EX-10.1



 





Exhibit 10.1




 





CREDIT AGREEMENT




dated as of




July 25, 2007,




among




CHS/COMMUNITY HEALTH SYSTEMS, INC.,




COMMUNITY HEALTH SYSTEMS, INC.,




THE LENDERS PARTY HERETO




and




CREDIT SUISSE,

as Administrative Agent and Collateral Agent




 






CREDIT SUISSE SECURITIES (USA) LLC

and

WACHOVIA CAPITAL MARKETS, LLC,

as Joint Bookrunners and Co-Lead Arrangers




WACHOVIA BANK, NATIONAL ASSOCIATION,

as Syndication Agent




JPMORGAN CHASE BANK

and

MERRILL LYNCH CAPITAL CORPORATION,

as Co-Documentation Agents




 




[CS&M Ref. No. 5865-525]









 



 




Table of Contents




	 	 	 	 	 
	 	 	Page
	ARTICLE I
	 	 	 	 
	 
	 	 	 	 
	Definitions
	 	 	 	 
	 
	 	 	 	 
	SECTION 1.01. Defined Terms

	 	 	2	 
	SECTION 1.02. Terms Generally

	 	 	36	 
	SECTION 1.03. Pro Forma Calculations

	 	 	36	 
	SECTION 1.04. Classification of Loans and Borrowings

	 	 	37	 
	 
	 	 	 	 
	ARTICLE II
	 	 	 	 
	 
	 	 	 	 
	The Credits
	 	 	 	 
	 
	 	 	 	 
	SECTION 2.01. Commitments

	 	 	37	 
	SECTION 2.02. Loans

	 	 	38	 
	SECTION 2.03. Borrowing Procedure

	 	 	40	 
	SECTION 2.04. Evidence of Debt; Repayment of Loans

	 	 	40	 
	SECTION 2.05. Fees

	 	 	41	 
	SECTION 2.06. Interest on Loans

	 	 	42	 
	SECTION 2.07. Default Interest

	 	 	43	 
	SECTION 2.08. Alternate Rate of Interest

	 	 	43	 
	SECTION 2.09. Termination and Reduction of Commitments

	 	 	43	 
	SECTION 2.10. Conversion and Continuation of Borrowings

	 	 	44	 
	SECTION 2.11. Repayment of Term Borrowings

	 	 	46	 
	SECTION 2.12. Optional Prepayment

	 	 	48	 
	SECTION 2.13. Mandatory Prepayments

	 	 	49	 
	SECTION 2.14. Reserve Requirements; Change in Circumstances

	 	 	51	 
	SECTION 2.15. Change in Legality

	 	 	52	 
	SECTION 2.16. Indemnity

	 	 	53	 
	SECTION 2.17. Pro Rata Treatment

	 	 	53	 
	SECTION 2.18. Sharing of Setoffs

	 	 	53	 
	SECTION 2.19. Payments

	 	 	54	 
	SECTION 2.20. Taxes

	 	 	55	 
	SECTION 2.21. Assignment of Commitments Under Certain Circumstances; Duty to Mitigate

	 	 	56	 
	SECTION 2.22. Swingline Loans

	 	 	57	 
	SECTION 2.23. Letters of Credit

	 	 	59	 
	SECTION 2.24. Incremental Term Loans

	 	 	63	 




i









 



Table of Contents

(continued)






	 	 	 	 	 
	 	 	Page
	ARTICLE III
	 	 	 	 
	 
	 	 	 	 
	Representations and Warranties
	 	 	 	 
	 
	 	 	 	 
	SECTION 3.01. Organization; Powers

	 	 	65	 
	SECTION 3.02. Authorization

	 	 	65	 
	SECTION 3.03. Enforceability

	 	 	66	 
	SECTION 3.04. Governmental Approvals

	 	 	66	 
	SECTION 3.05. Financial Statements

	 	 	66	 
	SECTION 3.06. No Material Adverse Change

	 	 	67	 
	SECTION 3.07. Title to Properties; Possession Under Leases

	 	 	67	 
	SECTION 3.08. Subsidiaries

	 	 	67	 
	SECTION 3.09. Litigation; Compliance with Laws

	 	 	67	 
	SECTION 3.10. Agreements

	 	 	68	 
	SECTION 3.11. Federal Reserve Regulations

	 	 	68	 
	SECTION 3.12. Investment Company Act

	 	 	69	 
	SECTION 3.13. Use of Proceeds

	 	 	69	 
	SECTION 3.14. Tax Returns

	 	 	69	 
	SECTION 3.15. No Material Misstatements

	 	 	69	 
	SECTION 3.16. Employee Benefit Plans

	 	 	69	 
	SECTION 3.17. Environmental Matters

	 	 	70	 
	SECTION 3.18. Insurance

	 	 	70	 
	SECTION 3.19. Security Documents

	 	 	70	 
	SECTION 3.20. Location of Real Property and Leased Premises

	 	 	71	 
	SECTION 3.21. Labor Matters

	 	 	71	 
	SECTION 3.22. Solvency

	 	 	71	 
	SECTION 3.23. Transaction Documents

	 	 	72	 
	SECTION 3.24. Sanctioned Persons

	 	 	72	 
	 
	 	 	 	 
	ARTICLE IV
	 	 	 	 
	 
	 	 	 	 
	Conditions of Lending
	 	 	 	 
	 
	 	 	 	 
	SECTION 4.01. All Credit Events

	 	 	72	 
	SECTION 4.02. First Credit Event

	 	 	73	 
	 
	 	 	 	 
	ARTICLE V
	 	 	 	 
	 
	 	 	 	 
	Affirmative Covenants
	 	 	 	 
	 
	 	 	 	 
	SECTION 5.01. Existence; Compliance with Laws; Businesses and Properties

	 	 	76	 
	SECTION 5.02. Insurance

	 	 	77	 
	SECTION 5.03. Obligations and Taxes

	 	 	77	 
	SECTION 5.04. Financial Statements, Reports, etc

	 	 	78	 
	SECTION 5.05. Litigation and Other Notices

	 	 	79	 
	SECTION 5.06. Information Regarding Collateral

	 	 	80	 




ii









 



Table of Contents

(continued)





	 	 	 	 	 
	 	 	Page
	SECTION 5.07. Maintaining Records; Access to Properties and Inspections; Maintenance of Ratings

	 	 	80	 
	SECTION 5.08. Use of Proceeds

	 	 	80	 
	SECTION 5.09. Employee Benefits

	 	 	80	 
	SECTION 5.10. Compliance with Environmental Laws

	 	 	81	 
	SECTION 5.11. Preparation of Environmental Reports

	 	 	81	 
	SECTION 5.12. Further Assurances

	 	 	81	 
	SECTION 5.13. Interest Rate Protection

	 	 	82	 
	SECTION 5.14. Proceeds of Certain Dispositions

	 	 	82	 
	SECTION 5.15. Operation of Facilities

	 	 	83	 
	 
	 	 	 	 
	ARTICLE VI
	 	 	 	 
	 
	 	 	 	 
	Negative Covenants
	 	 	 	 
	 
	 	 	 	 
	SECTION 6.01. Indebtedness

	 	 	83	 
	SECTION 6.02. Liens

	 	 	86	 
	SECTION 6.03. Sale and Lease-Back Transactions

	 	 	89	 
	SECTION 6.04. Investments, Loans and Advances

	 	 	89	 
	SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions

	 	 	93	 
	SECTION 6.06. Restricted Payments; Restrictive Agreements

	 	 	94	 
	SECTION 6.07. Transactions with Affiliates

	 	 	96	 
	SECTION 6.08. Business of Parent, Borrower and Subsidiaries

	 	 	97	 
	SECTION 6.09. Other Indebtedness

	 	 	97	 
	SECTION 6.10. Practice Guarantees

	 	 	97	 
	SECTION 6.11. Capital Expenditures

	 	 	97	 
	SECTION 6.12. Interest Coverage Ratio

	 	 	98	 
	SECTION 6.13. Maximum Leverage Ratio

	 	 	99	 
	SECTION 6.14. Fiscal Year

	 	 	99	 
	 
	 	 	 	 
	ARTICLE VII
	 	 	 	 
	 
	 	 	 	 
	Events of Default
	 	 	 	 
	 
	 	 	 	 
	ARTICLE VIII
	 	 	 	 
	 
	 	 	 	 
	The Administrative Agent and the Collateral Agent
	 	 	 	 




iii









 



Table of Contents

(continued)





	 	 	 	 	 
	 	 	Page
	ARTICLE IX
	 	 	 	 
	 
	 	 	 	 
	Miscellaneous
	 	 	 	 
	 
	 	 	 	 
	SECTION 9.01. Notices

	 	 	105	 
	SECTION 9.02. Survival of Agreement

	 	 	105	 
	SECTION 9.03. Binding Effect

	 	 	106	 
	SECTION 9.04. Successors and Assigns

	 	 	106	 
	SECTION 9.05. Expenses; Indemnity

	 	 	110	 
	SECTION 9.06. Right of Setoff

	 	 	112	 
	SECTION 9.07. Applicable Law

	 	 	112	 
	SECTION 9.08. Waivers; Amendment

	 	 	112	 
	SECTION 9.09. Certain Releases of Guarantees and Security Interests

	 	 	113	 
	SECTION 9.10. Interest Rate Limitation

	 	 	114	 
	SECTION 9.11. Entire Agreement

	 	 	114	 
	SECTION 9.12. WAIVER OF JURY TRIAL

	 	 	115	 
	SECTION 9.13. Severability

	 	 	115	 
	SECTION 9.14. Counterparts

	 	 	115	 
	SECTION 9.15. Headings

	 	 	115	 
	SECTION 9.16. Jurisdiction; Consent to Service of Process

	 	 	115	 
	SECTION 9.17. Confidentiality

	 	 	116	 
	SECTION 9.18. USA PATRIOT Act Notice

	 	 	117	 
	SECTION 9.19. Effect of Certain Inaccuracies

	 	 	117	 




iv









 






Table of Contents
(continued)




SCHEDULES




	 	 	 	 	 	 
	 	 	 	 	 	Page
	Schedule 1.01(a)

	 	-
	 	Existing Letters of Credit	 
	Schedule 1.01(b)

	 	-
	 	Subsidiary Guarantors	 
	Schedule 1.01(c)

	 	-
	 	Mortgaged Property	 
	Schedule 1.01(d)

	 	-
	 	Hospitals	 
	Schedule 1.01(e)

	 	-
	 	Certain Permitted Joint Ventures	 
	Schedule 1.01(f)

	 	-
	 	Certain Subsidiaries	 
	Schedule 2.01

	 	-
	 	Lenders and Commitments	 
	Schedule 3.08

	 	-
	 	Subsidiaries	 
	Schedule 3.17

	 	-
	 	Environmental Matters	 
	Schedule 3.18

	 	-
	 	Insurance	 
	Schedule 3.19(a)

	 	-
	 	UCC Filing Offices	 
	Schedule 3.19(c)

	 	-
	 	Mortgage Filing Offices	 
	Schedule 3.21

	 	-
	 	Collective Bargaining Agreements	 
	Schedule 4.02(a)

	 	-
	 	Local Counsel	 
	Schedule 6.01

	 	-
	 	Existing Indebtedness	 
	Schedule 6.02

	 	-
	 	Existing Liens	 
	Schedule 6.04(h)

	 	-
	 	Certain Permitted Acquisitions	 
	Schedule 6.05(b)

	 	-
	 	Certain Syndication Transactions	 
	Schedule 6.07

	 	-
	 	Certain Affiliate Transactions	 






EXHIBITS




	 	 	 	 	 
	Exhibit A

	 	-
	 	Form of Administrative Questionnaire
	Exhibit B

	 	-
	 	Form of Assignment and Acceptance
	Exhibit C

	 	-
	 	Form of Borrowing Request
	Exhibit D

	 	-
	 	Form of Guarantee and Collateral Agreement
	Exhibit E

	 	-
	 	Form of Mortgage
	Exhibit F-1

	 	-
	 	Form of Opinion of Kirkland & Ellis LLP
	Exhibit F-2

	 	-
	 	Form of Opinion of General Counsel of Parent
	Exhibit F-3

	 	-
	 	Form of Local Counsel Opinion




v









 





     CREDIT AGREEMENT dated as of July 25, 2007, among CHS/COMMUNITY
HEALTH SYSTEMS, INC., a Delaware corporation (the “Borrower”), COMMUNITY
HEALTH SYSTEMS, INC., a Delaware corporation (“Parent”), the Lenders (as
defined in Article I), and CREDIT SUISSE, as administrative agent (in such
capacity, the “Administrative Agent”) and as collateral agent (in such
capacity, the “Collateral Agent”) for the Lenders.



PRELIMINARY STATEMENT




     Pursuant to the Merger Agreement (such term and each other capitalized term used but not
defined in this preliminary statement having the meaning given it in Article I), Parent will
acquire Triad Hospitals, Inc., a Delaware corporation (“Triad”) through a merger (the “Merger”) of
FWCT-1 Acquisition Corporation, a Delaware corporation and a wholly owned Subsidiary (“Merger
Sub”), with and into Triad, as a result of which (a) all Equity Interests of Triad issued and
outstanding (with certain exceptions as set forth in the Merger Agreement) immediately prior to the
Effective Time (as defined in the Merger Agreement) will be automatically converted at the
Effective Time into the right to receive the Merger Consideration (as defined in the Merger
Agreement), in an aggregate amount of approximately $4,959,000,000, and (b) Triad will survive as a
wholly owned Subsidiary.



     In connection with the Merger, the Borrower has requested that (a) the Funded Term Loan
Lenders make Funded Term Loans on the Closing Date, in an aggregate principal amount not in excess
of $6,065,000,000, (b) the Delayed Draw Term Loan Lenders make Delayed Draw Term Loans on one or
more occasions during the period commencing on the Closing Date and ending on the Delayed Draw
Commitment Termination Date, in an aggregate principal amount not in excess of $400,000,000, and
(c) the Revolving Credit Lenders make Revolving Loans at any time and from time to time prior to
the Revolving Credit Maturity Date, in an aggregate principal amount at any time outstanding not in
excess of $750,000,000. The Borrower has requested the Swingline Lender to extend credit, at any
time and from time to time prior to the Revolving Credit Maturity Date, in the form of Swingline
Loans, in an aggregate principal amount at any time outstanding not in excess of $50,000,000. The
Borrower has requested the Issuing Bank to issue Letters of Credit, in an aggregate face amount at
any time outstanding not in excess of $200,000,000, for general corporate purposes of the Borrower
and the Subsidiaries. The proceeds of the Funded Term Loans are to be used solely to pay a portion
of the Merger Consideration, to repay or otherwise satisfy and discharge the Existing Indebtedness,
and to pay related fees and expenses. The proceeds of the Delayed Draw Term Loans, the Revolving
Loans and the Swingline Loans are to be used by the Borrower and the Subsidiaries from time to time
for working capital and other general corporate purposes, including permitted investments and
Capital Expenditures and to repay Indebtedness.



     The Lenders are willing to extend such credit to the Borrower, and the Issuing Bank is willing
to issue Letters of Credit for the account of the Borrower, in each case on









 



2



the terms and subject to the conditions set forth herein. Accordingly, the parties hereto
agree as follows:



ARTICLE I




Definitions




     SECTION 1.01. Defined Terms. As used in this Agreement, the following terms shall have the
meanings specified below:



     “ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the
Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the
Alternate Base Rate.



     “Adjusted LIBO Rate” shall mean, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum equal to the product of (a) the LIBO Rate in effect for such
Interest Period and (b) Statutory Reserves.



     “Administrative Agent Fees” shall have the meaning assigned to such term in Section 2.05(b).



     “Administrative Questionnaire” shall mean an Administrative Questionnaire in the form of
Exhibit A, or such other form as may be supplied from time to time by the Administrative Agent.



     “Affiliate” shall mean, when used with respect to a specified person, another person that
directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is
under common Control with the person specified; provided, however, that, for purposes of Section
6.07, the term “Affiliate” shall also include any person that directly or indirectly owns 10% or
more of any class of Equity Interests of the person specified.



     “Aggregate Revolving Credit Exposure” shall mean the aggregate amount of the Lenders’
Revolving Credit Exposures.



     “Alternate Base Rate” shall mean, for any day, a rate per annum equal to the greater of (a)
the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1%. If the Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate
for any reason, including the inability or failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms of the definition thereof, the Alternate Base Rate shall be
determined without regard to clause (b) of the preceding sentence until the circumstances giving
rise to such inability no longer exist. Any change in the Alternate Base Rate due to a change in
the Prime Rate or the Federal Funds Effective Rate shall be effective on the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, as the case may be.









 



3


     “Applicable Percentage” shall mean, for any day (a) with respect to any Eurodollar Term Loan,
2.25% per annum, (b) with respect to any ABR Term Loan, 1.25% per annum, and (c) (i) with respect
to any Eurodollar Revolving Loan or ABR Revolving Loan, the applicable percentage set forth below
under the caption “Eurodollar Spread—Revolving Loans” or “ABR Spread—Revolving Loans”, as the case
may be, and (ii) with respect to the Revolving Credit Commitment Fee, the applicable rate set forth
below under the caption “Revolving Credit Commitment Fee Rate”, in each case based upon the
Leverage Ratio as of the relevant date of determination:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Eurodollar	 	 	 	 	 	Revolving
	 	 	Spread	 	ABR Spread	 	Credit
	 	 	Revolving	 	Revolving	 	Commitment
	Leverage Ratio	 	Loans	 	Loans	 	Fee Rate
	Category 1


Greater than or equal to 4.5
to 1.00
	 	 	2.25	%	 	 	1.25	%	 	 	0.50	%
	Category 2


Less than 4.5 to 1.00 and
greater than or equal to 3.5
to 1.00
	 	 	2.00	%	 	 	1.00	%	 	 	0.50	%
	Category 3


Less than 3.5 to 1.00
	 	 	1.75	%	 	 	0.75	%	 	 	0.375	%





Each change in the Applicable Percentage resulting from a change in the Leverage Ratio shall be
effective with respect to all Loans and Letters of Credit outstanding on and after the date of
delivery to the Administrative Agent of the financial statements and certificates required by
Section 5.04(a) or (b) and Section 5.04(c), respectively, indicating such change until the date
immediately preceding the next date of delivery of such financial statements and certificates
indicating another such change. Notwithstanding the foregoing, the Leverage Ratio shall be deemed
to be in Category 1 for purposes of determining the Applicable Percentage until the date that is
six months from the Closing Date (at which time, subject to the immediately succeeding sentence,
the Leverage Ratio shall be determined on the basis of the financial statements and certificates
most recently delivered pursuant to Section 5.04(a) or (b) and Section 5.04(c), respectively, prior
to such date, and the Applicable Percentage resulting from such Leverage Ratio shall be








 



4


effective
until any such change is required pursuant to the immediately preceding
sentence). In addition, (a) at any time during which the Borrower has failed to deliver the
financial statements and certificates required by Section 5.04(a) or (b) and Section 5.04(c),
respectively (until the time of the delivery thereof), or (b) at any time after the occurrence and
during the continuance of an Event of Default, the Leverage Ratio shall be deemed to be in Category
1 for purposes of determining the Applicable Percentage.




     “Applicable Term Commitment Fee Rate” shall mean, for any day (a) from and including the
Closing Date to but excluding the six-month anniversary of the Closing Date, 0.50% per annum, (b)
from and including the six-month anniversary of the Closing Date to but excluding the nine-month
anniversary of the Closing Date, 0.75% per annum, and (c) thereafter, 1.00% per annum.



     “Arrangers” shall mean Credit Suisse Securities (USA) LLC and Wachovia Capital Markets LLC.



     “Asset Sale” shall mean the sale, transfer or other disposition (by way of merger, casualty,
condemnation or otherwise) by Parent, the Borrower or any of the Subsidiaries to any person other
than the Borrower or any Subsidiary Guarantor of (a) any Equity Interests of any of the
Subsidiaries (other than directors’ qualifying shares) or (b) any other assets of Parent, the
Borrower or any of the Subsidiaries, other than:



          (i) inventory, damaged, obsolete or worn out assets, scrap, surplus and Permitted Investments,
in each case disposed of in the ordinary course of business;




          (ii) donations of assets by the Borrower or any Subsidiary (whether of real or personal
property (including cash)) to state or local municipalities (or other Governmental Authorities),
nonprofit organizations, foundations, charities or similar entities of the Borrower’s or such
Subsidiary’s choice, with an aggregate fair market value not to exceed $30,000,000 in any fiscal
year of Parent;




          (iii) dispositions by any Subsidiary that is not a Subsidiary Guarantor to the Borrower or any
other Subsidiary;




          (iv) sales or other dispositions of (x) Receivables of the Borrower or any of the
Subsidiaries that are more than 180 days past due or are written-off at the time of such sale or
disposition or (y) any Receivables of the Borrower or any of the Subsidiaries that are self-pay
accounts receivable and that are reasonably determined by the Borrower to be unable to be paid in
full within 150 days of the related service date, provided that the face value of all such
Receivables sold or disposed of on or after the Closing Date does not exceed $200,000,000;




          (v) sales or other dispositions of property (including like-kind exchanges) to the extent
that (x) such property is exchanged for credit against the purchase price of similar replacement
property or (y) the proceeds of such sale or disposition are applied to the purchase price of such
replacement property, in each case under Section 1031 of the Code or otherwise, provided that, if
the property so sold or exchanged constituted Collateral, then the property so received shall also
constitute Collateral;










 



5




          (vi) leases or sub-leases of any real property or personal property in the ordinary course of
business;




          (vii) dispositions of investments in joint ventures to the extent required by, or made
pursuant to, customary buy/sell arrangements between the joint venture parties set forth in the
joint venture arrangements and similar binding arrangements;




          (viii) licensings and sublicensings of intellectual property of the Borrower or any Subsidiary
in the ordinary course of business;




          (ix) sales, transfers, leases or other dispositions of property in the ordinary course of
business consisting of the abandonment of intellectual property rights which, in the reasonable
good faith determination of the Borrower, are not material to the conduct of the business of
Parent, the Borrower and the Subsidiaries; and




          (x) any sale, transfer or other disposition or series of related sales, transfers or other
dispositions having a value not in excess of $5,000,000.




     “Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender
and an assignee, and accepted by the Administrative Agent, in the form of Exhibit B or such other
form as shall be approved by the Administrative Agent.



     “Board” shall mean the Board of Governors of the Federal Reserve System of the United States
of America.



     “Borrowing” shall mean (a) Loans of the same Class and Type made, converted or continued on
the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in
effect, or (b) a Swingline Loan.



     “Borrowing Request” shall mean a request by the Borrower in accordance with the terms of
Section 2.03 and substantially in the form of Exhibit C, or such other form as shall be approved by
the Administrative Agent.



     “Business Day” shall mean any day other than a Saturday, Sunday or day on which banks in New
York City are authorized or required by law to close; provided, however, that when used in
connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank market.



     “CapEx Pull-Forward Amount” shall have the meaning assigned to such term in Section 6.11.



     “Capital Expenditures” shall mean, for any period, the additions to property, plant and
equipment and other capital expenditures of Parent, the Borrower and its consolidated subsidiaries
(including all amounts expended or capitalized under Capital Lease Obligations, but excluding any
amount representing capitalized interest) that are (or should be) set forth in a consolidated
statement of cash flows of Parent for such period prepared in accordance with GAAP, but excluding
in each case any such









 



6



expenditure (i) made with insurance proceeds, condemnation awards or damage recovery proceeds,
(ii) made with the proceeds of the issuance of Equity Interests, (iii) to the extent such
expenditure is made with proceeds that would have constituted Net Cash Proceeds under clause (a) of
the definition of the term “Net Cash Proceeds” (but for the application of the second proviso to
such clause (a)), (iv) to the extent of the credit against the gross purchase price of newly
acquired equipment granted by the seller of such newly acquired equipment for other equipment that
is simultaneously traded-in at the time of purchase of such newly acquired equipment, (v) is
accounted for as a capital expenditure pursuant to GAAP but that actually is paid for by a third
party (excluding Parent, the Borrower or any Subsidiary) and for which none of Parent, the Borrower
or any Subsidiary has provided or is required to provide or incur, directly or indirectly, any
consideration or obligation to such third party or any other person (whether before, during or
after such period) or (vi) constituting the purchase price of any Permitted Acquisition or any
investment permitted under Sections 6.04(a), 6.04(i), 6.04(j), 6.04(k) or 6.04(v).



     “Capital Lease Obligations” of any person shall mean the obligations of such person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.



     “Captive Insurance Subsidiary” shall mean a Subsidiary established for the purpose of insuring
the healthcare businesses or Facilities owned or operated by the Borrower or any of the
Subsidiaries, any joint venture of the Borrower or any of the Subsidiaries or any physician or
other personnel employed by or on the medical staff of any such business or Facility.



     “Cash Management Obligations” shall mean the obligations owed by Parent, the Borrower or any
Subsidiary to the Administrative Agent, an Arranger, any Lender or an Affiliate of any of the
foregoing in respect of any overdraft protections, netting services and similar arrangements
arising from treasury, depository and cash management services, any automated clearing house
transfers of funds or any credit card or similar services, in each case in the ordinary course of
business.



     A “Change in Control” shall be deemed to have occurred if (a) any “person” or “group” (within
the meaning of Rule 13d-5 of the Securities Exchange Act of 1934 as in effect on the date hereof),
shall own, directly or indirectly, beneficially or of record, shares representing more than 40% of
the aggregate ordinary voting power represented by the issued and outstanding capital stock of
Parent, (b) a majority of the seats (other than vacant seats) on the board of directors of Parent
shall at any time be occupied by persons who were neither (i) nominated by the board of directors
of Parent nor (ii) appointed by directors so nominated, (c) any change in control (or similar
event, however denominated) with respect to Parent, the Borrower or any Subsidiary shall occur
under and as defined in any indenture or agreement in respect of Material Indebtedness to which
Parent, the Borrower or any Subsidiary is a party, or (d) Parent shall cease to









 



7



directly own, beneficially and of record, 100% of the issued and outstanding Equity Interests
of the Borrower.



     “Change in Law” shall mean (a) the adoption of any law, rule or regulation after the date of
this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender or the Issuing Bank (or, for purposes of Section 2.14, by any lending
office of such Lender or by such Lender’s or Issuing Bank’s holding company, if any) with any
policy, guideline or directive (whether or not having the force of law) of any Governmental
Authority made or issued after the date of this Agreement.



     “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the
Loans comprising such Borrowing, are Revolving Loans, Funded Term Loans, Delayed Draw Term Loans,
Other Term Loans or Swingline Loans and, when used in reference to any Commitment, refers to
whether such Commitment is a Revolving Credit Commitment, Funded Term Loan Commitment, Delayed Draw
Term Loan Commitment, Incremental Term Loan Commitment or Swingline Commitment.



     “Closing Date” shall mean July 25, 2007.



     “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.



     “Collateral” shall mean all the “Collateral” as defined in any Security Document and shall
also include the Mortgaged Properties.



     “Commitment” shall mean, with respect to any Lender, such Lender’s Revolving Credit
Commitment, Funded Term Loan Commitment, Delayed Draw Term Loan Commitment, Incremental Term Loan
Commitment and Swingline Commitment.



     “Commitment Fees” shall mean the Revolving Credit Commitment Fees and the Term Commitment
Fees.



     “Confidential Information Memorandum” shall mean the Confidential Information Memorandum of
the Borrower dated June 2007.



     “Consent Solicitations” shall mean the Parent Consent Solicitation and the Triad Consent
Solicitations.



     “Consolidated EBITDA” shall mean, for any period, Consolidated Net Income for such period plus
(a) without duplication and (except in the case of clause (a)(x) below) to the extent deducted in
determining such Consolidated Net Income, the sum of



          (i) interest expense (net of interest income), including amortization and write offs of debt
discount and debt issuance costs and commissions, discounts and other fees and charges associated
with (x) letters of credit, (y) obtaining or unwinding Hedging Agreements or (z) surety bonds for
financing activities, in each case for such period,










 



8




          (ii) provision for taxes based on income, profits or capital and franchise taxes, including
Federal, foreign, state, franchise, excise and similar taxes and foreign withholding taxes paid or
accrued during such period, including any penalties and interest relating to any tax examinations
for such period,




          (iii) depreciation and amortization expenses including acceleration thereof and including the
amortization of the increase in inventory resulting from the application of Statement of Financial
Accounting Standards No. 141 (“FASB 141”) for transactions contemplated hereby, including Permitted
Acquisitions, for such period,




          (iv) non-cash compensation expenses arising from the sale of Equity Interests, the granting of
options to purchase Equity Interests, the granting of appreciation rights in respect of Equity
Interests and similar arrangements for such period,




          (v) the excess of the expense in respect of post-retirement benefits and post-employment
benefits accrued under Statement of Financial Accounting Standards No. 106 (“FASB 106”) and
Statement of Financial Accounting Standards No. 112 (“FASB 112”) over the cash expense in respect
of such post-retirement benefits and post-employment benefits for such period,




          (vi) minority interest (to the extent distributions are not required to be made and are not
made in respect thereof),




          (vii) upfront fees or charges arising from any Permitted Receivables Transaction for such
period, and any other amounts for such period comparable to or in the nature of interest under any
Permitted Receivables Transaction, and losses on dispositions of Receivables and related assets in
connection with any Permitted Receivables Transaction for such period,




          (viii) fees and expenses for such period incurred or paid in connection with the Transactions,




          (ix) to the extent covered by insurance and actually reimbursed, or, so long as the Borrower
has made a determination that such amount is reasonably likely to be reimbursed by the insurer and
only to the extent that such amount is (A) not denied by the applicable carrier in writing within
180 days and (B) in fact reimbursed within 365 days of the date of the relevant event (with a
deduction for any amount so added back to the extent not so reimbursed within such 365 days),
expenses with respect to liability or casualty events,




          (x) proceeds of received business interruption insurance,




          (xi) any fees and expenses incurred during such period in connection with any acquisition,
investment, recapitalization, asset disposition, issuance or repayment of debt, issuance of Equity
Interests, refinancing transaction or amendment or other modification of any debt instrument (in
each case, including any such transaction consummated prior to the Closing Date and any such
transaction undertaken but not completed),










 



9




          (xii) any (w) severance costs, relocation costs, integration and Facilities opening
costs, signing costs, retention or completion bonuses and transition costs incurred during such
period, (x) cash restructuring related or nonrecurring cash merger costs and expenses incurred
during such period as a result of any acquisition, investment, recapitalization, or asset
disposition permitted hereunder, (y) other nonrecurring cash losses and charges for such period and
(z) cash payments made during such period in respect of litigation that was pending against the
Borrower, Triad or any of their subsidiaries or other obligations (contingent or otherwise) of the
Borrower, Triad or any of their subsidiaries, in each case prior to the Closing Date and for which
a liability would not be, in accordance with GAAP, recognized on Parent’s consolidated balance
sheet as of the date hereof, in each case to the extent that the aggregate amount of all such
costs, expenses and payments added to Consolidated Net Income pursuant to this clause (a)(xii),
together with all cash payments made during such period and referred to in clause (b)(ii) below,
does not exceed 10.0% of Consolidated EBITDA for such period,




          (xiii) any loss for such period attributable to the early extinguishment of Indebtedness, and




          (xiv) other non-cash charges for such period (other than the write-down of current assets
during any period commencing on or after July 1, 2008), and minus




     (b) without duplication, (i) non-recurring gains and (ii) to the extent the amount thereof,
when combined with the aggregate amount of all costs, expenses and payments added to Consolidated
Net Income during such period pursuant to clause (a)(xii) above exceeds 10.0% of Consolidated
EBITDA for such period, all cash payments made during such period on account of reserves,
restructuring charges and other non-cash charges added to Consolidated Net Income pursuant to
clause (a)(xiv) above in a previous period.



     For purposes of determining the Interest Coverage Ratio and the Leverage Ratio as of or for
the periods ended on September 30, 2007, December 31, 2007 and March 31, 2008, Consolidated EBITDA
will be deemed to be equal to (i) for the fiscal quarter ended December 31, 2006, $366,000,000,
(ii) for the fiscal quarter ended March 31, 2007, $355,000,000, and (iii) for the fiscal quarter
ended June 30, 2007, $372,000,000. In addition, for each fiscal quarter ended after the Closing
Date and on or prior to June 30, 2008, the Consolidated EBITDA of Parent shall be increased by the
applicable Initial Pro Forma Adjustment (without duplication of the actual pro forma cost savings
and synergies achieved during such fiscal quarter).



     “Consolidated Interest Expense” shall mean, for any period, the sum of (a) the interest
expense paid in cash (including imputed interest expense in respect of Capital Lease Obligations
and Synthetic Lease Obligations) of Parent, the Borrower and the Subsidiaries for such period, net
of interest income, determined on a consolidated basis in accordance with GAAP and (b) the
dividends paid in cash during such period by Parent, the Borrower and the Subsidiaries on a
consolidated basis in respect of Disqualified Stock, but excluding, however, to the extent
otherwise included therein, (i) fees and expenses associated with the consummation of the
Transactions, (ii) annual agency fees paid to the Administrative Agent, (iii) costs associated with
obtaining or unwinding any









 



10



Hedging Agreements, (iv) fees and expenses associated with any investment permitted pursuant
to Section 6.04, issuances of Equity Interests or Indebtedness (whether or not consummated) or
amendments of any Indebtedness, (v) penalties and interest relating to Taxes and (vi) all
non-recurring cash interest expense consisting of liquidated damages for failure to timely comply
with registration rights obligations and financing fees. For purposes of the foregoing, interest
expense shall be determined after giving effect to any net payments made or received by Parent, the
Borrower or any Subsidiary with respect to interest rate Hedging Agreements. For purposes of
determining the Interest Coverage Ratio for the period of four consecutive quarters ended September
30, 2007, December 31, 2007 and March 31, 2008, Consolidated Interest Expense shall be deemed to be
equal to (x) the Consolidated Interest Expense for the fiscal quarter ended September 30, 2007,
multiplied by 4, (y) the Consolidated Interest Expense for the two consecutive fiscal quarters
ended December 31, 2007, multiplied by 2 and (z) the Consolidated Interest Expense for the three
consecutive fiscal quarters ended March 31, 2008, multiplied by 4/3, respectively.



     “Consolidated Net Income” shall mean, for any period, the net income or loss (i) excluding
extraordinary gains and losses, and gains and losses arising from the proposed or actual
disposition of material assets and (ii) excluding the cumulative effect of changes in accounting
principles) of Parent, the Borrower and the Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP; provided that there shall be excluded the income of any
Subsidiary to the extent that the declaration or payment of dividends or similar distributions by
the Subsidiary of that income is not at the time permitted by operation of the terms of its charter
or any agreement, instrument, judgment, decree, statute, rule or governmental regulation applicable
to such Subsidiary. Notwithstanding the foregoing, the amount of any cash dividends paid by any
Unrestricted Subsidiary and received by Parent, the Borrower or the Subsidiaries during any such
period shall be included, without duplication, in the calculation of Consolidated Net Income for
such period. There shall be excluded from Consolidated Net Income for any period (i) gains and
losses, including unrealized gains and losses, for such period attributable to (w) discontinued
operations, (x) Facilities to be closed within one year of the date of recognition of such gain or
loss, (y) obtaining or unwinding Hedging Agreements and (z) except as provided above, interests in
Unrestricted Subsidiaries, and (ii) the effects of purchase accounting adjustments to inventory,
property, equipment and intangible assets and deferred revenue in component amounts required or
permitted by GAAP, as a result of the Transactions, any Permitted Acquisition or acquisition
consummated before the Closing Date, or the amortization or write-off of any amounts thereof.



     “Contractual Obligation” shall mean, as to any person, any provision of any security issued by
such person or of any agreement, instrument or undertaking to which such person is a party or by
which it or any of the property owned by it is bound.



     “Control” shall mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a person, whether through the ownership of voting
securities, by contract or otherwise, and the terms “Controlling” and “Controlled” shall have
meanings correlative thereto.









 



11


     “Credit Event” shall have the meaning assigned to such term in Section 4.01.



     “Credit Facilities” shall mean the revolving credit, swingline, letter of credit and term loan
facilities provided for by this Agreement.



     “Current Assets” shall mean, at any time, the consolidated current assets (other than cash and
cash equivalents, current and deferred tax assets and Permitted Investments) of Parent, the
Borrower and the Subsidiaries.



     “Current Liabilities” shall mean, at any time, the consolidated current liabilities of Parent,
the Borrower and the Subsidiaries at such time, but excluding, without duplication, (a) the current
portion of any long-term Indebtedness, (b) current accrued and deferred income taxes and accrued
interest and (c) outstanding Revolving Loans and Swingline Loans.



     “Debt Tender Offers” shall mean the Parent Debt Tender Offer and the Triad Debt Tender Offers.



     “Default” shall mean any event or condition which upon notice, lapse of time or both would
constitute an Event of Default.



     “Defaulting Lender” shall mean any Revolving Credit Lender that has (a) defaulted in its
obligation to make a Revolving Loan or to fund its participation in a Letter of Credit or Swingline
Loan required to be made or funded by it hereunder, (b) notified the Administrative Agent or a Loan
Party in writing that it does not intend to satisfy any such obligation or (c) become insolvent or
the assets or management of which has been taken over by any Governmental Authority.



     “Delayed Draw Commitment Termination Date” shall mean January 23, 2009.



     “Delayed Draw Term Loan Commitment” shall mean, with respect to each Lender, the commitment of
such Lender to make Delayed Draw Term Loans hereunder as set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender assumed its Delayed Draw Term Loan
Commitment, as applicable, as the same may be (a) reduced from time to time pursuant to Section
2.09 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04.



     “Delayed Draw Term Loan Lender” shall mean a Lender with a Delayed Draw Term Loan Commitment
or an outstanding Delayed Draw Term Loan.



     “Delayed Draw Term Loan Repayment Date” shall have the meaning assigned to such term in
Section 2.11(a)(ii).



     “Delayed Draw Term Loans” shall mean the terms loans made by the Lenders to the Borrower
pursuant to Section 2.01(a)(ii).









 



12


     “Disqualified Stock” shall mean any Equity Interest that, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable), or upon the happening of
any event, (a) matures (excluding any maturity as the result of an optional redemption by the
issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise
(except (i) as a result of a change of control or asset sale so long as any rights of the holders
thereof upon the occurrence of a change of control or asset sale shall be subject to the prior
repayment in full of the Loans and all other Obligations that are accrued and payable and the
termination of the Commitments or (ii) pursuant to any put option with respect to any Equity
Interests of a Permitted Syndication Subsidiary granted in favor of any Permitted Syndication
Transaction Partner), or is redeemable at the option of the holder thereof, in whole or in part, or
requires the payment of any cash dividend or any other scheduled payment constituting a return of
capital in cash (other than, in the case of Equity Interests of a Subsidiary issued to a Permitted
Syndication Transaction Partner or held by a Subsidiary Guarantor, periodic distributions of
available cash (determined in good faith by the Borrower)), in each case at any time on or prior to
the first anniversary of the Term Loan Maturity Date, or (b) is convertible into or exchangeable
(unless at the sole option of the issuer thereof) for (i) Indebtedness or (ii) any Equity Interest
referred to in clause (a) above, in each case at any time prior to the first anniversary of the
Term Loan Maturity Date.



