AMENDMENT No. 3 , dated as of June 18, 2009 (this
“ Amendment ”), to the Credit Agreement, dated
as of November 17, 2006 (as amended on February 16, 2007
and further amended on March 2, 2009, the “ Credit
Agreement ”), among HCA Inc. (the “ Company
” or the “ Parent Borrower ”), HCA UK
Capital Limited (the “ European Subsidiary Borrower
” and, collectively with the Parent Borrower, the “
Borrowers ”), the lending institutions from time to
time parties thereto (each a “ Lender ” and,
collectively, the “ Lenders ”), 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. Capitalized
terms used but not defined herein have the meanings provided in the
Credit Agreement.
WHEREAS,
Section 14.1 of the Credit Agreement permits the Required
Lenders or, with the consent of the Required Lenders, the
Administrative Agent and/or the Collateral Agent, as applicable, to
enter into amendments, supplements or other modifications to the
Credit Agreement and the other Credit Documents with the relevant
Credit Parties;
WHEREAS,
the Credit Parties desire to amend the Credit Agreement and the
other Credit Documents on the terms set forth herein;
NOW,
THEREFORE, in consideration of the premises and covenants contained
herein and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound hereby, agree as
follows:
(a) Section 1.1
of the Credit Agreement is hereby amended by adding the following
definitions in proper alphabetical order:
“
Amendment No. 3 ” shall mean Amendment No. 3
to this Agreement, dated as of June 18, 2009.
“
Existing Class ” shall have the meaning set forth in
Section 2.14(f)
“
Extended Repayment Date ” shall have the meaning
provided in Section 2.5(d) .
“
Extended Term Loan Repayment Amount ” shall have the
meaning provided in Section 2.5(d) .
“
Extended Term Loans ” shall have the meaning set forth
in Section 2.14(f) .
“
Extending Lender ” shall have the meaning set forth in
Section 2.14(f) .
“
Extension Amendment ” shall have the meaning set forth
in Section 2.14(f) .
“
Extension Election ” shall have the meaning set forth
in Section 2.14(f) .
“
Extension Request ” shall have the meaning set forth
in Section 2.14(f) .
“
Extension Series ” shall mean all Extended Term Loans
that are established pursuant to the same Extension Amendment (or
any subsequent Extension Amendment to the extent such Extension
Amendment expressly provides that the Extended Term Loans provided
for therein are intended to be a part of any previously established
Extension Series) and that provide for the same interest margins,
extension fees and amortization schedule.
“
Refinancing Term Loans ” shall mean any New Term Loans
designated as “Refinancing Term Loans” in the
applicable Joinder Agreement.
“
Replacement Revolving Credit Commitments ” shall have
the meaning set forth in Section 2.14(b)(ii)
.
“
Replacement Revolving Credit Loan ” shall have the
meaning set forth in Section 2.14(b)(ii) .
“
Replacement Revolving Credit Series ” shall have the
meaning set forth in Section 2.14(b)(ii) .
“
Section 2.14(e) Additional Amendment ” shall have
the meaning set forth in Section 2.14(e) .
“
Section 2.14(f) Additional Amendment ” shall have
the meaning set forth in Section 2.14(f)(iii) .
(b) Section 1.1
of the Credit Agreement is hereby amended by deleting the
definition of “Class” contained therein and replacing
it with the following:
“
Class ”, when used in reference to any Loan or
Borrowing, shall refer to whether such Loan, or the Loans
comprising such Borrowing, are Revolving Credit Loans, New
Revolving Loans, Tranche A-1 Term Loans, Tranche B-1 Term Loans,
European-1 Tranche Term Loans, New Term Loans (of the same Series),
Extended Term Loans (of the same Extension Series), Replacement
Revolving Credit Loans (made pursuant to the same Replacement
Revolving Credit Series of Replacement Revolving Credit
Commitments) or Swingline Loans and, when used in reference to any
Commitment, refers to whether such Commitment is a Revolving Credit
Commitment, a Replacement Revolving Credit Commitment (of the same
Replacement Revolving Credit Series), Tranche A-1 Term Loan
Commitment, Tranche B-1 Term Loan Commitment, European-1 Tranche
Term Loan Commitment or a New Term Loan Commitment.
