As filed with the Securities and Exchange
Commission on July 26, 2011
Registration
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
HCA Holdings, Inc.
(Exact name of registrant as
specified in its charter)
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Delaware
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8062
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27-3865930
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(State or other jurisdiction of
incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification Number)
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HCA Inc.
(Exact name of registrant as
specified in its charter)
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Delaware
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8062
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75-2497104
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(State or other jurisdiction of
incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification Number)
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SEE TABLE OF ADDITIONAL
REGISTRANTS
One Park Plaza
Nashville, Tennessee
37203
(615) 344-9551
(Address, including zip code,
and telephone number, including area code, of registrants
principal executive offices)
John M. Franck
II, Esq.
HCA Holdings, Inc.
Vice President and Corporate
Secretary
One Park Plaza
Nashville, Tennessee
37203
Telephone:
(615) 344-9551
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
With copies to:
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Joseph H. Kaufman, Esq.
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J. Page Davidson, Esq.
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Simpson Thacher & Bartlett LLP
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Ryan D. Thomas, Esq.
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425 Lexington Avenue
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Bass, Berry & Sims PLC
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New York, New York 10017-3954
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150 Third Avenue South, Suite 2800
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Telephone: (212) 455-2000
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Nashville, Tennessee 37201-2017
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Telephone: (615) 742-6200
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Approximate date of commencement of proposed sale to the
public:
From time to time after the effective
date of this registration statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box.
o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box.
þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same
offering.
o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering.
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If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box.
þ
If this Form is a post-effective amendment to a registration
statement pursuant to General Instruction I.D. filed to
register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box.
o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in
Rule 12b-2
of the Exchange Act. (Check one):
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Large accelerated
filer
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Accelerated
filer
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Non-accelerated
filer
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(Do not check if a smaller reporting company)
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Smaller reporting
company
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CALCULATION
OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Title of Each Class of
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Amount to be
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Offering Price
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Aggregate Offering
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Amount of
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Securities to be Registered
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Registered
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per Unit
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Price
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Registration Fee
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Debt Securities
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(1)
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(1)
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(1)
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(2)
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Guarantees of Debt Securities
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(3)
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(3)
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(3)
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(3)
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(1)
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Omitted pursuant to General Instructions II.E. of
Form S-3.
An indeterminate amount of debt securities (and any guarantees
thereof as described herein) are being registered as may from
time to time be issued at indeterminate prices.
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(2)
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In accordance with Rules 456(b) and 457(r), the Registrant
is deferring payment of all of the registration fee.
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(3)
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No separate consideration will be received for the guarantees.
Pursuant to Rule 457(n) under the Securities Act, no
registration fee is required with respect to the guarantees.
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Table of
Additional Registrant Guarantors
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Address, Including Zip Code, and
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State or Other
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Telephone Number, Including
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Exact Name of Registrant Guarantor as
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Jurisdiction of
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I.R.S. Employer
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Area Code, of Registrant
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Specified in its Charter (or Other
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Incorporation or
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Identification
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Guarantors Principal
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Organizational Document)
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Organization
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Number
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Executive Offices
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American Medicorp Development Co.
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Delaware
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23-1696018
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Bay Hospital, Inc.
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Florida
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62-0976863
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Brigham City Community Hospital, Inc.
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Utah
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87-0318837
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Brookwood Medical Center of Gulfport, Inc.
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Mississippi
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63-0751470
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Capital Division, Inc.
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Virginia
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62-1668319
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Centerpoint Medical Center of Independence, LLC
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Delaware
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45-0503121
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Central Florida Regional Hospital, Inc.
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Florida
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59-1978725
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Central Shared Services, LLC
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Virginia
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76-0771216
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Central Tennessee Hospital Corporation
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Tennessee
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62-1620866
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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CHCA Bayshore, L.P.
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Delaware
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62-1801359
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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CHCA Conroe, L.P.
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Delaware
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62-1801361
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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CHCA Mainland, L.P.
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Delaware
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62-1801362
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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CHCA West Houston, L.P.
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Delaware
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62-1801363
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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CHCA Womans Hospital, L.P.
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Delaware
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62-1810381
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Chippenham & Johnston-Willis Hospitals, Inc.
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Virginia
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54-1779911
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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CMS GP, LLC
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Delaware
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62-1778113
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Colorado Health Systems, Inc.
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Colorado
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62-1593008
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Columbia ASC Management, L.P.
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California
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33-0539838
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Address, Including Zip Code, and
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State or Other
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Telephone Number, Including
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Exact Name of Registrant Guarantor as
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Jurisdiction of
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I.R.S. Employer
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Area Code, of Registrant
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Specified in its Charter (or Other
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Incorporation or
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Identification
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Guarantors Principal
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Organizational Document)
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Organization
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Number
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Executive Offices
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Columbia Jacksonville Healthcare System, Inc.
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Florida
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61-1272241
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Columbia LaGrange Hospital, Inc.
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Illinois
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61-1276162
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Columbia Medical Center of Arlington Subsidiary, L.P.
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Texas
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62-1682201
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Columbia Medical Center of Denton Subsidiary, L.P.
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Texas
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62-1682213
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Columbia Medical Center of Las Colinas, Inc.
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Texas
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62-1650582
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Columbia Medical Center of Lewisville Subsidiary, L.P.
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Texas
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62-1682210
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Columbia Medical Center of McKinney Subsidiary, L.P.
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Texas
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62-1682207
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Columbia Medical Center of Plano Subsidiary, L.P.
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Texas
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62-1682203
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Columbia North Hills Hospital Subsidiary, L.P.
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Texas
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62-1682205
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Columbia Ogden Medical Center, Inc.
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Utah
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62-1650578
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Columbia Parkersburg Healthcare System, LLC
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West Virginia
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62-1634494
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Columbia Plaza Medical Center of Fort Worth Subsidiary,
L.P.
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Texas
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62-1682202
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Columbia Polk General Hospital, Inc.
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Georgia
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62-1619423
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Columbia Rio Grande Healthcare, L.P.
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Delaware
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62-1656022
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Columbia Riverside, Inc.
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California
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62-1664328
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Columbia Valley Healthcare System, L.P.
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Delaware
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62-1669572
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Columbia/Alleghany Regional Hospital, Incorporated
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Virginia
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54-1761046
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Columbia/HCA John Randolph, Inc.
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Virginia
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61-1272888
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Address, Including Zip Code, and
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State or Other
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Telephone Number, Including
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Exact Name of Registrant Guarantor as
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Jurisdiction of
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I.R.S. Employer
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Area Code, of Registrant
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Specified in its Charter (or Other
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Incorporation or
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Identification
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Guarantors Principal
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Organizational Document)
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Organization
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Number
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Executive Offices
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Columbine Psychiatric Center, Inc.
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Colorado
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84-1042212
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Columbus Cardiology, Inc.
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Georgia
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58-1941109
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Conroe Hospital Corporation
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Texas
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74-2467524
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Dallas/Ft. Worth Physician, LLC
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Delaware
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62-1769694
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Dauterive Hospital Corporation
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Louisiana
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58-1741846
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Dublin Community Hospital, LLC
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Georgia
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58-1431023
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Eastern Idaho Health Services, Inc.
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Idaho
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82-0436622
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Edward White Hospital, Inc.
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Florida
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59-3089836
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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El Paso Surgicenter, Inc.
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Texas
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74-2361005
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Encino Hospital Corporation, Inc.
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California
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95-4113862
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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EP Health, LLC
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Delaware
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62-1769682
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Fairview Park GP, LLC
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Delaware
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62-1815913
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Fairview Park, Limited Partnership
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Georgia
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62-1817469
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Frankfort Hospital, Inc.
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Kentucky
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61-0859329
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Galen Property, LLC
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Virginia
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35-2260545
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Good Samaritan Hospital, L.P.
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Delaware
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62-1763090
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Goppert-Trinity Family Care, LLC
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Delaware
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76-0726651
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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GPCH-GP, Inc.
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Delaware
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64-0805500
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Grand Strand Regional Medical Center, LLC
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Delaware
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62-1768105
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Address, Including Zip Code, and
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State or Other
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Telephone Number, Including
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Exact Name of Registrant Guarantor as
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Jurisdiction of
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I.R.S. Employer
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Area Code, of Registrant
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Specified in its Charter (or Other
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Incorporation or
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Identification
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Guarantors Principal
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Organizational Document)
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Organization
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Number
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Executive Offices
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Green Oaks Hospital Subsidiary, L.P.
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Texas
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62-1797829
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Greenview Hospital, Inc.
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Kentucky
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61-0724492
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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HCA IT&S Field Operations, Inc.
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Delaware
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06-1795732
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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HCA IT&S Inventory Management, Inc.
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Delaware
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06-1796286
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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HCA Central Group, Inc.
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Tennessee
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02-0762180
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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HCA Health Services of Florida, Inc.
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Florida
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62-1113740
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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HCA Health Services of Louisiana, Inc.
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Louisiana
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62-1113736
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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HCA Health Services of Oklahoma, Inc.
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Oklahoma
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62-1106156
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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HCA Health Services of Tennessee, Inc.
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Tennessee
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62-1113737
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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HCA Health Services of Virginia, Inc.
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Virginia
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62-1113733
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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HCA Management Services, L.P.
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Delaware
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62-1778108
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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HCA Realty, Inc.
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Tennessee
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06-1106160
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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HD&S Corp. Successor, Inc.
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Florida
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62-1657694
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Health Midwest Office Facilities Corporation
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Missouri
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43-1175071
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Health Midwest Ventures Group, Inc.
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Missouri
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43-1315348
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Hendersonville Hospital Corporation
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Tennessee
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62-1321255
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Hospital Corporation of Tennessee
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Tennessee
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62-1124446
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Hospital Corporation of Utah
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Utah
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87-0322019
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Hospital Development Properties, Inc.
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Delaware
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62-1321246
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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Address, Including Zip Code, and
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State or Other
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Telephone Number, Including
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Exact Name of Registrant Guarantor as
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Jurisdiction of
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I.R.S. Employer
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|
Area Code, of Registrant
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Specified in its Charter (or Other
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|
Incorporation or
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|
Identification
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|
Guarantors Principal
|
Organizational Document)
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|
Organization
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Number
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Executive Offices
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HSS Holdco, LLC
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Delaware
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62-1839825
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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HSS Systems VA, LLC
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Delaware
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62-1804832
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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HSS Systems, LLC
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Delaware
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62-1804834
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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HSS Virginia, L.P.
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Virginia
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62-1848294
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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HTI Memorial Hospital Corporation
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Tennessee
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62-1560757
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One Park Plaza
Nashville, TN 37203
(615) 344-9551
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HTI MOB, LLC
|
|
Delaware
|
|
62-1824860
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Integrated Regional Lab, LLC
|
|
Florida
|
|
36-4576441
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Integrated Regional Laboratories, LLP
|
|
Delaware
|
|
62-1687140
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
JFK Medical Center Limited Partnership
|
|
Delaware
|
|
62-1694180
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
KPH-Consolidation, Inc.
|
|
Texas
|
|
62-1619857
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Lakeland Medical Center, LLC
|
|
Delaware
|
|
62-1762603
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Lakeview Medical Center, LLC
|
|
Delaware
|
|
62-1762416
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Largo Medical Center, Inc.
|
|
Florida
|
|
62-1026428
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Las Vegas Surgicare, Inc.
|
|
Nevada
|
|
75-1890731
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Lawnwood Medical Center, Inc.
|
|
Florida
|
|
59-1764486
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Lewis-Gale Hospital, Incorporated
|
|
Virginia
|
|
54-0218835
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Lewis-Gale Medical Center, LLC
|
|
Delaware
|
|
62-1760148
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Lewis-Gale Physicians, LLC
|
|
Virginia
|
|
06-1755234
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Los Robles Regional Medical Center
|
|
California
|
|
95-2321136
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Address, Including Zip Code, and
|
|
|
State or Other
|
|
|
|
Telephone Number, Including
|
Exact Name of Registrant Guarantor as
|
|
Jurisdiction of
|
|
I.R.S. Employer
|
|
Area Code, of Registrant
|
Specified in its Charter (or Other
|
|
Incorporation or
|
|
Identification
|
|
Guarantors Principal
|
Organizational Document)
|
|
Organization
|
|
Number
|
|
Executive Offices
|
|
Management Services Holdings, Inc.
|
|
Delaware
|
|
62-1874287
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Marietta Surgical Center, Inc.
|
|
Georgia
|
|
58-1539547
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Marion Community Hospital, Inc.
|
|
Florida
|
|
59-1479652
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
MCA Investment Company
|
|
California
|
|
33-0539836
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Medical Centers of Oklahoma, LLC
|
|
Delaware
|
|
62-1771846
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Medical Office Buildings of Kansas, LLC
|
|
Delaware
|
|
62-1789791
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Memorial Healthcare Group, Inc.
|
|
Florida
|
|
59-3283127
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Midwest Division ACH, LLC
|
|
Delaware
|
|
48-1301811
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Midwest Division LRHC, LLC
|
|
Delaware
|
|
48-1301817
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Midwest Division LSH, LLC
|
|
Delaware
|
|
45-0503141
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Midwest Division MCI, LLC
|
|
Delaware
|
|
45-0503127
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Midwest Division MMC, LLC
|
|
Delaware
|
|
48-1301826
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Midwest Division OPRMC, LLC
|
|
Delaware
|
|
45-0503116
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Midwest Division PFC, LLC
|
|
Delaware
|
|
48-1302330
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Midwest Division RBH, LLC
|
|
Missouri
|
|
20-0851062
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Midwest Division RMC, LLC
|
|
Delaware
|
|
54-2092552
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Midwest Division RPC, LLC
|
|
Delaware
|
|
48-1301829
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Midwest Holdings, Inc.
|
|
Delaware
|
|
11-3676736
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Montgomery Regional Hospital, Inc.
|
|
Virginia
|
|
54-0889154
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Address, Including Zip Code, and
|
|
|
State or Other
|
|
|
|
Telephone Number, Including
|
Exact Name of Registrant Guarantor as
|
|
Jurisdiction of
|
|
I.R.S. Employer
|
|
Area Code, of Registrant
|
Specified in its Charter (or Other
|
|
Incorporation or
|
|
Identification
|
|
Guarantors Principal
|
Organizational Document)
|
|
Organization
|
|
Number
|
|
Executive Offices
|
|
Mountain View Hospital, Inc.
|
|
Utah
|
|
87-0333048
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Nashville Shared Services General Partnership
|
|
Delaware
|
|
62-1841237
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
National Patient Account Services, Inc.
|
|
Texas
|
|
62-1645596
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
New Port Richey Hospital, Inc.
|
|
Florida
|
|
59-2047041
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
New Rose Holding Company, Inc.
|
|
Colorado
|
|
62-1617432
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
North Florida Immediate Care Center, Inc.
|
|
Florida
|
|
58-2075775
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
North Florida Regional Medical Center, Inc.
|
|
Florida
|
|
61-1269294
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Northern Utah Healthcare Corporation
|
|
Utah
|
|
62-1650573
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Northern Virginia Community Hospital, LLC
|
|
Virginia
|
|
04-3665595
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Northlake Medical Center, LLC
|
|
Georgia
|
|
58-2433434
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Notami Hospitals of Louisiana, Inc.
|
|
Louisiana
|
|
95-4176923
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Notami Hospitals, LLC
|
|
Delaware
|
|
62-1761993
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Okaloosa Hospital, Inc.
|
|
Florida
|
|
59-1836808
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Okeechobee Hospital, Inc.
|
|
Florida
|
|
59-1833934
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Outpatient Cardiovascular Center of Central Florida, LLC
|
|
Delaware
|
|
52-2448149
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Palms West Hospital Limited Partnership
|
|
Delaware
|
|
62-1694178
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Palmyra Park Hospital, Inc.
|
|
Georgia
|
|
58-1091107
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Pasadena Bayshore Hospital, Inc.
|
|
Texas
|
|
74-1616679
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Plantation General Hospital, L.P.
|
|
Delaware
|
|
62-1372389
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Address, Including Zip Code, and
|
|
|
State or Other
|
|
|
|
Telephone Number, Including
|
Exact Name of Registrant Guarantor as
|
|
Jurisdiction of
|
|
I.R.S. Employer
|
|
Area Code, of Registrant
|
Specified in its Charter (or Other
|
|
Incorporation or
|
|
Identification
|
|
Guarantors Principal
|
Organizational Document)
|
|
Organization
|
|
Number
|
|
Executive Offices
|
|
Pulaski Community Hospital, Inc.
|
|
Virginia
|
|
54-0941129
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Redmond Park Hospital, LLC
|
|
Georgia
|
|
58-1123037
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Redmond Physician Practice Company
|
|
Georgia
|
|
62-1662134
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Reston Hospital Center, LLC
|
|
Delaware
|
|
62-1777534
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Retreat Hospital, LLC
|
|
Virginia
|
|
61-1272890
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Rio Grande Regional Hospital, Inc.
|
|
Texas
|
|
61-1276564
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Riverside Healthcare System, L.P.
|
|
California
|
|
33-0751869
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Riverside Hospital, Inc.
|
|
Delaware
|
|
74-2600687
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Samaritan, LLC
|
|
Delaware
|
|
62-1762605
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
San Jose Healthcare System, LP
|
|
Delaware
|
|
77-0498674
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
San Jose Hospital, L.P.
|
|
Delaware
|
|
62-1763091
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
San Jose Medical Center, LLC
|
|
Delaware
|
|
62-1762609
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
San Jose, LLC
|
|
Delaware
|
|
62-1756992
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Sarasota Doctors Hospital, Inc.
|
|
Florida
|
|
61-1258724
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
SJMC, LLC
|
|
Delaware
|
|
62-1762613
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Southern Hills Medical Center, LLC
|
|
Nevada
|
|
74-3048428
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Spotsylvania Medical Center, Inc.
|
|
Virginia
|
|
06-1760818
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Spring Branch Medical Center, Inc.
|
|
Texas
|
|
61-1261492
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Spring Hill Hospital, Inc.
|
|
Tennessee
|
|
84-1706716
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Address, Including Zip Code, and
|
|
|
State or Other
|
|
|
|
Telephone Number, Including
|
Exact Name of Registrant Guarantor as
|
|
Jurisdiction of
|
|
I.R.S. Employer
|
|
Area Code, of Registrant
|
Specified in its Charter (or Other
|
|
Incorporation or
|
|
Identification
|
|
Guarantors Principal
|
Organizational Document)
|
|
Organization
|
|
Number
|
|
Executive Offices
|
|
St. Marks Lone Peak Hospital, Inc.
|
|
Utah
|
|
25-1925376
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Sun City Hospital, Inc.
|
|
Florida
|
|
59-2822337
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Sunrise Mountainview Hospital, Inc.
|
|
Nevada
|
|
62-1600397
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Surgicare of Brandon, Inc.
|
|
Florida
|
|
58-1819994
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Surgicare of Florida, Inc.
|
|
Florida
|
|
95-3947578
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Surgicare of Houston Womens, Inc.
|
|
Texas
|
|
72-1563673
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Surgicare of Manatee, Inc.
|
|
Florida
|
|
75-2364410
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Surgicare of New Port Richey, Inc.
|
|
Florida
|
|
75-2243308
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Surgicare of Palms West, LLC
|
|
Florida
|
|
20-1008436
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Surgicare of Riverside, LLC
|
|
California
|
|
26-0047096
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Tallahassee Medical Center, Inc.
|
|
Florida
|
|
62-1091430
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
TCMC Madison-Portland, Inc.
|
|
Tennessee
|
|
76-0811731
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Terre Haute Hospital GP, Inc.
|
|
Delaware
|
|
62-1861156
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Terre Haute Hospital Holdings, Inc.
|
|
Delaware
|
|
62-1861158
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Terre Haute MOB, L.P.
|
|
Indiana
|
|
76-0775694
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Terre Haute Regional Hospital, L.P.
|
|
Delaware
|
|
35-1461805
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
The Regional Health System of Acadiana, LLC
|
|
Louisiana
|
|
58-1741727
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Timpanogos Regional Medical Services, Inc.
|
|
Utah
|
|
62-1831495
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Trident Medical Center, LLC
|
|
Delaware
|
|
62-1768106
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Address, Including Zip Code, and
|
|
|
State or Other
|
|
|
|
Telephone Number, Including
|
Exact Name of Registrant Guarantor as
|
|
Jurisdiction of
|
|
I.R.S. Employer
|
|
Area Code, of Registrant
|
Specified in its Charter (or Other
|
|
Incorporation or
|
|
Identification
|
|
Guarantors Principal
|
Organizational Document)
|
|
Organization
|
|
Number
|
|
Executive Offices
|
|
Utah Medco, LLC
|
|
Delaware
|
|
62-1769672
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
VH Holdco, Inc.
|
|
Nevada
|
|
62-1749073
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
VH Holdings, Inc.
|
|
Nevada
|
|
62-1720399
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Virginia Psychiatric Company, Inc.
|
|
Virginia
|
|
62-1410313
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
W & C Hospital, Inc.
|
|
Texas
|
|
61-1259838
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Walterboro Community Hospital, Inc.
|
|
South Carolina
|
|
57-0712623
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Wesley Medical Center, LLC
|
|
Delaware
|
|
62-1762545
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
West Florida Regional Medical Center, Inc.
|
|
Florida
|
|
59-1525468
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
West Valley Medical Center, Inc.
|
|
Idaho
|
|
36-3525049
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Western Plains Capital, Inc.
|
|
Nevada
|
|
62-1727347
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
WHMC, Inc.
|
|
Texas
|
|
61-1261485
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
Womans Hospital of Texas, Incorporated
|
|
Texas
|
|
74-1991424
|
|
One Park Plaza
Nashville, TN 37203
(615) 344-9551
|
PROSPECTUS
HCA Holdings, Inc.
HCA Inc.
Debt Securities
HCA Holdings, Inc. may, from time to time, offer to sell debt
securities, which may or may not be guaranteed by one or more of
the subsidiaries identified in this prospectus.
HCA Inc. may, from time to time, offer to sell debt securities,
which would be guaranteed by HCA Holdings, Inc. and may or may
not be guaranteed by one or more of the subsidiaries identified
in this prospectus.
This prospectus describes some of the general terms that may
apply to these debt securities. We will provide the specific
terms of these debt securities in prospectus supplements to this
prospectus.
We may offer and sell these debt securities to or through one or
more underwriters, dealers and agents or directly to purchasers,
on a continuous or delayed basis.
Investing in our debt securities involves risks. You should
consider the risk factors described in any accompanying
prospectus supplement or any documents we incorporate by
reference.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
This prospectus is dated July 26, 2011
You should rely only on the information contained or
incorporated by reference in this prospectus, in any
accompanying prospectus supplement or in any free writing
prospectus filed by us with the Securities and Exchange
Commission (the SEC). We have not authorized any
other person to provide you with different information. If
anyone provides you with different or inconsistent information,
you should not rely on it. You should not assume that the
information contained or incorporated by reference in this
prospectus and any prospectus supplement or in any such free
writing prospectus is accurate as of any date other than the
respective dates thereof. Our business, financial condition,
results of operations and prospects may have changed since those
dates.
TABLE OF
CONTENTS
ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement that we
filed with the SEC under the Securities Act of 1933, as amended
(the Securities Act), utilizing a shelf
registration process. Under this shelf registration process, we
may, from time to time, sell in one or more offerings any of our
debt securities described in this prospectus.
This prospectus provides you with a general description of the
debt securities that we may offer. Each time we sell debt
securities, we will provide a prospectus supplement that will
contain specific information about the terms of that offering,
including the specific amounts, prices and terms of the
securities offered. The prospectus supplement may also add,
update or change information contained in this prospectus.
You should carefully read both this prospectus and any
prospectus supplement, together with additional information
described under the heading Where You Can Find More
Information and Incorporation By Reference.
As used herein, unless otherwise stated or indicated by context,
references to (i) HCA Holdings, Inc. refer to HCA
Holdings, Inc., parent of HCA Inc., and its affiliates and
(ii) the Company, HCA,
we, our or us refer to HCA
Inc. and its affiliates prior to the Corporate Reorganization
(as defined herein) and to HCA Holdings, Inc. and its affiliates
upon the consummation of the Corporate Reorganization. The term
affiliates means direct and indirect subsidiaries
and partnerships and joint ventures in which such subsidiaries
are partners. The terms facilities or
hospitals refer to entities owned and operated by
affiliates of HCA and the term employees refers to
employees of affiliates of HCA. With respect to debt securities,
the term issuer means either HCA Holdings, Inc. or
HCA Inc. depending on which registrant is offering the debt
securities. The term issuers is a collective
reference to HCA Holdings, Inc. and HCA Inc.
WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. The public may read and copy
any materials filed with the SEC at the SECs Public
Reference Room at 100 F Street, N.E.,
Washington, D.C. 20549. The public may obtain information
on the operation of the Public Reference Room by calling the SEC
at
1-800-SEC-0330.
Also, the SEC maintains an Internet web site that contains
reports, proxy and information statements, and other information
regarding issuers, including us, that file electronically with
the SEC. The public can obtain any documents that we file
electronically with the SEC at
http://www.sec.gov
.
We also make available, free of charge, on or through our
Internet web site
(
http://www.hcahealthcare.com
)
our Annual Reports on
Form 10-K,
Quarterly Reports on
Form 10-Q,
Current Reports on
Form 8-K,
Proxy Statements on Schedule 14A and, if applicable
amendments to those reports filed or furnished pursuant to
Section 13(a) of the Securities Exchange Act of 1934, as
amended (the Exchange Act), as soon as reasonably
practicable after we electronically file such material with, or
furnish it to, the SEC. Please note, however, that we have not
incorporated any other information by reference from our
Internet web site, other than the documents listed under the
heading Incorporation by Reference.
We have filed with the SEC a registration statement on
Form S-3
relating to the debt securities covered by this prospectus. This
prospectus is a part of the registration statement and does not
contain all the information in the registration statement.
Whenever a reference is made in this prospectus to a contract or
other document of ours, the reference is only a summary and you
should refer to the exhibits that are a part of the registration
statement for a copy of the contract or other document. You may
review a copy of the registration statement and the documents
incorporated by reference herein at the SECs Public
Reference Room in Washington, D.C., as well as through the
SECs Internet web site referenced above.
INCORPORATION
BY REFERENCE
The SEC allows us to incorporate by reference information into
this prospectus. This means that we can disclose important
information to you by referring you to another document. Any
information referred to in this way is considered part of this
prospectus from the date we file that document. Any reports
filed by us with the SEC after the date of this prospectus and
before the date that the offering of the debt securities by
1
means of this prospectus is terminated will automatically update
and, where applicable, supersede any information contained in
this prospectus or incorporated by reference in this prospectus.
This prospectus incorporates by reference the documents listed
below that HCA Holdings, Inc. has previously filed with the SEC.
These documents contain important information about us. Any
information referred to in this way is considered part of this
prospectus from the date HCA Holdings, Inc. filed that document.
We incorporate by reference the documents listed below:
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HCA Holdings, Inc.s Annual Report on
Form 10-K
for the year ended December 31, 2010
(SEC File No. 001-11239);
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HCA Holdings, Inc.s Quarterly Report on
Form 10-Q
for the period ended March 31, 2011
(SEC File No. 001-11239);
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HCA Holdings, Inc.s Current Reports on
Form 8-K,
filed on February 11, 2011, March 16, 2011,
April 5, 2011, May 4, 2011, May 9, 2011,
July 12, 2011 and July 26, 2011 (other than
information furnished pursuant to Item 2.02 or
Item 7.01 of any Current Report on
Form 8-K,
unless expressly stated otherwise therein); and
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All documents filed by HCA Holdings, Inc. under
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of this prospectus supplement and before the
termination of the offering to which this prospectus supplement
relates (other than information furnished pursuant to
Item 2.02 or Item 7.01 of any Current Report on Form
8-K,
unless
expressly stated otherwise therein).
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In reviewing any agreements incorporated by reference, please
remember that they are included to provide you with information
regarding the terms of such agreements and are not intended to
provide any other factual or disclosure information about HCA
Inc. or HCA Holdings, Inc. The agreements may contain
representations and warranties by HCA Inc. or HCA Holdings, Inc.
which should not in all instances be treated as categorical
statements of fact, but rather as a way of allocating the risk
to one of the parties if those statements prove to be
inaccurate. The representations and warranties were made only as
of the date of the relevant agreement or such other date or
dates as may be specified in such agreement and are subject to
more recent developments. Accordingly, these representations and
warranties alone may not describe the actual state of affairs as
of the date they were made or at any other time.
We will provide without charge to each person to whom this
prospectus is delivered, upon his or her written or oral
request, a copy of any or all documents referred to above which
have been or may be incorporated by reference into this
prospectus, excluding exhibits to those documents unless they
are specifically incorporated by reference into those documents.
You may request copies of those documents, at no cost, by
writing or calling us at the following address or telephone
number:
Corporate Secretary
HCA Holdings, Inc.
One Park Plaza
Nashville, Tennessee 37203
(615) 344-9551
FORWARD-LOOKING
STATEMENTS
Some of the information included or incorporated by reference in
this prospectus and the applicable prospectus supplement contain
forward-looking statements. Forward-looking
statements include all statements that do not relate solely to
historical or current facts, and can be identified by the use of
words like may, believe,
will, expect, project,
estimate, anticipate, plan,
initiative or continue. These
forward-looking statements are based on our current plans and
expectations and are subject to a number of known and unknown
uncertainties and risks, many of which are beyond our control,
which could significantly affect current
2
plans and expectations and our future financial position and
results of operations. These factors include, but are not
limited to:
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the impact of our substantial indebtedness and the ability to
refinance such indebtedness on acceptable terms;
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the effects related to the enactment and implementation of the
Patient Protection and Affordable Care Act, as amended by the
Health Care and Education Reconciliation Act (collectively, the
Health Reform Law), the possible enactment of
additional federal or state health care reforms and possible
changes to the Health Reform Law and other federal, state or
local laws or regulations affecting the health care industry;
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increases in the amount and risk of collectibility of uninsured
accounts and deductibles and copayment amounts for insured
accounts;
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the ability to achieve operating and financial targets, and
attain expected levels of patient volumes and control the costs
of providing services;
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possible changes in the Medicare, Medicaid and other state
programs, including Medicaid supplemental payments pursuant to
upper payment limit (UPL) programs, that may impact
reimbursements to health care providers and insurers;
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the highly competitive nature of the health care business;
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changes in revenue mix, including potential declines in the
population covered under managed care agreements and the ability
to enter into and renew managed care provider agreements on
acceptable terms;
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the efforts of insurers, health care providers and others to
contain health care costs;
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the outcome of our continuing efforts to monitor, maintain and
comply with appropriate laws, regulations, policies and
procedures;
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increases in wages and the ability to attract and retain
qualified management and personnel, including affiliated
physicians, nurses and medical and technical support personnel;
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the availability and terms of capital to fund the expansion of
our business and improvements to our existing facilities;
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changes in accounting practices;
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changes in general economic conditions nationally and regionally
in our markets;
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future divestitures which may result in charges and possible
impairments of long-lived assets;
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changes in business strategy or development plans;
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delays in receiving payments for services provided;
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the outcome of pending and any future tax audits, appeals and
litigation associated with our tax positions;
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potential adverse impact of known and unknown government
investigations, litigation and other claims that may be made
against us;
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our ability to demonstrate meaningful use of certified
electronic health record technology and recognize revenues for
the related Medicare or Medicaid incentive payments; and
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other risk factors described in this prospectus.
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All subsequent written and oral forward-looking statements
attributable to us, or persons acting on our behalf, are
expressly qualified in their entirety by these cautionary
statements.
We caution you that the important factors discussed above may
not contain all of the material factors that are important to
you. The forward-looking statements included in this prospectus
are made only as of the date hereof. We undertake no obligation
to publicly update or revise any forward-looking statement as a
result of new information, future events or otherwise, except as
otherwise required by law.
3
OUR
COMPANY
We are the largest non-governmental hospital operator in the
U.S. and a leading comprehensive, integrated provider of
health care and related services. We provide these services
through a network of acute care hospitals, outpatient
facilities, clinics and other patient care delivery settings. As
of March 31, 2011, we operated a diversified portfolio of
163 hospitals (with approximately 41,000 beds) and 107
freestanding surgery centers across 20 states throughout
the U.S. and in England. As a result of our efforts to
establish significant market share in large and growing urban
markets with attractive demographic and economic profiles, we
currently have a substantial market presence in 14 of the top 25
fastest growing markets with populations greater than 500,000 in
the U.S. and currently maintain the first or second
position, based on inpatient admissions, in many of our key
markets. We believe our ability to successfully position and
grow our assets in attractive markets and execute our operating
plan has contributed to the strength of our financial
performance over the last several years. For the three months
ended March 31, 2011, we generated revenues of
$8.055 billion, net income attributable to HCA Holdings,
Inc. of $240 million and Adjusted EBITDA of
$1.590 billion.
Our patient-first strategy is to provide high quality health
care services in a cost-efficient manner. We intend to build
upon our history of profitable growth by maintaining our
dedication to quality care, increasing our presence in key
markets through organic expansion and strategic acquisitions and
joint ventures, leveraging our scale and infrastructure, and
further developing our physician and employee relationships. We
believe pursuing these core elements of our strategy helps us
develop a faster-growing, more stable and more profitable
business and increases our relevance to patients, physicians,
payers and employers.
Using our scale, significant resources and over 40 years of
operating experience, we have developed a significant management
and support infrastructure. Some of the key components of our
support infrastructure include a revenue cycle management
organization, a health care group purchasing organization, an
information technology and services provider, a nurse staffing
agency and a medical malpractice insurance underwriter. These
shared services have helped us to maximize our cash collection
efficiency, achieve savings in purchasing through our scale,
more rapidly deploy information technology upgrades, more
effectively manage our labor pool and achieve greater stability
in malpractice insurance premiums. Collectively, these
components have helped us to further enhance our operating
effectiveness, cost efficiency and overall financial results. We
have also created a subsidiary that offers certain of these
component services to other health care companies.
Since the founding of our business in 1968 as a single-facility
hospital company, we have demonstrated an ability to
consistently innovate and sustain growth during varying economic
and regulatory climates. Under the leadership of an experienced
senior management team, whose tenure at HCA averages over
20 years, we have established an extensive record of
providing high quality care, profitably growing our business,
making and integrating strategic acquisitions and efficiently
and strategically allocating capital spending.
On November 17, 2006, HCA Inc. was acquired by a private
investor group comprised of affiliates of or funds sponsored by
Bain Capital Partners, LLC (Bain Capital), Kohlberg
Kravis Roberts & Co. (KKR), Merrill Lynch
Global Private Equity (MLGPE), now BAML Capital
Partners (each a Sponsor), Citigroup Inc., Bank of
America Corporation (the Sponsor Assignees) and HCA
founder Dr. Thomas F. Frist, Jr. (the Frist
Entities), a group we collectively refer to as the
Investors, and by members of management and certain
other investors. We refer to the merger, the financing
transactions related to the merger and other related
transactions collectively as the Recapitalization.
On November 22, 2010, HCA Inc. reorganized by creating a
new holding company structure (the Corporate
Reorganization), pursuant to which HCA Holdings, Inc.
became the parent company of HCA Inc., and HCA Inc. became HCA
Holdings, Inc.s wholly-owned direct subsidiary. As part of
the Corporate Reorganization, HCA Inc.s outstanding shares
of capital stock were automatically converted, on a share for
share basis, into identical shares of HCA Holdings, Inc.s
common stock, and HCA Holdings, Inc. became a guarantor but did
not assume the debt of HCA Inc.s outstanding secured notes.
4
RISK
FACTORS
Our business is subject to numerous risks, including those that
are generally associated with operating in the health care
industry. You should carefully consider and evaluate all of the
information included and incorporated by reference in this
prospectus, including the risk factors incorporated by reference
to our Annual Report on
Form 10-K
for the year ended December 31, 2010, as well as any risk
factors we may describe in any subsequent periodic reports or
information we file with the SEC. It is possible that our
business, financial condition, liquidity or results of
operations could be materially adversely affected by any of
these risks.
USE OF
PROCEEDS
Except as otherwise set forth in a prospectus supplement, we
intend to use the net proceeds from sales of the debt securities
for general corporate purposes, which may include the following:
refunding, repurchasing, retiring upon maturity or redeeming
existing debt; funding for working capital; capital
expenditures; repurchases of our capital stock; and strategic
investments and acquisitions.
RATIO OF
EARNINGS TO FIXED CHARGES
The following table sets forth the historical ratio of our
earnings to our fixed charges for the periods indicated.
The following table sets forth our historical ratios of earnings
available for fixed charges to fixed charges for the periods
indicated. This information should be read in conjunction with
the consolidated financial statements and the accompanying notes
incorporated by reference in this prospectus.
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Three Months Ended
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Year Ended December 31,
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March 31,
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March 31,
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2011
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2010
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2010
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2009
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2008
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2007
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2006
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Ratio of earnings to fixed charges(1)
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1.89
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2.21
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1.97
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1.91
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1.52
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1.57
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2.61
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(1)
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For purposes of calculating the ratio of earnings to fixed
charges, earnings represents earnings before income tax expense,
and net income attributable to noncontrolling interests, plus
fixed charges; and fixed charges include: (a) interest
expense; (b) amortization of capitalized expenses related
to debt; and (c) the portion of rental expense which
management believes is representative of the interest component
of rent expense.
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5
DESCRIPTION
OF DEBT SECURITIES AND GUARANTEES
Please note that in this section entitled Description of
Debt Securities and Guarantees, references to HCA
Holdings, Inc. refer only to HCA Holdings, Inc. and not to any
of its subsidiaries. References to HCA Inc. refer only to HCA
Inc. and not to any of its subsidiaries. The term
issuer means either HCA Holdings, Inc.
or HCA Inc., depending on which registrant is offering the debt
securities and the term issuers is a collective
reference to HCA Holdings, Inc. and HCA Inc.
HCA Holdings, Inc. may issue debt securities. The debt
securities will be HCA Holdings, Inc.s unsubordinated and,
unless otherwise expressly stated in the applicable prospectus
supplement, unsecured obligations and may be issued in one or
more series. HCA Inc. may also issue debt securities. The debt
securities will be HCA Inc.s unsubordinated and, unless
otherwise expressly stated in the applicable prospectus
supplement, unsecured obligations and may be issued in one or
more series. The debt securities of any series of the applicable
issuer may have the benefit of guarantees (each, a
Guarantee), by one or more of its subsidiaries
(each, a Guarantor). In the case of HCA Inc., the
debt securities will be guaranteed by HCA Holdings, Inc., its
direct parent. The Guarantees will be the unsubordinated and,
unless otherwise expressly stated in the applicable prospectus
supplement, unsecured obligations of the respective Guarantors.
If so indicated in the applicable prospectus supplement, the
issuers may issue debt securities that are secured by specified
collateral or that have the benefit of one or more Guarantees
that are secured by specified collateral. Unless otherwise
expressly stated or the context otherwise requires, as used in
this section, the term guaranteed debt
securities means any debt securities that, as described in
the prospectus supplement relating thereto, are guaranteed by
one or more Guarantors pursuant to the applicable indenture (as
defined below); the term secured debt securities
means any debt securities that, as described in the prospectus
supplement relating thereto, are secured by collateral; the term
unsecured debt securities means any debt securities
that are not secured debt securities; and the term debt
securities includes both unsecured debt securities and
secured debt securities and both guaranteed and unguaranteed
debt securities.
The debt securities issued by HCA Holdings, Inc. will be issued
under one or more indentures, each to be entered into by HCA
Holdings, Inc., one or more Guarantors, a trustee, registrar,
paying agent and transfer agent
and/or
a
collateral agent, as applicable. The debt securities issued by
HCA Inc. will be issued under one or more indentures, each to be
entered into by HCA Inc., HCA Holdings, Inc., one or more
Guarantors, a trustee, registrar, paying agent and transfer
agent
and/or
a collateral agent, as applicable. The trustee registrar, paying
agent, transfer agent, collateral agent, calculation agent
and/or foreign currency agent (collectively, the
agents), as applicable, shall be named in the
applicable prospectus supplement. Unless otherwise expressly
stated in the applicable prospectus supplement, the issuers may
issue both secured and unsecured debt securities under their
respective indentures. Unless otherwise expressly stated or the
context otherwise requires, references in this section to the
indenture and the trustee refer to the
applicable indenture pursuant to which any particular series of
debt securities is issued and to the trustee under that
indenture. The terms of any series of debt securities and, if
applicable, any Guarantees of the debt securities of such series
will be those specified in or pursuant to the applicable
indenture and in the certificates evidencing that series of debt
securities and those made part of the indenture by the
Trust Indenture Act of 1939, as amended, or the
Trust Indenture Act of 1939.
The following summary of selected provisions of the indentures,
the debt securities and the Guarantees is not complete, and the
summary of selected terms of a particular series of debt
securities and, if applicable, the Guarantees of the debt
securities of that series included in the applicable prospectus
supplement also will not be complete. You should review the form
of applicable indenture, the form of any applicable supplemental
indenture and the form of certificate evidencing the applicable
debt securities, which forms have been or will be filed as
exhibits to the registration statement of which this prospectus
is a part or as exhibits to documents which have been or will be
incorporated by reference in this prospectus. To obtain a copy
of the form of indenture, the form of any such supplemental
indenture or the form of certificate for any debt securities,
see Where You Can Find More Information in this
prospectus. The following summary and the summary in the
applicable prospectus supplement are qualified in their entirety
by reference to all of the provisions of the applicable
indenture, any supplemental indenture and the certificates
evidencing the applicable debt securities, which provisions,
including defined terms, are incorporated by reference in this
prospectus. Capitalized terms used in this section and not
defined have the meanings assigned to those terms in the
indenture.
6
The following description of debt securities describes general
terms and provisions of a series of debt securities and, if
applicable, the Guarantees of the debt securities of that series
to which any prospectus supplement may relate. The debt
securities may be issued from time to time in one or more
series. The particular terms of each series that is offered by a
prospectus supplement, including the issuer of the debt
securities, will be described in the applicable prospectus
supplement. If any particular terms of the debt securities or,
if applicable, any Guarantees of the debt securities of that
series or the applicable indenture described in a prospectus
supplement differ from any of the terms described in this
prospectus, the terms described in the applicable prospectus
supplement will supersede the terms described in this prospectus.
General
The indentures provide that the debt securities may be issued
without limit as to aggregate principal amount, in one or more
series, and in any currency or currency units, in each case as
established from time to time in or under the authority granted
by a resolution of the applicable Board of Directors or as
established in one or more supplemental indentures. All debt
securities of one series need not be issued at the same time,
and may vary as to interest rate, maturity and other provisions
and, unless otherwise provided, a series may be
reopened, without the consent of the holders of the
debt securities of that series, for issuance of additional debt
securities of that series ranking equally with debt securities
of that series and otherwise similar in all respects except for
issue date and issue price. Please read the applicable
prospectus supplement relating to the series of debt securities
being offered for specific terms including, where applicable:
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the title of the series of debt securities;
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any limit on the aggregate principal amount of debt securities
of the series;
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the price or prices at which debt securities of the series will
be issued;
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the person to whom any interest on a debt security of the series
shall be payable, if other than the person in whose name that
debt security is registered on the applicable record date;
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the date or dates on which the applicable issuer will pay the
principal of and premium, if any, on debt securities of the
series, or the method or methods, if any, used to determine
those dates;
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the rate or rates, which may be fixed or variable, at which debt
securities of the series will bear interest, if any, or the
method or methods, if any, used to determine those rates;
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the basis used to calculate interest, if any, on the debt
securities of the series if other than a
360-day
year
of twelve
30-day
months;
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the date or dates, if any, from which interest on the debt
securities of the series will begin to accrue, or the method or
methods, if any, used to determine those dates;
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the dates on which the interest, if any, on the debt securities
of the series will be payable and the record dates for the
payment of interest;
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the place or places where amounts due on the debt securities of
the series will be payable and where the debt securities of the
series may be surrendered for registration of transfer and
exchange, if other than the corporate trust office of the
applicable trustee;
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the terms and conditions, if any, upon which the applicable
issuer may, at its option, redeem debt securities of the series;
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the terms and conditions, if any, upon which the applicable
issuer will repurchase or repay debt securities of the series at
the option of the holders of debt securities of the series;
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the terms of any sinking fund or analogous provision;
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if other than U.S. dollars, the currency in which the
purchase price for the debt securities of the series will be
payable, the currency in which payments on the debt securities
of the series will be payable,
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and the ability, if any, of the applicable issuer or the holders
of debt securities of the series to have payments made in any
other currency or currencies;
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any addition to, or modification or deletion of, any covenant or
Event of Default with respect to debt securities of the series;
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whether any debt securities of the series will be issued in
temporary or permanent global form (global debt
securities) and, if so, the identity of the depositary for
the global debt securities if other than The Depository
Trust Company (DTC);
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if and under what circumstances the applicable issuer will pay
additional amounts (Additional Amounts) on the debt
securities of the series in respect of specified taxes,
assessments or other governmental charges and, if so, whether
the applicable issuer will have the option to redeem the debt
securities of the series rather than pay the Additional Amounts;
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the extent to which, or the manner in which, any interest
payable on a temporary global debt security will be paid, if
other than in the manner provided in the indenture;
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the portion of the principal amount of the debt securities of
the series which will be payable upon acceleration if other than
the full principal amount;
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the authorized denominations in which the debt securities of the
series will be issued, if other than denominations of $2,000 and
any integral multiples of $1,000;
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the terms, if any, upon which debt securities of the series may
be exchangeable for other property;
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if the amount of payments on the debt securities of the series
may be determined with reference to an index, formula or other
method or methods and the method used to determine those amounts;
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whether the debt securities of the series will be guaranteed by
any Guarantors and, if so, the names of the Guarantors of the
debt securities of the series and a description of the
Guarantees;
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if the debt securities of the series or, if applicable, any
Guarantees of those debt securities will be secured by any
collateral and, if so, a general description of the collateral
and of some of the terms of any related security, pledge or
other agreements;
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any listing of the debt securities on any securities exchange;
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any other terms of the debt securities of the series and, if
applicable, any Guarantees of the debt securities (whether or
not such other terms are consistent or inconsistent with any
other terms of the indenture); and
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the appointment of any agents, if other than the applicable
trustee.
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As used in this prospectus and any prospectus supplement
relating to the offering of debt securities of any series,
references to the principal of and premium, if any, and
interest, if any, on the debt securities of the series include
the payment of Additional Amounts, if any, required by the debt
securities of the series to be paid in that context.
Debt securities may be issued as original issue discount
securities to be sold at a substantial discount below their
principal amount. In the event of an acceleration of the
maturity of any original issue discount security, the amount
payable to the holder upon acceleration will be determined in
the manner described in the applicable prospectus supplement.
Certain U.S. federal income tax considerations applicable
to original issue discount securities will be described in the
applicable prospectus supplement.
If the purchase price of any debt securities is payable in a
foreign currency or if the principal of, or premium, if any, or
interest, if any, on any debt securities is payable in a foreign
currency, the specific terms of those debt securities and the
applicable foreign currency will be specified in the prospectus
supplement relating to those debt securities.
8
The terms of the debt securities of any series may differ from
the terms of the debt securities of any other series, and the
terms of particular debt securities within any series may differ
from each other. Unless otherwise expressly provided in the
prospectus supplement relating to any series of debt securities,
the applicable issuer may, without the consent of the holders of
the debt securities of any series, reopen an existing series of
debt securities and issue additional debt securities of that
series.
Unless otherwise described in a prospectus supplement relating
to any series of debt securities and except to the limited
extent set forth below under Merger,
Consolidation and Sale of Assets, the indentures do not
contain any provisions that would limit the issuers
ability or the ability of any of the respective issuers
subsidiaries to incur indebtedness or other liabilities or that
would afford holders of debt securities protection in the event
of a business combination, takeover, recapitalization or highly
leveraged or similar transaction involving the applicable
issuer. Accordingly, an issuer and its subsidiaries may in the
future enter into transactions that could increase the amount of
its consolidated indebtedness and other liabilities or otherwise
adversely affect its capital structure or credit rating without
the consent of the holders of the debt securities of any series.
Registration,
Transfer and Payment
Unless otherwise indicated in the applicable prospectus
supplement, each series of debt securities will be issued in
registered form only, without coupons.
Unless otherwise indicated in the applicable prospectus
supplement, registered debt securities will be issued in
denominations of $2,000 and any integral multiple of $1,000 in
excess thereof.
Unless otherwise indicated in the applicable prospectus
supplement, the debt securities will be payable and may be
surrendered for registration of transfer or exchange and, if
applicable, for conversion into or exchange for other securities
or property, at an office or agency maintained by HCA Holdings,
Inc. or HCA Inc., as applicable, in the United States of
America. However, the applicable issuer, at its option, may make
payments of interest on any registered debt security by check
mailed to the address of the person entitled to receive that
payment or by wire transfer to an account maintained by the
payee with a bank located in the United States of America.
Unless otherwise indicated in the applicable prospectus
supplement, no service charge shall be made for any registration
of transfer or exchange, redemption or repayment of debt
securities, or for any conversion or exchange of debt securities
for other securities or property, but the applicable issuer may
require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with that
transaction.
Unless otherwise indicated in the applicable prospectus
supplement, the issuer will not be required to:
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issue, register the transfer of or exchange debt securities of
any series during a period beginning at the opening of business
15 days before any selection of debt securities of that
series of like tenor and terms to be redeemed and ending at the
close of business on the day of that selection;
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register the transfer of or exchange any registered debt
security, or portion of any registered debt security, selected
for redemption, except the unredeemed portion of any registered
debt security being redeemed in part; or
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issue, register the transfer of or exchange a debt security
which has been surrendered for repayment at the option of the
holder, except the portion, if any, of the debt security not to
be repaid.
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Ranking
of Debt Securities
The unsecured debt securities of each series of each issuer will
be unsecured, unsubordinated obligations of the applicable
issuer and will rank on a parity in right of payment with all of
such issuers other unsecured and unsubordinated
indebtedness. The secured debt securities of each series of each
issuer will be unsubordinated obligations of the applicable
issuer and will rank on a parity in right of payment with all
other unsecured and unsubordinated indebtedness of the
applicable issuer, except that the secured debt securities of
9
any series will effectively rank senior to unsecured and
unsubordinated indebtedness of the applicable issuer in respect
of claims against the collateral that is pledged to secure those
secured debt securities.
The debt securities will be the exclusive obligations of the
applicable issuer. Each issuer is a holding company, and
substantially all of its respective consolidated assets are held
and substantially all of its respective consolidated revenues
are generated by its subsidiaries. Accordingly, the
issuers cash flow and ability to service its indebtedness,
including the debt securities, depend on the results of
operations of its respective subsidiaries and upon the ability
of its respective subsidiaries to provide cash to the applicable
issuer, whether in the form of dividends, loans or otherwise, to
pay amounts due on such issuers obligations, including the
debt securities. The subsidiaries of each issuer are separate
and distinct legal entities and have no obligation, contingent
or otherwise, to make payments on the debt securities (except,
in the case of any subsidiary that has guaranteed any debt
securities, its obligations under its Guarantee of those debt
securities for so long as that Guarantee remains in effect) or
to make any funds available to the applicable issuer. Certain
debt and security agreements entered into by certain of the
issuers subsidiaries contain various restrictions,
including restrictions on payments and loans by subsidiaries to
the applicable issuer and the transfer by the subsidiaries to
the applicable issuer of assets pledged as collateral under such
agreements. In addition, dividends, loans or other distributions
from subsidiaries to the applicable issuer may be subject to
additional contractual and other restrictions, are dependent
upon the results of operations of such subsidiaries and are
subject to other business considerations.
The unsecured debt securities of the applicable issuer will be
effectively subordinated to all of the existing and future
secured indebtedness of such issuer to the extent of the value
of the collateral securing that indebtedness. Consequently, in
the event of a bankruptcy, liquidation, dissolution,
reorganization or similar proceeding with respect to the
applicable issuer, the holders of such issuers secured
indebtedness will be entitled to proceed directly against the
collateral that secures that secured indebtedness, and such
collateral will not be available for satisfaction of any amounts
owed by the applicable issuer under its unsecured indebtedness,
including the unsecured debt securities, until that secured
indebtedness is satisfied in full. Unless otherwise provided in
the applicable prospectus supplement, the indentures will not
limit the issuers ability to incur secured indebtedness.
The unsecured debt securities of the issuers (other than any
unsecured debt securities that have been guaranteed by any of
such issuers subsidiaries for so long as the Guarantees of
those debt securities remain in effect) will be effectively
subordinated to all existing and future liabilities and
preferred equity of the applicable issuers subsidiaries.
These liabilities may include indebtedness, trade payables,
other guarantees, lease obligations, swaps and letter of credit
obligations. Therefore, the issuers rights and the rights
of the issuers creditors, including the holders of
unsecured debt securities, to participate in the assets of any
subsidiary upon that subsidiarys bankruptcy, liquidation,
dissolution, reorganization or similar circumstances will be
subject (except in the case of any subsidiary that has
guaranteed any unsecured debt securities for so long as its
Guarantee of those debt securities remains in effect) to the
prior claims of the subsidiarys creditors, except to the
extent that an issuer may itself be a creditor with recognized
claims against the subsidiary. However, even if an issuer is a
creditor of one or more of its subsidiaries, its claims would
still be effectively subordinate to any security interest in, or
mortgages or other liens on, the assets of the subsidiary and
would be subordinate to any indebtedness of the subsidiary
senior to that held by the applicable issuer. Unless otherwise
provided in the applicable prospectus supplement, the indentures
will not limit the ability of any of the respective
issuers subsidiaries to incur additional secured or
unsecured indebtedness, guarantees or other liabilities.
Guarantees
The debt securities of any series of each issuer may be
guaranteed by one or more of its subsidiaries and, in the case
of HCA Inc., the debt securities will be guaranteed by HCA
Holdings, Inc. The Guarantors of any series of guaranteed debt
securities of each issuer may differ from the Guarantors of any
other series of guaranteed debt securities of each issuer. In
the event HCA Holdings, Inc. or HCA Inc., as applicable, issues
a series of guaranteed debt securities, the specific Guarantors
of the debt securities of that series will be identified in the
applicable prospectus supplement.
10
If HCA Holdings, Inc. or HCA Inc., as applicable, issues a
series of guaranteed debt securities, a description of some of
the terms of Guarantees of those debt securities will be set
forth in the applicable prospectus supplement. Unless otherwise
provided in the prospectus supplement relating to a series of
guaranteed debt securities, each Guarantor of the debt
securities of such series will unconditionally guarantee the due
and punctual payment of the principal of, and premium, if any,
and interest, if any, on and any other amounts payable with
respect to, each debt security of such series and the due and
punctual performance of all of the applicable issuers
other obligations under the applicable indenture with respect to
the debt securities of such series, all in accordance with the
terms of such debt securities and the applicable indenture.
Notwithstanding the foregoing, unless otherwise provided in the
prospectus supplement relating to a series of guaranteed debt
securities, the applicable indenture will contain provisions to
the effect that the obligations of each Guarantor under its
Guarantees and such indenture shall be limited to the maximum
amount as will, after giving effect to all other contingent and
fixed liabilities of such Guarantor, result in the obligations
of such Guarantor under such Guarantees and such indenture not
constituting a fraudulent conveyance or fraudulent transfer
under applicable law. However, there can be no assurance that,
notwithstanding such limitation, a court would not determine
that a Guarantee constituted a fraudulent conveyance or
fraudulent transfer under applicable law. If that were to occur,
the court could void the applicable Guarantors obligations
under that Guarantee, subordinate that Guarantee to other debt
and other liabilities of that Guarantor or take other action
detrimental to holders of the debt securities of the applicable
series, including directing the holders to return any payments
received from the applicable Guarantor.
The applicable prospectus supplement relating to any series of
guaranteed debt securities will specify other terms of the
applicable Guarantees, which may include provisions that allow a
Guarantor to be released from its obligations under its
Guarantee under specified circumstances or that provide for one
or more Guarantees to be secured by specified collateral.
Unless otherwise expressly stated in the applicable prospectus
supplement, each Guarantee will be the unsubordinated and
unsecured obligation of the applicable Guarantor and will rank
on a parity in right of payment with all other unsecured and
unsubordinated indebtedness and guarantees of such Guarantor.
Each Guarantee (other than a secured Guarantee) will be
effectively subordinated to all existing and future secured
indebtedness and secured guarantees of the applicable Guarantor
to the extent of the value of the collateral securing that
indebtedness and those guarantees. Consequently, in the event of
a bankruptcy, liquidation, dissolution, reorganization or
similar proceeding with respect to any Guarantor that has
provided an unsecured Guarantee of any debt securities, the
holders of that Guarantors secured indebtedness and
secured guarantees will be entitled to proceed directly against
the collateral that secures that secured indebtedness or those
secured guarantees, as the case may be, and such collateral will
not be available for satisfaction of any amount owed by such
Guarantor under its unsecured indebtedness and unsecured
guarantees, including its unsecured Guarantees of any debt
securities, until that secured debt and those secured guarantees
are satisfied in full. Unless otherwise provided in the
applicable prospectus supplement, the indentures will not limit
the ability of any Guarantor to incur secured indebtedness or
issue secured guarantees.
Unless otherwise expressly stated in the applicable prospectus
supplement, each secured Guarantee will be an unsubordinated
obligation of the applicable Guarantor and will rank on a parity
in right of payment with all other unsecured and unsubordinated
indebtedness and guarantees of such Guarantor, except that such
secured Guarantee will effectively rank senior to such
Guarantors unsecured and unsubordinated indebtedness and
guarantees in respect of claims against the collateral securing
that secured Guarantee.
Book-entry
Debt Securities
The debt securities of a series may be issued in whole or in
part in the form of one or more global debt securities. Global
debt securities will be deposited with, or on behalf of, a
depositary which, unless otherwise specified in the applicable
prospectus supplement relating to the series, will be DTC.
Global debt securities may be issued in either temporary or
permanent form. Unless and until it is exchanged in whole or in
part for individual certificates evidencing debt securities, a
global debt security may not be transferred except as a
11
whole by the depositary to its nominee or by the nominee to the
depositary, or by the depositary or its nominee to a successor
depositary or to a nominee of the successor depositary.
HCA Holdings, Inc. and HCA Inc. anticipate that global debt
securities will be deposited with, or on behalf of, DTC and that
global debt securities will be registered in the name of
DTCs nominee, Cede & Co. All interests in global
debt securities deposited with, or on behalf of, DTC will be
subject to the operations and procedures of DTC and, in the case
of any interests in global debt securities held through
Euroclear Bank S.A./N.V. (Euroclear) or Clearstream
Banking, société anonyme (Clearstream,
Luxembourg), the operations and procedures of Euroclear or
Clearstream, Luxembourg, as the case may be, HCA Holdings, Inc.
and HCA Inc. also anticipate that the following provisions will
apply to the depository arrangements with respect to global debt
securities. Additional or differing terms of the depository
arrangements may be described in the applicable prospectus
supplement.
DTC has advised the issuers that it is:
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a limited-purpose trust company organized under the New York
Banking Law;
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a banking organization within the meaning of the New
York Banking Law;
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a member of the Federal Reserve System;
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a clearing corporation within the meaning of the New
York Uniform Commercial Code; and
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a clearing agency registered pursuant to the
provisions of Section 17A of the Securities Exchange Act of
1934.