     “dollars” or “$” shall mean lawful money of the United States of America.



     “Domestic Subsidiaries” shall mean all Subsidiaries incorporated or organized under the laws
of the United States of America, any State thereof or the District of Columbia.



     “Eligible Assignee” shall mean any commercial bank, insurance company, investment or mutual
fund or other entity (but not any natural person) that is an “accredited investor” (as defined in
Regulation D under the Securities Act of 1933, as amended) that extends credit or invests in bank
loans as one of its businesses; provided that neither the Borrower nor any of its Affiliates shall
be an Eligible Assignee.



     “Environmental Laws” shall mean all former, current and future Federal, state, local and
foreign laws (including common law), treaties, regulations, rules, ordinances, codes, decrees,
judgments, directives, orders (including consent orders), and legally binding agreements in each
case, relating to protection of the environment, natural resources, occupational health and safety
or Hazardous Materials.



     “Environmental Liability” shall mean all liabilities, obligations, damages, losses, claims,
actions, suits, judgments, orders, fines, penalties, fees, expenses and costs (including
administrative oversight costs, natural resource damages and remediation costs), whether contingent
or otherwise, arising out of or relating to (a) compliance or non-compliance with any Environmental
Law, (b) the generation, use, handling, transportation, storage, treatment, recycling, arrangement
for disposal, or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d)
the presence or Release of any Hazardous Materials or (e) any contract, agreement or other
consensual









 



13



arrangement pursuant to which liability is assumed or imposed with respect to any of the
foregoing.



     “Equity Interests” shall mean shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity interests
in any person, and any option, warrant or other right entitling the holder thereof to purchase or
otherwise acquire any such equity interest.



     “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as the same may be
amended from time to time.



     “ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the
Code, or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.



     “ERISA Event” shall mean (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder, with respect to a Plan (other than an event for which the 30-day
notice period is waived), (b) prior to the effectiveness of the applicable provisions of the
Pension Act, the existence with respect to any Plan of an “accumulated funding deficiency” (as
defined in Section 412 of the Code or Section 302 of ERISA) or, on and after the effectiveness of
the applicable provisions of the Pension Act, any failure by any Plan to satisfy the minimum
funding standard (within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable
to such Plan, in each case whether or not waived, (c) the filing pursuant to prior to the
effectiveness of the applicable provisions of the Pension Act, Section 412(d) of the Code or
Section 303(d) of ERISA or, on and after the effectiveness of the applicable provisions of the
Pension Act, Section 412(c) of the Code or Section 302(c) of ERISA, of an application for a waiver
of the minimum funding standard with respect to any Plan, (d) on and after the effectiveness of the
applicable provisions of the Pension Act, a determination that any Plan is, or is expected to be,
in “at-risk” status (as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code),
(e) the incurrence by Parent or any of its ERISA Affiliates of any liability under Title IV of
ERISA with respect to the termination of any Plan or the withdrawal or partial withdrawal of the
Borrower or any of its ERISA Affiliates from any Plan or Multiemployer Plan, (f) the receipt by
Parent or any of its ERISA Affiliates from the PBGC or a plan administrator of any notice relating
to the intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan, (g)
prior to the effectiveness of the applicable provisions of the Pension Act, the adoption of any
amendment to a Plan that would require the provision of security pursuant to Section 401(a)(29) of
the Code or Section 307 of ERISA, (h) the receipt by Parent or any of its ERISA Affiliates of any
notice, or the receipt by any Multiemployer Plan from Parent or any of its ERISA Affiliates of any
notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer
Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of
ERISA or, on and after the effectiveness of the applicable provisions of the Pension Act, in
endangered or critical status, within the meaning of Section 305 of ERISA, (i) the occurrence of a
“prohibited transaction” with respect to which the Borrower or any of the Subsidiaries is a









 



14

“disqualified person” (within the meaning of Section 4975 of the Code) or with respect to
which the Borrower or any such Subsidiary could otherwise be liable or (j) any other event or
condition with respect to a Plan or Multiemployer Plan that could result in liability of the
Borrower or any Subsidiary.




     “Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or
the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the
Adjusted LIBO Rate.



     “Event of Default” shall have the meaning assigned to such term in Article VII.



     “Excess Cash Flow” shall mean, for any fiscal year of Parent, the excess of (a) the sum,
without duplication, of (i) Consolidated Net Income for such fiscal year, (ii) an amount equal to
the amount of all non-cash charges or losses to the extent deducted in arriving at such
Consolidated Net Income, (iii) an amount equal to the provision for Taxes based on income, profits
or capital of Parent, the Borrower and the Subsidiaries, including Federal, foreign, state,
franchise, excise and similar taxes and foreign withholding taxes paid or accrued during such
period to the extent deducted in arriving at such Consolidated Net Income, (iv) the proceeds of
business interruption insurance received by Parent, the Borrower and the Subsidiaries during such
fiscal year to the extent not otherwise included in such Consolidated Net Income, and (v)
reductions to noncash working capital of Parent, the Borrower and the Subsidiaries for such fiscal
year (i.e., the decrease, if any, in Current Assets minus Current Liabilities from the beginning to
the end of such fiscal year, excluding decreases resulting from any Permitted Acquisition or
disposition occurring during such fiscal year) over (b) the sum, without duplication, of (i) the
amount of any Taxes (including penalties and interest) payable in cash by Parent, the Borrower and
the Subsidiaries with respect to such fiscal year, (ii) Capital Expenditures made in cash during
such fiscal year, except to the extent financed with the proceeds of Indebtedness, equity
issuances, casualty proceeds or condemnation proceeds to the extent such proceeds would not be
included in Consolidated Net Income, (iii) permanent repayments of Indebtedness (other than
mandatory prepayments of Loans under Section 2.13 and Voluntary Prepayments) made in cash by
Parent, the Borrower and the Subsidiaries during such fiscal year, but only to the extent that the
Indebtedness so prepaid by its terms cannot be reborrowed or redrawn and such prepayments do not
occur in connection with a refinancing of all or any portion of such Indebtedness, (iv) payments by
Parent, the Borrower and the Subsidiaries during such fiscal year in respect of long-term
liabilities of Parent, the Borrower and the Subsidiaries other than Indebtedness, (v) the aggregate
amount of cash consideration paid by Parent, the Borrower and the Subsidiaries (on a consolidated
basis) in connection with Permitted Acquisitions or other investments permitted pursuant to Section
6.04 (other than Section 6.04(b)), except to the extent any such Permitted Acquisition or
investment is financed with the proceeds of Indebtedness or equity issuances, to the extent such
proceeds would not be included in Consolidated Net Income, (vi) the aggregate amount of any
premium, make-whole or penalty payments actually paid in cash by Parent, the Borrower or the
Subsidiaries during such period that are required to be made in connection with any prepayment of
Indebtedness to the extent not deducted in determining Consolidated Net Income for such fiscal
year, (vii) cash expenditures in









 



15



respect of Hedging Agreements to the extent not deducted in determining Consolidated Net
Income for such fiscal year, (viii) additions to noncash working capital for such fiscal year
(i.e., the increase, if any, in Current Assets minus Current Liabilities from the beginning to the
end of such fiscal year, excluding increases resulting from any Permitted Acquisition or
disposition occurring during such fiscal year), and (ix) an amount equal to the amount of all
non-cash credits or gains to the extent included in arriving at such Consolidated Net Income and
cash charges described in clauses (i) (x) through (y) of the third sentence of the definition of
Consolidated Net Income and included in arriving at such Consolidated Net Income; provided that in
no event shall the calculation of Excess Cash Flow include any insurance proceeds (other than
business interruption insurance) or proceeds of any condemnation, taking or similar occurrence.



     “Excluded Taxes” shall mean, with respect to the Administrative Agent, any Lender, the Issuing
Bank or any other recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the
United States of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction described in clause (a) above and (c)
in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under
Section 2.21(a)), any withholding tax that is imposed on amounts payable to such Foreign Lender at
the time such Foreign Lender becomes a party to this Agreement (or designates a new lending office)
or is attributable to such Foreign Lender’s failure to comply with Section 2.20(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation
of a new lending office (or assignment), to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 2.20(a).



     “Existing Borrower Credit Agreement” shall mean the Amended and Restated Credit Agreement
dated as of August 19, 2004, as amended, supplemented or otherwise modified from time to time,
among Parent, the Borrower, the lenders party thereto, and JPMorgan Chase Bank, N.A., as
administrative agent.



     “Existing Credit Agreements” shall mean the Existing Borrower Credit Agreement and the
Existing Triad Credit Agreement.



     “Existing Letter of Credit” shall mean each Letter of Credit previously issued for the account
of the Borrower or Triad that (a) is outstanding on the Closing Date and (b) is listed on Schedule
1.01(a).



     “Existing Indebtedness” shall mean the Existing Credit Agreements and the Existing Notes.



     “Existing Notes” shall mean the Existing Parent Notes and the Existing Triad Notes.









 



16


     “Existing Parent Notes” shall mean Parent’s outstanding 61/2% Senior Subordinated Notes due
2012.



     “Existing Triad Credit Agreement” shall mean the Amended and Restated Credit Agreement dated
as of June 10, 2005, as amended, supplemented or otherwise modified from time to time, among Triad,
certain of its subsidiaries, the lenders party thereto, and Bank of America, N.A., as
administrative agent.



     “Existing Triad Notes” shall mean Triad’s outstanding 7% Senior Notes due 2012 and 7% Senior
Subordinated Notes due 2013.



     “Facility” shall mean any Hospital, outpatient clinic, long-term care facility, ambulatory
center, nursing home or rehabilitation center and related medical office building or other facility
owned or used by the Borrower or any Subsidiary in connection with their respective business.



     “Federal Funds Effective Rate” shall mean, for any day, the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that is a Business Day, the average of the
quotations for the day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.



     “Fee Letter” shall mean the Fee Letter dated March 16, 2007, among Parent, Credit Suisse
Securities (USA) LLC, the Administrative Agent, Wachovia Capital Markets LLC, Wachovia Bank,
National Association and Wachovia Investment Holdings, LLC.



     “Fees” shall mean the Commitment Fees, the Administrative Agent Fees, the L/C Participation
Fees and the Issuing Bank Fees.



     “Financial Officer” of any person shall mean the chief financial officer, principal accounting
officer, treasurer or controller of such person.



     “Foreign Lender” shall mean any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is located. For purposes of this definition, the United
States of America, each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.



     “Foreign Subsidiary” shall mean any Subsidiary that is not a Domestic Subsidiary.



     “Fulton Bond Pledge Agreement” shall mean the Bond Pledge Agreement dated August 14, 1992,
among Hospital of Fulton, Inc., a Kentucky corporation, the Borrower and First Union National Bank,
as amended by a First Amendment to Bond Pledge Agreement dated as of August 24, 1994, a Second
Amendment to Bond Pledge Agreement dated May 12, 1995, a Third Amendment to Bond Pledge Agreement
dated









 



17



July 9, 1996, and a Fourth Amendment to Bond Pledge Agreement dated as of July 16, 2002, with
respect to the Fulton Bonds, and as further amended from time to time.



     “Fulton Bonds” shall mean the $8,000,000 aggregate principal amount City of Fulton, Kentucky
Floating Rate Weekly Demand Revenue Bonds, Series 1985 (United Healthcare of Kentucky, Inc.
Project).



     “Fulton Indenture” shall mean the Trust Indenture dated May 22, 1985, as amended by the First
Supplemental Trust Indenture dated August 14, 1992, between the City of Fulton and the Fulton
Trustee. For purposes of the Fulton Indenture, this Agreement shall be deemed to be a
“Reimbursement Agreement” as therein defined.



     “Fulton Trustee” shall mean the Third National Bank in Nashville, a national banking
association with principal offices in Nashville, Tennessee, and any successor trustee pursuant to
the terms of the Fulton Indenture.



     “Funded Term Loan Commitment” shall mean, with respect to each Lender, the commitment of such
Lender to make Funded Term Loans hereunder as set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which such Lender assumed its Funded Term Loan Commitment, as applicable, as
the same may be (a) reduced from time to time pursuant to Section 2.09 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04.



     “Funded Term Loan Lender” shall mean a Lender with a Funded Term Loan Commitment or an
outstanding Funded Term Loan.



     “Funded Term Loan Repayment Date” shall have the meaning assigned to such term in Section
2.11(a)(i).



     “Funded Term Loans” shall mean the term loans made by the Lenders to the Borrower pursuant to
Section 2.01(a)(i).



     “GAAP” shall mean United States generally accepted accounting principles.



     “Governmental Authority” shall mean any Federal, state, local or foreign court or governmental
agency, authority, instrumentality or regulatory body.



     “Granting Lender” shall have the meaning assigned to such term in Section 9.04(i).



     “Guarantee” of or by any person shall mean any obligation, contingent or otherwise, of such
person guaranteeing or having the economic effect of guaranteeing any Indebtedness of any other
person (the “primary obligor”) in any manner, whether directly or indirectly, and including any
obligation of such person, direct or indirect, (a) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Indebtedness or to purchase (or to advance or supply funds for
the purchase of) any security for the payment of such Indebtedness, (b) to purchase or lease
property, securities or services for the purpose of assuring the owner of such Indebtedness of the









 



18



payment of such Indebtedness or (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness; provided, however, that the term “Guarantee” shall not include
(i) endorsements for collection or deposit in the ordinary course of business or (ii) Practice
Guarantees. The amount of any Guarantee shall be deemed to be an amount equal to the stated or
determinable amount (based on the maximum reasonably anticipated net liability in respect thereof
as determined by the Borrower in good faith) of the primary obligation or portion thereof in
respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably
anticipated net liability in respect thereof (assuming such person is required to perform
thereunder) as determined by the Borrower in good faith.



     “Guarantee and Collateral Agreement” shall mean the Guarantee and Collateral Agreement,
substantially in the form of Exhibit D, among the Borrower, Parent, the Subsidiaries party thereto
and the Collateral Agent for the benefit of the Secured Parties.



     “Guarantors” shall mean Parent and the Subsidiary Guarantors.



     “Hazardous Materials” shall mean (a) any petroleum products or byproducts and all other
hydrocarbons, coal ash, radon gas, asbestos and asbestos-containing materials, urea formaldehyde
foam insulation, polychlorinated biphenyls, chlorofluorocarbons and all other ozone-depleting
substances, medical, biological and animal wastes and (b) without limitation of the foregoing, any
other chemical, material, substance or waste that is prohibited, limited or regulated by or
pursuant to any Environmental Law.



     “HCA Tax Sharing Agreement” shall mean the Tax Sharing and Indemnification Agreement dated as
of May 11, 1999 entered into by and among Columbia/HCA Healthcare Corporation (now known as HCA
Inc.), LifePoint Hospitals, Inc., and Triad in connection with the distribution by Columbia/HCA
Healthcare Corporation to its shareholders of all of the stock of LifePoint Hospitals, Inc. and
Triad.



     “Health Care Associates” shall have the meaning assigned to such term in Section 6.04(e).



     “Hedging Agreement” shall mean any interest rate protection agreement, foreign currency
exchange agreement, commodity price protection agreement or other interest or currency exchange
rate or commodity price hedging arrangement.



     “Hospital” shall mean each hospital now or hereafter owned, leased or operated by the Borrower
or any of the Subsidiaries or in which the Borrower or any of the Subsidiaries owns an equity
interest. Set forth on Schedule 1.01(d) is a list of all Hospitals in existence on the Closing Date
owned or used by the Borrower and the Subsidiaries.



     “Incremental Asset Sale Termination Date” shall mean July 24, 2009.



     “Incremental Term Borrowing” shall mean a Borrowing comprised of Incremental Term Loans.









 



19


     “Incremental Term Lender” shall mean a Lender with an Incremental Term Loan Commitment or an
outstanding Incremental Term Loan.



     “Incremental Term Loan Amount” shall mean, at any time, the excess, if any, of (a)
$600,000,000 over (b) the aggregate amount of all Incremental Term Loan Commitments established
prior to such time pursuant to Section 2.24.



     “Incremental Term Loan Assumption Agreement” shall mean an Incremental Term Loan Assumption
Agreement among, and in form and substance reasonably satisfactory to, the Borrower, the
Administrative Agent and one or more Incremental Term Lenders.



     “Incremental Term Loan Commitment” shall mean the commitment of any Lender, established
pursuant to Section 2.24, to make Incremental Term Loans to the Borrower.



     “Incremental Term Loan Maturity Date” shall mean the final maturity date of any Incremental
Term Loan, as set forth in the applicable Incremental Term Loan Assumption Agreement.



     “Incremental Term Loan Repayment Dates” shall mean the dates scheduled for the repayment of
principal of any Incremental Term Loan, as set forth in the applicable Incremental Term Loan
Assumption Agreement.



     “Incremental Term Loans” shall mean Term Loans made by one or more Lenders to the Borrower
pursuant to Section 2.01(b). Incremental Term Loans may be made in the form of additional Funded
Term Loans, additional Delayed Draw Term Loans or, to the extent permitted by Section 2.24 and
provided for in the relevant Incremental Term Loan Assumption Agreement, Other Term Loans.



     “Indebtedness” of any person shall mean, without duplication, (a) all obligations of such
person for borrowed money or with respect to deposits or advances of any kind (other than customer
deposits and interest payable thereon in the ordinary course of business), (b) all obligations of
such person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of
such person under conditional sale or other title retention agreements relating to property or
assets purchased by such person, (d) all obligations of such person issued or assumed as the
deferred purchase price of property or services (excluding trade accounts payable and accrued
obligations incurred in the ordinary course of business and deferred payment for services to
employees or former employees incurred in the ordinary course of business and payable in accordance
with customary practices and other deferred compensation arrangements), (e) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien on property owned or acquired by such person, whether or
not the obligations secured thereby have been assumed, (f) all Guarantees by such person of
Indebtedness of others, (g) all Capital Lease Obligations and Synthetic Lease Obligations of such
person, (h) all obligations of such person as an account party in respect of letters of credit, (i)
all obligations of such person in respect of









 



20



bankers’ acceptances, (j) all obligations of such person pursuant to any Permitted Receivables
Transaction and (k) the aggregate liquidation preference of all outstanding Disqualified Stock
issued by such person; provided that in all cases (w) Practice Guarantees, (x) wholly contingent
earnouts and working capital adjustments under acquisition or disposition agreements, (y) deferred
or prepaid revenue and (z) purchase price holdbacks in respect of a portion of the purchase price
of an asset to satisfy warranty or other unperformed obligations of the respective seller, shall be
excluded from the definition of “Indebtedness”. The Indebtedness of any person shall include the
Indebtedness of any partnership in which such person is a general partner.



     “Indemnified Taxes” shall mean Taxes other than Excluded Taxes.



     “Initial Pro Forma Adjustment” for each fiscal quarter ended on or prior to June 30, 2008,
shall mean an amount deemed to represent the pro forma cost savings and synergies reasonably
projected by Parent to result from the Merger and identified in the projections provided to the
Administrative Agent by Parent prior to the Closing Date, together with a certificate of the chief
financial officer of Parent certifying that such projections were prepared by Parent in good faith
based upon reasonable assumptions.



     “Interest Coverage Ratio” shall mean, for any period, the ratio of (a) Consolidated EBITDA for
such period to (b) Consolidated Interest Expense for such period.



     “Interest Payment Date” shall mean (a) with respect to any ABR Loan (including any Swingline
Loan), the last Business Day of each March, June, September and December, and (b) with respect to
any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of which such
Loan is a part and, in the case of a Eurodollar Borrowing with an Interest Period of more than
three months’ duration, each day that would have been an Interest Payment Date had successive
Interest Periods of three months’ duration been applicable to such Borrowing.



     “Interest Period” shall mean, with respect to any Eurodollar Borrowing, the period commencing
on the date of such Borrowing and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day) in the calendar month that is 1, 2, 3 or 6 months
thereafter or, with the consent of each applicable Lender, 9 or 12 months thereafter, as the
Borrower may elect; provided, however, that if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding Business Day unless
such next succeeding Business Day would fall in the next calendar month, in which case such
Interest Period shall end on the next preceding Business Day. Interest shall accrue from and
including the first day of an Interest Period to but excluding the last day of such Interest
Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such
Borrowing is made and thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing. Notwithstanding the foregoing, unless the Administrative Agent
shall otherwise agree, the Interest Period of any Eurodollar Borrowing made within 30 days of the
Closing Date shall be of one month’s duration.









 



21


     “Issuing Bank” shall mean, as the context may require, (a) Credit Suisse, acting through any
of its Affiliates or branches, in its capacity as an issuer of Letters of Credit hereunder, (b)
Wachovia Bank, National Association, acting through any of its Affiliates or branches, in its
capacity as an issuer of Letters of Credit hereunder, (c) with respect to each Existing Letter of
Credit, the Lender that issued such Existing Letter of Credit, and (d) any other Lender that may
become an Issuing Bank pursuant to Section 2.23(i) or 2.23(k), with respect to Letters of Credit
issued by such Lender. The Issuing Bank may, in its discretion, arrange for one or more Letters of
Credit to be issued by Affiliates or branches of the Issuing Bank, in which case the term “Issuing
Bank” shall include any such Affiliate or branch with respect to Letters of Credit issued by such
Affiliate or branch.



     “Issuing Bank Fees” shall have the meaning assigned to such term in Section 2.05(c).



     “L/C Commitment” shall mean the commitment of the Issuing Bank to issue Letters of Credit
pursuant to Section 2.23.



     “L/C Disbursement” shall mean a payment or disbursement made by the Issuing Bank pursuant to a
Letter of Credit.



     “L/C Exposure” shall mean at any time the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time and (b) the aggregate amount of all L/C Disbursements
that have not yet been reimbursed by or on behalf of the Borrower at such time. The L/C Exposure
of any Revolving Credit Lender at any time shall equal its Pro Rata Percentage of the aggregate L/C
Exposure at such time.



     “L/C Participation Fee” shall have the meaning assigned to such term in Section 2.05(c).



     “Lenders” shall mean (a) the persons listed on Schedule 2.01 (other than any such person that
has ceased to be a party hereto pursuant to an Assignment and Acceptance) and (b) any person that
has become a party hereto pursuant to an Assignment and Acceptance. Unless the context clearly
indicates otherwise, the term “Lenders” shall include the Swingline Lender.



     “Letter of Credit” shall mean any letter of credit issued pursuant to Section 2.23 and any
Existing Letter of Credit.



     “Leverage Ratio” shall mean, on any date, the ratio of Total Debt on such date to Consolidated
EBITDA for the period of four consecutive fiscal quarters most recently ended on or prior to such
date for which financial statements have been delivered (or were required to be delivered) pursuant
to Section 5.04(a) or (b). In any period of four consecutive fiscal quarters in which any
Permitted Acquisition or Significant Asset Sale occurs, the Leverage Ratio shall be determined on a
pro forma basis in accordance with Section 1.03.









 



22


     “Leverage Ratio Condition” shall mean, on any date, after giving pro forma effect to any
Specified Transaction to occur on such date as contemplated by Section 1.03, that the Leverage
Ratio on such date would be 0.25 to 1.00 lower than the maximum Leverage Ratio permitted to be
maintained by Parent on such date pursuant to Section 6.13.



     “LIBO Rate” shall mean, with respect to any Eurodollar Borrowing for any Interest Period, the
rate per annum determined by the Administrative Agent at approximately 11:00 a.m. (London time) on
the date that is two Business Days prior to the commencement of such Interest Period by reference
to the British Bankers’ Association Interest Settlement Rates for deposits in dollars (as set forth
by any service selected by the Administrative Agent that has been nominated by the British Bankers’
Association as an authorized information vendor for the purpose of displaying such rates) for a
period equal to such Interest Period; provided that, to the extent that an interest rate is not
ascertainable pursuant to the foregoing provisions of this definition, the “LIBO Rate” shall be the
interest rate per annum determined by the Administrative Agent to be the average of the rates per
annum at which deposits in dollars are offered for such relevant Interest Period to major banks in
the London interbank market in London, England by the Administrative Agent at approximately 11:00
a.m. (London time) on the date that is two Business Days prior to the beginning of such Interest
Period.



     “Liquidity Condition” shall mean, on any date, after giving pro forma effect to any Specified
Transaction to occur on such date, that the sum of the aggregate unused and available Revolving
Credit Commitments and unrestricted cash on hand at Parent and its subsidiaries would exceed
$250,000,000.



     “Lien” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
encumbrance, charge or security interest in or on such asset and (b) the interest of a vendor or a
lessor under any conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the foregoing) relating to
such asset. For the avoidance of doubt, the term “Lien” shall not be deemed to include any license
of intellectual property.



     “Loan Documents” shall mean this Agreement, the Letters of Credit, the Security Documents,
each Incremental Term Loan Assumption Agreement and the promissory notes, if any, executed and
delivered pursuant to Section 2.04(e).



     “Loan Parties” shall mean Parent, the Borrower and the Guarantors.



     “Loans” shall mean the Revolving Loans, the Term Loans and the Swingline Loans.



     “Margin Stock” shall have the meaning assigned to such term in Regulation U.



     “Material Adverse Effect” shall mean (a) a materially adverse effect on the business, assets,
operations, financial condition or operating results of the Borrower and the Subsidiaries, taken as
a whole, (b) a material impairment of the ability of the Loan Parties, taken as a whole, to perform
their obligations under the Loan Document to which









 



23



they are or will be a party or (c) a material impairment of the rights and remedies of or
benefits available to the Lenders under the Loan Documents.



     “Material Indebtedness” shall mean Indebtedness (other than the Loans and Letters of Credit
and intercompany loans), or obligations in respect of one or more Hedging Agreements, of any one or
more of Parent, the Borrower or any Subsidiary in an aggregate principal amount exceeding
$50,000,000. For purposes of determining Material Indebtedness, the “principal amount” of the
obligations of Parent, the Borrower or any Subsidiary in respect of any Hedging Agreement at any
time shall be the maximum aggregate amount (giving effect to any netting agreements) that Parent,
the Borrower or such Subsidiary would be required to pay if such Hedging Agreement were terminated
at such time.



     “Material Subsidiary” shall mean any Subsidiary other than any (a) Permitted Joint Venture
Subsidiary, (b) Permitted Syndication Subsidiary, (c) Securitization Subsidiary, (d) Foreign
Subsidiary, (e) Captive Insurance Subsidiary or (f) Non-Significant Subsidiary.



     “Merger” shall have the meaning assigned to such term in the preliminary statement.



     “Merger Agreement” shall mean the Agreement and Plan of Merger dated March 19, 2007, by and
among Parent, Merger Sub and Triad.



     “Merger Sub” shall have the meaning assigned to such term in the preliminary statement.



     “Moody’s” shall mean Moody’s Investors Service, Inc., or any successor thereto.



     “Mortgaged Properties” shall mean, initially, the owned real properties of the Loan Parties
specified on Schedule 1.01(c), and shall include each other parcel of real property and
improvements thereto with respect to which a Mortgage is granted pursuant to Section 5.12.



     “Mortgages” shall mean the mortgages, deeds of trust, assignments of leases and rents,
modifications and other security documents delivered pursuant to clause (i) of Section 4.02(g) or
pursuant to Section 5.12, each substantially in the form of Exhibit E.



     “Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.



     “Net Cash Proceeds” shall mean (a) with respect to any Asset Sale (other than Receivables sold
in a Permitted Receivables Transaction), the aggregate cash proceeds received in respect of such
Asset Sale, and any cash payments received in respect of promissory notes or other non-cash
consideration delivered in respect of such Asset Sale, net of (without duplication) (i) the
reasonable expenses (including legal fees and brokers’ and underwriters’ commissions paid to third
parties which are not Subsidiaries or Affiliates of Parent) incurred in effecting such Asset Sale,
(ii) any taxes reasonably









 



24



attributable to such Asset Sale and, in case of an Asset Sale in a foreign jurisdiction, any
taxes reasonably attributable to the repatriation of the proceeds of such Asset Sale reasonably
estimated by the Borrower to be actually payable, (iii) any amounts payable to a Governmental
Authority triggered as a result of any such Asset Sale, (iv) any Indebtedness or Contractual
Obligation of Parent, the Borrower and the Subsidiaries (other than the Loans and other
Obligations) required to be paid or retained in connection with such Asset Sale and (v) the
aggregate amount of reserves required in the reasonable judgment of the Borrower or the applicable
Subsidiary to be maintained on the books of the Borrower or such Subsidiary in order to pay
contingent liabilities with respect to such Asset Sale (so long as amounts deducted from aggregate
proceeds pursuant to this clause (v) and not actually paid by the Borrower or any of the
Subsidiaries in liquidation of such contingent liabilities shall be deemed to be Net Cash Proceeds
received at such time as such contingent liabilities shall cease to be obligations of the Borrower
or any of the Subsidiaries); provided, however, that, except with respect to the Net Cash Proceeds
of Asset Sales made pursuant to Section 6.05(b)(x), if (x) the Borrower intends to reinvest such
proceeds in assets of a kind then used or usable in the business of the Borrower and the
Subsidiaries or in Permitted Acquisitions or other investments permitted pursuant to Section 6.04
(other than Section 6.04(b)) within 15 months of receipt of such proceeds and (y) no Default or
Event of Default shall have occurred and shall be continuing at the time of such receipt, such
proceeds (but not to exceed $800,000,000 in the aggregate in the case of all such Asset Sales (the
“Asset Sale Reinvestment Amount”)) shall not constitute Net Cash Proceeds except to the extent not
so used at the end of such 15-month period, at which time such proceeds shall be deemed to be Net
Cash Proceeds; provided further that if during such 15-month period Parent, the Borrower or a
Subsidiary enters into a written agreement committing it to so apply all or a portion of such
proceeds, such 15-month period will be extended with respect to the amount of proceeds for an
additional six months, at which time such proceeds shall be deemed to be Net Cash Proceeds (it
being understood and agreed that, (A) from the Closing Date until the Incremental Asset Sale
Termination Date, the Asset Sale Reinvestment Amount shall (1) include the first $300,000,000 of
proceeds described above that the Borrower intends to reinvest pursuant to this definition, (2) not
include the next $750,000,000 of such proceeds (less the amount of such proceeds that the Borrower
previously used to prepay Term Loans) (i.e., the next $750,000,000 of such proceeds (less the
amount of such proceeds that the Borrower previously used to prepay Term Loans) shall automatically
be deemed Net Cash Proceeds and applied to the prepayment of Term Loans to the extent required by
Section 2.13(b)) and (3) include the next $500,000,000 of such proceeds that the Borrower intends
to reinvest pursuant to this definition and (B) after the Incremental Asset Sale Termination Date,
the Asset Sale Reinvestment Amount shall include the amount (if positive) of such proceeds equal to
(1) $800,000,000 less (2) the aggregate amount of all such proceeds received prior to the
Incremental Asset Sale Termination Date (other than proceeds referred to in clause (A)(2) above) to
the extent such proceeds were reinvested in accordance with this definition); and (b) with respect
to any issuance or incurrence of Indebtedness or the sale of Receivables in a Permitted Receivables
Transaction, the cash proceeds thereof, net of all taxes and customary fees, commissions, costs and
other expenses incurred in connection therewith.









 



25


     “Non-Significant Subsidiary” shall mean at any time, any Subsidiary (a) which at such time has
total assets book value (including the total assets book value of any subsidiaries of such
Subsidiary), or for which the Borrower or any of the Subsidiaries shall have paid (including the
assumption of Indebtedness) in connection with the acquisition of Equity Interests or the total
assets of such Subsidiary, less than $10,000,000 or (b) which does not and will not itself or
through its subsidiaries own a Hospital or an interest in a Hospital or manage or operate a
Hospital and which is listed on Schedule 1.01(d) hereto (or on any updates to such Schedule
subsequently furnished by the Borrower to the Administrative Agent) as a “Non-Significant
Subsidiary”, provided that the total assets of all Non-Significant Subsidiaries at any time does
not exceed 5.0% of the total assets of Parent, the Borrower and the Subsidiaries on a consolidated
basis.



     “Obligations” shall mean all obligations defined as “Obligations” in the Guarantee and
Collateral Agreement and the other Security Documents.



     “Other Taxes” shall mean any and all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made under any Loan
Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.



     “Other Term Loans” shall have the meaning assigned to such term in Section 2.24(a).



     “Parent Consent Solicitation” shall mean the consent solicitation pursuant to which Parent
will seek to amend certain of the provisions of the indenture governing the Existing Parent Notes.



     “Parent Debt Tender Offer” shall mean the offer by Parent to purchase on the Closing Date all
of the Existing Parent Notes.



     “PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA.



     “Pension Act” shall mean the Pension Protection Act of 2006, as amended from time to time.



     “Permitted Acquisition” shall have the meaning assigned to such term in Section 6.04(h).



     “Permitted Additional Debt” of any Loan Party shall mean any unsecured Indebtedness of such
Loan Party or an unsecured or subordinated Guarantee of or by such Loan Party, in each case which
(a) matures on or after, and requires no scheduled payments of principal prior to, July 15, 2015
(other than pursuant to customary offers to purchase upon a change of control, asset sale or event
of loss and customary acceleration rights after an event of default), (b) contains no financial
maintenance covenants and (c) to the extent the same is subordinated to any Indebtedness, is
subordinate or junior in









 



26



right of payment to the Obligations, pursuant to a written agreement on terms customary for
similar Indebtedness at the time of issuance.



     “Permitted Capital Expenditure Amount” shall have the meaning assigned to such term in Section
6.11.



     “Permitted Interest Transfer” shall mean a sale, issuance or other transfer of securities of a
Subsidiary or of assets of any Subsidiary to a new Subsidiary, if after such sale or other
transfer, such Subsidiary shall meet the applicable requirements of the definition of “Permitted
Joint Venture Subsidiary”, “Non-Significant Subsidiary” or “Permitted Syndication Subsidiary”;
provided that (a) the aggregate fair market value (determined at the time of the relevant Permitted
Interest Transfer) of all Permitted Interest Transfers made to, or in connection with the
establishment of, a Permitted Joint Venture shall not exceed $1,000,000,000 and (b) the total
assets of all Subsidiaries (other than Loan Parties) that become Permitted Joint Venture
Subsidiaries or Permitted Syndication Subsidiaries after the Closing Date as a result of a
Permitted Interest Transfer made after the Closing Date shall not exceed (i) 10% of the total
assets of Parent, the Borrower and the Subsidiaries on a consolidated basis in the case of
Permitted Joint Venture Subsidiaries, and (ii) 10% of the total assets of Parent, the Borrower and
the Subsidiaries on a consolidated basis in the case of Permitted Syndication Subsidiaries.



     “Permitted Investments” shall mean:



     (a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent
such obligations are backed by the full faith and credit of the United States of America), in each
case maturing within one year from the date of acquisition thereof;



     (b) investments in commercial paper maturing within 270 days from the date of acquisition
thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or
from Moody’s;



     (c) investments in certificates of deposit, banker’s acceptances and time deposits maturing
within one year from the date of acquisition thereof issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, the Administrative Agent or any domestic office
of any commercial bank organized under the laws of the United States of America or any State
thereof that has a combined capital and surplus and undivided profits of not less than
$500,000,000;



     (d) fully collateralized repurchase agreements with a term of not more than 30 days for
securities described in clause (a) above and entered into with a financial institution satisfying
the criteria of clause (c) above;



     (e) investments in “money market funds” within the meaning of Rule 2a-7 of the Investment
Company Act of 1940, as amended, substantially all of whose assets are invested in investments of
the type described in clauses (a) through (d) above;









 



27


     (f) investments in so-called “auction rate” securities rated AAA or higher by S&P or Aaa or
higher by Moody’s and which have a reset date not more than 90 days from the date of acquisition
thereof; and



     (g) other short-term investments utilized by Foreign Subsidiaries in accordance with normal
investment practices for cash management in investments of a type analogous to the foregoing.



     “Permitted Joint Ventures” shall mean acquisitions (by merger, purchase, lease (including any
lease that contains upfront payments or buy out options) or otherwise), not constituting Permitted
Acquisitions, by Parent, the Borrower or any of the Subsidiaries of interests in any of the assets
of, or shares of the capital stock of or other Equity Interests in, a person or division or line of
business of any person engaged in the same business as the Borrower and the Subsidiaries or in a
related business; provided that (a) no Default or Event of Default shall have occurred and be
continuing, and the Borrower shall have delivered to the Administrative Agent an officers’
certificate to such effect, together with all relevant financial information for such corporation
or other entity or acquired assets and (b) except for the Permitted Joint Ventures listed on
Schedule 1.01(e), to the extent (i) the aggregate value of the investments, loans and advances made
by Parent, the Borrower and the Subsidiaries in (including assets transferred to) any Permitted
Joint Venture, in each case, measured as of the date of each such investment, loan or advance (net
of any repayments or return of capital in respect thereof actually received in cash by Parent, the
Borrower or the Subsidiaries (net of applicable Taxes) after the Closing Date) (the “Net Investment
Amount”), when added to the aggregate Net Investment Amounts of all Permitted Joint Ventures
consummated after the Closing Date, would exceed $300,000,000, the Leverage Ratio Condition and the
Liquidity Condition would each be satisfied and (ii) to the extent such aggregate Net Investment
Amounts would exceed $500,000,000, the Borrower shall have received in writing, prior to effecting
any such Permitted Joint Venture, a Ratings Agency Confirmation in respect of such Permitted Joint
Venture and any financing therefor, and shall have furnished such Ratings Agency Confirmation to
the Administrative Agent.



     “Permitted Joint Venture Subsidiary” shall mean a partially owned Subsidiary pursuant to which
the Borrower or such Subsidiary conducts a Permitted Joint Venture.



     “Permitted Real Estate Indebtedness” shall have the meaning assigned to such term in Section
6.01(f).



     “Permitted Receivables Transaction” shall have the meaning assigned to such term in Section
6.05(b).



     “Permitted Syndication Subsidiary” shall mean a partially owned Subsidiary of the Borrower
which, after giving effect to a Permitted Syndication Transaction, owns, leases or operates the
Hospital which is the subject of such Permitted Syndication Transaction.









 



28


     “Permitted Syndication Transaction” shall have the meaning assigned to such term in Section
6.05(b).



     “Permitted Syndication Transaction Partner” shall mean one or more persons (other than Parent,
the Borrower or any Subsidiary) that owns a minority interest in a Permitted Syndication
Subsidiary.



     “person” shall mean any natural person, corporation, business trust, joint venture,
association, company, limited liability company, partnership, Governmental Authority or other
entity.



     “Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan) subject
to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in
respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.



     “Post-Closing Letter Agreement” shall mean the post-closing letter agreement dated the Closing
Date, among the Borrower, Parent and the Administrative Agent.



