EXHIBIT 10.5
PLEDGE AGREEMENT
PLEDGE AGREEMENT (as amended, modified restated and/or supplemented
from time to time, this "Agreement"), dated as of September 23, 2004 among each
of the undersigned pledgors (each, a "Pledgor" and, together with any other
entity that becomes a pledgor hereunder pursuant to Section 30 hereof, the
"Pledgors") and Bank of America, N.A., as Collateral Agent (together with any
successor collateral agent, the "Pledgee"), for the benefit of the Secured
Creditors (as defined below). Except as otherwise defined herein, all
capitalized terms used herein and defined in the Credit Agreement (as defined
below) shall be used herein as therein defined.
W I T N E S S E T H:
WHEREAS, Vanguard Health Holding Company I, LLC, Vanguard Health
Holding Company II, LLC ("VHS Holdco II"), Vanguard Holding Company II, Inc.
(the "Co-Borrower" and, together with VHS Holdco II, the "Borrowers" and each, a
"Borrower"), the lenders from time to time party thereto (the "Lenders"), Bank
of America, N.A., as Administrative Agent (together with any successor
Administrative Agent, the "Administrative Agent"), Citicorp North America, Inc.,
as Syndication Agent, General Electric Capital Corporation, LaSalle Bank,
National Association and Wachovia Bank, National Association, as
Co-Documentation Agents and Banc of America Securities LLC and Citigroup Global
Markets Inc., as Joint Lead Arrangers and Book Runners, have entered into a
Credit Agreement, dated as of September 23, 2004 (as amended, modified or
supplemented from time to time, the "Credit Agreement"), providing for the
making of Loans to, and the issuance of and participation in, Letters of Credit
for the account of the Borrowers, all as contemplated therein (the Lenders, each
Issuing Lender, the Administrative Agent, each other Agent and the Pledgee are
herein called the "Lender Creditors");
WHEREAS, the Borrowers may at any time and from time to time enter
into one or more Interest Rate Protection Agreements or Other Hedging Agreements
with one or more Lenders or any affiliate thereof (each such Lender or
affiliate, even if the respective Lender subsequently ceases to be a Lender
under the Credit Agreement for any reason, together with such Lender's or
affiliate's successors and assigns, if any, collectively, the "Other Creditors,"
and together with the Lender Creditors, the "Secured Creditors");
WHEREAS, pursuant to the each Guaranty, each Pledgor that is a party
thereto has guaranteed to the Secured Creditors the payment when due of all
Guaranteed Obligations as described in each such Guaranty;
WHEREAS, VHS Holdco II, one or more Wholly-Owned Domestic
Subsidiaries of VHS Holdco II and any bank (and/or one or more of its banking
affiliates) reasonably acceptable to the Administrative Agent, in each case
designated to the Administrative Agent in writing by VHS Holdco II as a provider
of Treasury Services, (collectively, the "Treasury
Service Creditors" and, together with the Lender Creditors and the Other
Creditors, the "Secured Creditors") in the future may enter into, a credit
arrangement providing for Treasury Services (with any written agreement
evidencing such credit arrangements (to the extent expressly stated therein that
the liabilities and indebtedness thereunder are "Obligations" for the purposes
of this Agreement), as amended, modified, supplemented, replaced or refinanced
from time to time, herein called the "Treasury Services Agreement");
WHEREAS, it is a condition precedent to (i) the making of Loans to
the Borrowers, and the issuance of, and participation in, Letters of Credit for
the account of the Borrowers under the Credit Agreement, (ii) the Other
Creditors entering into Interest Rate Protection Agreements and Other Hedging
Agreements and (iii) extension of the Treasury Services by Treasury Service
Creditors, that each Assignor shall have executed and delivered to the
Collateral Agent this Agreement; and
WHEREAS, each Pledgor will obtain benefits from the incurrence of
Loans by the Borrowers, and the issuance of, and participation in, Letters of
Credit for the account of the Borrowers under the Credit Agreement, the entering
into by each Borrower of Interest Rate Protection Agreements or Other Hedging
Agreements and the extension of Treasury Services to VHS Holdco II and its
Wholly-Owned Domestic Subsidiaries and, accordingly, desires to execute this
Agreement in order to satisfy the condition described in the preceding paragraph
and to induce the Lenders to make Loans to the Borrowers and issue, and/or
participate in, Letters of Credit for the account of the Borrowers, the Other
Creditors to enter into Interest Rate Protection Agreements or Other Hedging
Agreements with each Borrower and the Treasury Service Creditors to extend
Treasury Services to VHS Holdco II and its Wholly-Owned Domestic Subsidiaries;
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to each Pledgor, the receipt and sufficiency of which are hereby
acknowledged, each Pledgor hereby makes the following representations and
warranties to the Pledgee for the benefit of the Secured Creditors and hereby
covenants and agrees with the Pledgee for the benefit of the Secured Creditors
as follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by each Pledgor
for the benefit of the Secured Creditors to secure:
(i) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, liabilities
and indebtedness (including, without limitation, principal, premium,
interest, reimbursement obligations under Letters of Credit, fees, costs
and indemnities (including, without limitation, all interest that accrues
after the commencement of any case, proceeding or other action relating to
the bankruptcy, insolvency, reorganization or similar proceeding of any
Pledgor at the rate provided for in the respective documentation, whether
or not a claim for post-petition interest is allowed in any such
proceeding)) of each Pledgor to the Lender Creditors, whether now existing
or hereafter incurred under, arising out of, or in connection with, the
Credit Agreement and the other Credit Documents to which such Pledgor is a
party (including, in the case of each Assignor that is a Guarantor, all
such obligations, liabilities and indebtedness of such Pledgor under the
Guaranty to which it is a party) and
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the due performance and compliance by such Pledgor with all of the terms,
conditions and agreements contained in the Credit Agreement and in such
other Credit Documents (all such obligations, liabilities and indebtedness
under this clause (i), except to the extent consisting of obligations or
indebtedness with respect to Interest Rate Protection Agreements or Other
Hedging Agreements, being herein collectively called the "Credit Document
Obligations");
(ii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, liabilities
and indebtedness (including, without limitation, all interest that accrues
after the commencement of any case, proceeding or other action relating to
the bankruptcy, insolvency, reorganization or similar proceeding of any
Pledgor at the rate provided for in the respective documentation, whether
or not a claim for post-petition interest is allowed in any such
proceeding) owing by such Pledgor to the Other Creditors under, or with
respect to (including, in the case of each Pledgor that is a Guarantor,
all such obligations, liabilities and indebtedness of such Pledgor under
the Guaranty to which it is a party), each Interest Rate Protection
Agreement or Other Hedging Agreement, whether such Interest Rate
Protection Agreement or Other Hedging Agreement is now in existence or
hereafter arising, and the due performance and compliance by such Pledgor
with all of the terms, conditions and agreements contained therein (all
such obligations, liabilities and indebtedness described in this clause
(ii) being herein collectively called the "Other Obligations");
(iii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, liabilities
and indebtedness (including, without limitation, all interest that accrues
after the commencement of any case, proceeding or other action relating to
the bankruptcy, insolvency, reorganization or similar proceeding of any
Pledgor at the rate provided for in the respective documentation, whether
or not a claim for post-petition interest is allowed in any such
proceeding) owing by such Pledgor to the Treasury Service Creditors with
respect to Treasury Services, whether such Treasury Services are now in
existence or hereafter arising in each case pursuant to any Treasury
Services Agreement (all such obligations, liabilities and indebtedness
described in this clause (iii) being herein collectively called the
"Treasury Service Obligations");
(iv) any and all sums advanced by the Pledgee in order to preserve
the Collateral or preserve its security interest in the Collateral;
(v) in the event of any proceeding for the collection or enforcement
of any indebtedness, obligations, or liabilities of such Assignor referred
to in clauses (i), (ii) and (iii) above, after an Event of Default shall
have occurred and be continuing, the reasonable expenses of retaking,
holding, preparing for sale or lease, selling or otherwise disposing of or
realizing on the Collateral, or of any exercise by the Pledgee of its
rights hereunder, together with reasonable attorneys' fees and court
costs;
(vi) all amounts paid by any Indemnitee as to which such Indemnitee
has the right to reimbursement under Section 11 of this Agreement; and
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(vii) all amounts owing to any Agent pursuant to any of the Credit
Documents in its capacity as such;
all such obligations, liabilities, indebtedness, sums and expenses set forth in
clauses (i) through (vii) of this Section 1 being herein collectively called the
"Obligations", it being acknowledged and agreed that the "Obligations" shall
include extensions of credit of the types described above, whether outstanding
on the date of this Agreement or extended from time to time after the date of
this Agreement.
2. DEFINITIONS. (a) Unless otherwise defined herein, all capitalized
terms used herein and defined in the Credit Agreement shall be used herein as
therein defined. Reference to singular terms shall include the plural and vice
versa.
(b) The following capitalized terms used herein shall have the
definitions specified below:
"Administrative Agent" has the meaning set forth in the Recitals
hereto.
"Adverse Claim" has the meaning given such term in Section
8-102(a)(1) of the UCC.
"Agreement" has the meaning set forth in the first paragraph hereof.
"Certificated Security" has the meaning given such term in Section
8-102(a)(4) of the UCC.
"Clearing Corporation" has the meaning given such term in Section
8-102(a)(5) of the UCC.
"Co-Borrower" has the meaning provided in the Recitals hereto.
"Collateral" has the meaning set forth in Section 3.1 hereof.
"Collateral Accounts" means any and all accounts established and
maintained by the Pledgee in the name of any Pledgor to which Collateral may be
credited.
"Credit Agreement" has the meaning set forth in the Recitals hereto.
"Credit Document Obligations" has the meaning set forth in Section 1
hereof.
"Domestic Corporation" has the meaning set forth in the definition
of "Stock."
"Event of Default" shall mean any Event of Default under, and as
defined in, the Credit Agreement and shall in any event include, without
limitation, any payment default on any of the Obligations after the expiration
of any applicable grace period.
"Financial Asset" has the meaning given such term in Section
8-102(a)(9) of the UCC.