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DTC holds securities that its participants deposit with DTC. DTC
also facilitates the settlement among its participants of
securities transactions, including transfers and pledges, in
deposited securities through electronic computerized book-entry
changes in participants accounts, which eliminates the
need for physical movement of securities certificates. Direct
participants include securities brokers and dealers, banks,
trust companies, clearing corporations and other organizations.
Access to the DTC system is also available to others, sometimes
referred to in this prospectus as indirect participants, that
clear transactions through or maintain a custodial relationship
with a direct participant either directly or indirectly.
Indirect participants include securities brokers and dealers,
banks and trust companies. The rules applicable to DTC and its
participants are on file with the SEC.
Purchases of debt securities within the DTC system must be made
by or through direct participants, which will receive a credit
for the debt securities on DTCs records. The ownership
interest of the actual purchaser or beneficial owner of a debt
security is, in turn, recorded on the direct and indirect
participants records. Beneficial owners will not receive
written confirmation from DTC of their purchases, but beneficial
owners are expected to receive written confirmations providing
details of the transactions, as well as periodic statements of
their holdings, from the direct or indirect participants through
which they purchased the debt securities. Transfers of ownership
interests in debt securities are to be accomplished by entries
made on the books of participants acting on behalf of beneficial
owners. Beneficial owners will not receive certificates
representing their ownership interests in the debt securities,
except under the limited circumstances described below.
To facilitate subsequent transfers, all debt securities
deposited by participants with DTC will be registered in the
name of DTCs nominee, Cede & Co. The deposit of
debt securities with DTC and their registration in the name of
Cede & Co. will not change the beneficial ownership of
the debt securities. DTC has no knowledge of the actual
beneficial owners of the debt securities. DTCs records
reflect only the identity of the direct participants to whose
accounts the debt securities are credited. Those participants
may or may not be the beneficial owners. The participants are
responsible for keeping account of their holdings on behalf of
their customers.
Conveyance of notices and other communications by DTC to direct
participants, by direct participants to indirect participants
and by direct and indirect participants to beneficial owners
will be governed by arrangements among them, subject to any
legal requirements in effect from time to time. Redemption
notices
12
shall be sent to DTC or its nominee. If less than all of the
debt securities of a series are being redeemed, DTC will reduce
the amount of the interest of each direct participant in the
debt securities under its procedures.
In any case where a vote may be required with respect to the
debt securities of any series, neither DTC nor Cede &
Co. will give consents for or vote the global debt securities.
Under its usual procedures, DTC will mail an omnibus proxy to
HCA Holdings, Inc. or HCA Inc., as applicable, after the record
date. The omnibus proxy assigns the consenting or voting rights
of Cede & Co. to those direct participants to whose
accounts the debt securities are credited on the record date
identified in a listing attached to the omnibus proxy. Principal
and premium, if any, and interest, if any, on the global debt
securities will be paid to Cede & Co., as nominee of
DTC. DTCs practice is to credit direct participants
accounts on the relevant payment date unless DTC has reason to
believe that it will not receive payments on the payment date.
Payments by direct and indirect participants to beneficial
owners will be governed by standing instructions and customary
practices, as is the case with securities held for the account
of customers in bearer form or registered in street
name. Those payments will be the responsibility of
DTCs direct and indirect participants and not of DTC, HCA
Holdings, Inc., HCA Inc., any trustee or any underwriters or
agents involved in the offering or sale of any debt securities.
Payment of principal, premium, if any, and interest, if any, to
DTC is HCA Holdings, Inc.s or HCA Inc.s, as
applicable, responsibility, disbursement of payments to direct
participants is the responsibility of DTC, and disbursement of
payments to the beneficial owners is the responsibility of
direct and indirect participants.
Except under the limited circumstances described below,
beneficial owners of interests in a global debt security will
not be entitled to have debt securities registered in their
names and will not receive physical delivery of debt securities.
Accordingly, each beneficial owner must rely on the procedures
of DTC to exercise any rights under the debt securities and the
indenture.
The laws of some jurisdictions may require that some purchasers
of securities take physical delivery of securities in definitive
form. These laws may impair the ability to transfer or pledge
beneficial interests in global debt securities.
DTC is under no obligation to provide its services as depositary
for the debt securities of any series and may discontinue
providing its services at any time. Neither HCA Holdings, Inc.,
HCA Inc. nor any trustee nor any underwriters or agents involved
in the offering or sale of any debt securities will have any
responsibility for the performance by DTC or its participants or
indirect participants under the rules and procedures governing
DTC. As noted above, beneficial owners of interests in global
debt securities generally will not receive certificates
representing their ownership interests in the debt securities.
However, if
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DTC notifies HCA Holdings, Inc. or HCA Inc., as applicable, that
it is unwilling or unable to continue as a depositary for the
global debt securities of any series or if DTC ceases to be a
clearing agency registered under the Securities Exchange Act of
1934 (if so required by applicable law or regulation) and a
successor depositary for the debt securities of such series is
not appointed within 90 days of the notification to HCA
Holdings, Inc. or HCA Inc., as applicable, or of HCA Holdings,
Inc. or HCA Inc., as applicable, becoming aware of DTCs
ceasing to be so registered, as the case may be,
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HCA Holdings, Inc. or HCA Inc., as applicable, determines, in
its sole discretion, not to have the debt securities of any
series represented by one or more global debt securities, or
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an Event of Default under the applicable indenture has occurred
and is continuing with respect to the debt securities of any
series,
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HCA Holdings, Inc. or HCA Inc., as applicable, will prepare and
deliver certificates for the debt securities of that series in
exchange for beneficial interests in the global debt securities
of that series. Any beneficial interest in a global debt
security that is exchangeable under the circumstances described
in the preceding sentence will be exchangeable for debt
securities in definitive certificated form registered in the
names and in the authorized denominations that the depositary
shall direct. It is expected that these directions will be based
upon directions received by the depositary from its participants
with respect to ownership of beneficial interests in the global
debt securities.
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Clearstream, Luxembourg and Euroclear hold interests on behalf
of their participating organizations through customers
securities accounts in Clearstream, Luxembourgs and
Euroclears names on the books of their respective
depositaries, which hold those interests in customers
securities accounts in the depositaries names on the books
of DTC. At the present time, Citibank, N.A. acts as
U.S. depositary for Clearstream, Luxembourg and JPMorgan
Chase Bank, N.A. acts as U.S. depositary for Euroclear (the
U.S. Depositaries).
Clearstream, Luxembourg holds securities for its participating
organizations (Clearstream Participants) and
facilitates the clearance and settlement of securities
transactions between Clearstream Participants through electronic
book-entry changes in accounts of Clearstream Participants,
thereby eliminating the need for physical movement of
certificates. Clearstream, Luxembourg provides to Clearstream
Participants, among other things, services for safekeeping,
administration, clearance and settlement of internationally
traded securities and securities lending and borrowing.
Clearstream, Luxembourg is registered as a bank in Luxembourg,
and as such is subject to regulation by the Commission de
Surveillance du Secteur Financier and the Banque Centrale du
Luxembourg, which supervise and oversee the activities of
Luxembourg banks. Clearstream Participants are financial
institutions including underwriters, securities brokers and
dealers, banks, trust companies and clearing corporations, and
may include any underwriters or agents involved in the offering
or sale of any debt securities or their respective affiliates.
Indirect access to Clearstream, Luxembourg is available to other
institutions that clear through or maintain a custodial
relationship with a Clearstream Participant. Clearstream,
Luxembourg has established an electronic bridge with Euroclear
as the operator of the Euroclear System (the Euroclear
Operator) in Brussels to facilitate settlement of trades
between Clearstream, Luxembourg and the Euroclear Operator.
Distributions with respect to global debt securities held
beneficially through Clearstream, Luxembourg will be credited to
cash accounts of Clearstream Participants in accordance with its
rules and procedures, to the extent received by the
U.S. Depositary for Clearstream, Luxembourg. Euroclear
holds securities and book-entry interests in securities for
participating organizations (Euroclear Participants)
and facilitates the clearance and settlement of securities
transactions between Euroclear Participants, and between
Euroclear Participants and participants of certain other
securities intermediaries through electronic book-entry changes
in accounts of such participants or other securities
intermediaries. Euroclear provides Euroclear Participants, among
other things, with safekeeping, administration, clearance and
settlement, securities lending and borrowing, and related
services. Euroclear Participants are investment banks,
securities brokers and dealers, banks, central banks,
supranationals, custodians, investment managers, corporations,
trust companies and certain other organizations, and may include
any underwriters or agents involved in the offering or sale of
any debt securities or their respective affiliates.
Non-participants in Euroclear may hold and transfer beneficial
interests in a global debt security through accounts with a
participant in the Euroclear System or any other securities
intermediary that holds a book-entry interest in a global debt
security through one or more securities intermediaries standing
between such other securities intermediary and Euroclear.
Securities clearance accounts and cash accounts with the
Euroclear Operator are governed by the Terms and Conditions
Governing Use of Euroclear and the related Operating Procedures
of the Euroclear System, and applicable Belgian law
(collectively, the Terms and Conditions). The Terms
and Conditions govern transfers of securities and cash within
Euroclear, withdrawals of securities and cash from Euroclear and
receipts of payments with respect to securities in Euroclear.
All securities in Euroclear are held on a fungible basis without
attribution of specific certificates to specific securities
clearance accounts. The Euroclear Operator acts under the Terms
and Conditions only on behalf of Euroclear Participants, and has
no record of or relationship with persons holding through
Euroclear Participants.
Distributions on interests in global debt securities held
beneficially through Euroclear will be credited to the cash
accounts of Euroclear Participants in accordance with the Terms
and Conditions, to the extent received by the
U.S. Depositary for Euroclear.
Transfers between Euroclear Participants and Clearstream
Participants will be effected in the ordinary way in accordance
with their respective rules and operating procedures.
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Cross-market transfers between direct participants in DTC, on
the one hand, and Euroclear Participants or Clearstream
Participants, on the other hand, will be effected through DTC in
accordance with DTCs rules on behalf of Euroclear or
Clearstream, Luxembourg, as the case may be, by its
U.S. Depositary; however, such cross-market transactions
will require delivery of instructions to Euroclear or
Clearstream, Luxembourg, as the case may be, by the counterparty
in such system in accordance with the applicable rules and
procedures and within the established deadlines (European time)
of such system. Euroclear or Clearstream, Luxembourg, as the
case may be, will, if the transaction meets its settlement
requirements, deliver instructions to its U.S. Depositary
to take action to effect final settlement on its behalf by
delivering or receiving interests in global debt securities in
DTC, and making or receiving payment in accordance with normal
procedures for
same-day
fund settlement applicable to DTC. Euroclear Participants and
Clearstream Participants may not deliver instructions directly
to their respective U.S. Depositaries.
Due to time zone differences, the securities accounts of a
Euroclear Participant or Clearstream Participant purchasing an
interest in a global debt security from a direct participant in
DTC will be credited, and any such crediting will be reported to
the relevant Euroclear Participant or Clearstream Participant,
during the securities settlement processing day (which must be a
business day for Euroclear or Clearstream, Luxembourg)
immediately following the settlement date of DTC. Cash received
in Euroclear or Clearstream, Luxembourg as a result of sales of
interests in a global debt security by or through a Euroclear
Participant or Clearstream Participant to a direct participant
in DTC will be received with value on the settlement date of DTC
but will be available in the relevant Euroclear or Clearstream,
Luxembourg cash account only as of the business day for
Euroclear or Clearstream, Luxembourg following DTCs
settlement date.
Euroclear and Clearstream, Luxembourg are under no obligation to
perform or to continue to perform the foregoing procedures and
such procedures may be discontinued at any time without notice.
Neither HCA Holdings, Inc. or HCA Inc. nor any trustee nor any
underwriters or agents involved in the offering or sale of any
debt securities will have any responsibility for the performance
by Euroclear or Clearstream, Luxembourg or their respective
participants of their respective obligations under the rules and
procedures governing their operations.
The information in this section concerning DTC, Euroclear and
Clearstream, Luxembourg and their book-entry systems has been
obtained from sources that HCA Holdings, Inc. and HCA Inc.
believe to be reliable, but HCA Holdings, Inc. and HCA Inc. take
no responsibility for the accuracy of that information.
Redemption
and Repurchase
The debt securities of any series may be redeemable at the
option of HCA Holdings, Inc. or HCA Inc., as applicable, or may
be subject to mandatory redemption by HCA Holdings, Inc. or HCA
Inc., as applicable, as required by a sinking fund or otherwise.
In addition, the debt securities of any series may be subject to
repurchase or repayment by HCA Holdings, Inc. or HCA Inc., as
applicable, at the option of the holders. The applicable
prospectus supplement will describe the terms, the times and the
prices regarding any optional or mandatory redemption by HCA
Holdings, Inc. or HCA Inc., as applicable, or any repurchase or
repayment at the option of the holders of any series of debt
securities.
Secured
Debt Securities
The debt securities of any series and the Guarantees, if any, of
the debt securities of any series may be secured by collateral.
The applicable prospectus supplement will describe any such
collateral and the terms of such secured debt securities.
Merger,
Consolidation and Sale of Assets
Unless otherwise specified in the applicable prospectus
supplement, the indentures provide that HCA Holdings, Inc. or
HCA Inc., as applicable, will not consolidate or merge with or
into or wind up into (whether
15
or not the Issuer is the surviving corporation), or sell,
assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its properties or assets, in one or more
related transactions, to any Person unless:
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either (1) HCA Holdings, Inc. or HCA Inc., as applicable,
is the surviving corporation or (2) the Person formed by or
surviving any such consolidation or merger (if other than HCA
Holdings, Inc. or HCA Inc., as applicable,) or to which such
sale, assignment, transfer, lease, conveyance or other
disposition will have been made is a corporation organized or
existing under the laws of the jurisdiction of organization of
the applicable issuer or the laws of the United States, any
state thereof, the District of Columbia, or any territory
thereof (such Person, as the case may be, being herein called
the Successor Company);
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the Successor Company, if other than the applicable issuer,
shall expressly assume all the obligations of the applicable
issuer pursuant to supplemental indentures or other documents or
instruments in form reasonably satisfactory in form to the
trustee;
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immediately after giving effect to the transaction described
above, no Event of Default under the applicable indenture, and
no event which, after notice or lapse of time or both would
become an Event of Default under the applicable indenture, shall
have occurred and be continuing;
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with respect to any guaranteed debt securities, each Guarantor,
unless it is the other party to the transactions described
above, shall have by supplemental indenture confirmed that its
Guarantee shall apply to such persons obligations under
the applicable indenture and the debt securities; and
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the trustee shall have received the officers certificate
and opinion of counsel called for by the applicable indenture.
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In addition, with respect to secured debt securities, unless
otherwise specified in the applicable prospectus supplement, the
indentures provide that immediately after giving pro forma
effect to the transaction described above, (1) the
Collateral owned by the Successor Company will continue to
constitute Collateral under the applicable indenture and related
security documents and (2) to the extent any assets of the
Person which is merged or consolidated with or into the
Successor Company are assets of the type which would constitute
Collateral under the related security documents, the Successor
Company will take such action as may be reasonably necessary to
cause such property and assets to be made subject to the Lien of
the security documents in the manner and to the extent required
by the applicable indenture.
In the case of any such merger, consolidation, sale, assignment,
transfer, lease, conveyance or other disposition in which HCA
Holdings, Inc. or HCA Inc., as applicable, is not the continuing
entity and upon execution and delivery by the successor person
of the supplemental indenture described above, such Successor
Person shall succeed to, and be substituted for, HCA Holdings,
Inc. or HCA Inc., as applicable, and may exercise every right
and power of HCA Holdings, Inc. or HCA Inc., as applicable,
under the applicable indenture with the same effect as if such
successor person had been named as HCA Holdings, Inc. or HCA
Inc., as applicable, therein, and HCA Holdings, Inc. or HCA
Inc., as applicable, shall be automatically released and
discharged from all obligations and covenants under the
applicable indenture and the debt securities issued under that
indenture.
With respect to guaranteed debt securities, unless otherwise
specified in the applicable prospectus supplement, the merger,
consolidation and transfer of assets provisions described above
are equally applicable to each of the Guarantors in its capacity
as guarantor of such debt securities.
Events of
Default
Unless otherwise specified in the applicable prospectus
supplement, an Event of Default with respect to the
debt securities of any series is defined in the applicable
indenture as being:
(1) default in payment when due and payable, upon
redemption, acceleration or otherwise, of principal of, or
premium, if any, on the debt securities;
(2) default for 30 days or more in the payment when
due of interest on or with respect to the debt securities;
16
(3) default in the deposit of any sinking fund payment when
and as due with respect to any of the debt securities of that
series;
(4) default in the performance, or breach, of any covenant
or warranty of the issuer in the applicable indenture, and
continuance of such default or breach for a period of
60 days after there has been given written notice by the
trustee or the holders of at least 10% in principal amount of
the outstanding debt securities (with a copy to the trustee)
specifying such default or breach and requiring it to be
remedied;
(5) HCA Holdings, Inc. or HCA Inc., as applicable, pursuant
to or within the meaning of any Bankruptcy Law:
(i) commences proceedings to be adjudicated bankrupt or
insolvent; (ii) consents to the institution of bankruptcy
or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief
under applicable Bankruptcy Law; (iii) consents to the
appointment of a receiver, liquidator, assignee, trustee,
sequestrator or other similar official of it or for all or
substantially all of its property; (iv) makes a general
assignment for the benefit of its creditors; or
(v) generally is not paying its debts as they become due;
(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that: (i) is for relief
against HCA Holdings, Inc. or HCA Inc. as applicable, in a
proceeding in which the issuer is to be adjudicated bankrupt or
insolvent; appoints a receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the issuer, or for all
or substantially all of the property of the issuer; or orders
the liquidation of the issuer; and the order or decree remains
unstayed and in effect for 60 consecutive days;
(7) if applicable, the Guarantee of any Significant
Subsidiary shall for any reason cease to be in full force and
effect or be declared null and void or any responsible officer
of any Guarantor that is a Significant Subsidiary, as the case
may be, denies that it has any further liability under its
Guarantee or gives notice to such effect, other than by reason
of the termination of the indenture or the release of any such
Guarantee in accordance with the indenture; or
(8) any other Event of Default established for the debt
securities of that series.
No Event of Default with respect to any particular series of
debt securities necessarily constitutes an Event of Default with
respect to any other series of debt securities. The indentures
provide that, within 90 days after the occurrence of any
default with respect to the debt securities of any series, the
trustee will mail to all holders of the debt securities of that
series notice of that default. Except in the case of a default
relating to the payment of principal, premium, if any, or
interest on debt securities of any series, the trustee may
withhold from the holders notice of any continuing default if
and so long as a committee of its responsible officers in good
faith determines that withholding the notice is in the interests
of the holders of the debt securities. The trustee shall not be
deemed to know of any default unless a responsible officer of
the trustee has actual knowledge thereof or unless written
notice of any event which is such a Default is received by the
trustee at the corporate trust office of the trustee.
The indentures provide that if any Event of Default (other than
an Event of Default specified in clauses (5) or (6) of the
second preceding paragraph with respect to of HCA Holdings, Inc.
or HCA Inc., as applicable) occurs and is continuing under the
indenture, the trustee or the holders of at least 25% in
principal amount of the then total outstanding debt securities
may declare the principal, premium, if any, interest and any
other monetary obligations on all the then outstanding debt
securities to be due and payable immediately. Upon the
effectiveness of such declaration, such principal and interest
shall be due and payable immediately. The trustee shall have no
obligation to accelerate the debt securities if and so long as a
committee of its Responsible Officers in good faith determines
acceleration is not in the best interest of the holders of the
debt securities. Notwithstanding the foregoing, in the case of
an Event of Default arising under clauses (5) or (6), all
outstanding debt securities shall be due and payable immediately
without further action or notice. The holders of a majority in
aggregate principal amount of the then outstanding debt
securities by written notice to the trustee may on behalf of all
of the holders rescind an acceleration and its consequences if
the rescission would not conflict with any judgment or decree
and if all existing Events of Default (except nonpayment of
principal, interest or premium that has become due solely
because of the acceleration) have been cured or waived.
17
Subject to the provisions of the Trust Indenture Act of
1939 requiring the trustee, during the continuance of an Event
of Default under the applicable indenture, to act with the
requisite standard of care, the trustee is under no obligation
to exercise any of its rights or powers under the applicable
indenture at the request or direction of any of the holders of
debt securities of any series unless those holders have offered
the trustee indemnity reasonably satisfactory to the trustee
against the costs, fees and expenses and liabilities which might
be incurred in compliance with such request or direction.
Subject to the foregoing, holders of a majority in principal
amount of the outstanding debt securities of any series issued
under the applicable indenture have the right to direct the
time, method and place of conducting any proceeding for any
remedy available to the trustee under the indenture with respect
to that series. The indentures require the annual filing by HCA
Holdings, Inc. or HCA Inc., as applicable, with the trustee of a
certificate which states whether or not HCA Holdings, Inc. or
HCA Inc., as applicable, are in default under the terms of the
indenture.
Unless otherwise specified in the applicable prospectus
supplement, no holder of any debt securities of any series shall
have any right to institute any proceeding, judicial or
otherwise, with respect to the applicable indenture, or for the
appointment of a receiver or trustee, or for any other remedy
under the indenture, unless:
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such holder has previously given written notice to the trustee
of a continuing Event of Default with respect to the debt
securities of such series;
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the holders of not less than 25% in principal amount of the
total outstanding debt securities of such series shall have made
written request to the trustee to institute proceedings in
respect of such Event of Default in its own name as trustee
under the indenture;
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holders have offered to the trustee security or indemnity
reasonably satisfactory to the trustee against any loss
liability or expense incurred in compliance with such request;
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the trustee has not complied with such request within
60 days after the receipt thereof and the offer of security
or indemnity; and
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holders of a majority in principal amount of the total
outstanding debt securities have not given the trustee a
direction inconsistent with such request within such
60-day
period.
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Notwithstanding any other provision of the indenture, the right
of any holder of a debt security to receive payment of
principal, premium, if any, and interest on the debt security,
on or after the respective due dates expressed in the debt
security, or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired
or affected without the consent of such holder.
Amendment,
Supplement and Waiver
Unless otherwise specified in the applicable prospectus
supplement, the indentures permit HCA Holdings, Inc. or HCA
Inc., as applicable, any Guarantors party to such indenture and
the trustee, with the consent of the holders of at least
majority in principal amount of the outstanding debt securities
of each series issued under the applicable indenture and
affected by a modification or amendment, to modify or amend any
of the provisions of the applicable indenture or of the debt
securities of the applicable series or the rights of the holders
of the debt securities of that series under the applicable
indenture. However, no such modification or amendment shall,
among other things:
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change the stated maturity of the principal of, or installment
of interest, if any, on, any debt securities, or reduce the
principal amount thereof or the interest thereon or any premium
payable upon redemption thereof;
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change the currency in which the principal of (and premium, if
any) or interest on such debt securities are denominated or
payable;
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adversely affect the right of repayment or repurchase, if any,
at the option of the holder after such obligation arises, or
reduce the amount of, or postpone the date fixed for, any
payment under any sinking fund or impair the right to institute
suit for the enforcement of any payment on or after the stated
maturity thereof (or, in the case of redemption, on or after the
redemption date);
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reduce the percentage of holders whose consent is required for
modification or amendment of the indenture or for waiver of
compliance with certain provisions of the indenture or certain
defaults;
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modify the provisions that require holder consent to modify or
amend the indenture or that permit holders to waive compliance
with certain provisions of the indenture or certain defaults;
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impair the right of any holder to receive payment of principal
of, or interest on such holders debt securities on or
after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to such
holders debt securities; or
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except as expressly permitted by the indenture, modify the
Guarantees of any Significant Subsidiary in any manner adverse
to the holders of any debt securities.
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without in each case obtaining the consent of the holder of each
outstanding debt security issued under such indenture affected
by the modification or amendment.
Unless otherwise specified in the applicable prospectus
supplement, the indentures also contain provisions permitting
HCA Holdings, Inc. or HCA Inc., as applicable, any Guarantors
party to such indenture and the trustee, without the consent of
the holders of any debt securities issued under the applicable
indenture, to modify or amend the indenture, among other things:
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to evidence the succession of another corporation to HCA
Holdings, Inc. or HCA Inc., as applicable, or, if applicable,
any Guarantor under the applicable indenture and the assumption
by such successor of the covenants of HCA Holdings, Inc. or HCA
Inc., as applicable, in compliance with the requirements set
forth in the indenture;
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to add to the covenants for the benefit of the holders or to
surrender any right or power herein conferred upon the HCA
Holdings, Inc. or HCA Inc., as applicable;
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to add any additional Events of Default;
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to change or eliminate any of the provisions of the indenture,
provided that any such change or elimination shall become
effective only when there are no outstanding debt securities of
any series created prior to the execution of such supplemental
indenture that is entitled to the benefit of such provision and
as to which such supplemental indenture would apply;
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to secure the debt securities;
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to supplement any of the provisions of the indenture to such
extent necessary to permit or facilitate the defeasance and
discharge of the debt securities, provided that any such action
does not adversely affect the interests of the holders of the
debt securities in any material respect;
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to evidence and provide for the acceptance of appointment
hereunder by a successor trustee and to add to or change any of
the provisions of the indenture necessary to provide for or
facilitate the administration of the trusts by more than one
trustee;
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to cure any ambiguity to correct or supplement any provision of
the indenture which may be defective or inconsistent with any
other provision;
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to change any place or places where the principal of and
premium, if any, and interest, if any, on the debt securities
shall be payable, the debt securities may be surrendered for
registration or transfer, the debt securities may be surrendered
for exchange, and notices and demands to or upon HCA Holdings,
Inc. or HCA Inc., as applicable, may be served;
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to comply with requirements of the SEC in order to effect or
maintain the qualification of the indenture under the
Trust Indenture Act of 1939;
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to conform the text of the indenture or the debt securities to
any provision of the section regarding the description of the
notes contained in the prospectus supplement to the extent that
such provision in such section was intended to be a verbatim
recitation of a provision of the indenture or the debt
securities;
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to make any amendment to the provisions of the indenture
relating to the transfer and legending of debt securities as
permitted by the indenture, including, without limitation to
facilitate the issuance and administration of the debt
securities; provided, however, that (i) compliance with the
indenture as so amended would not result in debt securities
being transferred in violation of the Securities Act or any
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applicable securities law and (ii) such amendment does not
materially and adversely affect the rights of holders to
transfer debt securities; or
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to add additional Guarantees or additional Guarantors in respect
of all or any securities under the indenture, and to evidence
the release and discharge of any Guarantor from its obligations
under its Guarantee of any or all securities and its obligations
under the indenture in respect of any or all Securities in
accordance with the terms of the indenture.
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Unless otherwise specified in the applicable prospectus
supplement, the holders of a majority in aggregate principal
amount of the outstanding debt securities of any series may
waive the compliance of HCA Holdings, Inc. or HCA Inc., as
applicable, with the provisions described above under
Merger, Consolidation and Sale of Assets
and certain other provisions of the indenture and, if specified
in the prospectus supplement relating to such series of debt
securities, any additional covenants applicable to the debt
securities of such series. The holders of a majority in
aggregate principal amount of the outstanding debt securities of
any series may, on behalf of all holders of debt securities of
that series, waive any past default under the applicable
indenture with respect to debt securities of that series and its
consequences, except a default in the payment of the principal
of, or premium, if any, or interest, if any, on debt securities
of that series or, in the case of any debt securities which are
convertible into or exchangeable for other securities or
property, a default in any such conversion or exchange, or a
default in respect of a covenant or provision which cannot be
modified or amended without the consent of the holder of each
outstanding debt security of the affected series.
Discharge,
Defeasance and Covenant Defeasance
Unless otherwise provided in the applicable prospectus
supplement, HCA Holdings, Inc. and HCA Inc., as applicable, may
discharge certain obligations to holders of the debt securities
of a series that have not already been delivered to the trustee
for cancellation and that either have become due and payable or
will become due and payable within one year (or scheduled for
redemption within one year) by depositing with the trustee, in
trust, funds in U.S. dollars in an amount sufficient to pay
the entire indebtedness including the principal, premium, if
any, and interest to the date of such deposit (if the debt
securities have become due and payable) or to the maturity
thereof or the redemption date of the debt securities of that
series, as the case may be.
The indentures provide that the applicable issuer may elect
either (1) to defease and be discharged from any and all
obligations with respect to the debt securities of a series
(except for, among other things, obligations to register the
transfer or exchange of the debt securities, to replace
temporary or mutilated, destroyed, lost or stolen debt
securities, to maintain an office or agency with respect to the
debt securities and to hold moneys for payment in trust)
(legal defeasance) or (2) to be released from
its obligations to comply with the restrictive covenants under
the indenture, and any omission to comply with such obligations
will not constitute a default or an event of default with
respect to the debt securities of a series and clauses (3), (5)
and (6) under Events of Default will no
longer be applied (covenant defeasance). Legal
defeasance or covenant defeasance, as the case may be, will be
conditioned upon, among other things, the irrevocable deposit by
the issuer with the trustee, in trust, of an amount in
U.S. dollars, or U.S. government obligations, or both,
applicable to the debt securities of that series which through
the scheduled payment of principal and interest in accordance
with their terms will provide money in an amount sufficient to
pay the principal or premium, if any, and interest on the debt
securities on the scheduled due dates therefor.
If HCA Holdings, Inc. or HCA Inc., as applicable, effects
covenant defeasance with respect to the debt securities of any
series, the amount in U.S. dollars, or U.S. government
obligations, or both, on deposit with the trustee will be
sufficient, in the opinion of a nationally recognized firm of
independent accountants, to pay amounts due on the debt
securities of that series at the time of the stated maturity but
may not be sufficient to pay amounts due on the debt securities
of that series at the time of the acceleration resulting from
such event of default. However, HCA Holdings, Inc. or HCA Inc.,
as applicable, would remain liable to make payment of such
amounts due at the time of acceleration.
HCA Holdings, Inc. or HCA Inc., as applicable, will be required
to deliver to the trustee an opinion of counsel that the deposit
and related defeasance will not cause the holders and beneficial
owners of the debt securities of that series to recognize
income, gain or loss for U.S. federal income tax purposes.
If HCA
20
Holdings, Inc. or HCA Inc., as applicable, elects legal
defeasance, that opinion of counsel must be based upon a ruling
from the U.S. Internal Revenue Service or a change in law
to that effect.
HCA Holdings, Inc. or HCA Inc., as applicable, may exercise our
legal defeasance option notwithstanding our prior exercise of
our covenant defeasance option.
Definitions
As used in the indentures, unless otherwise specified in the
applicable prospectus supplement the following terms have the
meanings specified below:
Bankruptcy Law
means the Bankruptcy Code and
any similar federal, state or foreign law for the relief of
debtors.
Collateral
means, collectively, all of the
property and assets that are from time to time subject to the
Lien of the security documents including the Liens, if any,
required to be granted pursuant to the applicable indenture.
Event of Default
has the meaning set forth
under the section Events of Default.
Lien
means, with respect to any asset, any
mortgage, lien (statutory or otherwise), pledge, hypothecation,
charge, security interest, preference, priority or encumbrance
of any kind in respect of such asset, whether or not filed,
recorded or otherwise perfected under applicable law, including
any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to
sell or give a security interest in and any filing of or
agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction;
provided that in no event shall an operating lease be deemed to
constitute a Lien.
Person
means any individual, corporation,
limited liability company, partnership, joint venture,
association, joint stock company, trust, unincorporated
organization, government or any agency or political subdivision
thereof or any other entity.
Significant Subsidiary
means any direct or
indirect Subsidiary of the issuer that would be a
significant subsidiary as defined in Article 1,
Rule 1-02
of
Regulation S-X,
promulgated pursuant to the Securities Act, as such regulation
is in effect on the Issue Date and which is not designated by
the issuer to be an Unrestricted Subsidiary (as defined in the
applicable indenture).
Subsidiary
means, with respect to any Person,
(i) any corporation, association, or other business entity
(other than a partnership, joint venture, limited liability
company or similar entity) of which more than 50% of the total
voting power of shares of capital stock entitled (without regard
to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time of
determination owned or controlled, directly or indirectly, by
such Person or one or more of the other Subsidiaries of that
Person or a combination thereof or is consolidated under GAAP
with such Person at such time; and (ii) any partnership, joint
venture, limited liability company or similar entity of which
more than 50% of the equity ownership, whether in the form of
membership, general, special or limited partnership interests or
otherwise, is owned or controlled, directly or indirectly, by
such Person or one or more of the other Subsidiaries of that
Person or a combination thereof;
Governing
Law
The indentures and the debt securities (including any Guarantees
endorsed on the debt securities, if any) will be governed by,
and construed in accordance with, the laws of the State of New
York.
Regarding
the Trustees
The Trust Indenture Act of 1939 limits the rights of a
trustee, if the trustee becomes a creditor of HCA Holdings, Inc.
or HCA Inc., as applicable, to obtain payment of claims or to
realize on property received by it in respect of those claims,
as security or otherwise. Any trustee is permitted to engage in
other transactions with HCA Holdings, Inc. or HCA Inc., as
applicable, and its subsidiaries from time to time. However, if
a trustee acquires any conflicting interest it must eliminate
the conflict upon the occurrence of an Event of Default under
the applicable indenture or resign as trustee.
21
PLAN OF
DISTRIBUTION
We may sell the debt securities described in this prospectus
from time to time in one or more transactions:
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to purchasers directly;
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to underwriters for public offering and sale by them;
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through agents;
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through dealers; or
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through a combination of any of the foregoing methods of sale.
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We may sell the debt securities directly to institutional
investors or others who may be deemed to be underwriters within
the meaning of the Securities Act, with respect to any resale of
the debt securities. A prospectus supplement will describe the
terms of any sale of debt securities we are offering hereunder.
Direct sales may be arranged by a securities broker-dealer or
other financial intermediary.
The applicable prospectus supplement will name any underwriter
involved in a sale of debt securities. Underwriters may offer
and sell debt securities at a fixed price or prices, which may
be changed, or from time to time at market prices or at
negotiated prices. Underwriters may be deemed to have received
compensation from us from sales of debt securities in the form
of underwriting discounts or commissions and may also receive
commissions from purchasers of debt securities for whom they may
act as agent. Underwriters may be involved in any at the
market offering of debt securities by or on our behalf.
Underwriters may sell debt securities to or through dealers, and
such dealers may receive compensation in the form of discounts,
concessions or commissions from the underwriters
and/or
commissions (which may be changed from time to time) from the
purchasers for whom they may act as agent.
Unless we state otherwise in the applicable prospectus
supplement, the obligations of any underwriters to purchase debt
securities will be subject to certain conditions precedent, and
the underwriters will be obligated to purchase all the debt
securities if any are purchased.
The applicable prospectus supplement will set forth whether or
not underwriters may over-allot or effect transactions that
stabilize, maintain or otherwise affect the market price of the
debt securities at levels above those that might otherwise
prevail in the open market, including, for example, by entering
stabilizing bids, effecting syndicate covering transactions or
imposing penalty bids.
We will name any agent involved in a sale of debt securities, as
well as any commissions payable by us to such agent, in a
prospectus supplement. Unless we state otherwise in the
applicable prospectus supplement, any such agent will be acting
on a reasonable efforts basis for the period of its appointment.
If we utilize a dealer in the sale of the debt securities being
offered pursuant to this prospectus, we will sell the debt
securities to the dealer, as principal. The dealer may then
resell the debt securities to the public at varying prices to be
determined by the dealer at the time of resale.
Underwriters, dealers and agents participating in a sale of the
debt securities may be deemed to be underwriters as defined in
the Securities Act, and any discounts and commissions received
by them and any profit realized by them on resale of the debt
securities may be deemed to be underwriting discounts and
commissions, under the Securities Act. We may have agreements
with underwriters, dealers and agents to indemnify them against
certain civil liabilities, including liabilities under the
Securities Act, and to reimburse them for certain expenses.
22
LEGAL
MATTERS
The validity of the securities to be sold hereunder will be
passed upon for us by Simpson Thacher & Bartlett LLP,
New York, New York or other counsel who is satisfactory to us.
An investment vehicle comprised of several partners of Simpson
Thacher & Bartlett LLP, members of their families,
related persons and others own interests representing less than
1% of the capital commitments of the KKR Millennium Fund, L.P.
and KKR 2006 Fund L.P.
EXPERTS
The consolidated financial statements of HCA Holdings, Inc.
incorporated by reference in HCA Holdings, Inc.s Current
Report on
Form 8-K
dated July 26, 2011, and the effectiveness of HCA Holdings,
Inc.s internal control over financial reporting as of
December 31, 2010, have been audited by Ernst &
Young LLP, independent registered public accounting firm, as set
forth in its reports thereon, included therein, and incorporated
herein by reference. Such consolidated financial statements and
HCA Holdings, Inc. managements assessment of the
effectiveness of internal control over financial reporting as of
December 31, 2010 are incorporated herein by reference in
reliance upon such reports given on the authority of such firm
as experts in accounting and auditing.
23
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other
Expenses of Issuance and Distribution.
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The following is a statement of the expenses (all of which are
estimated) to be incurred by the Registrant in connection with a
distribution of securities registered under this registration
statement:
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Amount to be paid
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SEC registration fee
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$
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*
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Legal fees and expenses
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**
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Accounting fees and expenses
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**
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Printing fees
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**
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Rating agency fees
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**
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Trustees fees and expenses
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**
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Miscellaneous
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**
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Total
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$
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*
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The Registrant is registering an indeterminate amount of
securities under this Registration Statement and in accordance
with Rules 456(b) and 457(r), the Registrant is deferring
payment of all of the registration fee.
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The applicable prospectus supplement will set forth the
estimated aggregate amount of expenses payable in respect of any
offering of securities.
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Item 15.
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Indemnification
of Directors and Officers.
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California
Registrants
(a) Columbia ASC Management, L.P. and Riverside
Healthcare System, L.P. are registered under the laws of
California.
The partnership agreements of Columbia ASC Management, L.P. and
Riverside Healthcare System, L.P. provide that the limited
partner shall indemnify and hold harmless the general partner;
its partners, managers, employees, agents and representatives;
and the officers, directors, employees, agents and
representatives of its partners to the fullest extent permitted
by the California Limited Partnership Act and the California
Revised Partnership Act. Neither of these acts, however,
addresses indemnification.
Section 15904.06 (Operative January 1, 2008) of
the 2008 California Revised Limited Partnership Act addresses
the rights of a general partner with respect to its management
and conduct of partnership activities. The 2008 California
Revised Limited Partnership Act provides that a limited
partnership shall reimburse a general partner for payments made,
and indemnify a general partner for liabilities incurred by, the
general partner in the ordinary course of the activities of the
partnership or for the preservation of its activities or
property.
(b) Columbia Riverside, Inc., Encino Hospital
Corporation, Inc., Los Robles Regional Medical Center and MCA
Investment Company are incorporated under the laws of
California.
Section 317 of the California General Corporation Law sets
forth the provisions pertaining to the indemnification of
corporate agents. For purposes of this law, an agent
is any person who is or was a director, officer, employee or
other agent of a corporation, or is or was serving at the
request of the corporation in such capacity with respect to any
other corporation, partnership, join venture, trust or other
enterprise. Indemnification for expenses, including amounts paid
on settling or otherwise disposing of a
II-1
threatened or pending action or defending against the same, can
be made in certain circumstances by action of the company
through:
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a majority vote of a quorum of the corporations Board of
Directors consisting of directors who are not party to the
proceedings;
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approval of the shareholders, with the shares owned by the
person to be indemnified not being entitled to vote
thereon; or
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such court in which the proceeding is or was pending upon
application by designated parties.
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Under certain circumstances, an agent can be indemnified, even
when found liable. Indemnification is mandatory where the
agents defense is successful on the merits. The law allows
a corporation to make advances of expenses for certain actions
upon the receipt of an undertaking that the agent will reimburse
the corporation if the agent is found liable. The
indemnification provided by Section 317 for acts while
serving as a director or officer of the corporation, but not
involving breach of duty to the corporation and its
shareholders, shall not be deemed exclusive of any other rights
to which those seeking indemnification may be entitled under any
bylaw to the extent authorized by the corporations
articles of incorporation.
The bylaws of each of the California registrants in this
section (b) provide, in relevant part, that each of the
Registrants will indemnify its respective officers and
directors, under the circumstances and to the extent provided
for therein, for expenses, damages, judgments, fines and
settlements such officers and directors may be required to pay
in any action, suit or proceeding which they are or may be made
a party by reason of their position as a director, officer or
other agent of such Registrant, and otherwise to the full extent
permitted under California law and our bylaws for any action
taken on behalf of the corporation that does not involve gross
negligence or willful misconduct.
(c) Surgicare of Riverside, LLC is registered under the
laws of California.
Under Section 17155 of the California Limited Liability
Company Act, except for a breach of duty, the articles of
organization or written operating agreement of a limited
liability company may provide for indemnification of any person,
including, without limitation, any manager, member, officer,
employee or agent of the limited liability company, against
judgments, settlements, penalties, fines or expenses of any kind
incurred as a result of acting in that capacity. A limited
liability company shall have the power to purchase and maintain
insurance on behalf of any manager, member, officer, employee or
agent of the limited liability company against any liability
asserted against or incurred by the person in that capacity or
arising out of the persons status as a manager, member,
officer, employee or agent of the limited liability company.
The limited liability company agreement of Surgicare of
Riverside, LLC states that the company shall indemnify its
officers and managers against all reasonable expense incurred by
them in defending claims or suits, irrespective of the time of
the occurrence of the claims or causes of action in such suits,
made or brought against them as officers or managers of the
company, and against all liability in such suits, except in such
cases as involve gross negligence or willful misconduct in the
performance of their duties. Such indemnification extends to the
payment of judgments against such officers and managers and to
reimbursement of amounts paid in settlement of such claims or
actions and may apply to judgments in favor of the company or
amounts paid in settlement to the company. Such indemnification
also extends to the payment of counsel fees and expenses of such
officers and managers in suits against them where successfully
defended by them or where unsuccessfully defended, if there is
no finding or judgment that the claim or action arose from the
gross negligence or willful misconduct of such officers or
directors. Such right of indemnification is not exclusive of any
right to which such officer or director may be entitled as a
matter of law and shall extend and apply to the estates of
deceased officers and directors.
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Colorado
Registrants
(a) Colorado Health Systems, Inc., Columbine Psychiatric
Center, Inc. and New Rose Holding Company, Inc. are incorporated
under the laws of Colorado.
Sections 7-109-102
through 7-109-110 of the Colorado Business Corporation Act (the
Act) grant each corporation organized thereunder
broad powers to indemnify any person in connection with legal
proceedings brought against him by reason of his present or past
status as an officer or director of the corporation, provided
with respect to conduct in an official capacity with the
corporation, the person acted in good faith and in a manner he
reasonably believed to be in the best interests of the
corporation, with respect to all other conduct, the person
believed the conduct to be at least not opposed to the best
interests of the corporation, and with respect to any criminal
action or proceeding, the person had no reasonable cause to
believe his conduct was unlawful. Indemnification is limited to
reasonable expenses incurred in connection with the proceeding.
No indemnification may be made (i) in connection with a
proceeding by or in the right of the corporation in which the
person was adjudged liable to the corporation; or (ii) in
connection with any other proceedings charging that the person
derived an improper personal benefit, whether or not involving
action in an official capacity, in which proceeding the person
was judged liable on the basis that he derived an improper
personal benefit, unless and only to the extent the court in
which such action was brought or another court of competent
jurisdiction determines upon application that, despite such
adjudication, but in view of all relevant circumstances, the
person is fairly and reasonably entitled to indemnity for
reasonable expenses as the court deems proper. In addition, to
the extent that any such person is successful in the defense of
any such legal proceeding, the corporation is required by the
Act to indemnify him against reasonable expenses.
The bylaws of these Colorado corporations state that the
corporation shall indemnify its officers and directors against
all reasonable expense incurred by them in defending claims or
suits, irrespective of the time of the occurrence of the claims
or causes of action in such suits, made or brought against them
as officers or directors of the corporation, and against all
liability in such suits, except in such cases as involve gross
negligence or willful misconduct in the performance of their
duties. Such indemnification extends to the payment of judgments
against such officers and directors and to reimbursement of
amounts paid in settlement of such claims or actions and may
apply to judgments in favor of the corporation or amounts paid
in settlement to the corporation. Such indemnification also
extends to the payment of counsel fees and expenses of such
officers and directors in suits against them where successfully
defended by them or where unsuccessfully defended, if there is
no finding or judgment that the claim or action arose from the
gross negligence or willful misconduct of such officers or
directors. Such right of indemnification is not exclusive of any
right to which such officer or director may be entitled as a
matter of law and shall extend and apply to the estates of
deceased officers and directors.
Delaware
Registrants
(a) HCA Holdings, Inc., HCA Inc., American Medicorp
Development Co., GPCH-GP, Inc., HCA IT&S Field
Operations, Inc., HCA IT&S Inventory
Management, Inc., Hospital Development Properties, Inc.,
Management Services Holdings, Inc., Midwest Holdings, Inc.,
Riverside Hospital, Inc., Terre Haute Hospital GP, Inc. and
Terre Haute Hospital Holdings, Inc. are incorporated under the
laws of Delaware.
Section 145(a) of the General Corporation Law of the State
of Delaware (the DGCL) grants each corporation
organized thereunder the power to indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation) by reason
of the fact that the person is or was a director, officer,
employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including
attorneys fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding if the person
acted in good faith and in a manner the person reasonably
believed to be in or not
II-3
opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable
cause to believe the persons conduct was unlawful.
Section 145(b) of the DGCL grants each corporation
organized thereunder the power to indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by
reason of the fact that the person is or was a director,
officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against expenses
(including attorneys fees) actually and reasonably
incurred by the person in connection with the defense or
settlement of such action or suit if the person acted in good
faith and in a manner the person reasonably believed to be in or
not opposed to the best interests of the corporation and except
that no indemnification shall be made pursuant to
Section 145(b) of the DGCL in respect of any claim, issue
or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the
Delaware Court of Chancery or the court in which such action or
suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
Section 102(b)(7) of the DGCL enables a corporation in its
certificate of incorporation or an amendment thereto to
eliminate or limit the personal liability of a director to the
corporation or its stockholders of monetary damages for
violations of the directors fiduciary duty of care, except
(i) for any breach of the directors duty of loyalty
to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or that involve intentional
misconduct or a knowing violation of law, (iii) pursuant to
Section 174 of the DGCL (providing for liability of
directors for unlawful payment of dividends or unlawful stock
purchases or redemptions) or (iv) for any transaction from
which a director derived an improper personal benefit.
HCA Holdings, Inc.s and HCA Inc.s amended and
restated bylaws indemnify their respective directors and
officers to the full extent of the DGCL and also allow their
Board of Directors to indemnify all other employees. Such right
of indemnification is not exclusive of any right to which such
officer or director may be entitled as a matter of law and shall
extend and apply to the estates of deceased officers and
directors.
HCA Holdings, Inc. maintains a directors and
officers insurance policy. The policy insures directors
and officers against unindemnified losses arising from certain
wrongful acts in their capacities as directors and officers and
reimburses HCA Holdings, Inc. for those losses for which HCA
Holdings, Inc. have lawfully indemnified the directors and
officers. The policy contains various exclusions that are normal
and customary for policies of this type.
HCA Holdings, Inc.s employment agreements with certain of
its officers provide indemnification for such officers, who, at
HCA Holdings, Inc.s request, may also serve on the board
of directors of HCA Holdings, Inc.s affiliates, including
HCA Inc. HCA Holdings, Inc. has also agreed to indemnify certain
of its officers for adverse tax consequences they may suffer
pursuant to their employment agreements.
On November 1, 2009, HCA Inc. entered into an
indemnification priority and information sharing agreement with
the Sponsors and certain of its affiliated funds, which
agreement was assumed by HCA Holdings, Inc. in the Corporate
Reorganization, to clarify the priority of advancement and
indemnification obligations among us and any of our directors
appointed by the Sponsors and other related matters.
(b) Nashville Shared Services General Partnership is a
general partnership under the laws of Delaware and Integrated
Regional Laboratories, LLP is registered under the laws of
Delaware.
Section 15-110
of the Delaware Revised Uniform Partnership Act provides that
subject to such standards and restrictions, if any, as are set
forth in its partnership agreement, a partnership may, and shall
have the power to, indemnify and hold harmless any partner or
other person from and against any and all claims and demands
whatsoever.
The Nashville Shared Services General Partnership partnership
agreement states that indemnification is controlled by the
Delaware Revised Uniform Partnership Act. The partnership
agreement of Integrated Regional
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Laboratories, LLP indemnifies its officers against all
reasonable expense incurred by them in defending claims or
suits, irrespective of the time of the occurrence of the claims
or causes of action in such suits, made or brought against them
as officers of the company, and against all liability in such
suits, except in such cases as involve gross negligence or
willful misconduct in the performance of their duties. Such
indemnification extends to the payment of judgments against such
officers and to reimbursement of amounts paid in settlement of
such claims or actions and may apply to judgments in favor of
the company or amounts paid in settlement to the company. Such
indemnification also extends to the payment of counsel fees and
expenses of such officers in suits against them where
successfully defended by them or where unsuccessfully defended,
if there is no finding or judgment that the claim or action
arose from the gross negligence or willful misconduct of such
officers or directors. Such right of indemnification is not
exclusive of any right to which such officer may be entitled as
a matter of law and shall extend and apply to the estates of
deceased officers.
(c) Centerpoint Medical Center of Independence, LLC, CMS
GP, LLC, Dallas/Ft. Worth Physician, LLC, EP Health, LLC,
Fairview Park GP, LLC, Goppert-Trinity Family Care, LLC, Grand
Strand Regional Medical Center, LLC, HSS Holdco, LLC, HSS
Systems VA, LLC, HSS Systems, LLC, HTI MOB, LLC, Lakeland
Medical Center, LLC, Lakeview Medical Center, LLC, Lewis-Gale
Medical Center, LLC, Medical Centers of Oklahoma, LLC, Medical
Office Buildings of Kansas, LLC, Midwest Division
ACH, LLC, Midwest Division LRHC, LLC, Midwest
Division LSH, LLC, Midwest Division MCI,
LLC, Midwest Division MMC, LLC, Midwest
Division OPRMC, LLC, Midwest Division
PFC, LLC, Midwest Division RMC, LLC, Midwest
Division RPC, LLC, Notami Hospitals, LLC, Outpatient
Cardiovascular Center of Central Florida, LLC, Reston Hospital
Center, LLC, Samaritan, LLC, San Jose Medical Center, LLC,
San Jose, LLC, SJMC, LLC, Trident Medical Center, LLC, Utah
Medco, LLC and Wesley Medical Center, LLC are registered under
the laws of Delaware.
Section 18-108
of the Delaware Limited Liability Company Act empowers a
Delaware limited liability company to indemnify and hold
harmless any member or manager of the limited liability company
from and against any and all claims and demands whatsoever.
The operating agreement of HTI MOB, LLC indemnifies the officers
and managers to the full extent of the law. The operating
agreements of the remainder of the Delaware limited liability
company registrants indemnify their officers and managers
against all reasonable expense incurred by them in defending
claims or suits, irrespective of the time of the occurrence of
the claims or causes of action in such suits, made or brought
against them as officers or managers of the company, and against
all liability in such suits, except in such cases as involve
gross negligence or willful misconduct in the performance of
their duties. Such indemnification extends to the payment of
judgments against such officers and managers and to
reimbursement of amounts paid in settlement of such claims or
actions and may apply to judgments in favor of the company or
amounts paid in settlement to the company. Such indemnification
also extends to the payment of counsel fees and expenses of such
officers and managers in suits against them where successfully
defended by them or where unsuccessfully defended, if there is
no finding or judgment that the claim or action arose from the
gross negligence or willful misconduct of such officers or
managers. Such right of indemnification is not exclusive of any
right to which such officer or manager may be entitled as a
matter of law and shall extend and apply to the estates of
deceased officers and managers.
(d) CHCA Bayshore, L.P., CHCA Conroe, L.P., CHCA
Mainland, L.P., CHCA West Houston, L.P., CHCA Womans
Hospital, L.P., Columbia Rio Grande Healthcare, L.P., Columbia
Valley Healthcare System, L.P., Good Samaritan Hospital, L.P.,
HCA Management Services, L.P., JFK Medical Center Limited
Partnership, Palms West Hospital Limited Partnership, Plantation
General Hospital, L.P., San Jose Healthcare System, LP,
Terre Haute Regional Hospital, L.P. and San Jose Hospital,
L.P. are registered under the laws of Delaware.
Section 17-108
of the Delaware Revised Uniform Limited Partnership Act
(DRULPA) permits a limited partnership to indemnify
and hold harmless any partner or other person from and against
any and all claims and demands whatsoever.
II-5
The Columbia Valley Healthcare System, L.P. partnership
agreement allows the partnership to indemnify the general
partners for everything but willful misconduct or gross
negligence. The other Delaware limited partnership registrants
allow for indemnification to the fullest extent under the DRULPA.
Florida
Registrants
(a) Bay Hospital, Inc., Central Florida Regional
Hospital, Inc., Columbia Jacksonville Healthcare System, Inc.,
Edward White Hospital, Inc., HCA Health Services of Florida,
Inc., HD&S Corp. Successor, Inc., Largo Medical Center,
Inc., Lawnwood Medical Center, Inc., Marion Community Hospital,
Inc., Memorial Healthcare Group, Inc., New Port Richey Hospital,
Inc., North Florida Immediate Care Center, Inc., North Florida
Regional Medical Center, Inc., Okaloosa Hospital, Inc.,
Okeechobee Hospital, Inc., Sarasota Doctors Hospital, Inc., Sun
City Hospital, Inc., Surgicare of Brandon, Inc., Surgicare of
Florida, Inc., Surgicare of Manatee, Inc., Surgicare of New Port
Richey, Inc., Tallahassee Medical Center, Inc. and West Florida
Regional Medical Center, Inc. are incorporated under the laws of
Florida.
Section 607.0831 of the Florida Business Corporation Act
provides, among other things, that a director is not personally
liable for monetary damages to a company or any other person for
any statement, vote, decision, or failure to act, by the
director, regarding corporate management or policy, unless the
director breached or failed to perform his or her duties as a
director and such breach or failure constitutes (a) a
violation of criminal law, unless the director had reasonable
cause to believe his or her conduct was lawful or had no
reasonable cause to believe his or her conduct was unlawful;
(b) a transaction from which the director derived an
improper personal benefit; (c) a circumstance under which
the liability provisions of Section 607.0834 of the Florida
Business Corporation Act (relating to the liability of the
directors for improper distributions) are applicable;
(d) willful misconduct or a conscious disregard for the
best interest of the company in the case of a proceeding by or
in the right of the company to procure a judgment in its favor
or by or in the right of a stockholders; or
(e) recklessness or an act or omission in bad faith or with
malicious purpose of with wanton and willful disregard of human
rights, safety or property, in a proceeding by or in the right
of someone other than such company or a stockholder.
Section 607.0850 of the Florida Business Corporation Act
authorizes, among other things, a company to indemnify any
person who was or is a party to any proceeding (other than an
action by or in the right of the company) by reason of the fact
that he is or was a director, officer, employee or agent of the
company (or is or was serving at the request of the company in
such a position for any entity) against liability incurred in
connection with such proceedings, if he or she acted in good
faith and in a manner reasonably believed to be in the best
interests of the company and, with respect to criminal
proceedings, had no reasonable cause to believe his or her
conduct was unlawful.
The Florida Business Corporation Act requires that a director,
officer or employee be indemnified for actual and reasonable
expenses (including attorneys fees) to the extent that he
or she has been successful on the merits or otherwise in the
defense of any proceeding. Florida law also allows expenses of
defending a proceeding to be advanced by a company before the
final disposition of the proceedings, provided that the officer,
director or employee undertakes to repay such advance if it is
ultimately determined that indemnification is not permitted.
The Florida Business Corporation Act states that the
indemnification and advancement of expenses provided pursuant to
Section 607.0850 is not exclusive and that indemnification
may be provided by a company pursuant to other means, including
agreements or bylaw provisions. Florida law prohibits
indemnification or advancement of expenses, however, if a
judgment or other final adjudication establishes that the
actions of a director, officer or employee constitute (i) a
violation of criminal law, unless he or she had reasonable cause
to believe his or her conduct was lawful or had no reasonable
cause to believe his or her conduct was unlawful; (ii) a
transaction from which such person derived an improper personal
benefit; (iii) willful misconduct or conscious disregard
for the best interests of the company in the case of a
derivative action or a proceeding by or in the right of a
stockholder, or (iv) in the case of a director, a
circumstance under which the liability provisions of
Section 607.0834 of the Florida Business Corporation Act
(relating to the liability of directors for improper
distributions) are applicable.
II-6
The bylaws of all the Florida corporate registrants indemnify
their officers and directors against all reasonable expense
incurred by them in defending claims or suits, irrespective of
the time of the occurrence of the claims or causes of action in
such suits, made or brought against them as officers or
directors of the corporation, and against all liability in such
suits, except in such cases as involve gross negligence or
willful misconduct in the performance of their duties. Such
indemnification extends to the payment of judgments against such
officers and directors and to reimbursement of amounts paid in
settlement of such claims or actions and may apply to judgments
in favor of the corporation or amounts paid in settlement to the
corporation. Such indemnification also extends to the payment of
counsel fees and expenses of such officers and directors in
suits against them where successfully defended by them or where
unsuccessfully defended, if there is no finding or judgment that
the claim or action arose from the gross negligence or willful
misconduct of such officers or directors. Such right of
indemnification is not exclusive of any right to which such
officer or director may be entitled as a matter of law and shall
extend and apply to the estates of deceased officers and
directors.
(b) Integrated Regional Lab, LLC and Surgicare of Palms
West, LLC are registered under the laws of Florida.
Section 608.4229 of the Florida Limited Liability Company
Act indemnifies members, managers, managing members, officers,
employees, and agents subject to such standards and
restrictions, if any, as are set forth in its articles of
organization or operating agreement. A limited liability company
may, and has the power to, but is not required to, indemnify and
hold harmless any member or manager or other person from and
against any and all claims and demands whatsoever.
Notwithstanding the foregoing, indemnification or advancement of
expenses should not be made to or on behalf of any member,
manager, managing member, officer, employee, or agent if a
judgment or other final adjudication establishes that the
actions, or omissions to act, of such member, manager, managing
member, officer, employee, or agent were material to the cause
of action so adjudicated and constitute any of the following:
(i) a violation of criminal law, unless the member,
manager, managing member, officer, employee, or agent had no
reasonable cause to believe such conduct was unlawful;
(ii) a transaction from which the member, manager, managing
member, officer, employee, or agent derived an improper personal
benefit; (iii) in the case of a manager or managing member,
a circumstance under which the liability provisions of
section 608.426 are applicable; or (iv) willful
misconduct or a conscious disregard for the best interests of
the limited liability company in a proceeding by or in the right
of the limited liability company to procure a judgment in its
favor or in a proceeding by or in the right of a member.
