FIRST LIEN INTERCREDITOR AGREEMENT dated as of April 22, 2009 among BANK OF AMERICA, N.A., as Collateral Agent, BANK OF AMERICA, N.A., as Authorized Representative under the Credit Agreement, LAW DEBENTURE TRUST COMPANY OF NEW YORK, as the Initial...
EXHIBIT 4.5
dated as of
April 22, 2009
among
BANK OF AMERICA, N.A.,
as Collateral Agent,
as Collateral Agent,
BANK OF AMERICA, N.A.,
as Authorized Representative under the Credit Agreement,
as Authorized Representative under the Credit Agreement,
LAW DEBENTURE TRUST COMPANY OF NEW YORK,
as the Initial Additional Authorized Representative
as the Initial Additional Authorized Representative
and
each additional Authorized Representative from time to time party hereto
Notwithstanding anything herein to the contrary, any liens and security interests granted to the
Collateral Agent pursuant to this First Lien Intercreditor Agreement and the exercise of any right
or remedy by the Collateral Agent hereunder are subject to the limitations and provisions of the
Additional Receivables Intercreditor Agreement, dated as of April 22, 2009 (as amended, restated,
supplemented or otherwise modified from time to time, the “Additional Receivables Intercreditor
Agreement”), among Bank of America, N.A., as ABL collateral agent, Bank of America, N.A., as
new first lien collateral agent, and certain other persons party or that may become party thereto
from time to time, and consented to by HCA Inc. and the grantors identified therein. In the event
of any conflict between the terms of the Additional Receivables Intercreditor Agreement and the
terms of this First Lien Intercreditor Agreement, the terms of the Additional Receivables
Intercreditor Agreement shall govern and control. This paragraph forms part of the First Lien
Intercreditor Agreement.
FIRST LIEN INTERCREDITOR AGREEMENT (as amended or supplemented from time to time, this
“Agreement”) dated as of April 22, 2009, among BANK OF AMERICA, N.A., as collateral agent for the
First Lien Secured Parties (as defined below) (in such capacity and together with its successors in
such capacity, the “Collateral Agent”), BANK OF AMERICA, N.A., as Authorized Representative for the
Credit Agreement Secured Parties (in such capacity and together with its successors in such
capacity, the “Administrative Agent”), LAW DEBENTURE TRUST COMPANY OF NEW YORK, as Authorized
Representative for the Initial Additional First Lien Secured Parties (in such capacity and together
with its successors in such capacity, the “Initial Additional Authorized Representative”) and each
additional Authorized Representative from time to time party hereto for the Additional First Lien
Secured Parties of the Series with respect to which it is acting in such capacity.
In consideration of the mutual agreements herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Collateral Agent,
the Administrative Agent (for itself and on behalf of the Credit Agreement Secured Parties), the
Initial Additional Authorized Representative (for itself and on behalf of the Initial Additional
First Lien Secured Parties) and each additional Authorized Representative (for itself and on behalf
of the Additional First Lien Secured Parties of the applicable Series) agree as follows:
ARTICLE I
Definitions
SECTION 1.01 Construction; Certain Defined Terms.
(a) The definitions of terms herein shall apply equally to the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be
deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to
have the same meaning and effect as the word “shall”. Unless the context requires otherwise, (i)
any definition of or reference to any agreement, instrument, other document, statute or regulation
herein shall be construed as referring to such agreement, instrument, other document, statute or
regulation as from time to time amended, supplemented or otherwise modified, (ii) any reference
herein to any Person shall be construed to include such Person’s successors and assigns, but shall
not be deemed to include the subsidiaries of such Person unless express reference is made to such
subsidiaries, (iii) the words “herein”, “hereof and “hereunder”, and words of similar import, shall
be construed to refer to this Agreement in its entirety and not to any particular provision hereof,
(iv) all references herein to Articles, Sections and Annexes shall be construed to refer to
Articles, Sections and Annexes of this Agreement, (v) unless otherwise expressly qualified herein,
the words “asset” and “property” shall be construed to have the same meaning and effect and to
refer to any and all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights and (vi) the term “or” is not exclusive.
(b) It is the intention of the First Lien Secured Parties of each Series that the holders of
First Lien Obligations of such Series (and not the First Lien Secured Parties of any
other Series) bear the risk of (i) any determination by a court of competent jurisdiction that
(x) any of the First Lien Obligations of such Series are unenforceable under applicable law or are
subordinated to any other obligations (other than another Series of First Lien Obligations), (y)
any of the First Lien Obligations of such Series do not have an enforceable security interest in
any of the Collateral securing any other Series of First Lien Obligations and/or (z) any
intervening security interest exists securing any other obligations (other than another Series of
First Lien Obligations) on a basis ranking prior to the security interest of such Series of First
Lien Obligations but junior to the security interest of any other Series of First Lien Obligations
or (ii) the existence of any Collateral for any other Series of First Lien Obligations that is not
Shared Collateral (any such condition referred to in the foregoing clauses (i) or (ii) with respect
to any Series of First Lien Obligations, an “Impairment” of such Series); provided, that
the existence of a maximum claim with respect to Principal Properties (as defined in the U.S.
Security Agreement) which applies to all First Lien Obligations shall not be deemed to be an
Impairment of any Series of First Lien Obligations. In the event of any Impairment with respect to
any Series of First Lien Obligations, the results of such Impairment shall be borne solely by the
holders of such Series of First Lien Obligations, and the rights of the holders of such Series of
First Lien Obligations (including, without limitation, the right to receive distributions in
respect of such Series of First Lien Obligations pursuant to Section 2.01) set forth herein shall
be modified to the extent necessary so that the effects of such Impairment are borne solely by the
holders of the Series of such First Lien Obligations subject to such Impairment. Additionally, in
the event the First Lien Obligations of any Series are modified pursuant to applicable law
(including, without limitation, pursuant to Section 1129 of the Bankruptcy Code), any reference to
such First Lien Obligations or the First Lien Documents governing such First Lien Obligations shall
refer to such obligations or such documents as so modified.
(c) Capitalized terms used and not otherwise defined herein shall have the meanings set forth
in the Credit Agreement. As used in this Agreement, the following terms have the meanings
specified below:
“Additional First Lien Agreement” shall have the meaning given such term by the U.S. Security
Agreement and shall include the Initial Additional First Lien Agreement.
“Additional First Lien Obligations” shall have the meaning given such term by the U.S.
Security Agreement and shall include the Initial Additional First Lien Obligations.
“Additional First Lien Secured Party” means the holders of any Additional First Lien
Obligations and any Authorized Representative with respect thereto and shall include the Initial
Additional First Lien Secured Parties.
“Administrative Agent” shall have the meaning assigned to such term in the introductory
paragraph of this Agreement.
“Agreement” shall have the meaning assigned to such term in the introductory paragraph of this
Agreement.
“Applicable Authorized Representative” means, with respect to any Shared Collateral, (i) until
the earlier of (x) the Discharge of Credit Agreement Obligations and (y) the
2
Non-Controlling Authorized Representative Enforcement Date, the Administrative Agent and (ii)
from and after the earlier of (x) the Discharge of Credit Agreement Obligations and (y) the
Non-Controlling Authorized Representative Enforcement Date, the Major Non-Controlling Authorized
Representative.
“Authorized Representative” means (i) in the case of any Credit Agreement Obligations or the
Credit Agreement Secured Parties, the Administrative Agent, (ii) in the case of the Initial
Additional First Lien Obligations or the Initial Additional First Lien Secured Parties, the Initial
Additional Authorized Representative and (iii) in the case of any Series of Additional First Lien
Obligations or Additional First Lien Secured Parties that become subject to this Agreement after
the date hereof, the Authorized Representative named for such Series in the applicable Joinder
Agreement.