     “Practice Guarantees” shall mean admitting physician practice guarantees pursuant to which
Parent, the Borrower or any of the Subsidiaries guarantees to pay an admitting physician on the
medical staff of a Hospital the difference between such admitting physician’s monthly net revenue
from professional fees and a minimum monthly guaranteed amount.



     “Prime Rate” shall mean the rate of interest per annum determined from time to time by Credit
Suisse as its prime rate in effect at its principal office in New York City and notified to the
Borrower.



     “Pro Rata Percentage” of any Revolving Credit Lender at any time shall mean the percentage of
the Total Revolving Credit Commitment represented by such Lender’s Revolving Credit Commitment. In
the event the Revolving Credit Commitments shall have expired or been terminated, the Pro Rata
Percentages shall be determined on the basis of the Revolving Credit Commitments most recently in
effect, giving effect to any subsequent assignments.



     “Qualified Capital Stock” of any person shall mean any Equity Interest of such person that is
not Disqualified Stock.



     “Ratings Agency Confirmation” shall mean, with respect to any transaction or matter in
question, confirmation from each of Moody’s and S&P that such transaction or matter will not result
in a downgrade, qualification or withdrawal of the then current corporate credit ratings of the
Borrower.



     “Receivables” shall mean a right to receive payment arising from a sale or lease of goods or
the performance of services by a person pursuant to an arrangement with another person by which
such other person is obligated to pay for goods or services under









 



29



terms that permit the purchase of such goods and services on credit, and all proceeds thereof
and rights (contractual or other) and collateral related thereto, and shall include, in any event,
any items of property that would be classified as accounts receivable on the balance sheet of the
Borrower or any of the Subsidiaries prepared in accordance with GAAP or an “account”, “chattel
paper”, an “instrument”, a “general intangible” or a “payment intangible” under the Uniform
Commercial Code as in effect in the State of New York and any “supporting obligations” or
“proceeds” (as so defined) of any such items.



     “Receivables Transaction” shall mean, with respect to the Borrower and/or any of the
Subsidiaries, any transaction or series of transactions of sales, factoring or securitizations
involving Receivables pursuant to which the Borrower or any Subsidiary may sell, convey or
otherwise transfer to a Securitization Subsidiary or any other Person, and may grant a
corresponding security interest in, any Receivables (whether now existing or arising in the future)
of the Borrower or any Subsidiary, and any assets related thereto including collateral securing
such Receivables, contracts and all Guarantees or other obligations in respect of such Receivables,
the proceeds of such Receivables and other assets which are customarily transferred, or in respect
of which security interests are customarily granted, in connection with sales, factoring or
securitizations involving Receivables.



     “Receivables Transaction Amount” shall mean (a) in the case of any Receivables securitization
(but excluding any sale or factoring of Receivables), the amount of obligations outstanding under
the legal documents entered into as part of such Receivables securitization on any date of
determination that would be characterized as principal if such Receivables securitization were
structured as a secured lending transaction rather than as a purchase and (b) in the case of any
sale or factoring of Receivables, the cash purchase price paid by the buyer in connection with its
purchase of Receivables (including any bills of exchange) less the amount of collections received
in respect of such Receivables and paid to such buyer, excluding any amounts applied to purchase
fees or discount or in the nature of interest, in each case as determined in good faith and in a
consistent and commercially reasonable manner by the Borrower (provided that if such method of
calculation is not applicable to such sale or factoring of Receivables, the amount of Receivables
Transaction Amount associated therewith shall be determined in a manner mutually acceptable to the
Borrower and the Administrative Agent).



     “Register” shall have the meaning assigned to such term in Section 9.04(d).



     “Regulation T” shall mean Regulation T of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.



     “Regulation U” shall mean Regulation U of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.



     “Regulation X” shall mean Regulation X of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.









 



30


     “Related Fund” shall mean, with respect to any Lender that is a fund or commingled investment
vehicle that invests in bank loans, any other fund that invests in bank loans and is managed or
advised by the same investment advisor as such Lender or by an Affiliate of such investment
advisor.



     “Related Parties” shall mean, with respect to any specified person, such person’s Affiliates
and the respective directors, trustees, officers, employees, agents and advisors of such person and
such person’s Affiliates.



     “Release” shall mean any release, spill, emission, leaking, dumping, injection, pouring,
deposit, disposal, discharge, dispersal, leaching or migration into or through the environment or
within or upon any building, structure, facility or fixture.



     “Repayment Date” shall mean a Funded Term Loan Repayment Date, a Delayed Draw Term Loan
Repayment Date or an Incremental Term Loan Repayment Date.



     “Replacement Capital Expenditures” shall mean Capital Expenditures on or after the Closing
Date made in connection with (i) the replacement of a Hospital as required by the agreements
pursuant to which such Hospital, or the entity owning such Hospital, was acquired by the Borrower
or any of the Subsidiaries from a third-party, whether pursuant to such agreement existing as of
the Closing Date or entered into thereafter, (ii) the replacement of the Hospitals (owned, leased
or operated by the Borrower or any of the Subsidiaries or in which the Borrower or any of the
Subsidiaries owns an Equity Interest as of the date hereof) in Barstow, California, Cedar Park,
Texas, Madison County, Alabama and Lindenhurst, Illinois or (iii) the acquisition of the Hospital
leased by a Subsidiary on the date hereof in Dublin, Ireland.



     “Required Lenders” shall mean, at any time, Lenders having Loans (excluding Swingline Loans),
L/C Exposure, Swingline Exposure and unused Revolving Credit Commitments and Term Loan Commitments
representing more than 50% of the sum of all Loans outstanding (excluding Swingline Loans), L/C
Exposure, Swingline Exposure and unused Revolving Credit Commitments and Term Loan Commitments at
such time; provided that the Revolving Loans, L/C Exposure, Swingline Exposure and unused Revolving
Credit Commitments of any Defaulting Lender shall be disregarded in the determination of the
Required Lenders at any time.



     “Responsible Officer” of any person shall mean any executive officer, executive vice president
or Financial Officer of such person and any other officer or similar official thereof responsible
for the administration of the obligations of such person in respect of this Agreement.



     “Restricted Indebtedness” shall mean Indebtedness of Parent, the Borrower or any Subsidiary,
the payment, prepayment, repurchase or defeasance of which is restricted under Section 6.09(b).



     “Restricted Payment” shall mean any dividend or other distribution (whether in cash,
securities or other property (other than Qualified Capital Stock)) with respect to any Equity
Interests in Parent, the Borrower or any Subsidiary, or any payment (whether in









 



31



cash, securities or other property (other than Qualified Capital Stock)), including any
sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any Equity Interests in Parent, the Borrower or any Subsidiary.



     “Revolving Credit Borrowing” shall mean a Borrowing comprised of Revolving Loans.



     “Revolving Credit Commitment” shall mean, with respect to each Lender, the commitment of such
Lender to make Revolving Loans hereunder (and to acquire participations in Swingline Loans and
Letters of Credit as provided for herein) as set forth on Schedule 2.01, or in the Assignment and
Acceptance pursuant to which such Lender assumed its Revolving Credit Commitment, as applicable, as
the same may be (a) reduced from time to time pursuant to Section 2.09 and (b) reduced or increased
from time to time pursuant to assignments by or to such Lender pursuant to Section 9.04.



     “Revolving Credit Commitment Fee” shall have the meaning assigned to such term in Section
2.05(a).



     “Revolving Credit Commitment Fee Rate” shall have the meaning assigned to such term in the
definition of the term “Applicable Percentage”.



     “Revolving Credit Exposure” shall mean, with respect to any Lender at any time, the aggregate
principal amount at such time of all outstanding Revolving Loans of such Lender, plus the aggregate
amount at such time of such Lender’s L/C Exposure, plus the aggregate amount at such time of such
Lender’s Swingline Exposure.



     “Revolving Credit Lender” shall mean a Lender with a Revolving Credit Commitment or an
outstanding Revolving Loan.



     “Revolving Credit Maturity Date” shall mean July 25, 2013.



     “Revolving Loans” shall mean the revolving loans made by the Lenders to the Borrower pursuant
to clause (a)(iii) of Section 2.01.



     “S&P” shall mean Standard & Poor’s Ratings Service, or any successor thereto.



     “Secured Parties” shall have the meaning assigned to such term in the Guarantee and Collateral
Agreement.



     “Securitization Subsidiary” shall mean any special purpose Subsidiary that acquires
Receivables generated by the Borrower or any of the Subsidiaries and that engages in no operations
or activities other than those related to a Permitted Receivables Transaction.



     “Security Documents” shall mean the Mortgages, the Guarantee and Collateral Agreement and each
of the security agreements, mortgages and other instruments and









 



32



documents executed and delivered pursuant to any of the foregoing or pursuant to Section 5.12.



     “Senior Note Indenture” shall mean the indenture under which the Senior Notes are issued, as
the same may be amended, restated, substituted, replaced, refinanced, supplemented or otherwise
modified from time to time in accordance with Section 6.01(h).



     “Senior Notes” shall mean the Borrower’s 8.875% Senior Notes due 2015, in an initial aggregate
principal amount of $3,021,331,000, as the same may be amended, restated, substituted, replaced,
refinanced, supplemented or otherwise modified from time to time pursuant to Section 6.01(h).



     “Significant Asset Sale” shall mean the sale, transfer, lease or other disposition by Parent,
the Borrower or any Subsidiary to any person other than the Borrower or a Subsidiary Guarantor of
all or substantially all of the assets of, or a majority of the Equity Interests in, a person, or a
division or line of business or other business unit of a person.



     “SEC” shall mean the U.S. Securities and Exchange Commission or any Governmental Authority
succeeding to any or all of its functions.



     “SPC” shall have the meaning assigned to such term in Section 9.04(i).



     “Specified Transaction” shall mean (a) the consummation of a Permitted Acquisition, (b) the
investment in a Permitted Joint Venture or (c) the incurrence or assumption of Indebtedness
pursuant to Section 6.01(m).



     “Spinout Subsidiary” shall mean an Unrestricted Subsidiary that is formed for the purpose of
acquiring the real property of Parent, the Borrower or any Subsidiary in connection with a Spinout
Transaction.



     “Spinout Transaction” shall mean the sale, transfer or other disposition by Parent, the
Borrower or any Subsidiary of real property owned by it to any Spinout Subsidiary in a transaction
permitted by Section 6.05(b)(i) and the subsequent distribution of the Equity Interests of such
Spinout Subsidiary to the equity holders of Parent.



     “Statutory Reserves” shall mean a fraction (expressed as a decimal), the numerator of which is
the number one and the denominator of which is the number one minus the aggregate of the maximum
reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board and any other banking authority, domestic or foreign, to
which the Administrative Agent or any Lender (including any branch, Affiliate or other fronting
office making or holding a Loan) is subject for Eurocurrency Liabilities (as defined in Regulation
D of the Board). Eurodollar Loans shall be deemed to constitute Eurocurrency Liabilities (as
defined in Regulation D of the Board) and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available from time to time
to any Lender under such Regulation D. Statutory Reserves shall be












 




33


adjusted automatically on and as of the effective date of any change in any reserve
percentage.




     “subsidiary” shall mean, as to any person, a corporation, partnership or other entity of which
Equity Interests having ordinary voting power (other than Equity Interests having such power only
by reason of the happening of a contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the time owned, directly or
indirectly, or the management of which is otherwise Controlled, directly or indirectly, or both, by
such person.



     “Subsidiary” shall mean any subsidiary of the Borrower; provided, however, that Unrestricted
Subsidiaries shall be deemed not to be Subsidiaries for any purpose of this Agreement or the other
Loan Documents.



     “Subsidiary Guarantor” shall mean each Subsidiary listed on Schedule 1.01(b), and each other
Subsidiary that is or becomes a party to the Guarantee and Collateral Agreement pursuant to Section
5.12 (it being understood and agreed that no (i) Foreign Subsidiary, (ii) Non-Significant
Subsidiary, (iii) Permitted Syndication Subsidiary, (iv) Securitization Subsidiary, (v) Captive
Insurance Subsidiary, (vi) Permitted Joint Venture Subsidiary or (vii) Subsidiary listed on
Schedule 1.01(f), shall, in any case, be required to enter into the Guarantee and Collateral
Agreement pursuant to Section 5.12).



     “Swingline Commitment” shall mean the commitment of the Swingline Lender to make loans
pursuant to Section 2.22, as the same may be reduced from time to time pursuant to Section 2.09.



     “Swingline Exposure” shall mean at any time the aggregate principal amount at such time of all
outstanding Swingline Loans. The Swingline Exposure of any Revolving Credit Lender at any time
shall equal its Pro Rata Percentage of the aggregate Swingline Exposure at such time.



     “Swingline Lender” shall mean Credit Suisse, acting through any of its Affiliates or branches,
in its capacity as lender of Swingline Loans hereunder.



     “Swingline Loan” shall mean any loan made by the Swingline Lender pursuant to Section 2.22.



     “Syndication Proceeds” shall have the meaning assigned to such term in Section 6.05(b).



     “Syndication Transaction” shall mean a transaction (or series of transactions) whereby the
Borrower or a Subsidiary sells part, but not all, of its interest in a Subsidiary that owns, leases
or operates a Hospital to one or more third parties or of its interest in a Hospital to a partially
owned Subsidiary.



     “Synthetic Lease” shall mean, as to any person, any lease (including leases that may be
terminated by the lessee at any time) of any property (whether real, personal or mixed) (a) that is
accounted for as an operating lease under GAAP and (b) in respect of









 



34

which the lessee retains or obtains ownership of the property so leased for U.S. federal
income tax purposes, other than any such lease under which such person is the lessor.




     “Synthetic Lease Obligations” shall mean, as to any person, an amount equal to the capitalized
amount of the remaining lease payments under any Synthetic Lease that would appear on a balance
sheet of such person in accordance with GAAP if such obligations were accounted for as Capital
Lease Obligations.



     “Synthetic Purchase Agreement” shall mean any swap, derivative or other agreement or
combination of agreements pursuant to which Parent, the Borrower or any Subsidiary is or may become
obligated to make (a) any payment in connection with a purchase by any third party from a person
other than Parent, the Borrower or any Subsidiary of any Equity Interest or Restricted Indebtedness
or (b) any payment (other than on account of a permitted purchase by it of any Equity Interest or
Restricted Indebtedness) the amount of which is determined by reference to the price or value at
any time of any Equity Interest or Restricted Indebtedness; provided that no phantom stock or
similar plan providing for payments only to current or former directors, officers or employees of
Parent, the Borrower or the Subsidiaries (or to their heirs and estates) shall be deemed to be a
Synthetic Purchase Agreement.



     “Taxes” shall mean any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority.



     “Tender Agent” shall mean, with respect to any Existing Letter of Credit, a Tender Agent as
defined in such Existing Letter of Credit.



     “Tender Draft” shall mean, with respect to any Existing Letter of Credit, a Tender Draft as
defined in such Existing Letter of Credit.



     “Term Borrowing” shall mean a Borrowing comprised of Funded Term Loans, Delayed Draw Term
Loans or Incremental Term Loans.



     “Term Commitment Fees” shall have the meaning assigned to such term in Section 2.05(a).



     “Term Lender” shall mean a Lender with a Term Loan Commitment or an outstanding Term Loan.



     “Term Loan Commitments” shall mean the Funded Term Loan Commitments and the Delayed Draw Term
Loan Commitments. Unless the context shall otherwise require, the term “Term Loan Commitments”
shall include the Incremental Term Loan Commitments.



     “Term Loan Maturity Date” shall mean July 25, 2014.



     “Term Loans” shall mean the Funded Term Loans and the Delayed Draw Term Loans. Unless the
context shall otherwise require, the term “Term Loans” shall include any Incremental Term Loans.









 



35


     “Total Debt” shall mean, at any time, (a) the total Indebtedness of the Borrower and the
Subsidiaries at such time (excluding Indebtedness of the type described in clause (h) of the
definition of such term or under performance or surety bonds, in each case except to the extent of
any unreimbursed drawings thereunder) minus (b) the aggregate amount of unrestricted cash and cash
equivalents that is included on the consolidated balance sheet of Parent, the Borrower and the
Subsidiaries at such time.



     “Total Revolving Credit Commitment” shall mean, at any time, the aggregate amount of the
Revolving Credit Commitments, as in effect at such time. The initial Total Revolving Credit
Commitment is $750,000,000.



     “Transactions” shall mean, collectively, (a) the consummation of the transactions contemplated
by the Merger Agreement, (b) the execution, delivery and performance by Parent, the Borrower and
the Subsidiaries party thereto of the Senior Note Indenture and the issuance of the Senior Notes,
(c) the execution, delivery and performance by the Loan Parties of the Loan Documents to which they
are a party and the making of the Borrowings hereunder, (d) the repayment of all amounts due or
outstanding under or in respect of, and the termination of, the Existing Credit Agreements, (e) (i)
the consummation of the Debt Tender Offers and the Consent Solicitations and/or (ii) the deposit of
funds with the applicable trustees under the indentures governing the Existing Notes sufficient to
discharge the applicable Existing Notes or to effect covenant defeasance with respect to the
applicable Existing Notes, and (f) the payment of related fees and expenses.



     “Triad” shall have the meaning assigned to such term in the Preliminary Statement.



     “Triad Consent Solicitations” shall mean the consent solicitations pursuant to which Triad
will seek to amend certain of the provisions of the indentures governing the Existing Triad Notes.



     “Triad Debt Tender Offers” shall mean the offers by Triad to purchase on the Closing Date all
of the Existing Triad Notes.



     “Type”, when used in respect of any Loan or Borrowing, shall refer to the Rate by reference to
which interest on such Loan or on the Loans comprising such Borrowing is determined. For purposes
hereof, the term “Rate” shall mean the Adjusted LIBO Rate and the Alternate Base Rate.



     “Unrestricted Subsidiary” shall mean any Subsidiary organized or acquired directly or
indirectly by Parent after the Closing Date that Parent designates as an “Unrestricted Subsidiary”
by written notice to the Administrative Agent. No Unrestricted Subsidiary may own any Equity
Interests of a Subsidiary; provided that, so long as no Default or Event of Default shall have
occurred and be continuing or would result therefrom, Parent may redesignate any Unrestricted
Subsidiary as a “Subsidiary” by written notice to the Administrative Agent and by complying with
the applicable provisions of Section 5.12.









 



36


     “USA PATRIOT Act” shall mean The Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56
(signed into law October 26, 2001)).



     “Voluntary Prepayment” shall mean a prepayment of principal of Term Loans pursuant to Section
2.12 in any year to the extent that such prepayment reduces the scheduled installments of principal
due in respect of Term Loans in any subsequent year.



     “wholly owned Subsidiary” of any person shall mean a subsidiary of such person of which
securities (except for directors’ qualifying shares) or other ownership interests representing 100%
of the Equity Interests are, at the time any determination is being made, owned, Controlled or held
by such person or one or more wholly owned Subsidiaries of such person or by such person and one or
more wholly owned Subsidiaries of such person.



     “Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a complete
or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle
E of Title IV of ERISA.



     SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall apply equally to both
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”; and the
words “asset” and “property” shall be construed as having 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. All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless
the context shall otherwise require. Except as otherwise expressly provided herein, (a) any
reference in this Agreement to any Loan Document shall mean such document as amended, restated,
supplemented or otherwise modified from time to time and (b) all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect from time to time;
provided, however, that if the Borrower notifies the Administrative Agent that the Borrower wishes
to amend any covenant in Article VI or any related definition to eliminate the effect of any change
in GAAP occurring after the date of this Agreement on the operation of such covenant (or if the
Administrative Agent notifies the Borrower that the Required Lenders wish to amend Article VI or
any related definition for such purpose), then the Borrower’s compliance with such covenant shall
be determined on the basis of GAAP in effect immediately before the relevant change in GAAP became
effective, until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Lenders.



     SECTION 1.03. Pro Forma Calculations. With respect to any period of four consecutive fiscal
quarters during which any Permitted Acquisition or Significant Asset Sale occurs, the Leverage
Ratio shall, for all purposes set forth herein, be calculated with









 



37

respect to such period on a pro forma basis after giving effect to such Permitted Acquisition
or Significant Asset Sale (including, without duplication, (a) all pro forma adjustments permitted
or required by Article 11 of Regulation S-X under the Securities Act of 1933, as amended, and (b)
pro forma adjustments for cost savings (net of continuing associated expenses) to the extent such
cost savings are factually supportable, are expected to have a continuing impact and have been
realized or are reasonably expected to be realized within 12 months following any such Permitted
Acquisition; provided that at the election of Parent, such pro forma adjustment shall not be
required to be determined for any Permitted Acquisition if the aggregate consideration paid in
connection with such acquisition is less than $100,000,000; provided further that all such
adjustments shall be set forth in a reasonably detailed certificate of a Financial Officer of
Parent), using, for purposes of making such calculations, the historical financial statements of
Parent, the Borrower and the Subsidiaries which shall be reformulated as if such Permitted
Acquisition or Significant Asset Sale, and any other Permitted Acquisitions and Significant Asset
Sales that have been consummated during the period, had been consummated on the first day of such
period. In addition, solely for purposes of determining whether a Specified Transaction is
permitted hereunder (including whether such Specified Transaction would result in a Default or
Event of Default and whether the Leverage Ratio Condition would be met), the Leverage Ratio shall
be calculated on a pro forma basis as provided in the preceding sentence.




     SECTION 1.04. Classification of Loans and Borrowings. For purposes of this Agreement, Loans
may be classified and referred to by Class (e.g., a “Revolving Loan”) or by Type (e.g., a
“Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar Revolving Loan”). Borrowings also may
be classified and referred to by Class (e.g., a “Revolving Borrowing”) or by Type (e.g., a
“Eurodollar Borrowing”) or by Class and Type (e.g., a “Eurodollar Revolving Borrowing”).



ARTICLE II




The Credits




     SECTION 2.01. Commitments. (a) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, (i) each Funded Term Loan Lender agrees, severally
and not jointly, to make a Funded Term Loan to the Borrower on the Closing Date, in a principal
amount not to exceed its Funded Term Loan Commitment, (ii) each Delayed Draw Term Loan Lender
agrees, severally and not jointly, to make Delayed Draw Term Loans to the Borrower from time to
time during the period commencing on the date hereof and ending on the Delayed Draw Commitment
Termination Date, in an aggregate principal amount not to exceed its Delayed Draw Term Loan
Commitment, and (iii) each Revolving Credit Lender agrees, severally and not jointly, to make
Revolving Loans to the Borrower, at any time and from time to time after the date hereof, and until
the earlier of the Revolving Credit Maturity Date and the termination of the Revolving Credit
Commitment of such Lender in accordance with the terms hereof, in an aggregate principal amount at
any time outstanding that will not result









 



38

in such Lender’s Revolving Credit Exposure exceeding such Lender’s Revolving Credit
Commitment. Within the limits set forth in clause (iii) of the preceding sentence and subject to
the terms, conditions and limitations set forth herein, the Borrower may borrow, pay or prepay and
reborrow Revolving Loans. Amounts paid or prepaid in respect of Term Loans may not be reborrowed.




     (b) Subject to the terms and conditions and relying upon the representations and warranties
set forth herein and in the applicable Incremental Term Loan Assumption Agreement, each Lender
having an Incremental Term Loan Commitment agrees, severally and not jointly, to make Incremental
Term Loans to the Borrower, in an aggregate principal amount not to exceed its Incremental Term
Loan Commitment. Amounts paid or prepaid in respect of Incremental Term Loans may not be
reborrowed.



     SECTION 2.02. Loans. (a) Each Loan (other than Swingline Loans) shall be made as part of a
Borrowing consisting of Loans made by the Lenders ratably in accordance with their applicable
Commitments; provided, however, that the failure of any Lender to make any Loan shall not in itself
relieve any other Lender of its obligation to lend hereunder (it being understood, however, that no
Lender shall be responsible for the failure of any other Lender to make any Loan required to be
made by such other Lender). Except for Loans deemed made pursuant to Section 2.02(f), the Loans
comprising any Borrowing shall be in an aggregate principal amount that is (i) an integral multiple
of $1,000,000 (or, in the case of a Delayed Draw Term Borrowing, $10,000,000) and not less than
$3,000,000 (or, in the case of a Delayed Draw Term Borrowing, $50,000,000) (except, with respect to
any Incremental Term Borrowing, to the extent otherwise provided in the related Incremental Term
Loan Assumption Agreement) or (ii) equal to the remaining available balance of the applicable
Commitments.



     (b) Subject to Sections 2.02(f), 2.08 and 2.15, each Borrowing shall be comprised entirely of
ABR Loans or Eurodollar Loans as the Borrower may request pursuant to Section 2.03. Each Lender
may at its option make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate
of such Lender to make such Loan; provided that any exercise of such option shall not affect the
obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement.
Borrowings of more than one Type may be outstanding at the same time; provided, however, that the
Borrower shall not be entitled to request any Borrowing that, if made, would result in more than
fifteen Eurodollar Borrowings outstanding hereunder at any time. For purposes of the foregoing,
Borrowings having different Interest Periods, regardless of whether they commence on the same date,
shall be considered separate Borrowings.



     (c) Except with respect to Loans made pursuant to Section 2.02(f), each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately
available funds to such account in New York City as the Administrative Agent may designate not
later than 1:00 p.m., New York City time, and the Administrative Agent shall promptly credit the
amounts so received to an account designated by the Borrower in the applicable Borrowing Request
or, if a Borrowing shall not occur on such date because any condition precedent herein specified
shall not have been met, return the amounts so received to the respective Lenders.









 



39


     (d) Unless the Administrative Agent shall have received notice from a Lender prior to the date
of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s
portion of such Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in accordance with
paragraph (c) above and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If the Administrative Agent shall
have so made funds available then, to the extent that such Lender shall not have made such portion
available to the Administrative Agent, such Lender agrees to repay to the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon, for each day from the
date such amount is made available to the Borrower to but excluding the date such amount is repaid
to the Administrative Agent at a rate determined by the Administrative Agent to represent its cost
of overnight or short-term funds (which determination shall be conclusive absent manifest error).
If such Lender shall not repay to the Administrative Agent such corresponding amount within three
Business Days after demand by the Administrative Agent, then the Administrative Agent shall be
entitled to recover such amount with interest thereon at the rate per annum equal to the interest
rate applicable at the time to the Loans comprising such Borrowing, on demand, from the Borrower.
If such Lender shall repay to the Administrative Agent such corresponding amount, such amount shall
constitute such Lender’s Loan as part of such Borrowing for purposes of this Agreement.



     (e) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled
to request any Revolving Credit Borrowing if the Interest Period requested with respect thereto
would end after the Revolving Credit Maturity Date.



     (f) If the Issuing Bank shall not have received from the Borrower the payment required to be
made by Section 2.23(e) within the time specified in such Section, the Issuing Bank will promptly
notify the Administrative Agent of the L/C Disbursement and the Administrative Agent will promptly
notify each Revolving Credit Lender of such L/C Disbursement and its Pro Rata Percentage thereof.
Each Revolving Credit Lender shall pay by wire transfer of immediately available funds to the
Administrative Agent not later than 2:00 p.m., New York City time, on such date (or, if such
Revolving Credit Lender shall have received such notice later than 12:00 (noon), New York City
time, on any day, not later than 10:00 a.m., New York City time, on the immediately following
Business Day), an amount equal to such Lender’s Pro Rata Percentage of such L/C Disbursement (it
being understood that (i) if the conditions precedent to borrowing set forth in Sections 4.01(b)
and (c) have been satisfied, such amount shall be deemed to constitute an ABR Revolving Loan of
such Lender and, to the extent of such payment, the obligations of the Borrower in respect of such
L/C Disbursement shall be discharged and replaced with the resulting ABR Revolving Credit
Borrowing, and (ii) if such conditions precedent to borrowing have not been satisfied, then any
such amount paid by any Revolving Credit Lender shall not constitute a Loan and shall not relieve
the Borrower from its obligation to reimburse such L/C Disbursement), and the Administrative Agent
will promptly pay to the Issuing Bank amounts so received by it from the Revolving Credit Lenders.
The Administrative Agent will promptly pay to the Issuing Bank any amounts received by it from the
Borrower pursuant to Section 2.23(e) prior to the time









 



40

that any Revolving Credit Lender makes any payment pursuant to this paragraph (f); any such
amounts received by the Administrative Agent thereafter will be promptly remitted by the
Administrative Agent to the Revolving Credit Lenders that shall have made such payments and to the
Issuing Bank, as their interests may appear. If any Revolving Credit Lender shall not have made
its Pro Rata Percentage of such L/C Disbursement available to the Administrative Agent as provided
above, such Lender and the Borrower severally agree to pay interest on such amount, for each day
from and including the date such amount is required to be paid in accordance with this paragraph to
but excluding the date such amount is paid, to the Administrative Agent for the account of the
Issuing Bank at (i) in the case of the Borrower, a rate per annum equal to the interest rate
applicable to Revolving Loans pursuant to Section 2.06(a), and (ii) in the case of such Lender, for
the first such day, the Federal Funds Effective Rate, and for each day thereafter, the Alternate
Base Rate.




     SECTION 2.03. Borrowing Procedure. In order to request a Borrowing (other than a Swingline
Loan or a deemed Borrowing pursuant to Section 2.02(f), as to which this Section 2.03 shall not
apply), the Borrower shall notify the Administrative Agent of such request by telephone (a) in the
case of a Eurodollar Borrowing, not later than 12:00 (noon), New York City time, three Business
Days before a proposed Borrowing, and (b) in the case of an ABR Borrowing, not later than 12:00
(noon), New York City time, one Business Day before a proposed Borrowing. Each such telephonic
Borrowing Request shall be irrevocable, and shall be confirmed promptly by hand delivery or fax to
the Administrative Agent of a written Borrowing Request and shall specify the following
information: (i) whether the Borrowing then being requested is to be a Term Borrowing, an
Incremental Term Borrowing or a Revolving Credit Borrowing, and whether such Borrowing is to be a
Eurodollar Borrowing or an ABR Borrowing; (ii) the date of such Borrowing (which shall be a
Business Day); (iii) the number and location of the account to which funds are to be disbursed;
(iv) the amount of such Borrowing; and (v) if such Borrowing is to be a Eurodollar Borrowing, the
Interest Period with respect thereto; provided, however, that, notwithstanding any contrary
specification in any Borrowing Request, each requested Borrowing shall comply with the requirements
set forth in Section 2.02. If no election as to the Type of Borrowing is specified in any such
notice, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period with respect
to any Eurodollar Borrowing is specified in any such notice, then the Borrower shall be deemed to
have selected an Interest Period of one month’s duration. The Administrative Agent shall promptly
advise the applicable Lenders of any notice given pursuant to this Section 2.03 (and the contents
thereof), and of each Lender’s portion of the requested Borrowing.



     SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) The Borrower hereby unconditionally
promises to pay to the Administrative Agent for the account of each Lender (i) the principal amount
of each Term Loan of such Lender as provided in Section 2.11 and (ii) the then unpaid principal
amount of each Revolving Loan of such Lender on the Revolving Credit Maturity Date. The Borrower
hereby promises to pay to the Swingline Lender the then unpaid principal amount of each Swingline
Loan on the Revolving Credit Maturity Date.









 



41


     (b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such
Lender from time to time, including the amounts of principal and interest payable and paid to such
Lender from time to time under this Agreement.



     (c) The Administrative Agent shall maintain accounts in which it will record (i) the amount of
each Loan made hereunder, the Class and Type thereof and, if applicable, the Interest Period
applicable thereto, (ii) the amount of any principal or interest due and payable or to become due
and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder from the Borrower or any Guarantor and each Lender’s share
thereof.



     (d) The entries made in the accounts maintained pursuant to paragraphs (b) and (c) above shall
be prima facie evidence of the existence and amounts of the obligations therein recorded; provided,
however, that the failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligations of the Borrower to repay the Loans
in accordance with their terms.



     (e) Any Lender may request that Loans made by it hereunder be evidenced by a promissory note.
In such event, the Borrower shall execute and deliver to such Lender a promissory note payable to
such Lender and its registered assigns and in a form and substance reasonably acceptable to the
Administrative Agent and the Borrower. Notwithstanding any other provision of this Agreement, in
the event any Lender shall request and receive such a promissory note, the interests represented by
such note shall at all times (including after any assignment of all or part of such interests
pursuant to Section 9.04) be represented by one or more promissory notes payable to the payee named
therein or its registered assigns.



     SECTION 2.05. Fees. (a) The Borrower agrees to pay to each Revolving Credit Lender, through
the Administrative Agent, on the last Business Day of March, June, September and December in each
year and on each date on which any Revolving Credit Commitment of such Lender shall expire or be
terminated as provided herein, a commitment fee (a “Revolving Credit Commitment Fee”) equal to the
Revolving Credit Commitment Fee Rate per annum on the daily unused amount of the Revolving Credit
Commitment of such Lender during the preceding quarter (or other period commencing with the date
hereof or ending with the Revolving Credit Maturity Date or the date on which the Revolving Credit
Commitments of such Lender shall expire or be terminated). The Borrower agrees to pay to each
Lender, through the Administrative Agent, on the last Business Day of March, June, September and
December in each year and on the date on which the Delayed Draw Term Loan Commitment of such Lender
shall expire or be terminated as provided herein, a commitment fee (a “Term Commitment Fee”) equal
to the Applicable Term Commitment Fee Rate per annum on the daily unused amount of the Delayed Draw
Term Loan Commitment of such Lender during the preceding quarter (or other period commencing with
the date hereof or ending with the Delayed Draw Commitment Termination Date or the date on which
the Delayed Draw Term Loan Commitment of such Lender shall expire or be terminated). All
Commitment Fees shall









 



42

be computed on the basis of the actual number of days elapsed in a year of 360 days. For
purposes of calculating Revolving Credit Commitment Fees only, no portion of the Revolving Credit
Commitments shall be deemed utilized as a result of outstanding Swingline Loans.




     (b) The Borrower agrees to pay to the Administrative Agent, for its own account, the
administrative fees set forth in the Fee Letter at the times and in the amounts specified therein
(the “Administrative Agent Fees”).



     (c) The Borrower agrees to pay (i) to each Revolving Credit Lender, through the Administrative
Agent, on the last Business Day of March, June, September and December of each year and on the date
on which the Revolving Credit Commitment of such Lender shall be terminated as provided herein, a
fee (an “L/C Participation Fee”) calculated on such Lender’s Pro Rata Percentage of the daily
aggregate L/C Exposure (excluding the portion thereof attributable to unreimbursed L/C
Disbursements) during the preceding quarter (or shorter period commencing with the date hereof or
ending with the Revolving Credit Maturity Date or the date on which all Letters of Credit have been
canceled or have expired and the Revolving Credit Commitments of all Lenders shall have been
terminated) at a rate per annum equal to the Applicable Percentage from time to time used to
determine the interest rate on Revolving Credit Borrowings comprised of Eurodollar Loans pursuant
to Section 2.06, and (ii) to the Issuing Bank with respect to each Letter of Credit the standard
fronting, issuance and drawing fees specified from time to time by the Issuing Bank (the “Issuing
Bank Fees”); provided that each such fronting fee charged from time to time shall not exceed 0.25%
per annum of the aggregate undrawn face amount of the then outstanding Letters of Credit. All L/C
Participation Fees and Issuing Bank Fees shall be computed on the basis of the actual number of
days elapsed in a year of 360 days.



     (d) All Fees shall be paid on the dates due, in immediately available funds, to the
Administrative Agent for distribution, if and as appropriate, among the Lenders, except that the
Issuing Bank Fees shall be paid directly to the Issuing Bank. Once paid, none of the Fees shall be
refundable under any circumstances.



     SECTION 2.06. Interest on Loans. (a) Subject to the provisions of Section 2.07, the Loans
comprising each ABR Borrowing, including each Swingline Loan, shall bear interest (computed on the
basis of the actual number of days elapsed over a year of 365 or 366 days, as the case may be, when
the Alternate Base Rate is determined by reference to the Prime Rate and over a year of 360 days at
all other times and calculated from and including the date of such Borrowing to but excluding the
date of repayment thereof) at a rate per annum equal to the Alternate Base Rate plus the Applicable
Percentage in effect from time to time.



     (b) Subject to the provisions of Section 2.07, the Loans comprising each Eurodollar Borrowing
shall bear interest (computed on the basis of the actual number of days elapsed over a year of 360
days) at a rate per annum equal to the Adjusted LIBO Rate for the Interest Period in effect for
such Borrowing plus the Applicable Percentage in effect from time to time. Notwithstanding
anything herein to the contrary, the









 



43

Adjusted LIBO Rate for each initial Interest Period for Borrowings of Eurodollar Delayed Draw
Term Loans shall be equal to the Adjusted LIBO Rate in respect of the corresponding Interest
Periods to which such Eurodollar Delayed Draw Term Loans are allocated as contemplated by the
definition of the term “Interest Period”.




     (c) Interest on each Loan shall be payable on the Interest Payment Dates applicable to such
Loan except as otherwise provided in this Agreement. The applicable Alternate Base Rate or
Adjusted LIBO Rate for each Interest Period or day within an Interest Period, as the case may be,
shall be determined by the Administrative Agent, and such determination shall be conclusive absent
manifest error.



     SECTION 2.07. Default Interest. If the Borrower shall default in the payment of any principal
of or interest on any Loan or any other amount due hereunder, by acceleration or otherwise, or
under any other Loan Document, then, until such defaulted amount shall have been paid in full, to
the extent permitted by law, such defaulted amount shall bear interest (after as well as before
judgment), payable on demand, (a) in the case of principal, at the rate otherwise applicable to
such Loan pursuant to Section 2.06 plus 2.00% per annum and (b) in all other cases, at a rate per
annum (computed on the basis of the actual number of days elapsed over a year of 365 or 366 days,
as the case may be, when determined by reference to the Prime Rate and over a year of 360 days at
all other times) equal to the rate that would be applicable to an ABR Revolving Loan plus 2.00% per
annum.



     SECTION 2.08. Alternate Rate of Interest. In the event, and on each occasion, that on the day
two Business Days prior to the commencement of any Interest Period for a Eurodollar Borrowing the
Administrative Agent shall have determined that dollar deposits in the principal amounts of the
Loans comprising such Borrowing are not generally available in the London interbank market, or that
the rates at which such dollar deposits are being offered will not adequately and fairly reflect
the cost to any Lender of making or maintaining its Eurodollar Loan during such Interest Period, or
that reasonable means do not exist for ascertaining the Adjusted LIBO Rate, the Administrative
Agent shall, as soon as practicable thereafter, give written or fax notice of such determination to
the Borrower and the Lenders. In the event of any such determination, until the Administrative
Agent shall have advised the Borrower and the Lenders that the circumstances giving rise to such
notice no longer exist, any request by the Borrower for a Eurodollar Borrowing pursuant to Section
2.03 or 2.10 shall be deemed to be a request for an ABR Borrowing. Each determination by the
Administrative Agent under this Section 2.08 shall be conclusive absent manifest error.