The operating agreements of both of the Florida limited
liability company registrants indemnify their officers and
managers against all reasonable expense incurred by them in
defending claims or suits, irrespective of the time of the
occurrence of the claims or causes of action in such suits, made
or brought against them as officers or managers of the company,
and against all liability in such suits, except in such cases as
involve gross negligence or willful misconduct in the
performance of their duties. Such indemnification extends to the
payment of judgments against such officers and managers and to
reimbursement of amounts paid in settlement of such claims or
actions and may apply to judgments in favor of the company or
amounts paid in settlement to the company. Such indemnification
also extends to the payment of counsel fees and expenses of such
officers and managers in suits against them where successfully
defended by them or where unsuccessfully defended, if there is
no finding or judgment that the claim or action arose from the
gross negligence or willful misconduct of such officers or
managers. Such right of indemnification is not exclusive of any
right to which such officer or manager may be entitled as a
matter of law and shall extend and apply to the estates of
deceased officers and managers.
Georgia
Registrants
(a) Columbia Polk General Hospital, Inc., Columbus
Cardiology, Inc., Marietta Surgical Center, Inc., Palmyra Park
Hospital, Inc. and Redmond Physician Practice Company are
incorporated under the laws of Georgia.
Section 14-2-202(b)(4)
of the Georgia Business Corporation Code provides that a
corporations articles of incorporation may include a
provision that eliminates or limits the liability of directors
for monetary damages to a corporation or its shareholders for
any action taken, or failure to take any action, as a director.
The section
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does not, however, authorize a corporation to eliminate or limit
the liability of a director for appropriating, in violation of
his or her duties, any business opportunity of the corporation,
for acts or omissions which involve intentional misconduct or a
knowing violation of law, for any transaction from which the
director received an improper personal benefit, or authorizing a
dividend, stock repurchase or redemption, distribution of assets
or other distribution in violation of
Section 14-2-640
of the Georgia Business Corporation Code if it is established
that the director did not perform his or her duties in
compliance with
Section 14-2-832
of the Georgia Business Corporation Code, which sets forth
general standards for directors.
Section 14-2-202(b)(4)
also does not eliminate or limit the right of a corporation or
any shareholder to seek an injunction, a rescission or any other
equitable (non-monetary) relief for any action taken or not
taken by a director. In addition,
Section 14-2-202(b)(4)
applies only to claims against a director arising out of his or
her role as a director and does not relieve a director from
liability arising from his or her role as an officer or in any
other capacity.
Sections 14-2-852
and
14-2-857
of the Georgia Business Corporation Code provide that any
director or officer who is wholly successful in the defense of
any proceeding to which he or she was a party because he or she
was an officer or a director of the corporation is entitled to
indemnification against reasonable expenses as of right. On the
other hand, if the charges made in any action are sustained, the
determination of whether the required standard of conduct has
been met will be made, in accordance with the provisions of
Georgia Business Corporation Code
Section 14-2-855,
by either the board of directors or a committee thereof, acting
by disinterested members, by special legal counsel or by the
shareholders, but shares owned by or voted under the control of
directors seeking indemnification may not be voted.
The bylaws of each of the Georgia corporate registrants
indemnify their officers and directors against all reasonable
expense incurred by them in defending claims or suits,
irrespective of the time of the occurrence of the claims or
causes of action in such suits, made or brought against them as
officers or directors of the corporation, and against all
liability in such suits, except in such cases as involve gross
negligence or willful misconduct in the performance of their
duties. Such indemnification extends to the payment of judgments
against such officers and directors and to reimbursement of
amounts paid in settlement of such claims or actions and may
apply to judgments in favor of the corporation or amounts paid
in settlement to the corporation. Such indemnification also
extends to the payment of counsel fees and expenses of such
officers and directors in suits against them where successfully
defended by them or where unsuccessfully defended, if there is
no finding or judgment that the claim or action arose from the
gross negligence or willful misconduct of such officers or
directors. Such right of indemnification is not exclusive of any
right to which such officer or director may be entitled as a
matter of law and shall extend and apply to the estates of
deceased officers and directors.
(b) Dublin Community Hospital, LLC, Northlake Medical
Center, LLC and Redmond Park Hospital, LLC are registered under
the laws of Georgia.
Georgia law provides that a limited liability company may
indemnify a member, manager or other person against liability
incurred in connection with the limited liability company
subject to any standards or restrictions set forth in the
articles of organization or operating agreement. Unless the
member or manager is aware of information which would cause any
reliance to be unwarranted, he or she is entitled to rely upon
information prepared or presented by other members, managers,
committees and employees of the limited liability company and
legal counsel, public accountants or other professionals or
experts.
However, Georgia law does not permit indemnification if the
member or manager has engaged in any intentional misconduct or a
knowing violation of law or was involved in any transaction in
which the member or manager received a personal benefit as a
result of his or her breach of any provision in the operating
agreement.
The operating agreements of each of the Georgia limited
liability companies indemnify their officers and managers
against all reasonable expense incurred by them in defending
claims or suits, irrespective of the time of the occurrence of
the claims or causes of action in such suits, made or brought
against them as officers or managers of the limited liability
company, and against all liability in such suits, except in such
cases as involve gross negligence or willful misconduct in the
performance of their duties. Such indemnification extends to the
payment of judgments against such officers and managers and to
reimbursement of amounts paid in settlement of such claims or
actions and may apply to judgments in favor of the company or
amounts
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paid in settlement to the company. Such indemnification also
extends to the payment of counsel fees and expenses of such
officers and directors in suits against them where successfully
defended by them or where unsuccessfully defended, if there is
no finding or judgment that the claim or action arose from the
gross negligence or willful misconduct of such officers or
managers. Such right of indemnification is not exclusive of any
right to which such officer or manager may be entitled as a
matter of law and shall extend and apply to the estates of
deceased officers and managers.
(c) Fairview Park, Limited Partnership is registered
under the laws of Georgia.
Section 14-9-108
of the Georgia Revised Uniform Limited Partnership Act provides
that:
(a) Subject to any limitations expressly set forth in the
partnership agreement, a limited partnership may, and shall have
the power to, indemnify and hold harmless any partner or other
person from and against any and all claims and demands
whatsoever, provided that the partnership shall not indemnify
any person:
(1) For intentional misconduct or a knowing violation of
law; or
(2) For any transaction for which the person received a
personal benefit in violation or breach of any provision of the
partnership agreement.
(b) To the extent that, at law or in equity, a partner has
duties including but not limited to fiduciary duties and
liabilities relating thereto to a limited partnership or another
partner:
(1) The partners duties and liabilities may be
expanded, restricted, or eliminated by provisions in the
partnership agreement; provided, however, that no such provision
shall eliminate or limit the liability of a partner for
intentional misconduct or a knowing violation of law or for any
transaction for which the partner received a personal benefit in
violation or breach of any provision of the partnership
agreement; and
(2) The partner shall have no liability to the limited
partnership or to any other partner for his or her good faith
reliance on the provisions of the partnership agreement,
including, without limitation, provisions thereof that relate to
the scope of duties including but not limited to fiduciary
duties of partners.
Fairview Park Limited Partnerships Partnership Agreement
allows the limited partnership to indemnify its general partner,
members, managers, employees, agents and representatives to the
full extent of the Georgia Revised Uniform Limited Partnership
Act.
Idaho
Registrants
(a) Eastern Idaho Health Services, Inc. and West Valley
Medical Center, Inc. are incorporated under the laws of
Idaho.
Under Title 30,
Section 30-1-851
of the Idaho Code, a corporations directors and officers
may be indemnified against certain liabilities which they may
incur in their capacities as such. The material terms of the
indemnification provisions are indemnification:
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with respect to civil, criminal, administrative or investigative
proceedings brought because the defendant is or was serving as
an officer, director, employee or agent of the company;
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for judgments, fines and amounts paid in settlement reasonably
incurred;
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if the defendant acted in good faith and reasonably believed in
the case of conduct in his official capacity that his conduct
was in the best interests of the company, and in all other cases
that his conduct was at least not opposed to the best interests
of the company; and
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if, with respect to a criminal proceeding, he had no reasonable
cause to believe his conduct was unlawful.
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Attorneys fees are included in such indemnification to the
extent the indemnified party is successful on the merits in
defense of the proceeding. If the foregoing criteria are met,
indemnification also applies to a suit threatened or pending by
the company against the officer, director, employee or agent
with respect to attorneys fees unless there is negligence
on the part of the indemnified party. Indemnification is made
only upon a determination by the company that it is proper under
the circumstances because the applicable standard is met.
Generally, expenses for defense may be paid in advance of final
disposition of the proceeding if the indemnified party provides
a written affirmation of his good faith belief that he has met
the relevant standard of conduct under the Idaho Code and
further provides a written undertaking to repay such amounts if
it is determined that the applicable standard has not been met.
The bylaws of both of the Idaho corporations indemnify their
officers and directors against all reasonable expense incurred
by them in defending claims or suits, irrespective of the time
of the occurrence of the claims or causes of action in such
suits, made or brought against them as officers or directors of
the corporation, and against all liability in such suits, except
in such cases as involve gross negligence or willful misconduct
in the performance of their duties. Such indemnification extends
to the payment of judgments against such officers and directors
and to reimbursement of amounts paid in settlement of such
claims or actions and may apply to judgments in favor of the
corporation or amounts paid in settlement to the corporation.
Such indemnification also extends to the payment of counsel fees
and expenses of such officers and directors in suits against
them where successfully defended by them or where unsuccessfully
defended, if there is no finding or judgment that the claim or
action arose from the gross negligence or willful misconduct of
such officers or directors. Such right of indemnification is not
exclusive of any right to which such officer or director may be
entitled as a matter of law and shall extend and apply to the
estates of deceased officers and directors.
Illinois
Registrant
(a) Columbia LaGrange Hospital, Inc. is incorporated
under the laws of Illinois.
Section 8.75 of the Illinois Business Corporation Act of
1983, as amended (the IBCA), provides for a
limitation of director liability. Under Section 8.75 of the
IBCA, directors and officers may be indemnified by a corporation
against all expenses incurred in connection with actions
(including, under certain circumstances, derivative actions)
brought against such director or officer by reason of his or her
status as our representative, or by reason of the fact that such
director or officer serves or served as a representative of
another entity at our request, so long as the director or
officer acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, our best interests.
The bylaws of Columbia La Grange Hospital, Inc. indemnify
its officers and directors against all reasonable expense
incurred by them in defending claims or suits, irrespective of
the time of the occurrence of the claims or causes of action in
such suits, made or brought against them as officers or
directors of the corporation, and against all liability in such
suits, except in such cases as involve gross negligence or
willful misconduct in the performance of their duties. Such
indemnification extends to the payment of judgments against such
officers and directors and to reimbursement of amounts paid in
settlement of such claims or actions and may apply to judgments
in favor of the corporation or amounts paid in settlement to the
corporation. Such indemnification also extends to the payment of
counsel fees and expenses of such officers and directors in
suits against them where successfully defended by them or where
unsuccessfully defended, if there is no finding or judgment that
the claim or action arose from the gross negligence or willful
misconduct of such officers or directors. Such right of
indemnification is not exclusive of any right to which such
officer or director may be entitled as a matter of law and shall
extend and apply to the estates of deceased officers and
directors.
Indiana
Registrant
(a) Terre Haute MOB, L.P. is registered under the laws
of Indiana.
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Title 23, Article 16, Chapter 2 of the Indiana
Code provides that a domestic or foreign limited partnership may
indemnify a person made a party to an action because the person
is or was a partner or officer of the partnership against
liability incurred in the action if:
(1) the persons conduct was in good faith; and
(2) the person reasonably believed:
(A) in the case of conduct in the persons capacity as
a partner, that the persons conduct was in the best
interests of the partnership; and
(B) in all other cases that the persons conduct was
at least not opposed to the best interests of the limited
partnership or foreign limited partnership; and
(3) in the case of any criminal action, the person either:
(A) had reasonable cause to believe the persons
conduct was lawful; or
(B) had no reasonable cause to believe the persons
conduct was unlawful.
The indemnification provided for above does not exclude any
other rights to indemnification that a partner or officer of the
limited partnership may have under the partnership agreement or
with the written consent of all partners.
The general partners of Terre Haute MOB, L.P. are indemnified by
the partnership pursuant to the partnership agreement for all
actions relating to their performance or nonperformance on
behalf of the partnership.
Kentucky
Registrants
(a) Frankfort Hospital, Inc. and Greenview Hospital,
Inc. are incorporated under the laws of Kentucky.
Sections 271B.8-500
to 271B.8-580 of the Kentucky Business Corporation Act provides
that, subject to restrictions contained in the statute, a
corporation may indemnify any person made or threatened to be
made a party to any threatened, pending or completed action,
suit or proceeding by reason of the fact that he is or was a
director or officer of the corporation. A person who has been
successful on the merits or otherwise in any suit or matter
covered by the indemnification statute shall be indemnified
against expenses (including attorneys fees) reasonably
incurred by him in connection therewith. Indemnification is
authorized upon a determination that the person to be
indemnified has met the applicable standard of conduct required.
Expenses incurred in defense may be paid in advance upon receipt
by the corporation of a written affirmation by the director of
his good faith belief that he has met the applicable standard of
conduct required, a written undertaking by or on behalf of the
director to repay such advance if it is ultimately determined
that he did not meet the standard of conduct, and a
determination that the facts then known to those making the
determination would not preclude indemnification under the
statute. The indemnification provided by statute shall not be
deemed exclusive of any other rights to which those seeking
indemnification may be entitled under any by-law, agreement,
vote of shareholders or disinterested directors, or otherwise,
which shall inure to the benefit of the heirs, executors and
administrators of such a person. Insurance may be purchased on
behalf of any person entitled to indemnification by the
corporation against any liability incurred in an official
capacity regardless of whether the person could be indemnified
under the statute.
The bylaws of Frankfort Hospital, Inc. and Greenview Hospital,
Inc. indemnify their officers and directors against all
reasonable expense incurred by them in defending claims or
suits, irrespective of the time of the occurrence of the claims
or causes of action in such suits, made or brought against them
as officers or directors of the corporation, and against all
liability in such suits, except in such cases as involve gross
negligence or willful misconduct in the performance of their
duties. Such indemnification extends to the payment of judgments
against such officers and directors and to reimbursement of
amounts paid in settlement of such claims or actions and may
apply to judgments in favor of the corporation or amounts paid
in settlement to the corporation. Such indemnification also
extends to the payment of counsel fees and expenses
II-11
of such officers and directors in suits against them where
successfully defended by them or where unsuccessfully defended,
if there is no finding or judgment that the claim or action
arose from the gross negligence or willful misconduct of such
officers or directors. Such right of indemnification is not
exclusive of any right to which such officer or director may be
entitled as a matter of law and shall extend and apply to the
estates of deceased officers and directors.
Louisiana
Registrants
(a) Dauterive Hospital Corporation, HCA Health Services
of Louisiana, Inc. and Notami Hospitals of Louisiana, Inc. are
incorporated under the laws of Louisiana.
Section 83 of the Louisiana Business Corporation Law
provides that a corporation may indemnify any person who was or
is a party or is threatened to be made a party to any action,
suit or proceeding, whether civil, criminal, administrative, or
investigative (other than an action by or in the right of the
corporation), by reason of the fact that he is or was a director
or officer of the corporation. The indemnity may include
expenses, including attorneys fees, judgments, fines, and
amounts paid in settlement actually and reasonably incurred by
him in connection with such action, suit, or proceeding if he
acted in good faith and in a manner he reasonably believed to be
in, or not opposed to, the best interests of the corporation,
and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
Section 83 further provides that a Louisiana corporation
may indemnify officers and directors in an action by or in the
right of the corporation under the same conditions except that
no indemnification is permitted without judicial approval if the
director or officer shall have been adjudged to be liable for
willful or intentional misconduct in the performance of his duty
to the corporation. Where an officer or director is successful
on the merits or otherwise in any defense of any action referred
to above or any claim therein, the corporation must indemnify
him against such expenses that such officer or director actually
incurred. Section 83 permits a corporation to pay expenses
incurred by the officer or director in defending an action, suit
or proceeding in advance of the final disposition thereof if
approved by the board of directors.
The bylaws of each of the Louisiana corporations indemnify their
officers and directors against all reasonable expense incurred
by them in defending claims or suits, irrespective of the time
of the occurrence of the claims or causes of action in such
suits, made or brought against them as officers or directors of
the corporation, and against all liability in such suits, except
in such cases as involve gross negligence or willful misconduct
in the performance of their duties. Such indemnification extends
to the payment of judgments against such officers and directors
and to reimbursement of amounts paid in settlement of such
claims or actions and may apply to judgments in favor of the
corporation or amounts paid in settlement to the corporation.
Such indemnification also extends to the payment of counsel fees
and expenses of such officers and directors in suits against
them where successfully defended by them or where unsuccessfully
defended, if there is no finding or judgment that the claim or
action arose from the gross negligence or willful misconduct of
such officers or directors. Such right of indemnification is not
exclusive of any right to which such officer or director may be
entitled as a matter of law and shall extend and apply to the
estates of deceased officers and directors.
(b) The Regional Health System of Acadiana, LLC is
registered under the laws of Louisiana.
Section 315 of the Louisiana Limited Liability Company Act
permits a limited liability company, in its articles of
organization or in a written operating agreement, to eliminate
or limit the personal liability of a member or members, if
management is reserved to the members, or a manager or managers,
if management is vested in one or more managers, for monetary
damages for breach of any duty of diligence, care, judgment or
skill. Notwithstanding the foregoing, the liability of a member
or manager shall not be limited or eliminated for the amount of
a financial benefit received by a member or manager to which he
is not entitled or for an intentional violation of a criminal
law.
The operating agreement of The Regional Health System of
Acadiana, LLC indemnifies the officers and managers against all
reasonable expenses incurred by them in defending claims or
suits, irrespective of the time of occurrence of the claims or
causes of action in such suits, made or brought against them as
officers or managers of the company, and against all liability
in such suits, except in such cases as involve gross negligence
or willful misconduct in the performance of their duties. Such
indemnification extends to the
II-12
payment of judgments against such officers and managers and to
reimbursement of amounts paid in settlement of such claims or
actions and may apply to judgments in favor of the company or
amounts paid in settlement to the company. Such indemnification
shall also extend to the payment of counsel fees and expenses of
such officers and managers in suits against them where
successfully defended by them or where unsuccessfully defended,
if there is no finding or judgment that the claim or action
arose from the gross negligence or willful misconduct of such
officers or managers. Such right of indemnification shall not be
exclusive of any right to which such officer or manager may be
entitled as a matter of law and shall extend and apply to the
estates of deceased officers or managers.
Mississippi
Registrant
(a) Brookwood Medical Center of Gulfport, Inc. is
incorporated under the laws of Mississippi.
Article 8, Subarticle E of the Mississippi Business
Corporation Act (MBCA) permits Mississippi
corporations to indemnify officers and directors. MBCA
Section 79-4-2.02(b)(5)
permits the corporation to include an obligatory indemnification
for directors in its Articles of Incorporation for all acts
other than:
(i) distributions made in excess of standards established
by Mississippi law or in the corporations articles of
incorporation, for which
Section 79-4-8.33
imposes personal liability on directors to the
corporation; and
(ii) circumstances where, in his performance as a director,
a director has received a financial benefit to which he is not
entitled, he intentionally inflicts harm on the corporation or
its stockholders or he intentionally violates any criminal law.
The law further permits us to advance all expenses for defense
of a director in any lawsuit brought against a director in his
capacity as a director. The MBCA specifically provides in
Section
79-4-8.53
that such advances are allowed by Mississippi law. Such advances
may be made under the MBCA only after a determination that the
director met all relevant standards of conduct.
Section 79-4-8.56
of the MBCA permits a Mississippi corporation to indemnify any
officer to the same extent as to a director. Indemnification of
officers and directors against reasonable expenses is mandatory
under
Section 79-4-8.52
of the MBCA to the extent the officer or director is successful
on the merits or otherwise in the defense of any action or suit
against him giving rise to a claim of indemnification.
The bylaws of Brookwood Medical Center of Gulfport, Inc.
indemnify its officers and directors against all reasonable
expense incurred by them in defending claims or suits,
irrespective of the time of the occurrence of the claims or
causes of action in such suits, made or brought against them as
officers or directors of the corporation, and against all
liability in such suits, except in such cases as involve gross
negligence or willful misconduct in the performance of their
duties. Such indemnification extends to the payment of judgments
against such officers and directors and to reimbursement of
amounts paid in settlement of such claims or actions and may
apply to judgments in favor of the corporation or amounts paid
in settlement to the corporation. Such indemnification also
extends to the payment of counsel fees and expenses of such
officers and directors in suits against them where successfully
defended by them or where unsuccessfully defended, if there is
no finding or judgment that the claim or action arose from the
gross negligence or willful misconduct of such officers or
directors. Such right of indemnification is not exclusive of any
right to which such officer or director may be entitled as a
matter of law and shall extend and apply to the estates of
deceased officers and directors.
Missouri
Registrants
(a) Health Midwest Office Facilities Corporation and
Health Midwest Ventures Group, Inc. are incorporated under the
laws of Missouri.
Section 351.355(1) of the Revised Statutes of Missouri
provides that a corporation may indemnify a director or officer
of the corporation in any action, suit or proceeding other than
an action by or in the right of the corporation, against
expenses (including attorneys fees), judgments, fines and
settlement amounts actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in
good faith
II-13
and in a manner he reasonably believed to be in or not opposed
to the best interests of the corporation and, with respect to
any criminal action, had no reasonable cause to believe his
conduct was unlawful.
Section 351.355(2) provides that the corporation may
indemnify any such person in any action or suit by or in the
right of the corporation against expenses (including
attorneys fees) and settlement amounts actually and
reasonably incurred by him in connection with the defense or
settlement of the action or suit if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, except that he may not be
indemnified in respect of any matter in which he has been
adjudged liable for negligence or misconduct in the performance
of his duty to the corporation, unless authorized by the court.
Section 351.355(3) provides that a corporation shall
indemnify any such person against expenses (including
attorneys fees) actually and reasonably incurred by him in
connection with the action, suit or proceeding if he has been
successful in defense of such action, suit or proceeding and if
such action, suit or proceeding is one for which the corporation
may indemnify him under Section 351.355(1) or (2).
Section 351.355(7) provides that a corporation shall have
the power to give any further indemnity to any such person, in
addition to the indemnity otherwise authorized under
Section 351.355, provided such further indemnity is either
(i) authorized, directed or provided for in the articles of
incorporation of the corporation or any duly adopted amendment
thereof or (ii) is authorized, directed or provided for in
any bylaw or agreement of the corporation which has been adopted
by a vote of the shareholders of the corporation, provided that
no such indemnity shall indemnify any person from or on account
of such persons conduct which was finally adjudged to have
been knowingly fraudulent, deliberately dishonest or willful
misconduct.
The bylaws of both Health Midwest Office Facilities Corporation
and Health Midwest Ventures Group, Inc. indemnify their officers
and directors against all reasonable expense incurred by them in
defending claims or suits, irrespective of the time of the
occurrence of the claims or causes of action in such suits, made
or brought against them as officers or directors of the
corporation, and against all liability in such suits, except in
such cases as involve gross negligence or willful misconduct in
the performance of their duties. Such indemnification extends to
the payment of judgments against such officers and directors and
to reimbursement of amounts paid in settlement of such claims or
actions and may apply to judgments in favor of the corporation
or amounts paid in settlement to the corporation. Such
indemnification also extends to the payment of counsel fees and
expenses of such officers and directors in suits against them
where successfully defended by them or where unsuccessfully
defended, if there is no finding or judgment that the claim or
action arose from the gross negligence or willful misconduct of
such officers or directors. Such right of indemnification is not
exclusive of any right to which such officer or director may be
entitled as a matter of law and shall extend and apply to the
estates of deceased officers and directors.
(b) Midwest Division RBH, LLC is registered
under the laws of Missouri.
The operating agreement of Midwest Division RBH, LLC
indemnifies its officers and managers against all reasonable
expense incurred by them in defending claims or suits,
irrespective of the time of the occurrence of the claims or
causes of action in such suits, made or brought against them as
officers or directors of the company, and against all liability
in such suits, except in such cases as involve gross negligence
or willful misconduct in the performance of their duties. Such
indemnification extends to the payment of judgments against such
officers and directors and to reimbursement of amounts paid in
settlement of such claims or actions and may apply to judgments
in favor of the company or amounts paid in settlement to the
company. Such indemnification also extends to the payment of
counsel fees and expenses of such officers and managers in suits
against them where successfully defended by them or where
unsuccessfully defended, if there is no finding or judgment that
the claim or action arose from the gross negligence or willful
misconduct of such officers or managers. Such right of
indemnification is not exclusive of any right to which such
officer or manager may be entitled as a matter of law and shall
extend and apply to the estates of deceased officers and
managers.
The Missouri Limited Liability Company Act is silent with
respect to the limits of a limited liability companys
ability to provide for the indemnification of its officers and
managers in its operating agreement.
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However, Section 347.081(2) states that it is the policy of
the Missouri Limited Liability Company Act to give the maximum
effect to the principle of freedom of contract and to the
enforceability of operating agreements.
Nevada
Registrants
(a) Las Vegas Surgicare, Inc., Sunrise Mountainview
Hospital, Inc., VH Holdco, Inc., VH Holdings, Inc. and Western
Plains Capital, Inc. are incorporated under the laws of
Nevada.
Chapter 78 of the Nevada Revised Statutes (NRS)
allows directors and officers to be indemnified against
liabilities they may incur while serving in such capacities.
Under the applicable statutory provisions, the corporation may
indemnify its directors or officers who were or are a party or
are threatened to be made a party to any threatened, pending, or
completed action, suit, or proceeding, whether civil, criminal,
administrative, or investigative, by reason of the fact that
they are or were directors or officers of the corporation, or
are or were serving at the request of the corporation as
directors or officers of another corporation, partnership, joint
venture, trust, or other enterprise, against expenses, including
attorneys fees, judgments, fines, and amounts paid in
settlement, actually and reasonably incurred by them in
connection with the action, suit, or proceeding, unless it is
ultimately determined by a court of competent jurisdiction that
they breached their fiduciary duties by intentional misconduct,
fraud, or a knowing violation of law or did not act in good
faith and in a manner which they reasonably believed to be in or
not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no reasonable
cause to believe their conduct was unlawful. In addition, the
applicable statutory provisions mandate that the corporation
indemnify its directors and officers who have been successful on
the merits or otherwise in defense of any action, suit, or
proceeding against expenses, including attorneys fees,
actually and reasonably incurred by them in connection with the
defense. The corporation will advance expenses incurred by
directors or officers in defending any such action, suit, or
proceeding upon receipt of written confirmation from such
officers or directors that they have met certain standards of
conduct and an undertaking by or on behalf of such officers or
directors to repay such advances if it is ultimately determined
that they are not entitled to indemnification by the corporation.
The bylaws of all the Nevada corporate registrants indemnify
their officers and directors against all reasonable expense
incurred by them in defending claims or suits, irrespective of
the time of the occurrence of the claims or causes of action in
such suits, made or brought against them as officers or
directors of the corporation, and against all liability in such
suits, except in such cases as involve gross negligence or
willful misconduct in the performance of their duties. Such
indemnification extends to the payment of judgments against such
officers and directors and to reimbursement of amounts paid in
settlement of such claims or actions and may apply to judgments
in favor of the corporation or amounts paid in settlement to the
corporation. Such indemnification also extends to the payment of
counsel fees and expenses of such officers and directors in
suits against them where successfully defended by them or where
unsuccessfully defended, if there is no finding or judgment that
the claim or action arose from the gross negligence or willful
misconduct of such officers or directors. Such right of
indemnification is not exclusive of any right to which such
officer or director may be entitled as a matter of law and shall
extend and apply to the estates of deceased officers and
directors.
(b) Southern Hills Medical Center, LLC is registered
under the laws of Nevada.
Section 86.411 of the NRS permits a limited liability
company to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (except an action by or in
the right of the limited liability company), by reason of being
or having been a manager or member of the limited liability
company. As with corporations, indemnification may include
attorneys fees, judgments, fines and amounts paid in
settlement actually and reasonably incurred by the person to be
indemnified. Section 86.421 of the NRS permits a limited
liability company to indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the limited
liability company to procure a judgment in its favor by reason
of being or having been a manager or member of the limited
liability company except that indemnification may not be made
for any claim, issue or matter as to which such a person has
been finally adjudged by a court of
II-15
competent jurisdiction to be liable to the limited liability
company or for amounts paid in settlement to the limited
liability company, unless and only to the extent that the court
in which the action or suit was brought or other court of
competent jurisdiction determines upon application that, in view
of all the circumstances, the person is fairly and reasonably
entitled to indemnity for such expenses as the court deems
proper. In either case, however, to be entitled to
indemnification, the person to be indemnified must have acted in
good faith and in a manner which he or she reasonably believed
to be in or not opposed to the best interests of the limited
liability company and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her
conduct was unlawful.
Section 86.431 of the NRS also provides that to the extent
a manager or member of a limited liability company has been
successful on the merits or otherwise in defense of any such
action, he or she must be indemnified by the limited liability
company against expenses, including attorneys fees
actually and reasonably incurred in connection with the defense.
Section 86.441 of the NRS permits a limited liability
company, in its articles of organization, operating agreement or
other agreement, to provide for the payment of expenses incurred
by members or managers in defending any civil or criminal
action, suit or proceeding as they are incurred and in advance
of the final disposition of the action, suit or proceeding, upon
receipt of an undertaking to repay the amount if it is
ultimately determined by a court of competent jurisdiction that
the person is not entitled to indemnification.
Section 86.461 of the NRS permits a limited liability
company to purchase and maintain insurance or make other
financial arrangements on behalf of the limited liability
companys managers or members for any liability and
expenses incurred by them in their capacities as managers or
members or arising out of their status as such, whether or not
the limited liability company has the authority to indemnify
him, her or them against such liability and expenses.
The operating agreement of Southern Hills Medical Center, LLC
indemnifies its officers and managers against all reasonable
expense incurred by them in defending claims or suits,
irrespective of the time of the occurrence of the claims or
causes of action in such suits, made or brought against them as
officers or managers of the company, and against all liability
in such suits, except in such cases as involve gross negligence
or willful misconduct in the performance of their duties. Such
indemnification extends to the payment of judgments against such
officers and managers and to reimbursement of amounts paid in
settlement of such claims or actions and may apply to judgments
in favor of the company or amounts paid in settlement to the
company. Such indemnification also extends to the payment of
counsel fees and expenses of such officers and managers in suits
against them where successfully defended by them or where
unsuccessfully defended, if there is no finding or judgment that
the claim or action arose from the gross negligence or willful
misconduct of such officers or managers. Such right of
indemnification is not exclusive of any right to which such
officer or manager may be entitled as a matter of law and shall
extend and apply to the estates of deceased officers and
managers.
Oklahoma
Registrant
(a) HCA Health Services of Oklahoma, Inc. is
incorporated under the laws of Oklahoma.
Section 1031 of the Oklahoma General Corporation Act
provides that an Oklahoma corporation may indemnify any persons,
including officers and directors, who are, or are threatened to
be made, parties to any threatened, pending or completed legal
action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in
the right of such corporation), by reason of the fact that such
person was an officer or director of such corporation, or is or
was serving at the request of such corporation as a director,
officer, employee or agent of another corporation or enterprise.
The indemnity may include expenses (including attorneys
fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by such person in connection with such
action, suit or proceeding, provided such officer or director
acted in good faith and in a manner he reasonably believed to be
in or not opposed to the corporations best interests and,
for criminal proceedings, had no reasonable cause to believe
that his conduct was illegal. An Oklahoma corporation may
indemnify officers and directors in an action by or in the right
of the corporation under the same conditions, except that no
indemnification is permitted without judicial approval if the
officer
II-16
or director is adjudged to be liable to the corporation. Where
an officer or director is successful on the merits or otherwise
in the defense of any action referred to above, the corporation
must indemnify him against the expenses which such officer or
director actually and reasonably incurred.
The bylaws of HCA Health Services of Oklahoma, Inc. indemnify
its officers and directors against all reasonable expense
incurred by them in defending claims or suits, irrespective of
the time of the occurrence of the claims or causes of action in
such suits, made or brought against them as officers or
directors of the corporation, and against all liability in such
suits, except in such cases as involve gross negligence or
willful misconduct in the performance of their duties. Such
indemnification extends to the payment of judgments against such
officers and directors and to reimbursement of amounts paid in
settlement of such claims or actions and may apply to judgments
in favor of the corporation or amounts paid in settlement to the
corporation. Such indemnification also extends to the payment of
counsel fees and expenses of such officers and directors in
suits against them where successfully defended by them or where
unsuccessfully defended, if there is no finding or judgment that
the claim or action arose from the gross negligence or willful
misconduct of such officers or directors. Such right of
indemnification is not exclusive of any right to which such
officer or director may be entitled as a matter of law and shall
extend and apply to the estates of deceased officers and
directors.
South
Carolina Registrant
(a) Walterboro Community Hospital, Inc. is incorporated
under the laws of South Carolina.
Under Section 33 of the South Carolina Code of Laws, a
corporation may indemnify an individual made a party to a
proceeding because he is or was a director or officer against
liability incurred in the proceeding if: (1) he conducted
himself in good faith; and (2) he reasonably believed:
(i) in the case of conduct in his official capacity with
the corporation, that his conduct was in its best interest; and
(ii) in all other cases, that his conduct was at least not
opposed to its best interest; and (3) in the case of any
criminal proceeding, he had no reasonable cause to believe his
conduct was unlawful.
The bylaws of Walterboro Community Hospital, Inc. indemnify its
officers and directors against all reasonable expense incurred
by them in defending claims or suits, irrespective of the time
of the occurrence of the claims or causes of action in such
suits, made or brought against them as officers or directors of
the corporation, and against all liability in such suits, except
in such cases as involve gross negligence or willful misconduct
in the performance of their duties. Such indemnification extends
to the payment of judgments against such officers and directors
and to reimbursement of amounts paid in settlement of such
claims or actions and may apply to judgments in favor of the
corporation or amounts paid in settlement to the corporation.
Such indemnification also extends to the payment of counsel fees
and expenses of such officers and directors in suits against
them where successfully defended by them or where unsuccessfully
defended, if there is no finding or judgment that the claim or
action arose from the gross negligence or willful misconduct of
such officers or directors. Such right of indemnification is not
exclusive of any right to which such officer or director may be
entitled as a matter of law and shall extend and apply to the
estates of deceased officers and directors.
Tennessee
Registrants
(a) Central Tennessee Hospital Corporation, HCA Central
Group, Inc., HCA Health Services of Tennessee, Inc., HCA Realty,
Inc., Hendersonville Hospital Corporation, Hospital Corporation
of Tennessee, HTI Memorial Hospital Corporation, Spring Hill
Hospital, Inc. and TCMC
Madison-Portland,
Inc. are incorporated under the laws of Tennessee.
The Tennessee Business Corporation Act (TBCA) sets
forth in
Sections 48-18-502
through
48-18-508
the circumstances governing the indemnification of directors and
officers of a corporation against liability incurred in the
course of their official capacities.
Section 48-18-502
of the TBCA provides that a corporation may indemnify any
director against liability incurred in connection with a
proceeding if (i) the director acted in good faith,
(ii) the director reasonably believed, in the case of
conduct in his or her official capacity with the corporation,
that such conduct was in the corporations best interest,
or, in all other cases, that his or her
II-17
conduct was not opposed to the best interests of the corporation
and (iii) in connection with any criminal proceeding, the
director had no reasonable cause to believe that his or her
conduct was unlawful. In actions brought by or in the right of
the corporation, however, the TBCA provides that no
indemnification may be made if the director or officer is
adjudged to be liable to the corporation. Similarly, the TBCA
prohibits indemnification in connection with any proceeding
charging improper personal benefit to a director, if such
director is adjudged liable on the basis that a personal benefit
was improperly received. In cases where the director is wholly
successful, on the merits or otherwise, in the defense of any
proceeding instigated because of his or her status as a director
of a corporation,
Section 48-18-503
of the TBCA mandates that the corporation indemnify the director
against reasonable expenses incurred in the proceeding.
Notwithstanding the foregoing,
Section 48-18-505
of the TBCA provides that a court of competent jurisdiction,
upon application, may order that a director or officer be
indemnified for reasonable expense if, in consideration of all
relevant circumstances, the court determines that such
individual is fairly and reasonably entitled to indemnification,
whether or not the standard of conduct set forth above was met.
Officers who are not directors are entitled, through the
provisions of
Section 48-18-507
of the TBCA, to the same indemnification afforded to directors
under
Sections 48-18-503
and
48-18-505.
The bylaws of each of the Tennessee corporations indemnify its
officers and directors against all reasonable expense incurred
by them in defending claims or suits, irrespective of the time
of the occurrence of the claims or causes of action in such
suits, made or brought against them as officers or directors of
the corporation, and against all liability in such suits, except
in such cases as involve gross negligence or willful misconduct
in the performance of their duties. Such indemnification extends
to the payment of judgments against such officers and directors
and to reimbursement of amounts paid in settlement of such
claims or actions and may apply to judgments in favor of the
corporation or amounts paid in settlement to the corporation.
Such indemnification also extends to the payment of counsel fees
and expenses of such officers and directors in suits against
them where successfully defended by them or where unsuccessfully
defended, if there is no finding or judgment that the claim or
action arose from the gross negligence or willful misconduct of
such officers or directors. Such right of indemnification is not
exclusive of any right to which such officer or director may be
entitled as a matter of law and shall extend and apply to the
estates of deceased officers and directors.
Texas
Registrants
(a) Columbia Medical Center of Las Colinas, Inc., Conroe
Hospital Corporation, El Paso Surgicenter, Inc.,
KPH-Consolidation, Inc., National Patient Account Services,
Inc., Pasadena Bayshore Hospital, Inc., Rio Grande Regional
Hospital, Inc., Spring Branch Medical Center, Inc., Surgicare of
Houston Womens, Inc., W & C Hospital, Inc.,
WHMC, Inc. and Womans Hospital of Texas, Incorporated are
incorporated under the laws of Texas.
Under
Article 2.02-1
of the Texas Business Corporation Act (the TX BCA),
a company may indemnify any person who was, is or is threatened
to be made a named defendant or respondent in a proceeding
because the person is or was a director or officer against
judgment, penalties (including excise and similar taxes), fines,
settlements, and reasonable expenses (including court costs and
attorneys fees) actually incurred by the person in
connection with the proceeding if it is determined that the
person seeking indemnification acted in good faith, reasonably
believed that his or her conduct was in or at least not opposed
to our best interests and, in the case of a criminal proceeding,
has no reasonable cause to believe his or her conduct was
unlawful.
A company is required by
Article 2.02-1
of the TX BCA to indemnify a director or officer against
reasonable expenses (including court costs and attorneys
fees) incurred by the director or officer in connection with a
proceeding in which the director or officer is a named defendant
or respondent because the director or officer is or was in that
position if the director or officer has been wholly successful,
on the merits or otherwise, in the defense of the proceeding.
The TX BCA prohibits a company from indemnifying a director or
officer in respect of a proceeding in which the person is found
liable to the company or on the basis that a personal benefit
was improperly received by him or her, other than for reasonable
expenses (including court costs and attorneys fees)
actually incurred by him or her in connection with the
proceeding; provided, that the TX BCA further prohibits a
company from indemnifying a director or officer in respect of
II-18
any such proceeding in which the person is found liable for
willful or intentional misconduct in the performance of his or
her duties.
Under
Article 2.02-1(J)
of the TX BCA, a court of competent jurisdiction may order a
company to indemnify a director or officer if the court
determines that the director or officer is fairly and reasonably
entitled to indemnification in view of all the relevant
circumstances; however, if the director or officer is found
liable to the company or is found liable on the basis that a
personal benefit was improperly received by him or her, the
indemnification will be limited to reasonable expenses
(including court costs and attorneys fees) actually
incurred by him or her in connection with the proceeding.
The bylaws of each of the Texas corporations indemnify its
officers and directors against all reasonable expense incurred
by them in defending claims or suits, irrespective of the time
of the occurrence of the claims or causes of action in such
suits, made or brought against them as officers or directors of
the corporation, and against all liability in such suits, except
in such cases as involve gross negligence or willful misconduct
in the performance of their duties. Such indemnification extends
to the payment of judgments against such officers and directors
and to reimbursement of amounts paid in settlement of such
claims or actions and may apply to judgments in favor of the
corporation or amounts paid in settlement to the corporation.
Such indemnification also extends to the payment of counsel fees
and expenses of such officers and directors in suits against
them where successfully defended by them or where unsuccessfully
defended, if there is no finding or judgment that the claim or
action arose from the gross negligence or willful misconduct of
such officers or directors. Such right of indemnification is not
exclusive of any right to which such officer or director may be
entitled as a matter of law and shall extend and apply to the
estates of deceased officers and directors.
(b) Columbia Medical Center of Arlington Subsidiary,
L.P., Columbia Medical Center of Denton Subsidiary, L.P.,
Columbia Medical Center of Lewisville Subsidiary, L.P., Columbia
Medical Center of McKinney Subsidiary, L.P., Columbia Medical
Center of Plano Subsidiary, L.P., Columbia North Hills Hospital
Subsidiary, L.P., Columbia Plaza Medical Center of
Fort Worth Subsidiary, L.P. and Green Oaks Hospital
Subsidiary, L.P. are registered under the laws of Texas.
Article 11 of the Texas Revised Limited Partnership Act
(TRLPA) provides for the indemnification of a
general partner or limited partner by the limited partnership
under certain circumstances against expenses and liabilities
incurred in legal proceedings involving such persons because of
their being or having been a general partner or limited partner.
Under the TRLPA, a limited partnership may purchase insurance on
behalf of a general partner or limited partner against any
liability incurred regardless of whether the person could be
indemnified under the TLRPA.
The partnership agreement of each Texas limited partnership
indemnifies the general partners to the fullest extent permitted
under the TRLPA.
Utah
Registrants
(a) Brigham City Community Hospital, Inc., Columbia
Ogden Medical Center, Inc., Hospital Corporation of Utah,
Mountain View Hospital, Inc., Northern Utah Healthcare
Corporation, St. Marks Lone Peak Hospital, Inc. and
Timpanogos Regional Medical Services, Inc. are incorporated
under the laws of Utah.
Section 16-10a-902
of the Utah Revised Business Corporation Act (the Revised
Act) provides that a corporation may indemnify any
individual who was, is, or is threatened to be made a named
defendant or respondent (a Party) in any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative and whether formal or
informal (a Proceeding), because he or she is or was
a director of the corporation or, while a director of the
corporation, is or was serving at its request as a director,
officer, partner, trustee, employee, fiduciary or agent of
another corporation or other person or of an employee benefit
plan (an Indemnifiable Director), against any
obligation incurred with respect to a Proceeding, including any
judgment, settlement, penalty, fine or reasonable expenses
(including attorneys fees), incurred in the Proceeding if
his or her conduct was in good faith, he or she reasonably
believed that his or her conduct was in, or not opposed to, the
best interests of the corporation, and, in the case of any
criminal
II-19
Proceeding, had no reasonable cause to believe such conduct was
unlawful; provided, however, that (i) pursuant to
Subsection 902(5), indemnification under Section 902 in
connection with a Proceeding by or in the right of the
corporation is limited to payment of reasonable expenses
(including attorneys fees) incurred in connection with the
Proceeding and (ii) pursuant to 902(4), the corporation may
not indemnify an Indemnifiable Director in connection with a
Proceeding by or in the right of the corporation in which the
Indemnifiable Director was adjudged liable to the corporation,
or in connection with any other Proceeding charging that the
Indemnifiable Director derived an improper personal benefit,
whether or not involving action in his or her official capacity,
in which Proceeding he or she was adjudged liable on the basis
that he or she derived an improper personal benefit.
Section 16-10a-907
of the Revised Act permits corporations to indemnify officers
and advance expenses to the same extent as a director and in
some cases to a greater extent than a director.
The bylaws of each of the Utah corporate registrants indemnify
its officers and directors against all reasonable expense
incurred by them in defending claims or suits, irrespective of
the time of the occurrence of the claims or causes of action in
such suits, made or brought against them as officers or
directors of the corporation, and against all liability in such
suits, except in such cases as involve gross negligence or
willful misconduct in the performance of their duties. Such
indemnification extends to the payment of judgments against such
officers and directors and to reimbursement of amounts paid in
settlement of such claims or actions and may apply to judgments
in favor of the corporation or amounts paid in settlement to the
corporation. Such indemnification also extends to the payment of
counsel fees and expenses of such officers and directors in
suits against them where successfully defended by them or where
unsuccessfully defended, if there is no finding or judgment that
the claim or action arose from the gross negligence or willful
misconduct of such officers or directors. Such right of
indemnification is not exclusive of any right to which such
officer or director may be entitled as a matter of law and shall
extend and apply to the estates of deceased officers and
directors.
Virginia
Registrants
(a) Capital Division, Inc., Chippenham &
Johnston-Willis Hospitals, Inc., Columbia/Alleghany Regional
Hospital, Incorporated, Columbia/HCA John Randolph, Inc., HCA
Health Services of Virginia, Inc., Lewis-Gale Hospital,
Incorporated, Montgomery Regional Hospital, Inc., Pulaski
Community Hospital, Inc., Spotsylvania Medical Center, Inc. and
Virginia Psychiatric Company, Inc. are incorporated under the
laws of Virginia.
Under
Sections 13.1-697
and 13.1-702 of the Virginia Stock Corporation Act, a Virginia
corporation generally is authorized to indemnify its directors
and officers in civil and criminal actions if they acted in good
faith and believed their conduct to be in the best interests of
the corporation and, in the case of criminal actions, had no
reasonable cause to believe that the conduct was unlawful. In
addition, the Virginia Stock Corporation Act eliminates the
liability for monetary damages of a director or officer in a
shareholder or derivative proceeding. This elimination of
liability will not apply in the event of willful misconduct or a
knowing violation of criminal law or any federal or state
securities law.
Sections 13.1-692.1
and 13.1-696 through 704 of the Virginia Stock Corporation Act
are incorporated into this paragraph by reference.
The bylaws of each of the Virginia corporations indemnify its
officers and directors against all reasonable expense incurred
by them in defending claims or suits, irrespective of the time
of the occurrence of the claims or causes of action in such
suits, made or brought against them as officers or directors of
the corporation, and against all liability in such suits, except
in such cases as involve gross negligence or willful misconduct
in the performance of their duties. Such indemnification extends
to the payment of judgments against such officers and directors
and to reimbursement of amounts paid in settlement of such
claims or actions and may apply to judgments in favor of the
corporation or amounts paid in settlement to the corporation.
Such indemnification also extends to the payment of counsel fees
and expenses of such officers and directors in suits against
them where successfully defended by them or where unsuccessfully
defended, if there is no finding or judgment that the claim or
action arose from the gross negligence or willful misconduct of
such officers or directors. Such right of indemnification is not
exclusive of any right to which such officer
II-20
or director may be entitled as a matter of law and shall extend
and apply to the estates of deceased officers and directors.
(b) Central Shared Services, LLC, Galen Property, LLC,
Lewis-Gale Physicians, LLC, Northern Virginia Community
Hospital, LLC and Retreat Hospital, LLC are registered under the
laws of Virginia.
Section 13.1-1009(16)
of the Virginia Limited Liability Company Act permits a limited
liability company to indemnify and hold harmless any member or
manager or other person from and against any and all claims and
demands whatsoever, and to pay for or reimburse any member or
manager or other person for reasonable expenses incurred by such
a person who is a party to a proceeding in advance of final
disposition of the proceeding.
The operating agreements of each of the Virginia limited
liability companies indemnify their officers and managers
against all reasonable expense incurred by them in defending
claims or suits, irrespective of the time of the occurrence of
the claims or causes of action in such suits, made or brought
against them as officers or managers of the company, and against
all liability in such suits, except in such cases as involve
gross negligence or willful misconduct in the performance of
their duties. Such indemnification extends to the payment of
judgments against such officers and managers and to
reimbursement of amounts paid in settlement of such claims or
actions and may apply to judgments in favor of the company or
amounts paid in settlement to the company. Such indemnification
also extends to the payment of counsel fees and expenses of such
officers and managers in suits against them where successfully
defended by them or where unsuccessfully defended, if there is
no finding or judgment that the claim or action arose from the
gross negligence or willful misconduct of such officers or
managers. Such right of indemnification is not exclusive of any
right to which such officer or manager may be entitled as a
matter of law and shall extend and apply to the estates of
deceased officers and managers.
(c) HSS Virginia, L.P. is registered under the laws of
Virginia
HSS Virginia, L.P. is governed by the Virginia Revised Uniform
Limited Partnership Act. However, neither the partnership
agreement nor the Virginia Revised Uniform Partnership Act
specify the extent to which a limited partnership may indemnify
its general partners.
West
Virginia Registrant
(a) Columbia Parkersburg Healthcare System, LLC is
registered under the laws of West Virginia.
Section 31B-4-403
of the West Virginia Uniform Limited Liability Company Act
discusses members and managers rights to payments
and reimbursement. A limited liability company shall reimburse a
member or manager for payments made and indemnify a member or
manager for liabilities incurred by the member or manager in the
ordinary course of the business of the company or for the
preservation of its business or property. A limited liability
company shall reimburse a member for an advance to the company
beyond the amount of contribution the member agreed to make. A
payment or advance made by a member which gives rise to an
obligation of a limited liability company under the West
Virginia statute constitutes a loan to the company upon which
interest accrues from the date of the payment or advance. A
member is not entitled to remuneration for services performed
for a limited liability company, except for reasonable
compensation for services rendered in winding up the business of
the company.
The organizational documents of Columbia Parkersburg Healthcare
System, LLC indemnify its managers and officers to the fullest
extent of the West Virginia Uniform Limited Liability Company
Act.
Certain
Other Arrangements
HCA Holdings, Inc. maintains a directors and
officers liability insurance policy that covers the
directors and officers of each of the registrants in amounts
that HCA Holdings, Inc. believes are customary in its industry,
including for liabilities in connection with the registration,
offering and sale of the notes.
II-21
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Exhibit
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No.
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Description
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1
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.1**
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Form of Underwriting Agreement
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4
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.1*
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Form of Indenture of HCA Holdings, Inc. with any trustee
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4
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.2*
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Form of Indenture of HCA Inc. with any trustee
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4
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.3**
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Form of Supplemental Indenture of HCA Holdings, Inc.
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4
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.4**
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Form of Supplemental Indenture of HCA Inc.
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4
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.5**
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Form of Debt Security (to be included in the Form of
Supplemental Indenture of HCA Holdings, Inc. to be filed as
Exhibit 4.3)
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4
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.6**
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Form of Debt Security (to be included in the Form of
Supplemental Indenture of HCA Inc. to be filed as Exhibit 4.4)
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5
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.1*
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Opinion of Simpson Thacher & Bartlett LLP, as to the
legality of the securities being registered
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12
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.1*
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Computation of Ratio of Earnings to Fixed Charges
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23
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.1*
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Consent of Simpson Thacher & Bartlett LLP (included in the
opinion filed as Exhibit 5.1)
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23
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.2*
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Consent of Ernst & Young LLP
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24
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.1*
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Powers of Attorney (included on signature page)
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25
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.1**
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Statement of Eligibility under the Trust Indenture Act of 1939
on Form T-1 of any trustee
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*
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Filed herewith.
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**
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To be filed as an exhibit to a Current Report on
Form 8-K
or other document incorporated by reference herein or to a
post-effective amendment hereto, if applicable.
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Each undersigned registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Securities and Exchange Commission
pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the effective
registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however,
that paragraphs (i), (ii) and
(iii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Securities
and Exchange Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the
registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered
II-22
therein, and the offering of such securities at that time shall
be deemed to be the initial
bona fide
offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the Registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
(ii) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii) or
(x) for the purpose of providing the information required
by Section 10(a) of the Securities Act of 1933 shall be
deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first
used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus.
As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the
registration statement relating to the securities in the
registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Provided,
however
, that no statement made in a registration statement
or prospectus that is part of the registration statement or made
in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of
the registration statement will, as to a purchaser with a time
of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective
date.
(5) That, for the purpose of determining liability of the
Registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities, the undersigned
Registrant undertakes that in a primary offering of securities
of the undersigned Registrant pursuant to this registration
statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following
communications, the undersigned Registrant will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned Registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned Registrant or used
or referred to by the undersigned Registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned Registrant or its securities provided by or on
behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned Registrant to the purchaser.
(b) That, for purposes of determining any liability under
the Securities Act of 1933, each filing of the Registrants
annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plans annual report pursuant
to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) The undersigned Registrant hereby undertakes to file an
application for the purpose of determining the eligibility of
the trustee to act under subsection (a) of Section 310
of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under
Section 305(b)(2) of the Trust Indenture Act.
II-23
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrant pursuant to
the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
(d) The undersigned Registrant hereby undertakes to file an
application for the purpose of determining the eligibility of
the relevant trustee to act under subsection (a) of Section 310
of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the SEC under section 305(b)(2) of the
Trust Indenture Act.
II-24
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
HCA Holdings, Inc.
|
|
|
|
By:
|
/s/ R.
Milton Johnson
|
Name: R. Milton Johnson
|
|
|
|
Title:
|
President and Chief Financial Officer
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Richard M.
Bracken, R. Milton Johnson, David G. Anderson and John M. Franck
II, and each of them, the true and lawful attorneys-in-fact and
agents of the undersigned, with full power of substitution and
resubstitution, for and in the name, place and stead of the
undersigned, to sign in any and all capacities (including,
without limitation, the capacities listed below), the
registration statement, any and all amendments (including
post-effective amendments) to the registration statement and any
and all successor registration statements to this Registration
Statement, including any filings pursuant to Rule 462(b)
under the Securities Act of 1933, as amended, and to file the
same, with all exhibits thereto, and all other documents in
connection therewith, with the Securities and Exchange
Commission, and hereby grants to such attorneys-in-fact and
agents, and each of them, full power and authority to do and
perform each and every act and anything necessary to be done to
comply with the provisions of the Securities Act and all the
requirements of the Securities and Exchange Commission, as fully
to all intents and purposes as the undersigned might or could do
in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his or
her substitute, or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Richard
M. Bracken
Richard
M. Bracken
|
|
Chairman of the Board and
Chief Executive Officer
(Principal Executive Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ R.
Milton Johnson
R.
Milton Johnson
|
|
President,
Chief Financial Officer and Director
(Principal Financial Officer and Principal
Accounting Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Christopher
J. Birosak
Christopher
J. Birosak
|
|
Director
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
P. Connaughton
John
P. Connaughton
|
|
Director
|
|
July 26, 2011
|
|
|
|
|
|
/s/ James
D. Forbes
James
D. Forbes
|
|
Director
|
|
July 26, 2011
|
II-25
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Kenneth
W. Freeman
Kenneth
W. Freeman
|
|
Director
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Thomas
F. Frist III
Thomas
F. Frist III
|
|
Director
|
|
July 26, 2011
|
|
|
|
|
|
/s/ William
R. Frist
William
R. Frist
|
|
Director
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Christopher
R. Gordon
Christopher
R. Gordon
|
|
Director
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Jay
O. Light
Jay
O. Light
|
|
Director
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Geoffrey
G. Meyers
Geoffrey
G. Meyers
|
|
Director
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Michael
W. Michelson
Michael
W. Michelson
|
|
Director
|
|
July 26, 2011
|
|
|
|
|
|
/s/ James
C. Momtazee
James
C. Momtazee
|
|
Director
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Stephen
G. Pagliuca
Stephen
G. Pagliuca
|
|
Director
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Nathan
C. Thorne
Nathan
C. Thorne
|
|
Director
|
|
July 26, 2011
|
II-26
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
HCA INC.
|
|
|
|
By:
|
/s/ R.
Milton Johnson
|
Name: R. Milton Johnson
|
|
|
|
Title:
|
Executive Vice President and Chief
|
Financial Officer
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Richard M.
Bracken, R. Milton Johnson, David G. Anderson and John M. Franck
II, and each of them, the true and lawful attorneys-in-fact and
agents of the undersigned, with full power of substitution and
resubstitution, for and in the name, place and stead of the
undersigned, to sign in any and all capacities (including,
without limitation, the capacities listed below), the
registration statement, any and all amendments (including
post-effective amendments) to the registration statement and any
and all successor registration statements to this Registration
Statement, including any filings pursuant to Rule 462(b)
under the Securities Act of 1933, as amended, and to file the
same, with all exhibits thereto, and all other documents in
connection therewith, with the Securities and Exchange
Commission, and hereby grants to such attorneys-in-fact and
agents, and each of them, full power and authority to do and
perform each and every act and anything necessary to be done to
comply with the provisions of the Securities Act and all the
requirements of the Securities and Exchange Commission, as fully
to all intents and purposes as the undersigned might or could do
in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his or
her substitute, or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Richard
M. Bracken
Richard
M. Bracken
|
|
Chairman of the Board and
Chief Executive Officer
(Principal Executive Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ R.
Milton Johnson
R.
Milton Johnson
|
|
Executive Vice President,
Chief Financial Officer and Director
(Principal Financial Officer and Principal
Accounting Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Christopher
J. Birosak
Christopher
J. Birosak
|
|
Director
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
P. Connaughton
John
P. Connaughton
|
|
Director
|
|
July 26, 2011
|
II-27
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ James
D. Forbes
James
D. Forbes
|
|
Director
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Kenneth
W. Freeman
Kenneth
W. Freeman
|
|
Director
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Thomas
F. Frist III
Thomas
F. Frist III
|
|
Director
|
|
July 26, 2011
|
|
|
|
|
|
/s/ William
R. Frist
William
R. Frist
|
|
Director
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Christopher
R. Gordon
Christopher
R. Gordon
|
|
Director
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Jay
O. Light
Jay
O. Light
|
|
Director
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Geoffrey
G. Meyers
Geoffrey
G. Meyers
|
|
Director
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Michael
W. Michelson
Michael
W. Michelson
|
|
Director
|
|
July 26, 2011
|
|
|
|
|
|
/s/ James
C. Momtazee
James
C. Momtazee
|
|
Director
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Stephen
G. Pagliuca
Stephen
G. Pagliuca
|
|
Director
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Nathan
C. Thorne
Nathan
C. Thorne
|
|
Director
|
|
July 26, 2011
|
II-28
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
REGISTRANTS (as listed on the attached Schedule I of
Subsidiary Registrants)
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President and Director
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M. Franck II,
David G. Anderson and Donald W. Stinnett, and each of them, the
true and lawful attorneys-in-fact and agents of the undersigned,
with full power of substitution and resubstitution, for and in
the name, place and stead of the undersigned, to sign in any and
all capacities (including, without limitation, the capacities
listed below), the registration statement, any and all
amendments (including post-effective amendments) to the
registration statement and any and all successor registration
statements to this Registration Statement, including any filings
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto, and
all other documents in connection therewith, with the Securities
and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and anything
necessary to be done to comply with the provisions of the
Securities Act and all the requirements of the Securities and
Exchange Commission, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them, or their or his or her substitute, or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Samuel
N. Hazen
Samuel
N. Hazen
|
|
President and Director
(Principal Executive Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer
(Principal Financial Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President and Director
(Principal Accounting Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President, Assistant
Secretary and Director
|
|
July 26, 2011
|
II-29
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized in the city of Nashville, State of Tennessee, on
July 26, 2011.