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(c) Section 1.1
of the Credit Agreement is hereby amended by deleting the
definition of “Debt Incurrence Prepayment Event”
contained therein and replacing it with the following:
“
Debt Incurrence Prepayment Event ” shall mean any
issuance or incurrence by the Parent Borrower or any of the
Restricted Subsidiaries of (x) any Indebtedness (excluding any
Indebtedness permitted to be issued or incurred under
Section 10.1 other than Section 10.1(o) or
Section 10.1(y)(i) ) or (y) any Refinancing Term
Loans.
(d) Section 1.1
of the Credit Agreement is hereby amended by deleting the
definition of “European Credit Facility” contained
therein and replacing it with the following:
“
European Credit Facility ” shall mean the Credit
Facility consisting of the European-1 Tranche Term Loan
Commitments, the European-1 Tranche Term Loans and any Extended
Term Loans in respect of European-1 Tranche Term Loans.
(e) Section 1.1
of the Credit Agreement is hereby amended by deleting the
definition of “European Obligations” contained therein
and replacing it with the following:
“
European Obligations ” shall mean all advances to, and
debts, liabilities, obligations, covenants and duties of, any
Credit Party arising under any Credit Document or otherwise, in
each case with respect to any European-1 Tranche Term Loan or any
Extended Term Loans in respect of European-1 Tranche Term Loans or
under any Secured Cash Management Agreement or Secured Hedge
Agreement, and in each case, entered into with the European
Subsidiary Borrower or any other European Subsidiary, whether
direct or indirect (including those acquired by assumption),
absolute or contingent, due or to become due, now existing or
hereafter arising and including interest and fees that accrue after
the commencement by or against any Credit Party or any Affiliate
thereof of any proceeding under any bankruptcy or insolvency law
naming such Person as the debtor in such proceeding, regardless of
whether such interest and fees are allowed claims in such
proceeding.
(f) Section 1.1
of the Credit Agreement is hereby amended by deleting the
definition of “Repayment Amount” contained therein and
replacing it with the following:
“
Repayment Amount ” shall mean the Tranche A-1
Repayment Amount, the Tranche B-1 Repayment Amount, the European-1
Tranche Repayment Amount, a New Term Loan Repayment Amount with
respect to any Series or an Extended Term Loan Repayment Amount
with respect to any Extension Series, as applicable.
(g) Section 1.1
of the Credit Agreement is hereby amended by deleting the
definition of “Term Loans” contained therein and
replacing it with the following:
“
Term Loans ” shall mean the Tranche A-1 Term Loans,
the Tranche B-1 Term Loans, the European-1 Tranche Term Loans, any
New Term Loans and any Extended Term Loans,
collectively.
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(h) Section 1.1
of the Credit Agreement is hereby amended by deleting the
definition of “U.S. Credit Facilities” contained
therein and replacing it with the following:
“U.S. Credit Facilities” shall mean the Tranche
A-1 Term Loan Facility, the Tranche B-1 Term Loan Facility, the New
Term Loans (of each Series) and the Extended Term Loans (of each
Extension Series) (to the extent made to the Parent Borrower) and
the Revolving Credit Facility.
(i) Section 2.5(d)
of the Credit Agreement is hereby amended by adding a new sentence
at the end of such clause as follows:
In the event that
any Extended Term Loans are established, such Extended Term Loans
shall, subject to Section 2.14(f) , be repaid by the
applicable Borrower in the amounts (each such amount with respect
to any Extended Repayment Date, an “ Extended Term Loan
Repayment Amount ”) and on the dates (each an “
Extended Repayment Date ”) set forth in the applicable
Extension Amendment.
(j) Section 2.14(a)
of the Credit Agreement is hereby amended by (i) adding the
words “or replacement classes of” immediately after the
words “increases in” in the first clause (y) in
such Section and (ii) adding the phrase “(which amount
for purposes of this limitation shall be calculated exclusive of
(A) the amount any New Term Loan Commitments in respect of
Refinancing Term Loans and (B) the amount of any Replacement
Revolving Credit Commitments that were not established in reliance
on subclause (a)(y) of the proviso to
Section 2.14(b)(ii) )” after the first occurrence
of the phrase “aggregate amount” therein.