     SECTION 2.09. Termination and Reduction of Commitments. (a) The Term Loan Commitments (other
than (i) the Delayed Draw Term Loan Commitments, which shall be reduced pro tanto by the making of
Delayed Draw Term Loans and which shall terminate on the Delayed Draw Commitment Termination Date,
and (ii) any Incremental Term Loan Commitments, which shall terminate as provided in the related
Incremental Term Loan Assumption Agreement) shall automatically terminate upon the making of the
Term Loans on the Closing Date. The Revolving Credit Commitments and the Swingline Commitment
shall automatically terminate on the Revolving Credit Maturity Date. The









 



44

L/C Commitment shall automatically terminate on the earlier to occur of (i) the termination of
the Revolving Credit Commitments and (ii) the date 10 Business Days prior to the Revolving Credit
Maturity Date. Notwithstanding the foregoing, all the Commitments shall automatically terminate at
5:00 p.m., New York City time, on October 31, 2007, if the initial Credit Event shall not have
occurred by such time.




     (b) Upon at least three Business Days’ prior written or fax notice to the Administrative
Agent, the Borrower may at any time in whole permanently terminate, or from time to time in part
permanently reduce, the Term Loan Commitments, the Revolving Credit Commitments or the Swingline
Commitment; provided, however, that (i) each partial reduction of the Term Loan Commitments or the
Revolving Credit Commitments shall be in an integral multiple of $1,000,000 and in a minimum amount
of $3,000,000, (ii) each partial reduction of the Swingline Commitment shall be in an integral
multiple of $250,000 and in a minimum amount of $1,000,000 and (iii) the Total Revolving Credit
Commitment shall not be reduced to an amount that is less than the Aggregate Revolving Credit
Exposure at the time. Each notice delivered by the Borrower pursuant to this Section 2.09 shall be
irrevocable; provided that a notice of termination of the Term Loan Commitments, the Revolving
Credit Commitments or the Swingline Commitment delivered by the Borrower may state that such notice
is conditioned upon the effectiveness of other credit facilities, indentures or similar agreements
or any other event, in which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such condition is not
satisfied.



     (c) Each reduction in the Term Loan Commitments or the Revolving Credit Commitments hereunder
shall be made ratably among the Lenders in accordance with their respective applicable Commitments.
The Borrower shall pay to the Administrative Agent for the account of the applicable Lenders, on
the date of each termination or reduction, the Commitment Fees on the amount of the Commitments so
terminated or reduced accrued to but excluding the date of such termination or reduction.



     SECTION 2.10. Conversion and Continuation of Borrowings. The Borrower shall have the right at
any time upon prior irrevocable notice to the Administrative Agent (a) not later than 12:00 (noon),
New York City time, one Business Day prior to conversion, to convert any Eurodollar Borrowing into
an ABR Borrowing, (b) not later than 12:00 (noon), New York City time, three Business Days prior to
conversion or continuation, to convert any ABR Borrowing into a Eurodollar Borrowing or to continue
any Eurodollar Borrowing as a Eurodollar Borrowing for an additional Interest Period, and (c) not
later than 12:00 (noon), New York City time, three Business Days prior to conversion, to convert
the Interest Period with respect to any Eurodollar Borrowing to another permissible Interest
Period, subject in each case to the following:




     (i) each conversion or continuation shall be made pro rata among the Lenders in
accordance with the respective principal amounts of the Loans comprising the converted or
continued Borrowing;









 



45



     (ii) if less than all the outstanding principal amount of any Borrowing shall be
converted or continued, then each resulting Borrowing shall satisfy the limitations
specified in Sections 2.02(a) and 2.02(b) regarding the principal amount and maximum number
of Borrowings of the relevant Type;




     (iii) each conversion shall be effected by each Lender and the Administrative Agent by
recording for the account of such Lender the new Loan of such Lender resulting from such
conversion and reducing the Loan (or portion thereof) of such Lender being converted by an
equivalent principal amount; accrued interest on any Eurodollar Loan (or portion thereof)
being converted shall be paid by the Borrower at the time of conversion;




     (iv) if any Eurodollar Borrowing is converted at a time other than the end of the
Interest Period applicable thereto, the Borrower shall pay, upon demand, any amounts due to
the Lenders pursuant to Section 2.16;




     (v) any portion of a Borrowing maturing or required to be repaid in less than one
month may not be converted into or continued as a Eurodollar Borrowing;




     (vi) any portion of a Eurodollar Borrowing that cannot be converted into or continued
as a Eurodollar Borrowing by reason of the immediately preceding clause shall be
automatically converted at the end of the Interest Period in effect for such Borrowing into
an ABR Borrowing;




     (vii) no Interest Period may be selected for any Eurodollar Term Borrowing that would
end later than a Repayment Date occurring on or after the first day of such Interest Period
if, after giving effect to such selection, the aggregate outstanding amount of (A) the
Eurodollar Term Borrowings comprised of Funded Term Loans, Delayed Draw Term Loans or Other
Term Loans, as applicable, with Interest Periods ending on or prior to such Repayment Date
and (B) the ABR Term Borrowings comprised of Funded Term Loans, Delayed Draw Term Loans or
Other Term Loans, as applicable, would not be at least equal to the principal amount of
Term Borrowings to be paid on such Repayment Date; and




     (viii) upon notice to the Borrower from the Administrative Agent given at the request
of the Required Lenders, after the occurrence and during the continuance of a Default or
Event of Default, no outstanding Loan may be converted into, or continued as, a Eurodollar
Loan.



     Each notice pursuant to this Section 2.10 shall be irrevocable and shall refer to this
Agreement and specify (i) the identity and amount of the Borrowing that the Borrower requests be
converted or continued, (ii) whether such Borrowing is to be converted to or continued as a
Eurodollar Borrowing or an ABR Borrowing, (iii) if such notice requests a conversion, the date of
such conversion (which shall be a Business Day) and (iv) if such Borrowing is to be converted to or
continued as a Eurodollar Borrowing, the Interest Period with respect thereto. If no Interest
Period is specified in any such









 



46

notice with respect to any conversion to or continuation as a Eurodollar Borrowing, the
Borrower shall be deemed to have selected an Interest Period of one month’s duration. The
Administrative Agent shall advise the Lenders of any notice given pursuant to this Section 2.10 and
of each Lender’s portion of any converted or continued Borrowing. If the Borrower shall not have
given notice in accordance with this Section 2.10 to continue any Borrowing into a subsequent
Interest Period (and shall not otherwise have given notice in accordance with this Section 2.10 to
convert such Borrowing), such Borrowing shall, at the end of the Interest Period applicable thereto
(unless repaid pursuant to the terms hereof), automatically be continued into an ABR Borrowing.




     SECTION 2.11. Repayment of Term Borrowings. (a) (i) The Borrower shall pay to the
Administrative Agent, for the account of the Funded Term Loan Lenders, on the dates set forth
below, or if any such date is not a Business Day, on the next preceding Business Day (each such
date being called a “Funded Term Loan Repayment Date”), a principal amount of the Funded Term Loans
(as adjusted from time to time pursuant to Sections 2.11(b), 2.12, 2.13(g) and 2.24(d)) equal to
the amount set forth below for such date, together in each case with accrued and unpaid interest on
the principal amount to be paid to but excluding the date of such payment:



	 	 	 	 	 
	Repayment Date	 	Amount
	December 31, 2007
	 	$	15,162,500	 
	March 31, 2008
	 	$	15,162,500	 
	June 30, 2008
	 	$	15,162,500	 
	September 30, 2008
	 	$	15,162,500	 
	December 31, 2008
	 	$	15,162,500	 
	March 31, 2009
	 	$	15,162,500	 
	June 30, 2009
	 	$	15,162,500	 
	September 30, 2009
	 	$	15,162,500	 
	December 31, 2009
	 	$	15,162,500	 
	March 31, 2010
	 	$	15,162,500	 
	June 30, 2010
	 	$	15,162,500	 
	September 30, 2010
	 	$	15,162,500	 
	December 31, 2010
	 	$	15,162,500	 
	March 31, 2011
	 	$	15,162,500	 
	June 30, 2011
	 	$	15,162,500	 
	September 30, 2011
	 	$	15,162,500	 
	December 31, 2011
	 	$	15,162,500	 
	March 31, 2012
	 	$	15,162,500	 
	June 30, 2012
	 	$	15,162,500	 
	September 30, 2012
	 	$	15,162,500	 
	December 31, 2012
	 	$	15,162,500	 
	March 31, 2013
	 	$	15,162,500	 
	June 30, 2013
	 	$	15,162,500	 
	September 30, 2013
	 	$	15,162,500	 
	December 31, 2013
	 	$	15,162,500	 
	March 31, 2014
	 	$	15,162,500	 
	June 30, 2014
	 	$	15,162,500	 
	Term Loan Maturity Date
	 	$	5,655,612,500	 












 



47


     (ii) The Borrower shall pay to the Administrative Agent, for the account of the Delayed Draw
Term Loan Lenders, on the dates set forth below, or if any such date is not a Business Day, on the
next preceding Business Day (each such date being called a “Delayed Draw Term Loan Repayment
Date”), a principal amount of the Delayed Draw Term Loans (as adjusted from time to time pursuant
to Sections 2.11(b), 2.12, 2.13(g) and 2.24(d)) equal to the percentage set forth below for such
date of the aggregate principal amount of the Delayed Draw Term Loans outstanding on the Delayed
Draw Commitment Termination Date (after giving effect to any Delayed Draw Term Loans to be made on
such date), together in each case with accrued and unpaid interest on the principal amount to be
paid to but excluding the date of such payment:



	 	 	 	 	 
	Repayment Date	 	Amount
	March 31, 2009
	 	 	0.25	%
	June 30, 2009
	 	 	0.25	%
	September 30, 2009
	 	 	0.25	%
	December 31, 2009
	 	 	0.25	%
	March 31, 2010
	 	 	0.25	%
	June 30, 2010
	 	 	0.25	%
	September 30, 2010
	 	 	0.25	%
	December 31, 2010
	 	 	0.25	%
	March 31, 2011
	 	 	0.25	%
	June 30, 2011
	 	 	0.25	%
	September 30, 2011
	 	 	0.25	%
	December 31, 2011
	 	 	0.25	%
	March 31, 2012
	 	 	0.25	%
	June 30, 2012
	 	 	0.25	%
	September 30, 2012
	 	 	0.25	%
	December 31, 2012
	 	 	0.25	%
	March 31, 2013
	 	 	0.25	%
	June 30, 2013
	 	 	0.25	%
	September 30, 2013
	 	 	0.25	%
	December 31, 2013
	 	 	0.25	%
	March 31, 2014
	 	 	0.25	%
	June 30, 2014
	 	 	0.25	%
	Term Loan Maturity Date
	 	 	94.50	%






     (iii) The Borrower shall pay to the Administrative Agent, for the account of the Incremental
Term Lenders, on each Incremental Term Loan Repayment Date, a principal amount of the Other Term
Loans (as adjusted from time to time pursuant to Sections 2.11(b), 2.12 and 2.13(g)) equal to the
amount set forth for such date in the applicable Incremental Term Loan Assumption Agreement,
together in each case with









 



48

accrued and unpaid interest on the principal amount to be paid to but excluding the date of
such payment.




     (b) In the event and on each occasion that the Term Loan Commitments shall be reduced or shall
expire or terminate other than as a result of the making of a Term Loan, the installments payable
on each Repayment Date shall be reduced pro rata by an aggregate amount equal to the amount of such
reduction, expiration or termination.



     (c) To the extent not previously paid, all Funded Term Loans, Delayed Draw Term Loans and
Other Term Loans shall be due and payable on the Term Loan Maturity Date (in the case of the Funded
Term Loans and the Delayed Draw Term Loans) and the Incremental Term Loan Maturity Date (in the
case of the Other Term Loans), together with accrued and unpaid interest on the principal amount to
be paid to but excluding the date of payment.



     (d) All repayments pursuant to this Section 2.11 shall be subject to Section 2.16, but shall
otherwise be without premium or penalty.



     SECTION 2.12. Optional Prepayment. (a) The Borrower shall have the right at any time and
from time to time to prepay any Borrowing, in whole or in part, upon at least three Business Days’
prior written or fax notice (or telephone notice promptly confirmed by written or fax notice) in
the case of Eurodollar Loans, or written or fax notice (or telephone notice promptly confirmed by
written or fax notice) at least one Business Day prior to the date of prepayment in the case of ABR
Loans, to the Administrative Agent before 11:00 a.m., New York City time; provided, however, that
each partial prepayment shall be in an amount that is an integral multiple of $1,000,000 and not
less than $3,000,000.



     (b) Optional prepayments of Term Loans shall be applied as directed by the Borrower, and if no
such direction is provided, pro rata against the remaining scheduled installments of principal due
in respect of the Term Loans under Section 2.11.



     (c) Each notice of prepayment shall specify the prepayment date and the principal amount of
each Borrowing (or portion thereof) to be prepaid, shall be irrevocable and shall commit the
Borrower to prepay such Borrowing by the amount stated therein on the date stated therein; provided
that a notice of prepayment may state that such notice is conditioned upon the effectiveness of
other credit facilities, indentures or similar agreements or any other event, in which case such
notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the
specified effective date) if such condition is not satisfied. All prepayments under this Section
2.12 shall be subject to Section 2.16 but otherwise without premium or penalty. All prepayments
under this Section 2.12 (other than prepayments of ABR Revolving Loans that are not made in
connection with the termination or permanent reduction of the Revolving Credit Commitments) shall
be accompanied by accrued and unpaid interest on the principal amount to be prepaid to but
excluding the date of payment.









 



49


     SECTION 2.13. Mandatory Prepayments. (a) In the event of any termination of all the
Revolving Credit Commitments, the Borrower shall, on the date of such termination, repay or prepay
all its outstanding Revolving Credit Borrowings and all outstanding Swingline Loans and replace or
cause to be canceled (or make other arrangements satisfactory to the Administrative Agent and the
Issuing Bank with respect to) all outstanding Letters of Credit. If, after giving effect to any
partial reduction of the Revolving Credit Commitments or at any other time, the Aggregate Revolving
Credit Exposure would exceed the Total Revolving Credit Commitment, then the Borrower shall, on the
date of such reduction or at such other time, repay or prepay Revolving Credit Borrowings or
Swingline Loans (or a combination thereof) and, after the Revolving Credit Borrowings and Swingline
Loans shall have been repaid or prepaid in full, replace or cause to be canceled (or make other
arrangements satisfactory to the Administrative Agent and the Issuing Bank with respect to) Letters
of Credit in an amount sufficient to eliminate such excess.



     (b) Not later than the fifth Business Day after the earlier of (i) the receipt of aggregate
Net Cash Proceeds in respect of Asset Sales in excess of $50,000,000 and (ii) the first anniversary
of the Borrower’s most recent prepayment pursuant to this Section 2.13(b), the Borrower shall apply
100% of the Net Cash Proceeds so received (and not yet used to prepay Term Loans pursuant to this
Section 2.13(b)) to prepay outstanding Term Loans in accordance with Section 2.13(g); provided
that, if no such prepayments shall have been made prior to the first anniversary of the Closing
Date, the Borrower shall, at such time, apply the Net Cash Proceeds (if any) received to such date
to prepay outstanding Term Loans in accordance with Section 2.13(g).



     (c) No later than 95 days after the end of each fiscal year of the Borrower, commencing with
the fiscal year ending on December 31, 2008, the Borrower shall prepay outstanding Term Loans in
accordance with Section 2.13(g) in an aggregate principal amount equal to (x) 50% of Excess Cash
Flow for the fiscal year then ended minus (y) Voluntary Prepayments made during such fiscal year;
provided that such percentage shall be reduced to 25% if the Leverage Ratio as of the end of such
fiscal year was less than 4.50 to 1.00 but equal to or greater than 3.50 to 1.00 and such
percentage shall be reduced to zero (i.e., no payments shall be required pursuant to this Section
2.13(c)) if the Leverage Ratio as of the end of such fiscal year was less than 3.50 to 1.00.



     (d) In the event that Parent or any of its subsidiaries shall receive Net Cash Proceeds from
the issuance or incurrence of Indebtedness for money borrowed (other than any cash proceeds from
the issuance of Indebtedness for money borrowed permitted pursuant to Section 6.01 (other than
Sections 6.01(f) and 6.01(o)), the Borrower shall, substantially simultaneously with (and in any
event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds
by Parent or such subsidiary, apply an amount equal to 100% of such Net Cash Proceeds (or, in the
case of Permitted Additional Debt, 75% of the Net Cash Proceeds thereof in excess of $200,000,000)
to prepay outstanding Term Loans in accordance with Section 2.13(g).









 



50


     (e) To the extent Parent or any of its subsidiaries shall receive Net Cash Proceeds in excess
of $300,000,000 from the consummation of a Permitted Receivables Transaction, the Borrower shall,
substantially simultaneously with (and in any event not later than the fifth Business Day next
following) the receipt of such Net Cash Proceeds by Parent or such subsidiary, apply an amount
equal to 100% of the amount of such Net Cash Proceeds so in excess of $300,000,000 to prepay
outstanding Term Loans in accordance with Section 2.13(g).



     (f) Notwithstanding the foregoing, any Term Lender may elect, by written notice to the
Administrative Agent at the time and in the manner specified by the Administrative Agent, to
decline all (but not less than all) of any mandatory prepayment of its Term Loans pursuant to this
Section 2.13 (such declined amounts, the “Declined Proceeds”). Any Declined Proceeds shall be
offered to the Term Lenders not so declining such prepayment (with such Term Lenders having the
right to decline any prepayment with Declined Proceeds at the time and in the manner specified by
the Administrative Agent). To the extent such Term Lenders elect to decline their pro rata shares
of such Declined Proceeds, such remaining Declined Proceeds may be retained by the Borrower.



     (g) Mandatory prepayments of outstanding Term Loans under this Agreement shall be allocated
pro rata among the Funded Term Loans, Delayed Draw Term Loans and the Other Term Loans and first
applied in order of maturity of the scheduled installments of principal due in respect of the
Funded Term Loans, Delayed Draw Term Loans and the Other Term Loans under Sections 2.11(a)(i), (ii)
and (iii) for the first eight installments following such mandatory prepayment (commencing with the
first such scheduled installment pursuant to Sections 2.11(a)(i), (ii) and (iii)) and, if
applicable, thereafter applied pro rata against the remaining scheduled installments of principal
due in respect of the Funded Term Loans, Delayed Draw Term Loans and the Other Term Loans under
Sections 2.11(a)(i), (ii) and (iii), respectively; provided, however, that, if at the time of any
prepayment pursuant to this Section 2.13 there shall be Term Borrowings of different Types or
Eurodollar Term Borrowings with different Interest Periods, and if some but not all Term Lenders
shall have accepted such mandatory prepayment, then the aggregate amount of such mandatory
prepayment shall be allocated ratably to each outstanding Term Borrowing of the accepting Term
Lenders. If no Term Lenders exercise the right to waive a given mandatory prepayment of the Term
Loans pursuant to Section 2.13(f), then, with respect to such mandatory prepayment, the amount of
such mandatory prepayment shall be applied first to Term Loans that are ABR Loans to the full
extent thereof before application to Term Loans that are Eurodollar Loans in a manner that
minimizes the amount of any payments required to be made by the Borrower pursuant to Section 2.16.



     (h) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment
required under this Section 2.13(b), (c), (d) or (e), as applicable, (i) a certificate signed by a
Financial Officer of the Borrower setting forth in reasonable detail the calculation of the amount
of such prepayment and (ii) to the extent practicable, at least two days prior written notice of
such prepayment. Each notice of prepayment shall specify the prepayment date, the Type of each
Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. All
prepayments of Borrowings









 



51

under this Section 2.13 shall be subject to Section 2.16, but shall otherwise be without
premium or penalty, and shall be accompanied by accrued and unpaid interest on the principal amount
to be prepaid to but excluding the date of payment (which interest amounts shall reduce the amount
of Net Cash Proceeds required to be applied to prepay the Loans).




     SECTION 2.14. Reserve Requirements; Change in Circumstances.
(a) Notwithstanding any other provision of this Agreement, if any Change in Law shall impose,
modify or deem applicable any reserve, special deposit or similar requirement against assets of,
deposits with or for the account of or credit extended by any Lender or the Issuing Bank (except
any such reserve requirement which is reflected in the Adjusted LIBO Rate) or shall impose on such
Lender or the Issuing Bank or the London interbank market any other condition affecting this
Agreement or Eurodollar Loans made by such Lender or any Letter of Credit or participation therein,
and the result of any of the foregoing shall be to increase the cost to such Lender or the Issuing
Bank of making or maintaining any Eurodollar Loan or increase the cost to any Lender of issuing or
maintaining any Letter of Credit or purchasing or maintaining a participation therein or to reduce
the amount of any sum received or receivable by such Lender or the Issuing Bank hereunder (whether
of principal, interest or otherwise) by an amount deemed by such Lender or the Issuing Bank to be
material, then the Borrower will pay to such Lender or the Issuing Bank, as the case may be, from
time to time such additional amount or amounts as will compensate such Lender or the Issuing Bank,
as the case may be, for such additional costs incurred or reduction suffered.



     (b) If any Lender or the Issuing Bank shall have determined that any Change in Law regarding
capital adequacy has or would have the effect of reducing the rate of return on such Lender’s or
the Issuing Bank’s capital or on the capital of such Lender’s or the Issuing Bank’s holding
company, if any, as a consequence of this Agreement or the Loans made or participations in Letters
of Credit purchased by such Lender pursuant hereto or the Letters of Credit issued by the Issuing
Bank pursuant hereto to a level below that which such Lender or the Issuing Bank or such Lender’s
or the Issuing Bank’s holding company could have achieved but for such Change in Law (taking into
consideration such Lender’s or the Issuing Bank’s policies and the policies of such Lender’s or the
Issuing Bank’s holding company with respect to capital adequacy) by an amount deemed by such Lender
or the Issuing Bank to be material, then from time to time the Borrower shall pay to such Lender or
the Issuing Bank, as the case may be, such additional amount or amounts as will compensate such
Lender or the Issuing Bank or such Lender’s or the Issuing Bank’s holding company for any such
reduction suffered.



     (c) A certificate of a Lender or the Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or the Issuing Bank or its holding company, as applicable, as
specified in paragraph (a) or (b) above shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay such Lender or the Issuing Bank the amount shown as
due on any such certificate delivered by it within 30 days after its receipt of the same.









 



52


     (d) Failure or delay on the part of any Lender or the Issuing Bank to demand compensation for
any increased costs or reduction in amounts received or receivable or reduction in return on
capital shall not constitute a waiver of such Lender’s or the Issuing Bank’s right to demand such
compensation; provided that the Borrower shall not be under any obligation to compensate any Lender
or the Issuing Bank under paragraph (a) or (b) above with respect to increased costs or reductions
with respect to any period prior to the date that is 120 days prior to such request if such Lender
or the Issuing Bank knew or could reasonably have been expected to know of the circumstances giving
rise to such increased costs or reductions and of the fact that such circumstances would result in
a claim for increased compensation by reason of such increased costs or reductions; provided
further that the foregoing limitation shall not apply to any increased costs or reductions arising
out of the retroactive application of any Change in Law within such 120-day period. The protection
of this Section shall be available to each Lender and the Issuing Bank regardless of any possible
contention of the invalidity or inapplicability of the Change in Law that shall have occurred or
been imposed.



     SECTION 2.15. Change in Legality. (a) Notwithstanding any other provision of this Agreement,
if any Change in Law shall make it unlawful for any Lender to make or maintain any Eurodollar Loan
or to give effect to its obligations as contemplated hereby with respect to any Eurodollar Loan,
then, by written notice to the Borrower and to the Administrative Agent:




     (i) such Lender may declare that Eurodollar Loans will not thereafter (for the
duration of such unlawfulness) be made by such Lender hereunder (or be continued for
additional Interest Periods) and ABR Loans will not thereafter (for such duration) be
converted into Eurodollar Loans, whereupon any request for a Eurodollar Borrowing (or to
convert an ABR Borrowing to a Eurodollar Borrowing or to continue a Eurodollar Borrowing
for an additional Interest Period) shall, as to such Lender only, be deemed a request for
an ABR Loan (or a request to continue an ABR Loan as such for an additional Interest Period
or to convert a Eurodollar Loan into an ABR Loan, as the case may be), unless such
declaration shall be subsequently withdrawn; and




     (ii) such Lender may require that all outstanding Eurodollar Loans made by it be
converted to ABR Loans, in which event all such Eurodollar Loans shall be automatically
converted to ABR Loans as of the effective date of such notice as provided in paragraph (b)
below.


In the event any Lender shall exercise its rights under (i) or (ii) above, all payments and
prepayments of principal that would otherwise have been applied to repay the Eurodollar Loans that
would have been made by such Lender or the converted Eurodollar Loans of such Lender shall instead
be applied to repay the ABR Loans made by such Lender in lieu of, or resulting from the conversion
of, such Eurodollar Loans.




     (b) For purposes of this Section 2.15, a notice to the Borrower by any Lender shall be
effective as to each Eurodollar Loan made by such Lender, if lawful, on the last









 



53

day of the Interest Period then applicable to such Eurodollar Loan; in all other cases such
notice shall be effective on the date of receipt by the Borrower.




     SECTION 2.16. Indemnity. The Borrower shall indemnify each Lender against any loss or expense
that such Lender may sustain or incur as a consequence of (a) any event, other than a default by
such Lender in the performance of its obligations hereunder, which results in (i) such Lender
receiving or being deemed to receive any amount on account of the principal of any Eurodollar Loan
prior to the end of the Interest Period in effect therefor, (ii) the conversion of any Eurodollar
Loan to an ABR Loan, or the conversion of the Interest Period with respect to any Eurodollar Loan,
in each case other than on the last day of the Interest Period in effect therefor, or (iii) any
Eurodollar Loan to be made by such Lender (including any Eurodollar Loan to be made pursuant to a
conversion or continuation under Section 2.10) not being made after notice of such Loan shall have
been given by the Borrower hereunder (any of the events referred to in this clause (a) being called
a “Breakage Event”) or (b) any default in the making of any payment or prepayment of any Eurodollar
Loan required to be made hereunder. In the case of any Breakage Event, such loss shall include an
amount equal to the excess, as reasonably determined by such Lender, of (i) its cost of obtaining
funds for the Eurodollar Loan that is the subject of such Breakage Event for the period from the
date of such Breakage Event to the last day of the Interest Period in effect (or that would have
been in effect) for such Loan over (ii) the amount of interest likely to be realized by such Lender
in redeploying the funds released or not utilized by reason of such Breakage Event for such period.
A certificate of any Lender setting forth any amount or amounts which such Lender is entitled to
receive pursuant to this Section 2.16 shall be delivered to the Borrower and shall be conclusive
absent manifest error.



     SECTION 2.17. Pro Rata Treatment. Except as provided below in this Section 2.17 with respect
to Swingline Loans and as required under Section 2.13(f) or 2.15, each Borrowing, each payment or
prepayment of principal of any Borrowing, each payment of interest on the Loans, each payment of
the Commitment Fees, each reduction of the Term Loan Commitments or the Revolving Credit
Commitments and each conversion of any Borrowing to or continuation of any Borrowing as a Borrowing
of any Type shall be allocated pro rata among the Lenders in accordance with their respective
applicable Commitments (or, if such Commitments shall have expired or been terminated, in
accordance with the respective principal amounts of their outstanding Loans). For purposes of
determining the available Revolving Credit Commitments of the Lenders at any time, each outstanding
Swingline Loan shall be deemed to have utilized the Revolving Credit Commitments of the Lenders
(including those Lenders which shall not have made Swingline Loans) pro rata in accordance with
such respective Revolving Credit Commitments. Each Lender agrees that in computing such Lender’s
portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion,
round each Lender’s percentage of such Borrowing to the next higher or lower whole dollar amount.



     SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it shall, through the exercise
of a right of banker’s lien, setoff or counterclaim against the Borrower or any other Loan Party,
or pursuant to a secured claim under Section 506 of Title 11 of the









 



54

United States Code or other security or interest arising from, or in lieu of, such secured
claim, received by such Lender under any applicable bankruptcy, insolvency or other similar law or
otherwise, or by any other means, obtain payment (voluntary or involuntary) in respect of any Loan
or Loans or L/C Disbursement as a result of which the unpaid principal portion of its Loans and
participations in L/C Disbursements shall be proportionately less than the unpaid principal portion
of the Loans and participations in L/C Disbursements of any other Lender, it shall be deemed
simultaneously to have purchased from such other Lender at face value, and shall promptly pay to
such other Lender the purchase price for, a participation in the Loans and L/C Exposure of such
other Lender, so that the aggregate unpaid principal amount of the Loans and L/C Exposure and
participations in Loans and L/C Exposure held by each Lender shall be in the same proportion to the
aggregate unpaid principal amount of all Loans and L/C Exposure then outstanding as the principal
amount of its Loans and L/C Exposure prior to such exercise of banker’s lien, setoff or
counterclaim or other event was to the principal amount of all Loans and L/C Exposure outstanding
prior to such exercise of banker’s lien, setoff or counterclaim or other event; provided, however,
that if any such purchase or purchases or adjustments shall be made pursuant to this Section 2.18
and the payment giving rise thereto shall thereafter be recovered, such purchase or purchases or
adjustments shall be rescinded to the extent of such recovery and the purchase price or prices or
adjustment restored without interest. The Borrower and Parent expressly consent to the foregoing
arrangements and agree that any Lender holding a participation in a Loan or L/C Disbursement deemed
to have been so purchased may exercise any and all rights of banker’s lien, setoff or counterclaim
with respect to any and all moneys owing by the Borrower and Parent to such Lender by reason
thereof as fully as if such Lender had made a Loan directly to the Borrower in the amount of such
participation.




     SECTION 2.19. Payments. (a) The Borrower shall make each payment (including principal of or
interest on any Borrowing or any L/C Disbursement or any Fees or other amounts) hereunder and under
any other Loan Document not later than 1:00 p.m., New York City time, on the date when due in
immediately available dollars, without setoff, defense or counterclaim. Each such payment (other
than (i) Issuing Bank Fees, which shall be paid directly to the Issuing Bank, and (ii) principal of
and interest on Swingline Loans, which shall be paid directly to the Swingline Lender except as
otherwise provided in Section 2.22(e)) shall be made to the Administrative Agent at its offices at
Eleven Madison Avenue, New York, NY 10010. The Administrative Agent shall promptly distribute to
each Lender any payments received by the Administrative Agent on behalf of such Lender.



     (b) Except as otherwise expressly provided herein, whenever any payment (including principal
of or interest on any Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a Business Day, such
payment may be made on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of interest or Fees, if applicable.



     (c) Unless the Administrative Agent shall have received notice from the Borrower prior to the
date on which any payment is due to the Administrative Agent for









 



55

the account of the Lenders or the Issuing Bank hereunder that the Borrower will not make such
payment, the Administrative Agent may assume that the Borrower has made such payment on such date
in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the
Issuing Bank, as the case may be, the amount due. In such event, if the Borrower does not in fact
make such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally
agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such
Lender, and to pay interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative Agent, at a rate
determined by the Administrative Agent to represent its cost of overnight or short-term funds
(which determination shall be conclusive absent manifest error).




     SECTION 2.20. Taxes. (a) Any and all payments by or on account of any obligation of the
Borrower or any other Loan Party hereunder or under any other Loan Document shall be made free and
clear of and without deduction for any Indemnified Taxes or Other Taxes; provided that, if the
Borrower or any other Loan Party shall be required to deduct any Indemnified Taxes or Other Taxes
from such payments, then (i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums payable under this
Section) the Administrative Agent, Lender or Issuing Bank (as the case may be) receives an amount
equal to the sum it would have received had no such deductions been made, (ii) the Borrower or such
Loan Party shall make such deductions and (iii) the Borrower or such Loan Party shall pay the full
amount deducted to the relevant Governmental Authority in accordance with applicable law.



     (b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.



     (c) The Borrower shall indemnify the Administrative Agent, each Lender and the Issuing Bank,
within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes paid by the Administrative Agent, such Lender or the Issuing Bank, as the case may be, on or
with respect to any payment by or on account of any obligation of the Borrower or any other Loan
Party hereunder or under any other Loan Document (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section) and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto; provided that the
Borrower shall not be obligated to so indemnify any Lender, the Administrative Agent or the Issuing
Bank in respect of interest or penalties attributable to any Indemnified Taxes or Other Taxes to
the extent that such interest or penalties resulted solely from the gross negligence or willful
misconduct of the Administrative Agent or such Lender or the Issuing Bank. A certificate as to the
amount of such payment or liability delivered to the Borrower by a Lender or the Issuing Bank, or
by the Administrative Agent on behalf of itself, a Lender or the Issuing Bank, shall be conclusive
absent manifest error.



     (d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower or any other Loan Party to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a









 



56

receipt issued by such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory to the
Administrative Agent.




     (e) Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable law or reasonably
requested by the Borrower as will permit such payments to be made without withholding or at a
reduced rate.



     SECTION 2.21. Assignment of Commitments Under Certain Circumstances; Duty to Mitigate. (a)
In the event (i) any Lender or the Issuing Bank delivers a certificate requesting compensation
pursuant to Section 2.14, (ii) any Lender or the Issuing Bank delivers a notice described in
Section 2.15, (iii) the Borrower is required to pay any additional amount to any Lender or the
Issuing Bank or any Governmental Authority on account of any Lender or the Issuing Bank pursuant to
Section 2.20 or (iv) any Lender refuses to consent to any amendment, waiver or other modification
of any Loan Document requested by the Borrower that requires the consent of a greater percentage of
the Lenders than the Required Lenders and such amendment, waiver or other modification is consented
to by the Required Lenders, the Borrower may, at its sole expense and effort (including with
respect to the processing and recordation fee referred to in Section 9.04(b)), upon notice to such
Lender or the Issuing Bank, as the case may be, and the Administrative Agent, require such Lender
or the Issuing Bank to transfer and assign, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all of its interests, rights and obligations under this
Agreement (or, in the case of clause (iv) above, all of its interests, rights and obligation with
respect to the Class of Loans or Commitments that is the subject of the related consent, amendment,
waiver or other modification) to an Eligible Assignee that shall assume such assigned obligations
and, with respect to clause (iv) above, shall consent to such requested amendment, waiver or other
modification of any Loan Document (which Eligible Assignee may be another Lender, if a Lender
accepts such assignment); provided that (x) such assignment shall not conflict with any law, rule
or regulation or order of any court or other Governmental Authority having jurisdiction, (y) the
Borrower shall have received the prior written consent of the Administrative Agent (and, if a
Revolving Credit Commitment is being assigned, of the Issuing Bank and the Swingline Lender), which
consents shall not unreasonably be withheld or delayed, and (z) the Borrower or such Eligible
Assignee shall have paid to the affected Lender or the Issuing Bank in immediately available funds
an amount equal to the sum of the principal of and interest accrued to the date of such payment on
the outstanding Loans or L/C Disbursements of such Lender or the Issuing Bank, respectively, plus
all Fees and other amounts accrued for the account of such Lender or the Issuing Bank hereunder
with respect thereto (including any amounts under Sections 2.14 and 2.16); provided further that,
if prior to any such transfer and assignment the circumstances or event that resulted in such
Lender’s or the Issuing Bank’s claim for compensation under Section 2.14, notice under Section 2.15
or the amounts paid pursuant to Section 2.20, as the case may be, cease to









 



57

cause such Lender or the Issuing Bank to suffer increased costs or reductions in amounts
received or receivable or reduction in return on capital, or cease to have the consequences
specified in Section 2.15, or cease to result in amounts being payable under Section 2.20, as the
case may be (including as a result of any action taken by such Lender or the Issuing Bank pursuant
to paragraph (b) below), or if such Lender or the Issuing Bank shall waive its right to claim
further compensation under Section 2.14 in respect of such circumstances or event or shall withdraw
its notice under Section 2.15 or shall waive its right to further payments under Section 2.20 in
respect of such circumstances or event or shall consent to the proposed amendment, waiver, consent
or other modification, as the case may be, then such Lender or the Issuing Bank shall not
thereafter be required to make any such transfer and assignment hereunder. Each Lender hereby
grants to the Administrative Agent an irrevocable power of attorney (which power is coupled with an
interest) to execute and deliver, on behalf of such Lender as assignor, any Assignment and
Acceptance necessary to effectuate any assignment of such Lender’s interests hereunder in the
circumstances contemplated by this Section 2.21(a).




     (b) If (i) any Lender or the Issuing Bank shall request compensation under Section 2.14, (ii)
any Lender or the Issuing Bank delivers a notice described in Section 2.15 or (iii) the Borrower is
required to pay any additional amount to any Lender or the Issuing Bank or any Governmental
Authority on account of any Lender or the Issuing Bank, pursuant to Section 2.20, then such Lender
or the Issuing Bank shall use reasonable efforts (which shall not require such Lender or the
Issuing Bank to incur an unreimbursed loss or unreimbursed cost or expense or otherwise take any
action inconsistent with its internal policies or legal or regulatory restrictions or suffer any
disadvantage or burden deemed by it to be significant) (x) to file any certificate or document
reasonably requested in writing by the Borrower or (y) to assign its rights and delegate and
transfer its obligations hereunder to another of its offices, branches or affiliates, if such
filing or assignment would reduce its claims for compensation under Section 2.14 or enable it to
withdraw its notice pursuant to Section 2.15 or would reduce amounts payable pursuant to Section
2.20, as the case may be, in the future. The Borrower hereby agrees to pay all reasonable costs
and expenses incurred by any Lender or the Issuing Bank in connection with any such filing or
assignment, delegation and transfer.



     SECTION 2.22. Swingline Loans. (a) Swingline Commitment. Subject to the terms and
conditions and relying upon the representations and warranties herein set forth, the Swingline
Lender agrees to make loans to the Borrower at any time and from time to time on and after the
Closing Date and until the earlier of the Revolving Credit Maturity Date and the termination of the
Revolving Credit Commitments, in an aggregate principal amount at any time outstanding that will
not result in (i) the aggregate principal amount of all Swingline Loans exceeding $50,000,000 in
the aggregate or (ii) the Aggregate Revolving Credit Exposure, after giving effect to any Swingline
Loan, exceeding the Total Revolving Credit Commitment. Each Swingline Loan shall be in a principal
amount that is an integral multiple of $250,000. The Swingline Commitment may be terminated or
reduced from time to time as provided herein. Within the foregoing limits, the Borrower may
borrow, pay or prepay and reborrow Swingline Loans hereunder, subject to the terms, conditions and
limitations set forth herein.









 



58


     (b) Swingline Loans. The Borrower shall notify the Swingline Lender by fax, or by telephone
(promptly confirmed by fax), not later than 12:00 (noon), New York City time, on the day of a
proposed Swingline Loan. Such notice shall be delivered on a Business Day, shall be irrevocable
and shall refer to this Agreement and shall specify the requested date (which shall be a Business
Day) and amount of such Swingline Loan and the wire transfer instructions for the account of the
Borrower to which the proceeds of the Swingline Loan should be disbursed. The Swingline Lender
shall make each Swingline Loan by wire transfer to the account specified in such request.