“Bankruptcy Case” shall have the meaning assigned to such term in Section 2.05(b).
“Bankruptcy Code” shall mean Title 11 of the United States Code, as amended.
“Bankruptcy Law” shall mean the Bankruptcy Code and any similar Federal, state or foreign law
for the relief of debtors.
“Collateral” means all assets and properties subject to Liens created pursuant to any First
Lien Security Document to secure one or more Series of First Lien Obligations.
“Collateral Agent” shall have the meaning assigned to such term in the introductory paragraph
hereof.
“Controlling Secured Parties” means, with respect to any Shared Collateral, the Series of
First Lien Secured Parties whose Authorized Representative is the Applicable Authorized
Representative for such Shared Collateral.
“Credit Agreement” means that certain Credit Agreement, dated as of November 17, 2006 (as
amended February 16, 2007, as further amended March 2, 2009, and as further amended, restated,
supplemented or otherwise modified, refinanced or replaced from time to time, the “Credit
Agreement”), among HCA Inc. (the “Company” or “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, the Administrative Agent and the other
parties thereto.
“Credit Agreement Obligations” means the “Obligations” as defined in the Credit Agreement.
“Credit Agreement Secured Parties” means the “Secured Parties” as defined in the Credit
Agreement.
“DIP Financing” shall have the meaning assigned to such term in Section 2.05(b).
3
“DIP Financing Liens” shall have the meaning assigned to such term in Section 2.05(b).
“DIP Lenders” shall have the meaning assigned to such term in Section 2.05(b).
“Discharge” means, with respect to any Shared Collateral and any Series of First Lien
Obligations, the date on which such Series of First Lien Obligations is no longer secured by such
Shared Collateral. The term “Discharged” shall have a corresponding meaning.
“Discharge of Credit Agreement Obligations” means, with respect to any Shared Collateral, the
Discharge of the Credit Agreement Obligations with respect to such Shared Collateral;
provided that the Discharge of Credit Agreement Obligations shall not be deemed to have
occurred in connection with a Refinancing of such Credit Agreement Obligations with additional
First Lien Obligations secured by such Shared Collateral under an Additional First Lien Agreement
which has been designated in writing by the Administrative Agent (under the Credit Agreement so
Refinanced) to the Collateral Agent and each other Authorized Representative as the “Credit
Agreement” for purposes of this Agreement.
“Event of Default” shall have the meaning set forth in the U.S. Security Agreement.
“First Lien Obligations” means, collectively, (i) the Credit Agreement Obligations and (ii)
each Series of Additional First Lien Obligations.
“First Lien Secured Parties” means (a) the Credit Agreement Secured Parties and (ii) the
Additional First Lien Secured Parties with respect to each Series of Additional First Lien
Obligations.
“First Lien Security Documents” means the U.S. Security Agreement and each other agreement
entered into in favor of the Collateral Agent for purposes of securing any Series of First Lien
Obligations.
“Grantors” means the Company and each other Subsidiary or direct or indirect parent company of
the Company which has granted a security interest pursuant to any First Lien Security Document to
secure any Series of First Lien Obligations.
“Impairment” shall have the meaning assigned to such term in Section 1.01(b).
“Initial Additional Authorized Representative” shall have the meaning assigned to such term in
the introductory paragraph to this Agreement.
“Initial Additional First Lien Agreement” means that certain Indenture dated as of April 22,
2009, among the Company, the Guarantors identified therein, Law Debenture Trust Company of New
York, as trustee, and Deutsche Bank Trust Company Americas, as paying agent, registrar and transfer
agent.
“Initial Additional First Lien Obligations” means the Additional First Lien Obligations
pursuant to the Initial Additional First Lien Agreement.
4
“Initial Additional First Lien Secured Parties” means the holders of any Initial Additional
First Lien Obligations and the Initial Additional Authorized Representative.
“Insolvency or Liquidation Proceeding” means:
(1) any case commenced by or against the Company or any other Grantor under any Bankruptcy Law,
any other proceeding for the reorganization, recapitalization or adjustment or marshalling of
the assets or liabilities of the Company or any other Grantor, any receivership or assignment
for the benefit of creditors relating to the Company or any other Grantor or any similar case or
proceeding relative to the Company or any other Grantor 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 Company or any other Grantor, 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 Company or any other Grantor are determined and any payment or distribution is or may be
made on account of such claims.
“Intervening Creditor” shall have the meaning assigned to such term in Section 2.01(a).
“Joinder Agreement” means the documents required to be delivered by an Authorized
Representative to the Collateral Agent pursuant to Section 8.17 of the U.S. Security Agreement in
order to create an additional Series of Additional First Lien Obligations.
“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).
“Major Non-Controlling Authorized Representative” means, with respect to any Shared
Collateral, the Authorized Representative of the Series of Additional First Lien Obligations that
constitutes the largest outstanding principal amount of any then outstanding Series of First Lien
Obligations with respect to such Shared Collateral.
“New York UCC” shall mean the Uniform Commercial Code as from time to time in effect in the
State of New York.
“Non-Controlling Authorized Representative” means, at any time with respect to any Shared
Collateral, any Authorized Representative that is not the Applicable Authorized Representative at
such time with respect to such Shared Collateral.
“Non-Controlling Authorized Representative Enforcement Date” means, with respect to any
Non-Controlling Authorized Representative, the date which is 90 days (throughout which 90 day
period such Non-Controlling Authorized Representative was the Major Non-Controlling Authorized
Representative) after the occurrence of both (i) an Event of Default (under and as defined in the
Additional First Lien Agreement under which such Non-Controlling
5
Authorized Representative is the Authorized Representative) and (ii) the Collateral
Agent’s and each other Authorized Representative’s receipt of written notice from such
Non-Controlling Authorized Representative certifying that (x) such Non-Controlling Authorized
Representative is the Major Non-Controlling Authorized Representative and that an Event of Default
(under and as defined in the Additional First Lien Agreement under which such Non-Controlling
Authorized Representative is the Authorized Representative) has occurred and is continuing and (y)
the First Lien Obligations of the Series with respect to which such Non-Controlling Authorized
Representative is the Authorized Representative are currently due and payable in full (whether as a
result of acceleration thereof or otherwise) in accordance with the terms of the applicable
Additional First Lien Agreement; provided that the Non-Controlling Authorized
Representative Enforcement Date shall be stayed and shall not occur and shall be deemed not to have
occurred with respect to any Shared Collateral (1) at any time the Administrative Agent or the
Collateral Agent has commenced and is diligently pursuing any enforcement action with respect to
such Shared Collateral or (2) at any time the Grantor which has granted a security interest in such
Shared Collateral is then a debtor under or with respect to (or otherwise subject to) any
Insolvency or Liquidation Proceeding.
“Non-Controlling Secured Parties” means, with respect to any Shared Collateral, the First Lien
Secured Parties which are not Controlling Secured Parties with respect to such Shared Collateral.
“Possessory Collateral” means any Shared Collateral in the possession of the Collateral Agent
(or its agents or bailees), to the extent that possession thereof perfects a Lien thereon under the
Uniform Commercial Code of any jurisdiction. Possessory Collateral includes, without limitation,
any Certificated Securities, Promissory Notes, Instruments, and Chattel Paper, in each case,
delivered to or in the possession of the Collateral Agent under the terms of the First Lien
Security Documents. All capitalized terms used in this definition and not defined elsewhere in this
Agreement have the meanings assigned to them in the New York UCC.
“Proceeds” shall have the meaning assigned to such term in Section 2.01 hereof.