(k) Section 2.14(b)
of the Credit Agreement is hereby amended by (i) adding
“(i)” prior to the first word thereof,
(ii) inserting the phrase “(other than Replacement
Revolving Credit Commitments)” immediately after the first
occurrence of the word “Commitments” in such Section
and adding new subclauses (ii) and (iii) at the end of
Section 2.14(b) as follows:
“(ii) At
the option of the Parent Borrower and the New Lenders providing
such New Revolving Credit Commitments, any New Revolving Credit
Commitments may be in the form of one or more separate classes of
revolving credit commitments (the “ Replacement Revolving
Credit Commitments ”) which shall constitute a separate
Class of Commitments from the Revolving Credit Commitments (each
such separate Class of Replacement Revolving Credit Commitments, a
“ Replacement Revolving Credit Series ” and each
Loan thereunder, a “ Replacement Revolving Credit Loan
”) shall constitute a separate Class of Loans from the
Revolving Credit Loans (it being understood that Replacement
Revolving Credit Commitments of a single Replacement Revolving
Credit Series may be established on more than one date);
provided that:
(a) the aggregate
principal amount of Replacement Revolving Credit Commitments in
effect at any time, when aggregated with the aggregate principal
amount of Revolving Credit Commitments at such time, shall not
exceed the sum of (x) (A) $2,000,000,000 plus (B) the
amount of Replacement Revolving Credit Commitments previously
established prior to such date pursuant to the following
subclause (y) plus (y) solely to the extent the
applicable Joinder Agreement pro-
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vides that the
Replacement Revolving Credit Commitments are being made in reliance
on this subclause (y) , the remainder if positive of (A)
$1,500,000,000 minus (B) the Excess Amount on the date
such Replacement Revolving Credit Commitments are established
minus (C) the aggregate amount of New Term Loan
Commitments (excluding New Term Loan Commitments for Refinancing
Term Loans) established on or prior to such date minus
(D) the aggregate amount of Replacement Revolving Credit
Commitments previously established in reliance on this subclause
(y) ;
(b) there shall be
no more than three Classes, in the aggregate, of Revolving Credit
Commitments and Replacement Revolving Credit Commitments
outstanding at any time;
(c) the terms of
such Replacement Revolving Credit Commitments, except for the tenor
of the Replacement Revolving Credit Commitments (which shall have a
scheduled expiration date no earlier than the Revolving Credit
Maturity Date), the size of any swingline loan and/or letter of
credit subfacilities under such Replacement Revolving Credit
Commitments and the applicable interest rates and Fees payable with
respect to such Replacement Revolving Credit Commitments (which
shall be as specified in the applicable Joinder Agreement), shall
be substantially identical to the terms of the Revolving Credit
Commitments or Replacement Revolving Credit Commitments being
replaced thereby (unless otherwise consented to by the
Administrative Agent); and
(d) in connection
with the establishment of any Replacement Revolving Credit
Commitments that will include swingline loan and/or letter of
credit subfacilities, any amendment to this Agreement pursuant to
Section 2.14(e) may include provisions relating to
swingline loans and/or letters of credit, as applicable, issued
thereunder, which issuances shall be on terms substantially
identical (except for the overall size of such subfacilities, which
shall be specified in the applicable Joinder Agreement) to the
terms relating to Swingline Loans and Letters of Credit with
respect to the Revolving Credit Commitments or otherwise reasonably
acceptable to the Administrative Agent and any applicable swingline
lender or letter of credit issuer thereunder.