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"Foreign Corporation" has the meaning set forth in the definition of
"Stock."
"Indemnitees" has the meaning set forth in Section 11 hereof.
"Instrument" has the meaning given such term in Section 9-102(a)(47)
of the UCC.
"Investment Property" has the meaning given such term in Section
9-102(a)(49) of the UCC.
"Lender Creditors" has the meaning set forth in the Recitals hereto.
"Lenders" has the meaning set forth in the Recitals hereto.
"Limited Liability Company Assets" means all assets, whether
tangible or intangible and whether real, personal or mixed (including, without
limitation, all limited liability company capital and interest in other limited
liability companies), at any time owned or represented by any Limited Liability
Company Interest.
"Limited Liability Company Interests" means the entire limited
liability company membership interest at any time owned by any Pledgor in any
limited liability company.
"Non-Voting Stock" means all Equity Interests which are not Voting
Stock.
"Notes" means all intercompany notes among the Borrower and its
Subsidiaries and all other promissory notes evidencing Indebtedness equal to or
greater than $1,000,000 from time to time issued to, or held by, any Pledgor.
"Obligations" has the meaning set forth in Section 1 hereof.
"Other Creditors" has the meaning set forth in the Recitals hereto.
"Other Obligations" has the meaning set forth in Section 1(ii)
hereof.
"Partnership Assets" means all assets, whether tangible or
intangible and whether real, personal or mixed (including, without limitation,
all partnership capital and interest in other partnerships), at any time owned
or represented by any Partnership Interest.
"Partnership Interest" means the entire general partnership interest
or limited partnership interest at any time owned by any Pledgor in any general
partnership or limited partnership.
"Pledged Notes" has the meaning set forth in Section 3.5 hereof.
"Pledgee" has the meaning set forth in the first paragraph hereof.
"Pledgor" has the meaning set forth in the first paragraph hereof.
"Proceeds" has the meaning given such term in Section 9-102(a)(64)
of the UCC.
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"Required Lenders" has the meaning given such term in the Credit
Agreement.
"Secured Creditors" has the meaning set forth in the Recitals
hereto.
"Securities Intermediary" shall have the meaning given such term in
Section 8-102(14) of the UCC.
"Secured Debt Agreements" shall mean and includes (i) this
Agreement, (ii) the other Credit Documents, (iii) the Interest Rate Protection
Agreements and Other Hedging Agreements entered into with any Other Creditors
and (iv) the Treasury Service Agreement.
"Securities Act" means the Securities Act of 1933, as amended, as in
effect from time to time.
"Security" and "Securities" has the meaning given such term in
Section 8-102(a)(15) of the UCC and shall in any event include all Stock and
Notes.
"Security Entitlement" has the meaning given such term in Section
8-102(a)(17) of the UCC.
"Stock" means (x) with respect to corporations incorporated under
the laws of the United States or any State or territory thereof (each a
"Domestic Corporation"), all of the issued and outstanding shares of capital
stock of any corporation at any time owned by any Pledgor of any Domestic
Corporation and (y) with respect to corporations not Domestic Corporations (each
a "Foreign Corporation"), all of the issued and outstanding shares of capital
stock at any time owned by any Pledgor of any Foreign Corporation.
"Termination Date" has the meaning set forth in Section 20 hereof.
"Treasury Service Agreement" has the meaning set forth in the
Recitals hereto.
"Treasury Service Creditors" has the meaning set forth in the
Recitals hereto.
"Treasury Service Obligations" has the meaning set forth in Section
1(iii) hereof.
"Treasury Services" means treasury, depositary or cash management
services (including, without limitation overnight overdraft services) provided
to VHS Holdco II and its Wholly-Owned Domestic Subsidiaries by the Treasury
Service Creditors, and automated clearinghouse transfers of funds to, the
Treasury Service Creditors, in each case pursuant to uncommitted lines of
credit.
"UCC" means the Uniform Commercial Code as in effect in the State of
New York from time to time; provided that all references herein to specific
sections or subsections of the UCC are references to such sections or
subsections, as the case may be, of the Uniform Commercial Code as in effect in
the State of New York on the date hereof.
"Uncertificated Security" has the meaning given such term in Section
8-102(a)(18) of the UCC.
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"VHS Holdco II" has the meaning set forth in the Recitals hereto.
"Voting Stock" means all classes of Equity Interests of any Foreign
Subsidiary entitled to vote.
3. PLEDGE OF SECURITIES, ETC.
3.1 Pledge. To secure the Obligations now or hereafter owed or to be
performed by such Pledgor, each Pledgor does hereby grant, pledge and assign to
the Pledgee for the benefit of the Secured Creditors, and does hereby create a
continuing security interest (subject to those Liens permitted to exist with
respect to the Collateral pursuant to the terms of all Secured Debt Agreements
then in effect) in favor of the Pledgee for the benefit of the Secured Creditors
in, all of its right, title and interest in and to the following, whether now
existing or hereafter from time to time acquired (collectively, the
"Collateral"):
(a) each of the Collateral Accounts (to the extent a security
interest therein is not created pursuant to the Security Agreement),
including any and all assets of whatever type or kind deposited by such
Pledgor in any such Collateral Account, whether now owned or hereafter
acquired, existing or arising, including, without limitation, all
Financial Assets, Investment Property, monies, checks, drafts,
Instruments, Securities or interests therein of any type or nature
deposited or required by the Credit Agreement or any other Secured Debt
Agreement to be deposited in such Collateral Account, and all investments
and all certificates and other Instruments (including depository receipts,
if any) from time to time representing or evidencing the same, and all
dividends, interest, distributions, cash and other property from time to
time received, receivable or otherwise distributed in respect of or in
exchange for any or all of the foregoing;
(b) all Securities owned or held by such Pledgor from time to time
and all options and warrants owned by such Pledgor from time to time to
purchase Securities;
(c) all Limited Liability Company Interests owned by such Pledgor
from time to time and all of its right, title and interest in each limited
liability company to which each such Limited Liability Company Interest
relates, whether now existing or hereafter acquired, including, without
limitation, to the fullest extent permitted under the terms and provisions
of the documents and agreements governing such Limited Liability Company
Interests and applicable law:
(A) all the capital thereof and its interest in all profits,
losses, Limited Liability Company Assets and other distributions to
which such Pledgor shall at any time be entitled in respect of such
Limited Liability Company Interests;
(B) all other payments due or to become due to such Pledgor in
respect of Limited Liability Company Interests, whether under any
limited liability company agreement, operating agreement or
otherwise, whether as contractual obligations, damages, insurance
proceeds or otherwise;
(C) all of its claims, rights, powers, privileges, authority,
options, security interests, liens and remedies, if any, under any
limited liability company
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agreement or operating agreement, or at law or otherwise in respect
of such Limited Liability Company Interests;
(D) all present and future claims, if any, of such Pledgor
against any such limited liability company for moneys loaned or
advanced, for services rendered or otherwise;
(E) all of such Pledgor's rights under any limited liability
company agreement or operating agreement or at law to exercise and
enforce every right, power, remedy, authority, option and privilege
of such Pledgor relating to such Limited Liability Company
Interests, including any power to terminate, cancel or modify any
limited liability company agreement or operating agreement, to
execute any instruments and to take any and all other action on
behalf of and in the name of any of such Pledgor in respect of such
Limited Liability Company Interests and any such limited liability
company, to make determinations, to exercise any election
(including, but not limited to, election of remedies) or option or
to give or receive any notice, consent, amendment, waiver or
approval, together with full power and authority to demand, receive,
enforce, collect or receipt for any of the foregoing or for any
Limited Liability Company Asset, to enforce or execute any checks,
or other instruments or orders, to file any claims and to take any
action in connection with any of the foregoing (with all of the
foregoing rights only to be exercisable upon the occurrence and
during the continuation of an Event of Default); and
(F) all other property hereafter delivered in substitution for
or in addition to any of the foregoing, all certificates and
instruments representing or evidencing such other property and all
cash, securities, interest, dividends, rights and other property at
any time and from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all thereof;
(d) all Partnership Interests owned by such Pledgor from time to
time and all of its right, title and interest in each partnership to which
each such Partnership Interest relates, whether now existing or hereafter
acquired, including, without limitation, to the fullest extent permitted
under the terms and provisions of the documents and agreements governing
such Partnership Interests and applicable law:
(A) all the capital thereof and its interest in all profits,
losses, Partnership Assets and other distributions to which such
Pledgor shall at any time be entitled in respect of such Partnership
Interests;
(B) all other payments due or to become due to such Pledgor in
respect of Partnership Interests, whether under any partnership
agreement, operating agreement or otherwise, whether as contractual
obligations, damages, insurance proceeds or otherwise;
(C) all of its claims, rights, powers, privileges, authority,
options, security interests, liens and remedies, if any, under any
partnership agreement or
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operating agreement, or at law or otherwise in respect of such
Partnership Interests;
(D) all present and future claims, if any, of such Pledgor
against any such partnership for moneys loaned or advanced, for
services rendered or otherwise;
(E) all of such Pledgor's rights under any partnership
agreement or operating agreement or at law to exercise and enforce
every right, power, remedy, authority, option and privilege of such
Pledgor relating to such Partnership Interests, including any power
to terminate, cancel or modify any partnership agreement or
operating agreement, to execute any instruments and to take any and
all other action on behalf of and in the name of any of such Pledgor
in respect of such Partnership Interests and any such partnership,
to make determinations, to exercise any election (including, but not
limited to, election of remedies) or option or to give or receive
any notice, consent, amendment, waiver or approval, together with
full power and authority to demand, receive, enforce, collect or
receipt for any of the foregoing or for any Partnership Asset, to
enforce or execute any checks, or other instruments or orders, to
file any claims and to take any action in connection with any of the
foregoing (with all of the foregoing rights only to be exercisable
upon the occurrence and during the continuation of an Event of
Default); and
(F) all other property hereafter delivered in substitution for
or in addition to any of the foregoing, all certificates and
instruments representing or evidencing such other property and all
cash, securities, interest, dividends, rights and other property at
any time and from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all thereof;
(e) all Security Entitlements of such Pledgor from time to time in
any and all of the foregoing;
(f) all Financial Assets and Investment Property of such Pledgor
from time to time; and
(g) all Proceeds of any and all of the foregoing.