REGISTRANTS (as listed on the attached Schedule II of
Subsidiary Registrants)
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President and Director
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M. Franck II,
David G. Anderson and Donald W. Stinnett, and each of them, the
true and lawful attorneys-in-fact and agents of the undersigned,
with full power of substitution and resubstitution, for and in
the name, place and stead of the undersigned, to sign in any and
all capacities (including, without limitation, the capacities
listed below), the registration statement, any and all
amendments (including post-effective amendments) to the
registration statement and any and all successor registration
statements to this Registration Statement, including any filings
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto, and
all other documents in connection therewith, with the Securities
and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and anything
necessary to be done to comply with the provisions of the
Securities Act and all the requirements of the Securities and
Exchange Commission, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them, or their or his or her substitute, or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ William
B. Rutherford
William
B. Rutherford
|
|
President and Director
(Principal Executive Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer
(Principal Financial Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President and Director
(Principal Accounting Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Steven
E. Clifton
Steven
E. Clifton
|
|
Senior Vice President and Director
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President and Assistant Secretary
|
|
July 26, 2011
|
II-30
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized in the city of Nashville, State of Tennessee, on
July 26, 2011.
REGISTRANTS (as listed on the attached Schedule III of
Subsidiary Registrants)
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President and Manager
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M. Franck II,
David G. Anderson and Donald W. Stinnett, and each of them, the
true and lawful attorneys-in-fact and agents of the undersigned,
with full power of substitution and resubstitution, for and in
the name, place and stead of the undersigned, to sign in any and
all capacities (including, without limitation, the capacities
listed below), the registration statement, any and all
amendments (including post-effective amendments) to the
registration statement and any and all successor registration
statements to this Registration Statement, including any filings
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto, and
all other documents in connection therewith, with the Securities
and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and anything
necessary to be done to comply with the provisions of the
Securities Act and all the requirements of the Securities and
Exchange Commission, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them, or their or his or her substitute, or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Samuel
N. Hazen
Samuel
N. Hazen
|
|
President and Manager
(Principal Executive Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer
(Principal Financial Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President and Manager
(Principal Accounting Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President, Assistant
Secretary and Manager
|
|
July 26, 2011
|
II-31
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
REGISTRANTS (as listed on the attached Schedule IV of
Subsidiary Registrants)
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President and Manager
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M. Franck II,
David G. Anderson and Donald W. Stinnett, and each of them, the
true and lawful attorneys-in-fact and agents of the undersigned,
with full power of substitution and resubstitution, for and in
the name, place and stead of the undersigned, to sign in any and
all capacities (including, without limitation, the capacities
listed below), the registration statement, any and all
amendments (including post-effective amendments) to the
registration statement and any and all successor registration
statements to this Registration Statement, including any filings
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto, and
all other documents in connection therewith, with the Securities
and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and anything
necessary to be done to comply with the provisions of the
Securities Act and all the requirements of the Securities and
Exchange Commission, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them, or their or his or her substitute, or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ William
B. Rutherford
William
B. Rutherford
|
|
President and Manager
(Principal Executive Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer
(Principal Financial Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President and Manager
(Principal Accounting Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Steven
E. Clifton
Steven
E. Clifton
|
|
Senior Vice President and Manager
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President and Assistant Secretary
|
|
July 26, 2011
|
II-32
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
REGISTRANTS (as listed on the attached Schedule V of
Subsidiary Registrants)
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President and Manager
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M. Franck II,
David G. Anderson and Donald W. Stinnett, and each of them, the
true and lawful attorneys-in-fact and agents of the undersigned,
with full power of substitution and resubstitution, for and in
the name, place and stead of the undersigned, to sign in any and
all capacities (including, without limitation, the capacities
listed below), the registration statement, any and all
amendments (including post-effective amendments) to the
registration statement and any and all successor registration
statements to this Registration Statement, including any filings
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto, and
all other documents in connection therewith, with the Securities
and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and anything
necessary to be done to comply with the provisions of the
Securities Act and all the requirements of the Securities and
Exchange Commission, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them, or their or his or her substitute, or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Beverly
B. Wallace
Beverly
B. Wallace
|
|
President
(Principal Executive Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer
(Principal Financial Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President and Manager
(Principal Accounting Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President, Assistant Secretary and Manager
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Samuel
N. Hazen
Samuel
N. Hazen
|
|
Senior Vice President and Manager
|
|
July 26, 2011
|
II-33
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
REGISTRANTS (as listed on the attached Schedule VI of
Subsidiary Registrants)
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M. Franck II,
David G. Anderson and Donald W. Stinnett, and each of them, the
true and lawful attorneys-in-fact and agents of the undersigned,
with full power of substitution and resubstitution, for and in
the name, place and stead of the undersigned, to sign in any and
all capacities (including, without limitation, the capacities
listed below), the registration statement, any and all
amendments (including post-effective amendments) to the
registration statement and any and all successor registration
statements to this Registration Statement, including any filings
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto, and
all other documents in connection therewith, with the Securities
and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and anything
necessary to be done to comply with the provisions of the
Securities Act and all the requirements of the Securities and
Exchange Commission, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them, or their or his or her substitute, or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Gregary
W. Beasley
Gregary
W. Beasley
|
|
President and Director
(Principal Executive Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer
(Principal Financial Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President
(Principal Accounting Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ A.
Bruce Moore, Jr.
A.
Bruce Moore, Jr.
|
|
Senior Vice President and Director
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President and Assistant Secretary and Director
|
|
July 26, 2011
|
II-34
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
REGISTRANTS (as listed on the attached Schedule VII of
Subsidiary Registrants)
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M. Franck II,
David G. Anderson and Donald W. Stinnett, and each of them, the
true and lawful attorneys-in-fact and agents of the undersigned,
with full power of substitution and resubstitution, for and in
the name, place and stead of the undersigned, to sign in any and
all capacities (including, without limitation, the capacities
listed below), the registration statement, any and all
amendments (including post-effective amendments) to the
registration statement and any and all successor registration
statements to this Registration Statement, including any filings
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto, and
all other documents in connection therewith, with the Securities
and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and anything
necessary to be done to comply with the provisions of the
Securities Act and all the requirements of the Securities and
Exchange Commission, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them, or their or his or her substitute, or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Gregary
W. Beasley
Gregary
W. Beasley
|
|
President and Manager
(Principal Executive Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer
(Principal Financial Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President
(Principal Accounting Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ A.
Bruce Moore, Jr.
A.
Bruce Moore, Jr.
|
|
Senior Vice President and Manager
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President and Assistant Secretary and Manager
|
|
July 26, 2011
|
II-35
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
REGISTRANTS (as listed on the attached
Schedule VIII of Subsidiary Registrants)
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President and Director
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M. Franck II,
David G. Anderson and Donald W. Stinnett, and each of them, the
true and lawful attorneys-in-fact and agents of the undersigned,
with full power of substitution and resubstitution, for and in
the name, place and stead of the undersigned, to sign in any and
all capacities (including, without limitation, the capacities
listed below), the registration statement, any and all
amendments (including post-effective amendments) to the
registration statement and any and all successor registration
statements to this Registration Statement, including any filings
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto, and
all other documents in connection therewith, with the Securities
and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and anything
necessary to be done to comply with the provisions of the
Securities Act and all the requirements of the Securities and
Exchange Commission, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them, or their or his or her substitute, or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Noel
B. Williams
Noel
B. Williams
|
|
President and Chief Information Officer
(Principal Executive Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer
(Principal Financial Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President and Director
(Principal Accounting Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President, Assistant Secretary and Director
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Samuel
N. Hazen
Samuel
N. Hazen
|
|
Senior Vice President and Director
|
|
July 26, 2011
|
II-36
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
REGISTRANTS (as listed on the attached
Schedule IX of Subsidiary Registrants)
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President and Manager of the general partner
Columbia North Texas Subsidiary GP, LLC
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M. Franck II,
David G. Anderson and Donald W. Stinnett, and each of them, the
true and lawful attorneys-in-fact and agents of the undersigned,
with full power of substitution and resubstitution, for and in
the name, place and stead of the undersigned, to sign in any and
all capacities (including, without limitation, the capacities
listed below), the registration statement, any and all
amendments (including post-effective amendments) to the
registration statement and any and all successor registration
statements to this Registration Statement, including any filings
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto, and
all other documents in connection therewith, with the Securities
and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and anything
necessary to be done to comply with the provisions of the
Securities Act and all the requirements of the Securities and
Exchange Commission, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them, or their or his or her substitute, or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Samuel
N. Hazen
Samuel
N. Hazen
|
|
President and Manager
(Principal Executive Officer) of
the general partner Columbia North Texas
Subsidiary GP, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer
(Principal Financial Officer)
of the general partner Columbia
North Texas Subsidiary GP, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President and Manager
(Principal Accounting Officer) of the
general partner Columbia North Texas
Subsidiary GP, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President, Assistant Secretary and
Manager of the general partner Columbia
North Texas Subsidiary GP, LLC
|
|
July 26, 2011
|
II-37
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
CHCA Bayshore, L.P.
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President and Director of the general partner,
Pasadena Bayshore Hospital, Inc.
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M. Franck II,
David G. Anderson and Donald W. Stinnett, and each of them, the
true and lawful attorneys-in-fact and agents of the undersigned,
with full power of substitution and resubstitution, for and in
the name, place and stead of the undersigned, to sign in any and
all capacities (including, without limitation, the capacities
listed below), the registration statement, any and all
amendments (including post-effective amendments) to the
registration statement and any and all successor registration
statements to this Registration Statement, including any filings
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto, and
all other documents in connection therewith, with the Securities
and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and anything
necessary to be done to comply with the provisions of the
Securities Act and all the requirements of the Securities and
Exchange Commission, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them, or their or his or her substitute, or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Samuel
N. Hazen
Samuel
N. Hazen
|
|
President and Director
(Principal Executive Officer) of the
general partner, Pasadena Bayshore
Hospital, Inc.
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer
(Principal Financial Officer) of the general
partner, Pasadena Bayshore Hospital, Inc.
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President and Director
(Principal Accounting Officer) of the
general partner, Pasadena Bayshore
Hospital, Inc.
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President, Assistant Secretary and
Director of the general partner, Pasadena
Bayshore Hospital, Inc.
|
|
July 26, 2011
|
II-38
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
CHCA Conroe, L.P.
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President and Director of the general partner,
Conroe Hospital Corporation
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M. Franck II,
David G. Anderson and Donald W. Stinnett, and each of them, the
true and lawful attorneys-in-fact and agents of the undersigned,
with full power of substitution and resubstitution, for and in
the name, place and stead of the undersigned, to sign in any and
all capacities (including, without limitation, the capacities
listed below), the registration statement, any and all
amendments (including post-effective amendments) to the
registration statement and any and all successor registration
statements to this Registration Statement, including any filings
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto, and
all other documents in connection therewith, with the Securities
and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and anything
necessary to be done to comply with the provisions of the
Securities Act and all the requirements of the Securities and
Exchange Commission, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them, or their or his or her substitute, or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Samuel
N. Hazen
Samuel
N. Hazen
|
|
President and Director (Principal Executive Officer) of the
general partner, Conroe Hospital Corporation
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer
(Principal Financial Officer) of the general partner, Conroe
Hospital Corporation
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President and Director (Principal Accounting
Officer) of the general partner, Conroe Hospital Corporation
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President, Assistant Secretary and Director of the general
partner, Conroe Hospital Corporation
|
|
July 26, 2011
|
II-39
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
CHCA Mainland, L.P.
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President and Director of the general partner,
Danforth Hospital, Inc.
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M. Franck II,
David G. Anderson and Donald W. Stinnett, and each of them, the
true and lawful attorneys-in-fact and agents of the undersigned,
with full power of substitution and resubstitution, for and in
the name, place and stead of the undersigned, to sign in any and
all capacities (including, without limitation, the capacities
listed below), the registration statement, any and all
amendments (including post-effective amendments) to the
registration statement and any and all successor registration
statements to this Registration Statement, including any filings
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto, and
all other documents in connection therewith, with the Securities
and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and anything
necessary to be done to comply with the provisions of the
Securities Act and all the requirements of the Securities and
Exchange Commission, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them, or their or his or her substitute, or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Samuel
N. Hazen
Samuel
N. Hazen
|
|
President and Director (Principal Executive Officer) of the
general partner, Danforth Hospital, Inc.
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer
(Principal Financial Officer) of the general partner, Danforth
Hospital, Inc.
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President and Director (Principal Accounting
Officer) of the general partner, Danforth Hospital, Inc.
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President, Assistant Secretary and Director of the general
partner, Danforth Hospital, Inc.
|
|
July 26, 2011
|
II-40
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
CHCA West Houston, L.P.
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President and Director of general partner, WHMC,
Inc.
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M. Franck II,
David G. Anderson and Donald W. Stinnett, and each of them, the
true and lawful attorneys-in-fact and agents of the undersigned,
with full power of substitution and resubstitution, for and in
the name, place and stead of the undersigned, to sign in any and
all capacities (including, without limitation, the capacities
listed below), the registration statement, any and all
amendments (including post-effective amendments) to the
registration statement and any and all successor registration
statements to this Registration Statement, including any filings
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto, and
all other documents in connection therewith, with the Securities
and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and anything
necessary to be done to comply with the provisions of the
Securities Act and all the requirements of the Securities and
Exchange Commission, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them, or their or his or her substitute, or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Samuel
N. Hazen
Samuel
N. Hazen
|
|
President and Director (Principal Executive Officer) of the
general partner, WHMC, Inc.
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer
(Principal Financial Officer) of the general partner, WHMC, Inc.
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President and Director (Principal Accounting
Officer) of the general partner, WHMC, Inc.
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President, Assistant Secretary and Director of the general
partner, WHMC, Inc.
|
|
July 26, 2011
|
II-41
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
CHCA Womans Hospital, L.P.
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President of general partner, Womans
Hospital of Texas, Incorporated
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M. Franck II,
David G. Anderson and Donald W. Stinnett, and each of them, the
true and lawful attorneys-in-fact and agents of the undersigned,
with full power of substitution and resubstitution, for and in
the name, place and stead of the undersigned, to sign in any and
all capacities (including, without limitation, the capacities
listed below), the registration statement, any and all
amendments (including post-effective amendments) to the
registration statement and any and all successor registration
statements to this Registration Statement, including any filings
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto, and
all other documents in connection therewith, with the Securities
and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and anything
necessary to be done to comply with the provisions of the
Securities Act and all the requirements of the Securities and
Exchange Commission, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them, or their or his or her substitute, or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Samuel
N. Hazen
Samuel
N. Hazen
|
|
President and Director (Principal Executive Officer) of the
general partner, Womans Hospital of Texas, Incorporated
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer
(Principal Financial Officer) of the general partner,
Womans Hospital of Texas, Incorporated
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President and Director (Principal Accounting
Officer) of the general partner, Womans Hospital of Texas,
Incorporated
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President, Assistant Secretary and Director of the general
partner, Womans Hospital of Texas, Incorporated
|
|
July 26, 2011
|
II-42
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
CMS GP, LLC
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President and Manager
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M. Franck II,
David G. Anderson and Donald W. Stinnett, and each of them, the
true and lawful attorneys-in-fact and agents of the undersigned,
with full power of substitution and resubstitution, for and in
the name, place and stead of the undersigned, to sign in any and
all capacities (including, without limitation, the capacities
listed below), the registration statement, any and all
amendments (including post-effective amendments) to the
registration statement and any and all successor registration
statements to this Registration Statement, including any filings
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto, and
all other documents in connection therewith, with the Securities
and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and anything
necessary to be done to comply with the provisions of the
Securities Act and all the requirements of the Securities and
Exchange Commission, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them, or their or his or her substitute, or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ R.
Milton Johnson
R.
Milton Johnson
|
|
President
(Principal Executive Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer
(Principal Financial Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President and Manager
(Principal Accounting Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President, Assistant Secretary and Manager
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Samuel
N. Hazen
Samuel
N. Hazen
|
|
Senior Vice President and Manager
|
|
July 26, 2011
|
II-43
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
Columbia ASC Management, L.P.
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President of general partner, Medical Care
America, LLC
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M. Franck II,
David G. Anderson and Donald W. Stinnett, and each of them, the
true and lawful attorneys-in-fact and agents of the undersigned,
with full power of substitution and resubstitution, for and in
the name, place and stead of the undersigned, to sign in any and
all capacities (including, without limitation, the capacities
listed below), the registration statement, any and all
amendments (including post-effective amendments) to the
registration statement and any and all successor registration
statements to this Registration Statement, including any filings
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto, and
all other documents in connection therewith, with the Securities
and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and anything
necessary to be done to comply with the provisions of the
Securities Act and all the requirements of the Securities and
Exchange Commission, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them, or their or his or her substitute, or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Gregary
W. Beasley
Gregary
W. Beasley
|
|
President and Manager (Principal
Executive Officer) of the general
partner, Medical Care America, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer (Principal
Financial Officer) of the general
partner, Medical Care America, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President
(Principal Accounting Officer) of the
general partner, Medical Care America, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ A.
Bruce Moore, Jr.
A.
Bruce Moore, Jr.
|
|
Senior Vice President and Manager of the general partner,
Medical Care America, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President and Assistant Secretary and Manager of the
general partner, Medical Care America, LLC
|
|
July 26, 2011
|
II-44
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
Columbia Rio Grande Healthcare, L.P.
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President and Director of the general partner,
Rio Grande Regional Hospital, Inc.
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M.
Franck II, David G. Anderson and Donald W.
Stinnett, and each of them, the true and lawful
attorneys-in-fact and agents of the undersigned, with full power
of substitution and resubstitution, for and in the name, place
and stead of the undersigned, to sign in any and all capacities
(including, without limitation, the capacities listed below),
the registration statement, any and all amendments (including
post-effective amendments) to the registration statement and any
and all successor registration statements to this Registration
Statement, including any filings pursuant to Rule 462(b) under
the Securities Act of 1933, as amended, and to file the same,
with all exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, and
hereby grants to such attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every
act and anything necessary to be done to comply with the
provisions of the Securities Act and all the requirements of the
Securities and Exchange Commission, as fully to all intents and
purposes as the undersigned might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their or his or her substitute, or
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Samuel
N. Hazen
Samuel
N. Hazen
|
|
President and Director
(Principal Executive Officer) of the general partner, Rio Grande
Regional
Hospital, Inc.
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer
(Principal Financial Officer) of the general partner, Rio Grande
Regional
Hospital, Inc.
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President and Director (Principal Accounting
Officer) of the general partner, Rio Grande Regional Hospital,
Inc.
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President, Assistant Secretary and Director of the general
partner, Rio
Grande Regional Hospital, Inc.
|
|
July 26, 2011
|
II-45
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
Columbia Valley Healthcare System, L.P.
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President and Director of the general partner,
Brownsville-Valley Regional Medical Center, Inc.
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M.
Franck II, David G. Anderson and Donald W.
Stinnett, and each of them, the true and lawful
attorneys-in-fact and agents of the undersigned, with full power
of substitution and resubstitution, for and in the name, place
and stead of the undersigned, to sign in any and all capacities
(including, without limitation, the capacities listed below),
the registration statement, any and all amendments (including
post-effective amendments) to the registration statement and any
and all successor registration statements to this Registration
Statement, including any filings pursuant to Rule 462(b) under
the Securities Act of 1933, as amended, and to file the same,
with all exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, and
hereby grants to such attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every
act and anything necessary to be done to comply with the
provisions of the Securities Act and all the requirements of the
Securities and Exchange Commission, as fully to all intents and
purposes as the undersigned might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their or his or her substitute, or
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Samuel
N. Hazen
Samuel
N. Hazen
|
|
President and Director
(Principal Executive Officer) of
the general partner, Brownsville-Valley
Regional Medical Center, Inc.
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer (Principal
Financial Officer) of the general
partner, Brownsville-Valley Regional
Medical Center, Inc.
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President and Director
(Principal Accounting Officer) of the
general partner, Brownsville-Valley
Regional Medical Center, Inc.
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President, Assistant Secretary and
Director of the general partner,
Brownsville-Valley Regional Medical
Center, Inc.
|
|
July 26, 2011
|
II-46
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
Fairview Park, Limited Partnership
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President and Manager of general partner,
Fairview Park GP, LLC
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M.
Franck II, David G. Anderson and Donald W.
Stinnett, and each of them, the true and lawful
attorneys-in-fact and agents of the undersigned, with full power
of substitution and resubstitution, for and in the name, place
and stead of the undersigned, to sign in any and all capacities
(including, without limitation, the capacities listed below),
the registration statement, any and all amendments (including
post-effective amendments) to the registration statement and any
and all successor registration statements to this Registration
Statement, including any filings pursuant to Rule 462(b) under
the Securities Act of 1933, as amended, and to file the same,
with all exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, and
hereby grants to such attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every
act and anything necessary to be done to comply with the
provisions of the Securities Act and all the requirements of the
Securities and Exchange Commission, as fully to all intents and
purposes as the undersigned might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their or his or her substitute, or
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Samuel
N. Hazen
Samuel
N. Hazen
|
|
President and Manager
(Principal Executive Officer)
of the general partner, Fairview
Park GP, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer
(Principal Financial Officer)
of the general partner, Fairview Park GP, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President and Manager
(Principal Accounting Officer)
of the general partner, Fairview Park GP, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President, Assistant Secretary and Manager of the general
partner,
Fairview Park GP, LLC
|
|
July 26, 2011
|
II-47
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
Good Samaritan Hospital, L.P.
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President and Manager of general partner,
Samaritan, LLC
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M.
Franck II, David G. Anderson and Donald W.
Stinnett, and each of them, the true and lawful
attorneys-in-fact and agents of the undersigned, with full power
of substitution and resubstitution, for and in the name, place
and stead of the undersigned, to sign in any and all capacities
(including, without limitation, the capacities listed below),
the registration statement, any and all amendments (including
post-effective amendments) to the registration statement and any
and all successor registration statements to this Registration
Statement, including any filings pursuant to Rule 462(b) under
the Securities Act of 1933, as amended, and to file the same,
with all exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, and
hereby grants to such attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every
act and anything necessary to be done to comply with the
provisions of the Securities Act and all the requirements of the
Securities and Exchange Commission, as fully to all intents and
purposes as the undersigned might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their or his or her substitute, or
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Samuel
N. Hazen
Samuel
N. Hazen
|
|
President and Manager (Principal Executive Officer) of the
general partner,
Samaritan, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer
(Principal Financial Officer)
of the general partner, Samaritan, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President and Manager
(Principal Accounting Officer)
of the general partner, Samaritan, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President, Assistant Secretary and Manager of the
general partner, Samaritan, LLC
|
|
July 26, 2011
|
II-48
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
HCA Management Services, L.P.
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President and Manager of general partner, CMS GP,
LLC
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M. Franck II,
David G. Anderson and Donald W. Stinnett, and each of them, the
true and lawful attorneys-in-fact and agents of the undersigned,
with full power of substitution and resubstitution, for and in
the name, place and stead of the undersigned, to sign in any and
all capacities (including, without limitation, the capacities
listed below), the registration statement, any and all
amendments (including post-effective amendments) to the
registration statement and any and all successor registration
statements to this Registration Statement, including any filings
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto, and
all other documents in connection therewith, with the Securities
and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and anything
necessary to be done to comply with the provisions of the
Securities Act and all the requirements of the Securities and
Exchange Commission, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them, or their or his or her substitute, or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ R.
Milton Johnson
R.
Milton Johnson
|
|
President (Principal Executive Officer) of the general partner,
CMS GP, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer
(Principal Financial Officer)
of the general partner, CMS GP, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President and Manager (Principal Accounting Officer)
of
general partner, CMS GP, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President, Assistant Secretary and Manager of the
general partner, CMS GP, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Samuel
N. Hazen
Samuel
N. Hazen
|
|
Senior Vice President and Manager of the general partner, CMS
GP, LLC
|
|
July 26, 2011
|
II-49
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized in the city of Nashville, State of Tennessee, on
July 26, 2011.
HTI MOB, LLC
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President and Director of managing member,
Healthtrust, Inc. The Hospital Company
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M. Franck II,
David G. Anderson and Donald W. Stinnett, and each of them, the
true and lawful attorneys-in-fact and agents of the undersigned,
with full power of substitution and resubstitution, for and in
the name, place and stead of the undersigned, to sign in any and
all capacities (including, without limitation, the capacities
listed below), the registration statement, any and all
amendments (including post-effective amendments) to the
registration statement and any and all successor registration
statements to this Registration Statement, including any filings
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto, and
all other documents in connection therewith, with the Securities
and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and anything
necessary to be done to comply with the provisions of the
Securities Act and all the requirements of the Securities and
Exchange Commission, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them, or their or his or her substitute, or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
President, Treasurer and Director
(Principal Executive Officer and Principal Financial Officer) of
the managing member, Healthtrust, Inc. The
Hospital Company
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Samuel
N. Hazen
Samuel
N. Hazen
|
|
Senior Vice President and Director of the managing member,
Healthtrust,
Inc. The Hospital Company
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President and Director (Principal Accounting
Officer) of the managing member, Healthtrust,
Inc. The Hospital Company
|
|
July 26, 2011
|
II-50
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|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President, Assistant Secretary and Director of the managing
member, Healthtrust, Inc. The Hospital Company
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Steven
E. Clifton
Steven
E. Clifton
|
|
Vice President and Director of the managing member, Healthtrust,
Inc. The Hospital Company
|
|
July 26, 2011
|
|
|
|
|
|
/s/ A.
Bruce Moore, Jr.
A.
Bruce Moore, Jr.
|
|
Vice President and Director of the managing member, Healthtrust,
Inc. The Hospital Company
|
|
July 26, 2011
|
II-51
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
HSS Virginia, L.P.
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President and Manager of the general partner, HSS
Holdco, LLC
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M. Franck II,
David G. Anderson and Donald W. Stinnett, and each of them, the
true and lawful attorneys-in-fact and agents of the undersigned,
with full power of substitution and resubstitution, for and in
the name, place and stead of the undersigned, to sign in any and
all capacities (including, without limitation, the capacities
listed below), the registration statement, any and all
amendments (including post-effective amendments) to the
registration statement and any and all successor registration
statements to this Registration Statement, including any filings
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto, and
all other documents in connection therewith, with the Securities
and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and anything
necessary to be done to comply with the provisions of the
Securities Act and all the requirements of the Securities and
Exchange Commission, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them, or their or his or her substitute, or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
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|
|
|
|
|
|
/s/ Samuel
N. Hazen
Samuel
N. Hazen
|
|
President and Manager
(Principal Executive Officer)
of the general partner, HSS Holdco, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer
(Principal Financial Officer)
of the general partner, HSS Holdco, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President and Manager
(Principal Accounting Officer)
of the general partner, HSS Holdco, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President, Assistant Secretary and Manager of the general
partner,
HSS Holdco, LLC
|
|
July 26, 2011
|
II-52
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
Integrated Regional Laboratories, LLP
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President and Manager of the managing partner,
Integrated Regional Lab, LLC
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M. Franck II,
David G. Anderson and Donald W. Stinnett, and each of them, the
true and lawful attorneys-in-fact and agents of the undersigned,
with full power of substitution and resubstitution, for and in
the name, place and stead of the undersigned, to sign in any and
all capacities (including, without limitation, the capacities
listed below), the registration statement, any and all
amendments (including post-effective amendments) to the
registration statement and any and all successor registration
statements to this Registration Statement, including any filings
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto, and
all other documents in connection therewith, with the Securities
and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and anything
necessary to be done to comply with the provisions of the
Securities Act and all the requirements of the Securities and
Exchange Commission, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them, or their or his or her substitute, or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated
|
|
|
|
|
|
|
.Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Samuel
N. Hazen
Samuel
N. Hazen
|
|
President and Manager
(Principal Executive Officer) of the managing partner,
Integrated Regional
Lab, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer (Principal Financial Officer) of
the managing partner, Integrated Regional Lab, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President and Manager (Principal Accounting Officer)
of the managing partner, Integrated Regional
Lab, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President, Assistant Secretary and Manager of the managing
partner, Integrated Regional Lab, LLC
|
|
July 26, 2011
|
II-53
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
JFK Medical Center Limited Partnership
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President and Manager of the general partner,
Columbia Palm Beach GP, LLC
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M. Franck II,
David G. Anderson and Donald W. Stinnett, and each of them, the
true and lawful attorneys-in-fact and agents of the undersigned,
with full power of substitution and resubstitution, for and in
the name, place and stead of the undersigned, to sign in any and
all capacities (including, without limitation, the capacities
listed below), the registration statement, any and all
amendments (including post-effective amendments) to the
registration statement and any and all successor registration
statements to this Registration Statement, including any filings
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto, and
all other documents in connection therewith, with the Securities
and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and anything
necessary to be done to comply with the provisions of the
Securities Act and all the requirements of the Securities and
Exchange Commission, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them, or their or his or her substitute, or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Samuel
N. Hazen
Samuel
N. Hazen
|
|
President and Manager (Principal Executive Officer) of the
general partner, Columbia Palm Beach GP, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer (Principal Financial Officer) of
the general partner, Columbia Palm Beach GP, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President and Manager (Principal Accounting
Officer)
of the general partner,
Columbia Palm Beach GP, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President, Assistant Secretary and Manager of the general
partner, Columbia Palm Beach GP, LLC
|
|
July 26, 2011
|
II-54
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
Nashville Shared Services General Partnership
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President and Manager of the managing partner,
HSS Systems, LLC
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M. Franck II,
David G. Anderson and Donald W. Stinnett, and each of them, the
true and lawful attorneys-in-fact and agents of the undersigned,
with full power of substitution and resubstitution, for and in
the name, place and stead of the undersigned, to sign in any and
all capacities (including, without limitation, the capacities
listed below), the registration statement, any and all
amendments (including post-effective amendments) to the
registration statement and any and all successor registration
statements to this Registration Statement, including any filings
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto, and
all other documents in connection therewith, with the Securities
and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and anything
necessary to be done to comply with the provisions of the
Securities Act and all the requirements of the Securities and
Exchange Commission, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them, or their or his or her substitute, or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Beverly
B. Wallace
Beverly
B. Wallace
|
|
President (Principal Executive Officer)
of the managing partner, HSS Systems, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer
(Principal Financial Officer)
of the managing partner, HSS Systems, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President and Manager
(Principal Accounting Officer)
of the managing partner, HSS Systems, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President, Assistant Secretary and Manager of the managing
partner, HSS Systems, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Samuel
N. Hazen
Samuel
N. Hazen
|
|
Senior Vice President and Manager of the managing partner, HSS
Systems, LLC
|
|
July 26, 2011
|
II-55
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
Palms West Hospital Limited Partnership
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President and Manager of the general partner,
Columbia Palm Beach GP, LLC
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M. Franck II,
David G. Anderson and Donald W. Stinnett, and each of them, the
true and lawful attorneys-in-fact and agents of the undersigned,
with full power of substitution and resubstitution, for and in
the name, place and stead of the undersigned, to sign in any and
all capacities (including, without limitation, the capacities
listed below), the registration statement, any and all
amendments (including post-effective amendments) to the
registration statement and any and all successor registration
statements to this Registration Statement, including any filings
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto, and
all other documents in connection therewith, with the Securities
and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and anything
necessary to be done to comply with the provisions of the
Securities Act and all the requirements of the Securities and
Exchange Commission, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them, or their or his or her substitute, or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Samuel
N. Hazen
Samuel
N. Hazen
|
|
President and Manager (Principal Executive Officer) of the
general partner, Columbia Palm Beach GP, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer (Principal Financial Officer) of
the general partner, Columbia Palm Beach GP, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President and Manager (Principal Accounting Officer)
of the general partner, Columbia Palm Beach GP, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President, Assistant Secretary and Manager of the general
partner, Columbia Palm Beach GP, LLC
|
|
July 26, 2011
|
II-56
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
Plantation General Hospital, L.P.
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President and Director of the general partner,
HD&S Corp. Successor, Inc.
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M. Franck II,
David G. Anderson and Donald W. Stinnett, and each of them, the
true and lawful attorneys-in-fact and agents of the undersigned,
with full power of substitution and resubstitution, for and in
the name, place and stead of the undersigned, to sign in any and
all capacities (including, without limitation, the capacities
listed below), the registration statement, any and all
amendments (including post-effective amendments) to the
registration statement and any and all successor registration
statements to this Registration Statement, including any filings
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto, and
all other documents in connection therewith, with the Securities
and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and anything
necessary to be done to comply with the provisions of the
Securities Act and all the requirements of the Securities and
Exchange Commission, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them, or their or his or her substitute, or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Samuel
N. Hazen
Samuel
N. Hazen
|
|
President and Manager (Principal Executive Officer) of the
general partner, HD&S Corp. Successor, Inc.
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer (Principal Financial Officer) of
the general partner, HD&S Corp. Successor, Inc.
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President and Director (Principal Accounting
Officer) of the general partner, HD&S Corp. Successor, Inc.
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President, Assistant Secretary and Director of the general
partner, HD&S Corp. Successor, Inc.
|
|
July 26, 2011
|
II-57
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
Riverside Healthcare System, L.P.
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President and Director of the general partner,
Columbia Riverside, Inc.
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M. Franck II,
David G. Anderson and Donald W. Stinnett, and each of them, the
true and lawful attorneys-in-fact and agents of the undersigned,
with full power of substitution and resubstitution, for and in
the name, place and stead of the undersigned, to sign in any and
all capacities (including, without limitation, the capacities
listed below), the registration statement, any and all
amendments (including post-effective amendments) to the
registration statement and any and all successor registration
statements to this Registration Statement, including any filings
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto, and
all other documents in connection therewith, with the Securities
and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and anything
necessary to be done to comply with the provisions of the
Securities Act and all the requirements of the Securities and
Exchange Commission, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them, or their or his or her substitute, or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
.
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Samuel
N. Hazen
Samuel
N. Hazen
|
|
President and Director (Principal Executive Officer) of the
general partner, Columbia Riverside, Inc.
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer
(Principal Financial Officer)
of the general partner, Columbia Riverside, Inc.
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President and Director
(Principal Accounting Officer)
of the general partner, Columbia Riverside, Inc.
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President, Assistant Secretary and Director of the general
partner, Columbia Riverside, Inc.
|
|
July 26, 2011
|
II-58
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
San Jose Healthcare System, LP
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President and Manager of the general partner,
San Jose, LLC
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M. Franck II,
David G. Anderson and Donald W. Stinnett, and each of them, the
true and lawful attorneys-in-fact and agents of the undersigned,
with full power of substitution and resubstitution, for and in
the name, place and stead of the undersigned, to sign in any and
all capacities (including, without limitation, the capacities
listed below), the registration statement, any and all
amendments (including post-effective amendments) to the
registration statement and any and all successor registration
statements to this Registration Statement, including any filings
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto, and
all other documents in connection therewith, with the Securities
and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and anything
necessary to be done to comply with the provisions of the
Securities Act and all the requirements of the Securities and
Exchange Commission, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them, or their or his or her substitute, or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Samuel
N. Hazen
Samuel
N. Hazen
|
|
President and Manager (Principal Executive Officer) of the
general partner, San Jose, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer
(Principal Financial Officer)
of the general partner, San Jose, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President and Manager
(Principal Accounting Officer)
of the general partner, San Jose, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President, Assistant Secretary and Manager of the general
partner, San Jose, LLC
|
|
July 26, 2011
|
II-59
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
San Jose Hospital, L.P.
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President and Manager of the general partner,
San Jose Medical Center, LLC
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M. Franck II,
David G. Anderson and Donald W. Stinnett, and each of them, the
true and lawful attorneys-in-fact and agents of the undersigned,
with full power of substitution and resubstitution, for and in
the name, place and stead of the undersigned, to sign in any and
all capacities (including, without limitation, the capacities
listed below), the registration statement, any and all
amendments (including post-effective amendments) to the
registration statement and any and all successor registration
statements to this Registration Statement, including any filings
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto, and
all other documents in connection therewith, with the Securities
and Exchange Commission, and hereby grants to such
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and anything
necessary to be done to comply with the provisions of the
Securities Act and all the requirements of the Securities and
Exchange Commission, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them, or their or his or her substitute, or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
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|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
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|
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|
|
/s/ Samuel
N. Hazen
Samuel
N. Hazen
|
|
President and Manager (Principal Executive Officer) of the
general partner, San Jose Medical Center, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer
(Principal Financial Officer)
of the general partner, San Jose Medical Center, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President and Manager
(Principal Accounting Officer)
of the general partner, San Jose
Medical Center, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President, Assistant Secretary and Manager of the general
partner, San Jose Medical Center, LLC
|
|
July 26, 2011
|
II-60
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
Terre Haute MOB, L.P.
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
|
Name: Donald W. Stinnett
|
|
|
|
Title:
|
Senior Vice President and Manager of the managing general
partner, HSS Holdco, LLC
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M.
Franck II, David G. Anderson and Donald W.
Stinnett, and each of them, the true and lawful
attorneys-in-fact and agents of the undersigned, with full power
of substitution and resubstitution, for and in the name, place
and stead of the undersigned, to sign in any and all capacities
(including, without limitation, the capacities listed below),
the registration statement, any and all amendments (including
post-effective amendments) to the registration statement and any
and all successor registration statements to this Registration
Statement, including any filings pursuant to Rule 462(b) under
the Securities Act of 1933, as amended, and to file the same,
with all exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, and
hereby grants to such attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every
act and anything necessary to be done to comply with the
provisions of the Securities Act and all the requirements of the
Securities and Exchange Commission, as fully to all intents and
purposes as the undersigned might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their or his or her substitute, or
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Samuel
N. Hazen
Samuel
N. Hazen
|
|
President and Manager
(Principal Executive Officer)
of the managing general partner, HSS Holdco, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer
(Principal Financial Officer)
of the managing general partner, HSS Holdco, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President and Manager
(Principal Accounting Officer)
of the managing general partner, HSS Holdco, LLC
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President, Assistant Secretary and Manager of the managing
general partner, HSS Holdco, LLC
|
|
July 26, 2011
|
II-61
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
Terre Haute Regional Hospital, L.P.
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
Name: Donald
W. Stinnett
Title: Senior Vice President and Director of the general
partner, Terre Haute Hospital GP, Inc.
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M.
Franck II, David G. Anderson and Donald W.
Stinnett, and each of them, the true and lawful
attorneys-in-fact and agents of the undersigned, with full power
of substitution and resubstitution, for and in the name, place
and stead of the undersigned, to sign in any and all capacities
(including, without limitation, the capacities listed below),
the registration statement, any and all amendments (including
post-effective amendments) to the registration statement and any
and all successor registration statements to this Registration
Statement, including any filings pursuant to Rule 462(b) under
the Securities Act of 1933, as amended, and to file the same,
with all exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, and
hereby grants to such attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every
act and anything necessary to be done to comply with the
provisions of the Securities Act and all the requirements of the
Securities and Exchange Commission, as fully to all intents and
purposes as the undersigned might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their or his or her substitute, or
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Samuel
N. Hazen
Samuel
N. Hazen
|
|
President and Director
(Principal Executive Officer) of the general partner, Terre
Haute Hospital GP, Inc.
|
|
July 26, 2011
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
Vice President and Treasurer (Principal Financial Officer) of
the general partner, Terre Haute Hospital GP, Inc.
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President and Director (Principal Accounting
Officer)
of the general partner,
Terre Haute Hospital GP, Inc.
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President, Assistant Secretary and Director of the general
partner, Terre Haute Hospital GP, Inc.
|
|
July 26, 2011
|
II-62
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Nashville, State of Tennessee, on
July 26, 2011.
Western Plains Capital, Inc.
|
|
|
|
By:
|
/s/ Donald
W. Stinnett
Name: Donald
W. Stinnett
|
|
|
|
|
Title:
|
Senior Vice President and Director
|
SIGNATURES
AND POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John M.
Franck II, David G. Anderson and Donald W.
Stinnett, and each of them, the true and lawful
attorneys-in-fact and agents of the undersigned, with full power
of substitution and resubstitution, for and in the name, place
and stead of the undersigned, to sign in any and all capacities
(including, without limitation, the capacities listed below),
the registration statement, any and all amendments (including
post-effective amendments) to the registration statement and any
and all successor registration statements to this Registration
Statement, including any filings pursuant to Rule 462(b) under
the Securities Act of 1933, as amended, and to file the same,
with all exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, and
hereby grants to such attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every
act and anything necessary to be done to comply with the
provisions of the Securities Act and all the requirements of the
Securities and Exchange Commission, as fully to all intents and
purposes as the undersigned might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their or his or her substitute, or
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ David
G. Anderson
David
G. Anderson
|
|
President, Treasurer and Director
(Principal Executive Officer and Principal
Financial Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ Donald
W. Stinnett
Donald
W. Stinnett
|
|
Senior Vice President and Director
(Principal Accounting Officer)
|
|
July 26, 2011
|
|
|
|
|
|
/s/ John
M. Franck II
John
M. Franck II
|
|
Vice President, Assistant Secretary
and Director
|
|
July 26, 2011
|
II-63
SCHEDULE I
OF SUBSIDIARY REGISTRANTS
AMERICAN MEDICORP DEVELOPMENT CO.
BAY HOSPITAL, INC.
BRIGHAM CITY COMMUNITY HOSPITAL, INC.
BROOKWOOD MEDICAL CENTER OF GULFPORT, INC.
CAPITAL DIVISION, INC.
CENTRAL FLORIDA REGIONAL HOSPITAL, INC.
CENTRAL TENNESSEE HOSPITAL CORPORATION
CHIPPENHAM & JOHNSTON-WILLIS HOSPITALS, INC.
COLORADO HEALTH SYSTEMS, INC.
COLUMBIA JACKSONVILLE HEALTHCARE SYSTEM, INC.
COLUMBIA LAGRANGE HOSPITAL, INC.
COLUMBIA MEDICAL CENTER OF LAS COLINAS, INC.
COLUMBIA OGDEN MEDICAL CENTER, INC.
COLUMBIA POLK GENERAL HOSPITAL, INC.
COLUMBIA RIVERSIDE, INC.
COLUMBIA/ALLEGHANY REGIONAL HOSPITAL, INCORPORATED
COLUMBIA/HCA JOHN RANDOLPH, INC.
COLUMBINE PSYCHIATRIC CENTER, INC.
CONROE HOSPITAL CORPORATION
DAUTERIVE HOSPITAL CORPORATION
EASTERN IDAHO HEALTH SERVICES, INC.
EDWARD WHITE HOSPITAL, INC.
ENCINO HOSPITAL CORPORATION, INC.
FRANKFORT HOSPITAL, INC.
GPCH-GP, INC.
GREENVIEW HOSPITAL, INC.
HCA CENTRAL GROUP, INC.
HCA HEALTH SERVICES OF FLORIDA, INC.
HCA HEALTH SERVICES OF LOUISIANA, INC.
HCA HEALTH SERVICES OF OKLAHOMA, INC.
HCA HEALTH SERVICES OF TENNESSEE, INC.
HCA HEALTH SERVICES OF VIRGINIA, INC.
HCA REALTY, INC.
HD&S CORP. SUCCESSOR, INC.
HEALTH MIDWEST OFFICE FACILITIES CORPORATION
HEALTH MIDWEST VENTURES GROUP, INC.
HENDERSONVILLE HOSPITAL CORPORATION
HOSPITAL CORPORATION OF TENNESSEE
HOSPITAL CORPORATION OF UTAH
HOSPITAL DEVELOPMENT PROPERTIES, INC.
HTI MEMORIAL HOSPITAL CORPORATION
KPH-CONSOLIDATION, INC
LARGO MEDICAL CENTER, INC.
LAWNWOOD MEDICAL CENTER, INC.
LEWIS-GALE HOSPITAL, INCORPORATED
LOS ROBLES REGIONAL MEDICAL CENTER
MANAGEMENT SERVICES HOLDINGS, INC.
MARION COMMUNITY HOSPITAL, INC.
MEMORIAL HEALTHCARE GROUP, INC.
MIDWEST HOLDINGS, INC.
MONTGOMERY REGIONAL HOSPITAL, INC.
MOUNTAIN VIEW HOSPITAL, INC.
NATIONAL PATIENT ACCOUNT SERVICES, INC.
NEW PORT RICHEY HOSPITAL, INC.
NEW ROSE HOLDING COMPANY, INC.
NORTH FLORIDA REGIONAL MEDICAL CENTER, INC.
NORTHERN UTAH HEALTHCARE CORPORATION
NOTAMI HOSPITALS OF LOUISIANA, INC.
OKALOOSA HOSPITAL, INC.
OKEECHOBEE HOSPITAL, INC.
PALMYRA PARK HOSPITAL, INC.
PASADENA BAYSHORE HOSPITAL, INC.
PULASKI COMMUNITY HOSPITAL, INC.
RIO GRANDE REGIONAL HOSPITAL, INC.
RIVERSIDE HOSPITAL, INC.
SARASOTA DOCTORS HOSPITAL, INC.
SPOTSYLVANIA MEDICAL CENTER, INC.
SPRING BRANCH MEDICAL CENTER, INC.
SPRING HILL HOSPITAL, INC.
ST. MARKS LONE PEAK HOSPITAL, INC.
SUN CITY HOSPITAL, INC.
SUNRISE MOUNTAINVIEW HOSPITAL, INC.
TALLAHASSEE MEDICAL CENTER, INC.
TCMC MADISON-PORTLAND, INC.
TERRE HAUTE HOSPITAL GP, INC.
TERRE HAUTE HOSPITAL HOLDINGS, INC.
TIMPANOGOS REGIONAL MEDICAL SERVICES, INC.
VH HOLDCO, INC.
VH HOLDINGS, INC.
VIRGINIA PSYCHIATRIC COMPANY, INC.
W & C HOSPITAL, INC.
WALTERBORO COMMUNITY HOSPITAL, INC.
WEST FLORIDA REGIONAL MEDICAL CENTER, INC.
WEST VALLEY MEDICAL CENTER, INC.
WHMC, INC.
WOMANS HOSPITAL OF TEXAS, INCORPORATED
SCHEDULE II
OF SUBSIDIARY REGISTRANTS
COLUMBUS CARDIOLOGY, INC.
NORTH FLORIDA IMMEDIATE CARE CENTER, INC.
REDMOND PHYSICIAN PRACTICE COMPANY
SCHEDULE III
OF SUBSIDIARY REGISTRANTS
CENTERPOINT MEDICAL CENTER OF INDEPENDENCE, LLC
COLUMBIA PARKERSBURG HEALTHCARE SYSTEM, LLC
DUBLIN COMMUNITY HOSPITAL, LLC
EP HEALTH, LLC
FAIRVIEW PARK GP, LLC
GALEN PROPERTY, LLC
GRAND STRAND REGIONAL MEDICAL CENTER, LLC
HSS HOLDCO, LLC
INTEGRATED REGIONAL LAB, LLC
LAKELAND MEDICAL CENTER, LLC
LAKEVIEW MEDICAL CENTER, LLC
LEWIS-GALE MEDICAL CENTER, LLC
MEDICAL CENTERS OF OKLAHOMA, LLC
MEDICAL OFFICE BUILDINGS OF KANSAS, LLC
MIDWEST DIVISION ACH, LLC
MIDWEST DIVISION LRHC, LLC
MIDWEST DIVISION LSH, LLC
MIDWEST DIVISION MCI, LLC
MIDWEST DIVISION MMC, LLC
MIDWEST DIVISION OPRMC, LLC
MIDWEST DIVISION PFC, LLC
MIDWEST DIVISION RBH, LLC
MIDWEST DIVISION RMC, LLC
MIDWEST DIVISION RPC, LLC
NORTHERN VIRGINIA COMMUNITY HOSPITAL, LLC
NORTHLAKE MEDICAL CENTER, LLC
NOTAMI HOSPITALS, LLC
OUTPATIENT CARDIOVASCULAR CENTER OF CENTRAL FLORIDA, LLC
REDMOND PARK HOSPITAL, LLC
RESTON HOSPITAL CENTER, LLC
RETREAT HOSPITAL, LLC
SAMARITAN, LLC
SAN JOSE MEDICAL CENTER, LLC
SAN JOSE, LLC
SJMC, LLC
SOUTHERN HILLS MEDICAL CENTER, LLC
THE REGIONAL HEALTH SYSTEM OF ACADIANA, LLC
TRIDENT MEDICAL CENTER, LLC
UTAH MEDCO, LLC
WESLEY MEDICAL CENTER, LLC
SCHEDULE IV
OF SUBSIDIARY REGISTRANTS
DALLAS/FT. WORTH PHYSICIAN, LLC
GOPPERT-TRINITY FAMILY CARE, LLC
LEWIS-GALE PHYSICIANS, LLC
SCHEDULE V
OF SUBSIDIARY REGISTRANTS
CENTRAL SHARED SERVICES, LLC
HSS SYSTEMS VA, LLC
HSS SYSTEMS, LLC
SCHEDULE VI
OF SUBSIDIARY REGISTRANTS
EL PASO SURGICENTER, INC.
LAS VEGAS SURGICARE, INC.
MARIETTA SURGICAL CENTER, INC.
MCA INVESTMENT COMPANY
SURGICARE OF BRANDON, INC.
SURGICARE OF FLORIDA, INC.
SURGICARE OF HOUSTON WOMENS, INC.
SURGICARE OF MANATEE, INC.
SURGICARE OF NEW PORT RICHEY, INC.
SCHEDULE VII
OF SUBSIDIARY REGISTRANTS
SURGICARE OF PALMS WEST, LLC
SURGICARE OF RIVERSIDE, LLC
SCHEDULE
VIII OF SUBSIDIARY REGISTRANTS
HCA IT&S FIELD OPERATIONS, INC.
HCA IT&S INVENTORY MANAGEMENT, INC.
SCHEDULE IX
OF SUBSIDIARY REGISTRANTS
COLUMBIA MEDICAL CENTER OF ARLINGTON SUBSIDIARY, L.P.
COLUMBIA MEDICAL CENTER OF DENTON SUBSIDIARY, L.P.
COLUMBIA MEDICAL CENTER OF LEWISVILLE SUBSIDIARY, L.P.
COLUMBIA MEDICAL CENTER OF MCKINNEY SUBSIDIARY, L.P.
COLUMBIA MEDICAL CENTER OF PLANO SUBSIDIARY, L.P.
COLUMBIA NORTH HILLS HOSPITAL SUBSIDIARY, L.P.
COLUMBIA PLAZA MEDICAL CENTER OF FORT WORTH SUBSIDIARY, L.P.
GREEN OAKS HOSPITAL SUBSIDIARY, L.P.
Exhibit 4.1
HCA
HOLDINGS, INC.,
THE GUARANTORS NAMED ON SCHEDULE I HERETO,
and
,
as Trustee
INDENTURE
Dated as of
Debt Securities
TABLE OF CONTENTS
|
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Page
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ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
|
|
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1
|
|
Section 101 Definitions
|
|
|
1
|
|
Section 102 Compliance Certificates and Opinions
|
|
|
10
|
|
Section 103 Form of Documents Delivered to Trustee
|
|
|
11
|
|
Section 104 Acts of Holders
|
|
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11
|
|
Section 105 Notices, etc., to Trustee, Issuer and Guarantors
|
|
|
12
|
|
Section 106 Notice to Holders of Securities; Waiver
|
|
|
13
|
|
Section 107 Conflict with Trust Indenture Act
|
|
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13
|
|
Section 108 Effect of Headings and Table of Contents
|
|
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14
|
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Section 109 Successors and Assigns
|
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14
|
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Section 110 Separability Clause
|
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14
|
|
Section 111 Benefits of Indenture
|
|
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14
|
|
Section 112 Governing Law
|
|
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14
|
|
Section 113 Legal Holidays
|
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14
|
|
Section 114 Waiver of Jury Trial
|
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14
|
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Section 115 Force Majeure
|
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|
15
|
|
Section 116
Counterparts
|
|
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15
|
|
Section 117 Extension of Payment Dates
|
|
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15
|
|
Section 118 Immunity of Shareholders, Directors, Officers and Agents of the Issuer
and Any Guarantor
|
|
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15
|
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ARTICLE TWO SECURITIES FORMS
|
|
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16
|
|
Section 201 Forms Generally
|
|
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16
|
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Section 202 Form of Trustees Certificate of Authentication
|
|
|
16
|
|
Section 203 Form of Legend for Global Notes
|
|
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17
|
|
ARTICLE THREE THE SECURITIES
|
|
|
18
|
|
Section 301 Amount Unlimited; Issuable in Series
|
|
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18
|
|
Section 302 Currency; Denominations
|
|
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21
|
|
Section 303 Execution, Authentication, Delivery and Dating
|
|
|
22
|
|
Section 304 Temporary Securities
|
|
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23
|
|
Section 305 Registration, Transfer and Exchange
|
|
|
24
|
|
Section 306 Mutilated, Destroyed, Lost and Stolen Securities
|
|
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25
|
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i
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Page
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Section 307 Payment of Interest and Certain Additional Amounts; Rights to Interest
and Certain Additional Amounts Preserved
|
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26
|
|
Section 308 Persons Deemed Owners
|
|
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27
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|
Section 309 Cancellation
|
|
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27
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|
Section 310 Computation of Interest
|
|
|
28
|
|
Section 311 Original Issue Discount
|
|
|
28
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ARTICLE FOUR SATISFACTION AND DISCHARGE OF INDENTURE
|
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28
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Section 401 Satisfaction and Discharge
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28
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Section 402 Defeasance and Covenant Defeasance
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30
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Section 403 Application of Trust Money
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34
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Section 404 Reinstatement
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34
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ARTICLE FIVE REMEDIES
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Section 501 Events of Default
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Section 502 Acceleration of Maturity; Rescission and Annulment
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36
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Section 503 Collection of Indebtedness and Suits for Enforcement by Trustee
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Section 504 Trustee May File Proofs of Claim
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Section 505 Trustee May Enforce Claims without Possession of Securities
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38
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Section 506 Application of Money Collected.
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38
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Section 507 Limitations on Suits
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38
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Section 508 Unconditional Right of Holders to Receive Principal and any Premium,
Interest and Additional Amounts
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39
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Section 509 Restoration of Rights and Remedies
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Section 510 Rights and Remedies Cumulative
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Section 511 Delay or Omission Not Waiver
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Section 512 Control by Holders of Securities
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40
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Section 513 Waiver of Past Defaults
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40
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Section 514 Waiver of Usury, Stay or Extension Laws
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Section 515 Undertaking for Costs
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ARTICLE SIX THE TRUSTEE
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Section 601 Certain Rights of Trustee
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Section 602 Notice of Defaults
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Section 603 Not Responsible for Recitals or Issuance of Securities
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Section 604 May Hold Securities
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ii
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Page
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Section 605 Money Held in Trust
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43
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Section 606 Compensation and Reimbursement
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43
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Section 607 Conflicting Interests
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44
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Section 608 Corporate Trustee Required; Eligibility
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44
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Section 609 Resignation and Removal; Appointment of Successor
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45
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Section 610 Acceptance of Appointment by Successor
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46
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Section 611 Merger, Conversion, Consolidation or Succession to Business
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47
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Section 612 Appointment of Authenticating Agent
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48
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ARTICLE SEVEN HOLDERS LISTS AND REPORTS BY TRUSTEE, ISSUER AND GUARNATORS
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48
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Section 701 Issuer to Furnish Trustee Names and Addresses of Holders
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48
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Section 702 Preservation of Information; Communications to Holders
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48
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Section 703 Reports by Trustee
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48
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Section 704 Reports by Issuer and Guarantors
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49
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ARTICLE EIGHT CONSOLIDATION, MERGER AND SALES
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49
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Section 801 Issuer May Consolidate, Etc., Only on Certain Terms
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49
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Section 802 Successor Person Substituted for Issuer
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50
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ARTICLE NINE SUPPLEMENTAL INDENTURES
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50
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Section 901 Supplemental Indentures without Consent of Holders
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50
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Section 902 Supplemental Indentures with Consent of Holders
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52
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Section 903 Execution of Supplemental Indentures
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53
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Section 904 Effect of Supplemental Indentures
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54
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Section 905 Reference in Securities to Supplemental Indentures
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54
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Section 906 Conformity with Trust Indenture Act
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ARTICLE TEN COVENANTS
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54
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Section 1001 Payment of Principal, Premium, Interest and Additional Amounts
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Section 1002 Maintenance of Office or Agency
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55
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Section 1003 Money for Securities Payments to Be Held in Trust
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55
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Section 1004 Additional Amounts
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56
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Section 1005 Legal Existence
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57
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Section 1006 Waiver of Certain Covenants.
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57
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Section 1007 Issuer Statement as to Compliance
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57
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Section 1008
Guarantor Statement as to Compliance
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iii
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Page
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ARTICLE ELEVEN REDEMPTION OF SECURITIES
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58
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Section 1101 Applicability of Article
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58
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Section 1102 Election to Redeem; Notice to Trustee
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58
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Section 1103 Selection by Trustee of Securities to be Redeemed
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58
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Section 1104 Notice of Redemption
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59
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Section 1105 Deposit of Redemption Price
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60
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Section 1106 Securities Payable on Redemption Date
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60
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Section 1107 Securities Redeemed in Part
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60
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ARTICLE TWELVE SINKING FUNDS
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61
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Section 1201 Applicability of Article
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61
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Section 1202 Satisfaction of Sinking Fund Payments with Securities
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61
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ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS
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61
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Section 1301 Applicability of Article
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61
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ARTICLE FOURTEEN SECURITIES IN FOREIGN CURRENCIES
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62
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Section 1401 Applicability of Article
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ARTICLE FIFTEEN GUARANTEES
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62
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Section 1501 Guarantees
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ARTICLE SIXTEEN SECURITY
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Section 1601 Security
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iv
INDENTURE,
dated as of
, 201
(the
Indenture), among HCA Holdings, Inc., a Delaware
corporation (the Issuer),
(the
Trustee) and, if applicable, the Guarantors (as defined
below) and
as the Registrar, Paying Agent and Transfer Agent.
RECITALS
The Issuer has duly authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of senior unsecured and secured debentures, notes or other evidences of
indebtedness (hereinafter called the Securities), unlimited as to principal amount, to bear such
rates of interest, to mature at such time or times, to be issued in one or more series and to have
such other provisions as shall be fixed as hereinafter provided.
The Issuer and the Initial Guarantors (as defined below) have duly authorized the execution
and delivery of this Indenture. All things necessary to make this Indenture a valid agreement of
the Issuer and the Initial Guarantors, in accordance with its terms, have been done.
This
Indenture is subject to the provisions of the Trust Indenture Act (as
defined below), as amended,
and the rules and regulations of the Securities and Exchange Commission promulgated thereunder that
are required to be part of this Indenture and, to the extent applicable, shall be governed by such
provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders (as
herein defined) thereof, it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Securities or of any series thereof as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101
Definitions.
Except as otherwise expressly provided in or pursuant to this Indenture or unless the context
otherwise requires, for all purposes of this Indenture:
(1) the terms defined in this Article have the meanings assigned to them in this
Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act either
directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with GAAP;
(4) any reference to an Article or a Section refers to an Article or a Section, as
the case may be, of this Indenture;
(5) the words herein, hereof, hereto and hereunder and other words of similar
import refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision;
(6) including means including without limitation;
(7) the word or is always used inclusively (for example, the phrase A or B means A
or B or both, not either A or B but not both);
(8) provisions apply to successive events and transactions;
(9) the term merger includes a statutory share exchange and the terms merge and
merged have correlative meanings;
(10) the masculine gender includes the feminine and the neuter; and
(11) references to agreements and other instruments include subsequent amendments and
supplements thereto.