“Refinance” means, in respect of any indebtedness, to refinance, extend, renew, defease,
amend, increase, modify, supplement, restructure, refund, replace or repay, or to issue other
indebtedness or enter alternative financing arrangements, in exchange or replacement for such
indebtedness (in whole or in part), including by adding or replacing lenders, creditors, agents,
borrowers and/or guarantors, and including in each case, but not limited to, after the original
instrument giving rise to such indebtedness has been terminated and including, in each case,
through any credit agreement, indenture or other agreement. “Refinanced” and “Refinancing” have
correlative meanings.
“Secured Credit Document” means (i) the Credit Agreement and the Credit Documents (as defined
in the Credit Agreement), (ii) the Initial Additional First Lien Agreement and (iii) each
Additional First Lien Agreement.
“Series” means (a) with respect to the First Lien Secured Parties, each of (i) the Credit
Agreement Secured Parties (in their capacities as such), (ii) the Initial Additional First Lien
Secured Parties (in their capacity as such) and (iii) the Additional First Lien Secured Parties
6
that become subject to this Agreement after the date hereof that are represented by a common
Authorized Representative (in its capacity as such for such Additional First Lien Secured Parties)
and (b) with respect to any First Lien Obligations, each of (i) the Credit Agreement Obligations,
(ii) the Initial Additional First Lien Obligations and (iii) the Additional First Lien Obligations
incurred pursuant to any Additional First Lien Agreement, which pursuant to any Joinder Agreement,
are to be represented hereunder by a common Authorized Representative (in its capacity as such for
such Additional First Lien Obligations).
“Shared Collateral” means, at any time, Collateral in which the holders of two or more Series
of First Lien Obligations (or their respective Authorized Representatives) hold a valid and
perfected security interest at such time. If more than two Series of First Lien Obligations are
outstanding at any time and the holders of less than all Series of First Lien Obligations hold a
valid and perfected security interest in any Collateral at such time, then such Collateral shall
constitute Shared Collateral for those Series of First Lien Obligations that hold a valid security
interest in such Collateral at such time and shall not constitute Shared Collateral for any Series
which does not have a valid and perfected security interest in such Collateral at such time.
“U.S. Security Agreement” means the amended and restated Security Agreement, dated as of March
2, 2009, by and among the Grantors party thereto, the Collateral Agent and the Authorized
Representatives from time to time party thereto, as the same may be further amended, restated or
modified from time to time.
ARTICLE II
Priorities and Agreements with Respect to Shared Collateral
SECTION 2.01 Priority of Claims.
(a) Anything contained herein or in any of the Secured Credit Documents to the contrary
notwithstanding (but subject to Section 1.01(b)), if an Event of Default has occurred and is
continuing, and the Collateral Agent or any First Lien Secured Party is taking action to enforce
rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared
Collateral in any Bankruptcy Case of any Grantor or any First Lien Secured Party receives any
payment pursuant to any intercreditor agreement (other than this Agreement) with respect to any
Shared Collateral, the proceeds of any sale, collection or other liquidation of any such Collateral
by any First Lien Secured Party or received by the Collateral Agent or any First Lien Secured Party
pursuant to any such intercreditor agreement with respect to such Shared Collateral and proceeds of
any such distribution (subject, in the case of any such distribution, to the sentence immediately
following) to which the First Lien Obligations are entitled under any intercreditor agreement
(other than this Agreement) (all proceeds of any sale, collection or other liquidation of any
Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”),
shall be applied (i) FIRST, to the payment of all amounts owing to the Collateral Agent (in its
capacity as such) pursuant to the terms of any Secured Credit Document and (ii) SECOND, subject to
Section 1.01(b), to the payment in full of the First Lien Obligations of each Series on a ratable
basis in accordance with the terms of the applicable Secured Credit Documents. Notwithstanding the
foregoing, with respect to any Shared Collateral for which a
7
third party (other than a First Lien Secured Party) has a lien or security interest that is
junior in priority to the security interest of any Series of First Lien Obligations but senior (as
determined by appropriate legal proceedings in the case of any dispute) to the security interest of
any other Series of First Lien Obligations (such third party an “Intervening Creditor”), the value
of any Shared Collateral or Proceeds which are allocated to such Intervening Creditor shall be
deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in
respect of the Series of First Lien Obligations with respect to which such Impairment exists.
(b) It is acknowledged that the First Lien Obligations of any Series may, subject to the
limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed,
replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended
or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or
the provisions of this Agreement defining the relative rights of the First Lien Secured Parties of
any Series.
(c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection
of any Liens securing any Series of First Lien Obligations granted on the Shared Collateral and
notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other
applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing
the First Lien Obligations of any Series or any other circumstance whatsoever (but, in each case,
subject to Section 1.01(b)), each First Lien Secured Party hereby agrees that the Liens securing
each Series of First Lien Obligations on any Shared Collateral shall be of equal priority.
SECTION 2.02 Actions With Respect to Shared Collateral; Prohibition on Contesting
Liens.
(a) With respect to any Shared Collateral, (i) only the Collateral Agent shall act or refrain
from acting with respect to the Shared Collateral (including with respect to any intercreditor
agreement with respect to any Shared Collateral), and then only on the instructions of the
Applicable Authorized Representative, (ii) the Collateral Agent shall not follow any instructions
with respect to such Shared Collateral (including with respect to any intercreditor agreement with
respect to any Shared Collateral) from any Non-Controlling Authorized Representative (or any other
First Lien Secured Party other than the Applicable Authorized Representative) and (iii) no
Non-Controlling Authorized Representative or other First Lien Secured Party (other than the
Applicable Authorized Representative) shall or shall instruct the Collateral Agent to, commence any
judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver,
liquidator or similar official appointed for or over, attempt any action to take possession of,
exercise any right, remedy or power with respect to, or otherwise take any action to enforce its
security interest in or realize upon, or take any other action available to it in respect of, any
Shared Collateral (including with respect to any intercreditor agreement with respect to any Shared
Collateral), whether under any First Lien Security Document, applicable law or otherwise, it being
agreed that only the Collateral Agent, acting on the instructions of the Applicable Authorized
Representative and in accordance with the applicable First Lien Security Documents, shall be
entitled to take any such actions or exercise any such remedies with respect to Shared Collateral.
Notwithstanding the equal priority of the Liens, the Collateral Agent (acting on the instructions
of the Applicable Authorized
8
Representative) may deal with the Shared Collateral as if such Applicable Authorized
Representative had a senior Lien on such Collateral. No Non-Controlling Authorized Representative
or Non-Controlling Secured Party will contest, protest or object to any foreclosure proceeding or
action brought by the Collateral Agent, Applicable Authorized Representative or Controlling Secured
Party or any other exercise by the Collateral Agent, Applicable Authorized Representative or
Controlling Secured Party of any rights and remedies relating to the Shared Collateral, or to cause
the Collateral Agent to do so. The foregoing shall not be construed to limit the rights and
priorities of any First Lien Secured Party, Collateral Agent or Authorized Representative with
respect to any Collateral not constituting Shared Collateral.
(b) Each of the Authorized Representatives agrees that it will not accept any Lien on any
Collateral for the benefit of any Series of First Lien Obligations (other than funds deposited for
the discharge or defeasance of any Additional First Lien Agreement) other than pursuant to the
First Lien Security Documents, and by executing this Agreement (or a Joinder Agreement), each
Authorized Representative and the Series of First Lien Secured Parties for which it is acting
hereunder agree to be bound by the provisions of this Agreement and the other First Lien Security
Documents applicable to it.
(c) Each of the First Lien Secured Parties agrees that it will not (and hereby waives any
right to) contest or support any other Person in contesting, in any proceeding (including any
Insolvency or Liquidation Proceeding), the perfection, priority, validity or enforceability of a
Lien held by or on behalf of any of the First Lien Secured Parties in all or any part of the
Collateral, or the provisions of this Agreement; provided that nothing in this Agreement
shall be construed to prevent or impair the rights of any of the Collateral Agent or any Authorized
Representative to enforce this Agreement.