Notwithstanding anything to the contrary contained in this Section 3.1,
(w) Vanguard Health Management, Inc. shall not be required to pledge any Equity
Interests in Healthcare Airplane Group LLC; provided that (i) Healthcare
Airplane Group LLC shall be dissolved on or prior to December 31, 2004 or such
later date as the Collateral Agent may agree in its sole discretion and (ii) if
Healthcare Airplane Group LLC is not dissolved prior to such time, such Equity
Interests shall be pledged hereunder pursuant to the provisions hereof, (x) no
Pledgor shall be required to pledge any equity interests in any Health Care
Joint Venture acquired in accordance with Section 9.15 of the Credit Agreement
if the equity interests of such Health Care Joint Venture owned by all Pledgors
has an aggregate investment cost of less than $2,000,000, (y) the pledge
hereunder of the Equity Interests of any Foreign Subsidiary by a Pledgor (to the
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extent that such Pledgor is not a Foreign Subsidiary) shall be limited solely to
no more than 65% of the Voting Stock and 100% of the Non-Voting Stock of such
Pledgor's "first tier" Foreign Subsidiaries and (z) the equity interests of such
Pledgor in The ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ MRI Ltd. shall
not be required to be pledged hereunder so long as the requisite consents to
allow such pledge have not been obtained; provided that (i) the Pledgors agree
to use their commercially reasonable efforts to obtain such consents and (ii) if
any such consent is obtained, the Equity Interests of the entity for which such
consent has been obtained shall be pledged hereunder pursuant to the provisions
hereof.
3.2. Procedures. (a) To the extent that any Pledgor at any time or
from time to time owns, acquires or obtains any right, title or interest in any
Collateral, such Collateral shall automatically (and without the taking of any
action by the respective Pledgor) be pledged pursuant to Section 3.1 of this
Agreement and, in addition thereto, such Pledgor shall (to the extent provided
below) take the following actions as set forth below (as promptly as practicable
and, in any event, within 10 days after it obtains such Collateral) for the
benefit of the Pledgee and the Secured Creditors:
(i) with respect to a Certificated Security (other than a
Certificated Security credited on the books of a Clearing Corporation or
Securities Intermediary) such Pledgor shall physically deliver such
Certificated Security to the Pledgee, endorsed to the Pledgee or endorsed
in blank;
(ii) with respect to an Uncertificated Security (other than an
Uncertificated Security credited on the books of a Clearing Corporation or
Securities Intermediary) such or Securities Intermediary), such Pledgor
shall cause (or, in the case of an Uncertificated Security issued by a
Person which is not a Subsidiary of such Pledgor, shall use its reasonable
best efforts to cause) the issuer of such Uncertificated Security to duly
authorize and execute, and deliver to the Pledgee, an agreement for the
benefit of the Pledgee and the Secured Creditors substantially in the form
of Annex H hereto (appropriately completed to the satisfaction of the
Pledgee and with such modifications, if any, as shall be satisfactory to
the Pledgee) pursuant to which such issuer agrees to comply with any and
all instructions originated by the Pledgee without further consent by the
registered owner and not to comply with instructions regarding such
Uncertificated Security (and any Partnership Interests and Limited
Liability Company Interests issued by such issuer) originated by any other
Person other than a court of competent jurisdiction;
(iii) with respect to a Partnership Interest or a Limited Liability
Company Interest (other than a Partnership Interest or Limited Liability
Interest credited on the books of a Clearing Corporation or Securities
Intermediary), (1) if such Partnership Interest or Limited Liability
Company Interest is represented by a certificate and is a Security for the
purposes of the UCC, the procedure set forth in Section 3.2(a)(i) hereof,
and (2) if such Partnership Interest or Limited Liability Company Interest
is not represented by a certificate and is not a Security for the purposes
of the UCC, the procedure set forth in Section 3.2(a)(ii) hereof; and
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(iv) with respect to any Note, physical delivery of such Note to the
Pledgee, endorsed to the Pledgee or endorsed in blank.
(b) In addition to the actions required to be taken pursuant to
Section 3.2(a) hereof, each Pledgor shall take the following additional actions
with respect to the Securities and Collateral:
(i) with respect to all Collateral of such Pledgor whereby or with
respect to which the Pledgee may obtain "control" thereof within the
meaning of Section 8-106 of the UCC (or under any provision of the UCC as
same may be amended or supplemented from time to time, or under the laws
of any relevant State other than the State of New York), the respective
Pledgor shall take all actions as may be reasonably requested from time to
time by the Pledgee so that "control" of such Collateral is obtained (to
the greatest extent feasible in the case of any Collateral constituting a
partnership or membership interest in any Person which is not a Subsidiary
of any Pledgor) and at all times held by the Pledgee, provided that no
Pledgor shall be required to obtain a "control agreement" with a
Securities Intermediary or a Clearing Corporation; and
(ii) each Pledgor shall from time to time cause appropriate
financing statements (on Form UCC-1 or other appropriate form) under the
Uniform Commercial Code as in effect in the various relevant States,
covering all Collateral hereunder (with the form of such financing
statements to be satisfactory to the Pledgee), to be filed in the relevant
filing offices so that at all times the Pledgee has a security interest in
all Investment Property and other Collateral which is perfected by the
filing of such financing statements (in each case to the maximum extent
perfection by filing may be obtained under the laws of the relevant
States, including, without limitation, Section 9-312(a) of the UCC).
3.3 Subsequently Acquired Collateral. If any Pledgor shall acquire
(by purchase, stock dividend, distribution or otherwise) any additional
Collateral at any time or from time to time after the date hereof, such
Collateral shall automatically (and without any further action being required to
be taken) be subject to the pledge and security interests created pursuant to
Section 3.1 hereof and, furthermore, such Pledgor will thereafter take (or cause
to be taken) all action (as promptly as practicable and, in any event, within 15
Business Days after it obtains such Collateral) with respect to such Collateral
in accordance with the procedures set forth in Section 3.2 hereof, and will
promptly thereafter deliver to the Pledgee (i) a certificate executed by an
authorized officer of such Pledgor describing such Collateral and certifying
that the same has been duly pledged in favor of the Pledgee (for the benefit of
the Secured Creditors) hereunder and (ii) supplements to Annexes A through G
hereto as are necessary to cause such Annexes to be complete and accurate at
such time. Without limiting the foregoing, each Pledgor shall be required to
pledge hereunder any shares of stock at any time and from time to time after the
date hereof acquired by such Pledgor of any Foreign Subsidiary, provided that
(x) no Pledgor shall be required to pledge any equity interests in any Health
Care Joint Venture acquired in accordance with Section 9.15 of the Credit
Agreement if the equity interests of such Health Care Joint Venture owned by all
Pledgors has an aggregate investment cost of less than $2,000,000 and (y) the
pledge hereunder of the Equity Interests of any Foreign Subsidiary by a Pledgor
(to the extent that such Pledgor is not a Foreign Subsidiary) shall be limited
solely to no more than
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65% of the Voting Stock and 100% of the Non-Voting Stock of such Pledgor's
"first tier" Foreign Subsidiaries.
3.4 Transfer Taxes. Each pledge of Collateral under Section 3.1 or
Section 3.3 hereof shall be accompanied by any transfer tax stamps required in
connection with the pledge of such Collateral.
3.5 Definition of Pledged Notes. All Notes at any time pledged or
required to be pledged hereunder are hereinafter called the "Pledged Notes."
3.6 Certain Representations and Warranties Regarding the Collateral.
Each Pledgor represents and warrants that on the date hereof: (i) each
Subsidiary of such Pledgor, and the direct ownership thereof, is listed in Annex
B hereto; (ii) the Stock (and any warrants or options to purchase Stock) held by
such Pledgor consists of the number and type of shares of the stock (or warrants
or options to purchase any stock) of the corporations as described in Annex C
hereto; (iii) such Stock referenced in clause (ii) of this paragraph constitutes
that percentage of the issued and outstanding capital stock of the issuing
corporation as is set forth in Annex C hereto; (iv) the Notes held by such
Pledgor consist of the promissory notes described in Annex D hereto where such
Pledgor is listed as the lender; (v) the Limited Liability Company Interests
held by such Pledgor consist of the number and type of interests of the Persons
described in Annex E hereto; (vi) each such Limited Liability Company Interest
referenced in clause (v) of this paragraph constitutes that percentage of the
issued and outstanding equity interest of the issuing Person as set forth in
Annex E hereto; (vii) the Partnership Interests held by such Pledgor consist of
the number and type of interests of the Persons described in Annex F hereto;
(viii) each such Partnership Interest referenced in clause (vii) of this
paragraph constitutes that percentage or portion of the entire partnership
interest of the Partnership as set forth in Annex F hereto; (ix) the address of
each chief executive office of such Pledgor is listed on Annex G hereto; (x) the
Pledgor has complied with the respective procedure set forth in Section 3.2(a)
hereof with respect to each item of Collateral described in Annexes C through F
hereto; and (xi) on the date hereof, such Pledgor owns no other Securities,
Stock, Notes, Limited Liability Company Interests or Partnership Interests.
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. The Pledgee shall
have the right to appoint one or more sub-agents for the purpose of retaining
physical possession of the Collateral, which may be held (in the discretion of
the Pledgee) in the name of the relevant Pledgor, endorsed or assigned in blank
or in favor of the Pledgee or any nominee or nominees of the Pledgee or a
sub-agent appointed by the Pledgee.