Certain terms used principally in certain Articles hereof are defined in those Articles.
Except as otherwise expressly provided in or pursuant to this Indenture, for all purposes of
this Indenture, references to the conversion or exchange of any Securities for or into other
securities or property shall not include the exchange of Securities of any series for other
Securities of the same series.
Act,
when used with respect to any Holders, has the meaning specified in
Section 104(1).
Additional Amounts means any additional amounts which are required by this Indenture or by
any Security, or by the terms of any Security established pursuant to Section 301, under
circumstances specified herein or therein, to be paid by the Issuer or any Guarantors in respect of
certain taxes, duties, levies, imposts, assessments or other governmental charges imposed on
Holders specified herein or therein.
Affiliate of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, control, when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise, and the terms controlling and
controlled have meanings correlative to the foregoing.
Agent means any Person acting as
a Paying Agent, Transfer Agent, Security Registrar, collateral agent, calculation agent or foreign currency agent, as applicable.
Applicable Procedures means,
with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the
Depository, Euroclear and/or Clearstream that apply to such transfer or exchange.
Authenticating Agent means any Person authorized by the Trustee pursuant to Section 612 to
act on behalf of the Trustee to authenticate Securities of one or more series.
Bankruptcy Law means Title 11, U.S. Code or any similar federal, state, or foreign law for
the relief of debtors.
2
Board of Directors means the board of directors of the Issuer or any committee of that board
duly authorized to act generally or in any particular respect for the Issuer hereunder. The term
board of directors means the board of directors of the Issuer and does not include committees of
the board of directors.
Board Resolution means a copy of
one or more resolutions to have been duly adopted by the Board of Directors and to be in
full force and effect on the date delivered to the Trustee.
Business Day means, unless otherwise specified with respect to the Securities of any series
pursuant to Section 301, any day other than a Saturday, Sunday or other day on which banking
institutions in The City of New York are authorized or obligated by law, regulation or executive
order to close; provided that such term shall mean, when used with respect to any payment of
principal of, or premium or interest, if any, on, or Additional Amounts with respect to, the
Securities of any series to be made at any Place of Payment for such Securities, unless otherwise
specified pursuant to Section 301 with respect to such Securities, any day other than a Saturday,
Sunday or other day on which banking institutions in such Place of Payment are authorized or
obligated by law, regulation or executive order to close.
Clearstream means Clearstream Banking,
Société Anonyme.
Collateral means, collectively,
all of the property and assets that are from time to time subject to the Lien of the security documents including the Liens, if any,
required to be granted pursuant to the Indenture.
Commission means the Securities and Exchange Commission, as from time to time constituted,
or, if at any time after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the body performing
such duties at such time.
Corporate Trust Office means the principal corporate trust office of the Trustee at which at
any particular time its corporate trust business shall be administered, which office at the date of
this Indenture is located at
.
The term Corporation includes corporations, partnerships, associations, limited liability
companies and other companies, and business trusts. The term corporation means a corporation and
does not include partnerships, associations, limited liability companies or other companies or
business trusts.
Currency, with respect to any payment, deposit or other transfer in respect of the principal
of or any premium or interest on or any Additional Amounts with respect to any Security, means
Dollars or the Foreign Currency, as the case may be, in which such payment, deposit or other
transfer is required to be made by or pursuant to the terms hereof or such Security and, with
respect to any other payment, deposit or transfer pursuant to or contemplated by the terms hereof
or such Security, means Dollars.
Default means any event that is,
or with the passage of time or the giving of notice or both would be, an Event of Default.
Defaulted Interest has the meaning specified in Section 307.
Depository means, with respect to any Security issuable or issued in the form of one or more
global Securities, the Person designated as depository by the Issuer in or pursuant to this
Indenture, and, unless otherwise provided with respect to any Security, any successor to such
Person. If at any time there is more than one such Person, Depository shall mean, with respect
to any Securities, the depository which has been appointed with respect to such Securities.
3
Dollars or $ means a dollar or other equivalent unit of legal tender for payment of public
or private debts in the United States of America.
Euroclear
means Euroclear Bank S.A./N.V., as operator of the Euroclear System.
Event of Default has the meaning specified in Section 501.
Exchange Act means the Securities Exchange Act of 1934, as amended, or any successor
thereto, in each case as amended from time to time.
Foreign Currency means any Currency, currency unit or composite currency, including, without
limitation, the Euro, issued by the government of one or more countries other than the United
States of America or by any recognized confederation or association of such governments.
GAAP
means, unless otherwise specified with
respect to any series of Securities pursuant to Section 301, such accounting principles as are
generally accepted in the United States of America as of the date or time of any computation
required hereunder.
Government Obligations means securities which are (i) direct obligations of the United
States of America or the other government or governments in the confederation which issued the
Foreign Currency in which the principal of or any premium or interest on the relevant Security or
any Additional Amounts in respect thereof shall be payable, in each case where the payment or
payments thereunder are supported by the full faith and credit of such government or governments or
(ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or such other government or governments, in each case where the
timely payment or payments thereunder are unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government or governments, and which, in
the case of (i) or (ii), are not callable or redeemable at the option of the issuer or issuers
thereof, and shall also include a depository receipt issued by a bank or trust company as custodian
with respect to any such Government Obligation or a specific payment of interest on or principal of
or other amount with respect to any such Government Obligation held by such custodian for the
account of the Holder of a depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the Holder of such
depository receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of or other amount with respect to
the Government Obligation evidenced by such depository receipt.
4
Guarantee means a guarantee of any Securities by a Guarantor as contemplated by Article
Fifteen; provided that the term Guarantee, when used with respect to any Security or with respect
to the Securities of any series, means a guarantee of such Security or of the Securities of such
series, respectively, by a Guarantor of such Security or of the Securities of such series,
respectively, as contemplated by Article Fifteen.
Guarantor means the Initial Guarantor list on schedule I hereto and any other Person who
shall have become a Guarantor under this Indenture pursuant to Section 301 or 901 hereof, in each
case unless and until a successor Person shall have been substituted for such Guarantor pursuant to
the applicable provisions of this Indenture established pursuant to Section 301 or 901, at which
time references to such Guarantor shall mean such successor Person;
provided
that the term
Guarantor, when used, with respect to any Security or the Securities of any series, means the
Persons who shall from time to time be the guarantors of such Security or the Securities of such
series, respectively, as contemplated by Article Fifteen.
Guarantors Board of Directors means, with respect
to any Guarantor, the board of directors, managers, partners or
other managing body
of such Guarantor or any committee of that board duly authorized to act generally or in any
particular respect for such Guarantor hereunder.
Guarantors Board Resolution
means, with respect to any Guarantor, a copy of one or more
resolutions to have been
duly adopted by such Guarantors Board of Directors or by
the Board of Directors of such Guarantors general partner,
managing partner or managing member
and to be in full force and effect on the date
delivered to the Trustee.
Guarantors Officers Certificate means, with respect to any Guarantor, a certificate signed
by the Chairman, the Chief Executive Officer, the President, the
Chief Financial Officer, a Vice President, the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of such Guarantor or of such Guarantors general
partner, managing partner or managing member, that, if required by the Trust Indenture
Act, complies with the requirements of Section 314(e) of the Trust Indenture Act. In the event that
Guarantors Officers Certificates relating to the same matter shall be delivered by two or more
Guarantors on the same date, such certificates may be combined into a single certificate, provided
that the certifications made by each Guarantor therein shall be several and not joint
certifications of each such Guarantor.
Guarantor
Request means, with respect to any Guarantor, a
written request signed in the name of such Guarantor by the Chairman,
the Chief Executive Officer, the President, a Vice President, the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of such Guarantor
or of such Guarantors general partner, managing partner or
managing member, and delivered to the Trustee.
In the event that Guarantors Requests relating to the same matter shall be delivered by two or
more Guarantors on the same date, such requests may be combined into a single document, provided
that the requests made by each Guarantor therein shall be several and not joint requests of each
such Guarantor.
Holder, means a Person in whose name a Security is registered in the Security Register.
Indenture means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into
5
pursuant to the applicable provisions hereof and, with respect to any Security or Guarantee,
by the terms and provisions of such Security or such Guarantee, as the case may be, established
pursuant to Section 301 (as such terms and provisions may be amended pursuant to the applicable
provisions hereof), provided, however, that, if at any time more than one Person is acting as
Trustee under this instrument, Indenture shall mean, with respect to any one or more series of
Securities for which such Person is Trustee, this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of those particular
series of Securities for which such Person is Trustee established pursuant to Section 301,
exclusive, however, of any provisions or terms which relate solely to other series of Securities
for which such Person is not Trustee, regardless of when such terms or provisions were adopted.
Indexed Security means a Security the terms of which provide that the principal amount
thereof payable at Stated Maturity may be more or less than the principal face amount thereof at
original issuance.
Initial Guarantor or Initial Guarantors means the Guarantors listed on Schedule I hereto.
interest, with respect to any Original Issue Discount Security which by its terms bears
interest only after Maturity, means interest payable after Maturity.
Interest Payment Date, with respect to any Security, means the Stated Maturity of an
installment of interest on such Security.
Issuer means the Person named as the Issuer in the first paragraph of this instrument
until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Issuer shall mean such successor Person and any other obligor upon the
Securities.
Issuer Request and Issuer Order mean, respectively, a written request or order, as the
case may be, signed in the name of the Issuer by the Chairman, the Chief Executive Officer, the
President, the Chief Financial Officer or a Vice President and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Issuer, and delivered to the Trustee.
Lien means, with respect to any asset, any mortgage, lien (statutory or otherwise), pledge,
hypothecation, charge, security interest, preference, priority or encumbrance of any kind in
respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement, any lease in the nature thereof,
any option or other agreement to sell or give a security interest in and any filing of or agreement
to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction;
provided
that in no event shall an operating lease be deemed to constitute a Lien.
6
Maturity, with respect to any Security, means the date on which the principal of such
Security or an installment of principal becomes due and payable as provided in or pursuant to this
Indenture or such Security, whether at the Stated Maturity or by declaration of acceleration, upon
redemption at the option of the Issuer, upon repurchase or repayment at the option of the Holder or
otherwise, and includes a Redemption Date for such Security and a date fixed for the repurchase or
repayment of such Security at the option of the Holder.
Office or Agency, with respect to any Securities, means an office or agency of the Issuer
maintained or designated in a Place of Payment for such Securities pursuant to Section 1002 or any
other office or agency of the Issuer maintained or designated for such Securities pursuant to
Section 1002 or, to the extent designated or required by Section 1002 in lieu of such office or
agency, the Corporate Trust Office of the Trustee.
Officer means the
Chairman, the Chief Executive Officer, the President, any Executive Vice
President, the Chief Financial Officer or a Vice President, the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary of the Issuer, a Guarantor or
such Guarantors general partner, managing partner or managing member, as applicable.
Officers Certificate means a certificate signed by the Chairman, the Chief Executive
Officer, the President, the Chief Financial Officer, a Vice President, the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the
Issuer or a Guarantor, as applicable that, if required by the Trust Indenture Act, complies with the
requirements of Section 314(e) of the Trust Indenture Act and is delivered to the Trustee.
Opinion of Counsel means a written opinion of counsel, who may be an employee of or counsel
for the Issuer or a Guarantor or other counsel who shall be reasonably acceptable to the Trustee,
that, if required by the Trust Indenture Act, complies with the requirements of Section 314(e) of
the Trust Indenture Act.
Original Issue Discount Security means a Security issued pursuant to this Indenture which
provides for an amount less than the principal face amount thereof to be due and payable upon
declaration of acceleration pursuant to Section 502.
Outstanding, when used with respect to any Securities, means, as of the date of
determination, all such Securities theretofore authenticated and delivered under this Indenture,
except:
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(1)
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any such Security theretofore cancelled by the Trustee or the
Security Registrar or delivered to the Trustee or the Security Registrar for
cancellation;
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(2)
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any such Security for whose payment at the Maturity thereof
money in the necessary amount has been theretofore deposited pursuant hereto
(other than pursuant to Section 402) with the Trustee or any Paying Agent
(other than the Issuer) in trust or set aside and segregated in trust by the
Issuer (if the Issuer shall act as its own Paying Agent) for the Holders of
such Securities, provided that, if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
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(3)
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any such Security with respect to which the Issuer has effected
defeasance or covenant defeasance pursuant to Section 402, except to the extent
provided in Section 402;
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7
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(4)
|
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any such Security which has been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, unless there shall have been
presented to the Trustee proof satisfactory to it that such Security is held by
a bona fide purchaser in whose hands such Security is a valid obligation of the
Issuer; and
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(5)
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Securities as to which any property deliverable upon conversion
thereof has been delivered (or such delivery has been made available), or as to
which any other particular conditions have been satisfied, in each case as may
be provided for such Securities as contemplated in Section 301;
|
provided
,
however
, that in determining whether the Holders of the requisite principal amount of
Outstanding Securities have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, (i) the principal amount of an Original Issue Discount Security that may be
counted in making such determination and that shall be deemed to be Outstanding for such purposes
shall be equal to the amount of the principal thereof that pursuant to the terms of such Original
Issue Discount Security would be declared (or shall have been declared to be) due and payable upon
a declaration of acceleration thereof pursuant to Section 502 at the time of such determination,
and (ii) the principal amount of any Indexed Security that may be counted in making such
determination and that shall be deemed Outstanding for such purpose shall be equal to the principal
face amount of such Indexed Security at original issuance, unless otherwise provided in or pursuant
to this Indenture, and (iii) the principal amount of a Security denominated in a Foreign Currency
that may be counted in making such determination and that shall be deemed Outstanding for such
purposes shall be the Dollar equivalent, determined on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue Discount Security, the
Dollar equivalent on the date of original issuance of such Security of the amount determined as
provided in (i) above) of such Security, and (iv) Securities owned by the Issuer, a Guarantor of
the Securities or any other obligor upon the Securities, or any Affiliate of the Issuer or any such
Guarantor or such other obligor shall be disregarded and deemed not to be Outstanding, except that,
in determining whether the Trustee shall be protected in making any such determination or relying
upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities
which a Responsible Officer of the Trustee knows to be so owned shall be so disregarded.
Securities so owned which shall have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee (A) the pledgees right so to act with
respect to such Securities and (B) that the pledgee is not the Issuer or a Guarantor of the
Securities any other obligor upon the Securities or an Affiliate (other than a Trust) of the Issuer
or a Guarantor of the Securities or such other obligor.
Paying Agent means any Person authorized by the Issuer to pay the principal of, or any
premium or interest on, or any Additional Amounts with respect to, any Security on behalf of the
Issuer.
Person and person mean any individual, Corporation joint venture, joint-stock company,
trust, unincorporated organization or government or any agency or political subdivision thereof.
8
Place of Payment, with respect to any Security, means the place or places where the
principal of, or any premium or interest on, or any Additional Amounts with respect to such
Security are payable as provided in or pursuant to this Indenture or such Security.
Predecessor Security of any particular Security means every previous Security evidencing all
or a portion of the same indebtedness as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and delivered under Section 306 in exchange
for or in lieu of a lost, destroyed, mutilated or stolen Security shall be deemed to evidence the
same indebtedness as the lost, destroyed, mutilated or stolen Security.
Redemption Date, with respect to any Security or portion thereof to be redeemed, means the
date fixed for such redemption by or pursuant to this Indenture or such Security.
Redemption Price, with respect to any Security or portion thereof to be redeemed, means the
price at which it is to be redeemed as determined by or pursuant to this Indenture or such
Security.
Regular Record Date for the interest payable on any Security on any Interest Payment Date
therefor means the date, if any, specified in or pursuant to this Indenture or such Security as the
record date for the payment of such interest.
Responsible Officer means any officer of the Trustee in its Corporate Trust Office having
direct responsibility for matters pertaining to this Indenture and also means, with respect to a
particular corporate trust matter, any other officer or employee of the Trustee to whom such matter
is referred because of his or her knowledge of and familiarity with the particular subject.
Securities Act means the Securities Act of 1933, as amended, or any successor thereto, in
each case as amended from time to time.
Security or Securities means any note or notes, bond or bonds, debenture or debentures, or
any other evidences of indebtedness, as the case may be, authenticated and delivered under this
Indenture;
provided, however
, that, if at any time there is more than one Person acting as Trustee
under this Indenture, Securities, with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of Securities of any series
as to which such Person is not Trustee.
Security Register and Security Registrar have the respective meanings specified in Section
305.
Significant Subsidiary means, as of any date of determination, a Subsidiary of the Issuer
that would constitute a significant subsidiary, as such term is defined under Rule 1-02(w) of
Regulation S-X of the Commission as in effect on the date of this Indenture.
Special Record Date for the payment of any Defaulted Interest on any Security means a date
fixed by the Trustee pursuant to
Section 307(1).
Stated Maturity, with respect to any Security or any installment of principal thereof or
interest thereon or any Additional Amounts with respect thereto, means the date established by
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or pursuant to this Indenture or such Security as the fixed date on which the principal of
such Security or such installment of principal or interest is, or such Additional Amounts are, due
and payable.
Subsidiary
means, with respect
to any Person, (i) any corporation, association, or other business entity (other than a partnership, joint venture, limited
liability company or similar entity) of which more than 50% of the total voting power of shares of capital stock entitled
(without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof
is at the time of determination owned or controlled, directly or indirectly, by such Person or one or more of the
other Subsidiaries of that Person or a combination thereof or is consolidated under GAAP with such Person at
such time; and (ii) any partnership, joint venture, limited liability company or similar entity of which more
than 50% of the equity ownership, whether in the form of membership, general, special or limited partnership
interests or otherwise, is owned or controlled, directly or indirectly, by such Person or one or more of the
other Subsidiaries of that Person or a combination thereof or is consolidated under GAAP with such person at such time.
Trust Indenture Act means the Trust Indenture Act of 1939, as amended, and any reference
herein to the Trust Indenture Act or a particular provision thereof shall mean such Act or
provision, as the case may be, as amended or replaced from time to time or as supplemented from
time to time by rules or regulations adopted by the Commission under or in furtherance of the
purposes of such Act or provision, as the case may be.
Trustee means the Person named as the Trustee in the first paragraph of this instrument
until a successor Trustee shall have become such with respect to one or more series of Securities
pursuant to the applicable provisions of this Indenture, and thereafter Trustee shall mean each
Person who is then a Trustee hereunder; provided, however, that if at any time there is more than
one such Person, Trustee shall mean each such Person and as used with respect to the Securities
of any series shall mean the Trustee with respect to the Securities of such series.
United States, means the United States of America (including the states thereof and the
District of Columbia), its territories, its possessions and other areas subject to its
jurisdiction; and the term United States of America means the United States of America.
United States Alien, except as otherwise provided in or pursuant to this Indenture or any
Security, means any Person who, for United States Federal income tax purposes, is a foreign
corporation, a non-resident alien individual, a non-resident alien fiduciary of a foreign estate or
trust, or a foreign partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a non-resident alien
fiduciary of a foreign estate or trust.
Vice President, when used with respect to the Issuer or the Trustee, means any vice
president, whether or not designated by a number or a word or words added before or after the title
Vice President.
Section 102
Compliance Certificates and Opinions.
Except as otherwise expressly provided in or pursuant to this Indenture, upon any application
or request by the Issuer or a Guarantor to the Trustee to take any action under any provision of
this Indenture, the Issuer or such Guarantor, as the case may be, shall furnish to the Trustee, if
requested by the Trustee, an Officers Certificate or a
Guarantors Officers Certificate, as the
case may be, stating that all conditions precedent, if any, provided for in this
10
Indenture relating to the proposed action have been complied with and an Opinion of Counsel
stating that, in the opinion of such counsel, all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to which the
furnishing of such documents or any of them is specifically required by any provision of this
Indenture relating to such particular application or request, no additional certificate or opinion
need be furnished by the Issuer, and except that no such Officers Certificate or Opinion of
Counsel shall be required in connection with the execution of a supplemental indenture
contemporaneously with the execution of this Indenture.
Section 103
Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Issuer or a Guarantor may be based, insofar as
it relates to legal matters, upon an Opinion of Counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion with respect to the matters upon which
his certificate or opinion is based is erroneous. Any such Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Issuer, a Guarantor, a governmental official or officers or any other
Person or Persons stating that the information with respect to such factual matters is in the
possession of the Issuer or such Guarantor, as the case maybe be, unless such counsel knows, or in
the exercise of reasonable care should know, that the certificate, opinion or representations with
respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture or any
Security, they may, but need not, be consolidated and form one instrument.
Section 104
Acts of Holders.
(1) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by or pursuant to this Indenture to be made, given or taken by Holders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly required, to the Issuer and the
Guarantors. Such instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the Act of the Holders signing such
instrument or instruments or so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to Section 315 of the
Trust Indenture Act) conclusive in favor of the Trustee, the Issuer or a
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Guarantor and any agent of the Trustee, the Issuer or such Guarantor, if made in the manner
provided in this Section.
(2) Without limiting the generality of this Section 104, unless otherwise provided in or
pursuant to this Indenture, a Holder, including a Depository that is a Holder of a global Security,
may make, give or take, by a proxy or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other Act provided in or pursuant to this
Indenture or the Securities to be made, given or taken by Holders, and a Depository that is a
Holder of a global Security may provide its proxy or proxies to the beneficial owners of interests
in any such global Security through such Depositorys standing instructions and customary
practices.
(3) The fact and date of the execution by any Person of any such instrument or writing may be
proved in any reasonable manner which the Trustee deems sufficient and in accordance with such
reasonable rules as the Trustee may determine; and the Trustee may in any instance require further
proof with respect to any of the matters referred to in this Section.
(4) The ownership, principal amount and serial numbers of Securities held by any Person, and
the date of the commencement and the date of the termination of holding the same, shall be proved
by the Security Register.
(5) If the Issuer shall solicit from the Holders of any Securities any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Issuer may at its option (but
is not obligated to), by Board Resolution fix in advance a record date for the determination of
Holders of Securities entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after such record date, but
only the Holders of Securities of record at the close of business on such record date shall be
deemed to be Holders for the purpose of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that purpose the
Outstanding Securities shall be computed as of such record date; provided that no such
authorization, agreement or consent by the Holders of Securities shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later than six months
after the record date.
(6) Any request, demand, authorization, direction, notice, consent, waiver or other Act by the
Holder of any Security shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done or suffered to be done by the Trustee, any Security Registrar,
any Paying Agent or the Issuer in reliance thereon, whether or not notation of such Act is made
upon such Security.
Section 105
Notices, etc., to Trustee, Issuer and Guarantors.
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Any request, demand, authorization, direction, notice, consent, waiver or other Act of Holders
or other document provided or permitted by this Indenture to be made upon, given or furnished to,
or filed with,
(1) the Trustee by any Holder, a Guarantor or the Issuer shall be sufficient for every
purpose hereunder if made, given, furnished or filed in writing to or
with and received by the Trustee at
its Corporate Trust Office, or
(2) the Issuer or a Guarantor by the Trustee or any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in writing and
delivered in person or mailed by first-class mail (registered or certified, return receipt
requested), fax or overnight air courier guaranteeing next day delivery to the Issuer or
such Guarantor, as the case may be, addressed to the attention of its General Counsel at the
address of the Issuers principal office set forth below, or as set forth in any
supplemental indenture or at any other address furnished in writing to the Trustee by the
Issuer as such Guarantor, as the case may be.
If to the Issuer or any Guarantor:
One Park Plaza
Nashville, Tennessee 37203
Fax No.: (615) 344-1531; Attention: General Counsel
Fax No.: (866) 741-5906; Attention: Treasurer
All notices and communications
(other than those sent to Holders) shall be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five calendar days after being deposited in the mail, postage prepaid, if mailed by first-class mail; when
receipt acknowledged, if faxed; and the next Business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery;
provided
that any notice or communication delivered to the Trustee
shall be deemed effective upon actual receipt thereof.
Section 106
Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this Indenture, where this Indenture
provides for notice to Holders of Securities of any event, such notice shall be sufficiently given
(unless otherwise herein expressly provided) to Holders of Securities if in writing and mailed,
first-class postage prepaid, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery or delivered by electronic transmission to each Holder of a
Security affected by such event, at such Holders address as it appears in the Security Register,
not later than the latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. Any notice or communication shall also be so mailed to any Person described in
Trust Indenture Act Section 313(c), to the extent required by the Trust Indenture Act. Failure to
mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.
In any case where notice to Holders of Securities is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Security
shall affect the sufficiency of such notice with respect to other Holders of Securities In the case
by reason of the suspension of regular mail service or by reason of any other cause it shall be
impracticable to give such notice by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice may be waived in writing
by the Person entitled to receive such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by Holders of Securities shall be filed
with the Trustee, but such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Where this Indenture provides for notice of any event to a Holder of a Global Security, such
notice shall be sufficiently given if given to the Depository for such Security (or its designee),
pursuant to the Applicable Procedures of the Depository, not later than the latest date, if any,
and not earlier than the earliest date, if any, prescribed for the giving of such notice.
If a notice or communication is made in the manner provided above within the time prescribed,
it is duly given, whether or not the addressee receives it.
If the Issuer gives notice or communication to Holders, it shall provide a copy to the Trustee
and each Agent, as applicable, at the same time.
Section 107
Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any duties under any required
provision of the Trust Indenture Act imposed hereon by Section 318(c) thereof, such required
provision shall control.
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Section 108
Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 109
Successors and Assigns.
All covenants and agreements in this Indenture by the Issuer shall bind its successors and
assigns, whether so expressed or not. All agreements of the Trustee,
Registrar, Paying Agent and Transfer Agent, as applicable, in this Indenture shall bind
their successors and assigns, whether so expressed or not.
Section 110
Separability Clause.
In case any provision in this Indenture, any Security shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not, to
the fullest extent permitted by applicable law, in any way be affected or impaired thereby.
Section 111
Benefits of Indenture.
Nothing in this Indenture or any Security, express or implied, shall give to any Person, other
than the parties hereto, any Agent, Any Authenticating Agent and their successors hereunder
and the Holders of Securities, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
Section 112
Governing Law.
THIS
INDENTURE, THE SECURITIES AND THE GUARANTEES OF THE SECURITIES SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 113
Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or any Securities, in any case
where any Interest Payment Date, Stated Maturity or Maturity of, or any other day on which a
payment is due with respect to, any Security shall be a day which is not a Business Day at any
Place of Payment, then (notwithstanding any other provision of this Indenture or any Security other
than a provision in any Security or in the Board Resolution, Officers Certificate or supplemental
indenture establishing the terms of any Security that specifically states that such provision shall
apply in lieu hereof) payment need not be made at such Place of Payment on such date, but such
payment may be made on the next succeeding day that is a Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date, at the Stated Maturity or
Maturity or on any such other payment date, as the case may be, and no interest shall accrue on the
amount payable on such date or at such time for the period from and after such Interest Payment
Date, Stated Maturity, Maturity or other payment date, as the case may be, to the next succeeding
Business Day.
Section 114
Waiver of Jury Trial.
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EACH
OF THE ISSUER, THE GUARANTORS, THE TRUSTEE AND THE REGISTRAR, PAYING
AGENT AND TRANSFER AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE SECURITIES.
Section 115
Force Majeure
.
In
no event shall the Trustee, Paying Agent, Registrar or Transfer Agent
be responsible or liable for any failure or delay in the performance
of its obligations under this Indenture arising out of or caused by,
directly or indirectly, forces beyond its reasonable control,
including without limitation strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or
natural catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities, communications or computer (software or
hardware) services.
Section 116
Counterparts.
This Indenture may be executed in several counterparts, each of which shall be an original and
all of which shall constitute but one and the same instrument.
Section 117
Extension of Payment Dates.
In the event that (i) the terms of any Security or any Guarantee established in or pursuant to
this Indenture permit the Issuer , any Guarantor or any Holder thereof to extend the date on which
any payment of principal of, or premium, if any, or interest, if any, on, or Additional Amounts, if
any, with respect to such Security or Guarantee, as the case may be, is due and payable and (ii)
the due date for any such payment shall have been so extended, then all references herein to the
Stated Maturity of such payment (and all references of like import) shall be deemed to refer to the
date as so extended.
Section 118
Immunity of Shareholders, Directors, Officers and Agents of the Issuer and Any
Guarantor.
No recourse under or upon any obligation, covenant or agreement contained in this Indenture or
in any Security or Guarantee, or because of any indebtedness evidenced thereby, or for any claim
based thereon or otherwise in respect thereof, shall be had against any past, present or future
shareholder, incorporator, employee, officer or director, as such, of the Issuer or any predecessor
or successor to the Issuer or any Guarantor, either directly or through the Issuer or any Guarantor
or any such predecessor or successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the Securities by the Holders
and as part of the consideration for the issue of the Securities; it being expressly understood
that, without limitation to the foregoing, this Indenture, the Securities and the Guarantees and
the obligations created hereunder and thereunder are solely corporate, limited liability company,
partnership, limited partnership or similar obligations, as the case may be, of the Issuer and the
respective Guarantors and that no such personal liability whatever shall attach to, or is or shall
be incurred by, any past, present or future shareholder, incorporator, employee, officer or
director, as such, of the Issuer or any Guarantor or any of their respective predecessors or
successors, or any of them, because of the creation of the indebtedness hereby authorized, or under
or by reason of the obligations, covenants or agreements contained in this Indenture or in any
Security or Guarantee implied herefrom or therefrom and that any and all such personal liability of
every type and nature, either at common law or in equity or by constitution or statute, of, and any
and all such rights and claims against, every such past, present or future shareholder,
incorporator, employee, officer or director, as such, because of the creation of the indebtedness
hereby authorized, or under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any Security or Guarantee or implied herefrom or therefrom, are hereby
expressly waived and released as a condition of, and as a consideration for,
15
the execution of this Indenture and the issuance of the Securities. As used in this Section
118, all references to shareholders shall be deemed to mean, with respect to any Person, any
past, present or future Holder or owner of an equity interest in such Person, including, without
limitation, owners or holders of capital stock, limited or general partnership interests and
limited liability company interests.
ARTICLE TWO
SECURITIES FORMS
Section 201
Forms Generally.
The Securities of each series shall be in substantially such form or forms as shall be
established by or pursuant to a Board Resolution or, subject to Section 303, set forth in, or
determined in the manner provided in, an Officers Certificate pursuant to a Board Resolution, or
in one or more indentures supplemental hereto, and any Guarantee
or any
Security issued pursuant to this Indenture shall be in the form established by or pursuant to a
Guarantors Board Resolution or a Guarantors
Officers Certificate pursuant to a Guarantors Board Resolution, or established
in one or more indentures supplemental hereto, and in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with applicable tax laws or the rules of
any securities exchange or Depository therefor or as may, consistently herewith, be determined by
the Officer executing such Securities, as evidenced by his or her execution thereof. If the form of
Securities of any series is established by action taken pursuant to a Board Resolution, a copy of
an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary
of the Issuer and delivered to the Trustee at or prior to the delivery of the Issuer Order
contemplated by Section 303 for the authentication and delivery of such Securities. If all of the
Securities of any series established by action taken pursuant to a Board Resolution are not to be
issued at one time, it shall not be necessary to deliver a record of such action at the time of
issuance of each Security of such series, but an appropriate record of such action shall be
delivered at or before the time of issuance of the first Security of such series.
Anything herein to the contrary notwithstanding, there shall be no requirement that any
Security have endorsed thereon or attached thereto a Guarantee or a notation of a Guarantee, but
such a Guarantee or notation of a Guarantee may be endorsed thereon or attached thereto as
contemplated by this Section 201.
Section 202
Form of Trustees Certificate of Authentication.
Subject to Section 612, the Trustees certificate of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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Section 203
Form of Legend for Global Notes.
Unless otherwise specified as contemplated by Section 301 for the Securities evidenced thereby
or as required by Applicable Procedures, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
[
Insert, if applicable
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (
DTC
), NEW YORK, NEW YORK, TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
[
Insert, if applicable
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED,
AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON
OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.]
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ARTICLE THREE
THE SECURITIES
Section 301
Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued in one or more series.
With respect to any Securities to be authenticated and delivered hereunder, there shall be
established in or pursuant to one or more Board Resolutions, as applicable, or Guarantors Board Resolutions, or
set forth in an Officers Certificate or one or more
Guarantors Officers Certificate pursuant to a Board Resolution, as applicable, or
established in one or more indentures supplemental hereto, prior to the issuance of any Securities
of a series,
(1) the title of the Securities of such series;
(2) any limit upon the aggregate principal amount of the Securities of such series
which may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Securities of such series pursuant to Section 304, 305, 306, 905 or 1107, upon
repayment in part of any Security of such series pursuant to Article Thirteen or upon
surrender in part of any Security for conversion or exchange into Common Shares or other
securities or property pursuant to its terms), and if such series may not be reopened from
time to time for the issuance of additional Securities of such series;
(3) if any of such Securities are to be issuable in global form, when any of such
Securities are to be issuable in global form and (i) whether such Securities are to be
issued in temporary or permanent global form or both, (ii) whether beneficial owners of
interests in any such global Security may exchange such interests for Securities of the same
series and of like tenor and of any authorized form and denomination, and the circumstances
under which any such exchanges may occur, if other than in the manner specified in Section
305, (iii) the name of the Depository with respect to any such global Security and (iv) if
applicable and in addition to the Persons specified in Section 305, the Person or Persons
who shall be entitled to make any endorsements on any such global Security and to give the
instructions and take the other actions with respect to such global Security contemplated by
the first paragraph of Section 203;
(4) the date or dates, or the method or methods, if any, by which such date or dates
shall be determined, on which the principal and premium, if any, of such Securities is
payable;
(5) the rate or rates at which such Securities shall bear interest, if any, or the
method or methods, if any, by which such rate or rates are to be determined, the date or
dates, if any, from which such interest shall begin to accrue or the method or methods, if
any, by which such date or dates are to be determined, the Interest Payment Dates, if any,
on which such interest shall be payable and the Regular Record Date, if any, for the
interest payable on Securities on any Interest Payment Date, the notice, if any, to Holders
18
regarding the determination of interest on a floating rate Security and the manner of
giving such notice, and the basis upon which interest shall be calculated if other than that
of a 360-day year of twelve 30-day months;
(6) if in addition to or other than the place where the Corporate Trust Office of the
Trustee may from time to time be located, the place or places where the principal of,
premium, if any, and interest, if any, on, and Additional Amounts, if any, with respect to,
such Securities shall be payable, any of such Securities that are Securities may be
surrendered for registration of transfer or exchange, any of such Securities may be
surrendered for conversion or exchange and notices or demands to or upon the Issuer in
respect of such Securities and this Indenture may be served;
(7) whether any of such Securities are to be redeemable at the option of the Issuer
and, if so, the date or dates on which, the period or periods within which, the price or
prices at which and the other terms and conditions upon which such Securities may be
redeemed, in whole or in part, at the option of the Issuer;
(8) if the Issuer is obligated to redeem or purchase any of such Securities pursuant to
any sinking fund or analogous provision or at the option of any Holder thereof and, if so,
the date or dates on which, the period or periods within which, the price or prices at which
and the other terms and conditions upon which such Securities shall be redeemed or
purchased, in whole or in part, pursuant to such obligation, and any provisions for the
remarketing of such Securities so redeemed or purchased;
(9) if other than denominations of $2,000 and any integral multiple of $1,000 in excess
thereof, the denominations in which any Securities of the series shall be issuable;
(10) if other than the principal amount thereof, the portion of the principal amount of
any of such Securities that shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 502 or the method by which such portion is to be
determined;
(11) if other than Dollars, the Foreign Currency in which payment of the principal of,
any premium or interest on or any Additional Amounts with respect to any of such Securities
shall be payable;
(12) if the principal of, any premium or interest on or any Additional Amounts with
respect to any of such Securities are to be payable, at the election of the Issuer or a
Holder thereof or otherwise, in Dollars or in a Foreign Currency other than that in which
such Securities are stated to be payable, the date or dates on which, the period or periods
within which, and the other terms and conditions upon which, such election may be made, and
the time and manner of determining the exchange rate between the Currency in which such
Securities are stated to be payable and the Currency in which such Securities or any of them
are to be paid pursuant to such election, and any deletions from or modifications of or
additions to the terms of this Indenture to provide for or to
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facilitate the issuance of Securities denominated or payable, at the election of the
Issuer or a Holder thereof or otherwise, in a Foreign Currency;
(13) if the amount of payments of principal of, any premium or interest on or any
Additional Amounts with respect to such Securities may be determined with reference to an
index, formula or other method or methods (which index, formula or method or methods may be
based, without limitation, on one or more Currencies, commodities, equity indices or other
indices), and, if so, the terms and conditions upon which and the method by which such
amounts shall be determined and paid or payable;
(14) any deletions from, modifications of or additions to the Events of Default or
covenants of the Issuer or any Guarantors with respect to such Securities or the related
Guarantees (whether or not such Events of Default or covenants are consistent with the
Events of Default or covenants set forth herein), and, if any additional covenants not
contained in this Indenture as of its date shall be applicable with respect to such
Securities, whether Section 1006 shall be applicable with respect to any such additional
covenants;
(15)
if any one or more of the provisions of Section 401 relating to satisfaction and discharge, Section
402(2) relating to defeasance or Section 402(3) relating to covenant defeasance shall not be
applicable to the Securities of such series, and any covenants in addition to or other than
those covenants, if any, specified in Section 402(3) relating to the Securities of such
series which shall be subject to covenant defeasance, and, if the Securities of such series
are subject to repurchase or repayment at the option of the Holders thereof pursuant to
Article Thirteen, if the Issuers obligation to repurchase or repay such Securities will not
be subject to satisfaction and discharge pursuant to Section 401 or to defeasance pursuant
to Section 402, and, if the Holders of such Securities have the right to convert or exchange
such Securities into Common Shares or other securities or property, if the right to effect
such conversion or exchange will be subject to satisfaction and discharge pursuant to
Section 401 or to defeasance or covenant defeasance pursuant to Section 402, and any
deletions from, or modifications or additions to, the provisions of Article Four in respect
of the Securities of such series;
(16) if any of such Securities are issuable in global form and are to be issuable in
definitive form (whether upon original issue or upon exchange of a temporary Security) only
upon receipt of certain certificates or other documents or satisfaction of other conditions,
then the form and terms of such certificates, documents or conditions;
(17) whether and under what circumstances the Issuer or any Guarantor of such
Securities will pay Additional Amounts on such Securities or its Guarantee of such
Securities, as the case may be, to any Holder who is a United States Alien in respect of
specified taxes, assessments or other government charges and, if so, whether the Issuer will
have the option to redeem such Securities rather than pay such Additional Amounts;
(18) if there is more than one Trustee, the identity of the Trustee and, if not the
Trustee, the identity of each Security Registrar, Paying Agent,
Transfer Agent or Authenticating Agent, as applicable, with
respect to such Securities;
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(19) the Person to whom any interest on any Security of such series shall be payable,
if other than the Person in whose name the Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for such interest, the
manner in which, and the extent to which, or the manner in which, any interest payable on a
temporary global Security will be paid if other than in the manner provided in this
Indenture;
(20) the names of the Guarantors of the Securities of such series (which may, but need
not, include any or all of the Initial Guarantors) and the terms of the Guarantees of the
Securities of such series, including, without limitation, any deletions from, or
modifications or additions to, the provisions of Article Sixteen or any other provisions of
this Indenture in connection with the Guarantees of the Securities of such series;
(21) whether the Securities of such series or any Guarantees of such Securities are to
be secured by any property, assets or other collateral and, if so, the applicable
collateral, any deletions from, or modifications or additions to, the provisions of Article
Sixteen hereof or any other provisions of this Indenture in connection therewith or in
connection with any other instrument or agreement entered into in connection therewith; and
(22) any other terms of such Securities and the Guarantees of such Securities (whether
or not such other terms are consistent or inconsistent with any other terms of this
Indenture) and any deletions from or modifications or additions to this Indenture in respect
of such Securities or such Guarantees.
All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution referred to above or
pursuant to authority granted by one or more Board Resolutions and, subject to Section 303, set
forth, or determined in the manner provided, in the Officers
Certificate pursuant to a Board Resolution referred to above or in
any such indenture supplemental hereto. All Securities of any one series need not be issued at one
time and, unless otherwise provided in or pursuant to the Board Resolution referred to above and,
subject to Section 303, set forth, or determined in the manner provided, in the Officers
Certificate pursuant to a Board Resolution referred to above or pursuant to authority granted by one or more Board Resolutions or
in any such indenture supplemental hereto with respect to a series of Securities, additional
Securities of a series may be issued, at the option of the Issuer, without the consent of any
Holder, at any time and from time to time.
If any of the terms of the Securities of any series or any Guarantee of the Securities of any
series shall be established by action taken by or pursuant to one or more Board Resolutions or
Guarantors Board Resolutions, such Board Resolutions or Guarantors Board Resolutions shall be
delivered to the Trustee at or prior to the delivery of the
Officers Certificate or the
Guarantors Officers Certificate setting forth the terms of such series.
Section 302
Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, the principal of, any premium and
interest on and any Additional Amounts with respect to the Securities shall be payable in
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Dollars. Unless otherwise provided in or pursuant to this Indenture, Securities denominated
in Dollars shall be issuable in registered form without coupons in denominations of $2,000 and any
integral multiples of $1,000 in excess thereof. Securities not denominated in Dollars shall be
issuable in such denominations as are established with respect to such Securities in or pursuant to
this Indenture.
Section 303
Execution, Authentication, Delivery and Dating.
Securities
shall be executed on behalf of at least one Officer of the Issuer and may (but need not) have its
corporate or other seal or a facsimile thereof reproduced thereon and
may be signed by manual or facsimile signature.
If any Guarantees are to be endorsed on or attached to any Securities, and if such Guarantees
provide for the execution thereof by the applicable Guarantors (it being understood and agreed that
any such Guarantee may, but need not, provide for the execution by the applicable Guarantors), such
Guarantees shall be executed on behalf of an Officer of each applicable Guarantor and may (but need not)
have its corporate or other
seal or facsimile thereof reproduced thereon. The signature of any of these officers on any
Guarantee may be manual or facsimile.
Securities and any Guarantees bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Issuer or the applicable Guarantor, as the case may be,
shall, to the fullest extent permitted by applicable law, bind the Issuer or such Guarantor, as the
case may be, notwithstanding that such individuals or any of them have ceased to hold such offices
prior to the authentication and delivery of such Securities or did not hold such offices at the
date of such Securities
At any time and from time to time after the execution and delivery of this Indenture, the
Issuer may deliver Securities executed by the Issuer, to the Trustee for authentication and,
provided that the Board Resolution or Officers Certificate
pursuant to a Board Resolution (and each Guarantors Board Resolution
or Guarantors Officers Certificate pursuant to a
Guarantors Board Resolution) or supplemental indenture or indentures with respect to such
Securities referred to in Section 301 and a Issuer Order for the authentication and delivery of
such Securities have been delivered to the Trustee, the Trustee in accordance with the Issuer Order
and subject to the provisions hereof and of such Securities shall authenticate and deliver such
Securities.
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The Trustee shall not be required to authenticate or to cause an Authenticating Agent to
authenticate any Securities if the issue of such Securities pursuant to this Indenture will affect
the Trustees own rights, duties or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee or if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose, unless there appears on such Security a certificate of authentication
substantially in the form provided for in Section 202 or 612 executed by or on behalf of the
Trustee or by the Authenticating Agent by the manual signature of one of its authorized
signatories. Such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder..
Section 304
Temporary Securities.
Pending the preparation of definitive Securities, the Issuer may execute and deliver to the
Trustee and, upon Issuer Order, the Trustee shall authenticate and deliver, in the manner provided
in Section 303, temporary Securities in lieu thereof which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of
the definitive Securities in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers of the Issuer executing such
Securities may determine, as conclusively evidenced by their execution of such Securities. Such
temporary Securities may be in global form.
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Except in the case of temporary Securities in global form, which shall be exchanged in
accordance with the provisions set forth in this Indenture or the provisions established pursuant
to Section 301, if temporary Securities are issued, the Issuer shall cause definitive Securities to
be prepared without unreasonable delay. Except as otherwise provided in or pursuant to this
Indenture, after the preparation of definitive Securities of the same series and containing terms
and provisions that are identical to those of any temporary Securities, such temporary Securities
shall be exchangeable for such definitive Securities upon surrender of such temporary Securities at
an Office or Agency for such Securities, without charge to any Holder thereof. Except as otherwise
provided in or pursuant to this Indenture, upon surrender for cancellation of any one or more
temporary Securities, the Issuer shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of authorized denominations of
the same series and containing identical terms and provisions. Unless otherwise provided in or
pursuant to this Indenture with respect to a temporary global Security, until so exchanged the
temporary Securities of any series shall in all respects be entitled to the same benefits under
this Indenture as definitive Securities of such series.
Section 305
Registration, Transfer and Exchange.
The Issuer shall cause to be kept at the Corporate Trust Office of the Trustee a register (the
register maintained in such office and in any other office or agency of the Issuer in a Place of
Payment being herein sometimes collectively referred to as the Security Register) in which,
subject to such reasonable regulations as it may prescribe, the Issuer shall provide for the
registration of transfers and exchanges of Securities. The Registrar
named in the first paragraph of this instrument is hereby appointed Security
Registrar for the purpose of registering transfers of and exchanging Securities as herein
provided.
Except as otherwise provided in or pursuant to this Indenture, upon surrender for registration
of transfer of any Security of a series at the office or agency of the Issuer in a Place of Payment
for such series, the Issuer shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of the same series, of
any authorized denominations and of like tenor and principal amount.
Except as otherwise provided in or pursuant to this Indenture, at the option of the Holder,
Securities of any series may be exchanged for other Securities of the same series, of any
authorized denominations and of like tenor and principal amount, upon surrender of the Securities
to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange,
the Issuer shall execute, and the Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.
The Issuer shall execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Issuer evidencing the same debt and entitling the Holders thereof to the
same benefits under this Indenture and the applicable Guarantees as the Securities surrendered upon
such registration of transfer or exchange.
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Every Security presented or surrendered for registration of transfer or for exchange or
redemption shall (if so required by the Issuer or the Trustee) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Issuer and the Security Registrar
for such Security duly executed by the Holder thereof or such Holders attorney duly authorized in
writing.
No service charge shall be made for any registration of transfer or exchange of Securities, or
any redemption or repayment of Securities, or any conversion or exchange of Securities for other
types of securities or property, but the Issuer may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section 304, 905 or 1107 not
involving any transfer.
If the Securities of any series (or of any series and specified tenor) are to be redeemed in
part, the Issuer shall not be required (A) to issue, register the transfer of or exchange any
Securities of such series (or of such series and specified tenor, as the case may be) during a
period beginning at the opening of business 15 days before the
day of the of a notice of
redemption of any such Securities selected for redemption under Section 1103 and ending at the
close of business on the day of such, or (B) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part.
Section 306
Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, subject to the provisions of this
Section 306, the Issuer shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series containing identical terms and of like principal amount
and bearing a number not contemporaneously outstanding.
If there be delivered to the Issuer and to the Trustee (i) evidence to their satisfaction of
the destruction, loss or theft of any Security, and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless from and against any
and all loss, liability or expense, then, in the absence of notice to the Issuer or the Trustee
that such Security has been acquired by a bona fide purchaser, the Issuer shall execute and the
Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Security, a new Security of the same series containing identical terms
and of like principal amount and bearing a number not contemporaneously outstanding.
In case any mutilated, destroyed, lost or stolen Security has become or is about to become due
and payable, the Issuer in its discretion may, instead of issuing a new Security, pay such
Security.
Upon the issuance of any new Security under this Section, the Issuer may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of counsel to the Issuer and the
fees and expenses of the Trustee and its counsel) connected therewith.
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Every new Security issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security shall constitute a separate obligation of the Issuer, whether or not the destroyed, lost
or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other Securities of such
series duly issued hereunder.
The provisions of this Section, as amended or supplemented pursuant to this Indenture with
respect to particular Securities or generally, shall (to the extent lawful) be exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307
Payment of Interest and Certain Additional Amounts; Rights to Interest and Certain
Additional Amounts Preserved.
Unless otherwise provided in or pursuant to this Indenture, any interest on and any Additional
Amounts with respect to any Security which shall be payable, and are punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose name such Security
(or one or more Predecessor Securities) is registered as of the close of business on the Regular
Record Date for such interest.
Unless otherwise provided in or pursuant to this Indenture, any interest on and any Additional
Amounts with respect to any Security which shall be payable, but shall not be punctually paid or
duly provided for, on any Interest Payment Date (herein called Defaulted Interest) shall
forthwith cease to be payable to the Holder thereof on the relevant Regular Record Date by virtue
of having been such Holder; and such Defaulted Interest may be paid by the Issuer, at its election
in each case, as provided in Clause (1) or (2) below:
(1) The Issuer may elect to make payment of any Defaulted Interest to the Person in
whose name such Security (or a Predecessor Security thereof) shall be registered at the
close of business on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Issuer shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on such Security and the date of the
proposed payment, and at the same time the Issuer shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior
to the date of the proposed payment, such money when so deposited to be held in trust for
the benefit of the Person entitled to such Defaulted Interest as in this Clause provided.
Thereupon, the Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the Issuer of such Special
Record Date and, in the name and at the expense of the Issuer shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date therefor to be
in writing to the Holder of such Security (or a Predecessor
Security thereof) at his address as it appears in the Register not less than 10 days prior
to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor having
26
been mailed as aforesaid, such Defaulted Interest shall be paid to the Person in whose
name such Security (or a Predecessor Security thereof) shall be registered at the close of
business on such Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Issuer may make payment of any Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any securities exchange on which such Security may
be listed, and upon such notice as may be required by such exchange, if, after notice given
by the Issuer to the Trustee of the proposed payment pursuant to this Clause, such payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305, each Security delivered
under this Indenture upon registration of transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried
by such other Security.
Section 308
Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the Issuer, the
Guarantors, the Trustee and any agent of the Issuer, any Guarantor or the Trustee may treat the
Person in whose name such Security is registered in the Security Register as the owner of such
Security for the purpose of receiving payment of principal of, any premium and (subject to Sections
305 and 307) interest on and any Additional Amounts with respect to such Security and for all other
purposes whatsoever, whether or not any payment with respect to such Security shall be overdue, and
none of the Issuer, the Guarantors, the Trustee or any agent of the Issuer any Guarantor or the
Trustee shall be affected by notice to the contrary.
No Holder of any beneficial interest in any global Security held on its behalf by a Depository
shall have any rights under this Indenture with respect to such global Security, and such
Depository may be treated by the Issuer, the Guarantors, the Trustee, and any agent of the Issuer
or the Trustee as the owner of such global Security for all purposes whatsoever. None of the
Issuer, the Guarantors, the Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Guarantors, the
Trustee, any Paying Agent or the Security Registrar from giving effect to any written
certification, proxy or other authorization furnished by the applicable Depository, as a Holder,
with respect to a global Security or impair, as between such Depository and the owners of
beneficial interests in such global Security, the operation of customary practices governing the
exercise of the rights of such Depository (or its nominee) as the Holder of such global Security.
Section 309
Cancellation.
All Securities surrendered for payment, redemption, registration of transfer, exchange or
conversion or for credit against any sinking fund payment shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee, and any such Securities, as well as Securities
27
surrendered directly to the Trustee for any such purpose, shall be cancelled promptly by the
Trustee. The Issuer may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Issuer may have acquired in any manner
whatsoever, and all Securities so delivered shall be cancelled promptly by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by or pursuant to this Indenture. All
cancelled Securities held by the Trustee shall be destroyed by the Trustee in accordance with
customary procedures.
Section 310
Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture or in the Securities of any
series, interest on the Securities shall be computed on the basis of a 360-day year of twelve
30-day months.
Section 311
Original Issue Discount.
If any of the Securities is an Original Issue Discount Security, the Issuer shall file with
the Trustee promptly at the end of each calendar year (1) a written notice specifying the amount of
original issue discount (including daily rates and accrual periods) accrued on such Outstanding
Original Issue Discount Securities as of the end of such year and (2) such other specific
information relating to such original issue discount as may then be relevant under the Internal
Revenue Code.
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401
Satisfaction and Discharge.
Unless, pursuant to Section 301, the provisions of this Section 401 shall not be applicable
with respect to the Securities of any series, upon the direction of the Issuer by a Issuer Order,
this Indenture shall cease to be of further effect with respect to any series of Securities
specified in such Issuer Order and any Guarantees of such Securities and the Trustee, on receipt of
a Issuer Order, at the expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series, when
(1) Either
(a) all Securities of such series theretofore authenticated and delivered
(other than (i) Securities that have been mutilated, destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and (ii) Securities for
whose payment money has theretofore been deposited in trust or segregated and held
in trust by the Issuer and thereafter repaid to the Issuer or discharged from such
trust, as provided in Section 1003) have been delivered to the Trustee for
cancellation; or
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(b) all Securities of such series not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year, or
(iii) if redeemable at the option of the Issuer, are to be called for
redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the name, and at
the expense, of the Issuer,
and the Issuer, in the case of (i), (ii) or (iii) above, has deposited or caused to
be deposited with the Trustee as trust funds in trust for such purpose, money in the
Currency in which such Securities are payable in an amount sufficient to pay and
discharge the entire indebtedness on such Securities, including the principal of,
any premium and interest on, and, to the extent that the Securities of such series
provide for the payment of Additional Amounts thereon and the amount of any such
Additional Amounts which are or will be payable with respect to the Securities of
such series is at the time of deposit reasonably determinable by the Issuer (in the
exercise by the Issuer of its sole and absolute discretion), any Additional Amounts
with respect to, such Securities to the date of such deposit (in the case of
Securities which have become due and payable) or to the Maturity thereof, as the
case may be;
(2) the Issuer has paid or caused to be paid all other sums payable hereunder by the
Issuer; and
(3)
the Issuer has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture as to such series have been complied with.
In the event there are Securities of two or more series Outstanding hereunder, the Trustee
shall be required to execute an instrument acknowledging satisfaction and discharge of this
Indenture only if requested to do so with respect to Securities of such series as to which it is
Trustee and if the other conditions thereto are met.
At such time as the Issuer shall have effected satisfaction and discharge of this Indenture
with respect to any series of Securities, each Guarantor of the Securities of such series shall
(except as provided in the next succeeding paragraph) be automatically and unconditionally released
and discharged from all of its obligations under its Guarantee of the Securities of such series and
all of its other obligations under this Indenture in respect of the Securities of such series,
without any action by the Issuer, any Guarantor or the Trustee and without the consent of the
Holders of any Securities.
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Notwithstanding the satisfaction and discharge of this Indenture with respect to any series of
Securities, the obligations of the Issuer to the Trustee under Section 606 and, if money shall have
been deposited with the Trustee pursuant to subclause (b) of clause (1) of this Section, the
respective obligations of the Trustee under Section 402 and the last paragraph of Section 1003
shall survive.
Section 402
Defeasance and Covenant Defeasance.
(1) Unless, pursuant to Section 301, either or both of (i) defeasance of the Securities of or
within a series under clause (2) of this Section 402 or (ii) covenant defeasance of the Securities
of or within a series under clause (3) of this Section 402 shall not be applicable with respect to
the Securities of such series, then such provisions, together with the other provisions of this
Section 402 (with such modifications thereto as may be specified pursuant to Section 301 with
respect to any Securities), shall be applicable to such Securities, and the Issuer may at its
option by Board Resolution, at any time, with respect to the Securities of or within such series,
elect to have Section 402(2) or Section 402(3) be applied to such Outstanding Securities upon
compliance with the conditions set forth below in this Section 402. Unless otherwise specified
pursuant to Section 301 with respect to the Securities of any series, defeasance under clause (2)
of this Section 402 and covenant defeasance under clause (3) of this Section 402 may be effected
with respect to any or all of the Outstanding Securities of any series. To the extent that the
terms of any Security established in or pursuant to this Indenture permit the Issuer, any of the
Guarantors or any Holder thereof to extend the date on which any payment of principal of, or
premium, if any, or interest, if any, on, or Additional Amounts, if any, with respect to such
Security is due and payable, then unless otherwise provided pursuant to Section 301, the right to
extend such date shall terminate upon defeasance or covenant defeasance, as the case may be.
(2) Upon the Issuers exercise of the above option applicable to this Section 402(2) with
respect to any Securities of or within a series, the Issuer shall be deemed to have been discharged
from its obligations with respect to such Outstanding Securities on the date the conditions set
forth in clause (4) of this Section 402 are satisfied (hereinafter, defeasance). For this
purpose, such defeasance means that the Issuer shall be deemed to have paid and discharged the
entire indebtedness represented by such Outstanding Securities, which shall thereafter be deemed to
be Outstanding only for the purposes of clause (5) of this Section 402 and the other Sections of
this Indenture referred to in clauses (i) through (iv) of this paragraph, and the Issue and the
Guarantors of the Securities of such series shall be deemed to have satisfied all of their
respective other obligations under such Securities and the Guarantees of such Securities and this
Indenture insofar as such Securities or such Guarantees are concerned (and the Trustee, at the
expense of the Issuer, shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged hereunder: (i) the rights
of Holders of such Outstanding Securities to receive, solely (except as provided in clause (ii)
below) from the trust fund described in clause (4)(a) of this Section 402 and as more fully set
forth in this Section 402 and Section 403, payments in respect of the principal of (and premium, if
any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Securities
when such payments are due, (ii) the obligations of the Issuer, the Guarantors of the Securities of
such series and the Trustee with respect to such Securities under Sections 305, 306, 1002 and 1003
and, if applicable to the Securities of such series, any rights of Holders of such Securities
(unless otherwise provided pursuant to Section 301 with respect to the Securities of such series)
30
to convert or exchange, and the obligations of the Issuer to convert or exchange, such
Securities into Common Shares or other securities or property, and, if expressly provided pursuant
to Section 301 with respect to the Securities of such series, any rights of Holders of the
Securities of such series to require the Issuer to repurchase or repay, and the obligations of the
Issuer to repurchase or repay, such Securities at the option of such Holders as contemplated by
Article Thirteen hereof, and, if the Securities of such series provide for the payment of
Additional Amounts pursuant to Section 1004, the Issuer will remain obligated, following defeasance
of this Indenture with respect to the Securities of such series, to pay, and the Guarantees of the
Securities of such series will continue to Guarantee (on the terms and subject to the conditions
set forth in this Indenture, subject to any other terms of this Indenture, including any terms
established pursuant to Section 301 with respect to the Securities of such series, providing for
the release and discharge of any Guarantor from its Guarantee of the Securities of such series and
its other obligations under this Indenture in respect to the Securities of such series) the payment
of, Additional Amounts with respect to such Securities as contemplated by Section 1004, to the
extent (and only to the extent) that the Additional Amounts payable with respect to such Securities
exceed the amount deposited in respect of such Additional Amounts pursuant to clause 4(a) of this
Section 402, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and
(iv) this Section 402 and Sections 403 and 404. The Issuer may exercise its option under this
Section 402(2) notwithstanding the prior exercise of its option under Section 402(3) with respect
to such Securities. Upon the effectiveness of defeasance with respect to any series of Securities,
each Guarantor of the Securities of such series shall (except as provided in clause (ii) of the
next preceding sentence) be automatically and unconditionally released and discharged from all of
its obligations under its Guarantee of the Securities of such series and all of its other
obligations under this Indenture in respect of the Securities of such series, without any action by
the Issuer, any Guarantor or the Trustee and without the consent of the Holders of any Securities.