     (c) Prepayment. The Borrower shall have the right at any time and from time to time to prepay
any Swingline Loan, in whole or in part, upon giving written or fax notice (or telephone notice
promptly confirmed by written, or fax notice) to the Swingline Lender before 12:00 (noon), New York
City time, on the date of prepayment at the Swingline Lender’s address for notices specified in
Section 9.01.



     (d) Interest. Each Swingline Loan shall be an ABR Loan and, subject to the provisions of
Section 2.07, shall bear interest as provided in Section 2.06(a).



     (e) Participations. The Swingline Lender may by written notice given to the Administrative
Agent not later than 1:00 p.m., New York City time, on any Business Day require the Revolving
Credit Lenders to acquire participations on such Business Day in all or a portion of the Swingline
Loans outstanding. Such notice shall specify the aggregate amount of Swingline Loans in which
Revolving Credit Lenders will participate. The Administrative Agent will, promptly upon receipt of
such notice, give notice to each Revolving Credit Lender, specifying in such notice such Lender’s
Pro Rata Percentage of such Swingline Loan or Loans. In furtherance of the foregoing, each
Revolving Credit Lender hereby absolutely and unconditionally agrees, upon receipt of notice as
provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such
Revolving Credit Lender’s Pro Rata Percentage of such Swingline Loan or Loans. Each Revolving
Credit Lender acknowledges and agrees that its obligation to acquire participations in Swingline
Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default or an Event of
Default, and that each such payment shall be made without any offset, abatement, withholding or
reduction whatsoever. Each Revolving Credit Lender shall comply with its obligation under this
paragraph by wire transfer of immediately available funds, in the same manner as provided in
Section 2.02(c) with respect to Loans made by such Lender (and Section 2.02(c) shall apply, mutatis
mutandis, to the payment obligations of the Lenders) and the Administrative Agent shall promptly
pay to the Swingline Lender the amounts so received by it from the Lenders. The Administrative
Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to
this paragraph and thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline Lender
from the Borrower (or other person on behalf of the Borrower) in respect of a Swingline Loan after
receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be
promptly remitted to the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the









 



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Administrative Agent to the Lenders that shall have made their payments pursuant to this
paragraph and to the Swingline Lender, as their interests may appear. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve the Borrower (or
other person liable for obligations of the Borrower) of any default in the payment thereof.




     SECTION 2.23. Letters of Credit. (a) General. Subject to the terms and conditions herein
set forth, the Borrower may request the issuance of a Letter of Credit for its own account or for
the account of any of the Subsidiaries (in which case the Borrower and such Subsidiary shall be
co-applicants with respect to such Letter of Credit), in a form reasonably acceptable to the
Administrative Agent and the Issuing Bank, at any time and from time to time while the L/C
Commitment remains in effect. This Section shall not be construed to impose an obligation upon the
Issuing Bank to issue any Letter of Credit that is inconsistent with the terms and conditions of
this Agreement.



     (b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. In order to
request the issuance of a Letter of Credit (or to amend, renew or extend an existing Letter of
Credit), the Borrower shall hand deliver or fax to the Issuing Bank and the Administrative Agent
(reasonably in advance of the requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended,
renewed or extended, the date of issuance, amendment, renewal or extension, the date on which such
Letter of Credit is to expire (which shall comply with paragraph (c) below), the amount of such
Letter of Credit, the name and address of the beneficiary thereof and such other information as
shall be necessary to prepare such Letter of Credit. A Letter of Credit shall be issued, amended,
renewed or extended only if, and upon issuance, amendment, renewal or extension of each Letter of
Credit the Borrower shall be deemed to represent and warrant that, after giving effect to such
issuance, amendment, renewal or extension (i) the L/C Exposure shall not exceed $200,000,000 and
(ii) the Aggregate Revolving Credit Exposure shall not exceed the Total Revolving Credit
Commitment.



     (c) Expiration Date. Each Letter of Credit shall expire at the close of business on the
earlier of the date one year after the date of the issuance of such Letter of Credit and the date
that is five Business Days prior to the Revolving Credit Maturity Date, unless such Letter of
Credit expires by its terms on an earlier date; provided, however, that a Letter of Credit may,
upon the request of the Borrower, include a provision whereby such Letter of Credit shall be
renewed automatically for additional consecutive periods of 12 months or less (but not beyond the
date that is five Business Days prior to the Revolving Credit Maturity Date) unless the Issuing
Bank notifies the beneficiary thereof at least 30 days (or such longer period as may be specified
in such Letter of Credit) prior to the then-applicable expiration date that such Letter of Credit
will not be renewed.



     (d) Participations. By the issuance of a Letter of Credit and without any further action on
the part of the Issuing Bank or the Lenders, the Issuing Bank hereby grants to each Revolving
Credit Lender, and each such Lender hereby acquires from the Issuing









 



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Bank, a participation in such Letter of Credit equal to such Lender’s Pro Rata Percentage of
the aggregate amount available to be drawn under such Letter of Credit, effective upon the issuance
of such Letter of Credit (or, in the case of the Existing Letters of Credit, effective upon the
Closing Date). In consideration and in furtherance of the foregoing, each Revolving Credit Lender
hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of
the Issuing Bank, such Lender’s Pro Rata Percentage of each L/C Disbursement made by the Issuing
Bank and not reimbursed by the Borrower (or, if applicable, another party pursuant to its
obligations under any other Loan Document) forthwith on the date due as provided in Section
2.02(f). Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or an Event of Default, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.




     (e) Reimbursement. If the Issuing Bank shall make any L/C Disbursement in respect of a Letter
of Credit, the Borrower shall pay to the Administrative Agent an amount equal to such L/C
Disbursement not later than 1:00 p.m., New York City time, on the immediately following Business
Day after the Issuing Bank notifies the Borrower thereof.



     (f) Obligations Absolute. The Borrower’s obligations to reimburse L/C Disbursements as
provided in paragraph (e) above shall be absolute, unconditional and irrevocable, and shall be
performed strictly in accordance with the terms of this Agreement, under any and all circumstances
whatsoever, and irrespective of:




     (i) any lack of validity or enforceability of any Letter of Credit or any Loan
Document, or any term or provision therein;




     (ii) any amendment or waiver of or any consent to departure from all or any of the
provisions of any Letter of Credit or any Loan Document;




     (iii) the existence of any claim, setoff, defense or other right that the Borrower,
any other party guaranteeing, or otherwise obligated with, the Borrower, any Subsidiary or
other Affiliate thereof or any other person may at any time have against the beneficiary
under any Letter of Credit, the Issuing Bank, the Administrative Agent or any Lender or any
other person, whether in connection with this Agreement, any other Loan Document or any
other related or unrelated agreement or transaction;




     (iv) any draft or other document presented under a Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect;









 



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     (v) payment by the Issuing Bank under a Letter of Credit against presentation of a
draft or other document that does not comply with the terms of such Letter of Credit; and




     (vi) any other act or omission to act or delay of any kind of the Issuing Bank, the
Lenders, the Administrative Agent or any other person or any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable discharge of the Borrower’s
obligations hereunder.



     Without limiting the generality of the foregoing, it is expressly understood and agreed that
the absolute and unconditional obligation of the Borrower hereunder to reimburse L/C Disbursements
will not be excused by the gross negligence or willful misconduct of the Issuing Bank. However,
the foregoing shall not be construed to excuse the Issuing Bank from liability to the Borrower to
the extent of any direct damages (as opposed to consequential damages, claims in respect of which
are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the
Borrower that are caused by the Issuing Bank’s gross negligence, bad faith or willful misconduct in
determining whether drafts and other documents presented under a Letter of Credit comply with the
terms thereof. It is further understood and agreed that the Issuing Bank may accept documents that
appear on their face to be in order, without responsibility for further investigation, regardless
of any notice or information to the contrary and, in making any payment under any Letter of Credit
(i) the Issuing Bank’s exclusive reliance on the documents presented to it under such Letter of
Credit as to any and all matters set forth therein, including reliance on the amount of any draft
presented under such Letter of Credit, whether or not the amount due to the beneficiary thereunder
equals the amount of such draft and whether or not any document presented pursuant to such Letter
of Credit proves to be insufficient in any respect, if such document on its face appears to be in
order, and whether or not any other statement or any other document presented pursuant to such
Letter of Credit proves to be forged or invalid or any statement therein proves to be inaccurate or
untrue in any respect whatsoever and (ii) any noncompliance in any immaterial respect of the
documents presented under such Letter of Credit with the terms thereof shall, in each case, be
deemed not to constitute gross negligence or willful misconduct of the Issuing Bank.



     (g) Disbursement Procedures. The Issuing Bank shall, promptly following its receipt thereof,
examine all documents purporting to represent a demand for payment under a Letter of Credit. The
Issuing Bank shall as promptly as possible give telephonic notification, confirmed by fax, to the
Administrative Agent and the Borrower of such demand for payment and whether the Issuing Bank has
made or will make an L/C Disbursement thereunder; provided that any failure to give or delay in
giving such notice shall not relieve the Borrower of its obligation to reimburse the Issuing Bank
and the Revolving Credit Lenders with respect to any such L/C Disbursement.



     (h) Interim Interest. If the Issuing Bank shall make any L/C Disbursement in respect of a
Letter of Credit, then, unless the Borrower shall reimburse such L/C Disbursement in full on such
date, the unpaid amount thereof shall bear interest for the









 



62

account of the Issuing Bank, for each day from and including the date of such L/C
Disbursement, to but excluding the earlier of the date of payment by the Borrower or the date on
which interest shall commence to accrue thereon as provided in Section 2.02(f), at the rate per
annum that would apply to such amount if such amount were an ABR Revolving Loan.




     (i) Resignation or Removal of the Issuing Bank. The Issuing Bank may resign at any time by
giving 30 days’ prior written notice to the Administrative Agent, the Lenders and the Borrower, and
may be removed at any time by the Borrower by notice to the Issuing Bank, the Administrative Agent
and the Lenders. Upon the acceptance of any appointment as the Issuing Bank hereunder by a Lender
that shall agree to serve as successor Issuing Bank, such successor shall succeed to and become
vested with all the interests, rights and obligations of the retiring Issuing Bank. At the time
such removal or resignation shall become effective, the Borrower shall pay all accrued and unpaid
fees pursuant to Section 2.05(c)(ii). The acceptance of any appointment as the Issuing Bank
hereunder by a successor Lender shall be evidenced by an agreement entered into by such successor,
in a form satisfactory to the Borrower and the Administrative Agent, and, from and after the
effective date of such agreement, (i) such successor Lender shall have all the rights and
obligations of the previous Issuing Bank under this Agreement and the other Loan Documents and (ii)
references herein and in the other Loan Documents to the term “Issuing Bank” shall be deemed to
refer to such successor or to any previous Issuing Bank, or to such successor and all previous
Issuing Banks, as the context shall require. After the resignation or removal of the Issuing Bank
hereunder, the retiring Issuing Bank shall remain a party hereto and shall continue to have all the
rights and obligations of an Issuing Bank under this Agreement and the other Loan Documents with
respect to Letters of Credit issued by it prior to such resignation or removal, but shall not be
required to issue additional Letters of Credit.



     (j) Cash Collateralization. If any Event of Default shall occur and be continuing, the
Borrower shall, on the Business Day it receives notice from the Administrative Agent or the
Required Lenders (or, if the maturity of the Loans has been accelerated, Revolving Credit Lenders
holding participations in outstanding Letters of Credit representing greater than 50% of the
aggregate undrawn amount of all outstanding Letters of Credit) thereof and of the amount to be
deposited, deposit in an account with the Collateral Agent, for the benefit of the Revolving Credit
Lenders, an amount in cash equal to the L/C Exposure as of such date. Such deposit shall be held
by the Collateral Agent as collateral for the payment and performance of the Obligations. The
Collateral Agent shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment of such deposits
in Permitted Investments, which investments shall be made at the option and sole discretion of the
Collateral Agent, such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall (i) automatically be
applied by the Administrative Agent to reimburse the Issuing Bank for L/C Disbursements for which
it has not been reimbursed, (ii) be held for the satisfaction of the reimbursement obligations of
the Borrower for the L/C Exposure at such time and (iii) if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Credit Lenders holding participations in
outstanding Letters of









 



63

Credit representing greater than 50% of the aggregate undrawn amount of all outstanding
Letters of Credit), be applied to satisfy the Obligations. If the Borrower is required to provide
an amount of cash collateral hereunder as a result of the occurrence of an Event of Default, such
amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three
Business Days after all Events of Default have been cured or waived.




     (k) Additional Issuing Banks. The Borrower may, at any time and from time to time with the
consent of the Administrative Agent (which consent shall not be unreasonably withheld or delayed)
and such Lender, designate one or more additional Lenders to act as an issuing bank under the terms
of this Agreement. Any Lender designated as an issuing bank pursuant to this paragraph (k) shall
be deemed to be an “Issuing Bank” (in addition to being a Lender) in respect of Letters of Credit
issued or to be issued by such Lender, and, with respect to such Letters of Credit, such term shall
thereafter apply to the other Issuing Bank and such Lender.



     (l) Delivery of Certain Fulton Bonds. Pursuant to the Fulton Bond Pledge Agreement, the
Borrower has agreed that, in accordance with the terms of the Fulton Indenture, Fulton Bonds
purchased with the proceeds of any Tender Draft and not remarketed on the date of such Tender Draft
shall be delivered by the respective Tender Agent to the Collateral Agent as designee of the
Issuing Bank, to be held by the Collateral Agent in pledge as collateral securing the L/C
Disbursements arising from the purchase of such Fulton Bonds with the proceeds of such Tender Draft
until such time as all such L/C Disbursements have been paid in full. The Fulton Bonds so
delivered to the Collateral Agent shall, at the request of the Collateral Agent, be registered in
the name of the Collateral Agent or its designee, as pledgee of the Borrower, as provided in the
Fulton Bond Pledge Agreement.



     SECTION 2.24. Incremental Term Loans. (a) The Borrower may, by written notice to the
Administrative Agent from time to time, request Incremental Term Loan Commitments in an amount not
to exceed the Incremental Term Loan Amount from one or more Incremental Term Lenders, which may
include any existing Lender; provided that each Incremental Term Lender, if not already a Lender
hereunder, shall be subject to the approval of the Administrative Agent (which approval shall not
be unreasonably withheld or delayed). Such notice shall set forth (i) the amount of the
Incremental Term Loan Commitments being requested (which shall be in minimum increments of
$1,000,000 and a minimum amount of $25,000,000 or such lesser amount equal to the remaining
Incremental Term Loan Amount), (ii) the date on which such Incremental Term Loan Commitments are
requested to become effective (which shall not be less than 10 days nor more than 60 days after the
date of such notice and which shall be no earlier than the Delayed Draw Termination Date (or such
earlier date upon which all Delayed Draw Term Loan Commitments shall have expired)), and (iii)
whether such Incremental Term Loan Commitments are commitments to make additional Funded Term
Loans, additional Delayed Draw Term Loans or commitments to make term loans with terms different
from the Funded Term Loans and the Delayed Draw Term Loans (“Other Term Loans”).









 



64


     (b) The Borrower and each Incremental Term Lender shall execute and deliver to the
Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as
the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment
of each Incremental Term Lender. Each Incremental Term Loan Assumption Agreement shall specify the
terms of the Incremental Term Loans to be made thereunder; provided that, without the prior written
consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no
earlier than the Term Loan Maturity Date, (ii) the average life to maturity of the Other Term Loans
shall be no shorter than the average life to maturity of the Term Loans and (iii) if the initial
yield (excluding upfront or arrangement fees payable to the arranger, if any, of such loan) on such
Other Term Loans (as determined by the Administrative Agent to be equal to the sum of (x) the
margin above the Adjusted LIBO Rate on such Other Term Loans and (y) if such Other Term Loans are
initially made at a discount or the Lenders making the same (as opposed to the arranger, if any,
thereof) receive a fee directly or indirectly from Parent, the Borrower or any Subsidiary for doing
so (the amount of such discount or fee, expressed as a percentage of the Other Term Loans, being
referred to herein as “OID”), the amount of such OID divided by the lesser of (A) the average life
to maturity of such Other Term Loans and (B) four) exceeds by more than 50 basis points (the amount
of such excess above 50 basis points being referred to herein as the “Yield Differential”) the
Applicable Percentage then in effect for Eurodollar Term Loans, then the Applicable Percentage then
in effect for Term Loans shall automatically be increased by the Yield Differential, effective upon
the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender as
to the effectiveness of each Incremental Term Loan Assumption Agreement. Each of the parties
hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption
Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary
to reflect the existence and terms of the Incremental Term Loan Commitment and the Incremental Term
Loans evidenced thereby.



     (c) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective
under this Section 2.24 unless (i) on the date of such effectiveness, the conditions set forth in
paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have
received a certificate to that effect dated such date and executed by a Financial Officer of the
Borrower, and (ii) except as otherwise specified in the applicable Incremental Term Loan Assumption
Agreement, the Administrative Agent shall have received legal opinions, board resolutions and other
closing certificates reasonably requested by the Administrative Agent and consistent with those
delivered on the Closing Date under Section 4.02.



     (d) Each of the parties hereto hereby agrees that the Administrative Agent may, in
consultation with the Borrower, take any and all action as may be reasonably necessary to ensure
that all Incremental Term Loans (other than Other Term Loans), when originally made, are included
in each Borrowing of outstanding Funded Term Loans or Delayed Draw Term Loans, as the case may be,
on a pro rata basis. This may be accomplished by requiring each outstanding Eurodollar Term
Borrowing of the applicable Class to be converted into an ABR Term Borrowing of such Class on the
date of each Incremental Term Loan, or by allocating a portion of each Incremental Term









 



65

Loan to each outstanding Eurodollar Term Borrowing of the applicable Class on a pro rata
basis. Any conversion of Eurodollar Term Loans to ABR Term Loans required by the preceding
sentence shall be subject to Section 2.16. If any Incremental Term Loan is to be allocated to an
existing Interest Period for a Eurodollar Term Borrowing, then the interest rate thereon for such
Interest Period and the other economic consequences thereof shall be as set forth in the applicable
Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans
are not Other Term Loans, the scheduled amortization payments under Section 2.11(a)(i) required to
be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate
principal amount of such Incremental Term Loans.




ARTICLE III




Representations and Warranties




     Each of Parent and the Borrower represents and warrants to the Administrative Agent, the
Collateral Agent, the Issuing Bank and each of the Lenders that:



     SECTION 3.01. Organization; Powers. Each of the Loan Parties (a) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its organization, except, with
respect to Loan Parties other than Parent or the Borrower, to the extent that the failure of such
Loan Parties to be in good standing could not reasonably be expected to have a Material Adverse
Effect, (b) has all requisite power and authority to own its property and assets and to carry on
its business as now conducted and as proposed to be conducted, except to the extent that the
failure to possess such power and authority could not reasonably be expected to result in a
Material Adverse Effect, (c) is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required, except where the failure so to qualify could not
reasonably be expected to result in a Material Adverse Effect, and (d) has the power and authority
to execute, deliver and perform its obligations under each of the Loan Documents and each other
agreement or instrument contemplated thereby to which it is or will be a party and, in the case of
the Borrower, to borrow hereunder.



     SECTION 3.02. Authorization. The execution, delivery and performance by the Loan Parties of
the Loan Documents to which they are a party and the making of the Borrowings hereunder and the
consummation of the Merger (a) have been duly authorized by all requisite corporate and, if
required, stockholder action and (b) will not (i) violate (A) any provision of law, statute, rule
or regulation, or of the certificate or articles of incorporation or other constitutive documents
or by-laws of Parent, the Borrower or any Subsidiary, (B) any order of any Governmental Authority
or (C) any provision of any indenture, agreement or other instrument to which Parent, the Borrower
or any Subsidiary is a party or by which any of them or any of their property is or may be bound,
except as could not reasonably be expected to result in a Material Adverse Effect, (ii) be in
conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both)
a default under, or give rise to any right to accelerate or to require the prepayment, repurchase
or redemption of any obligation under any such indenture, agreement or other instrument, except as
could not reasonably be expected to result in a









 



66

Material Adverse Effect or (iii) result in the creation or imposition of any Lien upon or with
respect to any property or assets now owned or hereafter acquired by Parent, the Borrower or any
Subsidiary (other than any Lien created hereunder or under the Security Documents or permitted
pursuant to Section 6.02).




     SECTION 3.03. Enforceability. This Agreement has been duly executed and delivered by Parent
and the Borrower and constitutes, and each other Loan Document when executed and delivered by each
Loan Party thereto will constitute, a legal, valid and binding obligation of such Loan Party
enforceable against such Loan Party in accordance with its terms, except as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws
affecting creditors’ rights generally and by general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).



     SECTION 3.04. Governmental Approvals. No action, consent or approval of, registration or
filing with or any other action by any Governmental Authority is or will be required in connection
with the execution, delivery and performance by the Loan Parties of the Loan Documents to which
they are a party or the Merger Agreement and the making of the Borrowings hereunder, except for (a)
the filing of Uniform Commercial Code financing statements and filings with the United States
Patent and Trademark Office and the United States Copyright Office, (b) recordation of the
Mortgages and other filings and recordings in respect of Liens created pursuant to the Security
Documents, (c) such as have been made or obtained and are in full force and effect and (d) such
actions, consents, approvals, registrations or filings which the failure to obtain or make could
not reasonably be expected to result in a Material Adverse Effect.



     SECTION 3.05. Financial Statements. (a) Parent has heretofore furnished to the Lenders its
consolidated balance sheets and related statements of income, stockholders’ equity and cash flows
of each of (i) Parent and (ii) Triad, in each case as of and for the 2006 fiscal year, audited by
and accompanied by the opinion of Deloitte & Touche LLP (in the case of Parent) or Ernst & Young
LLP (in the case of Triad), independent public accountants, and (ii) as of and for each 2007 fiscal
quarter of each of Parent and Triad thereafter ended at least 45 days prior to the Closing Date.
Such financial statements present fairly in all material respects the financial condition and
results of operations and cash flows of Parent and its consolidated subsidiaries and Triad and its
consolidated subsidiaries as of such dates and for such periods. Such balance sheets and the notes
thereto disclose all material liabilities, direct or contingent, of Parent and its consolidated
subsidiaries and Triad and its consolidated subsidiaries as of the dates thereof. Such financial
statements were prepared in accordance with GAAP applied on a consistent basis in all material
respects, subject, in the case of unaudited financial statements, to year-end audit adjustments and
the absence of footnotes.



     (b) Parent has heretofore delivered to the Lenders its unaudited pro forma consolidated
balance sheet and related pro forma statements of income as of the four consecutive fiscal quarters
most recently ended at least 45 days before the Closing Date, prepared giving effect to the
Transactions as if they had occurred, with respect to such balance sheet, on such date and, with
respect to such other financial statements, on the









 



67

first day of the four-quarter period ending on such date. Such pro forma financial statements
have been prepared in good faith by Parent, based on the assumptions used to prepare the pro forma
financial information contained in the Confidential Information Memorandum (which assumptions are
believed by Parent on the date hereof and on the Closing Date to be reasonable) and present fairly
on a pro forma basis the estimated consolidated financial position of Parent and its consolidated
Subsidiaries as of such date and for such period, assuming that the Transactions had actually
occurred at such date or at the beginning of such period, as the case may be, it being understood
that projections as to future events are not to be viewed as facts and are subject to significant
uncertainties and contingencies, many of which are beyond Parent’s control, and that no assurance
can be given that any particular projections will be realized, and that actual results may differ
and such differences may be material.




     SECTION 3.06. No Material Adverse Change. No event, change or condition has occurred that has
had, or could reasonably be expected to have, a material adverse effect on the business, assets,
operations, financial condition or operating results of Parent, the Borrower and the Subsidiaries,
taken as a whole, since December 31, 2006.



     SECTION 3.07. Title to Properties; Possession Under Leases. (a) Each of Parent, the Borrower
and the Subsidiaries has good and marketable title to, or valid leasehold interests in, or a right
to use, all its material properties and assets (including all Mortgaged Property), except for minor
defects in title that do not interfere with its ability to conduct its business as currently
conducted or to utilize such properties and assets for their intended purposes. All such material
properties and assets are free and clear of Liens, other than Liens expressly permitted by Section
6.02.



     (b) As of the Closing Date, neither Parent nor the Borrower has received any notice of, nor
has any knowledge of, any pending or contemplated material condemnation proceeding affecting the
Mortgaged Properties in any material respect or any sale or disposition thereof in lieu of
condemnation.



     (c) As of the Closing Date, none of Parent, the Borrower or any of the Subsidiaries is
obligated under any right of first refusal, option or other contractual right to sell, assign or
otherwise dispose of any Mortgaged Property or any material interest therein, except for customary
rights of first refusal granted to the prior owners of such Mortgaged Property or their Affiliates.



     SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth as of the Closing Date a list of all
Subsidiaries and the percentage ownership interest of Parent or the Borrower therein. The shares
of capital stock or other ownership interests so indicated on Schedule 3.08 are, in the case of
corporations, fully paid and non-assessable and are owned by Parent or the Borrower, directly or
indirectly, free and clear of all Liens (other than Liens created under the Security Documents or
permitted pursuant to Section 6.02).



     SECTION 3.09. Litigation; Compliance with Laws. (a) Except as disclosed in the periodic and
other reports, proxy statements and other materials filed by Parent, the Borrower or any Subsidiary
or Triad or any of its subsidiaries with the SEC prior to the









 



68

Closing Date, there are no actions, suits or proceedings at law or in equity or by or before
any Governmental Authority now pending or, to the knowledge of Parent or the Borrower through
receipt of written notice or proceeding, threatened against or affecting Parent or the Borrower or
any Subsidiary or any business, property or rights of any such person as to which there is a
reasonable possibility of an adverse determination and that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.




     (b) None of Parent, the Borrower or any of the Subsidiaries or any of their respective
material properties or assets is in violation of, nor will the continued operation of their
material properties and assets as currently conducted violate, any law, rule or regulation
(including any occupational safety and health, health care, pension, certificate of need, Medicare,
Medicaid, insurance fraud or similar law, zoning, building, Environmental Law, ordinance, code or
approval or any building permits) or any restrictions of record or agreements affecting the
Mortgaged Property, or is in default with respect to any judgment, writ, injunction, decree or
order of any Governmental Authority, where such violation or default could reasonably be expected
to result in a Material Adverse Effect.



     (c) Certificates of occupancy and permits are in effect for each Mortgaged Property as
currently constructed, and true and complete copies of such certificates of occupancy have been
delivered to the Collateral Agent as mortgagee with respect to each Mortgaged Property.



     SECTION 3.10. Agreements. (a) None of Parent, the Borrower or any of the Subsidiaries is in
default in any manner under any provision of any indenture or other agreement or instrument
evidencing Indebtedness, or any other material agreement or instrument to which it is a party or by
which it or any of its properties or assets are or may be bound, where such default could
reasonably be expected to result in a Material Adverse Effect.



     (b) As of the Closing Date, there are no Tax sharing agreements (or similar agreements) under
which Parent, the Borrower or any of the Subsidiaries could be liable for the Tax liability of an
entity that is neither Parent, the Borrower nor any of their respective subsidiaries, except for
the HCA Tax Sharing Agreement.



     SECTION 3.11. Federal Reserve Regulations. (a) None of Parent, the Borrower or any of the
Subsidiaries is engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of buying or carrying Margin Stock.



     (b) No part of the proceeds of any Loan or any Letter of Credit will be used, whether directly
or indirectly, and whether immediately, incidentally or ultimately, for any purpose that entails a
violation of, or that is inconsistent with, the provisions of the Regulations of the Board,
including Regulation T, U or X.









 



69


     SECTION 3.12. Investment Company Act. None of Parent, the Borrower or any Subsidiary is an
“investment company” as defined in, or subject to regulation under, the Investment Company Act of
1940.



     SECTION 3.13. Use of Proceeds. The Borrower will (a) use the proceeds of the Loans and will
request the issuance of Letters of Credit only for the purposes specified in the preliminary
statement to this Agreement and (b) use the proceeds of Incremental Term Loans only for the
purposes specified in the applicable Incremental Term Loan Assumption Agreement.



     SECTION 3.14. Tax Returns. Each of Parent, the Borrower and the Subsidiaries has filed or
caused to be filed, or has timely requested an extension to file or has received an approved
extension to file, all Federal, state, local and foreign tax returns or materials that to the
Borrower’s best knowledge are required to have been filed by it and has paid or caused to be paid
all taxes due and payable by it and all assessments received by it, except taxes that are being
contested in good faith by appropriate proceedings and for which Parent, the Borrower or such
Subsidiary, as applicable, shall have set aside on its books reserves in accordance with GAAP and
except any such filings or taxes, fees or charges, the failure of which to make or pay, could not
reasonably be expected to have a Material Adverse Effect.



     SECTION 3.15. No Material Misstatements. None of (a) the Confidential Information Memorandum
or (b) any other written information, report, financial statement, exhibit or schedule (other than
estimates and information of a general economic or general industry nature) heretofore or
contemporaneously furnished by or on behalf of Parent or the Borrower to the Administrative Agent
or any Lender in connection with the negotiation of any Loan Document or included therein or
delivered pursuant thereto, when furnished and taken as a whole, contained, contains or will
contain any material misstatement of fact or omitted, omits or will omit to state any material fact
necessary to make the statements therein, in the light of the circumstances under which they were,
are or will be made, not materially misleading in light of the circumstances under which such
statements were made; provided that to the extent any such information, report, financial
statement, exhibit or schedule was based upon or constitutes a forecast or projection, each of
Parent and the Borrower represents only that it acted in good faith and utilized assumptions that
each of Parent and the Borrower believed to be reasonable at the time made.



     SECTION 3.16. Employee Benefit Plans. Each of the Borrower and its ERISA Affiliates is in
compliance in all material respects with the applicable provisions of ERISA and the Code and the
regulations and published interpretations thereunder. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events, could reasonably be
expected to result in material liability of the Borrower or any of its ERISA Affiliates. The
present value of all benefit liabilities under each Plan (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as of the last annual
valuation date applicable thereto, exceed the fair market value of the assets of such Plan in such
amount that could reasonably be expected to result in a Material Adverse Effect, and the present









 



70

value of all benefit liabilities of all underfunded Plans (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as of the last annual
valuation dates applicable thereto, exceed the fair market value of the assets of all such
underfunded Plans in such amount that could reasonably be expected to result in a Material Adverse
Effect.




     SECTION 3.17. Environmental Matters. (a) Except as set forth in Schedule 3.17 and except
with respect to any other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, none of Parent, the Borrower or any of the
Subsidiaries (i) has failed to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental Law, (ii) has become
subject to any Environmental Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental Liability.



     (b) Since the date of this Agreement, there has been no change in the status of the matters
disclosed on Schedule 3.17 that, individually or in the aggregate, has resulted in, or materially
increased the likelihood of, a Material Adverse Effect.



     SECTION 3.18. Insurance. Schedule 3.18 sets forth a true, complete and correct description,
in all material respects, of all insurance maintained by Parent or by Parent or the Borrower for
itself or the Subsidiaries as of the Closing Date. As of the Closing Date, such insurance is in
full force and effect and all premiums have been duly paid. Parent, the Borrower and the
Subsidiaries have insurance in such amounts and covering such risks and liabilities as are in
accordance with normal industry practice.



     SECTION 3.19. Security Documents. (a) The Guarantee and Collateral Agreement, upon execution
and delivery thereof by the parties thereto, will create in favor of the Collateral Agent, for the
ratable benefit of the Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined in the Guarantee and Collateral Agreement) and the proceeds thereof, subject
to the effects of bankruptcy, insolvency or similar laws affecting creditors’ rights generally and
general equitable principles, and (i) when the Pledged Collateral (as defined in the Guarantee and
Collateral Agreement) is delivered to the Collateral Agent, the Lien created under the Guarantee
and Collateral Agreement shall constitute a fully perfected first priority Lien on, and security
interest in, all right, title and interest of the Loan Parties in such Pledged Collateral as to
which perfection may be obtained by such actions, in each case prior and superior in right to any
other person, and (ii) when financing statements in appropriate form are filed in the offices
specified on Schedule 3.19(a), the Lien created under the Guarantee and Collateral Agreement will
constitute a fully perfected Lien on, and security interest in, all right, title and interest of
the Loan Parties in such Collateral (other than Intellectual Property, as defined in the Guarantee
and Collateral Agreement) as to which perfection may be obtained by such filings, in each case
prior and superior in right to any other person, other than with respect to Liens expressly
permitted by Section 6.02.



     (b) Upon the timely recordation of the Guarantee and Collateral Agreement (or a short-form
security agreement in form and substance reasonably satisfactory to the









 



71

Borrower and the Collateral Agent) with the United States Patent and Trademark Office and the
United States Copyright Office, together with the financing statements in appropriate form filed in
the offices specified on Schedule 3.19(a), the Lien created under the Guarantee and Collateral
Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title
and interest of the Loan Parties in the Intellectual Property (as defined in the Guarantee and
Collateral Agreement) in which a security interest may be perfected by filing security agreements
in the United States and its territories and possessions, in each case prior and superior in right
to any other person other than with respect to Liens permitted pursuant to Section 6.02 (it being
understood that subsequent recordings in the United States Patent and Trademark Office and the
United States Copyright Office may be necessary to perfect a Lien on registered trademarks and
patents, trademark and patent applications and registered copyrights acquired by the Loan Parties
after the date hereof).




     (c) The Mortgages are effective to create in favor of the Collateral Agent, for the ratable
benefit of the Secured Parties, a legal, valid and enforceable Lien on all of the Loan Parties’
right, title and interest in and to the Mortgaged Property thereunder and the proceeds thereof, and
when the Mortgages are filed in the offices specified on Schedule 3.19(c), the Mortgages shall
constitute a fully perfected Lien on, and security interest in, all right, title and interest of
the Loan Parties in such Mortgaged Property and the proceeds thereof, in each case prior and
superior in right to any other person, other than with respect to the rights of persons pursuant to
Liens expressly permitted by Section 6.02.



     SECTION 3.20. Location of Real Property and Leased Premises.
(a) Schedule 1.01(d) lists completely and correctly as of the Closing Date all Hospitals
owned by Parent, the Borrower and the Subsidiaries and the addresses thereof. The Borrower and the
Subsidiaries own in fee all the real property set forth on Schedule 1.01(d).



     (b) Schedule 1.01(d) lists completely and correctly as of the Closing Date all Hospitals
leased by Parent, the Borrower and the Subsidiaries and the addresses thereof. The Borrower and
the Subsidiaries have valid leases in all the material real property set forth on Schedule 1.01(d).



     SECTION 3.21. Labor Matters. Except as set forth on Schedule 3.21, as of the Closing Date,
there are no strikes, lockouts or slowdowns against Parent, the Borrower or any Subsidiary pending
or, to the knowledge of Parent or the Borrower by delivery of written notice or proceeding,
threatened. The consummation of the Transactions will not give rise to any right of termination or
right of renegotiation on the part of any union under any collective bargaining agreement to which
Parent, the Borrower or any Subsidiary is bound. Except as set forth on Schedule 3.21, as of the
Closing Date, none of Parent, the Borrower or any Subsidiary is a party to any collective
bargaining agreement or other labor contract applicable to persons employed by it at any Facility.



     SECTION 3.22. Solvency. Immediately after the consummation of the Transactions to occur on
the Closing Date, as of the Closing Date (a) the fair value of the









 



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assets of Parent, the Borrower and the Subsidiaries, on a consolidated basis, at a fair
valuation, will exceed their debts and liabilities, subordinated, contingent or otherwise; (b) the
present fair saleable value of the property of Parent, the Borrower and the Subsidiaries, on a
consolidated basis, will be greater than the amount that will be required to pay the probable
liability of their debts and other liabilities, subordinated, contingent or otherwise, as such
debts and other liabilities become absolute and matured; (c) Parent, the Borrower and the
Subsidiaries, on a consolidated basis, will be able to pay their debts and liabilities,
subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured;
and (d) Parent, the Borrower and the Subsidiaries, on a consolidated basis, will not have
unreasonably small capital with which to conduct the business in which they are engaged as such
business is now conducted and is proposed to be conducted following the Closing Date.




     SECTION 3.23. Transaction Documents. Parent and the Borrower have delivered to the
Administrative Agent a complete and correct copy of the Merger Agreement (including all schedules,
exhibits, amendments, supplements and modifications thereto). The Merger Agreement complies in all
material respects with all applicable laws.



     SECTION 3.24. Sanctioned Persons. None of Parent, the Borrower, or any Subsidiary or any
Unrestricted Subsidiary nor, to the knowledge of the Borrower, any director, officer, agent,
employee or Affiliate of Parent, the Borrower, any Subsidiary or any Unrestricted Subsidiary is
currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the
U.S. Treasury Department (“OFAC”) and each is currently in compliance with all rules and
regulations promulgated by OFAC; and the Borrower will not directly or indirectly use the proceeds
of the Loans or the Letters of Credit or otherwise make available such proceeds to any person, for
the purpose of financing the activities of any person currently subject to any U.S. sanctions
administered by OFAC.



ARTICLE IV




Conditions of Lending




     The obligations of the Lenders to make Loans and of the Issuing Bank to issue Letters of
Credit hereunder are subject to the satisfaction of the following conditions:



     SECTION 4.01. All Credit Events. On the date of each Borrowing (other than a conversion or a
continuation of a Borrowing), including each Borrowing of a Swingline Loan and on the date of each
issuance of or increase to a Letter of Credit (each such event being called a “Credit Event”):



     (a) The Administrative Agent shall have received a notice of such Borrowing as required by
Section 2.03 (or such notice shall have been deemed given in accordance with Section 2.02) or, in
the case of the issuance of or increase to a Letter of Credit, the Issuing Bank and the
Administrative Agent shall have received a notice requesting the issuance of or increase to such
Letter of Credit as required by Section 2.23(b) or, in the









 



73

case of the Borrowing of a Swingline Loan, the Swingline Lender and the Administrative Agent
shall have received a notice requesting such Swingline Loan as required by Section 2.22(b).




     (b) (i) In the case of each Credit Event that occurs on the Closing Date, the condition set
forth in Section 8.2(a) of the Merger Agreement shall be satisfied (without giving effect to any
amendment, modification or waiver thereof that is materially adverse to the Lenders and not
approved by the Arrangers (which consent shall not be unreasonably withheld or delayed)) and the
representations and warranties made in Sections 3.01, 3.02 (with respect to the Loan Documents),
3.03, 3.11, 3.12 and 3.19 (subject to the proviso in Section 4.02(e)) shall be true and correct in
all material respects and (ii) in the case of each other Credit Event, the representations and
warranties set forth in Article III and in each other Loan Document shall be true and correct in
all material respects on and as of the date of such Credit Event with the same effect as though
made on and as of such date, except to the extent such representations and warranties expressly
relate to an earlier date.