SECTION 2.03 No Interference; Payment Over.
(a) Each First Lien Secured Party agrees that (i) it will not challenge or question in any
proceeding the validity or enforceability of any First Lien Obligations of any Series or any First
Lien Security Document or the validity, attachment, perfection or priority of any Lien under any
First Lien Security Document or the validity or enforceability of the priorities, rights or duties
established by or other provisions of this Agreement; (ii) it will not take or cause to be taken
any action the purpose or intent of which is, or could be, to interfere, hinder or delay, in any
manner, whether by judicial proceedings or otherwise, any sale, transfer or other disposition of
the Shared Collateral by the Collateral Agent, (iii) except as provided in Section 2.02, it shall
have no right to (A) direct the Collateral Agent or any other First Lien Secured Party to exercise
any right, remedy or power with respect to any Shared Collateral (including pursuant to any
intercreditor agreement) or (B) consent to the exercise by the Collateral Agent or any other First
Lien Secured Party of any right, remedy or power with respect to any Shared Collateral, (iv) it
will not institute any suit or assert in any suit, bankruptcy, insolvency or other proceeding any
claim against the Collateral Agent or any other First Lien Secured Party seeking damages from or
other relief by way of specific performance, instructions or otherwise with respect to any Shared
Collateral, and none of the Collateral Agent, any Applicable Authorized Representative or any other
First Lien Secured Party shall be liable for any action taken or omitted to be taken by the
Collateral Agent, such Applicable Authorized
9
Representative or other First Lien Secured Party with respect to any Shared Collateral in
accordance with the provisions of this Agreement, (v) it will not seek, and hereby waives any
right, to have any Shared Collateral or any part thereof marshaled upon any foreclosure or other
disposition of such Collateral and (vi) it will not attempt, directly or indirectly, whether by
judicial proceedings or otherwise, to challenge the enforceability of any provision of this
Agreement; provided that nothing in this Agreement shall be construed to prevent or impair
the rights of any of the Collateral Agent or any other First Lien Secured Party to enforce this
Agreement.
(b) Each First Lien Secured Party hereby agrees that if it shall obtain possession of any
Shared Collateral or shall realize any proceeds or payment in respect of any such Shared
Collateral, pursuant to any First Lien Security Document or by the exercise of any rights available
to it under applicable law or in any Insolvency or Liquidation Proceeding or through any other
exercise of remedies (including pursuant to any intercreditor agreement), at any time prior to the
Discharge of each of the First Lien Obligations, then it shall hold such Shared Collateral,
proceeds or payment in trust for the other First Lien Secured Parties and promptly transfer such
Shared Collateral, proceeds or payment, as the case may be, to the Collateral Agent, to be
distributed in accordance with the provisions of Section 2.01 hereof.
SECTION 2.04 Automatic Release of Liens; Amendments to First Lien Security
Documents.
(a) If, at any time the Collateral Agent forecloses upon or otherwise exercises remedies
against any Shared Collateral, then (whether or not any Insolvency or Liquidation Proceeding is
pending at the time) the Liens in favor of the Collateral Agent for the benefit of each Series of
First Lien Secured Parties upon such Shared Collateral will automatically be released and
discharged; provided that any proceeds of any Shared Collateral realized therefrom shall be
applied pursuant to Section 2.01 hereof.
(b) Each First Lien Secured Party agrees that the Collateral Agent may enter into any
amendment (and, upon request by the Collateral Agent, each Authorized Representative shall sign a
consent to such amendment) to any First Lien Security Document, so long as the Collateral Agent
receives a certificate of the Company stating that such amendment is permitted by the terms of each
then extant Secured Credit Document. Additionally, each First Lien Secured Party agrees that the
Collateral Agent may enter into any amendment (and, upon request by the Collateral Agent, each
Authorized Representative shall sign a consent to such amendment) to any First Lien Security
Document solely as such First Lien Security Document relates to a particular Series of First Lien
Obligations so long as (x) such amendment is in accordance with the Secured Credit Document
pursuant to which such Series of First Lien Obligations was incurred and (y) such amendment does
not adversely affect the First Lien Secured Parties of any other Series.
(c) Each Authorized Representative agrees to execute and deliver (at the sole cost and expense
of the Grantors) all such authorizations and other instruments as shall reasonably be requested by
the Collateral Agent to evidence and confirm any release of Shared Collateral or amendment to any
First Lien Security Document provided for in this Section.
10
SECTION 2.05 Certain Agreements With Respect to Bankruptcy or Insolvency
Proceedings.
(a) This Agreement shall continue in full force and effect notwithstanding the commencement of
any proceeding under the Bankruptcy Code or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar law by or against the Company or any of its subsidiaries.
(b) If any Grantor shall become subject to a case (a “Bankruptcy Case”) under the Bankruptcy
Code and shall, as debtor(s)-in-possession, move for approval of financing (“DIP Financing”) to be
provided by one or more lenders (the “DIP Lenders”) under Section 364 of the Bankruptcy Code or the
use of cash collateral under Section 363 of the Bankruptcy Code, each First Lien Secured Party
agrees that it will raise no objection to any such financing or to the Liens on the Shared
Collateral securing the same (“DIP Financing Liens”) or to any use of cash collateral that
constitutes Shared Collateral, unless any Controlling Secured Party, or an Authorized
Representative of any Controlling Secured Party, shall then oppose or object to such DIP Financing
or such DIP Financing Liens or use of cash collateral (and (i) to the extent that such DIP
Financing Liens are senior to the Liens on any such Shared Collateral for the benefit of the
Controlling Secured Parties, each Non-Controlling Secured Party will subordinate its Liens with
respect to such Shared Collateral on the same terms as the Liens of the Controlling Secured Parties
(other than any Liens of any First Lien Secured Parties constituting DIP Financing Liens) are
subordinated thereto, and (ii) to the extent that such DIP Financing Liens rank pari passu with the
Liens on any such Shared Collateral granted to secure the First Lien Obligations of the Controlling
Secured Parties, each Non-Controlling Secured Party will confirm the priorities with respect to
such Shared Collateral as set forth herein), in each case so long as (A) the First Lien Secured
Parties of each Series retain the benefit of their Liens on all such Shared Collateral pledged to
the DIP Lenders, including proceeds thereof arising after the commencement of such proceeding, with
the same priority vis-a-vis all the other First Lien Secured Parties (other than any Liens of the
First Lien Secured Parties constituting DIP Financing Liens) as existed prior to the commencement
of the Bankruptcy Case, (B) the First Lien Secured Parties of each Series are granted Liens on any
additional collateral pledged to any First Lien Secured Parties as adequate protection or otherwise
in connection with such DIP Financing or use of cash collateral, with the same priority vis-a-vis
the First Lien Secured Parties as set forth in this Agreement, (C) if any amount of such DIP
Financing or cash collateral is applied to repay any of the First Lien Obligations, such amount is
applied pursuant to Section 2.01 of this Agreement, and (D) if any First Lien Secured Parties are
granted adequate protection, including in the form of periodic payments, in connection with such
DIP Financing or use of cash collateral, the proceeds of such adequate protection is applied
pursuant to Section 2.01 of this Agreement; provided that the First Lien Secured Parties of
each Series shall have a right to object to the grant of a Lien to secure the DIP Financing over
any Collateral subject to Liens in favor of the First Lien Secured Parties of such Series or its
Authorized Representative that shall not constitute Shared Collateral; and provided,
further, that the First Lien Secured Parties receiving adequate protection shall not object
to any other First Lien Secured Party receiving adequate protection comparable to any adequate
protection granted to such First Lien Secured Parties in connection with a DIP Financing or use of
cash collateral.
