Guarantor shall be the continuing or surviving Person or the Person formed by or
surviving any such merger, amalgamation or consolidation (if other than a European
Guarantor) shall execute a supplement to this Agreement or the applicable European Guarantee
and the relevant European Security Agreement in form and substance reasonably satisfactory
to the Administrative Agent in order to become a European Guarantor and pledgor, mortgagor
and grantor, as applicable, thereunder for the benefit of the European Secured Parties, (iv)
in the case of any merger, amalgamation or consolidation involving one or more 1993
Indenture Restricted Subsidiaries (other than any such transaction subject to
subclause
(ii)
above), a 1993 Indenture Restricted Subsidiary shall be the continuing or surviving
Person, (v) no Default or Event of Default would result from the consummation of such
merger, amalgamation or consolidation, (vi) the Parent Borrower shall be in compliance, on a
Pro Forma Basis after giving effect to such merger, amalgamation or consolidation, with the
covenant set forth in
Section 10.9
for the most recently ended Test Period, and
(vii) Parent Borrower shall have delivered to the Administrative Agent an officers
certificate stating that such merger, amalgamation or consolidation complies with this
Agreement and, in the case of any merger, amalgamation or consolidation involving any Credit
Party, any such supplements to any Credit Document as are necessary to preserve the
enforceability of the Guarantees and the perfection and priority of the Liens under the
applicable Security Documents;
(c) so long as no Default or Event of Default would result therefrom, any Subsidiary of
the European Subsidiary Borrower or any other Person (other than a U.S. Credit Party or a
1993 Indenture Restricted Subsidiary) may be merged, amalgamated or consolidated with or
into the European Subsidiary Borrower,
provided
that (i) the European Subsidiary
Borrower shall be the continuing or surviving Person or the Person
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formed by or surviving any such merger, amalgamation or consolidation (if other than
the European Subsidiary Borrower) shall be an entity organized or existing under the laws of
the jurisdiction of organization of the European Subsidiary Borrower prior to any such
merger or consolidation (the European Subsidiary Borrower or such Person, as the case may
be, being herein referred to as a
Successor European Subsidiary Borrower
), (ii) if the
Successor European Subsidiary Borrower is other than the European Subsidiary Borrower prior
to such merger, amalgamation or consolidation, (A) the Successor European Subsidiary
Borrower shall expressly assume all the obligations of the European Subsidiary Borrower
under this Agreement and the other Credit Documents pursuant to a supplement hereto or
thereto in form reasonably satisfactory to the Administrative Agent, (B) each European
Guarantor, unless it is the other party to such merger, amalgamation or consolidation, shall
have by a supplement to the applicable European Guarantee confirmed that its guarantee
thereunder shall apply to the Successor European Subsidiary Borrowers obligation under this
Agreement, (C) each European Subsidiary grantor and each European Subsidiary pledgor, unless
it is the other party to such merger, amalgamation or consolidation, shall have by a
supplement to the relevant European Security Agreement, confirmed that its obligations
thereunder shall apply to the Successor European Subsidiary Borrowers obligations under
this Agreement and (D) each mortgagor of a Mortgaged Property securing the European
Obligations, unless it is the other party to such merger or consolidation, shall have
confirmed that its obligations under the applicable Mortgage shall apply to the Successor
European Subsidiary Borrowers obligations under this Agreement, (iii) the Parent Borrower
shall be in compliance, on a Pro Forma Basis after giving effect to such merger or
consolidation, with the covenant set forth in
Section 10.9
for the most recently
ended Test Period, and (iv) the European Subsidiary Borrower shall have delivered to the
Administrative Agent (x) an officers certificate stating that such merger or consolidation
complies with this Agreement and such supplements (if any) to this Agreement preserve the
enforceability of the relevant European Guarantee and the perfection and priority of the
Liens under the European Security Agreement and (y) if reasonably requested by the
Administrative Agent, an opinion of counsel to the effect that the merger and consolidation
does not violate this Agreement or any other Credit Document (it being understood that if
the foregoing are satisfied, the Successor European Subsidiary Borrower will succeed to, and
be substituted for, the European Subsidiary Borrower under this Agreement);
(d) any Restricted Subsidiary that is not a Credit Party or a 1993 Indenture Restricted
Subsidiary may sell, lease, transfer or otherwise dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to the Parent Borrower or any other Restricted
Subsidiary;
(e) any Subsidiary may sell, lease, transfer or otherwise dispose of any or all of its
assets (other than any Principal Property owned by a Subsidiary that is not a U.S. Credit
Party) (upon voluntary liquidation or otherwise) to any U.S. Credit Party, provided that the
consideration for any such disposition by any Person other than a U.S. Guarantor shall not
exceed the fair value of such assets;
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(f) any European Guarantor may sell, lease, transfer or otherwise dispose of any or all
of its assets (upon voluntary liquidation or otherwise) to another European Credit Party;
and
(g) any Restricted Subsidiary (other than the European Subsidiary Borrower) may
liquidate or dissolve if (i) the Parent Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Parent Borrower and is not
materially disadvantageous to the Lenders, (ii) to the extent such Restricted Subsidiary is
(A) a U.S. Credit Party or a 1993 Indenture Restricted Subsidiary, any assets or business
not otherwise disposed of or transferred in accordance with
Section 10.4
or
10.5
or, in the case of any such business, discontinued, shall be transferred to, or
otherwise owned or conducted by, a U.S. Credit Party (or, in the case of a liquidation or
dissolution of a 1993 Indenture Restricted Subsidiary, another 1993 Indenture Restricted
Subsidiary) after giving effect to such liquidation or dissolution and (B) a European
Guarantor, any assets or business not otherwise disposed of or transferred in accordance
with
Section 10.4
or
10.5
or, in the case of any such business,
discontinued, shall be transferred to or otherwise owned or conducted by, another Credit
Party after giving effect to such liquidation or dissolution.
10.4.
Limitation on Sale of Assets
. (i) The Parent Borrower will not, and will not permit any of the Restricted Subsidiaries
to, convey, sell, lease, assign, transfer or otherwise dispose of any of its property, business or
assets (including receivables, Stock and Stock Equivalents of any other Person and leasehold
interests), whether now owned or hereafter acquired (other than any such sale, transfer, assignment
or other disposition resulting from any casualty or condemnation, of any assets of the Parent
Borrower or the Restricted Subsidiaries) and (ii) the Parent Borrower will not permit any
Restricted Subsidiary to issue any Stock and Stock Equivalents, except, in each case:
(a) the Parent Borrower and the Restricted Subsidiaries may sell, transfer or otherwise
dispose of (i) inventory, used or surplus equipment, vehicles and other assets in the
ordinary course of business and (ii) Permitted Investments;
(b) Restricted Subsidiaries may issue Stock and Stock Equivalents and the Parent
Borrower and the Restricted Subsidiaries may sell, transfer or otherwise dispose of assets
(each of the foregoing, a
Disposition
), excluding a Disposition of accounts receivable,
except in connection with the Disposition of any business to which such accounts receivable
relate, for fair value in an aggregate amount pursuant to this
clause (b)
, when
aggregated with the amount of Permitted Sale Leaseback Transactions consummated pursuant to
Section 10.4(h)
, not to exceed $6,600,000,000,
provided
that (i) with
respect to any Disposition pursuant to this
clause (b)
for a purchase price in
excess of $100,000,000, the Parent Borrower or a Restricted Subsidiary shall receive not
less than 75% of such consideration in the form of cash or Permitted Investments;
provided
that for the purposes of this
clause (i)
the following shall be
deemed to be cash: (A) any liabilities (as shown on the Parent Borrowers or such Restricted
Subsidiarys most recent balance sheet provided hereunder or in the footnotes thereto) of
the Parent Borrower or such Restricted Subsidiary, other than liabilities that are by their
terms subordinated to the payment in cash of the Obligations, that are assumed by the
transferee with respect to the ap-
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plicable 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) any
non-cash proceeds received are pledged to the Collateral Agent to the extent required under
Section 9.12
, (iii) with respect to any such sale, transfer or disposition (or
series of related sales, transfers or dispositions), the Parent Borrower shall be in
compliance, on a Pro Forma Basis after giving effect to such sale, transfer or disposition,
with the covenant set forth in
Section 10.9
for the most recently ended Test Period,
(iv) to the extent required, the Net Cash Proceeds thereof to the Parent Borrower and the
Restricted Subsidiaries are promptly applied to the prepayment of Term Loans as provided for
in
Section 5.2
and (v) after giving effect to any such sale, transfer or
disposition, no Default or Event of Default shall have occurred and be continuing;
(c) the Parent Borrower and the Restricted Subsidiaries may make Dispositions to the
Parent Borrower or to any Restricted Subsidiary,
provided
that with respect to any
such Dispositions (w) from U.S. Credit Parties to Restricted Subsidiaries that are not U.S.
Credit Parties (x) from European Credit Parties to the Parent Borrower or any Restricted
Subsidiary that is not a European Credit Party, (y) from 1993 Indenture Restricted
Subsidiaries to the Parent Borrower or any Restricted Subsidiary that is not a 1993
Indenture Restricted Subsidiary or (z) from Restricted Subsidiaries that are not Credit
Parties or 1993 Indenture Restricted Subsidiaries to any Credit Party or 1993 Indenture
Restricted Subsidiary (i) such sale, transfer or disposition shall be for fair value, (ii)
with respect to any Disposition pursuant to this
clause (c)
for a purchase price in
excess of $100,000,000, the Person making such Disposition shall receive not less than 75%
of such consideration in the form of cash or Permitted Investments;
provided
that
for the purposes of this
subclause (ii)
the following shall be deemed to be cash:
(A) any liabilities (as shown on the Parent Borrowers or such Restricted Subsidiarys most
recent balance sheet provided hereunder or in the footnotes thereto) of the Parent Borrower
or such Restricted Subsidiary, other than liabilities that are by their terms subordinated
to the payment in cash of the Obligations, that are assumed by the transferee with respect
to the applicable Disposition and for which the Parent Borrower and all of the Restricted
Subsidiaries shall have been validly released by all applicable creditors in writing, (B)
any securities received by the Person making such Disposition from the purchaser that are
converted by such Person into cash (to the extent of the cash received) within 180 days
following the closing of the applicable Disposition, (C) any Designated Non-Cash
Consideration received by the Person making such Disposition having an aggregate fair market
value, taken together with all other Designated Non-Cash
Consideration received pur-
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suant to this
Section 10.4(c)
and
Section 10.4(b)
that is at that time
outstanding, shall not be in excess of the sum of (x) 1.5% of Consolidated Total Assets at
the time of the receipt of such Designated Non-Cash Consideration,
plus
(y)
$100,000,000, with the fair market value of each item of Designated Non-Cash Consideration
being measured at the time received and without giving effect to subsequent changes in
value, and (iii) any non-cash proceeds received are pledged to the Collateral Agent to the
extent required under
Section 9.12
;
(d) the Parent Borrower and any Restricted Subsidiary may effect any transaction
permitted by
Section 10.3
,
10.5
or
10.6
(including the making of any
dividend (as defined in
Section 10.6
) by any Subsidiary);
(e) Dispositions of accounts receivable and related assets of 1993 Indenture Restricted
Subsidiaries to ABL Entities in connection with the ABL Facility;
(f) the Parent Borrower and the Restricted Subsidiaries may lease, sublease, license or
sublicense (on a non-exclusive basis with respect to any intellectual property) real,
personal or intellectual property in the ordinary course of business;
(g) Dispositions of property (including like-kind exchanges) to the extent that (i)
such property is exchanged for credit against the purchase price of similar replacement
property or (ii) the proceeds of such Disposition are promptly applied to the purchase price
of such replacement property, in each case under Section 1031 of the Code or otherwise;
(h) Dispositions of property pursuant to Permitted Sale Leaseback transactions in an
aggregate amount pursuant to this
clause (h)
when aggregated with the amount of
Dispositions made pursuant to
clause (b)
above not to exceed $6,600,000,000;
(i) Dispositions of Investments in joint ventures (regardless of the form of legal
entity) to the extent required by, or made pursuant to, customary buy/sell arrangements
between the joint venture parties set forth in joint venture arrangements and similar
binding arrangements;
(j) customary Dispositions in connection with any Permitted Receivables Financing;
(k) dispositions of Stock and Stock Equivalents of any Subsidiary or joint venture for
fair market value to Facility Syndication Partners in connection with any Syndication;
provided that the fair market value of the aggregate amount of Stock and Stock Equivalents
disposed of pursuant to this
clause (k)
with respect to any individual Subsidiary
(and not subsequently repurchased or redeemed by the Parent Borrower or any Restricted
Subsidiary) shall not exceed $5,000,000; 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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Notwithstanding the foregoing, the Parent Borrower will not permit the European Borrower to
cease to be a Restricted Subsidiary unless all European Term Loans shall have been, or shall
concurrently therewith be, repaid.
10.5.
Limitation on Investments
. The Parent Borrower will not, and will not permit any of the Restricted Subsidiaries to
make any Investment except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Permitted Investments;
(c) loans and advances to officers, directors and employees of the Parent Borrower (or
any direct or indirect parent thereof) or any of its Subsidiaries or to Physicians with whom
the Parent Borrower or any of its Subsidiaries have contractual relationships (i) for
reasonable and customary business-related travel, entertainment, relocation and analogous
ordinary business purposes (including employee payroll advances), (ii) in connection with
such Persons purchase of Stock or Stock Equivalents of the Parent Borrower (or any direct
or indirect parent thereof) to the extent that the amount of such loans and advances are
directly or indirectly contributed to the Parent Borrower in cash and (iii) for purposes not
described in the foregoing
subclauses (i)
and
(ii)
, in an aggregate
principal amount outstanding pursuant to this
subclause (iii)
not to exceed
$20,000,000;
(d) Investments existing on, or contemplated as of, the date hereof 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 date hereof;
(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;
(g) Investments (i) (a) by the Parent Borrower or any Restricted Subsidiary in any U.S.
Credit Party, (b) between or among European Credit Parties, (c) between or among 1993
Indenture Restricted Subsidiaries, (d) between or among Restricted Subsidiaries that are
neither Credit Parties nor 1993 Indenture Restricted Subsidiaries and (e) consisting of
intercompany Investments incurred in the ordinary course of business in connection with the
cash management operations (including with respect to intercompany self-insurance
arrangements) among the Parent Borrower and the Restricted Subsidiaries (provided that any
such intercompany Investment in connection with cash management arrangements by (A) a Credit
Party in a Subsidiary that is not a Credit Party or (B) a U.S. Credit Party in a European
Credit Party is in the form of an intercompany loan or advance
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and the Parent Borrower or such Restricted Subsidiary complies with
Section
9.12
to the extent applicable), and (ii) (a) by Credit Parties in any Restricted
Subsidiary that is not a Credit Party, (b) by 1993 Indenture Restricted Subsidiaries in any
Restricted Subsidiary that is not a 1993 Indenture Restricted Subsidiary, (c) by any
Restricted Subsidiary that is neither a Credit Party nor a 1993 Indenture Restricted
Subsidiary in any European Credit Party or any 1993 Indenture Restricted Subsidiary or (d)
by U.S. Credit Parties in a European Credit Party, in each case valued at the fair market
value (determined by the Parent Borrower acting in good faith) of such Investment at the
time each such Investment was made, in an aggregate amount pursuant to this
subclause
(ii)
that, at the time each such Investment is made, would not exceed (x) the excess of
(A) $1,500,000,000 over (B) the amount of Investments outstanding at such time in reliance
on
Section 10.5(i)(ii)(x)
at such time plus (y) the Applicable Amount at such time;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments
in Unrestricted Subsidiaries and (ii) Investments in joint ventures (regardless of the form
of legal entity) or similar Persons that do not constitute Restricted Subsidiaries), in each
case valued at the fair market value (determined by the Parent Borrower acting in good
faith) of such Investment at the time each such Investment is made, in an aggregate amount
pursuant to this
clause (i)
that, at the time each such Investment is made, would
not exceed the sum of (x) the excess of (A) $1,500,000,000 over (B) the amount of
Investments outstanding at such time in reliance on
Section 10.5(g)(ii)(x)
at such
time,
plus
(y) the Applicable Amount at such time
plus
(z) without
duplication of any amount that increased the JV Distribution Amount, an amount equal to any
repayments, interest, returns, profits, distributions, income and similar amounts actually
received in cash in respect of any such Investment (which amount referred to in this
subclause (z)
shall not exceed the amount of such Investment valued at the fair
market value of such Investment at the time such Investment was made);
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent
permitted by
Section 10.4
;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Parent
Borrower or any direct or indirect parent thereof owned by any employee or any employee
stock ownership plan or key employee stock ownership plan of the Parent Borrower (or any
direct or indirect parent thereof);
(l) Investments permitted under
Section 10.6
;
(m) loans and advance to any direct or indirect parent of the Parent Borrower in lieu
of, and not in excess of the amount of, dividends to the extent permitted to be made to such
parent in accordance with
Section 10.6
;
(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
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financially troubled account debtors and other credits to suppliers in the ordinary
course of business;
(o) Investments in the ordinary course of business consisting of endorsements for
collection or deposit and customary trade arrangements with customers consistent with past
practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Parent Borrower or any Restricted Subsidiary of leases
(other than Capital Leases) or of other obligations that do not constitute Indebtedness, in
each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation)
after the Closing Date otherwise in accordance with this
Section 10.5
to the extent
that such Investments were not made in contemplation of or in connection with such
acquisition, merger or consolidation and were in existence on the date of such acquisition,
merger or consolidation;
(s) Investments by 1993 Indenture Restricted Subsidiaries of accounts receivable and
related assets in ABL Entities;
(t) Investments arising out of or in connection with any Permitted Receivables
Financing;
(u) Investments by the Parent Borrower in the European Subsidiary Borrower arising as a
result of any payment made by the Parent Borrower in respect of European Tranche Term Loans
pursuant to
Section 5.2(a)(ii)
;
(v) Investments by the Parent Borrower and the Restricted Subsidiaries in any joint
venture (regardless of the form of legal entity) or Restricted Subsidiary in an aggregate
amount at any time outstanding not to exceed the sum of (A) $600,000,000
plus
(B)
the JV Distribution Amount
plus
(C) without duplication of any amount that increased
the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits,
distributions, income and similar amounts actually received in cash in respect of any such
Investment (which amount referred to in this
subclause (C)
shall not exceed the
amount of such Investment valued at the fair market value of such Investment at the time
such Investment was made); provided, that the aggregate amount of Investments made in
reliance on
subclause (B)
or
(C)
above by (i) the U.S. Credit Parties shall
not exceed the aggregate of the amounts referred to in such subclauses that were directly or
indirectly received by U.S. Credit Parties and (ii) the European Credit Parties shall not
exceed the aggregate of the amounts referred to in such subclauses that were directly or
indirectly received by European Credit Parties;
(w) any redemption by Healthtrust, or transfer to Healthtrust or the Parent Borrower,
of shares of Stock of Healthtrust held by ColumbiaSDH and Epic Properties;
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(x) intercompany transfers of creditor positions in respect of Indebtedness outstanding
pursuant to Sections
10.1(a)
,
10.1(g)(ii)
or
10.1(i)
; and
(y) Investments constituting Indebtedness outstanding pursuant to
Section
10.1(a)(z)
and
10.1(i)(z)
.
10.6.
Limitation on Dividends
. The Parent Borrower will not declare or pay any dividends (other than dividends payable
solely in its Qualified Equity Interests) or return any capital to its stockholders (including any
option holders) or make any other distribution, payment or delivery of property or cash to its
stockholders as such, or redeem, retire, purchase or otherwise acquire, directly or indirectly, for
consideration, any shares of any class of its Stock or Stock Equivalents or the Stock or Stock
Equivalents of any direct or indirect parent now or hereafter outstanding, or set aside any funds
for any of the foregoing purposes, or permit any of the Restricted Subsidiaries to purchase or
otherwise acquire for consideration (other than in connection with an Investment permitted by
Section 10.5
) any Stock or Stock Equivalents of the Parent Borrower, now or hereafter
outstanding (all of the foregoing,
dividends
),
provided
that, so long as no Default or
Event of Default exists or would exist after giving effect thereto:
(a) the Parent Borrower may (or may pay dividends to permit any direct or indirect
parent thereof to) redeem in whole or in part any of its Stock or Stock Equivalents for
another class of its (or such parents) Stock or Stock Equivalents or with proceeds from
substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents
(other than any amount received by the Parent Borrower in satisfaction of the requirements
of the first sentence of
Section 10.7(e)
),
provided
that such new Stock or
Stock Equivalents contain terms and provisions at least as advantageous to the Lenders in
all respects material to their interests as those contained in the Stock or Stock
Equivalents redeemed thereby;
(b) the Parent Borrower may (or may pay dividends to permit any direct or indirect
parent thereof to) repurchase shares of its (or such parents) Stock or Stock Equivalents
held by officers, directors and employees of the Parent Borrower and its Subsidiaries (other
than the Frist Shareholders), so long as such repurchase is pursuant to, and in accordance
with the terms of, management and/or employee stock plans, stock subscription agreements or
shareholder agreements;
(c) the Parent Borrower may pay dividends on the Stock or Stock Equivalents,
provided
that the amount of any such dividends pursuant to this
clause (c)
shall not exceed an amount equal to (i) $600,000,000,
less
(ii) the amount of Junior
Indebtedness purchased in reliance on
Section 10.7(a)(i)(x)
,
plus
(iii) the
Applicable Amount at such time; and
(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
-143-
Parent Borrower or its Restricted Subsidiaries determined as if the Parent
Borrower and its Restricted Subsidiaries filed separately and (B) for as long as
Holdings is a direct or indirect parent of the Parent Borrower, distributions equal
to any taxable income of Holdings resulting from the hedging arrangements entered
into by Holdings on or about September 13, 2006 and with respect to which the Parent
Borrower will be the counterparty multiplied by 45%;
(ii) the proceeds of which shall be used to allow any direct or indirect parent
of the Parent Borrower to pay (A) its operating expenses incurred in the ordinary
course of business and other corporate overhead costs and expenses (including
administrative, legal, accounting and similar expenses provided by third parties),
which are reasonable and customary and incurred in the ordinary course of business,
in an aggregate amount not to exceed $10,000,000 in any fiscal year of the Parent
Borrower
plus
any reasonable and customary indemnification claims made by
directors or officers of the Parent Borrower (or any parent thereof) attributable to
the ownership or operations of the Parent Borrower and its Restricted Subsidiaries
or (B) fees and expenses otherwise due and payable by the Parent Borrower or any of
its Restricted Subsidiaries and permitted to be paid by the Parent Borrower or such
Restricted Subsidiary under this Agreement;
(iii) the proceeds of which shall be used to pay franchise and excise taxes and
other fees, taxes and expenses required to maintain the corporate existence of any
of its direct or indirect parent of the Parent Borrower; and
(iv) to any direct or indirect parent of the Parent Borrower to finance any
Investment permitted to be made by the Parent Borrower or a Restricted Subsidiary
pursuant to
Section 10.5
;
provided
that (A) such dividend shall be
made substantially concurrently with the closing of such Investment, (B) such parent
shall, immediately following the closing thereof, cause (1) all property acquired
(whether assets, Stock or Stock Equivalents) to be contributed to the Parent
Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in
Section 10.5
) of the Person formed or acquired into the Parent Borrower or
its Restricted Subsidiaries and (C) Parent Borrower shall comply with
Sections
9.11
and
9.12
to the extent applicable; and
(e) the Parent Borrower may pay cash dividends to Holdings for Holdings to pay cash
dividends, after the fifth anniversary of the date of issuance of any Qualified Holdings
Debt solely for the purpose of paying regularly scheduled interest payments with respect to
such Qualified Holdings Debt, so long as on a Pro Forma Basis after giving effect to the
payments of such dividends (i) the Parent Borrower shall be in compliance with the covenant
set forth in
Section 10.9
for the most recently ended Test Period 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.
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10.7.
Limitations on Debt Payments and Amendments; Matters Relating to Required Additional
Equity Investments
.
(a) The Parent Borrower will not, and will not permit any Restricted Subsidiary 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 Senior Second Lien Debt (collectively,
Junior Indebtedness
);
provided
,
however
, that so long as no Default or Event of Default shall have occurred and be
continuing at the date of such prepayment, repurchase, redemption or other defeasance or would
result therefrom, the Parent Borrower or any Restricted Subsidiary may prepay, repurchase or redeem
Junior Indebtedness (i) for an aggregate price not in excess of (x) $600,000,000 less (y) the
amount of Restricted Payments made pursuant to
Section 10.6(c)(i)
,
plus
(z) the
Applicable Amount at the time of such prepayment, repurchase or redemption, (ii) in the case of
Subordinated Indebtedness, with the proceeds of Subordinated Indebtedness that (I) is permitted by
Section 10.1
(other than
Section 10.1(o)
) and (II) if such Junior Indebtedness
being repaid, repurchased or redeemed is Subordinated Indebtedness, has terms not materially less
advantageous to the Lenders than those of the Indebtedness being refinanced or (iii) in the case of
Permitted Senior Second Lien Debt, with the proceeds of refinancing Indebtedness otherwise
permitted by
Section 10.1
constituting Permitted Additional Debt or Permitted Senior Second
Lien Debt. 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/or 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 Senior Second Lien Notes.
(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 Closing Date in connection with 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 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, 2010 and December 31, 2011, (ii) 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 Term Loan Maturity Date (and if at
such time all Tranche A Term Loans have been repaid in full, the Tranche B Term Loan Maturity Date)
if on a Pro Forma Basis after giving effect to such repayment the Consolidated First Lien Debt to
Consolidated EBITDA Ratio for the most recent Test Period is no greater than 4.0:1 and (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)
.
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(c) Prior to repayment in full of all European Obligations with respect to the European
Tranche Term Loans, the Parent Borrower will not permit the advances under the Swiss Secured Loan
Agreement to be prepaid or amended in any manner adverse to the Lenders in any material respect or
for the European Subsidiary Borrowers rights thereunder to be transferred to any Person other than
a Credit Party.
(d) 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.
(e) The Parent Borrower shall have received (i) the Option Note Amount from either (x) the
repayment or prepayment of the Option Note (including through the cancellation pursuant to the
Merger of Stock or Stock Equivalents of the Parent Borrower owned by the issuer of, and having a
value equivalent to, the Option Note) or (y) contributions to its common equity, in either case no
later than December 2, 2006 and (ii) additional common equity in an amount equal to the Delayed
Equity Amount no later than March 31, 2007. Prior to the satisfaction of the requirements of
clause (i)
of the first sentence of this
Section 10.7(e)
, the Parent Borrower will
not permit any waiver, amendment, modification or termination of the Option Note or fail to enforce
its right under the Option Note if the result of any of the foregoing would be adverse in any
material respect to the Lenders. Prior to the satisfaction of the requirements of
clause
(ii)
of the first sentence of this
Section 10.7(e)
, the Parent Borrower will not permit
any waiver, amendment, modification or termination of the Delayed Equity Arrangements or fail to
enforce its right under the Delayed Equity Arrangements if the result of any of the foregoing would
be adverse in any material respect to the Lenders.
(f) Epic Properties and ColumbiaSDH shall not permit any consensual Liens to exist on any
shares of Stock of Healthtrust owned by them (other than Liens in favor of the Parent Borrower or
Healthtrust). Following the occurrence and during the continuance of an Event of Default, the
Parent Borrower shall not permit Healthtrust to make any distribution on, or redemption of, Stock
of Healthtrust owned by Epic Properties or ColumbiaSDH unless the Collateral Agent shall have
consented thereto.
10.8.
Limitations on Sale Leasebacks
. The Parent Borrower will not, and will not permit any of the Restricted Subsidiaries to,
enter into or effect any Sale Leasebacks other than Permitted Sale Leasebacks.
10.9.
Consolidated Total Debt to Consolidated EBITDA Ratio
. The Parent Borrower will not permit the Consolidated Total Debt to Consolidated EBITDA
Ratio for any Test Period ending during any period set forth below to be greater than the ratio set
forth below opposite such period:
|
|
|
Period
|
|
Ratio
|
April 1, 2007 through December 31, 2008
|
|
8.75 to 1.00
|
January 1, 2009 through December 31, 2009
|
|
8.25 to 1.00
|
January 1, 2010 through December 31, 2010
|
|
7.75 to 1.00
|
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|
|
|
Period
|
|
Ratio
|
January 1, 2011 through December 31, 2011
|
|
7.25 to 1.00
|
January 1, 2012 through Final Maturity Date
|
|
6.75 to 1.00
|
10.10.
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 Closing Date and (ii)
performing its obligations pursuant to agreements in effect on the Closing Date and any automatic
extensions thereof.
10.11.
1993 Indenture Restricted Subsidiaries
. The Parent Borrower shall not designate any additional Subsidiary as a Restricted
Subsidiary under the 1993 Indenture or reorganize or change the ownership structure of any of its
Subsidiaries such that after giving effect to such reorganization or change a Subsidiary that
constituted an Unrestricted Subsidiary under the 1993 Indenture subsequently constitutes a
Restricted Subsidiary thereunder.
10.12.
No Impairment of Mortgages on Principal Properties
. For the avoidance of doubt and notwithstanding anything herein to the contrary, the Parent
Borrower agrees not to take, or permit any Subsidiary to take, any action that would result in the
principal amount of the Obligations that could be secured by the Principal Properties pursuant to
Section 1108 of the 1993 Indenture (after giving effect to all other uses of the exemption provided
in such Section 1108 of the 1993 Indenture) being less than 10% of Consolidated Net Tangible Assets
(as defined in the 1993 Indenture as in effect on the Closing Date ) of the Company (as defined in
the 1993 Indenture as in effect on the Closing Date) and its Consolidated Subsidiaries (as defined
in the 1993 Indenture as in effect on the Closing Date) determined as of the Closing Date.
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
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11.3.
Covenants
. Any Credit Party shall:
(a) default in the due performance or observance by it of any term, covenant or
agreement contained in
Section 9.1(e)
or
Section 10
; or
(b) default in the due performance or observance by it of any term, covenant or
agreement (other than those referred to in
Section 11.1
or
11.2
or
clause (a)
of this
Section 11.3
) contained in this Agreement, any Security
Document, any Guarantee or the Fee Letter dated July 24, 2006 between Holdings and the
Agents and such default shall continue unremedied for a period of at least 30 days after
receipt of written notice by the Parent Borrower from any Administrative Agent or the
Required Lenders; or
11.4.
Default Under Other Agreements
. (a) The Parent Borrower or any of the Restricted Subsidiaries shall (i) default in any
payment with respect to any Indebtedness (other than the Obligations) in excess of $150,000,000 in
the aggregate, for the Parent Borrower and such Restricted Subsidiaries, beyond the period of
grace, if any, provided in the instrument or agreement under which such Indebtedness was created or
(ii) default in the observance or performance of any agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto,
or any other event shall occur or condition exist (other than, with respect to Indebtedness
consisting of any Hedge Agreements, termination events or equivalent events pursuant to the terms
of such Hedge Agreements), the effect of which default or other event or condition is to cause, or
to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such
holder or holders) to cause, any such Indebtedness to become due prior to its stated maturity; or
(b) without limiting the provisions of
clause (a)
above, any such Indebtedness shall be
declared to be due and payable, or required to be prepaid other than by a regularly scheduled
required prepayment or as a mandatory prepayment (and, with respect to Indebtedness consisting of
any Hedge Agreements, other than due to a termination event or equivalent event pursuant to the
terms of such Hedge Agreements), prior to the stated maturity thereof; or
11.5.
Bankruptcy, Etc
.
Any Borrower or any Specified Subsidiary shall commence a voluntary case, proceeding or action
concerning itself under (a) Title 11 of the United States Code entitled Bankruptcy, or (b) in the
case of any Foreign Subsidiary that is a Specified Subsidiary, any domestic or foreign law relating
to bankruptcy, judicial management, insolvency, reorganization, administration or relief of debtors
in effect in its jurisdiction of incorporation, in each case as now or hereafter in effect, or any
successor thereto (collectively, the
Bankruptcy Code
); or an involuntary case, proceeding or
action is commenced against any Borrower or any Specified Subsidiary and the petition is not
controverted within 30 days after commencement of the case, proceeding or action; or an involuntary
case, proceeding or action is commenced against any Borrower or any Specified Subsidiary and the
petition is not dismissed within 60 days after commencement of the case, proceeding or action; or a
custodian (as defined in the Bankruptcy Code), judicial manager, receiver, receiver manager,
trustee, administrator or similar person is appointed for, or takes charge of, all or substantially
all of the property of any Borrower or any Specified Subsidiary; or any Borrower or any Specified
Subsidiary commences any other voluntary proceeding or action under any reorganization,
arrangement, adjustment of debt, relief of debtors, dissolution, insolvency, administration or
liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to any
Borrower or any Specified Sub-
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sidiary; or there is commenced against any Borrower or any Specified Subsidiary any such
proceeding or action that remains undismissed for a period of 60 days; or any Borrower or any
Specified Subsidiary is adjudicated insolvent or bankrupt; or any order of relief or other order
approving any such case or proceeding or action is entered; or any Borrower or any Specified
Subsidiary suffers any appointment of any custodian receiver, receiver manager, trustee,
administrator or the like for it or any substantial part of its property to continue undischarged
or unstayed for a period of 60 days; or any Borrower or any Specified Subsidiary makes a general
assignment for the benefit of creditors; or any corporate action is taken by any Borrower or any
Specified Subsidiary for the purpose of effecting any of the foregoing; or
11.6.
ERISA
. (a) Any Plan shall fail to satisfy the minimum funding standard required for any plan year
or part thereof or a waiver of such standard or extension of any amortization period is sought or
granted under Section 412 of the Code; any Plan is or shall have been terminated or is the subject
of termination proceedings under ERISA (including the giving of written notice thereof); an event
shall have occurred or a condition shall exist in either case entitling the PBGC to terminate any
Plan or to appoint a trustee to administer any Plan (including the giving of written notice
thereof); any Plan shall have an accumulated funding deficiency (whether or not waived); the Parent
Borrower or any ERISA Affiliate has incurred or is likely to incur a liability to or on account of
a Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201 or 4204 of ERISA or
Section 4971 or 4975 of the Code (including the giving of written notice thereof); (b) there could
result from any event or events set forth in
clause (a)
of this
Section 11.6
the
imposition of a lien, the granting of a security interest, or a liability, or the reasonable
likelihood of incurring a lien, security interest or liability; and (c) such lien, security
interest or liability will or would be reasonably likely to have a Material Adverse Effect; or
11.7.
Guarantee
. Any Guarantee provided by any Borrower or any Material Subsidiary or any material provision
thereof shall cease to be in full force or effect (other than pursuant to the terms hereof and
thereof) or any such Guarantor thereunder or any Credit Party shall deny or disaffirm in writing
any such Guarantors obligations under the Guarantee (or any of the foregoing shall occur with
respect to a Guarantee provided by a Subsidiary that is not a Material Subsidiary and shall
continue unremedied for a period of at least 30 days after receipt of written notice by the Parent
Borrower from any Administrative Agent, the Collateral Agent or the Required Lenders); or
11.8.
Pledge Agreement
. Any Pledge Agreement pursuant to which the Stock or Stock Equivalents of any Borrower or
any Material Subsidiary is pledged or any material provision thereof shall cease to be in full
force or effect (other than pursuant to the terms hereof or thereof or as a result of acts or
omissions of the Collateral Agent or any Lender) or any pledgor thereunder or any Credit Party
shall deny or disaffirm in writing any pledgors obligations under any Pledge Agreement (or any of
the foregoing shall occur with respect to a pledge of the Stock or Stock Equivalents of a
Subsidiary that is not a Material Subsidiary and shall continue unremedied for a period of at least
30 days after receipt of written notice by the Parent Borrower from the Administrative Agent, the
Collateral Agent or the Required Lenders); or
11.9.
Security Agreement
. The U.S. Security Agreement or the European Security Agreement pursuant to which the assets
of the Parent Borrower or any Material Subsidiary are pledged as Collateral or any material
provision thereof shall cease to be in full force or effect
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(other than pursuant to the terms hereof or thereof or as a result of acts or omissions of the
Collateral Agent or any Lender) or any grantor thereunder or any Credit Party shall deny or
disaffirm in writing any grantors obligations under the U.S. Security Agreement or such European
Security Agreement (or any of the foregoing shall occur with respect to Collateral provided by a
Subsidiary that is not a Material Subsidiary and shall continue unremedied for a period of at least
30 days after receipt of written notice by the Parent Borrower from the Administrative Agent, the
Collateral Agent or the Required Lenders); or
11.10.
Mortgages
. Any Mortgage or any material provision of any Mortgage relating to any material portion of
the Collateral shall cease to be in full force or effect (other than pursuant to the terms hereof
or thereof or as a result of acts or omissions of the Collateral Agent or any Lender) or any
mortgagor thereunder or any Credit Party shall deny or disaffirm in writing any mortgagors
obligations under any Mortgage; or
11.11.
Judgments
. One or more judgments or decrees shall be entered against the Parent Borrower or any of the
Restricted Subsidiaries involving a liability of $150,000,000 or more in the aggregate for all such
judgments and decrees for the Parent Borrower and the Restricted Subsidiaries (to the extent not
paid or covered by insurance provided by a carrier not disputing coverage) and any such judgments
or decrees shall not have been satisfied, vacated, discharged or stayed or bonded pending appeal
within 60 days after the entry thereof; or
11.12.
Change of Control
. A Change of Control shall occur;
then, and in any such event, and at any time thereafter, if any Event of Default shall then be
continuing, the Administrative Agent shall, upon the written request of the Required Lenders, by
written notice to the Parent Borrower, take any or all of the following actions, without prejudice
to the rights of the Administrative Agent or any Lender to enforce its claims against the
Borrowers, except as otherwise specifically provided for in this Agreement (
provided
that,
if an Event of Default specified in
Section 11.5
shall occur with respect to the Parent
Borrower, the result that would occur upon the giving of written notice by the Administrative Agent
as specified in
clauses (i)
,
(ii)
and
(iv)
below shall occur automatically
without the giving of any such notice): (i) declare the Total Revolving Credit Commitment and
Swingline Commitment terminated, whereupon the Revolving Credit Commitment and Swingline
Commitment, if any, of each Lender or the Swingline Lender, as the case may be, shall forthwith
terminate immediately and any Fees theretofore accrued shall forthwith become due and payable
without any other notice of any kind; (ii) declare the principal of and any accrued interest and
fees in respect of all Loans and all Obligations owing hereunder and thereunder to be, whereupon
the same shall become, forthwith due and payable without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Parent Borrower; (iii) terminate any
Letter of Credit that may be terminated in accordance with its terms; and/or (iv) direct the Parent
Borrower to pay (and the Parent Borrower agrees that upon receipt of such notice, or upon the
occurrence of an Event of Default specified in
Section 11.5
with respect to any Borrower,
it will pay) to the Administrative Agent at the Administrative Agents Office such additional
amounts of cash, to be held as security for the Parent Borrowers respective reimbursement
obligations for Drawings that may subsequently occur thereunder, equal to the aggregate Stated
Amount of all Letters of Credit issued and then outstanding. In connection with any acceleration
of the Obligations as contemplated by
clause (ii)
above, the Designated Obligations shall,
automatically and with no further action re-
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required by the Administrative Agent, any Credit Party or
any Lender, be converted into the Dollar Equivalent, determined using the Spot Rate calculated as
of the date of such acceleration (or, in the case of any Unpaid Drawings following the date of such
acceleration, as of the date of drawing under the applicable Letter of Credit) and from and after
such date all amounts accruing and owed to the Lenders in respect of such Designated Obligations
shall accrue and be payable in Dollars at the rate otherwise applicable hereunder.
Any amount received by the Administrative Agent or the Collateral Agent from any Credit Party
following any acceleration of the Obligations under this Agreement or any Event of Default with
respect to the Parent Borrower under
Section 11.5
shall be applied:
(i) first
, to the payment of all reasonable and documented costs and expenses incurred
by the Administrative Agent or Collateral Agent in connection with such collection or sale
or otherwise in connection with any Credit Document, including all court costs and the
reasonable fees and expenses of its agents and legal counsel, the repayment of all advances
made by the Administrative Agent or the Collateral Agent hereunder or under any other Credit
Document on behalf of any Credit Party and any other reasonable and documented costs or
expenses incurred in connection with the exercise of any right or remedy hereunder or under
any other Credit Document;
(ii) second
, to the Secured Parties, an amount (x) equal to all Obligations owing to
them on the date of any distribution and (y) sufficient to Cash Collateralize all Letters of
Credit Outstanding on the date of any distribution, and, if such moneys shall be
insufficient to pay such amounts in full and Cash Collateralize all Letters of Credit
Outstanding, then ratably (without priority of any one over any other) to such Secured
Parties in proportion to the unpaid amounts thereof and to Cash Collateralize the Letters of
Credit Outstanding; and
(iii) third
, any surplus then remaining shall be paid to the applicable Credit Parties
or their successors or assigns or to whomsoever may be lawfully entitled to receive the same
or as a court of competent jurisdiction may direct;
provided
that (x) no amount received from any European Credit Party or on account of any
Collateral that is solely Collateral for the European Obligations shall be applied pursuant to
clauses (i)
or
(ii)
of this paragraph to the extent such amounts do not constitute
European Obligations and (y) any amount applied to Cash Collateralize any Letters of Credit
Outstanding that has not been applied to reimburse the Letter of Credit Issuer for Unpaid Drawings
under the applicable Letters of Credit at the time of expiration of all such Letters of Credit
shall be applied by the Administrative Agent in the order specified in
clauses (i)
through
(iii)
above.
SECTION 12.
Investors Right to Cure
. Notwithstanding anything to the contrary
contained in
Section 11.3(a)
, in the event that the Parent Borrower fails to comply with
the requirement of the covenants set forth in
Section 10.9
, until the expiration of the
tenth day after the date on which Section 9.1 Financials with respect to the Test Period in which
the covenant set forth in such Section is being measured are required to be delivered pursuant to
Section 9.1
, any of the Investors shall have the right to make a direct or indirect equity
investment (other than any amount invested in satisfaction of the requirements set forth in the
first sentence of
Section
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10.7(e)
) in the Parent Borrower in cash (the
Cure Right
), and
upon the receipt by the Parent Borrower of net cash proceeds pursuant to the exercise of the Cure
Right (including through the capital contribution of any such net cash proceeds to such person, the
"
Cure Amount
), the covenant set forth in such Section shall be recalculated, giving effect to a
pro forma
increase to Consolidated EBITDA for such Test Period in an amount equal to such net cash
proceeds;
provided
that such
pro forma
adjustment to Consolidated EBITDA shall be given
solely for the purpose of determining the existence of a Default or an Event of Default under the
covenant set forth in such Section with respect to any Test Period that includes the fiscal quarter
for which such Cure Right was exercised and not for any other purpose under any Credit Document.