(3) Upon the Issuers exercise of the above option applicable to this Section 402(3) with
respect to any Securities of or within a series, the Issuer shall be released from its obligations
under any covenants applicable to such Securities which are specified pursuant to Section 301 as
being subject to covenant defeasance on and after the date the conditions set forth in clause (4)
of this Section 402 are satisfied (hereinafter, covenant defeasance), and such Securities shall
thereafter be deemed to be not Outstanding for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in connection with any such
covenant, but shall continue to be deemed Outstanding for all other purposes hereunder. For this
purpose, such covenant defeasance means that with respect to such Outstanding Securities, the
Issuer may omit to comply with, and shall have no liability in respect of, any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or such other covenant or by reason of reference in
any such Section or such other covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a default or an Event of Default under Section 501, as
the case may be, but, except as specified above, the remainder of this Indenture and such
Securities and the Guarantees thereof shall be unaffected thereby.
(4) The following shall be the conditions to application of clause (2) or (3) of this Section
402 to any Outstanding Securities of or within a series:
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(a) The Issuer shall irrevocably have deposited or caused to be deposited with
the Trustee (or another trustee satisfying the requirements of
Section 608 who shall
agree to comply with the provisions of this Section 402 applicable to it) as trust
funds in trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of such
Securities, (1) an amount in Dollars or in such Foreign Currency in which such
Securities appertaining thereto are then specified as payable at Stated Maturity or,
if such defeasance or covenant defeasance is to be effected in compliance with
subsection (f) below, on the relevant Redemption Date, as the case may be, or (2)
Government Obligations applicable to such Securities (determined on the basis of the
Currency in which such Securities are then specified as payable at Stated Maturity
or, if such defeasance or covenant defeasance is to be effected in compliance with
subsection (f) below, on the relevant Redemption Date, as the case may be) which
through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the due date
of any payment of principal of (and premium, if any) and interest, if any, on such
Securities, money in an amount, or (3) a combination thereof, in any case, in an
amount, sufficient, without consideration of any reinvestment of such principal and
interest, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee,
to pay and discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, (y) the principal of (and premium, if any) and
interest, if any, on, and, to the extent that such Securities provide for the
payment of Additional Amounts thereon and the amount of any such Additional Amounts
which are or will be payable with respect to the Securities of such series is at the
time of deposit reasonably determinable by the Issuer (in the exercise by the Issuer
of its sole and absolute discretion), any Additional Amounts with respect to, such
Outstanding Securities on the Stated Maturity of such principal or installment of
principal or interest or the applicable Redemption Date, as the case may be, and (z)
any mandatory sinking fund payments or analogous payments applicable to such
Outstanding Securities on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities.
(b) Such defeasance or covenant defeasance shall not result in a breach or
violation of, or constitute a default under, this Indenture.
(c) No Event of Default or event which with notice or lapse of time or both
would become an Event of Default with respect to such Securities shall have occurred
and be continuing on the date of such deposit.
(d) In the case of defeasance pursuant to Section 402(2), the Issuer shall have
delivered to the Trustee an Opinion of
Counsel reasonably acceptable to
the Trustee stating that (x) the Issuer has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in applicable U.S. federal income tax law,
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in
either case to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of such Outstanding Securities
will not recognize income, gain or loss for U.S. federal income tax purposes as a
result of such defeasance and will be subject to U.S. federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such defeasance had not occurred; or, in the case of covenant defeasance pursuant to
Section 402(3), the Issuer shall have delivered to the Trustee an Opinion of
Counsel reasonably acceptable to the Trustee to the effect that the
Holders of such Outstanding Securities will not recognize income, gain or loss for
U.S. federal income tax purposes as a result of such covenant defeasance and will be
subject to U.S. federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such covenant defeasance had not
occurred.
(e)
The Issuer shall have delivered to the Trustee an Officers Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the defeasance
or covenant defeasance, as the case may be, under this Indenture have been complied
with.
(f) If the monies or Government Obligations or combination thereof, as the case
may be, deposited under clause (a) above are sufficient to pay the principal of, and
premium, if any, and interest, if any, on and, to the extent provided in such clause
(a), Additional Amounts with respect to, such Securities provided such Securities
are redeemed on a particular Redemption Date, the Issuer shall have given the
Trustee irrevocable instructions to redeem such Securities on such date and to
provide notice of such redemption to Holders as provided in or pursuant to this
Indenture.
(g) Notwithstanding any other provisions of this Section 402(4), such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be imposed on
the Issuer in connection therewith pursuant to Section 301.
(5) Subject to the provisions of the last paragraph of Section 1003, all money and Government
Obligations (or other property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trusteecollectively for purposes of this
Section 402(5) and Section 403, the Trustee) pursuant to clause (4)(a) of Section 402 in respect
of any Outstanding Securities of any series shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (other than the Issuer or any Guarantor of the Securities of
the applicable series or any Subsidiary or Affiliate of the Issuer or any such Guarantor acting as
Paying Agent) as the Trustee may determine, to the Holders of such Securities of all sums due and
to become due thereon in respect of principal (and premium, if any) and interest and Additional
Amounts, if any, but such money need not be segregated from other funds except to the extent
required by law.
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The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge, imposed
on or assessed against the Government Obligations deposited pursuant to this Section 402 or the
principal or interest received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of such Outstanding Securities.
Anything in this Section 402 to the contrary notwithstanding, the Trustee shall deliver or pay
to the Issuer from time to time upon Issuer Request any money or Government Obligations (or other
property and any proceeds therefrom) held by it as provided in clause (4)(a) of this Section 402
which, in the opinion of a nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, are in excess of the amount thereof
which would then be required to be deposited to effect a defeasance or covenant defeasance, as
applicable, in accordance with this Section 402.
Section 403
Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money and Government
Obligations deposited with the Trustee pursuant to Section 401 shall be held in trust and applied
by it, in accordance with the provisions of the Securities and this Indenture, to the payment,
either directly or through any Paying Agent (other than the Issuer or any Guarantor of the Securities of
the applicable series or any Subsidiary or Affiliate of the Issuer or any such Guarantor acting as
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal, premium, interest
and Additional Amounts for whose payment such money has or Government Obligations have been
deposited with or received by the Trustee; but such money and Government Obligations need not be
segregated from other funds except to the extent required by law.
Section 404
Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States Dollars or Government
Securities in accordance with Section 402 hereof, as the case may be, by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Issuers and the applicable Guarantors respective obligations under
this Indenture and the Securities of such series and the Guarantees of such Securities shall be
revived and reinstated as though no deposit had occurred pursuant to Section 402 hereof until such
time as the Trustee (or other qualifying trustee) or Paying Agent is permitted to apply all such
money in accordance with Section 402 hereof, as the case may be;
provided
that, if the
Issuer or any Guarantor makes any payment of principal of, premium
and Additional Amounts, if any,
or interest on any Securities following the reinstatement of its obligations, the Issuer or such
Guarantor, as the case may be, shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the money held by the Trustee (or other qualifying trustee) or Paying
Agent.
ARTICLE FIVE
REMEDIES
Section 501
Events of Default.
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Event
of Default, wherever used herein with respect to Securities of any series, means any
one of the following events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body)
unless such event is specifically deleted or modified in or pursuant to the supplemental indenture,
Board Resolution or Officers Certificate pursuant to a Board
Resolution establishing the terms of such series pursuant to this
Indenture:
(1) default in payment when due and payable, upon redemption, acceleration or
otherwise, of principal of, or premium, if any, on the Securities; or
(2) default for 30 days or more in the payment when due of interest on or with respect
to the Securities; or
(3) default in the deposit of any sinking fund payment when and as due with respect to
any of the Securities of such series; or
(4) default in the performance, or breach, of any covenant or warranty of the Issuer in
the Indenture, and continuance of such default or breach for a period of 60 days after there
has been given written notice by the Trustee or the holders of at least 10% in principal amount of the
Outstanding debt securities with a copy to the trustee specifying such default or breach and requiring it to be
remedied; or
(5) the Issuer pursuant to or under or within the meaning of any Bankruptcy Law:
(i) commences proceedings to be adjudicated bankrupt or insolvent;
(ii) consents to the institution of bankruptcy or insolvency
proceedings against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under applicable Bankruptcy law;
(iii) consents to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator or other similar official of it or for all or
substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) generally is not paying its debts as they become due; or;
(6) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:
(i) is for relief against the Issuer in an involuntary case or
proceeding; or
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(ii) appoints a trustee, receiver, liquidator, custodian or other
similar official of the Issuer or any substantial part of their respective
properties; or
(iii) orders the liquidation of the Issuer;
and, in each case in this clause (6), the order or decree remains unstayed and in effect for
60 consecutive days; or
(7) the Guarantee of any Significant Subsidiary shall for any reason cease to be in
full force and effect or be declared null and void or any responsible officer of any
Guarantor that is a Significant Subsidiary, as the case may be, denies that it has any
further liability under its Guarantee or gives notice to such effect, other than by reason
of the termination of this Indenture or the release of any such Guarantee in accordance with
this Indenture; or
(8) any other Event of Default provided in or pursuant to this Indenture with respect
to Securities of such series.
Section 502
Acceleration of Maturity; Rescission and Annulment.
If any Event of Default (other than an Event of Default specified in clause (5) or (6) of
Section 501 hereof) occurs and is continuing under this Indenture, the Trustee or the Holders of at
least 25% in principal amount of the then total Outstanding Securities may declare the principal
,
premium, if any, interest and any other monetary obligations on all the then Outstanding Securities
to be due and payable immediately. Upon the effectiveness of such declaration, such principal and
interest shall be due and payable immediately. The Trustee shall have no obligation to accelerate
the Securities if and so long as a committee of its Responsible Officers in good faith determines
acceleration is not in the best interest of the Holders of the Securities.
Notwithstanding the foregoing, in the case of an Event of Default arising under clause (5) or
(6) of Section 501 hereof, all Outstanding Securities shall be due and payable immediately without
further action or notice.
The Holders of a majority in aggregate principal amount of the then Outstanding Securities by
written notice to the Issuer and the Trustee may on behalf of all of the Holders rescind an
acceleration and its consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default (except nonpayment of principal,
36
interest,
Additional Amounts, if any, or premium that has become due solely because of the
acceleration) have been cured or waived.
Section 503
Collection of Indebtedness and Suits for Enforcement by Trustee.
The Issuer covenants that if:
(1) default is made in the payment of any interest on, or any Additional Amounts
payable in respect of any interest on, any Security when such interest or Additional
Amounts, as the case may be, shall have become due and payable and such default continues
for a period of 30 days, or
(2) default is made in the payment of any principal of or premium, if any, on, or any
Additional Amounts payable in respect of any principal of or premium, if any, on, any
Security at its Maturity, or
(3) default is made in the deposit of any sinking fund payment when due,
the Issuer shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of
such Securities, the whole amount of money then due and payable with respect to such Securities,
with interest upon the overdue principal, any premium and, to the extent permitted by applicable
law, upon any overdue installments of interest and Additional Amounts at the rate or respective
rates, as the case may be, provided for or with respect to such Securities or, if no such rate or
rates are so provided, at the rate or respective rates, as the case may be, of interest borne by
such Securities, and, in addition thereto, such further amount of money as shall be sufficient to
cover the costs and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all other amounts due to the
Trustee under Section 606.
If an Event of Default with respect to Securities of any series occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or such Securities or in aid of the exercise of any
power granted herein or therein, or to enforce any other proper remedy.
Section 504
Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Securities allowed in any judicial proceedings relative to the
Issuer (or any other obligor upon the Securities including the Guarantors), its creditors or its
property and shall be entitled and empowered to participate as a member in any official committee
of creditors appointed in such matter and to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the
event that the Trustee shall consent to the making of such
37
payments directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 606 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 606 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
Section 505
Trustee May Enforce Claims without Possession of Securities.
All rights of action and claims under this Indenture or any of the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the Securities or the
production thereof in any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any recovery or
judgment, after provision for the payment of the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, shall be for the ratable benefit of each and
every Holder of a Security in respect of which such judgment has been recovered.
Section 506
Application of Money Collected.
Any money collected by the Trustee pursuant to this Article with respect to the Securities of
any series shall be applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, or any premium, interest or
Additional Amounts, upon presentation of such Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST:
To the payment of all amounts due the Trustee, Registrar, Transfer
Agent and Paying Agent and any predecessor
thereof under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon the Securities
for principal and any premium, interest and Additional Amounts in respect of which
or for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the aggregate amounts due and
payable on such Securities for principal and any premium, interest and Additional
Amounts;
THIRD: The balance, if any, to the Person or Persons entitled thereto.
Section 507
Limitations on Suits.
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No Holder of any Security of any series shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a continuing
Event of Default with respect to the Securities of such series;
(2)
Holders of at least 25% in principal amount of the total Outstanding
Securities have
requested the Trustee to pursue the remedy;
(3) Holders of the Securities have offered the Trustee security or indemnity reasonably
satisfactory to it against any loss, liability or expense;
(4) the Trustee has not complied with such request within 60 days after the receipt
thereof and the offer of security or indemnity; and
(5) Holders of a majority in principal amount of the total Outstanding Securities have
not given the Trustee a direction inconsistent with such request within such 60-day period.
A Holder of a Security may not use this Indenture to prejudice the rights of another Holder of
a Security or to obtain a preference or priority over another Holder of a Security.
Section 508
Unconditional Right of Holders to Receive Principal and any Premium, Interest and
Additional Amounts.
Notwithstanding any other provision of this Indenture, the right of any Holder of a Security
to receive payment of principal, premium, if any, Additional Interest, if any, and interest on
the Security, on or after the respective due dates expressed in the Security, or to bring suit for
the enforcement of any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
Section 509
Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security has instituted any proceeding to enforce any right
or remedy under this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then and in every such
case the Issuer, the Trustee and each such Holder shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and each such Holder shall continue as though no
such proceeding had been instituted.
Section 510
Rights and Remedies Cumulative.
To the extent permitted by applicable law and except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee or
39
to each and every Holder of a Security is intended to be exclusive of any other right or
remedy, and every right and remedy, to the extent permitted by applicable law, shall be cumulative
and in addition to every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not, to the extent permitted by applicable law, prevent the concurrent assertion
or employment of any other appropriate right or remedy.
Section 511
Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to exercise any right or
remedy accruing upon any Event of Default shall, to the extent permitted by applicable law, impair
any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee or to any Holder of
a Security may, to the extent permitted by applicable law, be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by such Holder, as the case may be.
Section 512
Control by Holders of Securities.
The Holders of a majority in aggregate principal amount of the Outstanding Securities of any
series shall have the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with this Indenture
or with the Securities of any series,
(2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights of the other Holders of
Securities of such series not joining in such action.
Section 513
Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount of the Outstanding
Securities of any series on behalf of the Holders of all the Securities of such series may waive
any past default hereunder with respect to such series and its consequences, except
(1) a default in the payment of the principal of, any premium or interest on, or any
Additional Amounts with respect to, any Security of such series, or
(2) a default in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each Outstanding Security
of such series affected.
40
Upon any such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 514
Waiver of Usury, Stay or Extension Laws.
Each of the Issuer and each of the Guarantors covenants that (to the extent that it may
lawfully do so) it will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury law or any other law
wherever enacted, now or at any time hereafter in force, which would prohibit or forgive the Issuer
or such Guarantor, as the case may be, from paying all or any portion of the principal of or
premium, if any, or interest, if any, on or Additional Amounts, if any, with respect to any
Securities (in the case of Issuer) or from paying any amount due under any of its Guarantees (in
the case of such Guarantor) as contemplated herein and therein or which may affect the covenants or
the performance of this Indenture or the Securities (in the case of Issuer) or this Indenture or
any of its Guarantees (in the case of such Guarantor); and each of the Issuer and each Guarantor
(to the extent that it may lawfully do so) expressly waives all benefit or advantage of any such
law and covenants that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee or the Holders, but will suffer and permit the execution of every such power
as though no such law had been enacted.
Section 515
Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted to be taken by it as Trustee, the filing by any party litigant in such suit
of any undertaking to pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys fees and disbursements, against any party
litigant in such suit having due regard to the merits and good faith of the claims or defenses made
by such party litigant; but the provisions of this Section 515 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of Outstanding Securities of any series.
ARTICLE SIX
THE TRUSTEE
Section 601
Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(1)
The Trustee may conclusively
rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need
not investigate any fact or matter stated in the document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises of the Issuer, personally or by agent or attorney
at the sole cost of the Issuer and shall incur no liability or additional liability of any kind by reason of such inquiry or
investigation;
41
(2)
Before the Trustee
acts or refrains from acting, it may require an Officers Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on such Officers Certificate or Opinion of Counsel.
The Trustee may consult with counsel of its selection and the written advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(3)
The Trustee may act
through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent or attorney appointed
with due care;
(4)
The Trustee shall not
be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers
conferred upon it by this Indenture;
(5)
Unless otherwise
specifically provided in this Indenture, any demand, request, direction or notice from the Issuer shall be sufficient if signed
by an Officer of the Issuer;
(6)
None of the provisions
of this Indenture shall require the Trustee to expend or risk its own funds or otherwise to incur any liability, financial or otherwise,
in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds
for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not assured to it;
(7)
The Trustee shall not be
deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a Default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Notes and this Indenture;
(8)
In no event shall the
Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not
limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action;
(9)
The rights, privileges,
protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to,
and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to
act hereunder;
(10) In the event the Issuer is required to pay Additional Interest, the Issuer will provide written
notice to the Trustee of the Issuers obligation to pay Additional Interest no later than 15 days
prior to the next Interest Payment Date, which notice shall set forth the amount of the Additional
Interest to be paid by the Issuer. The Trustee shall not at any time be under any duty or
responsibility to any Holders to determine whether the Additional Interest is payable and the
amount thereof.
Section 602
Notice of Defaults.
If a Default occurs and is continuing and if it is known to the Trustee, the Trustee shall
mail to Holders of Securities a notice of the Default within 90 days after it occurs. Except in
the case of a Default relating to the payment of principal, premium, if any, or interest on any
Security, the Trustee may withhold from the Holders notice of any continuing default if and so
42
long as a committee of its Responsible Officers in good faith determines that withholding the
notice is in the interests of the Holders of the Securities. The Trustee shall not be deemed to
know of any Default unless a Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is such a default is received by the Trustee at the
Corporate Trust Office of the Trustee.
Section 603
Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustees certificate of
authentication, shall be taken as the statements of the Issuer and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the Securities, except
that the Trustee represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder and that the statements made by
it in a Statement of Eligibility on Form T-1 supplied to the Issuer are true and accurate, subject
to the qualifications set forth therein. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Issuer of the Securities or the proceeds thereof.
Section 604
May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other
Person that may be an agent of the Trustee, the Issuer or any Guarantor, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to Sections 310(b) and
311 of the Trust Indenture Act, may otherwise deal with the Issuer and each Guarantor with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar
or such other Person.
Section 605
Money Held in Trust.
Money held by the Trustee in trust hereunder shall, until used or applied as herein provided,
be held in trust for the purposes for which they were received, but need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed with the Issuer or any
Guarantor.
Section 606
Compensation and Reimbursement.
The Issuer agrees:
(1) to pay to the Trustee from time to time reasonable compensation for all services
rendered by the Trustee hereunder (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
43
reasonable compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to the Trustees
negligence or bad faith; and
(3) to indemnify the Trustee and its agents for, and to hold them harmless against, any
loss, liability or reasonable expense (including, without limitation, the reasonable fees
and disbursements of the Trustees agents, legal counsel, accountants and experts) incurred
without negligence or bad faith on their part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the reasonable
costs and expenses of defending themselves against any claim or liability in connection with
the exercise or performance of any of their powers or duties hereunder, except to the extent
that any such loss, liability or expense was due to the Trustees negligence, willful
misconduct or bad faith.
As security for the performance of the obligations of the Issuer under this Section, the
Trustee shall have a Lien prior to the Securities of any series upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the payment of principal of, or
premium or interest on or any Additional Amounts with respect to Securities.
Any compensation or expense incurred by the Trustee after a default specified by Section 501
is intended to constitute an expense of administration under any then applicable bankruptcy or
insolvency law. Trustee for purposes of this Section 606 shall include any predecessor Trustee
but the negligence or bad faith of any Trustee shall not affect the rights of any other Trustee
under this Section 606. The provisions of this Section 606 shall, to the extent permitted by
applicable law, survive any termination of this Indenture (including, without limitation,
termination pursuant to any Bankruptcy Laws) and the resignation or
removal of the Trustee.
As used in this Section 606, Trustee shall also include
each of the Registrar, Paying Agent and Transfer Agent, as applicable.
Section 607
Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
To the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this Indenture with respect to Securities
of more than one series.
Section 608
Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that is a corporation or national banking
association organized and doing business under the laws of the United States of America or of any
state thereof that is authorized under such laws to exercise corporate trustee power, that is
subject to supervision or examination by federal or state authorities and that has a combined
capital and surplus of at least $50,000,000 as set forth in its most recent published annual report
of condition.
44
This Indenture shall always have a Trustee who satisfies the requirements of Trust Indenture
Act Sections 310(a)(1), (2) and (5). The Trustee is subject to Trust Indenture Act Section 310(b).
Section 609
Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of appointment by the
successor Trustee pursuant to Section 609.
(2) The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Issuer. If the instrument of acceptance by a successor
Trustee required by Section 609 shall not have been delivered to the Trustee within 90 days after
the giving of such notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to such series.
(3) The Trustee may be removed at any time with respect to the Securities of any series by Act
of the Holders of a majority in principal amount of the Outstanding Securities of such series,
delivered to the Trustee and the Issuer.
(4) If at any time:
(a) the Trustee shall fail to comply with the obligations imposed upon it under
Section 310(b) of the Trust Indenture Act with respect to Securities of any series
after written request therefor by the Issuer or any Holder of a Security of such
series who has been a bona fide Holder of a Security of such series for at least six
months, or
(b) the Trustee shall cease to be eligible under Section 608 and shall fail to
resign after written request therefor by the Issuer or any such Holder, or
(c) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or of
its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Issuer, by or pursuant to a Board Resolution, may remove the
Trustee with respect to all Securities or the Securities of such series, or (ii) subject to Section
315(e) of the Trust Indenture Act, any Holder of a Security who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the Trustee with respect
to all Securities of such series and the appointment of a successor Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, with respect to the Securities of one or more
series, the Issuer, by or pursuant to a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the Securities of one or more or
all
45
of such series and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable requirements of Section
609. If, within one year after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed
by Act of the Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Issuer and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the applicable requirements of
Section 609, become the successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Issuer. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the Issuer or the Holders
of Securities and accepted appointment in the manner required by Section 609, any Holder of a
Security who has been a bona fide Holder of a Security of such series for at least six months may,
on behalf of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Securities of such
series.
(6) The Issuer shall give notice of each resignation and each removal of the Trustee with
respect to the Securities of any series and each appointment of a successor Trustee with respect to
the Securities of any series by providing written notice of such event to the Holders of Securities of such series in the manner provided in Section 106. Each
notice shall include the name of the successor Trustee with respect to the Securities of such
series and the address of its Corporate Trust Office.
As
used in this Section 609, Trustee shall also include
each of the Registrar, Paying Agent and Transfer Agent, as applicable.
Section 610
Acceptance of Appointment by Successor.
(1) Upon the appointment hereunder of any successor Trustee with respect to all Securities,
such successor Trustee so appointed shall execute, acknowledge and deliver to the Issuer, the
Guarantors and the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties hereunder of the retiring Trustee; but, on the request of the Issuer, any
Guarantor or such successor Trustee, such retiring Trustee, upon payment of its charges, shall
execute and deliver an instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and, subject to Section 1003, shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring Trustee hereunder,
subject nevertheless to its claim, if any, provided for in Section 606.
(2) Upon the appointment hereunder of any successor Trustee with respect to the Securities of
one or more (but not all) series, the Issuer, the Guarantors, the retiring Trustee and such
successor Trustee shall execute and deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, such successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates, (2) if the retiring
Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to which the retiring
46
Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees
of the same trust, that each such Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any notice given to, or received by, or any act or failure to act
on the part of any other Trustee hereunder, and, upon the execution and delivery of such
supplemental indenture, the resignation or removal of the retiring Trustee shall become effective
to the extent provided therein, such retiring Trustee shall have no further responsibility for the
exercise of rights and powers or for the performance of the duties and obligations vested in the
Trustee under this Indenture with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates other than as hereinafter expressly set forth, and
such successor Trustee, without any further act, deed or conveyance, shall become vested with all
the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee relates; but, on request of
the Issuer, any Guarantor or such successor Trustee, such retiring Trustee, upon payment of its
charges with respect to the Securities of that or those series to which the appointment of such
successor relates and subject to Section 1003 shall duly assign, transfer and deliver to such
successor Trustee, to the extent contemplated by such supplemental indenture, the property and
money held by such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, subject to its claim, if any,
provided for in Section 606.
(3) Upon request of any Person appointed hereunder as a successor Trustee, the Issuer and the
Guarantors shall execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph
(1) or (2) of this Section, as the case may be.
(4) No Person shall accept its appointment hereunder as a successor Trustee unless at the time
of such acceptance such successor Person shall be qualified and eligible under this Article.
Section 611
Merger, Conversion, Consolidation or Succession to Business.
Any Corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any Corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any Corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder (provided
that such Corporation shall otherwise be qualified and eligible under this Article), without the
execution or filing of any paper or any further act on the part of any of the parties hereto. In
case any Securities shall have been authenticated but not delivered by the Trustee then in office,
any such successor to such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities. In case any Securities shall not have been authenticated by such
predecessor Trustee, any such successor Trustee may authenticate and deliver such Securities in
either its own name or that of its predecessor Trustee.
47
Section 612
Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent acceptable to the Issuer to authenticate
Securities. An Authenticating Agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes authentication by such
agent. An Authenticating Agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Issuer.
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE, ISSUER AND GUARNATORS
Section 701
Issuer to Furnish Trustee Names and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the Issuer shall furnish or
cause to be furnished to the Trustee
(1) semi-annually with respect to Securities of each series not later than [
] and
[
] of the year or upon such other dates as are set forth in or pursuant to the Board
Resolution or indenture supplemental hereto authorizing such series, a list, in each case in
such form as the Trustee may reasonably require, of the names and addresses of Holders as of
the applicable date, and
(2) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Issuer of any such request, a list of similar form and content as of a date
not more than 15 days prior to the time such list is furnished,
provided
,
however
, that so long as the Trustee is the Security Registrar no such list shall be
required to be furnished.
Section 702
Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it pursuant to Section 312 of the
Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with the Issuer, the
Guarantors and the Trustee that none of the Issuer, the Guarantors, the Trustee, any Paying Agent
or any Security Registrar shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of Securities in accordance with Section
312(c) of the Trust Indenture Act, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the Trust Indenture Act.
Section 703
Reports by Trustee.
(1) Within 60 days after [
] of each year commencing with the first [
] following the first
issuance of Securities pursuant to Section 301, if required by Section 313(a) of the Trust
Indenture Act, the Trustee shall transmit, pursuant to Section 313(c) of the Trust Indenture Act, a
48
brief report dated as of such [
] with respect to any of the events specified in said Sections
313(a) and 313(b)(2) which may have occurred since the later of the immediately preceding [
] and
the date of this Indenture.
(2) The Trustee shall transmit the reports required by Section 313(a) of the Trust Indenture
Act at the times specified therein.
(3) Reports pursuant to this Section shall be transmitted in the manner and to the Persons
required by Sections 313(c) and 313(d) of the Trust Indenture Act.
Section 704
Reports by Issuer and Guarantors.
The Issuer and each Guarantor pursuant to Section 314(a) of the Trust Indenture Act, shall:
(1)
file with the Trustee, for distribution to a Holder of Securities
upon such Holders request, within 15 days after the Issuer or such Guarantor, as the
case may be, is required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations prescribe)
which the Issuer or such Guarantor, as the case may be, may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Issuer or
any Guarantor is not required to file information, documents or reports pursuant to either
of said Sections, then it shall file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be required pursuant
to Section 13 of the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in such rules and
regulations;
(2)
file with the Trustee, for distribution to a Holder of Securities
upon such Holders request, and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such additional information, documents and
reports with respect to compliance by the Issuer or such Guarantor, as the case may be, with
the conditions and covenants of this Indenture as may be required from time to time by such
rules and regulations; and
(3)
transmit within 30 days after the filing thereof with the Trustee, for distribution to a Holder of Securities
upon such Holders request, in the manner
and to the extent provided in Section 313(c) of the Trust Indenture Act, such summaries of
any information, documents and reports required to be filed by the Issuer or such Guarantor,
as the case may be, pursuant to paragraphs (1) and (2) of this Section as may be required by
rules and regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801
Issuer May Consolidate, Etc., Only on Certain Terms.
49
The Issuer shall not, in any transaction or series of related transactions, consolidate with,
or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its
property and assets to, or merge with or into or wind up into, any Person unless:
(1) either (A) the Issuer shall be the continuing Person (in the case of a merger) or
(B) the successor Person (if other than the Issuer) formed by or resulting from the
consolidation or merger, or to which such sale, assignment, transfer, lease, conveyance or
other disposition will have been made is a corporation organized or existing under the laws
of the jurisdiction of organization of the applicable issuer or the laws of the United
States, any state thereof, the District of Columbia, or any territory thereof (such Person,
as the case may be, being herein called the Successor Issuer);
(2) the Successor Issuer, if other than the Issuer, shall expressly assume all the
obligations of the Issuer pursuant to supplemental indentures or other documents or
instruments in form reasonably satisfactory in form to the Trustee;
(3) immediately after giving effect to the transaction described above, no Event of
Default under this Indenture, and no event which, after notice or lapse of time or both
would become an Event of Default under the applicable indenture, shall have occurred and be
continuing;
(4) each Guarantor, unless it is the other party to the transactions described above,
shall have by supplemental indenture confirmed that its Guarantee shall apply to such
persons obligations under this Indenture and Securities; and
(5) the Issuer shall have delivered to the Trustee an Officers Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer and such
supplemental indentures, if any, comply with this Indenture and, if a supplemental indenture
is required in connection with such transaction, such supplement shall comply with the
applicable provisions of this Indenture.
Immediately after giving pro forma effect to
the transaction described above, (1) the Collateral owned by the successor Person will continue to constitute Collateral under the
applicable indenture and related security documents and (2) to the extent any assets of the Person which is merged or consolidated
with or into the successor Person are assets of the type which would constitute Collateral under the related security documents,
the Successor Company will take such action as may be reasonably necessary to cause such property and assets to be made subject to
the Lien of the security documents in the manner and to the extent required by the Indenture.
Section 802
Successor Person Substituted for Issuer.
In the case of any such merger, consolidation, sale, assignment, transfer, lease, conveyance
or other disposition in which the Issuer is not the continuing entity and upon execution and
delivery by the successor Person of the supplemental indenture described in Section 801, such
successor Person shall succeed to, and be substituted for, the Issuer and may exercise every right
and power of, the Issuer under this Indenture with the same effect as if such successor Person had
been named as the Issuer herein, and the predecessor Issuer shall be automatically released and
discharged from all obligations and covenants under this Indenture, the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901
Supplemental Indentures without Consent of Holders.
50
Without the consent of any Holders of Securities, the Issuer (when authorized by or pursuant
to a Board Resolution), the Guarantors (each when authorized by a Guarantors Board Resolution) and
the Trustee, at any time and from time to time, may enter into one or more indentures supplemental
hereto, in form reasonably satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Issuer or a Guarantor, and the
assumption by any such successor of the covenants of the Issuer or such Guarantor, as the
case may be, contained herein and in the Securities or the Guarantees of such Guarantor, as
the case may be; or
(2) to add to the covenants of the Issuer or any Guarantor for the benefit of the
Holders of all or any series of Securities (as shall be specified in such supplemental
indenture or indentures) or to surrender any right or power herein conferred upon the Issuer
or any Guarantor with respect to all or any series of Securities issued under this Indenture
(as shall be specified in such supplemental indenture or indentures); or
(3) to add any additional Events of Default with respect to all or any series of
Securities (as shall be specified in such supplemental indenture); or
(4) to change or eliminate any of the provisions of this Indenture, provided that any
such change or elimination shall become effective only when there are no Outstanding
Securities of any series created prior to the execution of such supplemental indenture that
is entitled to the benefit of such provision and as to which such supplemental indenture
would apply; or
(5) to secure or, if applicable, to provide additional security for all or any
Securities or Guarantees issued under this Indenture and all or any guarantees, if any, of
all or any such Securities and to provide for any and all matters relating thereto, and to
provide for the release of any collateral as security for all or any Securities or all or
any guarantees, if any, of all or any Securities in accordance with the terms of this
Indenture; or
(6) to supplement any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the defeasance, covenant defeasance and/or satisfaction
and discharge of any series of Securities pursuant to Article Four,
provided
that any such
action shall not adversely affect the interests of any Holder of a Security of such series
or any other Security in any material respect; or
(7) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 609; or
(8) to cure any ambiguity, omission, defect or inconsistency or to correct or
supplement any provision herein which may be defective or which may be inconsistent with any
other provision herein, or to make any other provisions with respect to matters
51
or questions arising under this Indenture; or
(9) to change any place or places where the principal of and premium, if any, and
interest, if any, on the Securities s shall be payable, the Securities may be surrendered
for registration or transfer, the Securities may be surrendered for exchange, and notices
and demands upon the Issuer may be served; or
(10) to comply with requirements of the Commission in order to effect or maintain the
qualification of this Indenture under the Trust Indenture Act of 1939; or
(11) to conform the text of this Indenture, the Guarantees or the Securities to
any provision of the Description of the secured notes and
Description of the unsecured notes sections of the prospectus supplement to the
extent that such provision in such Description of the secured
notes or Description of the unsecured notes section was intended to be a
verbatim recitation of a provision of this Indenture; or
(12) to make any amendment to the provisions of this Indenture relating to the transfer
and legending of Securities as permitted by this Indenture, including, without limitation to
facilitate the issuance and administration of the Notes;
provided, however,
that (i)
compliance with this Indenture as so amended would not result in Notes being transferred in
violation of the Securities Act or any applicable securities law and (ii) such amendment
does not materially and adversely affect the rights of Holders to transfer Securities; or
(13) to add additional Guarantees or additional Guarantors in respect of all or any
Securities under this Indenture, and to evidence the release and discharge of any Guarantor
from its obligations under its Guarantee of any or all Securities and its obligations under
this Indenture in respect of any or all Securities in accordance with the terms of this
Indenture.
Section 902
Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series affected by such supplemental indenture, by Act of said
Holders delivered to the Issuer and the Trustee, the Issuer (when authorized by or pursuant to a
Board Resolution), the Guarantors (each when authorized by or pursuant to a Guarantors Board
Resolution) and the Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of the Securities of such series or the Guarantees of such Securities or of
modifying in any manner the rights of the Holders of Securities of such series under this
Indenture;
provided,
that no such supplemental indenture, without the consent of the Holder of each
Outstanding Security affected thereby, shall
(1) change the Stated Maturity of the principal of, or installment of interest, if any,
on, Securities of any series, or reduce the principal amount thereof or the interest thereon
or any premium payable upon redemption thereof, or
52
(2) change the Currency in which the principal of (and premium, if any) or interest on
such Securities are denominated or payable;
(3) adversely affect the right of repayment or repurchase, if any, at the option of the
Holder after such obligation arises, or reduce the amount of, or postpone the date fixed
for, any payment under any sinking fund or impair the right to institute suit for the
enforcement of any payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date);
(4) reduce the percentage in principal amount of the Outstanding Securities of any
series, the consent of whose Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences) provided for in this
Indenture, or
(5) modify any of the provisions of this Section, Section 513 or Section 1006; or
(6) impair the right of any Holder to receive payment of principal of, or interest on
such Holders Securities on or after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to such Holders Securities; or
(7) except as expressly permitted by this Indenture, modify the Guarantees of any
Significant Subsidiary in any manner adverse to the Holders of the Securities.
A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which shall have been included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities of such series with respect
to such covenant or other provision, shall be deemed not to affect the rights under this Indenture
of the Holders of Securities of any other series.
Anything in this Indenture to the contrary notwithstanding, if more than one series of
Securities is Outstanding, the Issuer and the Guarantors shall be entitled to enter into a
supplemental indenture under this Section 902 with respect to any one or more series of Outstanding
Securities without entering into a supplemental indenture with respect to any other series of
Outstanding Securities.
It shall not be necessary for any Act of Holders of Securities under this Section to approve
the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
Section 903
Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trust created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Sections 315(a) through
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315(d) of
the Trust Indenture Act) shall be fully protected in relying upon, an Officers
Certificate and an Opinion of Counsel to the effect that the execution of such supplemental indenture is authorized or
permitted by this Indenture and that such supplemental indenture has been duly authorized, executed
and delivered by, and is a valid, binding and enforceable obligation of, the Issuer and the
Guarantors, subject to customary exceptions. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustees own rights, duties or immunities
under this Indenture or otherwise.
Section 904
Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of a Security theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
Section 905
Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Issuer shall so determine, new Securities of any series so modified as to conform, in the opinion
of the Trustee and the Issuer, to any such supplemental indenture may be prepared and executed by
the Issuer and authenticated and delivered by the Trustee in exchange for Outstanding Securities of
such series.
Section 906
Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
ARTICLE TEN
COVENANTS
Section 1001
Payment of Principal, Premium, Interest and Additional Amounts.
The Issuer covenants and agrees for the benefit of the Holders of the Securities of each
series that it shall pay or cause to be paid the principal of, premium, if any, and interest on the Securities on the dates and in the manner provided in the
Securities. Principal, premium, if any, and interest shall be considered paid on the date due if
the Paying Agent, if other than the Issuer or a Subsidiary, holds as of noon Eastern Time on the
due date money deposited by the Issuer in immediately available funds and designated for and
sufficient to pay all principal, premium, if any, and interest then due.
The Issuer shall pay interest on overdue principal at the rate equal to the then applicable
interest rate on Security to the extent lawful; it shall pay interest overdue installments of
interest (without regard to any applicable grace period) at the same rate
to the extent lawful.
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Section 1002
Maintenance of Office or Agency.
The Issuer shall maintain, an office or
agency (which may be an office of the Trustee or an Affiliate of the Trustee, Registrar or
co-registrar) where any series of Securities may be surrendered for registration of transfer or for
exchange and where notices and demands to or upon the Issuer in respect of the Securities and this
Indenture may be served. The Issuer shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any time the Issuer
shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee.
The Issuer may also from time to time designate one or more other offices or agencies where
the Securities may be presented or surrendered for any or all such purposes and may from time to
time rescind such designations;
provided
that no such designation or rescission shall in
any manner relieve the Issuer of its obligation to maintain an office or agency for such purposes. The Issuer shall give prompt written notice
to the Trustee of any such designation or rescission and of any change in the location of any such
other office or agency.
Unless otherwise provided in or pursuant to this Indenture (including, without limitation,
pursuant to Section 301 with respect to the Securities of any series), the Issuer hereby designates
the place where the Trustee shall from time to time maintain its Corporate Trust Office as the
Issuers Office or Agency for such purpose and initially appoints the Trustee as the Security
Registrar for each series of Securities and. The Issuer may subsequently appoint a different or
additional Office or Agency and, as provided in Section 305, may remove and replace from time to
time the Security Registrar.
Section 1003
Money for Securities Payments to Be Held in Trust.
If the Issuer shall at any time act as its own Paying Agent with respect to any series of
Securities, it shall, on or before each due date of the principal of, any premium or interest on,
or any Additional Amounts with respect to any of the Securities of such series, segregate and hold
in trust for the benefit of the Persons entitled thereto a sum in the Currency or Currencies in
which the Securities of such series are payable sufficient to pay the principal, any premium,
interest and Additional Amounts, as the case may be, so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided, and shall promptly notify the Trustee
of its action or failure so to act.
Whenever the Issuer shall have one or more Paying Agents for any series of Securities, it
shall, on or prior to each due date of the principal of, or any premium or interest on or any
Additional Amounts with respect to, any Securities of such series, deposit with any Paying Agent a
sum (in the Currency or Currencies described in the preceding paragraph) sufficient to pay the
principal, premium, interest and Additional Amounts, as the case may be, so becoming due, such sum
to be held in trust for the benefit of the Persons entitled thereto, and (unless such Paying Agent
is the Trustee) the Issuer will promptly notify the Trustee of its action or failure so to act.
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The Issuer shall cause each Paying Agent for any series of Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal of, any premium or
interest on or any Additional Amounts with respect to Securities of such series in trust for
the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as provided in or pursuant to this Indenture;
(2) give the Trustee notice of any default by the Issuer (or any other obligor upon the
Securities of such series) in the making of any payment of principal, any premium or
interest on or any Additional Amounts with respect to the Securities of such series; and
(3) at any time during the continuance of any such default, upon the written request of
the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Issuer Order direct any Paying Agent to pay, to
the Trustee all sums held in trust by the Issuer or such Paying Agent, such sums to be held by the
Trustee upon the same terms as those upon which such sums were held by the Issuer or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such sums.
Except as otherwise provided herein or pursuant hereto, any money deposited with the Trustee
or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal of, any
premium or interest on or any Additional Amounts with respect to any Security of any series and
remaining unclaimed for two years after such principal or such premium or interest or Additional
Amount shall have become due and payable shall be paid to the Issuer on Issuer Request (or if
deposited by a Guarantor, paid to such Guarantor on Guarantor Request) or (if then held by the
Issuer) shall be discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Issuer or such Guarantor, as the case may be, for
payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Issuer as trustee thereof, shall thereupon cease.
Section 1004
Additional Amounts.
If any Securities of a series provide for the payment of Additional Amounts by the Issuer, the
Issuer agrees to pay to the Holder of any such Security Additional Amounts as provided in or
pursuant to this Indenture or such Securities; and, if the Guarantee of the Securities of a series
provides for the payment of Additional Amounts by any Guarantor of the Securities of such series,
each such Guarantor agrees, severally and not jointly, to pay to the Holder of any such Security
Additional Amounts as provided in or pursuant to this Indenture or its Guarantee of such Security.
Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or
any premium or interest on, or in respect of, any Security of any series or Guarantee, such mention
shall be deemed to include mention of the payment of Additional
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Amounts provided by the terms of such series established hereby or pursuant hereto to the
extent that, in such context, Additional Amounts are, were or would be payable in respect thereof
pursuant to such terms, and express mention of the payment of Additional Amounts (if applicable) in
any provision hereof shall not be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
Section 1005
Legal Existence.
Subject to Article Eight, the Issuer shall do or cause to be done all things necessary to
preserve and keep in full force and effect its legal existence as any type of Corporation (it being
understood that nothing in this Section 1005 shall prohibit the Issuer from changing its legal form
from one type of Corporation to another type of Corporation).
Section 1006
Waiver of Certain Covenants.
The Issuer may omit in any particular instance to comply with any term, provision or condition
set forth in Sections 801, 802, 1002, 1003 or 1005 with respect to the Securities of any series
and, if expressly provided pursuant to Section 301 with respect to the Securities of such series,
any additional covenants applicable to the Securities of such series if before the time for such
compliance the Holders of at least a majority in principal amount of the Outstanding Securities of
such series, by Act of such Holders, either shall waive such compliance in such instance or
generally shall have waived compliance with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the Issuer and the duties
of the Trustee in respect of any such term, provision or condition shall remain in full force and
effect.
Section 1007
Issuer Statement as to Compliance.
The Issuer and each Guarantor (to the extent that such Guarantor is so required under the
Trust Indenture Act) shall deliver to the Trustee, within 90 days after the end of each fiscal
year, an Officers
Certificate stating whether or not, to the best of his or her
knowledge, the Issuer is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to notice requirements or periods of
grace) and if the Issuer shall be in default, specifying all such defaults and the nature and
status thereof of which he or she may have knowledge.
Section 1008
Guarantor Statement as to Compliance.
Each Guarantor shall deliver to the Trustee, within 90 days after the end of each fiscal year,
an Officers
Certificate stating whether or not, to the best of his or her
knowledge, such Guarantor is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to notice requirements or
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periods of grace) and if such Guarantor shall be in default, specifying all such defaults and
the nature and status thereof of which he or she may have knowledge.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101
Applicability of Article.
Redemption of Securities of any series at the option of the Issuer as permitted or required by
the terms of such Securities shall be made in accordance with the terms of such Securities and
(except as otherwise provided herein or pursuant hereto) this Article.
Section 1102
Election to Redeem; Notice to Trustee.
The election of the Issuer to redeem any Securities shall be evidenced by or pursuant to a
Board Resolution or an Officers Certificate or in another manner specified as contemplated by
Section 301 for such Securities. In case of any redemption at the election of the Issuer of less
than all of the Securities of any series, the Issuer shall, at least 60 days prior to the
Redemption Date fixed by the Issuer (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal amount of Securities of such series
to be redeemed.
In the case of any redemption of Securities (A) prior to the expiration of any restriction on
such redemption provided in the terms of such Securities or elsewhere in this Indenture or (B)
pursuant to an election of the Issuer which is subject to a condition specified in the terms of
such Securities or elsewhere in this Indenture, the Issuer shall furnish to the Trustee an
Officers Certificate evidencing compliance with such restriction or condition.
Section 1103
Selection by Trustee of Securities to be Redeemed.
If less than all of the Securities of any series are to be redeemed (unless all of the
Securities of such series and of a special tenor are to be redeemed or unless such redemption
affects only a single Security), the particular Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee from the Outstanding Securities of
such series, not previously called for redemption, by such method as the Trustee shall deem fair
and appropriate and which may provide for the selection for redemption of portions of the principal
amount of Securities of such series; provided, however, that no such partial redemption shall
reduce the portion of the principal amount of a Security of such series not redeemed to less than
the minimum denomination for a Security of such series established herein or pursuant hereto.
The Trustee shall promptly notify the Issuer and the Security Registrar (if other than itself)
in writing of the Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
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For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to
be redeemed only in part, to the portion of the principal of such Securities which has been or is
to be redeemed.
Section 1104
Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106, not less than 30
nor more than 60 days prior to the Redemption Date, unless a shorter period is specified in the
Securities to be redeemed, to the Holders of Securities to be redeemed. Failure to give notice in the manner herein provided to the Holder of any Securities designated for redemption as
a whole or in part, or any defect in the notice to any such Holder, shall not affect the validity
of the proceedings for the redemption of any other Securities or portions thereof.
Any
notice that is provided to the Holder of any Securities in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not such Holder receives the notice.
All notices shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if any Security is to be redeemed in part only, the portion of the principal amount
of that Security that is to be redeemed and that, after the Redemption Date upon surrender
of such Security, a new Security or Securities in principal amount equal to the unredeemed
portion of the original Security representing the same indebtedness to the extent not
redeemed will be issued in the name of the Holder of the Securities upon cancellation of the
original Security;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the Paying Agent to collect
the Redemption Price;
(6) that, unless the Issuer defaults in making such redemption payment, interest on
Securities called for redemption ceases to accrue on and after the Redemption Date;
(7) the paragraph or subparagraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(8) that no representation is made as to the correctness or accuracy of the CUSIP
and/or ISIN number, if any, listed in such notice or printed on the Securities; and
A notice of redemption published as contemplated by Section 106 need not identify particular
Securities to be redeemed.
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Notice of redemption of Securities to be redeemed at the election of the Issuer shall be given
by the Issuer or, at the Issuers request, by the Trustee in the name and at the expense of the
Issuer.
Section 1105
Deposit of Redemption Price.
On or prior to any Redemption Date, the Issuer shall deposit, with respect to the Securities
of any series called for redemption pursuant to Section 1104, with the Trustee or with a Paying
Agent (or, if the Issuer is acting as its own Paying Agent, segregate and hold in trust as provided
in Section 1003) an amount of money in the applicable Currency or, if the Redemption Price shall be
payable in cash, securities and/or other property, an amount of money in the applicable Currency,
securities and/or other property, as the case may be, sufficient to pay the Redemption Price of,
and (unless otherwise specified pursuant to Section 301 with respect to the Securities of such
series) any accrued interest on, all such Securities or portions thereof which are to be redeemed
on that date.
Section 1106
Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein specified, and from
and after such date (unless the Issuer shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by the Issuer at the
Redemption Price, together, if applicable, with accrued interest to the Redemption Date;
provided
,
however
, that, unless otherwise specified as contemplated by Section 301,
installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their terms and the
provisions of Section 307;
provided
further
that, unless otherwise specified as
contemplated by Section 301, if the Redemption Date is after a Regular Record Date and on or prior
to the Interest Payment Date, the accrued and unpaid interest shall be payable to the Holder of the
redeemed Securities registered on the relevant Regular Record Date.
If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal and any premium, until paid, shall bear interest from the Redemption Date
at the rate prescribed therefor in the Security or, if no rate is prescribed therefor in the
Security, at the rate of interest, if any, borne by such Security.
Section 1107
Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Issuer or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the
Holder thereof or such Holders attorney duly authorized in writing), and the Issuer shall execute,
and the Trustee shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of any
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authorized denomination as requested by such Holder, in principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
Section 1201
Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of
Securities of a series, except as otherwise permitted or required in or pursuant to this Indenture
or any Security of such series issued pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a mandatory sinking fund payment, and any payment in excess of
such minimum amount provided for by the terms of Securities of such series is herein referred to as
an optional sinking fund payment. If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202.
Each sinking fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series and this Indenture.
Section 1202
Satisfaction of Sinking Fund Payments with Securities.
The Issuer (1) may deliver Outstanding Securities of a series (other than any previously
called for redemption) and (2) may apply as a credit Securities of a series which have been
redeemed either at the election of the Issuer pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund payment with
respect to any Securities of such series required to be made pursuant to the terms of such
Securities as and to the extent provided for by the terms of such Securities;
provided
that
the Securities to be so credited have not been previously so credited. The Securities to be so
credited shall be received and credited for such purpose by the Trustee at the Redemption Price, as
specified in the Securities so to be redeemed, for redemption through operation of the sinking fund
and the amount of such sinking fund payment shall be reduced
accordingly.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301
Applicability of Article.
Securities of any series which are repayable at the option of the Holders thereof before their
Stated Maturity shall be repaid in accordance with the terms of the Securities of such series. The
repayment of any principal amount of Securities pursuant to such option of the Holder to require
repayment of Securities before their Stated Maturity, for purposes of Section 309, shall not
operate as a payment, redemption or satisfaction of the indebtedness represented by such Securities
unless and until the Issuer, at its option, shall deliver or surrender the same to the
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Trustee with a directive that such Securities be cancelled. Notwithstanding anything to the
contrary contained in this Section 1301, in connection with any repayment of Securities, the Issuer
may arrange for the purchase of any Securities by an agreement with one or more investment bankers
or other purchasers to purchase such Securities by paying to the Holders of such Securities on or
before the applicable repayment date an amount not less than the repayment price payable by the
Issuer on repayment of such Securities, and the obligation of the Issuer to pay the repayment price
of such Securities shall be satisfied and discharged to the extent such payment is so paid by such
purchasers.
Unless otherwise expressly stated in this Indenture or pursuant to Section 301 with respect to
the Securities of any series or unless the context otherwise requires, all references in this
Indenture to the repayment of Securities at the option of the Holders thereof (and all references
of like import) shall be deemed to include a reference to the repurchase or redemption of
Securities at the option of the Holders thereof.
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1401
Applicability of Article.
Whenever this Indenture provides for (i) any action by, or the determination of any of the
rights of, Holders of Securities of any series in which not all of such Securities are denominated
in the same Currency or (ii) any distribution to Holders of Securities of any series in which not
all of such Securities are denominated in the same Currency, in the absence of any provision to the
contrary in or pursuant to this Indenture or the Securities of such series, any amount in respect
of any Security denominated in a Currency other than Dollars shall be treated for any such action,
determination or distribution as that amount of Dollars that could be obtained for such amount on
such reasonable basis of exchange and as of the record date with respect to Securities of such
series (if any) for such action, determination or distribution (or, if there shall be no applicable
record date, such other date reasonably proximate to the date of such distribution) as the Issuer
may specify in a written notice to the Trustee.
ARTICLE FIFTEEN
GUARANTEES
Section 1501
Guarantees.
The Securities of each series shall be guaranteed by such Guarantors, and on such terms and
subject to such conditions, as shall be established pursuant to Section 301 with respect to the
Securities of such series. The Persons who shall initially be the Guarantors of the Securities of
any series may, but need not, include any or all of the Initial Guarantors and may include any and
all such other Persons as the Issuer may determine; provided that prior to the initial issuance of
Securities that are to be guaranteed by a Person that is not an Initial Guarantor (or, if provided
by the terms of this Indenture, a successor to an Initial Guarantor), the parties hereto and such
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Person shall enter into a supplemental indenture pursuant to Section 901 hereof whereby such
Person shall become a Guarantor under this Indenture.
Anything in this Indenture, the Securities or any Guarantee to the contrary notwithstanding,
the obligations of each Guarantor under its Guarantees and this Indenture shall be limited to the
maximum amount as will, after giving effect to all other contingent and fixed liabilities of such
Guarantor, result in the obligations of such Guarantor under its Guarantees and this Indenture not
constituting a fraudulent advance or fraudulent transfer under any Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or
other law affecting the rights of creditors generally.
No Guarantee shall be valid and obligatory for any purpose with respect to any Security until
the certificate of authentication on such Security shall have been signed by or on behalf of the
Trustee.
ARTICLE SIXTEEN
SECURITY
Section 1601
Security.
If so provided pursuant to Section 301 with respect to the Securities of any series, the
Securities of such series and/or the Guarantees of such Securities may be secured by such property,
assets or other collateral as may be specified in or pursuant to Section 301. Any and all terms
and provisions applicable to the security for the Securities of such series and/or such Guarantees
shall also be provided in or pursuant to Section 301, which may include, without limitation,
provisions for the execution and delivery of such security agreements, pledge agreements,
collateral agreements and other similar or related agreements as the Issuer or any Guarantor may
elect and which may provide for the Trustee to act as collateral agent or in a similar or other
capacity. The Trustee shall comply with Sections 313(a)(5) and (6) and 313(b)(1) of the Trust
Indenture Act and the Issuer and, if applicable, any Guarantor that has pledged collateral to
secure its Guarantee shall comply with Sections 314(b), 314(c) and 314(d) of the Trust Indenture
Act, in each case in respect of any secured Securities and/or Guarantees that may be Outstanding
hereunder from time to time.
* *
*
*
*
This instrument may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, as of the day and year first above
written.
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HCA HOLDINGS, INC.
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By:
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Name:
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Title:
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as Trustee
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By:
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Name:
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Title:
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SCHEDULE 1
Initial
Guarantors
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Exhibit 4.2
HCA INC.,
THE GUARANTORS NAMED ON SCHEDULE I HERETO,
and
,
as Trustee
INDENTURE
Dated as of
Debt Securities
TABLE OF CONTENTS
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Page
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ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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1
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Section 101 Definitions
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1
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Section 102 Compliance Certificates and Opinions
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10
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Section 103 Form of Documents Delivered to Trustee
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11
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Section 104 Acts of Holders
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11
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Section 105 Notices, etc., to Trustee, Issuer and Guarantors
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12
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Section 106 Notice to Holders of Securities; Waiver
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13
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Section 107 Conflict with Trust Indenture Act
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13
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Section 108 Effect of Headings and Table of Contents
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14
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Section 109 Successors and Assigns
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14
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Section 110 Separability Clause
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14
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Section 111 Benefits of Indenture
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14
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Section 112 Governing Law
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14
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Section 113 Legal Holidays
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14
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Section 114 Waiver of Jury Trial
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14
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Section 115 Force Majeure
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15
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Section 116
Counterparts
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15
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Section 117 Extension of Payment Dates
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15
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Section 118 Immunity of Shareholders, Directors, Officers and Agents of the Issuer
and Any Guarantor
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ARTICLE TWO SECURITIES FORMS
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16
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Section 201 Forms Generally
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16
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Section 202 Form of Trustees Certificate of Authentication
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16
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Section 203 Form of Legend for Global Notes
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ARTICLE THREE THE SECURITIES
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18
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Section 301 Amount Unlimited; Issuable in Series
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18
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Section 302 Currency; Denominations
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Section 303 Execution, Authentication, Delivery and Dating
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Section 304 Temporary Securities
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Section 305 Registration, Transfer and Exchange
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Section 306 Mutilated, Destroyed, Lost and Stolen Securities
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i
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Section 307 Payment of Interest and Certain Additional Amounts; Rights to Interest
and Certain Additional Amounts Preserved
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26
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Section 308 Persons Deemed Owners
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27
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Section 309 Cancellation
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27
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Section 310 Computation of Interest
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Section 311 Original Issue Discount
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ARTICLE FOUR SATISFACTION AND DISCHARGE OF INDENTURE
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28
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Section 401 Satisfaction and Discharge
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28
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Section 402 Defeasance and Covenant Defeasance
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30
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Section 403 Application of Trust Money
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34
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Section 404 Reinstatement
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34
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ARTICLE FIVE REMEDIES
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Section 501 Events of Default
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Section 502 Acceleration of Maturity; Rescission and Annulment
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Section 503 Collection of Indebtedness and Suits for Enforcement by Trustee
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37
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Section 504 Trustee May File Proofs of Claim
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Section 505 Trustee May Enforce Claims without Possession of Securities
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38
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Section 506 Application of Money Collected.
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38
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Section 507 Limitations on Suits
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38
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Section 508 Unconditional Right of Holders to Receive Principal and any Premium,
Interest and Additional Amounts
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39
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Section 509 Restoration of Rights and Remedies
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39
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Section 510 Rights and Remedies Cumulative
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Section 511 Delay or Omission Not Waiver
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40
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Section 512 Control by Holders of Securities
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40
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Section 513 Waiver of Past Defaults
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40
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Section 514 Waiver of Usury, Stay or Extension Laws
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41
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Section 515 Undertaking for Costs
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41
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ARTICLE SIX THE TRUSTEE
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41
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Section 601 Certain Rights of Trustee
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41
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Section 602 Notice of Defaults
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42
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Section 603 Not Responsible for Recitals or Issuance of Securities
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43
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Section 604 May Hold Securities
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43
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ii
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Page
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Section 605 Money Held in Trust
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43
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Section 606 Compensation and Reimbursement
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43
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Section 607 Conflicting Interests
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44
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Section 608 Corporate Trustee Required; Eligibility
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44
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Section 609 Resignation and Removal; Appointment of Successor
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45
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Section 610 Acceptance of Appointment by Successor
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46
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Section 611 Merger, Conversion, Consolidation or Succession to Business
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47
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Section 612 Appointment of Authenticating Agent
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48
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ARTICLE SEVEN HOLDERS LISTS AND REPORTS BY TRUSTEE, ISSUER AND GUARNATORS
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48
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Section 701 Issuer to Furnish Trustee Names and Addresses of Holders
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48
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Section 702 Preservation of Information; Communications to Holders
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48
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Section 703 Reports by Trustee
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48
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Section 704 Reports by Issuer and Guarantors
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49
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ARTICLE EIGHT CONSOLIDATION, MERGER AND SALES
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49
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Section 801 Issuer May Consolidate, Etc., Only on Certain Terms
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49
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Section 802 Successor Person Substituted for Issuer
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50
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ARTICLE NINE SUPPLEMENTAL INDENTURES
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50
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Section 901 Supplemental Indentures without Consent of Holders
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50
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Section 902 Supplemental Indentures with Consent of Holders
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52
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Section 903 Execution of Supplemental Indentures
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53
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Section 904 Effect of Supplemental Indentures
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54
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Section 905 Reference in Securities to Supplemental Indentures
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54
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Section 906 Conformity with Trust Indenture Act
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54
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ARTICLE TEN COVENANTS
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54
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Section 1001 Payment of Principal, Premium, Interest and Additional Amounts
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54
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Section 1002 Maintenance of Office or Agency
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55
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Section 1003 Money for Securities Payments to Be Held in Trust
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55
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Section 1004 Additional Amounts
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56
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Section 1005 Legal Existence
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57
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Section 1006 Waiver of Certain Covenants.
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57
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Section 1007 Issuer Statement as to Compliance
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57
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Section 1008
Guarantor Statement as to Compliance
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57
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iii
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ARTICLE ELEVEN REDEMPTION OF SECURITIES
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58
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Section 1101 Applicability of Article
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58
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Section 1102 Election to Redeem; Notice to Trustee
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58
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Section 1103 Selection by Trustee of Securities to be Redeemed
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58
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Section 1104 Notice of Redemption
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59
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Section 1105 Deposit of Redemption Price
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60
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Section 1106 Securities Payable on Redemption Date
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60
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Section 1107 Securities Redeemed in Part
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60
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ARTICLE TWELVE SINKING FUNDS
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61
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Section 1201 Applicability of Article
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61
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Section 1202 Satisfaction of Sinking Fund Payments with Securities
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61
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ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS
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61
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Section 1301 Applicability of Article
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61
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ARTICLE FOURTEEN SECURITIES IN FOREIGN CURRENCIES
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62
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Section 1401 Applicability of Article
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62
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ARTICLE FIFTEEN GUARANTEES
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62
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Section 1501 Guarantees
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62
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ARTICLE SIXTEEN SECURITY
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63
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Section 1601 Security
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iv
INDENTURE, dated as of
, 201
(the Indenture), among HCA Inc., a Delaware
corporation (the Issuer), the Guarantors (as defined
below),
(the Trustee) and, if applicable,
as the Registrar, Paying Agent and Transfer Agent.
RECITALS
The Issuer has duly authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of senior unsecured and secured debentures, notes or other evidences of
indebtedness (hereinafter called the Securities), unlimited as to principal amount, to bear such
rates of interest, to mature at such time or times, to be issued in one or more series and to have
such other provisions as shall be fixed as hereinafter provided.
The Issuer and the Initial Guarantors (as defined below) have duly authorized the execution
and delivery of this Indenture. All things necessary to make this Indenture a valid agreement of
the Issuer and the Initial Guarantors, in accordance with its terms, have been done.
This
Indenture is subject to the provisions of the Trust Indenture Act (as
defined below), as amended,
and the rules and regulations of the Securities and Exchange Commission promulgated thereunder that
are required to be part of this Indenture and, to the extent applicable, shall be governed by such
provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders (as
herein defined) thereof, it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Securities or of any series thereof as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101
Definitions.
Except as otherwise expressly provided in or pursuant to this Indenture or unless the context
otherwise requires, for all purposes of this Indenture:
(1) the terms defined in this Article have the meanings assigned to them in this
Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act either
directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with GAAP;
(4) any reference to an Article or a Section refers to an Article or a Section, as
the case may be, of this Indenture;
(5) the words herein, hereof, hereto and hereunder and other words of similar
import refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision;
(6) including means including without limitation;
(7) the word or is always used inclusively (for example, the phrase A or B means A
or B or both, not either A or B but not both);
(8) provisions apply to successive events and transactions;
(9) the term merger includes a statutory share exchange and the terms merge and
merged have correlative meanings;
(10) the masculine gender includes the feminine and the neuter; and
(11) references to agreements and other instruments include subsequent amendments and
supplements thereto.
Certain terms used principally in certain Articles hereof are defined in those Articles.
Except as otherwise expressly provided in or pursuant to this Indenture, for all purposes of
this Indenture, references to the conversion or exchange of any Securities for or into other
securities or property shall not include the exchange of Securities of any series for other
Securities of the same series.
Act,
when used with respect to any Holders, has the meaning specified in
Section 104(1).
Additional Amounts means any additional amounts which are required by this Indenture or by
any Security, or by the terms of any Security established pursuant to Section 301, under
circumstances specified herein or therein, to be paid by the Issuer or any Guarantors in respect of
certain taxes, duties, levies, imposts, assessments or other governmental charges imposed on
Holders specified herein or therein.
Affiliate of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, control, when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise, and the terms controlling and
controlled have meanings correlative to the foregoing.
Agent means any Person acting as
a Paying Agent, Transfer Agent, Security Registrar, collateral agent, calculation agent or foreign currency agent, as applicable.
Applicable Procedures means,
with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the
Depository, Euroclear and/or Clearstream that apply to such transfer or exchange.
Authenticating Agent means any Person authorized by the Trustee pursuant to Section 612 to
act on behalf of the Trustee to authenticate Securities of one or more series.
Bankruptcy Law means Title 11, U.S. Code or any similar federal, state, or foreign law for
the relief of debtors.
2
Board of Directors means the board of directors of the Issuer or any committee of that board
duly authorized to act generally or in any particular respect for the Issuer hereunder. The term
board of directors means the board of directors of the Issuer and does not include committees of
the board of directors.
Board Resolution means a copy of
one or more resolutions to have been duly adopted by the Board of Directors and to be in
full force and effect on the date delivered to the Trustee.
Business Day means, unless otherwise specified with respect to the Securities of any series
pursuant to Section 301, any day other than a Saturday, Sunday or other day on which banking
institutions in The City of New York are authorized or obligated by law, regulation or executive
order to close; provided that such term shall mean, when used with respect to any payment of
principal of, or premium or interest, if any, on, or Additional Amounts with respect to, the
Securities of any series to be made at any Place of Payment for such Securities, unless otherwise
specified pursuant to Section 301 with respect to such Securities, any day other than a Saturday,
Sunday or other day on which banking institutions in such Place of Payment are authorized or
obligated by law, regulation or executive order to close.
Clearstream means Clearstream Banking,
Société Anonyme.
Collateral means, collectively,
all of the property and assets that are from time to time subject to the Lien of the security documents including the Liens, if any,
required to be granted pursuant to the Indenture.
Commission means the Securities and Exchange Commission, as from time to time constituted,
or, if at any time after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the body performing
such duties at such time.
Corporate Trust Office means the principal corporate trust office of the Trustee at which at
any particular time its corporate trust business shall be administered, which office at the date of
this Indenture is located at
.
The term Corporation includes corporations, partnerships, associations, limited liability
companies and other companies, and business trusts. The term corporation means a corporation and
does not include partnerships, associations, limited liability companies or other companies or
business trusts.
Currency, with respect to any payment, deposit or other transfer in respect of the principal
of or any premium or interest on or any Additional Amounts with respect to any Security, means
Dollars or the Foreign Currency, as the case may be, in which such payment, deposit or other
transfer is required to be made by or pursuant to the terms hereof or such Security and, with
respect to any other payment, deposit or transfer pursuant to or contemplated by the terms hereof
or such Security, means Dollars.
Default means any event that is,
or with the passage of time or the giving of notice or both would be, an Event of Default.
Defaulted Interest has the meaning specified in Section 307.
Depository means, with respect to any Security issuable or issued in the form of one or more
global Securities, the Person designated as depository by the Issuer in or pursuant to this
Indenture, and, unless otherwise provided with respect to any Security, any successor to such
Person. If at any time there is more than one such Person, Depository shall mean, with respect
to any Securities, the depository which has been appointed with respect to such Securities.
3
Dollars or $ means a dollar or other equivalent unit of legal tender for payment of public
or private debts in the United States of America.
Euroclear
means Euroclear Bank S.A./N.V., as operator of the Euroclear System.
Event of Default has the meaning specified in Section 501.
Exchange Act means the Securities Exchange Act of 1934, as amended, or any successor
thereto, in each case as amended from time to time.
Foreign Currency means any Currency, currency unit or composite currency, including, without
limitation, the Euro, issued by the government of one or more countries other than the United
States of America or by any recognized confederation or association of such governments.
GAAP
means, unless otherwise specified with
respect to any series of Securities pursuant to Section 301, such accounting principles as are
generally accepted in the United States of America as of the date or time of any computation
required hereunder.
Government Obligations means securities which are (i) direct obligations of the United
States of America or the other government or governments in the confederation which issued the
Foreign Currency in which the principal of or any premium or interest on the relevant Security or
any Additional Amounts in respect thereof shall be payable, in each case where the payment or
payments thereunder are supported by the full faith and credit of such government or governments or
(ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or such other government or governments, in each case where the
timely payment or payments thereunder are unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government or governments, and which, in
the case of (i) or (ii), are not callable or redeemable at the option of the issuer or issuers
thereof, and shall also include a depository receipt issued by a bank or trust company as custodian
with respect to any such Government Obligation or a specific payment of interest on or principal of
or other amount with respect to any such Government Obligation held by such custodian for the
account of the Holder of a depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the Holder of such
depository receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of or other amount with respect to
the Government Obligation evidenced by such depository receipt.
4
Guarantee means a guarantee of any Securities by a Guarantor as contemplated by Article
Fifteen; provided that the term Guarantee, when used with respect to any Security or with respect
to the Securities of any series, means a guarantee of such Security or of the Securities of such
series, respectively, by a Guarantor of such Security or of the Securities of such series,
respectively, as contemplated by Article Fifteen.
Guarantor means the Initial Guarantor list on schedule I hereto and any other Person who
shall have become a Guarantor under this Indenture pursuant to Section 301 or 901 hereof, in each
case unless and until a successor Person shall have been substituted for such Guarantor pursuant to
the applicable provisions of this Indenture established pursuant to Section 301 or 901, at which
time references to such Guarantor shall mean such successor Person;
provided
that the term
Guarantor, when used, with respect to any Security or the Securities of any series, means the
Persons who shall from time to time be the guarantors of such Security or the Securities of such
series, respectively, as contemplated by Article Fifteen.
Guarantors Board of Directors means, with respect
to any Guarantor, the board of directors, managers, partners or
other managing body
of such Guarantor or any committee of that board duly authorized to act generally or in any
particular respect for such Guarantor hereunder.
Guarantors Board Resolution
means, with respect to any Guarantor, a copy of one or more
resolutions to have been
duly adopted by such Guarantors Board of Directors or by
the Board of Directors of such Guarantors general partner,
managing partner or managing member
and to be in full force and effect on the date
delivered to the Trustee.
Guarantors Officers Certificate means, with respect to any Guarantor, a certificate signed
by the Chairman, the Chief Executive Officer, the President, the
Chief Financial Officer, a Vice President, the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of such Guarantor or of such Guarantors general
partner, managing partner or managing member, that, if required by the Trust Indenture
Act, complies with the requirements of Section 314(e) of the Trust Indenture Act. In the event that
Guarantors Officers Certificates relating to the same matter shall be delivered by two or more
Guarantors on the same date, such certificates may be combined into a single certificate, provided
that the certifications made by each Guarantor therein shall be several and not joint
certifications of each such Guarantor.
Guarantor
Request means, with respect to any Guarantor, a
written request signed in the name of such Guarantor by the Chairman,
the Chief Executive Officer, the President, a Vice President, the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of such Guarantor
or of such Guarantors general partner, managing partner or
managing member, and delivered to the Trustee.
In the event that Guarantors Requests relating to the same matter shall be delivered by two or
more Guarantors on the same date, such requests may be combined into a single document, provided
that the requests made by each Guarantor therein shall be several and not joint requests of each
such Guarantor.
Holder, means a Person in whose name a Security is registered in the Security Register.
Indenture means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered into
5
pursuant to the applicable provisions hereof and, with respect to any Security or Guarantee,
by the terms and provisions of such Security or such Guarantee, as the case may be, established
pursuant to Section 301 (as such terms and provisions may be amended pursuant to the applicable
provisions hereof), provided, however, that, if at any time more than one Person is acting as
Trustee under this instrument, Indenture shall mean, with respect to any one or more series of
Securities for which such Person is Trustee, this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of those particular
series of Securities for which such Person is Trustee established pursuant to Section 301,
exclusive, however, of any provisions or terms which relate solely to other series of Securities
for which such Person is not Trustee, regardless of when such terms or provisions were adopted.
Indexed Security means a Security the terms of which provide that the principal amount
thereof payable at Stated Maturity may be more or less than the principal face amount thereof at
original issuance.
Initial Guarantor or Initial Guarantors means the Guarantors listed on Schedule I hereto.
interest, with respect to any Original Issue Discount Security which by its terms bears
interest only after Maturity, means interest payable after Maturity.
Interest Payment Date, with respect to any Security, means the Stated Maturity of an
installment of interest on such Security.
Issuer means the Person named as the Issuer in the first paragraph of this instrument
until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Issuer shall mean such successor Person and any other obligor upon the
Securities.
Issuer Request and Issuer Order mean, respectively, a written request or order, as the
case may be, signed in the name of the Issuer by the Chairman, the Chief Executive Officer, the
President, the Chief Financial Officer or a Vice President and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Issuer, and delivered to the Trustee.
Lien means, with respect to any asset, any mortgage, lien (statutory or otherwise), pledge,
hypothecation, charge, security interest, preference, priority or encumbrance of any kind in
respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement, any lease in the nature thereof,
any option or other agreement to sell or give a security interest in and any filing of or agreement
to give any financing statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction;
provided
that in no event shall an operating lease be deemed to constitute a Lien.
6
Maturity, with respect to any Security, means the date on which the principal of such
Security or an installment of principal becomes due and payable as provided in or pursuant to this
Indenture or such Security, whether at the Stated Maturity or by declaration of acceleration, upon
redemption at the option of the Issuer, upon repurchase or repayment at the option of the Holder or
otherwise, and includes a Redemption Date for such Security and a date fixed for the repurchase or
repayment of such Security at the option of the Holder.
Office or Agency, with respect to any Securities, means an office or agency of the Issuer
maintained or designated in a Place of Payment for such Securities pursuant to Section 1002 or any
other office or agency of the Issuer maintained or designated for such Securities pursuant to
Section 1002 or, to the extent designated or required by Section 1002 in lieu of such office or
agency, the Corporate Trust Office of the Trustee.
Officer means the
Chairman, the Chief Executive Officer, the President, any Executive Vice
President, the Chief Financial Officer or a Vice President, the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary of the Issuer, a Guarantor or
such Guarantors general partner, managing partner or managing member, as applicable.
Officers Certificate means a certificate signed by the Chairman, the Chief Executive
Officer, the President, the Chief Financial Officer, a Vice President, the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the
Issuer or a Guarantor, as applicable that, if required by the Trust Indenture Act, complies with the
requirements of Section 314(e) of the Trust Indenture Act and is delivered to the Trustee.
Opinion of Counsel means a written opinion of counsel, who may be an employee of or counsel
for the Issuer or a Guarantor or other counsel who shall be reasonably acceptable to the Trustee,
that, if required by the Trust Indenture Act, complies with the requirements of Section 314(e) of
the Trust Indenture Act.
Original Issue Discount Security means a Security issued pursuant to this Indenture which
provides for an amount less than the principal face amount thereof to be due and payable upon
declaration of acceleration pursuant to Section 502.
Outstanding, when used with respect to any Securities, means, as of the date of
determination, all such Securities theretofore authenticated and delivered under this Indenture,
except:
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(1)
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any such Security theretofore cancelled by the Trustee or the
Security Registrar or delivered to the Trustee or the Security Registrar for
cancellation;
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(2)
|
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any such Security for whose payment at the Maturity thereof
money in the necessary amount has been theretofore deposited pursuant hereto
(other than pursuant to Section 402) with the Trustee or any Paying Agent
(other than the Issuer) in trust or set aside and segregated in trust by the
Issuer (if the Issuer shall act as its own Paying Agent) for the Holders of
such Securities, provided that, if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
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(3)
|
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any such Security with respect to which the Issuer has effected
defeasance or covenant defeasance pursuant to Section 402, except to the extent
provided in Section 402;
|
7
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(4)
|
|
any such Security which has been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, unless there shall have been
presented to the Trustee proof satisfactory to it that such Security is held by
a bona fide purchaser in whose hands such Security is a valid obligation of the
Issuer; and
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(5)
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Securities as to which any property deliverable upon conversion
thereof has been delivered (or such delivery has been made available), or as to
which any other particular conditions have been satisfied, in each case as may
be provided for such Securities as contemplated in Section 301;
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provided
,
however
, that in determining whether the Holders of the requisite principal amount of
Outstanding Securities have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, (i) the principal amount of an Original Issue Discount Security that may be
counted in making such determination and that shall be deemed to be Outstanding for such purposes
shall be equal to the amount of the principal thereof that pursuant to the terms of such Original
Issue Discount Security would be declared (or shall have been declared to be) due and payable upon
a declaration of acceleration thereof pursuant to Section 502 at the time of such determination,
and (ii) the principal amount of any Indexed Security that may be counted in making such
determination and that shall be deemed Outstanding for such purpose shall be equal to the principal
face amount of such Indexed Security at original issuance, unless otherwise provided in or pursuant
to this Indenture, and (iii) the principal amount of a Security denominated in a Foreign Currency
that may be counted in making such determination and that shall be deemed Outstanding for such
purposes shall be the Dollar equivalent, determined on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue Discount Security, the
Dollar equivalent on the date of original issuance of such Security of the amount determined as
provided in (i) above) of such Security, and (iv) Securities owned by the Issuer, a Guarantor of
the Securities or any other obligor upon the Securities, or any Affiliate of the Issuer or any such
Guarantor or such other obligor shall be disregarded and deemed not to be Outstanding, except that,
in determining whether the Trustee shall be protected in making any such determination or relying
upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities
which a Responsible Officer of the Trustee knows to be so owned shall be so disregarded.
Securities so owned which shall have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee (A) the pledgees right so to act with
respect to such Securities and (B) that the pledgee is not the Issuer or a Guarantor of the
Securities any other obligor upon the Securities or an Affiliate (other than a Trust) of the Issuer
or a Guarantor of the Securities or such other obligor.
Paying Agent means any Person authorized by the Issuer to pay the principal of, or any
premium or interest on, or any Additional Amounts with respect to, any Security on behalf of the
Issuer.
Person and person mean any individual, Corporation joint venture, joint-stock company,
trust, unincorporated organization or government or any agency or political subdivision thereof.
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Place of Payment, with respect to any Security, means the place or places where the
principal of, or any premium or interest on, or any Additional Amounts with respect to such
Security are payable as provided in or pursuant to this Indenture or such Security.
Predecessor Security of any particular Security means every previous Security evidencing all
or a portion of the same indebtedness as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and delivered under Section 306 in exchange
for or in lieu of a lost, destroyed, mutilated or stolen Security shall be deemed to evidence the
same indebtedness as the lost, destroyed, mutilated or stolen Security.
Redemption Date, with respect to any Security or portion thereof to be redeemed, means the
date fixed for such redemption by or pursuant to this Indenture or such Security.
Redemption Price, with respect to any Security or portion thereof to be redeemed, means the
price at which it is to be redeemed as determined by or pursuant to this Indenture or such
Security.
Regular Record Date for the interest payable on any Security on any Interest Payment Date
therefor means the date, if any, specified in or pursuant to this Indenture or such Security as the
record date for the payment of such interest.
Responsible Officer means any officer of the Trustee in its Corporate Trust Office having
direct responsibility for matters pertaining to this Indenture and also means, with respect to a
particular corporate trust matter, any other officer or employee of the Trustee to whom such matter
is referred because of his or her knowledge of and familiarity with the particular subject.
Securities Act means the Securities Act of 1933, as amended, or any successor thereto, in
each case as amended from time to time.
Security or Securities means any note or notes, bond or bonds, debenture or debentures, or
any other evidences of indebtedness, as the case may be, authenticated and delivered under this
Indenture;
provided, however
, that, if at any time there is more than one Person acting as Trustee
under this Indenture, Securities, with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of Securities of any series
as to which such Person is not Trustee.
Security Register and Security Registrar have the respective meanings specified in Section
305.
Significant Subsidiary means, as of any date of determination, a Subsidiary of the Issuer
that would constitute a significant subsidiary, as such term is defined under Rule 1-02(w) of
Regulation S-X of the Commission as in effect on the date of this Indenture.
Special Record Date for the payment of any Defaulted Interest on any Security means a date
fixed by the Trustee pursuant to
Section 307(1).
Stated Maturity, with respect to any Security or any installment of principal thereof or
interest thereon or any Additional Amounts with respect thereto, means the date established by
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or pursuant to this Indenture or such Security as the fixed date on which the principal of
such Security or such installment of principal or interest is, or such Additional Amounts are, due
and payable.
Subsidiary
means, with respect
to any Person, (i) any corporation, association, or other business entity (other than a partnership, joint venture, limited
liability company or similar entity) of which more than 50% of the total voting power of shares of capital stock entitled
(without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof
is at the time of determination owned or controlled, directly or indirectly, by such Person or one or more of the
other Subsidiaries of that Person or a combination thereof or is consolidated under GAAP with such Person at
such time; and (ii) any partnership, joint venture, limited liability company or similar entity of which more
than 50% of the equity ownership, whether in the form of membership, general, special or limited partnership
interests or otherwise, is owned or controlled, directly or indirectly, by such Person or one or more of the
other Subsidiaries of that Person or a combination thereof or is consolidated under GAAP with such person at such time.
Trust Indenture Act means the Trust Indenture Act of 1939, as amended, and any reference
herein to the Trust Indenture Act or a particular provision thereof shall mean such Act or
provision, as the case may be, as amended or replaced from time to time or as supplemented from
time to time by rules or regulations adopted by the Commission under or in furtherance of the
purposes of such Act or provision, as the case may be.
Trustee means the Person named as the Trustee in the first paragraph of this instrument
until a successor Trustee shall have become such with respect to one or more series of Securities
pursuant to the applicable provisions of this Indenture, and thereafter Trustee shall mean each
Person who is then a Trustee hereunder; provided, however, that if at any time there is more than
one such Person, Trustee shall mean each such Person and as used with respect to the Securities
of any series shall mean the Trustee with respect to the Securities of such series.
United States, means the United States of America (including the states thereof and the
District of Columbia), its territories, its possessions and other areas subject to its
jurisdiction; and the term United States of America means the United States of America.
United States Alien, except as otherwise provided in or pursuant to this Indenture or any
Security, means any Person who, for United States Federal income tax purposes, is a foreign
corporation, a non-resident alien individual, a non-resident alien fiduciary of a foreign estate or
trust, or a foreign partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a non-resident alien
fiduciary of a foreign estate or trust.
Vice President, when used with respect to the Issuer or the Trustee, means any vice
president, whether or not designated by a number or a word or words added before or after the title
Vice President.
Section 102
Compliance Certificates and Opinions.
Except as otherwise expressly provided in or pursuant to this Indenture, upon any application
or request by the Issuer or a Guarantor to the Trustee to take any action under any provision of
this Indenture, the Issuer or such Guarantor, as the case may be, shall furnish to the Trustee, if
requested by the Trustee, an Officers Certificate or a
Guarantors Officers Certificate, as the
case may be, stating that all conditions precedent, if any, provided for in this
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Indenture relating to the proposed action have been complied with and an Opinion of Counsel
stating that, in the opinion of such counsel, all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to which the
furnishing of such documents or any of them is specifically required by any provision of this
Indenture relating to such particular application or request, no additional certificate or opinion
need be furnished by the Issuer, and except that no such Officers Certificate or Opinion of
Counsel shall be required in connection with the execution of a supplemental indenture
contemporaneously with the execution of this Indenture.
Section 103
Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Issuer or a Guarantor may be based, insofar as
it relates to legal matters, upon an Opinion of Counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion with respect to the matters upon which
his certificate or opinion is based is erroneous. Any such Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Issuer, a Guarantor, a governmental official or officers or any other
Person or Persons stating that the information with respect to such factual matters is in the
possession of the Issuer or such Guarantor, as the case maybe be, unless such counsel knows, or in
the exercise of reasonable care should know, that the certificate, opinion or representations with
respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture or any
Security, they may, but need not, be consolidated and form one instrument.
Section 104
Acts of Holders.
(1) Any request, demand, authorization, direction, notice, consent, waiver or other action
provided by or pursuant to this Indenture to be made, given or taken by Holders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly required, to the Issuer and the
Guarantors. Such instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the Act of the Holders signing such
instrument or instruments or so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to Section 315 of the
Trust Indenture Act) conclusive in favor of the Trustee, the Issuer or a
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Guarantor and any agent of the Trustee, the Issuer or such Guarantor, if made in the manner
provided in this Section.
(2) Without limiting the generality of this Section 104, unless otherwise provided in or
pursuant to this Indenture, a Holder, including a Depository that is a Holder of a global Security,
may make, give or take, by a proxy or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other Act provided in or pursuant to this
Indenture or the Securities to be made, given or taken by Holders, and a Depository that is a
Holder of a global Security may provide its proxy or proxies to the beneficial owners of interests
in any such global Security through such Depositorys standing instructions and customary
practices.
(3) The fact and date of the execution by any Person of any such instrument or writing may be
proved in any reasonable manner which the Trustee deems sufficient and in accordance with such
reasonable rules as the Trustee may determine; and the Trustee may in any instance require further
proof with respect to any of the matters referred to in this Section.
(4) The ownership, principal amount and serial numbers of Securities held by any Person, and
the date of the commencement and the date of the termination of holding the same, shall be proved
by the Security Register.
(5) If the Issuer shall solicit from the Holders of any Securities any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Issuer may at its option (but
is not obligated to), by Board Resolution fix in advance a record date for the determination of
Holders of Securities entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after such record date, but
only the Holders of Securities of record at the close of business on such record date shall be
deemed to be Holders for the purpose of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that purpose the
Outstanding Securities shall be computed as of such record date; provided that no such
authorization, agreement or consent by the Holders of Securities shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later than six months
after the record date.
(6) Any request, demand, authorization, direction, notice, consent, waiver or other Act by the
Holder of any Security shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done or suffered to be done by the Trustee, any Security Registrar,
any Paying Agent or the Issuer in reliance thereon, whether or not notation of such Act is made
upon such Security.
Section 105
Notices, etc., to Trustee, Issuer and Guarantors.
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Any request, demand, authorization, direction, notice, consent, waiver or other Act of Holders
or other document provided or permitted by this Indenture to be made upon, given or furnished to,
or filed with,
(1) the Trustee by any Holder, a Guarantor or the Issuer shall be sufficient for every
purpose hereunder if made, given, furnished or filed in writing to or
with and received by the Trustee at
its Corporate Trust Office, or
(2) the Issuer or a Guarantor by the Trustee or any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in writing and
delivered in person or mailed by first-class mail (registered or certified, return receipt
requested), fax or overnight air courier guaranteeing next day delivery to the Issuer or
such Guarantor, as the case may be, addressed to the attention of its General Counsel at the
address of the Issuers principal office set forth below, or as set forth in any
supplemental indenture or at any other address furnished in writing to the Trustee by the
Issuer as such Guarantor, as the case may be.
If to the Issuer or any Guarantor:
One Park Plaza
Nashville, Tennessee 37203
Fax No.: (615) 344-1531; Attention: General Counsel
Fax No.: (866) 741-5906; Attention: Treasurer
All notices and communications
(other than those sent to Holders) shall be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five calendar days after being deposited in the mail, postage prepaid, if mailed by first-class mail; when
receipt acknowledged, if faxed; and the next Business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery;
provided
that any notice or communication delivered to the Trustee
shall be deemed effective upon actual receipt thereof.
Section 106
Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this Indenture, where this Indenture
provides for notice to Holders of Securities of any event, such notice shall be sufficiently given
(unless otherwise herein expressly provided) to Holders of Securities if in writing and mailed,
first-class postage prepaid, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery or delivered by electronic transmission to each Holder of a
Security affected by such event, at such Holders address as it appears in the Security Register,
not later than the latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. Any notice or communication shall also be so mailed to any Person described in
Trust Indenture Act Section 313(c), to the extent required by the Trust Indenture Act. Failure to
mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.
In any case where notice to Holders of Securities is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Security
shall affect the sufficiency of such notice with respect to other Holders of Securities In the case
by reason of the suspension of regular mail service or by reason of any other cause it shall be
impracticable to give such notice by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice may be waived in writing
by the Person entitled to receive such notice, either before or after the event, and such waiver
shall be the equivalent of such notice. Waivers of notice by Holders of Securities shall be filed
with the Trustee, but such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Where this Indenture provides for notice of any event to a Holder of a Global Security, such
notice shall be sufficiently given if given to the Depository for such Security (or its designee),
pursuant to the Applicable Procedures of the Depository, not later than the latest date, if any,
and not earlier than the earliest date, if any, prescribed for the giving of such notice.
If a notice or communication is made in the manner provided above within the time prescribed,
it is duly given, whether or not the addressee receives it.
If the Issuer gives notice or communication to Holders, it shall provide a copy to the Trustee
and each Agent, as applicable, at the same time.
Section 107
Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any duties under any required
provision of the Trust Indenture Act imposed hereon by Section 318(c) thereof, such required
provision shall control.
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Section 108
Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 109
Successors and Assigns.
All covenants and agreements in this Indenture by the Issuer shall bind its successors and
assigns, whether so expressed or not. All agreements of the Trustee,
Registrar, Paying Agent and Transfer Agent, as applicable, in this Indenture shall bind
their successors and assigns, whether so expressed or not.
Section 110
Separability Clause.
In case any provision in this Indenture, any Security shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not, to
the fullest extent permitted by applicable law, in any way be affected or impaired thereby.
Section 111
Benefits of Indenture.
Nothing in this Indenture or any Security, express or implied, shall give to any Person, other
than the parties hereto, any Agent, Any Authenticating Agent and their successors hereunder
and the Holders of Securities, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
Section 112
Governing Law.
THIS
INDENTURE, THE SECURITIES AND THE GUARANTEES OF THE SECURITIES SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 113
Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or any Securities, in any case
where any Interest Payment Date, Stated Maturity or Maturity of, or any other day on which a
payment is due with respect to, any Security shall be a day which is not a Business Day at any
Place of Payment, then (notwithstanding any other provision of this Indenture or any Security other
than a provision in any Security or in the Board Resolution, Officers Certificate or supplemental
indenture establishing the terms of any Security that specifically states that such provision shall
apply in lieu hereof) payment need not be made at such Place of Payment on such date, but such
payment may be made on the next succeeding day that is a Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date, at the Stated Maturity or
Maturity or on any such other payment date, as the case may be, and no interest shall accrue on the
amount payable on such date or at such time for the period from and after such Interest Payment
Date, Stated Maturity, Maturity or other payment date, as the case may be, to the next succeeding
Business Day.
Section 114
Waiver of Jury Trial.
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EACH
OF THE ISSUER, THE GUARANTORS, THE TRUSTEE AND THE REGISTRAR, PAYING
AGENT AND TRANSFER AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE SECURITIES.
Section 115
Force Majeure
.
In
no event shall the Trustee, Paying Agent, Registrar or Transfer Agent
be responsible or liable for any failure or delay in the performance
of its obligations under this Indenture arising out of or caused by,
directly or indirectly, forces beyond its reasonable control,
including without limitation strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or
natural catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities, communications or computer (software or
hardware) services.
Section 116
Counterparts.
This Indenture may be executed in several counterparts, each of which shall be an original and
all of which shall constitute but one and the same instrument.
Section 117
Extension of Payment Dates.
In the event that (i) the terms of any Security or any Guarantee established in or pursuant to
this Indenture permit the Issuer , any Guarantor or any Holder thereof to extend the date on which
any payment of principal of, or premium, if any, or interest, if any, on, or Additional Amounts, if
any, with respect to such Security or Guarantee, as the case may be, is due and payable and (ii)
the due date for any such payment shall have been so extended, then all references herein to the
Stated Maturity of such payment (and all references of like import) shall be deemed to refer to the
date as so extended.
Section 118
Immunity of Shareholders, Directors, Officers and Agents of the Issuer and Any
Guarantor.
No recourse under or upon any obligation, covenant or agreement contained in this Indenture or
in any Security or Guarantee, or because of any indebtedness evidenced thereby, or for any claim
based thereon or otherwise in respect thereof, shall be had against any past, present or future
shareholder, incorporator, employee, officer or director, as such, of the Issuer or any predecessor
or successor to the Issuer or any Guarantor, either directly or through the Issuer or any Guarantor
or any such predecessor or successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the Securities by the Holders
and as part of the consideration for the issue of the Securities; it being expressly understood
that, without limitation to the foregoing, this Indenture, the Securities and the Guarantees and
the obligations created hereunder and thereunder are solely corporate, limited liability company,
partnership, limited partnership or similar obligations, as the case may be, of the Issuer and the
respective Guarantors and that no such personal liability whatever shall attach to, or is or shall
be incurred by, any past, present or future shareholder, incorporator, employee, officer or
director, as such, of the Issuer or any Guarantor or any of their respective predecessors or
successors, or any of them, because of the creation of the indebtedness hereby authorized, or under
or by reason of the obligations, covenants or agreements contained in this Indenture or in any
Security or Guarantee implied herefrom or therefrom and that any and all such personal liability of
every type and nature, either at common law or in equity or by constitution or statute, of, and any
and all such rights and claims against, every such past, present or future shareholder,
incorporator, employee, officer or director, as such, because of the creation of the indebtedness
hereby authorized, or under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any Security or Guarantee or implied herefrom or therefrom, are hereby
expressly waived and released as a condition of, and as a consideration for,
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the execution of this Indenture and the issuance of the Securities. As used in this Section
118, all references to shareholders shall be deemed to mean, with respect to any Person, any
past, present or future Holder or owner of an equity interest in such Person, including, without
limitation, owners or holders of capital stock, limited or general partnership interests and
limited liability company interests.
ARTICLE TWO
SECURITIES FORMS
Section 201
Forms Generally.
The Securities of each series shall be in substantially such form or forms as shall be
established by or pursuant to a Board Resolution or, subject to Section 303, set forth in, or
determined in the manner provided in, an Officers Certificate pursuant to a Board Resolution, or
in one or more indentures supplemental hereto, and any Guarantee
or any
Security issued pursuant to this Indenture shall be in the form established by or pursuant to a
Guarantors Board Resolution or a Guarantors
Officers Certificate pursuant to a Guarantors Board Resolution, or established
in one or more indentures supplemental hereto, and in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with applicable tax laws or the rules of
any securities exchange or Depository therefor or as may, consistently herewith, be determined by
the Officer executing such Securities, as evidenced by his or her execution thereof. If the form of
Securities of any series is established by action taken pursuant to a Board Resolution, a copy of
an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary
of the Issuer and delivered to the Trustee at or prior to the delivery of the Issuer Order
contemplated by Section 303 for the authentication and delivery of such Securities. If all of the
Securities of any series established by action taken pursuant to a Board Resolution are not to be
issued at one time, it shall not be necessary to deliver a record of such action at the time of
issuance of each Security of such series, but an appropriate record of such action shall be
delivered at or before the time of issuance of the first Security of such series.
Anything herein to the contrary notwithstanding, there shall be no requirement that any
Security have endorsed thereon or attached thereto a Guarantee or a notation of a Guarantee, but
such a Guarantee or notation of a Guarantee may be endorsed thereon or attached thereto as
contemplated by this Section 201.
Section 202
Form of Trustees Certificate of Authentication.
Subject to Section 612, the Trustees certificate of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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as Trustee
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Authorized Signatory
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Section 203
Form of Legend for Global Notes.
Unless otherwise specified as contemplated by Section 301 for the Securities evidenced thereby
or as required by Applicable Procedures, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
[
Insert, if applicable
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (
DTC
), NEW YORK, NEW YORK, TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
[
Insert, if applicable
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED,
AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON
OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.]
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ARTICLE THREE
THE SECURITIES
Section 301
Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited. The Securities may be issued in one or more series.
With respect to any Securities to be authenticated and delivered hereunder, there shall be
established in or pursuant to one or more Board Resolutions, as applicable, or Guarantors Board Resolutions, or
set forth in an Officers Certificate or one or more
Guarantors Officers Certificate pursuant to a Board Resolution, as applicable, or
established in one or more indentures supplemental hereto, prior to the issuance of any Securities
of a series,
(1) the title of the Securities of such series;
(2) any limit upon the aggregate principal amount of the Securities of such series
which may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Securities of such series pursuant to Section 304, 305, 306, 905 or 1107, upon
repayment in part of any Security of such series pursuant to Article Thirteen or upon
surrender in part of any Security for conversion or exchange into Common Shares or other
securities or property pursuant to its terms), and if such series may not be reopened from
time to time for the issuance of additional Securities of such series;
(3) if any of such Securities are to be issuable in global form, when any of such
Securities are to be issuable in global form and (i) whether such Securities are to be
issued in temporary or permanent global form or both, (ii) whether beneficial owners of
interests in any such global Security may exchange such interests for Securities of the same
series and of like tenor and of any authorized form and denomination, and the circumstances
under which any such exchanges may occur, if other than in the manner specified in Section
305, (iii) the name of the Depository with respect to any such global Security and (iv) if
applicable and in addition to the Persons specified in Section 305, the Person or Persons
who shall be entitled to make any endorsements on any such global Security and to give the
instructions and take the other actions with respect to such global Security contemplated by
the first paragraph of Section 203;
(4) the date or dates, or the method or methods, if any, by which such date or dates
shall be determined, on which the principal and premium, if any, of such Securities is
payable;
(5) the rate or rates at which such Securities shall bear interest, if any, or the
method or methods, if any, by which such rate or rates are to be determined, the date or
dates, if any, from which such interest shall begin to accrue or the method or methods, if
any, by which such date or dates are to be determined, the Interest Payment Dates, if any,
on which such interest shall be payable and the Regular Record Date, if any, for the
interest payable on Securities on any Interest Payment Date, the notice, if any, to Holders
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regarding the determination of interest on a floating rate Security and the manner of
giving such notice, and the basis upon which interest shall be calculated if other than that
of a 360-day year of twelve 30-day months;
(6) if in addition to or other than the place where the Corporate Trust Office of the
Trustee may from time to time be located, the place or places where the principal of,
premium, if any, and interest, if any, on, and Additional Amounts, if any, with respect to,
such Securities shall be payable, any of such Securities that are Securities may be
surrendered for registration of transfer or exchange, any of such Securities may be
surrendered for conversion or exchange and notices or demands to or upon the Issuer in
respect of such Securities and this Indenture may be served;
(7) whether any of such Securities are to be redeemable at the option of the Issuer
and, if so, the date or dates on which, the period or periods within which, the price or
prices at which and the other terms and conditions upon which such Securities may be
redeemed, in whole or in part, at the option of the Issuer;
(8) if the Issuer is obligated to redeem or purchase any of such Securities pursuant to
any sinking fund or analogous provision or at the option of any Holder thereof and, if so,
the date or dates on which, the period or periods within which, the price or prices at which
and the other terms and conditions upon which such Securities shall be redeemed or
purchased, in whole or in part, pursuant to such obligation, and any provisions for the
remarketing of such Securities so redeemed or purchased;
(9) if other than denominations of $2,000 and any integral multiple of $1,000 in excess
thereof, the denominations in which any Securities of the series shall be issuable;
(10) if other than the principal amount thereof, the portion of the principal amount of
any of such Securities that shall be payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 502 or the method by which such portion is to be
determined;
(11) if other than Dollars, the Foreign Currency in which payment of the principal of,
any premium or interest on or any Additional Amounts with respect to any of such Securities
shall be payable;
(12) if the principal of, any premium or interest on or any Additional Amounts with
respect to any of such Securities are to be payable, at the election of the Issuer or a
Holder thereof or otherwise, in Dollars or in a Foreign Currency other than that in which
such Securities are stated to be payable, the date or dates on which, the period or periods
within which, and the other terms and conditions upon which, such election may be made, and
the time and manner of determining the exchange rate between the Currency in which such
Securities are stated to be payable and the Currency in which such Securities or any of them
are to be paid pursuant to such election, and any deletions from or modifications of or
additions to the terms of this Indenture to provide for or to
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facilitate the issuance of Securities denominated or payable, at the election of the
Issuer or a Holder thereof or otherwise, in a Foreign Currency;
(13) if the amount of payments of principal of, any premium or interest on or any
Additional Amounts with respect to such Securities may be determined with reference to an
index, formula or other method or methods (which index, formula or method or methods may be
based, without limitation, on one or more Currencies, commodities, equity indices or other
indices), and, if so, the terms and conditions upon which and the method by which such
amounts shall be determined and paid or payable;
(14) any deletions from, modifications of or additions to the Events of Default or
covenants of the Issuer or any Guarantors with respect to such Securities or the related
Guarantees (whether or not such Events of Default or covenants are consistent with the
Events of Default or covenants set forth herein), and, if any additional covenants not
contained in this Indenture as of its date shall be applicable with respect to such
Securities, whether Section 1006 shall be applicable with respect to any such additional
covenants;
(15)
if any one or more of the provisions of Section 401 relating to satisfaction and discharge, Section
402(2) relating to defeasance or Section 402(3) relating to covenant defeasance shall not be
applicable to the Securities of such series, and any covenants in addition to or other than
those covenants, if any, specified in Section 402(3) relating to the Securities of such
series which shall be subject to covenant defeasance, and, if the Securities of such series
are subject to repurchase or repayment at the option of the Holders thereof pursuant to
Article Thirteen, if the Issuers obligation to repurchase or repay such Securities will not
be subject to satisfaction and discharge pursuant to Section 401 or to defeasance pursuant
to Section 402, and, if the Holders of such Securities have the right to convert or exchange
such Securities into Common Shares or other securities or property, if the right to effect
such conversion or exchange will be subject to satisfaction and discharge pursuant to
Section 401 or to defeasance or covenant defeasance pursuant to Section 402, and any
deletions from, or modifications or additions to, the provisions of Article Four in respect
of the Securities of such series;
(16) if any of such Securities are issuable in global form and are to be issuable in
definitive form (whether upon original issue or upon exchange of a temporary Security) only
upon receipt of certain certificates or other documents or satisfaction of other conditions,
then the form and terms of such certificates, documents or conditions;
(17) whether and under what circumstances the Issuer or any Guarantor of such
Securities will pay Additional Amounts on such Securities or its Guarantee of such
Securities, as the case may be, to any Holder who is a United States Alien in respect of
specified taxes, assessments or other government charges and, if so, whether the Issuer will
have the option to redeem such Securities rather than pay such Additional Amounts;
(18) if there is more than one Trustee, the identity of the Trustee and, if not the
Trustee, the identity of each Security Registrar, Paying Agent,
Transfer Agent or Authenticating Agent, as applicable, with
respect to such Securities;
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(19) the Person to whom any interest on any Security of such series shall be payable,
if other than the Person in whose name the Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for such interest, the
manner in which, and the extent to which, or the manner in which, any interest payable on a
temporary global Security will be paid if other than in the manner provided in this
Indenture;
(20) the names of the Guarantors of the Securities of such series (which may, but need
not, include any or all of the Initial Guarantors) and the terms of the Guarantees of the
Securities of such series, including, without limitation, any deletions from, or
modifications or additions to, the provisions of Article Sixteen or any other provisions of
this Indenture in connection with the Guarantees of the Securities of such series;
(21) whether the Securities of such series or any Guarantees of such Securities are to
be secured by any property, assets or other collateral and, if so, the applicable
collateral, any deletions from, or modifications or additions to, the provisions of Article
Sixteen hereof or any other provisions of this Indenture in connection therewith or in
connection with any other instrument or agreement entered into in connection therewith; and
(22) any other terms of such Securities and the Guarantees of such Securities (whether
or not such other terms are consistent or inconsistent with any other terms of this
Indenture) and any deletions from or modifications or additions to this Indenture in respect
of such Securities or such Guarantees.
All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution referred to above or
pursuant to authority granted by one or more Board Resolutions and, subject to Section 303, set
forth, or determined in the manner provided, in the Officers
Certificate pursuant to a Board Resolution referred to above or in
any such indenture supplemental hereto. All Securities of any one series need not be issued at one
time and, unless otherwise provided in or pursuant to the Board Resolution referred to above and,
subject to Section 303, set forth, or determined in the manner provided, in the Officers
Certificate pursuant to a Board Resolution referred to above or pursuant to authority granted by one or more Board Resolutions or
in any such indenture supplemental hereto with respect to a series of Securities, additional
Securities of a series may be issued, at the option of the Issuer, without the consent of any
Holder, at any time and from time to time.
If any of the terms of the Securities of any series or any Guarantee of the Securities of any
series shall be established by action taken by or pursuant to one or more Board Resolutions or
Guarantors Board Resolutions, such Board Resolutions or Guarantors Board Resolutions shall be
delivered to the Trustee at or prior to the delivery of the
Officers Certificate or the
Guarantors Officers Certificate setting forth the terms of such series.
Section 302
Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, the principal of, any premium and
interest on and any Additional Amounts with respect to the Securities shall be payable in
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Dollars. Unless otherwise provided in or pursuant to this Indenture, Securities denominated
in Dollars shall be issuable in registered form without coupons in denominations of $2,000 and any
integral multiples of $1,000 in excess thereof. Securities not denominated in Dollars shall be
issuable in such denominations as are established with respect to such Securities in or pursuant to
this Indenture.
Section 303
Execution, Authentication, Delivery and Dating.
Securities
shall be executed on behalf of at least one Officer of the Issuer and may (but need not) have its
corporate or other seal or a facsimile thereof reproduced thereon and
may be signed by manual or facsimile signature.
If any Guarantees are to be endorsed on or attached to any Securities, and if such Guarantees
provide for the execution thereof by the applicable Guarantors (it being understood and agreed that
any such Guarantee may, but need not, provide for the execution by the applicable Guarantors), such
Guarantees shall be executed on behalf of an Officer of each applicable Guarantor and may (but need not)
have its corporate or other
seal or facsimile thereof reproduced thereon. The signature of any of these officers on any
Guarantee may be manual or facsimile.
Securities and any Guarantees bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Issuer or the applicable Guarantor, as the case may be,
shall, to the fullest extent permitted by applicable law, bind the Issuer or such Guarantor, as the
case may be, notwithstanding that such individuals or any of them have ceased to hold such offices
prior to the authentication and delivery of such Securities or did not hold such offices at the
date of such Securities
At any time and from time to time after the execution and delivery of this Indenture, the
Issuer may deliver Securities executed by the Issuer, to the Trustee for authentication and,
provided that the Board Resolution or Officers Certificate
pursuant to a Board Resolution (and each Guarantors Board Resolution
or Guarantors Officers Certificate pursuant to a
Guarantors Board Resolution) or supplemental indenture or indentures with respect to such
Securities referred to in Section 301 and a Issuer Order for the authentication and delivery of
such Securities have been delivered to the Trustee, the Trustee in accordance with the Issuer Order
and subject to the provisions hereof and of such Securities shall authenticate and deliver such
Securities.
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The Trustee shall not be required to authenticate or to cause an Authenticating Agent to
authenticate any Securities if the issue of such Securities pursuant to this Indenture will affect
the Trustees own rights, duties or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee or if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose, unless there appears on such Security a certificate of authentication
substantially in the form provided for in Section 202 or 612 executed by or on behalf of the
Trustee or by the Authenticating Agent by the manual signature of one of its authorized
signatories. Such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder..
Section 304
Temporary Securities.
Pending the preparation of definitive Securities, the Issuer may execute and deliver to the
Trustee and, upon Issuer Order, the Trustee shall authenticate and deliver, in the manner provided
in Section 303, temporary Securities in lieu thereof which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of
the definitive Securities in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers of the Issuer executing such
Securities may determine, as conclusively evidenced by their execution of such Securities. Such
temporary Securities may be in global form.
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Except in the case of temporary Securities in global form, which shall be exchanged in
accordance with the provisions set forth in this Indenture or the provisions established pursuant
to Section 301, if temporary Securities are issued, the Issuer shall cause definitive Securities to
be prepared without unreasonable delay. Except as otherwise provided in or pursuant to this
Indenture, after the preparation of definitive Securities of the same series and containing terms
and provisions that are identical to those of any temporary Securities, such temporary Securities
shall be exchangeable for such definitive Securities upon surrender of such temporary Securities at
an Office or Agency for such Securities, without charge to any Holder thereof. Except as otherwise
provided in or pursuant to this Indenture, upon surrender for cancellation of any one or more
temporary Securities, the Issuer shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of authorized denominations of
the same series and containing identical terms and provisions. Unless otherwise provided in or
pursuant to this Indenture with respect to a temporary global Security, until so exchanged the
temporary Securities of any series shall in all respects be entitled to the same benefits under
this Indenture as definitive Securities of such series.
Section 305
Registration, Transfer and Exchange.
The Issuer shall cause to be kept at the Corporate Trust Office of the Trustee a register (the
register maintained in such office and in any other office or agency of the Issuer in a Place of
Payment being herein sometimes collectively referred to as the Security Register) in which,
subject to such reasonable regulations as it may prescribe, the Issuer shall provide for the
registration of transfers and exchanges of Securities. The Registrar
named in the first paragraph of this instrument is hereby appointed Security
Registrar for the purpose of registering transfers of and exchanging Securities as herein
provided.
Except as otherwise provided in or pursuant to this Indenture, upon surrender for registration
of transfer of any Security of a series at the office or agency of the Issuer in a Place of Payment
for such series, the Issuer shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of the same series, of
any authorized denominations and of like tenor and principal amount.
Except as otherwise provided in or pursuant to this Indenture, at the option of the Holder,
Securities of any series may be exchanged for other Securities of the same series, of any
authorized denominations and of like tenor and principal amount, upon surrender of the Securities
to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange,
the Issuer shall execute, and the Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.
The Issuer shall execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Issuer evidencing the same debt and entitling the Holders thereof to the
same benefits under this Indenture and the applicable Guarantees as the Securities surrendered upon
such registration of transfer or exchange.
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Every Security presented or surrendered for registration of transfer or for exchange or
redemption shall (if so required by the Issuer or the Trustee) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Issuer and the Security Registrar
for such Security duly executed by the Holder thereof or such Holders attorney duly authorized in
writing.
No service charge shall be made for any registration of transfer or exchange of Securities, or
any redemption or repayment of Securities, or any conversion or exchange of Securities for other
types of securities or property, but the Issuer may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section 304, 905 or 1107 not
involving any transfer.
If the Securities of any series (or of any series and specified tenor) are to be redeemed in
part, the Issuer shall not be required (A) to issue, register the transfer of or exchange any
Securities of such series (or of such series and specified tenor, as the case may be) during a
period beginning at the opening of business 15 days before the
day of the of a notice of
redemption of any such Securities selected for redemption under Section 1103 and ending at the
close of business on the day of such, or (B) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part.
Section 306
Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, subject to the provisions of this
Section 306, the Issuer shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series containing identical terms and of like principal amount
and bearing a number not contemporaneously outstanding.
If there be delivered to the Issuer and to the Trustee (i) evidence to their satisfaction of
the destruction, loss or theft of any Security, and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless from and against any
and all loss, liability or expense, then, in the absence of notice to the Issuer or the Trustee
that such Security has been acquired by a bona fide purchaser, the Issuer shall execute and the
Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Security, a new Security of the same series containing identical terms
and of like principal amount and bearing a number not contemporaneously outstanding.
In case any mutilated, destroyed, lost or stolen Security has become or is about to become due
and payable, the Issuer in its discretion may, instead of issuing a new Security, pay such
Security.
Upon the issuance of any new Security under this Section, the Issuer may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of counsel to the Issuer and the
fees and expenses of the Trustee and its counsel) connected therewith.
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Every new Security issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security shall constitute a separate obligation of the Issuer, whether or not the destroyed, lost
or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other Securities of such
series duly issued hereunder.
The provisions of this Section, as amended or supplemented pursuant to this Indenture with
respect to particular Securities or generally, shall (to the extent lawful) be exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307
Payment of Interest and Certain Additional Amounts; Rights to Interest and Certain
Additional Amounts Preserved.
Unless otherwise provided in or pursuant to this Indenture, any interest on and any Additional
Amounts with respect to any Security which shall be payable, and are punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose name such Security
(or one or more Predecessor Securities) is registered as of the close of business on the Regular
Record Date for such interest.
Unless otherwise provided in or pursuant to this Indenture, any interest on and any Additional
Amounts with respect to any Security which shall be payable, but shall not be punctually paid or
duly provided for, on any Interest Payment Date (herein called Defaulted Interest) shall
forthwith cease to be payable to the Holder thereof on the relevant Regular Record Date by virtue
of having been such Holder; and such Defaulted Interest may be paid by the Issuer, at its election
in each case, as provided in Clause (1) or (2) below:
(1) The Issuer may elect to make payment of any Defaulted Interest to the Person in
whose name such Security (or a Predecessor Security thereof) shall be registered at the
close of business on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Issuer shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on such Security and the date of the
proposed payment, and at the same time the Issuer shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior
to the date of the proposed payment, such money when so deposited to be held in trust for
the benefit of the Person entitled to such Defaulted Interest as in this Clause provided.
Thereupon, the Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the Issuer of such Special
Record Date and, in the name and at the expense of the Issuer shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date therefor to be
in writing to the Holder of such Security (or a Predecessor
Security thereof) at his address as it appears in the Register not less than 10 days prior
to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor having
26
been mailed as aforesaid, such Defaulted Interest shall be paid to the Person in whose
name such Security (or a Predecessor Security thereof) shall be registered at the close of
business on such Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Issuer may make payment of any Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any securities exchange on which such Security may
be listed, and upon such notice as may be required by such exchange, if, after notice given
by the Issuer to the Trustee of the proposed payment pursuant to this Clause, such payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305, each Security delivered
under this Indenture upon registration of transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried
by such other Security.
Section 308
Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the Issuer, the
Guarantors, the Trustee and any agent of the Issuer, any Guarantor or the Trustee may treat the
Person in whose name such Security is registered in the Security Register as the owner of such
Security for the purpose of receiving payment of principal of, any premium and (subject to Sections
305 and 307) interest on and any Additional Amounts with respect to such Security and for all other
purposes whatsoever, whether or not any payment with respect to such Security shall be overdue, and
none of the Issuer, the Guarantors, the Trustee or any agent of the Issuer any Guarantor or the
Trustee shall be affected by notice to the contrary.
No Holder of any beneficial interest in any global Security held on its behalf by a Depository
shall have any rights under this Indenture with respect to such global Security, and such
Depository may be treated by the Issuer, the Guarantors, the Trustee, and any agent of the Issuer
or the Trustee as the owner of such global Security for all purposes whatsoever. None of the
Issuer, the Guarantors, the Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Guarantors, the
Trustee, any Paying Agent or the Security Registrar from giving effect to any written
certification, proxy or other authorization furnished by the applicable Depository, as a Holder,
with respect to a global Security or impair, as between such Depository and the owners of
beneficial interests in such global Security, the operation of customary practices governing the
exercise of the rights of such Depository (or its nominee) as the Holder of such global Security.
Section 309
Cancellation.
All Securities surrendered for payment, redemption, registration of transfer, exchange or
conversion or for credit against any sinking fund payment shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee, and any such Securities, as well as Securities
27
surrendered directly to the Trustee for any such purpose, shall be cancelled promptly by the
Trustee. The Issuer may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Issuer may have acquired in any manner
whatsoever, and all Securities so delivered shall be cancelled promptly by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by or pursuant to this Indenture. All
cancelled Securities held by the Trustee shall be destroyed by the Trustee in accordance with
customary procedures.
Section 310
Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture or in the Securities of any
series, interest on the Securities shall be computed on the basis of a 360-day year of twelve
30-day months.
Section 311
Original Issue Discount.
If any of the Securities is an Original Issue Discount Security, the Issuer shall file with
the Trustee promptly at the end of each calendar year (1) a written notice specifying the amount of
original issue discount (including daily rates and accrual periods) accrued on such Outstanding
Original Issue Discount Securities as of the end of such year and (2) such other specific
information relating to such original issue discount as may then be relevant under the Internal
Revenue Code.
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401
Satisfaction and Discharge.
Unless, pursuant to Section 301, the provisions of this Section 401 shall not be applicable
with respect to the Securities of any series, upon the direction of the Issuer by a Issuer Order,
this Indenture shall cease to be of further effect with respect to any series of Securities
specified in such Issuer Order and any Guarantees of such Securities and the Trustee, on receipt of
a Issuer Order, at the expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series, when
(1) Either
(a) all Securities of such series theretofore authenticated and delivered
(other than (i) Securities that have been mutilated, destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and (ii) Securities for
whose payment money has theretofore been deposited in trust or segregated and held
in trust by the Issuer and thereafter repaid to the Issuer or discharged from such
trust, as provided in Section 1003) have been delivered to the Trustee for
cancellation; or
28
(b) all Securities of such series not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year, or
(iii) if redeemable at the option of the Issuer, are to be called for
redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the name, and at
the expense, of the Issuer,
and the Issuer, in the case of (i), (ii) or (iii) above, has deposited or caused to
be deposited with the Trustee as trust funds in trust for such purpose, money in the
Currency in which such Securities are payable in an amount sufficient to pay and
discharge the entire indebtedness on such Securities, including the principal of,
any premium and interest on, and, to the extent that the Securities of such series
provide for the payment of Additional Amounts thereon and the amount of any such
Additional Amounts which are or will be payable with respect to the Securities of
such series is at the time of deposit reasonably determinable by the Issuer (in the
exercise by the Issuer of its sole and absolute discretion), any Additional Amounts
with respect to, such Securities to the date of such deposit (in the case of
Securities which have become due and payable) or to the Maturity thereof, as the
case may be;
(2) the Issuer has paid or caused to be paid all other sums payable hereunder by the
Issuer; and
(3)
the Issuer has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture as to such series have been complied with.
In the event there are Securities of two or more series Outstanding hereunder, the Trustee
shall be required to execute an instrument acknowledging satisfaction and discharge of this
Indenture only if requested to do so with respect to Securities of such series as to which it is
Trustee and if the other conditions thereto are met.
At such time as the Issuer shall have effected satisfaction and discharge of this Indenture
with respect to any series of Securities, each Guarantor of the Securities of such series shall
(except as provided in the next succeeding paragraph) be automatically and unconditionally released
and discharged from all of its obligations under its Guarantee of the Securities of such series and
all of its other obligations under this Indenture in respect of the Securities of such series,
without any action by the Issuer, any Guarantor or the Trustee and without the consent of the
Holders of any Securities.
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Notwithstanding the satisfaction and discharge of this Indenture with respect to any series of
Securities, the obligations of the Issuer to the Trustee under Section 606 and, if money shall have
been deposited with the Trustee pursuant to subclause (b) of clause (1) of this Section, the
respective obligations of the Trustee under Section 402 and the last paragraph of Section 1003
shall survive.
Section 402
Defeasance and Covenant Defeasance.