     (c) At the time of and immediately after such Credit Event, no Default or Event of Default
shall have occurred and be continuing.



     Each Credit Event shall be deemed to constitute a representation and warranty by the Borrower
and Parent on the date of such Credit Event as to the matters specified in paragraphs (b) and (c)
of this Section 4.01.



     SECTION 4.02. First Credit Event. On the Closing Date:



     (a) The Administrative Agent shall have received, on behalf of itself, the Lenders and the
Issuing Bank, a favorable written opinion of (i) Kirkland & Ellis LLP, counsel for Parent and the
Borrower, substantially to the effect set forth in Exhibit F-1, (ii) the general counsel of Parent,
substantially to the effect set forth in Exhibit F-2 and (iii) each local counsel listed on
Schedule 4.02(a), substantially to the effect set forth in Exhibit F-3, in each case (A) dated the
Closing Date, (B) addressed to the Issuing Bank, the Administrative Agent and the Lenders, and (C)
covering such other matters (including, in the case of the opinions provided by counsel described
in clause (iii), real estate matters) relating to the Loan Documents and the Transactions as the
Administrative Agent shall reasonably request, and Parent and the Borrower hereby request such
counsel to deliver such opinions.



     (b) The Administrative Agent shall have received (i) a copy of the certificate or articles of
incorporation, including all amendments thereto, of each Loan Party, certified as of a recent date
by the Secretary of State of the state of its organization, and a certificate as to the good
standing of each Loan Party as of a recent date, from such Secretary of State; (ii) a certificate
of the Secretary or Assistant Secretary of each Loan Party dated the Closing Date and certifying
(A) that attached thereto is a true and complete copy of the by-laws of such Loan Party as in
effect on the Closing Date and at all times since a date prior to the date of the resolutions
described in clause (B) below, (B) that attached thereto is a true and complete copy of resolutions
duly adopted by the









 



74

Board of Directors of such Loan Party authorizing the execution, delivery and performance of
the Loan Documents to which such person is a party and, in the case of the Borrower, the borrowings
hereunder, and that such resolutions have not been modified, rescinded or amended and are in full
force and effect, (C) that the certificate or articles of incorporation of such Loan Party have not
been amended since the date of the last amendment thereto shown on the certificate of good standing
furnished pursuant to clause (i) above, and (D) as to the incumbency and specimen signature of each
officer executing any Loan Document or any other document delivered in connection herewith on
behalf of such Loan Party; (iii) a certificate of another officer as to the incumbency and specimen
signature of the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii)
above; and (iv) such other documents as the Lenders, the Issuing Bank or the Administrative Agent
may reasonably request.




     (c) The Administrative Agent shall have received a certificate, dated the Closing Date and
signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent
set forth in paragraphs (b) and (c) of Section 4.01.



     (d) The Administrative Agent shall have received all Fees and other amounts due and payable on
or prior to the Closing Date, including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any
other Loan Document.



     (e) The Security Documents shall have been duly executed by each Loan Party that is to be a
party thereto and shall be in full force and effect on the Closing Date. The Collateral Agent on
behalf of the Secured Parties shall have a security interest in the Collateral of the type and
priority described in each Security Document; provided that to the extent a perfected security
interest in any Collateral (other than any Collateral the security interest in which may be
perfected by the filing of a UCC financing statement or the delivery of certificated securities of
the Borrower and Triad) is not able to be provided on the Closing Date after the Borrower’s use of
commercially reasonable efforts to do so, the providing of a perfected security interest in such
Collateral shall not constitute a condition precedent to the first Credit Event but such
requirement to create a perfected security interest in such Collateral shall be satisfied after the
Closing Date in accordance with the Post-Closing Letter Agreement.



     (f) The Collateral Agent shall have received the results of a search of the Uniform Commercial
Code filings (or equivalent filings) made with respect to the Loan Parties in the states (or other
jurisdictions) of formation of such persons as indicated on the applicable schedules to the
Guarantee and Collateral Agreement, together with copies of the financing statements (or similar
documents) disclosed by such search, and accompanied by evidence satisfactory to the Collateral
Agent that the Liens indicated in any such financing statement (or similar document) would be
permitted under Section 6.02 or have been or will be contemporaneously released or terminated.



     (g) (i) Subject to the proviso in clause (e) above, each of the Security Documents, in form
and substance satisfactory to the Lenders, relating to each of the Mortgaged Properties shall have
been duly executed by the parties thereto and delivered









 



75

to the Collateral Agent and shall be in full force and effect, (ii) each of such Mortgaged
Properties shall not be subject to any Lien other than those permitted under Section 6.02, (iii)
each of such Security Documents shall have been filed and recorded in the recording office as
specified on Schedule 3.19(c) (or a lender’s title insurance policy, in form and substance
reasonably acceptable to the Collateral Agent, insuring such Security Document as a first lien on
such Mortgaged Property (subject to any Lien permitted by Section 6.02) shall have been received by
the Collateral Agent) and, in connection therewith, the Collateral Agent shall have received
evidence reasonably satisfactory to it of each such filing and recordation and (iv) the Collateral
Agent shall have received such other documents, including a policy or policies of title insurance
issued by a nationally recognized title insurance company, together with such endorsements,
coinsurance and reinsurance as may be requested by the Collateral Agent and the Lenders, insuring
the Mortgages as valid first liens on the Mortgaged Properties, free of Liens other than those
permitted under Section 6.02, together with such legal opinions required to be furnished pursuant
to the terms of the Mortgages or as reasonably requested by the Collateral Agent.




     (h) The Administrative Agent shall have received a copy of, or a certificate as to coverage
under, the insurance policies required by Section 5.02 and the applicable provisions of the
Security Documents, each of which shall be endorsed or otherwise amended to include a customary
lender’s loss payable endorsement and to name the Collateral Agent as additional insured.



     (i) The Merger shall have been, or substantially simultaneously with the initial funding of
Loans on the Closing Date shall be, consummated in accordance in all material respects with the
Merger Agreement and in all material respects with applicable law, without giving effect to any
amendment, modification or waiver of any material term or condition of the Merger Agreement that is
materially adverse to the Lenders and not approved by the Arrangers (which consent shall not be
unreasonably withheld or delayed). The Administrative Agent shall have received a copy of the
Merger Agreement and all schedules related thereto, in each case certified by a Financial Officer
as being final versions thereof.



     (j) The Borrower shall have received gross cash proceeds of not less than $3,000,000,403 from
the issuance of the Senior Notes.



     (k) (i) All principal, premium, if any, interest, fees and other amounts due or outstanding
under each of the Existing Credit Agreements shall have been paid in full, each of the commitments
thereunder terminated and all guarantees and security in support thereof discharged and released,
and the Administrative Agent shall have in each case received reasonably satisfactory evidence
thereof, (ii) Parent shall have either (A) effected the Parent Debt Tender Offer and the related
Parent Consent Solicitation or (B) deposited funds with the trustee under the indenture governing
the Existing Parent Notes sufficient to discharge the Existing Parent Notes or effect covenant
defeasance with respect to the Existing Parents Notes and (iii) Triad shall have either (A)
effected the Triad Debt Tender Offers and the related Triad Consent Solicitations or (B) deposited
funds with the applicable trustees under the indentures governing the Existing Triad









 



76

Notes sufficient to discharge the applicable Existing Triad Notes or effect covenant
defeasance with respect to the applicable Existing Triad Notes, in all cases prior to or
substantially simultaneously with the initial funding of the Loans on the Closing Date.
Immediately after giving effect to the Transactions and the other transactions contemplated hereby,
Parent, the Borrower and the Subsidiaries shall have outstanding no Indebtedness or preferred stock
other than (a) Indebtedness outstanding under this Agreement, (b) the Senior Notes and (c)
Indebtedness set forth on Schedule 6.01 or permitted under Section 6.01.




     (l) The Lenders shall have received the financial statements and opinion referred to in
Section 3.05.



     (m) The Administrative Agent shall have received a certificate from the chief financial
officer of Parent on behalf of Parent certifying that Parent and its subsidiaries, on a
consolidated basis after giving effect to the Transactions to occur on the Closing Date, are
solvent.



     (n) The Lenders shall have received, at least five Business Days prior to the Closing Date, to
the extent requested, all documentation and other information required by regulatory authorities
under applicable “know your customer” and anti-money laundering rules and regulations, including
the USA PATRIOT Act.



ARTICLE V




Affirmative Covenants




     Each of Parent and the Borrower covenants and agrees with each Lender that so long as this
Agreement shall remain in effect and until the Commitments have been terminated and the principal
of and interest on each Loan, all Fees and all other expenses or amounts payable under any Loan
Document shall have been paid in full and all Letters of Credit have been canceled or have expired
and all amounts drawn thereunder have been reimbursed in full or other arrangements acceptable to
the Issuing Bank and the Administrative Agent have been made with respect thereto, unless the
Required Lenders shall otherwise consent in writing, each of Parent and the Borrower will, and will
cause (i) in the case of Sections 5.01 and 5.02, each of the Material Subsidiaries, and (ii) in the
case of Sections 5.03 through 5.15, each of the Subsidiaries to:



     SECTION 5.01. Existence; Compliance with Laws; Businesses and Properties. (a) Do or cause to
be done all things necessary to preserve, renew and keep in full force and effect its legal
existence, except as otherwise expressly permitted under Section 6.05.



     (b) (i) Do or cause to be done all things necessary to obtain, preserve, renew, extend and
keep in full force and effect the rights, licenses, permits, franchises and authorizations,
material to the conduct of its business, except as could not reasonably be expected to have a
Material Adverse Effect; (ii) comply in all material respects with all applicable laws, rules,
regulations and decrees and orders of any Governmental Authority, whether now in effect or
hereafter enacted, except as could not reasonably be









 



77

expected to have a Material Adverse Effect; and (iii) at all times maintain and preserve all
tangible property material to the conduct of such business and keep such property in good repair,
working order and condition (subject to ordinary wear and tear, casualty and condemnation) and from
time to time make, or cause to be made, all needful and proper repairs, renewals, additions,
improvements and replacements thereto necessary in order that the business carried on in connection
therewith may be properly conducted at all times, except as could not reasonably be expected to
have a Material Adverse Effect.




     SECTION 5.02. Insurance. (a) Maintain with financially sound and reputable insurers
insurance, to such extent and against such risks, including fire and other risks insured against by
extended coverage, as is customary with companies in the same or similar businesses operating in
the same or similar locations, including hospital liability (which shall include general liability,
medical professional liability, contractual liability and druggists’ liability), workers’
compensation, employers’ liability, automobile liability and physical damage coverage,
environmental impairment liability, all risk property, business interruption, fidelity and crime
insurance and public liability insurance against claims for personal injury or death or property
damage occurring upon, in, about or in connection with the use of any properties owned, occupied or
controlled by it; provided that the Borrower may implement programs of self insurance in the
ordinary course of business and in accordance with industry standards for a company of similar size
so long as reserves are maintained in accordance with GAAP for the liabilities associated
therewith.



     (b) Cause all casualty and property policies covering any Collateral to name the Collateral
Agent as loss payee or mortgagee, and/or additional insured, and each provider of any such
insurance shall agree, by endorsement upon such policies issued by it, that it will give the
Administrative Agent 30 days prior written notice before any such policy or policies shall be
altered or canceled.



     (c) If at any time the area in which the Premises (as defined in the Mortgages) are located is
designated a “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency
Management Agency (or any successor agency), obtain flood insurance in such total amount as the
Administrative Agent, the Collateral Agent or the Required Lenders may from time to time require,
and otherwise comply with the National Flood Insurance Program as set forth in the Flood Disaster
Protection Act of 1973, as it may be amended from time to time.



     SECTION 5.03. Obligations and Taxes. Pay and discharge promptly when due all taxes,
assessments and governmental charges or levies imposed upon it or upon its income or profits or in
respect of its property, before the same shall become delinquent, as well as all lawful claims for
labor, materials and supplies or otherwise that, if unpaid, could reasonably be expected to give
rise to a Lien upon such properties or any part thereof; provided, however, that such payment and
discharge shall not be required with respect to any such tax, assessment, charge, levy or claim so
long as (i) the validity or amount thereof shall be contested in good faith by appropriate
proceedings and the Borrower shall have set aside on its books adequate reserves with respect
thereto in accordance with GAAP or (ii) the failure to pay and discharge such tax, assessment,









 



78

charge, levy or claim could not reasonably be expected to have a Material Adverse Effect.




     SECTION 5.04. Financial Statements, Reports, etc. In the case of Parent, furnish to the
Administrative Agent, which shall furnish to each Lender:



     (a) within 90 days after the end of each fiscal year, its consolidated balance sheet and
related statements of income, stockholders’ equity and cash flows showing the financial condition
of Parent and its consolidated subsidiaries as of the close of such fiscal year and the results of
its operations and the operations of such subsidiaries during such year, together with (commencing
with such financial statements for the fiscal year ending on December 31, 2008) comparative figures
for the immediately preceding fiscal year, all audited by Deloitte & Touche LLP or other
independent public accountants of recognized national standing and accompanied by an opinion of
such accountants (which opinion shall be without a “going concern” or like qualification or
exception or any qualification or exception as to the scope of such audit) to the effect that such
consolidated financial statements fairly present in all material respects the financial condition
and results of operations of Parent and its consolidated subsidiaries on a consolidated basis in
accordance with GAAP;



     (b) within 50 days after the end of each of the first three fiscal quarters of each fiscal
year, in each case commencing with the fiscal quarter ending September 30, 2007, its consolidated
balance sheet and related statements of income, stockholders’ equity and cash flows showing the
financial condition of Parent and its consolidated subsidiaries as of the close of such fiscal
quarter and the results of its operations and the operations of such subsidiaries during such
fiscal quarter and the then elapsed portion of the fiscal year, and (commencing with such financial
statements delivered after the first anniversary of the Closing Date) comparative figures for the
same periods in the immediately preceding fiscal year all certified by one of its Financial
Officers as fairly presenting in all material respects the financial condition and results of
operations of Parent and its consolidated subsidiaries on a consolidated basis in accordance with
GAAP, subject to normal year-end audit adjustments;



     (c) concurrently with any delivery of financial statements under paragraph (a) or (b) above, a
certificate of a Financial Officer of the Borrower (i) certifying that no Event of Default or
Default has occurred or, if such an Event of Default or Default has occurred, specifying the nature
and extent thereof and any corrective action taken or proposed to be taken with respect thereto,
(ii) setting forth computations in reasonable detail satisfactory to the Administrative Agent
demonstrating compliance with the covenants contained in Sections 6.11, 6.12 and 6.13, (iii)
setting forth the identity and value of any Hospital acquired in fee by Parent or any Subsidiary
during the preceding quarter and not previously identified to the Administrative Agent if the fair
market value thereof is in excess of $10,000,000 and (iv) setting forth the amount, if any, of the
Initial Pro Forma Adjustment included in the calculation of Consolidated EBITDA for such period,
and, in the case of a certificate delivered with the financial statements required by paragraph (a)
above, setting forth Parent’s calculation of Excess Cash Flow;









 



79


     (d) within 90 days after the beginning of each fiscal year of Parent, a detailed consolidated
budget for such fiscal year (including a projected consolidated balance sheet and related
statements of projected operations and cash flows as of the end of and for such fiscal year and
setting forth the assumptions used for purposes of preparing such budget) and, promptly when
available, any significant revisions of such budget;



     (e) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by Parent, the Borrower or any Subsidiary with
the SEC, or with any national securities exchange, or distributed to its shareholders, as the case
may be;



     (f) promptly after the request by any Lender (made through the Administrative Agent), all
documentation and other information that such Lender reasonably requests in order to comply with
its ongoing obligations under applicable “know your customer” and anti-money laundering rules and
regulations, including the USA PATRIOT Act;



     (g) promptly after the request by the Administrative Agent or any Lender, on and after the
effectiveness of the applicable provisions of the Pension Act, copies of (i) any documents
described in Section 101(k)(1) of ERISA that the Borrower or any of its ERISA Affiliates may
request with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l)(1)
of ERISA that the Borrower or any of its ERISA Affiliates may request with respect to any
Multiemployer Plan; provided that if the Borrower or any of its ERISA Affiliates has not requested
such documents or notices from the administrator or sponsor of the applicable Multiemployer Plan,
the Borrower or the applicable ERISA Affiliate shall promptly make a request for such documents or
notices from such administrator or sponsor and shall provide copies of such documents and notices
promptly after receipt thereof;



     (h) promptly, from time to time, such other information regarding the operations, business
affairs and financial condition of Parent, the Borrower or any Subsidiary, or compliance with the
terms of any Loan Document, as the Administrative Agent may reasonably request (on behalf of itself
or any Lender); and



     (i) substantially contemporaneously with each designation of a Subsidiary as an “Unrestricted
Subsidiary” and each redesignation of an Unrestricted Subsidiary as a “Subsidiary”, provide written
notice of such designation or redesignation, as applicable, to the Administrative Agent (who shall
promptly notify the Lenders).



     SECTION 5.05. Litigation and Other Notices. Furnish to the Administrative Agent prompt
written notice of the following:



     (a) any Event of Default or Default, specifying the nature and extent thereof and the
corrective action (if any) taken or proposed to be taken with respect thereto;



     (b) the filing or commencement of, or any threat or notice of intention of any person to file
or commence, any action, suit or proceeding, whether at law or in equity or by or before any
Governmental Authority, against Parent, the Borrower or any Subsidiary that could reasonably be
expected to result in a Material Adverse Effect; and









 



80


     (c) any event or occurrence that has resulted in, or could reasonably be expected to result
in, a Material Adverse Effect.



     SECTION 5.06. Information Regarding Collateral. Furnish to the Administrative Agent prompt
written notice of any change (i) in any Loan Party’s corporate name, (ii) in any Loan Party’s
jurisdiction of organization or formation, (iii) in any Loan Party’s identity or corporate
structure or (iv) in any Loan Party’s Federal Taxpayer Identification Number. Parent and the
Borrower agree not to effect or permit any change referred to in the preceding sentence unless all
filings have been made under the Uniform Commercial Code or otherwise that are required in order
for the Collateral Agent to continue at all times following such change to have a valid, legal and
perfected security interest in all the Collateral. Parent and the Borrower also agree promptly to
notify the Administrative Agent if any material portion of the Collateral is damaged or destroyed.



     SECTION 5.07. Maintaining Records; Access to Properties and Inspections; Maintenance of
Ratings. (a) Keep books of record and account in which full, true and correct entries in all
material respects are made of all dealings and transactions in relation to its business and
activities which permit financial statements to be prepared in conformity with GAAP and all
requirements of law. Each Loan Party will, and will cause each of its subsidiaries to, permit any
representatives designated by the Administrative Agent or the Required Lenders to visit and inspect
the financial records and the properties of such person at reasonable times and as often as
reasonably requested upon reasonable notice and to make extracts from and copies of such financial
records (in each case excluding patient medical records and any other material which is
confidential pursuant to any laws, rules, regulations and decrees and orders of any Governmental
Authority) and permit any representatives designated by the Administrative Agent or the Required
Lenders to discuss the affairs, finances and condition of such person with the officers thereof and
independent accountants therefor (with a senior officer of the Borrower present); provided that,
excluding any such visits and inspections during the continuation of an Event of Default, only one
such visit during any fiscal year shall be at the Borrower’s expense.



     (b) In the case of Parent and the Borrower, use commercially reasonable efforts to cause the
Credit Facilities to be continuously rated by S&P and Moody’s, and to maintain a corporate rating
from S&P and a corporate family rating from Moody’s, in each case in respect of Parent.



     SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans and request the issuance of
Letters of Credit only for the purposes specified in the preliminary statement to this Agreement.



     SECTION 5.09. Employee Benefits. (a) Comply in all material respects with the applicable
provisions of ERISA and the Code and (b) furnish to the Administrative Agent as soon as possible
after, and in any event within ten days after any Responsible Officer of Parent, the Borrower or
any ERISA Affiliate knows or has reason to know that, any ERISA Event has occurred that, alone or
together with any other ERISA Event could









 



81

reasonably be expected to result in liability of the Borrower or any ERISA Affiliate in an
aggregate amount exceeding $10,000,000, a statement of a Financial Officer of Parent or the
Borrower setting forth details as to such ERISA Event and the action, if any, that Parent or the
Borrower proposes to take with respect thereto.




     SECTION 5.10. Compliance with Environmental Laws. Comply, and cause all lessees and other
persons occupying its properties to comply, in all material respects with all Environmental Laws
applicable to its operations and properties; obtain and renew all material environmental permits
necessary for its operations and properties; and promptly conduct any remedial action in accordance
with Environmental Laws; provided, however, that none of Parent, the Borrower or any Subsidiary
shall be required to undertake any remedial action required by Environmental Laws to the extent
that its obligation to do so is being contested in good faith and by proper proceedings and
appropriate reserves are being maintained with respect to such circumstances in accordance with
GAAP.



     SECTION 5.11. Preparation of Environmental Reports. If a Default caused by reason of a breach
of Section 3.17 or Section 5.10 shall have occurred and be continuing for more than 20 days without
Parent, the Borrower or any Subsidiary commencing activities reasonably likely to cure such
Default, at the written request of the Required Lenders through the Administrative Agent, the
Borrower shall provide to the Lenders within 45 days after receipt of such request, at the expense
of the Loan Parties, environmental site assessment reports (Phase I, Phase II and/or compliance
audits) regarding the matters which are the subject of such Default prepared by an environmental
consulting firm reasonably acceptable to the Administrative Agent and indicating the compliance
matter and/or the presence or absence of Hazardous Materials and the estimated cost of any
compliance or remedial action in connection with such Default.



     SECTION 5.12. Further Assurances. Execute any and all further documents, financing
statements, agreements and instruments, and take all further action (including filing Uniform
Commercial Code and other financing statements, mortgages and deeds of trust) that may be required
under applicable law, or that the Required Lenders, the Administrative Agent or the Collateral
Agent may reasonably request, in order to effectuate the transactions contemplated by the Loan
Documents and in order to grant, preserve, protect and perfect the validity and first priority of
the security interests created or intended to be created by the Security Documents. The Borrower
will cause any subsequently acquired or organized Material Subsidiary to become a Loan Party by
executing the Guarantee and Collateral Agreement and each applicable Security Document in favor of
the Collateral Agent. In addition, except with respect to which, in the reasonable judgment of the
Administrative Agent (confirmed in writing by written notice to the Borrower), the cost or other
consequences (including any Tax consequence) of doing so shall be excessive in view of the benefits
to be obtained by the Lenders therefrom and subject to applicable limitations set forth in the
Security Documents, from time to time, the Borrower will, at its cost and expense, promptly secure
the Obligations by pledging or creating, or causing to be pledged or created, perfected security
interests with respect to such of its assets and properties as the Administrative Agent or the
Required Lenders shall designate (it being understood that it is the intent of the parties that the
Obligations shall be secured by substantially all the assets of Parent, the









 



82

Borrower and the Subsidiary Guarantors (including properties acquired subsequent to the
Closing Date), except this Section 5.12 shall not require Parent, the Borrower or any Subsidiary
Guarantor to (a) pledge (i) more than 65% of the outstanding voting Equity Interests in any Foreign
Subsidiary, (ii) any Equity Interest in any Non-Significant Subsidiary or (iii) any Equity Interest
in any Permitted Syndication Subsidiary, any Securitization Subsidiary or any Permitted Joint
Venture Subsidiary to the extent the pledge of the Equity Interest in such Subsidiary is prohibited
by any applicable Contractual Obligation or requirement of law, or (b) grant security interests in
any asset that (i) would result in the violation of the enforceable anti-assignment provision of
any contract, or would be prohibited by or would violate applicable law or contractual provisions
(including any right of first refusal) or would otherwise result in termination or any forfeiture
under any contract, (ii) is a vehicle or other asset subject to certificate of title, (iii) require
perfection through control agreements (including, to the extent required in the relevant
jurisdiction for deposit accounts and investment property), (iv) are minority Equity Interests or
(v) is permitted to be so excluded under the Guarantee and Collateral Agreement. Such security
interests and Liens will be created under the Security Documents and other security agreements,
mortgages, deeds of trust and other instruments and documents in form and substance satisfactory to
the Collateral Agent, and the Borrower shall deliver or cause to be delivered to the Lenders all
such instruments and documents (including legal opinions, title insurance policies and lien
searches) as the Collateral Agent shall reasonably request to evidence compliance with this
Section. Any requirement to mortgage real property that is acquired after the date hereof pursuant
to this Section 5.12 shall be limited to real property owned in fee by a Loan Party that (i) has a
fair market value equal to or exceeding $10,000,000, (ii) is not subject to a Lien permitted under
Section 6.02(c) or (n) (for so long as such Lien exists), and (iii) the Borrower does not intend to
sell within six months of the acquisition thereof pursuant to clause (x) of Section 6.05(b). No
appraisals, environmental reports or surveys shall be required to be obtained in connection with
any mortgage of real property pursuant to this Section 5.12. The Borrower agrees to provide such
evidence as the Collateral Agent shall reasonably request as to the perfection and priority status
of each such security interest and Lien.




     SECTION 5.13. Interest Rate Protection. No later than nine months after the Closing Date, the
Borrower shall enter into, and for a minimum of three years and six months from the Closing Date
maintain, Hedging Agreements that result in at least 50% of the aggregate principal amount of its
funded long-term Indebtedness being effectively subject to a fixed or maximum interest rate
reasonably acceptable to the Administrative Agent.



     SECTION 5.14. Proceeds of Certain Dispositions. If, as a result of the receipt of any cash
proceeds by Parent, the Borrower or any Subsidiary in connection with any sale, transfer, lease or
other disposition of any asset the Borrower would be required by the terms of the Senior Note
Indenture to make an offer to purchase any Senior Notes, then, prior to the first day on which the
Borrower would be required to commence such an offer to purchase, (i) prepay Loans in accordance
with Section 2.12 or 2.13 or (ii) acquire assets in a manner that is permitted hereby, in each case
in a manner that will eliminate any such requirement to make such an offer to purchase.












 





 83




     SECTION 5.15. Operation of Facilities. Use commercially reasonable efforts to operate, and
cause the Subsidiaries to operate, the Facilities owned, leased or operated by Parent, the Borrower
or any of the Subsidiaries now or in the future in a manner believed by the Borrower to be
consistent with prevailing health care industry standards in the locations where the Facilities
exist from time to time, except to the extent failure to do so would not have a Material Adverse
Effect.



ARTICLE VI




Negative Covenants




     Each of Parent and the Borrower covenants and agrees with each Lender that, so long as this
Agreement shall remain in effect and until the Commitments have been terminated and the principal
of and interest on each Loan, all Fees and all other expenses or amounts payable under any Loan
Document have been paid in full and all Letters of Credit have been cancelled or have expired and
all amounts drawn thereunder have been reimbursed in full or other arrangements acceptable to the
Issuing Bank and the Administrative Agent have been made with respect thereto, unless the Required
Lenders shall otherwise consent in writing, neither Parent nor the Borrower will, nor will they
cause or permit any of the Subsidiaries to:



     SECTION 6.01. Indebtedness. Incur, create, assume or permit to exist any Indebtedness,
except:




     (a) Indebtedness existing on the date hereof and set forth in Schedule 6.01 and any
extensions, renewals, refinancings or replacements of such Indebtedness to the extent the
principal amount of such Indebtedness is not increased (except by an amount equal to the
unpaid accrued interest and premium thereon plus other reasonable amounts paid and fees and
expenses incurred in connection with such extension, renewal, refinancing or replacement),
neither the final maturity nor the weighted average life to maturity of such Indebtedness
is decreased, such Indebtedness, if subordinated to the Obligations, remains so
subordinated on terms no less favorable to the Lenders, and the obligors thereof, if not
the original obligors in respect of such Indebtedness, are Loan Parties;




     (b) Indebtedness created hereunder and under the other Loan Documents;




     (c) intercompany Indebtedness of Parent, the Borrower and the Subsidiaries to the
extent permitted by Section 6.04(c);




     (d) Indebtedness of the Borrower or any Subsidiary incurred to finance the
acquisition, construction or improvement of any fixed or capital assets, and extensions,
renewals, refinancings and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof (except by an amount equal to the unpaid accrued
interest and premium thereon plus other reasonable amounts paid and fees and expenses
incurred in connection with such extension, renewal, refinancing or replacement); provided
that (i) such









 



 


 84



Indebtedness is incurred prior to or within 270 days after such acquisition or the
completion of such construction or improvement and (ii) the aggregate principal amount of
Indebtedness permitted by this Section 6.01(d), when combined with the aggregate principal
amount of all Capital Lease Obligations and Synthetic Lease Obligations incurred pursuant
to Section 6.01(e), shall not exceed $200,000,000 at any time outstanding;




     (e) Capital Lease Obligations and Synthetic Lease Obligations in an aggregate
principal amount, when combined with the aggregate principal amount of all Indebtedness
incurred pursuant to Section 6.01(d), not in excess of $200,000,000 at any time
outstanding;



     (f) Indebtedness (including Capital Lease Obligations) of any Subsidiary secured by
one or more Facilities owned or leased by such Subsidiary, and extensions, renewals,
refinancings and replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof (except by an amount equal to the unpaid accrued interest and
premium thereon plus other reasonable amounts paid and fees and expenses incurred in
connection with such extension, renewal, refinancing or replacement); provided that (i)
when incurred, such Indebtedness shall not exceed the fair market value of the Facilities
securing the same and (ii) the aggregate principal amount of all such Indebtedness
incurred pursuant to this Section 6.01(f) shall not exceed $250,000,000 at any time
outstanding (such Indebtedness meeting the criteria of this Section 6.01(f) being referred
to herein as “Permitted Real Estate Indebtedness”);



     (g) Indebtedness under performance bonds, bid bonds, appeal bonds, surety bonds and
completion guarantees and similar obligations, or with respect to workers’ compensation
claims, in each case incurred in the ordinary course of business, including those incurred
to secure health, safety and environmental obligations in the ordinary course of business;



     (h) Indebtedness incurred pursuant to the Senior Note Indenture and any extensions,
renewals, refinancings or replacements of such Indebtedness to the extent the principal
amount of such Indebtedness is not increased (other than to the extent of any premiums,
interest or costs and expenses incurred in connection therewith), neither the final
maturity nor the weighted average life to maturity of such Indebtedness is decreased, and
the obligors thereof, if not the original obligors in respect of such Indebtedness, are
Loan Parties;



(i) Indebtedness in respect of Hedging Agreements permitted by Section 6.04(g);




(j) Cash Management Obligations;




     (k) Indebtedness incurred by Foreign Subsidiaries in an aggregate principal amount not
exceeding $75,000,000 at any time outstanding;









 



85


     (l) Indebtedness pursuant to any Permitted Receivables Transaction incurred in
accordance with Section 6.05(b);



     (m) Indebtedness incurred to finance, or assumed in connection with, one or more
Permitted Acquisitions and any extensions, renewals, refinancings or replacements of such
Indebtedness to the extent the principal amount of such Indebtedness is not increased
(except by an amount equal to the unpaid accrued interest and premium thereon plus other
reasonable amounts paid and fees and expenses incurred in connection with such extension,
renewal, refinancing or replacement), neither the final maturity nor the weighted average
life to maturity of such Indebtedness is decreased, such Indebtedness, if subordinated to
the Obligations, remains so subordinated on terms no less favorable to the Lenders, and the
obligors thereof, if not the original obligors in respect of such Indebtedness, are Loan
Parties, so long as both immediately prior and after giving effect thereto, no Default
shall exist or result therefrom, provided that no Indebtedness may be incurred under this
Section 6.01(m) if as a result thereof the aggregate principal amount of Indebtedness
incurred and outstanding under this Section 6.01(m) would exceed $500,000,000 unless (x)
the Leverage Ratio Condition would be satisfied and (y) the Liquidity Condition would be
satisfied;



     (n) Indebtedness owed to a seller in a Permitted Acquisition or a Permitted Joint
Venture or to a buyer in a disposition permitted under Section 6.05 that (i) relates to
post-closing adjustments with respect to accounts receivable, accounts payable, net worth
and/or similar items or (ii) relates to indemnities granted to the seller or buyer in such
transactions;



(o) Permitted Additional Debt;




     (p) Indebtedness in the nature of letters of credit (other than Letters of Credit
issued pursuant to this Agreement) issued for the account of Parent, the Borrower or any
Subsidiary (and related reimbursement obligations) not to exceed an aggregate face amount
of $30,000,000;



     (q) without duplication of any other Indebtedness, non-cash accruals of interest,
accretion or amortization of original issue discount and/or pay-in-kind interest on
Indebtedness otherwise permitted hereunder;



     (r) from and after the Revolving Credit Termination Date, Indebtedness to finance the
general needs of the Borrower and the Subsidiaries incurred after the Revolving Credit
Termination Date in an aggregate principal amount not to exceed $750,000,000 at any time
outstanding, provided that the Borrower shall have (i) repaid all Revolving Loans and
Swingline Loans and reimbursed, if any, all L/C Disbursements and made arrangements
acceptable to the Issuing Bank and the Administrative Agent with respect to any outstanding
Letters of Credit and (ii) paid all related fees and expenses, each in accordance with the
terms of this Agreement;









 



86



     (s) Indebtedness consisting of obligations to pay insurance premiums;




     (t) except as otherwise expressly provided herein, Guarantees by Parent, the Borrower
or the Subsidiaries of Indebtedness of Parent, the Borrower and the Subsidiaries permitted
to be incurred hereunder; and




     (u) other unsecured Indebtedness of the Borrower or the Subsidiaries in an aggregate
principal amount not exceeding $400,000,000 at any time outstanding.



     SECTION 6.02. Liens. Create, incur, assume or permit to exist any Lien on any property or
assets (including Equity Interests or other securities of any person, including the Borrower or any
Subsidiary) now owned or hereafter acquired by it or on any income or revenues or rights in respect
of any thereof, except:




     (a) Liens on property or assets of the Borrower and the Subsidiaries existing on the
date hereof and set forth in Schedule 6.02; provided that such Liens shall secure only
those obligations which they secure on the date hereof and extensions, renewals and
replacements thereof permitted hereunder;




     (b) any Lien created under the Loan Documents;




     (c) any Lien existing on any property or asset prior to the acquisition thereof by the
Borrower or any Subsidiary or existing on any property or assets of any person that becomes
a Subsidiary after the date hereof prior to the time such person becomes a Subsidiary, as
the case may be; provided that (i) such Lien is not created in contemplation of or in
connection with such acquisition or such person becoming a Subsidiary, (ii) such Lien does
not apply to any other property or assets of Parent, the Borrower or any Subsidiary (other
than affixed or incorporated into the property covered by such Lien) and (iii) such Lien
secures only those obligations which it secures on the date of such acquisition or the date
such person becomes a Subsidiary, as the case may be, and any extensions, renewals,
refinancings or replacements of such obligations;




     (d) Liens, assessments or governmental charges or claims for taxes not yet delinquent
or which are not required to be paid pursuant to Section 5.03;




     (e) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like
Liens arising in the ordinary course of business and securing obligations that are not
delinquent or which are not required to be paid under Section 5.03;




     (f) Liens incurred and pledges and deposits made in the ordinary course of business in
connection with any self-retention or self-insurance, or with respect to workmen’s
compensation, unemployment insurance, general liability, medical malpractice, professional
liability or property insurance and other social security laws or regulations;




     (g) deposits to secure the performance of bids, trade contracts (other than for
Indebtedness), leases (other than Capital Lease Obligations), statutory









 



87

obligations, surety and appeal bonds, government contracts, performance bonds and
other obligations of a like nature incurred in the ordinary course of business;




     (h) zoning restrictions, easements, rights-of-way, rights of first refusal,
restrictions on use of real property, minor defects or irregularities in title and other
similar charges or encumbrances which, in the aggregate, do not interfere in any material
respect with the business of the Borrower and the Subsidiaries, taken as a whole;



     (i) zoning, building codes and other land use laws, regulations and ordinances
regulating the use or occupancy of real property or the activities conducted thereon which
are imposed by any Governmental Authority having jurisdiction over such real property which
are not violated by the current use or occupancy of such real property or the operation of
the business of the Borrower or any of the Subsidiaries or any violation of which would not
have a Material Adverse Effect;



     (j) ground leases in respect of real property on which Facilities owned or leased by
the Borrower or any of the Subsidiaries are located;



     (k) any interest or title of a lessor or secured by a lessor’s interest under any
lease permitted hereunder;



     (l) leases or subleases granted to others not interfering in any material respect with
the business of the Borrower and the Subsidiaries, taken as a whole;



     (m) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods;



     (n) Liens securing Indebtedness to finance the acquisition, construction or
improvement of fixed or capital assets; provided that (i) such security interests secure
Indebtedness permitted by Section 6.01, (ii) such security interests are incurred, and the
Indebtedness secured thereby is created, within 270 days after such acquisition,
construction or improvement, and (iii) such security interests do not apply to any other
property or assets of the Borrower or any Subsidiary, except for accessions to the property
financed with the proceeds of such Indebtedness and the proceeds and the products thereof;
provided that individual financings of equipment provided by one lender may be
cross-collateralized to other financings of equipment provided by such lender secured by a
Lien permissibly incurred pursuant to this Section 6.02(n);



     (o) Liens arising out of judgments or awards that do not constitute an Event of
Default under paragraph (i) of Article VII;



     (p) Liens pursuant to Permitted Receivables Transactions incurred in accordance with
Section 6.05(b), including Liens on the assets of any Securitization Subsidiary created
pursuant to any such Permitted Receivables









 



88

Transaction and Liens incurred by the Borrower and the Subsidiaries on Receivables to
secure obligations owing by them in respect of any such Permitted Receivables Transaction,
provided that any Receivables not transferred to a Securitization Subsidiary in connection
with such Permitted Receivables Transaction to the extent constituting intercompany
indebtedness required to be pledged pursuant to the Guarantee and Collateral Agreement
shall be and remain subject to the perfected first priority Lien and security interest
granted to the Collateral Agent in favor of the Lenders in accordance with the Guarantee
and Collateral Agreement;




     (q) Liens on assets of Foreign Subsidiaries; provided that (i) such Liens do not
extend to, or encumber, assets that constitute Collateral or the Equity Interests of the
Borrower or any of the Domestic Subsidiaries, and (ii) such Liens extending to the assets
of any Foreign Subsidiary secure only Indebtedness incurred by such Foreign Subsidiary
pursuant to Section 6.01(k);



     (r) Liens (i) of a collecting bank arising under Section 4-210 of the Uniform
Commercial Code on items in the course of collection, (ii) attaching to commodity trading
accounts or other commodities brokerage accounts incurred in the ordinary course of
business; and (iii) in favor of a banking institution arising as a matter of law
encumbering deposits (including the right of set off);



     (s) Liens on one or more Facilities owned or leased by any Subsidiary to secure
Permitted Real Estate Indebtedness incurred by such Subsidiary pursuant to Section 6.01(f);



     (t) Liens that are contractual rights of set-off (i) relating to the establishment of
depository relations with banks not given in connection with the issuance of Indebtedness,
(ii) relating to pooled deposit or sweep accounts of Parent, the Borrower or any Subsidiary
to permit satisfaction of overdraft or similar obligations incurred in the ordinary course
of business of Parent, the Borrower and the Subsidiaries or (iii) relating to purchase
orders and other agreements entered into with customers of Parent, the Borrower or any
Subsidiary in the ordinary course of business;



     (u) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for the sale or purchase of goods entered into by the Borrower or any of the
Subsidiaries in the ordinary course of business permitted hereunder;



     (v) Liens solely on any cash earnest money deposits made by Parent, the Borrower or
any of the Subsidiaries in connection with any letter of intent or purchase agreement
permitted hereunder;



     (w) Liens securing insurance premiums financing arrangements, provided that such Liens
are limited to the applicable unearned insurance premiums; and









 



89



     (x) other Liens that do not, individually or in the aggregate, secure obligations (or
encumber property with a fair market value) in excess of $150,000,000 at any one time.