If, after the exercise of the Cure Right and the recalculations pursuant to
clause (a)
above, the Parent Borrower shall then be in compliance with the requirements of the covenant set
forth in
Section 10.9
during such Test Period (including for purposes of
Section
7.1
), the Parent Borrower shall be deemed to have satisfied the requirements of such covenant
as of the relevant date of determination with the same effect as though there had been no failure
to comply therewith at such date, and the applicable Default or Event of Default under
Section
11.3
that had occurred shall be deemed cured;
provided
that (i) in each Test Period
there shall be at least one fiscal quarter in which no Cure Right is exercised and (ii) with
respect to any exercise of the
Cure Right, the Cure Amount shall be no greater than the amount required to cause the Parent
Borrower to be in compliance with the covenant set forth in
Section 10.9
.
SECTION 13.
The Agents
.
13.1.
Appointment
.
(a) Each Lender hereby irrevocably designates and appoints the Administrative Agent as the
agent of such Lender under this Agreement and the other Credit Documents and irrevocably authorizes
the Administrative Agent, in such capacity, to take such action on its behalf under the provisions
of this Agreement and the other Credit Documents and to exercise such powers and perform such
duties as are expressly delegated to the Administrative Agent by the terms of this Agreement and
the other Credit Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the Administrative Agent
shall not have any duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or any other Credit Document
or otherwise exist against the Administrative Agent.
(b) The Administrative Agent, each Lender, the Swingline Lender and the Letter of Credit
Issuer hereby irrevocably designate and appoint the Collateral Agent as the agent with respect to
the Collateral, and each of the Administrative Agent, each Lender, the Swingline Lender and the
Letter of Credit Issuer irrevocably authorizes the Collateral Agent, in such capacity, to take such
action on its behalf under the provisions of this Agreement and the other Credit Documents and to
exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by
the terms of this Agreement and the other Credit Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Collateral Agent shall not have any duties or responsibilities except those
expressly set forth herein, or any fiduciary relationship with any of the
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Administrative Agent, the
Lenders, the Swingline Lender or the Letter of Credit Issuers, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other
Credit Document or otherwise exist against the Collateral Agent.
(c) Each of the Co-Syndication Agents, Joint Lead Arrangers and Bookrunners, Joint Bookrunners
and the Documentation Agent, each in its capacity as such, shall not have any obligations, duties
or responsibilities under this Agreement but shall be entitled to all benefits of this
Section
13
.
13.2.
Delegation of Duties
. The Administrative Agent and the Collateral Agent may
each execute any of its duties under this Agreement and the other Credit Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters
pertaining to such duties. Neither the Administrative Agent nor the Collateral Agent shall be
responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
13.3.
Exculpatory Provisions
. No Agent nor any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates shall be (a) liable for any action lawfully taken or
omitted to be taken by it or such Person under or in connection with this Agreement or any other
Credit Document (except for its or such Persons own gross negligence or willful misconduct) or (b)
responsible in any manner to any of the Lenders for any recitals, statements, representations or
warranties made by any of any Borrower, any Guarantor, any other Credit Party or any officer
thereof contained in this Agreement or any other Credit Document or in any certificate, report,
statement or other document referred to or provided for in, or received by such Agent under or in
connection with, this Agreement or any other Credit Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Credit
Document or for any failure of any Borrower, any Guarantor or any other Credit Party to perform its
obligations hereunder or thereunder. No Agent shall be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the agreements contained in,
or conditions of, this Agreement or any other Credit Document, or to inspect the properties, books
or records of any Credit Party. The Collateral Agent shall not be under any obligation to the
Administrative Agent, any Lender, the Swingline Lender or any Letter of Credit Issuer to ascertain
or to inquire as to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Credit Document, or to inspect the properties, books or
records of any Credit Party.
13.4.
Reliance by Agents
. The Administrative Agent and the Collateral Agent shall be
entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy, telex or teletype message, statement, order or
other document or instruction believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of legal counsel
(including counsel to any Borrower), independent accountants and other experts selected by the
Administrative Agent or the Collateral Agent. The Administrative Agent may deem and treat the
Lender specified in the Register with respect to any amount owing hereunder as the owner thereof
for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have
been filed with the Administrative Agent. The Administrative Agent and the Collateral Agent shall
be fully justified in failing or refusing to take any action under this Agreement or any
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other
Credit Document unless it shall first receive such advice or concurrence of the Required Lenders as
it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against
any and all liability and expense that may be incurred by it by reason of taking or continuing to
take any such action. The Administrative Agent and the Collateral Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement and the other Credit
Documents in accordance with a request of the Required Lenders, and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future
holders of the Loans.
13.5.
Notice of Default
. Neither the Administrative Agent nor the Collateral Agent shall be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default hereunder unless the Administrative
Agent or Collateral Agent has received notice from a Lender or a Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such notice is a notice of
default. In the event that the Administrative Agent receives such a notice, it shall give notice
thereof to the Lenders and the Collateral Agent. The Administrative Agent shall take such action
with respect to such Default or Event of Default as shall be reasonably directed by the Required
Lenders,
provided
that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Lenders except to the extent that this Agreement requires
that such action be taken only with the approval of the Required Lenders or each of the Lenders, as
applicable).
13.6.
Non-Reliance on Administrative Agent, Collateral Agent and Other Lenders
. Each
Lender expressly acknowledges that neither the Administrative Agent nor the Collateral Agent nor
any of their respective officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by the Administrative Agent or
Collateral Agent hereinafter taken, including any review of the affairs of any Borrower, any
Guarantor or any other Credit Party, shall be deemed to constitute any representation or warranty
by the Administrative Agent or Collateral Agent to any Lender, the Swingline Lender or any Letter
of Credit Issuer. Each Lender, the Swingline Lender and each Letter of Credit Issuer represents to
the Administrative Agent and the Collateral Agent that it has, independently and without reliance
upon the Administrative Agent, Collateral Agent or any other Lender, and based on such documents
and information as it has deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and creditworthiness of each
Borrower, Guarantor and other Credit Party and made its own decision to make its Loans hereunder
and enter into this Agreement. Each Lender also represents that it will, independently and without
reliance upon the Administrative Agent, Collateral Agent or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under this Agreement and the
other Credit Documents, and to make such investigation as it deems necessary to inform itself as to
the business, operations, property, financial and other condition and creditworthiness of the
Borrowers, any Guarantor and any other Credit Party. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder,
neither the Administrative Agent nor the Collateral Agent shall have any duty or responsibility to
provide any Lender with any credit or other information concerning the business, assets,
operations, properties, financial condition, prospects or
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creditworthiness of any Borrower, any
Guarantor or any other Credit Party that may come into the possession of the Administrative Agent
or Collateral Agent any of their respective officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
13.7.
Indemnification
.The Lenders agree to indemnify the Administrative Agent and the Collateral Agent, each in
its capacity as such (to the extent not reimbursed by the Borrowers and without limiting the
obligation of the Borrowers to do so), ratably according to their respective portions of the Total
Credit Exposure in effect on the date on which indemnification is sought (or, if indemnification is
sought after the date upon which the Commitments shall have terminated and the Loans shall have
been paid in full, ratably in accordance with their respective portions of the Total Credit
Exposure in effect immediately prior to such date), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever that may at any time (including at any time following the
payment of the Loans) be imposed on, incurred by or asserted against the Administrative Agent or
the Collateral Agent in any way relating to or arising out of the Commitments, this Agreement, any
of the other Credit Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted by the
Administrative Agent or the Collateral Agent under or in connection with any of the foregoing,
provided
that no Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Administrative Agents or the Collateral Agents gross negligence
or willful misconduct as determined by a final judgment of a court of competent
jurisdiction. The agreements in this
Section 13.7
shall survive the payment of the
Loans and all other amounts payable hereunder.
13.8.
Administrative Agent in its Individual Capacity
. The Administrative Agent and
its Affiliates may make loans to, accept deposits from and generally engage in any kind of business
with any Borrower, any Guarantor, and any other Credit Party as though the Administrative Agent
were not the Administrative Agent hereunder and under the other Credit Documents. With respect to
the Loans made by it, the Administrative Agent shall have the same rights and powers under this
Agreement and the other Credit Documents as any Lender and may exercise the same as though it were
not the Administrative Agent, and the terms Lender and Lenders shall include the Administrative
Agent in its individual capacity.
13.9.
Successor Agents
. Each of the Administrative Agent and Collateral Agent may at
any time give notice of its resignation to the Lenders, the Letter of Credit Issuer and the Parent
Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the
right, subject to the reasonable consent of the Parent Borrower so long as no Default under
Section 11.1
or
11.5
is continuing, to appoint a successor, which shall be a bank
with an office in the United States, or an Affiliate of any such bank with an office in the United
States. If no such successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Agent gives notice of its resignation,
then the retiring Agent may on behalf of the Lenders and the Letter of Credit Issuer, appoint a
successor Agent meeting the qualifications set forth above;
provided
that if the retiring
Agent shall notify the Parent Borrower and the Lenders that no qualifying Person has accepted such
appointment, then such resignation shall nonetheless become effective in accordance with such
notice and (1) the retiring Agent shall be discharged from its duties and obligations hereunder and
under the
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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
13.7
) and
Section 14.5
shall
continue in effect for the benefit of such retiring Agent, its sub-agents and their respective
Related Parties in respect of any actions taken or omitted to be taken by any of them while the
retiring Agent was acting as an Agent.
Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also
constitute its resignation as Letter of Credit Issuer and Swing Line Lender. Upon the acceptance
of a successors appointment as Administrative Agent hereunder, (a) such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the retiring Letter of
Credit Issuer and Swing Line Lender, (b) the retiring Letter of Credit Issuer and Swing Line Lender
shall be discharged from all of their respective duties and obligations hereunder or under the
other Credit Documents, and (c) the successor Letter of Credit Issuer shall issue letters of credit
in substitution for the Letters of Credit, if any, outstanding at the time of such succession or
make other arrangements satisfactory to the retiring Letter of Credit Issuer to effectively assume
the obligations of the retiring Letter of Credit Issuer with respect to such Letters of Credit.
13.10.
Withholding Tax
. To the extent required by any applicable law, the
Administrative Agent may withhold from any interest payment to any Lender an amount equivalent to
any applicable withholding tax. If the Internal Revenue Service or any authority of the United
States or other jurisdiction asserts a claim that the Administrative Agent did not properly
withhold tax from amounts paid to or for the account of any Lender (because the appropriate form
was not delivered, was not properly executed, or because such Lender failed to notify the
Administrative Agent of a change in circumstances that rendered the exemption from, or reduction
of, withholding tax ineffective, or for any other reason), such Lender shall indemnify the
Administrative Agent (to the extent that the Administrative Agent has not already been reimbursed
by the Borrowers and without limiting the obligation of the Borrowers to do so) fully for all
amounts paid, directly or indirectly, by the Administrative Agent as tax or otherwise, including
penalties and interest, together with all expenses incurred, including legal expenses, allocated
staff costs and any out of pocket expenses.
13.11.
Swiss Assignment Agreement
. The European Subsidiary Borrower appoints the
Collateral Agent to receive on the Closing Date from the grantors of the Swiss
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Security (as defined
in the Swiss Secured Loan Agreement), as derivative possessor (
unselbständiger Besitzer
as defined
under Swiss law) for the European Subsidiary Borrower, the Swiss Security. This notwithstanding,
the European Subsidiary Borrower agrees and acknowledges that, upon execution of the Swiss
Assignment Agreement by the Collateral Agent and the European Subsidiary Borrower, the Collateral
Agent will hold the Swiss Security no longer for the European Subsidiary Borrower, but will (i)
hold the Shares and the Quotas (as defined in the Swiss Secured Loan Agreement) as pledgee
(
Pfandgläubiger
as defined under Swiss law) and (ii) will acquire legal title (
Eigentum
as defined
under Swiss law) to the Mortgage Notes (as defined in the Swiss Secured Loan Agreement) for
purposes of security.
SECTION 14.
Miscellaneous
14.1.
Amendments and Waivers
. Neither this Agreement nor any other Credit Document,
nor any terms hereof or thereof, may be amended, supplemented or modified except in accordance with
the provisions of this
Section 14.1
. The Required Lenders may, or, with the written
consent of the Required Lenders, the Administrative Agent and/or the Collateral Agent may, from
time to time, (a) enter into with the relevant Credit Party or Credit Parties written amendments,
supplements or modifications hereto and to the other Credit Documents for the purpose of adding any
provisions to this Agreement or the other Credit Documents or changing in any manner the rights of
the Lenders or of the Credit Parties hereunder or thereunder or (b) waive, on such terms and
conditions as the Required Lenders or the Administrative Agent and/or Collateral Agent, as the case
may be, may specify in such instrument, any of the requirements of this Agreement or the other
Credit Documents or any Default or Event of Default and its consequences;
provided
,
however
, that no such waiver and no such amendment, supplement or modification shall
directly (i) forgive or reduce any portion of any Loan or extend the final scheduled maturity date
of any Loan or reduce the stated rate (it being understood that any change to the definition of
Consolidated Total Debt to Consolidated EBITDA Ratio or in the component definitions thereof shall
not constitute a reduction in the rate and only the consent of the Required Lenders shall be
necessary to waive any obligation of the Borrowers to pay interest at the default rate or amend
Section 2.8(c)
), or forgive any portion, or extend the date for the payment, of any
interest or fee payable hereunder (other than as a result of waiving the applicability of any
post-default increase in interest rates or any amendment contemplated by
Section 1.7
), or
extend the final expiration date of any Lenders Commitment or extend the final expiration date of
any Letter of Credit beyond the L/C Maturity Date, or increase the aggregate amount of the
Commitments of any Lender, or amend or modify any provisions of
Section 5.3(a)
(with
respect to the ratable allocation of any payments only) and
14.8(a)
and
14.20
, or
make any Loan, interest, Fee or other amount payable in any currency other than expressly provided
herein, in each case without the written consent of each Lender directly and adversely affected
thereby, or (ii) amend, modify or waive any provision of this
Section 14.1
or reduce the
percentages specified in the definitions of the terms Required Lenders, Required Revolving
Credit Lenders, Required European Tranche Term Loan Lenders, Required Tranche A Term Loan
Lenders, Required Tranche B Term Loan Lenders, consent to the assignment or transfer by any Borrower of its rights and obligations under any Credit Document
to which it is a party (except as permitted pursuant to
Section 10.3
) or alter the order of
application set forth in the final paragraph of
Section 11
, in each case without the
written consent 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
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any provision of
Section 3
with respect to any Letter of Credit without the written consent of the Letter of
Credit Issuer, or (v) amend, modify or waive any provisions hereof relating to Swingline Loans
without the written consent of the Swingline Lender, or (vi) change any Revolving Credit Commitment
to a Term Loan Commitment, or change any Term Loan Commitment to a Revolving Credit Commitment, in
each case without the prior written consent of each Lender directly and adversely affected thereby,
or (vii) release all or substantially all of the Guarantors under the Guarantees (except as
expressly permitted by the Guarantees or this Agreement) or release all or substantially all of the
Collateral under the Security Documents (except as expressly permitted by the Security Documents or
this Agreement) without the prior written consent of each Lender, or (viii) amend
Section
2.9
so as to permit Interest Period intervals greater than six months without regard to
availability to Lenders, without the written consent of each Lender directly and adversely affected
thereby, or (ix) decrease any Tranche A Repayment Amount, extend any scheduled Tranche A Repayment
Date or decrease the amount or allocation of any mandatory prepayment to be received by any Tranche
A Term Loan Lender, in each case without the written consent of the Required Tranche A Term Loan
Lenders, or (x) decrease any Tranche B Repayment Amount, extend any scheduled Tranche B Repayment
Date or decrease the amount or allocation of any mandatory prepayment to be received by any Tranche
B Term Loan Lender, in each case without the written consent of the Required Tranche B Term Loan
Lenders or (xi) decrease any European Tranche Repayment Amount, extend any scheduled European
Tranche Repayment Date or decrease the amount or allocation of any mandatory prepayment to be
received by any European Tranche Term Loan Lender, in each case without the written consent of the
Required European Tranche Term Loan Lenders. Any such waiver and any such amendment, supplement or
modification shall apply equally to each of the affected Lenders and shall be binding upon the
Borrowers, such Lenders, the Administrative Agent and all future holders of the affected Loans. In
the case of any waiver, the Borrowers, the Lenders and the Administrative Agent shall be restored
to their former positions and rights hereunder and under the other Credit Documents, and any
Default or Event of Default waived shall be deemed to be cured and not continuing, it being
understood that no such waiver shall extend to any subsequent or other Default or Event of Default
or impair any right consequent thereon.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of
such Lender may not be increased or extended without the consent of such Lender (it being
understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be
excluded for a vote of the Lenders hereunder requiring any consent of the Lenders).
Notwithstanding the foregoing, in addition to any credit extensions and related Joinder
Agreement(s) effectuated without the consent of Lenders in accordance with
Section 2.14
,
this Agreement may be amended (or amended and restated) with the written consent of the Required
Lenders, the Administrative Agent and the Parent Borrower (a) to add one or more
additional credit facilities to this Agreement and to permit the extensions of credit from
time to time outstanding thereunder and the accrued interest and fees in respect thereof to share
ratably in the benefits of this Agreement and the other Loan Documents with the Term Loans and the
Revolving Credit Loans and the accrued interest and fees in respect thereof and (b) to include
appropriately the Lenders holding such credit facilities in any determination of the Required
Lenders and other definitions related to such new Term Loans.
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In addition, notwithstanding the foregoing, this Agreement may be amended with the written
consent of the Administrative Agent, the affected Borrowers and the Lenders providing the relevant
Replacement Term Loans (as defined below) to permit the refinancing of all outstanding Term Loans
of any Class (
Refinanced Term Loans
) with a replacement term loan tranche (
Replacement Term
Loans
) hereunder;
provided
that (a) the aggregate principal amount of such Replacement
Term Loans shall not exceed the aggregate principal amount of such Refinanced Term Loans, (b) the
Applicable ABR Margin and Applicable LIBOR Margin for such Replacement Term Loans shall not be
higher than the Applicable ABR Margin and Applicable LIBOR Margin for such Refinanced Term Loans,
(c) the weighted average life to maturity of such Replacement Term Loans shall not be shorter than
the weighted average life to maturity of such Refinanced Term Loans at the time of such refinancing
(except to the extent of nominal amortization for periods where amortization has been eliminated as
a result of prepayment of the applicable Term Loans) and (d) all other terms applicable to such
Replacement Term Loans shall be substantially identical to, or less favorable to the Lenders
providing such Replacement Term Loans than those applicable to such Refinanced Term Loans, except
to the extent necessary to provide for covenants and other terms applicable to any period after the
latest final maturity of the Term Loans of such Class in effect immediately prior to such
refinancing.
The Lenders hereby irrevocably agree that the Liens granted to the Collateral Agent by the
Credit Parties on any Collateral shall be automatically released (i) in full, upon the termination
of this Agreement, (ii) upon the sale or other disposition of such Collateral (including as part of
or in connection with any other sale or other disposition permitted hereunder) to any Person other
than another Credit Party (other than (x) a European Credit Party, in the case of any sale or other
disposition by a U.S. Credit Party and (y) a U.S. Credit Party, in the case of any sale or other
disposition by a European Credit Party), to the extent such sale or other disposition is made in
compliance with the terms of this Agreement (and the Collateral Agent may rely conclusively on a
certificate to that effect provided to it by any Credit Party upon its reasonable request without
further inquiry), (iii) to the extent such Collateral is comprised of property leased to a Loan
Party, upon termination or expiration of such lease, (iv) if the release of such Lien is approved,
authorized or ratified in writing by the Required Lenders (or such other percentage of the Lenders
whose consent may be required in accordance with this
Section 14.1
), (v) to the extent the
property constituting such Collateral is owned by any Guarantor, upon the release of such Guarantor
from its obligations under the applicable Guarantee (in accordance with the following sentence) and
(vi) as required to effect any sale or other disposition of Collateral in connection with any
exercise of remedies of the Collateral Agent pursuant to the Collateral Documents. Any such
release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other
than those being released) upon (or obligations (other than those being released) of the Credit
Parties in respect of) all interests retained by the Credit Parties, including the proceeds of any
sale, all of which shall continue to constitute part of the Collateral except to the extent
otherwise released in accordance with the provisions of the Credit Documents. Additionally, the Lenders hereby irrevocably agree that the Guarantors shall be released from the
Guarantees (i) upon consummation of any transaction resulting in such Subsidiary ceasing to
constitute a Restricted Subsidiary, (ii) upon the designation of such Guarantor as a Designated
Non-Guarantor Subsidiary (in accordance with the definition thereof) or (iii) in the case of any
European Guarantor, upon the repayment in full of all European Obligations. The Lenders hereby
authorize the Administrative Agent and the Collateral Agent, as applicable, to execute and deliver
any instruments, documents, and agreements necessary or desirable to evidence and con-
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firm the
release of any Guarantor or Collateral pursuant to the foregoing provisions of this paragraph, all
without the further consent or joinder of any Lender.
14.2.
Notices
. Unless otherwise expressly provided herein, all notices and other
communications provided for hereunder or under any other Credit Document shall be in writing
(including by facsimile transmission). All such written notices shall be mailed, faxed or
delivered to the applicable address, facsimile number or electronic mail address, and all notices
and other communications expressly permitted hereunder to be given by telephone shall be made to
the applicable telephone number, as follows:
(a) if to the Parent Borrower, the European Subsidiary Borrower, the Administrative
Agent, the Collateral Agent, the Letter of Credit Issuer or the Swingline Lender, to the
address, facsimile number, electronic mail address or telephone number specified for such
Person on
Schedule 14.2
or to such other address, facsimile number, electronic mail
address or telephone number as shall be designated by such party in a notice to the other
parties; and
(b) if to any other Lender, to the address, facsimile number, electronic mail address
or telephone number specified in its Administrative Questionnaire or to such other address,
facsimile number, electronic mail address or telephone number as shall be designated by such
party in a notice to the Borrowers, the Administrative Agent, the Collateral Agent, the
Letter of Credit Issuer and the Swingline Lender.
All such notices and other communications shall be deemed to be given or made upon the earlier to
occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by
courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail,
three (3) Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile,
when sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail,
when delivered;
provided
that notices and other communications to the Administrative Agent
or the Lenders pursuant to
Sections 2.3
,
2.6
,
2.9
,
4.2
and
5.1
shall not be effective until received.
14.3.
No Waiver; Cumulative Remedies
. No failure to exercise and no delay in
exercising, on the part of the Administrative Agent, the Collateral Agent or any Lender, any right,
remedy, power or privilege hereunder or under the other Credit Documents shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
14.4.
Survival of Representations and Warranties
. All representations and warranties
made hereunder, in the other Credit Documents and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution and delivery of
this Agreement and the making of the Loans hereunder.
14.5.
Payment of Expenses
. The Parent Borrower agrees (a) to pay or reimburse the
Agents for all their reasonable out-of-pocket costs and expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement or
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modification to, this
Agreement and the other Credit Documents and any other documents prepared in connection herewith or
therewith, and the consummation and administration of the transactions contemplated hereby and
thereby, including the reasonable fees, disbursements and other charges of Cahill Gordon & Reindel
llp
and one counsel in each local jurisdiction to the extent consented to by the Parent
Borrower (such consent not to be unreasonably withheld), (b) to pay or reimburse the Agent for all
its reasonable and documented costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the other Credit Documents and any such other
documents, including the reasonable fees, disbursements and other charges of counsel to the Agent,
(c) to pay, indemnify, and hold harmless each Lender and Agent from, any and all recording and
filing fees and (d) to pay, indemnify, and hold harmless each Lender and Agent and their respective
directors, officers, employees, trustees, investment advisors and agents from and against any and
all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever, including reasonable and documented
fees, disbursements and other charges of counsel, with respect to the execution, delivery,
enforcement, performance and administration of this Agreement, the other Credit Documents and any
such other documents, including, without limitation, any of the foregoing relating to the violation
of, noncompliance with or liability under, any Environmental Law (other than by such indemnified
person or any of its Related Parties) or to any actual or alleged presence, release or threatened
release of Hazardous Materials involving or attributable to the operations of the Parent Borrower,
any of its Subsidiaries or any of the Real Estate (all the foregoing in this
clause (d)
,
collectively, the
indemnified liabilities
),
provided
that the Borrowers shall have no
obligation hereunder to any Administrative Agent or any Lender nor any of their respective Related
Parties with respect to indemnified liabilities to the extent attributable to (i) the gross
negligence, bad faith or willful misconduct of the party to be indemnified or any of its Related
Parties, (ii) any material breach of any Credit Document by the party to be indemnified or (iii)
disputes among the Administrative Agent, the Lenders and/or their transferees. All amounts payable
under this
Section 14.5
shall be paid within ten Business Days of receipt by the Parent
Borrower of an invoice relating thereto setting forth such expense in reasonable retail. The
agreements in this
Section 14.5
shall survive repayment of the Loans and all other amounts
payable hereunder.
14.6.
Successors and Assigns; Participations and Assignments
.
(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby (including any
Affiliate of the Letter of Credit Issuer that issues any Letter of Credit), except that (i) except
as expressly permitted by
Section 10.3
, no Borrower may assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent of the Administrative Agent
and each Lender (and any attempted assignment or transfer by any Borrower without such consent
shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this
Section 14.6
. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby (including any Affiliate
of the Letter of Credit Issuer that issues any Letter of Credit), Participants (to the extent
provided in
clause (c)
of this
Section 14.6
) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent, the Collateral Agent,
the Letter of Credit Issuer and the Lenders) any legal or equitable right, remedy or claim under or
by reason of this Agreement.
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(b) (i) Subject to the conditions set forth in
clause (b)(ii)
below, any Lender may
at any time assign to one or more assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitments and the Loans (including
participations in L/C Obligations or Swingline Loans) at the time owing to it) with the prior
written consent (such consent not be unreasonably withheld or delayed; it being understood that,
without limitation, the Parent Borrower shall have the right to withhold or delay its consent to
any assignment if, in order for such assignment to comply with applicable law, any Borrower would
be required to obtain the consent of, or make any filing or registration with, any Governmental
Authority) of:
(A) the Parent Borrower (which consent shall not be unreasonably withheld or delayed),
provided
that, subject to
clause (g)
below, no consent of the Parent
Borrower shall be required for an assignment to a Lender, an Affiliate of a Lender (unless
increased costs would result therefrom unless an Event of Default under
Section 11.1
or
Section 11.5
has occurred and is continuing), an Approved Fund or, if an Event of
Default under
Section 11.1
or
Section 11.5
has occurred and is continuing,
any other assignee; and
(B) the Administrative Agent (which consent shall not be unreasonably withheld or
delayed), and, in the case of Revolving Credit Commitments or Revolving Credit Loans only,
the Swingline Lender and the applicable Letter of Credit Issuer,
provided
that no
consent of the Administrative Agent, the Swingline Lender or the Letter of Credit Issuer, as
applicable, shall be required for an assignment of any Term Loan to a Lender, an Affiliate
of a Lender or an Approved Fund.
Notwithstanding the foregoing, no such assignment shall be made to a natural person.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning Lenders
Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning
Lender subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Administrative Agent) shall
not be less than $5,000,000 (or, in the case of a Tranche A Term Loan Commitment, Tranche B
Term Loan Commitment, Tranche A Term Loan, Tranche B Term Loan or European Tranche Term Loan
denominated in Dollars, $1,000,000), and increments of $1,000,000 in excess thereof (or, in
the case of a European Tranche Term Loan Commitment or a European Tranche Term Loan,
1,000,000 or increments of
1,000,000 in excess thereof) or , unless each of the
Parent Borrower and the Administrative Agent otherwise consents (which consents shall not be
unreasonably withheld or delayed),
provided
that no such consent of the Parent
Borrower shall be required if an Event of Default under
Section 11.1
or
Section
11.5
has occurred and is continuing;
provided further
that contemporaneous
assignments to a single assignee made by Affiliates of Lenders and related Approved Funds
shall be aggregated for purposes of meeting the minimum assignment amount requirements
stated above;
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(B) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lenders rights and obligations under this Agreement,
provided
that this clause shall not be construed to prohibit the assignment of a proportionate part
of all the assigning Lenders rights and obligations in respect of one Class of Commitments
or Loans;
(C) The parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Acceptance, together with a processing and recordation fee in the
amount of $3,500;
provided
that the Administrative Agent may, in its sole
discretion, elect to waive such processing and recordation fee in the case of any
assignment;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an administrative questionnaire in a form approved by the Administrative Agent (the
Administrative Questionnaire
); and
(E) the assignee, if the assignment is with respect to the European Tranche Term Loan,
must be able to comply with the requirements of Section 5.4(g) of this Agreement.
(iii) Subject to acceptance and recording thereof pursuant to
clause (b)(iv)
of this
Section 14.6
, from and after the effective date specified in each Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lenders rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but shall continue to be
entitled
to the benefits of
Sections 2.10
,
2.11
,
3.5
,
5.4
and
14.5
). Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this
Section 14.6
shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and obligations in accordance
with
clause (c)
of this
Section 14.6
.
(iv) The Administrative Agent, acting for this purpose as an agent of the Borrowers, shall
maintain at the Administrative Agents Office a copy of each Assignment and Acceptance delivered to
it and a register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amount of the Loans and any payment made by the Letter of Credit
Issuer under any Letter of Credit owing to, each Lender pursuant to the terms hereof from time to
time (the
Register
). Further, each Register shall contain the name and address of the
Administrative Agent and the lending office through which each such Person acts under this
Agreement. The entries in the Register shall be conclusive, and the Borrowers, the Administrative
Agent, the Collateral Agent, the Letter of Credit Issuer and the Lenders shall treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrowers, the Collateral Agent, the Letter of Credit Issuer and
any Lender, at any reasonable time and from time to time upon reasonable prior notice.
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(v) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning
Lender and an assignee, the assignees completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation fee referred to in
clause
(b)
of this
Section 14.6
and any written consent to such assignment required by
clause (b)
of this
Section 14.6
, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the Register.
(c) (i) Any Lender may, without the consent of the Parent Borrower, any Administrative Agent,
the Letter of Credit Issuer or the Swingline Lender, sell participations to one or more banks or
other entities (each, a
Participant
) in all or a portion of such Lenders rights and obligations
under this Agreement (including all or a portion of its Commitments and the Loans owing to it),
provided
that (A) such Lenders obligations under this Agreement shall remain unchanged,
(B) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations, (C) the Participant, if a participant with respect to the European Tranche Term
Loan, must be able to provide the forms required by Section 5.4(g) of this Agreement to the Lender
from which it purchased the participation and (D) the Borrowers, the Administrative Agent, the
Letter of Credit Issuer and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lenders rights and obligations under this Agreement. Any agreement
or instrument pursuant to which a Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement or any other Credit Document,
provided
that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in
clause (i)
of the
proviso to
Section 14.1
that affects such Participant. Subject to
clause (c)(ii)
of this
Section 14.6
, the Borrowers agree that each Participant shall be entitled to the
benefits of
Sections 2.10
,
2.11
and
5.4
to the same extent as if it were a
Lender and provided that such Participant agrees to be subject to the requirements of those
Sections as though it were
a Lender and had acquired its interest by assignment pursuant to
clause (b)
of this
Section 14.6
. To the extent permitted by law, each Participant also shall be entitled to
the benefits of
Section 14.8(b)
as though it were a Lender,
provided
such
Participant agrees to be subject to
Section 14.8(a)
as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater payment under
Section
2.10
,
2.11
or
5.4
than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Parent Borrowers prior written consent (which
consent shall not be unreasonably withheld).
(d) Any Lender may, without the consent of any Borrower or the Administrative Agent, at any
time pledge or assign a security interest in all or any portion of its rights under this Agreement
to secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this
Section 14.6
shall not apply to any such pledge or
assignment of a security interest,
provided
that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or substitute any such
pledgee or assignee for such Lender as a party hereto. In order to facilitate such pledge or
assignment, the Borrowers hereby agree that, upon request of any Lender at any time and from time
to time after any Borrower has made its initial borrowing hereunder, each Borrower shall
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provide to
such Lender, at such Borrowers own expense, a promissory note, substantially in the form of
Exhibit K-1
,
K-2
,
K-3
or
K-4
, as the case may be, evidencing the
Tranche A Term Loans, Tranche B Term Loans and New Term Loans, European Tranche Term Loans and
Revolving Credit Loans and Swingline Loans, respectively, owing to such Lender.
(e) Subject to
Section 14.16
, the Borrowers authorize each Lender to disclose to any
Participant, secured creditor of such Lender or assignee (each, a
Transferee
) and any prospective
Transferee any and all financial information in such Lenders possession concerning a Borrower and
its Affiliates that has been delivered to such Lender by or on behalf of such Borrower and its
Affiliates pursuant to this Agreement or that has been delivered to such Lender by or on behalf of
such Borrower and its Affiliates in connection with such Lenders credit evaluation of such
Borrower and its Affiliates prior to becoming a party to this Agreement.
(f) The words execution, signed, signature, and words of like import in any Assignment
and Acceptance shall be deemed to include electronic signatures or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or enforceability as a
manually executed signature or the use of a paper-based recordkeeping system, as the case may be,
to the extent and as provided for in any applicable law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic Signatures and
Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
(g) Notwithstanding anything to the contrary in
clause (b)
above, unless an Event of
Default under
Section 11.1
or
Section 11.5
has occurred and is continuing, no
assignment by any Lender of all or any portion of its rights and obligations under this Agreement
shall be permitted without the consent of the Parent Borrower if, after giving effect to such
assignment, the assignee in respect thereof, taken together with its Affiliates and Approved Funds,
would hold in the aggregate more than 25% of the Total Credit Exposure.
14.7.
Replacements of Lenders under Certain Circumstances
.
(a) The Parent Borrower shall be permitted to replace any Lender that (a) requests
reimbursement for amounts owing pursuant to
Section 2.10
,
3.5
or
5.4
, (b)
is affected in the manner described in
Section 2.10(a)(iii)
and as a result thereof any of
the actions described in such Section is required to be taken or (c) becomes a Defaulting Lender,
with a replacement bank or other financial institution,
provided
that (i) such replacement
does not conflict with any Requirement of Law, (ii) no Event of Default under
Section 11.1
or
11.5
shall have occurred and be continuing at the time of such replacement, (iii) the
Borrowers shall repay (or the replacement bank or institution shall purchase, at par) all Loans and
other amounts (other than any disputed amounts), pursuant to
Section 2.10
,
2.11
,
3.5
or
5.4
, as the case may be) owing to such replaced Lender prior to the date of
replacement, (iv) the replacement bank or institution, if not already a Lender, and the terms and
conditions of such replacement, shall be reasonably satisfactory to the Administrative Agent, (v)
the replaced Lender shall be obligated to make such replacement in accordance with the provisions
of
Section 14.6
(
provided
that the Borrowers shall be obligated to pay the
registration and processing fee referred to therein) and (vi) any such replacement shall not be
deemed to be a waiver of any rights that the Borrowers, the Administrative Agent or any other
Lender shall have against the replaced Lender.
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(b) If any Lender (such Lender, a
Non-Consenting Lender
) has failed to consent to a proposed
amendment, waiver, discharge or termination that pursuant to the terms of
Section 14.1
requires the consent of all of the Lenders affected 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;
provided further
that with respect to any amount received
from any European Credit Party that would otherwise be subject to the foregoing provisions of this
Section 14.8(a)
, such Lender shall only purchase participations in the European Tranche
Term Loans in accordance with the foregoing procedures.
(b) After the occurrence and during the continuance of an Event of Default, in addition to any
rights and remedies of the Lenders provided by law, each Lender shall have the right, without prior
notice to any Borrower, any such notice being expressly waived by each Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by any Borrower hereunder
(whether at the stated maturity, by acceleration or otherwise) to set-off and appropriate and apply
against such amount any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any currency, in each
case whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch or agency thereof to or for the credit or the account of such
Borrower;
provided
that the amount received by any Lender from any European Borrower as a
result of this
Section 14.8(b)
may only be applied to the European Obligations. Each
Lender agrees promptly to notify such Borrower (and the Parent Borrower, if other) and the
Administrative Agent after any such set-off and application made by such Lender,
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provided
that the failure to give such notice shall not affect the validity of such set-off and application.
14.9.
Counterparts
. This Agreement may be executed by one or more of the parties to
this Agreement on any number of separate counterparts (including by facsimile or other electronic
transmission), and all of said counterparts taken together shall be deemed to constitute one and
the same instrument. A set of the copies of this Agreement signed by all the parties shall be
lodged with the Borrowers and the Administrative Agent.
14.10.
Severability
. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
14.11.
Integration
. This Agreement and the other Credit Documents represent the agreement of the Borrowers, the
Collateral Agent, the Administrative Agent and the Lenders with respect to the subject matter
hereof, and there are no promises, undertakings, representations or warranties by any Borrower, the
Administrative Agent, the Collateral Agent nor any Lender relative to subject matter hereof not
expressly set forth or referred to herein or in the other Credit Documents.
14.12.
GOVERNING LAW
. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
14.13.
Submission to Jurisdiction; Waivers
. Each Borrower irrevocably and
unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to
this Agreement and the other Credit Documents to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of
the courts of the State of New York, the courts of the United States of America for the
Southern District of New York and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such courts and
waives any objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially similar form of
mail), postage prepaid, to such Person at its address set forth on
Schedule 14.2
at
such other address of which the Administrative Agent shall have been notified pursuant to
Section 14.2
;
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(d) agrees that nothing herein shall affect the right to effect service of process in
any other manner permitted by law or shall limit the right to sue in any other jurisdiction;
(e) waives, to the maximum extent not prohibited by law, any right it may have to claim
or recover in any legal action or proceeding referred to in this
Section 14.13
any
special, exemplary, punitive or consequential damages; and
(f) other than the Parent Borrower, hereby irrevocably designates, appoints and
empowers CT Corporation System (telephone number: 212-894-8600) (telecopy number:
212-894-8690) (address: 111 Eighth Avenue, New York, New York 10011) (the
Process Agent
),
in the case of any suit, action or proceeding brought in the United States as its designee,
appointee and agent to receive, accept and acknowledge for and on its behalf, and in respect
of its property, service of any and all legal process, summons, notices and documents that
may be served in any action or proceeding arising out of or in
connection with this Agreement or any other Credit Document. Such service may be made
by mailing (by registered or certified mail, postage prepaid) or delivering a copy of such
process to such Person in care of the Process Agent at the Process Agents above address,
and such Person hereby irrevocably authorizes and directs the Process Agent to accept such
service on its behalf. As an alternative method of service, each Borrower irrevocably
consents to the service of any and all process in any such action or proceeding by the
mailing (by registered or certified mail, postage prepaid) of copies of such process to the
Process Agent or such Person at its address specified in
Section 14.2
. Each
Borrower agrees that a final judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
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
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the process leading thereto,
including with respect to any amendment, waiver or other modification hereof or of any other
Credit Document (irrespective of whether the Administrative Agent or other Agent has advised
or is currently advising any of the Borrowers, the other Credit Parties or their respective
Affiliates on other matters) and neither the Administrative Agent or other Agent has any
obligation to any of any Borrowers, the other Credit Parties or their respective Affiliates
with respect to the transactions contemplated hereby except those obligations expressly set
forth herein and in the other Credit Documents; (iv) the Administrative Agent and its
Affiliates may be engaged in a broad range of transactions that involve interests that
differ from those of the Borrowers and their respective Affiliates, and neither the
Administrative Agent nor other Agent has any obligation to disclose any of such interests by
virtue of any advisory, agency or fiduciary relationship; and (v) neither the Administrative
Agent nor any other Agent has provided and none will provide any legal, accounting,
regulatory or tax advice with respect to any
of the transactions contemplated hereby (including any amendment, waiver or other
modification hereof or of any other Credit Document) and each Borrower has consulted its own
legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate.
Each Borrower hereby waives and releases, to the fullest extent permitted by law, any claims
that it may have against the Administrative Agent or any other Agent with respect to any
breach or alleged breach of agency or fiduciary duty.
(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
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ratings issued with
respect to a Securitization;
provided
that unless specifically prohibited by applicable law
or court order, each Lender and the Administrative Agent shall notify the Parent Borrower of any
request made to such Lender or the Administrative Agent by any governmental agency or
representative thereof (other than any such request in connection with an examination of the
financial condition of such Lender by such governmental agency) for disclosure of any such
non-public information prior to disclosure of such information, and
provided
further
that in no
event shall any Lender or the Administrative Agent be obligated or required to return any materials
furnished by the Parent Borrower or any Subsidiary. Each Lender and the Administrative Agent
agrees that it will not provide to prospective Transferees or to any pledgee referred to in
Section 14.6
or to prospective direct or indirect contractual counterparties in swap
agreements to be entered into in connection
with Loans made hereunder any of the Confidential Information unless such Person is advised of
and agrees to be bound by the provisions of this
Section 14.16
.
14.7.
Direct Website Communications
.
(a) Any Borrower may, at its option, provide to the Administrative Agent any information,
documents and other materials that it is obligated to furnish to the Administrative Agent pursuant
to the Credit Documents, including, without limitation, all notices, requests, financial
statements, financial and other reports, certificates and other information materials, but
excluding any such communication that (A) relates to a request for a new, or a conversion of an
existing, borrowing or other extension of credit (including any election of an interest rate or
interest period relating thereto), (B) relates to the payment of any principal or other amount due
under the Credit 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 the Credit 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.
(i) The Administrative Agent agrees that the receipt of the Communications by the
Administrative Agent at its e-mail address set forth above shall constitute effective delivery of
the Communications to the Administrative Agent for purposes of the Credit Documents. Each Lender
agrees that notice to it (as provided in the next sentence) specifying that the Communications have
been posted to the Platform shall constitute effective delivery of the Communications to such
Lender for purposes of the Credit Documents. Each Lender agrees (A) to notify the Administrative
Agent in writing (including by electronic communication) from time to time of such Lenders e-mail
address to which the foregoing notice may be sent by electronic transmission and (B) that the
foregoing notice may be sent to such e-mail address.
(b) The Borrowers hereby acknowledge that (a) the Administrative Agent and/or the other Agents
will make available to the Lenders and the Letter of Credit Issuer materials and/or information
provided by or on behalf of the Borrowers hereunder (collectively,
Borrower Materials
) by posting
the Borrower Materials on IntraLinks or another similar electronic
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system (the
Platform
) and (b)
certain of the Lenders may be public-side Lenders (
i.e.