11
SECTION 2.06 Reinstatement. In the event that any of the First Lien Obligations shall be
paid in full and such payment or any part thereof shall subsequently, for whatever reason
(including an order or judgment for disgorgement of a preference under Title 11 of the United
Stated Code, or any similar law, or the settlement of any claim in respect thereof), be required to
be returned or repaid, the terms and conditions of this Article II shall be fully applicable
thereto until all such First Lien Obligations shall again have been paid in full in cash.
SECTION 2.07 Insurance. As between the First Lien Secured Parties, the Collateral Agent,
acting at the direction of the Applicable Authorized Representative, shall have the right to adjust
or settle any insurance policy or claim covering or constituting Shared Collateral in the event of
any loss thereunder and to approve any award granted in any condemnation or similar proceeding
affecting the Shared Collateral.
SECTION 2.08 Refinancings. The First Lien Obligations of any Series may be Refinanced, in
whole or in part, in each case, without notice to, or the consent (except to the extent a consent
is otherwise required to permit the refinancing transaction under any Secured Credit Document) of
any First Lien Secured Party of any other Series, all without affecting the priorities provided for
herein or the other provisions hereof; provided that the Authorized Representative of the
holders of any such Refinancing indebtedness shall have executed a Joinder Agreement on behalf of
the holders of such Refinancing indebtedness.
SECTION 2.09 Possessory Collateral Agent as Gratuitous Bailee for Perfection.
(a) The Collateral Agent agrees to hold any Shared Collateral constituting Possessory
Collateral that is part of the Collateral in its possession or control (or in the possession or
control of its agents or bailees) as gratuitous bailee for the benefit of each other First Lien
Secured Party and any assignee solely for the purpose of perfecting the security interest granted
in such Possessory Collateral, if any, pursuant to the applicable First Lien Security Documents, in
each case, subject to the terms and conditions of this Section 2.09. Pending delivery to the
Collateral Agent, each other Authorized Representative agrees to hold any Shared Collateral
constituting Possessory Collateral, from time to time in its possession, as gratuitous bailee for
the benefit of each other First Lien Secured Party and any assignee, solely for the purpose of
perfecting the security interest granted in such Possessory Collateral, if any, pursuant to the
applicable First Lien Security Documents, in each case, subject to the terms and conditions of this
Section 2.09.
(b) The duties or responsibilities of the Collateral Agent and each other Authorized
Representative under this Section 2.09 shall be limited solely to holding any Shared Collateral
constituting Possessory Collateral as gratuitous bailee for the benefit of each other First Lien
Secured Party for purposes of perfecting the Lien held by such First Lien Secured Parties therein.
12
ARTICLE III
Existence and Amounts of Liens and Obligations
Whenever the Collateral Agent or any Authorized Representative shall be required, in
connection with the exercise of its rights or the performance of its obligations hereunder, to
determine the existence or amount of any First Lien Obligations of any Series, or the Shared
Collateral subject to any Lien securing the First Lien Obligations of any Series, it may request
that such information be furnished to it in writing by each other Authorized Representative and
shall be entitled to make such determination on the basis of the information so furnished;
provided, however, that if an Authorized Representative shall fail or refuse
reasonably promptly to provide the requested information, the requesting Collateral Agent or
Authorized Representative shall be entitled to make any such determination by such method as it
may, in the exercise of its good faith judgment, determine, including by reliance upon a
certificate of the Company. The Collateral Agent and each Authorized Representative may rely
conclusively, and shall be fully protected in so relying, on any determination made by it in
accordance with the provisions of the preceding sentence (or as otherwise directed by a court of
competent jurisdiction) and shall have no liability to any Grantor, any First Lien Secured Party or
any other person as a result of such determination.
ARTICLE IV
The Collateral Agent
SECTION 4.01 Appointment and Authority.
(a) Each of the First Lien Secured Parties hereby irrevocably appoints Bank of America, N.A.
to act on its behalf as the Collateral Agent hereunder and under each of the other First Lien
Security Documents and authorizes the Collateral Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Collateral Agent by the terms hereof or thereof,
including for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted
by any Grantor to secure any of the First Lien Obligations, together with such powers and
discretion as are reasonably incidental thereto. In this connection, the Collateral Agent and any
co-agents, sub-agents and attorneys-in-fact appointed by the Collateral Agent pursuant to Section
4.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof)
granted under any of the First Lien Security Documents, or for exercising any rights and remedies
thereunder at the direction of the Applicable Authorized Representative), shall be entitled to the
benefits of all provisions of this Article IV and Section 14.05 of the Credit Agreement and the
equivalent provision of any Additional First Lien Agreement (as though such co-agents, sub-agents
and attorneys-in-fact were the “Collateral Agent” under the First Lien Security Documents) as if
set forth in full herein with respect thereto.
(b) Each Non-Controlling Secured Party acknowledges and agrees that the Collateral Agent shall
be entitled, for the benefit of the First Lien Secured Parties, to sell, transfer or otherwise
dispose of or deal with any Shared Collateral as provided herein and in the First Lien Security
Documents, without regard to any rights to which the holders of the Non-
13
Controlling Secured Obligations would otherwise be entitled as a result of such
Non-Controlling Secured Obligations. Without limiting the foregoing, each Non-Controlling Secured
Party agrees that none of the Collateral Agent, the Applicable Authorized Representative or any
other First Lien Secured Party shall have any duty or obligation first to marshal or realize upon
any type of Shared Collateral (or any other Collateral securing any of the First Lien Obligations),
or to sell, dispose of or otherwise liquidate all or any portion of such Shared Collateral (or any
other Collateral securing any First Lien Obligations), in any manner that would maximize the return
to the Non-Controlling Secured Parties, notwithstanding that the order and timing of any such
realization, sale, disposition or liquidation may affect the amount of proceeds actually received
by the Non-Controlling Secured Parties from such realization, sale, disposition or liquidation.
Each of the First Lien Secured Parties waives any claim it may now or hereafter have against the
Collateral Agent or the Authorized Representative of any other Series of First Lien Obligations or
any other First Lien Secured Party of any other Series arising out of (i) any actions which the
Collateral Agent, any Authorized Representative or any First Lien Secured Party takes or omits to
take (including, actions with respect to the creation, perfection or continuation of Liens on any
Collateral, actions with respect to the foreclosure upon, sale, release or depreciation of, or
failure to realize upon, any of the Collateral and actions with respect to the collection of any
claim for all or any part of the First Lien Obligations from any account debtor, guarantor or any
other party) in accordance with the First Lien Security Documents or any other agreement related
thereto or to the collection of the First Lien Obligations or the valuation, use, protection or
release of any security for the First Lien Obligations, (ii) any election by any Applicable
Authorized Representative or any holders of First Lien Obligations, in any proceeding instituted
under the Bankruptcy Code, of the application of Section 1111(b) of the Bankruptcy Code or (iii)
subject to Section 2.05, any borrowing by, or grant of a security interest or administrative
expense priority under Section 364 of the Bankruptcy Code by, the Company or any of its
subsidiaries, as debtor-in-possession. Notwithstanding any other provision of this Agreement, the
Collateral Agent shall not accept any Shared Collateral in full or partial satisfaction of any
First Lien Obligations pursuant to Section 9-620 of the Uniform Commercial Code of any
jurisdiction, without the consent of each Authorized Representative representing holders of First
Lien Obligations for whom such Collateral constitutes Shared Collateral.
SECTION 4.02 Rights as a First Lien Secured Party.