     SECTION 6.03. Sale and Lease-Back Transactions. Enter into any arrangement, directly or
indirectly, with any person whereby it shall sell or transfer any property, real or personal, used
or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease
such property or other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred unless (a) the sale or transfer of such property
is permitted by Section 6.05 and (b) any Capital Lease Obligations, Synthetic Lease Obligations,
Permitted Real Estate Indebtedness or Liens arising in connection therewith are permitted by
Sections 6.01 and 6.02, as the case may be.



     SECTION 6.04. Investments, Loans and Advances. Purchase, hold or acquire any Equity
Interests, evidences of indebtedness or other securities of, make or permit to exist any loans or
advances to, or make or permit to exist any investment or any other interest in, any other person,
except:




     (a) (i) investments by Parent, the Borrower and the Subsidiaries existing on the date
hereof in the Borrower and the Subsidiaries, (ii) additional investments by Parent, the
Borrower and the Subsidiaries in the Borrower and the Subsidiaries and (iii) additional
investments by Parent, the Borrower and the Subsidiaries in Permitted Joint Ventures
(subject to the limitations on such investments referred to in the definition of the term
“Permitted Joint Ventures”); provided that (x) any Equity Interests held by a Loan Party
shall be pledged to the extent required by Section 5.12 and the Guarantee and Collateral
Agreement and (y) any such investments made pursuant to clause (ii) above made by a Loan
Party to a Subsidiary that is not a Loan Party, or made by Parent, the Borrower or any
Subsidiary to an Unrestricted Subsidiary, may only be made if (A) no Default or Event of
Default shall have occurred and be continuing and (B) the aggregate amount of all such
investments made by Loan Parties to Subsidiaries that are not Loan Parties, or by Parent,
the Borrower or any Subsidiary to an Unrestricted Subsidiary and outstanding at any time
(without regard to any write-downs or write-offs thereof, and valued net in the case of
intercompany loans) shall not exceed $500,000,000 plus the amount of dividends,
distributions and other returns of capital actually received in cash by any Loan Party with
respect to any such investments; provided further, that, prior to the value of all such
investments outstanding at any time exceeding $300,000,000 at any time outstanding, the
Leverage Ratio Condition and the Liquidity Condition would each be satisfied; for purposes
of the foregoing, if the Borrower designates a Subsidiary as an Unrestricted Subsidiary in
accordance with the definition of the term “Unrestricted Subsidiary”, the Borrower will be
deemed to have made an investment at that time in the resulting Unrestricted Subsidiary in
an aggregate amount equal to the fair market value of the net assets of such Unrestricted
Subsidiary;









 



90


     (b) Permitted Investments;



     (c) (i) loans or advances in respect of intercompany accounts attributable to the
operation of the Borrower’s cash management system (including with respect to intercompany
self-insurance arrangements), (ii) loans or advances made by the Borrower or any of the
Subsidiaries to a Permitted Syndication Subsidiary for working capital needs evidenced by a
promissory note that is pledged to the Collateral Agent so long as such loans or advances
constitute Indebtedness of the primary obligor that is not subordinate to any other
Indebtedness of such obligor, and (iii) loans or advances made by Parent to the Borrower or
any Subsidiary, the Borrower to Parent or any Subsidiary and by any Subsidiary to Parent,
the Borrower or any other Subsidiary; provided, however, that (x) any such loans and
advances made by a Loan Party that are evidenced by a promissory note shall be pledged to
the Collateral Agent for the ratable benefit of the Secured Parties pursuant to the
Guarantee and Collateral Agreement (and any such loans and advances made by a Loan Party to
a Subsidiary that is not a Loan Party shall be so evidenced and pledged) and (y) any such
loan or advance made by a Loan Party to a Subsidiary that is not a Loan Party or by Parent,
the Borrower or any Subsidiary to an Unrestricted Subsidiary shall be subject to the
requirements and limitations described in clause (y) of the proviso to Section 6.04(a),
except to the extent that (1) such loan or advance shall be secured by a fully perfected,
first-priority Lien on substantially all of the assets of the recipient of such loan or
advance and its subsidiaries (in each case of a type that would have constituted Collateral
if such recipient were party to the applicable Security Documents) and (2) such Lien is
collaterally assigned to the Collateral Agent for the benefit of the Secured Parties, all
on terms reasonably satisfactory to the Collateral Agent;



     (d) investments received in connection with the bankruptcy or reorganization of, or
settlement of delinquent accounts and disputes with, customers and suppliers, in each case
in the ordinary course of business;



     (e) the Borrower and the Subsidiaries may make loans and advances in the ordinary
course of business to their respective employees, officers, consultants and agents
(including payroll advances, travel and entertainment advances and relocation loans in the
ordinary course of business to employees, officers and agents of the Borrower or any such
Subsidiary (or to any physician or other health care professional associated with or
agreeing to become associated with Parent, the Borrower or any Subsidiary or any Hospital
owned or leased or operated by the Borrower or any Subsidiary (“Health Care Associates”));



     (f) Guarantees to third parties made in the ordinary course of business in connection
with the relocation of employees or agents of Health Care Associates of the Borrower or any
of the Subsidiaries;



     (g) the Borrower and the Subsidiaries may enter into Hedging Agreements that (i) are
required by Section 5.13 or (ii) are not speculative in nature;









 



91


     (h) the Borrower or any Subsidiary may acquire (including by any lease that contains
upfront payments and/or buyout options) all or substantially all the assets of a person or
line of business of such person, or directly acquire and beneficially own (and retain the
right to vote) more than 50% of the aggregate ordinary voting power and aggregate equity
value represented by the outstanding capital stock or other Equity Interests of any
acquired or newly formed corporation or other entity that acquires or leases such person,
division or line of business (referred to herein as the “Acquired Entity”); provided that
(i) such acquisition was not preceded by an unsolicited tender offer for such Equity
Interests by, or proxy contest initiated by, Parent, the Borrower or any Subsidiary; (ii)
the Acquired Entity shall be in a similar, related, incidental or complementary line of
business as that of the Borrower and the Subsidiaries as conducted during the current and
most recent calendar year; (iii) at the time of such transaction (A) both before and after
giving effect thereto, no Default or Event of Default shall have occurred and be
continuing, (B) if the total consideration paid in connection with such acquisition and any
other acquisitions pursuant to this Section 6.04(h) (including any Indebtedness of the
Acquired Entity that is assumed by the Borrower or any Subsidiary following such
acquisition and any payments following such acquisition pursuant to earn-out provisions or
similar obligations) shall exceed $500,000,000 in the aggregate (excluding the total
consideration paid in respect of Permitted Acquisitions listed on Schedule 6.04(h) and
consideration consisting of, or funded with the proceeds of, Qualified Capital Stock), then
(1) the Leverage Ratio Condition would be satisfied and (2) the Liquidity Condition would
be satisfied, (C) the Borrower shall have delivered a certificate of a Financial Officer,
certifying as to the foregoing and containing reasonably detailed calculations in support
thereof, in form and substance reasonably satisfactory to the Administrative Agent, (D) the
Borrower shall comply, and shall cause the Acquired Entity to comply, with the applicable
provisions of Section 5.12 and the Security Documents, and (E) the aggregate consideration
paid in connection with all such acquisitions of Acquired Entities that do not become Loan
Parties (or, in the case of an acquisition of assets, are not directly acquired by Loan
Parties), shall not exceed $300,000,000 (any acquisition of an Acquired Entity meeting all
the applicable criteria of this Section 6.04(h) being referred to herein as a “Permitted
Acquisition”);



     (i) Permitted Joint Ventures;



     (j) investments in a Permitted Syndication Subsidiary in connection with a Permitted
Syndication Transaction made pursuant to Section 6.05(b);



     (k) investments in any Securitization Subsidiary or other person as required pursuant
to the terms and conditions of any Permitted Receivables Transaction made pursuant to
Section 6.05(b);



     (l) the Borrower or any of the Subsidiaries may acquire and hold Receivables owing to
it or Parent, if created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms;









 



92


     (m) investments to the extent that payment for such investments is made with issuances
of or the cash proceeds from the issuance of Equity Interests of Parent;



     (n) extensions of trade credit and purchases of equipment and inventory in the
ordinary course of business;



     (o) loans and advances to Parent in lieu of, and not in excess of the amount of,
dividends to the extent permitted to be made to Parent in accordance with Section 6.06;



     (p) investments in the ordinary course of business consisting of endorsements for
collection or deposit and customary trade arrangements with customers consistent with past
practices;



     (q) investments in the Fulton Bonds;



     (r) investments by Parent, the Borrower and the Subsidiaries in any Captive Insurance
Subsidiary in an aggregate amount not to exceed 150% of the minimum amount of capital
required under the laws of the jurisdiction in which such Captive Insurance Subsidiary is
formed (plus any excess capital generated as a result of any such prior investment that
would result in an unfavorable tax or reimbursement impact if distributed), and other
investments in any Captive Insurance Subsidiary to cover reasonable general corporate and
overhead expenses of such Captive Insurance Subsidiary;



     (s) investments by any Captive Insurance Subsidiary;



     (t) investments in any Captive Insurance Subsidiary in connection with a push down by
the Borrower of insurance reserves;



     (u) investments held by a person (including by way of acquisition, merger or
consolidation) after the Closing Date otherwise in accordance with this Section 6.04 to the
extent that such investments were not made in contemplation of or in connection with such
acquisition, merger or consolidation and were in existence on the date of such acquisition,
merger or consolidation;



     (v) investments to acquire the Hospital leased by a Subsidiary on the date hereof in
Dublin, Ireland;



     (w) investments in minority interests existing on the date hereof; and



     (x) in addition to investments permitted by paragraphs (a) through (w) above,
additional investments, loans and advances by the Borrower and the Subsidiaries so long as
the aggregate outstanding amount of investments, loans and advances pursuant to this
paragraph (w) (determined without regard to any write-downs or write-offs of such
investments, loans and advances) does not exceed $100,000,000 in the aggregate at any time.









 



93


     It is understood and agreed that, in the event that any investment is made by the Borrower or
any Subsidiary in any person through substantially concurrent interim transfers of any amount
through one or more other Subsidiaries, then such other substantially concurrent interim transfers
shall be disregarded for purposes of this Section 6.04.



     SECTION 6.05. Mergers, Consolidations, Sales of Assets and Acquisitions. (a) Merge into or
consolidate with any other person, or permit any other person to merge into or consolidate with it,
or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of
transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the
Borrower or less than all the Equity Interests of any Subsidiary (other than pursuant to any
Permitted Interest Transfer or transfers of Equity Interests of any Subsidiary to a Loan Party or
by a Subsidiary that is not a Subsidiary Guarantor to any Subsidiary), or purchase or otherwise
acquire (in one transaction or a series of transactions) all or substantially all of the assets of
any other person, except that (i) the Borrower and any Subsidiary may purchase and sell inventory
in the ordinary course of business and (ii) if at the time thereof and immediately after giving
effect thereto no Event of Default or Default shall have occurred and be continuing (x) any wholly
owned Subsidiary may merge into the Borrower in a transaction in which the Borrower is the
surviving corporation, (y) any Subsidiary may merge into or consolidate with any other Subsidiary
in a transaction in which the surviving entity is a Subsidiary (provided that (A) if any party to
any such transaction is a Loan Party, the surviving entity of such transaction shall be a Loan
Party and (B) to the extent any person other than the Borrower or a wholly owned Subsidiary
receives any consideration in connection therewith, then such transaction shall be considered as an
investment under the applicable paragraph of Section 6.04) and (z) the Borrower and the
Subsidiaries may make Permitted Acquisitions or any other investment, loan or advance permitted
pursuant to Section 6.04, and may enter into Permitted Joint Ventures.



     (b) Make any Asset Sale otherwise permitted under paragraph (a) above unless such Asset Sale
is:




     (i) for consideration that is at least equal to the fair market value of the assets
being sold, transferred, leased or disposed of; provided that (x) for any disposition of
assets with a fair market value of more than $50,000,000, at least 75% of such
consideration is cash and (y) the fair market value of all assets sold, transferred, leased
or disposed of pursuant to this clause (b)(i) shall not exceed $300,000,000 in any fiscal
year; provided further that, prior to the Incremental Asset Sale Termination Date, such
annual amount shall be increased by an aggregate amount not to exceed $750,000,000;




     (ii) a Receivables Transaction, provided that (x) the material terms and conditions
and the structure of such Receivables Transaction have been approved by the Administrative
Agent (such approval not to be unreasonably withheld or delayed), (y) any Liens granted in
connection with such Receivables Transaction shall comply with the terms of Section 6.02(p)
and (z) the aggregate Receivables Transaction Amount outstanding at any time in respect of
all Receivables









 



94



Transactions does not exceed $1,500,000,000 (any Receivables Transaction meeting all
the criteria of this Section 6.05(b)(ii) being referred to herein as a “Permitted
Receivables Transaction”);




     (iii) a Syndication Transaction, provided that the aggregate amount or value of the
consideration received by any Permitted Syndication Subsidiary and/or the Borrower and the
other Subsidiaries from third parties in connection with such Syndication Transaction (or
series of Syndication Transactions), except for the Syndication Transactions listed on
Schedule 6.05(b) (the “Syndication Proceeds”), when added to the aggregate Syndication
Proceeds from all previous Permitted Syndications on or after the Closing Date does not
exceed $200,000,000 (any Syndication Transaction meeting the criteria of this Section
6.05(b)(iii) being referred to herein as a “Permitted Syndication Transaction”);




     (iv) any Permitted Interest Transfer;




     (v) for the sale or other disposition consummated by the Borrower or any of the
Subsidiaries after the Closing Date of assets constituting a subsidiary or business unit or
units of the Borrower or the Subsidiaries (including a Facility) or the interest of the
Borrower or the Subsidiaries therein, provided that (i) such sale or other disposition
shall be made for fair value on an arm’s-length basis and (ii) the consideration received
for such sale or other disposition constitutes or would constitute a Permitted Acquisition,
Permitted Joint Venture or Permitted Syndication Subsidiary in accordance with the
definition thereof;




     (vi) the Borrower and the Subsidiaries may abandon, allow to lapse or otherwise
dispose of intangible property that the Borrower or such Subsidiary shall determine in its
reasonable business judgment is immaterial to the conduct of its business;




     (vii) forgiveness of any loans or advances made pursuant to Section 6.04(e);




     (viii) transfers of property subject to casualty or a condemnation proceeding;




     (ix) Restricted Payments permitted pursuant to Section 6.06; or




     (x) for the sale or other disposition of real estate and related assets (other than
Hospitals and Receivables) for the fair market value thereof in cash, in an aggregate
amount not to exceed $300,000,000.



     SECTION 6.06. Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to
declare or make, directly or indirectly, any Restricted Payment (including pursuant to any
Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so;
provided, however, that









 



95



     (i) any Subsidiary may declare and pay dividends or make other distributions ratably
to its equity holders;




     (ii) Parent may distribute the Equity Interests of a Spinout Subsidiary pursuant to a
Spinout Transaction;




     (iii) so long as no Event of Default or Default shall have occurred and be continuing
or would result therefrom, the Borrower may, or the Borrower may make distributions to
Parent so that Parent may, repurchase its Equity Interests owned by current or former
employees, directors or consultants of Parent, the Borrower or the Subsidiaries or make
payments to employees, directors or consultants of Parent, the Borrower or the Subsidiaries
in connection with the exercise of stock options, stock appreciation rights or similar
equity incentives or equity based incentives pursuant to management incentive plans in an
aggregate amount not to exceed $30,000,000 in any fiscal year plus (to the extent not
previously used) the net cash proceeds received by the Borrower in respect of any issuance
of Equity Interests to employees or directors after the Closing Date, including payments in
connection with the exercise of stock options;




     (iv) the Borrower may make Restricted Payments to Parent (x) to the extent necessary
to pay general corporate and overhead expenses incurred by Parent in the ordinary course of
business (including legal, accounting and similar expenses) and expenses necessary to
maintain its status as a publicly held corporation, and (y) in an amount necessary to pay
the Tax liabilities of Parent; provided, however, that all Restricted Payments made to
Parent pursuant to this clause (iii) are used by Parent for the purposes specified herein
within 20 days of the receipt thereof;




     (v) in addition to Restricted Payments permitted by clauses (i) through (iv) above, so
long as no Event of Default or Default shall have occurred and be continuing or would
result therefrom, the Borrower may make other Restricted Payments, and Parent may make
Restricted Payments, in an aggregate principal amount from the date hereof not to exceed
$400,000,000 less the amount of payments made pursuant to Section 6.09(c)(i); provided that
no such amounts in excess of $200,000,000 may be declared or paid unless the Borrower shall
have received in writing, prior to effecting any such declaration or payment, a Ratings
Agency Confirmation in respect of such Restricted Payment, and shall have furnished such
Ratings Agency Confirmation to the Administrative Agent; and




     (vi) the Borrower may net shares under employee benefits plans to settle option price
payments owed by employees and directors with respect thereto and to settle employees’ and
directors’ Federal, state and income tax liabilities (if any) related thereto.



     (b) Enter into, incur or permit to exist any agreement or other arrangement that prohibits,
restricts or imposes any condition upon (i) the ability of Parent, the Borrower or any Subsidiary
(other than any Permitted Joint Venture Subsidiary) to create, incur or









 



96

permit to exist any Lien upon any of its property or assets to secure the Obligations, or (ii)
the ability of any Subsidiary (other than any Permitted Joint Venture Subsidiary) to pay dividends
or other distributions with respect to any of its Equity Interests or to make or repay loans or
advances to the Borrower or any other Subsidiary or to Guarantee Indebtedness of the Borrower or
any other Subsidiary; provided (x) that the foregoing shall not apply to restrictions and
conditions (A) imposed by law or by any Loan Document or the Senior Note Indenture, (B) contained
in agreements relating to the sale of a Subsidiary or other assets pending such sale, provided such
restrictions and conditions apply only to the Subsidiary or assets that are to be sold and such
sale is permitted hereunder, (C) imposed on any Foreign Subsidiary by the terms of any Indebtedness
of such Foreign Subsidiary permitted to be incurred hereunder, (D) imposed pursuant to other
Indebtedness incurred pursuant to Section 6.01 with such encumbrances and restrictions that, taken
as a whole, are not more restrictive than the terms hereof, (E) contained in any agreement relating
to a Permitted Receivables Transaction if such restrictions or encumbrances apply only to the
relevant Permitted Receivables Transaction and are required pursuant to the terms and conditions of
such Permitted Receivables Transaction, (F) on Permitted Joint Ventures or other joint ventures
permitted under Section 6.04 and Permitted Syndication Subsidiaries imposed by the terms of the
agreements governing the same and (G) applicable to an Acquired Entity at the time such Acquired
Entity became a Subsidiary, so long as such restriction or encumbrance was not created in
contemplation of or in connection with such Acquired Entity becoming a Subsidiary and apply only to
such Acquired Entity; and (y) clause (i) of the foregoing shall not apply to restrictions or
conditions (A) that are customary provisions in leases and other contracts restricting the
assignment thereof and any right of first refusal and (B) imposed by any agreement relating to
secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to
the property or assets securing such Indebtedness.




     SECTION 6.07. Transactions with Affiliates. Except for (a) transactions between or among
Parent and its Subsidiaries or described on Schedule 6.07 and (b) the sale, transfer or other
disposition by Parent, the Borrower or any Subsidiary in compliance with Section 6.05(b)(i) of real
property owned by it to any Spinout Subsidiary pursuant to a Spinout Transaction, sell or transfer
any property or assets to, or purchase or acquire any property or assets from, or otherwise engage
in any other transactions with, any of its Affiliates, except (i) the Borrower or any Subsidiary
may engage in any of the foregoing transactions on terms and conditions not less favorable to the
Borrower or such Subsidiary than could be obtained on an arm’s-length basis from unrelated third
parties, (ii) the Borrower and the Subsidiaries may make (x) investments, loans and advances and
(y) Restricted Payments, permitted by Section 6.04 and Section 6.06, respectively, (iii) the
Borrower may engage in Receivables Transactions, (iv) any issuance of Equity Interests, or other
payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of,
employment arrangements, stock options and stock ownership plans, or indemnities provided on behalf
of employees or directors and approved by the board of directors or senior management of Parent and
(v) the payment of reasonable fees to directors of Parent, the Borrower and the Subsidiaries who
are not employees of Parent, the Borrower or the Subsidiaries.









 



97


     SECTION 6.08. Business of Parent, Borrower and Subsidiaries. Engage at any time in any
business or business activity other than the business currently conducted by it and business
activities reasonably similar, incidental or complementary thereto and reasonable extensions
thereof.



     SECTION 6.09. Other Indebtedness. (a) Permit any waiver, supplement, modification,
amendment, termination or release of the Senior Notes Indenture or any waiver, supplement,
modification or amendment of any indenture, instrument or agreement pursuant to which any
subordinated Material Indebtedness of Parent, the Borrower or any of the Subsidiaries is
outstanding if the effect of such waiver, supplement, modification, amendment, termination or
release would materially increase the obligations of the obligor or confer additional material
rights on the holder of such Indebtedness in a manner adverse to the Lenders.



     (b) Make any distribution, whether in cash, property, securities or a combination thereof,
other than regular scheduled payments of principal and interest as and when due (to the extent not
prohibited by applicable subordination provisions), in respect of, or pay, or commit to pay, or
directly or indirectly (including pursuant to any Synthetic Purchase Agreement) redeem, repurchase,
retire or otherwise acquire for consideration, or set apart any sum for the aforesaid purposes, any
Senior Notes or subordinated Indebtedness (other than intercompany Indebtedness); provided,
however, that so long as no Default or Event of Default shall have occurred and be continuing at
the date of such redemption, repurchase, retirement or other acquisition for consideration, or
would result therefrom, Parent, the Borrower or any Subsidiary may redeem, repurchase, retire or
otherwise acquire for consideration (i) Senior Notes and subordinated Indebtedness for an aggregate
price not in excess of (A) $400,000,000 less (B) the amount of Restricted Payments made pursuant to
clause (v) of Section 6.06(a), (ii) Senior Notes with the proceeds of (A) refinancing Indebtedness
otherwise permitted pursuant to Section 6.01(h) or (B) the issuance of Equity Interests, or (iii)
subordinated Indebtedness with the proceeds of (A) subordinated Indebtedness that is permitted
pursuant to Section 6.01 and is subordinated on terms not materially less advantageous to the
Lenders than those of the Indebtedness being redeemed, repurchased, retired or otherwise acquired
for consideration or (B) the issuance of Equity Interests.



     SECTION 6.10. Practice Guarantees. Enter into Practice Guarantees with a term of 30 months
or longer in an aggregate amount in excess of $150,000,000 in effect at any time with respect to
all such Practice Guarantees.



     SECTION 6.11. Capital Expenditures. Permit the aggregate amount of Capital Expenditures
(other than Replacement Capital Expenditures) made by Parent, the Borrower and the Subsidiaries in
any period set forth below to exceed the greater of (a) in the case of any fiscal year beginning on
or after January 1, 2008, 5.5% of consolidated net revenues of the Borrower and the Subsidiaries
for the immediately preceding fiscal year (as set forth in the financial statements delivered
pursuant to Section 5.04(a) with respect to such fiscal year) and (b) the amount set forth below
for such period (such greater amount, the “Permitted Capital Expenditure Amount”):









 



98


	 	 	 	 	 
	Period	 	Amount
	Closing Date through December 31, 2007
	 	$	475,000,000	 
	January 1, 2008 through December 31, 2008
	 	$	800,000,000	 
	January 1, 2009 through December 31, 2009
	 	$	800,000,000	 
	January 1, 2010 through December 31, 2010
	 	$	850,000,000	 
	January 1, 2011 through December 31, 2011
	 	$	925,000,000	 
	January 1, 2012 through December 31, 2012
	 	$	1,100,000,000	 
	January 1, 2013 through December 31, 2013
	 	$	1,100,000,000	 
	January 1, 2014 through Term Loan Maturity Date
	 	$	1,100,000,000	 






     In any year in which a Permitted Acquisition occurs, the Permitted Capital Expenditure Amount
in respect of such fiscal year shall be increased (but not decreased) by an amount equal to 5.5% of
the net revenues generated by the Acquired Entity acquired during the preceding fiscal year of such
Acquired Entity (pro rated based on the number of days remaining in such fiscal year). In
addition, to the extent any portion of the Permitted Capital Expenditure Amount for any fiscal year
(as the same may have been increased pursuant to the preceding sentence) is not fully expended
during such fiscal year, then 50% of the amount not so expended may be carried forward to and used
in succeeding fiscal years. In addition, for any fiscal year, the amount of Capital Expenditures
that would otherwise be permitted in such fiscal year pursuant to this Section 6.11 may be
increased by an amount not to exceed 50% of the Permitted Capital Expenditure Amount for the
immediately succeeding fiscal year (the “CapEx Pull-Forward Amount”). The actual CapEx
Pull-Forward Amount in respect of any such fiscal year shall reduce, on a dollar-for-dollar basis,
the amount of Capital Expenditures that would have been permitted to be made in the immediately
succeeding fiscal year. In addition, for any fiscal year, the amount of Capital Expenditures that
would otherwise be permitted in such fiscal year pursuant to this Section 6.11 may be increased by
an amount not to exceed $200,000,000 if, at the time of such expenditure, both before and after
giving pro forma effect thereto, (x) no Default or Event of Default shall have occurred and be
continuing and (y) the Leverage Ratio is less than 4.50 to 1.00.



     SECTION 6.12. Interest Coverage Ratio. Permit the Interest Coverage Ratio for any period of
four consecutive fiscal quarters, in each case taken as one accounting period, ending during any
period set forth below to be less than the ratio set forth opposite such period below:



	 	 	 	 	 
	Period	 	Ratio
	September 30, 2007 through September 30, 2009
	 	 	1.75 to 1.00	 
	October 1, 2009 through September 30, 2011
	 	 	2.00 to 1.00	 
	October 1, 2011 through September 30, 2012
	 	 	2.25 to 1.00	 
	Thereafter
	 	 	2.50 to 1.00	 












 



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     SECTION 6.13. Maximum Leverage Ratio. Permit the Leverage Ratio as of the last day of any
fiscal quarter ending during a period set forth below to be greater than the ratio set forth
opposite such period below:



	 	 	 	 	 
	Period	 	Ratio
	September 30, 2007 through March 31, 2009
	 	 	7.25 to 1.00	 
	April 1, 2009 through June 30, 2009
	 	 	7.00 to 1.00	 
	July 1, 2009 through September 30, 2009
	 	 	6.75 to 1.00	 
	October 1, 2009 through September 30, 2010
	 	 	6.50 to 1.00	 
	October 1, 2010 through September 30, 2011
	 	 	6.00 to 1.00	 
	October 1, 2011 through September 30, 2012
	 	 	5.50 to 1.00	 
	Thereafter
	 	 	5.00 to 1.00	 






     SECTION 6.14. Fiscal Year. With respect to Parent and the Borrower, change their fiscal
year-end to a date other than December 31.



ARTICLE VII




Events of Default




     In case of the happening of any of the following events (“Events of Default”):




     (a) any representation, warranty or statement made or deemed made by any Loan Party
herein or in any other Loan Document or any certificate delivered or required to be
delivered pursuant hereto or thereto shall prove to be untrue in any material respect on
the date as of which it was made or deemed made;




     (b) default shall be made in the payment of any principal of any Loan or the
reimbursement with respect to any L/C Disbursement when and as the same shall become due
and payable, whether at the due date thereof or at a date fixed for prepayment thereof or
by acceleration thereof or otherwise;




     (c) default shall be made in the payment of any interest on any Loan or any Fee or L/C
Disbursement or any other amount (other than an amount referred to in (b) above) due under
any Loan Document, when and as the same shall become due and payable, and such default
shall continue unremedied for a period of five Business Days;




     (d) default shall be made in the due observance or performance by Parent, the Borrower
or any Subsidiary of any covenant, condition or agreement contained in Section 5.01(a)
(with respect to Parent and the Borrower only), 5.05(a) or 5.08 or in Article VI;




     (e) default shall be made in the due observance or performance by Parent, the Borrower
or any Subsidiary of any covenant or agreement contained in any Loan Document (other than
those specified in (b), (c) or (d) above) and such









 



100

default shall continue unremedied for a period of 30 days after notice thereof from
the Administrative Agent or any Lender to the Borrower;




     (f) (i) Parent, the Borrower or any Subsidiary shall fail to pay any principal,
interest or other amount due in respect of any Material Indebtedness, when and as the same
shall become due and payable (after giving effect to any grace period) or (ii) any other
event or condition occurs that results in any Material Indebtedness becoming due prior to
its scheduled maturity or that enables or permits (with or without the giving of notice,
the lapse of time or both) the holder or holders of any Material Indebtedness or any
trustee or agent on its or their behalf to cause any Material Indebtedness to become due,
or to require the prepayment, repurchase, redemption or defeasance thereof, prior to its
scheduled maturity or that results in the termination or permits any counterparty to
terminate any Hedging Agreement the obligations under which constitute Material
Indebtedness; provided that this clause (ii) shall not apply to secured Indebtedness that
becomes due as a result of the voluntary sale or transfer of the property or assets
securing such Indebtedness;



     (g) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed in a court of competent jurisdiction seeking (i) relief in respect of Parent, the
Borrower or any Subsidiary (other than a Non-Significant Subsidiary within the meaning of
clause (a) of the definition thereof), or of a substantial part of the property or assets
of Parent, the Borrower or a Subsidiary (other than a Non-Significant Subsidiary within the
meaning of clause (a) of the definition thereof), under Title 11 of the United States Code,
as now constituted or hereafter amended, or any other Federal, state or foreign bankruptcy,
insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for Parent, the Borrower or any
Subsidiary (other than a Non-Significant Subsidiary within the meaning of clause (a) of the
definition thereof) or for a substantial part of the property or assets of Parent, the
Borrower or a Subsidiary or (iii) the winding-up or liquidation of Parent, the Borrower or
any Subsidiary (other than a Non-Significant Subsidiary within the meaning of clause (a) of
the definition thereof); and such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing shall be entered;



     (h) Parent, the Borrower or any Subsidiary (other than a Non-Significant Subsidiary
within the meaning of clause (a) of the definition thereof) shall (i) voluntarily commence
any proceeding or file any petition seeking relief under Title 11 of the United States
Code, as now constituted or hereafter amended, or any other Federal, state or foreign
bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of any
proceeding or the filing of any petition described in (g) above, (iii) apply for or consent
to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar
official for Parent, the Borrower or any Subsidiary (other than a Non-Significant
Subsidiary within the meaning of clause (a) of the definition thereof) or for a substantial
part of the property or assets of Parent, the Borrower or any Subsidiary (other than a Non-









 




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Significant Subsidiary within the meaning of clause (a) of the definition thereof),
(iv) file an answer admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of creditors, (vi)
become unable, admit in writing its inability or fail generally to pay its debts as they
become due or (vii) take any corporate action for the purpose of effecting any of the
foregoing;




     (i) one or more judgments shall be rendered against Parent, the Borrower, any
Subsidiary or any combination thereof (not paid or fully covered by insurance) and the same
shall remain undischarged for a period of 30 consecutive days during which execution shall
not be effectively stayed, or any action shall be legally taken by a judgment creditor to
levy upon assets or properties of Parent, the Borrower or any Subsidiary to enforce any
such judgment and such judgment is for the payment of money in an aggregate amount in
excess of $50,000,000;



     (j) an ERISA Event shall have occurred that, in the opinion of the Required Lenders,
when taken together with all other such ERISA Events, could reasonably be expected to
result in liability of the Borrower and its ERISA Affiliates in an aggregate amount
exceeding $50,000,000;



     (k) any Guarantee under the Guarantee and Collateral Agreement for any reason shall
cease to be in full force and effect (other than in accordance with its terms), or any
Guarantor shall deny in writing that it has any further liability under the Guarantee and
Collateral Agreement (other than as a result of the discharge of such Guarantor in
accordance with the terms of the Loan Documents);



     (l) any security interest purported to be created by any Security Document with
respect to any Collateral with an aggregate fair market value in excess of $50,000,000
shall cease to be, or shall be asserted by the Borrower or any other Loan Party not to be,
a valid, perfected (subject to the qualifications set forth in Section 3.19(a)), first
priority (except as otherwise expressly provided in this Agreement or such Security
Document) security interest in the securities, assets or properties covered thereby, except
to the extent that any such loss of perfection or priority results from the failure of the
Collateral Agent to maintain possession of certificates representing securities pledged
under the Guarantee and Collateral Agreement or any other act or omission by the Collateral
Agent and except to the extent that such loss is covered by a lender’s title insurance
policy and the related insurer does not deny that such loss is covered by such title
insurance policy;



     (m) the Indebtedness under any subordinated Indebtedness of Parent, the Borrower or
any Subsidiary constituting Material Indebtedness shall cease (or any Loan Party or an
Affiliate of any Loan Party shall so assert), for any reason, to be validly subordinated to
the Obligations as provided in the agreements evidencing such subordinated Indebtedness; or




     (n) there shall have occurred a Change in Control;









 



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then, and in every such event (other than an event with respect to Parent or the Borrower
described in paragraph (g) or (h) above), and at any time thereafter during the continuance of such
event, the Administrative Agent, at the request of the Required Lenders shall, by notice to the
Borrower, take either or both of the following actions, at the same or different times: (i)
terminate forthwith the Commitments and (ii) declare the Loans then outstanding to be forthwith due
and payable in whole or in part, whereupon the principal of the Loans so declared to be due and
payable, together with accrued interest thereon and any unpaid accrued Fees and all other
liabilities of the Borrower accrued hereunder and under any other Loan Document, shall become
forthwith due and payable, without presentment, demand, protest or any other notice of any kind,
all of which are hereby expressly waived by the Borrower, anything contained herein or in any other
Loan Document to the contrary notwithstanding; and in any event with respect to Parent or the
Borrower described in paragraph (g) or (h) above, the Commitments shall automatically terminate and
the principal of the Loans then outstanding, together with accrued interest thereon and any unpaid
accrued Fees and all other liabilities of the Borrower accrued hereunder and under any other Loan
Document, shall automatically become due and payable, without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly waived by the Borrower, anything
contained herein or in any other Loan Document to the contrary notwithstanding.



     Notwithstanding anything to the contrary contained in this Article VII, upon the request of
the Borrower made in writing to the Administrative Agent, in the event of any Event of Default
under any covenant set forth in Section 6.12 or 6.13 and until the expiration of the tenth Business
Day after the date on which financial statements are required to be delivered with respect to the
applicable fiscal quarter hereunder, Parent may issue Qualified Capital Stock and elect to treat
all or any portion of the net cash proceeds thereof as having increased Consolidated EBITDA with
respect to such applicable quarter solely for the purpose of determining actual and pro forma
compliance with Sections 6.12 and 6.13 at the end of such applicable quarter and applicable
subsequent periods and for purposes of determining whether the Leverage Ratio Condition has been
satisfied and not for any other purpose of this Agreement (including determining the Applicable
Percentage); provided that (a) such proceeds (i) are actually received by Parent and contributed to
the Borrower no later than ten days after the date on which financial statements are required to be
delivered with respect to such fiscal quarter hereunder and (ii) do not exceed the aggregate amount
necessary to cause Parent to be in compliance with the covenants under Sections 6.12 or 6.13 for
any applicable period and (b) in each period of four fiscal quarters, there shall be at least two
fiscal quarters in which no such right to cure permitted by this paragraph is utilized.



ARTICLE VIII




The Administrative Agent and the Collateral Agent




     Each of the Lenders and the Issuing Bank hereby irrevocably appoints the Administrative Agent
and the Collateral Agent (for purposes of this Article VIII, the Administrative Agent and the
Collateral Agent are referred to collectively as the “Agents”) its agent and authorizes the Agents
to take such actions on its behalf and to









 



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exercise such powers as are delegated to such Agent by the terms of the Loan Documents,
together with such actions and powers as are reasonably incidental thereto. Without limiting the
generality of the foregoing, the Agents are hereby expressly authorized to execute any and all
documents (including releases) with respect to the Collateral and the rights of the Secured Parties
with respect thereto, as contemplated by and in accordance with the provisions of this Agreement
and the Security Documents.




     The bank serving as the Administrative Agent and/or the Collateral Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not an Agent, and such bank and its Affiliates may accept deposits from,
lend money to and generally engage in any kind of business with Parent, the Borrower or any
Subsidiary or other Affiliate thereof as if it were not an Agent hereunder.



     Neither Agent shall have any duties or obligations except those expressly set forth in the
Loan Documents. Without limiting the generality of the foregoing, (a) neither Agent shall be
subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and
is continuing, (b) neither Agent shall have any duty to take any discretionary action or exercise
any discretionary powers, except discretionary rights and powers expressly contemplated hereby that
such Agent is instructed in writing to exercise by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as provided in Section
9.08), and (c) except as expressly set forth in the Loan Documents, neither Agent shall have any
duty to disclose, nor shall it be liable for the failure to disclose, any information relating to
Parent, the Borrower or any of the Subsidiaries that is communicated to or obtained by the bank
serving as Administrative Agent and/or Collateral Agent or any of its Affiliates in any capacity.
Neither Agent shall be liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.08) or in the absence of its own gross
negligence or willful misconduct. Neither Agent shall be deemed to have knowledge of any Default
unless and until written notice thereof is given to such Agent by Parent, the Borrower or a Lender,
and neither Agent shall be responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with any Loan Document, (ii) the
contents of any certificate, report or other document delivered thereunder or in connection
therewith, (iii) the performance or observance of any of the covenants, agreements or other terms
or conditions set forth in any Loan Document, (iv) the validity, enforceability, effectiveness or
genuineness of any Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document, other than
to confirm receipt of items expressly required to be delivered to such Agent.



     Each 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
believed by it to be genuine and to have been signed or sent by the proper person. Each Agent may
also 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









 



104

liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel
for the Borrower), 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.