, Lenders that do not wish to
receive material non-public information with respect to the Borrowers or their securities) (each, a
Public Lender
). Each Borrower hereby agrees that it will use commercially reasonable efforts to
identify that portion of the Borrower Materials that do not contain any material non-public
information and that may be distributed to the Public Lenders and that (x) all such Borrower
Materials shall be clearly and conspicuously marked PUBLIC which, at a minimum, shall mean that
the word PUBLIC shall appear prominently on the first page thereof and (y) by marking Borrower
Materials PUBLIC, such Borrower shall be deemed
to have authorized the Administrative Agent and the other Agents to make such Borrower
Materials available through a portion of the Platform designated Public Investor.
Notwithstanding the foregoing or any other provision of this Agreement to the contrary, neither the
Parent Borrower nor any of its Related Parties shall be liable, or responsible in any manner, for
the use by any Agent, any Lender, any Participant or any of their Related Parties of the Borrower
Materials. In addition, it is agreed that (i) to the extent any Borrower Materials constitute
Confidential Information, they shall be subject to the confidentiality provisions of
Section
14.16
and (ii) the Borrowers shall be under no obligation to designate any Borrower Materials
as PUBLIC.
(c) THE PLATFORM IS PROVIDED AS IS AND AS AVAILABLE. THE AGENT PARTIES (AS DEFINED BELOW)
DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE
PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.
NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR
OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE
PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively,
the
Agent Parties
and each an
Agent Party
) have any liability to any Borrower, any Lender, the
Letter of Credit Issuer or any other Person for losses, claims, damages, liabilities or expenses of
any kind (whether in tort, contract or otherwise) arising out of any Borrowers or the
Administrative Agents transmission of Borrower Materials through the internet, except to the
extent the liability of any Agent Party resulted from such Agent Partys (or any of its Related
Parties) gross negligence, bad faith or willful misconduct or material breach of the Credit
Documents.
14.18.
USA PATRIOT Act
. Each Lender hereby notifies the Borrowers that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the
Patriot Act
), it is required to obtain, verify and record information that identifies
the Borrower, which information includes the name and address of the Borrowers and other
information that will allow such Lender to identify the Borrowers in accordance with the Patriot
Act.
14.19.
Judgment Currency
. If, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due hereunder or any other Credit Document in one currency into another
currency, the rate of exchange used shall be that at which in accordance with normal banking
procedures the Administrative Agent could purchase the first currency with such other currency on
the Business Day preceding that on which final judgment is given. The obligation
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of each Borrower
in respect of any such sum due from it to the Administrative Agent or the Lenders hereunder or
under the other Credit Documents shall, notwithstanding any judgment in a currency (the
Judgment
Currency
) other than that in which such sum is denominated in accordance with the applicable
provisions of this Agreement (the
Agreement Currency
), be discharged only to the extent that on
the Business Day following receipt by the Administrative Agent of any sum adjudged to be so
due in the Judgment Currency, the Administrative Agent may in accordance with normal banking
procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the
Agreement Currency so purchased is less than the sum originally due to the Administrative Agent
from any Borrower in the Agreement Currency, such Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Administrative Agent or the Person to whom such
obligation was owing against such loss. If the amount of the Agreement Currency so purchased is
greater than the sum originally due to the Administrative Agent in such currency, the
Administrative Agent agrees to return the amount of any excess to such Borrower (or to any other
Person who may be entitled thereto under applicable law).
14.20.
UK Know-Your-Customer Requirements
.
(a) If:
(i) the introduction of or any change in (or in the interpretation, administration or
application of) any law or regulation made after the date of this Agreement;
(ii) any change in the status of a Credit Party after the date of this Agreement; or
(iii) a proposed assignment or transfer by a Lender of any of its rights and
obligations under this Agreement to a party that is not a Lender prior to such assignment or
transfer,
obliges the Administrative Agent or any Lender (or, in the case of
clause (iii)
above, any
prospective new Lender) to comply with know your customer or similar identification procedures in
circumstances where the necessary information is not already available to it, each Credit Party
shall promptly upon the request of the Administrative Agent or any Lender supply, or procure the
supply of, such documentation and other evidence as is reasonably requested by the Administrative
Agent (for itself or on behalf of any Lender) or any Lender (for itself or, in the case of the
event described in
subclause (iii)
above, on behalf of any prospective new Lender) in order
for the Agent, such Lender or, in the case of the event described in
subclause (iii)
above,
any prospective new Lender to carry out and be satisfied it has complied with all necessary know
your customer or other similar checks under all Requirements of Law applicable to the transactions
contemplated in the Credit Documents.
(b) Each Lender shall promptly upon the request of the Administrative Agent supply, or procure
the supply of, such documentation and other evidence as is reasonably requested by the
Administrative Agent (for itself) in order for the Administrative Agent to carry out and be
satisfied it has complied with all necessary know your customer or other similar
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checks under all
Requirements of Law applicable to the transactions contemplated in the Credit Documents.
(c) If the addition of any new Credit Party obliges the Administrative Agent or any Lender to
comply with know your customer or similar identification procedures in circumstances where the
necessary information is not already available to it, the Parent Borrower
shall promptly upon the request of the Administrative Agent or any Lender supply, or procure
the supply of, such documentation and other evidence as is reasonably requested by the
Administrative Agent (for itself or on behalf of any Lender) or any Lender (for itself or on behalf
of any prospective new Lender) in order for the Administrative Agent or such Lender or any
prospective new Lender to carry out and be satisfied it has complied with all necessary know your
customer or other similar checks under all applicable Requirements of Law.
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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 Anderson
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Name:
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David Anderson
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Title:
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Senior Vice President Finance and Treasurer
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HCA UK CAPITAL LIMITED
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By:
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/s/ Keith M. Giger
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Name:
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Keith M. Giger
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Title:
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Vice President - Finance
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BANK OF AMERICA, N.A., as Administrative Agent,
Collateral Agent, Swingline Lender, Letter of
Credit Issuer and a Lender
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By:
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/s/ John A. Fulton
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Name:
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John A. Fulton
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Title:
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Vice President
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JPMORGAN CHASE BANK, N.A., as Letter of Credit
Issuer for the Existing Letters of Credit and a Lender
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By:
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/s/ Gary L. Spevack
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Name:
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Gary L. Spevack
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Title:
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Vice President
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Merrill Lynch Capital Corporation, as
Documentation Agent and a Lender
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By:
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/s/ Michael E. OBrien
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Name:
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Michael E. OBrien
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Title:
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Vice President
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Citicorp North America, Inc., as a Lender
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By:
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/s/ John W. Peruzzi
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Name:
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John W. Peruzzi
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Title:
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Managing Director and Vice President
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Deutsche Bank AG New York Branch, as a Lender
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By:
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/s/ Carin Keegan
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Name:
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Carin Keegan
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Title:
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Vice President
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By:
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/s/ Evelyn Thierry
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Name:
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Evelyn Thierry
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Title:
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Vice President
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Wachovia Bank, N.A., as a Lender
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By:
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/s/ Gary R. Wolfe
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Name:
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Gary R. Wolfe
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Title:
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Managing Director
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ABN AMRO Bank N.V., as a Lender
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By:
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/s/ Alex Blodi
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Name:
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Alex Blodi
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Title:
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Managing Director
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By:
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/s/ Michele Costello
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Name:
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Michele Costello
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Title:
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Vice President
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Barclays Bank PLC, as a Lender
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By:
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/s/ Douglas Bernegger
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Name:
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Douglas Bernegger
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Title:
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Director
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BNP Paribas, as a Lender
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By:
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/s/ Paul Barnes
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Name:
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Paul Barnes
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Title:
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Director
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By:
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/s/ Cecile Scherer
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Name:
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Cecile Scherer
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Title:
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Director
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|
|
|
Calyon New York Branch, as a Lender
|
|
|
By:
|
/s/ Thomas Randolph
|
|
|
|
Name:
|
Thomas Randolph
|
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
|
|
By:
|
/s/ Priya Vrat
|
|
|
|
Name:
|
Priya Vrat
|
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
General Electric Capital Corporation, as a Lender
|
|
|
By:
|
/s/ Parminder Atwal
|
|
|
|
Name:
|
Parminder Atwal
|
|
|
|
Title:
|
Duly Authorized Signatory
|
|
|
|
|
|
|
|
Bayerische Hypo- und Vereinsbank AG New York
Branch, as a Lender
|
|
|
By:
|
/s/ Peter Ra
|
|
|
|
Name:
|
Peter Ra
|
|
|
|
Title:
|
Senior Associate
|
|
|
|
|
|
|
|
By:
|
/s/ Hetal Selarka
|
|
|
|
Name:
|
Hetal Selarka
|
|
|
|
Title:
|
Associate Director
|
|
|
|
|
|
|
|
ING Capital LLC, as a Lender
|
|
|
By:
|
/s/ Michael P. Garvin, Jr.
|
|
|
|
Name:
|
Michael P. Garvin, Jr.
|
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
|
|
Mizuho Corporate Bank, Ltd., as a Lender
|
|
|
By:
|
/s/ James R. Fayen
|
|
|
|
Name:
|
James R. Fayen
|
|
|
|
Title:
|
Deputy General Manager
|
|
|
|
|
|
|
|
GS Capital Partners, as a Lender
|
|
|
By:
|
/s/ Walter Jackson
|
|
|
|
Name:
|
Walter Jackson
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
The Royal Bank of Scotland PLC, as a Lender
|
|
|
By:
|
/s/ Michael Cavounis
|
|
|
|
Name:
|
Michael Cavounis
|
|
|
|
Title:
|
Director
|
|
|
|
|
|
|
|
Sumitomo Mitsui Banking Corporation, as a Lender
|
|
|
By:
|
/s/ Leo E. Pagarigan
|
|
|
|
Name:
|
Leo E. Pagarigan
|
|
|
|
Title:
|
Joint General Manager
|
|
|
|
|
|
|
|
CIT Healthcare LLC, as a Lender
|
|
|
By:
|
/s/ Kenneth Zoeller
|
|
|
|
Name:
|
Kenneth Zoeller
|
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
|
|
SunTrust Bank, as a Lender
|
|
|
By:
|
/s/ Mark D. Mattson
|
|
|
|
Name:
|
Mark D. Mattson
|
|
|
|
Title:
|
Managing Director
|
|
|
|
|
|
|
|
Fifth Third Bank, an Ohio banking corporation,
as a Lender
|
|
|
By:
|
/s/ Sandra G. Harnrick
|
|
|
|
Name:
|
Sandra G. Harnrick
|
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
The Northern Trust Company, as a Lender
|
|
|
By:
|
/s/ Thomas Hasenauer
|
|
|
|
Name:
|
Thomas Hasenauer
|
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
United Overseas Bank Limited, New York Agency, as
a Lender
|
|
|
By:
|
/s/ George Lim
|
|
|
|
Name:
|
George Lim
|
|
|
|
Title:
|
FVP & General Manager
|
|
|
|
|
|
|
|
By:
|
/s/ Mario Sheng
|
|
|
|
Name:
|
Mario Sheng
|
|
|
|
Title:
|
Assistant Vice President
|
|
|
|
|
|
|
|
CAISSE DE DÉPÔT ET PLACEMENT
DU QUÉBEC, as a Lender
|
|
|
By:
|
/s/ Marc-André Aubé
|
|
|
|
Name:
|
Marc-André Aubé
|
|
|
|
Title:
|
Manager
|
|
|
|
|
|
|
|
By:
|
/s/ James B. McMullan
|
|
|
|
Name:
|
James B. McMullan
|
|
|
|
Title:
|
Vice President
|
|
|
|
|
|
|
|
Österreichische Volksbanken AG, as a Lender
|
|
|
By:
|
/s/ Johann Filler
|
|
|
|
Name:
|
Johann Filler
|
|
|
|
Title:
|
Executive Director
|
|
|
|
|
|
|
|
By:
|
/s/ Martin Excel
|
|
|
|
Name:
|
Martin Excel
|
|
|
|
Title:
|
Manager
|
|
EXHIBIT
4.12
EXECUTION COPY
$2,000,000,000
CREDIT AGREEMENT
Dated as of November 17, 2006
among
HCA INC.,
as the Parent Borrower,
THE SEVERAL SUBSIDIARY BORROWERS PARTY HERETO,
The Several Lenders
from Time to Time Parties Hereto,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swingline Lender
and Letter of Credit Issuer,
JPMORGAN CHASE BANK, N.A.
and
CITICORP NORTH AMERICA, INC.,
as Co-Syndication Agents,
and
MERRILL LYNCH CAPITAL CORPORATION,
as Documentation Agent
BANC OF AMERICA SECURITIES LLC,
J.P. MORGAN SECURITIES INC.,
CITIGROUP GLOBAL MARKETS INC.
and
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED,
as Joint Lead Arrangers and Bookrunners,
DEUTSCHE BANK SECURITIES INC.
and
WACHOVIA CAPITAL MARKETS, LLC,
as Joint Bookrunners
Cahill Gordon & Reindel
llp
80 Pine Street
New York, New York 10005
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
SECTION 1.
|
|
Definitions
|
|
|
2
|
|
1.1.
|
|
Defined Terms
|
|
|
2
|
|
1.2.
|
|
Other Interpretive Provisions
|
|
|
53
|
|
1.3.
|
|
Accounting Terms
|
|
|
54
|
|
1.4.
|
|
Rounding
|
|
|
54
|
|
1.5.
|
|
References to Agreements, Laws, Etc.
|
|
|
54
|
|
1.6.
|
|
Exchange Rates
|
|
|
55
|
|
1.7.
|
|
Reserve Amounts
|
|
|
55
|
|
|
|
|
|
|
|
|
SECTION 2.
|
|
Amount and Terms of Credit
|
|
|
55
|
|
2.1.
|
|
Commitments
|
|
|
55
|
|
2.2.
|
|
Minimum Amount of Each Borrowing; Maximum Number of Borrowings
|
|
|
58
|
|
2.3.
|
|
Notice of Borrowing
|
|
|
58
|
|
2.4.
|
|
Disbursement of Funds
|
|
|
59
|
|
2.5.
|
|
Repayment of Loans; Evidence of Debt
|
|
|
60
|
|
2.6.
|
|
Conversions and Continuations
|
|
|
61
|
|
2.7.
|
|
Pro Rata Borrowings
|
|
|
62
|
|
2.8.
|
|
Interest
|
|
|
62
|
|
2.9.
|
|
Interest Periods
|
|
|
64
|
|
2.10.
|
|
Increased Costs, Illegality, Etc.
|
|
|
64
|
|
2.11.
|
|
Compensation
|
|
|
66
|
|
2.12.
|
|
Change of Lending Office
|
|
|
67
|
|
2.13.
|
|
Notice of Certain Costs
|
|
|
67
|
|
2.14.
|
|
Incremental Facilities
|
|
|
67
|
|
2.15.
|
|
Reserves
|
|
|
68
|
|
|
|
|
|
|
|
|
SECTION 3.
|
|
Letters of Credit
|
|
|
69
|
|
3.1.
|
|
Letters of Credit
|
|
|
69
|
|
3.2.
|
|
Letter of Credit Requests
|
|
|
71
|
|
3.3.
|
|
Letter of Credit Participations
|
|
|
73
|
|
3.4.
|
|
Agreement to Repay Letter of Credit Drawings
|
|
|
75
|
|
3.5.
|
|
Increased Costs
|
|
|
76
|
|
3.6.
|
|
New or Successor Letter of Credit Issuer
|
|
|
77
|
|
3.7.
|
|
Role of Letter of Credit Issuer
|
|
|
78
|
|
3.8.
|
|
Cash Collateral
|
|
|
79
|
|
3.9.
|
|
Applicability of ISP and UCP
|
|
|
79
|
|
3.10.
|
|
Conflict with Issuer Documents
|
|
|
80
|
|
3.11.
|
|
Letters of Credit Issued for Restricted Subsidiaries
|
|
|
80
|
|
|
|
|
|
|
|
|
SECTION 4.
|
|
Fees; Commitments
|
|
|
80
|
|
4.1.
|
|
Fees
|
|
|
80
|
|
4.2.
|
|
Voluntary Reduction of Revolving Credit Commitments
|
|
|
83
|
|
-i-
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
4.3.
|
|
Mandatory Termination of Commitments
|
|
|
83
|
|
|
|
|
|
|
|
|
SECTION 5.
|
|
Payments
|
|
|
83
|
|
5.1.
|
|
Voluntary Prepayments
|
|
|
83
|
|
5.2.
|
|
Mandatory Prepayments
|
|
|
84
|
|
5.3.
|
|
Method and Place of Payment
|
|
|
85
|
|
5.4.
|
|
Net Payments
|
|
|
86
|
|
5.5.
|
|
Computations of Interest and Fees
|
|
|
88
|
|
5.6.
|
|
Limit on Rate of Interest
|
|
|
88
|
|
|
|
|
|
|
|
|
SECTION 6.
|
|
Conditions Precedent to Initial Borrowing
|
|
|
89
|
|
6.1.
|
|
Credit Documents
|
|
|
89
|
|
6.2.
|
|
Collateral
|
|
|
89
|
|
6.3.
|
|
Legal Opinions
|
|
|
90
|
|
6.4.
|
|
Contemporaneous Debt Financings and Repayments
|
|
|
90
|
|
6.5.
|
|
Equity Investments
|
|
|
90
|
|
6.6.
|
|
Closing Certificates
|
|
|
90
|
|
6.7.
|
|
Authorization of Proceedings of Each Credit Party
|
|
|
90
|
|
6.8.
|
|
Fees
|
|
|
90
|
|
6.9.
|
|
Representations and Warranties
|
|
|
91
|
|
6.10.
|
|
Related Agreements
|
|
|
91
|
|
6.11.
|
|
Solvency Certificate
|
|
|
91
|
|
6.12.
|
|
Merger
|
|
|
91
|
|
6.13.
|
|
Pro Forma Balance Sheet
|
|
|
91
|
|
6.14.
|
|
No Material Adverse Change
|
|
|
91
|
|
|
|
|
|
|
|
|
SECTION 7.
|
|
Conditions Precedent to All Credit Events
|
|
|
91
|
|
7.1.
|
|
No Default; Representations and Warranties
|
|
|
91
|
|
7.2.
|
|
Notice of Borrowing; Letter of Credit Request
|
|
|
92
|
|
|
|
|
|
|
|
|
SECTION 8.
|
|
Representations, Warranties and Agreements
|
|
|
92
|
|
8.1.
|
|
Corporate Status
|
|
|
92
|
|
8.2.
|
|
Corporate Power and Authority
|
|
|
92
|
|
8.3.
|
|
No Violation
|
|
|
93
|
|
8.4.
|
|
Litigation
|
|
|
93
|
|
8.5.
|
|
Margin Regulations
|
|
|
93
|
|
8.6.
|
|
Governmental Approvals
|
|
|
93
|
|
8.7.
|
|
Investment Company Act
|
|
|
93
|
|
8.8.
|
|
True and Complete Disclosure
|
|
|
93
|
|
8.9.
|
|
Financial Condition; Financial Statements
|
|
|
94
|
|
8.10.
|
|
Tax Matters
|
|
|
94
|
|
8.11.
|
|
Compliance with ERISA
|
|
|
94
|
|
8.12.
|
|
Subsidiaries
|
|
|
95
|
|
8.13.
|
|
Intellectual Property
|
|
|
95
|
|
8.14.
|
|
Environmental Laws
|
|
|
95
|
|
8.15.
|
|
Properties
|
|
|
95
|
|
-ii-
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
8.16.
|
|
Solvency
|
|
|
96
|
|
8.17.
|
|
Delayed Equity Arrangements
|
|
|
96
|
|
|
|
|
|
|
|
|
SECTION 9.
|
|
Affirmative Covenants
|
|
|
96
|
|
9.1.
|
|
Information Covenants
|
|
|
96
|
|
9.2.
|
|
Books, Records and Inspections
|
|
|
100
|
|
9.3.
|
|
Maintenance of Insurance
|
|
|
101
|
|
9.4.
|
|
Payment of Taxes
|
|
|
101
|
|
9.5.
|
|
Consolidated Corporate Franchises
|
|
|
102
|
|
9.6.
|
|
Compliance with Statutes, Regulations, Etc.
|
|
|
102
|
|
9.7.
|
|
ERISA
|
|
|
102
|
|
9.8.
|
|
Maintenance of Properties
|
|
|
103
|
|
9.9.
|
|
Transactions with Affiliates
|
|
|
103
|
|
9.10.
|
|
End of Fiscal Years; Fiscal Quarters
|
|
|
103
|
|
9.11.
|
|
Additional Borrowers
|
|
|
104
|
|
9.12.
|
|
[Reserved]
|
|
|
104
|
|
9.13.
|
|
Use of Proceeds
|
|
|
104
|
|
9.14.
|
|
Further Assurances
|
|
|
104
|
|
9.15.
|
|
Cash Management Systems
|
|
|
105
|
|
|
|
|
|
|
|
|
SECTION 10.
|
|
Negative Covenants
|
|
|
110
|
|
10.1.
|
|
Limitation on Indebtedness
|
|
|
110
|
|
10.2.
|
|
Limitation on Liens
|
|
|
117
|
|
10.3.
|
|
Limitation on Fundamental Changes
|
|
|
120
|
|
10.4.
|
|
Limitation on Sale of Assets
|
|
|
121
|
|
10.5.
|
|
Limitation on Investments
|
|
|
124
|
|
10.6.
|
|
Limitation on Dividends
|
|
|
127
|
|
10.7.
|
|
Limitations on Debt Payments and Amendments
|
|
|
129
|
|
10.8.
|
|
Limitations on Sale Leasebacks
|
|
|
130
|
|
10.9.
|
|
Minimum Interest Coverage Ratio
|
|
|
130
|
|
10.10.
|
|
Changes in Business
|
|
|
131
|
|
10.11.
|
|
1993 Indenture Restricted Subsidiaries
|
|
|
131
|
|
|
|
|
|
|
|
|
SECTION 11.
|
|
Events of Default
|
|
|
131
|
|
11.1.
|
|
Payments
|
|
|
131
|
|
11.2.
|
|
Representations, Etc.
|
|
|
131
|
|
11.3.
|
|
Covenants
|
|
|
131
|
|
11.4.
|
|
Default Under Other Agreements
|
|
|
132
|
|
11.5.
|
|
Bankruptcy, Etc.
|
|
|
132
|
|
11.6.
|
|
ERISA
|
|
|
133
|
|
11.7.
|
|
[Reserved]
|
|
|
133
|
|
11.8.
|
|
[Reserved]
|
|
|
133
|
|
11.9.
|
|
Security Agreement
|
|
|
133
|
|
11.10.
|
|
[Reserved]
|
|
|
133
|
|
11.11.
|
|
Judgments
|
|
|
133
|
|
11.12.
|
|
Change of Control
|
|
|
133
|
|
-iii-
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
11.13.
|
|
Certain Amendments and Waivers to CF Agreement
|
|
|
135
|
|
|
|
|
|
|
|
|
SECTION 12.
|
|
Investors Right To Cure
|
|
|
135
|
|
|
|
|
|
|
|
|
SECTION 13.
|
|
The Agents
|
|
|
136
|
|
13.1.
|
|
Appointment
|
|
|
136
|
|
13.2.
|
|
Delegation of Duties
|
|
|
136
|
|
13.3.
|
|
Exculpatory Provisions
|
|
|
137
|
|
13.4.
|
|
Reliance by Agents
|
|
|
137
|
|
13.5.
|
|
Notice of Default
|
|
|
137
|
|
13.6.
|
|
Non-Reliance on Administrative Agent, Collateral Agent and Other Lenders
|
|
|
138
|
|
13.7.
|
|
Indemnification
|
|
|
138
|
|
13.8.
|
|
Administrative Agent in its Individual Capacity
|
|
|
139
|
|
13.9.
|
|
Successor Agents
|
|
|
139
|
|
13.10.
|
|
Withholding Tax
|
|
|
140
|
|
13.11.
|
|
Reports and Financial Statements
|
|
|
140
|
|
|
|
|
|
|
|
|
SECTION 14.
|
|
Miscellaneous
|
|
|
141
|
|
14.1.
|
|
Amendments and Waivers
|
|
|
141
|
|
14.2.
|
|
Notices
|
|
|
143
|
|
14.3.
|
|
No Waiver; Cumulative Remedies
|
|
|
144
|
|
14.4.
|
|
Survival of Representations and Warranties
|
|
|
144
|
|
14.5.
|
|
Payment of Expenses
|
|
|
144
|
|
14.6.
|
|
Successors and Assigns; Participations and Assignments
|
|
|
145
|
|
14.7.
|
|
Replacements of Lenders under Certain Circumstances
|
|
|
149
|
|
14.8.
|
|
Adjustments; Set-off
|
|
|
149
|
|
14.9.
|
|
Counterparts
|
|
|
150
|
|
14.10.
|
|
Severability
|
|
|
150
|
|
14.11.
|
|
Integration
|
|
|
150
|
|
14.12.
|
|
GOVERNING LAW
|
|
|
151
|
|
14.13.
|
|
Submission to Jurisdiction; Waivers
|
|
|
151
|
|
14.14.
|
|
Acknowledgments
|
|
|
151
|
|
14.15.
|
|
WAIVERS OF JURY TRIAL
|
|
|
152
|
|
14.16.
|
|
Confidentiality
|
|
|
152
|
|
14.17.
|
|
Direct Website Communications
|
|
|
153
|
|
14.18.
|
|
USA Patriot Act
|
|
|
154
|
|
14.19.
|
|
Joint and Several Liability
|
|
|
155
|
|
14.20.
|
|
Contribution and Indemnification Among the Borrowers
|
|
|
156
|
|
14.21.
|
|
Agency of the Parent Borrower for Each Other Borrower
|
|
|
156
|
|
14.22.
|
|
Reinstatement
|
|
|
156
|
|
14.23.
|
|
Express Waivers by Borrowers in Respect of Cross Guaranties and Cross Collateralization
|
|
|
157
|
|
-iv-
SCHEDULES
|
|
|
Schedule 1.1(c)
|
|
Commitments and Addresses of Lenders
|
Schedule 1.1(d)
|
|
Excluded Subsidiaries
|
Schedule 1.1(f)
|
|
Retained Indebtedness
|
Schedule 1.1(g)
|
|
Debt Repayment
|
Schedule 1.1(h)
|
|
Consolidated Persons
|
Schedule 6.3(a)
|
|
Local Counsel to Borrowers and Administrative Agent
|
Schedule 8.4
|
|
Litigation
|
Schedule 8.12
|
|
Subsidiaries
|
Schedule 9.9
|
|
Closing Date Affiliate Transactions
|
Schedule 9.15(a)
|
|
Government Receivables Deposit Accounts
|
Schedule 9.15(c)
|
|
Blocked Accounts
|
Schedule 9.15(e)
|
|
Credit Card Arrangements
|
Schedule 10.1
|
|
Closing Date Indebtedness
|
Schedule 10.2
|
|
Closing Date Liens
|
Schedule 10.5
|
|
Closing Date Investments
|
Schedule 14.2
|
|
Notice Addresses
|
EXHIBITS
|
|
|
Exhibit A
|
|
Form of Borrowing Base Certificate
|
Exhibit D
|
|
Form of Perfection Certificate
|
Exhibit F
|
|
Form of Security Agreement
|
Exhibit G
|
|
Form of Letter of Credit Request
|
Exhibit H-1
|
|
Form of Legal Opinion of Simpson Thacher & Bartlett LLP
|
Exhibit H-2
|
|
Form of Legal Opinion of General Counsel
|
Exhibit I
|
|
Form of Closing Certificate
|
Exhibit J
|
|
Form of Assignment and Acceptance
|
Exhibit K
|
|
Form of Promissory Note
|
Exhibit L
|
|
Form of Joinder Agreement
|
-v-
CREDIT AGREEMENT, dated as of November 17, 2006, 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
), JPMORGAN CHASE BANK, N.A. and CITICORP NORTH AMERICA, INC.,
as Co-Syndication Agents, BANC OF AMERICA SECURITIES LLC, J.P. MORGAN SECURITIES INC., CITIGROUP
GLOBAL MARKETS INC. and MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, as Joint Lead Arrangers
and Bookrunners, DEUTSCHE BANK SECURITIES INC. and WACHOVIA CAPITAL MARKETS LLC, as Joint
Bookrunners, and MERRILL LYNCH CAPITAL CORPORATION, as Documentation Agent.
WHEREAS, pursuant to the Agreement and Plan of Merger (as amended from time to time in
accordance therewith, the
Acquisition Agreement
), dated as of July 24, 2006, by and among HCA,
Holdings and Merger Sub, Merger Sub will merge with and into HCA (the
Merger
), with HCA surviving
the Merger as a wholly-owned Subsidiary of Holdings;
WHEREAS, to fund, in part, the Merger, the Sponsors and certain other investors (including the
Management Investors) will contribute an amount in cash to Holdings and/or a direct or indirect
parent thereof in exchange for Stock and Stock Equivalents (which cash will be contributed to the
Parent Borrower in exchange for common Stock of the Parent Borrower), which together with the
amount of any rollover equity issued to existing shareholders of the Parent Borrower (such
contribution and rollover, collectively, the
Equity Investments
), shall be no less than 15% of
the aggregate pro forma capitalization of the Parent Borrower on the Closing Date (the
Minimum
Equity Amount
; it being understood that, for all purposes of this Agreement, the Minimum Equity
Amount will be determined assuming that the Delayed Equity Amount and the Option Note Amount had
each been contributed in cash with, and included in, the Equity Investments received by the Parent
Borrower on the Closing Date and that a corresponding reduction had been made to the amount of
consolidated Indebtedness of the Parent Borrower outstanding on the Closing Date);
WHEREAS, to consummate the transactions contemplated by the Acquisition Agreement, (a) the
Parent Borrower will issue under the Junior Lien Notes Indenture $1,000,000,000 aggregate principal
amount of
9
1
/
8
% senior secured notes due 2014 (the
2014 Cash Pay Notes
), $3,200,000,000 aggregate
principal amount of 9
1
/
4
% senior secured notes due 2016 (the
2016 Cash Pay Notes
and together with
the 2014 Cash Pay Notes, the
Cash Pay Notes
) and $1,500,000,000 aggregate principal amount of
9
5
/
8
%/10
3
/
8
% senior secured toggle notes due 2016 (the
Toggle Notes
, and together with the Cash Pay
Notes, the
Junior Lien Notes
) in sales pursuant to Rule 144A and Regulation S under the
Securities Act of 1933, as amended (the
Junior Lien Notes Offering
), generating aggregate gross
proceeds of up to $5,700,000,000 and (b) the Parent Borrower and the European Subsidiary Borrower
(as defined in the CF Agreement) will enter into the CF Facilities to borrow (i) tranche A term
loans on the Closing Date in an aggregate principal amount of $2,750,000,000, (ii) tranche B term
loans on the Closing Date in an aggregate principal amount of $8,800,000,000, (iii) European
tranche term loans on the Closing Date in an aggregate principal amount of
1,00,000,000, and
(iv) revolving credit loans made available to the Parent Borrower at any time and from time to time
in
accordance with the terms of the CF Agreement in an aggregate principal amount at any time
outstanding not in excess of $2,000,000,000 less the sum of (A) the aggregate letters of credit
outstanding thereunder at such time and (B) the aggregate principal amount of all swingline loans
outstanding thereunder at such time;
WHEREAS, in connection with the foregoing, (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
$2,000,000,000, of which up to $1,750,000,000 (subject to the Borrowing Base and exclusive of any
Letters of Credit Outstanding) may be borrowed on the Closing Date to finance a portion of the
Transactions, (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
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 $100,000,000.
WHEREAS, the proceeds of the term loan borrowings under the CF Facilities and up to
$300,000,000 of revolving loan borrowings under the CF Facilities will be used by the Borrowers
(and, in the case of the European tranche term loans under the CF Agreement, by the European
Subsidiary Borrower (as defined in the CF Agreement)), together with (a) the net proceeds of the
Junior Lien Notes Offering, (b) up to $1,750,000,000 of borrowings under this Agreement and (c) the
net proceeds of the Equity Investments, on the Closing Date (or, in the case of the Debt Repayment,
such later date as may be necessary to effect the Debt Repayments in accordance with the tender
offers therefor) solely to effect the Merger, to effect the Debt Repayments and to pay Transaction
Expenses. Proceeds of Revolving Credit Loans and Swingline Loans will be used by the Borrowers on
or after the Closing Date for general corporate purposes (including Permitted Acquisitions).
Letters of Credit will be used by the Borrowers for general corporate purposes; and
WHEREAS, the Lenders and Letter of Credit Issuer are willing to make available to the
Borrowers such revolving credit and letter of credit facilities upon the terms and subject to the
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained
herein, the parties hereto hereby agree as follows:
SECTION 1.
Definitions
1.1.
Defined Terms
.
(a) As used herein, the following terms shall have the meanings specified in this
Section
1.1
unless the context otherwise requires (it being understood that defined terms in this
Agreement shall include in the singular number the plural and in the plural the singular):
ABL Entity
shall mean a direct Restricted Subsidiary of a 1993 Indenture Restricted
Subsidiary, substantially all of the business of which consists of financing the acquisition or
disposition of accounts receivable and related assets.
-2-
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 now or hereafter in effect), any
accounts receivable, any heath-care-insurance receivables (as that term is defined in the UCC now
or hereafter in effect), any payment intangibles (as that term is defined in the UCC now or
hereafter in effect) and all other rights to payment and/or reimbursement of every kind and
description, whether or not earned by performance, in each case arising in the course of their
respective healthcare provision operations, (c) all accounts, contract rights, general intangibles,
rights, remedies, guarantees, supporting obligations, letter of credit rights and security
interests in respect of the foregoing, all rights of enforcement and collection, all books and
records evidencing or related to the foregoing, and all rights under any of the Credit Documents in
respect of the foregoing, (d) all information and data compiled or derived by any Secured Party or
to which any Secured Party is entitled in respect of or related to the foregoing (other than any
such information and data subject to legal restrictions of patient confidentiality), (e) all
collateral security of any kind, given by any Account Debtor or any other Person to any Secured
Party, with respect to any of the foregoing, and (f) all proceeds of the foregoing.
ACH
shall mean automated clearing house transfers.
Acquired EBITDA
shall mean, with respect to any Acquired Entity or Business or 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.
-3-
Acquired Entity or Business
shall have the meaning provided in the definition of the term
Consolidated EBITDA.
Acquisition Agreement
shall have the meaning provided in the preamble to this Agreement.
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 Bookrunner, each Joint Bookrunner and the Documentation Agent.
Aggregate Revolving Credit Outstandings
shall have the meaning provided in
Section
5.2(b)
.
Agreement
shall mean this Credit Agreement, as the same may be amended, supplemented or
otherwise modified from time to time.
Allocable Amount
shall have the meaning provided in
Section 14.20
.
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:
-4-
|
|
|
|
|
Status
|
|
Applicable ABR Margin
|
Level I Status
|
|
|
0.75
|
%
|
Level II Status
|
|
|
0.50
|
%
|
Level III Status
|
|
|
0.25
|
%
|
Notwithstanding the foregoing, Level I Status shall apply during the period from and including the
Closing Date to but excluding the Trigger Date.
Applicable Amount
shall mean, at any time (the
Reference Time
), an amount equal to (a) the
sum, without duplication, of:
(i) an amount equal to the greater of (x) zero and (y) 50% of Cumulative Consolidated
Net Income for the period from October 1, 2006 until the last day of the then most recent
fiscal quarter for which Section 9.1 Financials have been delivered;
provided
that,
for the purposes of
Sections 10.6(c)(iii)
and
10.7(a)(i)(z)
only, the amount
in this
clause (i)
shall only be available if the Consolidated Total Debt to
Consolidated EBITDA Ratio for the most recently ended Test Period is less than 6.00:1.00,
determined on a Pro Forma Basis after giving effect to any dividend or prepayment,
repurchase or redemption actually made pursuant to
Section 10.6(c)(iii)
or
10.7(a)(i)(z)
; and
(ii) the amount of any capital contributions (other than (A) the Equity Investments,
(B) any Cure Amount, (C) any amount added back in the definition of Consolidated EBITDA
pursuant to
clause (a)(ix)
thereof, (D) any contributions in respect 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)) made
in cash to, or any proceeds of an equity issuance received by, the Parent Borrower from and
including the Business Day immediately following the Closing Date through and including the
Reference Time, including proceeds from the issuance of Stock or Stock Equivalents of any
direct or indirect parent of the Parent Borrower,
minus
(b) the sum, without duplication, of:
(i) the aggregate amount of Investments made pursuant to
Section 10.5(g)(ii)(y)
or
10.5(i)(ii)(y)
following the Closing Date and prior to the Reference Time;
(ii) the aggregate amount of dividends pursuant to
Section 10.6(c)(iii)
following the Closing Date and prior to the Reference Time; and
(iii) the aggregate amount of prepayments, repurchases and redemptions of Junior
Indebtedness pursuant to
Section 10.7(a)(i)(z)
following the Closing Date and prior
to the Reference Time.
Applicable Date
shall mean (i) with respect to any fiscal quarter commencing on January 1 of
any year, the last Business Day of April of such year, (ii) with respect to any fiscal
-5-
quarter
commencing on April 1 of any year, the last Business Day of June of such year, (iii) with respect
to any fiscal quarter commencing on July 1 of any year, the last Business Day of September of such
year and (iv) with respect to any fiscal quarter commencing on October 1 of any year, the last
Business Day of December of such year.
Applicable LIBOR Margin
shall mean, at any date, with respect to each LIBOR Loan, 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 I Status shall apply during the period from and including the
Closing Date to but excluding the Trigger Date.
Applicable Quarter
shall have the meaning provided in
Section 2.8(d)
.
Approved Fund
shall mean any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.
Assignment and Acceptance
shall mean an assignment and acceptance substantially in the form
of
Exhibit J
, or such other form as may be approved by the Administrative Agent.
Authorized Officer
shall mean the President, the Chief Financial Officer, the Treasurer, the
Vice President-Finance or any other senior officer of the Parent Borrower (or, if expressly used
with reference to a Subsidiary Borrower, of such Subsidiary Borrower) designated as such in writing
to the Administrative Agent by the applicable Borrower.
Auto-Extension Letter of Credit
shall have the meaning provided in
Section 3.2(d)
.
Auto-Reinstatement Letter of Credit
shall have the meaning provided in
Section
3.2(e)
.
Availability Reserves
shall mean, without duplication of any other reserves or items that
are otherwise addressed or excluded through eligibility criteria, such reserves, subject to
Section 2.15
, as the Administrative Agent, in its Permitted Discretion, determines as being
appropriate to reflect any impediments to the realization upon the Collateral consisting of
Eligible Accounts included in the Borrowing Base (including claims that the Administrative Agent
determines will need to be satisfied in connection with the realization upon such Collateral).
Available Commitment
shall mean an amount equal to the excess, if any, of (a) the amount of
the Total Revolving Credit Commitment over (b) the sum of (i) the aggregate
-6-
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
.
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 dollar amount equal to (x) 85% multiplied by the
book value of Eligible Accounts plus (y) 85% multiplied by the book value of Eligible Credit Card
Receivables (without duplication) minus (z) any Reserves;
provided
that the portion of the
Borrowing Base attributable to (i) Self-Pay Accounts shall not exceed the lesser of (a) $80.0
million and (b) the aggregate amount of cash collections received in respect of Self-Pay Accounts
during the three calendar month period then most recently completed for which internal financial
statements are available and (ii) Potential Medicaid Accounts shall not exceed the lesser of (a)
$75.0 million and (b) the aggregate amount of Potential Medicaid Accounts that have been converted
into Medicaid Accounts during the three calendar month period then most recently completed for
which internal financial statements are available. The Administrative Agent, in its Permitted
Discretion, may adjust the Borrowing Base by applying percentages (known as liquidating factors)
to Eligible Accounts by payor class based upon the applicable Borrowers actual recent collection
history for each such payor class (
i.e
., Medicare, Medicaid,
commercial insurance, etc.) in a
manner consistent with the Administrative Agents underwriting practices and procedures.
Borrowing Base Certificate
shall mean a certificate, duly executed by a Financial Officer or
controller of the Parent Borrower, appropriately completed and substantially in the form of
Exhibit A
hereto.
-7-
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 $250.0 million 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 Excess Global Availability has exceeded $250.0 million
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 amount 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)
.
Cash Pay Notes
shall have the meaning provided in the preamble to this Agreement.
-8-
CF Agreement
shall mean the Credit Agreement, dated as of November 17, 2006, among the
Parent Borrower, the European subsidiary borrowers party thereto, the lending institutions from
time to time parties thereto, Bank of America, N.A., as administrative agent, swingline lender and
letter of credit issuer, JPMorgan Chase Bank, N.A. and Citicorp North America, Inc., as
co-syndication agents, Banc of America Securities LLC, J.P. Morgan Securities Inc., Citigroup
Global Markets Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as joint lead arrangers
and bookrunners, Deutsche Bank Securities Inc. and Wachovia Capital Markets 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) 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 Revolving Credit Facility
shall mean the revolving credit facility under the CF
Agreement.
CHAMPVA
shall mean, collectively, the Civilian Health and Medical Program of the Department
of Veteran Affairs, a program of medical benefits covering retirees and dependents of former
members of the armed services administered by the United States Department of Veteran Affairs, and
all laws, rules, regulations, manuals, orders, guidelines or requirements pertaining to such
program including, without limitation, (a) all federal statutes (whether set forth in 38 U.S.C. §
1713 or elsewhere) affecting such program to the extent applicable to CHAMPVA and (b) all rules,
regulations (including 38 C.F.R. § 17.54), manuals, orders and administrative, reimbursement and
other guidelines of all Governmental Authorities promulgated
in connection with such program
(whether or not having the force of law), in each case as the same may be amended, supplemented or
otherwise modified from time to time.
CHAMPVA Account
shall mean an Account payable pursuant to CHAMPVA.
Change in Law
shall mean (a) the adoption of any law, treaty, order, policy, rule or
regulation after the date of this Agreement, (b) any change in any law, treaty, order, policy, rule
or regulation or in the interpretation or application thereof by any Governmental Authority after
the date of this Agreement or (c) any guideline, request or directive issued or made
-9-
after the date
hereof by any central bank or other governmental or quasi-governmental authority (whether or not
having the force of law) that requires compliance by a Lender.