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless and until there
shall have occurred and be continuing any Event of Default, each Pledgor shall
be entitled to exercise any and all voting and other consensual rights
pertaining to the Collateral owned by it, and to give consents, waivers or
ratifications in respect thereof; provided that, in each case, no vote shall be
cast or any consent, waiver or ratification given or any action taken or omitted
to be taken which would violate or result in a breach of any covenant contained
in any Secured Debt Agreement, or which would have the effect of impairing in
any material respect the value of the Collateral or any part thereof or the
position or interests of the Pledgee or any other Secured Creditor in the
Collateral, unless expressly permitted by the terms of the Secured Debt
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Agreements. All such rights of each Pledgor to vote and to give consents,
waivers and ratifications shall cease in case an Event of Default has occurred
and is continuing, and Section 7 hereof shall become applicable.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless and until there shall
have occurred and be continuing an Event of Default, all cash dividends, cash
distributions, cash Proceeds and other cash amounts payable in respect of the
Collateral shall be paid to the respective Pledgor. The Pledgee shall be
entitled to receive directly, and to retain as part of the Collateral:
(i) all other or additional stock, notes, certificates, limited
liability company interests, partnership interests, instruments or other
securities or property paid or distributed by way of dividend or otherwise
in respect of the Collateral (except for cash dividends, unless an Event
of Default is continuing at the time of payment thereof);
(ii) all other or additional stock, notes, certificates, limited
liability company interests, partnership interests, instruments or other
securities or property paid or distributed in respect of the Collateral by
way of stock-split, spin-off, split-up, reclassification, combination of
shares or similar rearrangement (except for cash dividends, unless an
Event of Default is continuing at the time of payment thereof); and
(iii) all other or additional stock, notes, certificates, limited
liability company interests, partnership interests, instruments or other
securities or property which may be paid in respect of the Collateral by
reason of any consolidation, merger, exchange of stock, conveyance of
assets, liquidation or similar corporate reorganization (except for cash
dividends, unless an Event of Default is continuing at the time of payment
thereof).
Nothing contained in this Section 6 shall limit or restrict in any way the
Pledgee's right to receive proceeds of the Collateral in any form in accordance
with Section 3 of this Agreement. All dividends, distributions or other payments
which are received by any Pledgor contrary to the provisions of this Section 6
or Section 7 hereof shall be received in trust for the benefit of the Pledgee,
shall be segregated from other property or funds of such Pledgor and shall be
forthwith paid over to the Pledgee as Collateral in the same form as so received
(with any necessary endorsement).
7. REMEDIES IN CASE OF AN EVENT OF DEFAULT. If there shall have
occurred and be continuing an Event of Default, then and in every such case, the
Pledgee shall be entitled to exercise all of the rights, powers and remedies
(whether vested in it by this Agreement, any other Secured Debt Agreement or by
law) for the protection and enforcement of its rights in respect of the
Collateral, and the Pledgee shall be entitled to exercise all the rights and
remedies of a secured party under the UCC as in effect in any relevant
jurisdiction and also shall be entitled, without limitation, to exercise the
following rights, which each Pledgor hereby agrees to be commercially
reasonable:
(i) to receive all amounts payable in respect of the Collateral
otherwise payable under Section 6 hereof to the respective Pledgor;
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(ii) to transfer all or any part of the Collateral into the
Pledgee's name or the name of its nominee or nominees;
(iii) to accelerate any Pledged Note which may be accelerated in
accordance with its terms, and take any other lawful action to collect
upon any Pledged Note (including, without limitation, to make any demand
for payment thereon);
(iv) to vote (and exercise all rights and powers in respect of
voting) all or any part of the Collateral (whether or not transferred into
the name of the Pledgee) and give all consents, waivers and ratifications
in respect of the Collateral and otherwise act with respect thereto as
though it were the outright owner thereof (each Pledgor hereby irrevocably
constituting and appointing the Pledgee the proxy and attorney-in-fact of
such Pledgor, with full power of substitution to do so);
(v) at any time and from time to time to sell, assign and deliver,
or grant options to purchase, all or any part of the Collateral, or any
interest therein, at any public or private sale, without demand of
performance, advertisement, or notice of intention to sell or of the time
or place of sale or adjournment thereof or to redeem or otherwise purchase
or dispose (all of which are hereby waived by each Pledgor), for cash, on
credit or for other property, for immediate or future delivery without any
assumption of credit risk, and for such price or prices and on such terms
as the Pledgee in its absolute discretion may determine, provided at least
10 days' written notice of the time and place of any such sale shall be
given to the respective Pledgor. The Pledgee shall not be obligated to
consummate any such sale of Collateral regardless of whether any such
notice of sale has theretofore been given. Each Pledgor hereby waives and
releases to the fullest extent permitted by law any right or equity of
redemption with respect to the Collateral, whether before or after sale
hereunder, and all rights, if any, of marshalling the Collateral and any
other security or the Obligations or otherwise. At any such sale, unless
prohibited by applicable law, the Pledgee on behalf of the Secured
Creditors may bid for and purchase all or any part of the Collateral so
sold free from any such right or equity of redemption. Neither the Pledgee
nor any other Secured Creditor shall be liable for failure to collect or
realize upon any or all of the Collateral or for any delay in so doing nor
shall any of them be under any obligation to take any action whatsoever
with regard thereto; and
(vi) to set-off any and all Collateral against any and all
Obligations, and to withdraw any and all cash or other Collateral from any
and all Collateral Accounts and to apply such cash and other Collateral to
the payment of any and all Obligations.
8. REMEDIES, ETC., CUMULATIVE. Each and every right, power and
remedy of the Pledgee provided for in this Agreement or in any other Secured
Debt Agreement, or now or hereafter existing at law or in equity or by statute
shall be cumulative and concurrent and shall be in addition to every other such
right, power or remedy. The exercise or beginning of the exercise by the Pledgee
or any other Secured Creditor of any one or more of the rights, powers or
remedies provided for in this Agreement or any other Secured Debt Agreement or
now or hereafter existing at law or in equity or by statute or otherwise shall
not preclude the simultaneous or later exercise by the Pledgee or any other
Secured Creditor of all such other rights, powers or remedies, and no failure or
delay on the part of the Pledgee or any other Secured Creditor to
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exercise any such right, power or remedy shall operate as a waiver thereof. No
notice to or demand on any Pledgor in any case shall entitle it to any other or
further notice or demand in similar or other circumstances or constitute a
waiver of any of the rights of the Pledgee or any other Secured Creditor to any
other or further action in any circumstances without notice or demand. The
Secured Creditors agree that this Agreement may be enforced only by the action
of the Pledgee, in each case, acting upon the instructions of the Required
Secured Creditors, and that no other Secured Creditor shall have any right
individually to seek to enforce or to enforce this Agreement or to realize upon
the security to be granted hereby, it being understood and agreed that such
rights and remedies may be exercised by the Pledgee for the benefit of the
Secured Creditors upon the terms of this Agreement and the Security Agreement.
9. APPLICATION OF PROCEEDS. (1) All monies collected by the Pledgee
upon any sale or other disposition of the Collateral pursuant to the terms of
this Agreement, together with all other monies received by the Pledgee
hereunder, shall be applied in the manner provided in the Security Agreement.
(b) It is understood and agreed that each Pledgor shall remain
jointly and severally liable with respect to its Obligations to the extent of
any deficiency between the amount of the proceeds of the Collateral pledged by
it hereunder and the aggregate amount of such Obligations.
10. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral by the
Pledgee hereunder (whether by virtue of the power of sale herein granted,
pursuant to judicial process or otherwise), the receipt of the Pledgee or the
officer making such sale shall be a sufficient discharge to the purchaser or
purchasers of the Collateral so sold, and such purchaser or purchasers shall not
be obligated to see to the application of any part of the purchase money paid
over to the Pledgee or such officer or be answerable in any way for the
misapplication or nonapplication thereof.
11. INDEMNITY. Each Pledgor jointly and severally agrees (i) to
indemnify and hold harmless the Pledgee in such capacity and each other Secured
Creditor and their respective successors, assigns, employees, agents, affiliates
and servants (individually an "Indemnitee," and collectively the "Indemnitees")
from and against any and all claims, demands, losses, judgments and liabilities
(including liabilities for penalties) of whatsoever kind or nature, and (ii) to
reimburse each Indemnitee for all costs and expenses, including reasonable
attorneys' fees, in each case growing out of or resulting from this Agreement or
the exercise by any Indemnitee of any right or remedy granted to it hereunder or
under any other Secured Debt Agreement (but excluding any claims, demands,
losses, judgments and liabilities or expenses to the extent incurred by reason
of gross negligence or willful misconduct of such Indemnitee as determined by a
non-appealable decision by a court of competent jurisdiction). In no event shall
the Pledgee be liable, in the absence of gross negligence or willful misconduct
on its part, for any matter or thing in connection with this Agreement other
than to account for monies actually received by it in accordance with the terms
hereof. If and to the extent that the obligations of any Pledgor under this
Section 11 are unenforceable for any reason, such Pledgor hereby agrees to make
the maximum contribution to the payment and satisfaction of such obligations
which is permissible under applicable law. The indemnity obligations of each
Pledgor contained in this Section 11 shall continue in full force and effect
notwithstanding the full payment of all the
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Notes issued under the Credit Agreement, the termination of all Interest Rate
Protection Agreements and Other Hedging Agreements and Letters of Credit, the
termination of all Treasury Services and repayment of all Treasury Service
Obligations, and the payment of all other Obligations and notwithstanding the
discharge thereof.
12. PLEDGEE NOT A PARTNER OR LIMITED LIABILITY COMPANY MEMBER. (a)
Nothing herein shall be construed to make the Pledgee or any other Secured
Creditor liable as a member of any limited liability company or as a partner of
any partnership and neither the Pledgee nor any other Secured Creditor by virtue
of this Agreement or otherwise (except as referred to in the following sentence)
shall have any of the duties, obligations or liabilities of a member of any
limited liability company or of a partner of any partnership. The parties hereto
expressly agree that, unless the Pledgee shall become the absolute owner of
Collateral consisting of a Limited Liability Company Interest or Partnership
Interest pursuant hereto, this Agreement shall not be construed as creating a
partnership or joint venture among the Pledgee, any other Secured Creditor, and
Pledgor and/or any other Person.