(iii) On any
Increased Amount Date on which Replacement Revolving Credit
Commitments are effected, subject to the satisfaction of the
foregoing terms and conditions, (a) the Revolving Credit Loans
or Replacement Revolving Credit Loans, as applicable, of any
existing Revolving Credit Lender who is providing a new Replacement
Revolving Credit Commitment on such date and whose existing
Revolving Credit Commitment or Replacement Revolving Credit
Commitment, as applicable, is being reduced on such date pursuant
to clause (a) of the first proviso to
Section 4.2 (or the corresponding provision in any
Joinder Agreement with respect to Replacement Revolving Credit
Commitments) in connection therewith shall be converted into
Replacement Revolving Credit Loans under such Lender’s new
Replacement Revolving Credit Commitment being provided on such date
in the same ratio as (x) the amount of such Lender’s new
Replacement Revolving Credit Commitment bears to (y) the
aggregate amount of such
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Lenders
existing Revolving Credit Commitment or Replacement Revolving
Credit Commitment of such Class prior to any reduction of such
Lender’s Revolving Credit Commitment or Replacement Revolving
Credit Commitment pursuant to clause (a) of the first
proviso to Section 4.2 (or the corresponding provision
in any Joinder Agreement with respect to Replacement Revolving
Credit Commitments) in connection therewith and (b) each of
the New Revolving Loan Lenders with Replacement Revolving Credit
Commitments of the applicable Class shall purchase from each of the
other Lenders with Replacement Revolving Credit Commitments of such
Class, at the principal amount thereof and in the applicable
currencies, such interests in the Replacement Revolving Credit
Loans under such Class of Replacement Revolving Credit Commitments
so converted or outstanding on such Increased Amount Date as shall
be necessary in order that, after giving effect to all such
assignments and purchases, the Replacement Revolving Credit Loans
of such Class will be held by New Revolving Loan Lenders with such
Class of Replacement Revolving Credit Commitments ratably in
accordance with their respective Replacement Revolving Credit
Commitments of such Class.”
(l) Subclauses
(i) and (ii) of the proviso to Section 2.14(d) of
the Credit Agreement are hereby restated in their entirety as
follows:
“(i) the
applicable New Term Loan Maturity Date of each Series shall be no
earlier than the Tranche B-1 Term Loan Maturity Date and the
mandatory prepayment and other payment rights of the New Term Loans
and the existing Tranche B-1 Term Loans (other than with respect to
any Debt Incurrence Prepayment Event and any scheduled
amortization) shall be identical, (ii) the rate of interest and the
amortization schedule applicable to the New Term Loans of each
Series, and the rights thereof (if any) to participate in any Debt
Incurrence Prepayment Event, shall be determined by the Parent
Borrower and the applicable new Lenders and set forth in the
applicable Joinder Agreement; provided, that (x) the
weighted average life to maturity of all New Term Loans shall be no
shorter than the weighted average life to maturity of the Tranche
B-1 Term Loans, (y) in no event shall any Series of New Term
Loans be entitled to participate in any Debt Incurrence Prepayment
Event on a basis that would require a greater proportionate
repayment thereof from any such Debt Incurrence Prepayment Event
than that applicable to the Tranche A-1 Term Loans, Tranche B-1
Term Loans or European-1 Tranche Term Loans (for so long as any of
such Classes of Term Loans are outstanding) or that would result in
the proportionate repayment thereof from any such Debt Incurrence
Prepayment Event, when added to the proportionate repayments
required with respect to all other Classes of Term Loans then
outstanding, exceeding the amount of Net Cash Proceeds from such
Debt Incurrence Prepayment Event and (z) notwithstanding
anything to the contrary in this Section 2.14 or
otherwise, no Refinancing Term Loans of any Series shall be prepaid
from any Debt Incurrence Prepayment Event until all outstanding
Tranche A-1 Term Loans, Tranche B-1 Term Loans and European-1
Tranche Term Loans have been repaid”.
(m) Section 2.14(d)
of the Credit Agreement is hereby amended by replacing the word
“and” before “(iii)” with “,”
and inserting the following at the end of clause (iii):
“and
(iv) the Joinder Agreement for any New Term Loans may, but
shall not be required to, impose additional requirements (not
inconsistent with the provisions of this Agree-
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ment in effect
at such time) with respect to the final maturity and weighted
average life to maturity of New Term Loans incurred following the
date of the applicable Joinder Agreement”.
(n) Section 2.14(e)
of the Credit Agreement is hereby amended by adding a new sentence
at the end of such clause as follows:
“In addition
to any terms and provisions in any Joinder Agreement, and any
changes or amendments to this Agreement or any other Credit
Document provided for therein, in each case, that are re
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