Change of Control
shall mean and be deemed to have occurred if (a) the Sponsors, the Frist
Shareholders and the Management Investors shall at any time not own, in the aggregate, directly or
indirectly, beneficially and of record, at least 35% of the voting power of the outstanding Voting
Stock of the Parent Borrower (other than as the result of one or more widely distributed offerings
of the common Stock of the Parent Borrower or any direct or indirect parent thereof, in each case
whether by the Parent Borrower, such parent, the Sponsors, the Frist Shareholders or the Management
Investors); or (b) any person, entity or group (within the meaning of Section 13(d) or 14(d) of
the Securities Exchange Act of 1934, as amended) shall at any time have acquired direct or indirect
beneficial ownership of a percentage of the voting power of the outstanding Voting Stock of the
Parent Borrower that exceeds the percentage of the voting power of such Voting Stock then
beneficially owned, in the aggregate, by the Sponsors, the Frist Shareholders and the Management
Investors, unless, in the case of either
clause (a)
or
(b)
above, the Sponsors, the
Frist Shareholders and the Management Investors have, at such time, the right or the ability by
voting power, contract or otherwise to elect or designate for election at least a majority of the
board of directors of the Parent Borrower; or (c) Continuing Directors shall not constitute at
least a majority of the board of directors of the Parent Borrower; or (d) at any time, a Change of
Control (as defined in the Junior Lien Notes Indenture or any agreement governing Subordinated
Indebtedness) shall have occurred; or (e) the Parent Borrower shall cease to own directly 100% of
the Stock and Stock Equivalents of Healthtrust;
provided
that no Change of Control shall be
deemed to have occurred under this
clause (e)
solely as a result of the preferred Stock of
Healthtrust that is owned by Columbia-SDH and Epic Properties continuing to be owned by such
entities so long as Columbia-SDH and Epic Properties are direct or indirect wholly-owned
Subsidiaries of Healthtrust.
Class
, when used in reference to any Loan or Borrowing, shall refer to whether such Loan, or
the Loans comprising such Borrowing, are Revolving Credit Loans, Protective Advances, New 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 New Revolving Credit Commitment.
Closing Date
shall mean the date of the initial Borrowing hereunder.
Code
shall mean the Internal Revenue Code of 1986, as amended from time to time, and the
regulations promulgated and rulings issued thereunder. Section references to the
Code are to the
Code as in effect at the date of this Agreement and any subsequent provisions of the Code
amendatory thereof, supplemental thereto or substituted therefor.
Collateral
shall have the meaning assigned thereto in to the Security Agreement.
Collateral Agent
shall mean Bank of America, as collateral agent under the Security
Documents, or any successor collateral agent pursuant to
Section 13
.
-10-
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 Gross-Up Date
shall have the meaning provided in
Section 4.1(a)
.
Commitment Fee Payment
shall have the meaning provided in
Section 4.1(a)
.
Commitment Fee Rate
shall mean, with respect to the Available Commitment on any day, the
rate
per annum
set forth below opposite the Status in effect on such day:
|
|
|
|
|
Status
|
|
Commitment Fee Rate
|
Level I Status
|
|
|
0.375
|
%
|
Level II Status
|
|
|
0.375
|
%
|
Level III Status
|
|
|
0.250
|
%
|
Notwithstanding the foregoing, the term Commitment Fee Rate shall mean 0.375% during the period
from and including the Closing Date to but excluding the Trigger Date.
Commitments
shall mean, with respect to each Lender (to the extent applicable), such
Lenders Revolving Credit Commitment, New Revolving Credit Commitment and commitment to acquire
participations in Protective Advances.
Communications
shall have the meaning provided in
Section 14.17(a)
.
Concentration Account
shall have the meaning provided in
Section 9.15(a)
.
Confidential Healthcare Information
shall have the meaning provided in
Section 9.2
.
Confidential Information
shall have the meaning provided in
Section 14.16
.
Confidential Information Memorandum
shall mean the Confidential Information Memorandum of
the Parent Borrower dated August 2006, the Confidential Information Memorandum of the Parent
Borrower dated September 2006, in each case delivered to Lenders in connection with this Agreement,
and the Confidential Information Memorandum of the Parent Borrower dated October 2006;
provided
that in the event and to the extent of any inconsistencies between or among any of
the foregoing, Confidential Information Memorandum shall refer to the most recent thereof.
-11-
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 after the date hereof and to closure and/or consolidation of
facilities),
(vii) the amount of any minority interest expense consisting of Subsidiary
income attributable to minority equity interests of third parties in any
non-wholly-owned Subsidiary deducted (and not added back) in such period to
Consolidated Net Income,
(viii) the amount of management, monitoring, consulting and advisory fees and
related expenses paid to the Sponsors,
(ix) any costs or expenses pursuant to any management equity plan or stock
option plan or any other management or employee benefit plan or agreement or any
stock subscription or shareholder agreement, to the extent that such costs or
expenses are funded with cash proceeds contributed to the capital of the Parent
Borrower or net cash proceeds of an issuance of Stock or Stock Equivalents (other
than Disqualified Equity Interests) of the Parent Borrower (
provided
such
capital contributions are not included in the Cure Amount and have not been applied
to increase the Applicable Amount pursuant to
clause (ii)
of the
definition thereof),
-12-
(x) the amount of net cost savings projected by the Parent Borrower in good
faith to be realized as a result of specified actions (i) taken by the Parent
Borrower and its Restricted Subsidiaries prior to such date of determination or (ii)
expected to be taken on or prior to the third anniversary of the Closing Date (in
each case, calculated on a Pro Forma Basis as though such cost savings had been
realized on the first day of such period), net of the amount of actual benefits
realized during such period from such actions,
provided
that (A) such cost
savings are reasonably identifiable and factually supportable, (B) in the case of
subclause (ii)
above, such actions are taken on or prior to the third
anniversary of the Closing Date, (C) no cost savings shall be added pursuant to this
clause (x)
to the extent duplicative of any expenses or charges relating to
such cost savings that are included in
clause (vi)
above with respect to
such period and (D) the aggregate amount of cost savings added pursuant to this
clause (x)
shall not exceed $200,000,000 for any period consisting of four
consecutive quarters,
(xi) to the extent covered by insurance and actually reimbursed, or, so long as
the Parent Borrower has made a determination that there exists reasonable evidence
that such amount will in fact be reimbursed by the insurer and only to the extent
that such amount is (A) not denied by the applicable carrier in writing within 180
days and (B) in fact reimbursed within 365 days of the date of such evidence (with a
deduction for any amount so added back to the extent not so reimbursed within such
365 days), expenses with respect to liability or casualty events or business
interruption, and
(xii) the amount of losses on Dispositions of receivables and related assets in
connection with any Permitted Receivables Financing,
less
(b) without duplication and to the extent included in arriving at such Consolidated Net
Income, the sum of the following amounts for such period:
(i) extraordinary gains and unusual or non-recurring gains,
(ii) non-cash gains (excluding any non-cash gain to the extent it represents
the reversal of an accrual or reserve for a potential cash item that reduced
Consolidated Net Income or Consolidated EBITDA in any prior period),
(iii) gains on asset sales (other than asset sales in the ordinary course of
business), and
(iv) any net after-tax income from the early extinguishment of Indebtedness or
hedging obligations or other derivative instruments,
in each case, as determined on a consolidated basis for the Parent Borrower and the Restricted
Subsidiaries in accordance with GAAP;
provided
that
-13-
(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
Subsidiary for such period
(including the portion thereof occurring prior to such sale, transfer or disposition or
conversion).
Notwithstanding anything to the contrary contained herein and subject to adjustment as provided in
clauses (iii)
and
(iv)
of the immediately preceding proviso with respect to
acquisitions and dispositions occurring following the Closing Date, Consolidated EBITDA shall be
deemed to be $1,233,000,000, $1,112,000,000 and $974,000,000, respectively, for the fiscal quarters
ended March 31, 2006, June 30, 2006, and September 30, 2006.
-14-
Consolidated EBITDA to Consolidated Interest Expense Ratio
shall mean, as of any date of
determination, the ratio of (a) Consolidated EBITDA for the relevant Test Period to (b)
Consolidated Interest Expense for such Test Period.
Consolidated First Lien Debt
shall mean Consolidated Total Debt secured by a Lien on any
assets of the Parent Borrower or any of its Restricted Subsidiaries (other than (i) a Lien ranking
junior to the Lien securing the Obligations on a basis at least as substantially favorable to the
Lenders as the basis on which the Lien securing the Junior Lien Notes ranks junior to the Lien
securing the Obligations and (ii) Liens on assets not constituting Collateral permitted pursuant to
Section 10.2
).
Consolidated First Lien Debt to Consolidated EBITDA Ratio
shall mean, as of any date of
determination, the ratio of (a) Consolidated First Lien Debt as of such date to (b) Consolidated
EBITDA for the Test Period then last ended.
Consolidated Interest Expense
shall mean, for any period, the sum of (i) the cash interest
expense including that attributable to Capital Leases in accordance with GAAP (
provided
that any payment of cash interest pursuant to
Section 10.6(e)
on the required date of
determination of Consolidated Interest Expense for any purpose under this Agreement shall be added
to Consolidated Interest Expense for the period for which such determination is being made), net of
cash interest income (other than interest income of HCI), of the Parent Borrower and the Restricted
Subsidiaries and, solely for purposes of calculating the Consolidated EBITDA to Consolidated
Interest Expense Ratio in
Section 10.6(e)
, Holdings, on a consolidated basis in accordance
with GAAP with respect to all outstanding Indebtedness of the Parent Borrower and the Restricted
Subsidiaries and, solely for purposes of calculating the Consolidated EBITDA to Consolidated
Interest Expense Ratio in
Section 10.6(e)
, Holdings, including all commissions, discounts
and other fees and charges owed with respect to letters of credit and bankers acceptance financing
and net costs under Hedge Agreements (other than currency swap agreements, currency future or
option contracts and other similar agreements) and (ii) any cash payments made during such period
in respect of obligations referred to in
clause (b)
below relating to Funded Debt that were
amortized or accrued in a previous period (other than any such obligations resulting from the
discounting of Indebtedness in connection with the application of purchase accounting in connection
with the Transaction or any Permitted Acquisition), but excluding, however, (a) amortization of
deferred financing costs and any other amounts of non-cash interest, (b) the accretion or accrual
of discounted liabilities during such period, and (c) all non-recurring cash interest expense
consisting of liquidated damages for failure to timely comply with registration rights obligations
and financing fees, all as calculated on a consolidated basis in accordance with GAAP and
excluding, for the avoidance of doubt, any interest in respect of items excluded from Indebtedness
in the proviso to the definition thereof,
provided
that (a) except as provided in
clause (b)
below, there shall be excluded from Consolidated Interest Expense for any period
the cash interest expense (or cash interest income) of all Unrestricted Subsidiaries for such
period to the extent otherwise included in Consolidated Interest Expense, (b) there shall be
included in determining Consolidated Interest Expense for any period the cash interest expense (or
income) of any Acquired Entity or Business acquired during such period 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
-15-
conversion)
assuming any Indebtedness incurred or repaid 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, based on the cash interest expense (or
income) relating to any Indebtedness relieved, retired or repaid in connection with any such
disposition of such Sold Entity or Business for such period (including the portion thereof
occurring prior to such disposal) assuming such debt relieved, retired or repaid in connection with
such disposition had been relieved, retired or repaid on the first day of such period.
Notwithstanding anything to the contrary contained herein, Consolidated Interest Expense shall
be deemed to be $175,000,000, $183,000,000 and $192,000,000, respectively, for the fiscal quarters
ended March 31, 2006, June 30, 2006 and September 30, 2006.
Consolidated Net Income
shall mean, for any period, the net income (loss) of the Parent
Borrower and the Restricted Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP, excluding, without duplication,
(a) extraordinary items for such period,
(b) the cumulative effect of a change in accounting principles during such period to
the extent included in Consolidated Net Income,
(c) in the case of any period that includes a period ending prior to or during the
fiscal quarter ending September 30, 2007, Transaction Expenses,
(d) any fees and expenses incurred during such period, or any amortization thereof for
such period, in connection with any acquisition, investment, recapitalization, asset
disposition, issuance or repayment of debt, issuance of equity securities, refinancing
transaction or amendment or other modification of any debt instrument (in each case,
including any such transaction consummated prior to the Closing Date and any such
transaction undertaken but not completed) and any charges or non-recurring merger costs
incurred during such period as a result of any such transaction,
(e) any income (loss) for such period attributable to the early extinguishment of
Indebtedness or to hedging obligations or other derivative instruments,
(f) accruals and reserves required to be established or adjusted as a result of the
Transactions in accordance with GAAP or changes as a result of adoption of or modification
of accounting policies, in each case, within twelve months after the Closing Date; and
(g) the income (loss) for such period of any Unrestricted Subsidiary, except to the
extent distributed to the Parent Borrower or any Restricted Subsidiary.
There shall be excluded from Consolidated Net Income for any period the purchase accounting effects
of adjustments to inventory, property, equipment and intangible assets and deferred revenue in
component amounts required or permitted by GAAP and related authoritative pronounce-
-16-
ments (including
the effects of such adjustments pushed down to the Parent Borrower and the Restricted
Subsidiaries), as a result of the Transactions, any consummated acquisition whether consummated
before or after the 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.
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 date hereof, (b) who, as of the date of determination,
has been a member of such board of directors for at least the twelve preceding months, (c) who has
been nominated to be a member of such board of directors, directly or indirectly, by a Sponsor or
Persons nominated by a Sponsor or (d) who has been nominated to be a member of such board of
directors by a majority of the other Continuing Directors then in office.
Contractual Requirement
shall have the meaning provided in
Section 8.3
.
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.
-17-
Co-Syndication Agents
shall mean JPMorgan Chase Bank, N.A. and Citicorp North America, Inc.,
together with their respective affiliates, as co-syndication agents for the Lenders under this
Agreement and the other Credit Documents.
Covenant Compliance Event
shall mean Excess Facility Availability at any time is less than
or equal to 10% of the Borrowing Base. For purposes hereof, the occurrence of a Covenant
Compliance Event shall be deemed continuing until Excess Facility Availability has exceeded 10% of
the Borrowing Base for thirty (30) consecutive days, in which case a Covenant Compliance Event
shall no longer be deemed to be continuing for purposes of this Agreement.
Credit Card Notifications
shall have the meaning provided in
Section 9.15(e)
.
Credit Documents
shall mean this Agreement, the Security Documents, each Letter of Credit
and any promissory notes issued by a Borrower hereunder.
Credit Event
shall mean and include the making (but not the conversion or continuation) of a
Loan and the issuance of a Letter of Credit.
Credit Facilities
shall mean, collectively, each category of Commitments and each extension
of credit hereunder.
Credit Party
shall mean the Parent Borrower and each of the Subsidiary Borrowers.
Cumulative Consolidated Net Income
shall mean, for any period, Consolidated Net Income for
such period, taken as a single accounting period. Cumulative Consolidated Net Income may be a
positive or negative amount.
Cure Amount
shall have the meaning provided in
Section 12
.
Cure Right
shall have the meaning provided in
Section 12
.
Debt Repayment
shall mean the repayment, prepayment, repurchase or defeasance of the
Indebtedness of the Parent Borrower under the 1993 Indenture that is identified on
Schedule
1.1(g)
and that is repaid, prepaid, repurchased or defeased on the 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.
Delayed Equity Arrangements
shall have the meaning provided in
Section 8.17
.
-18-
Delayed Equity Amount
means an amount, in Dollars, equal to the lesser of (x) $100,000,000
and (y) the amount by which the Equity Investment actually made on the Closing Date would have to
have been increased (assuming (I) a corresponding decrease in the amount of consolidated
Indebtedness of the Parent Borrower and its Subsidiaries outstanding on the Closing Date and (II)
that such consolidated Indebtedness had been further reduced by the Option Note Amount) in order
for the sum of (i) the Equity Investment actually made on the Closing Date and (ii) the Option Note
Amount to have constituted 15% of the aggregate pro forma capitalization of the Parent Borrower on
the Closing Date. For the avoidance of doubt, no amount deemed received by the Parent Borrower in
respect of the Option Note Amount for purposes of the first sentence of
Section 10.7(d)
shall also be deemed received by the Parent Borrower in respect of the Delayed Equity Amount for
purposes of such sentence.
Designated Non-Borrower Subsidiary
shall mean any Restricted Subsidiary of the Parent
Borrower that is designated as a Designated Non-Borrower Subsidiary by the Parent Borrower in a
written notice to the Administrative Agent,
provided
that (a) each of (i) an amount equal
to the Parent Borrowers direct or indirect equity ownership percentage of the net worth of such
Restricted Subsidiary immediately prior to such designation (such net worth to be calculated
without regard to any guarantee provided by such designated Restricted Subsidiary) and (ii) without
duplication of any amount included in the preceding
clause (i)
, the aggregate principal
amount of any Indebtedness owed by such designated Restricted Subsidiary to the Parent Borrower or
any other Credit Party immediately prior to such designation, shall be deemed to be an Investment
by the Parent Borrower, on the date of such designation, in a Restricted Subsidiary that is not a
Credit Party, all calculated, except as set forth in the parenthetical to
clause (i)
above,
on a consolidated basis in accordance with GAAP and (b) no Default or Event of Default would result
from such designation after giving effect thereto. The Parent Borrower may, by written notice to
the Administrative Agent, re-designate any Designated Non-Borrower Subsidiary as a Borrower, and
thereafter, such Subsidiary shall no longer constitute a Designated Non-Borrower Subsidiary, but
only if (x) no Default or Event of Default would result from such re-designation and (y) such
Subsidiary becomes a party to this Agreement by executing a joinder
hereto and to the applicable Security Documents in order to become a Borrower and pledgor, as
applicable, thereunder.
Designated Non-Cash Consideration
shall mean the fair market value of non-cash consideration
received by the Parent Borrower or a Restricted Subsidiary in connection with a Disposition
pursuant to
Section 10.4(b)
or
Section 10.4(c)
that is designated as Designated
Non-Cash Consideration pursuant to a certificate of an Authorized Officer of the Parent 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 any Sold Entity or Business or any Converted
Unrestricted Subsidiary for any period, the amount for such period of Consolidated EBITDA of such
Sold Entity or Business or Converted Unrestricted Subsidiary (determined as if references to the
Parent Borrower and the Restricted Subsidiaries in the definition of Consolidated EBITDA were
references to such Sold Entity or Business or Converted Unre-
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stricted 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.
Dividends
or
dividends
shall have the meaning provided in
Section 10.6
.
Documentation Agent
shall mean Merrill Lynch Capital Corporation.
Dollars
and
$
shall mean dollars in lawful currency of the United States of America.
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.
Domestic Subsidiary
shall mean each Subsidiary of the Parent Borrower that is organized
under the laws of the United States, any state or territory thereof, or the District of Columbia.
Drawing
shall have the meaning provided in
Section 3.4(b)
.
Eligible Accounts
shall mean, at any date of determination thereof, the aggregate amount of
all Accounts at such date due to a Borrower except to the extent that (determined without
duplication):
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(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;
(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;
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(k) upon the occurrence of any of the following with respect to such Account:
(i) the Account is not paid within 180 days following the original invoice date
(it being understood that with respect to Medicaid Accounts that were formerly
Potential Medicaid Accounts, the 180-day period begins on the date of the first
invoice sent to Medicaid);
(ii) the Account Debtor obligated upon such Account suspends business, makes a
general assignment for the benefit of creditors or fails to pay its debts generally
as they come due;
(iii) any Account Debtor obligated upon such Account is a debtor or a debtor in
possession under any bankruptcy law or any other federal, state or foreign
(including any provincial) receivership, insolvency relief or other law or laws for
the relief of debtors;
provided
that Potential Medicaid Accounts shall not
be excluded from Eligible Accounts solely as a result of this
clause
(k)(iii)
;
(l) such Account is the obligation of an Account Debtor from whom 50% or more of the
dollar amount of all Accounts owing by that Account Debtor are ineligible under the criteria
set forth in this definition;
(m) such Account in one as to which the Collateral Agents Lien thereon, on behalf of
itself and the Lenders, is not a first priority perfected Lien, subject to Permitted Liens;
(n) any of the representations or warranties in the Credit Documents with respect to
such Account are untrue in any material respect with respect to such Account (or, with
respect to representations or warranties that are qualified by materiality, any of such
representations and warranties are untrue);
(o) such Account is evidenced by a judgment, Instrument or Chattel Paper (each such
term as defined in the UCC) (other than Instruments or Chattel Paper that are held by any
Borrower or that have been delivered to the Collateral Agent);
(p) except with respect to Government Accounts that are otherwise Eligible Accounts,
such Account, together with all other Accounts owing by such Account Debtor and its
Affiliates as of any date of determination, exceeds 20% of all Eligible Accounts (but only
the extent of such excess);
(q) such Account is payable in any currency other than Dollars;
(r) such Account is otherwise unacceptable to the Administrative Agent in its Permitted
Discretion;
(s) such Account has been redated, extended, compromised, settled or otherwise modified
or discounted, except (i) discounts or modifications that are granted by a Borrower in the
ordinary course of business and that are reflected in the calculation of the
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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:
(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))
;
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(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.
Environmental Law
shall mean any applicable Federal, state, foreign or local statute, law,
rule, regulation, ordinance, code and rule of common law now or hereafter in effect and in each
case as amended, and any binding judicial or administrative interpretation thereof, including any
binding judicial or administrative order, consent decree or judgment, relating to the protection of
environment, including, without limitation, ambient air, surface water, groundwater, land surface
and subsurface strata and natural resources such as wetlands, or human health or safety (to the
extent relating to human exposure to Hazardous Materials), or Hazardous Materials.
-24-
Epic Properties
shall mean Epic Properties, Inc., a Texas corporation.
Equity Investments
shall have the meaning provided in the preamble to this Agreement.
ERISA
shall mean the Employee Retirement Income Security Act of 1974, as amended from time
to time. Section references to ERISA are to ERISA as in effect at the date of this Agreement and
any subsequent provisions of ERISA amendatory thereof, supplemental thereto or substituted
therefor.
ERISA Affiliate
shall mean each person (as defined in Section 3(9) of ERISA) that together
with the Parent Borrower would be deemed to be a single employer within the meaning of Section
414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the
Code, is treated as a single employer under Section 414 of the Code.
Event of Default
shall have the meaning provided in
Section 11
.
Excess Amount
shall have the meaning provided in
Section 2.14
.
Excess Facility Availability
shall mean, as of any date of determination thereof by the
Administrative Agent, (x) the lesser of (1) the Borrowing Base and (2) the aggregate Revolving
Credit Commitment,
minus
(y) the aggregate Revolving Credit Exposure.
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 Credit 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 future Domestic Subsidiary, in each case, for so long as any such
Subsidiary does not (on a consolidated basis with its Restricted Subsidiaries) have property, plant
and equipment with a book value in excess of $5,000,000 or a contribution to Consolidated EBITDA
for any four fiscal quarter period that includes any date on or after the Closing Date in excess of
$5,000,000 (provided that no Domestic Subsidiary listed on
Schedule 1.1(d)
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
-25-
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) and (b) in
the case of a Non-U.S. Lender, (i) any U.S. federal withholding tax that is imposed on amounts
payable to such Non-U.S. Lender under
the law in effect at the time such Non-U.S. Lender becomes a party to this Agreement (or, in
the case of a Non-U.S. Participant, on the date such Non-U.S. Participant became a Participant
hereunder);
provided
that this
subclause (b)(i)
shall not apply to the extent that
(x) the indemnity payments or additional amounts any Lender (or Participant) would be entitled to
receive (without regard to this
subclause (b)(i)
) do not exceed the indemnity payment or
additional amounts that the person making the assignment, participation or transfer to such Lender
(or Participant) would have been entitled to receive in the absence of such assignment,
participation or transfer or (y) any Tax is imposed on a Lender in connection with an interest or
participation in any Loan or other obligation that such Lender was required to acquire pursuant to
Section 14.8(a)
or that such Lender acquired pursuant to
Section 14.7
(it being
understood and agreed, for the avoidance of doubt, that any withholding tax imposed on a Non-U.S.
Lender as a result of a Change in Law occurring after the time such Non-U.S. Lender became a party
to this Agreement (or designates a new lending office) shall not be an Excluded Tax) or (ii) any
Tax to the extent attributable to such Non-U.S. Lenders failure to comply with
Section
5.4(d)
.
-26-
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.
Federal Funds Effective Rate
shall mean, for any day, the weighted average of the
per annum
rates on overnight federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers on such day, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York;
provided
that (a) if such day is not a Business Day, the
Federal Funds Effective Rate for such day shall be such rate on such transactions on the next
preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate
is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day
shall be the average rate charged to the Administrative Agent on such day on such transactions as
determined by the Administrative Agent.
Fees
shall mean all amounts payable pursuant to, or referred to in,
Section 4.1
.
Final Maturity Date
shall mean November 16, 2012, or, if such date is not a Business Day,
the next preceding Business Day.
Financial Officer
shall mean the Chief Financial Officer, the Vice President-Finance, the
Treasurer, Assistant Treasurer, the officer in charge of cash management or any other senior
financial officer of the Parent Borrower.
Foreign Currencies
shall mean any currency other than Dollars.
Foreign Subsidiary
shall mean each Subsidiary of the Parent Borrower that is not a Domestic
Subsidiary.
Frist Shareholders
shall mean (i) Thomas F. Frist, Jr. and any executor, administrator,
guardian, conservator or similar legal representative thereof, (ii) any member of the immediate
family of Thomas F. Frist, Jr., (iii) any person directly or indirectly controlled by one or more
of the immediate family members of Thomas F. Frist, Jr., (iv) any Person acting as agent for any
Person described in
clauses (i)
through
(iii)
hereof and (v) the HCA Foundation so
long
as a majority of the members of its board of directors consist of (a) Frist Shareholders, (b)
Continuing Directors, (c) Management Investors and/or (d) any other member of management of the
Parent Borrower (
provided
in the case of this
subclause (v)(d)
that no Change of
Control under
clause (a)
of the definition thereof (with any reference in such clause (a)
to the Frist Shareholders determined without regard to this
subclause (v)(d)
) shall have
occurred on the date such person became a member of management of the Parent Borrower).
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,
-27-
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.
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 date
hereof any change in GAAP that affects in any respect the calculation of any covenant contained in
Section 10
, the Lenders and the Parent Borrower shall negotiate in good faith amendments to
the provisions of this Agreement that relate to the calculation of such covenant with the intent of
having the respective positions of the Lenders and the Parent Borrower after such change in GAAP
conform as nearly as possible to their respective positions as of the date of this Agreement and,
until any such amendments have been agreed upon, the covenants in
Section 10
shall be
calculated as if no such change in GAAP has occurred.
Government Accounts
shall mean, collectively, any and all Accounts which are (a) Medicare
Accounts, (b) Medicaid Accounts, (c) TRICARE Accounts, (d) CHAMPVA Accounts or (e) any other
Account payable by a Governmental Authority acceptable to the Administrative Agent in its Permitted
Discretion.
Government Receivables Bank
shall have the meaning provided in
Section 9.15(a)
.
Government Receivables Deposit Account
shall have the meaning provided in
Section
9.15(a)
.
Government Receivables Deposit Account Agreement
shall have the meaning ascribed to it in
Section 9.15(a)
.
Governmental Authority
shall mean any nation, sovereign or government, any state, province,
territory or other political subdivision thereof, and any entity or authority 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
-28-
(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 other
chemical, material or substance, which is prohibited, limited or regulated by any Environmental
Law.
HCA
shall have the meaning provided in the preamble to this Agreement.
HCI
shall mean Health Care Indemnity, Inc., an insurance company formed under the laws of
the State of Colorado.
Healthtrust
shall mean Healthtrust, Inc. The Hospital Company, a Delaware corporation, and
its successors and assigns.
Hedge Agreements
shall mean interest rate swap, cap or collar agreements, interest rate
future or option contracts, currency swap agreements, currency future or option contracts,
commodity price protection agreements or other commodity price hedging agreements, and other
similar agreements entered into by the Parent Borrower or any Restricted Subsidiary in
the ordinary course of business (and not for speculative purposes) for the principal purpose
of 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.
HIPAA
shall have the meaning provided in
Section 9.2
.
Historical Financial Statements
shall mean the audited consolidated balance sheets of the
Parent Borrower as of December 31, 2004 and December 31, 2005 and the audited consolidated
statements of income, stockholders equity and cash flows of the Parent Borrower for each of the
fiscal years in the three year period ending on December 31, 2005.
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Holdings
shall mean Hercules Holdings II, LLC, a Delaware limited liability company, and its
successors.
Increased Amount Date
shall have the meaning provided in
Section 2.14
.
Indebtedness
of any Person shall mean (a) all indebtedness of such Person for borrowed
money, (b) the deferred purchase price of assets or services that in accordance with GAAP would be
included as a liability on the balance sheet of such Person, (c) the face amount of all letters of
credit issued for the account of such Person and, without duplication, all drafts drawn thereunder,
(d) all Indebtedness of any other Person secured by any Lien on any property owned by such Person,
whether or not such Indebtedness has been assumed by such Person, (e) the principal component of
all Capitalized Lease Obligations of such Person, (f) all obligations of such Person under interest
rate swap, cap or collar agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts, commodity price protection agreements or other
commodity price hedging agreements and other similar agreements, (g) all obligations of such Person
in respect of Disqualified Equity Interests and (h) without duplication, all Guarantee Obligations
of such Person,
provided
that Indebtedness shall not include (i) trade payables and accrued
expenses arising in the ordinary course of business, (ii) deferred or prepaid revenue, (iii)
purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy
warranty or other unperformed obligations of the respective seller and (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.
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 Closing Date, among the Collateral Agent, the CF Collateral Agent and the Trustee under
the Junior Lien Notes Indenture, as the same may be amended, restated, modified or waived from time
to time.
Interest Gross-Up Date
shall have the meaning provided in
Section 2.8(d)
.
Interest Payment
shall have the meaning provided in
Section 2.8(d)
.
Interest Period
shall mean, with respect to any 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
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rollover or extension of terms) arising in the ordinary course of business; or (c) the entering
into of any guarantee of, or other contingent obligation with respect to, Indebtedness; or (d) the
purchase or other acquisition (in one transaction or a series of transactions) of all or
substantially all of the property and assets or business of another Person or assets constituting a
business unit, line of business or division of such Person;
provided
that, in the event
that any Investment is made by the Parent Borrower or any Restricted Subsidiary in any Person
through substantially concurrent interim transfers of any amount through one or more other
Restricted Subsidiaries, then such other substantially concurrent interim transfers shall be
disregarded for purposes of
Section 10.5
.
Investors
shall mean the Sponsors, the Management Investors, the Frist Shareholders and each
other investor providing a portion of the Equity Investments on the Closing Date.
ISP
shall mean, with respect to any Letter of Credit, the International Standby Practices
1998 published by the Institute of International Banking Law & Practice (or such later version
thereof as may be in effect at the time of issuance).
Issuer Documents
shall mean with respect to any Letter of Credit, the Letter of Credit
Request, and any other document, agreement and instrument entered into by the Letter of Credit
Issuer and the Parent Borrower (or any Restricted Subsidiary) or in favor of the Letter of Credit
Issuer and relating to such Letter of Credit.
Joinder Agreement
shall mean an agreement substantially in the form of
Exhibit L
.
Joint Bookrunners
shall mean Deutsche Bank Securities Inc. and Wachovia Capital Markets,
LLC.
Joint Lead Arrangers and Bookrunners
shall mean Banc of America Securities LLC, J.P. Morgan
Securities Inc., Citigroup Global Markets Inc. and Merrill Lynch, Pierce, Fenner & Smith
Incorporated.
Junior Indebtedness
shall have the meaning provided in
Section 10.7(a)
.
Junior Lien Notes
shall have the meaning set forth in the preamble.
Junior Lien Notes Collateral
shall mean the U.S. Collateral (as defined in the CF Agreement)
(other than any Principal Properties except to the extent that the 1993 Indenture has ceased to be
in effect as a result of a satisfaction and discharge thereof or defeasance thereof in accordance
with its terms at any time prior to the repayment in full of the Obligations (as defined in the CF
Agreement)).
Junior Lien Notes Indenture
shall mean the Indenture dated as of the Closing Date, among the
Parent Borrower, the guarantors party thereto and The Bank of New York, as trustee, pursuant to
which the Junior Lien Notes are issued, as the same may be amended, supplemented or otherwise
modified from time to time in accordance therewith.
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Junior Lien Notes Offering
shall have the meaning provided in the recitals hereto.
JV Distribution Amount
means, at any time, the aggregate amount of cash distributed to the
Parent Borrower or any Restricted Subsidiary by any joint venture that is not a Subsidiary
(regardless of the form of legal entity) since the Closing Date and prior to such time (without
duplication of any amount treated as a reduction in the outstanding amount of Investments by the
Parent Borrower or any Restricted Subsidiary pursuant to
clause (d)
,
(i)
or
(v)
of
Section 10.5)
and only to the extent that neither the Parent Borrower nor
any Restricted Subsidiary is under any obligation to repay such amount to such joint venture.
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 Fee Gross-Up Date
shall have the meaning provided in
Section 4.1(b)
.
L/C Fee Payment
shall have the meaning provided in
Section 4.1(b)
.
L/C Maturity Date
shall mean the date that is five Business Days prior to the Final Maturity
Date.
L/C Obligations
shall mean, as at any date of determination, the aggregate amount available
to be drawn under all outstanding Letters of Credit
plus
the aggregate of all Unpaid
Drawings, including all L/C Borrowings. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be outstanding in the amount so remaining available to be drawn.
L/C Participant
shall have the meaning provided in
Section 3.3(a)
.
L/C Participation
shall have the meaning provided in
Section 3.3(a)
.
Lender
shall have the meaning provided in the preamble to this Agreement.
Lender Default
shall mean (a) the failure (which has not been cured) of a Lender to make
available its portion of any Borrowing, to fund its portion of any unreimbursed payment under
Section 3.3
or to fund its participation in a Protective Advance or (b) a Lender having
notified the Administrative Agent and/or the Parent Borrower that it does not intend to comply with
the obligations under
Section 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
.
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Letter of Credit Commitment
shall mean $200,000,000, as the same may be reduced from time to
time pursuant to
Section 3.1
.
Letter of Credit Exposure
shall mean, with respect to any Lender, at any time, the sum of
(a) the principal amount of any Unpaid Drawings in respect of which such Lender has made (or is
required to have made) payments to the Letter of Credit Issuer pursuant to
Section 3.4(a)
at such time and (b) such Lenders 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.
Letter of Credit Request
shall have the meaning provided in
Section 3.2
.
Level I Status
shall mean, on any date, the circumstance that the Consolidated Total Debt to
Consolidated EBITDA Ratio is greater than or equal to 6.00 to 1.00 as of such date.
Level II Status
shall mean, on any date, the circumstance that Level I Status does not exist
and the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than or equal to 4.50 to
1.00 as of such date.
Level III Status
shall mean, on any date, the circumstance that the Consolidated Total Debt
to Consolidated EBITDA Ratio is less than 4.50 to 1.00 as of such date.
LIBOR Loan
shall mean any 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 equiva-
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lent 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, New 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 Closing Date.
Mandatory Borrowing
shall have the meaning provided in
Section 2.1(d)
.
Material Adverse Change
shall mean any event, state of facts, circumstance, development,
change, effect or occurrence (an
Effect
) that is materially adverse to the business, financial
condition or results of operations of HCA and its Subsidiaries, taken as a whole, other than (i)
any Effect resulting from (A) changes in general economic or political conditions or the
securities, credit or financial markets in general, (B) general changes or developments in the
industries in which HCA and its Subsidiaries operate, including general changes in law or
regulation across such industries, (C) the announcement of the Acquisition Agreement or the
pendency or consummation of the Merger, including any labor union activities related thereto, (D)
the identity of Holdings or any of its Affiliates as the acquirer of HCA, (E) compliance with the
terms of, or the taking of any action required by, the Acquisition Agreement or consented to by
Holdings, (F) any acts of terrorism or war (other than any of the foregoing that causes any damage
or destruction to or renders unusable any facility or property of HCA or any of its Subsidiaries), (G) changes in generally accepted accounting principles or the interpretation
thereof, or (H) any weather-related event, except, in the case of the foregoing
clauses (A)
and
(B)
, to the extent such changes or developments referred to therein would reasonably be
expected to have a materially disproportionate impact on HCA and its Subsidiaries, taken as a
whole, relative to other for-profit participants in the industries and in the geographic markets in
which HCA conducts its businesses after taking into account the size of HCA relative to such other
for-profit participants, or (ii) any failure to meet internal or published projections, forecasts
or revenue or earning predictions for any period (
provided
that the underlying causes of
such failure shall be considered in determining whether there is a Material Adverse Change).
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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 have the meaning provided in the preamble to this Agreement.
Merger Sub
shall mean Hercules Acquisition Corporation, a Delaware corporation.
Minimum Borrowing Amount
shall mean (a) with respect to a Borrowing of LIBOR Loans,
$10,000,000 (or, if less, the entire remaining Commitments at the time of such Borrowing), (b) with
respect to a Borrowing of ABR Loans, $1,000,000 (or, if less, the entire remaining Commitments at
the time of such Borrowing), and (c) with respect to a Borrowing of Swingline Loans, $500,000 (or,
if less, the entire remaining Commitments at the time of such Borrowing).
Minimum Equity Amount
shall have the meaning provided in the preamble to this Agreement.
MLGP
shall mean Merrill Lynch Global Partners.
Monthly Borrowing Base Certificate
shall have the meaning provided in
Section
9.1(i)
.
Moodys
shall mean Moodys Investors Service, Inc. or any successor by merger or
consolidation to its business.
New Revolving Credit Commitments
shall have the meaning provided in
Section 2.14
.
New Revolving Loan Lender
shall have the meaning provided in
Section 2.14
.
New Revolving Loans
shall have the meaning provided in
Section 2.14
.
1993 Indenture
shall mean the Indenture dated as of December 16, 1993 between HCA and First
National Bank of Chicago, as Trustee, as may be amended, supplemented or modified from time to
time.
1993 Indenture Restricted Subsidiary
shall mean any Subsidiary that on the Closing Date
constitutes a Restricted Subsidiary under (and as defined in) the 1993 Indenture, as in effect on
the Closing Date.
Non-Cash Charges
shall mean (a) losses on asset sales, disposals or abandonments, (b) any
impairment charge or asset write-off related to intangible assets (including goodwill), long-lived
assets, and investments in debt and equity securities pursuant to GAAP, (c) all losses from
investments recorded using the equity method, (d) stock-based awards compensation expense,
including any such charges arising from stock options, restricted stock grants or other equity
incentive grants, and any cash compensation charges associated with the rollover or acceleration of
stock-based awards or payment of stock options in connection with the Transactions, and (e) other
non-cash charges (
provided
that if any non-cash charges referred to in this
clause
(e)
represent an accrual or reserve for potential cash items in any future period, the cash
payment
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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.
Notice of Borrowing
shall have the meaning provided in
Section 2.3(a)
.
Notice of Conversion or Continuation
shall have the meaning provided in
Section 2.6
.
Obligations
shall mean all advances to, and debts, liabilities, obligations, covenants and
duties of, any Credit Party arising under any Credit Document or otherwise with respect to any
Commitment, Loan or Letter of Credit or under any Secured Cash Management Agreement or Secured
Hedge Agreement, in each case, entered into with the Parent Borrower or any of its Domestic
Subsidiaries, whether direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and including interest and fees
that accrue after the commencement by or against any Credit Party or any Affiliate thereof of any
proceeding under any bankruptcy or insolvency law naming such Person
as the debtor in such proceeding, regardless of whether such interest and fees are allowed
claims in such proceeding.
Option Note
shall mean the promissory note, dated as of November 14, 2006, in a principal
amount equal to the Option Note Amount issued by The Community Foundation of Middle Tennessee in
favor of the Parent Borrower.
Option Note Amount
shall mean $63,160,680.
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Other Taxes
shall mean any and all present or future stamp, registration, documentary or any
other excise, property or similar 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
.
PBGC
shall mean the Pension Benefit Guaranty Corporation established pursuant to Section
4002 of ERISA, or any successor thereto.
Perfection Certificate
shall mean a certificate of each Borrower in the form of
Exhibit
D
or any other form approved by the Administrative Agent.
Permitted Acquisition
shall mean the acquisition, by merger or otherwise, by the Parent
Borrower or any of the Restricted Subsidiaries of assets or Stock or Stock Equivalents, so long as
(a) such acquisition and all transactions related thereto shall be consummated in accordance with
applicable law; (b) such acquisition shall result in the issuer of such Stock or Stock Equivalents
becoming a Restricted Subsidiary and a Subsidiary Borrower, to the extent required by
Section
9.11
; (c) after giving effect to such acquisition, no Default or Event of Default shall have
occurred and be continuing; (d) the aggregate fair market value (as determined in good faith by the
Parent Borrower) of all Investments funded or financed in any Persons that do not become Guarantors
(as defined in the CF Agreement as in effect on the date hereof) 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 10.9 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.
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), (a) the terms of which (i) do not provide for any scheduled
repayment, mandatory redemption or sinking fund obligation prior to the date on which the final
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maturity of the Junior Lien Notes occurs (as in effect on the Closing Date) (other than customary
offers to purchase upon a change of control, asset sale or event of loss and customary acceleration
rights after an event of default) and (ii) to the extent the same are senior subordinated notes,
provide for customary subordination to the Obligations under the Credit Documents, (b) the
covenants, events of default, guarantees, collateral and other terms of which (other than interest
rate and redemption premiums), taken as a whole, are not more restrictive to the Parent Borrower
and the Subsidiaries than those in the Junior Lien Notes;
provided
that a certificate of an
Authorized Officer of the Parent Borrower is delivered to the Administrative Agent at least five
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
prior to such incurrence 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
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(or, if at
any time neither S&P nor Moodys shall be rating such obligations, then from another
nationally recognized rating service);
(c) commercial paper issued by any Lender or any bank holding company owning any
Lender;
(d) commercial paper maturing no more than 12 months after the date of creation thereof
and, at the time of acquisition, having a rating of at least A-2 or P-2 from either S&P or
Moodys (or, if at any time neither S&P nor Moodys shall be rating such obligations, an
equivalent rating from another nationally recognized rating service);
(e) domestic and LIBOR certificates of deposit or bankers acceptances maturing no more
than two years after the date of acquisition thereof issued by any Lender or any other bank
having combined capital and surplus of not less than $250,000,000 in the case of domestic
banks and $100,000,000 (or the Dollar Equivalent thereof) in the case of foreign banks;
(f) repurchase agreements with a term of not more than 30 days for underlying
securities of the type described in
clauses (a)
,
(b)
and
(e)
above
entered into with any bank meeting the qualifications specified in
clause (e)
above
or securities dealers of recognized national standing;
(g) marketable short-term money market and similar funds (x) either having assets in
excess of $250,000,000 or (y) having a rating of at least A-2 or P-2 from either S&P or
Moodys (or, if at any time neither S&P nor Moodys shall be rating such obligations, an
equivalent rating from another nationally recognized rating service);
(h) shares of investment companies that are registered under the Investment Company Act
of 1940 and substantially all the investments of which are one or more of the types of
securities described in
clauses (a)
through
(g)
above;
(i) in the case of Investments by any Restricted Foreign Subsidiary, other customarily
utilized high-quality Investments in the country where such Restricted Foreign Subsidiary is
located or in which such Investment is made; and
(j) investments made by HCI that are permitted or required by any Requirement of Law or
otherwise consistent with past practice, including without limitation investments in
exchange-traded funds, common stocks and bonds.