The Person serving as the Collateral Agent hereunder shall have the same rights and powers in
its capacity as a First Lien Secured Party under any Series of First Lien Obligations that it holds
as any other First Lien Secured Party of such Series and may exercise the same as though it were
not the Collateral Agent and the term “First Lien Secured Party” or “First Lien Secured Parties” or
(as applicable) “Credit Agreement Secured Party”, “Credit Agreement Secured Parties”, “Additional
First Lien Secured Party” or “Additional First Lien Secured Parties” shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person serving as the
Collateral Agent hereunder in its individual capacity. Such Person and its Affiliates may accept
deposits from, lend money to, act as the financial advisor or in any other advisory capacity for
and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate
thereof as if such Person were not the Collateral Agent hereunder and without any duty to account
therefor to any other First Lien Secured Party.
14
SECTION 4.03 Exculpatory Provisions.
(a) The Collateral Agent shall not have any duties or obligations except those expressly set
forth herein and in the other First Lien Security Documents. Without limiting the generality of
the foregoing, the Collateral Agent:
| (i) | shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing; | ||
| (ii) | shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other First Lien Security Documents that the Collateral Agent is required to exercise as directed in writing by the Applicable Authorized Representative; provided that the Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any First Lien Security Document or applicable law; | ||
| (iii) | shall not, except as expressly set forth herein and in the other First Lien Security Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Affiliates that is communicated to or obtained by the Person serving as the Collateral Agent or any of its Affiliates in any capacity; | ||
| (iv) | shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Applicable Authorized Representative or (ii) in the absence of its own gross negligence or willful misconduct or (iii) in reliance on a certificate of an authorized officer of the Company stating that such action is permitted by the terms of this Agreement. The Collateral Agent shall be deemed not to have knowledge of any Event of Default under any Series of First Lien Obligations unless and until notice describing such Event Default is given to the Collateral Agent by the Authorized Representative of such First Lien Obligations or the Company; and | ||
| (v) | shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other First Lien Security Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other First Lien Security Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the First Lien Security Documents, (v) the value or the sufficiency of any Collateral for any Series of First |
15
| Lien Obligations, or (v) the satisfaction of any condition set forth in any Secured Credit Document, other than to confirm receipt of items expressly required to be delivered to the Collateral Agent. |
SECTION 4.04 Reliance by Collateral Agent.
The Collateral Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing (including any electronic message, Internet or intranet website posting or other
distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated
by the proper Person. The Collateral Agent also may rely upon any statement made to it orally or
by telephone and believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. The Collateral Agent may consult with legal counsel (who may be
counsel for the Company), independent accountants and other experts selected by it, and shall not
be liable for any action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
SECTION 4.05 Delegation of Duties.
The Collateral Agent may perform any and all of its duties and exercise its rights and powers
hereunder or under any other First Lien Security Document by or through any one or more sub-agents
appointed by the Collateral Agent. The Collateral Agent and any such sub-agent may perform any and
all of its duties and exercise its rights and powers by or through their respective Affiliates.
The exculpatory provisions of this Article shall apply to any such sub-agent and to the Affiliates
of the Collateral Agent and any such sub-agent.
SECTION 4.06 Resignation of Collateral Agent.
The Collateral Agent may at any time give notice of its resignation as Collateral Agent under
this Agreement and the other First Lien Security Documents to each Authorized Representative and
the Company. Upon receipt of any such notice of resignation, the Applicable Authorized
Representative shall have the right, in consultation with the Company, 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 Applicable
Authorized Representative and shall have accepted such appointment within 30 days after the
retiring Collateral Agent gives notice of its resignation, then the retiring Collateral Agent may,
on behalf of the First Lien Secured Parties, appoint a successor Collateral Agent meeting the
qualifications set forth above; provided that if the Collateral Agent shall notify the
Company and each Authorized Representative that no qualifying Person has accepted such appointment,
then such resignation shall nonetheless become effective in accordance with such notice and (a) the
retiring Collateral Agent shall be discharged from its duties and obligations hereunder and under
the other First Lien Security Documents (except that in the case of any collateral security held by
the Collateral Agent on behalf of the First Lien Secured Parties under any of the First Lien
Security Documents, the retiring Collateral Agent shall continue to hold such collateral security
solely for purposes of maintaining the perfection of the security interests of the First Lien
Secured Parties therein until such time as a successor Collateral Agent is
16
appointed but with no obligation to take any further action at the request of the Applicable
Authorized Representative or any other First Lien Secured Parties) and (b) all payments,
communications and determinations provided to be made by, to or through the Collateral Agent shall
instead be made by or to each Authorized Representative directly, until such time as the Applicable
Authorized Representative appoints a successor Collateral Agent as provided for above in this
Section. Upon the acceptance of a successor’s appointment as Collateral Agent hereunder and under
the First Lien Security Documents, such successor shall succeed to and become vested with all of
the rights, powers, privileges and duties of the retiring (or retired) Collateral Agent, and the
retiring Collateral Agent shall be discharged from all of its duties and obligations hereunder or
under the other First Lien Security Documents (if not already discharged therefrom as provided
above in this Section). After the retiring Collateral Agent’s resignation hereunder and under the
other Loan Documents, the provisions of this Article and Section 14.05 of the Credit Agreement and
the equivalent provision of any Additional First Lien Agreement shall continue in effect for the
benefit of such retiring Collateral 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 Collateral
Agent was acting as Collateral Agent. Upon any notice of resignation of the Collateral Agent
hereunder and under the other First Lien Security Documents, the Company agrees to use commercially
reasonable efforts to transfer (and maintain the validity and priority of) the Liens in favor of
the retiring Collateral Agent under the First Lien Security Documents to the successor Collateral
Agent.
SECTION 4.07 Non-Reliance on Collateral Agent and other First Lien Secured Parties.
Each First Lien Secured Party acknowledges that it has, independently and without reliance
upon the Collateral Agent, any Authorized Representative or any other First Lien Secured Party or
any of their Affiliates and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement and the other Secured Credit
Documents. Each First Lien Secured Party also acknowledges that it will, independently and without
reliance upon the Collateral Agent, any Authorized Representative or any other First Lien Secured
Party or any of their Affiliates and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not taking action under
or based upon this Agreement, any other Secured Credit Document or any related agreement or any
document furnished hereunder or thereunder.
SECTION 4.08 Collateral and Guaranty Matters.
Each of the First Lien Secured Parties irrevocably authorizes the Collateral Agent, at its
option and in its discretion,
(a) to release any Lien on any property granted to or held by the Collateral Agent under any
First Lien Security Document in accordance with Section 2.04 or upon receipt of a written request
from the Company stating that the releases of such Lien is permitted by the terms of each then
extant Secured Credit Document;
17
(b) to release any Grantor from its obligations under the First Lien Security Documents upon
receipt of a written request from the Company stating that such release is permitted by the terms
of each then extant Secured Credit Document.
ARTICLE V
Miscellaneous
SECTION 5.01 Notices. All notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Collateral Agent or the Administrative Agent, to it at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇, Agency
Management (Telephone: (▇▇▇) ▇▇▇-▇▇▇▇, Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇ and Electronic Mail:
▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇); and with a copy to Bank of America, N.A., ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, SVP, (Telephone: (▇▇▇) ▇▇▇-▇▇▇▇,
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇ and Electronic Mail: ▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇);
(b) if to the Initial Additional Authorized Representative, to it at Law Debenture Trust
Company of New York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Administration (Telephone: (▇▇▇) ▇▇▇-▇▇▇▇; Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇);
(c) if to any other Additional Authorized Representative, to it at the address set forth in
the applicable Joinder Agreement.
Any party hereto may change its address or telecopy number for notices and other communications
hereunder by notice to the other parties hereto. All notices and other communications given to any
party hereto in accordance with the provisions of this Agreement shall be deemed to have been given
on the date of receipt (if a Business Day) and on the next Business Day thereafter (in all other
cases) if delivered by hand or overnight courier service or sent by telecopy or on the date five
Business Days after dispatch by certified or registered mail if mailed, in each case delivered,
sent or mailed (properly addressed) to such party as provided in this Section 5.01 or in accordance
with the latest unrevoked direction from such party given in accordance with this Section 5.01. As
agreed to in writing among the Collateral Agent and each Authorized Representative from time to
time, notices and other communications may also be delivered by e-mail to the e-mail address of a
representative of the applicable person provided from time to time by such person.