     Each Agent may perform any and all its duties and exercise its rights and powers by or through
any one or more sub-agents appointed by it. Each Agent and any such sub-agent may perform any and
all its duties and exercise its rights and powers by or through their respective Related Parties.
The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the
Related Parties of each Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the Credit Facilities as well as activities as
Agent.



     Subject to the appointment and acceptance of a successor Agent as provided below, either Agent
may resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, with the consent (not to be unreasonably
withheld or delayed) of the Borrower, to appoint a successor; provided that during the existence
and continuation of an Event of Default pursuant to paragraph (b), (c), (g) or (h) of Article VII,
no consent of the Borrower shall be required. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent
gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders and the
Issuing Bank, appoint a successor Agent which shall be a bank with an office in New York, New York,
having a combined capital and surplus of at least $1,000,000,000, or an Affiliate of any such bank
and, so long as no Event of Default pursuant to paragraph (b), (c), (g) or (h) of Article VII shall
have occurred and be continuing, reasonably acceptable to the Borrower. Upon the acceptance of its
appointment as Agent hereunder by a successor, such successor shall succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to
a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After an Agent’s resignation hereunder, the provisions of
this Article and Section 9.05 shall continue in effect for the benefit of such retiring Agent, its
sub-agents and their respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while acting as Agent.



     Each Lender acknowledges that it has, independently and without reliance upon the Agents or
any other Lender and based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that
it will, independently and without reliance upon the Agents or any other Lender 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 or any other Loan
Document, any related agreement or any document furnished hereunder or thereunder.









 



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ARTICLE IX




Miscellaneous




     SECTION 9.01. Notices. 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 fax, as follows:



     (a) if to the Borrower or Parent, to it at Community Health Systems, Inc., 4000 Meridian
Boulevard, Franklin, Tennessee 37067, Attention of the Chief Financial Officer (Fax No. (615)
373-9704);



     (b) if to the Administrative Agent, to Credit Suisse, Eleven Madison Avenue, New York, NY
10010, Attention of Agency Group (Fax No. (212) 325-8304); and



     (c) if to a Lender, to it at its address (or fax number) set forth on Schedule 2.01 or in
the Assignment and Acceptance pursuant to which such Lender shall have become a party 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 delivered
by hand or overnight courier service or sent by fax 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 9.01 or in accordance with the
latest unrevoked direction from such party given in accordance with this Section 9.01. As agreed
to among Parent, the Borrower, the Administrative Agent and the applicable Lenders 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 9.02. Survival of Agreement. All covenants, agreements, representations and
warranties made by the Borrower or Parent herein and in the certificates or other instruments
prepared or delivered in connection with or pursuant to this Agreement or any other Loan Document
shall be considered to have been relied upon by the Lenders and the Issuing Bank and shall survive
the making by the Lenders of the Loans and the issuance of Letters of Credit by the Issuing Bank,
regardless of any investigation made by the Lenders or the Issuing Bank or on their behalf, and
shall continue in full force and effect as long as the principal of or any accrued interest on any
Loan or any Fee or any other amount payable under this Agreement or any other Loan Document is
outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have
not been terminated. The provisions of Sections 2.14, 2.16, 2.20, 9.05 and 9.18 shall remain
operative and in full force and effect regardless of the expiration of the term of this Agreement,
the consummation of the transactions contemplated hereby, the repayment of any of the Loans, the
expiration of the Commitments, the expiration of any Letter of Credit, the invalidity or
unenforceability of any term or provision of this Agreement or any other Loan Document, or any









 



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investigation made by or on behalf of the Administrative Agent, the Collateral Agent, any
Lender or the Issuing Bank.




     SECTION 9.03. Binding Effect. This Agreement shall become effective when it shall have been
executed by the Borrower, Parent and the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto.



     SECTION 9.04. Successors and Assigns. (a) Whenever in this Agreement any of the parties
hereto is referred to, such reference shall be deemed to include the permitted successors and
assigns of such party; and all covenants, promises and agreements by or on behalf of the Borrower,
Parent, the Administrative Agent, the Collateral Agent, the Issuing Bank or the Lenders that are
contained in this Agreement shall bind and inure to the benefit of their respective successors and
assigns.



     (b) Each Lender may assign to one or more Eligible Assignees all or a portion of its
interests, rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it), with notice to the Borrower and the prior
written consent of the Administrative Agent (not to be unreasonably withheld or delayed); provided,
however, that (i) in the case of an assignment of a Revolving Credit Commitment, each of the
Borrower, the Issuing Bank and the Swingline Lender must also give its prior written consent to
such assignment (which consent shall not be unreasonably withheld or delayed) (provided, that the
consent of the Borrower shall not be required to any such assignment made to another Lender or an
Affiliate of a Lender or after the occurrence and during the continuance of any Event of Default
referred to in paragraph (b), (c), (g) or (h) of Article VII), (ii) the amount of the Commitment or
Loans of the assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent)
shall be not less than (x) $1,000,000 (with respect to an assignment of Term Loans) and (y)
$5,000,000 (with respect to an assignment of Revolving Credit Commitments or Revolving Loans) (or,
in any case, if less, the entire remaining amount of such Lender’s Commitment or Loans of the
relevant Class), (iii) the parties to each such assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance via an electronic settlement system acceptable to
the Administrative Agent (or, if previously agreed with the Administrative Agent, manually), and
shall pay to the Administrative Agent a processing and recordation fee of $3,500 (which fee may be
waived or reduced in the sole discretion of the Administrative Agent), and (iv) the assignee, if it
shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire
and all applicable tax forms. Upon acceptance and recording pursuant to paragraph (e) of this
Section 9.04, from and after the effective date specified in each Assignment and Acceptance, (A)
the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such
Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement and (B)
the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment
and Acceptance, be released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease









 



107



to be a party hereto but shall continue to be entitled to the benefits of Sections 2.14, 2.16,
2.20 and 9.05, as well as to any Fees accrued for its account and not yet paid).

 



     (c) By executing and delivering an Assignment and Acceptance, the assigning Lender
thereunder and the assignee thereunder shall be deemed to confirm to and agree with each other and
the other parties hereto as follows: (i) such assigning Lender warrants that it is the legal and
beneficial owner of the interest being assigned thereby free and clear of any adverse claim and
that its Term Loan Commitment and Revolving Credit Commitment, and the outstanding balances of its
Term Loans and Revolving Loans, in each case without giving effect to assignments thereof which
have not become effective, are as set forth in such Assignment and Acceptance, (ii) except as set
forth in (i) above, such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations made in or in
connection with this Agreement, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, any other Loan Document or any other instrument or document
furnished pursuant hereto, or the financial condition of the Borrower or any Subsidiary or the
performance or observance by the Borrower or any Subsidiary of any of its obligations under this
Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto;
(iii) such assignee represents and warrants that it is an Eligible Assignee and is legally
authorized to enter into such Assignment and Acceptance; (iv) such assignee confirms that it has
received a copy of this Agreement, together with copies of the most recent financial statements
referred to in Section 3.05(a) or delivered pursuant to Section 5.04 and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (v) such assignee will independently and without reliance upon the
Administrative Agent, the Collateral Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (vi) such assignee appoints
and authorizes the Administrative Agent and the Collateral Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as are delegated to the Administrative
Agent and the Collateral Agent, respectively, by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance
with their terms all the obligations which by the terms of this Agreement are required to be
performed by it as a Lender.



     (d) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices in The City of New York a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses of the Lenders, and
the Commitment of, and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register shall be conclusive and the
Borrower, the Administrative Agent, the Issuing Bank, the Collateral Agent and the Lenders may
treat each person whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Borrower, the Issuing Bank, the










 



108


Collateral Agent and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.



     (e) Upon its receipt of, and consent to, a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee, an Administrative Questionnaire completed in respect of the
assignee (unless the assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) above, if applicable, and the written consent of the
Administrative Agent and, if required, the Borrower, the Swingline Lender and the Issuing Bank to
such assignment and any applicable tax forms, the Administrative Agent shall promptly (i) accept
such Assignment and Acceptance and (ii) record the information contained therein in the Register.
No assignment shall be effective unless it has been recorded in the Register as provided in this
paragraph (e).



     (f) Each Lender may without the consent of the Borrower, the Swingline Lender, the Issuing
Bank or the Administrative Agent sell participations to one or more banks or other persons in all
or a portion of its rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided, however, that (i) such Lender’s obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) the participating banks or
other persons shall be entitled to the benefit of the cost protection provisions contained in
Sections 2.14, 2.16 and 2.20 to the same extent as if they were Lenders (but, with respect to any
particular participant, to no greater extent than the Lender that sold the participation to such
participant) and (iv) the Borrower, the Administrative Agent, the Issuing Bank and the Lenders
shall continue to deal solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Agreement, and such Lender shall retain the sole right to enforce the
obligations of the Borrower relating to the Loans or L/C Disbursements and to approve any
amendment, modification or waiver of any provision of this Agreement (other than amendments,
modifications or waivers decreasing any fees payable to such participating bank or person hereunder
or the amount of principal of or the rate at which interest is payable on the Loans in which such
participating bank or person has an interest, extending any scheduled principal payment date or
date fixed for the payment of interest on the Loans in which such participating bank or person has
an interest, increasing or extending the Commitments in which such participating bank or person has
an interest or releasing any Subsidiary Guarantor (other than pursuant to the terms thereof or in
connection with the sale of such Subsidiary Guarantor in a transaction permitted by Section 6.05)
or all or substantially all of the Collateral).



     (g) Any Lender or participant may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 9.04, disclose to the assignee or
participant or proposed assignee or participant any information relating to the Borrower furnished
to such Lender by or on behalf of the Borrower; provided that, prior to any such disclosure of
information designated by the Borrower as confidential, each such assignee or participant or
proposed assignee or participant shall execute an agreement whereby such assignee or participant
shall agree (subject to









 



109



customary exceptions) to preserve the confidentiality of such confidential information on
terms no less restrictive than those applicable to the Lenders pursuant to Section 9.17.



     (h) Any Lender may at any time assign all or any portion of its rights under this Agreement
to secure extensions of credit to such Lender or in support of obligations owed by such Lender;
provided that no such assignment shall release a Lender from any of its obligations hereunder or
substitute any such assignee for such Lender as a party hereto.



     (i) Notwithstanding anything to the contrary contained herein, any Lender (a “Granting
Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing
from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option
to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be
obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein
shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise
such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall
be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC
hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such
Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be
liable for any indemnity or similar payment obligation under this Agreement (all liability for
which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the
date that is one year and one day after the payment in full of all outstanding commercial paper or
other senior indebtedness of any SPC, it will not institute against, or join any other person in
instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings under the laws of the United States or any State thereof. In addition,
notwithstanding anything to the contrary contained in this Section 9.04, any SPC may (i) with
notice to, but without the prior written consent of, the Borrower and the Administrative Agent and
without paying any processing fee therefor, assign all or a portion of its interests in any Loans
to the Granting Lender or to any financial institutions (consented to by the Borrower and
Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC
to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any
non-public information relating to its Loans to any investor, potential investor, rating agency,
commercial paper dealer, collateral manager, servicer or provider of any surety, guarantee or
credit or liquidity enhancement to such SPC.



     (j) Neither Parent nor the Borrower shall assign or delegate any of its rights or duties
hereunder without the prior written consent of the Administrative Agent, the Issuing Bank and each
Lender, and any attempted assignment without such consent shall be null and void.



     (k) In the event that any Revolving Credit Lender shall become a Defaulting Lender or S&P,
Moody’s and Thompson’s BankWatch (or InsuranceWatch Ratings Service, in the case of Lenders that
are insurance companies (or Best’s Insurance









 



110



Reports, if such insurance company is not rated by Insurance Watch Ratings Service)) shall,
after the date that any Lender becomes a Revolving Credit Lender, downgrade the long-term
certificate of deposit ratings of such Lender, and the resulting ratings shall be below BBB-, Baa3
and C (or BB, in the case of a Lender that is an insurance company (or B, in the case of an
insurance company not rated by InsuranceWatch Ratings Service)) (or, with respect to any Revolving
Credit Lender that is not rated by any such ratings service or provider, the Issuing Bank or the
Swingline Lender shall have reasonably determined that there has occurred a material adverse change
in the financial condition of any such Lender, or a material impairment of the ability of any such
Lender to perform its obligations hereunder, as compared to such condition or ability as of the
date that any such Lender became a Revolving Credit Lender) then the Issuing Bank and the Swingline
Lender shall have the right, but not the obligation, at its own expense, upon notice to such Lender
and the Administrative Agent, to replace such Lender with an assignee (in accordance with and
subject to the restrictions contained in paragraph (b) above), and such Lender hereby agrees to
transfer and assign without recourse (in accordance with and subject to the restrictions contained
in paragraph (b) above) all its interests, rights and obligations in respect of its Revolving
Credit Commitment to such assignee; provided, however, that (i) no such assignment shall conflict
with any law, rule and regulation or order of any Governmental Authority and (ii) the Issuing Bank,
the Swingline Lender or such assignee, as the case may be, shall pay to such Lender in immediately
available funds on the date of such assignment the principal of and interest accrued to the date of
payment on the Loans made by such Lender hereunder and all other amounts accrued for such Lender’s
account or owed to it hereunder.



     SECTION 9.05. Expenses; Indemnity. (a) The Borrower and Parent agree, jointly and
severally, to pay all reasonable out-of-pocket expenses incurred by the Administrative Agent, the
Collateral Agent, the Issuing Bank and the Swingline Lender in connection with the syndication of
the Credit Facilities and the preparation and administration of this Agreement and the other Loan
Documents or in connection with any amendments, modifications or waivers of the provisions hereof
or thereof (whether or not the transactions hereby or thereby contemplated shall be consummated) or
incurred by the Administrative Agent, the Collateral Agent or any Lender in connection with the
enforcement or protection of its rights in connection with this Agreement and the other Loan
Documents or in connection with the Loans made or Letters of Credit issued hereunder, including the
fees, charges and disbursements of Cravath, Swaine & Moore LLP, counsel for the Administrative
Agent and the Collateral Agent, and, in connection with any such enforcement or protection, the
fees, charges and disbursements of one counsel in each relevant jurisdiction (and any such
additional counsel, if necessary, as a result of actual or potential conflicts of interest) for the
Administrative Agent, the Collateral Agent and the Lenders.



     (b) The Borrower and Parent agree, jointly and severally, to indemnify the Administrative
Agent, the Collateral Agent, each Lender, the Issuing Bank and each Related Party of any of the
foregoing persons (each such person being called an “Indemnitee”) against, and to hold each
Indemnitee harmless from, any and all actual losses, claims, damages, liabilities, penalties and
related reasonable out-of-pocket expenses, including reasonable fees, charges and disbursements of
one counsel in each









 



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relevant jurisdiction (and any such additional counsel, if necessary, as a result of actual or
potential conflicts of interest) for all Indemnitees, incurred by or asserted against any
Indemnitee arising out of, in any way connected with, or as a result of (i) the execution or
delivery of this Agreement or any other Loan Document or any agreement or instrument contemplated
thereby, the performance by the parties thereto of their respective obligations thereunder or the
consummation of the Transactions and the other transactions contemplated thereby (including the
syndication of the Credit Facilities), (ii) the use of the proceeds of the Loans or issuance of
Letters of Credit, (iii) any claim, litigation, investigation or proceeding relating to any of the
foregoing, whether or not any Indemnitee is a party thereto (and regardless of whether such matter
is initiated by a third party or by the Borrower, any other Loan Party or any of their respective
Affiliates), or (iv) any actual or alleged presence or Release of Hazardous Materials on any
property currently or formerly owned or operated by the Borrower or any of the Subsidiaries, or any
Environmental Liability related in any way to the Borrower or the Subsidiaries; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities, penalties or related expenses are determined by a court of competent
jurisdiction by final judgment to have resulted primarily from the gross negligence or willful
misconduct of such Indemnitee.



     (c) To the extent that Parent and the Borrower fail to pay any amount required to be paid by
them to the Administrative Agent, the Collateral Agent, the Issuing Bank or the Swingline Lender
under paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent, the Collateral Agent, the Issuing Bank or the Swingline Lender, as the case
may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed
expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed
expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent, the Collateral Agent, the Issuing Bank or
the Swingline Lender in its capacity as such. For purposes hereof, a Lender’s “pro rata share”
shall be determined based upon its share of the sum of the Aggregate Revolving Credit Exposure,
outstanding Term Loans and unused Commitments at the time.



     (d) To the extent permitted by applicable law, neither Parent nor the Borrower nor any
Indemnitee shall assert, and each hereby waives, any claim against any Indemnitee or Parent and the
Borrower and each of their respective Affiliates, as applicable, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan or Letter of Credit or the use of the
proceeds thereof.



     (e) The provisions of this Section 9.05 shall remain operative and in full force and effect
regardless of the expiration of the term of this Agreement, the consummation of the transactions
contemplated hereby, the repayment of any of the Loans, the expiration of the Commitments, the
expiration of any Letter of Credit, the invalidity or unenforceability of any term or provision of
this Agreement or any other Loan Document, or any investigation made by or on behalf of the
Administrative Agent, the Collateral Agent, any Lender or the Issuing Bank. All amounts due under
this









 



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Section 9.05 shall be payable, within 30 days of written demand therefor with a reasonably
detailed summary of the amounts claimed.



     SECTION 9.06. Right of Setoff. If an Event of Default shall have occurred and be continuing,
each Lender or an Affiliate of such Lender is hereby authorized at any time and from time to time,
except to the extent prohibited by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other indebtedness at any time
owing by such Lender or an Affiliate of such Lender to or for the credit or the account of the
Borrower or Parent against any of and all the obligations of the Borrower or Parent now or
hereafter existing under this Agreement and other Loan Documents held by such Lender, provided that
at such time such obligations are due or payable. The rights of each Lender and Affiliates of such
Lender under this Section 9.06 are in addition to other rights and remedies (including other rights
of setoff) which such Lender or an Affiliate of such Lender may have.



     SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN
LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER
OF CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM CUSTOMS AND PRACTICE FOR
DOCUMENTARY CREDITS MOST RECENTLY PUBLISHED AND IN EFFECT, ON THE DATE SUCH LETTER OF CREDIT WAS
ISSUED, BY THE INTERNATIONAL CHAMBER OF COMMERCE (THE “UNIFORM CUSTOMS”) AND, AS TO MATTERS NOT
GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF THE STATE OF NEW YORK.



     SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the Administrative Agent, the
Collateral Agent, any Lender or the Issuing Bank in exercising any power or right hereunder or
under any other Loan Document 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 power. The rights and remedies of the Administrative Agent, the Collateral Agent, the Issuing
Bank and the Lenders hereunder and under the other Loan Documents 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 any other Loan Document or consent to any departure by the Borrower or any other
Loan Party therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) below, 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 the Borrower or Parent in any
case shall entitle the Borrower or Parent to any other or further notice or demand in similar or
other circumstances.



     (b) Neither this Agreement nor any provision hereof, may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the









 



113



Borrower, Parent and the Required Lenders; provided, however, that no such agreement shall (i)
decrease the principal amount of, or extend the maturity of or any scheduled principal payment date
or date for the payment of any interest on any Loan or any date for reimbursement of an L/C
Disbursement, or waive or excuse any such payment or any part thereof, or decrease the rate of
interest on any Loan or L/C Disbursement, without the prior written consent of each Lender directly
adversely affected thereby, (ii) increase or extend the Commitment or decrease or extend the date
for payment of any Fees of any Lender without the prior written consent of such Lender, (iii) amend
or modify the pro rata requirements of Section 2.17, the provisions of Section 9.04(j) or the
provisions of this Section or release all or substantially all of the value of the Subsidiary
Guarantors (other than pursuant to the terms hereof or thereof or in connection with the sale of
such Subsidiary Guarantor in a transaction permitted by Section 6.05) or all or substantially all
of the Collateral, without the prior written consent of each Lender, (iv) change the provisions of
any Loan Document in a manner that by its terms adversely affects the rights in respect of payments
due to Lenders holding Loans of one Class differently from the rights of Lenders holding Loans of
any other Class without the prior written consent of Lenders holding a majority in interest of the
outstanding Loans and unused Commitments of each adversely affected Class, (v) modify the
protections afforded to an SPC pursuant to the provisions of Section 9.04(i) without the written
consent of such SPC or (vi) reduce the percentage contained in the definition of the term “Required
Lenders” without the prior written consent of each Lender (it being understood that with the
consent of the Required Lenders, additional extensions of credit pursuant to this Agreement may be
included in the determination of the Required Lenders on substantially the same basis as the Term
Loan Commitments and Revolving Credit Commitments on the date hereof); provided further that no
such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative
Agent, the Collateral Agent, the Issuing Bank or the Swingline Lender hereunder or under any other
Loan Document without the prior written consent of the Administrative Agent, the Collateral Agent,
the Issuing Bank or the Swingline Lender.



     SECTION 9.09. Certain Releases of Guarantees and Security Interests. (a) Upon the closing
of any Asset Sale consisting of the sale of all of the Equity Interests of any Subsidiary Guarantor
permitted pursuant to Section 6.05, (i) the obligations of such Subsidiary Guarantor pursuant to
the Guarantee and Collateral Agreement shall automatically be discharged and released without any
further action by the Administrative Agent or any Lender, and (ii) the Administrative Agent and the
Lenders will, upon the request and at the sole expense of the Borrower, execute and deliver any
instrument or other document in a form acceptable to the Administrative Agent which may reasonably
be required to evidence such discharge and release, all without representation, recourse or
warranty.



     (b) Upon the closing of any Asset Sale consisting of the sale of Equity Interests of any
Subsidiary Guarantor or any other Subsidiary of the Borrower permitted pursuant to Section 6.05,
(i) the Collateral Agent shall release to the Borrower, without representation, warranty or
recourse, express or implied, the pledged Equity Interests of such Subsidiary Guarantor or other
Subsidiary, as applicable, held by it, (ii) the Collateral Agent shall release its security
interest in all Collateral of such Subsidiary, including any









 



114



Mortgages, and (iii) the Collateral Agent will, upon the request and at the sole expense of
the Borrower, execute and deliver any instrument or other document in a form acceptable to the
Collateral Agent which may reasonably be required to evidence such release.



     (c) Upon consummation by the Borrower or any Subsidiary of a Permitted Interest Transfer or
designation of an Unrestricted Subsidiary in accordance with the terms hereof, (i) the Collateral
Agent shall release to the Borrower, without representation, warranty or recourse, express or
implied, those Equity Interests of the Subsidiary that are the subject of such Permitted Interest
Transfer or designation in accordance with clauses (i) and (ii) of Section 9.09(b) and shall
release any pledged note theretofore pledged to the extent such note is being discharged in
connection with such Permitted Interest Transfer or designation, and (ii) if such Subsidiary whose
shares are the subject of such Permitted Interest Transfer or designation is a Subsidiary
Guarantor, the obligations of such Subsidiary under its Guarantee shall automatically be discharged
and released in accordance with clauses (i) and (ii) of Section 9.09(a) and any Lien granted by
such Subsidiary under the Loan Documents shall automatically be discharged and released.



     SECTION 9.10. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if
at any time the interest rate applicable to any Loan or participation in any L/C Disbursement,
together with all fees, charges and other amounts which are treated as interest on such Loan or
participation in such L/C Disbursement under applicable law (collectively the “Charges”), shall
exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken,
received or reserved by the Lender holding such Loan or participation in accordance with applicable
law, the rate of interest payable in respect of such Loan or participation hereunder, together with
all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent
lawful, the interest and Charges that would have been payable in respect of such Loan or
participation but were not payable as a result of the operation of this Section 9.10 shall be
cumulated and the interest and Charges payable to such Lender in respect of other Loans or
participations or periods shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.



     SECTION 9.11. Entire Agreement. This Agreement, the Fee Letter and the other Loan Documents
constitute the entire contract between the parties relative to the subject matter hereof. Any
other previous agreement among the parties with respect to the subject matter hereof is superseded
by this Agreement and the other Loan Documents. Nothing in this Agreement or in the other Loan
Documents, expressed or implied, is intended to confer upon any person (other than the parties
hereto and thereto, their respective successors and assigns permitted hereunder (including any
Affiliate of the Issuing Bank that issues any Letter of Credit) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent, the Collateral Agent,
the Issuing Bank and the Lenders) any rights, remedies, obligations or liabilities under or by
reason of this Agreement or the other Loan Documents.









 



115


     SECTION 9.12. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS,
AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.12.



     SECTION 9.13. Severability. In the event any one or more of the provisions contained in this
Agreement or in any other Loan Document should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions contained herein and
therein shall not in any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect
the validity of 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.



     SECTION 9.14. Counterparts. This Agreement may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall constitute an original but all of
which when taken together shall constitute a single contract, and shall become effective as
provided in Section 9.03. 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 9.15. Headings. Article and Section headings and the Table of Contents 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 9.16. Jurisdiction; Consent to Service of Process. (a) Each of Parent and the
Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the
exclusive jurisdiction of any New York State court or Federal court of the United States of America
sitting in New York City, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard and determined in
such New York State or, to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees









 



116



that a final judgment in any such action or proceeding shall be conclusive and may be enforced
in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in
this Agreement shall affect any right that the Administrative Agent, the Collateral Agent, the
Issuing Bank or any Lender may otherwise have to bring any action or proceeding relating to this
Agreement or the other Loan Documents against the Borrower, Parent or their respective properties
in the courts of any jurisdiction.



     (b) Each of Parent and the Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or relating to this
Agreement or the other Loan Documents in any New York State or Federal court. Each of the parties
hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court.



     (c) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.



     SECTION 9.17. Confidentiality. Each of the Administrative Agent, the Collateral Agent, the
Issuing Bank and the Lenders agrees to maintain the confidentiality of the Information (as defined
below), except that Information may be disclosed (a) to its and its Affiliates’ officers,
directors, employees and agents, including accountants, legal counsel and other advisors (it being
understood that the persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information confidential), (b) to the extent
requested by any regulatory authority or quasi-regulatory authority (such as the National
Association of Insurance Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) in connection with the exercise of any
remedies hereunder or under the other Loan Documents or any suit, action or proceeding relating to
the enforcement of its rights hereunder or thereunder, (e) subject to an agreement containing
provisions substantially the same as those of this Section 9.17, to (i) any actual or prospective
assignee of or participant in any of its rights or obligations under this Agreement and the other
Loan Documents or (ii) any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrower or any Subsidiary or any of their respective
obligations, (f) with the consent of the Borrower or (g) to the extent such Information becomes
publicly available other than as a result of a breach of this Section 9.17. For the purposes of
this Section, “Information” shall mean all information received from the Borrower or Parent and
related to the Borrower or Parent or their business, other than any such information that was
available to the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender on a
nonconfidential basis prior to its disclosure by the Borrower or Parent; provided that any Lender,
the Administrative Agent, the Collateral Agent or the Issuing Bank shall give Parent prior notice
of any disclosure pursuant to clause (c) to the extent permissible. Any person required to
maintain the confidentiality of Information as provided in this Section 9.17 shall be considered to
have complied with its obligation to do so if such









 



117



person has exercised the same degree of care to maintain the confidentiality of such
Information as such person would accord its own confidential information.



     SECTION 9.18. USA PATRIOT Act Notice. Each Lender and the Administrative Agent (for itself
and not on behalf of any Lender) hereby notifies Parent and the Borrower that pursuant to the
requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that
identifies Parent and the Borrower, which information includes the name and address of Parent and
the Borrower and other information that will allow such Lender or the Administrative Agent, as
applicable, to identify Parent and the Borrower in accordance with the USA PATRIOT Act.



     SECTION 9.19. Effect of Certain Inaccuracies. In the event that any financial statement or
certificate delivered pursuant to Section 5.04(a) or (b) and Section 5.04(c), respectively, is
inaccurate within one year after delivery thereof, and such inaccuracy, if corrected, would have
led to the application of a higher Applicable Percentage or a higher Commitment Fee for any period
(an “Applicable Period”) than the Applicable Percentage or Commitment Fee applied for such
Applicable Period, then (i) the Borrower shall promptly deliver to the Administrative Agent a
corrected financial statement and a corrected compliance certificate for such Applicable Period,
(ii) the Applicable Percentage and the Commitment Fee shall be determined based on the corrected
compliance certificate for such Applicable Period, and (iii) the Borrower shall promptly pay to the
Administrative Agent (for the accounts of the applicable Lenders during the Applicable Period or
their successors and assigns) the accrued additional interest or additional Commitment Fees (or
both) owing as a result of such increased Applicable Percentage or Commitment Fee for such
Applicable Period. This Section 9.19 shall not limit the rights of the Administrative Agent or the
Lenders with respect to Section 2.07 or Article VII.









 



118


     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.



	 	 	 	 	 
	 	CHS/COMMUNITY HEALTH SYSTEMS, INC.,

 	 
	 	by  	/s/ W. Larry Cash
 	 
	 	 	Name:  	W. Larry Cash 	 
	 	 	Title:  	Executive Vice President and Chief Financial Officer 
	 



	 	 	 	 	 
	 	COMMUNITY HEALTH SYSTEMS, INC.,

 	 
	 	by  	/s/ W. Larry Cash
 	 
	 	 	Name:  	W. Larry Cash 	 
	 	 	Title:  	Executive Vice President and Chief Financial Officer 









 



119

	 	 	 	 	 



	 	 	 	 	 
	 	CREDIT SUISSE, CAYMAN ISLANDS BRANCH, individually and as Administrative Agent, Collateral Agent, Swingline Lender and Issuing Bank,

 	 
	 	by  	/s/ James Moran
 	 
	 	 	Name:  	James Moran 	 
	 	 	Title:  	Managing Director 	 
	 



	 	 	 	 	 
	 	 	 
	 	by  	/s/ Nupur Kumar
 	 
	 	 	Name:  	Nupur Kumar 	 
	 	 	Title:  	Associate 	 










 



120

	 	 	 	 	 



	 	 	 	 	 
	 	SIGNATURE PAGE TO THE CHS/COMMUNITY HEALTH SYSTEMS, INC. CREDIT AGREEMENT DATED AS OF JULY 25, 2007





WACHOVIA BANK, NATIONAL ASSOCIATION

 	 
	 	by  	/s/ Jeanette A. Griffin
 	 
	 	 	Name:  	Jeanette A. Griffin 	 
	 	 	Title:  	Director 	 
	 



	 	 	 	 	 
	 	WACHOVIA BANK, NA

 	 
	 	by  	/s/ Chris McCoy
 	 
	 	 	Name:  	Chris McCoy 	 
	 	 	Title:  	Director 	 
	 



	 	 	 	 	 
	 	 	 
	 	by  	/s/ Chris McCoy
 	 
	 	 	Name:  	Chris McCoy 	 
	 	 	Title:  	Director 	 
	 



	 	 	 	 	 
	 	MERRILL LYNCH CAPITAL CORPORATION

 	 
	 	by  	/s/ Michael E. O’Brien
 	 
	 	 	Name:  	Michael E. O’Brien 	 
	 	 	Title:  	Vice President	 
	 













 



121
	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.

 	 
	 	by  	/s/ Dawn L. LeeLum
 	 
	 	 	Name:  	Dawn L. LeeLum 	 
	 	 	Title:  	Executive Director 	 
	 



	 	 	 	 	 
	 	CITICORP N.A. INC.

 	 
	 	by  	/s/ Mark. D. Floyd
 	 
	 	 	Name:  	Mark D. Floyd 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	GENERAL ELECTRIC CAPITAL CORPORATION

 	 
	 	by  	/s/ David R. Campbell
 	 
	 	 	Name:  	David R. Campbell 	 
	 	 	Title:  	Its Duly Authorized Signatory 	 










 



122

	 	 	 	 	 



	 	 	 	 	 
	 	SUNTRUST BANK

 	 
	 	by  	/s/ William D. Priester
 	 
	 	 	Name:  	William D. Priester 	 
	 	 	Title:  	Managing Director 	 
	 



	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION

 	 
	 	by  	/s/ Sukanya V. Raj
 	 
	 	 	Name:  	Sukanya V. Raj 	 
	 	 	Title:  	Vice President & Portfolio Manager 	 
	 



	 	 	 	 	 
	 	CALYON NEW YORK BRANCH

 	 
	 	by  	/s/ Thomas Randolph
 	 
	 	 	Name:  	Thomas Randolph 	 
	 	 	Title:  	Managing Director 	 
	 



	 	 	 	 	 
	 	 	 
	 	by  	/s/ Priya Vrat
 	 
	 	 	Name:  	Priya Vrat 	 
	 	 	Title:  	Director 	 










 



123

	 	 	 	 	 



	 	 	 	 	 
	 	BANK OF NOVA SCOTIA

 	 
	 	by  	/s/ M.D. Smith
 	 
	 	 	Name:  	M.D. Smith 	 
	 	 	Title:  	Director 	 
	 



	 	 	 	 	 
	 	UBS Loan Finance LLC

 	 
	 	by  	/s/ Richard L. Tavrow
 	 
	 	 	Name:  	Richard L. Tavrow 	 
	 	 	Title:  	Director Banking Products Services, US 	 
	 



	 	 	 	 	 
	 	 	 
	 	by  	/s/ David B. Julie
 	 
	 	 	Name:  	David B. Julie 	 
	 	 	Title:  	Associate Director Banking Products Services, US 	 
	 



	 	 	 	 	 
	 	NATIONAL CITY BANK

 	 
	 	by  	/s/ Deroy Scott
 	 
	 	 	Name:  	Deroy Scott 	 
	 	 	Title:  	Senior Vice President 	 










 



124

	 	 	 	 	 



	 	 	 	 	 
	 	FIFTH THIRD BANK, an Ohio Banking Corporation

 	 
	 	by  	/s/ Gregory Loeppily
 	 
	 	 	Name:  	Gregory Loeppily 	 
	 	 	Title:  	Assistant Vice President 	 
	 



	 	 	 	 	 
	 	BARCLAYS BANK PLC

 	 
	 	by  	/s/ Douglas Bernegger
 	 
	 	 	Name:  	Douglas Bernegger 	 
	 	 	Title:  	Director 	 
	 



	 	 	 	 	 
	 	La Salle Bank N.A.

 	 
	 	by  	/s/ Brian Robinson
 	 
	 	 	Name:  	Brian Robinson 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	SOVEREIGN BANK

 	 
	 	by  	/s/ Sarah J. Healy
 	 
	 	 	Name:  	Sarah J. Healy 	 
	 	 	Title:  	Senior Vice President 	 










 



125

	 	 	 	 	 



	 	 	 	 	 
	 	



WELLS FARGO FOOTHILL, INC

 	 
	 	by  	/s/ Richard Kritsch
 	 
	 	 	Name:  	Richard Kritsch 	 
	 	 	Title:  	Senior Vice President 	 
	 



	 	 	 	 	 
	 	MIZUHO CORPORATE BANK, LTD.

 	 
	 	by  	/s/ Hidekatsu Take
 	 
	 	 	Name:  	Hidekatsu Take 	 
	 	 	Title:  	Deputy General Manager 	 
	 



	 	 	 	 	 
	 	UNITED OVERSEAS BANK LIMITED, NEW YORK AGENCY

 	 
	 	by  	/s/ George Lim
 	 
	 	 	Name:  	George Lim 	 
	 	 	Title:  	SVP & GM 	 
	 



	 	 	 	 	 
	 	 	 
	 	by  	/s/ Mario Sheng
 	 
	 	 	Name:  	Mario Sheng 	 
	 	 	Title:  	AVP 	 










 



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BANK OF OKLAHOMA, N.A.

 	 
	 	by  	/s/ Kristin A. McCoy
 	 
	 	 	Name:  	Kristin A. McCoy 	 
	 	 	Title:  	Assistant Vice President 	 
	 



	 	 	 	 	 
	 	BAYERISCHE LANDESBANK, NEW YORK BRANCH

 	 
	 	by  	/s/ Annette Schmidt
 	 
	 	 	Name:  	Annette Schmidt 	 
	 	 	Title:  	First Vice President 	 
	 



	 	 	 	 	 
	 	 	 
	 	by  	/s/ Christopher Dowd
 	 
	 	 	Name:  	Christopher Dowd 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	CAROLINA FIRST BANK

 	 
	 	by  	/s/ Jennifer Schlansker
 	 
	 	 	Name:  	Jennifer Schlansker 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	RAYMOND JAMES BANK, FSB

 	 
	 	by  	/s/ Steven F. Paley
 	 
	 	 	Name:  	Steven F. Paley 	 
	 	 	Title:  	Vice President 	 










 



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REGIONS BANK

 	 
	 	by  	/s/ Craig E. Gardella
 	 
	 	 	Name:  	Craig E. Gardella 	 
	 	 	Title:  	Senior Vice President 	 
	 



	 	 	 	 	 
	 	COMMERZBANK AG, NEW YORK AND GRAND CAYMAN BRANCHES

 	 
	 	by  	/s/ Edward C.A. Forsberg, Jr.
 	 
	 	 	Name:  	Edward C.A. Forsberg, Jr. 	 
	 	 	Title:  	SVP & Manager 	 
	 



	 	 	 	 	 
	 	 	 
	 	by  	/s/ Nivedita Persaud
 	 
	 	 	Name:  	Nivedita Persaud 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	FIRST BANK

 	 
	 	by  	/s/ Douglas A. Remke
 	 
	 	 	Name:  	Douglas A. Remke 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	THE BANK OF NASHVILLE

 	 
	 	by  	/s/ C. Orlandus Majors
 	 
	 	 	Name:  	C. Orlandus Majors 	 
	 	 	Title:  	Senior Vice President 	 










 



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	 	SIEMENS FINANCIAL SERVICES, INC.

 	 
	 	by  	/s/ David Kantes
 	 
	 	 	Name:  	David Kantes 	 
	 	 	Title:  	Senior Vice President and Chief Risk Officer 	 
	 



	 	 	 	 	 
	 	 	 
	 	by  	/s/ Robert Knapp
 	 
	 	 	Name:  	Robert Knapp 	 
	 	 	Title:  	Senior Vice President 	 
	 



	 	 	 	 	 
	 	STATE BANK OF INDIA

 	 
	 	by  	/s/ Ashok Wanchoo
 	 
	 	 	Name:  	Ashok Wanchoo 	 
	 	 	Title:  	Vice President & Head (Credit) 	 










 



129

	 	 	 	 	 



	 	 	 	 	 
	 	



BANCO ESPIRITO SANTO, S.A., NEW YORK BRANCH

 	 
	 	by  	/s/ Terry R. Hull
 	 
	 	 	Name:  	Terry R. Hull 	 
	 	 	Title:  	Senior Vice President 	 
	 



	 	 	 	 	 
	 	 	 
	 	by  	/s/ Andrew M. Orsen
 	 
	 	 	Name:  	Andrew M. Orsen 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	GOLDMAN SACHS

 	 
	 	by  	/s/ Bruce Mendelsohn
 	 
	 	 	Name:  	Bruce Mendelsohn 	 
	 	 	Title:  	Authorized Signatory