Permitted Junior Lien Debt
shall mean the Junior Lien Notes and any other Indebtedness
secured by a Lien on the Junior Lien Notes Collateral permitted by
Section 10.2(c)
or
(r)
.
Permitted Liens
shall mean:
(a) Liens for taxes, assessments or governmental charges or claims not yet delinquent
or that are being contested in good faith and by appropriate proceedings for
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which
appropriate reserves have been established to the extent required by and in accordance with
GAAP;
(b) Liens in respect of property or assets of the Parent Borrower or any of the
Subsidiaries imposed by law, such as carriers, warehousemens and mechanics Liens and
other similar Liens arising in the ordinary course of business, in each case so long as such
Liens arise in the ordinary course of business and do not individually or in the aggregate
have a Material Adverse Effect;
(c) Liens arising from judgments or decrees in circumstances not constituting an Event
of Default under
Section 11.11
;
(d) Liens incurred or deposits made in connection with workers compensation,
unemployment insurance and other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts,
performance and return-of-money bonds and other similar obligations incurred in the ordinary
course of business;
(e) ground leases in respect of real property on which facilities owned or leased by
the Parent Borrower or any of its Subsidiaries are located;
(f) easements, rights-of-way, restrictions, minor defects or irregularities in title
and other similar charges or encumbrances not interfering in any material respect with the
business of the Parent Borrower and its Subsidiaries, taken as a whole;
(g) any interest or title of a lessor or secured by a lessors interest under any lease
permitted by this Agreement;
(h) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods;
(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.
PIK Interest Amount
shall mean the aggregate principal amount of all increases in
outstanding principal amount of Toggle Notes and issuances of PIK Notes (as defined in the Junior
Lien Notes Indenture) in connection with an election by the Parent Borrower to pay interest on the
Toggle Notes in kind.
Plan
shall mean any multiemployer or single-employer plan, as defined in Section 4001 of
ERISA and subject to Title IV of ERISA, that is or was within any of the preceding six plan years
maintained or contributed to by (or to which there is or was an obligation to contribute or to make
payments to) the Parent Borrower or an ERISA Affiliate.
Platform
shall have the meaning provided in
Section 14.17(b)
.
Post-Acquisition Period
shall mean, with respect to any Permitted Acquisition, the period
beginning on the date such Permitted Acquisition is consummated and ending on the last day of the
sixth full consecutive fiscal quarter immediately following the date on which such Permitted
Acquisition is consummated.
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Potential Medicaid Account
shall mean any Account for which the Account Debtor is a natural
person and for which the Borrowers in good faith and consistent with past practice, have submitted
an application to have such Accounts of such Account Debtor made eligible to become a valid
Medicaid Account. Once an identification number has been obtained for the patient or the
applicable State agency or other entity administering Medicaid in such State has provided
documentation confirming that such Account Debtor has qualified for Medicaid benefits, such
patients Accounts shall no longer be Potential Medicaid Accounts.
Prime Rate
shall mean the prime rate referred to in the definition of ABR.
Principal Properties
shall mean each acute care hospital providing general medical and
surgical services (excluding equipment, personal property and hospitals that primarily provide
specialty medical services, such as psychiatric and obstetrical and gynecological services) owned
solely by the Parent Borrower and/or one or more of its Subsidiaries (as defined in the 1993
Indenture as in effect on the 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)
.
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Pro Forma Basis
,
Pro Forma Compliance
and
Pro Forma Effect
shall mean, with respect to
compliance with any test or covenant hereunder, that (A) to the extent applicable and other than
for purposes of determining the Applicable Amount, the Applicable ABR Margin, the Applicable LIBOR
Margin and the Commitment Fee Rate, the Pro Forma Adjustment shall have been made and (B) all
Specified Transactions and the following transactions in connection therewith shall be deemed to
have occurred as of the first day of the applicable period of measurement in such test or covenant:
(a) income statement items (whether positive or negative) attributable to the property or Person
subject to such Specified Transaction, (i) in the case of a sale, transfer or other disposition of
all or substantially all Capital Stock in any Subsidiary of the Parent Borrower or any division,
product line, or facility used for operations of the Parent Borrower or any of its Subsidiaries,
shall be excluded, and (ii) in the case of a Permitted Acquisition or Investment described in the
definition of Specified Transaction, shall be included, (b) any retirement of Indebtedness, and
(c) any incurrence or assumption of Indebtedness by the Parent Borrower or any of the Restricted
Subsidiaries in connection therewith (it being agreed that if such Indebtedness has a floating or
formula rate, such Indebtedness shall have an implied rate of interest for the applicable period
for purposes of this definition determined by utilizing the rate that is or would be in effect with
respect to such Indebtedness as at the relevant date of determination);
provided
that,
without limiting the application of the Pro Forma Adjustment pursuant to (A) above (but without
duplication thereof), the foregoing pro forma adjustments may be applied to any such test or
covenant solely to the extent that such adjustments are consistent with the definition of
Consolidated EBITDA and give effect to events (including operating expense reductions) that are (i)
(x) directly attributable to such transaction, (y) expected to have a continuing impact on the
Parent Borrower and the Restricted Subsidiaries and (z) factually supportable or (ii) otherwise
consistent with the definition of Pro Forma Adjustment.
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 (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.
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 or-
-44-
dinary course of
business of Eligible Accounts, including, without limitation, on account of bad debts and dilution.
Register
shall have the meaning provided in
Section 14.6(b)(iv)
.
Regulation D
shall mean Regulation D of the Board as from time to time in effect and any
successor to all or a portion thereof establishing reserve requirements.
Regulation T
shall mean Regulation T of the Board as from time to time in effect and any
successor to all or a portion thereof establishing margin requirements.
Regulation U
shall mean Regulation U of the Board as from time to time in effect and any
successor to all or a portion thereof establishing margin requirements.
Regulation X
shall mean Regulation X of the Board as from time to time in effect and any
successor to all or a portion thereof establishing margin requirements.
Reimbursement Date
shall have the meaning provided in
Section 3.4(a)
.
Related Parties
shall mean, with respect to any specified Person, such Persons Affiliates
and the directors, officers, employees, agents, trustees, advisors of such Person and any Person
that possesses, directly or indirectly, the power to direct or cause the direction of the
management or policies of such Person, whether through the ability to exercise voting power, by
contract or otherwise.
Related Person
shall have the meaning provided in
Section 9.15(a)
.
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.
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Reserve Amount
shall mean:
(a) with respect to any Revolving Credit Loan or Swingline Loan, for any period, (i) if
Level I Status is in effect as of the beginning of such period, an amount equal to 0.50% per
annum on the average daily principal amount of such Loan over such period, (ii) if Level II
Status is in effect as of the beginning of such period, an amount equal to 0.25% per annum
on the average daily principal amount of such Loan over such period and (iii) if Level III
Status is in effect as of the beginning of such period, zero;
(b) with respect to any Letter of Credit Fee on any Letter of Credit for any period,
(i) if Level I Status is in effect as of the beginning of such period, an amount equal to
0.50%
per annum
on the average daily Stated Amount of such Letter of Credit during such
period, (ii) if Level II Status is in effect as of the beginning of such period, an amount
equal to 0.25% per annum on the average daily Stated Amount of such Letter of Credit during
such period and (iii) if Level III Status is in effect as of the beginning of such period,
zero;
(c) with respect to any Commitment Fee on any Available Commitment for any period, (i)
if Level I Status or Level II Status is in effect as of the beginning of such period, an
amount equal to 0.125%
per annum
on the average daily amount of such Available Commitment
over such period and (ii) if Level III Status is in effect at the beginning of such period,
zero;
provided
that notwithstanding the foregoing, during the fiscal quarter during which the
Final Maturity Date is scheduled to occur, the Reserve Amount for such Loan, Letter of Credit Fee
or Commitment Fee, as applicable, shall be zero.
For the avoidance of doubt, the
per annum
rate to be used in the determination of the Reserve
Amount for any interest, Letter of Credit Fee or Commitment Fee shall be determined in the same
manner as the underlying interest or fee in accordance with
Section 5.5
.
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 date hereof, the amount set forth opposite such Lenders name on
Schedule 1.1(c)
as
such Lenders Revolving Credit Commitment and (b) in the case of any Lender that becomes a Lender
after the date hereof, the amount specified as such Lenders Revolving Credit Commitment in the
Assignment and Acceptance pursuant to which such Lender assumed
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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
$2,000,000,000.
Revolving Credit Commitment Percentage
shall mean at any time, for each Lender, the
percentage obtained by dividing (a) such Lenders Revolving Credit Commitment at such time by (b)
the amount of the Total Revolving Credit 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 Credit Exposure at such time by (b) the Revolving Credit Exposure of all Lenders at such
time.
Revolving Credit Exposure
shall mean, with respect to any Lender at any time, the sum of (a)
the aggregate 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 Excess Facility Availability and solely to the extent
that the making of such Protective Advance would result in the occurrence of a Cash Dominion Event
or a Covenant Compliance Event.
Revolving Credit Lender
shall mean, at any time, any Lender that has a Revolving Credit
Commitment at such time.
Revolving Credit Loans
shall have the meaning provided in
Section 2.1(b)
.
Revolving Credit Termination Date
shall mean the date on which the Revolving Credit
Commitments shall have terminated, no Revolving Credit Loans shall be outstanding and the Letters
of Credit Outstanding shall have been reduced to zero or Cash Collateralized.
S&P
shall mean Standard & Poors Ratings Services or any successor by merger or
consolidation to its business.
Sale Leaseback
shall mean any transaction or series of related transactions pursuant to
which the Parent Borrower or any of the Restricted Subsidiaries (a) sells, transfers or otherwise
disposes of any property, real or personal, whether now owned or hereafter acquired, and (b) as
part of such transaction, thereafter rents or leases such property or other property that it
intends to use for substantially the same purpose or purposes as the property being sold,
transferred or disposed.
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)
.
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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 entered into by the Borrowers, any
other grantors party thereto and the Collateral Agent for the benefit of the Secured Parties,
substantially in the form of
Exhibit F
, 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.
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
un-
-48-
der 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, New Revolving Credit Commitment or other event that by the terms of this Agreement
requires Pro Forma Compliance with a test or covenant hereunder or requires such test or covenant
to be calculated on a Pro Forma Basis.
Sponsor
shall mean any of KKR, Bain and MLGP and their respective Affiliates but excluding
portfolio companies of any of the foregoing.
Spot Rate
for a currency shall mean the rate determined by the Administrative Agent to be
the rate quoted by the Administrative Agent as the spot rate for the purchase by the Administrative
Agent of such currency with another currency through its principal foreign exchange trading office
at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign
exchange computation is made;
provided
that the Administrative Agent may obtain such spot
rate from another financial institution designated by the Administrative Agent if it does not have
as of the date of determination a spot buying rate for any such currency.
Stated Amount
of any Letter of Credit shall mean the 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.
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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 following each date that (a) Section 9.1 Financials are delivered to
the Lenders under
Section 9.1
and (b) an officers certificate is delivered by the Parent
Borrower to the Lenders setting forth, with respect to such Section 9.1 Financials, the
then-applicable Status, and shall remain in effect until the next change to be effected pursuant to
this definition,
provided
that each determination of the Consolidated Total Debt to
Consolidated EBITDA Ratio pursuant to this definition shall be made as of the end of the Test
Period ending at the end of the fiscal period covered by the relevant Section 9.1 Financials.
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.
Subsidiary Borrowers
shall mean (a) each Domestic Subsidiary that is a party hereto as of
the Closing Date and (b) each Domestic Subsidiary that becomes a party to this Agreement 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
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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 $100,000,000.
Swingline Lender
shall mean Bank of America, in its capacity as lender of Swingline Loans
hereunder.
Swingline Loans
shall have the meaning provided in
Section 2.1(c)
.
Swingline Maturity Date
shall mean, with respect to any Swingline Loan, the date that is
five Business Days prior to the Final Maturity Date.
Syndications
shall have the meaning provided in the definition of Disqualified Equity
Interests.
Taxes
shall mean any and all present or future taxes, duties, levies, imposts, assessments,
deductions, withholdings or other similar charges imposed by any Governmental Authority whether
computed on a separate, consolidated, unitary, combined or other basis and any interest, fines,
penalties or additions to tax with respect to the foregoing.
Test Period
shall mean, for any determination under this Agreement, the four consecutive
fiscal quarters of the Parent Borrower then last ended.
Third Party Payor
shall mean any governmental entity, insurance company, health maintenance
organization, professional provider organization or similar entity that is obligated to make
payments on any Account.
Toggle Notes
shall have the meaning set forth in the preamble hereto.
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Total Credit 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 Credit Exposure of all Lenders at such date).
Total Revolving Credit Commitment
shall mean the sum of the Revolving Credit Commitments of
all the Lenders.
Transaction Expenses
shall mean any fees or expenses incurred or paid by the Parent Borrower
or any of its Subsidiaries in connection with the Transactions, this Agreement and the other Credit
Documents and the transactions contemplated hereby and thereby.
Transactions
shall mean, collectively, the transactions contemplated by this Agreement, the
CF Agreement, the Junior Lien Notes Indenture, the Debt Repayment, the Merger and the Equity
Investments and the intercompany transfers of the proceeds of the CF Facilities, Junior Lien Notes
and Loans to be made on the Closing Date.
Transferee
shall have the meaning provided in
Section 14.6(e)
.
TRICARE
shall mean, collectively, a program of medical benefits covering former and active
members of the uniformed services and certain of their dependents, financed and administered by the
United States Departments of Defense, Health and Human Services and Transportation, which program
was formerly know as the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS),
and all laws, rules, regulations, manuals, orders and administrative, reimbursement and other
guidelines of all Governmental Authorities promulgated in connection with such program (whether or
not having the force of law), in each case as the same may be amended, supplemented or otherwise
modified from time to time.
TRICARE Account
shall mean an Account payable pursuant to TRICARE.
Trigger Date
shall mean the day following the date on which Section 9.1 Financials are
delivered to the Lenders for the fiscal year ending on December 31, 2006.
2014 Cash Pay Notes
shall have the meaning provided in the preamble to this Agreement.
2016 Cash Pay Notes
shall have the meaning provided in the preamble to this Agreement.
Type
shall mean as to any 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
.
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Unfunded Current Liability
of any Plan shall mean the amount, if any, by which the
Accumulated Benefit Obligation (as defined under Statement of Financial Accounting Standards No. 87
(
SFAS 87
)) under the Plan as of the close of its most recent plan year, determined in accordance
with SFAS 87 as in effect on the 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; and (b) references to any Requirement
of Law shall include all statutory and regulatory
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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.
1.7.
Reserve Amounts
. The provisions of
Section 2.8
and
Section 4.1
relating to the establishment of Reserve Amounts are intended to give the Borrowers, the Lenders
and the L/C Participants the practical benefits of any change in Status (whether resulting in an
increase or decrease in the fees payable hereunder from time to time) resulting from delivery of
Section 9.1 Financials with respect to the immediately preceding fiscal quarter within certain time
periods following the commencement of a fiscal quarter as though any such change of Status had
occurred on the first day of such fiscal quarter. The Administrative Agent and the Borrowers may
amend the provisions of
Section 2.8
and
Section 4.1
without the consent of any
Lender in any manner reasonably believed by the Administrative Agent and the Borrowers to be not
materially adverse the Lenders in order to better effectuate the provisions set forth therein for
achieving such benefits.
SECTION
2.
Amount and Terms of Credit
2.1.
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 and after the Closing Date and prior to the Final Maturity Date, (B) may, at the option
of the Parent Borrower on behalf of the Borrowers be incurred and maintained as, and/or converted
into, ABR Loans or LIBOR Loans,
provided
that all Revolving Credit Loans made by each of
the Lenders pursuant to the same Borrowing shall, unless otherwise specifically provided herein,
consist entirely of Revolving Credit Loans of the same Type, (C) may be repaid and reborrowed in
accordance with the provisions hereof, (D) shall not, for any Lender at any time, after giving
effect thereto and to the application of the proceeds thereof, result in such Lenders Revolving
Credit Exposure at such time exceeding such Lenders Revolving Credit Commitment at such time, (E)
shall not, after giving effect
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thereto and to the application of the proceeds thereof, result at
any time in the aggregate amount of the Lenders Revolving Credit Exposures at such time exceeding
the lesser of the Borrowing Base and the Total Revolving Credit Commitment, in each case as then in
effect (subject to
Section 2.1(e)
), and (F) shall not exceed $1,750,000,000 in the
aggregate on the Closing Date.
(ii) Each Lender may at its option make any LIBOR Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan,
provided
that (A) any exercise of
such option shall not affect the obligation of the Borrowers to repay such Loan and (B) in
exercising such option, such Lender shall use its reasonable efforts to minimize any increased
costs to the Borrowers resulting therefrom (which obligation of the Lender shall not require it to
take, or refrain from taking, actions that it determines would result in increased costs for which
it will not be compensated hereunder or that it determines would be otherwise disadvantageous to it
and in the event of such request for costs for which compensation is provided under this Agreement,
the provisions of
Section 2.10
shall apply). On the Final Maturity Date, all 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 Credit 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 Credit 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 Credit 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 Credit Lender hereby
irrevocably agrees to make such Revolving Credit Loans upon one Business Days notice pursuant to
each Mandatory Borrowing in the amount and in the manner specified in the preceding sentence and on
the date specified to it in writing by the Swingline Lender notwithstanding (i) that the amount of
the Mandatory Borrowing may not comply with the minimum amount for each Borrowing specified in
Section 2.2
, (ii) whether any
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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 Credit Lender hereby agrees that it
shall forthwith purchase from the Swingline Lender (without recourse or warranty) such
participation of the outstanding Swingline Loans as shall be necessary to cause the Lenders to
share in such Swingline Loans ratably based upon their respective Revolving Credit Commitment
Percentages,
provided
that all principal and interest payable on such Swingline Loans shall
be for the account of the Swingline Lender until the date the respective participation is purchased
and, to the extent attributable to the purchased participation, shall be payable to such Lender
purchasing same from and after such date of purchase.
(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 Credit 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 Credit 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 Credit 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
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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 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 (or prior to 9:00 a.m. (New York
City time) two Business Days prior written notice in the case of a Borrowing of Revolving Credit
Loans to be made on the Closing Date initially as LIBOR Loans) and (ii) prior to 10:00 a.m. (New
York City time) on the date of such Borrowing prior written notice (or telephonic notice promptly
confirmed in writing) of each Borrowing of Revolving Credit Loans that are ABR Loans. Each such
notice (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 Credit Lender written notice (or telephonic notice promptly confirmed in writing) of
each proposed Borrowing of Revolving Credit Loans, of such Lenders Revolving Credit Commitment
Percentage thereof and of the other matters covered by the related Notice of Borrowing.
(c) Whenever 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
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prior to 2:30 p.m. (New York
City time) on the date of such Borrowing. Each such notice shall specify (i) the aggregate
principal amount of the Swingline Loans to be made pursuant to such Borrowing and (ii) the date of
Borrowing (which shall be a Business Day). The Administrative Agent shall promptly give the
Swingline Lender written notice (or telephonic notice promptly confirmed in writing) of each
proposed Borrowing of Swingline Loans and of the other matters covered by the related Notice of
Borrowing.
(d) Mandatory Borrowings shall be made upon the notice specified in
Section 2.1(d)
,
with the Parent Borrower on behalf of the Borrowers irrevocably agreeing, by its incurrence of any
Swingline Loan, to the making of Mandatory Borrowings as set forth in such Section.
(e) Borrowings to reimburse Unpaid Drawings shall be made upon the notice specified in
Section 3.4(a)
.
(f) Without in any way limiting the obligation of any Borrower to confirm in writing any
notice it may give hereunder by telephone, the Administrative Agent may act prior to receipt of
written confirmation without liability upon the basis of such telephonic notice believed by the
Administrative Agent in good faith to be from an Authorized Officer of such Borrower.
2.4.
Disbursement of Funds
.
(a) No later than 2:00 p.m. (New York City time) on the date specified in each Notice of
Borrowing (including Mandatory Borrowings), each Lender will make available its
pro rata
portion,
if any, of each Borrowing requested to be made on such date in the manner provided below,
provided
that all Swingline Loans shall be made available in the full amount thereof by the
Swingline Lender no later than 3:00 p.m. (New York City time) on the date requested.
(b) Each Lender shall make available all amounts it is to fund to the Parent Borrower on
behalf of the Borrowers under any Borrowing for its applicable Commitments, and in immediately
available funds to the Administrative Agent at the Administrative Agents Office and the
Administrative Agent will (except in the case of Mandatory Borrowings and Borrowings to repay
Unpaid Drawings) make available to the Parent Borrower on behalf of the Borrowers, by depositing to
an account designated by the Parent Borrower on behalf of the Borrowers to the Administrative Agent
the aggregate of the amounts so made available. Unless the Administrative Agent shall have been
notified by any Lender prior to the date of any such Borrowing that such Lender does not intend to
make available to the Administrative Agent its portion of the Borrowing or Borrowings to be made on
such date, the Administrative Agent may assume that such Lender has made such amount available to
the Administrative Agent on such date of Borrowing, and the Administrative Agent, in reliance upon
such assumption, may (in its sole discretion and without any obligation to do so) make available to
the Parent Borrower on behalf of the Borrowers a corresponding amount. If such corresponding
amount is not in fact made available to the Administrative Agent by such Lender and the
Administrative Agent has 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
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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.
(c) Nothing in this
Section 2.4
shall be deemed to relieve any Lender from its
obligation to fulfill its commitments hereunder or to prejudice any rights that any Borrower may
have against any Lender as a result of any default by such Lender hereunder (it being understood,
however, that no Lender shall be responsible for the failure of any other Lender to fulfill its
commitments hereunder).
2.5.
Repayment of Loans; Evidence of Debt
.
(a) The Parent Borrower 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
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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 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.
(b) If any Default or Event of Default is in existence at the time of any proposed
continuation of any LIBOR Loans and the Administrative Agent has or the Required Lenders have
determined in its or their sole discretion not to permit such continuation, such LIBOR Loans shall
be automatically converted on the last day of the current Interest Period into ABR Loans. If upon
the expiration of any Interest Period in respect of LIBOR Loans, the Parent Borrower has failed to
elect a new Interest Period to be applicable thereto as provided in
clause (a)
above, the
Parent Borrower shall be deemed to have elected to continue such Borrowing of LIBOR Loans into a
Borrowing of ABR Loans, effective as of the expiration date of such current Interest Period.
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2.7.
Pro Rata Borrowings
. Each Borrowing of 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
.
(a) The unpaid principal amount of each ABR Loan shall bear interest from the date of the
Borrowing thereof until maturity (whether by acceleration or otherwise) at a rate
per annum
that
shall at all times be the Applicable ABR Margin plus the ABR, in each case, in effect from time to
time.
(b) The unpaid principal amount of each LIBOR Loan shall bear interest from the date of the
Borrowing thereof until maturity thereof (whether by acceleration or otherwise) at a rate
per annum
that shall at all times be the Applicable LIBOR Margin plus the relevant LIBOR Rate, in each case,
in effect from time to time.
(c) If all or a portion of (i) the principal amount of any Loan or (ii) any interest payable
thereon shall not be paid when due (whether at the stated maturity, by acceleration or otherwise),
such overdue amount shall bear interest at a rate
per annum
that is (the
Default Rate
) (x) in the
case of overdue principal, the rate that would otherwise be applicable thereto
plus
2% or
(y) in the case of any overdue interest, to the extent permitted by applicable law, the rate
described in
Section 2.8(a)
plus
2% from the date of such non-payment to the date
on which such amount is paid in full (after as well as before judgment).
(d) Interest on each Loan shall accrue from and including the date of any Borrowing to but
excluding the date of any repayment thereof. Except as provided below, interest shall be payable
(i) in respect of each ABR Loan, quarterly in arrears on the last Business Day of each March, June,
September and December, (ii) in respect of each LIBOR Loan, on the last day of each Interest Period
applicable thereto and, in the case of an Interest Period in excess of three months, on each date
occurring at three-month intervals after the first day of such Interest Period, (iii) in respect of
each Loan, (A) on any prepayment (on the amount prepaid but excluding in any event prepayments of
ABR Loans), (B) at maturity (whether by acceleration or otherwise) and (C) after such maturity, on
demand. Notwithstanding the foregoing, with respect to any fiscal quarter of the Parent Borrower
beginning on or after January 1, 2007 (each, an
Applicable Quarter
), on any date during such
Applicable Quarter (I) that is prior to the date on which Section 9.1 Financials are due with
respect to the fiscal quarter immediately preceding such Applicable Quarter and (II) on which
interest is payable on any Loan pursuant to this
subclause (d)
(other than pursuant to
subclause (iii)(B)
above) in respect of any period (including any portion of an Interest
Period) included in such Applicable Quarter (commencing on the first day of such Applicable
Quarter), the amount of such interest required to be paid on such date in respect of any Loan for
such period (as to any Loan, an
Interest Payment
) shall be reduced by an
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amount equal to the
Reserve Amount with respect to such Loan for such period;
provided
that, if the amount of
any Interest Payment on any Loan shall have been reduced during any Applicable Quarter pursuant to
the foregoing provisions, then, on the date (the
Interest Gross-Up Date
) that is the earlier of
(x) the Applicable Date in respect of such Applicable Quarter and (y) the Final Maturity Date, the
applicable Borrower shall pay additional interest on such Loan in an amount equal to the aggregate
of the Reserve Amounts for such Loan so deducted during such Applicable Quarter unless:
(1) the Parent Borrower shall have delivered, at least four Business Days prior to such
Interest Gross-Up Date, Section 9.1 Financials for the fiscal quarter immediately preceding
such Applicable Quarter and
(2) either:
(A) such Section 9.1 Financials reveal a change in Status that results in a
decrease in the Applicable ABR Margin and Applicable LIBOR Margin for such Loan, in
which case, in lieu of paying the aggregate of the Reserve Amounts for such Loan for
such period as provided above, such Borrower shall pay on such Interest Gross-Up
Date an amount equal to the excess (if any) of (I) the aggregate amount of interest
that would have been payable on such Loan during such Applicable Quarter in respect
of any period included therein if such change of Status had taken effect on the
first day of such Applicable Quarter over (II) the aggregate amount of all interest
payments actually made on such Loan during such Applicable Quarter in respect of any
period included therein; or
(B) such Section 9.1 Financials reveal a change in Status that results in an
increase in the Applicable ABR Margin and Applicable LIBOR Margin for such Loan, in
which case, such Borrower shall pay the aggregate of the Reserve Amounts for such
Loan for such period as provided above, and shall also pay additional interest in
respect of such Loan on such Interest Gross-Up Date in an amount equal to the amount
(if any) by which (I) the sum of (x) the aggregate amount of all interest payments
actually made on such Loan during such Applicable Quarter in respect of any period
included therein
plus
(y) the aggregate of the Reserve Amounts for such Loan
for such Applicable Quarter is less than (II) the aggregate amount of interest that
would have been payable on such Loan during such Applicable Quarter in respect of
any period included therein if such change of Status had taken effect on the first
day of such Applicable Quarter.
(e) All computations of interest hereunder shall be made in accordance with
Section
5.5
.
(f) The Administrative Agent, upon determining the interest rate for any Borrowing of LIBOR
Loans, shall promptly notify the Parent Borrower and the relevant Lenders thereof. Each such
determination shall, absent clearly demonstrable error, be final and conclusive and binding on all
parties hereto.
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2.9.
Interest Periods
. At the time the Parent Borrower gives a Notice of Borrowing or
Notice of Conversion or Continuation in respect of the making of, or conversion into or
continuation as, a Borrowing of LIBOR Loans in accordance with
Section 2.6(a)
, the Parent
Borrower shall have the right to elect by giving the Administrative Agent written notice (or
telephonic notice promptly confirmed in writing) the Interest Period applicable to such Borrowing,
which Interest Period shall, at the option of the Parent Borrower be a one, two, three, six or (in
the case of Revolving Credit Loans, if available to all the Lenders making such loans as determined
by such Lenders in good faith based on prevailing market conditions) a nine or twelve month period
(or such other period of less than six months as to which the Administrative Agent may consent).
Notwithstanding anything to the contrary contained above:
(a) the initial Interest Period for any Borrowing of LIBOR Loans shall commence on the
date of such Borrowing (including the date of any conversion from a Borrowing of ABR Loans)
and each Interest Period occurring thereafter in respect of such Borrowing shall commence on
the day on which the next preceding Interest Period expires;
(b) if any Interest Period relating to a Borrowing of LIBOR Loans begins on the last
Business Day of a calendar month or begins on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period, such Interest
Period shall end on the last Business Day of the calendar month at the end of such Interest
Period;
(c) if any Interest Period would otherwise expire on a day that is not a Business Day,
such Interest Period shall expire on the next succeeding Business Day,
provided
that
if any Interest Period in respect of a LIBOR Loan would otherwise expire on a day that is
not a Business Day but is a day of the month after which no further Business Day occurs in
such month, such Interest Period shall expire on the next preceding Business Day; and
(d) no Borrower shall be entitled to elect any Interest Period in respect of any LIBOR
Loan if such Interest Period would extend beyond the Final Maturity Date.
2.10.
Increased Costs, Illegality, Etc
.
(a) In the event that (x) in the case of
clause (i)
below, the Administrative Agent or
(y) in the case of
clauses (ii)
and
(iii)
below, any Lender shall have reasonably
determined (which determination shall, absent clearly demonstrable error, be final and conclusive
and binding upon all parties hereto):
(i) on any date for determining the LIBOR Rate for any Interest Period that (x) Dollar
deposits in the principal amounts of the Loans comprising such LIBOR Borrowing are not
generally available in the relevant market or (y) by reason of any changes arising on or
after the 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
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(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 date hereof
in any applicable law, governmental rule, regulation, guideline or order (or in the
interpretation or administration thereof and including the introduction of any new law or
governmental rule, regulation, guideline or order), such as, for example, without
limitation, a change in official reserve requirements, and/or (y) other circumstances
affecting the interbank LIBOR market or the position of such Lender in such market; or
(iii) at any time, that the making or continuance of any LIBOR Loan has become unlawful
by compliance by such Lender in good faith with any law, governmental rule, regulation,
guideline or order (or would conflict with any such governmental rule, regulation, guideline
or order not having the force of law even though the failure to comply therewith would not
be unlawful), or has become impracticable as a result of a contingency occurring after the
date hereof 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
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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 date hereof, 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 date hereof, has or would have the effect of reducing the rate of return on
such Lenders or its parents or its Affiliates capital or assets as a consequence of such
Lenders commitments or obligations hereunder to a level below that which such Lender or its parent
or its Affiliate could have achieved but for such Change in Law (taking into consideration such
Lenders or its parents policies with respect to capital adequacy), then from time to time,
promptly after demand by such Lender (with a copy to the Administrative Agent), the Borrowers
shall pay to such Lender such additional amount or amounts as will compensate such Lender or its
parent for such reduction, it being understood and agreed, however, that a Lender shall not be
entitled to such compensation as a result of such Lenders compliance with, or pursuant to any
request or directive to comply with, any such law, rule or regulation as in effect on the date
hereof. Each Lender, upon determining in good faith that any additional amounts will be payable
pursuant to this
Section 2.10(c)
, will give prompt written notice thereof to the Parent
Borrower, which notice shall set forth in reasonable detail the basis of the calculation of such
additional amounts, although the failure to give any such notice shall not, subject to
Section
2.13
, release or diminish the Borrowers obligations to pay additional amounts pursuant to this
Section 2.10(c)
upon receipt of such notice.
(d) It is understood that this
Section 2.10
shall not apply to (i) Taxes indemnifiable
under
Section 5.4
, (ii) net income taxes and franchise and excise taxes (imposed in lieu of
net income taxes) imposed on any Agent or Lender or (iii) Taxes included under
clause (b)
of the definition of Excluded Taxes.
2.11.
Compensation
. If (a) any payment of principal of any LIBOR Loan is made by any
Borrower to or for the account of a Lender other than on the last day of the Interest Period for
such LIBOR Loan as a result of a payment or conversion pursuant to
Section 2.5
,
2.6
,
2.10
,
5.1
,
5.2
or
14.7
, as a result of acceleration of
the maturity of the Loans pursuant to
Section 11
or for any other reason, (b) any Borrowing
of LIBOR Loans is not made as a result of a withdrawn Notice of Borrowing, (c) any ABR Loan is not
converted into a LIBOR Loan as a result of a withdrawn Notice of Conversion or Continuation, (d)
any LIBOR Loan is not continued as a LIBOR Loan, as the case may be, as a result of a withdrawn
Notice of Conversion or Continuation or (e) any prepayment of principal of any LIBOR Loan is not
made as a result of a withdrawn notice of prepayment pursuant to
Section 5.1
or
5.2
, the Borrowers shall, after the Parent Borrowers receipt of a written request by such
Lender (which request shall set forth in reasonable detail the basis for requesting such amount),
pay to the Administrative Agent for the account of such Lender any amounts required to compensate
such Lender for any additional losses, costs or expenses that such Lender may reasonably incur as a
result of such payment, failure to convert, failure to continue or failure to prepay, including any
loss, cost or expense (excluding loss of anticipated profits) actually incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain
such LIBOR Loan.
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2.12.
Change of Lending Office
. Each Lender agrees that, upon the occurrence of any
event giving rise to the operation of
Section 2.10(a)(ii)
,
2.10(a)(iii)
,
2.10(b)
,
3.5
or
5.4
with respect to such Lender, it will, if requested by
the Parent Borrower use reasonable efforts (subject to overall policy considerations of such
Lender) to designate another lending office for any Loans affected by such event,
provided
that such designation is made on such terms that such Lender and its lending office suffer no
economic, legal or regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of any such Section. Nothing in this
Section 2.12
shall
affect or postpone any of the obligations of the Borrowers or the right of any Lender provided
in
Section 2.10
,
3.5
or
5.4
.
2.13.
Notice of Certain Costs
. Notwithstanding anything in this Agreement to the
contrary, to the extent any notice required by
Section 2.10
,
2.11
,
3.5
or
5.4
is given by any Lender more than 120 days after such Lender has knowledge (or should
have had knowledge) of the occurrence of the event giving rise to the additional cost, reduction in
amounts, loss, tax or other additional amounts described in such Sections, such Lender shall not be
entitled to compensation under
Section 2.10
,
2.11
,
3.5
or
5.4
, as
the case may be, for any such amounts incurred or accruing prior to the 121st day prior to the
giving of such notice to the Parent Borrower.
2.14.
Incremental Facilities
.
(a) The 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
New Revolving Credit Commitments
), by an aggregate amount not in excess of (when taken
together with the aggregate amount (the
Excess Amount
) of New Loan Commitments (as defined in the
CF Agreement as in effect on the date hereof) under the CF Facility on the date such New 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 New Revolving Credit Commitments
(when taken together with the Excess Amount on the date such New 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 New 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 New Revolving Credit Commitments;
provided
that any Lender
offered or approached to provide all or a portion of the New Revolving Credit Commitments may elect
or decline, in its sole discretion, to provide a New Revolving Credit Commitment. In each case,
such New 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 New Revolving Credit Commitments, as applicable; (ii)
both before and after giving effect to the making of any New Revolving Loans, each of the
conditions set forth in
Section 7
shall be satisfied; (iii) the Parent Borrower and its
Restricted Subsidiaries shall be in Pro Forma Compliance with the covenant set forth in Section
10.9 of the CF Agreement as of the last day of the most recently ended fiscal quarter after giving
effect to such New Revolving Credit Commitments and any Investment to be consummated in connection
therewith; (iv) the New Revolving Credit Commitments shall be effected pursuant to
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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 New
Revolving Credit Commitments, as applicable; and (vi) the Parent Borrower shall deliver or cause to
be delivered any legal opinions or other documents reasonably requested by Administrative Agent in
connection with any such transaction. The Parent Borrower on behalf of the Borrowers shall give
the Administrative Agent prompt written notice of any increase in the aggregate amount committed in
respect of the CF Facility.
(b) On any Increased Amount Date on which New 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 New Revolving Credit Commitment (each, a
New
Revolving Loan Lender
) and each of the New Revolving Loan Lenders shall purchase from each of the
Lenders with Revolving Credit Commitments, at the principal amount thereof (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 Credit Lenders and New Revolving
Loan Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to
the addition of such New Revolving Credit Commitments to the Revolving Credit Commitments, (b) each
New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and
each Loan made thereunder (a
New Revolving Loan
) shall be deemed, for all purposes, a Revolving
Credit Loan and (c) each New Revolving Loan Lender shall become a Lender with respect to the New
Revolving Loan Commitment and all matters relating thereto.
(c) [Reserved].
(d) The terms and provisions of the New Revolving Loans and New Revolving Credit Commitments
shall be identical to the Revolving Credit Loans and the Revolving Credit Commitments.
(e) Each Joinder Agreement may, without the consent of any other Lenders, effect such
amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in
the opinion of the Administrative Agent, to effect the provision of this
Section 2.14
.
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 date hereof 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
pro-
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posed Reserve or increase, and the Borrowers may take such action as may be required so that the
event, condition, circumstance or new fact that is the basis for such Reserve or increase no longer exists, in a
manner and to the extent reasonably satisfactory to the Administrative Agent in the exercise of its
Permitted Discretion. In no event shall such notice and opportunity limit the right of the
Administrative Agent to establish or change such Reserve, unless the Administrative Agent shall
have determined in its Permitted Discretion that the event, condition, other circumstance or new
fact that is the basis for such new Reserve or such change no longer exists or has otherwise been
adequately addressed by the Borrowers.
SECTION 3.
Letters of Credit
3.1.
Letters of Credit
.
(a) Subject to and upon the terms and conditions herein set forth, at any time and from time
to time after the Closing Date and prior to the L/C Maturity Date, the Letter of Credit Issuer
agrees, in reliance upon the agreements of the Revolving Credit Lenders set forth in this
Section 3
, to issue from time to time from the Closing Date through the L/C Maturity Date
upon the request of 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 Credit 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,
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after giving effect to such termination or reduction, the Letters of Credit Outstanding shall
not exceed the Letter of Credit Commitment.
(d) [Reserved].
(e) The Letter of Credit Issuer shall not be under any obligation to issue any Letter of
Credit if:
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain the Letter of Credit Issuer from issuing such Letter
of Credit, or any law applicable to the Letter of Credit Issuer or any request or directive
(whether or not having the force of law) from any Governmental Authority with jurisdiction
over the Letter of Credit Issuer shall prohibit, or request that the Letter of Credit Issuer
refrain from, the issuance of letters of credit generally or such Letter of Credit in
particular or shall impose upon the Letter of Credit Issuer with respect to such Letter of
Credit any restriction, reserve or capital requirement (for which the Letter of Credit
Issuer is not otherwise compensated hereunder) not in effect on the 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 Credit Lenders obligations to fund under
Section
3.3
exists or any Revolving Credit 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 Credit Lender to eliminate the Letter of Credit
Issuers risk with respect to such Revolving Credit Lender.
(f) The Letter of Credit Issuer shall not amend any Letter of Credit if the Letter of Credit
Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under
the terms hereof.
(g) The Letter of Credit Issuer shall be under no obligation to amend any Letter of Credit if
(A) the Letter of Credit Issuer would have no obligation at such time to issue such
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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 Credit Lenders with
respect to any Letters of Credit issued by it and the documents associated therewith, and the
Letter of Credit Issuer shall have all of the benefits and immunities (A) provided to the
Administrative Agent in
Section 13
with respect to any acts taken or omissions suffered by
the Letter of Credit Issuer in connection with Letters of Credit issued by it or proposed to be
issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term
Administrative Agent as used in
Section 13
included the Letter of Credit Issuer with
respect to such acts or omissions, and (B) as additionally provided herein with respect to the
Letter of Credit Issuer.
3.2.
Letter of Credit Requests
.
(a) Whenever any Borrower desires that a Letter of Credit be issued for its account or
amended, the Parent Borrower on behalf of such Borrower shall give the Administrative Agent and the
Letter of Credit Issuer a Letter of Credit Request by no later than 11:00 a.m. (New York City time)
at least two (or such lesser number as may be agreed upon by the Administrative Agent and the
Letter of Credit Issuer) Business Days prior to the proposed date of issuance or amendment. Each
notice shall be executed by the Parent Borrower and shall be in the form of
Exhibit G
(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 Credit Lender, the Administrative Agent or any Credit Party, at least one
Business Day prior to the requested date of issuance or amendment of the applicable Letter of
Credit, that one or more applicable conditions contained in
Sections 6
and
7
shall
not then be sat-
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isfied, then, subject to the terms and conditions hereof, the Letter of Credit
Issuer shall, on the requested date, issue a Letter of Credit for the account of the applicable
Borrower (or the applicable Restricted Subsidiary) or enter into the applicable amendment, as the
case may be, in each case in accordance with the Letter of Credit Issuers usual and customary
business practices.
(d) If the Parent Borrower on behalf of any Borrower so requests in any applicable Letter of
Credit Request, the Letter of Credit Issuer may, in its sole and absolute discretion, agree to
issue a Letter of Credit that has automatic extension provisions (each, an
Auto-Extension Letter
of Credit
);
provided
that any such Auto-Extension Letter of Credit must permit the Letter
of Credit Issuer to prevent any such extension at least once in each twelve-month period
(commencing with the date of issuance of such Letter of Credit) by giving prior notice to the
beneficiary thereof not later than a day (the
Non-Extension Notice Date
) in each such
twelve-month period to be agreed upon at the time such Letter of Credit is issued. Unless
otherwise directed by the Letter of Credit Issuer, the Parent Borrower shall not be required to
make a specific request to the Letter of Credit Issuer for any such extension. Once an
Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized
(but may not require) the Letter of Credit Issuer to permit the extension of such Letter of Credit
at any time to an expiry date not later than the L/C Maturity Date;
provided
,
however
, that the Letter of Credit Issuer shall not permit any such extension if (A) the
Letter of Credit Issuer has determined that it would not be permitted, or would have no obligation,
at such time to issue such Letter of Credit in its revised form (as extended) under the terms
hereof (by reason of the provisions of
clause (b)
or
(e)
of
Section 3.1
or
otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before
the day that is five Business Days before the Non-Extension Notice Date (1) from the Administrative
Agent that the Required Lenders have elected not to permit such extension or (2) from the
Administrative Agent, any Lender or the Parent Borrower that one or more of the applicable
conditions specified in
Sections 6
and
7
are not then satisfied, and in each such
case directing the Letter of Credit Issuer not to permit such extension.