SECTION 5.02 Waivers; Amendment; Joinder Agreements.
(a) No failure or delay on the part of any party hereto in exercising any right or power
hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such
right or power, or any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other right or
18
power. The rights and remedies of the parties hereto are cumulative and are not exclusive of
any rights or remedies that they would otherwise have. No waiver of any provision of this
Agreement or consent to any departure by any party therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall
be effective only in the specific instance and for the purpose for which given. No notice or
demand on any party hereto in any case shall entitle such party to any other or further notice or
demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be terminated, waived, amended or
modified (other than pursuant to any Joinder Agreement) except pursuant to an agreement or
agreements in writing entered into by each Authorized Representative and the Collateral Agent.
(c) Notwithstanding the foregoing, without the consent of any First Lien Secured Party, any
Authorized Representative may become a party hereto by execution and delivery of Joinder Agreement
in accordance with Section 8.17 of the U.S. Security Agreement and upon such execution and
delivery, such Authorized Representative and the Additional First Lien Secured Parties and
Additional First Lien Obligations of the Series for which such Authorized Representative is acting
shall be subject to the terms hereof and the terms of the other First Lien Security Documents
applicable thereto.
SECTION 5.03 Parties in Interest. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns, as well as the other
First Lien Secured Parties, all of whom are intended to be bound by, and to be third party
beneficiaries of, this Agreement.
SECTION 5.04 Survival of Agreement. All covenants, agreements, representations and
warranties made by any party in this Agreement shall be considered to have been relied upon by the
other parties hereto and shall survive the execution and delivery of this Agreement.
SECTION 5.05 Counterparts. This Agreement may be executed in counterparts, each of which
shall constitute an original but all of which when taken together shall constitute a single
contract. Delivery of an executed signature page to this Agreement by facsimile transmission shall
be as effective as delivery of a manually signed counterpart of this Agreement.
SECTION 5.06 Severability. Any provision of this Agreement held to be invalid, illegal or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other jurisdiction. The
parties 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.
19
SECTION 5.07 Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance with and governed by the law of the State
of New York.
SECTION 5.08 Submission To Jurisdiction Waivers. The Collateral Agent and each Authorized
Representative, on behalf of itself and the First Lien Secured Parties of the Series for whom it is
acting, irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding relating to
this Agreement and the First Lien Security Documents, 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 (or its Authorized Representative) at the address
referred to in 5.01;
(d) agrees that nothing herein shall affect the right of any other party hereto (or any
First Lien 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 First Lien Secured Party) to ▇▇▇ 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 5.08 any special,
exemplary, punitive or consequential damages.
SECTION 5.09 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY
COUNTERCLAIM THEREIN.
SECTION 5.10 Headings. Article, Section and Annex headings used herein are for convenience
of reference only, are not part of this Agreement and are not to affect the construction of, or to
be taken into consideration in interpreting, this Agreement.
SECTION 5.11 Conflicts. In the event of any conflict or inconsistency between the provisions
of this Agreement and the provisions of any of the other Secured Credit Documents or First Lien
Security Documents (other than the Receivables Intercreditor
20
Agreement and any Additional Receivables Intercreditor Agreement (each as defined in the
Credit Agreement)), the provisions of this Agreement shall control.
SECTION 5.12 Provisions Solely to Define Relative Rights. The provisions of this Agreement
are and are intended solely for the purpose of defining the relative rights of the First Lien
Secured Parties in relation to one another. None of the Company, any other Grantor or any other
creditor thereof shall have any rights or obligations hereunder, except as expressly provided in
this Agreement (provided that nothing in this Agreement (other than Section 2.04, 2.05,
2.08, 2.09 or Article V) is intended to or will amend, waive or otherwise modify the provisions of
the Credit Agreement or any Additional First Lien Agreements), and none of the Company or any other
Grantor may rely on the terms hereof (other than Sections 2.04, 2.05, 2.08, 2.09 and Article V).
Nothing in this Agreement is intended to or shall impair the obligations of any Grantor, which are
absolute and unconditional, to pay the First Lien Obligations as and when the same shall become due
and payable in accordance with their terms.
SECTION 5.13 Integration. This Agreement together with the other Secured Credit Documents and
the First Lien Security Documents represents the agreement of each of the Grantors and the First
Lien Secured Parties with respect to the subject matter hereof and there are no promises,
undertakings, representations or warranties by any Grantor, the Collateral Agent, any or any other
First Lien Secured Party relative to the subject matter hereof not expressly set forth or referred
to herein or in the other Secured Credit Documents or the First Lien Security Documents.
[Remainder of this page intentionally left blank]
21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
| BANK OF AMERICA, N.A., as Administrative Agent and Collateral Agent |
||||
| By: | /s/ ▇▇▇▇▇▇▇▇ ▇. Manduk | |||
| Name: | ▇▇▇▇▇▇▇▇ ▇. Manduk | |||
| Title: | Assistant Vice President | |||
| LAW DEBENTURE TRUST COMPANY OF NEW YORK, as Initial Additional Authorized Representative |
||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Managing Director | |||
CONSENT OF GRANTORS
Dated: April 22, 2009
Reference is made to the First Lien Intercreditor Agreement dated as of the date hereof
between Bank of America, N.A., as Administrative Agent and Collateral Agent and Law Debenture Trust
Company of New York, as Initial Additional Authorized Representative, as the same may be amended,
restated, supplemented, waived, or otherwise modified from time to time (the “Intercreditor
Agreement”). Capitalized terms used but not defined herein shall have the meanings assigned to
such terms in the Intercreditor Agreement.
Each of the undersigned Grantors has read the foregoing Intercreditor Agreement and consents
thereto. Each of the undersigned Grantors agrees not to take any action that would be contrary to
the express provisions of the foregoing Intercreditor Agreement, agrees to abide by the
requirements expressly applicable to it under the foregoing Intercreditor Agreement and agrees
that, except as otherwise provided therein, no First Lien Secured Party shall have any liability to
any Grantor for acting in accordance with the provisions of the foregoing Intercreditor Agreement.
Each Grantor understands that the foregoing Intercreditor Agreement is for the sole benefit of the
First Lien Secured Parties and their respective successors and assigns, and that such Grantor is
not an intended beneficiary or third party beneficiary thereof except to the extent otherwise
expressly provided therein.
Without limitation to the foregoing, each Grantor agrees to take such further action and to
execute and deliver such additional documents and instruments (in recordable form, if requested) as
the Collateral Agent may reasonably request to effectuate the terms of and the lien priorities
contemplated by the Intercreditor Agreement.
This Consent shall be governed and construed in accordance with the laws of the State of New
York. Notices delivered to any Grantor pursuant to this Consent shall be delivered in accordance
with the notice provisions set forth in the Intercreditor Agreement.
IN WITNESS HEREOF, this Consent is hereby executed by each of the Grantors as of the date
first written above.
| HCA INC. |
||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| Title: | Senior Vice President — Finance and Treasurer |
|||
| Each of the GUARANTORS listed on Schedule I here to |
||||
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇ | |||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇ | |||
| Title: | Vice President and Assistant Secretary | |||
SCHEDULE I
Guarantors
American Medicorp Development Co.
Bay Hospital, Inc.
▇▇▇▇▇▇▇ 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 Mainland, L.P.
CHCA West Houston, L.P.
CHCA Woman’s Hospital, L.P.
Chippenham & ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ Subsidiary, L.P.
Columbia Medical Center of Las Colinas, Inc.