(1) Unless, pursuant to Section 301, either or both of (i) defeasance of the Securities of or
within a series under clause (2) of this Section 402 or (ii) covenant defeasance of the Securities
of or within a series under clause (3) of this Section 402 shall not be applicable with respect to
the Securities of such series, then such provisions, together with the other provisions of this
Section 402 (with such modifications thereto as may be specified pursuant to Section 301 with
respect to any Securities), shall be applicable to such Securities, and the Issuer may at its
option by Board Resolution, at any time, with respect to the Securities of or within such series,
elect to have Section 402(2) or Section 402(3) be applied to such Outstanding Securities upon
compliance with the conditions set forth below in this Section 402. Unless otherwise specified
pursuant to Section 301 with respect to the Securities of any series, defeasance under clause (2)
of this Section 402 and covenant defeasance under clause (3) of this Section 402 may be effected
with respect to any or all of the Outstanding Securities of any series. To the extent that the
terms of any Security established in or pursuant to this Indenture permit the Issuer, any of the
Guarantors or any Holder thereof to extend the date on which any payment of principal of, or
premium, if any, or interest, if any, on, or Additional Amounts, if any, with respect to such
Security is due and payable, then unless otherwise provided pursuant to Section 301, the right to
extend such date shall terminate upon defeasance or covenant defeasance, as the case may be.
(2) Upon the Issuers exercise of the above option applicable to this Section 402(2) with
respect to any Securities of or within a series, the Issuer shall be deemed to have been discharged
from its obligations with respect to such Outstanding Securities on the date the conditions set
forth in clause (4) of this Section 402 are satisfied (hereinafter, defeasance). For this
purpose, such defeasance means that the Issuer shall be deemed to have paid and discharged the
entire indebtedness represented by such Outstanding Securities, which shall thereafter be deemed to
be Outstanding only for the purposes of clause (5) of this Section 402 and the other Sections of
this Indenture referred to in clauses (i) through (iv) of this paragraph, and the Issue and the
Guarantors of the Securities of such series shall be deemed to have satisfied all of their
respective other obligations under such Securities and the Guarantees of such Securities and this
Indenture insofar as such Securities or such Guarantees are concerned (and the Trustee, at the
expense of the Issuer, shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged hereunder: (i) the rights
of Holders of such Outstanding Securities to receive, solely (except as provided in clause (ii)
below) from the trust fund described in clause (4)(a) of this Section 402 and as more fully set
forth in this Section 402 and Section 403, payments in respect of the principal of (and premium, if
any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Securities
when such payments are due, (ii) the obligations of the Issuer, the Guarantors of the Securities of
such series and the Trustee with respect to such Securities under Sections 305, 306, 1002 and 1003
and, if applicable to the Securities of such series, any rights of Holders of such Securities
(unless otherwise provided pursuant to Section 301 with respect to the Securities of such series)
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to convert or exchange, and the obligations of the Issuer to convert or exchange, such
Securities into Common Shares or other securities or property, and, if expressly provided pursuant
to Section 301 with respect to the Securities of such series, any rights of Holders of the
Securities of such series to require the Issuer to repurchase or repay, and the obligations of the
Issuer to repurchase or repay, such Securities at the option of such Holders as contemplated by
Article Thirteen hereof, and, if the Securities of such series provide for the payment of
Additional Amounts pursuant to Section 1004, the Issuer will remain obligated, following defeasance
of this Indenture with respect to the Securities of such series, to pay, and the Guarantees of the
Securities of such series will continue to Guarantee (on the terms and subject to the conditions
set forth in this Indenture, subject to any other terms of this Indenture, including any terms
established pursuant to Section 301 with respect to the Securities of such series, providing for
the release and discharge of any Guarantor from its Guarantee of the Securities of such series and
its other obligations under this Indenture in respect to the Securities of such series) the payment
of, Additional Amounts with respect to such Securities as contemplated by Section 1004, to the
extent (and only to the extent) that the Additional Amounts payable with respect to such Securities
exceed the amount deposited in respect of such Additional Amounts pursuant to clause 4(a) of this
Section 402, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and
(iv) this Section 402 and Sections 403 and 404. The Issuer may exercise its option under this
Section 402(2) notwithstanding the prior exercise of its option under Section 402(3) with respect
to such Securities. Upon the effectiveness of defeasance with respect to any series of Securities,
each Guarantor of the Securities of such series shall (except as provided in clause (ii) of the
next preceding sentence) be automatically and unconditionally released and discharged from all of
its obligations under its Guarantee of the Securities of such series and all of its other
obligations under this Indenture in respect of the Securities of such series, without any action by
the Issuer, any Guarantor or the Trustee and without the consent of the Holders of any Securities.
(3) Upon the Issuers exercise of the above option applicable to this Section 402(3) with
respect to any Securities of or within a series, the Issuer shall be released from its obligations
under any covenants applicable to such Securities which are specified pursuant to Section 301 as
being subject to covenant defeasance on and after the date the conditions set forth in clause (4)
of this Section 402 are satisfied (hereinafter, covenant defeasance), and such Securities shall
thereafter be deemed to be not Outstanding for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in connection with any such
covenant, but shall continue to be deemed Outstanding for all other purposes hereunder. For this
purpose, such covenant defeasance means that with respect to such Outstanding Securities, the
Issuer may omit to comply with, and shall have no liability in respect of, any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or such other covenant or by reason of reference in
any such Section or such other covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a default or an Event of Default under Section 501, as
the case may be, but, except as specified above, the remainder of this Indenture and such
Securities and the Guarantees thereof shall be unaffected thereby.
(4) The following shall be the conditions to application of clause (2) or (3) of this Section
402 to any Outstanding Securities of or within a series:
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(a) The Issuer shall irrevocably have deposited or caused to be deposited with
the Trustee (or another trustee satisfying the requirements of
Section 608 who shall
agree to comply with the provisions of this Section 402 applicable to it) as trust
funds in trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of such
Securities, (1) an amount in Dollars or in such Foreign Currency in which such
Securities appertaining thereto are then specified as payable at Stated Maturity or,
if such defeasance or covenant defeasance is to be effected in compliance with
subsection (f) below, on the relevant Redemption Date, as the case may be, or (2)
Government Obligations applicable to such Securities (determined on the basis of the
Currency in which such Securities are then specified as payable at Stated Maturity
or, if such defeasance or covenant defeasance is to be effected in compliance with
subsection (f) below, on the relevant Redemption Date, as the case may be) which
through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the due date
of any payment of principal of (and premium, if any) and interest, if any, on such
Securities, money in an amount, or (3) a combination thereof, in any case, in an
amount, sufficient, without consideration of any reinvestment of such principal and
interest, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee,
to pay and discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, (y) the principal of (and premium, if any) and
interest, if any, on, and, to the extent that such Securities provide for the
payment of Additional Amounts thereon and the amount of any such Additional Amounts
which are or will be payable with respect to the Securities of such series is at the
time of deposit reasonably determinable by the Issuer (in the exercise by the Issuer
of its sole and absolute discretion), any Additional Amounts with respect to, such
Outstanding Securities on the Stated Maturity of such principal or installment of
principal or interest or the applicable Redemption Date, as the case may be, and (z)
any mandatory sinking fund payments or analogous payments applicable to such
Outstanding Securities on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities.
(b) Such defeasance or covenant defeasance shall not result in a breach or
violation of, or constitute a default under, this Indenture.
(c) No Event of Default or event which with notice or lapse of time or both
would become an Event of Default with respect to such Securities shall have occurred
and be continuing on the date of such deposit.
(d) In the case of defeasance pursuant to Section 402(2), the Issuer shall have
delivered to the Trustee Opinion of Counsel reasonably acceptable to
the Trustee stating that (x) the Issuer has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in applicable U.S. federal income tax law,
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in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of such Outstanding Securities
will not recognize income, gain or loss for U.S. federal income tax purposes as a
result of such defeasance and will be subject to U.S. federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such defeasance had not occurred; or, in the case of covenant defeasance pursuant to
Section 402(3), the Issuer shall have delivered to the Trustee
an Opinion of Counsel reasonably acceptable to the Trustee to the effect that the
Holders of such Outstanding Securities will not recognize income, gain or loss for
U.S. federal income tax purposes as a result of such covenant defeasance and will be
subject to U.S. federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such covenant defeasance had not
occurred.
(e)
The Issuer shall have delivered to the Trustee an Officers Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the defeasance
or covenant defeasance, as the case may be, under this Indenture have been complied
with.
(f) If the monies or Government Obligations or combination thereof, as the case
may be, deposited under clause (a) above are sufficient to pay the principal of, and
premium, if any, and interest, if any, on and, to the extent provided in such clause
(a), Additional Amounts with respect to, such Securities provided such Securities
are redeemed on a particular Redemption Date, the Issuer shall have given the
Trustee irrevocable instructions to redeem such Securities on such date and to
provide notice of such redemption to Holders as provided in or pursuant to this
Indenture.
(g) Notwithstanding any other provisions of this Section 402(4), such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be imposed on
the Issuer in connection therewith pursuant to Section 301.
(5) Subject to the provisions of the last paragraph of Section 1003, all money and Government
Obligations (or other property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trusteecollectively for purposes of this
Section 402(5) and Section 403, the Trustee) pursuant to clause (4)(a) of Section 402 in respect
of any Outstanding Securities of any series shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (other than the Issuer or any Guarantor of the Securities of
the applicable series or any Subsidiary or Affiliate of the Issuer or any such Guarantor acting as
Paying Agent) as the Trustee may determine, to the Holders of such Securities of all sums due and
to become due thereon in respect of principal (and premium, if any) and interest and Additional
Amounts, if any, but such money need not be segregated from other funds except to the extent
required by law.
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The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge, imposed
on or assessed against the Government Obligations deposited pursuant to this Section 402 or the
principal or interest received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of such Outstanding Securities.
Anything in this Section 402 to the contrary notwithstanding, the Trustee shall deliver or pay
to the Issuer from time to time upon Issuer Request any money or Government Obligations (or other
property and any proceeds therefrom) held by it as provided in clause (4)(a) of this Section 402
which, in the opinion of a nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, are in excess of the amount thereof
which would then be required to be deposited to effect a defeasance or covenant defeasance, as
applicable, in accordance with this Section 402.
Section 403
Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money and Government
Obligations deposited with the Trustee pursuant to Section 401 shall be held in trust and applied
by it, in accordance with the provisions of the Securities and this Indenture, to the payment,
either directly or through any Paying Agent (other than the Issuer or any Guarantor of the Securities of
the applicable series or any Subsidiary or Affiliate of the Issuer or any such Guarantor acting as
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal, premium, interest
and Additional Amounts for whose payment such money has or Government Obligations have been
deposited with or received by the Trustee; but such money and Government Obligations need not be
segregated from other funds except to the extent required by law.
Section 404
Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States Dollars or Government
Securities in accordance with Section 402 hereof, as the case may be, by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Issuers and the applicable Guarantors respective obligations under
this Indenture and the Securities of such series and the Guarantees of such Securities shall be
revived and reinstated as though no deposit had occurred pursuant to Section 402 hereof until such
time as the Trustee (or other qualifying trustee) or Paying Agent is permitted to apply all such
money in accordance with Section 402 hereof, as the case may be;
provided
that, if the
Issuer or any Guarantor makes any payment of principal of, premium
and Additional Amounts, if any,
or interest on any Securities following the reinstatement of its obligations, the Issuer or such
Guarantor, as the case may be, shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the money held by the Trustee (or other qualifying trustee) or Paying
Agent.
ARTICLE FIVE
REMEDIES
Section 501
Events of Default.
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Event
of Default, wherever used herein with respect to Securities of any series, means any
one of the following events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body)
unless such event is specifically deleted or modified in or pursuant to the supplemental indenture,
Board Resolution or Officers Certificate pursuant to a Board
Resolution establishing the terms of such series pursuant to this
Indenture:
(1) default in payment when due and payable, upon redemption, acceleration or
otherwise, of principal of, or premium, if any, on the Securities; or
(2) default for 30 days or more in the payment when due of interest on or with respect
to the Securities; or
(3) default in the deposit of any sinking fund payment when and as due with respect to
any of the Securities of such series; or
(4) default in the performance, or breach, of any covenant or warranty of the Issuer in
the Indenture, and continuance of such default or breach for a period of 60 days after there
has been given written notice by the Trustee or the holders of at least 10% in principal amount of the
Outstanding debt securities with a copy to the trustee specifying such default or breach and requiring it to be
remedied; or
(5) the Issuer pursuant to or under or within the meaning of any Bankruptcy Law:
(i) commences proceedings to be adjudicated bankrupt or insolvent;
(ii) consents to the institution of bankruptcy or insolvency
proceedings against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under applicable Bankruptcy law;
(iii) consents to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator or other similar official of it or for all or
substantially all of its property;
(iv) makes a general assignment for the benefit of its creditors; or
(v) generally is not paying its debts as they become due; or;
(6) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:
(i) is for relief against the Issuer in an involuntary case or
proceeding; or
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(ii) appoints a trustee, receiver, liquidator, custodian or other
similar official of the Issuer or any substantial part of their respective
properties; or
(iii) orders the liquidation of the Issuer;
and, in each case in this clause (6), the order or decree remains unstayed and in effect for
60 consecutive days; or
(7) the Guarantee of any Significant Subsidiary shall for any reason cease to be in
full force and effect or be declared null and void or any responsible officer of any
Guarantor that is a Significant Subsidiary, as the case may be, denies that it has any
further liability under its Guarantee or gives notice to such effect, other than by reason
of the termination of this Indenture or the release of any such Guarantee in accordance with
this Indenture; or
(8) any other Event of Default provided in or pursuant to this Indenture with respect
to Securities of such series.
Section 502
Acceleration of Maturity; Rescission and Annulment.
If any Event of Default (other than an Event of Default specified in clause (5) or (6) of
Section 501 hereof) occurs and is continuing under this Indenture, the Trustee or the Holders of at
least 25% in principal amount of the then total Outstanding Securities may declare the principal
,
premium, if any, interest and any other monetary obligations on all the then Outstanding Securities
to be due and payable immediately. Upon the effectiveness of such declaration, such principal and
interest shall be due and payable immediately. The Trustee shall have no obligation to accelerate
the Securities if and so long as a committee of its Responsible Officers in good faith determines
acceleration is not in the best interest of the Holders of the Securities.
Notwithstanding the foregoing, in the case of an Event of Default arising under clause (5) or
(6) of Section 501 hereof, all Outstanding Securities shall be due and payable immediately without
further action or notice.
The Holders of a majority in aggregate principal amount of the then Outstanding Securities by
written notice to the Issuer and the Trustee may on behalf of all of the Holders rescind an
acceleration and its consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default (except nonpayment of principal,
36
interest,
Additional Amounts, if any, or premium that has become due solely because of the
acceleration) have been cured or waived.
Section 503
Collection of Indebtedness and Suits for Enforcement by Trustee.
The Issuer covenants that if:
(1) default is made in the payment of any interest on, or any Additional Amounts
payable in respect of any interest on, any Security when such interest or Additional
Amounts, as the case may be, shall have become due and payable and such default continues
for a period of 30 days, or
(2) default is made in the payment of any principal of or premium, if any, on, or any
Additional Amounts payable in respect of any principal of or premium, if any, on, any
Security at its Maturity, or
(3) default is made in the deposit of any sinking fund payment when due,
the Issuer shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of
such Securities, the whole amount of money then due and payable with respect to such Securities,
with interest upon the overdue principal, any premium and, to the extent permitted by applicable
law, upon any overdue installments of interest and Additional Amounts at the rate or respective
rates, as the case may be, provided for or with respect to such Securities or, if no such rate or
rates are so provided, at the rate or respective rates, as the case may be, of interest borne by
such Securities, and, in addition thereto, such further amount of money as shall be sufficient to
cover the costs and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all other amounts due to the
Trustee under Section 606.
If an Event of Default with respect to Securities of any series occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or such Securities or in aid of the exercise of any
power granted herein or therein, or to enforce any other proper remedy.
Section 504
Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Securities allowed in any judicial proceedings relative to the
Issuer (or any other obligor upon the Securities including the Guarantors), its creditors or its
property and shall be entitled and empowered to participate as a member in any official committee
of creditors appointed in such matter and to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the
event that the Trustee shall consent to the making of such
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payments directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 606 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 606 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
Section 505
Trustee May Enforce Claims without Possession of Securities.
All rights of action and claims under this Indenture or any of the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the Securities or the
production thereof in any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any recovery or
judgment, after provision for the payment of the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, shall be for the ratable benefit of each and
every Holder of a Security in respect of which such judgment has been recovered.
Section 506
Application of Money Collected.
Any money collected by the Trustee pursuant to this Article with respect to the Securities of
any series shall be applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, or any premium, interest or
Additional Amounts, upon presentation of such Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST:
To the payment of all amounts due the Trustee, Registrar, Transfer
Agent and Paying Agent and any predecessor
thereof under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon the Securities
for principal and any premium, interest and Additional Amounts in respect of which
or for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the aggregate amounts due and
payable on such Securities for principal and any premium, interest and Additional
Amounts;
THIRD: The balance, if any, to the Person or Persons entitled thereto.
Section 507
Limitations on Suits.
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No Holder of any Security of any series shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a continuing
Event of Default with respect to the Securities of such series;
(2)
Holders of at least 25% in principal amount of the total Outstanding
Securities have
requested the Trustee to pursue the remedy;
(3) Holders of the Securities have offered the Trustee security or indemnity reasonably
satisfactory to it against any loss, liability or expense;
(4) the Trustee has not complied with such request within 60 days after the receipt
thereof and the offer of security or indemnity; and
(5) Holders of a majority in principal amount of the total Outstanding Securities have
not given the Trustee a direction inconsistent with such request within such 60-day period.
A Holder of a Security may not use this Indenture to prejudice the rights of another Holder of
a Security or to obtain a preference or priority over another Holder of a Security.
Section 508
Unconditional Right of Holders to Receive Principal and any Premium, Interest and
Additional Amounts.
Notwithstanding any other provision of this Indenture, the right of any Holder of a Security
to receive payment of principal, premium, if any, Additional Interest, if any, and interest on
the Security, on or after the respective due dates expressed in the Security, or to bring suit for
the enforcement of any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
Section 509
Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security has instituted any proceeding to enforce any right
or remedy under this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then and in every such
case the Issuer, the Trustee and each such Holder shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and each such Holder shall continue as though no
such proceeding had been instituted.
Section 510
Rights and Remedies Cumulative.
To the extent permitted by applicable law and except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee or
39
to each and every Holder of a Security is intended to be exclusive of any other right or
remedy, and every right and remedy, to the extent permitted by applicable law, shall be cumulative
and in addition to every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not, to the extent permitted by applicable law, prevent the concurrent assertion
or employment of any other appropriate right or remedy.
Section 511
Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to exercise any right or
remedy accruing upon any Event of Default shall, to the extent permitted by applicable law, impair
any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee or to any Holder of
a Security may, to the extent permitted by applicable law, be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by such Holder, as the case may be.
Section 512
Control by Holders of Securities.
The Holders of a majority in aggregate principal amount of the Outstanding Securities of any
series shall have the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with this Indenture
or with the Securities of any series,
(2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights of the other Holders of
Securities of such series not joining in such action.
Section 513
Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount of the Outstanding
Securities of any series on behalf of the Holders of all the Securities of such series may waive
any past default hereunder with respect to such series and its consequences, except
(1) a default in the payment of the principal of, any premium or interest on, or any
Additional Amounts with respect to, any Security of such series, or
(2) a default in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each Outstanding Security
of such series affected.
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Upon any such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 514
Waiver of Usury, Stay or Extension Laws.
Each of the Issuer and each of the Guarantors covenants that (to the extent that it may
lawfully do so) it will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury law or any other law
wherever enacted, now or at any time hereafter in force, which would prohibit or forgive the Issuer
or such Guarantor, as the case may be, from paying all or any portion of the principal of or
premium, if any, or interest, if any, on or Additional Amounts, if any, with respect to any
Securities (in the case of Issuer) or from paying any amount due under any of its Guarantees (in
the case of such Guarantor) as contemplated herein and therein or which may affect the covenants or
the performance of this Indenture or the Securities (in the case of Issuer) or this Indenture or
any of its Guarantees (in the case of such Guarantor); and each of the Issuer and each Guarantor
(to the extent that it may lawfully do so) expressly waives all benefit or advantage of any such
law and covenants that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee or the Holders, but will suffer and permit the execution of every such power
as though no such law had been enacted.
Section 515
Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted to be taken by it as Trustee, the filing by any party litigant in such suit
of any undertaking to pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys fees and disbursements, against any party
litigant in such suit having due regard to the merits and good faith of the claims or defenses made
by such party litigant; but the provisions of this Section 515 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of Outstanding Securities of any series.
ARTICLE SIX
THE TRUSTEE
Section 601
Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(1)
The Trustee may conclusively
rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need
not investigate any fact or matter stated in the document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises of the Issuer, personally or by agent or attorney
at the sole cost of the Issuer and shall incur no liability or additional liability of any kind by reason of such inquiry or
investigation;
41
(2)
Before the Trustee
acts or refrains from acting, it may require an Officers Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on such Officers Certificate or Opinion of Counsel.
The Trustee may consult with counsel of its selection and the written advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(3)
The Trustee may act
through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent or attorney appointed
with due care;
(4)
The Trustee shall not
be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers
conferred upon it by this Indenture;
(5)
Unless otherwise
specifically provided in this Indenture, any demand, request, direction or notice from the Issuer shall be sufficient if signed
by an Officer of the Issuer;
(6)
None of the provisions
of this Indenture shall require the Trustee to expend or risk its own funds or otherwise to incur any liability, financial or otherwise,
in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds
for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not assured to it;
(7)
The Trustee shall not be
deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a Default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Notes and this Indenture;
(8)
In no event shall the
Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not
limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action;
(9)
The rights, privileges,
protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to,
and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to
act hereunder;
(10) In the event the Issuer is required to pay Additional Interest, the Issuer will provide written
notice to the Trustee of the Issuers obligation to pay Additional Interest no later than 15 days
prior to the next Interest Payment Date, which notice shall set forth the amount of the Additional
Interest to be paid by the Issuer. The Trustee shall not at any time be under any duty or
responsibility to any Holders to determine whether the Additional Interest is payable and the
amount thereof.
Section 602
Notice of Defaults.
If a Default occurs and is continuing and if it is known to the Trustee, the Trustee shall
mail to Holders of Securities a notice of the Default within 90 days after it occurs. Except in
the case of a Default relating to the payment of principal, premium, if any, or interest on any
Security, the Trustee may withhold from the Holders notice of any continuing default if and so
42
long as a committee of its Responsible Officers in good faith determines that withholding the
notice is in the interests of the Holders of the Securities. The Trustee shall not be deemed to
know of any Default unless a Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is such a default is received by the Trustee at the
Corporate Trust Office of the Trustee.
Section 603
Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustees certificate of
authentication, shall be taken as the statements of the Issuer and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the Securities, except
that the Trustee represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder and that the statements made by
it in a Statement of Eligibility on Form T-1 supplied to the Issuer are true and accurate, subject
to the qualifications set forth therein. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Issuer of the Securities or the proceeds thereof.
Section 604
May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other
Person that may be an agent of the Trustee, the Issuer or any Guarantor, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to Sections 310(b) and
311 of the Trust Indenture Act, may otherwise deal with the Issuer and each Guarantor with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar
or such other Person.
Section 605
Money Held in Trust.
Money held by the Trustee in trust hereunder shall, until used or applied as herein provided,
be held in trust for the purposes for which they were received, but need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed with the Issuer or any
Guarantor.
Section 606
Compensation and Reimbursement.
The Issuer agrees:
(1) to pay to the Trustee from time to time reasonable compensation for all services
rendered by the Trustee hereunder (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
43
reasonable compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to the Trustees
negligence or bad faith; and
(3) to indemnify the Trustee and its agents for, and to hold them harmless against, any
loss, liability or reasonable expense (including, without limitation, the reasonable fees
and disbursements of the Trustees agents, legal counsel, accountants and experts) incurred
without negligence or bad faith on their part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the reasonable
costs and expenses of defending themselves against any claim or liability in connection with
the exercise or performance of any of their powers or duties hereunder, except to the extent
that any such loss, liability or expense was due to the Trustees negligence, willful
misconduct or bad faith.
As security for the performance of the obligations of the Issuer under this Section, the
Trustee shall have a Lien prior to the Securities of any series upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the payment of principal of, or
premium or interest on or any Additional Amounts with respect to Securities.
Any compensation or expense incurred by the Trustee after a default specified by Section 501
is intended to constitute an expense of administration under any then applicable bankruptcy or
insolvency law. Trustee for purposes of this Section 606 shall include any predecessor Trustee
but the negligence or bad faith of any Trustee shall not affect the rights of any other Trustee
under this Section 606. The provisions of this Section 606 shall, to the extent permitted by
applicable law, survive any termination of this Indenture (including, without limitation,
termination pursuant to any Bankruptcy Laws) and the resignation or
removal of the Trustee.
As used in this Section 606, Trustee shall also include
each of the Registrar, Paying Agent and Transfer Agent, as applicable.
Section 607
Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
To the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this Indenture with respect to Securities
of more than one series.
Section 608
Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that is a corporation or national banking
association organized and doing business under the laws of the United States of America or of any
state thereof that is authorized under such laws to exercise corporate trustee power, that is
subject to supervision or examination by federal or state authorities and that has a combined
capital and surplus of at least $50,000,000 as set forth in its most recent published annual report
of condition.
44
This Indenture shall always have a Trustee who satisfies the requirements of Trust Indenture
Act Sections 310(a)(1), (2) and (5). The Trustee is subject to Trust Indenture Act Section 310(b).
Section 609
Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of appointment by the
successor Trustee pursuant to Section 609.
(2) The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Issuer. If the instrument of acceptance by a successor
Trustee required by Section 609 shall not have been delivered to the Trustee within 90 days after
the giving of such notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to such series.
(3) The Trustee may be removed at any time with respect to the Securities of any series by Act
of the Holders of a majority in principal amount of the Outstanding Securities of such series,
delivered to the Trustee and the Issuer.
(4) If at any time:
(a) the Trustee shall fail to comply with the obligations imposed upon it under
Section 310(b) of the Trust Indenture Act with respect to Securities of any series
after written request therefor by the Issuer or any Holder of a Security of such
series who has been a bona fide Holder of a Security of such series for at least six
months, or
(b) the Trustee shall cease to be eligible under Section 608 and shall fail to
resign after written request therefor by the Issuer or any such Holder, or
(c) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or of
its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Issuer, by or pursuant to a Board Resolution, may remove the
Trustee with respect to all Securities or the Securities of such series, or (ii) subject to Section
315(e) of the Trust Indenture Act, any Holder of a Security who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the Trustee with respect
to all Securities of such series and the appointment of a successor Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, with respect to the Securities of one or more
series, the Issuer, by or pursuant to a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the Securities of one or more or
all
45
of such series and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable requirements of Section
609. If, within one year after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed
by Act of the Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Issuer and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the applicable requirements of
Section 609, become the successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Issuer. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the Issuer or the Holders
of Securities and accepted appointment in the manner required by Section 609, any Holder of a
Security who has been a bona fide Holder of a Security of such series for at least six months may,
on behalf of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Securities of such
series.
(6) The Issuer shall give notice of each resignation and each removal of the Trustee with
respect to the Securities of any series and each appointment of a successor Trustee with respect to
the Securities of any series by providing written notice of such event to the Holders of Securities of such series in the manner provided in Section 106. Each
notice shall include the name of the successor Trustee with respect to the Securities of such
series and the address of its Corporate Trust Office.
As
used in this Section 609, Trustee shall also include
each of the Registrar, Paying Agent and Transfer Agent, as applicable.
Section 610
Acceptance of Appointment by Successor.
(1) Upon the appointment hereunder of any successor Trustee with respect to all Securities,
such successor Trustee so appointed shall execute, acknowledge and deliver to the Issuer, the
Guarantors and the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties hereunder of the retiring Trustee; but, on the request of the Issuer, any
Guarantor or such successor Trustee, such retiring Trustee, upon payment of its charges, shall
execute and deliver an instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and, subject to Section 1003, shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring Trustee hereunder,
subject nevertheless to its claim, if any, provided for in Section 606.
(2) Upon the appointment hereunder of any successor Trustee with respect to the Securities of
one or more (but not all) series, the Issuer, the Guarantors, the retiring Trustee and such
successor Trustee shall execute and deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, such successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates, (2) if the retiring
Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to which the retiring
46
Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees
of the same trust, that each such Trustee shall be trustee of a trust or trusts hereunder separate
and apart from any trust or trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any notice given to, or received by, or any act or failure to act
on the part of any other Trustee hereunder, and, upon the execution and delivery of such
supplemental indenture, the resignation or removal of the retiring Trustee shall become effective
to the extent provided therein, such retiring Trustee shall have no further responsibility for the
exercise of rights and powers or for the performance of the duties and obligations vested in the
Trustee under this Indenture with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates other than as hereinafter expressly set forth, and
such successor Trustee, without any further act, deed or conveyance, shall become vested with all
the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee relates; but, on request of
the Issuer, any Guarantor or such successor Trustee, such retiring Trustee, upon payment of its
charges with respect to the Securities of that or those series to which the appointment of such
successor relates and subject to Section 1003 shall duly assign, transfer and deliver to such
successor Trustee, to the extent contemplated by such supplemental indenture, the property and
money held by such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, subject to its claim, if any,
provided for in Section 606.
(3) Upon request of any Person appointed hereunder as a successor Trustee, the Issuer and the
Guarantors shall execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph
(1) or (2) of this Section, as the case may be.
(4) No Person shall accept its appointment hereunder as a successor Trustee unless at the time
of such acceptance such successor Person shall be qualified and eligible under this Article.
Section 611
Merger, Conversion, Consolidation or Succession to Business.
Any Corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any Corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any Corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder (provided
that such Corporation shall otherwise be qualified and eligible under this Article), without the
execution or filing of any paper or any further act on the part of any of the parties hereto. In
case any Securities shall have been authenticated but not delivered by the Trustee then in office,
any such successor to such authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities. In case any Securities shall not have been authenticated by such
predecessor Trustee, any such successor Trustee may authenticate and deliver such Securities in
either its own name or that of its predecessor Trustee.
47
Section 612
Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent acceptable to the Issuer to authenticate
Securities. An Authenticating Agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes authentication by such
agent. An Authenticating Agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Issuer.
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE, ISSUER AND GUARNATORS
Section 701
Issuer to Furnish Trustee Names and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the Issuer shall furnish or
cause to be furnished to the Trustee
(1) semi-annually with respect to Securities of each series not later than [
] and
[
] of the year or upon such other dates as are set forth in or pursuant to the Board
Resolution or indenture supplemental hereto authorizing such series, a list, in each case in
such form as the Trustee may reasonably require, of the names and addresses of Holders as of
the applicable date, and
(2) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Issuer of any such request, a list of similar form and content as of a date
not more than 15 days prior to the time such list is furnished,
provided
,
however
, that so long as the Trustee is the Security Registrar no such list shall be
required to be furnished.
Section 702
Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it pursuant to Section 312 of the
Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with the Issuer, the
Guarantors and the Trustee that none of the Issuer, the Guarantors, the Trustee, any Paying Agent
or any Security Registrar shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of Securities in accordance with Section
312(c) of the Trust Indenture Act, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the Trust Indenture Act.
Section 703
Reports by Trustee.
(1) Within 60 days after [
] of each year commencing with the first [
] following the first
issuance of Securities pursuant to Section 301, if required by Section 313(a) of the Trust
Indenture Act, the Trustee shall transmit, pursuant to Section 313(c) of the Trust Indenture Act, a
48
brief report dated as of such [
] with respect to any of the events specified in said Sections
313(a) and 313(b)(2) which may have occurred since the later of the immediately preceding [
] and
the date of this Indenture.
(2) The Trustee shall transmit the reports required by Section 313(a) of the Trust Indenture
Act at the times specified therein.
(3) Reports pursuant to this Section shall be transmitted in the manner and to the Persons
required by Sections 313(c) and 313(d) of the Trust Indenture Act.
Section 704
Reports by Issuer and Guarantors.
The Issuer and each Guarantor pursuant to Section 314(a) of the Trust Indenture Act, shall:
(1)
file with the Trustee, for distribution to a Holder of Securities
upon such Holders request, within 15 days after the Issuer or such Guarantor, as the
case may be, is required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and regulations prescribe)
which the Issuer or such Guarantor, as the case may be, may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Issuer or
any Guarantor is not required to file information, documents or reports pursuant to either
of said Sections, then it shall file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be required pursuant
to Section 13 of the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in such rules and
regulations;
(2)
file with the Trustee, for distribution to a Holder of Securities
upon such Holders request, and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such additional information, documents and
reports with respect to compliance by the Issuer or such Guarantor, as the case may be, with
the conditions and covenants of this Indenture as may be required from time to time by such
rules and regulations; and
(3)
transmit within 30 days after the filing thereof with the Trustee, for distribution to a Holder of Securities
upon such Holders request, in the manner
and to the extent provided in Section 313(c) of the Trust Indenture Act, such summaries of
any information, documents and reports required to be filed by the Issuer or such Guarantor,
as the case may be, pursuant to paragraphs (1) and (2) of this Section as may be required by
rules and regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801
Issuer May Consolidate, Etc., Only on Certain Terms.
49
The Issuer shall not, in any transaction or series of related transactions, consolidate with,
or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of its
property and assets to, or merge with or into or wind up into, any Person unless:
(1) either (A) the Issuer shall be the continuing Person (in the case of a merger) or
(B) the successor Person (if other than the Issuer) formed by or resulting from the
consolidation or merger, or to which such sale, assignment, transfer, lease, conveyance or
other disposition will have been made is a corporation organized or existing under the laws
of the jurisdiction of organization of the applicable issuer or the laws of the United
States, any state thereof, the District of Columbia, or any territory thereof (such Person,
as the case may be, being herein called the Successor Issuer);
(2) the Successor Issuer, if other than the Issuer, shall expressly assume all the
obligations of the Issuer pursuant to supplemental indentures or other documents or
instruments in form reasonably satisfactory in form to the Trustee;
(3) immediately after giving effect to the transaction described above, no Event of
Default under this Indenture, and no event which, after notice or lapse of time or both
would become an Event of Default under the applicable indenture, shall have occurred and be
continuing;
(4) each Guarantor, unless it is the other party to the transactions described above,
shall have by supplemental indenture confirmed that its Guarantee shall apply to such
persons obligations under this Indenture and Securities; and
(5) the Issuer shall have delivered to the Trustee an Officers Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer and such
supplemental indentures, if any, comply with this Indenture and, if a supplemental indenture
is required in connection with such transaction, such supplement shall comply with the
applicable provisions of this Indenture.
Immediately after giving pro forma effect to
the transaction described above, (1) the Collateral owned by the successor Person will continue to constitute Collateral under the
applicable indenture and related security documents and (2) to the extent any assets of the Person which is merged or consolidated
with or into the successor Person are assets of the type which would constitute Collateral under the related security documents,
the Successor Company will take such action as may be reasonably necessary to cause such property and assets to be made subject to
the Lien of the security documents in the manner and to the extent required by the Indenture.
Section 802
Successor Person Substituted for Issuer.
In the case of any such merger, consolidation, sale, assignment, transfer, lease, conveyance
or other disposition in which the Issuer is not the continuing entity and upon execution and
delivery by the successor Person of the supplemental indenture described in Section 801, such
successor Person shall succeed to, and be substituted for, the Issuer and may exercise every right
and power of, the Issuer under this Indenture with the same effect as if such successor Person had
been named as the Issuer herein, and the predecessor Issuer shall be automatically released and
discharged from all obligations and covenants under this Indenture, the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901
Supplemental Indentures without Consent of Holders.
50
Without the consent of any Holders of Securities, the Issuer (when authorized by or pursuant
to a Board Resolution), the Guarantors (each when authorized by a Guarantors Board Resolution) and
the Trustee, at any time and from time to time, may enter into one or more indentures supplemental
hereto, in form reasonably satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Issuer or a Guarantor, and the
assumption by any such successor of the covenants of the Issuer or such Guarantor, as the
case may be, contained herein and in the Securities or the Guarantees of such Guarantor, as
the case may be; or
(2) to add to the covenants of the Issuer or any Guarantor for the benefit of the
Holders of all or any series of Securities (as shall be specified in such supplemental
indenture or indentures) or to surrender any right or power herein conferred upon the Issuer
or any Guarantor with respect to all or any series of Securities issued under this Indenture
(as shall be specified in such supplemental indenture or indentures); or
(3) to add any additional Events of Default with respect to all or any series of
Securities (as shall be specified in such supplemental indenture); or
(4) to change or eliminate any of the provisions of this Indenture, provided that any
such change or elimination shall become effective only when there are no Outstanding
Securities of any series created prior to the execution of such supplemental indenture that
is entitled to the benefit of such provision and as to which such supplemental indenture
would apply; or
(5) to secure or, if applicable, to provide additional security for all or any
Securities or Guarantees issued under this Indenture and all or any guarantees, if any, of
all or any such Securities and to provide for any and all matters relating thereto, and to
provide for the release of any collateral as security for all or any Securities or all or
any guarantees, if any, of all or any Securities in accordance with the terms of this
Indenture; or
(6) to supplement any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the defeasance, covenant defeasance and/or satisfaction
and discharge of any series of Securities pursuant to Article Four,
provided
that any such
action shall not adversely affect the interests of any Holder of a Security of such series
or any other Security in any material respect; or
(7) to evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 609; or
(8) to cure any ambiguity, omission, defect or inconsistency or to correct or
supplement any provision herein which may be defective or which may be inconsistent with any
other provision herein, or to make any other provisions with respect to matters
51
or questions arising under this Indenture; or
(9) to change any place or places where the principal of and premium, if any, and
interest, if any, on the Securities s shall be payable, the Securities may be surrendered
for registration or transfer, the Securities may be surrendered for exchange, and notices
and demands upon the Issuer may be served; or
(10) to comply with requirements of the Commission in order to effect or maintain the
qualification of this Indenture under the Trust Indenture Act of 1939; or
(11) to conform the text of this Indenture, the Guarantees or the Securities to
any provision of the Description of the secured notes and
Description of the unsecured notes sections of the prospectus supplement to the
extent that such provision in such Description of the secured
notes or Description of the unsecured notes section was intended to be a
verbatim recitation of a provision of this Indenture; or
(12) to make any amendment to the provisions of this Indenture relating to the transfer
and legending of Securities as permitted by this Indenture, including, without limitation to
facilitate the issuance and administration of the Notes;
provided, however,
that (i)
compliance with this Indenture as so amended would not result in Notes being transferred in
violation of the Securities Act or any applicable securities law and (ii) such amendment
does not materially and adversely affect the rights of Holders to transfer Securities; or
(13) to add additional Guarantees or additional Guarantors in respect of all or any
Securities under this Indenture, and to evidence the release and discharge of any Guarantor
from its obligations under its Guarantee of any or all Securities and its obligations under
this Indenture in respect of any or all Securities in accordance with the terms of this
Indenture.
Section 902
Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series affected by such supplemental indenture, by Act of said
Holders delivered to the Issuer and the Trustee, the Issuer (when authorized by or pursuant to a
Board Resolution), the Guarantors (each when authorized by or pursuant to a Guarantors Board
Resolution) and the Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of the Securities of such series or the Guarantees of such Securities or of
modifying in any manner the rights of the Holders of Securities of such series under this
Indenture;
provided,
that no such supplemental indenture, without the consent of the Holder of each
Outstanding Security affected thereby, shall
(1) change the Stated Maturity of the principal of, or installment of interest, if any,
on, Securities of any series, or reduce the principal amount thereof or the interest thereon
or any premium payable upon redemption thereof, or
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(2) change the Currency in which the principal of (and premium, if any) or interest on
such Securities are denominated or payable;
(3) adversely affect the right of repayment or repurchase, if any, at the option of the
Holder after such obligation arises, or reduce the amount of, or postpone the date fixed
for, any payment under any sinking fund or impair the right to institute suit for the
enforcement of any payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date);
(4) reduce the percentage in principal amount of the Outstanding Securities of any
series, the consent of whose Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences) provided for in this
Indenture, or
(5) modify any of the provisions of this Section, Section 513 or Section 1006; or
(6) impair the right of any Holder to receive payment of principal of, or interest on
such Holders Securities on or after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to such Holders Securities; or
(7) except as expressly permitted by this Indenture, modify the Guarantees of any
Significant Subsidiary in any manner adverse to the Holders of the Securities.
A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which shall have been included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities of such series with respect
to such covenant or other provision, shall be deemed not to affect the rights under this Indenture
of the Holders of Securities of any other series.
Anything in this Indenture to the contrary notwithstanding, if more than one series of
Securities is Outstanding, the Issuer and the Guarantors shall be entitled to enter into a
supplemental indenture under this Section 902 with respect to any one or more series of Outstanding
Securities without entering into a supplemental indenture with respect to any other series of
Outstanding Securities.
It shall not be necessary for any Act of Holders of Securities under this Section to approve
the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
Section 903
Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trust created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Sections 315(a) through
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315(d) of
the Trust Indenture Act) shall be fully protected in relying upon, an Officers
Certificate and an Opinion of Counsel to the effect that the execution of such supplemental indenture is authorized or
permitted by this Indenture and that such supplemental indenture has been duly authorized, executed
and delivered by, and is a valid, binding and enforceable obligation of, the Issuer and the
Guarantors, subject to customary exceptions. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustees own rights, duties or immunities
under this Indenture or otherwise.
Section 904
Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of a Security theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
Section 905
Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Issuer shall so determine, new Securities of any series so modified as to conform, in the opinion
of the Trustee and the Issuer, to any such supplemental indenture may be prepared and executed by
the Issuer and authenticated and delivered by the Trustee in exchange for Outstanding Securities of
such series.
Section 906
Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
ARTICLE TEN
COVENANTS
Section 1001
Payment of Principal, Premium, Interest and Additional Amounts.
The Issuer covenants and agrees for the benefit of the Holders of the Securities of each
series that it shall pay or cause to be paid the principal of, premium, if any, and interest on the Securities on the dates and in the manner provided in the
Securities. Principal, premium, if any, and interest shall be considered paid on the date due if
the Paying Agent, if other than the Issuer or a Subsidiary, holds as of noon Eastern Time on the
due date money deposited by the Issuer in immediately available funds and designated for and
sufficient to pay all principal, premium, if any, and interest then due.
The Issuer shall pay interest on overdue principal at the rate equal to the then applicable
interest rate on Security to the extent lawful; it shall pay interest overdue installments of
interest (without regard to any applicable grace period) at the same rate
to the extent lawful.
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Section 1002
Maintenance of Office or Agency.
The Issuer shall maintain, an office or
agency (which may be an office of the Trustee or an Affiliate of the Trustee, Registrar or
co-registrar) where any series of Securities may be surrendered for registration of transfer or for
exchange and where notices and demands to or upon the Issuer in respect of the Securities and this
Indenture may be served. The Issuer shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any time the Issuer
shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee.
The Issuer may also from time to time designate one or more other offices or agencies where
the Securities may be presented or surrendered for any or all such purposes and may from time to
time rescind such designations;
provided
that no such designation or rescission shall in
any manner relieve the Issuer of its obligation to maintain an office or agency for such purposes. The Issuer shall give prompt written notice
to the Trustee of any such designation or rescission and of any change in the location of any such
other office or agency.
Unless otherwise provided in or pursuant to this Indenture (including, without limitation,
pursuant to Section 301 with respect to the Securities of any series), the Issuer hereby designates
the place where the Trustee shall from time to time maintain its Corporate Trust Office as the
Issuers Office or Agency for such purpose and initially appoints the Trustee as the Security
Registrar for each series of Securities and. The Issuer may subsequently appoint a different or
additional Office or Agency and, as provided in Section 305, may remove and replace from time to
time the Security Registrar.
Section 1003
Money for Securities Payments to Be Held in Trust.
If the Issuer shall at any time act as its own Paying Agent with respect to any series of
Securities, it shall, on or before each due date of the principal of, any premium or interest on,
or any Additional Amounts with respect to any of the Securities of such series, segregate and hold
in trust for the benefit of the Persons entitled thereto a sum in the Currency or Currencies in
which the Securities of such series are payable sufficient to pay the principal, any premium,
interest and Additional Amounts, as the case may be, so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided, and shall promptly notify the Trustee
of its action or failure so to act.
Whenever the Issuer shall have one or more Paying Agents for any series of Securities, it
shall, on or prior to each due date of the principal of, or any premium or interest on or any
Additional Amounts with respect to, any Securities of such series, deposit with any Paying Agent a
sum (in the Currency or Currencies described in the preceding paragraph) sufficient to pay the
principal, premium, interest and Additional Amounts, as the case may be, so becoming due, such sum
to be held in trust for the benefit of the Persons entitled thereto, and (unless such Paying Agent
is the Trustee) the Issuer will promptly notify the Trustee of its action or failure so to act.
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The Issuer shall cause each Paying Agent for any series of Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal of, any premium or
interest on or any Additional Amounts with respect to Securities of such series in trust for
the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as provided in or pursuant to this Indenture;
(2) give the Trustee notice of any default by the Issuer (or any other obligor upon the
Securities of such series) in the making of any payment of principal, any premium or
interest on or any Additional Amounts with respect to the Securities of such series; and
(3) at any time during the continuance of any such default, upon the written request of
the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Issuer Order direct any Paying Agent to pay, to
the Trustee all sums held in trust by the Issuer or such Paying Agent, such sums to be held by the
Trustee upon the same terms as those upon which such sums were held by the Issuer or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such sums.
Except as otherwise provided herein or pursuant hereto, any money deposited with the Trustee
or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal of, any
premium or interest on or any Additional Amounts with respect to any Security of any series and
remaining unclaimed for two years after such principal or such premium or interest or Additional
Amount shall have become due and payable shall be paid to the Issuer on Issuer Request (or if
deposited by a Guarantor, paid to such Guarantor on Guarantor Request) or (if then held by the
Issuer) shall be discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Issuer or such Guarantor, as the case may be, for
payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Issuer as trustee thereof, shall thereupon cease.
Section 1004
Additional Amounts.
If any Securities of a series provide for the payment of Additional Amounts by the Issuer, the
Issuer agrees to pay to the Holder of any such Security Additional Amounts as provided in or
pursuant to this Indenture or such Securities; and, if the Guarantee of the Securities of a series
provides for the payment of Additional Amounts by any Guarantor of the Securities of such series,
each such Guarantor agrees, severally and not jointly, to pay to the Holder of any such Security
Additional Amounts as provided in or pursuant to this Indenture or its Guarantee of such Security.
Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or
any premium or interest on, or in respect of, any Security of any series or Guarantee, such mention
shall be deemed to include mention of the payment of Additional
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Amounts provided by the terms of such series established hereby or pursuant hereto to the
extent that, in such context, Additional Amounts are, were or would be payable in respect thereof
pursuant to such terms, and express mention of the payment of Additional Amounts (if applicable) in
any provision hereof shall not be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
Section 1005
Legal Existence.
Subject to Article Eight, the Issuer shall do or cause to be done all things necessary to
preserve and keep in full force and effect its legal existence as any type of Corporation (it being
understood that nothing in this Section 1005 shall prohibit the Issuer from changing its legal form
from one type of Corporation to another type of Corporation).
Section 1006
Waiver of Certain Covenants.
The Issuer may omit in any particular instance to comply with any term, provision or condition
set forth in Sections 801, 802, 1002, 1003 or 1005 with respect to the Securities of any series
and, if expressly provided pursuant to Section 301 with respect to the Securities of such series,
any additional covenants applicable to the Securities of such series if before the time for such
compliance the Holders of at least a majority in principal amount of the Outstanding Securities of
such series, by Act of such Holders, either shall waive such compliance in such instance or
generally shall have waived compliance with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the Issuer and the duties
of the Trustee in respect of any such term, provision or condition shall remain in full force and
effect.
Section 1007
Issuer Statement as to Compliance.
The Issuer and each Guarantor (to the extent that such Guarantor is so required under the
Trust Indenture Act) shall deliver to the Trustee, within 90 days after the end of each fiscal
year, an Officers
Certificate stating whether or not, to the best of his or her
knowledge, the Issuer is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to notice requirements or periods of
grace) and if the Issuer shall be in default, specifying all such defaults and the nature and
status thereof of which he or she may have knowledge.
Section 1008
Guarantor Statement as to Compliance.
Each Guarantor shall deliver to the Trustee, within 90 days after the end of each fiscal year,
an Officers
Certificate stating whether or not, to the best of his or her
knowledge, such Guarantor is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to notice requirements or
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periods of grace) and if such Guarantor shall be in default, specifying all such defaults and
the nature and status thereof of which he or she may have knowledge.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101
Applicability of Article.
Redemption of Securities of any series at the option of the Issuer as permitted or required by
the terms of such Securities shall be made in accordance with the terms of such Securities and
(except as otherwise provided herein or pursuant hereto) this Article.
Section 1102
Election to Redeem; Notice to Trustee.
The election of the Issuer to redeem any Securities shall be evidenced by or pursuant to a
Board Resolution or an Officers Certificate or in another manner specified as contemplated by
Section 301 for such Securities. In case of any redemption at the election of the Issuer of less
than all of the Securities of any series, the Issuer shall, at least 60 days prior to the
Redemption Date fixed by the Issuer (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal amount of Securities of such series
to be redeemed.
In the case of any redemption of Securities (A) prior to the expiration of any restriction on
such redemption provided in the terms of such Securities or elsewhere in this Indenture or (B)
pursuant to an election of the Issuer which is subject to a condition specified in the terms of
such Securities or elsewhere in this Indenture, the Issuer shall furnish to the Trustee an
Officers Certificate evidencing compliance with such restriction or condition.
Section 1103
Selection by Trustee of Securities to be Redeemed.
If less than all of the Securities of any series are to be redeemed (unless all of the
Securities of such series and of a special tenor are to be redeemed or unless such redemption
affects only a single Security), the particular Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee from the Outstanding Securities of
such series, not previously called for redemption, by such method as the Trustee shall deem fair
and appropriate and which may provide for the selection for redemption of portions of the principal
amount of Securities of such series; provided, however, that no such partial redemption shall
reduce the portion of the principal amount of a Security of such series not redeemed to less than
the minimum denomination for a Security of such series established herein or pursuant hereto.
The Trustee shall promptly notify the Issuer and the Security Registrar (if other than itself)
in writing of the Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
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For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to
be redeemed only in part, to the portion of the principal of such Securities which has been or is
to be redeemed.
Section 1104
Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106, not less than 30
nor more than 60 days prior to the Redemption Date, unless a shorter period is specified in the
Securities to be redeemed, to the Holders of Securities to be redeemed. Failure to give notice in the manner herein provided to the Holder of any Securities designated for redemption as
a whole or in part, or any defect in the notice to any such Holder, shall not affect the validity
of the proceedings for the redemption of any other Securities or portions thereof.
Any
notice that is provided to the Holder of any Securities in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not such Holder receives the notice.
All notices shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if any Security is to be redeemed in part only, the portion of the principal amount
of that Security that is to be redeemed and that, after the Redemption Date upon surrender
of such Security, a new Security or Securities in principal amount equal to the unredeemed
portion of the original Security representing the same indebtedness to the extent not
redeemed will be issued in the name of the Holder of the Securities upon cancellation of the
original Security;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the Paying Agent to collect
the Redemption Price;
(6) that, unless the Issuer defaults in making such redemption payment, interest on
Securities called for redemption ceases to accrue on and after the Redemption Date;
(7) the paragraph or subparagraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(8) that no representation is made as to the correctness or accuracy of the CUSIP
and/or ISIN number, if any, listed in such notice or printed on the Securities; and
A notice of redemption published as contemplated by Section 106 need not identify particular
Securities to be redeemed.
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Notice of redemption of Securities to be redeemed at the election of the Issuer shall be given
by the Issuer or, at the Issuers request, by the Trustee in the name and at the expense of the
Issuer.
Section 1105
Deposit of Redemption Price.
On or prior to any Redemption Date, the Issuer shall deposit, with respect to the Securities
of any series called for redemption pursuant to Section 1104, with the Trustee or with a Paying
Agent (or, if the Issuer is acting as its own Paying Agent, segregate and hold in trust as provided
in Section 1003) an amount of money in the applicable Currency or, if the Redemption Price shall be
payable in cash, securities and/or other property, an amount of money in the applicable Currency,
securities and/or other property, as the case may be, sufficient to pay the Redemption Price of,
and (unless otherwise specified pursuant to Section 301 with respect to the Securities of such
series) any accrued interest on, all such Securities or portions thereof which are to be redeemed
on that date.
Section 1106
Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein specified, and from
and after such date (unless the Issuer shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by the Issuer at the
Redemption Price, together, if applicable, with accrued interest to the Redemption Date;
provided
,
however
, that, unless otherwise specified as contemplated by Section 301,
installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their terms and the
provisions of Section 307;
provided
further
that, unless otherwise specified as
contemplated by Section 301, if the Redemption Date is after a Regular Record Date and on or prior
to the Interest Payment Date, the accrued and unpaid interest shall be payable to the Holder of the
redeemed Securities registered on the relevant Regular Record Date.
If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal and any premium, until paid, shall bear interest from the Redemption Date
at the rate prescribed therefor in the Security or, if no rate is prescribed therefor in the
Security, at the rate of interest, if any, borne by such Security.
Section 1107
Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Issuer or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the
Holder thereof or such Holders attorney duly authorized in writing), and the Issuer shall execute,
and the Trustee shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of any
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authorized denomination as requested by such Holder, in principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
Section 1201
Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of
Securities of a series, except as otherwise permitted or required in or pursuant to this Indenture
or any Security of such series issued pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a mandatory sinking fund payment, and any payment in excess of
such minimum amount provided for by the terms of Securities of such series is herein referred to as
an optional sinking fund payment. If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202.
Each sinking fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series and this Indenture.
Section 1202
Satisfaction of Sinking Fund Payments with Securities.
The Issuer (1) may deliver Outstanding Securities of a series (other than any previously
called for redemption) and (2) may apply as a credit Securities of a series which have been
redeemed either at the election of the Issuer pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund payment with
respect to any Securities of such series required to be made pursuant to the terms of such
Securities as and to the extent provided for by the terms of such Securities;
provided
that
the Securities to be so credited have not been previously so credited. The Securities to be so
credited shall be received and credited for such purpose by the Trustee at the Redemption Price, as
specified in the Securities so to be redeemed, for redemption through operation of the sinking fund
and the amount of such sinking fund payment shall be reduced
accordingly.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301
Applicability of Article.
Securities of any series which are repayable at the option of the Holders thereof before their
Stated Maturity shall be repaid in accordance with the terms of the Securities of such series. The
repayment of any principal amount of Securities pursuant to such option of the Holder to require
repayment of Securities before their Stated Maturity, for purposes of Section 309, shall not
operate as a payment, redemption or satisfaction of the indebtedness represented by such Securities
unless and until the Issuer, at its option, shall deliver or surrender the same to the
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Trustee with a directive that such Securities be cancelled. Notwithstanding anything to the
contrary contained in this Section 1301, in connection with any repayment of Securities, the Issuer
may arrange for the purchase of any Securities by an agreement with one or more investment bankers
or other purchasers to purchase such Securities by paying to the Holders of such Securities on or
before the applicable repayment date an amount not less than the repayment price payable by the
Issuer on repayment of such Securities, and the obligation of the Issuer to pay the repayment price
of such Securities shall be satisfied and discharged to the extent such payment is so paid by such
purchasers.
Unless otherwise expressly stated in this Indenture or pursuant to Section 301 with respect to
the Securities of any series or unless the context otherwise requires, all references in this
Indenture to the repayment of Securities at the option of the Holders thereof (and all references
of like import) shall be deemed to include a reference to the repurchase or redemption of
Securities at the option of the Holders thereof.
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1401
Applicability of Article.
Whenever this Indenture provides for (i) any action by, or the determination of any of the
rights of, Holders of Securities of any series in which not all of such Securities are denominated
in the same Currency or (ii) any distribution to Holders of Securities of any series in which not
all of such Securities are denominated in the same Currency, in the absence of any provision to the
contrary in or pursuant to this Indenture or the Securities of such series, any amount in respect
of any Security denominated in a Currency other than Dollars shall be treated for any such action,
determination or distribution as that amount of Dollars that could be obtained for such amount on
such reasonable basis of exchange and as of the record date with respect to Securities of such
series (if any) for such action, determination or distribution (or, if there shall be no applicable
record date, such other date reasonably proximate to the date of such distribution) as the Issuer
may specify in a written notice to the Trustee.
ARTICLE FIFTEEN
GUARANTEES
Section 1501
Guarantees.
The Securities of each series shall be guaranteed by such Guarantors, and on such terms and
subject to such conditions, as shall be established pursuant to Section 301 with respect to the
Securities of such series. The Persons who shall initially be the Guarantors of the Securities of
any series may, but need not, include any or all of the Initial Guarantors and may include any and
all such other Persons as the Issuer may determine; provided that prior to the initial issuance of
Securities that are to be guaranteed by a Person that is not an Initial Guarantor (or, if provided
by the terms of this Indenture, a successor to an Initial Guarantor), the parties hereto and such
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Person shall enter into a supplemental indenture pursuant to Section 901 hereof whereby such
Person shall become a Guarantor under this Indenture.
Anything in this Indenture, the Securities or any Guarantee to the contrary notwithstanding,
the obligations of each Guarantor under its Guarantees and this Indenture shall be limited to the
maximum amount as will, after giving effect to all other contingent and fixed liabilities of such
Guarantor, result in the obligations of such Guarantor under its Guarantees and this Indenture not
constituting a fraudulent advance or fraudulent transfer under any Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or
other law affecting the rights of creditors generally.
No Guarantee shall be valid and obligatory for any purpose with respect to any Security until
the certificate of authentication on such Security shall have been signed by or on behalf of the
Trustee.
ARTICLE SIXTEEN
SECURITY
Section 1601
Security.
If so provided pursuant to Section 301 with respect to the Securities of any series, the
Securities of such series and/or the Guarantees of such Securities may be secured by such property,
assets or other collateral as may be specified in or pursuant to Section 301. Any and all terms
and provisions applicable to the security for the Securities of such series and/or such Guarantees
shall also be provided in or pursuant to Section 301, which may include, without limitation,
provisions for the execution and delivery of such security agreements, pledge agreements,
collateral agreements and other similar or related agreements as the Issuer or any Guarantor may
elect and which may provide for the Trustee to act as collateral agent or in a similar or other
capacity. The Trustee shall comply with Sections 313(a)(5) and (6) and 313(b)(1) of the Trust
Indenture Act and the Issuer and, if applicable, any Guarantor that has pledged collateral to
secure its Guarantee shall comply with Sections 314(b), 314(c) and 314(d) of the Trust Indenture
Act, in each case in respect of any secured Securities and/or Guarantees that may be Outstanding
hereunder from time to time.
* *
*
*
*
This instrument may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, as of the day and year first above
written.
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HCA INC.
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By:
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Name:
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Title:
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as Trustee
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By:
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Name:
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Title:
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64
SCHEDULE 1
Initial Guarantors
65