(e) If the Parent Borrower on behalf of any Borrower so requests in any applicable Letter of
Credit Request, the Letter of Credit Issuer may, in its sole and absolute discretion, agree to
issue a Letter of Credit that permits the automatic reinstatement of all or a portion of the stated
amount thereof after any drawing thereunder (each, an
Auto-Reinstatement Letter of Credit
).
Unless otherwise directed by the Letter of Credit Issuer, the 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
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this clause) and, in each case, directing the Letter of Credit Issuer not to
permit such reinstatement.
(f) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit
to an advising bank with respect thereto or to the beneficiary thereof, the Letter of Credit Issuer
will also deliver to the Parent Borrower and the Administrative Agent a true and complete copy of
such Letter of Credit or amendment. On the last Business Day of each March, June, September and
December, each Letter of Credit Issuer shall provide the Administrative Agent a list of all Letters
of Credit issued by it that are outstanding at such time.
(g) The making of each Letter of Credit Request shall be deemed to be a representation and
warranty by the applicable Borrower that the Letter of Credit may be issued in accordance with, and
will not violate the requirements of,
Section 3.1(b)
.
3.3.
Letter of Credit Participations
.
(a) Immediately upon the issuance by the Letter of Credit Issuer of any Letter of Credit, the
Letter of Credit Issuer shall be deemed to have sold and transferred to each Revolving Credit
Lender (each such Revolving Credit Lender, in its capacity under this
Section 3.3
, an
L/C
Participant
), and each such L/C Participant shall be deemed irrevocably and unconditionally to
have purchased and received from the Letter of Credit Issuer, without recourse or warranty, an
undivided interest and participation (each an
L/C Participation
), to the extent of such L/C
Participants Revolving Credit Commitment Percentage, in each Letter of Credit, each substitute
therefor, each drawing made thereunder and the obligations of the 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
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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
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
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Administrative Agent, the Letter of Credit Issuer, any Lender or other Person, whether in
connection with this Agreement, any Letter of Credit, the transactions contemplated herein
or any unrelated transactions (including any underlying transaction between a Borrower and
the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented under any Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(iv) the surrender or impairment of any security for the performance or observance of
any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default;
provided
,
however
, that no L/C Participant shall be obligated to pay to the
Administrative Agent for the account of the Letter of Credit Issuer its 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 Bor
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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 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 date hereof, 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 date hereof (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
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the net income
received or receivable (but not any sum deemed to be received or receivable) by such Agent or
Lender or (iii) Taxes included under
clause (b)
of the definition of Excluded Taxes) in
respect of Letters of Credit or L/C Participations therein, then, promptly after receipt of written
demand to the Parent Borrower by the Letter of Credit Issuer or such L/C Participant, as the case
may be (a copy of which notice shall be sent by the Letter of Credit Issuer or such L/C Participant
to the Administrative Agent), the Borrowers shall pay to the Letter of Credit Issuer or such L/C
Participant such additional amount or amounts as will compensate the Letter of Credit Issuer or
such L/C Participant for such increased cost or reduction, it being understood and agreed, however,
that the Letter of Credit Issuer or an L/C Participant shall not be entitled to such compensation
as a result of such Persons compliance with, or pursuant to any request or directive to comply
with, any such law, rule or regulation as in effect on the date hereof. 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
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or replacement pursuant to this
clause (a)
(but, in case of any such
resignation, only to the extent that a successor issuer of Letters of Credit shall have been
appointed), either (i) the Parent Borrower, the resigning or replaced Letter of Credit Issuer and
the successor issuer of Letters of Credit shall arrange to have any outstanding Letters of Credit
issued by the resigning or replaced Letter of Credit Issuer replaced with Letters of Credit issued
by the successor issuer of Letters of Credit or (ii) the Parent Borrower shall cause the successor
issuer of Letters of Credit, if such successor issuer is reasonably satisfactory to the replaced or
resigning Letter of Credit Issuer, to issue back-stop Letters of Credit naming the resigning or
replaced Letter of Credit Issuer as beneficiary for each outstanding Letter of Credit issued by the
resigning or replaced Letter of Credit Issuer, which new Letters of Credit shall have a face amount
equal to the Letters of Credit being back-stopped and the sole requirement for drawing on such new
Letters of Credit shall be a drawing on the corresponding back-stopped Letters of Credit. After
any resigning or replaced Letter of Credit Issuers resignation or replacement as Letter of Credit
Issuer, the provisions of this Agreement relating to a Letter of Credit Issuer shall inure to its
benefit as to any actions taken or omitted to be taken by it (A) while it was a Letter of Credit
Issuer under this Agreement or (B) at any time with respect to Letters of Credit issued by such
Letter of Credit Issuer.
(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
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Borrower proves were caused by the Letter of Credit Issuers willful misconduct or gross negligence
or the Letter of Credit Issuers willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with
the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the
foregoing, the Letter of Credit Issuer may accept documents that appear on their face to be in
order, without responsibility for further investigation, regardless of any notice or information to
the contrary, and the Letter of Credit Issuer shall not be responsible for the validity or
sufficiency of any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason.
3.8.
Cash Collateral
.
(a) Upon the request of the Administrative Agent, (A) if the Letter of Credit Issuer has
honored any full or partial drawing request under any Letter of Credit and such drawing has
resulted in an L/C Borrowing, or (B) if, as of the L/C Maturity Date, there are any Letters of
Credit Outstanding, 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 Credit Lenders with Letter of Credit Exposure representing greater than 50% of the total
Letter of Credit Exposure may require that the L/C Obligations be Cash Collateralized.
(d) For purposes of this
Section 3.8
,
Cash Collateralize
means to pledge and deposit
with or deliver to the Administrative Agent, for the benefit of the Letter of Credit Issuer and the
Lenders, as collateral for the 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.
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3.10.
Conflict with Issuer Documents
. In the event of any conflict between the terms
hereof and the terms of any Issuer Document, the terms hereof shall control.
3.11.
Letters of Credit Issued for Restricted Subsidiaries
. Notwithstanding that a
Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the
account of, a Restricted Subsidiary that is not a Borrower, the Parent Borrower shall be obligated
to reimburse the Letter of Credit Issuer hereunder for any and all drawings under such Letter of
Credit. The Parent Borrower hereby acknowledges that the issuance of Letters of Credit for the
account of Restricted Subsidiaries that are not Borrowers inures to the benefit of the Parent
Borrower, and that the Parent Borrowers business derives substantial benefits from the businesses
of such Restricted Subsidiaries.
SECTION 4.
Fees; Commitments
4.1.
Fees
.
(a) The Borrowers agree to pay to the Administrative Agent in Dollars, for the account of each
Revolving Credit Lender (in each case
pro rata
according to the respective Revolving Credit
Commitments of all such Lenders), a commitment fee (the
Commitment Fee
) for each day from the
Closing Date to the Revolving Credit Termination Date. Except as set forth below, each Commitment
Fee shall be payable by the Parent Borrower on behalf of the Borrowers (x) quarterly in arrears on
the last Business Day of each March, June, September and December (for the three-month period (or
portion thereof) ended on such day for which no payment has been received) and (y) on the Revolving
Credit Termination Date (for the period ended on such date for which no payment has been received
pursuant to
clause (x)
above), and shall be computed for each day during such period at a
rate
per annum
equal to the Commitment Fee Rate in effect on such day on the Available Commitment
in effect on such day. Notwithstanding the foregoing, with respect to any Applicable Quarter, on
any date during such Applicable Quarter (I) that is prior to the date on which Section 9.1
Financials are due with respect to the fiscal quarter immediately preceding such Applicable Quarter
and (II) on which any Commitment Fee
is payable on any Available Commitment pursuant to this
subclause (a)
(other than
pursuant to
subclause (y)
above) in respect of any period included in such Applicable
Quarter, the amount of such Commitment Fee required to be paid on such date in respect of such
Available Commitment and such period (as to any Available Commitment, a
Commitment Fee Payment
)
shall be reduced by an amount equal to the Reserve Amount with respect to such Commitment Fee for
such period;
provided
that, if the amount of any Commitment Fee Payment on any Available
Commitment shall have been reduced during any Applicable Quarter pursuant to the foregoing
provisions, then, on the date (the
Commitment Fee Gross-Up Date
) that is the earlier of (x) the
Applicable Date in respect of such Applicable Quarter and (y) the date on which all Revolving
Credit Commitments have been terminated in full, the Parent Borrower shall pay an additional
commitment fee on such Available Commitment in an amount equal to the aggregate of the Reserve
Amounts for such Available Commitment so deducted during such Applicable Quarter unless:
(1) the Parent Borrower shall have delivered, at least four Business Days prior to such
Commitment Fee Gross-Up Date, Section 9.1 Financials for the fiscal quarter immediately
preceding such Applicable Quarter and
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(2) either:
(A) such Section 9.1 Financials reveal a change in Status that results in a
decrease in the Commitment Fee Rate, in which case, no payment of any such Reserve
Amounts for such Available Commitment shall be required; or
(B) such Section 9.1 Financials reveal a change in Status that results in an
increase in the Commitment Fee Rate, in which case, the Parent Borrower shall pay
the aggregate of the Reserve Amounts for such Available Commitment for such period
as provided above, and shall also pay an additional commitment fee in respect of
such Available Commitment on such Commitment Fee Gross-Up Date in an amount equal to
the amount (if any) by which (I) the sum of (x) the aggregate amount of all
Commitment Fees actually paid during such Applicable Quarter in respect of such
Available Commitment for any period included therein
plus
(y) the aggregate
of the Reserve Amounts for such Available Commitment for such Applicable Quarter is
less than (II) the aggregate amount of Commitment Fees that would have been payable
on such Available Commitment during such Applicable Quarter in respect of any period
included therein if such change of Status had taken effect on the first day of such
Applicable Quarter.
(b) The 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 Except as provided below, such
Letter of Credit Fees shall be due and payable (x) quarterly in arrears on the last Business Day of
each March, June, September and December and (y) on the date upon which the Total Revolving Credit
Commitment terminates and the Letters of Credit Outstanding
shall have been reduced to zero. Notwithstanding the foregoing, with respect to any
Applicable Quarter, on any date during such Applicable Quarter (I) that is prior to the date on
which Section 9.1 Financials are due with respect to the fiscal quarter immediately preceding such
Applicable Quarter and (II) on which any Letter of Credit Fee is payable on any Letter of Credit
pursuant to this
subclause (b)
(other than pursuant to
subclause (y)
above) in
respect of any period included in such Applicable Quarter, the amount of such Letter of Credit Fee
required to be paid on such date in respect of such Letter of Credit for such period (as to any
Letter of Credit, an
L/C Fee Payment
) shall be reduced by an amount equal to the Reserve Amount
with respect to such Letter of Credit Fee for such period;
provided
that, if the amount of
any L/C Fee Payment on any Letter of Credit shall have been reduced during any Applicable Quarter
pursuant to the foregoing provisions, then, on the date (the
L/C Fee Gross-Up Date
) that is the
earlier of (x) the Applicable Date in respect of such Applicable Quarter and (y) the Revolving
Credit Termination Date, the Parent Borrower shall pay an additional letter of credit fee on such
Letter of Credit in an amount equal to the aggregate of the Reserve Amounts for such Letter of
Credit so deducted during such Applicable Quarter unless:
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(1) the Parent Borrower shall have delivered, at least four Business Days prior to such
L/C Fee Gross-Up Date, Section 9.1 Financials for the fiscal quarter immediately preceding
such Applicable Quarter and
(2) either:
(A) such Section 9.1 Financials reveal a change in Status that results in a
decrease in the Letter of Credit Fee rate with respect to such Letter of Credit, in
which case, in lieu of paying the aggregate of the Reserve Amount for such Letter of
Credit for such period as provided above, the Parent Borrower shall pay on such L/C
Fee Gross-Up Date an amount equal to the excess (if any) of (I) the aggregate amount
of Letter of Credit Fees that would have been payable on such Letter of Credit
during such Applicable Quarter in respect of any period included therein if such
change of Status had taken effect on the first day of such Applicable Quarter over
(II) the aggregate amount of all Letter of Credit Fee payments actually made on such
Letter of Credit during such Applicable Quarter in respect of any period included
therein; or
(B) such Section 9.1 Financials reveal a change in Status that results in an
increase in the Letter of Credit Fee rate, in which case, the Parent Borrower shall
pay the aggregate of the Reserve Amounts for such Letter of Credit for such period
as provided above, and shall also pay additional letter of credit fees in respect of
such Letter of Credit on such L/C Fee Gross-Up Date in an amount equal to the amount
(if any) by which (I) the sum of (x) the aggregate amount of all Letter of Credit
Fees actually paid during such Applicable Quarter in respect of such Letter of
Credit for any period included therein
plus
(y) the aggregate of the Reserve
Amounts for such Letter of Credit for such Applicable Quarter is less than (II) the
aggregate amount of Letter of Credit Fees that would have been payable on such
Letter of Credit during such Applicable Quarter in respect of any period included
therein if such change of Status had taken effect on the first day of such
Applicable Quarter.
(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 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.
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(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 Credit
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, three Business Days prior to, (ii)
in the case of ABR Loans (other than Swingline Loans and Protective Advances), one Business Day
prior to or (iii) in the case of Swingline Loans and Protective Advances, on, the date of such
prepayment and shall promptly be transmitted by the Administrative Agent to each of the Lenders or
the Swingline Lender, as the case may be; (b) each partial prepayment of (i) any Borrowing of LIBOR
Loans shall be in a minimum amount of $10,000,000 and in multiples of $1,000,000 in excess thereof,
(ii) any ABR Loans (other than Swingline Loans and Protective Advances) shall be in a minimum
amount of $1,000,000 and in multiples of $1,000,000 in excess thereof and (iii) Swingline Loans
shall be in a minimum amount of $500,000 and in multiples of $100,000 in excess thereof,
provided
that no partial prepayment of LIBOR Loans made pursuant to a single Borrowing
shall reduce the outstanding LIBOR Loans made pursuant to such Borrowing to an amount less than the
Minimum Borrowing Amount for LIBOR Loans and (c) any prepayment of LIBOR Loans pursuant to this
Section 5.1
on any day other than the last day of an Interest Period applicable thereto
shall be subject to
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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 Credit Exposures (collectively, the
Aggregate Revolving Credit
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 Credit 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 Credit Outstandings
for any reason exceed 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 Credit 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.
(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
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(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
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.
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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 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
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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
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
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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
.
(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.
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(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;
(b) 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;
(c) the Security Agreement, executed and delivered by a duly authorized officer of each
grantor party thereto; and
(d) the Intercreditor Agreement, executed and delivered by a duly authorized officer of
the applicable Credit Parties and of the Collateral Agent and the other agents party
thereto.
6.2.
Collateral
.
(a) 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
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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
(b) The Parent Borrower shall deliver 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.
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 H-1
, (b) Robert A. Waterman, General Counsel of the
Parent Borrower, substantially in the form of
Exhibit H-2
, and (c) 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.
Contemporaneous Debt Financings and Repayments
. (i) The Parent Borrower shall have
received gross proceeds of up to $5,700,000,000 from the issuance of Junior Lien Notes under the
Junior Lien Notes Indenture, (ii) the Parent Borrower and the applicable borrowers and guarantors
thereunder shall have entered into the CF Agreement providing for a revolving credit commitment of
up to $2,000,000,000, of which no more than $300,000,000 shall be drawn on the Closing Date, and
term borrowings of $12,800,000,000 and (iii) the Debt Repayment (other than any portion thereof to
occur on a later date in accordance with the tender offers therefor) shall have occurred
substantially contemporaneously with the initial extensions of credit hereunder.
6.5.
Equity Investments
. Equity Investments in an amount not less than the Minimum Equity
Amount shall have been made.
6.6.
Closing Certificates
. The Administrative Agent shall have received a certificate of
the Credit Parties, dated the Closing Date, substantially in the form of
Exhibit I
, with
appropriate insertions, executed by the President or any Vice President and the Secretary or any
Assistant Secretary of each Credit Party, and attaching the documents referred to in
Sections
6.7
and the certificate of incorporation and bylaws or other formation and organizational
documents so such Credit Party.
6.7.
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.
6.8.
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
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the reasonable
fees, disbursements and other charges of counsel) payable by the Credit Parties for which invoices
have been presented prior to the Closing Date shall have been paid.
6.9.
Representations and Warranties
. On the Closing Date, the representations and
warranties made by the Credit Parties in
Section 8.2
,
Section 8.5
,
Section
8.7
and
Section 8.17
, as they relate to the Credit Parties at such time, shall be true
and correct in all material respects.
6.10.
Related Agreements
. The Administrative Agent shall have received a fully executed or
conformed copy of the Acquisition Agreement which shall be in full force and effect.
6.11.
Solvency Certificate
. On the Closing Date, the Administrative Agent shall have
received a certificate from an Authorized Officer of the Parent Borrower to the effect that after
giving effect to the consummation of the Transactions, the Parent Borrower on a consolidated basis
with its Subsidiaries is Solvent.
6.12.
Merger
. Concurrently with the initial Credit Event hereunder, the Merger shall have
been consummated in accordance with the terms of the Acquisition Agreement (or the Lead Arrangers
shall be reasonably satisfied with the arrangements in place for the consummation of the Merger
reasonably promptly after the initial Credit Event hereunder and shall have received confirmation
from representatives of the Parent Borrower that such actions shall be taken promptly after the
initial Credit Event hereunder), without giving effect to any amendments or waivers thereto that
are materially adverse to the Lenders without the reasonable consent of the Joint Lead Arrangers.
6.13.
Pro Forma Balance Sheet
. The Administrative Agent shall have received a pro forma
consolidated balance sheet of HCA as of the last day of the most recently completed fiscal quarter
ended at least 60 days prior to the Closing Date, after giving effect to the Transactions, together
with a certificate of an Authorized Officer of the Parent Borrower to the effect that such
statement accurately presents the pro forma consolidated financial position of HCA in accordance
with GAAP.
6.14.
No Material Adverse Change
. No Material Adverse Change shall have occurred since
December 31, 2005.
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 Credit Lenders in respect of Unpaid Drawings pursuant to
Sections 3.3
and
3.4
) and the obligation of the Letter of Credit Issuer to issue Letters of Credit on any
date is subject to the satisfaction of the following conditions precedent:
7.1.
No Default; Representations and Warranties
. At the time of each Credit Event and also
after giving effect thereto (other than any Credit Event on the Closing Date) (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
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shall be true and
correct in all material respects with the same effect as though such representations and warranties
had been made on and as of the date of such Credit Event (except where such representations and
warranties expressly relate to an earlier date, in which case such representations and warranties
shall have been true and correct in all material respects as of such earlier date).
7.2.
Notice of Borrowing; Letter of Credit Request
.
(a) Prior to the making of each 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.
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8.3.
No Violation
. Neither the execution, delivery or performance by any Credit Party of
the Credit Documents to which it is a party nor compliance with the terms and provisions thereof
nor the consummation of the Merger and the other transactions contemplated hereby or thereby will
(a) contravene any applicable provision of any material law, statute, rule, regulation, order,
writ, injunction or decree of any court or governmental instrumentality, (b) result in any breach
of any of the terms, covenants, conditions or provisions of, or constitute a default under, or
result in the creation or imposition of (or the obligation to create or impose) any Lien upon any
of the property or assets of such Credit Party or any of the Restricted Subsidiaries (other than
Liens created under the Credit Documents or Liens subject to the Intercreditor Agreement) pursuant
to the terms of any material indenture, loan agreement, lease agreement, 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, U or X of the Board.
8.6.
Governmental Approvals
. The execution, delivery and performance of the Acquisition
Agreement or any Credit Document do not require any consent or approval of, registration or filing
with, or other action by, any Governmental Authority, except for (i) such as have been obtained or
made and are in full force and effect, (ii) filings and recordings in respect of the Liens created
pursuant to the Security Agreement and (iii) such licenses, approvals, authorizations or consents
the failure to obtain or make could not reasonably be expected to have a Material Adverse Effect.
8.7.
Investment Company Act
. No Borrower is an investment company within the meaning of
the Investment Company Act of 1940, as amended.
8.8.
True and Complete Disclosure
.
(a) None of the written factual information and written data (taken as a whole) heretofore or
contemporaneously furnished by or on behalf of the Parent Borrower, any of the Subsidiaries or any
of their respective authorized representatives to the Administrative Agent, any Joint Lead Arranger
and/or any Lender on or before the Closing Date (including all such information and data contained
in (i) the Confidential Information Memorandum (as updated prior to the Closing Date) and (ii) the
Credit Documents) for purposes of or in connection with this Agreement or any transaction
contemplated herein contained any untrue statement of any material fact or omitted to state any
material fact necessary to make such information and data (taken as a whole) not misleading at such
time in light of the circumstances under which such information or data was furnished, it being
understood and agreed that for purposes of this
Section 8.8(a)
,
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such factual information
and data shall not include projections (including financial estimates, forecasts and other
forward-looking information) and information of a general economic or general industry nature.
(b) The projections (including financial estimates, forecasts and other forward-looking
information) contained in the information and data referred to in
clause (a)
above were
based on good faith estimates and assumptions believed by such Persons to be reasonable at the time
made, it being recognized by the Lenders that such projections as to future events are not to be
viewed as facts and that actual results during the period or periods covered by any such
projections may differ from the projected results.
8.9.
Financial Condition; Financial Statements
. (a) The unaudited historical consolidated
financial information of HCA as set forth in the Confidential Information Memorandum, and (b) the
Historical Financial Statements, in each case present fairly in all material respects the
consolidated financial position of HCA at the respective dates of said information, statements and
results of operations for the respective periods covered thereby. The financial statements
referred to in
clause (b)
of this
Section 8.9
have been prepared in accordance with
GAAP consistently applied except to the extent provided in the notes to said financial statements.
After the Closing Date, there has been no Material Adverse Effect since December 31, 2005.
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
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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
.
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.
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8.16.
Solvency
. On the Closing Date (after giving effect to the Transactions), immediately
following the making of each Loan and after giving effect to the application of the proceeds of
such Loans, the Parent Borrower on a consolidated basis with its Subsidiaries will be Solvent.
8.17.
Delayed Equity Arrangements
. On the Closing Date, (i) the Parent Borrower has
received a written commitment from Holdings to contribute the Delayed Equity Amount to the Parent
Borrower, to the extent not otherwise received by the Parent Borrower, on or prior to March 31,
2007 and (ii) Holdings has received written commitments from certain of the Investors to provide
the Delayed Equity Amount to Holdings, to the extent not otherwise received on or prior to March
31, 2007 (the commitments referred to in subclauses (i) and (ii) being referred to collectively as
the
Delayed Equity Arrangements
).
SECTION 9.
Affirmative Covenants
Each Borrower hereby covenants and agrees that on the Closing Date and thereafter, until the
Commitments, the Swingline Commitment and each Letter of Credit have terminated and the Loans and
Unpaid Drawings, together with interest, Fees and all other Obligations incurred hereunder, are
paid in full:
9.1.
Information Covenants
. The Parent Borrower will furnish to the Administrative Agent
(which shall make such information available to the Lenders in accordance with its customary
practice):
(a)
Annual Financial Statements
. As soon as available and in any event within
5 days after the date on which such financial statements are required to be filed with the
SEC or, if earlier, on the date such financial statements are delivered to the holders of
Junior Lien Notes (or, if such financial statements are not required to be filed with the
SEC or delivered to the holders of the Junior Lien Notes, on or before the date that is 90
days (or, in the case of the fiscal year ending December 31, 2006, 120 days) after the end
of each such fiscal year), the consolidated balance sheets of the Parent Borrower and the
Subsidiaries and, if different, the Parent Borrower and the Restricted Subsidiaries, in each
case as at the end of such fiscal year, and the related consolidated statements of
operations and cash flows for such fiscal year, setting forth comparative consolidated
figures for the preceding fiscal years (or, in lieu of such audited financial statements of
the Parent Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting
such financial information for the Parent Borrower and the Restricted Subsidiaries, on the
one hand, and the Parent Borrower and the Subsidiaries, on the other hand), and certified by
independent certified public accountants of recognized national standing whose opinion shall
not be qualified as to the scope of audit or as to the status of the Parent Borrower or any
of the Material Subsidiaries (or group of Subsidiaries that together would constitute a
Material Subsidiary) as a going concern, together in any event with a certificate of such
accounting firm stating that in the course of either (i) its regular audit of the
consolidated business of the Parent Borrower, which audit was conducted in accordance with
generally accepted auditing standards or (ii) performing certain other procedures permitted
by professional standards, such accounting firm has obtained no knowledge of any Event of
Default relating to
Section 10.9
that has occurred and is continuing or, if in the
opinion of
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such accounting firm such an Event of Default has occurred and is continuing, a
statement as to the nature thereof.
(b)
Periodic Financial Statements
. As soon as available and in any event
within 5 days after the date on which such financial statements are required to be filed
with the SEC or, if earlier, on the date on which such financial statements are delivered to
the holders of the Junior Lien Notes with respect to each of the first three quarterly
accounting periods in each fiscal year of the Parent Borrower (or, if such financial
statements are not required to be filed with the SEC or delivered to the holders of the
Junior Lien Notes, on or before the date that is 45 days after the end of each such
quarterly accounting period), the consolidated balance sheets of the Parent Borrower and the
Subsidiaries and, if different, the Parent Borrower and the Restricted Subsidiaries, in each
case as at the end of such quarterly period and the related consolidated statements of
operations for such quarterly accounting period and for the elapsed portion of the fiscal
year ended with the last day of such quarterly period, and the related consolidated
statement of cash flows for the elapsed portion of the fiscal year ended with the last day
of such quarterly period, and setting forth comparative consolidated figures for the related
periods in the prior fiscal year or, in the case of such consolidated balance sheet, for the
last day of the prior fiscal year (or, in lieu of such unaudited financial statements of the
Parent Borrower and the Restricted Subsidiaries, a detailed reconciliation, reflecting such
financial information for the Parent Borrower and the Restricted Subsidiaries, on the one
hand, and the Parent Borrower and the Subsidiaries, on the other hand), all of which shall
be certified by an Authorized Officer of the Parent Borrower, subject to changes resulting
from audit and normal year-end audit adjustments.
(c)
Budgets
. Within 90 days after the commencement of each fiscal year of the
Parent Borrower, a budget of the Parent Borrower in reasonable detail for such fiscal year
as customarily prepared by management of the Parent Borrower for their internal use
consistent in scope with the financial statements provided pursuant to
Section
9.1(a)
, setting forth the principal assumptions upon which such budget is based.
(d)
Officers Certificates
. At the time of the delivery of the financial
statements provided for in
Sections 9.1(a)
and
(b)
, a certificate of an
Authorized Officer of the Parent Borrower to the effect that no Default or Event of Default
exists or, if any Default or Event of Default does exist, specifying the nature and extent
thereof, which certificate shall set forth (i) the calculations required to establish
whether the Parent Borrower and the Subsidiaries were in compliance with the provisions of
Section 10.9
(whether or not such covenant is then applicable) as at the end of such
fiscal year or period, as the case may be, (ii) a specification of any change in the
identity of the Restricted Subsidiaries and Unrestricted Subsidiaries as at the end of such
fiscal year or period, as the case may be, from the Restricted Subsidiaries and Unrestricted
Subsidiaries, respectively, provided to the Lenders on the 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)
,
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(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;
(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
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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 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 Facility
Availability in each case as of the close of business on the last day of the immediately
preceding calendar month, each such Borrowing Base Certificate to be certified as complete
and correct in all material respects on behalf of the Parent Borrower by a Financial Officer
of the Parent Borrower (each a
Monthly Borrowing Base Certificate
). In addition, solely
(i) during the continuance of a Cash Dominion Event or (ii) if any Event of Default has
occurred and is continuing, a Borrowing Base Certificate showing the Parent Borrowers
reasonable estimate (which shall be based on the most current accounts receivable aging
reasonably available and shall be calculated in a consistent manner with the most recent
Monthly Borrowing Base Certificates delivered pursuant to this Section) of the Borrowing
Base (but not the calculation of Excess Facility Availability) as of the close of business
on the last day of the immediately preceding calendar week, unless the Administrative Agent
otherwise agrees, shall be furnished on Wednesday of each week (or, if Wednesday is not a
Business Day, on the next succeeding Business Day).
(j)
Collateral Reporting
.
(i) At the time of the delivery of the financial statements provided for in
Section
9.1(b)
, a certificate of an Authorized Officer setting forth (x) the amount of Potential
Medicaid Accounts at the end of such period and the aggregate amount of Potential Medicaid
Accounts that became Medicaid Accounts during such period and (y) the collection history of
Self-Pay Accounts for the immediately preceding 12 month period.
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(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
.
(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
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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 pur
poses. Unless otherwise required by law, the Agents, the Lenders and their respective
representatives shall not require or perform any act that would cause the Parent Borrower or any of
its Subsidiaries to violate any laws, regulations or ordinances intended to protect the privacy
rights of healthcare patients, including, without limitation, HIPAA.
(b) Independently of or in connection with the visits and inspections provided for in
clause (a)
above, but not more than twice a year (unless required by applicable law or an
Event of Default has occurred and is continuing in which case the Administrative Agent may cause
additional appraisals and field examinations to be undertaken at the expense of the Borrowers) upon
the request of the Administrative Agent after reasonable prior notice, the Parent Borrower will,
and will cause each Subsidiary Borrower to, permit the Administrative Agent or professionals
reasonably acceptable to the Parent Borrower (including investment bankers, consultants,
accountants, lawyers and appraisers) retained by the Administrative Agent to conduct appraisals,
commercial finance examinations and other evaluations, including, without limitation, (i) of the
Parent Borrowers practices in the computation of the Borrowing Base, and (ii) inspecting,
verifying and auditing the Collateral. The Borrowers shall pay the fees and expenses of the
Administrative Agent or such professionals with respect to such evaluations and appraisals.
9.3.
Maintenance of Insurance
. The Parent Borrower will, and will cause each Material
Subsidiary to, at all times maintain in full force and effect, pursuant to self-insurance
arrangements or with insurance companies that the Parent Borrower believes (in the good faith
judgment of the management of the Parent Borrower) are financially sound and responsible at the
time the relevant coverage is placed or renewed, insurance in at least such amounts and against at
least such risks (and with such risk retentions) as are usually insured against in the same general
area by companies engaged in the same or a similar business; and will furnish to the Lenders, upon
written request from the Administrative Agent, information presented in reasonable detail as to the
insurance so carried.
9.4.
Payment of Taxes
. The Parent Borrower will pay and discharge, and will cause
each of the Subsidiaries to pay and discharge, all material taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits, or upon any properties belonging
to it, prior to the date on which material penalties attach thereto, and all lawful material claims
in respect of any Taxes imposed, assessed or levied that, if unpaid, could reasonably be expected
to become a material Lien upon any properties of the Parent Borrower or any of the Restricted
Subsidiaries,
provided
that neither the Parent Borrower nor any of the Subsidiaries shall
be required to pay any such tax, assessment, charge, levy or claim that is being contested in good
faith and by proper proceedings if it has maintained adequate reserves with respect thereto
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to the extent required by law and in accordance with GAAP and the failure to pay could not reasonably be
expected to result in a Material Adverse Effect.
9.5.
Consolidated Corporate Franchises
. The Parent Borrower will do, and will cause each Material Subsidiary to do, or cause to be
done, all things necessary to preserve and keep in full force and effect its existence, corporate
rights and authority, except to the extent that the failure to do so could not reasonably be
expected to have a Material Adverse Effect;
provided
, however, that the Parent Borrower and
its Subsidiaries may consummate any transaction permitted under
Section 10.3
,
10.4
or
10.5
.
9.6.
Compliance with Statutes, Regulations, Etc
. The Parent Borrower will, and will
cause each Subsidiary to, comply with all applicable laws, rules, regulations and orders applicable
to it or its property, including all governmental approvals or authorizations required to conduct
its business, and to maintain all such governmental approvals or authorizations in full force and
effect, in each case except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect.
9.7.
ERISA
. Promptly after the Parent Borrower or any ERISA Affiliate knows or has
reason to know of the occurrence of any of the following events that, individually or in the
aggregate (including in the aggregate such events previously disclosed or exempt from disclosure
hereunder, to the extent the liability therefor remains outstanding), would be reasonably likely to
have a Material Adverse Effect, the Parent Borrower will deliver to the Administrative Agent and
each of the Lenders a certificate of an Authorized Officer or any other senior officer of the
Parent Borrower setting forth details as to such occurrence and the action, if any, that the Parent
Borrower or such ERISA Affiliate is required or proposes to take, together with any notices
(required, proposed or otherwise) given to or filed with or by the Parent Borrower such ERISA
Affiliate, the PBGC, a Plan participant (other than notices relating to an individual participants
benefits) or the Plan administrator with respect thereto: that a Reportable Event has occurred;
that an accumulated funding deficiency has been incurred or an application is to be made to the
Secretary of the Treasury for a waiver or modification of the minimum funding standard (including
any required installment payments) or an extension of any amortization period under Section 412 of
the Code with respect to a Plan; that a Plan having an Unfunded Current Liability has been or is to
be terminated, reorganized, partitioned or declared insolvent under Title IV of ERISA (including
the giving of written notice thereof); that a Plan has an Unfunded Current Liability that has or
will result in a lien under ERISA or the Code; that proceedings will be or have been instituted to
terminate a Plan having an Unfunded Current Liability (including the giving of written notice
thereof); that a proceeding has been instituted against the Parent Borrower or an ERISA Affiliate
pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan; that the PBGC has
notified the Parent Borrower or any ERISA Affiliate of its intention to appoint a trustee to
administer any Plan; that the Parent Borrower or any ERISA Affiliate 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.
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9.8.
Maintenance of Properties
. The Parent Borrower will, and will cause each of the Restricted Subsidiaries to, keep and
maintain all property material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, except to the extent that the failure to do so could reasonably be
expected to have a Material Adverse Effect.
9.9.
Transactions with Affiliates
. The Parent Borrower will conduct, and cause each
of the Restricted Subsidiaries to conduct, all transactions with any of its Affiliates (other than
the Parent Borrower and the Restricted Subsidiaries) on terms that are substantially as favorable
to the Parent Borrower or such Restricted Subsidiary as it would obtain in a comparable
arms-length transaction with a Person that is not an Affiliate,
provided
that the
foregoing restrictions shall not apply to (a) the payment of customary fees to the Sponsors for
management, consulting and financial services rendered to the Parent Borrower and the Subsidiaries
and customary investment banking fees paid to the Sponsors for services rendered to the Parent
Borrower and the Subsidiaries in connection with divestitures, acquisitions, financings and other
transactions, (b) transactions permitted by
Section 10.6
, (c) the payment of the
Transaction Expenses, (d) the issuance of Stock or Stock Equivalents of Holdings to the management
of the Parent Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries in
connection with the Transactions or pursuant to arrangements described in
clause (f)
of
this
Section 9.9
, (e) loans, advances and other transactions between or among the Parent
Borrower, any Subsidiary or any joint venture (regardless of the form of legal entity) in which the
Parent Borrower or any Subsidiary has invested (and which Subsidiary or joint venture would not be
an Affiliate of the Parent Borrower but for the Parent Borrowers or a Subsidiarys ownership of
Stock or Stock Equivalents in such joint venture or Subsidiary) to the extent permitted under
Section 10
, (f) employment and severance arrangements between the Parent Borrower and the
Subsidiaries and their respective officers and employees in the ordinary course of business, (g)
payments by the Parent Borrower (and any direct or indirect parent thereof) and the Subsidiaries
pursuant to the tax sharing agreements among the Parent Borrower (and any such parent) and the
Subsidiaries on customary terms to the extent attributable to the ownership or operation of the
Parent Borrower and the Subsidiaries;
provided
that in each case the amount of such
payments in any fiscal year does not exceed the amount that the Parent Borrower and its Restricted
Subsidiaries would be required to pay in respect of federal, state and local taxes for such fiscal
year were the Parent Borrower and its Restricted Subsidiaries (to the extent described above) to
pay such taxes separately from any such parent entity, (h) the payment of customary fees and
reasonable out of pocket costs to, and indemnities provided on behalf of, directors, managers,
consultants, officers and employees of the Parent Borrower and the Subsidiaries in the ordinary
course of business to the extent attributable to the ownership or operation of the Parent Borrower
and the Subsidiaries and (i) transactions pursuant to permitted agreements in existence on the
Closing Date and set forth on
Schedule 9.9
or any amendment thereto to the extent such an
amendment is not adverse, taken as a whole, to the Lenders in any material respect. The Parent
Borrower will not permit any Consolidated Entity to engage in any transaction with any Sponsor or
any Frist Shareholder (or any controlling Affiliate of any Sponsor or Frist Shareholder), to the
extent that such Consolidated Entity 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
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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 date hereof (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 Closing Date.
9.12. [
Reserved
].
9.13.
Use of Proceeds
.
(a) The Borrowers will use the proceeds of all term loans under the CF Facility, up to
$300,000,000 of the proceeds of revolving loans under the CF Facility, proceeds of the Junior Lien
Notes Offering and up to $1,750,000,000 of the proceeds of Revolving Credit Loans hereunder to
effect the Transactions.
(b) The Borrowers will use Letters of Credit, Revolving Credit Loans and Swingline Loans for
general corporate purposes (including Permitted Acquisitions).
9.14.
Further Assurances
. (a) The Parent Borrower will, and will cause each other
Credit Party to, execute any and all further documents, financing statements, agreements and
instruments, and take all such further actions (including the filing and recording of financing
statements 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.
(b) The Parent Borrower agrees that it will, or will cause its relevant Subsidiaries to, cause
to be received by the Administrative Agent the executed legal opinions of local counsel to the
Parent Borrower in Utah in form and substance reasonably satisfactory to the Administrative
Agent.as soon as commercially reasonable and by no later than the fifth Business Day after the
Closing Date or such later date as the Administrative Agent may reasonable agree.
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9.15.
Cash Management Systems
.
(a) The Credit Parties will establish and maintain the cash management systems described below
(the
Cash Management Systems
):
(i) Within 60 calendar days after the Closing Date (or such later date as the
Administration Agent may, in its sole reasonable discretion, consent to in writing), (x) the
Parent Borrower will, or will cause each of the applicable Subsidiaries to, request in
writing and otherwise take reasonable steps to provide that all Account Debtors in respect
of Governmental Accounts that constitute Collateral forward payment directly to an account
of a Borrower designated as a Government Receivables Deposit Account on
Schedule
9.15(a)
(such schedule to be delivered to the Administrative Agent on or before the
60
th
calendar day after the Closing Date (or such later date as the
Administration Agent may, in its sole reasonable discretion, consent to in writing)) (each a
Government Receivables Deposit Account
), (y) the Credit Parties will, or will cause each
of their Subsidiaries to, establish lock boxes (
Lock Boxes
) or, at the Administrative
Agents discretion, blocked accounts (
Blocked Accounts
) listed on
Schedule 9.15(c)
(such schedule to be delivered to the Administrative Agent on or before the 60
th
calendar day after the Closing Date (or such later date as the Administrative Agent may, in
its sole reasonable discretion, consent to in writing)) at one or more banks that are
reasonably acceptable to the Collateral Agent, and shall request in writing and otherwise
take reasonable steps to provide that all Account Debtors with respect to Private Accounts
that constitute Collateral forward payments directly to such Lock Boxes or Blocked Accounts
and (z) each Borrower will deposit and cause its Subsidiaries to deposit or cause to be
deposited promptly, and in any event no later than the first Business Day after the date of
receipt thereof, all cash, checks, drafts or other similar items of payment relating to or
constituting payments made in respect of any and all Collateral (whether or not otherwise
delivered to a Lock Box) into the Blocked Accounts. Until so deposited, all such payments
shall be held in trust by each Borrower and any of its Subsidiaries for the Administrative
Agent and shall not be commingled with any other funds or property of any Borrower. Within
60 calendar days after the Closing Date (or such later date as the Administrative Agent may,
in its sole reasonable discretion, consent to in writing), the Parent Borrower shall have
established a concentration account in its name (the
Concentration Account
) (with a bank
reasonably acceptable to the Administrative Agent (it being agreed that Wachovia Bank 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 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
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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 at all times following the
establishment of the Cash Management Systems pursuant to this
Section 9.15(a)
, upon
the occurrence and during the continuation of a Cash Dominion Event, the bank at which such
Blocked Account, Concentration Account or Disbursement Account is maintained shall, upon
receipt of notice by the Collateral Agent of such Cash Dominion Event, commence the process
of daily sweeps from such accounts into the Collection Account (it being understood that any
such daily sweep in respect of any cash or other amount in a Disbursement Account shall be
subject to the rights of the Borrowers to transfer, apply or otherwise use the proceeds of
any Loans hereunder for any purpose in accordance with
Section 9.13
by moving any
cash or other amount on deposit in any Disbursement Account out of such account for any such
purpose);
provided
that any amounts in the Concentration Accounts reasonably
identified (with reasonably detailed written support) to the Administrative
Agent as not constituting Collateral will be distributed as directed by the
Administrative Agent as requested by the Parent Borrower, including to one or more
Non-Controlled Accounts. Notwithstanding anything to the contrary herein or in any other
Credit Document, no cash or other amount that is disbursed or otherwise transferred from the
Disbursement Account (other than to the extent swept back into the Collection Account) shall
constitute Collateral.
(iv) Following the establishment of the Cash Management Systems pursuant to Section
9.15(a), by 10:00 a.m. (New York time) on each Business Day, each Borrower will cause the
entire available balance in each Government Receivables Deposit Account
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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, following the establishment of the Cash Management Systems pursuant to
Section 9.15
and the delivery of the applicable schedules related thereto, may amend
Schedules 9.15(a)
and
(c)
to add or replace a bank, any Government
Receivables Deposit Account, the Concentration Account, any Blocked Account or any
Disbursement Account;
provided
that (x) the Administrative Agent shall have
consented in writing in advance to the opening of such new or replacement account with the
relevant bank (which consent shall not be unreasonably withheld) and (y) prior to the time
of the opening of such account, the applicable Borrower and such bank shall have executed
and delivered to the Collateral Agent a tri-party agreement, in form and substance
reasonably satisfactory to the Collateral Agent in it sole discretion. Each Borrower shall
cease using any account to hold proceeds of Collateral promptly and in any event within 30
days (or such later date as the Administrative Agent may, in its sole reasonable discretion,
consent to in writing) following notice from the Administrative Agent to the Parent Borrower
that the creditworthiness of the bank holding such account is no longer acceptable in the
Administrative Agents reasonable credit judgment, or as promptly as practicable and in any
event within 60 days (or such later date as the Administrative Agent may, in its sole
reasonable discretion, consent to in writing) following notice from the Administrative Agent
to the Parent Borrower that the operating performance, funds transfer or availability
procedures or performance with respect to accounts or lockboxes of the bank holding such
account or Agents liability under any tri-party blocked account agreement with such
bank is no longer acceptable in the Administrative Agents reasonable credit judgment.
(vi) The Government Receivables Deposit Accounts, the Concentration Account, the
Blocked Accounts and the Disbursement Accounts (subject to the last two sentences of Section
9.15(a)(iii)) shall be cash collateral accounts, with all cash, checks and other similar
items of payment in such accounts (to the extent constituting proceeds of Accounts otherwise
constituting Collateral) securing payment of the Loans and all other Obligations, and in
which the applicable Borrower shall have granted a Lien to the Collateral Agent, on behalf
of itself and Lenders, pursuant to the Security Agreement. The Borrowers shall use
commercially reasonable efforts to ensure that all cash, checks and
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other similar items of
payment in the Government Receivables Deposit Accounts, the Concentration Account and the
Blocked Accounts are solely in respect of Accounts that otherwise constitute Collateral;
provided
that following the establishment of the Cash Management Systems pursuant to
Section 9.15(a) credit card, debit card and internet bill inquiry and payment system (IBIP)
payments received in the Concentration Account that do not constitute proceeds of Accounts
otherwise constituting Collateral shall be permitted in the Concentration Account so long as
the Borrowers use their commercially reasonable efforts to distribute such amounts to a
Non-Controlled Account within three (3) Business Days of receipt thereof.
(vii) All amounts deposited in the Collection Account shall be deemed received by the
Administrative Agent in accordance with
Section 5
and shall be applied (and
allocated) by the Administrative Agent in accordance with
Section 5
. In no event
shall any amount be so applied unless and until such amount shall have been credited in
immediately available funds to the Collection Account.
(viii) The Borrowers shall and shall cause their respective Affiliates, officers,
employees, agents, directors or other Persons acting for or in concert with a Borrower (each
a
Related Person
) to (x) hold in trust for the Administrative Agent, for the benefit of
itself and Lenders, all checks, cash and other items of payment received by a Borrower or by
a Related Person on behalf of a Borrower in respect of Accounts that constitute Collateral,
and (y) following the establishment of the Cash Management Systems pursuant to
Section
9.15(a)
, within 1 Business Day after receipt by a Borrower or by a Related Person on
behalf of a Borrower of any checks, cash or other items of payment in respect of Accounts
that constitute Collateral, deposit the same into a Blocked Account or the Concentration
Account. Each Borrower and each Related Person thereof acknowledges and agrees that all
cash, checks or other items of payment constituting proceeds of Collateral are part of the
Collateral. Following the establishment of the Cash Management Systems pursuant to
Section 9.15(a)
, all proceeds of the sale or other disposition of any Collateral,
shall be deposited directly into a Blocked Account or the Concentration Account (or if
proceeds of Government Accounts, into a Government Receivables Deposit Account).
(b)
(i) During the continuance of a Cash Dominion Event following the establishment of the
Cash Management Systems pursuant to
Section 9.15(a)
, the Borrowers shall provide the
Collateral Agent with an accounting of the contents of the Government Receivables
Deposit Accounts, the Blocked Accounts and the Concentration Account, which shall identify, to
the reasonable satisfaction of the Collateral Agent, the proceeds from the Collateral which were
deposited into a Blocked Account and swept to the Concentration Account.
(ii) Within 1 Business Day of the occurrence of a Cash Dominion Event following the
establishment of the Cash Management Systems pursuant to
Section 9.15(a)
, the Borrowers
shall deposit into the Collection Account an amount equal to the entire amount of cash constituting
Collateral held in any Non-Controlled Account.
(c) Upon the occurrence and during the continuance of a Cash Dominion Event following the
establishment of the Cash Management Systems pursuant to
Section 9.15(a)
,
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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 establishment of the Cash Management Systems pursuant to
Section
9.15(a)
, (i) the Borrowers have no right of withdrawal from the Concentration Account (subject
to the proviso to the last sentence of
Section 9.15(a)(iii)
), (ii) the funds on deposit in
the Concentration Account shall at all times be collateral security for all of the Obligations
(other than to the extent such funds do not constitute proceeds of Accounts that are otherwise
Collateral) and (iii) the funds on deposit in the Concentration Account shall be applied as
provided in this Agreement. In the event that, notwithstanding the provisions of this
Section
9.15
, any Borrower receives or otherwise has dominion and control of any proceeds or
collections of Accounts that otherwise constitute Collateral outside of the Government Receivables
Deposit Accounts, the Concentration Account, any Blocked Account and any Disbursement Account, such
proceeds and collections shall be held in trust by such Borrower for the Collateral Agent and
shall, not later than the Business Day after receipt thereof, be deposited into the Concentration
Account or dealt with in such other fashion as such Borrower may be instructed by the Collateral
Agent.
(d) [Intentionally Omitted].
(e) (i) Annexed hereto as
Schedule 9.15(e)
(such schedule to be delivered to the
Administrative Agent on or before the 60
th
calendar day after the Closing Date (or such
later date as the Administration Agent may, in its sole reasonable discretion, consent to in
writing)) is a list as of the date such Schedule is delivered, of all arrangements to which any
Borrower is a party with respect to the payment to such Borrower of the proceeds of all credit card
charges for services by such Borrower.
(ii) 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 following the establishment of the
Cash Management Systems pursuant to
Section 9.15(a)
, the Borrowers will be prohibited from
depositing cash constituting Collateral in any deposit account other than Government Receivables
Deposit Accounts, Blocked Accounts, the Concentration Account, Disbursement Accounts and the
Collection Account.
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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:
10.1.
Limitation on Indebtedness
. The Parent Borrower will not, and will not permit
any of the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness,
except:
(a) (w) Indebtedness arising under the Credit Documents, (x) Indebtedness arising under
any Permitted Receivables Financing in an aggregate principal amount not to exceed, together
with Indebtedness arising under the Credit Documents, $2,000,000,000, (y) Indebtedness
arising under the CF Facility in an aggregate principal amount not to exceed $14,800,000,000
at any time outstanding (plus additional Indebtedness under
subclauses (x)
or
(y)
above or under any amendment thereto, which together with any New Revolving
Credit Commitments incurred pursuant to
Section 2.14
of this Agreement, 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 with respect to Indebtedness referred to in
subclauses (w), (x)
and
(y)
to such Subsidiaries;
(b) Subject to compliance with
Section 10.5
, Indebtedness of the Parent
Borrower or any Restricted Subsidiary owed to the Parent Borrower or any Restricted
Subsidiary;
provided
that, in each case, all such Indebtedness of any Credit Party
owed to any Person that is not a Credit Party shall be subordinated to the Obligations of
such Credit Party on customary terms;
(c) Indebtedness in respect of any bankers acceptance, bank guarantees, letter of
credit, warehouse receipt or similar facilities entered into in the ordinary course of
business (including in respect of workers compensation claims, health, disability or other
employee benefits or property, casualty or liability insurance or self-insurance or other
Indebtedness with respect to reimbursement-type obligations regarding workers compensation
claims);
(d) subject to compliance with
Section 10.5
, Guarantee Obligations incurred by
(i) Restricted Subsidiaries in respect of Indebtedness of the Parent Borrower or other
Restricted Subsidiaries that is permitted to be incurred under this Agreement (except to the
extent of any express restriction on Guarantee Obligations relating to such Indebtedness
provided for herein) and (ii) the Parent Borrower in respect of Indebtedness of Restricted
Subsidiaries that is permitted to be incurred under this Agreement,
provided
that,
except as provided in
clauses (j)
and
(k)
below, there shall be no guarantee
by a Restricted Subsidiary that is not a Subsidiary Borrower of any Indebtedness of a Credit
Party;
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(e) Guarantee Obligations (i) incurred in the ordinary course of business in respect of
obligations of (or to) suppliers, customers, franchisees, lessors and licensees or (ii)
otherwise constituting Investments permitted by
Sections 10.5(g)(ii)
,
10.5(i)
, or
10.5(q)
;
(f) (i) Indebtedness (including Indebtedness arising under Capital Leases) incurred
within 270 days of the acquisition, construction or improvement of fixed or capital assets
to finance the acquisition, construction or improvement of such fixed or capital assets,
(ii) Indebtedness arising under Capital Leases entered into in connection with Permitted
Sale Leasebacks and (iii) Indebtedness arising under Capital Leases, other than Capital
Leases in effect on the date hereof 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 date hereof listed on
Schedule 10.1
(other than Retained Indebtedness with a stated final maturity (as of the Closing Date)
prior to the Final Maturity Date), (ii) Indebtedness existing on the Closing Date (after
giving effect to the Transactions) and owed by the Parent Borrower or any Restricted
Subsidiary to the Parent Borrower or any Restricted Subsidiary, and any Guarantee
Obligations in respect thereof, but only for so long as such Indebtedness or any
refinancing, refunding or renewal thereof permitted by this
subclause(ii)
is held by
the Parent Borrower, such Restricted Subsidiary or a Credit Party and, in the case of each
of the preceding
subclauses (i)
and
(ii)
, any modification, replacement,
refinancing, refunding, renewal or extension thereof (or, in the case of this
subclause
(ii)
only, any intercompany transfer of creditor positions in respect thereof pursuant
to intercompany debt restructurings);
provided
that all such Indebtedness arising as
a result of any such transfer of creditor positions as contemplated by
subclause
(ii)
of any Credit Party owed to any Person that is not a Credit Party shall be
subordinated to the Obligations of such Credit Party on customary terms;
provided
,
further
, that, except to the extent otherwise expressly permitted
hereunder, in the case of any such modification, replacement, refinancing, refunding,
renewal or extension (but not any such transfer or creditor positions), (x) the principal
amount thereof does not exceed the principal amount thereof outstanding immediately prior to
such modification, replacement, refinancing, refunding, renewal or extension, except by an
amount equal to the unpaid accrued interest and premium thereon plus other reasonable
amounts paid and fees and expenses incurred in connection with such modification,
replacement, refinancing, refunding, renewal or extension, (y) the direct and contingent
obligors with respect to such Indebtedness are not changed (except that any refinancing of
Retained Indebtedness may provide for guarantees by the Subsidiary Borrowers on a
subordinated basis to such Subsidiary Borrowers obligations hereunder), and (z) no
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portion of such Indebtedness matures prior to the Final Maturity Date (except in the case of a
refinancing of Indebtedness pursuant to
subclause (ii)
) and (iii) Retained
Indebtedness with a stated final maturity (as of the Closing Date) prior to the Final
Maturity Date and any modification, refinancing, refunding renewal or extension thereof;
provided
that (x) the principal amount thereof does not exceed the principal amount
thereof outstanding immediately prior to such modification, replacement, refinancing,
refunding, renewal or extension, except by an amount equal to the unpaid accrued interest
and premium thereon plus other reasonable amounts paid and fees and expenses incurred in
connection with such modification, replacement, refinancing, refunding, renewal or
extension, (y) no portion of such Indebtedness matures prior to the stated final maturity of
such Retained Indebtedness as of the Closing Date and (z) no portion of such Indebtedness
shall be issued by or guaranteed by any Restricted Subsidiary unless such Restricted
Subsidiary is a Subsidiary Borrower;
(h) Indebtedness in respect of Hedge Agreements;
(i) Indebtedness in respect of (i) Junior Lien Notes in an aggregate principal amount
not to exceed $5,700,000,000 (or such lesser aggregate principal amount as may be incurred
on the Closing Date) plus, in respect of the Toggle Notes, the PIK Interest Amount, (ii) any
modification, replacement, refinancing, refunding, renewal or extension of Indebtedness
referred to in the foregoing
subclause (i)
that constitutes Permitted Junior Lien
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;
(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),
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(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 10.9 of the CF Agreement for the most recently ended Test Period and (B)
except for Indebtedness consisting of Capital Lease Obligations, revenue bonds,
purchase money Indebtedness or mortgages or other Liens on specific assets, (1) no
portion of such Indebtedness matures prior to the Final Maturity Date, 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
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to the Collateral Agent) and a supplemental acknowledgement to the Intercreditor Agreement,
in each case to the extent required under
Section 9.11
;
provided
that the requirements of this
subclause (x)
shall not apply to (I) an
aggregate amount at any time outstanding of up to $600,000,000 of the sum of (1)
such Indebtedness (and modifications, replacements, refinancing, refundings,
renewals and extensions thereof pursuant to
subclause (ii)
below) and (2)
all Indebtedness as to which
clause (I)
of the proviso to
clause
(j)(i)(y)
above then applies, and
(y) (A) after giving Pro Forma Effect to the incurrence of such Indebtedness
and the application of proceeds thereof, the Parent Borrower is in compliance with
Section 10.9 of the CF Agreement for the most recently ended Test Period and (B) (1)
no portion of such Indebtedness matures prior to the Final Maturity Date, 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) 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
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refinancing, refunding, renewal or extension and (y) the direct and contingent obligors with
respect to such Indebtedness are not changed;
(n) (i) additional Indebtedness and (ii) any refinancing, refunding, renewal or
extension of any Indebtedness specified in
subclause (i)
above;
provided
that the aggregate amount of Indebtedness incurred and remaining outstanding pursuant to
this
clause (n)
shall not at any time exceed $1,500,000,000 (of which amount, no
more than $500,000,000 shall be Indebtedness of any Restricted Subsidiary that is not a
Borrower);
(o) Indebtedness in respect of (i) Permitted Additional Debt to the extent that the Net
Cash Proceeds (as defined in the CF Agreement) therefrom are, immediately after the receipt
thereof, applied to permanently reduce Indebtedness of one or more Borrowers to the extent
required by the CF Agreement and (ii) any refinancing, refunding, renewal or extension of
any Indebtedness specified in
subclause (i)
above,
provided
that, except to
the extent otherwise permitted hereunder, (x) the principal amount of any such Indebtedness
is not increased above the principal amount thereof outstanding immediately prior to such
refinancing, refunding, renewal or extension, (y) the direct and contingent obligors with
respect to such Indebtedness are not changed and (z) if the Indebtedness being refinanced,
or any guarantee thereof, constituted Subordinated Indebtedness, then such replacement or
refinancing Indebtedness, or such guarantee, respectively, shall be subordinated to the
Obligations to substantially the same extent;
(p) Indebtedness in respect of overdraft facilities, employee credit card programs,
netting services, automatic clearinghouse arrangements and other cash management and similar
arrangements in the ordinary course of business;
(q) unsecured Indebtedness in respect of obligations of the Parent Borrower or any
Restricted Subsidiary to pay the deferred purchase price of goods or services or progress
payments in connection with such goods and services,
provided
that such obligations
are incurred in connection with open accounts extended by suppliers on customary trade terms
in the ordinary course of business and not in connection with the borrowing of money or
Hedge Agreements;
(r) Indebtedness arising from agreements of the Parent Borrower or any Restricted
Subsidiary providing for indemnification, adjustment of purchase price or similar
obligations, in each case entered into in connection with the disposition of any business,
assets or 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
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in supply
agreements, in each case arising in the ordinary course of business and not in connection
with the borrowing of money or Hedge Agreements;
(t) Indebtedness representing deferred compensation to employees of the Parent Borrower
(or any direct or indirect parent thereof) and the Restricted Subsidiaries incurred in the
ordinary course of business;
(u) Indebtedness consisting of promissory notes issued by any Borrower or any Guarantor
(as defined in the CF Agreement) to current or former officers, managers, consultants,
directors and employees (or their respective spouses, former spouses, successors, executors,
administrators, heirs, legatees or distributees) to finance the purchase or redemption of
Stock or Stock Equivalents of the Parent Borrower (or any direct or indirect parent thereof)
permitted by
Section 10.6(b)
;
(v) Indebtedness consisting of obligations of the Parent Borrower and the Restricted
Subsidiaries under deferred compensation or other similar arrangements to officers,
employees and directors incurred by such Person in connection with the Transactions 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; and
(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.
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
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.
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10.2.
Limitation on Liens
. The Parent Borrower will not, and will not permit any of
the Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any property
or assets of any kind (real or personal, tangible or intangible) of the Parent Borrower or any
Restricted Subsidiary, whether now owned or hereafter acquired, except:
(a) Liens arising under the Credit Documents;
(b) Liens securing the CF Facility arising under CF Documents;
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 (it being
understood that this condition is satisfied as a result of the receipt by the Administrative
Agent of the Intercreditor Agreement pursuant to Section 6.1(d));
(c) Liens on the Junior Lien Notes Collateral securing the Junior Lien Notes and other
Permitted Additional Debt permitted by
clauses (i)
,
(k)
or
(o)
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 Junior Lien Notes, an intercreditor agreement reasonably
acceptable to the Collateral Agent providing that the Lien on the Shared Receivables
Collateral securing such Indebtedness shall rank junior to the Lien on the Shared
Receivables Collateral securing the Obligations on a basis at least as substantially
favorable to the Lenders as the basis on which the Lien securing the Junior Lien Notes ranks
junior to the Lien on the Shared Receivables Collateral securing the Obligations on the
Closing Date pursuant to the Intercreditor Agreement) (it being understood that, with
respect to the Junior Lien Notes, this condition is satisfied as a result of the receipt by
the Administrative Agent of the Intercreditor Agreement pursuant to Section 6.1(d));
(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 date hereof 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
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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)
, 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;
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(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 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
Receivable Collateral comply with the proviso to
clause (c)
above); and
(s) Liens on accounts receivable and related assets incurred in connection with a
Permitted Receivables Financing.
Notwithstanding the foregoing, (A) the Parent Borrower will not, and will not permit any
Restricted Subsidiary to, create, incur, assume or suffer to exist any Lien on any Collateral other
than (i) Liens securing the Obligations, (ii) Liens otherwise permitted by
Sections 10.2(b),
(c), (d), (h), (k) and (o)
and (iii) additional Liens permitted hereunder pursuant to any other
clause of
Section 10.2
(other than clause (s)) attaching to Collateral having an aggregate
fair value not to exceed $20.0 million at any time outstanding, and (B) the Parent Borrower will
not permit any 1993 Indenture Restricted Subsidiary to create, incur, assume or suffer to exist any
Lien on any of its assets other than (i) Liens permitted by the definition of Permitted Liens,
(ii) Liens in favor of the Credit Parties to the extent permitted under section 1107 of the 1993
Indenture and (iii) additional Liens otherwise permitted by this
Section 10.2
so long as
the aggregate principal amount of the obligations secured thereby, when aggregated (without
duplication) with (I) the aggregate principal amount of Indebtedness of 1993 Indenture Restricted
Subsidiaries (other than Indebtedness owing to a U.S. Credit Party (as defined in the CF Agreement)
or another 1993 Indenture Restricted Subsidiary to the extent permitted under section 1107 of the
1993 Indenture) and (II) the aggregate principal amount of Indebtedness (other than the Obligations
(as defined in the CF Agreement) secured by Liens on Principal Properties, does not exceed at any
time outstanding the lesser of (x) $600,000,000 and (y) 5% of Consolidated Net Tangible Assets (as
defined in the 1993 Indenture as in effect on the Closing Date) determined as of the date of such
incurrence.
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10.3.
Limitation on Fundamental Changes
. Except as expressly permitted by
Section
10.4
or
10.5
, the Parent Borrower will not, and will not permit any of the Restricted
Subsidiaries to, enter into any merger, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or convey, sell, lease, assign,
transfer or otherwise dispose of, all or substantially all its business units, assets or other
properties, except that:
(a) so long as no Default or Event of Default would result therefrom, any Subsidiary of
the Parent Borrower or any other Person may be merged, amalgamated or consolidated with or
into the Parent Borrower,
provided
that (i) except as permitted by
subclause
(ii)
below, the Parent Borrower shall be the continuing or surviving corporation, (ii)
if the Person formed by or surviving any such merger, amalgamation or consolidation is not
the Parent Borrower (such other Person, the
Successor Borrower
), the Successor Borrower
shall be an entity organized or existing under the laws of the United States, any state
thereof, the District of Columbia or any territory thereof (such Parent Borrower or such
Successor Borrower, as the case may be, being herein referred to as the
Successor Parent
Borrower
), (iii) any Successor Borrower shall expressly assume all the obligations of the
Parent Borrower under this Agreement and the other Credit Documents pursuant to a supplement
hereto or thereto in form reasonably satisfactory to the Administrative Agent, (iv) each
Subsidiary Borrower, unless it is the other party to such merger or consolidation, shall
have by a supplement to this Agreement confirmed that its obligation hereunder shall apply
to any Successor Borrowers obligations under this Agreement, (v) each Subsidiary grantor
and each Subsidiary pledgor, unless it is the other party to such merger or consolidation,
shall have by a supplement to the Security Agreement confirmed that its obligations
thereunder shall apply to any Successor Borrowers obligations under this Agreement, (vi)
the Successor Parent Borrower shall be in compliance, on a Pro Forma Basis after giving
effect to such merger or consolidation, with the covenant set forth in Section 10.9 of the
CF Agreement for the most recent Test Period, 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
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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 10.9 of the CF Agreement for the most recently ended Test Period, and (vi) Parent
Borrower shall have delivered to the Administrative Agent an officers certificate stating
that such merger, amalgamation or consolidation complies with this Agreement and, in the
case of any merger, amalgamation or consolidation involving any Borrower, any such
supplements to any Credit Document as necessary to preserve the perfection and priority of
the Liens under the applicable Security Documents;
(c) any Restricted Subsidiary that is not a Borrower or a 1993 Indenture Restricted
Subsidiary may sell, lease, transfer or otherwise dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to the Parent Borrower or any other Restricted
Subsidiary;
(d) any Subsidiary may sell, lease, transfer or otherwise dispose of any or all of its
assets (other than any Principal Property owned by a Subsidiary that is not a Subsidiary
Borrower) (upon voluntary liquidation or otherwise) to any Borrower,
provided
that
the consideration for any such disposition by any Person other than a Subsidiary Borrower
shall not exceed the fair value of such assets; and
(e) any Restricted Subsidiary may liquidate or dissolve if (i) the Parent Borrower
determines in good faith that such liquidation or dissolution is in the best interests of
the Parent Borrower and is not materially disadvantageous to the Lenders, (ii) to the extent
such Restricted Subsidiary is a Borrower or a 1993 Indenture Restricted Subsidiary, any
assets or business not otherwise disposed of or transferred in accordance with
Section
10.4
or
10.5
or, in the case of any such business, discontinued, shall be
transferred to, or otherwise owned or conducted by, a Borrower (or, in the case of a
liquidation or dissolution of a 1993 Indenture Restricted Subsidiary, another 1993 Indenture
Restricted Subsidiary) after giving effect to such liquidation or dissolution.
10.4.
Limitation on Sale of Assets
. (i) The Parent Borrower will not, and will not
permit any of the Restricted Subsidiaries to, convey, sell, lease, assign, transfer or otherwise
dispose of any of its property, business or assets (including receivables, Stock and Stock
Equivalents of any other Person and leasehold interests), whether 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
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Parent Borrower will not permit any Restricted Subsidiary to issue any Stock and Stock Equivalents,
except, in each case:
(a) the Parent Borrower and the Restricted Subsidiaries may sell, transfer or otherwise
dispose of (i) inventory, used or surplus equipment, vehicles and other assets in the
ordinary course of business and (ii) Permitted Investments;
(b) Restricted Subsidiaries may issue Stock and Stock Equivalents and the Parent
Borrower and the Restricted Subsidiaries may sell, transfer or otherwise dispose of assets
(each of the foregoing, a
Disposition
), excluding a Disposition of accounts receivable,
except in connection with the Disposition of any business to which such accounts receivable
relate, for fair value in an aggregate amount pursuant to this
clause (b)
, when
aggregated with the amount of Permitted Sale Leaseback Transactions consummated pursuant to
Section 10.4(h)
, not to exceed $6,600,000,000,
provided
that (i) with
respect to any Disposition pursuant to this
clause (b)
for a purchase price in
excess of $100,000,000, the Parent Borrower or a Restricted Subsidiary shall receive not
less than 75% of such consideration in the form of cash or Permitted Investments;
provided
that for the purposes of this
clause (i)
the following shall be
deemed to be cash: (A) any liabilities (as shown on the Parent Borrowers or such Restricted
Subsidiarys most recent balance sheet provided hereunder or in the footnotes thereto) of
the Parent Borrower or such Restricted Subsidiary, other than liabilities that are by their
terms subordinated to the payment in cash of the Obligations, that are assumed by the
transferee with respect to the applicable Disposition and for which the Parent Borrower and
all of the Restricted Subsidiaries shall have been validly released by all applicable
creditors in writing, (B) any securities received by the Parent Borrower or such Restricted
Subsidiary from such transferee that are converted by the Parent Borrower or such Restricted
Subsidiary into cash (to the extent of the cash received) within 180 days following the
closing of the applicable Disposition and (C) any Designated Non-Cash Consideration received
by the Parent Borrower or such Restricted Subsidiary in respect of such Disposition having
an aggregate fair market value, taken together with all other Designated Non-Cash
Consideration received pursuant to this
Section 10.4(b)
and
Section 10.4(c)
that is at that time outstanding, shall not be in excess of the sum of (x) 1.5% of
Consolidated Total Assets at the time of the receipt of such Designated Non-Cash
Consideration,
plus
(y) $100,000,000, with the fair market value of each item of
Designated Non-Cash Consideration being measured at the time received and without giving
effect to subsequent changes in value, (ii) with respect to any such sale, transfer or
disposition (or series of related sales, transfers or dispositions), the Parent Borrower
shall be in compliance, on a Pro Forma Basis after giving effect to such sale, transfer or
disposition, with the covenant set forth in Section 10.9 of the CF Agreement for the most
recently ended Test Period 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
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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)
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
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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 $5,000,000; and
(l) a Disposition of any asset between or among the Parent Borrower and/or its
Restricted Subsidiaries as a substantially concurrent interim Disposition in connection with
a Disposition otherwise permitted pursuant to
clauses (a)
through
(k)
above.
10.5.
Limitation on Investments
. The Parent Borrower will not, and will not permit
any of the Restricted Subsidiaries to, make any Investment except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Permitted Investments;
(c) loans and advances to officers, directors and employees of the Parent Borrower (or
any direct or indirect parent thereof) or any of its Subsidiaries or to Physicians with whom
the Parent Borrower or any of its Subsidiaries have contractual relationships (i) for
reasonable and customary business-related travel, entertainment, relocation and analogous
ordinary business purposes (including employee payroll advances), (ii) in connection with
such Persons purchase of Stock or Stock Equivalents of the Parent Borrower (or any direct
or indirect parent thereof) to the extent that the amount of such loans and advances are
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 date hereof 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 date hereof;
(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;
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(f) Investments to the extent that payment for such Investments is made with Stock or
Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Parent Borrower or any Restricted Subsidiary in any
Subsidiary Borrower, (b) between or among 1993 Indenture Restricted Subsidiaries, (c)
between or among Restricted Subsidiaries that are neither Subsidiary Borrowers nor 1993
Indenture Restricted Subsidiaries and (d) consisting of intercompany Investments incurred in
the ordinary course of business in connection with the cash management operations (including
with respect to intercompany self-insurance arrangements) among the Parent Borrower and the
Restricted Subsidiaries (
provided
that any such intercompany Investment in
connection with cash management arrangements by a Credit Party in a Subsidiary that is not a
Credit Party is in the form of an intercompany loan or advance) and (ii) (a) by Credit
Parties in any Restricted Subsidiary that is not a Credit Party, (b) by 1993 Indenture
Restricted Subsidiaries in any Restricted Subsidiary that is not a 1993 Indenture Restricted
Subsidiary or (c) by any Restricted Subsidiary that is neither a Credit Party nor a 1993
Indenture Restricted Subsidiary in any 1993 Indenture Restricted Subsidiary, in each case
valued at the fair market value (determined by the Parent Borrower acting in good faith) of
such Investment at the time each such Investment was made, in an aggregate amount pursuant
to this
subclause (ii)
that, at the time each such Investment is made, would not
exceed (x) the excess of (A) $1,500,000,000 over (B) the amount of Investments outstanding
at such time in reliance on
Section 10.5(i)(ii)(x)
at such time
plus
(y) the
Applicable Amount at such time;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including, but not limited to (i) minority Investments and Investments
in Unrestricted Subsidiaries and (ii) Investments in joint ventures (regardless of the form
of legal entity) or similar Persons that do not constitute Restricted Subsidiaries), in each
case, as valued at the fair market value (determined by the Parent Borrower acting in good
faith) of such Investment at the time each such Investment is made, in an aggregate amount
pursuant to this
clause (i)
that, at the time each such Investment is made, would
not exceed the sum of (x) the excess of (A) $1,500,000,000 over (B) the amount of
Investments outstanding at such time in reliance on
Section 10.5(g)(ii)(x)
at such
time,
plus
(y) the Applicable Amount at such time
plus
(z) without
duplication of any amount that increased the JV Distribution Amount, an amount equal to
any repayments, interest, returns, profits, distributions, income and similar amounts
actually received in cash in respect of any such Investment (which amount referred to in
this
subclause (z)
shall not exceed the amount of such Investment valued at the fair
market value of such Investment at the time such Investment was made);
(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);
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(l) Investments permitted under
Section 10.6
;
(m) loans and advance to any direct or indirect parent of the Parent Borrower in lieu
of, and not in excess of the amount of, dividends to the extent permitted to be made to such
parent in accordance with
Section 10.6
;
(n) Investments consisting of extensions of credit in the nature of accounts receivable
or notes receivable arising from the grant of trade credit in the ordinary course of
business, and Investments received in satisfaction or partial satisfaction thereof from
financially troubled account debtors and other credits to suppliers in the ordinary course
of business;
(o) Investments in the ordinary course of business consisting of endorsements for
collection or deposit and customary trade arrangements with customers consistent with past
practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Parent Borrower or any Restricted Subsidiary of leases
(other than Capital Leases) or of other obligations that do not constitute Indebtedness, in
each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation)
after the Closing Date otherwise in accordance with this
Section 10.5
to the extent
that such Investments were not made in contemplation of or in connection with such
acquisition, merger or consolidation and were in existence on the date of such acquisition,
merger or consolidation;
(s) Investments by 1993 Indenture Restricted Subsidiaries of accounts receivable and
related assets in ABL Entities;
(t) Investments arising out of or in connection with any Permitted Receivables
Financing;
(u) Investments by the Parent Borrower in the European Subsidiary Borrower (as defined
in the CF Agreement) arising as a result of any payment made by the Parent Borrower in
respect of European Tranche Term Loans (as defined in the CF Agreement) pursuant to Section
5.2(a)(ii)
of the CF Agreement;
(v) Investments by the Parent Borrower and the Restricted Subsidiaries in any joint
venture (regardless of the form of legal entity) or Restricted Subsidiary in an aggregate
amount at any time outstanding not to exceed the sum of (A) $600,000,000
plus
(B)
the JV Distribution Amount
plus
(C) without duplication of any amount that increased
the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits,
distributions, income and similar amounts actually received in cash in respect of any such
Investment (which amount referred to in this
subclause (C)
shall not exceed the
amount of such Investment valued at the fair market value of such Investment at the time
such
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Investment was made);
provided
, that the aggregate amount of Investments made
in reliance on
subclause (B)
or
(C)
above by Credit Parties shall not exceed
the aggregate of the amounts referred to in such subclauses that were directly or indirectly
received by Credit Parties;
(w) any redemption by Healthtrust, or transfer to Healthtrust or the Parent Borrower,
of shares of Stock of Healthtrust held by Columbia SDH and Epic Properties;
(x) intercompany transfers of creditor positions in respect of Indebtedness outstanding
pursuant to Sections
10.1(a)
,
10.1(g)(ii)
or
10.1(i)
; and
(y) Investments constituting Indebtedness outstanding pursuant to Section
10.1(a)(z)
and
10.1(i)(z)
;
10.6.
Limitation on Dividends
. The Parent Borrower will not declare or pay any
dividends (other than dividends payable solely in its Qualified Equity Interests) or return any
capital to its stockholders (including any option holders) or make any other distribution, payment
or delivery of property or cash to its stockholders as such, or redeem, retire, purchase or
otherwise acquire, directly or indirectly, for consideration, any shares of any class of its Stock
or Stock Equivalents or the Stock or Stock Equivalents of any direct or indirect parent now or
hereafter outstanding, or set aside any funds for any of the foregoing purposes, or permit any of
the Restricted Subsidiaries to purchase or otherwise acquire for consideration (other than in
connection with an Investment permitted by
Section 10.5
) any Stock or Stock Equivalents of
the Parent Borrower, now or hereafter outstanding (all of the foregoing,
dividends
),
provided
that, so long as no Default or Event of Default exists or would exist after giving
effect thereto:
(a) the Parent Borrower may (or may pay dividends to permit any direct or indirect
parent thereof to) redeem in whole or in part any of its (or such parents) Stock or Stock
Equivalents for another class of its Stock or Stock Equivalents or with proceeds from
substantially concurrent equity contributions or issuances of new Stock or Stock Equivalents
(other than any amount received by the Parent Borrower in satisfaction of the requirements
of the first sentence of
Section 10.7(d)
),
provided
that such new Stock or
Stock Equivalents contain terms and provisions at least as advantageous to the Lenders
in all respects material to their interests as those contained in the Stock or Stock
Equivalents redeemed thereby;
(b) the Parent Borrower may (or may pay dividends to permit any direct or indirect
parent thereof to) repurchase shares of its (or such parents) Stock or Stock Equivalents
held by officers, directors and employees of the Parent Borrower and its Subsidiaries (other
than the Frist Shareholders), so long as such repurchase is pursuant to, and in accordance
with the terms of, management and/or employee stock plans, stock subscription agreements or
shareholder agreements;
(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
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purchased in reliance on
Section 10.7(a)(i)(x)
,
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 Holdings is
a direct or indirect parent of the Parent Borrower, distributions equal to any
taxable income of Holdings resulting from the hedging arrangements entered into by
Holdings on or about September 13, 2006 and with respect to which the Parent
Borrower will be 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;
(iv) to any direct or indirect parent of the Parent Borrower to finance any
Investment permitted to be made by the Parent Borrower or a Restricted Subsidiary
pursuant to
Section 10.5
;
provided
that (A) such dividend shall be
made substantially concurrently with the closing of such Investment, (B) such parent
shall, immediately following the closing thereof, cause (1) all property acquired
(whether assets, Stock or Stock Equivalents) to be contributed to the Parent
Borrower or such Restricted Subsidiary or (2) the merger (to the extent permitted in
Section 10.5
) of the Person formed or acquired into the Parent Borrower or
its Restricted Subsidiaries and (C) the Parent Borrower shall comply with
Section 9.11
to the extent applicable; and
(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
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with respect to
such Qualified Holdings Debt, so long as on a Pro Forma Basis after giving effect to the
payments of such dividends, (i) the Parent Borrower shall be in compliance with the covenant
set forth in Section 10.9 of the CF Agreement for the most recently ended Test Period 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.
10.7.
Limitations on Debt Payments and Amendments; Matters Relating to Required Additional
Equity Investments
.
(a) The Parent Borrower will not, and will not permit any Restricted Subsidiary 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 so long as no Default or Event of Default shall have occurred and be
continuing at the date of such prepayment, repurchase, redemption or other defeasance or would
result therefrom, the Parent Borrower or any Restricted Subsidiary may prepay, repurchase or redeem
Junior Indebtedness (i) for an aggregate price not in excess of (x) $600,000,000
less
(y)
the amount of Restricted Payments made pursuant to
Section 10.6(c)(i)
,
plus
(z) the
Applicable Amount at the time of such prepayment, repurchase or redemption (ii) in the case of
Subordinated Indebtedness, with the proceeds of Subordinated Indebtedness that (I) is permitted by
Section 10.1
(other than
Section 10.1(o)
) and (II) if such Junior Indebtedness
being repaid, repurchased or redeemed is Subordinated Indebtedness, has terms not materially less
advantageous to the Lenders than those of the Indebtedness being refinanced or (iii) in the case of
Permitted Junior Lien Debt, with the proceeds of refinancing Indebtedness otherwise permitted by
Section 10.1
constituting Permitted Additional Debt or Permitted Junior Lien Debt.
Notwithstanding the foregoing, nothing in this
Section 10.7
shall prohibit (A) the
repayment or prepayment of intercompany Subordinated Indebtedness owed among the Parent Borrower
and, the Restricted Subsidiaries, in either case unless an Event of Default has occurred and is
continuing and the Parent Borrower has received a notice from the Collateral Agent instructing it
not to make or permit any such repayment or prepayment, or (B)
transfers of creditor positions in connection with intercompany debt restructurings so long as
such Indebtedness is permitted by
Section 10.1
after giving effect to such transfers. For
the avoidance of doubt, nothing in this
Section 10.7
shall restrict the making of any
AHYDO catch up payment in respect of the Junior Lien Notes.
(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 Closing Date in connection with 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 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, 2010 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 Term Loan Maturity
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Date (as
defined in the CF Agreement) (and if at such time all Tranche A Term Loans (as defined in the CF
Agreement) have been repaid in full, the Tranche B Term Loan Maturity Date (as defined in the CF
Agreement)) if on a Pro Forma Basis after giving effect to such repayment the Consolidated First
Lien Debt to Consolidated EBITDA Ratio for the most recent Test Period is no greater than 4.0:1 and
(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)
.
(c) The Parent Borrower will not waive, amend, modify, terminate or release any Junior
Indebtedness or any Retained Indebtedness to the extent that any such waiver, amendment,
modification, termination or release would be adverse to the Lenders in any material respect.
(d) The Parent Borrower shall have received (i) the Option Note Amount from either (x) the
repayment or prepayment of the Option Note (including through the cancellation pursuant to the
Merger of Stock or Stock Equivalents of the Parent Borrower owned by the issuer of, and having a
value equivalent to, the Option Note) or (y) contributions to its common equity, in either case no
later than December 2, 2006 and (ii) additional common equity in an amount equal to the Delayed
Equity Amount no later than March 31, 2007. Prior to the satisfaction of the requirements of
clause (i)
of the first sentence of this
Section 10.7(d)
, the Parent Borrower will
not permit any waiver, amendment, modification or termination of the Option Note or fail to enforce
its right under the Option Note if the result of any of the foregoing would be adverse in any
material respect to the Lenders. Prior to the satisfaction of the requirements of clause (ii) of
the fist sentence of this
Section 10.7 (d)
, the Parent Borrower will not permit any waiver,
amendment, modification or termination of the Delayed Equity Arrangements or fail to enforce its
right under the Delayed Equity Arrangements if the result of any of the foregoing would be adverse
in any material respect to the Lenders.
(e) Epic Properties and ColumbiaSDH shall not permit any consensual Liens to exist on any
shares of Stock of Healthtrust owned by them (other than Liens in favor of
the Parent Borrower or Healthtrust). Following the occurrence and during the continuance of
an Event of Default, the Parent Borrower shall not permit Healthtrust to make any distribution on,
or redemption of, Stock of Healthtrust owned by Epic Properties or ColumbiaSDH unless the
Collateral Agent shall have consented thereto.
10.8.
Limitations on Sale Leasebacks
. The Parent Borrower will not, and will not
permit any of the Restricted Subsidiaries to, enter into or effect any Sale Leasebacks, other than
Permitted Sale Leasebacks.
10.9.
Minimum Interest Coverage Ratio
. During the continuance of a Covenant
Compliance Event, the Parent Borrower will not permit the Consolidated EBITDA to Consolidated
Interest Coverage Ratio, calculated as of the last day of the fiscal quarter for the Test Period
most recently then ended for which the Administrative Agent has received financial statements of
the Parent Borrower, to be less than 1.50:1.00.
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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 Closing Date and (ii)
performing its obligations pursuant to agreements in effect on the Closing Date and any automatic
extensions thereof.
10.11.
1993 Indenture Restricted Subsidiaries
. The Parent Borrower shall not
designate any additional Subsidiary as a Restricted Subsidiary under the 1993 Indenture or
reorganize or change the ownership structure of any of its Subsidiaries such that after giving
effect to such reorganization or change a Subsidiary that constituted an Unrestricted Subsidiary
under the 1993 Indenture subsequently constitutes a Restricted Subsidiary thereunder.
SECTION 11.
Events of Default
Upon the occurrence of any of the following specified events (each an
Event of Default
):
11.1.
Payments
. Any Borrower shall (a) default in the payment when due of any principal of the Loans or (b)
default, and such default shall continue for five or more days, in 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 or the Fee Letter dated July 24, 2006 between Holdings and the Agents
and such default shall continue unremedied for a period of at least 30 days after receipt of
written notice by the Parent Borrower from any Administrative Agent or the Required Lenders;
or
(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
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actions taken by one or more Persons not controlled directly or indirectly by the
Parent Borrower or such Persons (or Persons) failure to act in accordance with the
instructions of the Parent Borrower or the Administrative Agent) and such default shall
continue unremedied for a period of at least 15 Business Days after an Authorized Officer
obtaining knowledge of such default; or
11.4.
Default Under Other Agreements
. (a) The Parent Borrower or any of the
Restricted Subsidiaries shall (i) default in any payment with respect to any Indebtedness (other
than the Obligations) in excess of $150,000,000 in the aggregate, for the Parent Borrower and such
Restricted Subsidiaries, beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness was created or (ii) default in the observance or
performance of any agreement or condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other event shall occur or
condition exist (other than, with respect to Indebtedness consisting of any Hedge Agreements,
termination events or equivalent events pursuant to the terms of such Hedge Agreements), the effect
of which default or other event or condition is to cause, or to permit the holder or holders of
such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause, any such
Indebtedness to become due prior to its stated maturity; or (b) without limiting the provisions of
clause (a)
above, any such Indebtedness shall be declared to be due and payable, or required to be prepaid other
than by a regularly scheduled required prepayment or as a mandatory prepayment (and, with respect
to Indebtedness consisting of any Hedge Agreements, other than due to a termination event or
equivalent event pursuant to the terms of such Hedge Agreements), prior to the stated maturity
thereof; or
11.5.
Bankruptcy, Etc
. The Parent Borrower or any Specified Subsidiary shall commence
a voluntary case, proceeding or action concerning itself under (a) Title 11 of the United States
Code entitled Bankruptcy, or (b) in the case of any Foreign Subsidiary that is a Specified
Subsidiary, any domestic or foreign law relating to bankruptcy, judicial management, insolvency,
reorganization, administration or relief of debtors legislation of its jurisdiction of
incorporation, in each case as 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
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of its property
to continue undischarged or unstayed for a period of 60 days; or the Parent Borrower or any
Specified Subsidiary makes a general assignment for the benefit of creditors; or any corporate
action is taken by the Parent Borrower or any Specified Subsidiary for the purpose of effecting any
of the foregoing; or
11.6.