Columbia Medical Center of Lewisville Subsidiary, L.P.
Columbia Medical Center of ▇▇▇▇▇▇▇▇ Subsidiary, L.P.
Columbia Medical Center of Plano Subsidiary, L.P.
Columbia North Hills Hospital Subsidiary, L.P.
Columbia ▇▇▇▇▇ 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 ▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.
Columbine Psychiatric Center, Inc.
Columbus Cardiology, Inc.
Conroe Hospital Corporation
Dallas/Ft. Worth Physician, LLC
▇▇▇▇▇▇▇▇▇ Hospital Corporation
Dublin Community Hospital, LLC
Eastern Idaho Health Services, Inc.
▇▇▇▇▇▇ Regional Medical Center, LLC
▇▇▇▇▇▇ ▇▇▇▇▇ Hospital, Inc.
El Paso Surgicenter, Inc.
Bay Hospital, Inc.
▇▇▇▇▇▇▇ 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 Mainland, L.P.
CHCA West Houston, L.P.
CHCA Woman’s Hospital, L.P.
Chippenham & ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ Subsidiary, L.P.
Columbia Medical Center of Las Colinas, Inc.
Columbia Medical Center of Lewisville Subsidiary, L.P.
Columbia Medical Center of ▇▇▇▇▇▇▇▇ Subsidiary, L.P.
Columbia Medical Center of Plano Subsidiary, L.P.
Columbia North Hills Hospital Subsidiary, L.P.
Columbia ▇▇▇▇▇ 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 ▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.
Columbine Psychiatric Center, Inc.
Columbus Cardiology, Inc.
Conroe Hospital Corporation
Dallas/Ft. Worth Physician, LLC
▇▇▇▇▇▇▇▇▇ Hospital Corporation
Dublin Community Hospital, LLC
Eastern Idaho Health Services, Inc.
▇▇▇▇▇▇ Regional Medical Center, LLC
▇▇▇▇▇▇ ▇▇▇▇▇ Hospital, Inc.
El Paso Surgicenter, Inc.
Encino Hospital Corporation, Inc.
EP Health, LLC
Fairview Park GP, LLC
Fairview Park, Limited Partnership
Frankfort Hospital, Inc.
▇▇▇▇▇ Property, LLC
General Healthserv, LLC
Good Samaritan Hospital, ▇.▇.
▇▇▇▇▇▇▇-Trinity Family Care, LLC
GPCH-GP, Inc.
Grand Strand Regional Medical Center, LLC
Green Oaks Hospital Subsidiary, L.P.
Greenview Hospital, Inc.
▇▇▇▇▇▇▇▇ Medical Center, Inc.
HCA — IT&S Field Operations, Inc.
HCA — IT&S Inventory Management, 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.
HCA Realty, Inc.
HD&S Corp. Successor, Inc.
Health Midwest Office Facilities Corporation
Health Midwest Ventures Group, Inc.
Healthtrust MOB, LLC
Hendersonville Hospital Corporation
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.
▇▇▇▇▇-▇▇▇▇ Hospital, Incorporated
▇▇▇▇▇-▇▇▇▇ Medical Center, LLC
▇▇▇▇▇-▇▇▇▇ Physicians, LLC
Los ▇▇▇▇▇▇ Regional Medical Center
EP Health, LLC
Fairview Park GP, LLC
Fairview Park, Limited Partnership
Frankfort Hospital, Inc.
▇▇▇▇▇ Property, LLC
General Healthserv, LLC
Good Samaritan Hospital, ▇.▇.
▇▇▇▇▇▇▇-Trinity Family Care, LLC
GPCH-GP, Inc.
Grand Strand Regional Medical Center, LLC
Green Oaks Hospital Subsidiary, L.P.
Greenview Hospital, Inc.
▇▇▇▇▇▇▇▇ Medical Center, Inc.
HCA — IT&S Field Operations, Inc.
HCA — IT&S Inventory Management, 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.
HCA Realty, Inc.
HD&S Corp. Successor, Inc.
Health Midwest Office Facilities Corporation
Health Midwest Ventures Group, Inc.
Healthtrust MOB, LLC
Hendersonville Hospital Corporation
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.
▇▇▇▇▇-▇▇▇▇ Hospital, Incorporated
▇▇▇▇▇-▇▇▇▇ Medical Center, LLC
▇▇▇▇▇-▇▇▇▇ Physicians, LLC
Los ▇▇▇▇▇▇ Regional Medical Center
Management Services Holdings, Inc.
Marietta Surgical Center, Inc.
▇▇▇▇▇▇ 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.
▇▇▇▇▇▇▇▇▇▇ Regional Hospital, Inc.
Mountain View Hospital, Inc.
Nashville Shared Services General Partnership
National Patient Account Services, Inc.
New Port ▇▇▇▇▇▇ 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.
Pasadena Bayshore Hospital, Inc.
Plantation General Hospital Limited Partnership
Pulaski Community Hospital, Inc.
▇▇▇▇▇▇▇ Park Hospital, LLC
▇▇▇▇▇▇▇ Physician Practice Company
Reston Hospital Center, LLC
Retreat Hospital, LLC
Rio Grande Regional Hospital, Inc.
Riverside Healthcare System, L.P.
Riverside Hospital, Inc.
Samaritan, LLC
San ▇▇▇▇ Healthcare System, LP
San ▇▇▇▇ Hospital, L.P.
San ▇▇▇▇ Medical Center, LLC
Marietta Surgical Center, Inc.
▇▇▇▇▇▇ 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.
▇▇▇▇▇▇▇▇▇▇ Regional Hospital, Inc.
Mountain View Hospital, Inc.
Nashville Shared Services General Partnership
National Patient Account Services, Inc.
New Port ▇▇▇▇▇▇ 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.
Pasadena Bayshore Hospital, Inc.
Plantation General Hospital Limited Partnership
Pulaski Community Hospital, Inc.
▇▇▇▇▇▇▇ Park Hospital, LLC
▇▇▇▇▇▇▇ Physician Practice Company
Reston Hospital Center, LLC
Retreat Hospital, LLC
Rio Grande Regional Hospital, Inc.
Riverside Healthcare System, L.P.
Riverside Hospital, Inc.
Samaritan, LLC
San ▇▇▇▇ Healthcare System, LP
San ▇▇▇▇ Hospital, L.P.
San ▇▇▇▇ Medical Center, LLC
San ▇▇▇▇, 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. Mark’s Lone Peak Hospital, Inc.
Sun City Hospital, Inc.
Sunrise Mountainview Hospital, Inc.
Surgicare of ▇▇▇▇▇▇▇, Inc.
Surgicare of Florida, Inc.
Surgicare of Houston Women’s, Inc.
Surgicare of Manatee, Inc.
Surgicare of Newport ▇▇▇▇▇▇, 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.
▇▇▇▇▇▇ Medical Center, LLC
West Florida Regional Medical Center, Inc.
West Valley Medical Center, Inc.
Western Plains Capital, Inc.
WHMC, Inc.
Woman’s Hospital of Texas, Incorporated
Women’s and Children’s Hospital, Inc.
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. Mark’s Lone Peak Hospital, Inc.
Sun City Hospital, Inc.
Sunrise Mountainview Hospital, Inc.
Surgicare of ▇▇▇▇▇▇▇, Inc.
Surgicare of Florida, Inc.
Surgicare of Houston Women’s, Inc.
Surgicare of Manatee, Inc.
Surgicare of Newport ▇▇▇▇▇▇, 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.
▇▇▇▇▇▇ Medical Center, LLC
West Florida Regional Medical Center, Inc.
West Valley Medical Center, Inc.
Western Plains Capital, Inc.
WHMC, Inc.
Woman’s Hospital of Texas, Incorporated
Women’s and Children’s Hospital, Inc.