(b) Except as provided in the last sentence of paragraph (a) of this
Section 12, the Pledgee, by accepting this Agreement, did not intend to become a
member of any limited liability company or a partner of any partnership or
otherwise be deemed to be a co-venturer with respect to any Pledgor, any limited
liability company, partnership and/or any other Person either before or after an
Event of Default shall have occurred. The Pledgee shall have only those powers
set forth herein and the Secured Creditors shall assume none of the duties,
obligations or liabilities of a member of any limited liability company or as a
partner of any partnership or any Pledgor except as provided in the last
sentence of paragraph (a) of this Section 12.
(c) The Pledgee and the other Secured Creditors shall not be
obligated to perform or discharge any obligation of any Pledgor as a result of
the pledge hereby effected.
(d) The acceptance by the Pledgee of this Agreement, with all the
rights, powers, privileges and authority so created, shall not at any time or in
any event obligate the Pledgee or any other Secured Creditor to appear in or
defend any action or proceeding relating to the Collateral to which it is not a
party, or to take any action hereunder or thereunder, or to expend any money or
incur any expenses or perform or discharge any obligation, duty or liability
under the Collateral.
13. FURTHER ASSURANCES; POWER-OF-ATTORNEY. (a) Each Pledgor agrees
that it will join with the Pledgee in authenticating and, at such Pledgor's own
expense, file and refile under the UCC or other applicable law such financing
statements, continuation statements and other documents, in form reasonably
acceptable to the Pledgee, in such offices as the Pledgee (acting on its own or
on the instructions of the Required Secured Creditors) may reasonably deem
necessary or advisable and wherever required or permitted by law in order to
perfect and preserve the Pledgee's security interest in the Collateral hereunder
and hereby authorizes the Pledgee to file financing statements and amendments
thereto relative to all or any part of the Collateral (including, without
limitation, (x) financing statements which list the Collateral specifically
and/or "all assets" as collateral and (y) "in lieu of" financing statements)
without the signature of such Pledgor where permitted by law, and agrees to do
such further acts and things and to execute and deliver to the Pledgee such
additional conveyances, assignments,
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agreements and instruments as the Pledgee may reasonably require or deem
advisable to carry into effect the purposes of this Agreement or to further
assure and confirm unto the Pledgee its rights, powers and remedies hereunder or
thereunder.
(b) Each Pledgor hereby constitutes and appoints the Pledgee its
true and lawful attorney-in-fact, irrevocably, with full authority in the place
and stead of such Pledgor and in the name of such Pledgor or otherwise, from
time to time after the occurrence and during the continuance of an Event of
Default, in the Pledgee's reasonable discretion, to act, require, demand,
receive and give acquittance for any and all monies and claims for monies due or
to become due to such Pledgor under or arising out of the Collateral, to endorse
any checks or other instruments or orders in connection therewith and to file
any claims or take any action or institute any proceedings and to execute any
instrument which the Pledgee may deem necessary or advisable to accomplish the
purposes of this Agreement, which appointment as attorney is coupled with an
interest.
14. THE PLEDGEE AS COLLATERAL AGENT. The Pledgee will hold in
accordance with this Agreement all items of the Collateral at any time received
under this Agreement. It is expressly understood, acknowledged and agreed by
each Secured Creditor that by accepting the benefits of this Agreement each such
Secured Creditor acknowledges and agrees that the obligations of the Pledgee as
holder of the Collateral and interests therein and with respect to the
disposition thereof, and otherwise under this Agreement, are only those
expressly set forth in this Agreement. The Pledgee shall act hereunder on the
terms and conditions set forth herein and in Section 12 of the Credit Agreement.
15. TRANSFER BY THE PLEDGORS. Except as permitted (i) prior to the
date all Credit Document Obligations have been paid in full and all Commitments
under the Credit Agreement have been terminated pursuant to the Credit Agreement
(and no further Incremental Term Loan Commitments may be requested or provided
under the Credit Agreement), and (ii) thereafter, pursuant to the other Secured
Debt Agreements, no Pledgor will sell or otherwise dispose of, grant any option
with respect to, or mortgage, pledge or otherwise encumber any of the Collateral
or any interest therein.
16. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGORS. (a)
Each Pledgor represents, warrants and covenants that:
(i) it is the legal, beneficial and record owner of, and has good
and marketable title to, all Collateral purported to be owned by it
consisting of one or more Securities and that it has sufficient interest
in all Collateral purported to be owned by it in which a security interest
is purported to be created hereunder for such security interest to attach
(subject, in each case, to no pledge, lien, mortgage, hypothecation,
security interest, charge, option, Adverse Claim or other encumbrance
whatsoever, except the liens and security interests created by this
Agreement and Permitted Liens of the type described in Section 9.01(i),
(ii) or (xxiii) of the Credit Agreement);
(ii) it has full power, authority and legal right to pledge all the
Collateral pledged by it pursuant to this Agreement;
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(iii) this Agreement has been duly authorized, executed and
delivered by such Pledgor and constitutes a legal, valid and binding
obligation of such Pledgor enforceable against such Pledgor in accordance
with its terms, except to the extent that the enforceability hereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws generally affecting creditors' rights and by
equitable principles (regardless of whether enforcement is sought in
equity or at law);
(iv) except to the extent already obtained or made, no consent of
any other party (including, without limitation, any stockholder, partner,
member or creditor of such Pledgor or any of its Subsidiaries) and no
consent, license, permit, approval or authorization of, exemption by,
notice or report to, or registration, filing or declaration with, any
governmental authority is required to be obtained by such Pledgor in
connection with (a) the execution, delivery or performance of this
Agreement, (b) the validity or enforceability of this Agreement, (c) the
perfection or enforceability of the Pledgee's security interest in the
Collateral or (d) the exercise by the Pledgee of any of its rights or
remedies provided herein, except (1) in the case of preceding clause (d),
for compliance with or as may be required by applicable securities laws
and (2) in the case of preceding clauses (a), (b) and (d), as could not,
either individually or in the aggregate, be expected to have a material
adverse effect on the business, assets, liabilities, operations or
condition (financial or otherwise) of VHS Holdco I and its Subsidiaries
taken as a whole;
(v) the execution, delivery and performance of this Agreement (a)
will not violate any provision of any applicable law or regulation or of
any order, judgment, writ, award or decree of any court, arbitrator or
governmental authority, domestic or foreign, applicable to such Pledgor,
or of the certificate of incorporation, operating agreement, limited
liability company agreement, partnership agreement or by-laws of such
Pledgor or of any securities issued by such Pledgor or any of its
Subsidiaries, or of any mortgage, deed of trust, indenture, lease, loan
agreement, credit agreement or other material contract, agreement or
instrument or undertaking to which such Pledgor or any of its Subsidiaries
is a party or which purports to be binding upon such Pledgor or any of its
Subsidiaries or upon any of their respective assets except to the extent
that any such violation described in this clause (a) could not, either
individually or in the aggregate, reasonably be expected to result in a
material adverse effect on the business, assets, liabilities, operations
or condition (financial or otherwise) of VHS Holdco I and its Subsidiaries
taken as a whole and (b) will not result in the creation or imposition of
(or the obligation to create or impose) any lien or encumbrance on any of
the assets of such Pledgor or any of its Subsidiaries except as
contemplated by this Agreement;
(vi) all of the Collateral pledged by it that consists of
Securities, Limited Liability Company Interests or Partnership Interests
has been duly and validly issued and acquired, is fully paid and
non-assessable and is subject to no options to purchase or similar rights;
(vii) each of the Pledged Notes pledged by it constitutes, or when
executed by the obligor thereof will constitute, the legal, valid and
binding obligation of such obligor, enforceable in accordance with its
terms, except to the extent that the enforceability thereof may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws generally affecting creditors' rights and by equitable
principles
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(regardless of whether enforcement is sought in equity or at law); it
being understood that the representation and warranty made by each Pledgor
pursuant to this clause (vii) with respect to Pledge Notes issued by a
Person that is not a Subsidiary of such Pledgor shall only be made to the
best of such Pledgor knowledge;
(viii) the pledge, collateral assignment and delivery to the Pledgee
of the Collateral consisting of Certificated Securities, and Pledged Notes
pursuant to this Agreement creates a valid and perfected first priority
security interest in such Certificated Securities, and Pledged Notes, and
the proceeds thereof, subject to no prior Lien or encumbrance or to any
agreement purporting to grant to any third party a Lien or encumbrance on
the property or assets of such Pledgor which would include the Securities,
and the Pledgee is entitled to all the rights, priorities and benefits
afforded by the UCC or other relevant law as enacted in any relevant
jurisdiction to perfect security interests in respect of such Collateral;
and
(ix) "control" (as defined in Section 8-106 of the UCC) has been
obtained by the Pledgee over all of such Pledgor's Collateral consisting
of Securities (including, without limitation, Notes which are Securities)
with respect to which such "control" may be obtained pursuant to Section
8-106 of the UCC, except to the extent that the obligation of the
applicable Pledgor to provide the Pledgee with "control" of such
Collateral has not yet arisen under this Agreement; provided that in the
case of the Pledgee obtaining "control" over Collateral consisting of a
Security Entitlement, such Pledgor shall not be required to have taken all
steps in its control so that the Pledgee obtains "control" over such
Security Entitlement.
(b) Each Pledgor covenants and agrees that it will defend the
Pledgee's right, title and security interest in and to such Pledgor's Collateral
and the proceeds thereof against the claims and demands of all persons
whomsoever; and each Pledgor covenants and agrees that it will have like title
to and right to pledge any other property at any time hereafter pledged to the
Pledgee by such Pledgor as Collateral hereunder and will likewise defend the
right thereto and security interest therein of the Pledgee and the other Secured
Creditors.
(c) Each Pledgor which is a limited liability company or a
partnership (and each Pledgor which is a direct parent of any such limited
liability company or partnership) covenants and agrees that it will not, without
15 days prior written notice to the Pledgee, amend or modify (or allow to be
amended or modified) any limited liability company agreement, partnership
agreement or other organizational document of such limited liability company or
partnership in any manner which causes the Limited Liability Company Interests
or Partnership Interests of such limited liability company or partnership, as
the case may be, to be treated as a "security" governed under Article 8 of the
UCC; provided that nothing herein shall prohibit any Pledgor from creating or
acquiring limited liability companies or partnerships in compliance with the
Credit Agreement whose equity interests are treated as "securities" governed
under Article 8 of the UCC so long as the relevant procedures under Section 3.2
hereof are taken at the time of any such creation or acquisition.
