GUARANTEE
dated as of November 17, 2006, by each of the signatories
listed on the signature pages hereto and each of the other entities
that becomes a party hereto pursuant to Section 19 (the
“ U.S. Guarantors ” and individually, a “
U.S. Guarantor ”), in favor of the Administrative
Agent for the benefit of the Secured Parties.
WHEREAS,
the Borrowers (as defined below) are party to the Credit Agreement,
dated as of November 17, 2006 (as the same may be amended,
restated, supplemented or otherwise modified, refinanced or
replaced from time to time, the “ Credit Agreement
”) among HCA Inc., a Delaware corporation (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 (in
such capacity, the “ Administrative Agent ”) and
as Collateral Agent, pursuant to which, among other things, the
Lenders have severally agreed to make Loans to the Borrowers and
the Letter of Credit Issuer has agreed to issue Letters of Credit
for the account of the Company and the Restricted Subsidiaries
(collectively, the “ Extensions of Credit ”)
upon the terms and subject to the conditions set forth therein, and
one or more Cash Management Banks or Hedge Banks may from time to
time enter into Secured Cash Management Agreements and Secured
Hedge Agreements with the Company and/or its
Subsidiaries;
WHEREAS,
each U.S. Guarantor (other than the Company) is a direct or
indirect wholly-owned Domestic Subsidiary of the
Company;
WHEREAS,
the proceeds of the Extensions of Credit will be used in part to
enable valuable transfers to the Guarantors in connection with the
operation of their respective businesses;
WHEREAS,
each U.S. Guarantor acknowledges that it will derive substantial
direct and indirect benefit from the making of the Extensions of
Credit; and
WHEREAS,
it is a condition precedent to the obligation of the Lenders and
the Letter of Credit Issuer to make their respective Extensions of
Credit to the Borrowers under the Credit Agreement that the U.S.
Guarantors shall have executed and delivered this U.S. Guarantee to
the Administrative Agent for the benefit of the Secured
Parties;
NOW,
THEREFORE, in consideration of the premises and to induce the
Administrative Agent, the Collateral Agent, the Lenders and Letter
of Credit Issuer to enter into the Credit Agreement and to induce
the respective Lenders and the Letter of Credit Issuer to make
their respective Extensions of Credit to the Borrowers under the
Credit Agreement and to induce one or more Cash Management Banks or
Hedge Banks to enter into Secured Cash Management Agreements and
Secured Hedge Agreements with the Company and/or its Subsidiaries,
the U.S.
Guarantors
hereby agree with the Administrative Agent, for the ratable benefit
of the Secured Parties, as follows:
(a) Unless
otherwise defined herein, terms defined in the Credit Agreement and
used herein shall have the meanings given to them in the Credit
Agreement.
(b) The
words “hereof”, “herein” and
“hereunder” and words of similar import when used in
this U.S. Guarantee shall refer to this U.S. Guarantee as a whole
and not to any particular provision of this U.S. Guarantee, and
Section references are to Sections of this U.S. Guarantee unless
otherwise specified. The words “include”,
“includes” and “including” shall be deemed
to be followed by the phrase “without
limitation”.
(c) The
meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
(a) Subject
to the provisions of Section 2(b), each of the U.S. Guarantors
hereby, jointly and severally, unconditionally and irrevocably,
guarantees, as primary obligor and not merely as surety, to the
Administrative Agent, for the ratable 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 (other than in the case of the Company, its direct
Obligations with respect to Loans and other Extensions of Credit
made directly to the Company).
(b) Anything
herein or in any other Credit Document to the contrary
notwithstanding, the maximum liability of each U.S. Guarantor
hereunder and under the other Credit Documents shall in no event
exceed the amount that can be guaranteed by such U.S. Guarantor
under the Bankruptcy Code or any applicable laws relating to
fraudulent conveyances, fraudulent transfers or the insolvency of
debtors.
(c) Each
U.S. Guarantor further agrees to pay any and all expenses
(including all reasonable fees and disbursements of counsel) that
may be paid or incurred by the Administrative Agent or the
Collateral Agent or any other 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 U.S.
Guarantor under this U.S. Guarantee.
(d) Each
U.S. Guarantor agrees that the Obligations may at any time and from
time to time exceed the amount of the liability of such U.S.
Guarantor hereunder without impairing this U.S. Guarantee or
affecting the rights and remedies of the Administrative Agent or
any other Secured Party hereunder.
(e) No
payment or payments made by any of the Borrowers, any of the U.S.
Guarantors, any other guarantor or any other Person or received or
collected by the Administrative Agent or any other Secured Party
from any of the Borrowers, any of the U.S. Guarantors,
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any other
guarantor or any other Person by virtue of any action or proceeding
or any set-off or appropriation or application at any time or from
time to time in reduction of or in payment of the Obligations shall
be deemed to modify, reduce, release or otherwise affect the
liability of any U.S. Guarantor hereunder, which shall,
notwithstanding any such payment or payments, other than payments
made by such U.S. Guarantor in respect of the Obligations or
payments received or collected from such U.S. Guarantor in respect
of the Obligations, remain liable for the Obligations up to the
maximum liability of such U.S. Guarantor hereunder until the
Obligations under the Credit Documents are paid in full, the
Commitments are terminated and no Letters of Credit shall be
outstanding or the Letters of Credit Outstanding have been Cash
Collateralized.
(f) Each
U.S. Guarantor agrees that whenever, at any time, or from time to
time, it shall make any payment to the Administrative Agent or any
other Secured Party on account of its liability hereunder, it will
notify the Administrative Agent in writing that such payment is
made under this U.S. Guarantee for such purpose.
