JOINDER AGREEMENT NO. 1

EX-4.1 2 d427701dex41.htm JOINDER AGREEMENT NO. 1 Joinder Agreement No. 1

Exhibit 4.1

JOINDER AGREEMENT NO. 1

JOINDER AGREEMENT No. 1, dated as of October 22, 2012 (this “Agreement”), by and among each of the financial institutions listed as a “Replacement-2012 Revolving Credit Lender” on Schedule A hereto (each, a “Replacement-2012 Revolving Credit Lender” and, collectively with their respective successors and assigns in such capacity, the “Replacement-2012 Revolving Credit Lenders”), HCA INC., a Delaware corporation (the “Company”), BANK OF AMERICA, N.A., as Administrative Agent and as Collateral Agent, and the other parties listed on the signature pages hereto.

RECITALS:

WHEREAS, reference is hereby made to the Amended and Restated Credit Agreement, dated as of May 4, 2011 (as amended on April 25, 2012 (the “Existing Credit Agreement”), and as the same may be further amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among the Company, HCA UK Capital Limited (the “European Subsidiary Borrower” and, collectively with the Company, the “Borrowers”), the Lenders party thereto, Bank of America, N. A., as Administrative Agent and Collateral Agent and the other parties named therein (capitalized terms used but not defined herein having the respective meanings provided in the Credit Agreement);

WHEREAS, the Credit Agreement provides that the Borrowers may, subject to the terms and conditions set forth therein, establish New Revolving Credit Commitments (including Replacement Revolving Credit Commitments) by, among other things, entering into one or more Joinder Agreements with New Revolving Loan Lenders; and

WHEREAS, the Company and the Replacement-2012 Revolving Credit Lenders wish to establish a new Replacement Revolving Credit Series of Replacement Revolving Credit Commitments in accordance with the Credit Agreement and on the terms set forth herein to replace in full the Revolving Credit Commitments;

NOW, THEREFORE, in consideration of the premises, agreements, provisions and covenants herein contained, the parties hereto hereby agree as follows:

1.	Establishment of Replacement-2012 Revolving Credit Facility.

(a) Subject to the satisfaction of the conditions set forth in Section 2 of this Agreement, there is hereby established, effective as of the Replacement-2012 Revolving Credit Commitment Effective Date (as defined below), a Replacement Revolving Credit Series of Replacement Revolving Credit Commitments under the Credit Agreement which shall be designated as the “Replacement-2012 Revolving Credit Commitments.” The amount of the Replacement-2012 Revolving Credit Commitment of each Replacement-2012 Revolving Credit Lender shall be the amount set forth on Schedule A hereto opposite such Replacement-2012 Revolving Credit Lender’s name.

(b) Subject to the satisfaction of the conditions set forth in Section 2 of this Agreement, the Replacement-2012 Revolving Credit Commitments shall become

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effective and available on a fully revolving basis during the period (the “Replacement-2012 Revolving Commitment Period”) from and including the Replacement-2012 Revolving Credit Commitment Effective Date until November 17, 2016 or, if such day is not a Business Day, the next preceding Business Day (the “Replacement-2012 Revolving Credit Maturity Date”). During the Replacement-2012 Revolving Commitment Period, subject to the applicable terms and conditions of the Credit Agreement as contemplated by the following paragraph (c) of this Section 1 of this Agreement and the terms of the Credit Agreement, the Company may utilize the Replacement-2012 Revolving Credit Commitments (i) by borrowing a loan or loans thereunder denominated in Dollars or one or more Alternative Currencies (any such loan a “Replacement-2012 Revolving Loan”), (ii) by borrowing Swingline Loans from the Swingline Lender or (iii) through the issuance or renewal of Letters of Credit by any Letter of Credit Issuer. The Replacement-2012 Revolving Credit Commitments and the extensions of credit thereunder are collectively referred to as the “Replacement-2012 Revolving Credit Facility.”

(c) Subject to clauses (i) through (vi) of the proviso to this paragraph (c) below, the terms and conditions applicable to the Replacement-2012 Revolving Credit Facility and of the Replacement-2012 Revolving Credit Commitments, Replacement-2012 Revolving Loans and participations of Replacement-2012 Revolving Credit Lenders in Swingline Loans and Letters of Credit (including, without limitation, the procedures for and limitations applicable to borrowings, repayments and prepayments, funding of risk participations, termination and reduction of commitments, payments of interest, fees, expenses, voting and other amounts and assignments) shall be identical to the provisions of the Credit Agreement applicable to the Revolving Credit Facility and the Revolving Credit Commitments, Revolving Credit Loans and participations of Revolving Credit Lenders in Swingline Loans and Letters of Credit, respectively, and, with respect to matters arising following the Replacement-2012 Revolving Credit Commitment Effective Date, references in the Credit Agreement and the other Credit Documents to “Revolving Credit Commitment,” “Revolving Credit Facility,” “Revolving Credit Loan,” “Revolving Credit Lender”, “Revolving Credit Maturity Date”, “Revolving Credit Commitment Percentage”, “Revolving Credit Exposure” and “Revolving Credit Termination Date” shall apply to the rights and obligations of the Credit Parties and the Replacement-2012 Revolving Credit Lenders under the Replacement-2012 Revolving Credit Facility as though such terms referred to the “Replacement-2012 Revolving Credit Commitments,” the “Replacement-2012 Revolving Credit Facility,” the “Replacement-2012 Revolving Loans,” the “Replacement-2012 Revolving Credit Lenders,” the “Replacement-2012 Revolving Credit Maturity Date,” the “ Replacement-2012 Revolving Credit Commitment Percentage,” the “Replacement-2012 Revolving Credit Exposure,” and the “Replacement-2012 Revolving Credit Termination Date”; provided that:

(i) The following definitions shall apply to the Replacement-2012 Revolving Credit Facility in lieu of the definitions contained in the Credit Agreement that would otherwise be applicable thereto by virtue of the deemed applicability to the Replacement-2012 Revolving Credit Facility (and related defined terms) of references to the Revolving Credit Facility (and related defined terms) pursuant to paragraph (b) above:

“Level I Status” shall mean, on any date, the circumstance that the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than or equal to 6.00 to 1.00 as of such date.

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“Level II Status” shall mean, on any date, the circumstance that Level I Status does not exist and the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than or equal to 5.50 to 1.00 as of such date.

“Level III Status” shall mean, on any date, the circumstance that neither Level I Status nor Level II Status exists and the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than or equal to 5.00 to 1.00 as of such date.

“Level IV Status” shall mean, on any date, the circumstance that none of Level I Status, Level II Status and Level III Status exists and the Consolidated Total Debt to Consolidated EBITDA Ratio is greater than or equal to 4.50 to 1.00 as of such date.

“Level V Status” shall mean, on any date, the circumstance that the Consolidated Total Debt to Consolidated EBITDA Ratio is less than 4.50 to 1.00 as of such date.

(ii) The “Applicable ABR Margin” for purposes of the Replacement-2012 Revolving Credit Facility (including Replacement-2012 Revolving Loans and Swingline Loans thereunder) shall mean at any date, with respect to each ABR Loan that is a Replacement-2012 Revolving Loan or Swingline Loan, the applicable percentage per annum set forth below based upon the Status in effect on such date:


Status	Applicable ABR Margin for Replacement-2012 Revolving Loans and Swingline Loans
Level I Status		1.50	%
Level II Status		1.25	%
Level III Status		1.00	%
Level IV Status		0.75	%
Level V Status		0.50	%

(iii) The “Applicable LIBOR Margin” for purposes of the Replacement-2012 Revolving Credit Facility (including Replacement-2012 Revolving Loans thereunder) shall mean at any date, with respect to each LIBOR Loan that is a Replacement-2012 Revolving Loan, the applicable percentage per annum set forth below based upon the Status in effect on such date:


Status	Applicable LIBOR Margin for Replacement-2012 Revolving Loans
Level I Status		2.50	%
Level II Status		2.25	%
Level III Status		2.00	%
Level IV Status		1.75	%
Level V Status		1.50	%

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(iv) The “Commitment Fee Rate” for purposes of the Replacement-2012 Revolving Credit Facility shall mean, with respect to the Available Commitment on any day, the rate per annum set forth below opposite the Status in effect on such day:


Status	Commitment Fee Rate
Level I Status		0.50	%
Level II Status		0.50	%
Level III Status		0.375	%
Level IV Status		0.375	%
Level V Status		0.375	%

(v) The Replacement-2012 Revolving Credit Facility shall become effective and be available during the Replacement-2012 Revolving Commitment Period and Commitment Fees shall commence accruing on the Available Commitment under the Replacement-2012 Revolving Credit Facility on the Replacement-2012 Revolving Credit Commitment Effective Date.

(vi) Subject to the satisfaction of the conditions set forth in Section 2 of this Agreement, the Company may designate any Letters of Credit outstanding under the Revolving Credit Facility immediately prior to the Replacement-2012 Revolving Credit Commitment Effective Date to automatically be deemed to be issued and outstanding under the Replacement-2012 Revolving Credit Facility from and after the Replacement-2012 Revolving Credit Commitment Effective Date.

2.	Effectiveness of Replacement-2012 Revolving Credit Commitments. The Replacement-2012 Revolving Credit Commitments shall become effective, on the first date (the “Replacement-2012 Revolving Credit Commitment Effective Date”) on which each of the following conditions has been satisfied:

(a)

the Administrative Agent shall have received executed signature pages to this Agreement from each of the Replacement-2012 Revolving Credit Lenders, the Swingline Lender, each Letter of Credit Issuer and each Credit Party;

(b)

the Company shall have terminated in full the Revolving Credit Commitments of each of the Replacement-2012 Revolving Credit Lenders party hereto in accordance with Section 4.2 of the Credit Agreement;

(c)

the conditions to each credit extension set forth in Section 7.1 of the Credit Agreement shall be satisfied on such date and the Administrative Agent shall have received a certificate of a responsible officer of the Company stating that such conditions have been satisfied;

(d)

the Administrative Agent shall have received with respect to each Mortgaged Property subject to a Mortgage by any U.S. Credit Party, a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination (together with (y) a notice about special flood hazard area status and flood disaster assistance duly executed

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by the Company and each U.S. Credit Party relating thereto and (z) evidence of insurance with respect to the Mortgaged Properties in form and substance reasonably satisfactory to the Administrative Agent); and

(e)

the Administrative Agent shall have received from the Company an opinion of counsel from Simpson Thacher & Bartlett LLP reasonably acceptable to the Administrative Agent covering customary matters with respect to this Agreement.