17. LEGAL NAMES; TYPE OF ORGANIZATION (AND WHETHER A REGISTERED
ORGANIZATION AND/OR A TRANSMITTING UTILITY); JURISDICTION
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OF ORGANIZATION; LOCATION; ORGANIZATIONAL IDENTIFICATION NUMBERS; CHANGES
THERETO; ETC. The exact legal name of each Pledgor, the type of organization of
such Pledgor, whether or not such Pledgor is a Registered Organization, the
jurisdiction of organization of such Pledgor, such Pledgor's Location, the
organizational identification number (if any) of each Pledgor, and whether or
not such Pledgor is a Transmitting Utility, is listed on Annex A hereto for such
Pledgor. No Pledgor shall change its legal name, its type of organization, its
status as a Registered Organization (in the case of a Registered Organization),
its status as a Transmitting Utility or as a Person which is not a Transmitting
Utility, as the case may be, its jurisdiction of organization, its Location, or
its organizational identification number (if any), except that any such changes
shall be permitted (so long as not in violation of the applicable requirements
of the Secured Debt Agreements and so long as same do not involve (x) a
Registered Organization ceasing to constitute same or (y) any Pledgor changing
its jurisdiction of organization or Location from the United States or a State
thereof to a jurisdiction of organization or Location, as the case may be,
outside the United States or a State thereof) if (i) it shall have given to the
Pledgee not less than 15 days' prior written notice of each change to the
information listed on Annex A (as adjusted for any subsequent changes thereto
previously made in accordance with this sentence), together with a supplement to
Annex A which shall correct all information contained therein for such Pledgor,
and (ii) in connection with the respective such change or changes, it shall have
taken all action reasonably requested by the Pledgee to maintain the security
interests of the Pledgee in the Collateral intended to be granted hereby at all
times fully perfected and in full force and effect. In addition, to the extent
that any Pledgor does not have an organizational identification number on the
date hereof and later obtains one, such Pledgor shall promptly thereafter
deliver a notification to the Pledgee of such organizational identification
number and shall take all actions reasonably satisfactory to the Pledgee to the
extent necessary to maintain the security interest of the Pledgee in the
Collateral intended to be granted hereby fully perfected and in full force and
effect.
18. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. The obligations of each
Pledgor under this Agreement shall be absolute and unconditional and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever (other than termination of this Agreement pursuant to
Section 20 hereof), including, without limitation:
(i) any renewal, extension, amendment or modification of, or
addition or supplement to or deletion from any Secured Debt Agreement
(other than this Agreement in accordance with its terms), or any other
instrument or agreement referred to therein, or any assignment or transfer
of any thereof;
(ii) any waiver, consent, extension, indulgence or other action or
inaction under or in respect of any such agreement or instrument
including, without limitation, this Agreement (other than a waiver,
consent or extension with respect to this Agreement in accordance with its
terms);
(iii) any furnishing of any additional security to the Pledgee or
its assignee or any acceptance thereof or any release of any security by
the Pledgee or its assignee;
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(iv) any limitation on any party's liability or obligations under
any such instrument or agreement or any invalidity or unenforceability, in
whole or in part, of any such instrument or agreement or any term thereof;
or
(v) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to
any Pledgor or any Subsidiary of any Pledgor, or any action taken with
respect to this Agreement by any trustee or receiver, or by any court, in
any such proceeding, whether or not such Pledgor shall have notice or
knowledge of any of the foregoing.
19. REGISTRATION, ETC. If at any time when the Pledgee shall
determine to exercise its right to sell all or any part of the Collateral
consisting of Securities, Limited Liability Company Interests or Partnership
Interests pursuant to Section 7 hereof, and such Collateral or the part thereof
to be sold shall not, for any reason whatsoever, be effectively registered under
the Securities Act, as then in effect, the Pledgee may, in its sole and absolute
discretion, sell such Collateral or part thereof by private sale in such manner
and under such circumstances as the Pledgee may deem necessary or advisable in
order that such sale may legally be effected without such registration. Without
limiting the generality of the foregoing, in any such event the Pledgee, in its
sole and absolute discretion (i) may proceed to make such private sale
notwithstanding that a registration statement for the purpose of registering
such Collateral or part thereof shall have been filed under such Securities Act,
(ii) may approach and negotiate with a single possible purchaser to effect such
sale, and (iii) may restrict such sale to a purchaser who will represent and
agree that such purchaser is purchasing for its own account, for investment, and
not with a view to the distribution or sale of such Collateral or part thereof.
In the event of any such sale, the Pledgee shall incur no responsibility or
liability for selling all or any part of the Collateral at a price which the
Pledgee, in its sole and absolute discretion, may in good ▇▇▇▇▇ ▇▇▇▇ reasonable
under the circumstances, notwithstanding the possibility that a substantially
higher price might be realized if the sale were deferred until the registration
as aforesaid.
20. TERMINATION; RELEASE. (a) On the Termination Date (as defined
below), this Agreement and the security interest created hereby shall terminate
(provided that all indemnities set forth herein including, without limitation,
in Section 11 hereof shall survive any such termination) and the Pledgee, at the
request and expense of such Pledgor, will execute and deliver to such Pledgor a
proper instrument or instruments (including UCC termination statements)
acknowledging the satisfaction and termination of this Agreement (including,
without limitation, UCC termination statements and instruments of satisfaction,
discharge and/or reconveyance), and will assign, transfer and deliver to such
Pledgor (without recourse and without any representation or warranty) such of
the Collateral as may be in the possession of the Pledgee and as has not
theretofore been sold or otherwise applied or released pursuant to this
Agreement, together with any monies at the time held by the Pledgee or any of
its sub-agents hereunder and, with respect to any Collateral consisting of an
Uncertificated Security, a Partnership Interest or a Limited Liability Company
Interest (other than an Uncertificated Security, Partnership Interest or Limited
Liability Company Interest credited on the books of a Clearing Corporation or
Securities Intermediary), a termination of the agreement relating thereto
executed and delivered by the issuer of such Uncertificated Security pursuant to
Section 3.2(a)(ii) or by the respective partnership or limited liability company
pursuant to Section
-21-
3.2(a)(iii)(2). As used in this Agreement, "Termination Date" shall mean the
date upon which the Commitments under the Credit Agreement have been terminated,
all Interest Rate Protection Agreements and Other Hedging Agreements entitled to
the benefits of this Agreement have been terminated, all Treasury Services have
been terminated and all outstanding obligations thereunder and under the
Treasury Services Agreement have been paid in full, no Letter of Credit or Note
(as defined in the Credit Agreement) is outstanding (and all Loans have been
paid in full), all Letters of Credit have been terminated, no further
Incremental Term Loan Commitments may be requested by the Borrower or provided
by any Lender or any other Person, and all other Obligations (other than
indemnities described in Section 11 hereof and described in Section 14.01 of the
Credit Agreement, and any other indemnities set forth in any other Security
Documents, in each case which are not then due and payable) then due and payable
have been paid in full.
(b) In the event that any part of the Collateral is sold,
transferred or otherwise disposed of (to a Person other than a Credit Party) (x)
at any time prior to the time at which all Credit Document Obligations have been
paid in full and all Commitments and Letters of Credit under the Credit
Agreement have been terminated (and no further Incremental Term Loan Commitments
may be requested or provided under the Credit Agreement), in connection with a
sale or disposition permitted by Section 9.02 of the Credit Agreement or is
otherwise released at the direction of the Required Lenders (or all the Lenders
if required by Section 14.12 of the Credit Agreement) or (y) at any time
thereafter, to the extent permitted by the other Secured Debt Agreements, and in
the case of clauses (x) and (y), the proceeds of such sale, transfer or other
disposition (or from such release) are applied in accordance with the terms of
the Credit Agreement or such other Secured Debt Agreement, as the case may be,
to the extent required to be so applied, the Pledgee, at the request and expense
of such Pledgor, will promptly execute and deliver such documentation, including
termination or partial release statements and the like in connection therewith
and assign, transfer and deliver to such Pledgor (without recourse and without
any representation or warranty) such of the Collateral as is then being (or has
been) so sold, transferred or otherwise disposed of or released and as may be in
the possession of the Pledgee (or, in the case of Collateral held by any
sub-agent designated pursuant to Section 4 hereof, such sub-agent) and has not
theretofore been released pursuant to this Agreement. Furthermore, upon the
release of any Subsidiary Guarantor from the Subsidiaries Guaranty in accordance
with the provisions thereof, such Pledgor (and the Collateral at such time
pledged by the respective Pledgor pursuant hereto) shall be released from this
Agreement).
(c) At any time that any Pledgor desires that the Pledgee assign,
transfer and deliver Collateral (and releases therefor) as provided in the
foregoing Section 20(a) or (b), it shall deliver to the Pledgee (and the
relevant sub-agent, if any, designated pursuant to Section 4 hereof) a
certificate signed by an authorized officer of such Pledgor stating that the
release of the respective Collateral is permitted pursuant to such Section 20(a)
or (b). At any time that the Borrower or the respective Pledgor desires that a
Subsidiary of the Borrower which has been released from the Subsidiaries
Guaranty be released hereunder as provided in the last sentence of Section
20(b), it shall deliver to the Pledgee a certificate executed by a principal
executive officer of the Borrower and the respective Pledgor stating that the
release of the respective Pledgor (and its Collateral) is permitted pursuant to
such Section 20(b).
-22-
(d) The Pledgee shall have no liability whatsoever to any other
Secured Creditor as the result of any release of Collateral by it in accordance
with (or which the Collateral Agent in the absence of gross negligence and
willful misconduct believes to be in accordance with) this Section 20.