ERISA
. (a) Any Plan shall fail to satisfy the minimum funding standard required
for any plan year or part thereof or a waiver of such standard or extension of any amortization
period is sought or granted under Section 412 of the Code; any Plan is or shall have been
terminated or is the subject of termination proceedings under ERISA (including the giving of
written notice thereof); an event shall have occurred or a condition shall exist in either case
entitling the PBGC to terminate any Plan or to appoint a trustee to administer any Plan (including
the giving of written notice thereof); any Plan shall have an accumulated funding deficiency
(whether or not waived); the Parent Borrower or any ERISA Affiliate has incurred or is likely to
incur a liability to or on account of a Plan under Section 409, 502(i), 502(l), 515, 4062, 4063,
4064, 4069, 4201 or 4204 of ERISA or Section 4971 or 4975 of the Code (including the giving of written notice
thereof); (b) there could result from any event or events set forth in
clause (a)
of this
Section 11.6
the imposition of a lien, the granting of a security interest, or a liability,
or the reasonable likelihood of incurring a lien, security interest or liability; and (c) such
lien, security interest or liability will or would be reasonably likely to have a Material Adverse
Effect; or
11.7. [
Reserved
]; or
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
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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 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;
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(iv) fourth, to any Cash Management Bank or Hedge Bank, an amount equal to all
Obligations in respect of Secured Cash Management Agreements or Secured Hedge Agreements, as
the case may be, owing to them on the date of any distribution; and
(v) fifth, any surplus then remaining shall be paid to the applicable Credit Parties or
their successors or assigns or to whomsoever may be lawfully entitled to receive the same or
as a court of competent jurisdiction may direct.
11.13.
Certain Amendments and Waivers to CF Agreement
. In the event that (A) Section
10.9 of the CF Agreement (or the definition of Consolidated Total Debt to Consolidated Total
EBITDA Ratio or any of its constituent definitions) is amended or the applicability thereof waived
and (B) the agents or lenders under the CF Facility are paid fees in respect of any such amendment
or waiver, then no such amendment or waiver shall be binding upon the parties to this Agreement
(and each reference to Section 10.9 of the CF Agreement hereunder shall read as if such amendment
or waiver had not been executed) unless and until a proportionate fee (based on the relative
aggregate principal amounts of the loans, letters of credit and commitments outstanding under the
CF Facility, on the one hand, and the Loans, Letters of Credit, Protective Advances and Commitments
outstanding hereunder, on the other hand and assuming that each Lender under the CF Facility
consented to such amendment or waiver) is paid to the Administrative Agent for the benefit of the
Lenders hereunder.
SECTION 12.
Investors Right To Cure
(a) Notwithstanding anything to the contrary contained in
Section 11.3(a)
, in the
event that the Parent Borrower fails to comply with the requirement of the covenant set forth in
Section 10.9
, until the expiration of the tenth day after the date on which Section 9.1
Financials with respect to the Test Period in which the covenant set forth in such Section is being
measured are required to be delivered pursuant to
Section 9.1
, any of the Investors shall
have the right to make a direct or indirect equity investment (other than any amount invested in
satisfaction of the requirements set forth in the first sentence of
Section 10.7(d)
) in the
Parent Borrower in cash (the
Cure Right
), and upon the receipt by the Parent Borrower of net cash
proceeds pursuant to the exercise of the Cure Right (including through the capital contribution of
any such net cash proceeds to such person, the
Cure Amount
), the covenant set forth in such
Section shall be recalculated, giving effect to a
pro forma
increase to Consolidated EBITDA for
such Test Period in an amount equal to such net cash proceeds;
provided
that such
pro forma
adjustment to Consolidated EBITDA shall be given solely for the purpose of determining the
existence of a Default or an Event of Default under the covenant set forth in such Section with
respect to any Test Period that includes the fiscal quarter for which such Cure Right was exercised
and not for any other purpose under any Credit Document.
(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
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least one fiscal quarter in which no Cure Right is exercised and (ii)
with respect to any exercise of the Cure Right, the Cure Amount shall be no greater than the amount
required to cause the Parent Borrower to be in compliance with the covenant set forth in
Section 10.9
.
SECTION 13. The Agents
13.1. Appointment.
(a) Each Lender hereby irrevocably designates and appoints the Administrative Agent as the
agent of such Lender under this Agreement and the other Credit Documents and irrevocably authorizes
the Administrative Agent, in such capacity, to take such action on its behalf under the provisions
of this Agreement and the other Credit Documents and to exercise such powers and perform such
duties as are expressly delegated to the Administrative Agent by the terms of this Agreement and
the other Credit Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the Administrative Agent
shall not have any duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or any other Credit Document
or otherwise exist against the Administrative Agent.
(b) The Administrative Agent, each Lender, the Swingline Lender and the Letter of Credit
Issuer hereby irrevocably designate and appoint the Collateral Agent as the agent with respect to
the Collateral, and each of the Administrative Agent, each Lender, the Swingline Lender and the
Letter of Credit Issuer irrevocably authorizes the Collateral Agent, in such capacity, to take such
action on its behalf under the provisions of this Agreement and the other Credit Documents and to
exercise such powers and perform such duties as are expressly delegated to the Collateral Agent by
the terms of this Agreement and the other Credit Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in this
Agreement, the Collateral Agent shall not have any duties or responsibilities except those
expressly set forth herein, or any fiduciary relationship with any of the Administrative Agent, the
Lenders, the Swingline Lender or the Letter of Credit Issuers, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other
Credit Document or otherwise exist against the Collateral Agent.
(c) Each of the Co-Syndication Agents, Joint Lead Arrangers and Bookrunners, Joint Bookrunners
and the Documentation Agent, each in its capacity as such, shall 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.
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13.3.
Exculpatory Provisions
. No Agent nor any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates shall be (a) liable for any action lawfully taken or
omitted to be taken by it or such Person under or in connection with this Agreement or any other
Credit Document (except for its or such Persons own gross negligence or willful misconduct) or (b)
responsible in any manner to any of the Lenders for any recitals, statements, representations or
warranties made by any of any Borrower, any other Credit Party or any officer thereof contained in
this Agreement or any other Credit Document or in any certificate, report, statement or other
document referred to or provided for in, or received by such Agent under or in connection with,
this Agreement or any other Credit Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Credit Document or for any failure of
any Borrower or any other Credit Party to perform its obligations hereunder or thereunder. No
Agent shall be under any obligation to any Lender to ascertain or to inquire as to the observance
or performance of any of the agreements contained in, or conditions of, this Agreement or any other
Credit Document, or to inspect the properties, books or records of any Credit Party. The
Collateral Agent shall not be under any obligation to the Administrative Agent, any Lender, the
Swingline Lender or any Letter of Credit Issuer to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this Agreement or any other
Credit Document, or to inspect the properties, books or records of any Credit Party.
13.4.
Reliance by Agents
. The Administrative Agent and the Collateral Agent shall be
entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy, telex or teletype message, statement, order or
other document or instruction believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of legal counsel
(including counsel to any Borrower), independent accountants and other experts selected by the
Administrative Agent or the Collateral Agent. The Administrative Agent may deem and treat the
Lender specified in the Register with respect to any amount owing hereunder as the owner thereof
for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have
been filed with the Administrative Agent. The Administrative Agent and the Collateral Agent shall
be fully justified in failing or refusing to take any action under this Agreement or any other
Credit Document unless it shall first receive such advice or concurrence of the Required Lenders as
it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against
any and all liability and expense that may be incurred by it by reason of taking or continuing to
take any such action. The Administrative Agent and the Collateral Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement 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
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shall be reasonably directed by the Required Lenders,
provided
that unless and until the
Administrative Agent shall have received such directions, the Administrative Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests of the Lenders except
to the extent that this Agreement requires that such action be taken only with the approval of the
Required Lenders or each of the Lenders, as applicable).
13.6.
Non-Reliance on Administrative Agent, Collateral Agent and Other Lenders
. Each
Lender expressly acknowledges that neither the Administrative Agent nor the Collateral Agent nor
any of their respective officers, directors, employees, agents, attorneys-in-fact or Affiliates has
made any representations or warranties to it and that no act by the Administrative Agent or
Collateral Agent hereinafter taken, including any review of the affairs of any Borrower or any
other Credit Party, shall be deemed to constitute any representation or warranty by the
Administrative Agent or Collateral Agent to any Lender, the Swingline Lender or any Letter of
Credit Issuer. Each Lender, the Swingline Lender and each Letter of Credit Issuer represents to
the Administrative Agent and the Collateral Agent that it has, independently and without reliance
upon the Administrative Agent, Collateral Agent or any other Lender, and based on such documents
and information as it has deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and creditworthiness of each Borrower
and other Credit Party and made its own decision to make its Loans hereunder and enter into this
Agreement. Each Lender also represents that it will, independently and without reliance upon the
Administrative Agent, Collateral Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and the other Credit
Documents, and to make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and creditworthiness of the Borrowers
and any other Credit Party. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Administrative Agent hereunder, neither the Administrative Agent
nor the Collateral Agent shall have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, assets, operations, properties, financial
condition, prospects or creditworthiness of any Borrower or any other Credit Party that may come
into the possession of the Administrative Agent or Collateral Agent any of their respective officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
13.7.
Indemnification
. The Lenders agree to indemnify the Administrative Agent and
the Collateral Agent, each in its capacity as such (to the extent not reimbursed by the Borrowers
and without limiting the obligation of the Borrowers to do so), ratably according to their
respective portions of the Total Credit Exposure in effect on the date on which indemnification is
sought (or, if indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance with their respective
portions of the Total Credit Exposure in effect immediately prior to such date), from and against
any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever that may at any time (including at any time
following the payment of the Loans) be imposed on, incurred by or asserted against the
Administrative Agent or the Collateral Agent in any way relating to or arising out of, the
Commitments, this Agreement, any of the other Credit Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby or any action
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taken or omitted by the Administrative Agent or the Collateral Agent under or in connection with
any of the foregoing,
provided
that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Administrative Agents or the Collateral
Agents gross negligence or willful misconduct as determined by a final judgment of a court of
competent jurisdiction. The agreements in this
Section 13.7
shall survive the payment of
the Loans and all other amounts payable hereunder.
13.8.
Administrative Agent in its Individual Capacity
. The Administrative Agent and
its Affiliates may make loans to, accept deposits from and generally engage in any kind of business
with any Borrower, and any other Credit Party as though the Administrative Agent were not the
Administrative Agent hereunder and under the other Credit Documents. With respect to the Loans
made by it, the Administrative Agent shall have the same rights and powers under this Agreement and
the other Credit Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms Lender and Lenders shall include the Administrative Agent
in its individual capacity.
13.9.
Successor Agents
. Each of the Administrative Agent and Collateral Agent may at
any time give notice of its resignation to the Lenders, the Letter of Credit Issuer and the Parent
Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the
right, subject to the reasonable consent of the Parent Borrower so long as no Default under
Section 11.1
or
11.5
is continuing, to appoint a successor, which shall be a bank
with an office in the United States, or an Affiliate of any such bank with an office in the United
States. If no such successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Agent gives notice of its resignation,
then the retiring Agent may on behalf of the Lenders and the Letter of Credit Issuer, appoint a successor Agent meeting
the qualifications set forth above;
provided
that if the retiring Agent shall notify the
Parent Borrower and the Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice and (1) the retiring
Agent shall be discharged from its duties and obligations hereunder and under the other Credit
Documents (except in the case of the Collateral Agent holding collateral security on behalf of any
Secured Parties, the retiring Collateral Agent shall continue to hold such collateral security as
nominee until such time as a successor Collateral Agent is appointed) and (2) all 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
13.7
) and
Section 14.5
shall
continue in effect for the benefit of such retiring Agent, its sub-agents and their respective
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Related Parties in respect of any actions taken or omitted to be taken by any of them while the
retiring Agent was acting as an Agent.
Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also
constitute its resignation as Letter of Credit Issuer and Swing Line Lender. Upon the acceptance
of a successors appointment as Administrative Agent hereunder, (a) such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the retiring Letter of
Credit Issuer and Swing Line Lender, (b) the retiring Letter of Credit Issuer and Swing Line Lender
shall be discharged from all of their respective duties and obligations hereunder or under the
other Credit Documents, and (c) the successor Letter of Credit Issuer shall issue letters of credit
in substitution for the Letters of Credit, if any, outstanding at the time of such succession or
make other arrangements satisfactory to the retiring Letter of Credit Issuer to effectively assume
the obligations of the retiring Letter of Credit Issuer with respect to such Letters of Credit.
13.10.
Withholding Tax
. To the extent required by any applicable law, the
Administrative Agent may withhold from any interest payment to any Lender an amount equivalent to
any applicable withholding tax. If the Internal Revenue Service or any authority of the United
States or other jurisdiction asserts a claim that the Administrative Agent did not properly
withhold tax from amounts paid to or for the account of any Lender (because the appropriate form
was not delivered, was not properly executed, or because such Lender failed to notify the
Administrative Agent of a change in circumstances that rendered the exemption from, or reduction
of, withholding tax ineffective, or for any other reason), such Lender shall indemnify the
Administrative Agent (to the extent that the Administrative Agent has not already been
reimbursed by the Borrowers and without limiting the obligation of the Borrowers to do so)
and/or the Borrowers fully for all amounts paid, directly or indirectly, by the Administrative
Agent or a Borrower as tax or otherwise, including penalties and interest, together with all
expenses incurred, including legal expenses, allocated staff costs and any out of pocket expenses.
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;
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(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.
SECTION 14.
Miscellaneous
14.1.
Amendments and Waivers
. Neither this Agreement nor any other Credit Document,
nor any terms hereof or thereof, may be amended, supplemented or modified except in accordance with
the provisions of this
Section 14.1
. The Required Lenders may, or, with the written
consent of the Required Lenders, the Administrative Agent and/or the Collateral Agent may, from time to time, (a)
enter into with the relevant Credit Party or Credit Parties written amendments, supplements or
modifications hereto and to the other Credit Documents for the purpose of adding any provisions to
this Agreement or the other Credit Documents or changing in any manner the rights of the Lenders or
of the Credit Parties hereunder or thereunder or (b) waive, on such terms and conditions as the
Required Lenders or the Administrative Agent and/or Collateral Agent, as the case may be, may
specify in such instrument, any of the requirements of this Agreement or the other Credit Documents
or any Default or Event of Default and its consequences;
provided
,
however
, that no
such waiver and no such amendment, supplement or modification shall directly (i) forgive or reduce
any portion of any Loan or extend the final scheduled maturity date of any Loan or reduce the
stated rate (it being understood that any change to the definition of Consolidated Total Debt to
Consolidated EBITDA Ratio or in the component definitions thereof shall not constitute a reduction
in the rate and only the consent of the Required Lenders shall be necessary to waive any obligation
of the Borrowers to pay interest at the default rate or amend
Section 2.8(c)
), or forgive
any portion, or extend the date for the payment, of any interest or fee payable hereunder (other
than as a result of waiving the applicability of any post-default increase in interest rates or any
amendment contemplated by
Section 1.7
), or extend the final expiration date of any Lenders
Commitment or extend the final expiration date of any Letter of Credit beyond the L/C Maturity
Date, or increase the aggregate amount of the Commitments of any Lender (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
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provision of this
Section
14.1
or reduce the percentages specified in the definitions of the term Required Lenders or
Supermajority Lenders, consent to the assignment or transfer by any Borrower of its rights and
obligations under any Credit Document to which it is a party (except as permitted pursuant to
Section 10.3
) or alter the order of application set forth in the final paragraph of
Section 11
, in each case without the written consent of each Lender directly and adversely
affected thereby, or (iii) amend, modify or waive any provision of
Section 13
without the
written consent of the then-current Administrative Agent and Collateral Agent, or (iv) amend,
modify or waive any provision of
Section 3
with respect to any Letter of Credit without the
written consent of the Letter of Credit Issuer, or (v) amend, modify or waive any provisions hereof
relating to Swingline Loans without the written consent of the Swingline Lender, or (vi)
[Reserved], or (vii) release all or substantially all of the Collateral under the Security
Documents (except as expressly permitted by the Security Documents or this Agreement) without the
prior written consent of each Lender, or (viii) amend
Section 2.9
so as to permit Interest
Period intervals greater than six months without regard to availability to Lenders, without the
written consent of each Lender directly and adversely affected thereby, or (ix) change the
definition of the term Borrowing Base or any component definition thereof if as a result thereof
the amounts available to be borrowed by the Parent Borrower would be increased, without the written
consent of the Supermajority Lenders,
provided
that the foregoing shall not limit the
discretion of the Administrative Agent to change, establish or eliminate any Reserves without the
consent of any Lenders. Any such waiver and any such amendment, supplement or modification shall
apply equally to each of the affected Lenders and shall be binding upon the Borrowers, such
Lenders, the Administrative Agent and all future holders of the affected Loans. In the case of any
waiver, the Borrowers, the Lenders and the Administrative Agent shall be restored to their former
positions and rights hereunder and under the other Credit Documents, and any Default or Event of
Default waived shall be deemed to be cured and not continuing, it being understood that no such
waiver shall extend to any subsequent or other Default or Event of Default or impair any right
consequent thereon.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of
such Lender may not be increased or extended without the consent of such Lender (it being
understood that any Commitments or Loans held or deemed held by any Defaulting Lender shall be
excluded for a vote of the Lenders hereunder requiring any consent of the Lenders).
Notwithstanding the foregoing, in addition to any credit extensions and related Joinder
Agreement(s) effectuated without the consent of Lenders in accordance with
Section 2.14
,
this Agreement may be amended (or amended and restated) with the written consent of the Required
Lenders, the Administrative Agent and the Parent Borrower (a) to add one or more additional credit
facilities to this Agreement and to permit the extensions of credit from time to time outstanding
thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of
this Agreement and the other Loan Documents with the 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.
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The Lenders hereby irrevocably agree that the Liens granted to the Collateral Agent by the
Credit Parties on any Collateral shall be automatically released (i) in full, upon the payment of
the Obligations (other than contingent Obligations that survive in accordance with their terms) in
cash upon the termination of this Agreement, (ii) upon the sale or other disposition such
Collateral (including as part of or in connection with any other sale or other disposition
permitted hereunder) to any Person other than another Credit Party, to the extent such sale or
other disposition is made in compliance with the terms of this Agreement (and the Collateral Agent
may rely conclusively on a certificate to that effect provided to it by any Credit Party upon its
reasonable request without further inquiry), (iii) if the release of such Lien is approved,
authorized or ratified in writing by the Required Lenders (or such other percentage of the Lenders
whose consent may be required in accordance with this
Section 14.1
), (iv) to the extent the
property constituting Collateral is owned by any Subsidiary Borrower, upon the release of such
Subsidiary Borrower from its obligations hereunder (in accordance with the following sentence) and
(v) as required to effect any sale or other disposition of such Collateral in connection with any
exercise of remedies of the Collateral Agent pursuant to the Collateral Documents. Any such
release shall not in any manner discharge, affect or impair the Obligations or any Liens (other
than those being released) upon (or obligations (other than those being released) of the Credit
Parties in respect of) all interests retained by the Credit Parties, including the proceeds of any
sale, all of which shall continue to constitute part of the Collateral except to the extent
otherwise released in accordance with the provisions of the Credit Documents. Additionally, the
Lenders hereby irrevocably agree that the Subsidiary Borrowers shall be released from the (i)
Obligations upon the consummation of any transaction resulting in such
Subsidiary Borrower ceasing to constitute a Restricted Subsidiary or (ii) including upon the
designation of such Subsidiary Borrower as a Designated Non-Borrower Subsidiary (in accordance with
the definition thereof)). The Lenders hereby authorize the Administrative Agent and the Collateral
Agent, as applicable, to execute and deliver any instruments, documents, and agreements necessary
or desirable to evidence and confirm the release of any 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
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designated by such
party in a notice to the Parent Borrower, the Administrative Agent, the Collateral Agent,
the Letter of Credit Issuer and the Swingline Lender.
All such notices and other communications shall be deemed to be given or made upon the earlier to
occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by
courier, when signed for by or on behalf of the relevant party hereto; (B) if delivered by mail,
three (3) Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile,
when sent and receipt has been confirmed by telephone; and (D) if delivered by electronic mail,
when delivered;
provided
that notices and other communications to the Administrative Agent
or the Lenders pursuant to
Sections 2.3
,
2.6
,
2.9
,
4.2
and
5.1
shall not be effective until received.
14.3.
No Waiver; Cumulative Remedies
. No failure to exercise and no delay in
exercising, on the part of the Administrative Agent, the Collateral Agent or any Lender, any right,
remedy, power or privilege hereunder or under the other Credit Documents shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.
14.4.
Survival of Representations and Warranties
.
All representations and warranties
made hereunder, in the other Credit Documents and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution and delivery of
this Agreement and the making of the Loans hereunder.
14.5.
Payment of Expenses
. The Borrowers agree (a) to pay or reimburse the Agents
for all their reasonable out-of-pocket costs and expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement or modification to, 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
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(all the foregoing in this
clause (d)
,
collectively, the
indemnified liabilities
) and (e) to pay for up to two appraisals and field
examinations and the preparation of Reports related thereto in each calendar year based on the fees
charged by third parties retained by the Administrative Agent (notwithstanding any reference to
out-of-pocket above in this
Section 14.5
);
provided
that the Borrowers shall have
no obligation hereunder to any Administrative Agent or any Lender nor any of their respective
Related Parties with respect to indemnified liabilities to the extent attributable to (i) the gross
negligence, bad faith or willful misconduct of the party to be indemnified or any of its Related
Parties, (ii) any material breach of any Credit Document by the party to be indemnified or (iii)
disputes among the Administrative Agent, the Lenders and/or their transferees. All amounts payable
under this
Section 14.5
shall be paid within ten Business Days of receipt by the Parent
Borrower of an invoice relating thereto setting forth such expense in reasonable retail. The
agreements in this
Section 14.5
shall survive repayment of the Loans and all other amounts
payable hereunder.
14.6.
Successors and Assigns; Participations and Assignments
.
(a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby (including any
Affiliate of the Letter of Credit Issuer that issues any Letter of Credit), except that (i) except
as expressly permitted by
Section 10.3
, no Borrower may assign or otherwise transfer any of
its rights or obligations hereunder without the prior written consent of the Administrative Agent
and each Lender (and any attempted assignment or transfer by any Borrower without such consent
shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this
Section 14.6
. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted hereby (including any Affiliate
of the Letter of Credit Issuer that issues any Letter of Credit), Participants (to the extent
provided in
clause (c)
of this
Section 14.6
) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent, the Collateral Agent,
the Letter of Credit Issuer and the Lenders) any legal or equitable right, remedy or claim under or
by reason of this Agreement.
(b) (i) Subject to the conditions set forth in
clause (b)(ii)
below, any Lender may
at any time assign to one or more assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitments and the Loans (including
participations in L/C Obligations or Swingline Loans) at the time owing to it) with the prior
written consent (such consent not be unreasonably withheld or delayed; it being understood that,
without limitation, the Parent Borrower shall have the right to withhold or delay its consent to
any assignment if, in order for such assignment to comply with applicable law, any Borrower would
be required to obtain the consent of, or make any filing or registration with, any Governmental
Authority) of:
(A) the Parent Borrower (which consent shall not be unreasonably withheld or delayed),
provided
that, subject to clause (g) below, no consent of the Parent Borrower shall
be required for an assignment to a Lender, an Affiliate of a Lender (unless increased costs
would result therefrom unless an Event of Default
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under
Section 11.1
or
Section
11.5
has occurred and is continuing), an Approved Fund or, if an Event of Default under
Section 11.1
or
Section 11.5
has occurred and is continuing, any other
assignee; and
(B) the Administrative Agent (which consent shall not be unreasonably withheld or
delayed), the Swingline Lender and the applicable Letter of Credit Issuer.
Notwithstanding the foregoing, no such assignment shall be made to a natural person.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning Lenders
Commitment or Loans of any Class, the amount of the Commitment or Loans of the assigning
Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000, and increments of $1,000,000 in
excess thereof, or unless each of the Parent Borrower and the Administrative Agent otherwise
consents (which consents shall not be unreasonably withheld or delayed),
provided
that no such consent of the Parent Borrower shall be required if an Event of Default under
Section 11.1
or
Section 11.5
has occurred and is continuing;
provided
,
further
, that contemporaneous assignments to a single assignee
made by Affiliates of Lenders and related Approved Funds shall be aggregated for purposes of
meeting the minimum assignment amount requirements stated above;
(B) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lenders rights and obligations under this Agreement,
provided
that this clause shall not be construed to prohibit the assignment of a proportionate part
of 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
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to the benefits of
Sections 2.10
,
2.11
,
3.5
,
5.4
and
14.5
). Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this
Section 14.6
shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and obligations in accordance
with
clause (c)
of this
Section 14.6
.
(iv) The Administrative Agent, acting for this purpose as an agent of the Borrowers, shall
maintain at the Administrative Agents Office a copy of each Assignment and Acceptance delivered to
it and a register for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amount of the Loans and any payment made by the Letter of Credit
Issuer under any Letter of Credit owing to, each Lender pursuant to the terms hereof from time to
time (the
Register
). Further, each Register shall contain the name and address of the
Administrative Agent and the lending office through which each such Person acts under this
Agreement. The entries in the Register shall be conclusive, and the Borrowers, the
Administrative Agent, the Collateral Agent, the Letter of Credit Issuer and the Lenders shall
treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrowers, the Collateral Agent, the Letter of Credit
Issuer and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning
Lender and an assignee, the assignees completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), 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
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Lender,
provided
such Participant agrees to be subject to
Section 14.8(a)
as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater payment under
Section
2.10
,
2.11
or
5.4
than the applicable Lender would have been entitled to
receive with respect to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Parent Borrowers prior written consent (which
consent shall not be unreasonably withheld).
(d) Any Lender may, without the consent of any Borrower or the Administrative Agent, at any
time pledge or assign a security interest in all or any portion of its rights under this Agreement
to secure obligations of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this
Section 14.6
shall not apply
to any such pledge or assignment of a security interest,
provided
that no such pledge
or assignment of a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto. In order to
facilitate such pledge or assignment, the Borrowers hereby agree that, upon request of any Lender
at any time and from time to time after any Borrower has made its initial borrowing hereunder, each
Borrower shall provide to such Lender, at such Borrowers own expense, a promissory note,
substantially in the form of
Exhibit K
evidencing the Revolving Credit Loans and Swingline
Loans, respectively, owing to such Lender.
(e) Subject to
Section 14.16
, the Borrowers authorize each Lender to disclose to any
Participant, secured creditor of such Lender or assignee (each, a
Transferee
) and any prospective
Transferee any and all financial information in such Lenders possession concerning a Borrower and
its Affiliates that has been delivered to such Lender by or on behalf of such Borrower and its
Affiliates pursuant to this Agreement or that has been delivered to such Lender by or on behalf of
such Borrower and its Affiliates in connection with such Lenders credit evaluation of such
Borrower and its Affiliates prior to becoming a party to this Agreement.
(f) The words execution, signed, signature, and words of like import in any Assignment
and Acceptance shall be deemed to include electronic signatures or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or enforceability as a
manually executed signature or the use of a paper-based recordkeeping system, as the case may be,
to the extent and as provided for in any applicable law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic Signatures and
Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
(g) Notwithstanding anything to the contrary in
clause (b)
above, unless an Event of
Default under
Section 11.1
or
Section 11.5
has occurred and is continuing, no
assignment by any Lender of all or any portion of its rights and obligations under this Agreement
shall be permitted without the consent of the Parent Borrower if, after giving effect to such
assignment, the assignee in respect thereof, taken together with its Affiliates and Approved Funds,
would hold in the aggregate more than 25% of the Total Credit Exposure.
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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
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
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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, 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
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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 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
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other Credit Documents (including any amendment, waiver or other modification hereof
or thereof); (ii) in connection with the process leading to such transaction, each of
the Administrative Agent and the other Agents, is and has been acting solely as a principal
and is not the financial advisor, agent or fiduciary for any of the Borrowers, any other
Credit Parties or any of their respective Affiliates, stockholders, creditors or employees
or any other Person; (iii) neither the Administrative Agent nor any other Agent has assumed
or will assume an advisory, agency or fiduciary responsibility in favor of any Borrower or
any other Credit Party with respect to any of the transactions contemplated hereby or the
process leading thereto, including with respect to any amendment, waiver or other
modification hereof or of any other Credit Document (irrespective of whether the
Administrative Agent or other Agent has advised or is currently advising any of the
Borrowers, the other Credit Parties or their respective Affiliates on other matters) and
neither the Administrative Agent or other Agent has any obligation to any of any Borrowers,
the other Credit Parties or their respective Affiliates with respect to the transactions
contemplated hereby except those obligations expressly set forth herein and in the other
Credit Documents; (iv) the Administrative Agent and its Affiliates may be engaged in a broad
range of transactions that involve interests that differ from those of the Borrowers and
their respective Affiliates, and neither the Administrative Agent nor other Agent has any
obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary
relationship; and (v) neither the Administrative Agent nor any other Agent has provided and
none will provide any legal, accounting, regulatory or tax advice with respect to any of the
transactions contemplated hereby (including any amendment, waiver or other modification
hereof or of any other Credit Document) and each Borrower has consulted its own legal,
accounting, regulatory and tax advisors to the extent it has deemed appropriate. Each
Borrower hereby waives and releases, to the fullest extent permitted by law, any claims that
it may have against the Administrative Agent or any other Agent with respect to any breach
or alleged breach of agency or fiduciary duty; and
(c) no joint venture is created hereby or by the other Credit Documents or otherwise
exists by virtue of the transactions contemplated hereby among the Lenders or among any
Borrower on the one hand, and any Lender on the other hand.
14.15.
WAIVERS OF JURY TRIAL
. EACH BORROWER, EACH AGENT AND EACH LENDER HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO
THIS 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,
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independent
auditors, trustees or Affiliates, (b) to an investor or prospective investor in a Securitization
that agrees its access to information regarding the Credit Parties, the Loans and the Credit
Documents is solely for purposes of evaluating an investment in a Securitization and who agrees to
treat such information as confidential, (c) to a trustee, collateral manager, servicer, backup
servicer, noteholder or secured party in connection with the administration, servicing and
reporting on the assets serving as collateral for a securitization and who agrees to treat such
information as confidential and (d) to a nationally recognized ratings agency that requires access
to information regarding the Credit Parties, the Loans and Credit Documents in connection with
ratings issued with respect to a Securitization;
provided
that unless specifically
prohibited by applicable law or court order, each Lender and the Administrative Agent shall notify
the Parent Borrower of any request made to such Lender or the Administrative Agent by any
governmental agency or representative thereof (other than any such request in connection with an
examination of the financial condition of such Lender by such governmental agency) for disclosure
of any such non-public information prior to disclosure of such information, and provided, further,
that in no event shall any Lender or the Administrative Agent be obligated or required to return
any materials furnished by the Parent Borrower or any Subsidiary. Each Lender and the
Administrative Agent agrees that it will not provide to prospective Transferees or to any pledgee
referred to in
Section 14.6
or to prospective direct or indirect contractual counterparties
in swap agreements to be entered into in connection with Loans made hereunder any of the
Confidential Information unless such Person is advised of and agrees to be bound by the provisions
of this
Section 14.16
.
14.17.
Direct Website Communications
.
(a) (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
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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 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
-154-
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 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
-155-
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 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 shall be subordinate in right of payment to
the prior payment in full of the Obligations. The provisions of this Section 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.
-156-
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:
(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;
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(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;
(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.
-158-
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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[ ABL Credit Agreement Signature Page ]
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The SUBSIDIARY BORROWERS listed on Schedule 1 hereto
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By:
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/s/ A. Bruce Moore, Jr.
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Name:
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A. Bruce Moore, Jr.
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Title:
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[ ABL Credit Agreement Signature Page ]
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BANK OF AMERICA, N.A., as Administrative Agent, as Collateral Agent, as Swingline Lender, as Letter of Credit Issuer and as a Lender
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By:
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/s/ William J. Wilson
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Name:
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William J. Wilson
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Title:
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Vice President
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[ ABL Credit Agreement Signature Page ]
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JPMORGAN CHASE BANK, N.A., as Co-Syndication Agent and as a Lender
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By:
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/s/ Robert Morrow
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Name:
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Robert Morrow
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Title:
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Senior Vice President
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[ ABL Credit Agreement Signature Page ]
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CITICORP NORTH AMERICA, INC., as Co-Syndication Agent and a Lender
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By:
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/s/ James J. McCarthy
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Name:
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James J. McCarthy
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Title:
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Director/Vice President
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[ ABL Credit Agreement Signature Page ]
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BANC OF AMERICA SECURITIES, LLC, as Joint Lead Arranger and Bookrunner
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By:
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/s/ James B. Mascott
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Name:
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James B. Mascott
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Title:
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Vice President
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[ ABL Credit Agreement Signature Page ]
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J.P. MORGAN SECURITIES INC., as Joint Lead Arranger and Bookrunner
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By:
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/s/ Gary L. Spevak
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Name:
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Gary L. Spevak
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Title:
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Vice President
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[ ABL Credit Agreement Signature Page ]
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CITIGROUP GLOBAL MARKETS INC., as
Joint Lead Arranger and Bookrunner
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By:
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/s/ James J. McCarthy
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Name:
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James J. McCarthy
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Title:
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Director/Vice President
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[ ABL Credit Agreement Signature Page ]
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MERRILL LYNCH MORTGAGE CAPITAL, INC., as Lender
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By:
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/s/ Drew Nugent
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Name:
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Drew Nugent
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Title:
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Authorized Signatory
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[ ABL Credit Agreement Signature Page ]
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MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, as Joint Lead Arranger and Bookrunner
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By:
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/s/ Sarang Gadkari
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Name:
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Sarang Gadkari
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Title:
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Managing Director
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[ ABL Credit Agreement Signature Page ]
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MERRILL LYNCH CAPITAL CORPORATION, as Documentation Agent
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By:
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/s/ Sarang Gadkari
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Name:
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Sarang Gadkari
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Title:
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Vice President
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[ ABL Credit Agreement Signature Page ]
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DEUTSCHE BANK SECURITIES INC., as Joint Bookrunner
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By:
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/s/ Mark E. Funk
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Name:
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Mark E. Funk
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Title:
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Managing Director
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[ ABL Credit Agreement Signature Page ]
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DEUTSCHE BANK TRUST CO. AMERICAS, as a Lender
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By:
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/s/ Carin Keegan
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Name:
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Carin Keegan
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Title:
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Vice President
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By:
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/s/ Scottye Lindsey
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Name:
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Scottye Lindsey
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Title:
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Director
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[ ABL Credit Agreement Signature Page ]
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WACHOVIA BANK, NATIONAL ASSOCIATION, as Lender
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By:
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/s/ Christopher S. Hudick
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Name:
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Christopher S. Hudick
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Title:
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Director
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[ ABL Credit Agreement Signature Page ]
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WACHOVIA CAPITAL MARKETS LLC, as Joint Bookrunner
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By:
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/s/ Gary R. Wolfe
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Name:
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Gary R. Wolfe
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Title:
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Managing Director
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[ ABL Credit Agreement Signature Page ]
Schedule A
Subsidiary Borrowers
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Entity Name
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BAY HOSPITAL, INC.
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Brigham City Community Hospital, 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 Tennessee Hospital Corporation
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CHCA Bayshore, L.P.
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CHCA Conroe, L.P.
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CHCA East Houston, L.P.
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CHCA Mainland, L.P.
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CHCA West Houston, L.P.
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CHCA Womans Hospital, L.P.
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Chippenham & Johnston-Willis Hospitals, Inc.
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Columbia Medical Center of Arlington Subsidiary, L.P.
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Columbia Medical Center of Denton Subsidiary, L.P.
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COLUMBIA MEDICAL CENTER OF LAS COLINAS, INC.
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Columbia Medical Center of Lewisville Subsidiary, L.P.
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Columbia Medical Center of McKinney Subsidiary, L.P.
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Columbia Medical Center of Plano Subsidiary, L.P.
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COLUMBIA NORTH HILLS SUBSIDIARY, L.P.
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Columbia Ogden Medical Center, Inc.
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COLUMBIA PARKERSBURG HEALTHCARE SYSTEM, LLC
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Columbia Plaza Medical Center of Fort Worth Subsidiary, L.P.
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Columbia Polk General Hospital, Inc.
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Columbia Rio Grande Healthcare, L.P.
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Columbia Valley Healthcare System, L.P.
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Columbia/Alleghany Regional Hospital Incorporated
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Columbia/HCA John Randolph, Inc.
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Dauterive Hospital Corporation
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Eastern Idaho Health Services, Inc.
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Edmond Regional Medical Center, LLC
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Edward White Hospital, Inc.
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Fairview Park GP, LLC
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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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GPCH-GP, Inc.
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Grand Strand Regional Medical Center, LLC
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Greenview Hospital, Inc.
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Entity Name
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Hamilton Medical Center, Inc.
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HCA HEALTH SERVICES OF FLORIDA, 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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Hendersonville Hospital Corporation
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HOSPITAL CORPORATION OF UTAH
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HTI Memorial Hospital Corporation
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JFK Medical Center Limited Partnership
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KPH-CONSOLIDATION, INC.
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Lakeview Medical Center, LLC
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LARGO MEDICAL CENTER, INC.
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LAWNWOOD MEDICAL CENTER, INC.
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Lewis-Gale Medical Center, LLC
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LOS ROBLES REGIONAL MEDICAL CENTER
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MARION COMMUNITY HOSPITAL, INC.
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Medical Centers of Oklahoma, 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 RBH, LLC
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Midwest Division RMC, LLC
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Montgomery Regional Hospital, Inc.
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Mountain View Hospital, Inc.
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NEW PORT RICHEY HOSPITAL, 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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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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Palmyra Park Hospital, Inc.
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Plantation General Hospital, L.P.
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Pulaski Community Hospital, Inc.
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Redmond Park Hospital, LLC
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Reston Hospital Center, LLC
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Retreat Hospital, Inc.
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Riverside Healthcare System, L.P.
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San Jose Healthcare System, LP
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SARASOTA DOCTORS HOSPITAL, INC.
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Southern Hills Medical Center, LLC
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Entity Name
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Spotsylvania Medical Center, Inc.
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SPRING BRANCH MEDICAL CENTER, INC.
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Sun City Hospital, Inc.
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SUNRISE MOUNTAINVIEW HOSPITAL, INC.
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TALLAHASSEE MEDICAL CENTER, INC.
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TCMC Madison-Portland, Inc.
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Terre Haute Regional Hospital, L.P.
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Timpanogos Regional Medical Services, Inc.
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Trident Medical Center, LLC
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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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Capital Division, Inc.
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Central Shared Services, LLC
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Columbia ASC Management, L.P.
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Columbia LaGrange Hospital, Inc.
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Dallas/Ft. Worth Physician, LLC
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El Paso Surgicenter, Inc.
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GREEN OAKS HOSPITAL SUBSIDIARY, L.P.
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HCA Health Services of Oklahoma, Inc.
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HCA Management Services, L.P.
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HEALTH MIDWEST OFFICE FACILITIES CORPORATION
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HEALTH MIDWEST VENTURES GROUP, INC.
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Hospital Corporation of Tennessee
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Hospital Development Properties, Inc.
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HSS Systems, LLC
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HSS Virginia, L.P.
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Integrated Regional Laboratories, LLP
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LAS VEGAS SURGICARE, INC.
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Lewis-Gale Physicians, LLC
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MARIETTA SURGICAL CENTER, INC.
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Medical Office Buildings of Kansas, LLC
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Midwest Division OPRMC, LLC
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Midwest Division RPC, LLC
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Nashville Shared Services General Partnership
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National Patient Account Services, Inc.
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NORTH FLORIDA IMMEDIATE CARE CENTER, INC.
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Redmond Physician Practice VIII, LLC
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Riverside Hospital, Inc.
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San Jose Hospital, L.P.
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Spring Hill Hospital, Inc.
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St. Marks Lone Peak Hospital, Inc.
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Surgicare of Brandon, Inc.
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Surgicare of Florida, Inc.
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Entity Name
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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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Terre Haute MOB, L.P.
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Virginia Psychiatric Company, Inc.
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Womens and Childrens Hospital, Inc.
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HCA HEALTH SERVICES OF LOUISIANA, INC.
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Brookwood Medical Center of Gulfport, Inc.
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CMS GP, LLC
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COLUMBIA JACKSONVILLE HEALTHCARE SYSTEM, INC.
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Columbia Riverside, Inc.
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Conroe Hospital Corporation
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Dublin Community Hospital, LLC
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EP Health, LLC
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Fairview Park, Limited Partnership
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General Healthserv, LLC
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HCA Central Group, Inc.
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HD&S CORP. SUCCESSOR, INC.
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HSS Holdco, LLC
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HSS Systems VA, LLC
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Integrated Regional Lab, LLC
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Lewis-Gale Hospital, Incorporated
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Management Services Holdings, Inc.
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MCA Investment Company
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NOTAMI HOSPITALS OF LOUISIANA, INC.
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Notami Hospitals, LLC
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RIO GRANDE REGIONAL HOSPITAL, INC.
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Samaritan, LLC
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San Jose Medical Center, LLC
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San Jose, LLC
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SJMC, LLC
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Sunbelt Regional Medical Center, Inc.
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Terre Haute Hospital GP, Inc.
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Terre Haute Hospital Holdings, Inc.
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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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WHMC, INC.
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Midwest Holdings, Inc.
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Redmond Physician Practice Company
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WOMANS HOSPITAL OF TEXAS, INCORPORATED
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Healthtrust MOB, LLC
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Hospital Corporation of North Carolina
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New Rose Holding Company, Inc.
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Entity Name
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Encino Hospital Corporation, Inc.
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Midwest Division PFC, LLC
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Columbine Psychiatric Center, Inc.
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Lakeland Medical Center, LLC
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Goppert-Trinity Family Care, LLC
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Surgicare of Riverside, LLC
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W & C Hospital, Inc.
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Columbus Cardiology, Inc.
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Colorado Health Systems, Inc.
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Western Plains Capital, Inc.
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AR Holding 1, LLC
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AR Holding 2, LLC
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AR Holding 3, LLC
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AR Holding 4, LLC
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AR Holding 5, LLC
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AR Holding 6, LLC
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AR Holding 7, LLC
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AR Holding 8, LLC
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AR Holding 9, LLC
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AR Holding 10, LLC
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AR Holding 11, LLC
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AR Holding 12, LLC
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AR Holding 13, LLC
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AR Holding 14, LLC
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AR Holding 15, LLC
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AR Holding 16, LLC
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AR Holding 17, LLC
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AR Holding 18, LLC
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AR Holding 19, LLC
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AR Holding 20, LLC
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AR Holding 21, LLC
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AR Holding 22, LLC
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AR Holding 23, LLC
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AR Holding 24, LLC
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AR Holding 25, LLC
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AR Holding 26, LLC
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AR Holding 27, LLC
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AR Holding 28, LLC
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AR Holding 29, LLC
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AR Holding 30, LLC
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