Acknowledgements. Each Replacement-2012 Revolving Credit Lender (i) confirms that it has received a copy of the Credit Agreement and the other Credit Documents and the exhibits thereto, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement; (ii) agrees that it will, independently and without reliance upon the Administrative Agent or any other Replacement-2012 Revolving Credit Lender or any other Lender or Agent 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 the Credit Agreement; (iii) appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Credit Documents as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto; and (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Replacement-2012 Revolving Credit Lender.

Credit Agreement Governs. Except as otherwise set forth in this Agreement, the Replacement-2012 Revolving Credit Facility shall otherwise be subject to the applicable provisions of the Credit Agreement and the other Credit Documents (after giving effect to the deemed applicability to such Replacement-2012 Revolving Credit Facility (and related defined terms) of references to the Revolving Credit Facility (and related defined terms) pursuant to Section 2(b) above). Each Replacement-2012 Revolving Credit Lender acknowledges its receipt of a copy of, agrees to be bound by the terms of, the Loss Sharing Agreement, dated as of November 17, 2006, by and among the Lenders and the Administrative Agent, to the same extent as though it were an original signatory thereto.

5.	Borrowers’ Certifications. By its execution of this Agreement, the undersigned officer, to the best of his or her knowledge, and such Borrower hereby certifies that:

(i)

The representations and warranties contained in the Credit Agreement and the other Credit Documents are true and correct in all material respects on and as of the date hereof to the same extent as though made on and as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties were true and correct in all material respects on and as of such earlier date; and

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(ii)

No event has occurred and is continuing or would result from the consummation of the proposed Borrowing contemplated hereby that would constitute a Default or an Event of Default.

Tax Forms. Each Replacement-2012 Revolving Credit Lender that is not a Lender under the Credit Agreement hereby agrees to deliver herewith to the Administrative Agent such forms, certificates or other evidence with respect to United States federal income tax withholding matters as such Replacement-2012 Revolving Credit Lender may be required to deliver to the Administrative Agent pursuant to Section 5.4(d) and/or Section 5.4(e) of the Credit Agreement.

Recordation of the Replacement Revolving Credit Facility. On the Replacement-2012 Revolving Credit Commitment Effective Date, the Administrative Agent will make such recordings and other modifications or updates to the Register as are necessary to give effect to and to reflect the Replacement-2012 Revolving Credit Facility and the existence and respective holders of the Replacement-2012 Revolving Commitments thereunder as of such date as provided for herein.

8.	Post-Effectiveness Covenant. Within 90 days after the Replacement-2012 Revolving Credit Commitment Effective Date, the Administrative Agent shall have received:

(i)

amendments to each Mortgage to which a U.S. Credit Party is then party (except to the extent the Administrative Agent determines such amendment is not required) for purposes of providing the benefit of the security interest of such Mortgage for the benefit of the Replacement-2012 Revolving Credit Lenders on substantially the same basis as is provided under the U.S. Security Agreement and U.S. Pledge Agreement (and with such other changes as are reasonably acceptable to the Collateral Agent and the Company);

(ii)

executed legal opinions, in form and substance reasonably satisfactory to the Administrative Agent, with respect to such amended Mortgages; and

(iii)

with respect to each amended Mortgage, a date-down or modification endorsement to the policy or policies of title insurance insuring the Lien of each Mortgage, issued by a nationally recognized title insurance company insuring the Lien of each amended Mortgage as a valid Lien on the Mortgaged Property described therein, free of any other Liens except as expressly permitted by Section 10.2 of the Credit Agreement or consented to by the Administrative Agent, together with such endorsements, coinsurance and reinsurance as the Administrative Agent may reasonably request having the effect of a valid, issued and binding title insurance policy.

9.	Amendment, Modification and Waiver. Except as contemplated by Section 7, this Agreement may not be amended, modified or waived except by an instrument or instruments in writing signed and delivered on behalf of each of the parties hereto.

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10.

Entire Agreement. This Agreement, the Credit Agreement and the other Credit Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties or any of them with respect to the subject matter hereof.

11.	GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

12.

Severability. Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as would be enforceable.

13.	Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement.

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Consented to by:

BANK OF AMERICA, N.A., as Administrative Agent, Letter of Credit Issuer and Swingline Lender

By:		/s/ David H. Strickert
Name:		David H. Strickert
Title:		Managing Director

JPMORGAN CHASE BANK, N.A., as a Letter of Credit Issuer

By:		/s/ Vanessa Chiu
Name:		Vanessa Chiu
Title:		Executive Director