21. NOTICES, ETC. Except as otherwise specified herein, all notices,
requests, demands or other communications to or upon the respective parties
hereto shall be sent or delivered by mail, telegraph, telex, telecopy, cable or
courier service and all such notices and communications shall, when mailed,
telegraphed, telexed, telecopied, or cabled or sent by courier, be effective
when deposited in the mails, delivered to the telegraph company, cable company
or overnight courier, as the case may be, or sent by telex or telecopier, except
that notices and communications to the Pledgee or any Pledgor shall not be
effective until received by the Pledgee or such Pledgor, as the case may be. All
notices and other communications shall be in writing and addressed as follows:
(a) if to any Pledgor, at;
c/o Vanguard Health Systems, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
(b) if to the Pledgee, at:
Bank of America, N.A.
Agency Management
Mail Code: CA5-701-05-19
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
With a copy to:
Bank of America, N.A.
Mail Code: NC1-007-17-11
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-23-
Email: ▇▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
(c) if to any Lender Creditor, either (x) to the Administrative
Agent, at the address of the Administrative Agent specified in the Credit
Agreement, or (y) at such address as such Lender Creditor shall have
specified in its Administrative Questionnaire;
(d) if to any Other Creditor, at such address as such Other Creditor
shall have specified in writing to the Pledgors and the Pledgee;
(e) if to any Treasury Service Creditor, at such address as such
Treasury Service Creditor shall have specified in writing to the Pledgors
and the Pledgee
(f) or at such other address or addressed to such other individual
as shall have been furnished in writing by any Person described above to
the party required to give notice hereunder.
22. WAIVER; AMENDMENT. Except as provided in Sections 20 and 30
hereof, none of the terms and conditions of this Agreement may be changed,
waived, modified or varied in any manner whatsoever except in accordance with
the requirements specified in the Security Agreement.
23. SUCCESSORS AND ASSIGNS. This Agreement shall create a continuing
security interest in the Collateral and shall (i) remain in full force and
effect, subject to release and/or termination as set forth in Section 20, (ii)
be binding upon each Pledgor, its successors and assigns; provided, however,
that no Pledgor shall assign any of its rights or obligations hereunder without
the prior written consent of the Pledgee (with the prior written consent of the
Required Secured Creditors), and (iii) inure, together with the rights and
remedies of the Pledgee hereunder, to the benefit of the Pledgee, the other
Secured Creditors and their respective successors, transferees and assigns. All
agreements, statements, representations and warranties made by each Pledgor
herein or in any certificate or other instrument delivered by such Pledgor or on
its behalf under this Agreement shall be considered to have been relied upon by
the Secured Creditors and shall survive the execution and delivery of this
Agreement and the other Secured Debt Agreements regardless of any investigation
made by the Secured Creditors or on their behalf.
24. HEADINGS DESCRIPTIVE. The headings of the several Sections of
this Agreement are inserted for convenience only and shall not in any way affect
the meaning or construction of any provision of this Agreement.
25. GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY
TRIAL. (a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF
THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, IN
EACH CASE WHICH ARE LOCATED IN THE COUNTY OF NEW YORK, AND, BY EXECUTION AND
DELIVERY OF THIS
-24-
AGREEMENT, EACH PLEDGOR HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF
ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF
THE AFORESAID COURTS. EACH PLEDGOR HEREBY FURTHER IRREVOCABLY WAIVES ANY CLAIM
THAT ANY SUCH COURTS LACK PERSONAL JURISDICTION OVER SUCH PLEDGOR, AND AGREES
NOT TO PLEAD OR CLAIM IN ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN ANY OF THE AFORESAID COURTS
THAT ANY SUCH COURT LACKS PERSONAL JURISDICTION OVER SUCH PLEDGOR. EACH PLEDGOR
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO ANY SUCH PLEDGOR AT
ITS ADDRESS FOR NOTICES AS PROVIDED IN SECTION 21 ABOVE, SUCH SERVICE TO BECOME
EFFECTIVE 30 DAYS AFTER SUCH MAILING. EACH PLEDGOR HEREBY IRREVOCABLY WAIVES ANY
OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES
NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER
ANY OTHER CREDIT DOCUMENT THAT SUCH SERVICE OF PROCESS WAS IN ANY WAY INVALID OR
INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE PLEDGEE UNDER THIS
AGREEMENT, OR ANY SECURED CREDITOR, TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
ANY PLEDGOR IN ANY OTHER JURISDICTION.
(b) EACH PLEDGOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS
OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (A) ABOVE AND HEREBY
FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT
THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING
OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
26. PLEDGOR'S DUTIES. It is expressly agreed, anything herein
contained to the contrary notwithstanding, that each Pledgor shall remain liable
to perform all of the obligations, if any, assumed by it with respect to the
Collateral and the Pledgee shall not have any obligations or liabilities with
respect to any Collateral by reason of or arising out of this Agreement, except
for the safekeeping of Collateral actually in the Pledgee's possession, nor
-25-
shall the Pledgee be required or obligated in any manner to perform or fulfill
any of the obligations of any Pledgor under or with respect to any Collateral.
27. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with each Pledgor and the
Pledgee.
28. SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
29. RECOURSE. This Agreement is made with full recourse to each
Pledgor and pursuant to and upon all the representations, warranties, covenants
and agreements on the part of such Pledgor contained herein and in the other
Secured Debt Agreements and otherwise in writing in connection herewith or
therewith.
30. ADDITIONAL PLEDGORS. It is understood and agreed that any
Subsidiary of the Borrower that is required to become a party to this Agreement
after the date hereof pursuant to the requirements of the Credit Agreement or
any other Credit Document, shall become a Pledgor hereunder by (x) executing a
counterpart hereof and delivering same to the Pledgee or a Joinder Agreement
substantially in the form of Exhibit M to the Credit Agreement, (y) delivering
supplements to Annexes A through G, hereto as are necessary to cause such
annexes to be complete and accurate with respect to such additional Pledgor on
such date and (z) taking all actions as specified in this Agreement as would
have been taken by such Pledgor had it been an original party to this Agreement,
in each case with all documents required above to be delivered to the Pledgee
and with all documents and actions required above to be taken to the reasonable
satisfaction of the Pledgee.
31. LIMITED OBLIGATIONS. It is the desire and intent of each Pledgor
and the Secured Creditors that this Agreement shall be enforced against each
Pledgor to the fullest extent permissible under the laws applied in each
jurisdiction in which enforcement is sought. Notwithstanding anything to the
contrary contained herein, in furtherance of the foregoing, it is noted that the
obligations of each Pledgor constituting a Subsidiary Guarantor have been
limited as provided in the Subsidiaries Guaranty.
32. TREASURY SERVICES OBLIGATIONS AS "SENIOR DEBT". The parties
hereto hereby acknowledge and agree that the Treasury Services Obligations are
(i) "Senior Indebtedness" for the purposes of the Existing Senior Subordinated
Note Documents, (ii) "Senior Debt" for the purposes of the New Senior
Subordinated Note Documents or (iii) any similar term for the purposes of any
Permitted Senior Subordinated Note Documents.
* * * *
-26-
IN WITNESS WHEREOF, each Pledgor and the Pledgee have caused this
Agreement to be executed by their duly elected officers duly authorized as of
the date first above written.
VANGUARD HEALTH HOLDING COMPANY I, LLC
VANGUARD HOLDING COMPANY I, INC.
VANGUARD HEALTH HOLDING COMPANY II, LLC
VANGUARD HOLDING COMPANY II, INC.
VHS ACQUISITION CORPORATION
VHS OF PHOENIX, INC.
VHS OUTPATIENT CLINICS, INC.
VHS OF ARROWHEAD, INC.
VHS OF SOUTH PHOENIX, INC.
VHS IMAGING CENTERS, INC.
VHS OF ANAHEIM, INC.
VHS OF ORANGE COUNTY, INC.
VHS HOLDING COMPANY, INC.
VHS OF HUNTINGTON BEACH, INC.
VHS OF ILLINOIS, INC.
▇▇▇▇▇▇▇ HEALTH PROVIDERS, INC.
▇▇▇▇▇▇▇ MANAGEMENT SERVICES, INC.
MIDWEST CLAIMS PROCESSING, INC.
PROS TEMPORARY STAFFING, INC.
WATERMARK PHYSICIAN SERVICES,INC.
VHS GENESIS LABS, INC.
▇▇▇▇▇▇▇ MEDICAL RECORDS, INC.
VANGUARD HEALTH MANAGEMENT, INC.
VANGUARD HEALTH FINANCIAL COMPANY, INC.
VHS ACQUISITION SUBSIDIARY NUMBER 1, INC.
VHS ACQUISITION SUBSIDIARY NUMBER 2, INC.
VHS ACQUISITION SUBSIDIARY NUMBER 4, INC.
VHS ACQUISITION SUBSIDIARY NUMBER 5, INC.
VHS ACQUISITION SUBSIDIARY NUMBER 8, INC.