3.
Right of Contribution . Each U.S. Guarantor hereby agrees
that to the extent that a U.S. Guarantor shall have paid more than
its proportionate share of any payment made hereunder (including by
way of set-off rights being exercised against it), such U.S.
Guarantor shall be entitled to seek and receive contribution from
and against any other U.S. Guarantor hereunder who has not paid its
proportionate share of such payment. Each U.S. Guarantor’s
right of contribution shall be subject to the terms and conditions
of Section 5 hereof. The provisions of this Section 3
shall in no respect limit the obligations and liabilities of any
U.S. Guarantor to the Administrative Agent and the other Secured
Parties, and each U.S. Guarantor shall remain liable to the
Administrative Agent and the other Secured up to the maximum
liability of such U.S. Guarantor hereunder.
4.
Right of Set-off . In addition to any rights and remedies of
the Secured Parties provided by law, each U.S. Guarantor hereby
irrevocably authorizes each Secured Party at any time and from time
to time following the occurrence and during the continuance of an
Event of Default, without notice to such U.S. Guarantor or any
other U.S. Guarantor, any such notice being expressly waived by
each U.S. Guarantor, upon any amount becoming due and payable by
such U.S. Guarantor hereunder (whether at 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 Secured Party to or
for the credit or the account of such U.S. Guarantor. Each Secured
Party shall notify such U.S. Guarantor promptly of any such set-off
and the appropriation and application made by such Secured Party,
provided that the failure to give such notice shall not
affect the validity of such set-off and application.
5.
No Subrogation . Notwithstanding any payment or payments
made by any of the U.S. Guarantors hereunder or any set-off or
appropriation and application of funds of any of the U.S.
Guarantors by the Administrative Agent or any other Secured Party,
no U.S. Guarantor shall be entitled to be subrogated to any of the
rights (or if subrogated by operation of law, such U.S. Guarantor
hereby waives such rights to the extent permitted by applicable
law) of the Administrative Agent or any other Secured Party against
any of the Borrowers or any other U.S. Guarantor or any collateral
security or guarantee or right of offset held by the
Administrative
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Agent or any
other Secured Party for the payment of any of the Obligations, nor
shall any U.S. Guarantor seek or be entitled to seek any
contribution or reimbursement from any of the Borrowers or any
other U.S. Guarantor or other guarantor in respect of payments made
by such U.S. Guarantor hereunder until all amounts owing to the
Administrative Agent and the other Secured Parties on account of
the Obligations under the Credit Documents are paid in full, the
Commitments are terminated and no Letters of Credit shall be
outstanding or the Letters of Credit Outstanding have been Cash
Collateralized. If any amount shall be paid to any U.S. Guarantor
on account of such subrogation rights at any time when all the
Obligations shall not have been paid in full, such amount shall be
held by such U.S. Guarantor in trust for the Administrative Agent
and the other Secured Parties, segregated from other funds of such
U.S. Guarantor, and shall, forthwith upon receipt by such U.S.
Guarantor, be turned over to the Administrative Agent in the exact
form received by such U.S. Guarantor (duly indorsed by such U.S.
Guarantor to the Administrative Agent, if required), to be applied
against the Obligations, whether due or to become due, in such
order as the Administrative Agent may determine.
6.
Amendments, etc. with Respect to the Obligations; Waiver of
Rights . Each U.S. Guarantor shall remain obligated hereunder
notwithstanding that, without any reservation of rights against any
U.S. Guarantor and without notice to or further assent by any U.S.
Guarantor, (a) any demand for payment of any of the
Obligations made by the Administrative 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 Administrative Agent or any other Secured Party,
(c) the Credit Agreement, the other Credit Documents, the
Letters of Credit and any other documents executed and delivered in
connection therewith and the Secured Cash Management Agreements and
Secured Hedge Agreements and any other documents executed and
delivered in connection therewith may be amended, modified,
supplemented or terminated, in whole or in part, as the
Administrative Agent (or the Required Lenders, as the case may be,
or, in the case of any Secured Cash Management Agreement or Secured
Hedge Agreement, the party thereto) may deem advisable from time to
time, and (d) any collateral security, guarantee or right of
offset at any time held by the Administrative Agent or any other
Secured Party for the payment of any of the Obligations may be
sold, exchanged, waived, surrendered or released. Neither the
Administrative 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 U.S.
Guarantee or any property subject thereto. When making any demand
hereunder against any U.S. Guarantor, the Administrative Agent or
any other Secured Party may, but shall be under no obligation to,
make a similar demand on any Borrower or any U.S. Guarantor or any
other person, and any failure by the Administrative Agent or any
other Secured Party to make any such demand or to collect any
payments from any Borrower or any U.S. Guarantor or any other
person or any release of any Borrower or any U.S. Guarantor or any
other person shall not relieve any U.S. Guarantor in respect of
which a demand or collection is not made or any U.S. Guarantor 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 Administrative Agent or any
other Secured Party against any U.S. Guarantor. For the purposes
hereof “demand” shall include the commencement and
continuance of any legal proceedings.
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7.
Guarantee Absolute and Unconditional .
(a) Each
U.S. Guarantor waives any and all notice of the creation,
contraction, incurrence, renewal, extension, amendment, waiver or
accrual of any of the Obligations, and notice of or proof of
reliance by the Administrative Agent or any other Secured Party
upon this U.S. Guarantee or acceptance of this U.S. Guarantee. All
Obligations shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended, waived or
accrued, in reliance upon this U.S. Guarantee, and all dealings
between a
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