HOSPITAL DEVELOPMENT OF WEST PHOENIX, INC.
each as a Pledgor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Title: Executive Vice President,
Chief Financial Officer and Treasurer
Duly authorized to sign on behalf of
each of the foregoing entities
THE ANAHEIM VHS LIMITED PARTNERSHIP,
as a Pledgor
By: VHS of Anaheim, Inc., its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Title: Executive Vice President,
Chief Financial Officer and Treasurer
THE HUNTINGTON BEACH VHS LIMITED PARTNERSHIP,
as a Pledgor
By: VHS of Huntington Beach, Inc., its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Title: Executive Vice President,
Chief Financial Officer and Treasurer
HEALTHCARE COMPLIANCE, L.L.C.,
as a Pledgor
By: Vanguard Health Management, Inc., its Member
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Title: Executive Vice President,
Chief Financial Officer and Treasurer
THE VHS ARIZONA IMAGING CENTERS LIMITED
PARTNERSHIP, as a Pledgor
By: VHS Imaging Centers, Inc., its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Title: Executive Vice President,
Chief Financial Officer and Treasurer
VHS SAN ANTONIO PARTNERS, L.P.,
as a Pledgor
By: VHS Acquisition Subsidiary Number 5,
Inc., as General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Title: Executive Vice President,
Chief Financial Officer and Treasurer
Accepted and Agreed to:
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Title: Principal
BANK OF AMERICA, N.A.,
as Collateral Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Title: Principal
Annex A
to
PLEDGE AGREEMENT
SCHEDULE OF LEGAL NAMES, TYPE OF ORGANIZATION
(AND WHETHER A REGISTERED ORGANIZATION AND/OR
A TRANSMITTING UTILITY), JURISDICTION OF ORGANIZATION,
LOCATION AND ORGANIZATIONAL IDENTIFICATION NUMBERS
Pledgor's
Organization
Identification
Registered Pledgor's Location Number (or,
Exact Legal Name of Organization? Jurisdiction of (for purposes of NY if it has none, Transmitting
Each Pledgor (Yes/No) Organization UCC Section 9-307) so indicate) Utility? (Yes/No)
------------ -------- ------------ ------------------- ------------ -----------------
ANNEX B
to
PLEDGE AGREEMENT
SCHEDULE OF SUBSIDIARIES
Jurisdiction of
Entity Ownership Organization
------ --------- ------------
ANNEX C
to
PLEDGE AGREEMENT
SCHEDULE OF STOCK
1. [PLEDGOR]
Sub-clause of
Name of Section 3.2(a)
Issuing Type of Number of Certificate Percentage of Pledge
Corporation Shares Shares No.(1) Owned(2) Agreement
----------- ------ ------ ------ -------- ---------
2. [ADDITIONAL PLEDGOR(S)]
Sub-clause of
Name of Section 3.2(a)
Issuing Type of Number of Certificate Percentage of Pledge
Corporation Shares Shares No. Owned Agreement
----------- ------ ------ --- ----- ---------
------------------------
(1) Specify if uncertificated.
(2) Specify for each Foreign Subsidiary the percentage owned of (x) Voting
Stock and (y) Non-Voting Stock.
ANNEX D
to
PLEDGE AGREEMENT
SCHEDULE OF NOTES
1. [PLEDGOR]
Sub-clause of
Section 3.2(a)
Amount Maturity Date Obligor of Pledge Agreement
------ ------------- ------- -------------------
2. [ADDITIONAL PLEDGOR(S)]
Sub-clause of
Section 3.2(a)
Amount Maturity Date Obligor of Pledge Agreement
------ ------------- ------- -------------------
ANNEX E
to
PLEDGE AGREEMENT
SCHEDULE OF LIMITED LIABILITY COMPANY INTERESTS
1. [PLEDGOR]
Name of Sub-clause of
Issuing Limited Type of Section 3.2(a)
Liability Company Interest Percentage Owned of Pledge Agreement
----------------- -------- ---------------- -------------------
2. [ADDITIONAL PLEDGOR(S)]
Name of Sub-clause of
Issuing Limited Type of Section 3.2(a)
Liability Company Interest Percentage Owned of Pledge Agreement
----------------- -------- ---------------- -------------------
ANNEX F
to
PLEDGE AGREEMENT
SCHEDULE OF PARTNERSHIP INTERESTS
1. [PLEDGOR]
Sub-clause of
Name of Type of Section 3.2(a)
Issuing Partnership Interest Percentage Owned of Pledge Agreement
------------------- -------- ---------------- -------------------
2. [ADDITIONAL PLEDGOR(S)]
Sub-clause of
Name of Type of Section 3.2(a)
Issuing Partnership Interest Percentage Owned of Pledge Agreement
------------------- -------- ---------------- -------------------
ANNEX G
to
PLEDGE AGREEMENT
SCHEDULE OF CHIEF EXECUTIVE OFFICES
Name of Pledgor Address(es) of Chief Executive Office(1)
--------------- -------------------------------------
-------------------
(1) For each Pledgor, list the address of its chief executive office on the
date of the Security Agreement and each other location (if any) of its
chief executive office in the four calendar months preceding said date.
ANNEX H
to
PLEDGE AGREEMENT
Form of Agreement Regarding Uncertificated Securities, Limited Liability
Company Interests and Partnership Interests
AGREEMENT (as amended, modified, restated and/or supplemented from
time to time, this "Agreement"), dated as of [_______ __, 20__], among the
undersigned pledgor (the "Pledgor"), Bank of America, N.A., not in its
individual capacity but solely as Collateral Agent (the "Pledgee"), and
[__________], as the issuer of the Uncertificated Securities, Limited Liability
Company Interests and/or Partnership Interests (each as defined below) (the
"Issuer").
W I T N E S S E T H :
WHEREAS, the Pledgor, certain of its affiliates and the Pledgee have
entered into a Pledge Agreement, dated as of September 23, 2004 (as amended,
modified, restated and/or supplemented from time to time, the "Pledge
Agreement"), under which, among other things, in order to secure the payment of
the Obligations (as defined in the Pledge Agreement), the Pledgor has or will
pledge to the Pledgee for the benefit of the Secured Creditors (as defined in
the Pledge Agreement), and grant a security interest in favor of the Pledgee for
the benefit of the Secured Creditors in, all of the right, title and interest of
the Pledgor in and to any and all ["uncertificated securities" (as defined in
Section 8-102(a)(18) of the Uniform Commercial Code, as adopted in the State of
New York) ("Uncertificated Securities")] [Partnership Interests (as defined in
the Pledge Agreement)] [Limited Liability Company Interests (as defined in the
Pledge Agreement)], from time to time issued by the Issuer, whether now existing
or hereafter from time to time acquired by the Pledgor (with all of such
[Uncertificated Securities] [Partnership Interests] [Limited Liability Company
Interests] being herein collectively called the "Issuer Pledged Interests"); and
WHEREAS, the Pledgor desires the Issuer to enter into this Agreement
in order to perfect the security interest of the Pledgee under the Pledge
Agreement in the Issuer Pledged Interests, to vest in the Pledgee control of the
Issuer Pledge Interests and to provide for the rights of the parties under this
Agreement;
NOW THEREFORE, in consideration of the premises and the mutual
promises and agreements contained herein, and for other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. The Pledgor hereby irrevocably authorizes and directs the Issuer,
and the Issuer hereby agrees, to comply with any and all instructions and orders
originated by the Pledgee (and its successors and assigns) regarding any and all
of the Issuer Pledged Interests without the further consent by the registered
owner (including the Pledgor), and, following its receipt of a notice from the
Pledgee stating that the Pledgee is exercising exclusive control of the Issuer
Pledged Interests, not to comply with any instructions or orders regarding any
or all of the
Annex H
Page 2
Issuer Pledged Interests originated by any person or entity other than the
Pledgee (and its successors and assigns) or a court of competent jurisdiction.
2. The Issuer hereby certifies that (i) no notice of any security
interest, lien or other encumbrance or claim affecting the Issuer Pledged
Interests (other than the security interest of the Pledgee) has been received by
it, and (ii) the security interest of the Pledgee in the Issuer Pledged
Interests has been registered in the books and records of the Issuer.
3. The Issuer hereby represents and warrants that (i) the pledge by
the Pledgor of, and the granting by the Pledgor of a security interest in, the
Issuer Pledged Interests to the Pledgee, for the benefit of the Secured
Creditors, does not violate the charter, by-laws, partnership agreement,
membership agreement or any other agreement governing the Issuer or the Issuer
Pledged Interests, and (ii) the Issuer Pledged Interests consisting of capital
stock of a corporation are fully paid and nonassessable.
4. All notices, statements of accounts, reports, prospectuses,
financial statements and other communications to be sent to the Pledgor by the
Issuer in respect of the Issuer will also be sent to the Pledgee at the
following address:
Bank of America, N.A.
Agency Management
Mail Code: CA5-701-05-19
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▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
With a copy to:
Bank of America, N.A.
Mail Code: NC1-007-17-11
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇.▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
5. Following its receipt of a notice from the Pledgee stating that
the Pledgee is exercising exclusive control of the Issuer Pledged Interests and
until the Pledgee shall have delivered written notice to the Issuer that all of
the Obligations have been paid in full and this Agreement is terminated, the
Issuer will send any and all redemptions, distributions, interest or other
payments in respect of the Issuer Pledged Interests from the Issuer for the
account of the Pledgee only by wire transfers to such account as the Pledgee
shall instruct.
Annex H
Page 3
6. Except as expressly provided otherwise in Sections 4 and 5, all
notices, instructions, orders and communications hereunder shall be sent or
delivered by mail, telegraph, telex, telecopy, cable or overnight courier
service and all such notices and communications shall, when mailed, telexed,
telecopied, cabled or sent by overnight courier, be effective when deposited in
the mails or delivered to overnight courier, prepaid and properly addressed for
delivery on such or the next Business Day, or sent by telex or telecopier,
except that notices and communications to the Pledgee or the Issuer shall not be
effective until received. All notices and other communications shall be in
writing and addressed as follows:
(a) if to the Pledgor, at:
c/o Vanguard Health Systems, Inc.
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
(b) if to the Pledgee, at the address given in Section 4 hereof;
(c) if to the Issuer, at:
___________________________
___________________________
___________________________
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder. As used in this
Section 6, "Business Day" means any day other than a Saturday, Sunday, or other
day in which banks in New York are authorized to remain closed.
7. This Agreement shall be binding upon the successors and assigns
of the Pledgor and the Issuer and shall inure to the benefit of and be
enforceable by the Pledgee and its successors and assigns. This Agreement may be
executed in any number of counterparts, each of which shall be an original, but
all of which shall constitute one instrument. In the event that any provision of
this Agreement shall prove to be invalid or unenforceable, such provision shall
be deemed to be severable from the other provisions of this Agreement which
shall remain binding on all parties hereto. None of the terms and conditions of
this Agreement may be changed, waived, modified or varied in any manner
whatsoever except in writing signed by the Pledgee, the Issuer and the Pledgor.
8. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to its principles of
conflict of laws.
Annex H
Page 4
IN WITNESS WHEREOF, the Pledgor, the Pledgee and the Issuer have
caused this Agreement to be executed by their duly elected officers duly
authorized as of the date first above written.
[________________________],
as Pledgor
By_________________________________________
Name:
Title:
BANK OF AMERICA, N.A.,
not in its individual capacity but solely as
Collateral Agent and Pledgee
By_________________________________________
Name:
Title:
[________________________],
as the Issuer
By_________________________________________
Name:
Title:
