Table of Contents

 
 
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): August 1, 2011 (July 26, 2011)
HCA HOLDINGS, INC.
(Exact Name of Registrant as Specified in Charter)
         
Delaware   001-11239   27-3865930
         
(State or Other   (Commission File Number)   (I.R.S. Employer
Jurisdiction       Identification No.)
of Incorporation)        
         
One Park Plaza, Nashville,        
Tennessee       37203
(Address of Principal Executive       (Zip Code)
Offices)        
Registrant’s telephone number, including area code: (615) 344-9551
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
o   Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
o   Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
o   Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
o   Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
 

 


 

TABLE OF CONTENTS
 
  EX-1.1
  EX-4.2
  EX-4.3
  EX-4.9
  EX-4.10
  EX-5.1
  EX-25.1

2


Table of Contents

Item 1.01 Entry into a Material Definitive Agreement
Overview
     On July 26, 2011, HCA Holdings, Inc. (the “Registrant” or the “Parent Guarantor”), HCA Inc., a wholly-owned subsidiary of the Registrant (the “Issuer”), and certain subsidiary guarantors of the Issuer entered into an Underwriting Agreement (the “Underwriting Agreement”) with J.P. Morgan Securities LLC, Barclays Capital Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc., Deutsche Bank Securities Inc. and Wells Fargo Securities, LLC as underwriters, for the issuance and sale by the Issuer of $3,000,000,000 aggregate principal amount of its 6.50% Senior Secured Notes due 2020 (the “Secured Notes”) and $2,000,000,000 aggregate principal amount of its 7.50% Notes due 2022 (the “Unsecured Notes” and, together with the Secured Notes, the “Notes”).
     On August 1, 2011, the Secured Notes were issued pursuant to a base indenture, dated as of such date (the “Base Indenture”), among the Issuer, the Parent Guarantor, Law Debenture Trust Company of New York, as trustee, (the “Trustee”) and Deutsche Bank Trust Company Americas, as registrar, paying agent and transfer agent (the “Registrar”), as amended and supplemented by the supplemental indenture, dated as of August 1, 2011, among the Issuer, the Parent Guarantor, the subsidiary guarantors named therein (the “Subsidiary Guarantors” and, together with the Parent Guarantor, the “Guarantors”), the Trustee and the Registrar (as supplemented, amended or modified from time to time, the “Secured Notes Indenture”).
     Also on August 1, 2011, the Unsecured Notes were issued pursuant to the Base Indenture, as supplemented by the supplemental indenture thereto, dated as of August 1, 2011, among the Issuer, the Parent Guarantor, the Trustee and the Registrar (as supplemented, amended or modified from time to time, the “Unsecured Notes Indenture” and, together with the Secured Notes Indenture, the “Indentures”). A form of the Base Indenture is set forth as Exhibit 4.2 to the Registrant’s Registration Statement on Form S-3 (File No. 333-175791), filed on July 26, 2011, and is incorporated herein by reference.
     Net proceeds from the offering of Notes, after deducting underwriter discounts and commissions and estimated offering expenses, are estimated to be approximately $4.939 billion. The Issuer intends to use the net proceeds from the offering of Notes, together with $284 million of borrowings under its asset-based revolving credit facility, to redeem and repurchase all of its outstanding $1.578 billion 9 5 / 8 %/10 3 / 8 % second lien toggle notes due 2016 and its outstanding $3.200 billion 9 1 / 4 % second lien notes due 2016, and for related fees and expenses. Redemption of such notes is anticipated to occur on August 26, 2011. The pretax debt retirement charge related to these redemptions is expected to be approximately $396 million.
     The following is a brief description of the terms of the Notes and the Indentures.
Secured Notes
     The Secured Notes will mature on February 15, 2020. Interest on the Secured Notes will be payable semi-annually on February 15 and August 15 of each year, commencing on February 15, 2012, to holders of record on the preceding February 1 or August 1, as the case may be.
Ranking
     The Secured Notes are the Issuer’s senior obligations and: (i) rank senior in right of payment to any of its future subordinated indebtedness, (ii) rank equally in right of payment with any of its existing and future senior indebtedness, (iii) are effectively senior in right of payment to indebtedness under its second lien notes to the extent of the collateral securing such indebtedness and to any unsecured indebtedness, (iv) are effectively equal in right of payment with indebtedness under its cash flow credit facility and existing first lien notes to the extent of the collateral (other than certain European collateral securing the senior secured European term loan facility) securing such indebtedness, (v) are effectively subordinated in right of payment to all indebtedness under its asset-based revolving credit facility to the extent of the shared collateral securing such indebtedness, and (vi) are effectively subordinated in right of payment to all existing and future indebtedness and other liabilities of its non-guarantor subsidiaries (other than indebtedness and liabilities owed to it or one of its guarantor subsidiaries).

3


Table of Contents

Guarantees
     The Secured Notes are fully and unconditionally guaranteed on a senior unsecured basis by the Parent Guarantor and on a senior secured basis by each of the Issuer’s existing and future direct or indirect wholly owned domestic subsidiaries that guarantees its obligations under its senior secured credit facilities (except for certain special purpose subsidiaries that only guarantee and pledge their assets under its asset-based revolving credit facility).
Security
     The Secured Notes and related subsidiary guarantees are secured by first-priority liens, subject to permitted liens, on certain of the assets of the Issuer and the subsidiary guarantors that secure its cash flow credit facility and the existing first lien notes on a pari passu basis, including: (i) substantially all the capital stock of any wholly owned first-tier subsidiary of the Issuer or of any subsidiary guarantor of the Secured Notes (but limited to 65% of the voting stock of any such wholly owned first-tier subsidiary that is a foreign subsidiary) and (ii) substantially all tangible and intangible assets of the Issuer and each subsidiary guarantor, other than (1) other properties that do not secure its senior secured credit facilities, (2) deposit accounts, other bank or securities accounts and cash, (3) leaseholds and motor vehicles; provided that, with respect to the portion of the collateral comprised of real property, the Issuer will have up to 60 days following the issue date of the notes to complete those actions required to perfect the first-priority lien on such collateral, (4) certain European collateral and (5) certain receivables collateral that only secures its asset-based revolving credit facility, in each case subject to exceptions, and except that the lien on properties defined as “principal properties” under its existing indenture dated as of December 16, 1993, so long as such indenture remains in effect, will be limited to securing a portion of the indebtedness under the notes, its cash flow credit facility and the existing first lien notes that, in the aggregate, does not exceed 10% of its consolidated net tangible assets.
     The Secured Notes and the related subsidiary guarantees will be secured by second-priority liens, subject to permitted liens, on certain receivables of the Issuer and the subsidiary guarantors that secure its asset-based revolving credit facility on a first-priority basis.
     In the event the Secured Notes have investment grade ratings from both Moody’s Investors Service, Inc. and Standard & Poor’s, the collateral securing the Secured Notes and the related subsidiary guarantees will be released. In addition, to the extent the collateral is released as security for the Issuer’s senior secured credit facilities, it will also be released as security for the Secured Notes and for the related subsidiary guarantees.
Covenants
     The Secured Notes Indenture contains covenants limiting the Issuer’s and certain of its subsidiaries’ ability to: (i) create liens on certain assets to secure debt, (ii) engage in certain sale and lease-back transactions, (iii) sell certain assets and (iv) consolidate, merge, sell or otherwise dispose of all or substantially all of its assets. These covenants are subject to a number of important limitations and exceptions.
     Certain of these covenants will cease to apply and others will be modified in the event that the Secured Notes have investment grade ratings from both Moody’s Investors Service, Inc. and Standard & Poor’s.
Intercreditor Arrangements
First Lien Intercreditor Agreement
     Bank of America, N.A., as collateral agent for the holders of the Secured Notes, the existing first lien notes and obligations under the cash flow credit facility (the “First Lien Collateral Agent”), Bank of America, N.A., as authorized representative of the lenders under the cash flow credit facility (the “Administrative Agent”), and Law Debenture Trust Company of New York, as authorized representative of the holders of the existing first lien notes, entered into a First Lien Intercreditor Agreement, dated as of April 22, 2009, with respect to the collateral (the “Collateral”) that secures the cash flow credit facility, the existing first lien notes and the Secured Notes and may

4


Table of Contents

secure additional first lien obligations (“Additional First Lien Obligations”) permitted to be incurred under the Company’s debt instruments and designated as additional first lien obligations for purposes of the First Lien Intercreditor Agreement, the Security Agreement and the Pledge Agreement. The Secured Notes and related guarantees became subject to the First Lien Intercreditor Agreement as of August 1, 2011.
Additional General Intercreditor Agreement
     In addition, the First Lien Collateral Agent, The Bank of New York Mellon, as collateral agent (the “Junior Lien Collateral Agent”) for the holders of the notes (the “Second Lien Notes”) secured by liens on the Collateral on a second-priority basis (or a third-priority basis with respect to certain receivables collateral) and the trustees under the indentures (the “Second Lien Indentures”) governing the Second Lien Notes, entered into an Additional General Intercreditor Agreement, dated as of August 1, 2011, by which the Secured Notes are given the same ranking and rights with respect to the Collateral.
Additional Receivables Intercreditor Agreement
     Finally, the First Lien Collateral Agent and Bank of America, N.A., as collateral agent (the “ABL Collateral Agent”) in connection with the asset-based revolving facility, entered into an Additional Receivables Intercreditor Agreement, dated as of August 1, 2011, by which the Secured Notes are given the same ranking, rights and obligations with respect to certain receivables collateral (the “Receivables Collateral”) that secures the asset-based revolving credit facility on a first-priority basis and the Secured Notes, cash flow credit facility and the existing first lien notes on a second-priority basis.
Unsecured Notes
     The Unsecured Notes will mature on February 15, 2022. Interest on the Secured Notes will be payable semi-annually on February 15 and August 15 of each year, commencing on February 15, 2012 to holders of record on the preceding February 1 or August 1, as the case may be.
Ranking
     The Unsecured Notes are the Issuer’s senior obligations and: (i) rank senior in right of payment to any of its future subordinated indebtedness, (ii) rank equally in right of payment with any of its existing and future senior indebtedness, (iii) are effectively subordinated in right of payment to any of its existing and future secured indebtedness to the extent of the value of the collateral securing such indebtedness and (vi) are structurally subordinated in right of payment to all existing and future indebtedness and other liabilities of its subsidiaries.
Guarantees
     The Unsecured Notes are fully and unconditionally guaranteed on a senior unsecured basis by the Parent Guarantor. The Unsecured Notes will not be guaranteed by any of the Issuer’s subsidiaries.
Covenants
     The Unsecured Notes Indenture contains covenants limiting the Issuer’s and certain of its subsidiaries’ ability to: (i) create liens on certain assets to secure debt, (ii) engage in certain sale and lease-back transactions and (iii) consolidate, merge, sell or otherwise dispose of all or substantially all of its assets. These covenants are subject to a number of important limitations and exceptions.
Terms Common to the Secured Notes and the Unsecured Notes
Optional Redemption
     The Indentures permit the Issuer to redeem some or all of the Notes at any time at “make whole” redemption prices set forth in the respective Indenture.

5


Table of Contents

Change of Control
     Upon the occurrence of a change of control, as defined in the Indentures, each holder of the Notes has the right to require the Issuer to repurchase some or all of such holder’s Notes at a purchase price in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest, if any, to the repurchase date.
Events of Default
     The Indentures also provide for events of default which, if any of them occurs, would permit or require the principal of and accrued interest on the Notes to become or to be declared due and payable.
* * *
     The foregoing descriptions of the Underwriting Agreement, the Indentures (including the forms of the Notes) and Intercreditor Agreements are qualified in their entirety by the terms of such agreements. Please refer to such agreements, which are incorporated herein by reference and attached hereto as Exhibits 1.1, 4.1, 4.2, 4.3, 4.8, 4.9 and 4.10.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of a Registrant
     The information required by Item 2.03 relating to the borrowings by the Issuer under the Notes, together with related borrowings under its asset-based revolving credit facility to pay related fees and expenses, is contained in Item 1.01 of this Current Report on Form 8-K and is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibit.
(d) Exhibits
     
Exhibit No.   Description
 
1.1
  Underwriting Agreement, dated as of July 26, 2011, among HCA Inc., HCA Holdings, Inc., the subsidiary guarantors named therein, J.P. Morgan Securities LLC, Barclays Capital Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc., Deutsche Bank Securities Inc. and Wells Fargo Securities, LLC
 
   
4.1
  Form of Indenture of HCA Inc. (filed as Exhibit 4.2 to the Registrant’s Registration Statement on Form S-3 (File No. 333-175791) and incorporated herein by reference)
 
   
4.2
  Supplemental Indenture No. 1, dated as of August 1, 2011, among HCA Inc., HCA Holdings, Inc., Law Debenture Trust Company of New York, as trustee, and Deutsche Bank Trust Company Americas, as paying agent, registrar and transfer agent (Unsecured Notes)
 
   
4.3
  Supplemental Indenture No. 2, dated as of August 1, 2011, among HCA Inc., HCA Holdings, Inc., the subsidiary guarantors named therein, Law Debenture Trust Company of New York, as trustee, and Deutsche Bank Trust Company Americas, as paying agent, registrar and transfer agent (Secured Notes)
 
   
4.4
  Form of Global Note representing the Unsecured Notes (included in Exhibit 4.2)
 
   
4.5
  Form of Global Note representing the Secured Notes (included in Exhibit 4.3)
 
   
4.6
  Security Agreement, dated as of November 17, 2006, and amended and restated as of March 2, 2009, among HCA Inc., the subsidiary grantors party thereto and Bank of America, N.A. as collateral agent (filed as Exhibit 4.10 to the Registrant’s Annual Report on Form 10-K filed on March 4, 2009, and incorporated herein by reference)
 
   
4.7
  Pledge Agreement, dated as of November 17, 2006, and amended and restated as of March 2, 2009,

6


Table of Contents

     
 
  among HCA Inc., the subsidiary pledgors party thereto and Bank of America, N.A. as collateral agent (filed as Exhibit 4.11 to the Registrant’s Annual Report on Form 10-K filed on March 4, 2009, and incorporated herein by reference)
 
   
4.8
  First Lien Intercreditor Agreement, dated as of April 22, 2009, among Bank of America, N.A., as collateral agent, Bank of America, N.A. as authorized representative under the cash flow credit facility, and Law Debenture Trust Company of New York, as authorized representative for the holders of the existing first lien notes (filed as Exhibit 4.5 to the Registrant’s Current Report on Form 8-K filed on April 28, 2009, and incorporated herein by reference)
 
   
4.9
  Additional General Intercreditor Agreement, dated as of August 1, 2011, by and among Bank of America, N.A., in its capacity as First Lien Collateral Agent, The Bank of New York Mellon, in its capacity as Junior Lien Collateral Agent and in its capacity as trustee for the Second Lien Notes issued on November 17, 2006, and The Bank of New York Mellon Trust Company, N.A., in its capacity as trustee for the Second Lien Notes issued on February 19, 2009
 
   
4.10
  Additional Receivables Intercreditor Agreement, dated as of August 1, 2011 by and between Bank of America, N.A., as ABL Collateral Agent, and Bank of America, N.A., as New First Lien Collateral Agent
 
   
5.1
  Opinion of Simpson Thacher & Bartlett LLP
 
   
23.1
  Consent of Simpson Thacher & Bartlett LLP (included in Exhibit 5.1)
 
   
25.1
  Statement of Eligibility under the Trust Indenture Act of 1939 on Form T-1 of Law Debenture Trust Company of New York for Indenture of HCA Inc.

7


Table of Contents

SIGNATURES
     Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
         
    HCA HOLDINGS, INC.
    (Registrant)
 
       
 
  By:   /s/ David G. Anderson
 
 David G. Anderson
 
      Senior Vice President — Finance and Treasurer
 
       
Date: August 1, 2011
       

8


Table of Contents

INDEX TO EXHIBITS
     
Exhibit No.   Description
 
1.1
  Underwriting Agreement, dated as of July 26, 2011, among HCA Inc., HCA Holdings, Inc., the subsidiary guarantors named therein, J.P. Morgan Securities LLC, Barclays Capital Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc., Deutsche Bank Securities Inc. and Wells Fargo Securities, LLC
 
   
4.1
  Form of Indenture of HCA Inc. (filed as Exhibit 4.2 to the Registrant’s Registration Statement on Form S-3 (File No. 333-175791) and incorporated herein by reference)
 
   
4.2
  Supplemental Indenture No. 1, dated as of August 1, 2011, among HCA Inc., HCA Holdings, Inc., Law Debenture Trust Company of New York, as trustee, and Deutsche Bank Trust Company Americas, as paying agent, registrar and transfer agent (Unsecured Notes)
 
   
4.3
  Supplemental Indenture No. 2, dated as of August 1, 2011, among HCA Inc., HCA Holdings, Inc., the subsidiary guarantors named therein, Law Debenture Trust Company of New York, as trustee, and Deutsche Bank Trust Company Americas, as paying agent, registrar and transfer agent (Secured Notes)
 
   
4.4
  Form of Global Note representing the Unsecured Notes (included in Exhibit 4.2)
 
   
4.5
  Form of Global Note representing the Secured Notes (included in Exhibit 4.3)
 
   
4.6
  Security Agreement, dated as of November 17, 2006, and amended and restated as of March 2, 2009, among HCA Inc., the subsidiary grantors party thereto and Bank of America, N.A. as collateral agent (filed as Exhibit 4.10 to the Registrant’s Annual Report on Form 10-K filed on March 4, 2009, and incorporated herein by reference)
 
   
4.7
  Pledge Agreement, dated as of November 17, 2006, and amended and restated as of March 2, 2009, among HCA Inc., the subsidiary pledgors party thereto and Bank of America, N.A. as collateral agent (filed as Exhibit 4.11 to the Registrant’s Annual Report on Form 10-K filed on March 4, 2009, and incorporated herein by reference)
 
   
4.8
  First Lien Intercreditor Agreement, dated as of April 22, 2009, among Bank of America, N.A., as collateral agent, Bank of America, N.A. as authorized representative under the cash flow credit facility, and Law Debenture Trust Company of New York, as authorized representative for the holders of the existing first lien notes (filed as Exhibit 4.5 to the Registrant’s Current Report on Form 8-K filed on April 28, 2009, and incorporated herein by reference)
 
   
4.9
  Additional General Intercreditor Agreement, dated as of August 1, 2011, by and among Bank of America, N.A., in its capacity as First Lien Collateral Agent, The Bank of New York Mellon, in its capacity as Junior Lien Collateral Agent and in its capacity as trustee for the Second Lien Notes issued on November 17, 2006, and The Bank of New York Mellon Trust Company, N.A., in its capacity as trustee for the Second Lien Notes issued on February 19, 2009
 
   
4.10
  Additional Receivables Intercreditor Agreement, dated as of August 1, 2011 by and between Bank of America, N.A., as ABL Collateral Agent, and Bank of America, N.A., as New First Lien Collateral Agent
 
   
5.1
  Opinion of Simpson Thacher & Bartlett LLP
 
   
23.1
  Consent of Simpson Thacher & Bartlett LLP (included in Exhibit 5.1)
 
   
25.1
  Statement of Eligibility under the Trust Indenture Act of 1939 on Form T-1 of Law Debenture Trust Company of New York for Indenture of HCA Inc.

9

Exhibit 1.1
HCA INC.
$5,000,000,000
7.50% Senior Notes due 2022
6.50% Senior Secured Notes due 2020
UNDERWRITING AGREEMENT
July 26, 2011
J.P. Morgan Securities LLC
Barclays Capital Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Citigroup Global Markets Inc.
Deutsche Bank Securities Inc.
Wells Fargo Securities, LLC
As Representatives of the Underwriters
  c/o J.P. Morgan Securities LLC
     383 Madison Avenue
     New York, New York 10179
Ladies and Gentlemen:
          HCA Inc., a Delaware corporation (the “ Company ”), proposes to issue and sell to the several parties named in Schedule I hereto (each an “ Underwriter ” and together, the “ Underwriters ”), for whom you (the “ Representatives ”) are acting as representatives of, the respective amounts set forth in such Schedule I of $2,000,000,000 aggregate principal amount of its 7.50% Senior Notes due 2022 (the “ Senior Notes ”) and $3,000,000,000 aggregate principal amount of its 6.50% Senior Secured Notes due 2020 (the “ Secured Notes ” and together with the Senior Notes, the “ Securities ”).
          The Senior Notes will be issued pursuant to a base indenture, to be dated on or about August 1, 2011 (the “ Indenture ”), among the Company, the Parent Guarantor (as defined below), Law Debenture Trust Company of New York, as trustee (in such capacity, the “ Senior Trustee ”) and Deutsche Bank Trust Company Americas, as registrar, paying agent and transfer agent (the “ Registrar ”), as supplemented by the supplemental indenture, dated August 1, 2011, among the Company, the Parent Guarantor, the Senior Trustee and the Registrar (as supplemented, amended or modified from time to time, the “ Senior Indenture ”). The Secured Notes will be issued pursuant to the Indenture, as supplemented by the supplemental indenture, dated August 1, 2011, among the Company, the Parent Guarantor (as defined below), the Subsidiary Guarantors (as defined below), Law Debenture Trust Company of New York, as trustee (in such

 


 

capacity, the “ Secured Trustee ”) and the Registrar (as supplemented, amended or modified from time to time, the “ Secured Indenture ” and, together with the Senior Indenture, the “ Indentures ”).
          The Senior Notes will be unconditionally guaranteed on a senior unsecured basis (the “ Senior Guarantee ”) by HCA Holdings, Inc., a Delaware corporation and the Company’s parent (“ Holdings ”). The Secured Notes will be unconditionally guaranteed (i) jointly and severally, on a senior secured basis (the “ Secured Guarantees ” and together with the Senior Guarantee, the “ Guarantees ”) by each of the Company’s subsidiaries (as defined in Section 18 hereof) that guarantee the Company’s obligations under the senior secured credit facilities (with the exception of the subsidiaries which guarantee only the asset-based revolving credit facility and/or the European term loan facility) (the “ Credit Facilities ”) described in the Disclosure Package (as defined below) and the Prospectus (as defined below) (together, the “ Subsidiary Guarantors ”) and (ii) on a senior unsecured basis by Holdings. For purposes of this Agreement (i) the Subsidiary Guarantors and Holdings, as guarantor of the Secured Notes, shall be collectively referred to herein as the “ Secured Guarantors ” and (ii) Holdings, as a guarantor of the Senior Notes, shall be referred to herein as the “ Parent Guarantor .” The Parent Guarantor together with the Secured Guarantors shall be referred to herein collectively as the “ Guarantors .”
          In connection with the offer and sale of the Securities, the Company and the Guarantors have prepared and filed with the Securities and Exchange Commission (the “ Commission ”) a registration statement on Form S-3 (File No. 333-175791), which contains a base prospectus relating to the debt securities to be issued from time to time by the Company (the “ Base Prospectus ”). The Company has also filed or proposed to file, with the Commission pursuant to Rule 424 under the Act a prospectus supplement specifically relating to the Securities (the “ Prospectus Supplement ”). Such registration statement, as amended at the time it became effective under the Act, including any required information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430A, 430B or 430C under the Act (the “ Rule 430 Information ”), is called the “ Registration Statement .” The term “ Prospectus ” shall mean the Base Prospectus as supplemented by the Prospectus Supplement specifically relating to the Securities in the form first used (or made available upon request of purchasers pursuant to Rule 173 under the Act) in connection with the confirmation and sales of the Securities, and the term “ Preliminary Prospectus ” means the preliminary prospectus supplement specifically relating to the Securities together with the Base Prospectus. Any reference herein to the Registration Statement, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act as of the effective date of the Registration Statement or the date of such Preliminary Prospectus or Prospectus as the case may be; any reference to any amendment or supplement to the Registration Statement, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after the date of such Registration Statement, any Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “ Exchange Act ”), and incorporated by reference in such Registration Statement, any Preliminary Prospectus or Prospectus, as the case may be. The term “ Disclosure Package ” shall mean (i) a Preliminary Prospectus dated July 26, 2011 and (ii) any “free writing prospectus” as defined in Rule 405 of the Act identified in Annex A hereto, which shall include the term sheet prepared pursuant to Section 5 hereto (the “ Pricing Term Sheet ”), which were available to purchasers of the Securities at or prior to the time when sales of

-2-


 

the Securities were first made (the “ Applicable Time ”). For purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (“ EDGAR ”) or its Interactive Data Electronic Applications system (“ IDEA ”).
          For the purposes of this Agreement, the term “ Transaction ” means, collectively, the offering of the Securities and the use of proceeds therefrom described herein and in the Disclosure Package and the Prospectus.
          1. Representations and Warranties . As of the date hereof and at the Closing Date, the Company and the Guarantors, jointly and severally, represent and warrant to each Underwriter as follows (unless the context otherwise indicates, references in this Section 1 to the “ Prospectus ” are to (x) the Disclosure Package in the case of representations and warranties made as of the date hereof and (y) both the Disclosure Package and the Prospectus the case of representations and warranties made as of the Closing Date):
     (a) No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, complied in all material respects with the Act and did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company makes no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives, expressly for use in any Preliminary Prospectus.
     (b) At the Applicable Time, the Disclosure Package does not and, on the Closing Date, will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided , however , that the Company and the Guarantors make no representation or warranty as to the information contained in or omitted from the Disclosure Package in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of the Underwriters through the Representatives specifically for inclusion therein.
     (c) The Company (including its agents and representatives, other than the Underwriters in their capacity as such) has not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Company or its agents and representatives (other than a communication referred to in clauses (i) (ii) and (iii) below) an “ Issuer Free Writing Prospectus ”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Act or Rule 134 under the Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents identified in

-3-


 

Annex A (including the Pricing Term Sheet) and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complied in all material respects with the Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus filed prior to the first use of such Issuer Free Writing Prospectus, did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company and the Guarantors make no representation or warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use in any Issuer Free Writing Prospectus.
     (d) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act has been received by the Company. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Act against the Company or related to the offering has been initiated or threatened by the Commission; as of the effective date of the Registration Statement, the Registration Statement complied in all material respects with the Act and the Trust Indenture Act, and did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Company and the Guarantors make no representation or warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representative expressly for use in the Registration Statement and the Prospectus and any amendment or supplement thereto.
     (e) None of the Company or any of the Guarantors or other Significant Subsidiaries (as defined below) is or, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in each of the Registration Statement, the Disclosure Package and the Prospectus, will be an “investment company” as defined in the Investment Company Act, without taking account of any exemption arising out of the number of holders of the Company’s securities.

-4-


 

     (f) None of Holdings, the Company or any of its subsidiaries or any of its Affiliates has taken or will take, directly or indirectly, any action designed to or that has constituted or that would reasonably be expected to cause or result, under the Exchange Act or otherwise, in stabilization or manipulation of the price of any security of the Company or any of its subsidiaries to facilitate the sale or resale of the Securities.
     (g) Each of Holdings, the Company and its subsidiaries has been duly organized and is validly existing as an entity in good standing under the laws of the jurisdiction in which it is chartered or organized with full corporate or other organizational power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Registration Statement, the Disclosure Package and the Prospectus, and is duly qualified to do business as a foreign corporation or other entity and is in good standing under the laws of each jurisdiction where the ownership or leasing of its properties or the conduct of its business requires such qualification except where the failure to be so organized or qualified, have such power or authority or be in good standing would not reasonably be expected to have a material adverse effect on the condition (financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole and after giving effect to the Transaction (a “ Material Adverse Effect ”).
     (h) The Company (i) has no subsidiaries other than those subsidiaries listed on Annex C-1 and (ii) does not own or control, directly or indirectly, any “significant subsidiary,” as defined in Rule 1-02(w) of Regulation S-X under the Act, other than those subsidiaries listed on Annex C-2 (each, a “ Significant Subsidiary ”).
     (i) As of March 31, 2011, on an as adjusted basis, after giving effect to the consummation of the Transaction, Holdings, the Company and its subsidiaries would have had the issued and outstanding capitalization as set forth in each of the Registration Statement, the Disclosure Package and the Prospectus under the heading “Capitalization” and all the outstanding membership interests or shares of capital stock, as applicable, of Holdings, the Company and each Restricted Subsidiary (as such term is defined under the captions “Description of unsecured notes” and “Description of secured notes” of each of the Disclosure Package and the Prospectus) have been duly authorized and validly issued, are fully paid and nonassessable, if applicable, and were not issued in violation of any preemptive or similar rights and, except as otherwise set forth in the Registration Statement, the Disclosure Package and the Prospectus, as of the Closing Date, all outstanding shares of capital stock or membership interests of the subsidiaries held by Holdings or the Company are owned either directly or indirectly free and clear of any security interest, claim, lien or encumbrance (other than liens, encumbrances and restrictions imposed in connection with the Credit Facilities, under the other secured indebtedness set forth in the Registration Statement, the Disclosure Package and the Prospectus under the heading “Capitalization,” or permitted under the Credit Facilities and the Indentures and by the Act and the state securities or “blue sky” laws of certain jurisdictions). Except as disclosed in the Registration Statement, the Disclosure Package and the Prospectus, there will be, on the Closing Date and after giving effect to the consummation of the Transaction, no (i) outstanding options, warrants or other rights to purchase, (ii) agreements or

-5-


 

other obligations to issue or (iii) other rights to convert any obligation into, or exchange any securities for, shares of capital stock of or ownership interests in Holdings, the Company or any of its subsidiaries.
     (j) (i) This Agreement has been duly authorized, executed and delivered by the Company and each Guarantor; (ii) the Senior Indenture, on the Closing Date, will have been duly authorized, executed and delivered by the Company and the Parent Guarantor and, assuming due authorization, execution and delivery thereof by the Senior Trustee and the Registrar, will constitute a legally valid and binding instrument enforceable against the Company and the Parent Guarantor in accordance with its terms (in each case subject, as to the enforcement of remedies, to the effects of (x) bankruptcy, reorganization, insolvency, fraudulent conveyance, moratorium or other laws affecting creditors’ rights generally from time to time in effect, (y) general principles of equity (whether considered in a proceeding in equity or at law) and (z) an implied covenant of good faith and fair dealing (collectively, the “ Enforceability Limitations ”)); (iii) the Secured Indenture, on the Closing Date, will have been duly authorized, executed and delivered by the Company and each Secured Guarantor and, assuming due authorization, execution and delivery thereof by the Secured Trustee and the Registrar, will constitute a legally valid and binding instrument enforceable against the Company and each Secured Guarantor in accordance with its terms (subject to the Enforceability Limitations); (iv) the Senior Notes, on the Closing Date, will have been duly authorized by the Company and, when executed and authenticated by the Senior Trustee in accordance with the provisions of the Senior Indenture and delivered to and paid for by the Underwriters, will have been duly executed and delivered by the Company and will constitute the legal, valid and binding obligations of the Company, enforceable against the Company and entitled to the benefits of the Senior Indenture (subject to the Enforceability Limitations); (v) the Secured Notes, on the Closing Date, will have been duly authorized by the Company and, when executed and authenticated by the Secured Trustee in accordance with the provisions of the Secured Indenture and delivered to and paid for by the Underwriters, will have been duly executed and delivered by the Company and will constitute the legal, valid and binding obligations of the Company, enforceable against the Company and entitled to the benefits of the Senior Indenture (subject to the Enforceability Limitations); (vi) the Senior Guarantee, on the Closing Date, will constitute the legal, valid and binding obligation of the Parent Guarantor, enforceable against the Parent Guarantor in accordance with its terms and entitled to the benefits of the Senior Indenture (subject to the Enforceability Limitations); (vii) the Secured Guarantees, on the Closing Date, will constitute the legal, valid and binding obligations of each of the Secured Guarantors, enforceable against each of the Secured Guarantors in accordance with their terms and entitled to the benefits of the Secured Indenture (subject to the Enforceability Limitations); (viii) the Mortgage Amendments (as defined on Schedule III hereto) will have been duly authorized, executed and delivered by the Company and each Secured Guarantor to the extent a party thereto and (ix) each of the Security Documents (as defined in Section 18 hereof) on the Closing Date will have been duly authorized, executed and delivered by the Company and each Secured Guarantor to the extent a party thereto. When the Security Documents and the Mortgage Amendments have been duly executed and delivered, the Security Documents and the Mortgages, as amended by the Mortgage Amendments will constitute

-6-


 

legal, valid and binding agreements of the Company and each Secured Guarantor to the extent a party thereto, enforceable against the Company and each Secured Guarantor to the extent a party thereto in accordance with their terms (subject to the Enforceability Limitations).
     (k) The term “ Transaction Documents ” refers to this Agreement, the Securities, the Security Documents, the Mortgages and the Indentures (including the Senior Guarantee and the Secured Guarantees). Each of the Transaction Documents conforms in all material respects to the description thereof in the Registration Statement, the Disclosure Package and the Prospectus, to the extent described therein.
     (l) No consent, approval, authorization or filing with or order of any United States (or any political subdivision thereof) court or governmental agency or body, or to the knowledge of the Company, any non-United States court or governmental agency or body, is required in connection with the execution, delivery and performance of the Transaction Documents (including, without limitation, the issuance of the Securities), except such (i) as may be required under the blue sky laws of any jurisdiction in which the Securities are offered and sold in connection with the transactions contemplated hereby (ii) filings of financing statements under the Uniform Commercial Code as from time to time in effect in the relevant jurisdictions or the relevant personal property security legislation, each as from time to time in effect in the relevant jurisdictions; and any filings required by the United States Patent and Trademark Office or the United States Copyright Office or the applicable intellectual property legislation, rules or regulations in effect in the other relevant jurisdictions or (iii) as shall have been obtained or made prior to the Closing Date.
     (m) None of the execution and delivery of the Transaction Documents, the issuance and sale of the Securities, the issuance of the Guarantees or the consummation of any other of the transactions herein or therein contemplated, or the fulfillment of the terms hereof or thereof will conflict with or result in a breach or violation of or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of the Guarantors pursuant to (i) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any of the Guarantors is a party or bound or to which its or their property is subject; or (ii) any statute, law, rule, regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of the Guarantors or any of its or their properties, other than in the cases of clauses (i) and (ii), such breaches, violations, liens, charges, or encumbrances that would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect; or result in the violation of the charter, bylaws or any equivalent governance document of the Company or any of the Guarantors.
     (n) The consolidated financial statements of the Holdings and its consolidated subsidiaries included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus comply in all material respects with the applicable

-7-


 

requirements of the Act and the Exchange Act, as applicable, and present fairly in all material respects the consolidated financial position, results of operations and cash flows of Holdings and its consolidated subsidiaries as of the dates and for the periods indicated and have been prepared in conformity with United States generally accepted accounting principles applied on a consistent basis throughout the periods involved (except as otherwise noted therein); the selected financial data set forth under the caption “Summary—Summary financial data” in the Registration Statement, the Disclosure Package and the Prospectus and in Updated Item 6, “Selected Financial Data to the Company’s annual report on Form 10-K for the year ended December 31, 2010,” filed with Holdings’ Current Report on Form 8-K filed on July 26, 2011 incorporated by reference therein fairly present in all material respects, on the basis stated therein, the information included therein; and the financial data and operating statistics for the quarter ended June 30, 2011 included in the Disclosure Package and the Prospectus under the heading “Recent developments” were determined by Holdings with a reasonable basis and in good faith. Nothing has come to the attention of Holdings, the Company or any other Guarantor that would cause any of them to believe that the actual financial data and operating statistics for the applicable periods will be materially different from the amounts disclosed in the Disclosure Package and the Prospectus.
     (o) Except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (in each case, exclusive of any amendment or supplement thereto), no action, suit, proceeding, investigation or audit by or before any court or governmental agency, authority or body or any arbitrator involving the Company, any Guarantor or any of their respective subsidiaries or their respective property is pending or, to the knowledge of the Company, threatened or contemplated that (i) would reasonably be expected to have a material adverse effect on the performance of the Transaction Documents or the consummation of any of the transactions contemplated thereby or (ii) would reasonably be expected to have a Material Adverse Effect.
     (p) Each of the Company, the Guarantors and their respective subsidiaries owns or leases all such real properties as are necessary to the conduct of their respective operations as currently conducted, except as would not reasonably be expected to have a Material Adverse Effect.
     (q) Except as set forth in or contemplated in each of the Registration Statement, the Disclosure Package and the Prospectus (in each case, exclusive of any amendment or supplement thereto), none of the Company, any Guarantor or any of their respective subsidiaries is in violation or default of (i) any provision of its charter, bylaws or any equivalent governance document; (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject; or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company, any Guarantor or any their respective subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company, the Guarantors, their respective subsidiaries or any of their respective properties, as applicable, other than in the cases of clauses (i) (if such entity is

-8-


 

not the Company, a Guarantor or another Significant Subsidiary), (ii) and (iii), such violations and defaults that would not reasonably be expected to have a Material Adverse Effect.
     (r) Ernst & Young LLP, who have audited the consolidated financial statements of the Parent Guarantor and its subsidiaries as of December 31, 2010 and 2009 and for each of the three years in the period ended December 31, 2010 incorporated by reference in each of the Registration Statement, the Disclosure Package and the Prospectus, are independent registered public accountants with respect to the Parent Guarantor and its subsidiaries within the meaning of the Act and the rules of the Public Company Accounting Oversight Board.
     (s) Except as set forth in or contemplated in each of the Registration Statement, the Disclosure Package and the Prospectus (in each case, exclusive of any amendment or supplement thereto), the Company, the Guarantors and their subsidiaries have filed all non-U.S., U.S. federal, state and local tax returns that are required to be filed or have requested extensions thereof except in any case in which the failure so to file would not reasonably be expected to have a Material Adverse Effect and have paid all taxes required to be paid by them and any other tax assessment, fine or penalty levied against them, to the extent that any of the foregoing is due and payable, except for any such tax assessment, fine or penalty that is currently being contested in good faith or as would not reasonably be expected to have a Material Adverse Effect.
     (t) Immediately after giving effect to the Transaction, no subsidiary of the Company (including any Guarantor) will be prohibited, directly or indirectly, from paying any dividends to the Company or any Guarantor or any other subsidiary (except as may be limited by applicable state or foreign corporation, limited liability company, limited partnership, partnership, insurance or other applicable regulatory law), from making any other distribution on such subsidiary’s capital stock or membership interests (except as may be limited by applicable state or foreign corporation, limited liability company, limited partnership, partnership, insurance or other applicable regulatory law), from repaying to the Company or any Guarantor or any other subsidiary any loans or advances to such subsidiary from the Company or any Guarantor or any other subsidiary or from transferring any of such subsidiary’s property or assets to the Company or any Guarantor or any other subsidiary of the Company or any Guarantor, except as described in each of the Registration Statement, the Disclosure Package and the Prospectus (in each case, exclusive of any amendment or supplement thereto) or contemplated pursuant to (i) the Company’s senior secured credit facilities, (ii) the indentures governing the Company’s existing secured notes, in each case as defined in the Disclosure Package and the Prospectus and (iii) Holdings’ indenture governing its 7 3 / 4 % Senior Notes due 2021.
     (u) Except as set forth in or contemplated in each of the Registration Statement, the Disclosure Package and the Prospectus (in each case, exclusive of any amendment or supplement thereto), (i) the Company, the Guarantors and their respective subsidiaries possess all licenses, certificates, permits and other authorizations issued by the appropriate U.S. federal, state or non-U.S. regulatory authorities necessary to conduct their

-9-


 

respective businesses, except where the failure to possess such licenses, certificates, permits and other authorizations would not reasonably be expected to have a Material Adverse Effect, and (ii) none of the Company, the Guarantors or any of their respective subsidiaries has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit that, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have a Material Adverse Effect.
     (v) The Parent Guarantor and its subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
     (w) Except as set forth in or contemplated in each of the Registration Statement, the Disclosure Package and the Prospectus (in each case, exclusive of any amendment or supplement thereto), the Company, the Guarantors and their respective subsidiaries (i) are in compliance with any and all applicable non-U.S., U.S. federal, state and local laws and regulations relating to the protection of human health and safety (as such is affected by hazardous or toxic substances or wastes (including, without limitation, medical waste), pollutants or contaminants), the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“ Environmental Laws ”); (ii) have received and are in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses; (iii) have not received notice of any actual or potential liability under any Environmental Law; and (iv) have not been named as a “potentially responsible party” under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, except where such non-compliance with Environmental Laws, failure to receive or comply with required permits, licenses or other approvals, liability or status as a potentially responsible party would not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect.
     (x) No forward-looking statement (within the meaning of Section 27A of the Act and Section 21E of the Exchange Act) or presentation of market-related or statistical data contained in each of the Registration Statement, the Disclosure Package and the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
     (y) Except as set forth in or contemplated in each of the Registration Statement, the Disclosure Package and the Prospectus (in each case, exclusive of any amendment or supplement thereto), (i) the Company, the Guarantors and their respective subsidiaries possess all required permits, licenses, provider numbers, certificates, approvals

-10-


 

(including, without limitation, certificate of need approvals), consents, orders, certifications (including, without limitation, certification under the Medicare, Medicaid, TRICARE programs and other governmental healthcare programs in which they participate), accreditations (including, without limitation, accreditation by The Joint Commission) and other authorizations (collectively, “ Governmental Licenses ”) issued by, and have made all required declarations and filings with, the appropriate federal, state, local or foreign regulatory agencies or bodies and accreditation organizations necessary to conduct the business now operated by them (including, without limitation, Government Licenses as are required (a) under such federal and state healthcare laws as are applicable to the Company, the Guarantors and their respective subsidiaries and (b) with respect to those facilities operated by the Company, the Guarantors or any of their respective subsidiaries that participate in the Medicare, Medicaid and/or TRICARE programs, to receive reimbursement thereunder), except where the failure to possess such Governmental Licenses or to make such declarations and filings would not reasonably be expected to result in a Material Adverse Effect; (ii) the Company, the Guarantors and their respective subsidiaries are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure so to comply would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; (iii) all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not reasonably be expected to result in a Material Adverse Effect and (iv) none of the Company, the Guarantors or any of their respective subsidiaries has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to result in a Material Adverse Effect. All of the acute care hospitals, psychiatric hospitals and inpatient rehabilitation facilities operated by the Company, the Guarantors or any of their respective subsidiaries are “providers” (as defined in the Social Security Act and the regulations promulgated thereunder (collectively, “ SSA ”)), and all ambulatory surgery centers, diagnostic and imaging centers, radiation and oncology centers and other healthcare operations operated by the Company, the Guarantors or any of their respective subsidiaries are “suppliers,” as defined in the SSA, and all such providers of services and suppliers are eligible to participate in the Medicare and (to the extent disclosed in the Registration Statement, the Disclosure Package and the Prospectus) Medicaid and TRICARE programs. For purposes of this Agreement, “ Medicaid ” means any state-operated means-tested entitlement program under Title XIX of the SSA that provides federal grants to states for medical assistance based on specific eligibility criteria, “ Medicare ” means that government-sponsored entitlement program under Title XVIII of the SSA that provides for a health insurance system for eligible elderly and disabled persons including eligible persons with end-stage renal disease and “ TRICARE ” means the healthcare program established by the U.S. Department of Defense under Title 10, Subtitle A, Part II, Chapter 55 (10 U.S.C. § 1071 et seq .) for members of the military, military retirees and their dependants, and includes the competitive selection of contractors to financially underwrite the delivery of healthcare services under the Civilian Health and Medical Program of the Uniformed Services.

-11-


 

     (z) The accounts receivable of the Company, the Guarantors and their respective subsidiaries have been adjusted to reflect material changes in the reimbursement policies of third party payors such as Medicare, Medicaid, private insurance companies, health maintenance organizations, preferred provider organizations, managed care systems and other third party payors (including, without limitation, Blue Cross plans). The accounts receivable, after giving effect to the allowance for doubtful accounts, relating to such third party payors do not materially exceed amounts the Company, the Guarantors and their respective subsidiaries are entitled to receive, except as set forth in or contemplated in the Registration Statement, the Disclosure Package or the Prospectus (in each case, exclusive of any amendment or supplement thereto).
     (aa) Except as set forth in or contemplated in each of the Registration Statement, the Disclosure Package and the Prospectus (in each case, exclusive of any amendment or supplement thereto), none of the Company, the Guarantors, or, to the knowledge of the Company, any officers, directors, stockholders, members, employees or other agents of the Company, the Guarantors or any of their respective subsidiaries or any of the hospitals operated by them, has engaged in any activities which are prohibited under federal Medicare and Medicaid statutes, including, but not limited to, 42 U.S.C. Section 1320a-7 (Program Exclusion), Section 1320a-7a (Civil Monetary Penalties), 1320a-7b (the Anti-kickback Statute), Sections 1395nn and 1396b (the “Stark” law, prohibiting certain self-referrals), the federal TRICARE statute, 10 U.S.C. Section 1071 et seq ., the Federal Civil False Claims Act, 31 U.S.C. Sections 3729-32, Federal Criminal False Claims Act, 18 U.S.C. Section 287, False Statements Relating to Health Care Matters, 18 U.S.C. Section 1035, Health Care Fraud, 18 U.S.C. Section 1347, the privacy, security and transactions provisions of the Health Insurance Portability and Accountability Act of 1996 (Public Law 104-191), or the federal Food, Drug & Cosmetics Act, 21 U.S.C. Section 360aaa, or any regulations promulgated pursuant to such statutes, or related state or local statutes or regulations or any rules of professional conduct, including but not limited to the following: (i) knowingly and willfully making or causing to be made a false statement or representation of a material fact in any applications for any benefit or payment under the Medicare or Medicaid program or other federal or state healthcare program or from any third party (where applicable federal or state law prohibits such payments to third parties); (ii) knowingly and willfully making or causing to be made any false statement or representation of a material fact for use in determining rights to any benefit or payment under the Medicare or Medicaid program or other federal or state healthcare program or from any third party (where applicable federal or state law prohibits such payments to third parties); (iii) failing to disclose knowledge by a claimant of the occurrence of any event affecting the initial or continued right to any benefit or payment under the Medicare or Medicaid program or other federal or state healthcare program or from any third party (where applicable federal or state law prohibits such payments to third parties) on its own behalf or on behalf of another, with intent to secure such benefit or payment fraudulently; (iv) knowingly and willfully offering, paying, soliciting or receiving any remuneration (including any kickback, bribe or rebate), directly or indirectly, overtly or covertly, in cash or in kind (a) in return for referring an individual to a person for the furnishing or arranging for the furnishing of any other item or service for which payment may be made in whole or in part by Medicare or Medicaid or other federal or

-12-


 

state healthcare program or any third party (where applicable federal or state law prohibits such payments to third parties), or (b) in return for purchasing, leasing or ordering or arranging for or recommending the purchasing, leasing or ordering of any good, facility, service or item for which payment may be made in whole or in part by Medicare or Medicaid or other federal or state healthcare program or any third party (where applicable federal or state law prohibits such payments to third parties); (v) referring an individual to a person with which it has ownership or certain other financial arrangements or billing Medicare or Medicaid or any beneficiary of such program or other person for any designated health service or other item or service (where applicable federal law prohibits such referrals); (vi) knowingly and willfully presenting or causing to be presented a claim for a medical or other item or service that was not provided as claimed, or is for a medical or other item or service and the person knew or should have known the claim was false or fraudulent; (vii) violating any corporate integrity agreement or other agreement with any government agency (including, without limitation, the United States Department of Justice (“ DOJ ”) and the Office of Inspector General of the United States Department of Health and Human Services (“ OIG ”); and (viii) violating any enforcement initiative instituted by any governmental agency (including, without limitation, the OIG and the DOJ), except, in each case set forth in this paragraph, for any such activities which would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
     (bb) Each Security Document on the Closing Date will have been duly authorized by the Company and the Secured Guarantors to the extent a party thereto and, when duly executed and delivered by each of the parties thereto, will constitute a valid and legally binding agreement of each of the parties thereto, enforceable against the Company and each Secured Guarantor in accordance with its terms (in each case subject to the Enforceability Limitations). The Mortgages, as amended by the respective Mortgage Amendments when said Mortgage Amendments have been executed and delivered in connection with the sale of the Secured Notes and properly recorded and indexed with the applicable governmental authorities (together with payment of the appropriate filing or recording fees and applicable taxes), will create, in favor of the First Lien Collateral Agent for the benefit of the New First Lien Secured Parties (as defined in the Registration Statement, the Disclosure Package and the Prospectus), including the First Lien Collateral Agent and the Trustee on behalf of the holders of the Secured Notes, (i) valid and enforceable mortgage liens on such real property (subject to the Enforceability Limitations and the Permitted Exceptions (as defined in the Mortgages)) and (ii) perfected security interests in such fixtures subject only to the Permitted Liens (as defined under the caption “Description of secured notes” in the Disclosure Package and the Prospectus) and other liens permitted under the covenant described in “Description of secured notes—certain covenants—liens” and the Permitted Exceptions. The Security Documents, when executed and delivered in connection with the sale of the Secured Notes, will create in favor of the First Lien Collateral Agent of the New First Lien Secured Parties, including the First Lien Collateral Agent and the Trustee on behalf of the holders of the Secured Notes, valid and enforceable security interests in the rights of the Company and each Secured Guarantor in the property in which a security interest is purported to be granted under the Security Documents and upon, or as a result of, the filing of appropriate Uniform

-13-


 

Commercial Code financing statements and upon the taking of the other actions described in the Security Documents, the security interests in the rights of the Company and each Secured Guarantor in such property will be perfected to the extent provided in the Security Documents and will be subject only to Permitted Liens and other liens permitted under the covenant described in “Description of secured notes—certain covenants—liens.”
     (cc) The Company and the Guarantors collectively own, have rights in or have the power to transfer rights in the Collateral, free and clear of any Liens (as defined under the caption “Description of secured notes” in the Disclosure Package and the Prospectus) other than (i) the security interests granted pursuant to the Security Documents, (ii) the security documents relating to the Credit Facilities and (iii) Liens expressly permitted to exist on the Collateral under the First Lien and Second Lien Indentures.
     (dd) All of the capital stock of any corporation to be pledged under the Security Documents is certificated and exists as of the date hereof.
     (ee) The Company is not an ineligible issuer, and the Parent Guarantor is a well-known seasoned issuer, in each case as defined in Rule 405 of the Act, in each case, at the times specified in the Act in connection with the offering of the Securities.
          Any certificate signed by any officer of the Company, the Guarantors or their respective subsidiaries and delivered to the Representatives or counsel for the Underwriters in connection with the offering of the Securities and, when issued, the Guarantees, shall be deemed a joint and several representation and warranty by each of the Company, the Guarantors and their respective subsidiaries, as to matters covered thereby, to each Underwriter.
          2. Purchase and Sale .
          (a) Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to issue and sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, (i) with respect to the Senior Notes, at a purchase price of 98.875% of the gross proceeds to the Company (i.e. less a discount of $22,500,000), plus accrued interest, if any, from August 1, 2011 to the Closing Date, the principal amount of the Senior Notes set forth opposite such Underwriter’s name in Schedule I hereto and (ii) with respect to the Secured Notes, at a purchase price of 98.875% of the gross proceeds to the Company (i.e. less a discount of $33,750,000), plus accrued interest, if any, from August 1, 2011 to the Closing Date, the principal amount of the Secured Notes set forth opposite such Underwriter’s name in Schedule I hereto.
          (b) The Company hereby confirms its engagement of Barclays Capital Inc., who hereby confirms its agreement with the Company to render services as, a “qualified independent underwriter” within the meaning of Rule 5121 of the Financial Industry Regulatory Authority, Inc. Conduct Rules (“ Rule 5121 ”) with respect to the offering and sale of the Securities. Barclays Capital Inc. solely in its capacity as qualified independent underwriter and not otherwise, is referred to herein as the “ QIU .”

-14-


 

          3. Delivery and Payment . Delivery of and payment for the Securities shall be made at the offices of Simpson Thacher & Bartlett LLP, 425 Lexington Avenue, New York, New York 10017, New York City time on August 1, 2011 or at such time on such later date not more than three Business Days after the foregoing date as the Representatives shall designate, which date and time may be postponed by agreement between the Representatives and the Company or as provided in Section 10 hereof (such date and time of delivery and payment for the Securities being herein called the “ Closing Date ”). Delivery of the Securities shall be made to the Representatives for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to the account specified by the Company in writing to the Representatives. Delivery of the Securities shall be made through the facilities of The Depository Trust Company (“ DTC ”) unless the Representatives shall otherwise instruct.
          4. Offering by Underwriters . Each Underwriter acknowledges that:
     (a) it has not used and will not use, authorize use of, refer to, or participate in the planning for use of, any “free writing prospectus” as defined under Rule 405 of the Act (which term includes use of any written information furnished to the Commission by the Company and not incorporated by reference into the Registration Statement and any press release issued by the Company), other than (i) a free writing prospectus that, solely as a result of use by such Underwriter, would not trigger an obligation to file such free writing prospectus with the Commission pursuant to Rule 433 under the Act, (ii) any Issuer Free Writing Prospectus listed in Annex B or prepared pursuant to Section 1(c) above or Section 5(d) below (including any electronic road show), or (iii) any free writing prospectus prepared by such Underwriter and approved by the Company in advance in writing (each such free writing prospectus referred to in clauses (i) or (iii), an “ Underwriter Free Writing Prospectus ”). Notwithstanding the foregoing, the Underwriters may use a Pricing Term Sheet substantially in the form of Annex A hereto; and
     (b) it is not subject to any proceeding under Section 8A of the Act with respect to the offering (and will promptly notify the Company if any such proceeding against it is initiated during the Prospectus Delivery Period (as defined below)).
          5. Agreements . The Company and the Guarantors jointly and severally agree, in each case with each Underwriter as follows:
     (a) The Company will file the final Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Act, will file any Issuer Free Writing Prospectus (including the Pricing Term Sheet in the form of Annex A hereto) to the extent required by Rule 433 under the Act; and will file all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities; and the Company will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the

-15-


 

extent not previously delivered, electronically or otherwise) to the Underwriters in New York City on the second business day succeeding the date of this Agreement in such quantities as the Representatives may reasonably request. The Company will pay the registration fees for this offering within the time period required by Rule 456(b)(1)(i) under the Act (without giving effect to the proviso therein) and in any event prior to the Closing Date.
     (b) The Company has (i) furnished or will deliver to the Representatives and counsel for the Underwriters, without charge, signed copies of the Registration Statement as originally filed and each amendment thereto (including exhibits filed therewith) and signed copies of all consents and certificates of experts, and will also deliver to the Representatives, without charge, a conformed copy of the Registration Statement as originally filed and each amendment thereto (without exhibits) for each of the Underwriters. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T. The Company has delivered to each Underwriter, without charge, as many copies of each preliminary prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the Act and (ii) Company will furnish to each Underwriter, without charge, during the period when a prospectus relating to the Securities is (or, but for the exception afforded by Rule 172, would be) required to be delivered under the Act (such period, the “ Prospectus Delivery Period ”), such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
     (c) Before making, preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement or the Prospectus, the Company will furnish to J.P. Morgan Securities LLC (“ J.P. Morgan ”) and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not make, prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus required to be filed or file any such proposed amendment or supplement to which J.P. Morgan reasonably objects.
     (d) The Company will advise the Representatives promptly, and confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed; (ii) when any supplement to the Prospectus or any amendment to the Prospectus or any Issuer Free Writing Prospectus has been filed; (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information; (iv) of the issuance by the Commission of any order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus

-16-


 

or the Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Act; (v) of the occurrence of any event within the Prospectus Delivery Period as a result of which the Prospectus, the Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading; (vi) of the receipt by the Company of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act; and (vii) of the receipt by the Company of any notice with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Company will use every reasonable effort to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification of the Securities and, if any such order is issued, will obtain as soon as possible the withdrawal thereof.
     (e) If at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which, in the opinion of counsel for the Underwriters or the Company, the Disclosure Package as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances, not misleading or (ii) it is necessary to amend or supplement the Disclosure Package to comply with law, the Company will promptly notify J.P. Morgan on behalf of the Representatives thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments or supplements to the Disclosure Package as may be necessary so that the statements in the Disclosure Package as so amended or supplemented will not, in the light of the circumstances, be misleading or so that the Disclosure Package will comply with law.
     (f) If during the Prospectus Delivery Period (i) any event shall occur or condition shall exist as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with law, the Company will promptly notify J.P. Morgan on behalf of the Representatives thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission and furnish to the Underwriters and to such dealers as the Representatives may designate, such amendments or supplements to the Prospectus as may be necessary so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law.

-17-


 

     (g) The Company will use reasonable best efforts to assist the Underwriters in arranging, if necessary, for the qualification of the Securities for sale by the Underwriters under the applicable securities laws of such jurisdictions in the United States as the Representatives may designate and will maintain such qualifications in effect so long as required for the sale of the Securities; provided that in no event shall the Company or any of the Guarantors be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would reasonably be expected to subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject or to subject themselves to taxation in excess of a nominal amount in respect of doing business in any jurisdiction. The Company will promptly advise J.P. Morgan, on behalf of the Representatives, of the receipt by it of any notification with respect to the suspension of the qualification of the Securities or the Guarantees for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
     (h) The Company will cooperate with the Representatives and use its commercially reasonable efforts to permit the Securities to be eligible for clearance and settlement through DTC.
     (i) The Company will not, for a period of 30 days following the date of the Prospectus, without the prior written consent of J.P. Morgan, offer, sell or contract to sell, pledge or otherwise dispose of (or enter into any transaction that is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the Company, any of the Guarantors or any of their respective Affiliates or any person in privity with the Company, any of the Guarantors or any of their respective Affiliates), directly or indirectly, or announce the offering of, any capital markets debt securities issued or guaranteed by the Company or any of the Guarantors (other than the Securities and the Guarantees).
     (j) The Company and the Guarantors jointly and severally agree to pay the costs and expenses incident to the following matters: (i) the fees of the Trustee (and its counsel); (ii) the preparation, printing (or reproduction), delivery (including postage, air freight charges and charges for counting and packaging) and filing under the Act, of such copies of the Registration Statement, the Disclosure Package, and Issuer Free Writing Prospectus and the Prospectus, and all amendments or supplements to either of them, as may, in each case, be reasonably requested for use in connection with the offering and sale of the Securities; (iii) any stamp or transfer taxes in connection with the original issuance and sale of the Securities; (iv) the printing (or reproduction) and delivery of any blue sky memorandum to investors in connection with the offering of the Securities; (v) any registration or qualification of the Securities for offer and sale under the securities or blue sky laws of the several states and any other jurisdictions specified pursuant to Section 5(g) (including filing fees and the reasonable fees and expenses of counsel for the Underwriters relating to such registration and qualification); (vi) the approval of the Securities for book-entry transfer by DTC; (vii) the transportation and other expenses incurred by or on behalf of representatives of the Company in connection with presentations to prospective purchasers of the Securities; (viii) the fees and expenses of the

-18-


 

Company’s and Holdings’ accountants and the fees and expenses of counsel (including local and special counsel) to the Company; (ix) the rating of the Securities by rating agencies; (x) all filing costs, fees and expenses relating to the perfection of the security interests in the Collateral, as set forth in the Security Documents; and (xi) all other costs and expenses incident to the performance by the Company of their obligations hereunder; provided , however , that except as specifically provided in this paragraph (j), in Section 8 and in Section 9, the Underwriters shall pay their own costs and expenses in connection with presentations for prospective purchasers of the Securities.
     (k) The Company will use the proceeds from the sale of the Securities in the manner described in each of the Registration Statement, the Disclosure Package and the Prospectus under the caption “Use of proceeds.”
     (l) The Company and the Guarantors jointly and severally acknowledge and agree that the Underwriters are acting solely in the capacity of an arm’s length contractual counterparty to the Company and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company, any of the Guarantors or any other person. Additionally, no Underwriter is advising the Company, any of the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company or any of the Guarantors with respect thereto. Any review by the Underwriters of the Company and the Guarantors, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company or any of the Guarantors.
     (m) The Company and each Secured Guarantor shall cause the Secured Notes and the Secured Guarantees to be secured by liens on the Collateral to the extent and in the manner provided for in the Secured Indenture and the Security Documents and as described in each of the Registration Statement, the Disclosure Package and the Prospectus.
     (n) The Company will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Act.
          6. Conditions to the Obligations of the Underwriters . The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy in all material respects (except to the extent already qualified by materiality, in which case such obligations shall be subject to the accuracy in all respects) of the representations and warranties of the Company and the Guarantors contained herein at the Applicable Time, to the accuracy in all material respects (except to the extent already qualified by materiality, in which case such obligations shall be subject to the accuracy in all respects) of the representations and warranties of the Company and the Guarantors contained herein at the Closing Date, to the accuracy of the statements of the Company

-19-


 

or any Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
     (a) No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Act shall be pending before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of a Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Act) and in accordance with Section 5(a) hereof; and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives.
     (b) The Company shall have requested and caused Simpson Thacher & Bartlett LLP, counsel for the Company, to furnish to the Underwriters an opinion letter and an advice letter, each dated the Closing Date and substantially in the forms of Exhibit A and Exhibit B , respectively, hereto and an opinion of Bass, Berry & Sims PLC, special regulatory counsel for the Company, dated the Closing Date and substantially in the form of Exhibit C hereto. The Company shall have requested and caused the general counsel of the Company to furnish to the Underwriters an opinion letter with regards to such matters as the Representatives shall reasonably require. In addition, the Company shall have requested and caused to be furnished opinion letters in a form reasonably satisfactory to the Representatives by (i) McGuireWoods LLP, with respect to certain matters of California, Florida, Georgia and Virginia law, (ii) Baker Botts L.L.P., with respect to certain matters of Texas law, (iii) Jones Waldo Holbrook & McDonough PC, with respect to certain matters of Utah law, (iv) McAfee & Taft, with respect to certain matters of Oklahoma law, (v) Bass, Berry & Sims PLC, with respect to certain matters of Tennessee law (which opinion may be included in the opinion described above), (vi) Haynsworth Sinkler Boyd, P.A., with respect to certain matters of South Carolina law, and (vii) Anderson Nelson Hall Smith, P.A., with respect to certain matters of Idaho law, or, in any such case, from such other counsel acceptable to the Representatives.
     (c) The Underwriters shall have received from Cahill Gordon & Reindel llp , counsel for the Underwriters, such opinion letter and advice letter, each dated the Closing Date and addressed to the Underwriters, with respect to the issuance and sale of the Securities, the Indentures, the Disclosure Package and the Prospectus (as amended or supplemented at the Closing Date) and other related matters as the Underwriters may reasonably require; and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
     (d) The Company shall have furnished to the Underwriters a certificate of the Company, signed by (x) the chairman, chief executive officer, president or vice president and (y) the chief financial officer, treasurer or principal financial or accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Disclosure Package and the Prospectus, any amendment or supplement to the Disclosure Package or the Prospectus and this Agreement and that:

-20-


 

     (i) the representations and warranties of the Company and the Guarantors in this Agreement are true and correct in all material respects (except to the extent already qualified by materiality, in which case such representations and warranties are true and correct in all respects) at the Applicable Time and on the Closing Date, and the Company and the Guarantors have complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and
     (ii) since the date of the most recent financial statements included or incorporated by reference in each of the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
          (e) At the Applicable Time and at the Closing Date, the Company shall have requested and caused Ernst & Young LLP to furnish to the Underwriters a “comfort” letter, dated as of the Applicable Time, and a bring-down “comfort letter,” dated as of the Closing Date, respectively, in form and substance reasonably satisfactory to the Representatives, confirming that they are independent registered public accountants within the meaning of the Exchange Act and within the meaning of the rules of the Public Company Accounting Oversight Board and confirming certain matters with respect to the audited and unaudited financial statements and other financial and accounting information contained in the Registration Statement, the Disclosure Package and the Prospectus, including any amendment or supplement thereto at the date of the applicable letter.
          (f) Subsequent to the Applicable Time or, if earlier, the dates as of which information is given in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been any change or development in the condition (financial or otherwise), business or results of operations of the Parent Guarantor and its subsidiaries, taken as a whole, and after giving effect to the Transaction, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), the effect of which is, or would reasonably be expected to become, in the judgment of J.P. Morgan, so material and adverse as to make it impractical or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
          (g) At the Closing Date, the Company, the Parent Guarantor and the Senior Trustee shall have entered into the Senior Indenture, and the Representatives shall have received counterparts, conformed as executed, thereof.

-21-


 

     (h) At the Closing Date, the Company, the Secured Guarantors and the Secured Trustee shall have entered into the Secured Indenture, and the Representatives shall have received counterparts, conformed as executed, thereof.
     (i) Subsequent to the Applicable Time, there shall not have been any decrease in the rating of the Securities by any “nationally recognized statistical rating organization” (as defined for purposes of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
     (j) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request, as set forth in the closing memorandum relating to the offering of the Securities.
     (k) Prior to the Closing Date, the Company shall have taken all action reasonably required to be taken by it to have the Securities declared eligible for clearance and settlement through DTC.
     (l) At the Closing Date, the Underwriters, the Secured Trustee and the First Lien Collateral Agent shall have received the Additional First Lien Secured Party Consent, the Intercreditor Agreements and each other document or instrument required to cause the Secured Notes and the Secured Guarantees to be secured by liens on the Collateral to the extent and in the manner provided for in the Secured Indenture and the Security Documents and as described in the Registration Statement, the Disclosure Package and the Prospectus, in each case executed by the parties thereto.
                    All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to the Representatives and counsel for the Underwriters.
                    The documents required to be delivered by this Section 6 will be available for inspection at the office of Simpson Thacher & Bartlett LLP, at 425 Lexington Avenue, New York, New York 10017, on the Business Day prior to the Closing Date.
                    7.  Post Closing Actions Relating to Collateral . Notwithstanding anything to the contrary contained in this Agreement, the Secured Indenture, the Security Documents or the Mortgages, the Company and the Secured Guarantors acknowledge and agree that the Company and its subsidiaries shall be required to take the actions specified in Schedule III as promptly as reasonably practicable, and in any event within the periods after the Closing Date specified in said Schedule III . The provisions of said Schedule III shall be deemed incorporated by reference herein as fully as if set forth herein in their entirety.
                    All conditions precedent, representations and covenants contained in this Agreement, the Secured Indenture, the Security Documents and the Mortgages shall be deemed modified to the extent necessary to effect the foregoing (and to permit the taking of the actions

-22-


 

described above within the time periods required above, rather than as elsewhere provided in any of the above-referenced agreements), provided that (x) to the extent any representation and warranty would not be true because the foregoing actions were not taken on the Closing Date, the respective representation and warranty shall be required to be true and correct in all material respects at the time the respective action is taken (or was required to be taken) in accordance with the foregoing provisions of Section 7, and (y) all representations and warranties relating to the Security Documents and the Mortgages shall be required to be true immediately after the actions required to be taken by Section 7 have been taken (or were required to be taken).
                    8.  Reimbursement of Expenses . If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 6 hereof is not satisfied, because of any termination pursuant to Section 11 hereof or because of any refusal, inability or failure on the part of the Company or the Guarantors to perform any agreement herein or to comply with any provision hereof other than by reason of a default by any of the Underwriters, including as described in Section 10 hereof, the Company and the Guarantors, jointly and severally, will reimburse the Underwriters through the Representatives on behalf of the Underwriters on demand for all reasonable expenses (including reasonable fees and disbursements of Cahill Gordon & Reindel llp ) that shall have been incurred by them in connection with the proposed purchase and sale of the Securities.
                    9.  Indemnification and Contribution .
                    (a) The Company and the Guarantors jointly and severally agree to indemnify and hold harmless each Underwriter, the directors, officers and Affiliates of each Underwriter and each person who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other U.S. federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, not misleading, (ii) or any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto), the Disclosure Package, any Issuer Free Writing Prospectus or any written communication that constitutes an offer to sell or a solicitation of any offer to buy the Securities used by the Company or the Guarantors in violation of the provisions of this Agreement, or arise out of or are based upon the omission or alleged omission to state therein a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and agree (subject to the limitations set forth in the provisos to this sentence) to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim, damage, liability or action; provided , however , that the Company and the Guarantors will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Prospectus (or any amendment or supplement thereto), the Disclosure Package or any Issuer Free Writing Prospectus in reliance upon

-23-


 

and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion therein. This indemnity agreement will be in addition to any liability that the Company and the Guarantors may otherwise have. The Company and the Guarantors shall not be liable under this Section 9 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by the Company or such Guarantor, as applicable, which consent shall not be unreasonably withheld.
                    (b) Each Underwriter severally, and not jointly, agrees to indemnify and hold harmless (i) the Company and the Guarantors, (ii) each person, if any, who controls (within the meaning of either the Act or the Exchange Act) the Company or any of the Guarantors, and (iii) the directors and officers of the Company and the Guarantors, to the same extent as the foregoing indemnity from the Company and the Guarantors, to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for inclusion in the Registration Statement, the Prospectus (or any amendment or supplement thereto), the Disclosure Package or any Issuer Free Writing Prospectus. This indemnity agreement will be in addition to any liability that any Underwriter may otherwise have. The Company and the Guarantors acknowledge that the third, seventh, eighth, ninth and tenth paragraphs and the third sentence of the sixth paragraph under the heading “Underwriting” in the Disclosure Package and the Prospectus constitute the only information furnished in writing by or on behalf of the Underwriters for inclusion in the Registration Statement, the Prospectus (or any amendment or supplement thereto), the Disclosure Package or any Issuer Free Writing Prospectus.
                    (c) Promptly after receipt by an indemnified party under this Section 9 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 9, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights or defenses and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above, except as provided in paragraph (d) below. The indemnifying party shall be entitled to appoint counsel (including local counsel) of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel, other than local counsel if not appointed by the indemnifying party, retained by the indemnified party or parties except as set forth below); provided , however , that such counsel shall be reasonably satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel (including local counsel) to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen

-24-


 

by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest (based on the advice of counsel to the indemnified person); (ii) such action includes both the indemnified party and the indemnifying party, and the indemnified party shall have reasonably concluded (based on the advice of counsel to the indemnified person) that there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. It is understood and agreed that the indemnifying person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm (in addition to any local counsel) for all indemnified persons; provided , that, if indemnity is sought pursuant to Section 9(e), then, in addition to the fees and expenses of such counsel for the indemnified parties, the indemnifying party shall be liable for the reasonable fees and expenses of not more than one counsel (in addition to any local counsel) separate from its own counsel and that of the other indemnified parties for the QIU in its capacity as a “qualified independent underwriter” and all persons, if any, who control the QIU within the meaning of Section 15 of the Act or Section 20 of Exchange Act in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances if, in the reasonable judgment of the QIU, there may exist a conflict of interest between the QIU and the other indemnified parties. Any such separate counsel for the QIU and such control persons of the QIU shall be designated in writing by the QIU. Any such separate firm for any Underwriter, its Affiliates, directors and officers and any control persons of such Underwriter shall be designated in writing by J.P. Morgan, and any such separate firm for the Company or any of the Guarantors and any control persons, officers or directors of the Company or any of the Guarantors shall be designated in writing by the Company or such Guarantor, as the case may be. In the event that any Underwriter, its Affiliates, directors and officers or any control persons of such Underwriter are Indemnified Persons collectively entitled, in connection with a proceeding in a single jurisdiction, to the payment of fees and expenses of a single separate firm under this Section 9(c), and any such Underwriter, its Affiliates, directors and officers or any control persons of such Underwriter cannot agree to a mutually acceptable separate firm to act as counsel thereto, then such separate firm for all such Indemnified Persons shall be designated in writing by J.P. Morgan. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim, action, suit or proceeding) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and does not include any statement as to, or any admission of, fault, culpability or failure to act by or on behalf of any indemnified party. In addition to and without limitation of the Company’s a obligation to indemnify Barclays Capital Inc. as an Underwriter, the Company agrees to indemnify and hold harmless the QIU, its Affiliates and selling agents and each person, if any, who controls the QIU within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and against any and all loss, liability, claim, damage and expense whatsoever, as incurred,

-25-


 

incurred as a result of the QIU’s participation as a “qualified independent underwriter” within the meaning of Rule 5121 in connection with the offering of the Securities.
                    (d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 9 is unavailable to or insufficient to hold harmless an indemnified party for any reason (other than by virtue of the failure of an indemnified party to notify the indemnifying party of its right to indemnification pursuant to subsection (a) or (b) above, where such failure materially prejudices the indemnifying party (through the forfeiture of substantial rights or defenses)), the Company and the Guarantors, on the one hand, and the Underwriters, on the other hand, severally agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending any loss, claim, damage, liability or action) (collectively “ Losses ”) to which the Company or any Guarantor and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors, on the one hand, and by the Underwriters, on the other hand, from the offering of the Securities. If the allocation provided by the immediately preceding sentence is unavailable for any reason or not permitted by applicable law, the Company and the Guarantors, on the one hand, and the Underwriters, on the other hand, severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and the Guarantors, on the one hand, and the Underwriters, on the other hand, in connection with the statements or omissions that resulted in such Losses, as well as any other relevant equitable considerations. Benefits received by the Company and the Guarantors shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by them, and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions received by them. Relative fault shall be determined by reference to, among other things, whether any untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Company or any Guarantor, on the one hand, or the Underwriters, on the other hand, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission and any other equitable considerations appropriate in the circumstances. The Company and the Guarantors and the Underwriters agree that it would not be just and equitable if the amount of such contribution were determined by pro rata allocation or any other method of allocation that does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. Notwithstanding the provisions of this Section 9, in no event under this Section 9(d) shall any Underwriter be responsible for any amount in excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to the offering of the Securities exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact. The Underwriters’ obligations to contribute pursuant to this Section 9 are several in proportion to their respective purchase obligations hereunder and not joint. For purposes of this Section 9, each person, if any, who controls an Underwriter within the meaning of either the Act or the Exchange Act and each director, officer, employee, Affiliate and agent of an Underwriter shall have the same rights to contribution as such Underwriter, and each person who controls the Company or

-26-


 

any Guarantor within the meaning of either the Act or the Exchange Act and the respective officers and directors of the Company and the Guarantors shall have the same rights to contribution as the Company and the Guarantors, subject in each case to the applicable terms and conditions of this paragraph (d). The Company and the Underwriters agree that Barclays Capital Inc. will not receive any additional benefits hereunder for serving as the QIU in connection with the offering and sale of the Securities.
                    10.  Default by an Underwriter . If any one or more Underwriters shall fail to purchase and pay for the Securities agreed to be purchased by such Underwriter hereunder, and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions that the principal amount of the Securities set forth opposite their names in Schedule I hereto bears to the aggregate principal amount of the Securities set forth opposite the names of all the remaining Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided , however , that in the event that the aggregate principal amount of the Securities that the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate principal amount of Securities set forth in Schedule I hereto, the Company shall be entitled to a period of 36 hours within which to procure another party or parties reasonably satisfactory to the non-defaulting Underwriters, as the case may be, to purchase no less than the amount of such unpurchased Securities that exceeds 10% of the principal amount thereof upon such terms herein set forth. If, however, the Company shall not have completed such arrangements within 72 hours after such default and the principal amount of unpurchased Securities exceeds 10% of the principal amount of such Securities to be purchased on such date, then this Agreement will terminate without liability to any non-defaulting Underwriter or the Company. In the event of a default by any Underwriter as set forth in this Section 10, the Closing Date shall be postponed for such period, not exceeding five Business Days, to effect any changes that in the opinion of counsel for the Company or counsel for the Representatives are necessary in the Registration Statement and the Prospectus or in any other documents or arrangements. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company or any nondefaulting Underwriter for damages occasioned by its default hereunder.
                    11.  Termination . This Agreement shall be subject to termination in the absolute discretion of a majority of the Representatives, by notice given to the Company prior to delivery of and payment for the Securities, if at any time prior to such time (i) trading in any securities generally or trading of any securities issued or guaranteed by the Company or any Guarantor on the New York Stock Exchange or the NASDAQ Global Market shall have been suspended or materially limited or minimum prices shall have been established on such exchange or the NASDAQ Global Market; (ii) a banking moratorium shall have been declared either by U.S. federal or New York state authorities; or (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war or other calamity or crisis the effect of which on financial markets is such as to make it, in the judgment of J.P. Morgan, impractical or inadvisable to proceed with the offering, sale or delivery of the Securities as contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).

-27-


 

                    12.  Representations and Indemnities to Survive . The respective agreements, representations, warranties, indemnities and other statements of the Company and the Guarantors or their respective officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of the Underwriters or the Company and the Guarantors, or any of the indemnified persons referred to in Section 9 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 5(j), 8 and 9 hereof shall survive the termination or cancellation of this Agreement.
                    13.  Notices . All communications hereunder will be in writing and effective only on receipt and, if sent to the Representatives, will be mailed, delivered or faxed to J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179, (fax: (212) 270-1063); Attention: Lauren Camp or, if sent to the Company or the Guarantors, will be mailed, delivered or faxed c/o HCA Inc. (fax no.: (615) 344-1531) and confirmed to it at One Park Plaza, Nashville, Tennessee 37203, Attention: General Counsel, with a copy to Joseph H. Kaufman, Simpson Thacher & Bartlett LLP, 425 Lexington Avenue, New York, New York (fax no.: (212) 455-2502). The Company shall be entitled to act and rely upon any request, consent, notice or agreement given or made on behalf of the Underwriters by J.P. Morgan.
                    14.  Successors . This Agreement will inure to the benefit of and be binding upon the parties hereto and at and after the Closing Date, the Company and the Guarantors and their respective successors and the indemnified persons referred to in Section 9 hereof and their respective successors and no other person will have any right or obligation hereunder. No purchaser of Securities from any Underwriter shall be deemed to be a successor merely by reason of such purchase.
                    15.  Applicable Law . THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WITHIN THE STATE OF NEW YORK. THE PARTIES HERETO EACH HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
                    16.  Counterparts . This Agreement may be signed in one or more counterparts (which may be delivered in original form, facsimile or “pdf” file thereof), each of which when so executed shall constitute an original and all of which together shall constitute one and the same agreement.
                    17.  Headings . The section headings used herein are for convenience only and shall not affect the construction hereof.
                    18.  Definitions . The terms that follow, when used in this Agreement, shall have the meanings indicated.
                    “ Act ” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.

-28-


 

                    “ Additional First Lien Secured Party Consent ” means the Additional First Lien Secured Party Consent, to be dated as of the Closing Date, substantially in the form of Annex D to the Security Agreement among the Company, each of the Grantors party thereto, Bank of America, N.A., as First Lien Collateral Agent, and the Trustee.
                    “ Affiliate ” shall have the meaning specified in Rule 501(b) of Regulation D.
                    “ Agreement ” shall mean this purchase agreement.
                    “ Applicable Time ” shall mean 6:30p.m., Eastern time on July 26, 2011.
                    “ Business Day ” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which commercial banking institutions or trust companies are authorized or required by law to close in New York City.
                    “ Commission ” shall mean the Securities and Exchange Commission.
                    “ Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
                    “ First Lien Collateral Agent ” shall mean Bank of America, N.A., in its capacity as collateral agent for the New First Lien Secured Parties (as defined in the Registration Statement, the Disclosure Package and the Prospectus) and for the holders of the obligations under the Credit Facilities (excluding the holders of obligations under the asset-based revolving credit facility) and under the First Lien Indentures.
                    “ Intercreditor Agreements ” shall mean (i) the Additional General Intercreditor Agreement, to be dated as of the Closing Date, among the New First Lien Secured Parties (as defined in the Registration Statement, the Disclosure Package and the Prospectus) and the First Lien Collateral Agent, The Bank of New York Mellon, as collateral agent for the holders of the notes issued under the Second Lien Indentures and as trustee under the 2006 Indenture, The Bank of New York Mellon Trust Company, N.A., as trustee under the 2009 Second Lien Indenture, and Law Debenture Trust Company of New York, as trustee under the April 2009 First Lien Indenture, the August 2009 First Lien Indenture, and the March 2010 First Lien Indenture and consented to by the Company and the Secured Guarantors and (ii) the Additional Receivables Intercreditor Agreement, to be dated as of the Closing Date, among Bank of America, N.A., as collateral agent for the holders of obligations under the asset-based revolving credit facility, and the First Lien Collateral Agent, and consented to by the Company and the Secured Guarantors.
                    “ Investment Company Act ” shall mean the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission promulgated thereunder.
                    “ Mortgages ” shall mean, collectively, the mortgages, deeds of trust or deeds to secure debt (or assignments of certain existing mortgages and deeds of trust to Bank of America, N.A., as First Lien Collateral Agent, and amendments, modifications or restatements thereof) evidencing the liens on certain real property of the Company that will secure the Secured Notes.

-29-


 

                    “ Principal Property ” means each acute care hospital providing general medical and surgical services (excluding equipment, personal property and hospitals that primarily provide specialty medical services, such as psychiatric and obstetrical and gynecological services) owned solely by the Company and/or one or more of its Subsidiaries (used in this definition as defined in the Indenture, dated as of December 16, 1993, between Columbia Healthcare Corporation and The First National Bank of Chicago, as trustee, as amended) and located in the United States of America.
                    “ Security Documents ” means (i) the Security Agreement, dated as of November 17, 2006 and amended and restated as of March 2, 2009, among the Company, each of the Grantors party thereto and the First Lien Collateral Agent, (ii) the Pledge Agreement, dated as of November 17, 2006 and amended and restated as of March 2, 2009, among the Company, each of the Pledgors party thereto and the First Lien Collateral Agent, (iii) the Additional First Lien Secured Party Consent, (iv) the Intercreditor Agreements and (v) the First Lien Intercreditor Agreement, dated as of April 22, 2009, among the First Lien Collateral Agent, Bank of America, N.A., as authorized representative for the holders of the obligations under the Credit Facilities (excluding the holders of obligations under the asset-based revolving credit facility) and Law Debenture Trust Company of New York, as authorized representative for the holders of the obligations under the April 2009 First Lien Indenture.
                    “ subsidiary ” means “Subsidiary” as defined in the Registration Statement, the Disclosure Package and the Prospectus under the captions “Description of unsecured notes” and “Description of secured notes.”
                    “ Trust Indenture Act ” shall mean the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission promulgated thereunder.

-30-


 

                    If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between the Company and the several Underwriters.
         
  Very truly yours,

HCA INC.
 
 
  By:   /s/ David G. Anderson    
    Name:   David G. Anderson   
    Title:   Senior Vice President — Finance and Treasurer   
 
         
  HCA HOLDINGS, INC.,
as Parent Guarantor
 
 
  By:   /s/ David G. Anderson    
    Name:   David G. Anderson   
    Title:   Senior Vice President — Finance and Treasurer   
 
         
  Each of the SECURED GUARANTORS
listed on Schedule II hereto
 
 
  By:   /s/ Donald W. Stinnett    
    Name:   David W. Stinnett   
    Title:   Authorized Signatory   
 
Signature Page to Underwriting Agreement

 


 

The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
J.P. Morgan Securities LLC
For itself and as the Representative of
the several Underwriters named in
Schedule I to the foregoing Agreement.
By: J.P. Morgan Securities LLC
         
     
  By:   /s/ Lauren Camp    
    Name:   Lauren Camp   
    Title:   Managing Director   
 
By: Barclays Capital Inc.
in its capacity as Qualified Independent Underwriter
         
     
  By:   /s/ John Skrobe    
    Name:   John Skrobe   
    Title:   Managing Director   
 
Signature Page to Underwriting Agreement

 


 

SCHEDULE I
Secured Notes
         
    Principal Amount
    of Senior Notes to be
Underwriters   Purchased
J.P. Morgan Securities LLC
  $ 501,000,000.00  
Barclays Capital Inc.
  $ 499,800,000.00  
Merrill Lynch, Pierce, Fenner & Smith Incorporated
  $ 499,800,000.00  
Citigroup Global Markets Inc.
  $ 499,800,000.00  
Deutsche Bank Securities Inc.
  $ 499,800,000.00  
Wells Fargo Securities, LLC
  $ 499,800,000.00  
Total
  $ 3,000,000,000.00  
Senior Notes
         
    Principal Amount
    of Secured Notes
Underwriters   to be Purchased
J.P. Morgan Securities LLC
  $ 334,000,000.00  
Barclays Capital Inc.
  $ 333,200,000.00  
Merrill Lynch, Pierce, Fenner & Smith Incorporated
  $ 333,200,000.00  
Citigroup Global Markets Inc.
  $ 333,200,000.00  
Deutsche Bank Securities Inc.
  $ 333,200,000.00  
Wells Fargo Securities, LLC
  $ 333,200,000.00  
Total
  $ 2,000,000,000.00  

 


 

SCHEDULE II
Subsidiary Secured Guarantors
 
Columbia ASC Management, L.P.
American Medicorp Development Co.
Bay Hospital, Inc.
Brigham City Community Hospital, Inc.
Brookwood Medical Center of Gulfport, Inc.
Capital Division, Inc.
Centerpoint Medical Center of Independence, LLC
Central Florida Regional Hospital, Inc.
Central Shared Services, LLC
Central Tennessee Hospital Corporation
CHCA Bayshore, L.P.
CHCA Conroe, L.P.
CHCA Mainland, L.P.
CHCA West Houston, L.P.
CHCA Woman’s Hospital, L.P.
Chippenham & Johnston-Willis Hospitals, Inc.
CMS GP, LLC
Colorado Health Systems, Inc.
Columbia Jacksonville Healthcare System, Inc.
Columbia LaGrange Hospital, Inc.
Columbia Medical Center of Arlington Subsidiary, L.P.
Columbia Medical Center of Denton Subsidiary, L.P.
Columbia Medical Center of Las Colinas, Inc.
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 Ogden Medical Center, Inc.
Columbia Parkersburg Healthcare System, LLC
Columbia Plaza Medical Center of Fort Worth Subsidiary, L.P.
Columbia Polk General Hospital, Inc.
Columbia Rio Grande Healthcare, L.P.
Columbia Riverside, Inc.
Columbia Valley Healthcare System, L.P.
Columbia/Alleghany Regional Hospital, Incorporated
Columbia/HCA John Randolph, Inc.
Columbine Psychiatric Center, Inc.
Columbus Cardiology, Inc.

 


 

 
Conroe Hospital Corporation
Dallas/Ft. Worth Physician, LLC
Dauterive Hospital Corporation
Dublin Community Hospital, LLC
Eastern Idaho Health Services, Inc.
Edward White Hospital, Inc.
El Paso Surgicenter, Inc.
Encino Hospital Corporation, Inc.
EP Health, LLC
Fairview Park GP, LLC
Fairview Park, Limited Partnership
Frankfort Hospital, Inc.
Galen Property, LLC
Good Samaritan Hospital, L.P.
Goppert-Trinity Family Care, LLC
GPCH-GP, Inc.
Grand Strand Regional Medical Center, LLC
Green Oaks Hospital Subsidiary, L.P.
Greenview Hospital, Inc.
HCA — IT&S Field Operations, Inc.
HCA — IT&S Inventory Management, Inc.
HCA Central Group, Inc.
HCA Health Services of Florida, Inc.
HCA Health Services of Louisiana, Inc.
HCA Health Services of Oklahoma, Inc.
HCA Health Services of Tennessee, Inc.
HCA Health Services of Virginia, Inc.
HCA Management Services, L.P.
HCA Realty, Inc.
HD&S Corp. Successor, Inc.
Health Midwest Office Facilities Corporation
Health Midwest Ventures Group, Inc.
Hendersonville Hospital Corporation
Hospital Corporation of Tennessee
Hospital Corporation of Utah
Hospital Development Properties, Inc.
HSS Holdco, LLC
HSS Systems VA, LLC
HSS Systems, LLC
HSS Virginia, L.P.
HTI Memorial Hospital Corporation
HTI MOB, LLC

-2-


 

 
Integrated Regional Lab, LLC
Integrated Regional Laboratories, LLP
JFK Medical Center Limited Partnership
KPH-Consolidation, Inc.
Lakeland Medical Center, LLC
Lakeview Medical Center, LLC
Largo Medical Center, Inc.
Las Vegas Surgicare, Inc.
Lawnwood Medical Center, Inc.
Lewis-Gale Hospital, Incorporated
Lewis-Gale Medical Center, LLC
Lewis-Gale Physicians, LLC
Los Robles Regional Medical Center
Management Services Holdings, Inc.
Marietta Surgical Center, Inc.
Marion Community Hospital, Inc.
MCA Investment Company
Medical Centers of Oklahoma, LLC
Medical Office Buildings of Kansas, LLC
Memorial Healthcare Group, Inc.
Midwest Division — ACH, LLC
Midwest Division — LRHC, LLC
Midwest Division — LSH, LLC
Midwest Division — MCI, LLC
Midwest Division — MMC, LLC
Midwest Division — OPRMC, LLC
Midwest Division — PFC, LLC
Midwest Division — RBH, LLC
Midwest Division — RMC, LLC
Midwest Division — RPC, LLC
Midwest Holdings, Inc.
Montgomery Regional Hospital, Inc.
Mountain View Hospital, Inc.
Nashville Shared Services General Partnership
National Patient Account Services, Inc.
New Port Richey Hospital, Inc.
New Rose Holding Company, Inc.
North Florida Immediate Care Center, Inc.
North Florida Regional Medical Center, Inc.
Northern Utah Healthcare Corporation
Northern Virginia Community Hospital, LLC
Northlake Medical Center, LLC

-3-


 

 
Notami Hospitals of Louisiana, Inc.
Notami Hospitals, LLC
Okaloosa Hospital, Inc.
Okeechobee Hospital, Inc.
Outpatient Cardiovascular Center of Central Florida, LLC
Palms West Hospital Limited Partnership
Palmyra Park Hospital, Inc.
Pasadena Bayshore Hospital, Inc
Plantation General Hospital, L.P.
Pulaski Community Hospital, Inc.
Redmond Park Hospital, LLC
Redmond Physician Practice Company
Reston Hospital Center, LLC
Retreat Hospital, LLC
Rio Grande Regional Hospital, Inc.
Riverside Healthcare System, L.P.
Riverside Hospital, Inc.
Samaritan, LLC
San Jose Healthcare System, LP
San Jose Hospital, L.P.
San Jose Medical Center, LLC
San Jose, LLC
Sarasota Doctors Hospital, Inc.
SJMC, LLC
Southern Hills Medical Center, LLC
Spotsylvania Medical Center, Inc.
Spring Branch Medical Center, Inc.
Spring Hill Hospital, Inc.
St. Mark’s Lone Peak Hospital, Inc.
Sun City Hospital, Inc.
Sunrise Mountainview Hospital, Inc.
Surgicare of Brandon, Inc.
Surgicare of Florida, Inc.
Surgicare of Houston Women’s, Inc.
Surgicare of Manatee, Inc.
Surgicare of Newport Richey, Inc.
Surgicare of Palms West, LLC
Surgicare of Riverside, LLC
Tallahassee Medical Center, Inc.
TCMC Madison-Portland, Inc.
Terre Haute Hospital GP, Inc.
Terre Haute Hospital Holdings, Inc.

-4-


 

 
Terre Haute MOB, L.P.
Terre Haute Regional Hospital, L.P.
The Regional Health System of Acadiana, LLC
Timpanogos Regional Medical Services, Inc.
Trident Medical Center, LLC
Utah Medco, LLC
VH Holdco, Inc.
VH Holdings, Inc.
Virginia Psychiatric Company, Inc.
W & C Hospital, Inc.
Walterboro Community Hospital, Inc.
Wesley Medical Center, LLC
West Florida Regional Medical Center, Inc.
West Valley Medical Center, Inc.
Western Plains Capital, Inc.
WHMC, Inc.
Woman’s Hospital of Texas, Incorporated

-5-


 

SCHEDULE III
Post Closing Matters
                    Within 60 days after the Closing Date the First Lien Collateral Agent shall have received:
     1. fully executed counterparts of an amendment to each of the Mortgages (the “ Mortgage Amendments ,” each a “ Mortgage Amendment ”), as appropriate, in form and substance reasonably satisfactory to the Underwriters, which Mortgage Amendments shall cover the Mortgaged Properties (as defined in Annex D ) owned by the Company or the Secured Guarantors as are designated on Annex D hereto, together with evidence that counterparts of said Mortgage Amendments have been delivered to the title insurance company insuring the Lien (as defined in the Indenture) of the Mortgages for recording in all places where such Mortgages are recorded, which Mortgage Amendments shall effectively create in favor of the First Lien Collateral Agent for the benefit of the New First Lien Secured Parties (as defined in the Prospectus), including the First Lien Collateral Agent and the Secured Trustee on behalf of the holders of the Secured Notes, a first-priority mortgage Lien on each Mortgaged Property, subject only to (i) those Liens created by the Security Documents and the Mortgage Amendments, (ii) those Liens, encumbrances, hypothecs and other matters affecting title to such Mortgaged Property as may have been found reasonably acceptable by the lenders or the administrative agent (as applicable) under the Credit Facilities in connection with the mortgages provided pursuant thereto, (iii) as to any particular real property at any time, such easements, encroachments, covenants, rights of way, minor defects, irregularities or encumbrances on title which could not reasonably be expected to materially impair such Mortgaged Property for the purpose for which it is held by the mortgagor or grantor thereof, (iv) zoning and other municipal ordinances which are not violated in any material respect by the existing improvements and the present use made by the mortgagor or grantor thereof of the premises, (v) general real estate taxes and assessments not yet delinquent, (vi) such other similar items as may have been consented to by the lenders or the administrative agent (as applicable) under the Credit Facilities in connection with the mortgages provided pursuant thereto, (vii) Enforceability Limitations, (viii) Permitted Exceptions and (ix) Permitted Liens (as defined in the Prospectus) and the Liens securing the obligations under the First Lien and Second Lien Indentures;
     2. with respect to each Mortgage Amendment intended to encumber a Mortgaged Property, a title search of the relevant Mortgaged Property confirming that there are no Liens of record in violation of the provisions of the applicable Mortgage;
     3. the opinions, addressed to the Underwriters, of (1) outside counsel or in-house counsel, as to the due authorization, execution and delivery of the Mortgage Amendments by the Company, any Secured Guarantor or any of their respective subsidiaries, as applicable, and (2) local counsel in each jurisdiction where Mortgaged Property is located, each in form and substance substantially similar to those provided in connection with the Credit Facilities; and

 


 

     4. with respect to each Mortgaged Property, a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination (together with (i) a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each Secured Guarantor relating thereto and (ii) evidence of insurance with respect to the Mortgaged Properties in form and substance reasonably satisfactory to the First Lien Collateral Agent).

 


 

ANNEX A
Disclosure Package
Pricing Term Sheet, dated July 26, 2011, to the Preliminary Prospectus
See attached.

 


 

Filed pursuant to Rule 433
Issuer Free Writing Prospectus, dated July 26, 2011
Supplementing the Preliminary Prospectus Supplement, dated July 26, 2011
Registration No. 333-175791
HCA Inc.
$3,000,000,000 6.50% Senior Secured Notes due 2020 (“Secured Notes”)
$2,000,000,000 7.50% Senior Notes due 2022 (“Senior Notes”)
Pricing Supplement
Pricing Supplement dated July 26, 2011 to HCA Inc.’s Preliminary Prospectus Supplement dated July 26, 2011. This Pricing Supplement is qualified in its entirety by reference to the Preliminary Prospectus Supplement. The information in this Pricing Supplement supplements the Preliminary Prospectus Supplement and supersedes the information in the Preliminary Prospectus Supplement to the extent it is inconsistent with the information in the Preliminary Prospectus Supplement. Financial information present in the Preliminary Prospectus Supplement is deemed to have changed to the extent affected by changes described herein. Capitalized terms used in this Pricing Supplement but not defined have the meanings given them in the Preliminary Prospectus Supplement.
Terms Applicable to the Secured Notes
     
Issuer
  HCA Inc.
 
   
Aggregate Principal Amount
   $3,000,000,000
 
   
Title of Security
   6.50% Senior Secured Notes due 2020
 
   
Maturity
  February 15, 2020
 
   
Spread to Treasury
  +386 basis points
 
   
Benchmark Treasury
  UST 3.625% due 2/15/20
 
   
Coupon
   6.50%
 
   
Public Offering Price
   100% plus accrued interest, if any, from August 1, 2011
 
   
Yield to Maturity
   6.50%
 
   
Interest Payment Dates
  February 15 and August 15 of each year, beginning on February 15, 2012
 
   
Record Dates
  February 1 and August 1 of each year
 
   
Gross Proceeds
   $3,000,000,000

 


 

     
Underwriting Discount
   1.125%
 
   
Net Proceeds to Issuer before Expenses
   $2,966,250,000
 
   
Optional Redemption (Make Whole Call)
  The secured notes will be redeemable, at our option, at any time in whole or from time to time in part, at a redemption, or “make-whole,” price equal to the greater of:
  (i)   100% of the aggregate principal amount of the secured notes to be redeemed, and
 
  (ii)   an amount equal to sum of the present value of the remaining scheduled payments of principal of and interest on the secured notes to be redeemed (excluding accrued and unpaid interest to the redemption date and subject to the right of Holders on the relevant record date to receive interest due on the relevant interest payment date) discounted from their scheduled date of payment to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) using a discount rate equal to the Treasury Rate plus 50 basis points
     
 
  plus, in each of the above cases, accrued and unpaid interest, if any, to such redemption date.
 
   
Change of Control
  Upon certain change of control events, each holder may require the Issuer to repurchase at 101%, plus accrued and unpaid interest, if any.
 
   
Trade Date
  July 26, 2011
 
   
Settlement Date:
  August 1, 2011 (T+4)
 
   
 
  We expect that delivery of the notes will be made to investors on or about August 1, 2011, which will be the fourth business day following the date of this pricing term sheet (such settlement being referred to as “T+4”). Under Rule 15c6-1 under the Exchange Act, trades in the secondary market are required to settle in three business days, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade notes prior to the delivery of the notes hereunder will be required, by virtue of the fact that the notes initially settle in T+4, to specify an alternate settlement arrangement at the time of any such trade to prevent a failed settlement. Purchasers of the notes who wish to trade the notes prior to their date of delivery hereunder should consult their advisors.
 
   
Denominations
  $2,000 and integral multiples of $1,000
 
   
CUSIP/ISIN Numbers
  CUSIP: 404121AC9
ISIN: US404121AC95
 
   
Form of Offering
  SEC Registered (Registration No. 333-175791)
 
   
Joint Book-Running Managers
  J.P. Morgan Securities LLC
 
  Barclays Capital Inc.
 
  Merrill Lynch, Pierce, Fenner & Smith Incorporated
 
  Citigroup Global Markets Inc.
 
  Deutsche Bank Securities Inc.
 
  Wells Fargo Securities, LLC

-2-


 

Terms Applicable to the Senior Notes
     
Issuer
  HCA Inc.
 
   
Aggregate Principal Amount
   $2,000,000,000
 
   
Title of Security
   7.50% Senior Notes due 2022
 
   
Maturity
  February 15, 2022
 
   
Spread to Treasury
   +455 basis points
 
   
Benchmark Treasury
  UST 8% due 11/15/21
 
   
Coupon
   7.50%
 
   
Public Offering Price
   100% plus accrued interest, if any, from August 1, 2011
 
   
Yield to Maturity
   7.50%
 
   
Interest Payment Dates
  February 15 and August 15 of each year, beginning on February 15, 2012
 
   
Record Dates
  February 1 and August 1 of each year
 
   
Gross Proceeds
   $2,000,000,000
 
   
Underwriting Discount
   1.125%
 
   
Net Proceeds to Issuer before Expenses
   $1,977,500,000
 
   
Optional Redemption (Make Whole Call)
  The unsecured notes will be redeemable, at our option, at any time in whole or from time to time in part, at a redemption, or “make-whole,” price equal to the greater of:
  (i)   100% of the aggregate principal amount of the unsecured notes to be redeemed, and
 
  (ii)   an amount equal to sum of the present value of the remaining scheduled payments of principal of and interest on the unsecured notes to be redeemed (excluding accrued and unpaid interest to the redemption date and subject to the right of Holders on the relevant record date to receive interest due on the relevant interest payment date) discounted from their scheduled date of payment to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) using a discount rate equal to the Treasury Rate plus 50 basis points
     
 
  plus, in each of the above cases, accrued and unpaid interest, if any, to such redemption date.

-3-


 

     
Change of Control
  Upon certain change of control events, each holder may require the Issuer to repurchase at 101%, plus accrued and unpaid interest, if any.
 
   
Trade Date
  July 26, 2011
 
   
Settlement Date
  August 1, 2011 (T+4)
 
   
    We expect that delivery of the notes will be made to investors on or about August 1, 2011, which will be the fourth business day following the date of this pricing term sheet (such settlement being referred to as “T+4”). Under Rule 15c6-1 under the Exchange Act, trades in the secondary market are required to settle in three business days, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade notes prior to the delivery of the notes hereunder will be required, by virtue of the fact that the notes initially settle in T+4, to specify an alternate settlement arrangement at the time of any such trade to prevent a failed settlement. Purchasers of the notes who wish to trade the notes prior to their date of delivery hereunder should consult their advisors.
 
   
Denominations
  $2,000 and integral multiples of $1,000
 
   
CUSIP/ISIN Numbers
  CUSIP: 404121AD7
ISIN: US404121AD78
 
   
Form of Offering
  SEC Registered (Registration No. 333-175791)
 
   
Joint Book-Running Managers
  J.P. Morgan Securities LLC
 
  Barclays Capital Inc.
 
  Merrill Lynch, Pierce, Fenner & Smith Incorporated
 
  Citigroup Global Markets Inc.
 
  Deutsche Bank Securities Inc.
 
  Wells Fargo Securities, LLC
Pricing Supplement
Terms Applicable to the Secured Notes and Senior Notes
     
Use of Proceeds
  We estimate that our net proceeds from this offering, after deducting underwriter discounts and commissions and estimated offering expenses, will be approximately $4,943,750,000.00.
 
   
 
  We intend to use the net proceeds from the notes offered hereby, together with $300 million of borrowings under our asset-based revolving credit facility, to redeem and repurchase all of (i) the $1.578 billion outstanding 9 5 / 8 %/10 3 / 8 % second lien toggle notes due 2016 and (ii) the $3.2 billion outstanding 9 1 / 4 % second lien notes due 2016 and (iii) for related fees and expenses.
 
   
 
  Certain of the underwriters and/or their affiliates may be holders of our 9 5 / 8 % / 10 3 / 8 % second lien toggle notes due 2016 and/or 9 1 / 4 % second lien notes due 2016 and, accordingly, may receive a portion of the net proceeds of this offering in connection with the redemption of those notes. However, none of the underwriters, nor any of their affiliates will receive net proceeds of this offering equal to or in excess of 5% of the net proceeds of this offering. See “Underwriting (conflicts of interest).”

-4-


 

     
Additional Changes to Preliminary Prospectus Supplement:
  The total size of the offering of notes has been increased from $1,000,000,000 to $5,000,000,000, allocated as set forth above.
 
   
 
  Corresponding changes have been made where applicable throughout the Preliminary Prospectus Supplement. In addition, other information (including financial information) is deemed to have changed to the extent affected by the changes described herein and the pricing of the Notes.
 
   
 
  As a result of this increase in offering size, the description of the second lien notes and any references to the amount of the $1.578 billion 9 5 / 8 %/10 3 / 8 % second lien toggle notes due 2016 being redeemed with the net proceeds of this offering shall be amended to increase the amount being redeemed from the initial $900 million to all of such notes and to include the redemption of all of the outstanding 9 1 / 4 % second lien notes due 2016. In addition, as a result of the repayment of all of the 9 5 / 8 %/10 3 / 8 % second lien toggle notes due 2016 and 9 1 / 4 % second lien notes due 2016, as of March 31, 2011, on an as adjusted basis to give effect to the June redemptions, this offering and the use of proceeds described herein, there would have been approximately $26.0 billion of indebtedness of HCA Inc.’s subsidiaries, of which approximately $16.6 billion would have been secured.
 
The issuer has filed a registration statement (including a prospectus and a related prospectus supplement) with the United States Securities and Exchange Commission (“SEC”) for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement, the prospectus supplement and other documents HCA Holdings, Inc. has filed with the SEC for more complete information about the issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, copies of the prospectus supplement and accompanying prospectus may be obtained by calling J.P. Morgan Securities LLC collect at 1-800-245-8812.
This communication should be read in conjunction with the preliminary prospectus supplement and the accompanying prospectus. The information in this communication supersedes the information in the preliminary prospectus supplement and the accompanying prospectus to the extent inconsistent with the information in such preliminary prospectus supplement and the accompanying prospectus.
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM.

-5-


 

ANNEX C-1
Subsidiaries of the Company
AAL Holdings, Inc.
AB TIC Investments, LLC
AC Med, LLC
Acadiana Care Center, Inc.
Acadiana Practice Management, Inc.
Acadiana Regional Pharmacy, Inc.
ACH, Inc.
Acworth Immediate Care, LLC
Administrative Physicians of North Texas, PLLC
Advanced Neurosurgery, LLC
Advanced Orthopedics, LLC
Advanced Plastic Surgery Center of Terre Haute, LLC
Advanced Radiation Oncology Care, LLC
Albany Family Practice, LLC
Albany Neurosurgery Center, LLC
Aligned Business Consortium Group, L.P.
All About Learning, LLC
All About Staffing of Texas, Inc.
All About Staffing, Inc.
Alleghany General and Bariatric Services, LLC
Alleghany Hospitalists, LLC
Alleghany Primary Care, Inc.
Alleghany Specialists, LLC
Alpharetta Imaging Services, LLC
Alta Internal Medicine, LLC
Alternaco, LLC
Ambulatory Endoscopy Clinic of Dallas, Ltd.
Ambulatory Services Management Corporation of Chesterfield County, Inc.
Ambulatory Surgery Center Group, Ltd.
American Medicorp Development Co.
Ami-Point GA, LLC
AOGN, LLC
AOSC Sports Medicine, Inc.
Appledore Medical Group II, Inc.
Appledore Medical Group, Inc.
Appomattox Imaging, LLC
AR Holding 1, LLC
AR Holding 10, LLC
AR Holding 11, LLC
AR Holding 12, LLC
AR Holding 13, LLC
AR Holding 14, LLC
AR Holding 15, LLC
AR Holding 16, LLC
AR Holding 17, LLC
AR Holding 18, LLC
AR Holding 19, LLC
AR Holding 2, LLC

 


 

AR Holding 20, LLC
AR Holding 21, LLC
AR Holding 22, LLC
AR Holding 23, LLC
AR Holding 24, LLC
AR Holding 25, LLC
AR Holding 26, LLC
AR Holding 27, LLC
AR Holding 28, LLC
AR Holding 29, LLC
AR Holding 3, LLC
AR Holding 30, LLC
AR Holding 4, LLC
AR Holding 5, LLC
AR Holding 6, LLC
AR Holding 7, LLC
AR Holding 8, LLC
AR Holding 9, LLC
Arkansas Medical Park, LLC
Arlington Diagnostic South, Inc.
Arlington Neurosurgeons, PLLC
Arlington Primary Care, PLLC
Arlington Primary Medicine, PLLC
Arlington Surgery Center, L.P.
Arlington Surgicare, LLC
Arlington Vascular Surgery, PLLC
Arthritis Specialists of Nashville, Inc.
ASD Shared Services, LLC
Ashburn ASC, LLC
Ashburn Imaging, LLC
Athens Community Hospital, Inc.
Atlanta Healthcare Management, L.P.
Atlanta Home Care, L.P.
Atlanta Market GP, Inc.
Atlanta Orthopaedic Surgical Center, Inc.
Atlanta Outpatient Surgery Center, Inc.
Atlanta Surgery Center, Ltd.
Atlantis Surgicare, LLC
Atrium Surgery Center, L.P.
Atrium Surgery Center, Ltd.
Atrium Surgicare, LLC
Augusta Inpatient Services, LLC
Augusta Multispecialty Services, LLC
Augusta Primary Care Services, LLC
Augusta Specialty Hospitalists, LLC
Austin Heart Cardiology MSO, LLC
Austin Heart, PLLC
Austin Medical Center, Inc.
Austin Physicians Management, LLC
Austin Urogynecology, PLLC
Aventura Cancer Center Manager, LLC
Aventura Comprehensive Cancer Research Group of Florida, Inc.
Aventura Healthcare Specialists LLC
Aventura Neurosurgery, LLC

 


 

Avoyelles Family Care (A Medical Limited Liability Company)
Bailey Square Ambulatory Surgical Center, Ltd.
Bailey Square Outpatient Surgical Center, Inc.
BAMI Property, LLC
Bannerman Family Care, LLC
Basic American Medical, Inc.
Bay Area Healthcare Group, Ltd.
Bay Area Surgical Center Investors, Ltd.
Bay Area Surgicare Center, Inc.
Bay Hospital, Inc.
Bayonet Point Surgery Center, Ltd.
Bayshore Occupational and Family Medicine, PLLC
Bayshore Partner, LLC
Bayshore Surgery Center, Ltd.
Beach Primary Care, LLC
Bedford-Northeast Community Hospital, Inc.
Behavioral Health Sciences of West Florida, LLC
Bellaire Imaging, Inc.
Belleair Surgery Center, Ltd.
Belton Family Practice Clinic, LLC
Big Cypress Medical Center, Inc.
Blacksburg Family Care, LLC
Boca Raton Open Imaging Center, LLC
Bonita Bay Surgery Center, Inc.
Bonita Bay Surgery Center, Ltd.
Bountiful Surgery Center, LLC
Boynton Beach EFL Imaging Center, LLC
Bradenton Cardiology Physician Network, LLC
Bradenton Outpatient Services, LLC
Brandon Imaging Manager, LLC
Brandon Regional Cancer Center, LLC
Brandon SRS Management Services, LLC
Brandon Surgi-Center, Ltd.
Brigham City Community Hospital Physician Services, LLC
Brigham City Community Hospital, Inc.
Brigham City Health Plan, Inc.
Brookwood Medical Center of Gulfport, Inc.
Broward Cardiovascular Surgeons, LLC
Broward Healthcare System, Inc.
Broward Neurosurgeons, LLC
Brownsville Specialists of Texas, PLLC
Brownsville Surgical Specialists, PLLC
Brownsville-Valley Regional Medical Center, Inc.
Brunswick Anesthesia, LLC
Buckhead Surgical Services, L.P.
Buford Road Imaging, L.L.C.
Byron Family Practice, LLC
C. Medrano, M.D., PLLC
C/HCA Capital, Inc.
C/HCA Development, Inc.
C/HCA, Inc.
Calder Urgent Care, PLLC
California Imaging Center Manager, LLC
Calloway Creek Surgery Center, L.P.

 


 

Calloway Creek Surgicare, LLC
Cancer Centers of North Florida, LLC
Cancer Services of Aventura, LLC
Cape Coral Surgery Center, Inc.
Cape Coral Surgery Center, Ltd.
Capital Anesthesia Services, LLC
Capital Area Cardiology
Capital Area Occupational Medicine, PLLC
Capital Area Primary Care, PLLC
Capital Area Providers
Capital Area Specialists, PLLC
Capital Area Surgeons, PLLC
Capital Division, Inc.
Capital Network Services, Inc.
Capital Regional Healthcare, LLC
Cardiac Surgical Associates, LLC
Cardio Vascular Surgeons of North Texas, PLLC
Cardiology Associates Medical Group, LLC
Cardiology Specialists of North Texas, PLLC
CardioTexas, PLLC
Cardiothoracic Surgeons of Roanoke Valley, LLC
Cardiovascular Center of Fort Worth, L.P.
Cardiovascular Ventures of Fort Worth, LLC
Care for Women, LLC
CareOne Home Health Services, Inc.
CareOne Home Health Services, Inc.
Carlin Springs Urgent Care, LLC
Carolina Forest Imaging Manager, LLC
Carolina Regional Surgery Center, Inc.
Carolina Regional Surgery Center, Ltd.
Cartersville Medical Center, LLC
Cartersville Occupational Medicine Center, LLC
Cartersville Physician Practice I, LLC
Cartersville Urgent Care, LLC
CCH-GP, Inc.
Cedar Creek Medical Group, LLC
Cedarcare, Inc.
Cedars BTW Program, Inc.
Cedars Gastroenterologists, LLC
Cedars Healthcare Group, Ltd.
Cedars International Cardiology Consultants, LLC
Cedars Medical Center Hospitalists, LLC
Centennial Cardiovascular Consultants, LLC
Centennial CyberKnife Center, LLC
Centennial CyberKnife Manager, LLC
Centennial Heart, LLC
Centennial Neuroscience, LLC
Centennial Primary Care, LLC
Centennial Psychiatric Associates, LLC
Centennial Surgery Center, L.P.
Centennial Surgical Associates, LLC
Centennial Surgical Clinic, LLC
Center for Advanced Imaging, LLC
Center for Colorectal Care, LLC

 


 

Center for Digestive Diseases, LLC
Centerpoint Cardiology Services, LLC
Centerpoint Hospital Based Physicians, LLC
Centerpoint Medical Center of Independence, LLC
Centerpoint Medical Specialists, LLC
Centerpoint Orthopedics, LLC
Centerpoint Physicians Group, LLC
Centerpoint Women’s Services, LLC
Central Florida Cardiology Interpretations, LLC
Central Florida Diagnostic Cardiology Center, LLC
Central Florida Division Practice, Inc.
Central Florida Imaging Services, LLC
Central Florida Obstetrics & Gynecology Associates, LLC
Central Florida Physician Network, LLC
Central Florida Regional Hospital, Inc.
Central Health Holding Company, Inc.
Central Health Services Hospice, Inc.
Central Shared Services, LLC
Central Tennessee Hospital Corporation
Central Texas Cardiac Arrhythmia Physicians, PLLC
CFC Investments, Inc.
CH Systems
Chatsworth Hospital Corp.
Chattanooga ASC, LLC
Chattanooga Diagnostic Associates, LLC
Chattanooga Healthcare Network Partner, Inc.
Chattanooga Healthcare Network, L.P.
CHC Finance Co.
CHC Holdings, Inc.
CHC Management, Ltd.
CHC Payroll Agent, Inc.
CHC Payroll Company
CHC Realty Company
CHC Venture Co.
CHCA Bayshore, L.P.
CHCA Clear Lake, L.P.
CHCA Conroe, L.P.
CHCA Hospital LP, Inc.
CHCA Mainland, L.P.
CHCA Palmyra Partner, Inc.
CHCA Pearland, L.P.
CHCA West Houston, L.P.
CHCA Woman’s Hospital, L.P.
CHC-El Paso Corp.
CHCK, Inc.
CHC-Miami Corp.
Cheray and Samuels, LLC
Chesterfield Imaging, LLC
Chicago Grant Hospital, Inc.
Children’s Multi-Specialty Group, LLC
Chino Community Hospital Corporation, Inc.
Chippenham & Johnston-Willis Hospitals, Inc.
Chippenham & Johnston-Willis Sports Medicine, LLC
Chippenham Ambulatory Surgery Center, LLC

 


 

Chippenham Pediatric Specialists, LLC
Christiansburg Family Medicine, LLC
Christiansburg Internal Medicine, LLC
Christina Cano-Gonzalez, M.D., PLLC
Chugach PT, Inc.
CIS Holdings, Inc.
CJW Infectious Disease, LLC
CJW Wound Healing Center, LLC
CLASC Manager, LLC
Clear Lake Cardiac Catheterization Center, L.P.
Clear Lake Cardiac GP, LLC
Clear Lake Family Physicians, PLLC
Clear Lake Merger, LLC
Clear Lake Multi-Specialty Group, PLLC
Clear Lake Regional Medical Center, Inc.
Clear Lake Regional Partner, LLC
Clear Lake Surgicare, Ltd.
ClinicServ, LLC
Clinishare, Inc.
Clipper Cardiovascular Associates, Inc.
CMS GP, LLC
Coastal Bend Hospital CT Services, Ltd.
Coastal Bend Hospital, Inc.
Coastal Cardiac Diagnostics, Ltd.
Coastal Carolina Home Care, Inc.
Coastal Carolina Multispecialty Associates, LLC
Coastal Carolina Primary Care, LLC
Coastal Healthcare Services, Inc.
Coastal Imaging Center of Gulfport, Inc.
Coastal Inpatient Physicians, LLC
Cobb Imaging Services, LLC
Coliseum Health Group, Inc.
Coliseum Health Group, LLC
Coliseum Medical Center, LLC
Coliseum Park Hospital, Inc.
Coliseum Primary Care Services, LLC
Coliseum Primary Healthcare — Macon, LLC
Coliseum Primary Healthcare — Riverside, LLC
Coliseum Professional Associates, LLC
Coliseum Psychiatric Center, LLC
Coliseum Same Day Surgery Center, L.P.
Coliseum Surgery Center, L.L.C.
Colleton Ambulatory Care, LLC
Colleton Diagnostic Center, LLC
Colleton Medical Anesthesia, LLC
Colleton Medical Hospitalists, LLC
Colleton Neurology Associates, LLC
Colleton Otolaryngology, Head and Neck Surgery, LLC
Collier County Home Health Agency, Inc.
Collin County Diagnostic Associates, PLLC
COL-NAMC Holdings, Inc.
Colonial Heights Ambulatory Surgery Center, L.P.
Colonial Heights Surgicare, LLC
Colorado Health Systems, Inc.

 


 

Columbia Ambulatory Surgery Division, Inc.
Columbia ASC Management, L.P.
Columbia Bay Area Realty, Ltd.
Columbia Behavioral Health, LLC
Columbia Behavioral Healthcare of South Florida, Inc.
Columbia Behavioral Healthcare, Inc.
Columbia Call Center, Inc.
Columbia Central Florida Division, Inc.
Columbia Central Group, Inc.
Columbia Champions Treatment Center, Inc.
Columbia Chicago Division, Inc.
Columbia Coliseum Same Day Surgery Center, Inc.
Columbia Development of Florida, Inc.
Columbia Doctors Hospital of Tulsa, Inc.
Columbia Eye and Specialty Surgery Center, Ltd.
Columbia Florida Group, Inc.
Columbia GP of Mesquite, Inc.
Columbia Greater Houston Division Healthcare Network, Inc.
Columbia Health System of Arkansas, Inc.
Columbia Healthcare of Central Virginia, Inc.
Columbia Healthcare System of Louisiana, Inc.
Columbia Hospital (Palm Beaches) Limited Partnership
Columbia Hospital at Medical City Dallas Subsidiary, L.P.
Columbia Hospital Corporation at the Medical Center
Columbia Hospital Corporation of Arlington
Columbia Hospital Corporation of Bay Area
Columbia Hospital Corporation of Central Miami
Columbia Hospital Corporation of Corpus Christi
Columbia Hospital Corporation of Fort Worth
Columbia Hospital Corporation of Houston
Columbia Hospital Corporation of Kendall
Columbia Hospital Corporation of Massachusetts, Inc.
Columbia Hospital Corporation of Miami
Columbia Hospital Corporation of Miami Beach
Columbia Hospital Corporation of North Miami Beach
Columbia Hospital Corporation of South Broward
Columbia Hospital Corporation of South Dade
Columbia Hospital Corporation of South Florida
Columbia Hospital Corporation of South Miami
Columbia Hospital Corporation of Tamarac
Columbia Hospital Corporation of West Houston
Columbia Hospital Corporation-Delaware
Columbia Hospital Corporation-SMM
Columbia Hospital-El Paso, Ltd.
Columbia Integrated Health Systems, Inc.
Columbia Jacksonville Healthcare System, Inc.
Columbia LaGrange Hospital, Inc.
Columbia Lake Worth Surgical Center Limited Partnership
Columbia Medical Arts Hospital Subsidiary, L.P.
Columbia Medical Center at Lancaster Subsidiary, L.P.
Columbia Medical Center Dallas Southwest Subsidiary, L.P.
Columbia Medical Center of Arlington Subsidiary, L.P.
Columbia Medical Center of Denton Subsidiary, L.P.
Columbia Medical Center of Las Colinas, Inc.

 


 

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 Medical Group — Centennial, Inc.
Columbia Medical Group — Daystar, Inc.
Columbia Medical Group — Parkridge, Inc.
Columbia Medical Group — Southern Hills, Inc.
Columbia Medical Group — Southwest Virginia, Inc.
Columbia Medical Group — The Frist Clinic, Inc.
Columbia Midtown Joint Venture
Columbia North Alaska Healthcare, Inc.
Columbia North Central Florida Health System Limited Partnership
Columbia North Florida Regional Medical Center Limited Partnership
Columbia North Hills Hospital Subsidiary, L.P.
Columbia North Texas Healthcare System, L.P.
Columbia North Texas Subsidiary GP, LLC
Columbia North Texas Surgery Center Subsidiary, L.P.
Columbia Northwest Medical Center Partners, Ltd.
Columbia Northwest Medical Center, Inc.
Columbia Ocala Regional Medical Center Physician Group, Inc.
Columbia Ogden Medical Center, Inc.
Columbia Oklahoma Division, Inc.
Columbia Palm Beach GP, LLC
Columbia Palm Beach Healthcare System Limited Partnership
Columbia Park Healthcare System, Inc.
Columbia Park Medical Center, Inc.
Columbia Parkersburg Healthcare System, LLC
Columbia Physician Services — Florida Group, Inc.
Columbia Plaza Medical Center of Fort Worth Subsidiary, L.P.
Columbia Polk General Hospital, Inc.
Columbia Primary Care, LLC
Columbia Psychiatric Management Co.
Columbia Resource Network, Inc.
Columbia Rio Grande Healthcare, L.P.
Columbia Riverside, Inc.
Columbia South Texas Division, Inc.
Columbia Specialty Hospital of Dallas Subsidiary, L.P.
Columbia Specialty Hospitals, Inc.
Columbia Surgery Group, Inc.
Columbia Surgicare — North Michigan Ave., L.P.
Columbia Surgicare of Augusta, Ltd.
Columbia Tampa Bay Division, Inc.
Columbia U.K. Finance Limited
Columbia Valley Healthcare System, L.P.
Columbia West Bank Hospital, Inc.
Columbia Westbank Healthcare, L.P.
Columbia/Alleghany Regional Hospital, Incorporated
Columbia/HCA Healthcare Corporation of Central Louisiana, Inc.
Columbia/HCA Healthcare Corporation of Central Texas
Columbia/HCA Healthcare Corporation of Northern Ohio
Columbia/HCA Healthcare Corporation of South Carolina
Columbia/HCA Heartcare of Corpus Christi, Inc.
Columbia/HCA International Group, Inc.
Columbia/HCA John Randolph, Inc.

 


 

Columbia/HCA Middle East Management Company
Columbia/HCA of Baton Rouge, Inc.
Columbia/HCA of Houston, Inc.
Columbia/HCA of New Orleans, Inc.
Columbia/HCA of North Texas, Inc.
Columbia/HCA Physician Hospital Organization Medical Center Hospital
Columbia/HCA San Clemente, Inc.
Columbia-Georgia PT, Inc.
Columbia-Osceola Imaging Center, Inc.
Columbia-Quantum, Inc.
Columbia-SDH Holdings, Inc.
Columbine Psychiatric Center, Inc.
Columbus Cardiology, Inc.
Columbus Cath Lab, Inc.
Columbus Cath Lab, LLC
Columbus Doctors Hospital, Inc.
Commonwealth Perinatal Services, LLC
Commonwealth Specialists of Kentucky, LLC
Community Hospital Family Practice, LLC
Concept EFL Imaging Center, LLC
Concept West EFL Imaging Center, LLC
Congenital Heart Surgery Center, PLLC
Conroe Hospital Corporation
Conroe Orthopedic Specialists, PLLC
Conroe Partner, LLC
Conroe Specialists of Texas, PLLC
Continental Division I, Inc.
Coral Springs Surgi-Center, Ltd.
CoralStone Management, Inc.
Corpus Christi Healthcare Group, Ltd.
Corpus Christi Primary Care Associates, PLLC
Corpus Christi Radiation Oncology, PLLC
Corpus Christi Surgery Center, L.P.
Corpus Christi Surgery, Ltd.
Corpus Surgicare, Inc.
COSCORP, LLC
Countryside Surgery Center, Ltd.
CPS TN Processor 1, Inc.
Crewe Outpatient Imaging, LLC
CRMC-M, LLC
Cumberland Medical Center, Inc.
CVMC Property, LLC
Daleville Imaging Manager, LLC
Daleville Imaging, L.P.
Dallas Cardiology Specialists, PLLC
Dallas CardioThoracic Surgery Consultants, PLLC
Dallas Neuro-Stroke Affiliates, PLLC
Dallas/Ft. Worth Physician, LLC
Dauterive Hospital Corporation
Dauterive Physicians, LLC
Daytona Medical Center, Inc.
Deep Purple Investments, LLC
Delray EFL Imaging Center, LLC
Delta Division, Inc.

 


 

Denton Cancer Center, PLLC
Denton County Hospitalist Program, PLLC
Denton Pediatric Physicians, PLLC
Denton Primary Care, PLLC
Denton Regional Ambulatory Surgery Center, L.P.
Derry ASC, Inc.
DFW Physicians Group, PLLC
Diagnostic Breast Center, Inc.
Dickson Corporate Health Services, LLC
Dickson Surgery Center, L.P.
Doctors Bay Area Physician Hospital Organization
Doctors Hospital (Conroe), Inc.
Doctors Hospital Center for Occupational Medicine, LLC
Doctors Hospital Columbus GA-Joint Venture
Doctors Hospital North Augusta Imaging Center, LLC
Doctors Hospital of Augusta Neurology, LLC
Doctors Hospital of Augusta, LLC
Doctors Hospital of Opelousas Limited Partnership
Doctors Hospital Surgery Center, L.P.
Doctor’s Memorial Hospital of Spartanburg, L.P.
Doctors Osteopathic Medical Center, Inc.
Doctors Same Day Surgery Center, Inc.
Doctors Same Day Surgery Center, Ltd.
Doctors-I, Inc.
Doctors-II, Inc.
Doctors-III, Inc.
Doctors-IV, Inc.
Doctors-IX, Inc.
Doctors-V, Inc.
Doctors-VI, Inc.
Doctors-VII, Inc.
Doctors-VIII, Inc.
Doctors-X, Inc.
DOMC Property, LLC
Dominion Hospital Physicians’ Group, LLC
Douglasville Imaging Services, LLC
Drake Management Company
Dublin Community Hospital, LLC
Dublin Heart Specialists, LLC
Dublin Multispecialty, LLC
Dunwoody Physician Practice Network, Inc.
E.P. Physical Therapy Centers, Inc.
East Falls Cardiovascular and Thoracic Surgery, LLC
East Falls OBGYN, LLC
East Falls Plastic Surgery, LLC
East Florida Behavioral Health Network, LLC
East Florida Division, Inc.
East Florida Emergency Physician Group, LLC
East Florida Hospitalists, LLC
East Florida Imaging Holdings, LLC
East Florida Primary Care, LLC
East Layton Internal Medicine, LLC
East Pointe Hospital, Inc.
Eastern Idaho Health Services, Inc.

 


 

Eastern Idaho Regional Medical Center Physician Services, LLC
Eastside General Surgery, LLC
East Houston Specialists, PLLC
Eastside Medical Center, LLC
Eastside Surgery Center, LLC
Edisto Multispecialty Associates, Inc.
Edmond General Surgery, LLC
Edmond Hospitalists, LLC
Edmond Intensivists, LLC
Edmond Physician Hospital Organization, Inc.
Edmond Physician Services, LLC
Edmond Podiatry Associates, LLC
Edmond Spine and Orthopedic Services, LLC
Edward White Hospital, Inc.
EHCA Diagnostics, LLC
EHCA Eastside Occupational Medicine Center, LLC
EHCA Metropolitan, LLC
EHCA Parkway, LLC
EHCA Peachtree, LLC
EHCA West Paces, LLC
EHCA, LLC
EIRMC Hospitalist Services, LLC
El Paso Healthcare Provider Network
El Paso Healthcare System Physician Services, LLC
El Paso Healthcare System, Ltd.
El Paso Nurses Unlimited, Inc.
El Paso Primary Care, PLLC
El Paso Surgery Centers, L.P.
El Paso Surgicenter, Inc.
Eldridge Family Practitioners, PLLC
Elite Family Health of Plano, PLLC
Elite OB-GYN Services of El Paso, PLLC
Elite Orthopaedics of El Paso, PLLC
Elite Orthopaedics of Irving, PLLC
Elite Orthopaedics of Plano, PLLC
Emergency Providers Group LLC
Emergency Psychiatric Medicine, PLLC
EMMC, LLC
Encino Hospital Corporation, Inc.
Endocrinology Associates of Lee’s Summit, LLC
Endoscopy Clinic of Dallas, Inc.
Endoscopy of Plano, L.P.
Endoscopy Surgicare of Plano, LLC
Englewood Community Hospital, Inc.
EP Health, LLC
EP Holdco, LLC
EPIC Development, Inc.
EPIC Diagnostic Centers, Inc.
EPIC Healthcare Management Company
EPIC Properties, Inc.
EPIC Surgery Centers, Inc.
EPSC, L.P.
Extendicare Properties, Inc.
Eye Care Surgicare, Ltd.

 


 

Eye Surgicare of Independence, LLC
Fairfax Surgical Center, L.P.
Fairview Medical Services, LLC
Fairview Park GP, LLC
Fairview Park, Limited Partnership
Fairview Partner, LLC
Family Care at Arbor Walk, LLC
Family Care of E. Jackson County, LLC
Family Care Partners, LLC
Family First Medicine in Brownsville, PLLC
Family Health Medical Group of Overland Park, LLC
Family Health Specialists of Lee’s Summit, LLC
Family Medicine Associates of Edmond, LLC
Family Medicine of Blacksburg, LLC
Family Medicine of Terre Haute, LLC
Family Practice at Forest Hill, LLC
Family Practice at Retreat, LLC
Family Practitioners of Montgomery, PLLC
Family Practitioners of Pearland, PLLC
Far West Division, Inc.
Fawcett Memorial Hospital, Inc.
FHAL, LLC
Florida Home Health Services-Private Care, Inc.
Florida Outpatient Surgery Center, Ltd.
Flower Mound Surgery Center, Ltd.
Foot & Ankle Specialty Services, LLC
Forest Park Surgery Pavilion, Inc.
Forest Park Surgery Pavilion, L.P.
Fort Bend Hospital, Inc.
Fort Chiswell Family Practice, LLC
Fort Myers Market, Inc.
Fort Pierce Immediate Care Center, Inc.
Fort Pierce Orthopaedics, LLC
Fort Pierce Surgery Center, Ltd.
Fort Walton Beach Medical Center, Inc.
Fort Worth Investments, Inc.
Four Rivers Medical Center PHO, Inc.
Frankfort Hospital, Inc.
Frankfort Orthopedics, LLC
Frankfort Wound Care, LLC
Freeport Family Medicine, LLC
Fremont Women’s Health, LLC
Frisco Warren Parkway 91, Inc.
Frist Clinic Express, LLC
Ft. Pierce Surgicare, LLC
Ft. Walton Beach Anesthesia Services, LLC
G. Rowe, M.D. , PLLC
G. Schnider, M.D., PLLC
Gainesville GYN Oncology of North Florida Regional Medical Center, LLC
Gainesville Physicians, LLC
Galen (Kansas) Merger, LLC
Galen BH, Inc.
Galen Finance, LLC
Galen Global Finance, Inc.

 


 

Galen GOK, LLC
Galen Holdco, LLC
Galen Hospital Alaska, Inc.
Galen Hospital of Baytown, Inc.
Galen Hospital-Pembroke Pines, Inc.
Galen International Capital, Inc.
Galen International Holdings, Inc.
Galen KY, LLC
Galen LA, LLC
Galen MCS, LLC
Galen Medical Corporation
Galen MRMC, LLC
Galen NMC, LLC
Galen NSH, LLC
Galen of Aurora, Inc.
Galen of Florida, Inc.
Galen of Illinois, Inc.
Galen of Kentucky, Inc.
Galen of Mississippi, Inc.
Galen of Virginia, Inc.
Galen of West Virginia, Inc.
Galen Property, LLC
Galen SOM, LLC
Galen SSH, LLC
Galen Virginia Hospital Corporation
Galencare, Inc.
Galendeco, Inc.
Galen-Soch, Inc.
GalTex, LLC
Garden Park Community Hospital Limited Partnership
Garden Park Hospitalist Program, LLC
Garden Park Physician Services Corporation
Gardens EFL Imaging Center, LLC
Gastroenterology Specialists of Middle Tennessee, LLC
General and Cardiovascular Surgeons of Conroe, PLLC
General Hospitals of Galen, Inc.
General Surgeons of Houston, PLLC
General Surgeons of North Richland Hills, PLLC
General Surgeons of Pasadena, PLLC
Generations Family Practice, Inc.
Georgia Health Holdings, Inc.
Georgia Psychiatric Company, Inc.
Georgia, L.P.
GHC-Galen Health Care, LLC
GI Associates of Denton, PLLC
Glemm SA
Good Samaritan Hospital, L.P.
Good Samaritan Hospital, LLC
Good Samaritan Surgery Center, L.P.
Goppert-Trinity Family Care, LLC
GPCH-GP, Inc.
Grace Family Practice, LLC
Gramercy Surgery Center, Ltd.
Grand Strand Regional Medical Center, LLC

 


 

Grand Strand Senior Health Center, LLC
Grand Strand Specialty Associates, LLC
Grand Strand Surgical Specialists, LLC
Grandview Health Care Clinic, LLC
Grant Center Hospital of Ocala, Inc.
Grayson Primary Care, LLC
Greater Gwinnett Internal Medicine Associates, LLC
Greater Gwinnett Physician Corporation
Greater Houston Preferred Provider Option, Inc.
Green Oaks Hospital Subsidiary, L.P.
Greenview Hospital, Inc.
Greenview PrimeCare, LLC
Gulf Coast Division, Inc.
Gulf Coast Inpatient Specialists, LLC
Gulf Coast Medical Center Primary Care, LLC
Gulf Coast Medical Ventures, Inc.
Gulf Coast Multispecialty Services, LLC
Gulf Coast Physician Administrators, Inc.
Gwinnett Community Hospital, Inc.
Gynecology Specialists of Utah, LLC
GYN-Oncology of Southwest Virginia, LLC
H.H.U.K., Inc.
H2U Wellness Centers — PISD, PLLC
H2U Wellness Centers — San Benito CISD, PLLC
H2U Wellness Centers, LLC
Hamilton Memorial Hospital, Inc.
Hanover Outpatient Surgery Center, L.P.
HCA — Information Technology & Services, Inc.
HCA — IT&S Field Operations, Inc.
HCA — IT&S Inventory Management, Inc.
HCA — IT&S TN Field Operations, Inc.
HCA — Raleigh Community Hospital, Inc.
HCA — Viera ALF, LLC
HCA — WHS Progressive, LLC
HCA — WHS Services, LLC
HCA ASD Financial Operations, LLC
HCA ASD Sales Services, LLC
HCA Central Group, Inc.
HCA Central/West Texas Physicians Management, LLC
HCA Chattanooga Market, Inc.
HCA Development Company, Inc.
HCA Eastern Group, Inc.
HCA Family Care Center, Inc.
HCA Finance, LP
HCA Health Services of California, Inc.
HCA Health Services of Florida, Inc.
HCA Health Services of Georgia, Inc.
HCA Health Services of Louisiana, Inc.
HCA Health Services of Miami, Inc.
HCA Health Services of Midwest, Inc.
HCA Health Services of New Hampshire, Inc.
HCA Health Services of Oklahoma, Inc.
HCA Health Services of Tennessee, Inc.
HCA Health Services of Texas, Inc.

 


 

HCA Health Services of Virginia, Inc.
HCA Health Services of West Virginia, Inc.
HCA Holdco, LLC
HCA Imaging Services of North Florida, Inc.
HCA Inc.
HCA International Finance LLP
HCA International Holdings Limited
HCA International Limited
HCA Long Term Health Services of Miami, Inc.
HCA Luxembourg 1 Sarl
HCA Luxembourg 2 Sarl
HCA Management Services, L.P.
HCA Medical Services, Inc.
HCA Midwest Comprehensive Care, Inc.
HCA Outpatient Clinic Services of Miami, Inc.
HCA Outpatient Imaging Services Group, Inc.
HCA Pearland GP, Inc.
HCA Physician Services, Inc.
HCA Plano Imaging, Inc.
HCA Property GP, LLC
HCA Psychiatric Company
HCA Realty, Inc.
HCA Richmond Division, Inc.
HCA Squared, LLC
HCA Staffing Limited
HCA Switzerland Finance Sàrl
HCA Switzerland Holding Sàrl
HCA UK Capital Limited
HCA UK Holdings Limited
HCA UK Investments Limited
HCA UK Services, Ltd.
HCA United Kingdom Limited
HCA Wesley Rehabilitation Hospital, Inc.
HCA Western Group, Inc.
HCA-EmCare Holdings, LLC
HCA-EMS Holdings, LLC
HCAPS Anesthesia Manager, LLC
HCOL, Inc.
HD&S Corp. Successor, Inc.
HDH Thoracic Surgeons, LLC
Healdsburg General Hospital, Inc.
Health Care Indemnity, Inc.
Health Insight Capital, LLC
Health Midwest Insurance Company, Ltd.
Health Midwest Medical Group, Inc.
Health Midwest Office Facilities Corporation
Health Midwest Ventures Group, Inc.
Health Service Partners, Inc.
Health Services (Delaware), Inc.
Health Services Merger, Inc.
Health to You, LLC
Healthcare Oklahoma, Inc.
Healthcare Sales National Management Services Group, LLC
Healthcare Technology Assessment Corporation

 


 

Healthco, LLC
HealthCoast Physician Group, LLC
Healthnet of Kentucky, LLC
HealthONE of Denver, Inc.
Healthserv Acquisition, LLC
Healthtrust MOB Tennessee, LLC
Healthtrust Purchasing Group, L.P.
Healthtrust Utah Management Services, Inc.
Healthtrust, Inc. — The Hospital Company
Healthtrust, Inc. — The Hospital Company
Heart Specialist of North Texas, PLLC
Heartcare of Texas, Ltd.
Hearthstone Home Health, Inc.
Heartland Women’s Group at Wesley, LLC
Heathrow Imaging, LLC
Heathrow Internal Medicine, LLC
HEI Missouri, Inc.
Hendersonville Hospital Corporation
Hendersonville Hospitalist Services, Inc.
Hendersonville OB/GYN, LLC
Hendersonville ODC, LLC
Hendersonville Primary Care, LLC
Henrico Doctors’ Family Medicine, LLC
Henrico Doctors Hospital — Forest Campus Property, LLC
Henrico Doctors’ Neurology Associates, LLC
Henrico Doctor’s OB GYN Specialists, LLC
Henrico Radiation Oncology, LLC
Henrico Surgical Specialists, LLC
Heritage Family Care, LLC
Heritage Hospital, Inc.
Heritage Medical Care, LLC
Hermitage Primary Care, LLC
HHNC, LLC
Hidalgo County Family Practitioners, PLLC
Hidden Lakes Health Center, PLLC
Highway 50 Real Estate, LLC
HM Acquisition, LLC
HM OMCOS, LLC
Homecare North, Inc.
Hometrust Management Services, Inc.
Horizon Orthopedics, LLC
Horizon Surgical, LLC
Hospital Corp., LLC
Hospital Corporation of America
Hospital Corporation of Lake Worth
Hospital Corporation of Tennessee
Hospital Corporation of Utah
Hospital Development Properties, Inc.
Hospital Partners Merger, LLC
Hospital Realty Corporation
Hospitalists at Centennial Medical Center, LLC
Hospitalists at Fairview Park, LLC
Hospitalists at Greenview Regional Hospital, LLC
Hospitalists at Horizon Medical Center, LLC

 


 

Hospitalists at Parkridge, LLC
Hospitalists at StoneCrest, LLC
Hospitalists of the Wabash Valley, LLC
Houston Healthcare Holdings, Inc.
Houston Northwest Surgical Partners, Inc.
Houston Pediatric Specialty Group, PLLC
Houston Woman’s Hospital Partner, LLC
HPG Energy, L.P.
HPG GP, LLC
HSS Holdco, LLC
HSS Systems VA, LLC
HSS Systems, LLC
HSS Virginia, L.P.
HTI Gulf Coast, Inc.
HTI Health Services of North Carolina, Inc.
HTI Health Services, Inc.
HTI Hospital Holdings, Inc.
HTI Memorial Hospital Corporation
HTI MOB, LLC
HTI Physician Services of Utah, Inc.
Hughston Hospital Services, LLC
HWCA, PLLC
Hyperbaric and Wound Care Services of Ocala, LLC
Idaho Physician Services, Inc.
Illinois Psychiatric Hospital Company, Inc.
Imaging Centers of California, L.P.
Imaging Services of Appomattox, LLC
Imaging Services of Jacksonville, LLC
Imaging Services of Louisiana Manager, LLC
Imaging Services of Louisiana, LLC
Imaging Services of Orlando, LLC
Imaging Services of Richmond, LLC
Imaging Services of Roanoke, LLC
Imaging Services of West Boynton, LLC
IMX Holdings, LLC
Independence Neurosurgery Services, LLC
Independence Regional Medical Group, LLC
Independence Surgicare, Inc.
Indian Path Hospital, Inc.
Indian Path Rehabilitation Center, Inc.
Indian Path, LLC
Indianapolis Hospital Partner, LLC
Infectious Diseases Consultants of Southwest Georgia, LLC
Institute of Advanced ENT Surgery, LLC
Integrated Regional Lab, LLC
Integrated Regional Laboratories Pathology Services, LLC
Integrated Regional Laboratories, LLP
Internal Medicine Associates of Huntsville, PLLC
Internal Medicine Associates of Southern Hills, LLC
Internal Medicine of Blacksburg, LLC
Internal Medicine Services of Osceola, LLC
J. M. Garcia, M.D., PLLC
Jackson County Medical Group, LLC
Jacksonville Multispecialty Services, LLC

 


 

Jacksonville Specialists, LLC
Jacksonville Surgery Center, Ltd.
James River Internists, LLC
JCSH, LLC
JCSHLP, LLC
Jeffersonville MediVision, Inc.
JFK Internal Medicine Faculty Practice, LLC
JFK Medical Center Limited Partnership
JFK Occupational Medicine, LLC
JFK Real Properties, Ltd.
John Randolph Family Practice, LLC
John Randolph OB/GYN, LLC
John Randolph Surgeons, LLC
Johns Creek Physician Services Corporation
Johnson County Neurology, LLC
Johnson County Surgery Center, L.P.
Johnson County Surgicenter, L.L.C.
Jordan Family Health, L.L.C.
Jupiter EFL Imaging Center, LLC
JV Investor, LLC
Kansas City Neurology Associates, LLC
Kansas City Perfusion Services, Inc.
Kansas City Pulmonology Practice, LLC
Kansas City Vascular & General Surgery Group, LLC
Kansas Healthserv, LLC
Kansas Pulmonary and Sleep Specialists, LLC
Kansas Trauma and Critical Care Specialists, LLC
Kathy L. Summers, M.D., PLLC
Katy Medical Center, Inc.
Kendall Healthcare Group, Ltd.
Kendall Regional Medical Center, LLC
Kendall Vascular Surgery, LLC
Kennedale Primary Care PLLC
Kentucky Cardiopulmonary Interpretation Services, LLC
Kingsley Family Care, LLC
Kingwood Multi-Specialty Group, PLLC
Kingwood Surgery Center, LLC
Kissimmee Surgicare, Ltd.
KPH-Consolidation, Inc.
Kyle Primary Care, PLLC
L E Corporation
La Tour Finance Limited Partnership
LAD Imaging, LLC
Lafayette OB Hospitalists, LLC
Lafayette Pediatric Neurology Center, LLC
Lafayette Surgery Center Limited Partnership
Lafayette Surgicare, Inc.
Lafayette Urogynecology & Urology Center, LLC
Lake City Imaging, LLC
Lake City Regional Medical Group, LLC
Lake Nona Hospital, Inc.
Lakeland Medical Center, LLC
Lakeside Radiology, LLC
Lakeside Women’s Services, LLC

 


 

Lakeview Hospital Physician Services, LLC
Lakeview Internal Medicine, LLC
Lakeview Medical Center, LLC
Lakeview Multispecialty Group, LLC
Lakeview Neurosurgery Clinic, LLC
Lakeview Professional Billing, LLC
Lakeview Urology & General Surgery, LLC
Laredo Medco, LLC
Largo Cardiology, LLC
Largo Medical Center, Inc.
Largo Physician Group, LLC
Las Colinas Primary Care, PLLC
Las Colinas Surgery Center, Ltd.
Las Encinas Hospital
Las Vegas ASC, LLC
Las Vegas Physical Therapy, Inc.
Las Vegas Surgical Center, a Nevada limited partnership
Las Vegas Surgicare, Inc.
Las Vegas Surgicare, Ltd.
Laurel Grove Surgery Center, LLC
Lawnwood Cardiovascular Surgery, LLC
Lawnwood Healthcare Specialists, LLC
Lawnwood Medical Center, Inc.
Lawnwood Pavilion Physician Services, LLC
Layton Family Practice, LLC
Leadership Healthcare Holdings II L.P., L.L.P.
Leadership Healthcare Holdings L.P., L.L.P.
Lee’s Summit Family Care, LLC
Lee’s Summit Urgent Care, LLC
Leslie Cohan, M.D., PLLC
Lewis Gale Physicians Specialists, LLC
Lewis-Gale Hospital, Incorporated
Lewis-Gale Medical Center, LLC
Lewis-Gale Physicians, LLC
LGMC Ambulatory Surgery Center, LLC
Live Oak Immediate Care Center, LLC
London Radiography & Radiotherapy Services Limited
Lone Peak General Surgery, LLC
Longview Regional Physician Hospital Organization, Inc.
Lookout Valley Medical Center, LLC
Lorain County Surgery Center, Ltd.
Los Gatos Surgical Center, a California Limited Partnership
Los Robles Regional Medical Center
Los Robles SurgiCenter, LLC
Loudoun Surgery Center, L.P.
Loudoun Surgery Center, LLC
Louisiana Psychiatric Company, Inc.
Low Country Health Services, Inc. of the Southeast
M. Jamshidi, D.O., PLLC
Macon Healthcare, LLC
Macon Northside Health Group, LLC
Macon Northside Hospital, LLC
Madison Behavioral Health, LLC
Madison Internal Medicine, LLC

 


 

Mainland Family Medicine, PLLC
Mainland Multi-Specialty Group, PLLC
Mainland Primary Care Physicians, PLLC
Management Services Holdings, Inc.
Management Services LP, LLC
Management Services of the Virginias, Inc.
Manatee Surgicare, Ltd.
Marietta Outpatient Medical Building, Inc.
Marietta Outpatient Surgery, Ltd.
Marietta Surgical Center, Inc.
Marion Community Hospital, Inc.
Mark Gottesman, M.D., PLLC
Mary Alice Cowan, M.D., PLLC
Maternal Fetal Medicine Specialists of Corpus Christi, PLLC
Maternal Fetal Services of Utah, LLC
Mayhill Cancer Center, LLC
MCA Investment Company
McMinnville Cardiology, LLC
Mechanicsville Imaging, LLC
Med City Dallas Outpatient Surgery Center, L.P.
Med Corp., Inc.
Med Group — Southern Hills Hospitalists, LLC
Med-Center Hosp./Houston, Inc.
MedFirst, Inc.
Medi Flight of Oklahoma, LLC
Medical Arts Hospital of Texarkana, Inc.
Medical Associates of Ocala, LLC
Medical Care America, LLC
Medical Care Financial Services Corp.
Medical Care Real Estate Finance, Inc.
Medical Care Surgery Center, Inc.
Medical Center — West, Inc.
Medical Center Imaging, Inc.
Medical Center of Baton Rouge, Inc.
Medical Center of Plano Partner, LLC
Medical Center of Port St. Lucie, Inc.
Medical Center of Santa Rosa, Inc.
Medical Centers of Oklahoma, LLC
Medical City Dallas Hospital, Inc.
Medical City Dallas Partner, LLC
Medical Corporation of America
Medical Group — Dickson, Inc.
Medical Group — Southern Hills of Brentwood, LLC
Medical Group — Southern Hills of Nolensville, LLC
Medical Group — Stonecrest FP, Inc.
Medical Group — Stonecrest Pulmonology, LLC
Medical Group — StoneCrest, Inc.
Medical Group — Summit, Inc.
Medical Imaging Center of Ocala General Partnership
Medical Imaging, Inc.
Medical Office Buildings of Kansas, LLC
Medical Oncology Associates, LLC
Medical Partners of North Florida, LLC
Medical Plaza Ambulatory Surgery Center Associates, L.P.

 


 

Medical Plaza MRI, L.P.
Medical Specialties, Inc.
MediPurchase, Inc.
MediStone Healthcare Ventures, Inc.
MediVision of Mecklenburg County, Inc.
MediVision of Tampa, Inc.
MediVision, Inc.
Med-Point of New Hampshire, Inc.
Memorial Family Practice Associates, LLC
Memorial Health Primary Care at St. Johns Bluff, LLC
Memorial Healthcare Group, Inc.
Memorial Neurosurgery Group, LLC
Memorial Southside Cancer Center, LLC
Memorial Surgicare, Ltd.
Menorah Medical Group, LLC
Menorah Urgent Care, LLC
Mercy ASC, LLC
Metairie Primary Care Associates, LLC
Methodist Healthcare System of San Antonio, Ltd., L.L.P.
Metroplex Surgicenters, Inc.
Metropolitan Multispecialty Physicians Group, Inc.
MGH Medical, Inc.
MHS Partnership Holdings JSC, Inc.
MHS Partnership Holdings SDS, Inc.
MHS SC Partner, L.L.C.
MHS Surgery Centers, L.P.
Miami Beach EFL Imaging Center, LLC
Miami Beach Healthcare Group, Ltd.
Miami Lakes Surgery Center, Ltd.
MidAmerica Oncology, LLC
Mid-America Surgery Center, LLC
Mid-America Surgery Institute, LLC
Mid-Cities Surgi-Center, Inc.
Mid-Continent Health Services, Inc.
Middle Georgia Hospital, LLC
Middle Tennessee Neurology LLC
Mid-State Physicians, LLC
Mid-States Financial Services, Inc.
Midtown Diagnostics, LLC
Midwest Cardiology Specialists, LLC
Midwest Cardiovascular & Thoracic Surgery, LLC
Midwest Cardiovascular and Thoracic Surgeons of Kansas, LLC
Midwest Division — ACH, LLC
Midwest Division — CMC, LLC
Midwest Division — LRHC, LLC
Midwest Division — LSH, LLC
Midwest Division — MCI, LLC
Midwest Division — MII, LLC
Midwest Division — MMC, LLC
Midwest Division — OPRMC, LLC
Midwest Division — PFC, LLC
Midwest Division — RBH, LLC
Midwest Division — RMC, LLC
Midwest Division — RPC, LLC

 


 

Midwest Division — TLM, LLC
Midwest Division Spine Care, LLC
Midwest Division, Inc.
Midwest Doctor’s Group, LLC
Midwest Holdings, Inc.
Midwest Infectious Disease Specialists, LLC
Midwest Medicine Associates, LLC
Midwest Metropolitan Physicians Group, LLC
Midwest Oncology Associates, LLC
Midwest Specialty Care — Lee’s Summit, LLC
Midwest Trauma Services, LLC
Midwest Women’s Healthcare Specialists, LLC
Mill Creek Outpatient Services, LLC
Millenium Health Care of Oklahoma, Inc.
Mira Healthcare, LLC
Mission Bay Memorial Hospital, Inc.
Missouri Healthcare System, L.P.
MMC Sleep Lab Management, LLC
Mobile Corps., Inc.
Montgomery Cancer Center, LLC
Montgomery Hospitalists, LLC
Montgomery Regional Hospital, Inc.
Montgomery Surgery Associates, LLC
MOSC Sports Medicine, Inc.
Mountain Division, Inc.
Mountain View Hospital, Inc.
Mountain View Medical Office Building, Ltd.
Mountain West Surgery Center, LLC
MountainStar Brigham General Surgery, LLC
Mountainstar Brigham OBGYN, LLC
MountainStar Canyon Surgical Clinic, LLC
MountainStar Cardiology Ogden Regional, LLC
MountainStar Cardiology St. Marks, LLC
Mountainstar Cardiovascular Services, LLC
MountainStar Medical Group — Brigham City Community Hospital, LLC
MountainStar Medical Group — Ogden Regional Medical Center, LLC
MountainStar Medical Group — St. Mark’s Hospital, LLC
MountainStar Medical Group Neurosurgery — St. Mark’s, LLC
Mountainstar Ogden Pediatrics, LLC
MOVCO, Inc.
Movement Disorders of North Texas, PLLC
MRT&C, Inc.
Nashville Psychiatric Company, Inc.
Nashville Shared Services General Partnership
Natchez Surgery Center, LLC
National Patient Account Services, Inc.
Navarre Family Care, LLC
Navarro Memorial Hospital, Inc.
Network Management Services, Inc.
Network MS of Florida, Inc.
Neuro Texas, PLLC
Neuro-Hospitalist of Clear Lake, PLLC
Neurological Eye Specialists of North Texas, PLLC
Neurological Specialists of McKinney, PLLC

 


 

Neurological Specialists, PLLC
Neurology Associates of Hendersonville, LLC
Neurology Associates of Kansas, LLC
Neuroscience Associates of Kansas City, LLC
Neurosurgical Specialists of El Paso, PLLC
Neurosurgical Specialists of North Texas, PLLC
Nevada Surgery Center of Southern Hills, L.P.
Nevada Surgicare of Southern Hills, LLC
New Port Richey Hospital, Inc.
New Port Richey Surgery Center, Ltd.
New Rose Holding Company, Inc.
Niceville Family Practice, LLC
North Augusta Imaging Management, LLC
North Augusta Imaging Services, LLC
North Augusta Rehab Health Center, LLC
North Austin Maternal Fetal Medicine, PLLC
North Austin Plastic Surgery Associates, PLLC
North Austin Surgery Center, L.P.
North Brandon Imaging, LLC
North Central Florida Health System, Inc.
North Charleston Diagnostic Imaging Center, LLC
North Florida Cancer Center Lake City, LLC
North Florida Cancer Center Live Oak, LLC
North Florida Cancer Center Tallahassee, LLC
North Florida Division I, Inc.
North Florida Division Practice, Inc.
North Florida GI Center GP, Inc.
North Florida Immediate Care Center, Inc.
North Florida Neurosurgery, LLC
North Florida Outpatient Imaging Center, Ltd.
North Florida Physician Services, Inc.
North Florida Physicians, LLC
North Florida Radiation Oncology, LLC
North Florida Regional Freestanding Surgery Center, L.P.
North Florida Regional Investments, Inc.
North Florida Regional Medical Center, Inc.
North Florida Regional Otolaryngology, LLC
North Florida Rehab Investments, LLC
North Florida Surgical Associates, LLC
North Georgia Primary Care Group, LLC
North Hills Cardiac Catheterization Center, L.P.
North Hills Catheterization Lab, LLC
North Hills Primary Care, PLLC
North Hills Surgicare, L.P.
North Miami Beach Surgery Center Limited Partnership
North Miami Beach Surgical Center, LLC
North Nashville Family Health Center, LLC
North Palm Beach County Surgery Center, LLC
North River Physician Network, LLC
North Shore Specialists of Texas, PLLC
North Tampa Imaging, LLC
North Texas Cardiology, PLLC
North Texas Division, Inc.
North Texas General, L.P.

 


 

North Texas Geriatrics, PLLC
North Texas Heart Surgery Center, PLLC
North Texas Internal Medicine Specialists, PLLC
North Texas Medical Center, Inc.
North Texas Neuro Stroke OP, PLLC
North Texas of Hope, PLLC
North Texas Pulmonary Critical Care, PLLC
North Texas Sports and Orthopedics Center, PLLC
North Texas Stroke Center, PLLC
North Transfer Center, LLC
Northeast Florida Cancer Services, LLC
Northeast PHO, Inc.
Northern Utah Healthcare Corporation
Northern Utah Healthcare Imaging Holdco, LLC
Northern Utah Imaging, LLC
Northern Virginia Community Hospital, LLC
Northern Virginia Hospital Corporation
Northlake Medical Center, LLC
Northlake MultiSpecialty Associates, LLC
Northlake Physician Practice Network, Inc.
Northlake Surgical Center, L.P.
Northlake Surgicare, Inc.
Northside MRI, Inc.
Northwest Fla. Home Health Agency, Inc.
Northwest Florida Cardiology, LLC
Northwest Florida Healthcare Systems, Inc.
Northwest Florida Multispecialty Physicians, LLC
Northwest Florida Primary Care, LLC
Northwest Medical Center, Inc.
Notami (Opelousas), Inc.
Notami Hospitals of Florida, Inc.
Notami Hospitals of Louisiana, Inc.
Notami Hospitals of Missouri, Inc.
Notami Hospitals, LLC
Notami, LLC
Notco, LLC
NPAS Affiliate, Inc.
NPAS CA, Inc.
NPAS, Inc.
NTGP, LLC
NTMC Ambulatory Surgery Center, L.P.
NTMC Management Company
NTMC Venture, Inc.
Nuclear Diagnosis, Inc.
Oak Hill Acquisition, Inc.
Oak Hill Family Care, LLC
Oak Hill Hospitalists, LLC
Oakwood Surgery Center, Ltd., LLP
OB Hospitalists of Woman’s Hospital, PLLC
OB/Gyn Associates of Denton, PLLC
OB/GYN of Brownsville, PLLC
Ocala Health Imaging Services, LLC
Ocala Health Primary Care, LLC
Ocala Health Surgical Group, LLC

 


 

Ocala Regional Outpatient Services, Inc.
Ocala Stereotactic Radiosurgery Partner, LLC
Ocala Stereotactic Radiosurgery, LLC
Occupational and Family Medicine of South Texas
Occupational Health Services of PRH, LLC
Ogden Imaging, LLC
Ogden Internal Medicine & Urology, LLC
Ogden Regional Health Plan, Inc.
Ogden Regional Medical Center Professional Billing, LLC
Ogden Senior Center, LLC
OHH Imaging Services, LLC
Okaloosa Hospital, Inc.
Okeechobee Hospital, Inc.
Oklahoma Outpatient Surgery Limited Partnership
Oklahoma Physicians — Medical Specialties LLC
Oklahoma Physicians — Obstetrics and Gynecology LLC
Oklahoma Physicians — Primary Care LLC
Oklahoma Physicians — Surgical Specialties LLC
Oklahoma Surgicare, Inc.
Oklahoma Transplant Physicians, LLC
Old Fort Village, LLC
Oncology Services of Corpus Christi Manager, LLC
Oncology Services of Corpus Christi, LLC
OneSource Health Network of South Florida, Inc.
OneSourceMed, Inc.
OPRMC-HBP, LLC
Orange Grove Surgical Associates, LLC
Orange Park Hospitalists, LLC
Orange Park Medical Center, Inc.
Orlando Outpatient Surgical Center, Inc.
Orlando Outpatient Surgical Center, Ltd.
Orlando Surgicare, Ltd.
Orthopaedic Specialty Associates, L.P.
Orthopaedic Sports Specialty Associates, Inc.
Orthopedic Hospital, Ltd.
Orthopedics Specialists, LLC
Osceola Neurological Associates, LLC
Osceola Physician Network, LLC
Osceola Regional Hospital, Inc.
Osceola Regional Hospitalists, LLC
Osceola Surgical Associates, LLC
Outpatient Cardiovascular Center of Central Florida, LLC
Outpatient GP, LLC
Outpatient LP, LLC
Outpatient Services — LAD, LLC
Outpatient Services Holdings, Inc.
Outpatient Surgical Services, Ltd.
Outpatient Women’s and Children’s Surgery Center, Ltd.
Overland Park Cardiovascular, Inc.
Overland Park Medical Specialists, LLC
Overland Park Orthopedics, LLC
Overland Park Surgical Specialties, LLC
Ozarks Medical Services, Inc.
Palm Beach EFL Imaging Center, LLC

 


 

Palm Beach General Surgery, LLC
Palm Beach Healthcare System, Inc.
Palm Beach Hospitalists Program, LLC
Palmer Medical Center, LLC
Palms West Gastroenterology, LLC
Palms West Hospital Limited Partnership
Palms West Pediatric Neurosurgery, Inc.
Palms West Surgery Center, Ltd.
Palmyra Brain & Spine Center, LLC
Palmyra Park GP, Inc.
Palmyra Park Hospital, Inc.
Palmyra Professional Fees, LLC
Paragon of Texas Health Properties, Inc.
Paragon Physicians Hospital Organization of South Texas, Inc.
Paragon SDS, Inc.
Paragon Surgery Centers of Texas, Inc.
Paragon WSC, Inc.
Paragyn Surgical, LLC
Parallon Business Solutions, LLC
Park Central Surgical Center, Ltd.
Park South Imaging Center, Ltd.
Parkersburg SJ Holdings, Inc.
Parkland Hospitalists Program, LLC
Parkland Oncology, LLC
Parkland Physician Services, Inc.
Parkridge East Specialty Associates, LLC
Parkridge Hospitalists, Inc.
Parkridge Medical Associates, LLC
Parkridge Medical Center, Inc.
Parkridge Professionals, Inc.
Parkside Surgery Center, Inc.
Parkway Cardiac Center, Ltd.
Parkway Hospital, Inc.
Parkway Surgery Services, Ltd.
Parthenon Insurance Company, Limited
Pasadena Bayshore Hospital, Inc.
Patients First Neonatology, LLC
Patients First Neurology, LLC
Pearland Partner, LLC
Pediatric Cardiac Intensivists of North Texas, PLLC
Pediatric Hospitalists of Conroe, PLLC
Pediatric Intensivists of El Paso, PLLC
Pediatric Specialists for CJW, LLC
Pediatric Specialists of Clear Lake, PLLC
Pediatric Specialty Clinic LLC
Pediatric Surgicare, Inc.
Pensacola Primary Care, Inc.
Physician Associates of Corporate Woods, LLC
Physicians Ambulatory Surgery Center, LLC
Pinellas Medical, LLC
Pinellas Surgery Center, Ltd.
Pinnacle Physician Network, LLC
Pioneer Medical, LLC
Plains Healthcare System, Inc.

 


 

Plano Ambulatory Surgery Associates, L.P.
Plano Heart Institute, L.P.
Plano Heart Management, LLC
Plano Urology, PLLC
Plantation General Hospital, L.P.
Plaza Primary Care, PLLC
Plaza Transplant Center, PLLC
PMM, Inc.
POH Holdings, LLC
Port St. Lucie Surgery Center, Ltd.
Portland Primary Care, LLC
Portland Surgical, LLC
Portsmouth Regional Ambulatory Surgery Center, LLC
Precise Imaging, Inc.
Preferred Hospitals, Inc.
Preferred Works WC, LLC
Premier Medical Management, Ltd.
PRH Oncology, LLC
Primary Care Acquisition, Inc.
Primary Care Medical Associates, Inc.
Primary Care of West End, LLC
Primary Care Plano, PLLC
Primary Care South, PLLC
Primary Care West, PLLC
Primary Health Group, Inc.
Primary Health Network of South Texas
Primary Medical Management, Inc.
Pulaski Community Hospital, Inc.
Pulaski Radiologists, LLC
Pulaski Urology, LLC
Pulmonary Medicine of Dickson, LLC
Putnam Hospital, Inc.
Quantum/Bellaire Imaging, Ltd.
Quick Care Centers, LLC
Quivira Internal Medicine, Inc.
Radford Family Medicine, LLC
Radiation Oncology Manager, LLC
Rapides Healthcare System, L.L.C.
Rapides Regional Physician Group Primary Care, LLC
Rapides Regional Physician Group Specialty Care, LLC
Rapides Regional Physician Group, LLC
Rapides Surgery Center, LLC
Raulerson Gastroenterology, LLC
Raulerson GYN, LLC
Raulerson Primary Care, LLC
Raymore Medical Group, LLC
RCH, LLC
Red Rock at Maryland Parkway, LLC
Red Rock at Smoke Ranch, LLC
Red Rock Holdco, LLC
Redmond Anesthesia Services, LLC
Redmond Hospital Services, LLC
Redmond Neurosurgery, LLC
Redmond Park Health Services, Inc.

 


 

Redmond Park Hospital, LLC
Redmond Physician Practice Company
Redmond Physician Practice Company II
Redmond Physician Practice Company III
Redmond Physician Practice XI, LLC
Regional Hospital Healthcare Partners, LLC
Research Cardiology Associates, LLC
Research Family Physicians, LLC
Research Internal Medicine, LLC
Research Multi-Specialty Physicians Group, LLC
Research Neurology Associates, LLC
Research Neuroscience Institute, LLC
Research Psychiatric — 1500, LLC
Reston Hospital Center, LLC
Reston Hospitalists, LLC
Reston Surgery Center, L.P.
Retreat Cardiology, LLC
Retreat Hospital, LLC
Retreat Internal Medicine, LLC
Retreat Surgical Associates, LLC
RHA MSO, LLC
Rhodes Limited-Liability Company
Richmond Imaging Employer Corp.
Richmond Multi-Specialty, LLC
Richmond Pediatric Surgeon’s, LLC
Rio Grande Healthcare MSO, Inc.
Rio Grande NP, Inc.
Rio Grande Regional Hospital, Inc.
Rio Grande Regional Investments, Inc.
Rio Grande Valley Cardiology, PLLC
Riverside Healthcare System, L.P.
Riverside Holdings, Inc.
Riverside Hospital, Inc.
Riverside Imaging, LLC
Riverside Surgicenter, L.P.
RMC — Pulmonary, LLC
RMC HBP, LLC
RMC Transplant Physicians, LLC
Roanoke Imaging, LLC
Roanoke Neurosurgery, LLC
Roanoke Surgery Center, L.P.
Roanoke Valley Gynecology, LLC
Rockbridge Primary Care, LLC
Rosewood Medical Center, Inc.
Round Rock Hospital, Inc.
Royal Oaks Surgery Center, L.P.
S. Faro, M.D. & C. Faro, M.D., PLLC
S.A. Medical Center, Inc.
Sahara Outpatient Surgery Center, Ltd.
Salem Hospitalists, LLC
Salem Surgery Center, Limited Partnership
Salt Lake City Surgicare, Inc.
Samaritan, LLC
San Antonio Division, Inc.

 


 

San Antonio Regional Hospital, Inc.
San Bernardino Imaging, LLC
San Joaquin Surgical Center, Inc.
San Jose Healthcare System, LP
San Jose Hospital, L.P.
San Jose Medical Center, LLC
San Jose Pathology Outreach, LLC
San Jose, LLC
Sante Fe Family Practitioners, PLLC
SAPN, LLC
Sarah Cannon Research Institute, LLC
Sarasota Doctors Hospital, Inc.
SCRI Global Services Limited
SCRI Holdings, LLC
SCRI Services, LLC
Selma Medical Center Hospital, Inc.
Shadow Mountain Family Medicine, LLC
Shelbyville Cardiology, LLC
Short Pump Imaging, LLC
Signal Mountain Primary Care, LLC
Sino American Healthcare Consulting, LLC
SJMC, LLC
Skyline Medical Group, LLC
Skyline Neuroscience Associates, LLC
Skyline Primary Care, LLC
Skyline Rehab Associates, LLC
Skyline Riverside Medical Group, LLC
SMCH, LLC
Smith Laboratories, Inc.
South Atlantic Division, Inc.
South Austin Surgery Center, Ltd.
South Bay Imaging, LLC
South Brandon Imaging, LLC
South Broward Practices, Inc.
South Carolina Imaging Employer Corp.
South Florida Division Practice, Inc.
South Texas Surgicare, Inc.
South Transfer Center, LLC
South Valley Hospital, L.P.
Southeast Surgical Solutions, LLC
Southern Hills Medical Center, LLC
Southern Hills Neurology Consultants, LLC
Southern Hills Orthopaedic Consultants, LLC
Southern Kentucky Medicine Associates, LLC
Southern Kentucky Neurosurgical Associates, LLC
Southern Kentucky Urology, LLC
Southern Texas Physicians’ Network
Southern Urology Associates, LLC
Southtown Women’s Clinic, LLC
Southwest Florida Health System, Inc.
Southwest Florida Regional Medical Center, Inc.
Southwest Medical Center Family Practice, LLC
Southwest Medical Center Multi-Specialty Group, LLC
Southwest Medical Center Surgical Group, LLC

 


 

Southwest Surgical Clinic, Inc.
Southwest Virginia Fertility Center, LLC
Southwest Virginia Orthopedics and Spine, LLC
Space Coast Surgical Center, Ltd.
Specialist Group at Centennial, LLC
Specialty Associates of West Houston, PLLC
Specialty Hospitalists at Ft. Walton Beach, LLC
Specialty Physicians of Northern Virginia, LLC
Specialty Surgicare of Las Vegas, LP
Spinal Disorder and Pain Treatment Institute, LLC
Spotsylvania Condominium Property, LLC
Spotsylvania Medical Center, Inc.
Spotsylvania Multi-Specialty Group, LLC
Spotsylvania Regional Surgery Center, LLC
Spring Branch Family Practitioners, PLLC
Spring Branch Medical Center, Inc.
Spring Hill Hospital, Inc.
Spring Hill Imaging, LLC
Spring Hill Physicians, LLC
Springview KY, LLC
SRS Acquisition, Inc.
St. David’s Healthcare Partnership, L.P., LLP
St. David’s Neurology, PLLC
St. David’s OB Hospitalist, PLLC
St. Lucie Hospitalists, LLC
St. Lucie Medical Center Hyperbarics, LLC
St. Lucie Medical Center Walk-In Clinic, LLC
St. Lucie Medical Specialists, LLC
St. Lucie West Primary Care, LLC
St. Mark’s Ambulatory Surgery Associates, L.P.
St. Mark’s Gynecology Oncology Care, LLC
St. Mark’s Investments, Inc.
St. Mark’s Lone Peak Hospital, Inc.
St. Mark’s Physicians, Inc.
St. Mark’s Professional Services, LLC
St. Mark’s South Jordan Family Practice, LLC
St. Martins Healthcare Limited
St. Martins Ltd.
St. Petersburg General Surgery, LLC
Stafford Imaging, LLC
Statland Medical Group, LLC
Stereotactic Radiosurgery Systems of Brandon, LLC
Sterling Primary Care Associates, LLC
Stonecrest Medical Group — Family Practice of Murfreesboro, LLC
Stonecrest Medical Group — SC Murfreesboro Family Practice, LLC
Stones River Hospital, LLC
STPN Manager, LLC
Suburban Medical Center at Hoffman Estates, Inc.
Sugar Land Surgery Center, Ltd.
Sullins Surgical Center, Inc.
Summit Convenient Care at Lebanon, LLC
Summit General Partner, Inc.
Summit Heart, LLC
Summit Medical Assoc., LLC

 


 

Summit Outpatient Diagnostic Center, LLC
Summit Research Solutions, LLC
Summit Surgery Center, L.P.
Summit Surgical Associates, LLC
Summit Walk-in Clinic, LLC
Sun Bay Medical Office Building, Inc.
Sun City Hospital, Inc.
Sun City Imaging, LLC
Sun Towers/Vista Hills Holding Co.
Sun-Med, LLC
Sunrise Anesthesia Services, LLC
Sunrise Flamingo Surgery Center, Limited Partnership
Sunrise Hospital and Medical Center, LLC
Sunrise Mountainview Hospital, Inc.
Sunrise Neuro Sciences, LLC
Sunrise Outpatient Services, Inc.
Sunrise Physician Services, LLC
Sunrise Trauma Services, LLC
Surgery Center of Atlantis, LLC
Surgery Center of Aventura, Ltd.
Surgery Center of Chattanooga, L.P.
Surgery Center of Ft. Pierce, Ltd
Surgery Center of Greenview, L.P.
Surgery Center of Independence, L.P.
Surgery Center of Overland Park, L.P.
Surgery Center of Port Charlotte, Ltd.
Surgery Center of Rome, L.P.
Surgical Associates of Southwest Virginia, LLC
Surgical Associates of the New River Valley, LLC
Surgical Center of Irving, Inc.
Surgical Facility of West Houston, L.P.
Surgical Park Center, Ltd.
Surgical Specialists of Clear Lake, PLLC
Surgical Specialists of Corpus Christi, PLLC
Surgicare America — Winter Park, Inc.
Surgicare Merger Company of Louisiana
Surgicare of Altamonte Springs, Inc.
Surgicare of Arlington, LLC
Surgicare of Ashburn, LLC
Surgicare of Augusta, Inc.
Surgicare of Aventura, LLC
Surgicare of Bayonet Point, Inc.
Surgicare of Bountiful, LLC
Surgicare of Brandon, Inc.
Surgicare of Buckhead, LLC
Surgicare of Central Florida, Inc.
Surgicare of Central San Antonio, Inc.
Surgicare of Chattanooga, LLC
Surgicare of Chippenham, LLC
Surgicare of Countryside, Inc.
Surgicare of Denton, Inc.
Surgicare of Dickson, LLC
Surgicare of Eastside, LLC
Surgicare of Evans, Inc.

 


 

Surgicare of Fairfax, Inc.
Surgicare of Florida, Inc.
Surgicare of Flower Mound, Inc.
Surgicare of Fort Worth Co-GP, LLC
Surgicare of Fort Worth, Inc.
Surgicare of Ft. Pierce, Inc.
Surgicare of Good Samaritan, LLC
Surgicare of Gramercy, Inc.
Surgicare of Greenview, Inc.
Surgicare of Hanover, Inc.
Surgicare of Houston Women’s, Inc.
Surgicare of Indianapolis, Inc.
Surgicare of Kansas City, LLC
Surgicare of Kingwood, LLC
Surgicare of Kissimmee, Inc.
Surgicare of Lakeview, Inc.
Surgicare of Las Vegas, Inc.
Surgicare of Laurel Grove, LLC
Surgicare of Lorain County, Inc.
Surgicare of Los Gatos, Inc.
Surgicare of Los Robles, LLC
Surgicare of Madison, Inc.
Surgicare of Manatee, Inc.
Surgicare of McKinney, Inc.
Surgicare of Medical City Dallas, LLC
Surgicare of Merritt Island, Inc.
Surgicare of Miami Lakes, LLC
Surgicare of Mountain West, LLC
Surgicare of Natchez, LLC
Surgicare of New Port Richey, Inc.
Surgicare of North Austin, LLC
Surgicare of North San Antonio, Inc.
Surgicare of Northeast San Antonio, Inc.
Surgicare of Northwest Oklahoma Limited Partnership
Surgicare of Orange Park, Inc.
Surgicare of Orange Park, Ltd.
Surgicare of Orlando, Inc.
Surgicare of Overland Park, LLC
Surgicare of Palms West, LLC
Surgicare of Pasadena, Inc.
Surgicare of Pinellas, Inc.
Surgicare of Plano, Inc.
Surgicare of Plantation, Inc.
Surgicare of Port Charlotte, LLC
Surgicare of Port St. Lucie, Inc.
Surgicare of Reston, Inc.
Surgicare of Riverside, LLC
Surgicare of Roanoke, LLC
Surgicare of Rome, Inc.
Surgicare of Round Rock, Inc.
Surgicare of Royal Oaks, LLC
Surgicare of Salem, LLC
Surgicare of South Austin, Inc.
Surgicare of Southern Hills, Inc.

 


 

Surgicare of Southwest Houston, LLC
Surgicare of Spotsylvania, LLC
Surgicare of St. Andrews, Inc.
Surgicare of St. Andrews, Ltd.
Surgicare of Stuart, Inc.
Surgicare of Sugar Land, Inc.
Surgicare of Tallahassee, Inc.
Surgicare of Terre Haute, LLC
Surgicare of Travis Center, Inc.
Surgicare of Tuckahoe, Inc.
Surgicare of Tulsa, Inc.
Surgicare of Utah, LLC
Surgicare of Wasatch Front, LLC
Surgicare of West Hills, Inc.
Surgicare of Westlake, Inc.
Surgicare of Wichita, Inc.
Surgicare of Wichita, LLC
Surgicare of Wilson County, LLC
Surgicare Outpatient Center of Baton Rouge, Inc.
Surgicare Outpatient Center of Jackson, Inc.
Surgicenter of East Jefferson, Inc.
Surgicenter of Johnson County, Ltd.
Surgicenter of Kansas City, L.L.C.
Surgico, LLC
SWMC, Inc.
Sycamore Shoals Hospital, Inc.
Tallahassee Community Network, Inc.
Tallahassee Medical Center, Inc.
Tallahassee Orthopaedic Surgery Partners, Ltd.
Tampa Bay Health System, Inc.
Tampa Surgi-Centre, Inc.
Tarrant County Surgery Center, L.P.
TBHI Outpatient Services, LLC
TCMC Madison-Portland, Inc.
Teays Valley Health Services, LLC
Tennessee Healthcare Management, Inc.
Tennessee Valley Outpatient Diagnostic Center, LLC
Terre Haute Heart Lung Vascular Associates, LLC
Terre Haute Hospital GP, Inc.
Terre Haute Hospital Holdings, Inc.
Terre Haute MOB, L.P.
Terre Haute Obstetrics and Gynecology, LLC
Terre Haute Regional Hospital, L.P.
Texas Psychiatric Company, Inc.
The Harley Street Cancer Clinic Limited
The Medical Group of Kansas City, LLC
The Neurohealth Sciences Center, LLC
The Regional Health System of Acadiana, LLC
The Wasatch Endoscopy Center, Ltd.
The West Texas Division of Columbia, Inc.
THN Physicians Association, Inc.
Timpanogos Pain Specialists, LLC
Timpanogos Professional Services, LLC
Timpanogos Regional Medical Services, Inc.

 


 

Total Imaging — Hudson, LLC
Total Imaging — North St. Petersburg, LLC
Total Imaging — Parsons, LLC
Town Plaza Family Practice, LLC
Travel Medicine and Infections, LLC
Travis Surgery Center, L.P.
Tri Cities Health Services Corp.
Tri-City Multi-Specialty, LLC
Tri-County Community Hospital, Inc.
Tri-County Surgical Specialists, LLC
Trident Ambulatory Surgery Center, L.P.
Trident Behavioral Health Services, LLC
Trident Eye Surgery Center, L.P.
Trident Medical Center, LLC
Trident Medical Services, Inc.
Trident Neonatology Services, LLC
TriStar Cardiovascular Surgery, LLC
TriStar Health System, Inc.
TriStar Medical Group — Southern Hills Cardiology, LLC
TriStar OB/GYN, LLC
Tuckahoe Surgery Center, LP
TUHC Anesthesiology Group, LLC
TUHC Hospitalist Group, LLC
TUHC Physician Group, LLC
TUHC Primary Care and Pediatrics Group, LLC
TUHC Radiology Group, LLC
Tulane Clinic, LLC
Tulane Professionals Management, L.L.C.
Ultra Imaging Management Services, LLC
Ultra Imaging of Tampa, LLC
University Healthcare Specialists, LLC
University Healthcare System, L.C.
University Hospital, Ltd.
Uptown Primary Care Associates, LLC
Urological Specialists of Arlington, PLLC
Urology Center of North Georgia, LLC
Urology Services of El Paso, PLLC
Urology Specialists of Richmond, LLC
Utah Imaging GP, LLC
Utah Medco, LLC
Utah Surgery Center, L.P.
Value Health Holdings, Inc.
Value Health Management, Inc.
Vascular and Endovascular Specialists, LLC
Venture Ambulatory Surgery Center, LLC
Venture Medical Management, LLC
VH Holdco, Inc.
VH Holdings, Inc.
VHSC Plantation, LLC
Vicksburg Diagnostic Services, L.P.
Village Oaks Medical Center, Inc.
VIP, Inc.
Virginia Gynecologic Oncology, LLC
Virginia Hematology & Oncology Associates, Inc.

 


 

Virginia Hospitalists, Inc.
Virginia Psychiatric Company, Inc.
W & C Hospital, Inc.
Wabash Cardiology Associates, LLC
Wabash Valley Hospitalists, LLC
Wake Psychiatric Hospital, Inc.
Walterboro Community Hospital, Inc.
Wasatch Front Surgery Center, LLC
Washington Holdco, LLC
Wesley Cath Lab, LLC
Wesley Manager, LLC
Wesley Medical Center, LLC
Wesley Physician Services, LLC
Wesley Physicians — Anesthesiologist, LLC
Wesley Physicians — Cardiovascular, LLC
Wesley Physicians — Medical Specialties LLC
Wesley Physicians — Obstetrics and Gynecology LLC
Wesley Physicians — Primary Care LLC
Wesley Physicians — Surgical Specialties LLC
West Boynton Beach Open Imaging Center, LLC
West Creek Ambulatory Surgery Center, LLC
West Creek Medical Center, Inc.
West Florida Behavioral Health, Inc.
West Florida Cardiology Network, LLC
West Florida Division, Inc.
West Florida Gulf Coast Primary Care, LLC
West Florida HealthWorks, LLC
West Florida Imaging Services, LLC
West Florida Internal Medicine, LLC
West Florida PET Services, LLC
West Florida Physician Network, LLC
West Florida Regional Medical Center, Inc.
West Florida Specialty Physicians, LLC
West Florida Trauma Network, LLC
West Hills Hospital
West Hills Surgical Center, Ltd.
West Houston ASC, Inc.
West Houston Healthcare Group, Ltd.
West Houston Internal Specialists, PLLC
West Houston Outpatient Medical Facility, Inc.
West Houston Surgicare, Inc.
West Houston, LLC
West Jacksonville Medical Center, Inc.
West Jordan Hospital Corporation
West Los Angeles Physicians’ Hospital, Inc.
West LPN Fort Worth Oncology, PLLC
West LPN, Inc.
West McKinney Imaging Services, LLC
West Paces Services, Inc.
West Park Surgery Center, L.P.
West Valley Imaging, LLC
West Valley Medical Center, Inc.
West Valley Medical Group, LLC
West Valley Professional Fee Billing, LLC

 


 

West Valley Therapy Services, LLC
Westbury Hospital, Inc.
Western Kentucky Gastroenterology, LLC
Western Plains Capital, Inc.
Westlake Surgicare, L.P.
Westminster Community Hospital
Westside Surgery Center, Ltd.
WGH, Inc.
WHG Medical, LLC
WHMC, Inc.
Wildwood Medical Center, Inc.
Wilson County Outpatient Surgery Center, L.P.
WJHC, LLC
Woman’s Health Group, PLLC
Woman’s Hospital Merger, LLC
Woman’s Hospital of Texas, Incorporated
Women Practitioners of Houston, PLLC
Women Specialists of Bayshore, PLLC
Women Specialists of Mainland, PLLC
Women’s & Children’s Center, LLC
Women’s & Children’s Pediatric Hematology/Oncology Center, LLC
Women’s & Children’s Pediatric Orthopedic Center, LLC
Women’s & Children’s Pulmonology Clinic, LLC
Women’s and Children’s Professional Management, L.L.C.
Women’s Center at Brookside, LLC
Women’s Health Center of Central Florida, LLC
Women’s Health Center of SWVA, LLC
Women’s Hospital Indianapolis GP, Inc.
Women’s Hospital Indianapolis, L.P.
Women’s Multi-Specialty Group, LLC
Women’sLink Center of Wylie — A Medical Center of Plano Facility, LLC

 


 

ANNEX C-2
Significant Subsidiaries of the Company
HealthTrust, Inc. — The Hospital Company
Galen Holdco, LLC
Hospital Corp., LLC
HTI Hospital Holdings, Inc.
Healthserv Acquisition, LLC

 


 

ANNEX D
Real Property
          The mortgaged property shall include the real property upon which the Company and its subsidiaries shall have granted liens in favor of Bank of America, N.A., in its capacity as collateral agent for the holders of the obligations under the Credit Facilities (excluding the holders of obligations under the asset-based revolving credit facility) (collectively, the “ Mortgaged Properties ”).

 


 

EXHIBIT A
Form of Opinion of Simpson Thacher & Bartlett LLP

 


 

EXHIBIT B
Form of Negative Assurance Letter of Simpson Thacher & Bartlett LLP

 


 

EXHIBIT C
Form of Opinion of Bass, Berry & Sims PLC

 

Exhibit 4.2
EXECUTION COPY
 
HCA INC.,
as Issuer,
HCA HOLDINGS, INC.,
as Parent Guarantor,
LAW DEBENTURE TRUST COMPANY OF NEW YORK,
as Trustee,
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Paying Agent, Registrar and Transfer Agent
7.50% SENIOR NOTES DUE 2022
SUPPLEMENTAL INDENTURE NO. 1
Dated as of August 1, 2011
To BASE INDENTURE
Dated as of August 1, 2011
 

 


 

CROSS-REFERENCE TABLE*
     
Trust Indenture Act Section   Indenture Section
310 (a)(1)
  7.10
(a)(2)
  7.10
(a)(3)
  N.A.
(a)(4)
  N.A.
(a)(5)
  7.10
(b)
  7.10
(c)
  N.A.
311 (a)
  7.11
(b)
  7.11
(c)
  N.A.
312 (a)
  2.05
(b)
  11.03
(c)
  11.03
313 (a)
  7.06
(b)(1)
  N.A.
(b)(2)
  7.06; 7.07
(c)
  7.06; 11.02
(d)
  7.06; 11.02
314 (a)
  11.02; 11.05
(b)
  N.A.
(c)(1)
  11.04
(c)(2)
  11.04
(c)(3)
  N.A.
(d)
  N.A.
(e)
  11.05
(f)
  N.A.
315 (a)
  7.01
(b)
  7.05
(c)
  7.01
(d)
  7.01
(e)
  6.14
316 (a)(last sentence)
  2.09
(a)(1)(A)
  6.05
(a)(1)(B)
  6.04
(a)(2)
  N.A.
(b)
  6.07
(c)
  2.12; 9.04
317 (a)(1)
  6.08
(a)(2)
  6.12
(b)
  2.04
318 (a)
  11.01
(b)
  N.A.
(c)
  11.01
 
N.A. means not applicable.
     
*   This Cross-Reference Table is not part of this First Supplemental Indenture.

 


 

TABLE OF CONTENTS
         
    Page
ARTICLE 1
 
       
DEFINITIONS AND INCORPORATION BY REFERENCE
 
       
Section 1.01 Definitions
    1  
Section 1.02 Other Definitions
    11  
Section 1.03 Incorporation by Reference of Trust Indenture Act
    12  
Section 1.04 Rules of Construction
    12  
Section 1.05 Acts of Holders
    13  
 
       
ARTICLE 2
 
       
THE NOTES
 
       
Section 2.01 Form and Dating; Terms
    14  
Section 2.02 Execution and Authentication
    15  
Section 2.03 Registrar and Paying Agent
    16  
Section 2.04 Paying Agent to Hold Money in Trust
    16  
Section 2.05 Holder Lists
    16  
Section 2.06 Transfer and Exchange
    17  
Section 2.07 Replacement Notes
    20  
Section 2.08 Outstanding Notes
    20  
Section 2.09 Treasury Notes
    21  
Section 2.10 Temporary Notes
    21  
Section 2.11 Cancellation
    21  
Section 2.12 Defaulted Interest
    21  
Section 2.13 CUSIP and ISIN Numbers
    22  
 
       
ARTICLE 3
 
       
REDEMPTION
 
       
Section 3.01 Notices to Trustee
    22  
Section 3.02 Selection of Notes to Be Redeemed or Purchased
    22  
Section 3.03 Notice of Redemption
    23  
Section 3.04 Effect of Notice of Redemption
    24  
Section 3.05 Deposit of Redemption or Purchase Price
    24  
Section 3.06 Notes Redeemed or Purchased in Part
    24  
Section 3.07 Optional Redemption
    25  
Section 3.08 Mandatory Redemption
    25  
 
       
ARTICLE 4
 
       
COVENANTS
 
       
Section 4.01 Payment of Notes
    25  

-i-


 

         
    Page
Section 4.02 Maintenance of Office or Agency
    26  
Section 4.03 Compliance Certificate
    26  
Section 4.04 Taxes
    26  
Section 4.05 Stay, Extension and Usury Laws
    27  
Section 4.06 Limitations on Mortgages
    27  
Section 4.07 Limitations on Sale and Lease-Back
    28  
Section 4.08 Exempted Transactions
    28  
Section 4.09 Corporate Existence
    28  
Section 4.10 Offer to Repurchase upon Change of Control
    28  
Section 4.11 Discharge and Suspension of Covenants
    30  
 
       
ARTICLE 5
 
       
SUCCESSORS
 
       
Section 5.01 Merger, Consolidation or Sale of All or Substantially All Assets
    31  
Section 5.02 Successor Corporation Substituted
    32  
ARTICLE 6
 
       
DEFAULTS AND REMEDIES
 
       
Section 6.01 Events of Default
    32  
Section 6.02 Acceleration
    33  
Section 6.03 Other Remedies
    34  
Section 6.04 Waiver of Past Defaults
    34  
Section 6.05 Control by Majority
    34  
Section 6.06 Limitation on Suits
    34  
Section 6.07 Rights of Holders of Notes to Receive Payment
    35  
Section 6.08 Collection Suit by Trustee
    35  
Section 6.09 Restoration of Rights and Remedies
    35  
Section 6.10 Rights and Remedies Cumulative
    35  
Section 6.11 Delay or Omission Not Waiver
    35  
Section 6.12 Trustee May File Proofs of Claim
    36  
Section 6.13 Priorities
    36  
Section 6.14 Undertaking for Costs
    37  
 
       
ARTICLE 7
 
       
TRUSTEE
 
       
Section 7.01 Duties of Trustee
    37  
Section 7.02 Rights of Trustee
    38  
Section 7.03 Individual Rights of Trustee
    39  
Section 7.04 Trustee’s Disclaimer
    39  
Section 7.05 Notice of Defaults
    39  
Section 7.06 Reports by Trustee to Holders of the Notes
    39  
Section 7.07 Compensation and Indemnity
    40  
Section 7.08 Replacement of Trustee
    40  
Section 7.09 Successor Trustee by Merger, etc
    41  
Section 7.10 Eligibility; Disqualification
    42  

-ii-


 

         
    Page
Section 7.11 Preferential Collection of Claims Against Issuer
    42  
 
       
ARTICLE 8
 
       
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
 
       
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance
    42  
Section 8.02 Legal Defeasance and Discharge
    42  
Section 8.03 Covenant Defeasance
    43  
Section 8.04 Conditions to Legal or Covenant Defeasance
    43  
Section 8.05 Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions
    44  
Section 8.06 Repayment to Issuer
    45  
Section 8.07 Reinstatement
    45  
 
       
ARTICLE 9
 
       
AMENDMENT, SUPPLEMENT AND WAIVER
 
       
Section 9.01 Without Consent of Holders of Notes
    45  
Section 9.02 With Consent of Holders of Notes
    47  
Section 9.03 Compliance with Trust Indenture Act
    48  
Section 9.04 Revocation and Effect of Consents
    48  
Section 9.05 Notation on or Exchange of Notes
    48  
Section 9.06 Trustee to Sign Amendments, etc
    49  
Section 9.07 Payment for Consent
    49  
 
       
ARTICLE 10
 
       
PARENT GUARANTEE
 
       
Section 10.01 Guarantee
    49  
 
       
ARTICLE 11
 
       
SATISFACTION AND DISCHARGE
 
       
Section 11.01 Satisfaction and Discharge
    51  
Section 11.02 Application of Trust Money
    52  
 
       
ARTICLE 12
 
       
MISCELLANEOUS
 
       
Section 12.01 Trust Indenture Act Controls
    53  
Section 12.02 Notices
    53  
Section 12.03 Communication by Holders of Notes with Other Holders of Notes
    54  
Section 12.04 Certificate and Opinion as to Conditions Precedent
    54  
Section 12.05 Statements Required in Certificate or Opinion
    55  
Section 12.06 Rules by Trustee and Agents
    55  
Section 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders
  55

-iii-


 

         
    Page
Section 12.08 Governing Law
    55  
Section 12.09 Waiver of Jury Trial
    55  
Section 12.10 Force Majeure
    56  
Section 12.11 No Adverse Interpretation of Other Agreements
    56  
Section 12.12 Successors
    56  
Section 12.13 Severability
    56  
Section 12.14 Counterpart Originals
    56  
Section 12.15 Table of Contents, Headings, etc
    56  
Section 12.16 Qualification of First Supplemental Indenture
    56  
Section 12.17 USA Patriot Act
    57  
         
EXHIBITS
       
         
Exhibit A            Form of Note
       

-iv-


 

          SUPPLEMENTAL INDENTURE NO. 1 (the “ First Supplemental Indenture ”), dated as of August 1, 2011, among HCA Inc., a Delaware corporation (the “ Issuer ”), HCA Holdings, Inc. (the “ Parent Guarantor ”), Law Debenture Trust Company of New York, as Trustee, and Deutsche Bank Trust Company Americas, as Paying Agent, Registrar and Transfer Agent.
W I T N E S S E T H
          WHEREAS, the Issuer, the Parent Guarantor and the Trustee have executed and delivered a base indenture, dated as of August 1, 2011 (as amended, supplemented or otherwise modified from time to time, the “ Base Indenture ”) to provide for the future issuance of the Issuer’s senior debt securities to be issued from time to time in one or more series; and
          WHEREAS, the Issuer has duly authorized the creation of an issue of $2,000,000,000 aggregate principal amount of 7.50% Senior Notes due 2022 (the “ Initial Notes ”), which shall be guaranteed by the Parent Guarantor (the “ Guarantee ”), which has been duly authenticated by the Parent Guarantor; and in connection therewith, each of the Issuer and the Parent Guarantor has duly authorized the execution and delivery of this First Supplemental Indenture to set forth the terms and provisions of the Notes as contemplated by the Base Indenture. This First Supplemental Indenture restates in their entirety the terms of the Base Indenture as supplemented by this First Supplemental Indenture and does not incorporate the terms of the Base Indenture. The changes, modifications and supplements to the Base Indenture affected by this First Supplemental Indenture shall be applicable only with respect to, and shall only govern the terms of, the Notes, except as otherwise provided herein, and shall not apply to any other securities that may be issued under the Base Indenture unless a supplemental indenture with respect to such other securities specifically incorporates such changes, modifications and supplements.
          NOW, THEREFORE, the Issuer, the Parent Guarantor, the Trustee and the Paying Agent, Registrar and Transfer Agent agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the Notes.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions .
          “ Additional Notes ” means additional Notes (other than the Initial Notes) issued from time to time under this First Supplemental Indenture in accordance with Section 2.01.
          “ 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 purposes of this definition, “ control ” (including, with correlative meanings, the terms “ controlling ,” “ controlled by ” and “ under common control with ”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
          “ Affiliated Entity ” means any Person which (i) does not transact any substantial portion of its business or regularly maintain any substantial portion of its operating assets within the continental limits of the United States of America, (ii) is principally engaged in the business of financing (including, without limitation, the purchase, holding, sale or discounting of or lending upon any notes, contracts, leases or other forms of obligations) the sale or lease of merchandise, equipment or services (1) by the Issuer , (2) by a Subsidiary (whether such sales or leases have been made before or after the date which

 


 

such Person became a Subsidiary), (3) by another Affiliated Entity or (4) by any Person prior to the time which substantially all its assets have heretofore been or shall hereafter have been acquired by the Issuer , (iii) is principally engaged in the business of owning, leasing, dealing in or developing real property, (iv) is principally engaged in the holding of stock in, and/or the financing of operations of, an Affiliated Entity, or (v) is principally engaged in the business of (1) offering health benefit products or (2) insuring against professional and general liability risks of the Issuer.
          “ Agent ” means any Registrar or Paying Agent.
          “ Bankruptcy Code ” means Title 11 of the United States Code, as amended.
          “ Bankruptcy Law ” means the Bankruptcy Code and any similar federal, state or foreign law for the relief of debtors.
          “ Business Day ” means each day which is not a Legal Holiday.
          “ Capital Stock ” means:
     (1) in the case of a corporation, corporate stock;
     (2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;
     (3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and
     (4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.
          “ Capitalized Lease Obligation ” means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) in accordance with GAAP.
          “ Cash Equivalents ” means:
     (1) United States dollars;
     (2) euros or any national currency of any participating member state of the EMU or such local currencies held by the Issuer and its Subsidiaries from time to time in the ordinary course of business;
     (3) securities issued or directly and fully and unconditionally guaranteed or insured by the U.S. government (or any agency or instrumentality thereof the securities of which are unconditionally guaranteed as a full faith and credit obligation of the U.S. government) with maturities of 24 months or less from the date of acquisition;
     (4) certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case with any commercial bank having capital

-2-


 

and surplus of not less than $500.0 million in the case of U.S. banks and $100.0 million (or the U.S. dollar equivalent as of the date of determination) in the case of non-U.S. banks;
     (5) repurchase obligations for underlying securities of the types described in clauses (3) and (4) entered into with any financial institution meeting the qualifications specified in clause (4) above;
     (6) commercial paper rated at least P-1 by Moody’s or at least A-1 by S&P and in each case maturing within 24 months after the date of creation thereof;
     (7) marketable short-term money market and similar securities having a rating of at least P-2 or A-2 from either Moody’s or S&P, respectively (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another Rating Agency), and in each case maturing within 24 months after the date of creation thereof;
     (8) investment funds investing 95% of their assets in securities of the types described in clauses (1) through (7) above;
     (9) readily marketable direct obligations issued by any state, commonwealth or territory of the United States or any political subdivision or taxing authority thereof having an Investment Grade Rating from either Moody’s or S&P with maturities of 24 months or less from the date of acquisition;
     (10) Indebtedness or Preferred Stock issued by Persons with a rating of A or higher from S&P or A2 or higher from Moody’s with maturities of 24 months or less from the date of acquisition; and
     (11) Investments with average maturities of 24 months or less from the date of acquisition in money market funds rated AAA- (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s.
          Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clauses (1) and (2) above; provided that such amounts are converted into any currency listed in clauses (1) and (2) as promptly as practicable and in any event within ten Business Days following the receipt of such amounts.
          “ Change of Control ” means the occurrence of any of the following:
     (1) the sale, lease or transfer, in one or a series of related transactions, of all or substantially all of the assets of the Issuer and its Subsidiaries, taken as a whole, to any Person other than a Permitted Holder; or
     (2) the Issuer becomes aware (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) of the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act, or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other than the Permitted Holders, in a single transaction or in a related series of transactions, by way of merger, consolidation or other business combination or purchase of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision) of 50% or more of the total voting power of the Voting Stock of the Issuer or any of its direct or indirect parent

-3-


 

companies holding directly or indirectly 100% of the total voting power of the Voting Stock of the Issuer.
          “ Code ” means the Internal Revenue Code of 1986, as amended, or any successor thereto.
          “ Comparable Treasury Issue ” means, the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term (“ Remaining Life ”) of a Note being redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the Remaining Life of such Notes.
          “ Comparable Treasury Price ” means, with respect to any Redemption Date for any Note: (1) the average of the Reference Treasury Dealer Quotations for that Redemption Date, after excluding the highest and lowest of four such Reference Treasury Dealer Quotations; or (2) if the Independent Investment Banker is given fewer than four Reference Treasury Dealer Quotations, the average of all quotations obtained by the Independent Investment Banker.
          “ Consolidated Net Tangible Assets ” means, with respect to any Person, the total amount of assets (less applicable reserves and other properly deductible items) after deducting therefrom (a) all current liabilities as disclosed on the consolidated balance sheet of such Person (excluding any thereof which are by their terms extendible or renewable at the option of the obligor thereon to a time more than 12 months after the time as of which the amount thereof is being computed and further excluding any deferred income taxes that are included in current liabilities) and (b) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangible assets, all as set forth on the most recent consolidated balance sheet of the Issuer and computed in accordance with generally accepted accounting principles.
          “ Contingent Obligations ” means, with respect to any Person, any obligation of such Person guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (“ primary obligations ”) of any other Person (the “ primary obligor ”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent,
     (1) to purchase any such primary obligation or any property constituting direct or indirect security therefor,
     (2) to advance or supply funds:
     (a) for the purchase or payment of any such primary obligation, or
     (b) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, or
     (3) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof.
          “ Corporate Trust Office of the Trustee ” shall be at the address of the Trustee specified in Section 12.02 hereof or such other address as to which the Trustee may give notice to the Holders and the Issuer.

-4-


 

          “ Custodian ” means the Paying Agent and Registrar, as custodian with respect to the Notes in global form, or any successor entity thereto.
          “ 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.
          “ Definitive Note ” means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit A hereto except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.
          “ Depositary ” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03 hereof as the Depositary with respect to the Notes, and any and all successors thereto appointed as Depositary hereunder and having become such pursuant to the applicable provision of this First Supplemental Indenture.
          “ EMU ” means the economic and monetary union as contemplated in the Treaty on European Union.
          “ Equity Interests ” means Capital Stock and all warrants, options or other rights to acquire Capital Stock, but excluding any debt security that is convertible into, or exchangeable for, Capital Stock.
          “ euro ” means the single currency of participating member states of the EMU.
          “ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.
          “ First Supplemental Indenture ” means this First Supplemental Indenture, as amended or supplemented from time to time.
          “ Frist Entities ” means Dr. Thomas F. Frist, Jr., any Person controlled by Dr. Frist and any charitable organization selected by Dr. Frist that holds Equity Interests of the Issuer on November 17, 2006.
          “ Funded Debt ” means any Indebtedness for money borrowed, created, issued, incurred, assumed or guaranteed that would, in accordance with generally accepted accounting principles, be classified as long-term debt, but in any event including all Indebtedness for money borrowed, whether secured or unsecured, maturing more than one year, or extendible at the option of the obligor to a date more than one year, after the date of determination thereof (excluding any amount thereof included in current liabilities).
          “ GAAP ” means generally accepted accounting principles in the United States which were in effect on November 17, 2006.
          “ Global Note Legend ” means the legend set forth in Section 2.06(f) hereof, which is required to be placed on all Global Notes issued under this First Supplemental Indenture.
          “ Global Notes ” means the Global Notes deposited with or on behalf of and registered in the name of the Depositary or its nominee, substantially in the form of Exhibit A hereto and that bears the Global Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached thereto, issued in accordance with Section 2.01, 2.06(b) or 2.06(d) hereof.

-5-


 

          “ Government Securities ” means securities that are:
     (1) direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged; or
     (2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America,
which, in either case, are not callable or redeemable at the option of the issuers thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such Government Securities or a specific payment of principal of or interest on any such Government Securities held by such custodian for the account of the holder of such 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 Securities or the specific payment of principal of or interest on the Government Securities evidenced by such depository receipt.
          “ guarantee ” means a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner (including letters of credit and reimbursement agreements in respect thereof), of all or any part of any Indebtedness or other obligations.
          “ Guarantee ” means the guarantee by the Parent Guarantor of the Parent Guaranteed Obligations under this First Supplemental Indenture.
          “ Hedging Obligations ” means, with respect to any Person, the obligations of such Person under any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, commodity swap agreement, commodity cap agreement, commodity collar agreement, foreign exchange contract, currency swap agreement or similar agreement providing for the transfer or mitigation of interest rate or currency risks either generally or under specific contingencies.
          “ Holder ” means the Person in whose name a Note is registered on the Registrar’s books.
          “ Indebtedness ” means, with respect to any Person, without duplication:
     (1) any indebtedness (including principal and premium) of such Person, whether or not contingent:
     (a) in respect of borrowed money;
     (b) evidenced by bonds, notes, debentures or similar instruments or letters of credit or bankers’ acceptances (or, without duplication, reimbursement agreements in respect thereof);
     (c) representing the balance deferred and unpaid of the purchase price of any property (including Capitalized Lease Obligations), except (i) any such balance that constitutes a trade payable or similar obligation to a trade creditor, in each case accrued in the ordinary course of business and (ii) any earn-out obligations until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP; or

-6-


 

     (d) representing any Hedging Obligations;
if and to the extent that any of the foregoing Indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP;
     (2) to the extent not otherwise included, any obligation by such Person to be liable for, or to pay, as obligor, guarantor or otherwise on, the obligations of the type referred to in clause (1) of a third Person (whether or not such items would appear upon the balance sheet of the such obligor or guarantor), other than by endorsement of negotiable instruments for collection in the ordinary course of business; and
     (3) to the extent not otherwise included, the obligations of the type referred to in clause (1) of a third Person secured by a Lien on any asset owned by such first Person, whether or not such Indebtedness is assumed by such first Person;
provided , however , that notwithstanding the foregoing, Indebtedness shall be deemed not to include (a) Contingent Obligations incurred in the ordinary course of business or (b) obligations under or in respect of Receivables Facilities.
          “ Independent Investment Banker ” means one of the Reference Treasury Dealers, to be appointed by the Issuer.
          “ Indirect Participant ” means a Person who holds a beneficial interest in a Global Note through a Participant.
          “ Initial Notes ” has the meaning set forth in the recitals hereto.
          “ Interest Payment Date ” means February 15 and August 15 of each year to stated maturity.
          “ Investment Grade Rating ” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or an equivalent rating by any other Rating Agency.
          “ Investments ” means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of loans (including guarantees), advances or capital contributions (excluding accounts receivable, trade credit, advances to customers, commissions, travel and similar advances to officers and employees, in each case made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities issued by any other Person and investments that are required by GAAP to be classified on the balance sheet (excluding the footnotes) of the Issuer in the same manner as the other investments included in this definition to the extent such transactions involve the transfer of cash or other property.
          “ Investors ” means Bain Capital Partners, LLC, Kohlberg Kravis Roberts & Co. L.P., BAML Capital Partners, the successor organization to both Merrill Lynch Global Private Equity, Inc. and Merrill Lynch Global Partners, Inc., and each of their respective Affiliates but not including, however, any portfolio companies of any of the foregoing.
          “ Issue Date ” means August 1, 2011.

-7-


 

          “ Issuer Order ” means a written request or order signed on behalf of the Issuer by an Officer of the Issuer, who must be the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of the Issuer, and delivered to the Trustee.
          “ Legal Holiday ” means a Saturday, a Sunday or a day on which commercial banking institutions are not required to be open in the State of New York.
          “ 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.
          “ Maturity Date ” means February 15, 2022, the date the Notes will mature.
          “ Moody’s ” means Moody’s Investors Service, Inc. and any successor to its rating agency business.
          “ Mortgages ” means mortgages, liens, pledges or other encumbrances.
          “ Notes ” means the Initial Notes and more particularly means any Note authenticated and delivered under this First Supplemental Indenture. For all purposes of this First Supplemental Indenture, the term “Notes” shall also include any Additional Notes that may be issued under a supplemental indenture.
          “ Obligations ” means any principal, interest (including any interest accruing subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable state, federal or foreign law), premium, penalties, fees, indemnifications, reimbursements (including reimbursement obligations with respect to letters of credit and bankers’ acceptances), damages and other liabilities, and guarantees of payment of such principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable under the documentation governing any Indebtedness.
          “ Officer ” means the Chairman of the Board, the Chief Executive Officer, the President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer or the Secretary of the Issuer, the Parent Guarantor or a Subsidiary, as applicable.
          “ Officer’s Certificate ” means a certificate signed on behalf of the Issuer by an Officer of the Issuer, on behalf of the Parent Guarantor by an Officer of the Parent Guarantor or on behalf of a Subsidiary by any Officer of such Subsidiary, as applicable, that meets the requirements set forth in this First Supplemental Indenture.
          “ Opinion of Counsel ” means a written opinion from legal counsel who is acceptable to the Trustee. The counsel may be an employee of or counsel to the Issuer or the Parent Guarantor, as the case may be.
          “ Parent Guarantor ” means the Person named as the “Parent Guarantor” in the recitals (i) until released pursuant to the provisions of this First Supplemental Indenture or (ii) until a successor Person shall have become such pursuant to the applicable provisions of this First Supplemental Indenture,

-8-


 

and thereafter “Parent Guarantor” shall mean that successor Person until released pursuant to the provisions of this First Supplemental Indenture.
          “ Permitted Holders ” means each of the Investors, the Frist Entities, members of management of the Issuer (or its direct or indirect parent), Citigroup Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, successor by merger to Banc of America Securities LLC (which institutions were assignees of certain equity commitments of the Investors as of November 17, 2006), and each of their respective Affiliates or successors, that are holders of Equity Interests of the Issuer (or any of its direct or indirect parent companies) and any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) of which any of the foregoing are members; provided that, in the case of such group and without giving effect to the existence of such group or any other group, such Investors, Frist Entities, members of management and assignees of the equity commitments of the Investors, collectively, have beneficial ownership of more than 50% of the total voting power of the Voting Stock of the Issuer or any of its direct or indirect parent companies.
          “ 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.
          “ Preferred Stock ” means any Equity Interest with preferential rights of payment of dividends or upon liquidation, dissolution or winding up.
          “ Principal Property ” means each acute care hospital providing general medical and surgical services (excluding equipment, personal property and hospitals that primarily provide specialty medical services, such as psychiatric and obstetrical and gynecological services) owned solely by the Issuer and/or one or more of its Subsidiaries and located in the United States of America.
          “ Prospectus ” means the prospectus, dated July 26, 2011, relating to the sale of the Initial Notes.
          “ Rating Agencies ” means Moody’s and S&P or if Moody’s or S&P or both shall not make a rating on the Notes publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Issuer which shall be substituted for Moody’s or S&P or both, as the case may be.
          “ Receivables Facility ” means any of one or more receivables financing facilities as amended, supplemented, modified, extended, renewed, restated or refunded from time to time, the Obligations of which are non-recourse (except for customary representations, warranties, covenants and indemnities made in connection with such facilities) to the Issuer or any of its Subsidiaries (other than a Receivables Subsidiary) pursuant to which the Issuer or any of its Subsidiaries purports to sell its accounts receivable to either (a) a Person that is not a Subsidiary or (b) a Receivables Subsidiary that in turn funds such purchase by purporting to sell its accounts receivable to a Person that is not a Subsidiary or by borrowing from such a Person or from another Receivables Subsidiary that in turn funds itself by borrowing from such a Person.
          “ Receivables Subsidiary ” means any Subsidiary formed for the purpose of facilitating or entering into one or more Receivables Facilities, and in each case engages only in activities reasonably related or incidental thereto.
          “ Record Date ” for the interest or payable on any applicable Interest Payment Date means February 1 or August 1 (whether or not a Business Day) next preceding such Interest Payment Date.

-9-


 

          “ Reference Treasury Dealer ” means (i) J.P. Morgan Securities LLC, Barclays Capital Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc., Deutsche Bank Securities Inc. and Wells Fargo Securities, LLC (or their respective affiliates that are Primary Treasury Dealers) and their respective successors; provided, however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer in New York City (a “Primary Treasury Dealer”), the Issuer will substitute therefor another Primary Treasury Dealer, and (ii) any other Primary Treasury Dealer selected by the Issuer.
          “ Reference Treasury Dealer Quotations ” means, with respect to each Reference Treasury Dealer and any Redemption Date for any Note, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 3:00 p.m., New York City time, on the third Business Day preceding such Redemption Date.
          “ Remaining Life ” has the meaning ascribed to such term in the definition of “Comparable Treasury Issue”.
          “ Responsible Officer ” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any managing director, director, vice president, assistant vice president, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such Person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this First Supplemental Indenture.
          “ S&P ” means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc., and any successor to its rating agency business.
          “ Sale and Lease-Back Transaction ” means any arrangement providing for the leasing by the Issuer or any of its Subsidiaries for a period of more than three years of any Principal Property, which property has been or is to be sold or transferred by the Issuer or such Subsidiary to a third Person in contemplation of such leasing.
          “ SEC ” means the U.S. Securities and Exchange Commission.
          “ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.
          “ Subordinated Indebtedness ” means, with respect to the Notes, (1) any Indebtedness of the Issuer which is by its terms subordinated in right of payment to the Notes, and (2) any Indebtedness of the Parent Guarantor which is by its terms subordinated in right of payment to the Parent Guarantee.
          “ Subsidiary ” means, with respect to any Person:
     (1) 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

-10-


 

of that Person or a combination thereof or is consolidated under GAAP with such Person at such time; and
     (2) any partnership, joint venture, limited liability company or similar entity of which more than 50% of the equity ownership, whether in the form of a 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; provided , however , that for purposes of Sections 4.06, 4.07 and 4.08, any Person that is an Affiliated Entity shall not be considered a Subsidiary.
          “ Transfer Agent ” means the Person specified in Section 2.03 hereof as the Transfer Agent, and any and all successors thereto, to receive on behalf of the Registrar any Notes for transfer or exchange pursuant to this First Supplemental Indenture.
          “ Treasury Rate ” means, at the time of computation, (1) the semi-annual equivalent yield to maturity of the United States Treasury Securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15(519) which has become publicly available at least two Business Days prior to the Redemption Date or, if such Statistical Release is no longer published, any publicly available source of similar market data) for the maturity corresponding to the Comparable Treasury Issue; provided , however , that if no maturity is within three months before or after the Maturity Date for the Notes, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue will be determined and the Treasury Rate will be interpolated or extrapolated from those yields on a straight line basis, rounding to the nearest month; or (2) if that release, or any successor release, is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for that Redemption Date. The Treasury Rate will be calculated on the third Business Day preceding the Redemption Date.
          “ Trust Indenture Act ” means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb).
          “ Trustee ” means Law Debenture Trust Company of New York, as trustee, until a successor replaces it in accordance with the applicable provisions of this First Supplemental Indenture and thereafter means the successor serving hereunder.
          “ Voting Stock ” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the board of directors of such Person.
Section 1.02 Other Definitions
         
    Defined in
Term   Section
“Authentication Order”
    2.02  
“Change of Control Offer”
    4.10  
“Change of Control Payment”
    4.10  
“Change of Control Payment Date”
    4.10  
“Covenant Defeasance”
    8.03  
“DTC”
    2.03  
“Event of Default”
    6.01  

-11-


 

         
    Defined in
Term   Section
“Legal Defeasance”
    8.02  
“Note Register”
    2.03  
“Parent Guaranteed Obligations”.
    10.01  
“Paying Agent”
    2.03  
“Redemption Date”
    3.07  
“Registrar”
    2.03  
“Reversion Date”
    4.11  
“Successor Company”
    5.01  
“Suspended Covenant”
    4.11  
Section 1.03 Incorporation by Reference of Trust Indenture Act
          Whenever this First Supplemental Indenture refers to a provision of the Trust Indenture Act the provision is by reference in and made a part of this First Supplemental Indenture. If and to the extent that any provision of this First Supplemental Indenture limits, qualifies or conflicts with another provision included in this First Supplemental Indenture, by operation of Sections 310 to 317, inclusive, of the Trust Indenture Act (an “incorporated provision”), such incorporated provision shall control.
          The following Trust Indenture Act terms used in this First Supplemental Indenture have the following meanings:
          “indenture securities” mean the Notes;
          “indenture security Holder” means a Holder of a Note;
          “indenture to be qualified” means this First Supplemental Indenture;
          “indenture trustee” or “institutional trustee” means the Trustee; and
     “obligor” on the Notes and the Guarantee means the Issuer and the Parent Guarantor, respectively, and any successor obligor upon the Notes and the Guarantee, respectively.
          All other terms used in this First Supplemental Indenture that are defined by the Trust Indenture Act, defined by Trust Indenture Act reference to another statute or defined by SEC rule under the Trust Indenture Act have the meanings so assigned to them.
Section 1.04 Rules of Construction .
          Unless the context otherwise requires:
     (a) a term has the meaning assigned to it;
     (b) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
     (c) “or” is not exclusive;
     (d) words in the singular include the plural, and in the plural include the singular;

-12-


 

     (e) “will” shall be interpreted to express a command;
     (f) provisions apply to successive events and transactions;
     (g) references to sections of, or rules under, the Securities Act shall be deemed to include substitute, replacement or successor sections or rules adopted by the SEC from time to time;
     (h) unless the context otherwise requires, any reference to an “Article,” “Section” or “clause” refers to an Article, Section or clause, as the case may be, of this First Supplemental Indenture; and
     (i) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this First Supplemental Indenture as a whole and not any particular Article, Section, clause or other subdivision.
          In addition, this First Supplemental Indenture restates in their entirety the terms of the Base Indenture as supplemented by this First Supplemental Indenture and does not incorporate the terms of the Base Indenture. The changes, modifications and supplements to the Base Indenture effected by this First Supplemental Indenture shall be applicable only with respect to, and shall only govern the terms of, the Notes, except as otherwise provided herein, and shall not apply to any other securities that may be issued under the Base Indenture unless a supplemental indenture with respect to such other securities specifically incorporates such changes, modifications and supplements.
Section 1.05 Acts of Holders
          (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this First Supplemental Indenture to be 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 or the Parent Guarantor, as applicable. Proof of execution of any such instrument or of a writing appointing any such agent, or the holding by any Person of a Note, shall be sufficient for any purpose of this First Supplemental Indenture and (subject to Section 7.01) conclusive in favor of the Trustee and the Issuer and the Parent Guarantor, as applicable, if made in the manner provided in this Section 1.05.
          (b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by or on behalf of any legal entity other than an individual, such certificate or affidavit shall also constitute proof of the authority of the Person executing the same. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner that the Trustee deems sufficient.
          (c) The ownership of Notes shall be proved by the Note Register.
          (d) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Note shall bind every future Holder of the same Note and the Holder of every

-13-


 

Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, in respect of any action taken, suffered or omitted by the Trustee or the Issuer in reliance thereon, whether or not notation of such action is made upon such Note.
          (e) The Issuer may, in the circumstances permitted by the Trust Indenture Act, set a record date for purposes of determining the identity of Holders entitled to give any request, demand, authorization, direction, notice, consent, waiver or take any other act, or to vote or consent to any action by vote or consent authorized or permitted to be given or taken by Holders. Unless otherwise specified, if not set by the Issuer prior to the first solicitation of a Holder made by any Person in respect of any such action, or in the case of any such vote, prior to such vote, any such record date shall be the later of 30 days prior to the first solicitation of such consent or the date of the most recent list of Holders furnished to the Trustee prior to such solicitation.
          (f) Without limiting the foregoing, a Holder entitled to take any action hereunder with regard to any particular Note may do so with regard to all or any part of the principal amount of such Note or by one or more duly appointed agents, each of which may do so pursuant to such appointment with regard to all or any part of such principal amount. Any notice given or action taken by a Holder or its agents with regard to different parts of such principal amount pursuant to this paragraph shall have the same effect as if given or taken by separate Holders of each such different part.
          (g) Without limiting the generality of the foregoing, a Holder, including DTC that is the Holder of a Global Note, may make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this First Supplemental Indenture to be made, given or taken by Holders, and DTC that is the Holder of a Global Note may provide its proxy or proxies to the beneficial owners of interests in any such Global Note through such depositary’s standing instructions and customary practices.
          (h) The Issuer may fix a record date for the purpose of determining the Persons who are beneficial owners of interests in any Global Note held by DTC entitled under the procedures of such depositary to make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this First Supplemental Indenture to be made, given or taken by Holders. If such a record date is fixed, the Holders on such record date or their duly appointed proxy or proxies, and only such Persons, shall be entitled to make, give or take such request, demand, authorization, direction, notice, consent, waiver or other action, whether or not such Holders remain Holders after such record date. No such request, demand, authorization, direction, notice, consent, waiver or other action shall be valid or effective if made, given or taken more than 90 days after such record date.
ARTICLE 2
THE NOTES
          In accordance with Section 301 of the Base Indenture, the Issuer hereby creates the Notes as a series of its Securities issued pursuant to this First Supplemental Indenture. In accordance with Section 301 of the Base Indenture, the Notes shall be known and designated as the “7.50% Senior Notes due 2022” of the Issuer.
Section 2.01 Form and Dating; Terms
          (a) General . The Notes and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements

-14-


 

required by law, stock exchange rules or usage. Each Note shall be dated the date of its authentication. The Notes shall be in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
          (b) Global Notes . Notes issued in global form shall be substantially in the form of Exhibit A hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes issued in definitive form shall be substantially in the form of Exhibit A attached hereto (but without the Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Global Note shall represent such of the outstanding Notes as shall be specified in the “Schedule of Exchanges of Interests in the Global Note” attached thereto and each shall provide that it shall represent up to the aggregate principal amount of Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as applicable, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 hereof.
          (c) Terms . The aggregate principal amount of Notes that may be authenticated and delivered under this First Supplemental Indenture is unlimited.
          The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this First Supplemental Indenture and the Issuer, the Parent Guarantor and the Trustee, by their execution and delivery of this First Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this First Supplemental Indenture, the provisions of this First Supplemental Indenture shall govern and be controlling.
          The Notes shall be subject to repurchase by the Issuer pursuant to a Change of Control Offer as provided in Section 4.10 hereof. The Notes shall not be redeemable, other than as provided in Article 3.
          Additional Notes may be created and issued from time to time by the Issuer without notice to or consent of the Holders and shall be consolidated with and form a single class with the Initial Notes and shall have the same terms as to status, redemption or otherwise as the Initial Notes. Except as described under Article 9 hereof, the Notes offered by the Issuer and any Additional Notes subsequently issued under this First Supplemental Indenture will be treated as a single class for all purposes under this First Supplemental Indenture, including waivers, amendments, redemptions and offers to purchase. Unless the context requires otherwise, references to “Notes” for all purposes of this First Supplemental Indenture include any Additional Notes that are actually issued. Any Additional Notes shall be issued with the benefit of an indenture supplemental to this First Supplemental Indenture.
Section 2.02 Execution and Authentication .
          At least one Officer shall execute the Notes on behalf of the Issuer by manual or facsimile signature.
          If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note shall nevertheless be valid.
          A Note shall not be entitled to any benefit under this First Supplemental Indenture or be valid or obligatory for any purpose until authenticated substantially in the form provided for in Exhibit A

-15-


 

attached hereto, by the manual signature of the Trustee. The signature shall be conclusive evidence that the Note has been duly authenticated and delivered under this First Supplemental Indenture.
          On the Issue Date, the Trustee shall, upon receipt of an Issuer Order (an “ Authentication Order ”), authenticate and deliver the Initial Notes. In addition, at any time, from time to time, the Trustee shall upon an Authentication Order authenticate and deliver any Additional Notes. Such Authentication Order shall specify the amount of the Notes to be authenticated.
          The Trustee may appoint an authenticating agent acceptable to the Issuer to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this First Supplemental 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.
Section 2.03 Registrar and Paying Agent .
          The Issuer shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange (“ Registrar ”) and an office or agency where Notes may be presented for payment (“ Paying Agent ”). The Registrar shall keep a register of the Notes (“ Note Register ”) and of their transfer and exchange. The Issuer may appoint one or more co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent. The Issuer may change any Paying Agent or Registrar without prior notice to any Holder. The Issuer shall notify the Trustee in writing of the name and address of any Agent not a party to this First Supplemental Indenture. If the Issuer fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Issuer or any of its Subsidiaries may act as Paying Agent or Registrar.
          The Issuer initially appoints The Depository Trust Company (“ DTC ”) to act as Depositary with respect to the Global Notes.
          The Issuer initially appoints Deutsche Bank Trust Company Americas to act as the Paying Agent, Registrar and Transfer Agent for the Notes and the Registrar to act as Custodian with respect to the Global Notes.
Section 2.04 Paying Agent to Hold Money in Trust .
          The Issuer shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium, if any, or interest on the Notes, and will notify the Trustee of any default by the Issuer in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Issuer at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Issuer or a Subsidiary) shall have no further liability for the money. If the Issuer or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Issuer, the Trustee shall serve as Paying Agent for the Notes.
Section 2.05 Holder Lists .
          The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with Trust

-16-


 

Indenture Act Section 312(a). If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee at least two Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Notes and the Issuer shall otherwise comply with Trust Indenture Act Section 312(a).
Section 2.06 Transfer and Exchange .
          (a) Transfer and Exchange of Global Notes . A Global Note may not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged by the Issuer for Definitive Notes if:
     (A) the Issuer delivers to the Trustee notice from the Depositary that the Depositary is unwilling or unable to continue to act as Depositary or that it is no longer a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Issuer within 120 days after the date of such notice from the Depositary;
     (B) the Issuer in its sole discretion determines that the Global Notes (in whole but not in part) should be exchanged for Definitive Notes and delivers a written notice to such effect to the Trustee; or
     (C) there has occurred and is continuing a Default or Event of Default with respect to the Notes, and the Depositary has notified the Issuer and the Trustee of its desire to exchange the Global Notes for Definitive Notes.
Upon the occurrence of either of the preceding events in (A) or (B) above, Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, pursuant to this Section 2.06 or Sections 2.07 and 2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Sections 2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a), however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b) or (c) hereof.
          (b) Transfer and Exchange of Beneficial Interests in the Global Notes . The transfer and exchange of beneficial interests in the Global Notes will be effected through the Depositary, in accordance with the provisions of this First Supplemental Indenture. Beneficial interests in any Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in a Global Note. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b) and Section 2.06(d) hereof.
          (c) Transfer or Exchange of Beneficial Interests for Definitive Notes . If any holder of a beneficial interest in a Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction of the conditions set forth in Section 2.06(b) hereof, the Trustee will cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(g) hereof, and the Issuer will execute and the Trustee will authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any

-17-


 

Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c) will be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest requests through instructions to the Registrar from or through the Depositary and the Participant or Indirect Participant. The Trustee will deliver such Definitive Notes to the Persons in whose names such Notes are registered.
          (d) Transfer and Exchange of Definitive Notes for Beneficial Interests . A Holder of a Definitive Note may exchange such Note for a beneficial interest in a Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee shall cancel the applicable Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Global Notes.
          (e) Transfer and Exchange of Definitive Notes for Definitive Notes . Upon request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.06(e), the Registrar will register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder must present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder must provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e). A Holder of Definitive Notes may transfer such Notes to a Person who takes delivery thereof in the form of a Definitive Note.
          (f) Global Note Legend . Each Global Note shall bear a legend in substantially the following form:
“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE FIRST SUPPLEMENTAL INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE FIRST SUPPLEMENTAL INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE FIRST SUPPLEMENTAL INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE FIRST SUPPLEMENTAL INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUER. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE

-18-


 

TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE 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.”
          (g) Cancellation and/or Adjustment of Global Notes . At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or cancelled in whole and not in part, each such Global Note shall be returned to or retained and cancelled by the Trustee in accordance with Section 2.11 hereof. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
          (h) General Provisions Relating to Transfers and Exchanges .
     (i) To permit registrations of transfers and exchanges, the Issuer shall execute and the Trustee shall authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.02 hereof or at the Registrar’s request.
     (ii) No service charge shall be made to a holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.07, 2.10, 3.06, 4.10 and 9.05 hereof).
     (iii) Neither the Registrar nor the Issuer shall be required to register the transfer of or exchange any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.
     (iv) All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this First Supplemental Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
     (v) The Issuer shall not be required (A) to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 hereof and ending at the close of business on the day of selection, (B) to register the transfer of or to exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part or (C) to register the transfer of or to exchange a Note between a Record Date and the next succeeding Interest Payment Date.
     (vi) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Issuer may deem and treat the Person in whose name any Note is

-19-


 

registered as the absolute owner of such Note for the purpose of receiving payment of principal of (and premium, if any) and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Issuer shall be affected by notice to the contrary.
     (vii) Upon surrender for registration of transfer of any Note at the office or agency of the Issuer designated pursuant to Section 4.02 hereof, the Issuer shall execute, and the Trustee shall authenticate and mail, in the name of the designated transferee or transferees, one or more replacement Notes of any authorized denomination or denominations of a like aggregate principal amount.
     (viii) At the option of the Holder, Notes may be exchanged for other Notes of any authorized denomination or denominations of a like aggregate principal amount upon surrender of the Notes to be exchanged at such office or agency. Whenever any Global Notes or Definitive Notes are so surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and mail, the replacement Global Notes and Definitive Notes which the Holder making the exchange is entitled to in accordance with the provisions of Section 2.02 hereof.
     (ix) All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by facsimile.
Section 2.07 Replacement Notes .
          If any mutilated Note is surrendered to the Trustee, the Registrar or the Issuer and the Trustee receives evidence to its satisfaction of the ownership and destruction, loss or theft of any Note, the Issuer shall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if the Trustee’s requirements are met. If required by the Trustee or the Issuer, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Issuer to protect the Issuer, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Issuer and/or the Trustee may charge for their expenses in replacing a Note.
          Every replacement Note is a contractual obligation of the Issuer and shall be entitled to all of the benefits of this First Supplemental Indenture equally and proportionately with all other Notes duly issued hereunder.
Section 2.08 Outstanding Notes .
          The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those cancelled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a Note does not cease to be outstanding because the Issuer or an Affiliate of the Issuer holds the Note.
          If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser.
          If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.

-20-


 

          If the Paying Agent (other than the Issuer, a Subsidiary or an Affiliate of any thereof) holds, on a Redemption Date or Maturity Date, money sufficient to pay Notes payable on that date, then on and after that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue interest.
Section 2.09 Treasury Notes .
          In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Issuer, or by any Affiliate of the Issuer, shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee knows are so owned shall be so disregarded. Notes so owned which have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right to deliver any such direction, waiver or consent with respect to the Notes and that the pledgee is not the Issuer or any obligor upon the Notes or any Affiliate of the Issuer or of such other obligor.
Section 2.10 Temporary Notes .
          Until certificates representing Notes are ready for delivery, the Issuer may prepare and the Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of certificated Notes but may have variations that the Issuer considers appropriate for temporary Notes and as shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Issuer shall prepare and the Trustee shall authenticate definitive Notes in exchange for temporary Notes.
          Holders and beneficial holders, as the case may be, of temporary Notes shall be entitled to all of the benefits accorded to Holders, or beneficial holders, respectively, of Notes under this First Supplemental Indenture.
Section 2.11 Cancellation .
          The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee or, at the direction of the Trustee, the Registrar or the Paying Agent and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall destroy cancelled Notes (subject to the record retention requirement of the Exchange Act). Certification of the destruction of all cancelled Notes shall be delivered to the Issuer. The Issuer may not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest .
          If the Issuer defaults in a payment of interest on the Notes, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01 hereof. The Issuer shall notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note 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 prior to the date of the proposed payment, such money when deposited to be held in trust for the

-21-


 

benefit of the Persons entitled to such defaulted interest as provided in this Section 2.12. The Trustee shall fix or cause to be fixed each such special record date and payment date; provided that no such special record date shall be less than 10 days prior to the related payment date for such defaulted interest. The Trustee shall promptly notify the Issuer of such special record date. At least 15 days before the special record date, the Issuer (or, upon the written request of the Issuer, the Trustee in the name and at the expense of the Issuer) shall mail or cause to be mailed, first-class postage prepaid, to each Holder a notice at his or her address as it appears in the Note Register that states the special record date, the related payment date and the amount of such interest to be paid.
          Subject to the foregoing provisions of this Section 2.12 and for greater certainty, each Note delivered under this First Supplemental Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.
Section 2.13 CUSIP and ISIN Numbers .
          The Issuer in issuing the Notes may use CUSIP and/or ISIN numbers (if then generally in use) and, if so, the Trustee shall use CUSIP and/or ISIN numbers in notices of redemption as a convenience to Holders; provided , that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer will as promptly as practicable notify the Trustee of any change in the CUSIP or ISIN numbers.
ARTICLE 3
REDEMPTION
Section 3.01 Notices to Trustee .
          If the Issuer elects to redeem Notes pursuant to Section 3.07 hereof, it shall furnish to the Trustee and the Registrar and Paying Agent, at least 2 Business Days before notice of redemption is required to be mailed or caused to be mailed to Holders pursuant to Section 3.03 hereof but not more than 60 days before a Redemption Date, an Officer’s Certificate setting forth (i) the clause of this First Supplemental Indenture or the subparagraph of such Note pursuant to which the redemption shall occur, (ii) the Redemption Date; (iii) the principal amount of Notes to be redeemed, (iv) the redemption price (or the method of calculating it) and (v) each place that payment will be made upon presentation and surrender of the Notes to be redeemed.
Section 3.02 Selection of Notes to Be Redeemed or Purchased .
          If less than all of the Notes, are to be redeemed or purchased in an offer to purchase at any time, the Registrar and Paying Agent shall select the Notes to be redeemed or purchased (a) if the Notes are listed on any national securities exchange, in compliance with the requirements of the principal national securities exchange on which the Notes are listed, (b) on a pro rata basis or (c) by lot or by such other method in accordance with the procedures of DTC. In the event of partial redemption or purchase by lot, the particular Notes to be redeemed or purchased shall be selected, unless otherwise provided herein, not less than 30 nor more than 60 days prior to the Redemption Date by the Registrar and Paying Agent from the outstanding Notes not previously called for redemption or purchase.

-22-


 

          The Registrar and Paying Agent shall promptly notify the Issuer in writing of the Notes selected for redemption or purchase and, in the case of any Note selected for partial redemption or purchase, the principal amount thereof to be redeemed or purchased. Notes and portions of Notes selected shall be in amounts of $2,000 or whole multiples of $1,000 in excess thereof; no Notes of $2,000 or less can be redeemed in part, except that if all of the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes held by such Holder, even if not $2,000 or a multiple of $1,000 in excess thereof, shall be redeemed or purchased. Except as provided in the preceding sentence, provisions of this First Supplemental Indenture that apply to Notes called for redemption or purchase also apply to portions of Notes called for redemption or purchase.
Section 3.03 Notice of Redemption .
          The Issuer shall mail or cause to be mailed by first-class mail notices of redemption at least 30 days but not more than 60 days before the Redemption Date to each Holder of Notes to be redeemed at such Holder’s registered address or otherwise in accordance with the procedures of DTC, except that redemption notices may be mailed more than 60 days prior to a Redemption Date if the notice is issued in connection with Article 8 or Article 11 hereof. Except as set forth in Section 3.07(c) hereof, notices of redemption may not be conditional.
          The notice shall identify the Notes to be redeemed and shall state:
     (a) the Redemption Date;
     (b) the redemption price (or method of calculating it);
     (c) if any Note is to be redeemed in part only, the portion of the principal amount of that Note that is to be redeemed and that, after the Redemption Date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion of the original Note representing the same indebtedness to the extent not redeemed will be issued in the name of the Holder of the Notes upon cancellation of the original Note;
     (d) the place and address that payment will be made upon presentation and surrender of the Notes to be redeemed;
     (e) the name and address of the Paying Agent;
     (f) that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;
     (g) that, unless the Issuer defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the Redemption Date;
     (h) the paragraph or subparagraph of the Notes and/or Section of this First Supplemental Indenture pursuant to which the Notes called for redemption are being redeemed;
     (i) 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 Notes; and
     (j) if in connection with a redemption pursuant to Section 3.07 hereof, any condition to such redemption.

-23-


 

          At the Issuer’s request, the Trustee shall give the notice of redemption in the Issuer’s name and at its expense; provided that the Issuer shall have delivered to the Trustee, at least 2 Business Days before notice of redemption is required to be mailed or caused to be mailed to Holders pursuant to this Section 3.03 (unless a shorter notice shall be agreed to by the Trustee), an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph.
Section 3.04 Effect of Notice of Redemption .
          Once notice of redemption is mailed in accordance with Section 3.03 hereof, Notes called for redemption become irrevocably due and payable on the Redemption Date at the redemption price (except as provided for in Section 3.07(c) hereof). The notice, if mailed in a manner herein provided, shall be conclusively presumed to have been given, whether or not the Holder receives such notice. In any case, failure to give such notice by mail or any defect in the notice to the Holder of any Note designated for redemption in whole or in part shall not affect the validity of the proceedings for the redemption of any other Note. Subject to Section 3.05 hereof, on and after the Redemption Date, interest ceases to accrue on Notes or portions thereof called for redemption.
Section 3.05 Deposit of Redemption or Purchase Price .
          Prior to 10:00 a.m. (New York City time) on the redemption or purchase date, the Issuer shall deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of and accrued and unpaid interest on all Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent shall promptly return to the Issuer any money deposited with the Trustee or the Paying Agent by the Issuer in excess of the amounts necessary to pay the redemption price of, and accrued and unpaid interest on, all Notes to be redeemed or purchased.
          If the Issuer complies with the provisions of the preceding paragraph, on and after the redemption or purchase date, interest shall cease to accrue on the Notes or the portions of Notes called for redemption or purchase. If a Note is redeemed or purchased on or after a Record Date but on or prior to the related Interest Payment Date, then any accrued and unpaid interest to the redemption or purchase date shall be paid to the Person in whose name such Note was registered at the close of business on such Record Date. If any Note called for redemption or purchase shall not be so paid upon surrender for redemption or purchase because of the failure of the Issuer to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption or purchase date until such principal is paid, and to the extent lawful on any interest accrued to the redemption or purchase date not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof.
Section 3.06 Notes Redeemed or Purchased in Part .
          Upon surrender of a Note that is redeemed or purchased in part, the Issuer shall issue and the Trustee shall authenticate for the Holder at the expense of the Issuer a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered representing the same indebtedness to the extent not redeemed or purchased; provided that each new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. It is understood that, notwithstanding anything in this First Supplemental Indenture to the contrary, only an Authentication Order and not an Opinion of Counsel or Officer’s Certificate is required for the Trustee to authenticate such new Note.

-24-


 

Section 3.07 Optional Redemption .
          (a) Except as set forth below, the Issuer will not be entitled to redeem Notes at its option prior to the Maturity Date.
          (b) The Notes will be redeemable, at the Issuer’s option, at any time in whole or from time to time in part, at a redemption, or “make-whole,” price equal to the greater of: (i) 100% of the aggregate principal amount of the Notes to be redeemed, and (ii) an amount equal to sum of the present value of the remaining scheduled payments of principal of and interest on the Notes to be redeemed (excluding accrued and unpaid interest to the date of redemption (the “ Redemption Date ”) and subject to the right of Holders on the relevant Record Date to receive interest due on the relevant Interest Payment Date) discounted from their scheduled date of payment to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) using a discount rate equal to the Treasury Rate plus 50 basis points plus, in each of the above cases, accrued and unpaid interest, if any, to such Redemption Date.
          (c) Any notice of any redemption may be given prior to the redemption thereof, and any such redemption or notice may, at the Issuer’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of an Equity Offering or other corporate transaction.
          (d) If the Issuer redeems less than all of the outstanding Notes, the Registrar and Paying Agent shall select the Notes to be redeemed in the manner described under Section 3.02 hereof.
          (e) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Section 3.08 Mandatory Redemption .
          The Issuer shall not be required to make any mandatory redemption or sinking fund payments with respect to the Notes.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes .
          The Issuer shall pay or cause to be paid the principal of, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes. 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 (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the rate equal to the then applicable interest rate on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace period) at the same rate to the extent lawful.

-25-


 

Section 4.02 Maintenance of Office or Agency .
          The Issuer shall maintain in the Borough of Manhattan in the City of New York, an office or agency (which may be an office of the Trustee or an Affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuer in respect of the Notes and this First Supplemental 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 Notes 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 in the Borough of Manhattan in the City of New York, 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.
          The Issuer hereby designates the office of the Registrar at the address specified in Section 12.02 hereof (or such other address as to which the Registrar may give notice to the Holders and the Issuer) as one such office or agency of the Issuer in accordance with Section 2.03 hereof.
Section 4.03 Compliance Certificate .
          (a) The Issuer shall deliver to the Trustee, within 90 days after the end of each fiscal year ending after the Issue Date, an Officer’s Certificate stating that a review of the activities of the Issuer and its Restricted Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officer with a view to determining whether the Issuer has kept, observed, performed and fulfilled its obligations under this First Supplemental Indenture, and further stating, as to such Officer signing such certificate, that to the best of his or her knowledge the Issuer has kept, observed, performed and fulfilled each and every condition and covenant contained in this First Supplemental Indenture and is not in default in the performance or observance of any of the terms, provisions, covenants and conditions of this First Supplemental Indenture (or, if a Default shall have occurred, describing all such Defaults of which he or she may have knowledge and what action the Issuer is taking or proposes to take with respect thereto).
          (b) When any Default has occurred and is continuing under this First Supplemental Indenture, or if the Trustee or the holder of any other evidence of Indebtedness of the Issuer or any Subsidiary gives any notice or takes any other action with respect to a claimed Default, the Issuer shall promptly (which shall be no more than five (5) Business Days) deliver to the Trustee by registered or certified mail or by facsimile transmission an Officer’s Certificate specifying such event and what action the Issuer proposes to take with respect thereto.
Section 4.04 Taxes .
          The Issuer shall pay, and shall cause each of its Restricted Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and governmental levies except such as are contested in good faith and by appropriate negotiations or proceedings or where the failure to effect such payment is not adverse in any material respect to the Holders of the Notes.

-26-


 

Section 4.05 Stay, Extension and Usury Laws .
          The Issuer and the Parent Guarantor covenant (to the extent that they may lawfully do so) that they shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this First Supplemental Indenture; and the Issuer and the Parent Guarantor (to the extent that they may lawfully do so) hereby expressly waive all benefit or advantage of any such law, and covenant that they shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted.
Section 4.06 Limitations on Mortgages .
          (a) Nothing in this First Supplemental Indenture or in the Notes shall in any way restrict or prevent the Issuer, the Parent Guarantor or any Subsidiary from incurring any Indebtedness, provided , however , that neither the Issuer nor any of its Subsidiaries will issue, assume or guarantee any indebtedness or obligation secured by Mortgages upon any Principal Property, unless the Notes shall be secured equally and ratably with (or prior to) such Indebtedness.
          (b) The provisions of Section 4.06(a) shall not apply to:
     (1) Mortgages securing all or any part of the purchase price of property acquired or cost of construction of property or cost of additions, substantial repairs, alterations or improvements or property, if the Indebtedness and the related Mortgages are incurred within 18 months of the later of the acquisition or completion of construction and full operation or additions, repairs, alterations or improvements;
     (2) Mortgages existing on property at the time of its acquisition by the Issuer or a Subsidiary or on the property of a Person at the time of the acquisition of such Person by the Issuer or a Subsidiary (including acquisitions through merger or consolidation);
     (3) Mortgages to secure Indebtedness on which the interest payments to holders of the related indebtedness are excludable from gross income for federal income tax purposes under Section 103 of the Code;
     (4) Mortgages in favor of the Issuer or any Subsidiary;
     (5) Mortgages existing on the date of this First Supplemental Indenture;
     (6) Mortgages in favor of a government or governmental entity that (i) secure Indebtedness which is guaranteed by the government or governmental entity, (ii) secure Indebtedness incurred to finance all or some of the purchase price or cost of construction of goods, products or facilities produced under contract or subcontract for the government or governmental entity, or (iii) secure Indebtedness incurred to finance all or some of the purchase price or cost of construction of the property subject to the Mortgage;
     (7) Mortgages incurred in connection with the borrowing of funds where such funds are used to repay within 120 days after entering into such Mortgage, Indebtedness in the same principal amount secured by other Mortgages on Principal Property with at least the same appraised fair market value; and

-27-


 

     (8) any extension, renewal or replacement of any Mortgage referred to in clauses (1) through (7) above, provided the amount secured is not increased and such extension, renewal or replacement Mortgage relates to the same property.
Section 4.07 Limitations on Sale and Lease-Back .
          Neither the Issuer nor any Subsidiary will enter into any Sale and Lease-Back Transaction with respect to any Principal Property with another Person (other than with the Issuer or a Subsidiary) unless either:
     (a) the Issuer or such Subsidiary could incur indebtedness secured by a mortgage on the property to be leased without equally and ratably securing the Notes; or
     (b) within 120 days, the Issuer applies the greater of the net proceeds of the sale of the leased property or the fair value of the leased property, net of all Notes delivered under this First Supplemental Indenture, to the voluntary retirement of Funded Debt and/or the acquisition or construction of a Principal Property.
Section 4.08 Exempted Transactions .
          Notwithstanding the provisions of Sections 4.06 and 4.07, if the aggregate outstanding principal amount of all Indebtedness of the Issuer and its Subsidiaries that is subject to and not otherwise permitted under these restrictions does not exceed 15% of the Consolidated Net Tangible Assets of the Issuer and its Subsidiaries, then:
          (a) the Issuer or any of its Subsidiaries may issue, assume or guarantee Indebtedness secured by Mortgages; and
          (b) the Issuer or any of its Subsidiaries may enter into any Sale and Lease-Back Transaction.
Section 4.09 Corporate Existence .
          Subject to Article 5 hereof the Issuer, and so long as any Notes in respect of which the Guarantee is been outstanding, the Parent Guarantor, shall do or cause to be done all things necessary to preserve and keep in full force and effect (i) its corporate existence, rights (charter or statutory), licenses and franchises; provided that neither the Issuer nor the Parent Guarantor shall be required to preserve any such right, license or franchise, if respective board of directors shall in good faith determine that the preservation thereof is no longer desirable in the conduct of the business.
Section 4.10 Offer to Repurchase upon Change of Control .
          (a) If a Change of Control occurs, unless the Issuer has previously or concurrently mailed a redemption notice with respect to all the outstanding Notes as described under Section 3.07 hereof, the Issuer shall make an offer to purchase all of the Notes pursuant to the offer described below (the “ Change of Control Offer ”) at a price in cash (the “ Change of Control Payment ”) equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to the date of purchase, subject to the right of Holders of the Notes of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date. Within 30 days following any Change of Control, the Issuer shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee and the Registrar, to each Holder of Notes to the address of such Holder appearing in the security register with a copy

-28-


 

to the Trustee and the Registrar or otherwise in accordance with the procedures of DTC, with the following information:
     (1) that a Change of Control Offer is being made pursuant to this Section 4.10 and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for payment by the Issuer;
     (2) the purchase price and the purchase date, which will be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “ Change of Control Payment Date ”);
     (3) that any Note not properly tendered will remain outstanding and continue to accrue interest;
     (4) that unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest on the Change of Control Payment Date;
     (5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the paying agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;
     (6) that Holders shall be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes, provided that the paying agent receives, not later than the close of business on the 30th day following the date of the Change of Control notice, a telegram, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
     (7) Holders tendering less than all of their Notes will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must be equal to $2,000 or an integral multiple of $1,000 in excess thereof; and
     (8) the other instructions, as determined by the Issuer, consistent with this Section 4.10, that a Holder must follow.
          The notice, if mailed in a manner herein provided, shall be conclusively presumed to have been given, whether or not the Holder receives such notice. If (a) the notice is mailed in a manner herein provided and (b) any Holder fails to receive such notice or a Holder receives such notice but it is defective, such Holder’s failure to receive such notice or such defect shall not affect the validity of the proceedings for the purchase of the Notes as to all other Holders that properly received such notice without defect. The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.10, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.10 by virtue thereof.

-29-


 

          (b) On the Change of Control Payment Date, the Issuer shall, to the extent permitted by law,
     (1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer;
     (2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered; and
     (3) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Issuer.
          (c) The Issuer shall not be required to make a Change of Control Offer following a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.10 applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer.
          (d) Other than as specifically provided in this Section 4.10, any purchase pursuant to this Section 4.10 shall be made pursuant to the provisions of Sections 3.02, 3.05 and 3.06 hereof.
Section 4.11 Discharge and Suspension of Covenants .
          (a) If on any date following the Issue Date (i) the Notes have Investment Grade Ratings from both Rating Agencies and (ii) no Default has occurred and is continuing under this First Supplemental Indenture, the Issuer and the Subsidiaries will not be subject to Section 4.10 hereof (the “ Suspended Covenant ”).
          (b) In the event that the Issuer and the Subsidiaries are not subject to the Suspended Covenant under this First Supplemental Indenture for any period of time as a result of the foregoing, and on any subsequent date (the “ Reversion Date ”) one or both of the Rating Agencies (1) withdraw their Investment Grade Rating or downgrade the rating assigned to the Notes below an Investment Grade Rating and/or (2) the Issuer or any of its Affiliates enters into an agreement to effect a transaction that would result in a Change of Control and one or more of the Rating Agencies indicate that if consummated, such transaction (alone or together with any related recapitalization or refinancing transactions) would cause such Rating Agency to withdraw its Investment Grade Rating or downgrade the ratings assigned to the Notes below an Investment Grade Rating, then the Issuer and the Subsidiaries shall thereafter again be subject to the Suspended Covenant under this First Supplemental Indenture with respect to future events, including, without limitation, a proposed transaction described in clause (2) above.
          (c) In the event of any such reinstatement, no action taken or omitted to be taken by the Issuer or any of its Subsidiaries prior to such reinstatement shall give rise to a Default or Event of Default under this First Supplemental Indenture with respect to Notes.
          (d) The Issuer shall deliver promptly to the Trustee an Officer’s Certificate notifying it of any such occurrence under this Section 4.11.

-30-


 

ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation or Sale of All or Substantially All Assets .
          (a) Neither the Issuer nor the Parent Guarantor, as applicable, shall consolidate or merge with or into or transfer or lease all or substantially all of its assets to (whether or not the Issuer or the Parent Guarantor, as applicable, is the surviving corporation), any Person unless:
     (1) either: (x) the Issuer or the Parent Guarantor, as applicable, is the surviving corporation; or (y) (i) in the case of the Issuer, the Person formed by or surviving any such consolidation or merger (if other than the Issuer) or to which such sale or lease, will have been made is a corporation organized or existing under the laws of the jurisdiction of organization of the 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 Entity ”) expressly assumes, pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee, all obligations of the Issuer under the Notes and this First Supplemental Indenture as if such Successor Entity were a party to this First Supplemental Indenture; and (ii) in the case of the Parent Guarantor, the Successor Entity assumes the Parent Guarantor’s obligations under this First Supplemental Indenture and the Guarantee, as if such Successor Entity were an original party to this First Supplemental Indenture and such Guarantee;
     (2) after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing;
     (3) if, as a result of any such consolidation or merger or such conveyance, transfer or lease, properties or assets of the Issuer or the Parent Guarantor, as applicable, would become subject to a mortgage, pledge, lien, security interest or other encumbrance that would not be permitted by this First Supplemental Indenture, the Issuer or the Parent Guarantor, as applicable, or such Successor Entity or Person, as the case may be, shall take such steps as shall be necessary effectively to secure all the Notes or the Guarantee, as applicable, equally and ratably with (or prior to) all indebtedness secured thereby; and,
     (4) the Issuer or the Parent Guarantor, as applicable, shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture, if any, comply with this First Supplemental Indenture and, if a supplemental indenture is required in connection with such transaction, such supplement shall comply with the applicable provisions of this First Supplemental Indenture.
          (b) The Successor Entity shall succeed to, and be substituted for the Issuer or the Parent Guarantor, as applicable, as the case may be, under this First Supplemental Indenture and the Notes or the Guarantee, each as applicable. Notwithstanding clause (3) of Section 5.01(a) hereof,
     (1) any Subsidiary may consolidate with or merge into or transfer all or part of its properties and assets to the Issuer, and
     (2) the Issuer may merge with an Affiliate of the Issuer, as the case may be, solely for the purpose of reincorporating the Issuer in a State of the United States or any state thereof,

-31-


 

the District of Columbia or any territory thereof so long as the amount of Indebtedness of the Issuer and its Subsidiaries is not increased thereby.
Section 5.02 Successor Corporation Substituted .
          Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the assets of the Issuer or the Parent Guarantor, as applicable, in accordance with Section 5.01 hereof, the successor corporation formed by such consolidation or into or with which the Issuer is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger, sale, lease, conveyance or other disposition, the provisions of this First Supplemental Indenture referring to the Issuer or the Parent Guarantor, as applicable, shall refer instead to the successor corporation and not to the Issuer or the Parent Guarantor, as applicable), and may exercise every right and power of the Issuer or the Parent Guarantor, as applicable, under this First Supplemental Indenture with the same effect as if such successor Person had been named as the Issuer or the Parent Guarantor, as applicable, herein; provided that the predecessor Issuer shall not be relieved from the obligation to pay the principal of and interest on the Notes except in the case of a sale, assignment, transfer, conveyance or other disposition of all of the Issuer’s assets that meets the requirements of Section 5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default .
          (a) An “ Event of Default ” wherever used herein, 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):
     (1) default in payment when due and payable, upon redemption, acceleration or otherwise, of principal of, or premium, if any, on the Notes;
     (2) default for a period of 30 days or more in the payment when due of interest on or with respect to the Notes;
     (3) default in any deposit of any sinking fund payment in respect of the Notes when and as due by the terms of the Notes;
     (4) default in the performance, or breach, of any covenant or warranty of the Issuer in this First Supplemental Indenture (other than a covenant or warranty in whose performance or whose breach is elsewhere in this Section specifically dealt with), and continuance of such default or breach for a period of 60 days after there has been given written notice by the Holders of at least 10% in principal amount of the outstanding Notes specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder;
     (5) the Issuer or the Parent Guarantor pursuant to or within the meaning of any Bankruptcy Law:
     (i) commences proceedings to be adjudicated bankrupt or insolvent;

-32-


 

     (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 the Issuer or the Parent Guarantor, in a proceeding in which the Issuer or the Parent Guarantor is to be adjudicated bankrupt or insolvent;
     (ii) appoints a receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Issuer or the Parent Guarantor, or for all or substantially all of the property of the Issuer or the Parent Guarantor; or
     (iii) orders the liquidation of the Issuer or the Parent Guarantor;
          and the order or decree remains unstayed and in effect for 60 consecutive days; or
     (7) The Guarantee shall for any reason cease to be in full force and effect or be declared null and void or any responsible officer of the Parent Guarantor 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 First Supplemental Indenture or the release of any such Guarantee in accordance with this First Supplemental Indenture.
Section 6.02 Acceleration .
          (a) If any Event of Default (other than an Event of Default specified in clause (5) or (6) of Section 6.01(a) hereof) occurs and is continuing under this First Supplemental Indenture, the Trustee or the Holders of at least 25% in aggregate principal amount of the then total outstanding Notes may declare the principal amount of all the then outstanding Notes 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 Notes 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 Notes.
          (b) Notwithstanding the foregoing, in the case of an Event of Default arising under clause (5) or (6) of Section 6.01(a) hereof, all outstanding Notes shall be due and payable immediately without further action or notice.
          (c) The Holders of a majority in aggregate principal amount of the then outstanding Notes 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, interest or premium that has become due solely because of the acceleration) have been cured or waived.

-33-


 

Section 6.03 Other Remedies .
          If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and interest on the Notes or to enforce the performance of any provision of the Notes or this First Supplemental Indenture.
          The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults .
          Holders of not less than a majority in aggregate principal amount of the then outstanding Notes by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default and its consequences hereunder, except a past Default in the payment (a) in principal of, premium if any, or interest on, any Note, or in the payment of any sinking fund installment with respect to the Notes, or (b) in respect of a covenant or provision hereof which pursuant to Article 9 hereof cannot be modified or amended, without the consent of Holders of each outstanding Note affected); provided , subject to Section 6.02 hereof, that the Holders of a majority in aggregate principal amount of the then outstanding Notes may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration. 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 First Supplemental Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.05 Control by Majority .
          The Holders of a majority in principal amount of the then total outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee. The Trustee, however, may refuse to follow any direction that conflicts with law or this First Supplemental Indenture or that the Trustee determines is unduly prejudicial to the rights of any other Holder of a Note or that would involve the Trustee in personal liability.
Section 6.06 Limitation on Suits .
          Subject to Section 6.07 hereof, no Holder of a Note may pursue any remedy with respect to this First Supplemental Indenture or the Notes unless:
     (1) such Holder has previously given the Trustee notice that an Event of Default is continuing;
     (2) Holders of at least 25% in principal amount of the total outstanding Notes have requested the Trustee to pursue the remedy;
     (3) Holders of the Notes have offered the Trustee security or indemnity reasonably satisfactory to it against any loss, liability or expense;

-34-


 

     (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 Notes have not given the Trustee a direction inconsistent with such request within such 60-day period.
          A Holder of a Note may not use this First Supplemental Indenture to prejudice the rights of another Holder of a Note or to obtain a preference or priority over another Holder of a Note.
Section 6.07 Rights of Holders of Notes to Receive Payment .
          Notwithstanding any other provision of this First Supplemental Indenture, the right of any Holder of a Note to receive payment of principal and premium, if any, and interest on the Note, on or after the respective due dates expressed in the Note (including in connection with a Change of Control Offer), 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 6.08 Collection Suit by Trustee .
          If an Event of Default specified in Section 6.01(a)(1) or (2) hereof occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Issuer for the whole amount of principal of, premium, if any, and interest remaining unpaid on the Notes and interest on overdue principal and, to the extent lawful, interest and such further amount 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.
Section 6.09 Restoration of Rights and Remedies .
          If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this First Supplemental 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, subject to any determination in such proceedings, the Issuer, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding has been instituted.
Section 6.10 Rights and Remedies Cumulative .
          Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.07 hereof, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, 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 prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.11 Delay or Omission Not Waiver .
          No delay or omission of the Trustee or of any Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall 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

-35-


 

by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.12 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 Notes allowed in any judicial proceedings relative to the Issuer (or any other obligor upon the Notes including the Parent Guarantor), 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 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 7.07 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 7.07 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 Notes 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 6.13 Priorities .
          If the Trustee collects any money pursuant to this Article 6, it shall pay out the money in the following order:
     (i) to the Trustee, Paying Agent, Registrar, Transfer Agent, their agents and attorneys for amounts due under Section 7.07 hereof, including payment of all compensation, expenses and liabilities incurred, and all advances made, by the Trustee, Paying Agent, Registrar or Transfer Agent and the costs and expenses of collection;
     (ii) to Holders of Notes for amounts due and unpaid on the Notes for principal, premium, if any, and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal and premium, if any, and interest, respectively; and
     (iii) to the Issuer or to such party as a court of competent jurisdiction shall direct, including the Parent Guarantor, if applicable.
          The Trustee may fix a record date and payment date for any payment to Holders of Notes pursuant to this Section 6.13.

-36-


 

Section 6.14 Undertaking for Costs .
          In any suit for the enforcement of any right or remedy under this First Supplemental Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.14 does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee .
          (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this First Supplemental Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
          (b) Except during the continuance of an Event of Default:
     (i) the duties of the Trustee shall be determined solely by the express provisions of this First Supplemental Indenture and the Trustee need perform only those duties that are specifically set forth in this First Supplemental Indenture and no others, and no implied covenants or obligations shall be read into this First Supplemental Indenture against the Trustee; and
     (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this First Supplemental Indenture. However, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this First Supplemental Indenture.
          (c) The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
     (i) this paragraph does not limit the effect of paragraph (b) of this Section 7.01;
     (ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved in a court of competent jurisdiction that the Trustee was negligent in ascertaining the pertinent facts; and
     (iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof.

-37-


 

          (d) Whether or not therein expressly so provided, every provision of this First Supplemental Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.
          (e) The Trustee shall be under no obligation to exercise any of its rights or powers under this First Supplemental Indenture at the request or direction of any of the Holders of the Notes unless the Holders have offered to the Trustee indemnity or security reasonably satisfactory to it against any loss, liability or expense.
          (f) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuer. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Section 7.02 Rights of Trustee .
          (a) 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.
          (b) Before the Trustee acts or refrains from acting, it may require an Officer’s 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 Officer’s 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.
          (c) 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.
          (d) 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 First Supplemental Indenture.
          (e) Unless otherwise specifically provided in this First Supplemental Indenture, any demand, request, direction or notice from the Issuer shall be sufficient if signed by an Officer of the Issuer.
          (f) None of the provisions of this First Supplemental 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.
          (g) 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 First Supplemental Indenture.

-38-


 

          (h) 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.
          (i) 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.
Section 7.03 Individual Rights of Trustee .
          The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or any Affiliate of the Issuer with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest it must eliminate such conflict within 90 days, apply to the SEC for permission to continue as trustee or resign. Any Agent may do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 Trustee’s Disclaimer .
          The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this First Supplemental Indenture or the Notes, it shall not be accountable for the Issuer’s use of the proceeds from the Notes or any money paid to the Issuer or upon the Issuer’s direction under any provision of this First Supplemental Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this First Supplemental Indenture other than its certificate of authentication.
Section 7.05 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 Notes 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 Note, 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 Notes. 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 7.06 Reports by Trustee to Holders of the Notes .
          Within 60 days after each May 15, beginning with the May 15 following the date of this First Supplemental Indenture, and for so long as Notes remain outstanding, the Trustee shall mail to the Holders of the Notes a brief report dated as of such reporting date that complies with Trust Indenture Act Section 313(a) (but if no event described in Trust Indenture Act Section 313(a) has occurred within the twelve months preceding the reporting date, no report need be transmitted). The Trustee also shall comply with Trust Indenture Act Section 313(b)(2). The Trustee shall also transmit by mail all reports as required by Trust Indenture Act Section 313(c).

-39-


 

          A copy of each report at the time of its mailing to the Holders of Notes shall be mailed to the Issuer and filed with the SEC and each stock exchange on which the Notes are listed in accordance with Trust Indenture Act Section 313(d). The Issuer shall promptly notify the Trustee when the Notes are listed on any stock exchange.
Section 7.07 Compensation and Indemnity .
          The Issuer and the Parent Guarantor, jointly and severally, shall pay to the Trustee from time to time such compensation for its acceptance of this First Supplemental Indenture and services hereunder as the parties shall agree in writing from time to time. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer and the Parent Guarantor, jointly and severally, shall reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.
          The Issuer and the Parent Guarantor, jointly and severally, shall indemnify the Trustee for, and hold the Trustee harmless against, any and all loss, damage, claims, liability or expense (including attorneys’ fees) incurred by it in connection with the acceptance or administration of this trust and the performance of its duties hereunder (including the costs and expenses of enforcing this First Supplemental Indenture against the Issuer or the Parent Guarantor (including this Section 7.07) or defending itself against any claim whether asserted by any Holder or the Issuer or the Parent Guarantor, or liability in connection with the acceptance, exercise or performance of any of its powers or duties hereunder). The Trustee shall notify the Issuer promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Issuer shall not relieve the Issuer of its obligations hereunder. The Issuer shall defend the claim and the Trustee may have separate counsel and the Issuer shall pay the fees and expenses of such counsel. The Issuer need not reimburse any expense or indemnify against any loss, liability or expense incurred by the Trustee through the Trustee’s own willful misconduct, negligence or bad faith.
          The obligations of the Issuer and the Parent Guarantor under this Section 7.07 shall survive the satisfaction and discharge of this First Supplemental Indenture or the earlier resignation or removal of the Trustee.
          To secure the payment obligations of the Issuer and the Guarantee in this Section 7.07, the Trustee shall have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Notes. Such Lien shall survive the satisfaction and discharge of this First Supplemental Indenture.
          When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(a)(5) or (6) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
          The Trustee shall comply with the provisions of Trust Indenture Act Section 313(b)(2) to the extent applicable. As used in this Section 7.07, the term “Trustee” shall also include each of the Paying Agent, Registrar, and Transfer Agent, as applicable.
Section 7.08 Replacement of Trustee .
          A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section

-40-


 

7.08. The Trustee may resign in writing at any time and the Registrar, Paying Agent and Transfer Agent may resign with 90 days prior written notice and be discharged from the trust hereby created by so notifying the Issuer. The Holders of a majority in principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuer in writing and may remove the Registrar, Paying Agent or Transfer Agent by so notifying such Registrar, Paying Agent or Transfer Agent, as applicable, with 90 days prior written notice. The Issuer may remove the Trustee if:
     (a) the Trustee fails to comply with Section 7.10 hereof;
     (b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
     (c) a custodian or public officer takes charge of the Trustee or its property; or
     (d) the Trustee becomes incapable of acting.
          If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Issuer shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Issuer.
          If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee (at the Issuer’s expense), the Issuer or the Holders of at least 10% in principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.
          If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10 hereof, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
          A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this First Supplemental Indenture. The successor Trustee shall mail a notice of its succession to Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Issuer’s obligations under Section 7.07 hereof shall continue for the benefit of the retiring Trustee.
          As used in this Section 7.08, the term “Trustee” shall also include each of the Paying Agent, Registrar and Transfer Agent, as applicable.
Section 7.09 Successor Trustee by Merger, etc .
          If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee.

-41-


 

Section 7.10 Eligibility; Disqualification .
          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.
          This First Supplemental 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 7.11 Preferential Collection of Claims Against Issuer .
          The Trustee is subject to Trust Indenture Act Section 311(a), excluding any creditor relationship listed in Trust Indenture Act Section 311(b). A Trustee who has resigned or been removed shall be subject to Trust Indenture Act Section 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance .
          The Issuer may, at its option and at any time, elect to have either Section 8.02 or 8.03 hereof applied to all outstanding Notes upon compliance with the conditions set forth below in this Article 8.
Section 8.02 Legal Defeasance and Discharge .
          Upon the Issuer’s exercise under Section 8.01 hereof of the option applicable to this Section 8.02, the Issuer and the Parent Guarantor shall, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from their obligations with respect to all outstanding Notes and the Guarantee on the date the conditions set forth below are satisfied (“ Legal Defeasance ”). For this purpose, Legal Defeasance means that the Issuer shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other Sections of this First Supplemental Indenture referred to in (a) and (b) below, and to have satisfied all its other obligations under such Notes and this First Supplemental Indenture including that of the Parent Guarantor (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder:
     (a) the rights of Holders of Notes to receive payments in respect of the principal of, premium, if any, and interest on the Notes when such payments are due solely out of the trust created pursuant to this First Supplemental Indenture referred to in Section 8.04 hereof;
     (b) the Issuer’s obligations with respect to such Notes under Article 2 and Section 4.02 hereof;

-42-


 

     (c) the rights, powers, trusts, duties and immunities of the Trustee, and the Issuer’s obligations in connection therewith; and
     (d) this Section 8.02.
          Subject to compliance with this Article 8, the Issuer may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.
Section 8.03 Covenant Defeasance .
          Upon the Issuer’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03, the Issuer shall, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from its obligations under the covenants contained in Sections 4.03, 4.04, 4.06, 4.07, 4.08, 4.09 and 4.10 hereof and Section 5.01(a) hereof with respect to the outstanding Notes on and after the date the conditions set forth in Section 8.04 hereof are satisfied (“ Covenant Defeasance ”), and the Notes shall thereafter be deemed 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 such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, 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 covenant or by reason of any reference in any such 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 6.01 hereof, but, except as specified above, the remainder of this First Supplemental Indenture and such Notes shall be unaffected thereby. In addition, upon the Issuer’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03 hereof, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, Sections 6.01(a)(3), 6.01(a)(5), 6.01(a)(6) and 6.01(a)(7) hereof shall not constitute Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance .
          The following shall be the conditions to the application of either Section 8.02 or 8.03 hereof to the outstanding Notes:
          In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the Notes:
     (1) the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, and interest due on the Notes on the stated Maturity Date or on the Redemption Date, as the case may be, of such principal, premium, if any, or interest on such Notes, and the Issuer must specify whether such Notes are being defeased to maturity or to a particular Redemption Date;
     (2) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions,
     (a) the Issuer has received from, or there has been published by, the United States Internal Revenue Service a ruling, or

-43-


 

     (b) since the issuance of the Notes, there has been a change in the applicable U.S. federal income tax law,
    in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, subject to customary assumptions and exclusions, the Holders of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes, as applicable, as a result of such Legal 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 Legal Defeasance had not occurred;
     (3) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions, the Holders of the Notes 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;
     (4) no Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit;
     (5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any material agreement or instrument (other than this First Supplemental Indenture) to which the Issuer or the Parent Guarantor is a party or by which the Issuer or the Parent Guarantor is bound (other than that resulting from borrowing funds to be applied to make the deposit required to effect such Legal Defeasance or Covenant Defeasance and any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith);
     (6) the Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that, as of the date of such opinion and subject to customary assumptions and exclusions following the deposit, the trust funds will not be subject to the effect of Section 547 of Title 11 of the United States Code;
     (7) the Issuer shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Issuer with the intent of defeating, hindering, delaying or defrauding any creditors of the Issuer or the Parent Guarantor or others; and
     (8) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and exclusions) each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with.
Section 8.05 Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions .
          Subject to Section 8.06 hereof, all money and Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the “ Trustee ”) pursuant to Section 8.04 hereof in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this First

-44-


 

Supplemental Indenture, to the payment, either directly or through any Paying Agent (including the Issuer or the Parent Guarantor acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and to become due thereon in respect of principal, premium and interest, but such money need not be segregated from other funds except to the extent required by law.
          The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or Government Securities deposited pursuant to Section 8.04 hereof or the principal and 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 the outstanding Notes.
          Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer from time to time upon the written request of the Issuer any money or Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(2) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 Repayment to Issuer .
          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, premium or interest on any Note and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Issuer on its request or (if then held by the Issuer) shall be discharged from such trust; and the Holder of such Note shall thereafter look only to the Issuer 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 8.07 Reinstatement .
          If the Trustee or Paying Agent is unable to apply any United States dollars or Government Securities in accordance with Section 8.04 or 8.05 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 Issuer’s obligations under this First Supplemental Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.04 or 8.05 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.04 or 8.05 hereof, as the case may be; provided that, if the Issuer makes any payment of principal of, premium or interest on any Note following the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes .
          Notwithstanding Section 9.02 hereof, the Issuer, the Parent Guarantor (with respect to the Guarantee or this First Supplemental Indenture) and the Trustee may amend or supplement this First Supplemental Indenture, Notes or the Guarantee without the consent of any Holder:

-45-


 

     (1) to evidence the succession of another corporation to the Issuer or the Parent Guarantor and the assumption by such successor of the covenants of the Issuer or the Parent Guarantor in compliance with the requirements set forth in this First Supplemental Indenture; or
     (2) to add to the covenants for the benefit of the Holders or to surrender any right or power herein conferred upon the Issuer or the Parent Guarantor; or
     (3) to add any additional Events of Default; or
     (4) to change or eliminate any of the provisions of this First Supplemental Indenture, provided that any such change or elimination shall become effective only when there are no outstanding Notes 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 the Notes; or
     (6) to supplement any of the provisions of this First Supplemental Indenture to such extent necessary to permit or facilitate the defeasance and discharge of the Notes, provided that any such action does not adversely affect the interests of the Holders of the Notes in any material respect; or
     (7) 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 this First Supplemental Indenture necessary to provide for or facilitate the administration of the trusts by more than one Trustee; or
     (8) to cure any ambiguity to correct or supplement any provision of this First Supplemental Indenture which may be defective or inconsistent with any other provision; or
     (9) to change any place or places where the principal of and premium, if any, and interest, if any, on the Notes shall be payable, the Notes may be surrendered for registration or transfer, the Notes may be surrendered for exchange, and notices and demands to or upon the Issuer may be served; or
     (10) to comply with requirements of the SEC in order to effect or maintain the qualification of this First Supplemental Indenture under the Trust Indenture Act; or
     (11) to conform the text of this First Supplemental Indenture, the Guarantee or the Notes to any provision of the “Description of the unsecured notes” section of the Prospectus to the extent that such provision in such “Description of the unsecured notes” section was intended to be a verbatim recitation of a provision of this First Supplemental Indenture, the Guarantee or the Notes; or
     (12) to make any amendment to the provisions of this First Supplemental Indenture relating to the transfer and legending of Notes as permitted by this First Supplemental Indenture, including, without limitation to facilitate the issuance and administration of the Notes; provided , however , that (i) compliance with this First Supplemental 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 Notes.

-46-


 

          Upon the request of the Issuer accompanied by a resolution of its board of directors authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the Trustee shall join with the Issuer and the Parent Guarantor in the execution of any amended or supplemental indenture authorized or permitted by the terms of this First Supplemental Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this First Supplemental Indenture or otherwise.
Section 9.02 With Consent of Holders of Notes .
          Except as provided below in this Section 9.02, the Issuer, the Parent Guarantor and the Trustee may amend or supplement this First Supplemental Indenture, the Guarantee and the Notes with the consent of the Holders of at least a majority in principal amount of the Notes (including Additional Notes, if any) then outstanding voting as a single class (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium or interest on the Notes, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of this First Supplemental Indenture, the Guarantee or the Notes may be waived with the consent of the Holders of a majority in principal amount of the then outstanding Notes (including Additional Notes, if any) voting as a single class (including consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes). Section 2.08 hereof and Section 2.09 hereof shall determine which Notes are considered to be “outstanding” for the purposes of this Section 9.02.
          Upon the request of the Issuer accompanied by a resolution of its board of directors authorizing the execution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the Trustee shall join with the Issuer in the execution of such amended or supplemental indenture unless such amended or supplemental indenture directly affects the Trustee’s own rights, duties or immunities under this First Supplemental Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental indenture.
          It shall not be necessary for the consent of the Holders of Notes under this Section 9.02 to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof.
          After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Issuer shall mail to the Holders of Notes affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Issuer to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver.
          Without the consent of each affected Holder of Notes, an amendment or waiver under this Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):
     (1) change the stated maturity of the principal of, or installment of interest, if any, on, the Notes, or reduce the principal amount thereof or the interest thereon or any premium payable upon redemption thereof;

-47-


 

     (2) change the currency in which the principal of (and premium, if any) or interest on such Notes 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 of Holders whose consent is required for modification or amendment of this First Supplemental Indenture or for waiver of compliance with certain provisions of this First Supplemental Indenture or certain defaults;
     (5) modify the provisions that require Holder consent to modify or amend this First Supplemental Indenture or that permit Holders to waive compliance with certain provisions of this First Supplemental Indenture or certain defaults; or
     (6) except as expressly permitted by this First Supplemental Indenture, modify the Guarantee in any manner adverse to the Holders of the Notes.
Section 9.03 Compliance with Trust Indenture Act .
          Every amendment or supplement to this First Supplemental Indenture or the Notes shall be set forth in an amended or supplemental indenture that complies with the Trust Indenture Act as then in effect.
Section 9.04 Revocation and Effect of Consents .
          Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder; provided that any amendment or waiver that requires the consent of each affected Holder shall not become effective with respect to any non-consenting Holder.
          The Issuer may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment, supplement, or waiver. If a record date is fixed, then, notwithstanding the preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only such Persons, shall be entitled to consent to such amendment, supplement, or waiver or to revoke any consent previously given, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 120 days after such record date unless the consent of the requisite number of Holders has been obtained.
Section 9.05 Notation on or Exchange of Notes .
          The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Issuer in exchange for all Notes may issue and the

-48-


 

Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver.
          Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, etc .
          The Trustee shall sign any amendment, supplement or waiver authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. The Issuer may not sign an amendment, supplement or waiver until the board of directors approves it. In executing any amendment, supplement or waiver, the Trustee shall be entitled to receive and (subject to Section 7.01 hereof) shall be fully protected in relying upon, in addition to the documents required by Section 12.04 hereof, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture is authorized or permitted by this First Supplemental Indenture and that such amendment, supplement or waiver is the legal, valid and binding obligation of the Issuer and the Parent Guarantor, enforceable against them in accordance with its terms, subject to customary exceptions, and complies with the provisions hereof (including Section 9.03).
Section 9.07 Payment for Consent .
          Neither the Issuer nor any Affiliate of the Issuer shall, directly or indirectly, pay or cause to be paid any consideration, whether by way of interest, fee or otherwise, to any Holder for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this First Supplemental Indenture or the Notes unless such consideration is offered to all Holders and is paid to all Holders that so consent, waive or agree to amend in the time frame set forth in solicitation documents relating to such consent, waiver or agreement.
ARTICLE 10
PARENT GUARANTEE
Section 10.01 Guarantee .
          (a) The Parent Guarantor hereby unconditionally guarantees the punctual payment when due, whether at stated maturity, by acceleration or otherwise, of all of the monetary obligations of the Issuer under this First Supplemental Indenture and the Notes, whether for principal or interest on the Notes, expenses, indemnification or otherwise (all such obligations of the Parent Guarantor being herein referred to as the “ Parent Guaranteed Obligations ”).
          (b) It is the intention of the Parent Guarantor that the Guarantee not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to the Guarantee. To effectuate the foregoing intention, the amount guaranteed by the Parent Guarantor under the Guarantee shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of the Parent Guarantor that are relevant under such laws, result in the obligations of the Parent Guarantor under the Guarantee not constituting a fraudulent transfer or conveyance.
          (c) The Parent Guarantor guarantees that the Parent Guaranteed Obligations will be paid strictly in accordance with the terms of this First Supplemental Indenture, regardless of any law,

-49-


 

regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holders of the Notes with respect thereto. The liability of the Parent Guarantor under the Guarantee shall be absolute and unconditional irrespective of:
     (i) any lack of validity, enforceability or genuineness of any provision of this First Supplemental Indenture, the Notes or any other agreement or instrument relating thereto;
     (ii) any change in the time, manner or place of payment of, or in any other term of, all or any of the Parent Guaranteed Obligations, or any other amendment or waiver of or any consent to departure from this First Supplemental Indenture;
     (iii) any exchange, release or non-perfection of any collateral, or any release or amendment or waiver of or consent to departure from any other guarantee, for all or any of the Parent Guaranteed Obligations; or
     (iv) any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Issuer or a guarantor.
          (d) The Parent Guarantor covenants and agrees that its obligation to make payments of the Parent Guaranteed Obligations hereunder constitutes an unsecured obligation of the Parent Guarantor ranking pari passu with all existing and future senior unsecured indebtedness of the Parent Guarantor that is not subordinated in right of payment to the Parent Guarantee.
          (e) The Parent Guarantor hereby waives promptness, diligence, notice of acceptance and any other notice with respect to the Guarantee and any requirement that the Trustee, or the Holders of any Notes protect, secure, perfect or insure any security interest or lien or any property subject thereto or exhaust any right or take any action against the Issuer or any other Person or any collateral.
          (f) The Parent Guarantor hereby irrevocably waives any claims or other rights that it may now or hereafter acquire against the Issuer that arise from the existence, payment, performance or enforcement of the Parent Guarantor’s obligations under the Guarantee or this First Supplemental Indenture, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Trustee, or the Holders of any Notes against the Issuer or any collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Issuer, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right. If any amount shall be paid to the Parent Guarantor in violation of the preceding sentence at any time prior to the cash payment in full of the Parent Guaranteed Obligations and all other amounts payable under the Guarantee, such amount shall be held in trust for the benefit of the Trustee and the Holders of any Notes and shall forthwith be paid to the Trustee, to be credited and applied to the Parent Guaranteed Obligations and all other amounts payable under the Guarantee, whether matured or unmatured, in accordance with the terms of this First Supplemental Indenture and the Guarantee, or be held as collateral for any Parent Guarantor Obligations or other amounts payable under the Guarantee thereafter arising. The Parent Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this First Supplemental Indenture and the Guarantee and that the waiver set forth in this Section 10.01 is knowingly made in contemplation of such benefits.
          (g) No failure on the part of the Trustee or any Holder of the Notes to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial

-50-


 

exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
          (h) The Guarantee is a continuing guarantee and shall (a) subject to paragraph 10.01(i), remain in full force and effect until payment in full of the principal amount of all outstanding Notes (whether by payment at maturity, purchase, redemption, defeasance, retirement or other acquisition) and all other applicable Parent Guaranteed Obligations of the Parent Guarantor then due and owing, (b) be binding upon the Parent Guarantor, its successors and assigns, and (c) inure to the benefit of and be enforceable by the Trustee, any Holder of Notes, and by their respective successors, transferees, and assigns.
          (i) The Parent Guarantor will automatically and unconditionally be released from all Parent Guarantee Obligations, and the Guarantee shall thereupon terminate and be discharged and of no further force of effect, (i) upon any merger or consolidation of such Parent Guarantor with the Issuer, (ii) upon exercise by the Issuer of its Legal Defeasance option or Covenant Defeasance option in accordance with Article 8 hereof or the discharge of the Issuer’s obligations under this Second Supplemental Indenture, in accordance with the terms of this Second Supplemental Indenture, or (iii) upon payment in full of the aggregate principal amount of all Notes then outstanding and all other applicable Parent Guaranteed Obligations of the Parent Guarantor then due and owing.
     Upon any such occurrence specified in this paragraph 10.01(i), the Trustee shall execute upon request by the Issuer, any documents reasonably required in order to evidence such release, discharge and termination in respect of the Guarantee. Neither the Issuer nor the Parent Guarantor shall be required to make a notation on the Notes to reflect the Guarantee or any such release, termination or discharge.
          (j) The Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Guarantee, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
          (k) The Parent Guarantor may amend the Guarantee at any time for any purpose without the consent of the Trustee or any Holder of the Notes; provided , however , that if such amendment adversely affects (a) the rights of the Trustee or (b) any Holder of the Notes, the prior written consent of the Trustee (in the case of (b), acting at the written direction of the Holders of more than 50% in aggregate principal amount of Notes) shall be required.
ARTICLE 11
SATISFACTION AND DISCHARGE
Section 11.01 Satisfaction and Discharge .
          This First Supplemental Indenture shall be discharged and shall cease to be of further effect as to all Notes, when either:

-51-


 

     (1) all Notes theretofore authenticated and delivered, except lost, stolen or destroyed Notes which have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust, have been delivered to the Trustee for cancellation; or
     (2) (A) all Notes not theretofore delivered to the Trustee for cancellation have become due and payable by reason of the making of a notice of redemption or otherwise, shall become due and payable within one year or may 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 or the Parent Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders of the Notes, cash in U.S. dollars, Government Securities, or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest to pay and discharge the entire indebtedness on the Notes not theretofore delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or redemption;
     (B) no Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith) with respect to this First Supplemental Indenture or the Notes shall have occurred and be continuing on the date of such deposit or shall occur as a result of such deposit and such deposit will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this First Supplemental Indenture) to which the Issuer or the Parent Guarantor is a party or by which the Issuer is bound (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness and in each case, the granting of Liens in connection therewith);
     (C) the Issuer has paid or caused to be paid all sums payable by it under this First Supplemental Indenture; and
     (D) the Issuer has delivered irrevocable instructions to the Trustee to apply the deposited money toward the payment of the Notes at maturity or the Redemption Date, as the case may be.
          In addition, the Issuer must deliver an Officer’s Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.
          Notwithstanding the satisfaction and discharge of this First Supplemental Indenture, if money shall have been deposited with the Trustee pursuant to subclause (A) of clause (2) of this Section 11.01, the provisions of Section 11.02 and Section 8.06 hereof shall survive.
Section 11.02 Application of Trust Money .
          Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee pursuant to Section 11.01 hereof shall be held in trust and applied by it, in accordance with the provisions of the Notes and this First Supplemental Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.

-52-


 

          If the Trustee or Paying Agent is unable to apply any money or Government Securities in accordance with Section 11.01 hereof by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s and the Parent Guarantor’s obligations under this First Supplemental Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01 hereof; provided that if the Issuer has made any payment of principal of, premium or interest on any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or Government Securities held by the Trustee or Paying Agent.
ARTICLE 12
MISCELLANEOUS
Section 12.01 Trust Indenture Act Controls .
          If any provision of this First Supplemental Indenture limits, qualifies or conflicts with the duties imposed by Trust Indenture Act Section 318(c), the imposed duties shall control.
Section 12.02 Notices .
          Any notice or communication by the Issuer, the Parent Guarantor or the Trustee to the others is duly given 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 others’ address:
          If to the Issuer:
HCA Inc.
One Park Plaza
Nashville, Tennessee 37203
Fax No.: (615) 344-1531; Attention: General Counsel
Fax No.: (866) 741-5906; Attention: Treasurer
If to the Parent Guarantor:
HCA Holdings, Inc.
c/o HCA Inc.
One Park Plaza
Nashville, Tennessee 37203
Fax No.: (615) 344-1531; Attention: General Counsel
Fax No.: (866) 741-5906; Attention: Treasurer
If to the Trustee:
Law Debenture Trust Company of New York
400 Madison Avenue
New York, New York 10017
Fax No.: (212) 750-1361
Attention: Corporate Trust Administration

-53-


 

If to the Registrar, Paying Agent or Transfer Agent:
Deutsche Bank Trust Company Americas
c/o Deutsche Bank National Trust Company
Trust & Securities Services
100 Plaza One, Mailstop JCY03-0699
Jersey City, New Jersey 07311
Fax No.: (732) 578-4635
Attn: Corporates Team Deal Manager — HCA Inc.
          The Issuer, the Parent Guarantor or the Trustee, by notice to the others, may designate additional or different addresses for subsequent notices or communications.
          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.
          Any notice or communication to a Holder shall be mailed by first-class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar. 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.
          If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
          If the Issuer mails a notice or communication to Holders, it shall mail a copy to the Trustee and each Agent at the same time.
Section 12.03 Communication by Holders of Notes with Other Holders of Notes .
          Holders may communicate pursuant to Trust Indenture Act Section 312(b) with other Holders with respect to their rights under this First Supplemental Indenture or the Notes. The Issuer, the Trustee, the Registrar and anyone else shall have the protection of Trust Indenture Act Section 312(c).
Section 12.04 Certificate and Opinion as to Conditions Precedent .
          Upon any request or application by the Issuer or the Parent Guarantor to the Trustee to take any action under this First Supplemental Indenture, the Issuer or the Parent Guarantor, as the case may be, shall furnish to the Trustee:
          (a) An Officer’s Certificate in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 12.05 hereof) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this First Supplemental Indenture relating to the proposed action have been satisfied; and

-54-


 

          (b) An Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 12.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.
Section 12.05 Statements Required in Certificate or Opinion .
          Each certificate or opinion with respect to compliance with a condition or covenant provided for in this First Supplemental Indenture (other than a certificate provided pursuant to Section 4.03 hereof or Trust Indenture Act Section 314(a)(4)) shall comply with the provisions of Trust Indenture Act Section 314(e) and shall include:
     (a) a statement that the Person making such certificate or opinion has read such covenant or condition;
     (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
     (c) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with (and, in the case of an Opinion of Counsel, may be limited to reliance on an Officer’s Certificate as to matters of fact); and
     (d) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
Section 12.06 Rules by Trustee and Agents .
          The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
Section 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders .
          No director, officer, employee, incorporator or stockholder of the Issuer or the Parent Guarantor shall have any liability for any obligations of the Issuer or the Parent Guarantor under the Notes, the Guarantee or this First Supplemental Indenture or for any claim based on, in respect of, or by reason of such obligations or their creation. Each Holder by accepting the Notes waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
Section 12.08 Governing Law .
          THIS FIRST SUPPLEMENTAL INDENTURE, THE NOTES AND ANY GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 12.09 Waiver of Jury Trial .
          EACH OF THE ISSUER, THE PARENT GUARANTOR AND THE TRUSTEE 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

-55-


 

OF OR RELATING TO THIS FIRST SUPPLEMENTAL INDENTURE, THE GUARANTEE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 12.10 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 First Supplemental 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 12.11 No Adverse Interpretation of Other Agreements .
          This First Supplemental Indenture may not be used to interpret any other indenture, loan or debt agreement of the Issuer or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this First Supplemental Indenture.
Section 12.12 Successors .
     All agreements of the Issuer in this First Supplemental Indenture and the Notes shall bind its successors. All agreements of the Trustee and the Paying Agent, Registrar and Transfer Agent in this First Supplemental Indenture shall bind their respective successors.
Section 12.13 Severability .
          In case any provision in this First Supplemental Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 12.14 Counterpart Originals .
          The parties may sign any number of copies of this First Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
Section 12.15 Table of Contents, Headings, etc .
          The Table of Contents, Cross-Reference Table and headings of the Articles and Sections of this First Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this First Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
Section 12.16 Qualification of First Supplemental Indenture .
          The Issuer and the Parent Guarantor shall qualify this First Supplemental Indenture under the Trust Indenture Act in accordance with and to the extent required by the terms and conditions of the Registration Rights Agreement and shall pay all reasonable costs and expenses (including attorneys’ fees and expenses for the Issuer, the Parent Guarantor and the Trustee) incurred in connection therewith, including, but not limited to, costs and expenses of qualification of this First Supplemental Indenture and the Notes and printing this First Supplemental Indenture and the Notes. The Trustee shall be entitled to receive from the Issuer and the Parent Guarantor any such Officer’s Certificates, Opinions of Counsel or

-56-


 

other documentation as it may reasonably request in connection with any such qualification of this First Supplemental Indenture under the Trust Indenture Act.
Section 12.17 USA Patriot Act .
          The parties hereto acknowledge that in accordance with Section 326 of the USA Patriot Act, the Trustee and Agents, like all financial institutions and in order to help fight the funding of terrorism and money laundering, are required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account. The parties to this agreement agree that they will provide the Trustee and the Agents with such information as they may request in order to satisfy the requirements of the USA Patriot Act.
[Signatures on following pages]

-57-


 

         
  HCA INC.
 
 
  By:   /s/ David G. Anderson    
    Name:   David G. Anderson   
    Title:   Senior Vice President — Finance and
Treasurer 
 
 
  HCA HOLDINGS, INC., as Parent Guarantor
 
 
  By:   /s/ David G. Anderson    
    Name:   David G. Anderson   
    Title:   Senior Vice President — Finance and
Treasurer 
 
 
Signature Page to First Supplemental Indenture

 


 

         
  LAW DEBENTURE TRUST COMPANY OF NEW YORK, as Trustee
 
 
  By:   /s/ James D. Heaney    
    Name:   James D. Heaney   
    Title:   Managing Director   
 
Signature Page to First Supplemental Indenture

 


 

             
    DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Paying Agent, Registrar and Transfer Agent
 
           
    By:   Deutsche Bank National Trust Company
 
           
    By:   /s/ Wanda Camacho
         
 
      Name:   Wanda Camacho
 
      Title:   Vice President
 
           
    By:   /s/ Jeffrey Schoenfeld
         
 
      Name:   Jeffrey Schoenfeld
 
      Title:   Associate
Signature Page to First Supplemental Indenture

 


 

EXHIBIT A
[Face of Note]
[Insert the Global Note Legend, if applicable, pursuant to the provisions of the First Supplemental Indenture]

 


 

CUSIP [                    ]
ISIN [                    ] 1
GLOBAL NOTE
7.50% Senior Notes due 2022
     
No. ___   [$______________]
HCA INC.
promises to pay to CEDE & CO. or registered assigns, the principal sum [set forth on the Schedule of Exchanges of Interests in the Global Note attached hereto] [of                                           United States Dollars] on February 15, 2022.
Interest Payment Dates: February 15 and August 15
Record Dates: February 1 and August 1
 
1    
     
CUSIP Numbers:
  404121AD7
ISIN Numbers:
  US404121AD78

A-2


 

          IN WITNESS HEREOF, the Issuer has caused this instrument to be duly executed.
Dated: August 1, 2011
         
  HCA INC.
 
 
  By:      
    Name:      
    Title:      
 

A-3


 

This is one of the Notes referred to in the within-mentioned First Supplemental Indenture:
         
  LAW DEBENTURE TRUST COMPANY OF NEW YORK, as Trustee
 
 
  By:      
    Authorized Signatory   
       
 

A-4


 

[Back of Note]
7.50% Senior Notes due 2022
          Capitalized terms used herein shall have the meanings assigned to them in the Supplemental Indenture referred to below unless otherwise indicated.
          1. INTEREST. HCA Inc., a Delaware corporation, promises to pay interest on the principal amount of this Note at 7.50% per annum from August 1, 2011 until maturity. The Issuer will pay interest semi-annually in arrears on February 15 and August 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “ Interest Payment Date ”). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided that the first Interest Payment Date shall be February 15, 2012. The Issuer will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at the interest rate on the Notes; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand at the interest rate on the Notes. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months.
          2. METHOD OF PAYMENT. The Issuer will pay interest on the Notes to the Persons who are registered Holders of Notes at the close of business on the February 1 and August 1 (whether or not a Business Day), as the case may be, next preceding the Interest Payment Date, even if such Notes are cancelled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the First Supplemental Indenture with respect to defaulted interest. Payment of interest may be made by check mailed to the Holders at their addresses set forth in the register of Holders, provided that payment by wire transfer of immediately available funds will be required with respect to principal of and interest, premium on, all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Issuer or the Paying Agent. Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
          3. PAYING AGENT AND REGISTRAR. Initially, Deutsche Bank Trust Company Americas will act as Paying Agent and Registrar. The Issuer may change any Paying Agent or Registrar without notice to the Holders. The Issuer or any of its Subsidiaries may act in any such capacity.
          4. FIRST SUPPLEMENTAL INDENTURE. The Issuer issued the Notes under the Base Indenture dated as of August 1, 2011 (the “ Base Indenture ”) among the HCA Inc., the Parent Guarantor, the Trustee and the Paying Agent, Registrar and Transfer Agent, as supplemented by Supplemental Indenture No. 1, dated as of August 1, 2011 (the “ First Supplemental Indenture ”), among HCA Inc., the Parent Guarantor, the Trustee and the Paying Agent, Registrar and Transfer Agent. This Note is one of a duly authorized issue of notes of the Issuer designated as its 7.50% Senior Notes due 2022. The Issuer shall be entitled to issue Additional Notes pursuant to Section 2.01 of the First Supplemental Indenture. The terms of the Notes include those stated in the First Supplemental Indenture and those made part of the First Supplemental Indenture by reference to the Trust Indenture Act of 1939, as amended (the “ Trust Indenture Act ”). The Notes are subject to all such terms, and Holders are referred to the First Supplemental Indenture and such Act for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the First Supplemental Indenture or the Base Indenture, the provisions of the First Supplemental Indenture shall govern and be controlling.

A-5


 

          5. OPTIONAL REDEMPTION.
          (a) Except as set forth below, the Issuer will not be entitled to redeem Notes at its option prior to the Maturity Date.
          (b) The Notes will be redeemable, at the Issuer’s option, at any time in whole or from time to time in part, at a redemption, or “make-whole,” price equal to the greater of: 100% of the aggregate principal amount of the Notes to be redeemed, and an amount equal to sum of the present value of the remaining scheduled payments of principal of and interest on the Notes to be redeemed (excluding accrued and unpaid interest to the Redemption Date and subject to the right of Holders on the relevant Record Date to receive interest due on the relevant Interest Payment Date) discounted from their scheduled date of payment to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) using a discount rate equal to the Treasury Rate plus 50 basis points plus, in each of the above cases, accrued and unpaid interest, if any, to such Redemption Date.
          (c) Any notice of any redemption may be given prior to the redemption thereof, and any such redemption or notice may, at the Issuer’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of an Equity Offering or other corporate transaction.
          (d) If the Issuer redeems less than all of the outstanding Notes, the Registrar and Paying Agent shall select the Notes to be redeemed in the manner described under Section 3.02 of the First Supplemental Indenture.
          (e) Any redemption pursuant to this paragraph 5 shall be made pursuant to the provisions of Sections 3.01 through 3.06 of the First Supplemental Indenture.
          6. MANDATORY REDEMPTION. The Issuer shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes.
          7. NOTICE OF REDEMPTION. Subject to Section 3.03 of the First Supplemental Indenture, notice of redemption will be mailed by first-class mail at least 30 days but not more than 60 days before the Redemption Date (except that redemption notices may be mailed more than 60 days prior to a Redemption Date if the notice is issued in connection with Article 8 of the First Supplemental Indenture) to each Holder whose Notes are to be redeemed at its registered address. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000 in excess thereof, unless all of the Notes held by a Holder are to be redeemed. On and after the Redemption Date interest ceases to accrue on Notes or portions thereof called for redemption.
          8. OFFERS TO REPURCHASE. Upon the occurrence of a Change of Control, the Issuer shall make an offer (a “ Change of Control Offer ”) to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holder’s Notes at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to the date of purchase (the “ Change of Control Payment ”). The Change of Control Offer shall be made in accordance with Section 4.10 of the First Supplemental Indenture.
          9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the First Supplemental Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuer may require a Holder to pay any taxes and fees required by law or permitted by the First Supplemental Indenture. The Issuer need not exchange or

A-6


 

register the transfer of any Notes or portion of Notes selected for redemption, except for the unredeemed portion of any Notes being redeemed in part. Also, the Issuer need not exchange or register the transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed.
          10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes.
          11. AMENDMENT, SUPPLEMENT AND WAIVER. The First Supplemental Indenture, the Guarantee or the Notes may be amended or supplemented as provided in the First Supplemental Indenture.
          12. DEFAULTS AND REMEDIES. The Events of Default relating to the Notes are defined in Section 6.01 of the First Supplemental Indenture. If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes may declare the principal, premium, if any, interest and any other monetary obligations on all the then outstanding Notes to be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency, all outstanding Notes will become due and payable immediately without further action or notice. Holders may not enforce the First Supplemental Indenture, the Notes or the Guarantee except as provided in the First Supplemental Indenture. Subject to certain limitations, Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Notes notice of any continuing Default (except a Default relating to the payment of principal, premium, if any, or interest) if it determines that withholding notice is in their interest. The Holders of a majority in aggregate principal amount of the Notes then outstanding by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default or and its consequences under the First Supplemental Indenture except a continuing Default in payment of the principal of, premium, if any, or interest on, any of the Notes held by a non-consenting Holder. The Issuer is required to deliver to the Trustee annually a statement regarding compliance with the First Supplemental Indenture, and the Issuer is required within five (5) Business Days after becoming aware of any Default, to deliver to the Trustee a statement specifying such Default and what action the Issuer proposes to take with respect thereto.
          13. AUTHENTICATION. This Note shall not be entitled to any benefit under the First Supplemental Indenture or be valid or obligatory for any purpose until authenticated by the manual signature of the Trustee.
          14. [RESERVED].
          15. GOVERNING LAW. THIS FIRST SUPPLEMENTAL INDENTURE, THE NOTES AND ANY GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
          16. CUSIP/ISIN NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP/ISIN numbers to be printed on the Notes and the Trustee may use CUSIP/ISIN numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.

A-7


 

          The Issuer will furnish to any Holder upon written request and without charge a copy of the First Supplemental Indenture. Requests may be made to the Issuer at the following address:
HCA Inc.
One Park Plaza
Nashville, Tennessee 37203
Fax No.: (615) 344-1531; Attention: General Counsel
Fax No.: (866) 741-5906; Attention: Treasurer

A-8


 

ASSIGNMENT FORM
          To assign this Note, fill in the form below:
     
(I) or (we) assign and transfer this Note to:
   
 
   
 
  (Insert assignee’s legal name)
 
(Insert assignee’s soc. sec. or tax I.D. no.)
 
 
 
 
(Print or type assignee’s name, address and zip code)
     
and irrevocably appoint
   
 
   
to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Date:                                          
             
 
  Your Signature:        
 
     
 
(Sign exactly as your name appears on the face of this Note)
   
Signature Guarantee*:                                                               
 
*   Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

A-9


 

OPTION OF HOLDER TO ELECT PURCHASE
          If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.10 of the First Supplemental Indenture, check the appropriate box below:
[  ] Section 4.10
          If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 4.10 of the First Supplemental Indenture, state the amount you elect to have purchased:
$_______________
Date:                                          
             
 
  Your Signature:        
 
     
 
(Sign exactly as your name appears on the face of this Note)
   
 
  Tax Identification No.:      
 
     
 
   
Signature Guarantee*:                                                               
 
*   Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

A-10


 

SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
          The initial outstanding principal amount of this Global Note is $_________. The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:
                 
            Principal Amount    
    Amount of       of    
    decrease   Amount of increase   this Global Note   Signature of
    in Principal   in Principal   following such   authorized officer
Date of   Amount of this   Amount of this   decrease or   of Trustee or
Exchange   Global Note   Global Note   increase   Notes Registrar
                 
 
*   This schedule should be included only if the Note is issued in global form.

A-11

Exhibit 4.3
EXECUTION COPY
HCA INC.,
as Issuer,
HCA HOLDINGS, INC.,
as Parent Guarantor,
THE SUBSIDIARY GUARANTORS NAMED ON SCHEDULE I HERETO,
LAW DEBENTURE TRUST COMPANY OF NEW YORK,
as Trustee,
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Paying Agent, Registrar and Transfer Agent
6.50% SENIOR SECURED NOTES DUE 2020
SUPPLEMENTAL INDENTURE NO. 2
Dated as of August 1, 2011
To BASE INDENTURE
Dated as of August 1, 2011

 


 

CROSS-REFERENCE TABLE*
         
Trust Indenture Act Section   Indenture Section  
310 (a)(1)
    7.10  
(a)(2)
    7.10  
(a)(3)
    N.A.  
(a)(4)
    N.A.  
(a)(5)
    7.10  
(b)
    7.10  
(c)
    N.A.  
311 (a)
    7.11  
(b)
    7.11  
(c)
    N.A.  
312 (a)
    2.05  
(b)
    11.03  
(c)
    11.03  
313 (a)
    7.06  
(b)(1)
    N.A.  
(b)(2)
    7.06; 7.07  
(c)
    7.06; 11.02  
(d)
    7.06; 11.02  
314 (a)
    11.02; 11.05  
(b)
    N.A.  
(c)(1)
    11.04  
(c)(2)
    11.04  
(c)(3)
    N.A.  
(d)
    N.A.  
(e)
    11.05  
(f)
    N.A.  
315 (a)
    7.01  
(b)
    7.05  
(c)
    7.01  
(d)
    7.01  
(e)
    6.14  
316 (a)(last sentence)
    2.09  
(a)(1)(A)
    6.05  
(a)(1)(B)
    6.04  
(a)(2)
    N.A.  
(b)
    6.07  
(c)
    2.12; 9.04  
317 (a)(1)
    6.08  
(a)(2)
    6.12  
(b)
    2.04  
318 (a)
    11.01  
(b)
    N.A.  
(c)
    11.01  
 
N.A.   means not applicable.
 
*   This Cross-Reference Table is not part of this Second Supplemental Indenture.

 


 

TABLE OF CONTENTS
         
    Page  
ARTICLE 1
       
 
       
DEFINITIONS AND INCORPORATION BY REFERENCE
       
 
       
Section 1.01 Definitions
    1  
Section 1.02 Other Definitions
    32  
Section 1.03 Incorporation by Reference of Trust Indenture Act
    33  
Section 1.04 Rules of Construction.
    33  
Section 1.05 Acts of Holders
    34  
 
       
ARTICLE 2
       
 
       
THE NOTES
       
 
       
Section 2.01 Form and Dating; Terms
    36  
Section 2.02 Execution and Authentication
    36  
Section 2.03 Registrar and Paying Agent
    37  
Section 2.04 Paying Agent to Hold Money in Trust
    37  
Section 2.05 Holder Lists
    38  
Section 2.06 Transfer and Exchange
    38  
Section 2.07 Replacement Notes
    41  
Section 2.08 Outstanding Notes
    41  
Section 2.09 Treasury Notes
    42  
Section 2.10 Temporary Notes
    42  
Section 2.11 Cancellation
    42  
Section 2.12 Defaulted Interest
    42  
Section 2.13 CUSIP and ISIN Numbers
    43  
 
       
ARTICLE 3
       
 
       
REDEMPTION
       
 
       
Section 3.01 Notices to Trustee
    43  
Section 3.02 Selection of Notes to Be Redeemed or Purchased
    43  
Section 3.03 Notice of Redemption
    44  
Section 3.04 Effect of Notice of Redemption
    45  
Section 3.05 Deposit of Redemption or Purchase Price
    45  
Section 3.06 Notes Redeemed or Purchased in Part
    45  
Section 3.07 Optional Redemption
    46  
Section 3.08 Mandatory Redemption
    46  
 
       
ARTICLE 4
       
 
       
COVENANTS
       
 
       
Section 4.01 Payment of Notes
    50  

-i-


 

         
    Page  
Section 4.02 Maintenance of Office or Agency
    50  
Section 4.03 Compliance Certificate
    51  
Section 4.04 Taxes
    51  
Section 4.05 Stay, Extension and Usury Laws
    51  
Section 4.06 Corporate Existence
    51  
Section 4.07 Offer to Repurchase upon Change of Control
    52  
Section 4.08 Asset Sales.
    53  
Section 4.09 Liens
    56  
Section 4.10 Discharge and Suspension of Covenants
    57  
Section 4.11 Covenants Termination and Release of Collateral; Investment Grade Covenants
    58  
 
       
ARTICLE 5
       
 
       
SUCCESSORS
       
 
       
Section 5.01 Merger, Consolidation or Sale of All or Substantially All Assets
    60  
Section 5.02 Successor Corporation Substituted
    61  
 
       
ARTICLE 6
       
 
       
DEFAULTS AND REMEDIES
       
 
       
Section 6.01 Events of Default
    62  
Section 6.02 Acceleration
    63  
Section 6.03 Other Remedies
    64  
Section 6.04 Waiver of Past Defaults
    64  
Section 6.05 Control by Majority
    64  
Section 6.06 Limitation on Suits
    64  
Section 6.07 Rights of Holders of Notes to Receive Payment
    65  
Section 6.08 Collection Suit by Trustee
    65  
Section 6.09 Restoration of Rights and Remedies
    65  
Section 6.10 Rights and Remedies Cumulative
    65  
Section 6.11 Delay or Omission Not Waiver
    65  
Section 6.12 Trustee May File Proofs of Claim
    66  
Section 6.13 Priorities
    66  
Section 6.14 Undertaking for Costs
    67  
 
       
ARTICLE 7
       
 
       
TRUSTEE
       
 
       
Section 7.01 Duties of Trustee
    67  
Section 7.02 Rights of Trustee
    68  
Section 7.03 Individual Rights of Trustee
    69  
Section 7.04 Trustee’s Disclaimer
    69  
Section 7.05 Notice of Defaults
    69  
Section 7.06 Reports by Trustee to Holders of the Notes
    69  
Section 7.07 Compensation and Indemnity
    70  
Section 7.08 Replacement of Trustee
    70  
Section 7.09 Successor Trustee by Merger, etc
    71  

-ii-


 

         
    Page  
Section 7.10 Eligibility; Disqualification
    71  
Section 7.11 Preferential Collection of Claims Against Issuer
    72  
 
       
ARTICLE 8
       
 
       
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
       
 
       
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance
    72  
Section 8.02 Legal Defeasance and Discharge
    72  
Section 8.03 Covenant Defeasance
    73  
Section 8.04 Conditions to Legal or Covenant Defeasance
    73  
Section 8.05 Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions
    74  
Section 8.06 Repayment to Issuer
    75  
Section 8.07 Reinstatement
    75  
 
       
ARTICLE 9
       
 
       
AMENDMENT, SUPPLEMENT AND WAIVER
       
 
       
Section 9.01 Without Consent of Holders of Notes
    75  
Section 9.02 With Consent of Holders of Notes
    77  
Section 9.03 Compliance with Trust Indenture Act
    79  
Section 9.04 Revocation and Effect of Consents
    79  
Section 9.05 Notation on or Exchange of Notes
    79  
Section 9.06 Trustee to Sign Amendments, etc
    79  
Section 9.07 Payment for Consent
    80  
 
       
ARTICLE 10
       
 
       
RANKING OF NOTE LIENS
       
 
       
Section 10.01 Relative Rights
    80  
 
       
ARTICLE 11
       
 
       
COLLATERAL
       
 
       
Section 11.01 Security Documents
    81  
Section 11.02 First Lien Collateral Agent
    81  
Section 11.03 Authorization of Actions to Be Taken
    82  
Section 11.04 Release of Collateral
    83  
Section 11.05 Filing, Recording and Opinions
    84  
Section 11.06 Powers Exercisable by Receiver or Trustee
    85  
Section 11.07 Release upon Termination of the Issuer’s Obligations
    85  
Section 11.08 Designations
    85  

-iii-


 

         
    Page  
ARTICLE 12
       
 
       
GUARANTEES
       
 
       
Section 12.01 Subsidiary Guarantee
    86  
Section 12.02 Limitation on Subsidiary Guarantor Liability
    87  
Section 12.03 Execution and Delivery
    88  
Section 12.04 Subrogation
    88  
Section 12.05 Benefits Acknowledged
    88  
Section 12.06 Release of Guarantees
    88  
Section 12.07 Parent Guarantee
    89  
 
       
ARTICLE 13
       
 
       
SATISFACTION AND DISCHARGE
       
 
       
Section 13.01 Satisfaction and Discharge
    91  
Section 13.02 Application of Trust Money
    92  
 
       
ARTICLE 14
       
 
       
MISCELLANEOUS
       
 
       
Section 14.01 Trust Indenture Act Controls
    93  
Section 14.02 Notices
    93  
Section 14.03 Communication by Holders of Notes with Other Holders of Notes
    94  
Section 14.04 Certificate and Opinion as to Conditions Precedent
    94  
Section 14.05 Statements Required in Certificate or Opinion
    94  
Section 14.06 Rules by Trustee and Agents
    95  
Section 14.07 No Personal Liability of Directors, Officers, Employees and Stockholders
    95  
Section 14.08 Governing Law
    95  
Section 14.09 Waiver of Jury Trial
    95  
Section 14.10 Force Majeure
    95  
Section 14.11 No Adverse Interpretation of Other Agreements
    95  
Section 14.12 Successors
    95  
Section 14.13 Severability
    96  
Section 14.14 Counterpart Originals
    96  
Section 14.15 Table of Contents, Headings, etc
    96  
Section 14.16 Qualification of Second Supplemental Indenture
    96  
Section 14.17 USA Patriot Act
    96  
EXHIBITS
         
Exhibit A            Form of Note
       
Exhibit B            Form of Supplemental Indenture to be Delivered to Subsequent Guarantors
       

-iv-


 

          SUPPLEMENTAL INDENTURE NO. 2 (the “ Second Supplemental Indenture ”), dated as of August 1, 2011, among HCA Inc., a Delaware corporation (the “ Issuer ”), HCA Holdings, Inc. (the “ Parent Guarantor ”), the other guarantors listed in Schedule I hereto (the “ Subsidiary Guarantors ”, and together with the Parent Guarantor, the “ Guarantors ”), Law Debenture Trust Company of New York, as Trustee, and Deutsche Bank Trust Company Americas, as Paying Agent, Registrar and Transfer Agent.
W I T N E S S E T H
          WHEREAS, the Issuer, the Guarantors and the Trustee have executed and delivered a base indenture, dated as of August 1, 2011 (as amended, supplemented or otherwise modified from time to time, the “ Base Indenture ”) to provide for the future issuance of the Issuer’s senior debt securities to be issued from time to time in one or more series; and
          WHEREAS, the Issuer has duly authorized the creation of an issue of $3,000,000,000 aggregate principal amount of 6.50% Senior Secured Notes due 2020 (the “ Initial Notes ”), which shall be guaranteed by the Guarantors, which has been duly authenticated by each of the Guarantors; and in connection therewith, each of the Issuer and each of the Guarantors has duly authorized the execution and delivery of this Second Supplemental Indenture to set forth the terms and provisions of the Notes as contemplated by the Base Indenture. This Second Supplemental Indenture restates in their entirety the terms of the Base Indenture as supplemented by this Second Supplemental Indenture and does not incorporate the terms of the Base Indenture. The changes, modifications and supplements to the Base Indenture affected by this Second Supplemental Indenture shall be applicable only with respect to, and shall only govern the terms of, the Notes, except as otherwise provided herein, and shall not apply to any other securities that may be issued under the Base Indenture unless a supplemental indenture with respect to such other securities specifically incorporates such changes, modifications and supplements.
          NOW, THEREFORE, the Issuer, the Guarantors, the Trustee and the Paying Agent, Registrar and Transfer Agent agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the Notes.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions .
          “ 2006 Second Priority Notes ” means the $1,000,000,000 aggregate principal amount of 91/8% Senior Secured Notes due 2014, the $3,200,000,000 aggregate principal amount of 9 1/4% Senior Secured Notes due 2016 and the $1,500,000,000 9 5/8%/10 3/8% Senior Secured Toggle Notes due 2016, each issued by the Issuer under the 2006 Second Priority Notes Indenture.
          “ 2006 Second Priority Notes Indenture ” means that certain Indenture, dated as of November 17, 2006, among the Issuer, the guarantors named on Schedule I thereto and The Bank of New York Mellon, as trustee.
          “ 2009 Second Priority Notes ” means the $310,000,000 aggregate principal amount of 9 7/8% Senior Secured Notes due 2017, issued by the Issuer under the 2009 Second Priority Notes Indenture.

 


 

          “ 2009 Second Priority Notes Indenture ” means that certain Indenture, dated as of February 19, 2009, among the Issuer, the guarantors named on Schedule I thereto, The Bank of New York Mellon Trust Company, N.A., as trustee, and The Bank of New York Mellon, as collateral agent.
          “ ABL Collateral Agent ” means Bank of America, N.A., in its capacity as administrative agent and collateral agent for the lenders and other secured parties under the ABL Facility and the credit, guarantee and security documents governing the ABL Obligations, together with its successors and permitted assigns under the ABL Facility exercising substantially the same rights and powers; and in each case provided that if such ABL Collateral Agent is not Bank of America, N.A., such ABL Collateral Agent shall have become a party to the Shared Receivables Intercreditor Agreement and the other applicable Shared Receivables Security Documents.
          “ ABL Facility ” means the Amended and Restated Asset-Based Revolving Credit Agreement, dated as of June 20, 2007, by and among the Issuer, the lenders party thereto in their capacities as lenders thereunder and Bank of America, N.A., as Administrative Agent, as amended as of March 2, 2009, including any guarantees, collateral documents, instruments and agreements executed in connection therewith, and any amendments, supplements, modifications, extensions, renewals, restatements, refundings or refinancings thereof and any indentures or credit facilities or commercial paper facilities with banks or other institutional lenders or investors that replace, refund or refinance any part of the loans, notes, other credit facilities or commitments thereunder, including any such replacement, refunding or refinancing facility or indenture that increases the amount borrowable thereunder or alters the maturity thereof (provided that such increase in borrowings is permitted under Section 4.10 set forth in the Existing Secured Bond Indentures as in effect on the Issue Date).
          “ ABL Financing Entity ” means the Issuer and certain of its subsidiaries from time to time named as borrowers or guarantors under the ABL Facility.
          “ ABL Obligations ” means Obligations under the ABL Facility.
          “ ABL Secured Parties ” means each of (i) the ABL Collateral Agent on behalf of itself and the lenders under the ABL Facility and lenders or their affiliates counterparty to related Hedging Obligations and (ii) each other holder of ABL Obligations.
          “ Additional First Lien Obligations ” shall have the meaning given such term by the Security Agreement and shall include the Notes Obligations.
          “ Additional First Lien Secured Party ” means the holders of any Additional First Lien Obligations, including the Holders, and any Authorized Representative with respect thereto, including the Trustee, and the Paying Agent, Registrar and Transfer Agent.
          “ Additional First Lien Secured Party Consent ” means the Additional First Lien Secured Party Consent in the form attached as an exhibit to the Security Agreement, dated as of the Issue Date, and executed by the Trustee, as Authorized Representative of the Holders, the First Lien Collateral Agent, the Issuer and the grantors party thereto.
          “ Additional General Intercreditor Agreement ” means the Additional General Intercreditor Agreement, dated as of August 1, 2011, among the First Lien Collateral Agent, the Junior Lien Collateral Agent, and the trustees under the Existing Second Priority Notes Indentures and the Existing First Priority Notes Indentures, and consented to by the Issuer and the Guarantors, as the same may be amended, restated or modified from time to time.

-2-


 

          “ Additional Notes ” means additional Notes (other than the Initial Notes) issued from time to time under this Second Supplemental Indenture in accordance with Section 2.01.
          “ Additional Receivables Intercreditor Agreement ” means the Additional Receivables Intercreditor Agreement, dated as of August 1, 2011, between the ABL Collateral Agent and the First Lien Collateral Agent, and consented to by the Issuer and the Guarantors, as the same may be amended, restated or modified from time to time.
          “ 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 purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
          “ Affiliated Entity ” means any Person which (i) does not transact any substantial portion of its business or regularly maintain any substantial portion of its operating assets within the continental limits of the United States of America, (ii) is principally engaged in the business of financing (including, without limitation, the purchase, holding, sale or discounting of or lending upon any notes, contracts, leases or other forms of obligations) the sale or lease of merchandise, equipment or services (1) by the Issuer , (2) by a Subsidiary (whether such sales or leases have been made before or after the date which such Person became a Subsidiary), (3) by another Affiliated Entity or (4) by any Person prior to the time which substantially all its assets have heretofore been or shall hereafter have been acquired by the Issuer, (iii) is principally engaged in the business of owning, leasing, dealing in or developing real property, (iv) is principally engaged in the holding of stock in, and/or the financing of operations of, an Affiliated Entity, or (v) is principally engaged in the business of (1) offering health benefit products or (2) insuring against professional and general liability risks of the Issuer.
          “ Agent ” means any Registrar or Paying Agent.
          “ Asset Sale ” means:
     (1) the sale, conveyance, transfer or other disposition, whether in a single transaction or a series of related transactions, of property or assets (including by way of a Sale and Lease-Back Transaction) of the Issuer or any of its Restricted Subsidiaries (each referred to in this definition as a “disposition”); or
     (2) the issuance or sale of Equity Interests of any Restricted Subsidiary, whether in a single transaction or a series of related transactions (other than Preferred Stock of Restricted Subsidiaries issued in compliance with Section 4.10 set forth in the Existing Secured Bond Indentures as in effect on the Issue Date);
in each case, other than:
     (a) any disposition of Cash Equivalents or Investment Grade Securities or obsolete or worn out equipment in the ordinary course of business or any disposition of inventory or goods (or other assets) held for sale in the ordinary course of business;
     (b) the disposition of all or substantially all of the assets of the Issuer in a manner permitted pursuant to the provisions of Section 5.01 hereof or any disposition that constitutes a Change of Control pursuant to this Second Supplemental Indenture;

-3-


 

     (c) the making of any Restricted Payment or Permitted Investment that is permitted to be made, and is made, under Section 4.07 of the Existing Secured Bond Indentures as in effect on the Issue Date;
     (d) any disposition of assets or issuance or sale of Equity Interests of any Restricted Subsidiary in any transaction or series of related transactions with an aggregate fair market value of less than $100.0 million;
     (e) any disposition of property or assets or issuance of securities by a Restricted Subsidiary of the Issuer to the Issuer or by the Issuer or a Restricted Subsidiary of the Issuer to another Restricted Subsidiary of the Issuer;
     (f) to the extent allowable under Section 1031 of the Code or any comparable or successor provision, any exchange of like property (excluding any boot thereon) for use in a Similar Business;
     (g) the lease, assignment or sublease of any real or personal property in the ordinary course of business;
     (h) any issuance or sale of Equity Interests in, or Indebtedness or other securities of, an Unrestricted Subsidiary;
     (i) foreclosures on assets;
     (j) sales of accounts receivable, or participations therein, in connection with the ABL Facility or any Receivables Facility;
     (k) any financing transaction with respect to property built or acquired by the Issuer or any Restricted Subsidiary after November 17, 2006, including Sale and Lease-Back Transactions and asset securitizations permitted by this Second Supplemental Indenture;
     (l) dispositions in the ordinary course of business by any Restricted Subsidiary (including, without limitation, HCI) engaged in the insurance business in order to provide insurance to the Issuer and its Subsidiaries;
     (m) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;
     (n) any issuance or sale of Equity Interests or dispositions in connection with ordinary course syndications of Subsidiaries or joint ventures owning or operating one or more health care facilities, including, without limitation, hospitals, ambulatory surgery centers, outpatient diagnostic centers or imaging centers, in any transaction or series of related transactions with an aggregate fair market value of less than $100.0 million; and
     (o) any issuance or sale of Equity Interests of any Restricted Subsidiary (including, without limitation, HealthTrust Purchasing Group, L.P.) to any Person operating in a Similar Business for which such Restricted Subsidiary provides shared purchasing, billing, collection or similar services in the ordinary course of business.

-4-


 

          “ Authorized Representative ” means (i) in the case of any General Credit Facility Obligations or the General Credit Facility Secured Parties, the administrative agent under the General Credit Facility, (ii) in the case of the Existing First Priority Notes Obligations or the Existing First Priority Notes, Law Debenture Trust Company of New York, as trustee for the holders of the Existing First Priority Notes, (iii) in the case of the Notes Obligations or the Holders, the Trustee and (iv) in the case of any Additional First Lien Obligations or Additional First Lien Secured Parties that become subject to the First Lien Intercreditor Agreement, the Authorized Representative named for such Additional First Lien Obligations or Additional First Lien Secured Parties in the applicable joinder agreement.
          “ Bankruptcy Code ” means Title 11 of the United States Code, as amended.
          “ Bankruptcy Law ” means the Bankruptcy Code and any similar federal, state or foreign law for the relief of debtors.
          “ Business Day ” means each day which is not a Legal Holiday.
          “ Capitalized Software Expenditures ” means, for any period, the aggregate of all expenditures (whether paid in cash or accrued as liabilities) by a Person and its Restricted Subsidiaries during such period in respect of purchased software or internally developed software and software enhancements that, in conformity with GAAP, are or are required to be reflected as capitalized costs on the consolidated balance sheet of a Person and its Restricted Subsidiaries.
          “ Capital Stock ” means:
     (1) in the case of a corporation, corporate stock;
     (2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;
     (3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and
     (4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.
          “ Capitalized Lease Obligation ” means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding the footnotes thereto) in accordance with GAAP.
          “ Cash Equivalents ” means:
     (1) United States dollars;
     (2) euros or any national currency of any participating member state of the EMU or such local currencies held by the Company and its Restricted Subsidiaries from time to time in the ordinary course of business;
     (3) securities issued or directly and fully and unconditionally guaranteed or insured by the U.S. government (or any agency or instrumentality thereof the securities of which are

-5-


 

unconditionally guaranteed as a full faith and credit obligation of the U.S. government) with maturities of 24 months or less from the date of acquisition;
     (4) certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case with any commercial bank having capital and surplus of not less than $500.0 million in the case of U.S. banks and $100.0 million (or the U.S. dollar equivalent as of the date of determination) in the case of non-U.S. banks;
     (5) repurchase obligations for underlying securities of the types described in clauses (3) and (4) entered into with any financial institution meeting the qualifications specified in clause (4) above;
     (6) commercial paper rated at least P-1 by Moody’s or at least A-1 by S&P and in each case maturing within 24 months after the date of creation thereof;
     (7) marketable short-term money market and similar securities having a rating of at least P-2 or A-2 from either Moody’s or S&P, respectively (or, if at any time neither Moody’s nor S&P shall be rating such obligations, an equivalent rating from another Rating Agency), and in each case maturing within 24 months after the date of creation thereof;
     (8) investment funds investing 95% of their assets in securities of the types described in clauses (1) through (7) above;
     (9) readily marketable direct obligations issued by any state, commonwealth or territory of the United States or any political subdivision or taxing authority thereof having an Investment Grade Rating from either Moody’s or S&P with maturities of 24 months or less from the date of acquisition;
     (10) Indebtedness or Preferred Stock issued by Persons with a rating of A or higher from S&P or A2 or higher from Moody’s with maturities of 24 months or less from the date of acquisition; and
     (11) Investments with average maturities of 24 months or less from the date of acquisition in money market funds rated AAA- (or the equivalent thereof) or better by S&P or Aaa3 (or the equivalent thereof) or better by Moody’s.
          Notwithstanding the foregoing, Cash Equivalents shall include amounts denominated in currencies other than those set forth in clauses (1) and (2) above; provided that such amounts are converted into any currency listed in clauses (1) and (2) as promptly as practicable and in any event within ten Business Days following the receipt of such amounts.
          “ Change of Control ” means the occurrence of any of the following:
     (1) the sale, lease or transfer, in one or a series of related transactions, of all or substantially all of the assets of the Issuer and its Subsidiaries, taken as a whole, to any Person other than a Permitted Holder; or
     (2) the Issuer becomes aware (by way of a report or any other filing pursuant to Section 13(d) of the Exchange Act, proxy, vote, written notice or otherwise) of the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act,

-6-


 

or any successor provision), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), other than the Permitted Holders, in a single transaction or in a related series of transactions, by way of merger, consolidation or other business combination or purchase of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act, or any successor provision) of 50% or more of the total voting power of the Voting Stock of the Issuer or any of its direct or indirect parent companies holding directly or indirectly 100% of the total voting power of the Voting Stock of the Issuer.
          “ Code ” means the Internal Revenue Code of 1986, as amended, or any successor thereto.
          “ Collateral ” means, collectively, the Shared Receivables Collateral and Non-Receivables Collateral.
          “ Company ” means, collectively, the Issuer and its consolidated Subsidiaries.
          “ Comparable Treasury Issue ” means, the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term (“ Remaining Life ”) of a Note being redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the Remaining Life of such Notes.
          “ Comparable Treasury Price ” means, with respect to any Redemption Date for any Note: (1) the average of the Reference Treasury Dealer Quotations for that Redemption Date, after excluding the highest and lowest of four such Reference Treasury Dealer Quotations; or (2) if the Independent Investment Banker is given fewer than four Reference Treasury Dealer Quotations, the average of all quotations obtained by the Independent Investment Banker.
          “ Consolidated Depreciation and Amortization Expense ” means with respect to any Person for any period, the total amount of depreciation and amortization expense, including the amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses and Capitalized Software Expenditures, of such Person and its Restricted Subsidiaries for such period on a consolidated basis and otherwise determined in accordance with GAAP.
          “ Consolidated Interest Expense ” means, with respect to any Person for any period, without duplication, the sum of:
     (1) consolidated interest expense of such Person and its Restricted Subsidiaries for such period, to the extent such expense was deducted (and not added back) in computing Consolidated Net Income (including (a) amortization of original issue discount resulting from the issuance of Indebtedness at less than par, (b) all commissions, discounts and other fees and charges owed with respect to letters of credit or bankers’ acceptances, (c) non-cash interest payments (but excluding any non-cash interest expense attributable to the movement in the mark to market valuation of Hedging Obligations or other derivative instruments pursuant to GAAP), (d) the interest component of Capitalized Lease Obligations, and (e) net payments, if any, pursuant to interest rate Hedging Obligations with respect to Indebtedness, and excluding (u) accretion or accrual of discounted liabilities not constituting Indebtedness, (v) any expense resulting from the discounting of the Existing Notes or other Indebtedness in connection with the application of recapitalization accounting or, if applicable, purchase accounting, (w) any “additional interest” with respect to other securities, (x) amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses, (y) any expensing of bridge, commitment and other financing fees and (z)

-7-


 

commissions, discounts, yield and other fees and charges (including any interest expense) related to any Receivables Facility); plus
     (2) consolidated capitalized interest of such Person and its Restricted Subsidiaries for such period, whether paid or accrued; less
     (3) interest income for such period.
          For purposes of this definition, interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP.
          “ Consolidated Net Income ” means, with respect to any Person for any period, the aggregate of the Net Income of such Person for such period, on a consolidated basis, and otherwise determined in accordance with GAAP; provided , however , that, without duplication,
     (1) any after-tax effect of extraordinary, non-recurring or unusual gains or losses (less all fees and expenses relating thereto) or expenses, severance, relocation costs, consolidation and closing costs, integration and facilities opening costs, business optimization costs, transition costs, restructuring costs, signing, retention or completion bonuses, and curtailments or modifications to pension and post-retirement employee benefit plans shall be excluded,
     (2) the cumulative effect of a change in accounting principles during such period shall be excluded,
     (3) any after-tax effect of income (loss) from disposed, abandoned or discontinued operations and any net after-tax gains or losses on disposal of disposed, abandoned, transferred, closed or discontinued operations shall be excluded,
     (4) any after-tax effect of gains or losses (less all fees and expenses relating thereto) attributable to asset dispositions or abandonments other than in the ordinary course of business, as determined in good faith by the Issuer, shall be excluded,
     (5) the Net Income for such period of any Person that is an Unrestricted Subsidiary shall be excluded; provided that Consolidated Net Income of the Issuer shall be increased by the amount of dividends or distributions or other payments that are actually paid in cash (or to the extent converted into cash) to the referent Person or a Restricted Subsidiary thereof in respect of such period,
     (6) [Reserved];
     (7) effects of adjustments (including the effects of such adjustments pushed down to the Issuer and its Restricted Subsidiaries) in the property, equipment, inventory, software and other intangible assets, deferred revenues and debt line items in such Person’s consolidated financial statements pursuant to GAAP resulting from the application of recapitalization accounting or if applicable, purchase accounting in relation to the Transaction or any consummated acquisition or the amortization or write-off of any amounts thereof, net of taxes, shall be excluded,
     (8) any after-tax effect of income (loss) from the early extinguishment of Indebtedness or Hedging Obligations or other derivative instruments shall be excluded,

-8-


 

     (9) any impairment charge or asset write-off, including, without limitation, impairment charges or asset write-offs related to intangible assets, long-lived assets or investments in debt and equity securities, in each case, pursuant to GAAP and the amortization of intangibles arising pursuant to GAAP shall be excluded,
     (10) any non-cash compensation expense recorded from grants of stock appreciation or similar rights, stock options, restricted stock or other rights, and any cash charges associated with the rollover, acceleration or payout of Equity Interests by management of the Company or any of its direct or indirect parent companies in connection with the Transaction, shall be excluded,
     (11) any fees and expenses incurred during such period, or any amortization thereof for such period, in connection with any acquisition, Investment, Asset Sale, issuance or repayment of any Indebtedness, issuance of Equity Interests, refinancing transaction or amendment or modification of any debt instrument (in each case, including any such transaction consummated prior to the Issue Date and any such transaction undertaken but not completed) and any charges or non-recurring merger costs incurred during such period as a result of any such transaction shall be excluded,
     (12) accruals and reserves that are established or adjusted within twelve months after November 17, 2006 that are so required to be established as a result of the Transaction in accordance with GAAP, or changes as a result of adoption or modification of accounting policies, shall be excluded, and
     (13) to the extent covered by insurance and actually reimbursed, or, so long as the Issuer has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer and only to the extent that such amount is (a) not denied by the applicable carrier in writing within 180 days and (b) in fact reimbursed within 365 days of the date of such evidence (with a deduction for any amount so added back to the extent not so reimbursed within 365 days), expenses with respect to liability or casualty events or business interruption shall be excluded.
          “ Consolidated Net Tangible Assets ” means, with respect to any Person, the total amount of assets (less applicable reserves and other properly deductible items) after deducting therefrom (a) all current liabilities as disclosed on the consolidated balance sheet of such Person (excluding any thereof which are by their terms extendible or renewable at the option of the obligor thereon to a time more than 12 months after the time as of which the amount thereof is being computed and further excluding any deferred income taxes that are included in current liabilities) and (b) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangible assets, all as set forth on the most recent consolidated balance sheet of the Issuer and computed in accordance with generally accepted accounting principles.
          “ Contingent Obligations ” means, with respect to any Person, any obligation of such Person guaranteeing any leases, dividends or other obligations that do not constitute Indebtedness (“ primary obligations ”) of any other Person (the “ primary obligor ”) in any manner, whether directly or indirectly, including, without limitation, any obligation of such Person, whether or not contingent,
     (1) to purchase any such primary obligation or any property constituting direct or indirect security therefor,

-9-


 

     (2) to advance or supply funds:
     (a) for the purchase or payment of any such primary obligation, or
     (b) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, or
     (3) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation against loss in respect thereof.
          “ Corporate Trust Office of the Trustee ” shall be at the address of the Trustee specified in Section 14.02 hereof or such other address as to which the Trustee may give notice to the Holders and the Issuer.
          “ Credit Facilities ” means, with respect to the Issuer or any of its Restricted Subsidiaries, one or more debt facilities, including the Senior Credit Facilities, or other financing arrangements (including, without limitation, commercial paper facilities or indentures) providing for revolving credit loans, term loans, letters of credit or other long-term indebtedness, including any notes, mortgages, guarantees, collateral documents, instruments and agreements executed in connection therewith, and any amendments, supplements, modifications, extensions, renewals, restatements or refundings thereof and any indentures or credit facilities or commercial paper facilities that replace, refund or refinance any part of the loans, notes, other credit facilities or commitments thereunder, including any such replacement, refunding or refinancing facility or indenture that increases the amount permitted to be borrowed thereunder or alters the maturity thereof (provided that such increase in borrowings is permitted under Section 4.10 set forth in the Existing Secured Bond Indentures as in effect on the Issue Date) or adds Restricted Subsidiaries as additional borrowers or guarantors thereunder and whether by the same or any other agent, lender or group of lenders.
          “ Custodian ” means the Paying Agent and Registrar, as custodian with respect to the Notes in global form, or any successor entity thereto.
          “ 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.
          “ Definitive Note ” means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.06 hereof, substantially in the form of Exhibit A hereto except that such Note shall not bear the Global Note Legend and shall not have the “Schedule of Exchanges of Interests in the Global Note” attached thereto.
          “ Depositary ” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03 hereof as the Depositary with respect to the Notes, and any and all successors thereto appointed as Depositary hereunder and having become such pursuant to the applicable provision of this Second Supplemental Indenture.
          “ Designated Non-cash Consideration ” means the fair market value of non-cash consideration received by the Issuer or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officer’s Certificate, setting forth the basis of such valuation, executed by the principal financial officer of the Issuer, less the amount of cash or Cash Equivalents received in connection with a subsequent sale of or collection on such Designated Non-cash Consideration.

-10-


 

          “ Designated Preferred Stock ” means Preferred Stock of the Issuer or any parent corporation thereof (in each case other than Disqualified Stock) that is issued for cash (other than to a Restricted Subsidiary or an employee stock ownership plan or trust established by the Issuer or any of its Subsidiaries) and is so designated as Designated Preferred Stock, pursuant to an Officer’s Certificate executed by the principal financial officer of the Issuer or the applicable parent corporation thereof, as the case may be, on the issuance date thereof, the cash proceeds of which are excluded from the calculation set forth in clause (3) of Section 4.07(a) set forth in the Existing Secured Bond Indentures as in effect on the Issue Date.
          “ Disqualified Stock ” means, with respect to any Person, any Capital Stock of such Person which, by its terms, or by the terms of any security into which it is convertible or for which it is putable or exchangeable, or upon the happening of any event, matures or is mandatorily redeemable (other than solely as a result of a change of control or asset sale) pursuant to a sinking fund obligation or otherwise, or is redeemable at the option of the holder thereof (other than solely as a result of a change of control or asset sale), in whole or in part, in each case prior to the date 91 days after the earlier of the Maturity Date of the Notes or the date the Notes are no longer outstanding; provided , however , that if such Capital Stock is issued to any plan for the benefit of employees of the Issuer or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Issuer or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.
          “ EBITDA ” means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period
          (1) increased (without duplication) by:
     (a) provision for taxes based on income or profits or capital gains, including, without limitation, foreign, federal, state, franchise and similar taxes (such as the Pennsylvania capital tax) and foreign withholding taxes (including penalties and interest related to such taxes or arising from tax examinations) of such Person paid or accrued during such period deducted (and not added back) in computing Consolidated Net Income; plus
     (b) Fixed Charges of such Person for such period (including (x) net losses on Hedging Obligations or other derivative instruments entered into for the purpose of hedging interest rate risk and (y) costs of surety bonds in connection with financing activities, in each case, to the extent included in Fixed Charges), together with items excluded from the definition of “Consolidated Interest Expense” pursuant to clauses (1)(u), (v), (w), (x), (y) and (z) of the definition thereof, and, in each such case, to the extent the same were deducted (and not added back) in calculating such Consolidated Net Income; plus
     (c) Consolidated Depreciation and Amortization Expense of such Person for such period to the extent the same was deducted (and not added back) in computing Consolidated Net Income; plus
     (d) any expenses or charges (other than depreciation or amortization expense) related to any Equity Offering, acquisition, disposition, recapitalization or the incurrence of Indebtedness permitted to be incurred by this Second Supplemental Indenture (including a refinancing thereof) (whether or not successful), including (i) such fees, expenses or charges related to any offering of debt securities or bank financing and (ii) any

-11-


 

amendment or other modification of such financing, and, in each case, deducted (and not added back) in computing Consolidated Net Income; plus
     (e) the amount of any restructuring charge or reserve deducted (and not added back) in such period in computing Consolidated Net Income, including any onetime costs incurred in connection with acquisitions after November 17, 2006 and costs related to the closure and/or consolidation of facilities; plus
     (f) any other non-cash charges, including any write-offs or write-downs, reducing Consolidated Net Income for such period (provided that if any such non-cash charges represent an accrual or reserve for potential cash items in any future period, the cash payment in respect thereof in such future period shall be subtracted from EBITDA to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period); plus
     (g) the amount of any minority interest expense consisting of income attributable to minority equity interests of third parties deducted (and not added back) in such period in calculating Consolidated Net Income; plus
     (h) the amount of management, monitoring, consulting and advisory fees and related expenses paid in such period to the Investors and the Frist Entities; plus
     (i) the amount of net cost savings projected by the Issuer in good faith to be realized as a result of specified actions taken or to be taken (calculated on a pro forma basis as though such cost savings had been realized on the first day of such period), net of the amount of actual benefits realized during such period from such actions; provided that (w) such cost savings are reasonably identifiable and factually supportable, (x) such actions have been taken or are to be taken within 15 months after the date of determination to take such action, (y) no cost savings shall be added pursuant to this clause (i) to the extent duplicative of any expenses or charges relating to such cost savings that are included in clause (e) above with respect to such period and (z) the aggregate amount of cost savings added pursuant to this clause (i) shall not exceed $150.0 million for any four consecutive quarter period (which adjustments may be incremental to pro forma adjustments made pursuant to the second paragraph of the definition of “Fixed Charge Coverage Ratio”); plus
     (j) the amount of loss on sales of receivables and related assets to the Receivables Subsidiary in connection with a Receivables Facility; plus
     (k) any costs or expense incurred by the Issuer or a Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement or any stock subscription or shareholder agreement, to the extent that such cost or expenses are funded with cash proceeds contributed to the capital of the Issuer or net cash proceeds of an issuance of Equity Interests of the Issuer (other than Disqualified Stock) solely to the extent that such net cash proceeds are excluded from the calculation set forth in clause (3) of Section 4.07(a) set forth in the Existing Secured Bond Indentures as in effect on the Issue Date;
     (2) decreased by (without duplication) non-cash gains increasing Consolidated Net Income of such Person for such period, excluding any non-cash gains to the extent they represent

-12-


 

the reversal of an accrual or reserve for a potential cash item that reduced EBITDA in any prior period; and
     (3) increased or decreased by (without duplication):
     (a) any net gain or loss resulting in such period from Hedging Obligations and the application of Accounting Standards Codification 815; plus or minus , as applicable, and
     (b) any net gain or loss resulting in such period from currency translation gains or losses related to currency remeasurements of Indebtedness (including any net loss or gain resulting from Hedging Obligations for currency exchange risk).
          “ EMU ” means the economic and monetary union as contemplated in the Treaty on European Union.
          “ Equity Interests ” means Capital Stock and all warrants, options or other rights to acquire Capital Stock, but excluding any debt security that is convertible into, or exchangeable for, Capital Stock.
          “ Equity Offering ” means any public or private sale of common stock or Preferred Stock of the Issuer or any of its direct or indirect parent companies (excluding Disqualified Stock), other than:
     (1) public offerings with respect to the Issuer’s or any direct or indirect parent company’s common stock registered on Form S-8;
     (2) issuances to any Subsidiary of the Issuer; and
     (3) any such public or private sale that constitutes an Excluded Contribution.
          “ euro ” means the single currency of participating member states of the EMU.
          “ European Collateral ” means the present and future assets of the European subsidiary borrower and guarantors under the General Credit Facility pledged as security to the First Lien Collateral Agent pursuant to the European Security Documents (as defined in the General Credit Facility).
          “ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.
          “ Excluded Contribution ” means net cash proceeds, marketable securities or Qualified Proceeds received by the Issuer after the Issue Date from
     (1) contributions to its common equity capital, and
     (2) the sale (other than to a Subsidiary of the Issuer or to any management equity plan or stock option plan or any other management or employee benefit plan or agreement of the Issuer) of Capital Stock (other than Disqualified Stock and Designated Preferred Stock) of the Issuer,
in each case designated as Excluded Contributions pursuant to an Officer’s Certificate executed by the principal financial officer of the Issuer on the date such capital contributions are made or the date such

-13-


 

Equity Interests are sold, as the case may be, which are excluded from the calculation set forth in clause (3) of Section 4.07(a) set forth in the Existing Secured Bond Indentures as in effect on the Issue Date.
          “ Existing 7 1/4% First Priority Notes ” means the $1,400,000,000 aggregate principal amount of 7 1/4% Senior Secured Notes due 2020, issued by the Issuer under the Existing 7 1/4% First Priority Notes Indenture.
          “ Existing 7 1/4% First Priority Notes Indenture ” means that certain Indenture, dated as of March 10, 2010, among the Issuer, the guarantors named on Schedule I thereto, Law Debenture Trust Company of New York, as trustee, and Deutsche Bank Trust Company Americas, as paying agent, registrar and transfer agent.
          “ Existing 7 7/8% First Priority Notes ” means the $1,250,000,000 aggregate principal amount of 7 7/8% Senior Secured Notes due 2020, issued by the Issuer under the Existing 7 7/8% First Priority Notes Indenture.
          “ Existing 7 1/8% First Priority Notes Indenture ” means that certain Indenture, dated as of August 11, 2009, among the Issuer, the guarantors named on Schedule I thereto, Law Debenture Trust Company of New York, as trustee, and Deutsche Bank Trust Company Americas, as paying agent, registrar and transfer agent.
          “ Existing 8 1 / 2 % First Priority Notes ” means the $1,500,000,000 aggregate principal amount of 8 1 / 2 % Senior Secured Notes due 2019, issued by the Issuer under the Existing 8 1 / 2 % First Priority Notes Indenture.
          “ Existing 8 1 / 2 % First Priority Notes Indenture ” means that certain Indenture, dated as of April 22, 2009, among the Issuer, the guarantors named on Schedule I thereto, Law Debenture Trust Company of New York, as trustee, and Deutsche Bank Trust Company Americas, as paying agent, registrar and transfer agent.
          “ Existing First Priority Notes ” means the Existing 7 1/4% First Priority Notes, Existing 7 7/8% First Priority Notes and the Existing 8 1/2% First Priority Notes.
          “ Existing First Priority Notes Indentures ” means the Existing 7 1/4% First Priority Notes Indenture, Existing 7 7/8% First Priority Notes Indenture and the Existing 8 1/2% First Priority Notes Indenture.
          “ Existing First Priority Notes Obligations ” means Obligations in respect of the Existing First Priority Notes, the Existing First Priority Notes Indentures or the other First Lien Documents as they relate to the Existing First Priority Notes, including, for the avoidance of doubt, obligations in respect of exchange notes and guarantees thereof.
          “ Existing Notes ” means the $402.5 million aggregate principal amount of 6.950% notes due 2012, $500.0 million aggregate principal amount of 6.300% notes due 2012, $500.0 million aggregate principal amount of 6.250% notes due 2013, $500.0 million aggregate principal amount of 6.750% notes due 2013, $500.0 million aggregate principal amount of 5.750% notes due 2014, $121.1 million aggregate principal amount of 9.000% medium term notes due 2014, $750.0 million aggregate principal amount of 6.375% notes due 2015, $150.0 million aggregate principal amount of 7.190% debentures due 2015, $1,000.0 million aggregate principal amount of 6.500% notes due 2016, $135.6 million aggregate principal amount of 7.500% debentures due 2023, $150.0 million aggregate principal amount of 8.360% debentures due 2024, $291.4 million aggregate principal amount of 7.690% notes due 2025, $125.0 million

-14-


 

aggregate principal amount of 7.580% medium-term notes due 2025, $150.0 million aggregate principal amount of 7.050% debentures due 2027, $250.0 million aggregate principal amount of 7.500% notes due 2033, $100.0 million aggregate principal amount of 7.750% debentures due 2036 and $200.0 million aggregate principal amount of 7.500% debentures due 2095, each issued by the Issuer and outstanding on November 17, 2006.
          “ Existing Notes Indenture ” means that certain Indenture, dated as of December 16, 1993, between Columbia Healthcare Corporation and The First National Bank of Chicago, as Trustee, as amended by the First Supplemental Indenture, dated as of May 25, 2000, between the Issuer and Bank One Trust Company, N.A., as Trustee, the Second Supplemental Indenture, dated as of July 1, 2001, between the Issuer and Bank One Trust Company, N.A., as Trustee, and the Third Supplemental Indenture, dated as of December 5, 2001, between the Issuer and The Bank of New York Mellon, as Trustee.
          “ Existing Second Priority Notes ” means the 2006 Second Priority Notes and the 2009 Second Priority Notes and any refinancings thereof permitted pursuant to the terms of this Second Supplemental Indenture.
          “ Existing Second Priority Notes Indentures ” means the 2006 Second Priority Notes Indenture and the 2009 Second Priority Notes Indenture.
          “ Existing Secured Bond Indentures ” means the Existing First Priority Notes Indentures and the Existing Second Priority Notes Indentures.
          “ First Lien Collateral Agent ” means Bank of America, N.A., in its capacity as administrative agent and collateral agent for the lenders and other secured parties under the General Credit Facility, the Existing First Priority Notes Indentures and the other First Lien Documents and in its capacity as collateral agent for First Lien Secured Parties, together with its successors and permitted assigns under the General Credit Facility, the Existing First Priority Notes Indentures, the Indenture and the First Lien Documents exercising substantially the same rights and powers; and in each case provided that if such First Lien Collateral Agent is not Bank of America, N.A., such First Lien Collateral Agent shall have become a party to the Additional General Intercreditor Agreement, the General Intercreditor Agreement, dated as of November 17, 2006, among the First Lien Collateral Agent and the Junior Lien Collateral Agent, and the other applicable First Lien Security Documents.
          “ First Lien Documents ” means the credit, guarantee and security documents governing the First Lien Obligations, including, without limitation, this Second Supplemental Indenture and the First Lien Security Documents.
          “ First Lien Obligations ” means, collectively, (a) all General Credit Facility Obligations, (b) the Existing First Priority Notes Obligations, (c) the Notes Obligations and (d) any Additional First Lien Obligations. For the avoidance of doubt, Obligations with respect to the ABL Facility will not constitute First Lien Obligations.
          “ First Lien Secured Parties ” means (a) the “Secured Parties,” as defined in the General Credit Facility, (b) the holders of the Existing First Priority Notes Obligations and Law Debenture Trust Company of New York, as authorized representative for such holders, and (c) any Additional First Lien Secured Parties, including, without limitation, the Trustee, the Paying Agent, Registrar and Transfer Agent, and the Holders (including the Holders of any Additional Notes subsequently issued under and in compliance with the terms of this Second Supplemental Indenture).

-15-


 

          “ First Lien Security Documents ” means the Security Documents (as defined in this Second Supplemental Indenture) and any other agreement, document or instrument pursuant to which a Lien is granted or purported to be granted securing First Lien Obligations or under which rights or remedies with respect to such Liens are governed, in each case to the extent relating to the collateral securing both the First Lien Obligations and any Junior Lien Obligations.
          “ First Priority Liens ” means the first priority Liens securing the First Lien Obligations.
          “ Fixed Charge Coverage Ratio ” means, with respect to any Person for any period, the ratio of EBITDA of such Person for such period to the Fixed Charges of such Person for such period. In the event that the Issuer or any Restricted Subsidiary incurs, assumes, guarantees, redeems, retires or extinguishes any Indebtedness (other than Indebtedness incurred under any revolving credit facility unless such Indebtedness has been permanently repaid and has not been replaced) or issues or redeems Disqualified Stock or Preferred Stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated but prior to or simultaneously with the event for which the calculation of the Fixed Charge Coverage Ratio is made (the “Fixed Charge Coverage Ratio Calculation Date”), then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect to such incurrence, assumption, guarantee, redemption, retirement or extinguishment of Indebtedness, or such issuance or redemption of Disqualified Stock or Preferred Stock, as if the same had occurred at the beginning of the applicable four-quarter period.
          For purposes of making the computation referred to above, Investments, acquisitions, dispositions, mergers, consolidations and disposed operations (as determined in accordance with GAAP) that have been made by the Issuer or any of its Restricted Subsidiaries during the four-quarter reference period or subsequent to such reference period and on or prior to or simultaneously with the Fixed Charge Coverage Ratio Calculation Date shall be calculated on a pro forma basis assuming that all such Investments, acquisitions, dispositions, mergers, consolidations and disposed operations (and the change in any associated fixed charge obligations and the change in EBITDA resulting therefrom) had occurred on the first day of the four-quarter reference period. If, since the beginning of such period, any Person that subsequently became a Restricted Subsidiary or was merged with or into the Issuer or any of its Restricted Subsidiaries since the beginning of such period shall have made any Investment, acquisition, disposition, merger, consolidation or disposed operation that would have required adjustment pursuant to this definition, then the Fixed Charge Coverage Ratio shall be calculated giving pro forma effect thereto for such period as if such Investment, acquisition, disposition, merger, consolidation or disposed operation had occurred at the beginning of the applicable four-quarter period.
          For purposes of this definition, whenever pro forma effect is to be given to a transaction, the pro forma calculations shall be made in good faith by a responsible financial or accounting officer of the Issuer. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Fixed Charge Coverage Ratio Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness). Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Issuer to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period except as set forth in the first paragraph of this definition. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate or other rate shall be deemed to have been

-16-


 

based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Issuer may designate.
          “ Fixed Charges ” means, with respect to any Person for any period, the sum of:
     (1) Consolidated Interest Expense of such Person for such period;
     (2) all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Preferred Stock during such period; and
     (3) all cash dividends or other distributions paid (excluding items eliminated in consolidation) on any series of Disqualified Stock during such period.
          “ Foreign Subsidiary ” means, with respect to any Person, any Restricted Subsidiary of such Person that is not organized or existing under the laws of the United States, any state thereof or the District of Columbia and any Restricted Subsidiary of such Foreign Subsidiary.
          “ Frist Entities ” means Dr. Thomas F. Frist, Jr., any Person controlled by Dr. Frist and any charitable organization selected by Dr. Frist that holds Equity Interests of the Issuer on November 17, 2006.
          “ Funded Debt ” means any Indebtedness for money borrowed, created, issued, incurred, assumed or guaranteed that would, in accordance with generally accepted accounting principles, be classified as long-term debt, but in any event including all Indebtedness for money borrowed, whether secured or unsecured, maturing more than one year, or extendible at the option of the obligor to a date more than one year, after the date of determination thereof (excluding any amount thereof included in current liabilities).
          “ GAAP ” means generally accepted accounting principles in the United States which were in effect on November 17, 2006.
          “ General Credit Facility ” means the credit agreement entered into as of November 17, 2006 by and among the Issuer, the European subsidiary borrowers party thereto, the lenders party thereto in their capacities as lenders thereunder and Bank of America, N.A., as U.S. Administrative Agent and as European Administrative Agent, as amended as of February 16, 2007, as further amended as of March 2, 2009 and as further amended as of June 18, 2009, including any guarantees, collateral documents, instruments and agreements executed in connection therewith, and any amendments, supplements, modifications, extensions, renewals, restatements, refundings or refinancings thereof and any indentures or credit facilities or commercial paper facilities with banks or other institutional lenders or investors that replace, refund or refinance any part of the loans, notes, other credit facilities or commitments thereunder, including any such replacement, refunding or refinancing facility or indenture that increases the amount borrowable thereunder or alters the maturity thereof (provided that such increase in borrowings is permitted under Section 4.10 set forth in the Existing Secured Bond Indentures as in effect on the Issue Date).
          “ General Credit Facility Obligations ” means “ Obligations ” as defined in the General Credit Facility.
          “ Global Note Legend ” means the legend set forth in Section 2.06(f) hereof, which is required to be placed on all Global Notes issued under this Second Supplemental Indenture.

-17-


 

          “ Global Notes ” means the Global Notes deposited with or on behalf of and registered in the name of the Depositary or its nominee, substantially in the form of Exhibit A hereto and that bears the Global Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached thereto, issued in accordance with Section 2.01, 2.06(b), or 2.06(d) hereof.
          “ Government Securities ” means securities that are:
     (1) direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged; or
     (2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America,
which, in either case, are not callable or redeemable at the option of the issuers thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such Government Securities or a specific payment of principal of or interest on any such Government Securities held by such custodian for the account of the holder of such 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 Securities or the specific payment of principal of or interest on the Government Securities evidenced by such depository receipt.
          “ guarantee ” means a guarantee (other than by endorsement of negotiable instruments for collection in the ordinary course of business), direct or indirect, in any manner (including letters of credit and reimbursement agreements in respect thereof), of all or any part of any Indebtedness or other obligations.
          “ Guarantee ” means the guarantee by any Guarantor of the Issuer’s Obligations under this Second Supplemental Indenture.
          “ Guarantor ” means (i) the Parent Guarantor and (ii) each Subsidiary Guarantor that Guarantees the Notes in accordance with the terms of this Second Supplemental Indenture.
          “ HCI ” means Health Care Indemnity, Inc., an insurance company formed under the laws of the State of Colorado and a Wholly Owned Subsidiary of the Issuer.
          “ Hedging Obligations ” means, with respect to any Person, the obligations of such Person under any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, commodity swap agreement, commodity cap agreement, commodity collar agreement, foreign exchange contract, currency swap agreement or similar agreement providing for the transfer or mitigation of interest rate or currency risks either generally or under specific contingencies.
          “ Holder ” means the Person in whose name a Note is registered on the Registrar’s books.
          “ Indebtedness ” means, with respect to any Person, without duplication:
     (1) any indebtedness (including principal and premium) of such Person, whether or not contingent:
     (a) in respect of borrowed money;

-18-


 

     (b) evidenced by bonds, notes, debentures or similar instruments or letters of credit or bankers’ acceptances (or, without duplication, reimbursement agreements in respect thereof);
     (c) representing the balance deferred and unpaid of the purchase price of any property (including Capitalized Lease Obligations), except (i) any such balance that constitutes a trade payable or similar obligation to a trade creditor, in each case accrued in the ordinary course of business and (ii) any earn-out obligations until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP; or
     (d) representing any Hedging Obligations;
if and to the extent that any of the foregoing Indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP;
     (2) to the extent not otherwise included, any obligation by such Person to be liable for, or to pay, as obligor, guarantor or otherwise on, the obligations of the type referred to in clause (1) of a third Person (whether or not such items would appear upon the balance sheet of the such obligor or guarantor), other than by endorsement of negotiable instruments for collection in the ordinary course of business; and
     (3) to the extent not otherwise included, the obligations of the type referred to in clause (1) of a third Person secured by a Lien on any asset owned by such first Person, whether or not such Indebtedness is assumed by such first Person;
provided , however , that notwithstanding the foregoing, Indebtedness shall be deemed not to include (a) Contingent Obligations incurred in the ordinary course of business or (b) obligations under or in respect of Receivables Facilities.
          “ Independent Investment Banker ” means one of the Reference Treasury Dealers, to be appointed by the Issuer.
          “ Indirect Participant ” means a Person who holds a beneficial interest in a Global Note through a Participant.
          “ Initial Notes ” has the meaning set forth in the recitals hereto.
          “ Insolvency or Liquidation Proceeding ” means:
     (1) any case commenced by or against the Issuer or any Guarantor under any Bankruptcy Law for the relief of debtors, any other proceeding for the reorganization, recapitalization or adjustment or marshalling of the assets or liabilities of the Issuer or any Guarantor, any receivership or assignment for the benefit of creditors relating to the Issuer or any Guarantor or any similar case or proceeding relative to the Issuer or any Guarantor or its creditors, as such, in each case whether or not voluntary;
     (2) any liquidation, dissolution, marshalling of assets or liabilities or other winding up of or relating to the Issuer or any Guarantor, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency; or

-19-


 

     (3) any other proceeding of any type or nature in which substantially all claims of creditors of the Issuer or any Guarantor are determined and any payment or distribution is or may be made on account of such claims.
          “ Intercreditor Agreements ” means, collectively, the First Lien Intercreditor Agreement, the Additional Receivables Intercreditor Agreement and the Additional General Intercreditor Agreement.
          “ Interest Payment Date ” means February 15 and August 15 of each year to stated maturity.
          “ Investment Grade Rating ” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or an equivalent rating by any other Rating Agency.
          “ Investment Grade Securities ” means:
     (1) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality thereof (other than Cash Equivalents);
     (2) debt securities or debt instruments with an Investment Grade Rating, but excluding any debt securities or instruments constituting loans or advances among the Issuer and its Subsidiaries;
     (3) investments in any fund that invests exclusively in investments of the type described in clauses (1) and (2) which fund may also hold immaterial amounts of cash pending investment or distribution; and
     (4) corresponding instruments in countries other than the United States customarily utilized for high quality investments.
          “ Investments ” means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of loans (including guarantees), advances or capital contributions (excluding accounts receivable, trade credit, advances to customers, commissions, travel and similar advances to officers and employees, in each case made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities issued by any other Person and investments that are required by GAAP to be classified on the balance sheet (excluding the footnotes) of the Issuer in the same manner as the other investments included in this definition to the extent such transactions involve the transfer of cash or other property.
          “ Investors ” means Bain Capital Partners, LLC, Kohlberg Kravis Roberts & Co. L.P., BAML Capital Partners, the successor organization to both Merrill Lynch Global Private Equity, Inc. and Merrill Lynch Global Partners, Inc., and each of their respective Affiliates but not including, however, any portfolio companies of any of the foregoing.
          “ Issue Date ” means August 1, 2011.
          “ Issuer Order ” means a written request or order signed on behalf of the Issuer by an Officer of the Issuer, who must be the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of the Issuer, and delivered to the Trustee.

-20-


 

          “ Junior Lien Collateral Agent ” shall mean (i) so long as the 2006 Second Priority Notes are outstanding, the trustee under the 2006 Second Priority Notes Indenture, in its capacity as trustee and collateral agent for the holders of 2006 Second Priority Notes and other secured parties under the 2006 Second Priority Notes Indenture and the related security documents (including the holders of the 2009 Second Priority Notes), and (ii) at any time thereafter, such agent or trustee as is designated “Junior Lien Collateral Agent” by Junior Lien Secured Parties holding a majority in principal amount of the Junior Lien Obligations then outstanding or pursuant to such other arrangements as agreed to among the holders of the Junior Lien Obligations, it being understood that as of the Issue Date, the trustee under the 2006 Second Priority Notes Indenture shall be the Junior Lien Collateral Agent.
          “ Junior Lien Obligations ” means the Existing Second Priority Notes and Obligations with respect to other Indebtedness permitted to be incurred under the Existing Second Priority Notes Indentures and this Second Supplemental Indenture which is by its terms intended to be secured equally and ratably with the Existing Second Priority Notes or on a basis junior to the Liens securing the Existing Second Priority Notes; provided such Lien is permitted to be incurred under the Existing Second Priority Notes Indentures and this Second Supplemental Indenture; provided, further, that the holders of such Indebtedness or their Junior Lien Representative is a party to the applicable security documents in accordance with the terms thereof and has appointed the Junior Lien Collateral Agent as collateral agent for such holders of Junior Lien Obligations with respect to all or a portion of the Collateral.
          “ Junior Lien Representative ” means any duly Authorized Representative of any holders of Junior Lien Obligations, which representative is party to the applicable security documents.
          “ Junior Lien Secured Parties ” means (i) holders of Existing Second Priority Notes (including the holders of any Additional Notes (as defined in the Existing Second Priority Notes Indentures) subsequently issued under and in compliance with the terms of the Existing Second Priority Notes Indentures), (ii) the Junior Lien Collateral Agent and (iii) the holders from time to time of any other Junior Lien Obligations and each Junior Lien Representative.
          “ Legal Holiday ” means a Saturday, a Sunday or a day on which commercial banking institutions are not required to be open in the State of New York.
          “ 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.
          “ Maturity Date ” means February 15, 2020, the date the Notes will mature.
          “ Moody’s ” means Moody’s Investors Service, Inc. and any successor to its rating agency business.
          “ Mortgages ” means mortgages, liens, pledges or other encumbrances.
          “ Net Income ” means, with respect to any Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of Preferred Stock dividends.

-21-


 

          “ Net Proceeds ” means the aggregate cash proceeds received by the Issuer or any of its Restricted Subsidiaries in respect of any Asset Sale, including any cash received upon the sale or other disposition of any Designated Non-cash Consideration received in any Asset Sale, net of the direct costs relating to such Asset Sale and the sale or disposition of such Designated Non-cash Consideration, including legal, accounting and investment banking fees, and brokerage and sales commissions, any relocation expenses incurred as a result thereof, taxes paid or payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements), amounts required to be applied to the repayment of principal, premium, if any, and interest on Senior Indebtedness required (other than required by clause (1) of Section 4.08(b) hereof) to be paid as a result of such transaction and any deduction of appropriate amounts to be provided by the Issuer or any of its Restricted Subsidiaries as a reserve in accordance with GAAP against any liabilities associated with the asset disposed of in such transaction and retained by the Issuer or any of its Restricted Subsidiaries after such sale or other disposition thereof, including pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with such transaction.
          “ Notes ” means the Initial Notes and more particularly means any Note authenticated and delivered under this Second Supplemental Indenture. For all purposes of this Second Supplemental Indenture, the term “Notes” shall also include any Additional Notes that may be issued under a supplemental indenture.
          “ Notes Obligations ” means Obligations in respect of the Notes, this Second Supplemental Indenture or the Security Documents, including, for the avoidance of doubt, obligations in respect of guarantees thereof.
          “ Non-Receivables Collateral ” means all the present and future assets of the Issuer and the Subsidiary Guarantors in which a security interest has been granted pursuant to (a) the Security Agreement, (b) the Pledge Agreement and (c) the other Security Documents other than the Shared Receivables Security Documents and any Security Documents relating to the Separate Receivables Collateral; provided that the Non-Receivables Collateral shall not include any European Collateral.
          “ Obligations ” means any principal, interest (including any interest accruing subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable state, federal or foreign law), premium, penalties, fees, indemnifications, reimbursements (including reimbursement obligations with respect to letters of credit and bankers’ acceptances), damages and other liabilities, and guarantees of payment of such principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable under the documentation governing any Indebtedness.
          “ Officer ” means the Chairman of the Board, the Chief Executive Officer, the President, any Executive Vice President, Senior Vice President or Vice President, the Treasurer or the Secretary of the Issuer or a Guarantor, as applicable.
          “ Officer’s Certificate ” means a certificate signed on behalf of the Issuer by an Officer of the Issuer, or on behalf of a Guarantor by an Officer of such Guarantor , who must be the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of the Issuer or Guarantor, as applicable, that meets the requirements set forth in this Second Supplemental Indenture.
          “ Opinion of Counsel ” means a written opinion from legal counsel who is acceptable to the Trustee. The counsel may be an employee of or counsel to the Issuer or a Guarantor, as the case may be.

-22-


 

          “ Parent Guarantee ” means the guarantee by the Parent Guarantor of the Parent Guaranteed Obligations under this Second Supplemental Indenture.
          “ Parent Guarantor ” means the Person named as the “Parent Guarantor” in the recitals (i) until released pursuant to the provisions of this Second Supplemental Indenture or (ii) until a successor Person shall have become such pursuant to the applicable provisions of this Second Supplemental Indenture, and thereafter “Parent Guarantor” shall mean that successor Person until released pursuant to the provisions of this Second Supplemental Indenture.
          “ Permitted Asset Swap ” means the concurrent purchase and sale or exchange of Related Business Assets or a combination of Related Business Assets and cash or Cash Equivalents between the Issuer or any of its Restricted Subsidiaries and another Person; provided that any cash or Cash Equivalents received must be applied in accordance with Section 4.08 hereof.
          “ Permitted Holders ” means each of the Investors, the Frist Entities, members of management of the Issuer (or its direct or indirect parent), Citigroup Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated, successor by merger to Banc of America Securities LLC (which institutions were assignees of certain equity commitments of the Investors as of November 17, 2006), and each of their respective Affiliates or successors, that are holders of Equity Interests of the Issuer (or any of its direct or indirect parent companies) and any group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act or any successor provision) of which any of the foregoing are members; provided that, in the case of such group and without giving effect to the existence of such group or any other group, such Investors, Frist Entities, members of management and assignees of the equity commitments of the Investors, collectively, have beneficial ownership of more than 50% of the total voting power of the Voting Stock of the Issuer or any of its direct or indirect parent companies.
          “ Permitted Liens ” means, with respect to any Person:
     (1) pledges or deposits by such Person under workmen’s compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or U.S. government bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import duties or for the payment of rent, in each case incurred in the ordinary course of business;
     (2) Liens imposed by law, such as carriers’, warehousemen’s and mechanics’ Liens, in each case for sums not yet overdue for a period of more than 30 days or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for review if adequate reserves with respect thereto are maintained on the books of such Person in accordance with GAAP;
     (3) Liens for taxes, assessments or other governmental charges not yet overdue for a period of more than 30 days or payable or subject to penalties for nonpayment or which are being contested in good faith by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of such Person in accordance with GAAP;
     (4) Liens in favor of issuers of performance and surety bonds or bid bonds or with respect to other regulatory requirements or letters of credit issued pursuant to the request of and for the account of such Person in the ordinary course of its business;

-23-


 

     (5) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real properties or Liens incidental to the conduct of the business of such Person or to the ownership of its properties which were not incurred in connection with Indebtedness and which do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;
     (6) Liens securing Indebtedness permitted to be incurred pursuant to clause (4), (12), (13), (18) or (19) of Section 4.10(b) set forth in the Existing Secured Bond Indentures as in effect on the Issue Date; provided that (a) Liens securing Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred pursuant to clause (13) relate only to Refinancing Indebtedness that serves to refund or refinance Indebtedness, Disqualified Stock or Preferred Stock incurred under clause (4) or (12) of Section 4.10(b) set forth in the Existing Secured Bond Indentures as in effect on the Issue Date, (b) Liens securing Indebtedness permitted to be incurred pursuant to clause (18) extend only to the assets of Foreign Subsidiaries, (c) Liens securing Indebtedness permitted to be incurred pursuant to clause (19) are solely on acquired property or the assets of the acquired entity, as the case may be and (d) Liens securing Indebtedness, Disqualified Stock or Preferred Stock permitted to be incurred pursuant to clause (4) of Section 4.10(b) set forth in the Existing Secured Bond Indentures as in effect on the Issue Date extend only to the assets so financed, purchased, constructed or improved;
     (7) Liens existing on the Issue Date (other than Liens in favor of (i) the lenders under the Senior Credit Facilities, (ii) the holders of the Existing First Priority Notes and (iii) the holders of the Existing Second Priority Notes);
     (8) Liens on property or shares of stock of a Person at the time such Person becomes a Subsidiary; provided, however, such Liens are not created or incurred in connection with, or in contemplation of, such other Person becoming such a Subsidiary; provided, further, however, that such Liens may not extend to any other property owned by the Issuer or any of its Restricted Subsidiaries;
     (9) Liens on property at the time the Issuer or a Restricted Subsidiary acquired the property, including any acquisition by means of a merger or consolidation with or into the Issuer or any of its Restricted Subsidiaries; provided, however, that such Liens are not created or incurred in connection with, or in contemplation of, such acquisition; provided, further, however, that the Liens may not extend to any other property owned by the Issuer or any of its Restricted Subsidiaries;
     (10) Liens securing Indebtedness or other obligations of a Restricted Subsidiary owing to the Issuer or another Restricted Subsidiary permitted to be incurred in accordance with Section 4.10 set forth in the Existing Secured Bond Indentures as in effect on the Issue Date;
     (11) Liens securing Hedging Obligations so long as the related Indebtedness is, and is permitted to be under this Second Supplemental Indenture, secured by a Lien on the same property securing such Hedging Obligations;
     (12) Liens on specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;

-24-


 

     (13) leases, subleases, licenses or sublicenses granted to others in the ordinary course of business which do not materially interfere with the ordinary conduct of the business of the Issuer or any of its Restricted Subsidiaries and do not secure any Indebtedness;
     (14) Liens arising from Uniform Commercial Code financing statement filings regarding operating leases entered into by the Issuer and its Restricted Subsidiaries in the ordinary course of business;
     (15) Liens in favor of the Issuer or any Guarantor;
     (16) Liens on equipment of the Issuer or any of its Restricted Subsidiaries granted in the ordinary course of business;
     (17) Liens on accounts receivable and related assets incurred in connection with a Receivables Facility;
     (18) Liens to secure any refinancing, refunding, extension, renewal or replacement (or successive refinancings, refundings, extensions, renewals or replacements), as a whole or in part, of any Indebtedness secured by any Lien referred to in the foregoing clauses (6), (7), (8) and (9); provided, however, that (a) such new Lien shall be limited to all or part of the same property that secured the original Lien (plus improvements on such property), and (b) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (i) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clauses (6), (7), (8) and (9) at the time the original Lien became a Permitted Lien under this Second Supplemental Indenture, and (ii) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal or replacement;
     (19) deposits made in the ordinary course of business to secure liability to insurance carriers;
     (20) other Liens securing obligations incurred in the ordinary course of business which obligations do not exceed $100.0 million at any one time outstanding;
     (21) Liens securing judgments for the payment of money not constituting an Event of Default so long as such Liens are adequately bonded and any appropriate legal proceedings that may have been duly initiated for the review of such judgment have not been finally terminated or the period within which such proceedings may be initiated has not expired;
     (22) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;
     (23) Liens (i) of a collection bank arising under Section 4-210 of the Uniform Commercial Code, or any comparable or successor provision, on items in the course of collection, (ii) attaching to commodity trading accounts or other commodity brokerage accounts incurred in the ordinary course of business, and (iii) in favor of banking institutions arising as a matter of law encumbering deposits (including the right of set-off) and which are within the general parameters customary in the banking industry;
     (24) Liens deemed to exist in connection with Investments in repurchase agreements permitted under Section 4.10 set forth in the Existing Secured Bond Indentures as in effect on the

-25-


 

Issue Date; provided that such Liens do not extend to any assets other than those that are the subject of such repurchase agreements;
     (25) Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes;
     (26) Liens that are contractual rights of set-off (i) relating to the establishment of depository relations with banks not given in connection with the issuance of Indebtedness, (ii) relating to pooled deposit or sweep accounts of the Issuer or any of its Restricted Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Issuer and its Restricted Subsidiaries or (iii) relating to purchase orders and other agreements entered into with customers of the Issuer or any of its Restricted Subsidiaries in the ordinary course of business;
     (27) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale or purchase of goods entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business; and
     (28) Liens that rank junior to the Liens securing the Notes securing the Junior Lien Obligations.
          For purposes of this definition, the term “Indebtedness” shall be deemed to include interest on such Indebtedness.
          “ 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.
          “ Pledge Agreement ” means the amended and restated Pledge Agreement, dated as of November 17, 2006, as amended and restated as of March 2, 2009 by and among the Issuer, the subsidiary pledgors named therein and the First Lien Collateral Agent, as the same may be further amended, restated or modified from time to time.
          “ Preferred Stock ” means any Equity Interest with preferential rights of payment of dividends or upon liquidation, dissolution or winding up.
          “ Principal Property ” means each acute care hospital providing general medical and surgical services (excluding equipment, personal property and hospitals that primarily provide specialty medical services, such as psychiatric and obstetrical and gynecological services) owned solely by the Issuer and/or one or more of its Subsidiaries and located in the United States of America.
          “ Prospectus ” means the prospectus, dated July 26, 2011, relating to the sale of the Initial Notes.
          “ Purchase Money Obligations ” means any Indebtedness incurred to finance or refinance the acquisition, leasing, construction or improvement of property (real or personal) or assets (other than Capital Stock), and whether acquired through the direct acquisition of such property or assets, or otherwise.

-26-


 

          “ Qualified Proceeds ” means assets that are used or useful in, or Capital Stock of any Person engaged in, a Similar Business; provided that the fair market value of any such assets or Capital Stock shall be determined by the Issuer in good faith.
          “ Rating Agencies ” means Moody’s and S&P or if Moody’s or S&P or both shall not make a rating on the Notes publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Issuer which shall be substituted for Moody’s or S&P or both, as the case may be.
          “ Receivables Collateral ” means all the assets pledged to the ABL Collateral Agent on behalf of the ABL Secured Parties as security for the ABL Obligations.
          “ Receivables Facility ” means any of one or more receivables financing facilities as amended, supplemented, modified, extended, renewed, restated or refunded from time to time, the Obligations of which are non-recourse (except for customary representations, warranties, covenants and indemnities made in connection with such facilities) to the Issuer or any of its Restricted Subsidiaries (other than a Receivables Subsidiary) pursuant to which the Issuer or any of its Restricted Subsidiaries purports to sell its accounts receivable to either (a) a Person that is not a Restricted Subsidiary or (b) a Receivables Subsidiary that in turn funds such purchase by purporting to sell its accounts receivable to a Person that is not a Restricted Subsidiary or by borrowing from such a Person or from another Receivables Subsidiary that in turn funds itself by borrowing from such a Person.
          “ Receivables Subsidiary ” means any Subsidiary formed for the purpose of facilitating or entering into one or more Receivables Facilities, and in each case engages only in activities reasonably related or incidental thereto.
          “ Record Date ” for the interest or payable on any applicable Interest Payment Date means February 1 or August 1 (whether or not a Business Day) next preceding such Interest Payment Date.
          “ Reference Treasury Dealer ” means (i) J.P. Morgan Securities LLC, Barclays Capital Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc., Deutsche Bank Securities Inc. and Wells Fargo Securities, LLC (or their respective affiliates that are Primary Treasury Dealers) and their respective successors; provided, however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer in New York City (a “Primary Treasury Dealer”), the Issuer will substitute therefor another Primary Treasury Dealer, and (ii) any other Primary Treasury Dealer selected by the Issuer.
          “ Reference Treasury Dealer Quotations ” means, with respect to each Reference Treasury Dealer and any Redemption Date for any Note, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue, expressed in each case as a percentage of its principal amount, quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 3:00 p.m., New York City time, on the third Business Day preceding such Redemption Date.
          “ Related Business Assets ” means assets (other than cash or Cash Equivalents) used or useful in a Similar Business; provided that any assets received by the Issuer or a Restricted Subsidiary in exchange for assets transferred by the Issuer or a Restricted Subsidiary will not be deemed to be Related Business Assets if they consist of securities of a Person, unless upon receipt of the securities of such Person, such Person would become a Restricted Subsidiary.

-27-


 

          “ Remaining Life ” has the meaning ascribed to such term in the definition of “Comparable Treasury Issue”.
          “ Responsible Officer ” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any managing director, director, vice president, assistant vice president, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such Person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Second Supplemental Indenture.
          “ Restricted Subsidiary ” means, at any time, any direct or indirect Subsidiary of the Issuer that is not then an Unrestricted Subsidiary; provided, however, that upon an Unrestricted Subsidiary’s ceasing to be an Unrestricted Subsidiary, such Subsidiary shall be included in the definition of “Restricted Subsidiary.”
          “ S&P ” means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc., and any successor to its rating agency business.
          “ Sale and Lease-Back Transaction ” means any arrangement providing for the leasing by the Issuer or any of its Restricted Subsidiaries for a period of more than three years of any Principal Property, which property has been or is to be sold or transferred by the Issuer or such Subsidiary to a third Person in contemplation of such leasing.
          “ SEC ” means the U.S. Securities and Exchange Commission.
          “ Second Supplemental Indenture ” means this Second Supplemental Indenture, as amended or supplemented from time to time.
          “ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.
          “ Security Agreement ” means the amended and restated Security Agreement, dated as of March 2, 2009, by and among the Issuer, the subsidiary grantors named therein and the First Lien Collateral Agent, as the same may be further amended, restated or modified from time to time, to which the Trustee, as Authorized Representative for the Holders, will be joined on the Issue Date.
          “ Security Documents ” means, collectively, the Intercreditor Agreements, the Security Agreement, the Pledge Agreement, the Additional First Lien Secured Party Consent, other security agreements relating to the Collateral and the mortgages and instruments filed and recorded in appropriate jurisdictions to preserve and protect the Liens on the Collateral (including, without limitation, financing statements under the Uniform Commercial Code of the relevant states) applicable to the Collateral, as in effect on the Issue Date and as amended, amended and restated, modified, renewed or replaced from time to time.
          “ Senior Credit Facilities ” means the ABL Facility and the General Credit Facility.
          “ Senior Indebtedness ” means:
     (1) all Indebtedness of the Issuer or any Guarantor outstanding under the Senior Credit Facilities, the Existing First Priority Notes, the Existing Second Priority Notes and the Notes

-28-


 

and related Guarantees (including interest accruing on or after the filing of any petition in bankruptcy or similar proceeding or for reorganization of the Issuer or any Guarantor (at the rate provided for in the documentation with respect thereto, regardless of whether or not a claim for post-filing interest is allowed in such proceedings)), and any and all other fees, expense reimbursement obligations, indemnification amounts, penalties, and other amounts (whether existing on the Issue Date or thereafter created or incurred) and all obligations of the Issuer or any Guarantor to reimburse any bank or other Person in respect of amounts paid under letters of credit, acceptances or other similar instruments;
     (2) all Hedging Obligations (and guarantees thereof) owing to a Lender (as defined in the Senior Credit Facilities) or any Affiliate of such Lender (or any Person that was a Lender or an Affiliate of such Lender at the time the applicable agreement giving rise to such Hedging Obligation was entered into); provided that such Hedging Obligations are permitted to be incurred under the terms of this Second Supplemental Indenture;
     (3) any other Indebtedness of the Issuer or any Guarantor permitted to be incurred under the terms of this Second Supplemental Indenture, unless the instrument under which such Indebtedness is incurred expressly provides that it is subordinated in right of payment to the Notes or any related Guarantee; and
     (4) all Obligations with respect to the items listed in the preceding clauses (1), (2) and (3);
provided , however , that Senior Indebtedness shall not include:
     (a) any obligation of such Person to the Issuer or any of its Subsidiaries;
     (b) any liability for federal, state, local or other taxes owed or owing by such Person;
     (c) any accounts payable or other liability to trade creditors arising in the ordinary course of business;
     (d) any Indebtedness or other Obligation of such Person which is subordinate or junior in any respect to any other Indebtedness or other Obligation of such Person; or
     (e) that portion of any Indebtedness which at the time of incurrence is incurred in violation of this Second Supplemental Indenture.
          “ Separate Receivables Collateral ” means the Receivables Collateral other than the Shared Receivables Collateral.
          “ Shared Receivables Collateral ” means the portion of the Receivables Collateral which secures the First Lien Obligations on a second priority basis pursuant to the Security Documents and the Existing Second Priority Notes on a third-priority basis pursuant to the Junior Lien Documents.
          “ Shared Receivables Security Documents ” means, collectively, the Additional Receivables Intercreditor Agreement, any security agreement relating to the Shared Receivables Collateral, the control agreements and deposit agreements and the instruments filed and recorded in appropriate jurisdictions to preserve and protect the Liens on the Shared Receivables Collateral (including, without limitation, financing statements under the Uniform Commercial Code of the relevant states) applicable to the Shared Receivables Collateral, each for the benefit of the First Lien Collateral Agent and the ABL

-29-


 

Collateral Agent, as in effect on November 17, 2006 and as amended, amended and restated, modified, renewed or replaced from time to time.
          “ Significant Subsidiary ” means any Restricted Subsidiary 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.
          “ Similar Business ” means any business conducted or proposed to be conducted by the Issuer and its Subsidiaries on the Issue Date or any business that is similar, reasonably related, incidental or ancillary thereto.
          “ Subordinated Indebtedness ” means, with respect to the Notes,
          (1) any Indebtedness of the Issuer which is by its terms subordinated in right of payment to the Notes, and
          (2) any Indebtedness of any Guarantor which is by its terms subordinated in right of payment to the Guarantee of such entity of the Notes.
          “ Subsidiary ” means, with respect to any Person:
     (1) 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
     (2) any partnership, joint venture, limited liability company or similar entity of which more than 50% of the equity ownership, whether in the form of a 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; provided , however , that for purposes of Sections 4.09, 4.11(d) and 4.11(e), any Person that is an Affiliated Entity shall not be considered a Subsidiary.
          “ Subsidiary Guarantee ” means any guarantee by a Subsidiary Guarantor of the Issuer’s Obligations under this Second Supplemental Indenture.
          “ Subsidiary Guarantor ” means each Restricted Subsidiary that Guarantees the Notes in accordance with the terms of this Second Supplemental Indenture.
          “ Total Assets ” means the total assets of the Issuer and its Restricted Subsidiaries on a consolidated basis, as shown on the most recent consolidated balance sheet of the Issuer or such other Person as may be expressly stated.
          “ Transfer Agent ” means the Person specified in Section 2.03 hereof as the Transfer Agent, and any and all successors thereto, to receive on behalf of the Registrar any Notes for transfer or exchange pursuant to this Second Supplemental Indenture.

-30-


 

          “ Treasury Rate ” means, at the time of computation, (1) the semi-annual equivalent yield to maturity of the United States Treasury Securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15(519) which has become publicly available at least two Business Days prior to the Redemption Date or, if such Statistical Release is no longer published, any publicly available source of similar market data) for the maturity corresponding to the Comparable Treasury Issue; provided , however , that if no maturity is within three months before or after the Maturity Date for the Notes, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue will be determined and the Treasury Rate will be interpolated or extrapolated from those yields on a straight line basis, rounding to the nearest month; or (2) if that release, or any successor release, is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for that Redemption Date. The Treasury Rate will be calculated on the third Business Day preceding the Redemption Date.
          “ Trust Indenture Act ” means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb).
          “ Trustee ” means Law Debenture Trust Company of New York, as trustee, until a successor replaces it in accordance with the applicable provisions of this Second Supplemental Indenture and thereafter means the successor serving hereunder.
          “ Unrestricted Subsidiary ” means:
     (1) any Subsidiary of the Issuer which at the time of determination is an Unrestricted Subsidiary (as designated by the Issuer, as provided below); and
     (2) any Subsidiary of an Unrestricted Subsidiary.
          The Issuer may designate any Subsidiary of the Issuer (including any existing Subsidiary and any newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary or any of its Subsidiaries owns any Equity Interests or Indebtedness of, or owns or holds any Lien on, any property of, the Issuer or any Subsidiary of the Issuer (other than solely any Subsidiary of the Subsidiary to be so designated); provided that
          (1) any Unrestricted Subsidiary must be an entity of which the Equity Interests entitled to cast at least a majority of the votes that may be cast by all Equity Interests having ordinary voting power for the election of directors or Persons performing a similar function are owned, directly or indirectly, by the Issuer; and
          (2) each of:
     (a) the Subsidiary to be so designated; and
     (b) its Subsidiaries
          has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness pursuant to which the lender has recourse to any of the assets of the Issuer or any Restricted Subsidiary.

-31-


 

          The Issuer may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that, immediately after giving effect to such designation, no Default shall have occurred and be continuing and either:
     (1) the Issuer and its Restricted Subsidiaries on a consolidated basis would have had a Fixed Charge Coverage Ratio of at least 2.00 to 1.00; or
     (2) the Fixed Charge Coverage Ratio for the Issuer and its Restricted Subsidiaries would be greater than such ratio for the Issuer and its Restricted Subsidiaries immediately prior to such designation, in each case on a pro forma basis taking into account such designation.
          Any such designation by the Issuer shall be notified by the Issuer to the Trustee by promptly filing with the Trustee a copy of the resolution of the board of directors of the Issuer or any committee thereof giving effect to such designation and an Officer’s Certificate certifying that such designation complied with the foregoing provisions.
          “ Unsecured Notes ” means the 7.50% Senior Notes due 2022, to be issued on the Issue Date.
          “ Voting Stock ” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the board of directors of such Person.
          “ Wholly Owned Subsidiary ” of any Person means a Subsidiary of such Person, 100% of the outstanding Equity Interests of which (other than directors’ qualifying shares) shall at the time be owned by such Person or by one or more Wholly Owned Subsidiaries of such Person.
Section 1.02 Other Definitions .
         
Term   Defined in
Section
 
“Acceptable Commitment”
    4.08  
“Authentication Order”
    2.02  
“Asset Sale Offer”
    4.08  
“Change of Control Offer”
    4.07  
“Change of Control Payment”
    4.07  
“Change of Control Payment Date”
    4.07  
“Collateral Asset Sale Offer”
    4.08  
“Collateral Excess Proceeds”
    4.08  
“Collateral Offer Amount”
    3.09  
“Collateral Offer Period”
    3.09  
“Collateral Purchase Date”
    3.09  
“Covenant Defeasance”
    8.03  
“DTC”
    2.03  
“Event of Default”
    6.01  
“Excess Proceeds”
    4.08  
“Investment Grade Rating Event”
    4.10  
“Legal Defeasance”
    8.02  
“Note Register”
    2.03  
“Offer Amount”
    3.10  
“Offer Period”
    3.10  

-32-


 

         
Term   Defined in
Section
 
“Parent Guaranteed Obligations”
    12.07  
“Paying Agent”
    2.03  
“Purchase Date”
    3.10  
“Redemption Date”
    3.07  
“Registrar”
    2.03  
“Reversion Date”
    4.10  
“Second Commitment”
    4.07  
“Successor Entity”
    5.01  
“Successor Person”
    5.01  
“Suspended Covenant”
    4.10  
“Treasury Capital Stock”
    4.06  
Section 1.03 Incorporation by Reference of Trust Indenture Act .
          Whenever this Second Supplemental Indenture refers to a provision of the Trust Indenture Act the provision is by reference in and made a part of this Second Supplemental Indenture. If and to the extent that any provision of this Second Supplemental Indenture limits, qualifies or conflicts with another provision included in this Second Supplemental Indenture, by operation of Sections 310 to 317, inclusive, of the Trust Indenture Act (an “incorporated provision”), such incorporated provision shall control.
          The following Trust Indenture Act terms used in this Second Supplemental Indenture have the following meanings:
     “indenture securities” mean the Notes;
     “indenture security Holder” means a Holder of a Note;
     “indenture to be qualified” means this Second Supplemental Indenture;
     “indenture trustee” or “institutional trustee” means the Trustee; and
     “obligor” on the Notes and the Guarantees means the Issuer, the Guarantors and any successor obligor upon the Notes and the Guarantees, respectively.
          All other terms used in this Second Supplemental Indenture that are defined by the Trust Indenture Act, defined by Trust Indenture Act reference to another statute or defined by SEC rule under the Trust Indenture Act have the meanings so assigned to them.
Section 1.04 Rules of Construction .
          Unless the context otherwise requires:
     (a) a term has the meaning assigned to it;
     (b) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;

-33-


 

     (c) “or” is not exclusive;
     (d) words in the singular include the plural, and in the plural include the singular;
     (e) “will” shall be interpreted to express a command;
     (f) provisions apply to successive events and transactions;
     (g) references to sections of, or rules under, the Securities Act shall be deemed to include substitute, replacement or successor sections or rules adopted by the SEC from time to time;
     (h) unless the context otherwise requires, any reference to an “Article,” “Section” or “clause” refers to an Article, Section or clause, as the case may be, of this Second Supplemental Indenture; and
     (i) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Second Supplemental Indenture as a whole and not any particular Article, Section, clause or other subdivision.
          In addition, this Second Supplemental Indenture restates in their entirety the terms of the Base Indenture as supplemented by this Second Supplemental Indenture and does not incorporate the terms of the Base Indenture. The changes, modifications and supplements to the Base Indenture effected by this Second Supplemental Indenture shall be applicable only with respect to, and shall only govern the terms of, the Notes, except as otherwise provided herein, and shall not apply to any other securities that may be issued under the Base Indenture unless a supplemental indenture with respect to such other securities specifically incorporates such changes, modifications and supplements.
Section 1.05 Acts of Holders .
          (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Second Supplemental Indenture to be 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 or the Guarantors, as applicable. Proof of execution of any such instrument or of a writing appointing any such agent, or the holding by any Person of a Note, shall be sufficient for any purpose of this Second Supplemental Indenture and (subject to Section 7.01) conclusive in favor of the Trustee and the Issuer and the Guarantors, as applicable, if made in the manner provided in this Section 1.05.
          (b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by or on behalf of any legal entity other than an individual, such certificate or affidavit shall also constitute proof of the authority of the Person executing the same. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner that the Trustee deems sufficient.
          (c) The ownership of Notes shall be proved by the Note Register.

-34-


 

          (d) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Note shall bind every future Holder of the same Note and the Holder of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, in respect of any action taken, suffered or omitted by the Trustee or the Issuer in reliance thereon, whether or not notation of such action is made upon such Note.
          (e) The Issuer may, in the circumstances permitted by the Trust Indenture Act, set a record date for purposes of determining the identity of Holders entitled to give any request, demand, authorization, direction, notice, consent, waiver or take any other act, or to vote or consent to any action by vote or consent authorized or permitted to be given or taken by Holders. Unless otherwise specified, if not set by the Issuer prior to the first solicitation of a Holder made by any Person in respect of any such action, or in the case of any such vote, prior to such vote, any such record date shall be the later of 30 days prior to the first solicitation of such consent or the date of the most recent list of Holders furnished to the Trustee prior to such solicitation.
          (f) Without limiting the foregoing, a Holder entitled to take any action hereunder with regard to any particular Note may do so with regard to all or any part of the principal amount of such Note or by one or more duly appointed agents, each of which may do so pursuant to such appointment with regard to all or any part of such principal amount. Any notice given or action taken by a Holder or its agents with regard to different parts of such principal amount pursuant to this paragraph shall have the same effect as if given or taken by separate Holders of each such different part.
          (g) Without limiting the generality of the foregoing, a Holder, including DTC that is the Holder of a Global Note, may make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Second Supplemental Indenture to be made, given or taken by Holders, and DTC that is the Holder of a Global Note may provide its proxy or proxies to the beneficial owners of interests in any such Global Note through such depositary’s standing instructions and customary practices.
          (h) The Issuer may fix a record date for the purpose of determining the Persons who are beneficial owners of interests in any Global Note held by DTC entitled under the procedures of such depositary to make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Second Supplemental Indenture to be made, given or taken by Holders. If such a record date is fixed, the Holders on such record date or their duly appointed proxy or proxies, and only such Persons, shall be entitled to make, give or take such request, demand, authorization, direction, notice, consent, waiver or other action, whether or not such Holders remain Holders after such record date. No such request, demand, authorization, direction, notice, consent, waiver or other action shall be valid or effective if made, given or taken more than 90 days after such record date.
ARTICLE 2
THE NOTES
          In accordance with Section 301 of the Base Indenture, the Issuer hereby creates the Notes as a series of its Securities issued pursuant to this Second Supplemental Indenture. In accordance with Section 301 of the Base Indenture, the Notes shall be known and designated as the “6.50% Senior Secured Notes due 2020” of the Issuer.

-35-


 

Section 2.01 Form and Dating; Terms .
          (a) General . The Notes and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rules or usage. Each Note shall be dated the date of its authentication. The Notes shall be in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof.
          (b) Global Notes . Notes issued in global form shall be substantially in the form of Exhibit A hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Notes issued in definitive form shall be substantially in the form of Exhibit A attached hereto (but without the Global Note Legend thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached thereto). Each Global Note shall represent such of the outstanding Notes as shall be specified in the “Schedule of Exchanges of Interests in the Global Note” attached thereto and each shall provide that it shall represent up to the aggregate principal amount of Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as applicable, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 hereof.
          (c) Terms . The aggregate principal amount of Notes that may be authenticated and delivered under this Second Supplemental Indenture is unlimited.
          The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Second Supplemental Indenture and the Issuer, the Guarantors and the Trustee, by their execution and delivery of this Second Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Second Supplemental Indenture, the provisions of this Second Supplemental Indenture shall govern and be controlling.
          The Notes shall be subject to repurchase by the Issuer pursuant an Asset Sale Offer or Collateral Asset Sale Offer as provided in Section 4.08 hereof or a Change of Control Offer as provided in Section 4.07 hereof. The Notes shall not be redeemable, other than as provided in Article 3.
          Additional Notes may be created and issued from time to time by the Issuer without notice to or consent of the Holders and shall be consolidated with and form a single class with the Initial Notes and shall have the same terms as to status, redemption or otherwise as the Initial Notes. Except as described under Article 9 hereof, the Notes offered by the Issuer and any Additional Notes subsequently issued under this Second Supplemental Indenture will be treated as a single class for all purposes under this Second Supplemental Indenture, including waivers, amendments, redemptions and offers to purchase. Unless the context requires otherwise, references to “Notes” for all purposes of this Second Supplemental Indenture include any Additional Notes that are actually issued. Any Additional Notes shall be issued with the benefit of an indenture supplemental to this Second Supplemental Indenture.
Section 2.02 Execution and Authentication .
          At least one Officer shall execute the Notes on behalf of the Issuer by manual or facsimile signature.

-36-


 

          If an Officer whose signature is on a Note no longer holds that office at the time a Note is authenticated, the Note shall nevertheless be valid.
          A Note shall not be entitled to any benefit under this Second Supplemental Indenture or be valid or obligatory for any purpose until authenticated substantially in the form provided for in Exhibit A attached hereto, by the manual signature of the Trustee. The signature shall be conclusive evidence that the Note has been duly authenticated and delivered under this Second Supplemental Indenture.
          On the Issue Date, the Trustee shall, upon receipt of an Issuer Order (an “ Authentication Order ”), authenticate and deliver the Initial Notes. In addition, at any time, from time to time, the Trustee shall upon an Authentication Order authenticate and deliver any Additional Notes. Such Authentication Order shall specify the amount of the Notes to be authenticated.
          The Trustee may appoint an authenticating agent acceptable to the Issuer to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Second Supplemental 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.
Section 2.03 Registrar and Paying Agent .
          The Issuer shall maintain an office or agency where Notes may be presented for registration of transfer or for exchange (“ Registrar ”) and an office or agency where Notes may be presented for payment (“ Paying Agent ”). The Registrar shall keep a register of the Notes (“ Note Register ”) and of their transfer and exchange. The Issuer may appoint one or more co-registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent. The Issuer may change any Paying Agent or Registrar without prior notice to any Holder. The Issuer shall notify the Trustee in writing of the name and address of any Agent not a party to this Second Supplemental Indenture. If the Issuer fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Issuer or any of its Subsidiaries may act as Paying Agent or Registrar.
          The Issuer initially appoints The Depository Trust Company (“ DTC ”) to act as Depositary with respect to the Global Notes.
          The Issuer initially appoints Deutsche Bank Trust Company Americas to act as the Paying Agent, Registrar and Transfer Agent for the Notes and the Registrar to act as Custodian with respect to the Global Notes.
Section 2.04 Paying Agent to Hold Money in Trust .
          The Issuer shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium, if any, or interest on the Notes, and will notify the Trustee of any default by the Issuer in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Issuer at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Issuer or a Subsidiary) shall have no further liability for the money. If the Issuer or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Issuer, the Trustee shall serve as Paying Agent for the Notes.

-37-


 

Section 2.05 Holder Lists .
          The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with Trust Indenture Act Section 312(a). If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee at least two Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Notes and the Issuer shall otherwise comply with Trust Indenture Act Section 312(a).
Section 2.06 Transfer and Exchange .
          (a) Transfer and Exchange of Global Notes . A Global Note may not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. All Global Notes will be exchanged by the Issuer for Definitive Notes if:
     (A) the Issuer delivers to the Trustee notice from the Depositary that the Depositary is unwilling or unable to continue to act as Depositary or that it is no longer a clearing agency registered under the Exchange Act and, in either case, a successor Depositary is not appointed by the Issuer within 120 days after the date of such notice from the Depositary;
     (B) the Issuer in its sole discretion determines that the Global Notes (in whole but not in part) should be exchanged for Definitive Notes and delivers a written notice to such effect to the Trustee; or
     (C) there has occurred and is continuing a Default or Event of Default with respect to the Notes, and the Depositary has notified the Issuer and the Trustee of its desire to exchange the Global Notes for Definitive Notes.
Upon the occurrence of either of the preceding events in (A) or (B) above, Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also may be exchanged or replaced, in whole or in part, pursuant to this Section 2.06 or Sections 2.07 and 2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.06 or Sections 2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not be exchanged for another Note other than as provided in this Section 2.06(a), however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.06(b) or (c) hereof.
          (b) Transfer and Exchange of Beneficial Interests in the Global Notes . The transfer and exchange of beneficial interests in the Global Notes will be effected through the Depositary, in accordance with the provisions of this Second Supplemental Indenture. Beneficial interests in any Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in a Global Note. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.06(b) and Section 2.06(d) hereof.
          (c) Transfer or Exchange of Beneficial Interests for Definitive Notes . If any holder of a beneficial interest in a Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive

-38-


 

Note, then, upon satisfaction of the conditions set forth in Section 2.06(b) hereof, the Trustee will cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.06(g) hereof, and the Issuer will execute and the Trustee will authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c) will be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest requests through instructions to the Registrar from or through the Depositary and the Participant or Indirect Participant. The Trustee will deliver such Definitive Notes to the Persons in whose names such Notes are registered.
          (d) Transfer and Exchange of Definitive Notes for Beneficial Interests . A Holder of a Definitive Note may exchange such Note for a beneficial interest in a Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee shall cancel the applicable Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Global Notes.
          (e) Transfer and Exchange of Definitive Notes for Definitive Notes . Upon request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.06(e), the Registrar will register the transfer or exchange of Definitive Notes. Prior to such registration of transfer or exchange, the requesting Holder must present or surrender to the Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder must provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 2.06(e). A Holder of Definitive Notes may transfer such Notes to a Person who takes delivery thereof in the form of a Definitive Note.
          (f) Global Note Legend . Each Global Note shall bear a legend in substantially the following form:
“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE SECOND SUPPLEMENTAL INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE SECOND SUPPLEMENTAL INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE SECOND SUPPLEMENTAL INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE SECOND SUPPLEMENTAL INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUER. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE

-39-


 

OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE 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.”
          (g) Cancellation and/or Adjustment of Global Notes . At such time as all beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a particular Global Note has been redeemed, repurchased or cancelled in whole and not in part, each such Global Note shall be returned to or retained and cancelled by the Trustee in accordance with Section 2.11 hereof. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.
          (h) General Provisions Relating to Transfers and Exchanges .
     (i) To permit registrations of transfers and exchanges, the Issuer shall execute and the Trustee shall authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.02 hereof or at the Registrar’s request.
     (ii) No service charge shall be made to a holder of a beneficial interest in a Global Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but the Issuer may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer taxes or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.07, 2.10, 3.06, 4.07 and 9.05 hereof).
     (iii) Neither the Registrar nor the Issuer shall be required to register the transfer of or exchange any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.
     (iv) All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Second Supplemental Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
     (v) The Issuer shall not be required (A) to issue, to register the transfer of or to exchange any Notes during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 hereof and ending at the close of business on the day of selection, (B) to register the transfer of or to exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in

-40-


 

part or (C) to register the transfer of or to exchange a Note between a Record Date and the next succeeding Interest Payment Date.
     (vi) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Issuer may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of (and premium, if any) and interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Issuer shall be affected by notice to the contrary.
     (vii) Upon surrender for registration of transfer of any Note at the office or agency of the Issuer designated pursuant to Section 4.02 hereof, the Issuer shall execute, and the Trustee shall authenticate and mail, in the name of the designated transferee or transferees, one or more replacement Notes of any authorized denomination or denominations of a like aggregate principal amount.
     (viii) At the option of the Holder, Notes may be exchanged for other Notes of any authorized denomination or denominations of a like aggregate principal amount upon surrender of the Notes to be exchanged at such office or agency. Whenever any Global Notes or Definitive Notes are so surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and mail, the replacement Global Notes and Definitive Notes which the Holder making the exchange is entitled to in accordance with the provisions of Section 2.02 hereof.
     (ix) All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by facsimile.
Section 2.07 Replacement Notes .
          If any mutilated Note is surrendered to the Trustee, the Registrar or the Issuer and the Trustee receives evidence to its satisfaction of the ownership and destruction, loss or theft of any Note, the Issuer shall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if the Trustee’s requirements are met. If required by the Trustee or the Issuer, an indemnity bond must be supplied by the Holder that is sufficient in the judgment of the Trustee and the Issuer to protect the Issuer, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Issuer and/or the Trustee may charge for their expenses in replacing a Note.
          Every replacement Note is a contractual obligation of the Issuer and shall be entitled to all of the benefits of this Second Supplemental Indenture equally and proportionately with all other Notes duly issued hereunder.
Section 2.08 Outstanding Notes .
          The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those cancelled by it, those delivered to it for cancellation, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, and those described in this Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a Note does not cease to be outstanding because the Issuer or an Affiliate of the Issuer holds the Note.
          If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser.

-41-


 

          If the principal amount of any Note is considered paid under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
          If the Paying Agent (other than the Issuer, a Subsidiary or an Affiliate of any thereof) holds, on a Redemption Date or Maturity Date, money sufficient to pay Notes payable on that date, then on and after that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue interest.
Section 2.09 Treasury Notes .
          In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Issuer, or by any Affiliate of the Issuer, shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee knows are so owned shall be so disregarded. Notes so owned which have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right to deliver any such direction, waiver or consent with respect to the Notes and that the pledgee is not the Issuer or any obligor upon the Notes or any Affiliate of the Issuer or of such other obligor.
Section 2.10 Temporary Notes .
          Until certificates representing Notes are ready for delivery, the Issuer may prepare and the Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of certificated Notes but may have variations that the Issuer considers appropriate for temporary Notes and as shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Issuer shall prepare and the Trustee shall authenticate definitive Notes in exchange for temporary Notes.
          Holders and beneficial holders, as the case may be, of temporary Notes shall be entitled to all of the benefits accorded to Holders, or beneficial holders, respectively, of Notes under this Second Supplemental Indenture.
Section 2.11 Cancellation .
          The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee or, at the direction of the Trustee, the Registrar or the Paying Agent and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall destroy cancelled Notes (subject to the record retention requirement of the Exchange Act). Certification of the destruction of all cancelled Notes shall be delivered to the Issuer. The Issuer may not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest .
          If the Issuer defaults in a payment of interest on the Notes, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01 hereof. The Issuer shall notify the Trustee in writing of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment, and at the same time the Issuer

-42-


 

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 prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such defaulted interest as provided in this Section 2.12. The Trustee shall fix or cause to be fixed each such special record date and payment date; provided that no such special record date shall be less than 10 days prior to the related payment date for such defaulted interest. The Trustee shall promptly notify the Issuer of such special record date. At least 15 days before the special record date, the Issuer (or, upon the written request of the Issuer, the Trustee in the name and at the expense of the Issuer) shall mail or cause to be mailed, first-class postage prepaid, to each Holder a notice at his or her address as it appears in the Note Register that states the special record date, the related payment date and the amount of such interest to be paid.
          Subject to the foregoing provisions of this Section 2.12 and for greater certainty, each Note delivered under this Second Supplemental Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.
Section 2.13 CUSIP and ISIN Numbers .
          The Issuer in issuing the Notes may use CUSIP and/or ISIN numbers (if then generally in use) and, if so, the Trustee shall use CUSIP and/or ISIN numbers in notices of redemption as a convenience to Holders; provided , that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer will as promptly as practicable notify the Trustee of any change in the CUSIP or ISIN numbers.
ARTICLE 3
REDEMPTION
Section 3.01 Notices to Trustee .
          If the Issuer elects to redeem Notes pursuant to Section 3.07 hereof, it shall furnish to the Trustee and the Registrar and Paying Agent, at least 2 Business Days before notice of redemption is required to be mailed or caused to be mailed to Holders pursuant to Section 3.03 hereof but not more than 60 days before a Redemption Date, an Officer’s Certificate setting forth (i) the clause of this Second Supplemental Indenture or the subparagraph of such Note pursuant to which the redemption shall occur, (ii) the Redemption Date; (iii) the principal amount of Notes to be redeemed, (iv) the redemption price (or the method of calculating it) and (v) each place that payment will be made upon presentation and surrender of the Notes to be redeemed.
Section 3.02 Selection of Notes to Be Redeemed or Purchased .
          If less than all of the Notes, are to be redeemed or purchased in an offer to purchase at any time, the Registrar and Paying Agent shall select the Notes to be redeemed or purchased (a) if the Notes are listed on any national securities exchange, in compliance with the requirements of the principal national securities exchange on which the Notes are listed, (b) on a pro rata basis or (c) by lot or by such other method in accordance with the procedures of DTC. In the event of partial redemption or purchase by lot, the particular Notes to be redeemed or purchased shall be selected, unless otherwise provided herein,

-43-


 

not less than 30 nor more than 60 days prior to the Redemption Date by the Registrar and Paying Agent from the outstanding Notes not previously called for redemption or purchase.
          The Registrar and Paying Agent shall promptly notify the Issuer in writing of the Notes selected for redemption or purchase and, in the case of any Note selected for partial redemption or purchase, the principal amount thereof to be redeemed or purchased. Notes and portions of Notes selected shall be in amounts of $2,000 or whole multiples of $1,000 in excess thereof; no Notes of $2,000 or less can be redeemed in part, except that if all of the Notes of a Holder are to be redeemed or purchased, the entire outstanding amount of Notes held by such Holder, even if not $2,000 or a multiple of $1,000 in excess thereof, shall be redeemed or purchased. Except as provided in the preceding sentence, provisions of this Second Supplemental Indenture that apply to Notes called for redemption or purchase also apply to portions of Notes called for redemption or purchase.
Section 3.03 Notice of Redemption .
          The Issuer shall mail or cause to be mailed by first-class mail notices of redemption at least 30 days but not more than 60 days before the Redemption Date to each Holder of Notes to be redeemed at such Holder’s registered address or otherwise in accordance with the procedures of DTC, except that redemption notices may be mailed more than 60 days prior to a Redemption Date if the notice is issued in connection with Article 8 or Article 13 hereof. Except as set forth in Section 3.07(c) hereof, notices of redemption may not be conditional.
          The notice shall identify the Notes to be redeemed and shall state:
     (a) the Redemption Date;
     (b) the redemption price (or method of calculating it);
     (c) if any Note is to be redeemed in part only, the portion of the principal amount of that Note that is to be redeemed and that, after the Redemption Date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion of the original Note representing the same indebtedness to the extent not redeemed will be issued in the name of the Holder of the Notes upon cancellation of the original Note;
     (d) the place and address that payment will be made upon presentation and surrender of the Notes to be redeemed;
     (e) the name and address of the Paying Agent;
     (f) that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;
     (g) that, unless the Issuer defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the Redemption Date;
     (h) the paragraph or subparagraph of the Notes and/or Section of this Second Supplemental Indenture pursuant to which the Notes called for redemption are being redeemed;
     (i) 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 Notes; and

-44-


 

     (j) if in connection with a redemption pursuant to Section 3.07 hereof, any condition to such redemption.
          At the Issuer’s request, the Trustee shall give the notice of redemption in the Issuer’s name and at its expense; provided that the Issuer shall have delivered to the Trustee, at least 2 Business Days before notice of redemption is required to be mailed or caused to be mailed to Holders pursuant to this Section 3.03 (unless a shorter notice shall be agreed to by the Trustee), an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph.
Section 3.04 Effect of Notice of Redemption .
          Once notice of redemption is mailed in accordance with Section 3.03 hereof, Notes called for redemption become irrevocably due and payable on the Redemption Date at the redemption price (except as provided for in Section 3.07(c) hereof). The notice, if mailed in a manner herein provided, shall be conclusively presumed to have been given, whether or not the Holder receives such notice. In any case, failure to give such notice by mail or any defect in the notice to the Holder of any Note designated for redemption in whole or in part shall not affect the validity of the proceedings for the redemption of any other Note. Subject to Section 3.05 hereof, on and after the Redemption Date, interest ceases to accrue on Notes or portions thereof called for redemption.
Section 3.05 Deposit of Redemption or Purchase Price .
          Prior to 10:00 a.m. (New York City time) on the redemption or purchase date, the Issuer shall deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of and accrued and unpaid interest on all Notes to be redeemed or purchased on that date. The Trustee or the Paying Agent shall promptly return to the Issuer any money deposited with the Trustee or the Paying Agent by the Issuer in excess of the amounts necessary to pay the redemption price of, and accrued and unpaid interest on, all Notes to be redeemed or purchased.
          If the Issuer complies with the provisions of the preceding paragraph, on and after the redemption or purchase date, interest shall cease to accrue on the Notes or the portions of Notes called for redemption or purchase. If a Note is redeemed or purchased on or after a Record Date but on or prior to the related Interest Payment Date, then any accrued and unpaid interest to the redemption or purchase date shall be paid to the Person in whose name such Note was registered at the close of business on such Record Date. If any Note called for redemption or purchase shall not be so paid upon surrender for redemption or purchase because of the failure of the Issuer to comply with the preceding paragraph, interest shall be paid on the unpaid principal, from the redemption or purchase date until such principal is paid, and to the extent lawful on any interest accrued to the redemption or purchase date not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01 hereof.
Section 3.06 Notes Redeemed or Purchased in Part .
          Upon surrender of a Note that is redeemed or purchased in part, the Issuer shall issue and the Trustee shall authenticate for the Holder at the expense of the Issuer a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered representing the same indebtedness to the extent not redeemed or purchased; provided that each new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. It is understood that, notwithstanding anything in this Second Supplemental Indenture to the contrary, only an Authentication Order and not an Opinion of Counsel or Officer’s Certificate is required for the Trustee to authenticate such new Note.

-45-


 

Section 3.07 Optional Redemption .
          (a) Except as set forth below, the Issuer will not be entitled to redeem Notes at its option prior to the Maturity Date.
          (b) The Notes will be redeemable, at the Issuer’s option, at any time in whole or from time to time in part, at a redemption, or “make-whole,” price equal to the greater of: (i) 100% of the aggregate principal amount of the Notes to be redeemed, and (ii) an amount equal to sum of the present value of the remaining scheduled payments of principal of and interest on the Notes to be redeemed (excluding accrued and unpaid interest to the date of redemption (the “ Redemption Date ”) and subject to the right of Holders on the relevant Record Date to receive interest due on the relevant Interest Payment Date) discounted from their scheduled date of payment to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) using a discount rate equal to the Treasury Rate plus 50 basis points plus, in each of the above cases, accrued and unpaid interest, if any, to such Redemption Date.
          (c) Any notice of any redemption may be given prior to the redemption thereof, and any such redemption or notice may, at the Issuer’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of an Equity Offering or other corporate transaction.
          (d) If the Issuer redeems less than all of the outstanding Notes, the Registrar and Paying Agent shall select the Notes to be redeemed in the manner described under Section 3.02 hereof.
          (e) Any redemption pursuant to this Section 3.07 shall be made pursuant to the provisions of Sections 3.01 through 3.06 hereof.
Section 3.08 Mandatory Redemption .
          The Issuer shall not be required to make any mandatory redemption or sinking fund payments with respect to the Notes.
Section 3.09 Asset Sales of Collateral .
          (a) In the event that, pursuant to Section 4.08 hereof, the Issuer shall be required to commence a Collateral Asset Sale Offer, it shall follow the procedures specified below.
          (b) The Collateral Asset Sale Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (the “ Collateral Offer Period ”). No later than five Business Days after the termination of the Collateral Offer Period (the “ Collateral Purchase Date ”), the Issuer shall apply all Collateral Excess Proceeds (the “ Collateral Offer Amount ”) to the purchase of Notes and, if required, First Lien Obligations or Obligations secured by a Lien permitted under this Indenture (which Lien is not subordinate to the Liens of the Notes with respect to the Collateral) (on a pro rata basis, if applicable), or, if less than the Collateral Offer Amount has been tendered, all Notes and First Lien Obligations or such other Obligations tendered in response to the Collateral Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made.
          (c) If the Collateral Purchase Date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest and Additional Interest, if any, up to but excluding the Collateral Purchase Date, shall be paid to the Person in whose name a Note is registered at

-46-


 

the close of business on such Record Date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Collateral Asset Sale Offer.
          (d) Upon the commencement of a Collateral Asset Sale Offer, the Issuer shall send, by first-class mail, a notice to each of the Holders, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Collateral Asset Sale Offer. The Collateral Asset Sale Offer shall be made to all Holders and holders of such First Lien Obligations or Obligations secured by a Lien permitted under this Indenture (which Lien is not subordinate to the Liens of the Notes with respect to the Collateral). The notice, which shall govern the terms of the Collateral Asset Sale Offer, shall state:
     (i) that the Collateral Asset Sale Offer is being made pursuant to this Section 3.09 and Section 4.08 hereof and the length of time the Collateral Asset Sale Offer shall remain open;
     (ii) the Collateral Offer Amount, the purchase price and the Collateral Purchase Date;
     (iii) that any Note not tendered or accepted for payment shall continue to accrue interest;
     (iv) that, unless the Issuer defaults in making such payment, any Note accepted for payment pursuant to the Collateral Asset Sale Offer shall cease to accrue interest after the Collateral Purchase Date;
     (v) that Holders electing to have a Note purchased pursuant to a Collateral Asset Sale Offer may elect to have Notes purchased in the minimum amount of $2,000 or an integral multiple of $1,000 in excess thereof only;
     (vi) that Holders electing to have a Note purchased pursuant to any Collateral Asset Sale Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Note completed, or transfer by book-entry transfer, to the Issuer, the Depositary, if appointed by the Issuer, or a Paying Agent at the address specified in the notice at least three days before the Collateral Purchase Date;
     (vii) that Holders shall be entitled to withdraw their election if the Issuer, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Collateral Offer Period, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
     (viii) that, if the aggregate principal amount of Notes and First Lien Obligations or Obligations secured by a Lien permitted under this Indenture (which Lien is not subordinate to the Liens of the Notes with respect to the Collateral) surrendered by the holders thereof exceeds the Collateral Offer Amount, the Trustee shall select the Notes and such First Lien Obligations or other Obligations to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes or such First Lien Obligations or other Obligations tendered (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in minimum denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall be purchased); and

-47-


 

     (ix) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer) representing the same indebtedness to the extent not repurchased.
          (e) On or before the Collateral Purchase Date, the Issuer shall, to the extent lawful, (1) accept for payment, on a pro rata basis to the extent necessary, the Collateral Offer Amount of Notes or portions thereof validly tendered pursuant to the Collateral Asset Sale Offer, or if less than the Collateral Offer Amount has been tendered, all Notes tendered and (2) deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions thereof so tendered.
          (f) The Issuer, the Depositary or the Paying Agent, as the case may be, shall promptly mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes properly tendered by such Holder and accepted by the Issuer for purchase, and the Issuer shall promptly issue a new Note, and the Trustee, upon receipt of an Authentication Order, shall authenticate and mail or deliver (or cause to be transferred by book-entry) such new Note to such Holder (it being understood that, notwithstanding anything in this Indenture to the contrary, no Opinion of Counsel or Officer’s Certificate is required for the Trustee to authenticate and mail or deliver such new Note) in a principal amount equal to any unpurchased portion of the Note surrendered representing the same indebtedness to the extent not repurchased; provided , that each such new Note shall be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. Any Note not so accepted shall be promptly mailed or delivered by the Issuer to the Holder thereof. The Issuer shall publicly announce the results of the Collateral Asset Sale Offer on or as soon as practicable after the Collateral Purchase Date.
     Other than as specifically provided in this Section 3.09 or Section 4.08, any purchase pursuant to this Section 3.09 shall be made pursuant to the applicable provisions of Sections 3.01 through 3.06 hereof.
Section 3.10 Asset Sales .
     (a) In the event that, pursuant to Section 4.08 hereof, the Issuer shall be required to commence an Asset Sale Offer, it shall follow the procedures specified below.
     (b) The Asset Sale Offer shall remain open for a period of 20 Business Days following its commencement and no longer, except to the extent that a longer period is required by applicable law (the “ Offer Period ”). No later than five Business Days after the termination of the Offer Period (the “ Purchase Date ”), the Issuer shall apply all Excess Proceeds (the “ Offer Amount ”) to the purchase of Notes and, if required or permitted by the terms thereof, any Senior Indebtedness (on a pro rata basis), or, if less than the Offer Amount has been tendered, all Notes and Senior Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased shall be made in the same manner as interest payments are made.
     (c) If the Purchase Date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest and Additional Interest, if any, up to but excluding the Purchase Date, shall be paid to the Person in whose name a Note is registered at the close of business on such Record Date, and no additional interest shall be payable to Holders who tender Notes pursuant to the Asset Sale Offer.
     (d) Upon the commencement of an Asset Sale Offer, the Issuer shall send, by first class mail, a notice to each of the Holders, with a copy to the Trustee. The notice shall contain all instructions

-48-


 

and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to all Holders and holders of such Senior Indebtedness. The notice, which shall govern the terms of the Asset Sale Offer, shall state:
     (i) that the Asset Sale Offer is being made pursuant to this Section 3.10 and Section 4.08 hereof and the length of time the Asset Sale Offer shall remain open;
     (ii) the Offer Amount, the purchase price and the Purchase Date;
     (iii) that any Note not tendered or accepted for payment shall continue to accrue interest;
     (iv) that, unless the Issuer defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Purchase Date;
     (v) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in the minimum amount of $2,000 or an integral multiple of $1,000 in excess thereof only;
     (vi) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Note completed, or transfer by book-entry transfer, to the Issuer, the Depositary, if appointed by the Issuer, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;
     (vii) that Holders shall be entitled to withdraw their election if the Issuer, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
     (viii) that, if the aggregate principal amount of Notes and Senior Indebtedness surrendered by the holders thereof exceeds the Offer Amount, the Trustee shall select the Notes and such Senior Indebtedness to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes or such Senior Indebtedness tendered (with such adjustments as may be deemed appropriate by the Trustee so that only Notes in minimum denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall be purchased); and
     (ix) that Holders whose Notes were purchased only in part shall be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer) representing the same indebtedness to the extent not repurchased.
     (e) On or before the Purchase Date, the Issuer shall, to the extent lawful, (1) accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof validly tendered pursuant to the Asset Sale Offer or, if less than the Offer Amount has been tendered, all Notes tendered and (2) deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions thereof so tendered.
     (f) The Issuer, the Depositary or the Paying Agent, as the case may be, shall promptly mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes properly tendered

-49-


 

by such Holder and accepted by the Issuer for purchase, and the Issuer shall promptly issue a new Note, and the Trustee, upon receipt of an Authentication Order, shall authenticate and mail or deliver (or cause to be transferred by book-entry) such new Note to such Holder (it being understood that, notwithstanding anything in this Indenture to the contrary, no Opinion of Counsel or Officer’s Certificate is required for the Trustee to authenticate and mail or deliver such new Note) in a principal amount equal to any unpurchased portion of the Note surrendered representing the same indebtedness to the extent not repurchased; provided that each such new Note shall be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. Any Note not so accepted shall be promptly mailed or delivered by the Issuer to the Holder thereof. The Issuer shall publicly announce the results of the Asset Sale Offer on or as soon as practicable after the Purchase Date.
     Other than as specifically provided in this Section 3.10 or Section 4.08, any purchase pursuant to this Section 3.10 shall be made pursuant to the applicable provisions of Sections 3.01 through 3.06 hereof.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes .
          The Issuer shall pay or cause to be paid the principal of, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes. 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 (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the rate equal to the then applicable interest rate on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace period) at the same rate to the extent lawful.
Section 4.02 Maintenance of Office or Agency .
          The Issuer shall maintain in the Borough of Manhattan in the City of New York, an office or agency (which may be an office of the Trustee or an Affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuer in respect of the Notes and this Second Supplemental 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 Notes 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 in the Borough of Manhattan in the City of New York, 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.

-50-


 

          The Issuer hereby designates the office of the Registrar at the address specified in Section 14.02 hereof (or such other address as to which the Registrar may give notice to the Holders and the Issuer) as one such office or agency of the Issuer in accordance with Section 2.03 hereof.
Section 4.03 Compliance Certificate .
          (a) The Issuer shall deliver to the Trustee, within 90 days after the end of each fiscal year ending after the Issue Date, an Officer’s Certificate stating that a review of the activities of the Issuer and its Restricted Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officer with a view to determining whether the Issuer has kept, observed, performed and fulfilled its obligations under this Second Supplemental Indenture, and further stating, as to such Officer signing such certificate, that to the best of his or her knowledge the Issuer has kept, observed, performed and fulfilled each and every condition and covenant contained in this Second Supplemental Indenture and is not in default in the performance or observance of any of the terms, provisions, covenants and conditions of this Second Supplemental Indenture (or, if a Default shall have occurred, describing all such Defaults of which he or she may have knowledge and what action the Issuer is taking or proposes to take with respect thereto).
          (b) When any Default has occurred and is continuing under this Second Supplemental Indenture, or if the Trustee or the holder of any other evidence of Indebtedness of the Issuer or any Subsidiary gives any notice or takes any other action with respect to a claimed Default, the Issuer shall promptly (which shall be no more than five (5) Business Days) deliver to the Trustee by registered or certified mail or by facsimile transmission an Officer’s Certificate specifying such event and what action the Issuer proposes to take with respect thereto.
Section 4.04 Taxes .
          The Issuer shall pay, and shall cause each of its Restricted Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and governmental levies except such as are contested in good faith and by appropriate negotiations or proceedings or where the failure to effect such payment is not adverse in any material respect to the Holders of the Notes.
Section 4.05 Stay, Extension and Usury Laws .
          The Issuer and each Guarantors covenant (to the extent that they may lawfully do so) that they shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Second Supplemental Indenture; and the Issuer and each of the Guarantors (to the extent that they may lawfully do so) hereby expressly waive all benefit or advantage of any such law, and covenant that they shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted.
Section 4.06 Corporate Existence .
          Subject to Article 5 hereof the Issuer, and so long as any Notes in respect of which Guarantees have been Outstanding, each such Guarantor, shall do or cause to be done all things necessary to preserve and keep in full force and effect (i) its corporate existence, partnership or other existence of each of its Subsidiaries, in accordance with the respective organizational rights (charter or statutory), licenses and franchises; provided that neither the Issuer nor any Guarantor shall be required to preserve any such

-51-


 

right, license or franchise, if respective board of directors shall in good faith determine that the preservation thereof is no longer desirable in the conduct of the business.
Section 4.07 Offer to Repurchase upon Change of Control .
          (a) If a Change of Control occurs, unless the Issuer has previously or concurrently mailed a redemption notice with respect to all the outstanding Notes as described under Section 3.07 hereof, the Issuer shall make an offer to purchase all of the Notes pursuant to the offer described below (the “ Change of Control Offer ”) at a price in cash (the “ Change of Control Payment ”) equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to the date of purchase, subject to the right of Holders of the Notes of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date. Within 30 days following any Change of Control, the Issuer shall send notice of such Change of Control Offer by first-class mail, with a copy to the Trustee and the Registrar, to each Holder of Notes to the address of such Holder appearing in the security register with a copy to the Trustee and the Registrar or otherwise in accordance with the procedures of DTC, with the following information:
     (1) that a Change of Control Offer is being made pursuant to this Section 4.07 and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for payment by the Issuer;
     (2) the purchase price and the purchase date, which will be no earlier than 30 days nor later than 60 days from the date such notice is mailed (the “ Change of Control Payment Date ”);
     (3) that any Note not properly tendered will remain outstanding and continue to accrue interest;
     (4) that unless the Issuer defaults in the payment of the Change of Control Payment, all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue interest on the Change of Control Payment Date;
     (5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the paying agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;
     (6) that Holders shall be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes, provided that the paying agent receives, not later than the close of business on the 30th day following the date of the Change of Control notice, a telegram, facsimile transmission or letter setting forth the name of the Holder of the Notes, the principal amount of Notes tendered for purchase, and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
     (7) Holders tendering less than all of their Notes will be issued new Notes and such new Notes will be equal in principal amount to the unpurchased portion of the Notes surrendered. The unpurchased portion of the Notes must be equal to $2,000 or an integral multiple of $1,000 in excess thereof; and

-52-


 

     (8) the other instructions, as determined by the Issuer, consistent with this Section 4.07, that a Holder must follow.
          The notice, if mailed in a manner herein provided, shall be conclusively presumed to have been given, whether or not the Holder receives such notice. If (a) the notice is mailed in a manner herein provided and (b) any Holder fails to receive such notice or a Holder receives such notice but it is defective, such Holder’s failure to receive such notice or such defect shall not affect the validity of the proceedings for the purchase of the Notes as to all other Holders that properly received such notice without defect. The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 4.07, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under this Section 4.07 by virtue thereof.
          (b) On the Change of Control Payment Date, the Issuer shall, to the extent permitted by law,
     (1) accept for payment all Notes issued by it or portions thereof properly tendered pursuant to the Change of Control Offer;
     (2) deposit with the Paying Agent an amount equal to the aggregate Change of Control Payment in respect of all Notes or portions thereof so tendered; and
     (3) deliver, or cause to be delivered, to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate to the Trustee stating that such Notes or portions thereof have been tendered to and purchased by the Issuer.
          (c) The Issuer shall not be required to make a Change of Control Offer following a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.07 applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making of the Change of Control Offer.
          (d) Other than as specifically provided in this Section 4.07, any purchase pursuant to this Section 4.07 shall be made pursuant to the provisions of Sections 3.02, 3.05 and 3.06 hereof.
Section 4.08 Asset Sales .
          (a) The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to consummate, directly or indirectly, an Asset Sale, unless:
     (1) the Issuer or such Restricted Subsidiary, as the case may be, receives consideration at the time of such Asset Sale at least equal to the fair market value (as determined in good faith by the Issuer) of the assets sold or otherwise disposed of; and
     (2) except in the case of a Permitted Asset Swap, at least 75% of the consideration therefor received by the Issuer or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash Equivalents; provided that the amount of:

-53-


 

     (A) any liabilities (as shown on the Issuer’s or such Restricted Subsidiary’s most recent balance sheet or in the footnotes thereto) of the Issuer or such Restricted Subsidiary, other than liabilities that are by their terms subordinated to the Notes, that are assumed by the transferee of any such assets and for which the Issuer and all of its Restricted Subsidiaries have been validly released by all creditors in writing,
     (B) any securities received by the Issuer or such Restricted Subsidiary from such transferee that are converted by the Issuer or such Restricted Subsidiary into cash (to the extent of the cash received) within 180 days following the closing of such Asset Sale, and
     (C) any Designated Non-cash Consideration received by the Issuer or such Restricted Subsidiary in such Asset Sale having an aggregate fair market value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (C) that is at that time outstanding, not to exceed 5% of Total Assets at the time of the receipt of such Designated Non-cash Consideration, with the fair market value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value,
     shall be deemed to be cash for purposes of this provision and for no other purpose.
          (b) Within 450 days after the receipt of any Net Proceeds of any Asset Sale, the Issuer or such Restricted Subsidiary, at its option, may apply the Net Proceeds from such Asset Sale,
          (1) to permanently reduce:
     (A) Obligations constituting First Lien Obligations (and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto) ( provided that (x) to the extent that the terms of First Lien Obligations other than Obligations under the Notes require that such First Lien Obligations are repaid with the Net Proceeds of Asset Sales prior to repayment of other Indebtedness, the Issuer and its Restricted Subsidiaries shall be entitled to repay such other First Lien Obligations prior to repaying the Obligations under the Notes and (y) subject to the foregoing clause (x), if the Issuer or any Subsidiary Guarantor shall so reduce First Lien Obligations, the Issuer will equally and ratably reduce Obligations under the Notes through open-market purchases ( provided that such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Asset Sale Offer) to all holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest and additional interest, if any, on the pro rata principal amount of Notes);
     (B) Obligations under the Existing Notes which have a final maturity date (as in effect on the Issue Date) on or prior to the Maturity Date of the Notes; provided that, at the time of, and after giving effect to, such repurchase, redemption or defeasance, the aggregate amount of Net Proceeds used to repurchase, redeem or defease Existing Notes pursuant to this subclause (b) following the Issue Date shall not exceed 5% of Total Assets at such time; or
     (C) Indebtedness of a Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the Issuer or another Restricted Subsidiary (or any Affiliate thereof);

-54-


 

     (2) to make (a) an Investment in any one or more businesses, provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Issuer or another of its Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (b) capital expenditures or (c) acquisitions of other assets, in each of (a), (b) and (c), used or useful in a Similar Business; or
     (3) to make an investment in (a) any one or more businesses, provided that such Investment in any business is in the form of the acquisition of Capital Stock and results in the Issuer or another of its Restricted Subsidiaries, as the case may be, owning an amount of the Capital Stock of such business such that it constitutes a Restricted Subsidiary, (b) properties or (c) acquisitions of other assets that, in each of (a), (b) and (c), replace the businesses, properties and/or assets that are the subject of such Asset Sale;
provided that, in the case of clauses (2) and (3) above, a binding commitment shall be treated as a permitted application of the Net Proceeds from the date of such commitment so long as the Issuer, or such other Restricted Subsidiary enters into such commitment with the good faith expectation that such Net Proceeds will be applied to satisfy such commitment within 180 days of such commitment (an “ Acceptable Commitment ”) and, in the event any Acceptable Commitment is later cancelled or terminated for any reason before the Net Proceeds are applied in connection therewith, the Issuer or such Restricted Subsidiary enters into another Acceptable Commitment (a “ Second Commitment ”) within 180 days of such cancellation or termination; provided , further , that if any Second Commitment is later cancelled or terminated for any reason before such Net Proceeds are applied, then such Net Proceeds shall constitute Excess Proceeds.
          (c) Any Net Proceeds from Asset Sales of Collateral that are not invested or applied as set forth in Section 4.08(b) shall be deemed to constitute “ Collateral Excess Proceeds .” When the aggregate amount of Collateral Excess Proceeds exceeds $200.0 million, the Issuer shall make an offer to all Holders of the Notes and, if required by the terms of any First Lien Obligations or Obligations secured by a Lien permitted under this Second Supplemental Indenture (which Lien is not subordinate to the Lien of the Notes with respect to the Collateral), to the holders of such First Lien Obligations or such other Obligations (a “ Collateral Asset Sale Offer ”), to purchase the maximum aggregate principal amount of the Notes and such First Lien Obligations or such other Obligations that is a minimum of $2,000 or an integral multiple of $1,000 in excess thereof that may be purchased out of the Collateral Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Second Supplemental Indenture. The Issuer will commence a Collateral Asset Sale Offer with respect to Collateral Excess Proceeds within ten Business Days after the date that Collateral Excess Proceeds exceed $200.0 million by mailing the notice required pursuant to the terms of this Second Supplemental Indenture, with a copy to the Trustee.
          Any Net Proceeds from Asset Sales of non-Collateral that are not invested or applied as provided and within the time period set forth in Section 4.08(b) shall be deemed to constitute “ Excess Proceeds .” When the aggregate amount of Excess Proceeds exceeds $200.0 million, the Issuer shall make an offer to all Holders of the Notes and, if required or permitted by the terms of any Senior Indebtedness, to the holders of such Senior Indebtedness (an “ Asset Sale Offer ”), to purchase the maximum aggregate principal amount of the Notes and such Senior Indebtedness that is a minimum of $2,000 or an integral multiple of $1,000 in excess thereof that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest to the date fixed for the closing of such offer, in accordance with the procedures set forth in this Second Supplemental Indenture. The Issuer will commence an Asset Sale Offer with respect to Excess Proceeds

-55-


 

within ten Business Days after the date that Excess Proceeds exceed $200.0 million by mailing the notice required pursuant to the terms of this Second Supplemental Indenture, with a copy to the Trustee.
          To the extent that the aggregate amount of Notes and such other First Lien Obligations or Obligations secured by a Lien permitted by this Second Supplemental Indenture (which Lien is not subordinate to the Lien of the Notes with respect to the Collateral) tendered pursuant to a Collateral Asset Sale Offer is less than the Collateral Excess Proceeds, the Issuer may use any remaining Collateral Excess Proceeds for general corporate purposes, subject to other covenants contained in this Second Supplemental Indenture. To the extent that the aggregate amount of Notes and such Senior Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in this Second Supplemental Indenture. If the aggregate principal amount of Notes or other First Lien Obligations or such other Obligations surrendered by such holders thereof exceeds the amount of Collateral Excess Proceeds, the Trustee shall select the Notes and such other First Lien Obligations or such other Obligations to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes or such other First Lien Obligations or such other Obligations tendered. If the aggregate principal amount of Notes or the Senior Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such Senior Indebtedness to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes or such Senior Indebtedness tendered. Upon completion of any such Collateral Asset Sale Offer or Asset Sale Offer, the amount of Collateral Excess Proceeds or Excess Proceeds, as the case may be, shall be reset at zero. Additionally, the Issuer may, at its option, make a Collateral Asset Sale Offer or an Asset Sale Offer using proceeds from any Asset Sale at any time after consummation of such Asset Sale; provided that such Collateral Asset Sale Offer or Asset Sale Offer shall be in an aggregate amount of not less than $50.0 million. Upon consummation of such Collateral Asset Sale Offer or Asset Sale Offer, any Net Proceeds not required to be used to purchase Notes shall not be deemed Excess Proceeds.
          (d) Pending the final application of any Net Proceeds pursuant to this Section 4.08, the holder of such Net Proceeds may apply such Net Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Proceeds in any manner not prohibited by this Second Supplemental Indenture.
          (e) The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of the Notes pursuant to a Collateral Asset Sale Offer or an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Second Supplemental Indenture, the Issuer shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in this Second Supplemental Indenture by virtue thereof.
Section 4.09 Liens .
          The Issuer shall not, and shall not permit any Subsidiary Guarantor to, directly or indirectly, create, incur, assume or suffer to exist any Lien (except Permitted Liens) that secures obligations under any Indebtedness or any related guarantee, on any asset or property of the Issuer or any Subsidiary Guarantor, or any income or profits therefrom, or assign or convey any right to receive income therefrom, other than Liens securing Indebtedness that are junior in priority to the Liens on such property, assets or proceeds securing the Notes and related Subsidiary Guarantees.

-56-


 

          The foregoing shall not apply to (a) Liens securing the Notes and the related Subsidiary Guarantees, (b) Liens securing Indebtedness permitted to be incurred under Credit Facilities, including any letter of credit relating thereto, that was permitted by the terms of this Second Supplemental Indenture to be incurred pursuant to clause (1) of Section 4.10(b) set forth in the Existing Secured Bond Indentures as in effect on the Issue Date; provided that, with respect to Liens securing Obligations permitted under this subclause (b), the Notes and the related Subsidiary Guarantees are secured by Liens on the assets subject to such Liens (except any European Collateral) to the extent, with the priority and subject to intercreditor arrangements, in each case no less favorable to the Holders of the Notes than those described under Article 10 set forth in the Existing Secured Bond Indentures as in effect on the Issue Date and (c) Liens which are pari passu in priority to the Liens securing the Notes and related Subsidiary Guarantees and are incurred to secure Obligations in respect of any Indebtedness permitted to be incurred pursuant to Section 4.10 set forth in the Existing Secured Bond Indentures as in effect on the Issue Date; provided that, with respect to Liens securing Obligations permitted under this subclause (c), at the time of incurrence and after giving pro forma effect thereto, the ratio of (1) the aggregate amount of Indebtedness secured by property, assets or proceeds that secure the Notes and related Subsidiary Guarantees that are subject to a Lien that is pari passu or senior in priority to the Liens securing the Notes and the related Subsidiary Guarantees incurred pursuant to subclause (b) above, this subclause (c) and clause (6) of the definition of “Permitted Liens” (other than Liens securing Indebtedness incurred pursuant to clauses (4) and (18) of Section 4.10(b) set forth in the Existing Secured Bond Indentures as in effect on the Issue Date) to (2) the Issuer’s EBITDA for the most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such event for which such calculation is being made shall occur, in each case with such pro forma adjustments to Indebtedness and EBITDA as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of Fixed Charge Coverage Ratio would be no greater than 4.25 to 1.0; provided that, with respect to Liens securing Obligations permitted under this subclause (c), the Notes and the related Subsidiary Guarantees are secured by Liens on the assets subject to such Liens (except any European Collateral) to the extent, with the priority and subject to intercreditor arrangements, in each case no less favorable to the Holders of the Notes than those described under Article 10 hereof.
Section 4.10 Discharge and Suspension of Covenants .
          (a) If on any date following the Issue Date (i) the Notes have Investment Grade Ratings from both Rating Agencies and (ii) no Default has occurred and is continuing under this Second Supplemental Indenture (the occurrence of the events described in the foregoing clauses (i) and (ii) being collectively referred to as a “ Investment Grade Rating Event ”), the Issuer and the Subsidiaries shall not be subject to Section 4.07 hereof (the “ Suspended Covenant ”).
          (b) In the event that the Issuer and the Subsidiaries are not subject to the Suspended Covenant under this Second Supplemental Indenture for any period of time as a result of the foregoing, and on any subsequent date (the “ Reversion Date ”) one or both of the Rating Agencies (1) withdraw their Investment Grade Rating or downgrade the rating assigned to the Notes below an Investment Grade Rating and/or (2) the Issuer or any of its Affiliates enters into an agreement to effect a transaction that would result in a Change of Control and one or more of the Rating Agencies indicate that if consummated, such transaction (alone or together with any related recapitalization or refinancing transactions) would cause such Rating Agency to withdraw its Investment Grade Rating or downgrade the ratings assigned to the Notes below an Investment Grade Rating, then the Issuer and the Subsidiaries shall thereafter again be subject to the Suspended Covenant under this Second Supplemental Indenture with respect to future events, including, without limitation, a proposed transaction described in clause (2) above.

-57-


 

          (c) In the event of any such reinstatement, no action taken or omitted to be taken by the Issuer or any of its Subsidiaries prior to such reinstatement shall give rise to a Default or Event of Default under this Second Supplemental Indenture with respect to Notes.
Section 4.11 Covenants Termination and Release of Collateral; Investment Grade Covenants .
          (a) If on any date following the Issue Date, an Investment Grade Event has occurred
     (1) all Collateral securing the Notes shall be released in accordance with the terms set forth in this Second Supplemental Indenture and the Security Documents;
     (2) the Issuer and the Subsidiaries shall not be subject to Sections 4.08 or 4.09; and
     (3) Sections 4.11(c), (d) and (e) shall apply to the Issuer and become effective upon the occurrence of such an Investment Grade Rating Event.
          (b) In addition, if on any date following the Issue Date, substantially all of the Collateral has been released or is no longer required to be pledged pursuant to terms of the Credit Facilities:
     (1) the Issuer and the Subsidiaries shall not be subject to covenants described under Sections 4.08 and 4.09; and
     (2) Sections 4.11(c), (d) and (e) shall apply to the Issuer and become effective upon the occurrence of such an Investment Grade Rating Event.
          (c) Limitations on Mortgages .
     (1) Nothing in this Second Supplemental Indenture or in the Notes shall in any way restrict or prevent the Issuer, the Parent Guarantor or any Subsidiary from incurring any Indebtedness, provided , however , that neither the Issuer nor any of its Subsidiaries will issue, assume or guarantee any indebtedness or obligation secured by Mortgages upon any Principal Property, unless the Notes shall be secured equally and ratably with (or prior to) such Indebtedness.
     (2) The provisions of Section 4.11(c)(1) shall not apply to:
     (3) Mortgages securing all or any part of the purchase price of property acquired or cost of construction of property or cost of additions, substantial repairs, alterations or improvements or property, if the Indebtedness and the related Mortgages are incurred within 18 months of the later of the acquisition or completion of construction and full operation or additions, repairs, alterations or improvements;
     (4) Mortgages existing on property at the time of its acquisition by the Issuer or a Subsidiary or on the property of a Person at the time of the acquisition of such Person by the Issuer or a Subsidiary (including acquisitions through merger or consolidation);
     (5) Mortgages to secure Indebtedness on which the interest payments to holders of the related indebtedness are excludable from gross income for federal income tax purposes under Section 103 of the Code;
     (6) Mortgages in favor of the Issuer or any Subsidiary;

-58-


 

     (7) Mortgages existing on the date of this Second Supplemental Indenture;
     (8) Mortgages in favor of a government or governmental entity that (i) secure Indebtedness which is guaranteed by the government or governmental entity, (ii) secure Indebtedness incurred to finance all or some of the purchase price or cost of construction of goods, products or facilities produced under contract or subcontract for the government or governmental entity, or (iii) secure Indebtedness incurred to finance all or some of the purchase price or cost of construction of the property subject to the Mortgage;
     (9) Mortgages incurred in connection with the borrowing of funds where such funds are used to repay within 120 days after entering into such Mortgage, Indebtedness in the same principal amount secured by other Mortgages on Principal Property with at least the same appraised fair market value; and
     (10) any extension, renewal or replacement of any Mortgage referred to in clauses (1) through (7) above, provided the amount secured is not increased and such extension, renewal or replacement Mortgage relates to the same property.
     (d) Limitations on Sale and Lease-Back .
     (1) Neither the Issuer nor any Subsidiary will enter into any Sale and Lease-Back Transaction with respect to any Principal Property with another Person (other than with the Issuer or a Subsidiary) unless either:
     (2) the Issuer or such Subsidiary could incur indebtedness secured by a mortgage on the property to be leased without equally and ratably securing the Notes; or
     (3) within 120 days, the Issuer applies the greater of the net proceeds of the sale of the leased property or the fair value of the leased property, net of all Notes delivered under this Second Supplemental Indenture, to the voluntary retirement of Funded Debt and/or the acquisition or construction of a Principal Property.
     (e) Exempted Transactions .
     (1) Notwithstanding the provisions of Sections 4.11(c) and 4.11(d), if the aggregate outstanding principal amount of all Indebtedness of the Issuer and its Subsidiaries that is subject to and not otherwise permitted under these restrictions does not exceed 15% of the Consolidated Net Tangible Assets of the Issuer and its Subsidiaries, then:
     (2) the Issuer or any of its Subsidiaries may issue, assume or guarantee Indebtedness secured by Mortgages; and
     (3) the Issuer or any of its Subsidiaries may enter into any Sale and Lease-Back Transaction.
          (f) Effectiveness . For the avoidance of doubt, Sections 4.11(c), (d) and (e) shall not be effective or applicable to the Issuer or its Subsidiaries unless and until the occurrence of one of the events specified in Section 4.11(a) or Section 4.11(b).

-59-


 

ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation or Sale of All or Substantially All Assets .
          (a) The Issuer shall not consolidate with or merge into or transfer or lease all or substantially all of its assets to (whether or not the Issuer is the surviving corporation) any Person unless:
     (1) either: (x) the Issuer is the surviving corporation; or (y) the Person formed by or surviving any such consolidation or merger (if other than the Issuer) or to which such transfer or lease will have been made is a corporation organized or existing under the laws of the jurisdiction of organization of the 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 Entity ”) expressly assumes, pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee, all obligations of the Issuer under the Notes and this Second Supplemental Indenture as if such Successor Entity were a party to this Second Supplemental Indenture;
     (2) after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing;
     (3) if, as a result of any such consolidation or merger or such conveyance, transfer or lease, properties or assets of the Issuer would become subject to a mortgage, pledge, lien, security interest or other encumbrance that would not be permitted by this Second Supplemental Indenture, the Issuer or such Successor Entity or Person, as the case may be, shall take such steps as shall be necessary effectively to secure all the Notes equally and ratably with (or prior to) all indebtedness secured thereby;
     (4) each Subsidiary Guarantor, unless it is the other party to the transactions described above, in which case Section 5.01(b)(1)(B) hereof shall apply, shall have by supplemental indenture confirmed that its Subsidiary Guarantee shall apply to such Person’s obligations under this Second Supplemental Indenture and the Notes;
     (5) the Collateral owned by the Successor Entity will (a) continue to constitute Collateral under this Second Supplemental Indenture and the Security Documents, (b) be subject to a Lien in favor of the First Lien Collateral Agent for the benefit of the Trustee and the Holders of the Notes and (c) not be subject to any other Lien, other than Permitted Liens and other Liens permitted under Section 4.09;
     (6) to the extent any assets of the Person which is merged or consolidated with or into the Successor Entity are assets of the type which would constitute Collateral under the Security Documents, the Successor Entity 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 in this Second Supplemental Indenture or any of the Security Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by the Security Documents; and
     (7) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and

-60-


 

such supplemental indenture, if any, comply with this Section 5.01 and that all conditions precedent provided for in this Second Supplemental Indenture relating to such transaction have been complied with.
          (b) Subject to certain limitations described in this Second Supplemental Indenture governing release of a Subsidiary Guarantee upon the sale, disposition or transfer of a Subsidiary Guarantor, no Guarantor will, and the Issuer will not permit any Subsidiary Guarantor to, consolidate or merge with or into or wind up into (whether or not the Issuer or such Guarantor 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:
     (1) (A) such Guarantor is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, limited partnership, limited liability corporation or trust organized or existing under the laws of the jurisdiction of organization of such Guarantor, as the case may be, or the laws of the United States, any state thereof, the District of Columbia, or any territory thereof (such Guarantor or such Person, as the case may be, being herein called the “ Successor Person ”);
          (B) the Successor Person, if other than such Guarantor, expressly assumes all the obligations of such Guarantor under this Second Supplemental Indenture and such Guarantor’s related Guarantee pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee;
          (C) immediately after such transaction, no Default exists; and
          (D) the Issuer shall have delivered to the Trustee an Officer’s Certificate, each stating that such consolidation, merger or transfer and such supplemental indentures, if any, comply with this Second Supplemental Indenture; or
          (2) the transaction is made in compliance with Section 4.08 hereof.
          (c) Subject to certain limitations described in this Second Supplemental Indenture, the Successor Person will succeed to, and be substituted for, such Guarantor under this Second Supplemental Indenture and such Guarantor’s Guarantee. Notwithstanding the foregoing, any Guarantor may (i) merge into or transfer all or part of its properties and assets to another Guarantor or the Issuer, (ii) merge with an Affiliate of the Issuer solely for the purpose of reincorporating the Guarantor in the United States, any state thereof, the District of Columbia or any territory thereof or (iii) convert into a corporation, partnership, limited partnership, limited liability corporation or trust organized or existing under the laws of the jurisdiction of organization of such Guarantor.
Section 5.02 Successor Corporation Substituted .
          Upon any consolidation or merger, or transfer or lease of all or substantially all of the assets of the Issuer in accordance with Section 5.01 hereof, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger, sale, lease, conveyance or other disposition, the provisions of this Second Supplemental Indenture referring to the Issuer shall refer instead to the Successor Entity and not to the Issuer), and may exercise every right and power of the Issuer under this Second Supplemental Indenture with the same effect as if such successor Person had been named as the Issuer herein; provided that the predecessor Issuer shall not be relieved from the obligation to pay the principal of and interest on the Notes except in the case of a sale, assignment, transfer,

-61-


 

conveyance or other disposition of all of the Issuer’s assets that meets the requirements of Section 5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default .
          (a) An “ Event of Default ” wherever used herein, 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):
     (1) default in payment when due and payable, upon redemption, acceleration or otherwise, of principal of, or premium, if any, on the Notes;
     (2) default for a period of 30 days or more in the payment when due of interest on or with respect to the Notes;
     (3) default in any deposit of any sinking fund payment in respect of the Notes when and as due by the terms of the Notes;
     (4) default in the performance, or breach, of any covenant or warranty of the Issuer in this Second Supplemental Indenture (other than a covenant or warranty in whose performance or whose breach is elsewhere in this Section specifically dealt with), and continuance of such default or breach for a period of 60 days after there has been given written notice by the Holders of at least 10% in principal amount of the outstanding Notes specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder;
     (5) the Issuer or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary, 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:

-62-


 

     (i) is for relief against the Issuer, in a proceeding in which the Issuer is to be adjudicated bankrupt or insolvent;
     (ii) 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
     (iii) orders the liquidation of the Issuer;
and the order or decree remains unstayed and in effect for 60 consecutive days;
     (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 Second Supplemental Indenture or the release of any such Guarantee in accordance with this Second Supplemental Indenture; or
     (8) to the extent applicable, with respect to any Collateral having a fair market value in excess of $200.0 million, individually or in the aggregate, (a) the security interest under the Security Documents, at any time, ceases to be in full force and effect for any reason other than in accordance with the terms of this Second Supplemental Indenture, the Security Documents and the Intercreditor Agreements, (b) any security interest created thereunder or under this Second Supplemental Indenture is declared invalid or unenforceable by a court of competent jurisdiction or (c) the Issuer or any Subsidiary Guarantor asserts, in any pleading in any court of competent jurisdiction, that any such security interest is invalid or unenforceable.
Section 6.02 Acceleration .
          (a) If any Event of Default (other than an Event of Default specified in clause (5) or (6) of Section 6.01(a) hereof) occurs and is continuing under this Second Supplemental Indenture, the Trustee or the Holders of at least 25% in aggregate principal amount of the then total outstanding Notes may declare the principal amount of all the then outstanding Notes 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 Notes 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 Notes.
          (b) Notwithstanding the foregoing, in the case of an Event of Default arising under clause (5) or (6) of Section 6.01(a) hereof, all outstanding Notes shall be due and payable immediately without further action or notice.
          (c) The Holders of a majority in aggregate principal amount of the then outstanding Notes 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, interest or premium that has become due solely because of the acceleration) have been cured or waived.

-63-


 

Section 6.03 Other Remedies .
          If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and interest on the Notes or to enforce the performance of any provision of the Notes or this Second Supplemental Indenture.
          The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults .
          Holders of not less than a majority in aggregate principal amount of the then outstanding Notes by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default and its consequences hereunder, except a past Default in the payment (a) in principal of, premium if any, or interest on, any Note, or in the payment of any sinking fund installment with respect to the Notes, or (b) in respect of a covenant or provision hereof which pursuant to Article 9 hereof cannot be modified or amended, without the consent of Holders of each outstanding Note affected); provided , subject to Section 6.02 hereof, that the Holders of a majority in aggregate principal amount of the then outstanding Notes may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration. 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 Second Supplemental Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.05 Control by Majority .
          Subject to the terms of the Intercreditor Agreement, the Holders of a majority in principal amount of the then total outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee. The Trustee, however, may refuse to follow any direction that conflicts with law or this Second Supplemental Indenture or that the Trustee determines is unduly prejudicial to the rights of any other Holder of a Note or that would involve the Trustee in personal liability.
Section 6.06 Limitation on Suits .
          Subject to the terms of the Intercreditor Agreement and subject to Section 6.07 hereof, no Holder of a Note may pursue any remedy with respect to this Second Supplemental Indenture or the Notes unless:
     (1) such Holder has previously given the Trustee notice that an Event of Default is continuing;
     (2) Holders of at least 25% in principal amount of the total outstanding Notes have requested the Trustee to pursue the remedy;
     (3) Holders of the Notes have offered the Trustee security or indemnity reasonably satisfactory to it against any loss, liability or expense;

-64-


 

     (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 Notes have not given the Trustee a direction inconsistent with such request within such 60-day period.
          A Holder of a Note may not use this Second Supplemental Indenture to prejudice the rights of another Holder of a Note or to obtain a preference or priority over another Holder of a Note.
Section 6.07 Rights of Holders of Notes to Receive Payment .
          Notwithstanding any other provision of this Second Supplemental Indenture, the right of any Holder of a Note to receive payment of principal and premium, if any, and interest on the Note, on or after the respective due dates expressed in the Note (including in connection with a Change of Control Offer), 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 6.08 Collection Suit by Trustee .
          If an Event of Default specified in Section 6.01(a)(1) or (2) hereof occurs and is continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an express trust against the Issuer for the whole amount of principal of, premium, if any, and interest remaining unpaid on the Notes and interest on overdue principal and, to the extent lawful, interest and such further amount 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.
Section 6.09 Restoration of Rights and Remedies .
          If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Second Supplemental 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, subject to any determination in such proceedings, the Issuer, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding has been instituted.
Section 6.10 Rights and Remedies Cumulative .
          Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.07 hereof, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, 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 prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.11 Delay or Omission Not Waiver .
          No delay or omission of the Trustee or of any Holder of any Note to exercise any right or remedy accruing upon any Event of Default shall 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

-65-


 

by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.12 Trustee May File Proofs of Claim .
          Subject to the terms of the Intercreditor Agreement, 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 Notes allowed in any judicial proceedings relative to the Issuer (or any other obligor upon the Notes, 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 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 7.07 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 7.07 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 Notes 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 6.13 Priorities .
          Subject to the Security Documents, the Trustee collects any money pursuant to this Article 6, it shall pay out the money in the following order:
     (i) to the Trustee, Paying Agent, Registrar, Transfer Agent, their agents and attorneys for amounts due under Section 7.07 hereof, including payment of all compensation, expenses and liabilities incurred, and all advances made, by the Trustee, Paying Agent, Registrar or Transfer Agent and the costs and expenses of collection;
     (ii) to Holders of Notes for amounts due and unpaid on the Notes for principal, premium, if any, and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal and premium, if any, and interest, respectively; and
     (iii) to the Issuer or to such party as a court of competent jurisdiction shall direct, including a Guarantor, if applicable.
          The Trustee may fix a record date and payment date for any payment to Holders of Notes pursuant to this Section 6.13.

-66-


 

Section 6.14 Undertaking for Costs .
          In any suit for the enforcement of any right or remedy under this Second Supplemental Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.14 does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee .
          (a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Second Supplemental Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
          (b) Except during the continuance of an Event of Default:
     (i) the duties of the Trustee shall be determined solely by the express provisions of this Second Supplemental Indenture and the Trustee need perform only those duties that are specifically set forth in this Second Supplemental Indenture and no others, and no implied covenants or obligations shall be read into this Second Supplemental Indenture against the Trustee; and
     (ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Second Supplemental Indenture. However, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Second Supplemental Indenture.
          (c) The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
     (i) this paragraph does not limit the effect of paragraph (b) of this Section 7.01;
     (ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved in a court of competent jurisdiction that the Trustee was negligent in ascertaining the pertinent facts; and
     (iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05 hereof.

-67-


 

          (d) Whether or not therein expressly so provided, every provision of this Second Supplemental Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.01.
          (e) The Trustee shall be under no obligation to exercise any of its rights or powers under this Second Supplemental Indenture at the request or direction of any of the Holders of the Notes unless the Holders have offered to the Trustee indemnity or security reasonably satisfactory to it against any loss, liability or expense.
          (f) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuer. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
Section 7.02 Rights of Trustee .
          (a) 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.
          (b) Before the Trustee acts or refrains from acting, it may require an Officer’s 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 Officer’s 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.
          (c) 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.
          (d) 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 Second Supplemental Indenture.
          (e) Unless otherwise specifically provided in this Second Supplemental Indenture, any demand, request, direction or notice from the Issuer shall be sufficient if signed by an Officer of the Issuer.
          (f) None of the provisions of this Second Supplemental 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.
          (g) 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 Second Supplemental Indenture.

-68-


 

          (h) 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.
          (i) 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.
Section 7.03 Individual Rights of Trustee .
          The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or any Affiliate of the Issuer with the same rights it would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting interest it must eliminate such conflict within 90 days, apply to the SEC for permission to continue as trustee or resign. Any Agent may do the same with like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
Section 7.04 Trustee’s Disclaimer .
          The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Second Supplemental Indenture or the Notes, it shall not be accountable for the Issuer’s use of the proceeds from the Notes or any money paid to the Issuer or upon the Issuer’s direction under any provision of this Second Supplemental Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Second Supplemental Indenture other than its certificate of authentication.
Section 7.05 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 Notes 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 Note, 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 Notes. 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 7.06 Reports by Trustee to Holders of the Notes .
          Within 60 days after each May 15, beginning with the May 15 following the date of this Second Supplemental Indenture, and for so long as Notes remain outstanding, the Trustee shall mail to the Holders of the Notes a brief report dated as of such reporting date that complies with Trust Indenture Act Section 313(a) (but if no event described in Trust Indenture Act Section 313(a) has occurred within the twelve months preceding the reporting date, no report need be transmitted). The Trustee also shall comply with Trust Indenture Act Section 313(b)(2). The Trustee shall also transmit by mail all reports as required by Trust Indenture Act Section 313(c).

-69-


 

          A copy of each report at the time of its mailing to the Holders of Notes shall be mailed to the Issuer and filed with the SEC and each stock exchange on which the Notes are listed in accordance with Trust Indenture Act Section 313(d). The Issuer shall promptly notify the Trustee when the Notes are listed on any stock exchange.
Section 7.07 Compensation and Indemnity .
          The Issuer and the Guarantors, jointly and severally, shall pay to the Trustee from time to time such compensation for its acceptance of this Second Supplemental Indenture and services hereunder as the parties shall agree in writing from time to time. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer and the Guarantors, jointly and severally, shall reimburse the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.
          The Issuer and the Guarantors, jointly and severally, shall indemnify the Trustee for, and hold the Trustee harmless against, any and all loss, damage, claims, liability or expense (including attorneys’ fees) incurred by it in connection with the acceptance or administration of this trust and the performance of its duties hereunder (including the costs and expenses of enforcing this Second Supplemental Indenture against the Issuer or any Guarantor (including this Section 7.07) or defending itself against any claim whether asserted by any Holder or the Issuer or any Guarantor, or liability in connection with the acceptance, exercise or performance of any of its powers or duties hereunder). The Trustee shall notify the Issuer promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Issuer shall not relieve the Issuer of its obligations hereunder. The Issuer shall defend the claim and the Trustee may have separate counsel and the Issuer shall pay the fees and expenses of such counsel. The Issuer need not reimburse any expense or indemnify against any loss, liability or expense incurred by the Trustee through the Trustee’s own willful misconduct, negligence or bad faith.
          The obligations of the Issuer and the Guarantors under this Section 7.07 shall survive the satisfaction and discharge of this Second Supplemental Indenture or the earlier resignation or removal of the Trustee.
          To secure the payment obligations of the Issuer and the Guarantees in this Section 7.07, the Trustee shall have a Lien prior to the Notes on all money or property held or collected by the Trustee, except that held in trust to pay principal and interest on particular Notes. Such Lien shall survive the satisfaction and discharge of this Second Supplemental Indenture.
          When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.01(a)(5) or (6) hereof occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
          The Trustee shall comply with the provisions of Trust Indenture Act Section 313(b)(2) to the extent applicable. As used in this Section 7.07, the term “Trustee” shall also include each of the Paying Agent, Registrar, and Transfer Agent, as applicable.
Section 7.08 Replacement of Trustee .
          A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08. The Trustee may resign in writing at any time and the Registrar, Paying Agent and Transfer Agent

-70-


 

may resign with 90 days prior written notice and be discharged from the trust hereby created by so notifying the Issuer. The Holders of a majority in principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuer in writing and may remove the Registrar, Paying Agent or Transfer Agent by so notifying such Registrar, Paying Agent or Transfer Agent, as applicable, with 90 days prior written notice. The Issuer may remove the Trustee if:
     (a) the Trustee fails to comply with Section 7.10 hereof;
     (b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
     (c) a custodian or public officer takes charge of the Trustee or its property; or
     (d) the Trustee becomes incapable of acting.
          If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Issuer shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Issuer.
          If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee (at the Issuer’s expense), the Issuer or the Holders of at least 10% in principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.
          If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10 hereof, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
          A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Second Supplemental Indenture. The successor Trustee shall mail a notice of its succession to Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the Issuer’s obligations under Section 7.07 hereof shall continue for the benefit of the retiring Trustee.
          As used in this Section 7.08, the term “Trustee” shall also include each of the Paying Agent, Registrar and Transfer Agent, as applicable.
Section 7.09 Successor Trustee by Merger, etc .
          If the Trustee consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee.
Section 7.10 Eligibility; Disqualification .
          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

-71-


 

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.
          This Second Supplemental 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 7.11 Preferential Collection of Claims Against Issuer .
          The Trustee is subject to Trust Indenture Act Section 311(a), excluding any creditor relationship listed in Trust Indenture Act Section 311(b). A Trustee who has resigned or been removed shall be subject to Trust Indenture Act Section 311(a) to the extent indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance .
          The Issuer may, at its option and at any time, elect to have either Section 8.02 or 8.03 hereof applied to all outstanding Notes upon compliance with the conditions set forth below in this Article 8.
Section 8.02 Legal Defeasance and Discharge .
          Upon the Issuer’s exercise under Section 8.01 hereof of the option applicable to this Section 8.02, the Issuer and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to have been discharged from their obligations with respect to all outstanding Notes and the Guarantees on the date the conditions set forth below are satisfied (“ Legal Defeasance ”). For this purpose, Legal Defeasance means that the Issuer shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 hereof and the other Sections of this Second Supplemental Indenture referred to in (a) and (b) below, and to have satisfied all its other obligations under such Notes and this Second Supplemental Indenture including that of the Guarantors (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder:
     (a) the rights of Holders of Notes to receive payments in respect of the principal of, premium, if any, and interest on the Notes when such payments are due solely out of the trust created pursuant to this Second Supplemental Indenture referred to in Section 8.04 hereof;
     (b) the Issuer’s obligations with respect to such Notes under Article 2 and Section 4.02 hereof;
     (c) the rights, powers, trusts, duties and immunities of the Trustee, and the Issuer’s obligations in connection therewith; and
     (d) this Section 8.02.

-72-


 

          Subject to compliance with this Article 8, the Issuer may exercise its option under this Section 8.02 notwithstanding the prior exercise of its option under Section 8.03 hereof.
Section 8.03 Covenant Defeasance .
          Upon the Issuer’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03, the Issuer shall, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, be released from its obligations under the covenants contained in Sections 4.03, 4.04, 4.06, 4.07, 4.08, 4.09, and 4.11 hereof and Section 5.01(a), Sections 5.01(b) and 5.01(c) hereof with respect to the outstanding Notes on and after the date the conditions set forth in Section 8.04 hereof are satisfied (“ Covenant Defeasance ”), and the Notes shall thereafter be deemed 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 such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, 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 covenant or by reason of any reference in any such 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 6.01 hereof, but, except as specified above, the remainder of this Second Supplemental Indenture and such Notes shall be unaffected thereby. In addition, upon the Issuer’s exercise under Section 8.01 hereof of the option applicable to this Section 8.03 hereof, subject to the satisfaction of the conditions set forth in Section 8.04 hereof, Sections 6.01(a)(3), 6.01(a)(5), 6.01(a)(6) and 6.01(a)(7) hereof shall not constitute Events of Default.
Section 8.04 Conditions to Legal or Covenant Defeasance .
          The following shall be the conditions to the application of either Section 8.02 or 8.03 hereof to the outstanding Notes:
          In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the Notes:
     (1) the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders of the Notes, cash in U.S. dollars, Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, and interest due on the Notes on the stated Maturity Date or on the Redemption Date, as the case may be, of such principal, premium, if any, or interest on such Notes, and the Issuer must specify whether such Notes are being defeased to maturity or to a particular Redemption Date;
     (2) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions,
     (a) the Issuer has received from, or there has been published by, the United States Internal Revenue Service a ruling, or
     (b) since the issuance of the Notes, there has been a change in the applicable U.S. federal income tax law,

-73-


 

in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, subject to customary assumptions and exclusions, the Holders of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes, as applicable, as a result of such Legal 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 Legal Defeasance had not occurred;
     (3) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions, the Holders of the Notes 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;
     (4) no Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith) shall have occurred and be continuing on the date of such deposit;
     (5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under the Senior Credit Facilities or any other material agreement or instrument (other than this Second Supplemental Indenture) to which the Issuer or any Guarantor is a party or by which the Issuer or any Guarantor is bound (other than that resulting from borrowing funds to be applied to make the deposit required to effect such Legal Defeasance or Covenant Defeasance and any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith);
     (6) the Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that, as of the date of such opinion and subject to customary assumptions and exclusions following the deposit, the trust funds will not be subject to the effect of Section 547 of Title 11 of the United States Code;
     (7) the Issuer shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Issuer with the intent of defeating, hindering, delaying or defrauding any creditors of the Issuer or any Guarantor or others; and
     (8) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and exclusions) each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with.
Section 8.05 Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions .
          Subject to Section 8.06 hereof, all money and Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 8.05, the “ Trustee ”) pursuant to Section 8.04 hereof in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Second Supplemental Indenture, to the payment, either directly or through any Paying Agent (including the Issuer or a Guarantor acting as Paying Agent) as the Trustee may determine, to the Holders of such Notes of all

-74-


 

sums due and to become due thereon in respect of principal, premium and interest, but such money need not be segregated from other funds except to the extent required by law.
          The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or Government Securities deposited pursuant to Section 8.04 hereof or the principal and 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 the outstanding Notes.
          Anything in this Article 8 to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer from time to time upon the written request of the Issuer any money or Government Securities held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(2) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 Repayment to Issuer .
          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, premium or interest on any Note and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Issuer on its request or (if then held by the Issuer) shall be discharged from such trust; and the Holder of such Note shall thereafter look only to the Issuer 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 8.07 Reinstatement .
          If the Trustee or Paying Agent is unable to apply any United States dollars or Government Securities in accordance with Section 8.04 or 8.05 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 Issuer’s obligations under this Second Supplemental Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.04 or 8.05 hereof until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.04 or 8.05 hereof, as the case may be; provided that, if the Issuer makes any payment of principal of, premium or interest on any Note following the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes .
          Notwithstanding Section 9.02 hereof, the Issuer, any Guarantor (with respect to a Guarantee or this Second Supplemental Indenture to which it is a party) and the Trustee may amend or supplement this Second Supplemental Indenture, any Security Document, any Guarantee or Notes without the consent of any Holder:

-75-


 

     (1) to evidence the succession of another corporation to the Issuer and the assumption by such successor of the covenants of the Issuer in compliance with the requirements set forth in this Second Supplemental Indenture; or
     (2) to add to the covenants for the benefit of the Holders or to surrender any right or power herein conferred upon the Issuer; or
     (3) to add any additional Events of Default; or
     (4) to change or eliminate any of the provisions of this Second Supplemental Indenture, provided that any such change or elimination shall become effective only when there are no outstanding Notes 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 add a Guarantor to the Notes; or
     (6) to supplement any of the provisions of this Second Supplemental Indenture to such extent necessary to permit or facilitate the defeasance and discharge of the Notes, provided that any such action does not adversely affect the interests of the Holders of the Notes in any material respect; or
     (7) 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 this Second Supplemental Indenture necessary to provide for or facilitate the administration of the trusts by more than one Trustee; or
     (8) to cure any ambiguity to correct or supplement any provision of this Second Supplemental Indenture which may be defective or inconsistent with any other provision; or
     (9) to change any place or places where the principal of and premium, if any, and interest, if any, on the Notes shall be payable, the Notes may be surrendered for registration or transfer, the Notes may be surrendered for exchange, and notices and demands to or upon the Issuer may be served; or
     (10) to comply with requirements of the SEC in order to effect or maintain the qualification of this Second Supplemental Indenture under the Trust Indenture Act; or
     (11) to conform the text of this Second Supplemental Indenture, the Guarantees or the Notes to any provision of the “Description of the secured notes” section of the Prospectus to the extent that such provision in such “Description of the secured notes” section was intended to be a verbatim recitation of a provision of this Second Supplemental Indenture, the Guarantees or the Notes; or
     (12) to make any amendment to the provisions of this Second Supplemental Indenture relating to the transfer and legending of Notes as permitted by this Second Supplemental Indenture, including, without limitation to facilitate the issuance and administration of the Notes; provided , however , that (i) compliance with this Second Supplemental 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 Notes; or

-76-


 

     (13) to mortgage, pledge, hypothecate or grant any other Lien in favor of the Trustee or the First Lien Collateral Agent for the benefit of the Holders of the Notes, as additional security for the payment and performance of all or any portion of the Obligations, in any property or assets, including any which are required to be mortgaged, pledged or hypothecated, or in which a Lien is required to be granted to or for the benefit of the Trustee or the Collateral Agent pursuant to this Second Supplemental Indenture, any of the Security Documents or otherwise; or
     (14) to release Collateral from the Lien of this Second Supplemental Indenture and the Security Documents when permitted or required by the Security Documents or this Second Supplemental Indenture; or
     (15) to add Additional First Lien Secured Parties or additional ABL Secured Parties, to any Security Documents in accordance with such Security Documents.
          Upon the request of the Issuer accompanied by a resolution of its board of directors authorizing the execution of any such amended or supplemental indenture, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the Trustee shall join with the Issuer and the Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Second Supplemental Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this Second Supplemental Indenture or otherwise. Notwithstanding the foregoing, no Opinion of Counsel shall be required in connection with the addition of a Guarantor under this Second Supplemental Indenture upon execution and delivery by such Guarantor and the Trustee of a supplemental indenture to this Second Supplemental Indenture, the form of which is attached as Exhibit B hereto, and delivery of an Officer’s Certificate.
Section 9.02 With Consent of Holders of Notes .
          Except as provided below in this Section 9.02, the Issuer and the Trustee may amend or supplement this Second Supplemental Indenture, any Guarantee or any Security Document and the Notes with the consent of the Holders of at least a majority in principal amount of the Notes (including Additional Notes, if any) then outstanding voting as a single class (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal of, premium or interest on the Notes, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of this Second Supplemental Indenture, the Guarantees, the Security Documents or the Notes may be waived with the consent of the Holders of a majority in principal amount of the then outstanding Notes (including Additional Notes, if any) voting as a single class (including consents obtained in connection with a tender offer or exchange offer for, or purchase of, the Notes). Section 2.08 hereof and Section 2.09 hereof shall determine which Notes are considered to be “outstanding” for the purposes of this Section 9.02.
          Upon the request of the Issuer accompanied by a resolution of its board of directors authorizing the execution of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of the documents described in Section 7.02 hereof, the Trustee shall join with the Issuer in the execution of such amended or supplemental indenture unless such amended or supplemental indenture directly affects the Trustee’s own rights, duties or immunities under this Second Supplemental Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such amended or supplemental indenture.

-77-


 

          It shall not be necessary for the consent of the Holders of Notes under this Section 9.02 to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof. The consent of the First Lien Collateral Agent shall not be necessary for any amendment, supplement or waiver to this Second Supplemental Indenture, except for any amendment, supplement or waiver to Article 10 or 11 or as to this sentence.
          After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Issuer shall mail to the Holders of Notes affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Issuer to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such amended or supplemental indenture or waiver.
          Without the consent of each affected Holder of Notes, an amendment or waiver under this Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):
     (1) change the stated maturity of the principal of, or installment of interest, if any, on, the Notes, or reduce the principal amount thereof or the interest thereon or any premium payable upon redemption thereof;
     (2) change the currency in which the principal of (and premium, if any) or interest on such Notes 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 of Holders whose consent is required for modification or amendment of this Second Supplemental Indenture or for waiver of compliance with certain provisions of this Second Supplemental Indenture or certain defaults;
     (5) modify the provisions that require Holder consent to modify or amend this Second Supplemental Indenture or that permit Holders to waive compliance with certain provisions of this Second Supplemental Indenture or certain defaults;
     (6) make any change to or modify the ranking of the Notes or the subordination of the Liens with respect to the Notes that would adversely affect the Holders; or
     (7) except as expressly permitted by this Second Supplemental Indenture, modify the Guarantees of any Significant Subsidiary in any manner adverse to the Holders of the Notes.
In addition, without the consent of at least 75% in aggregate principal amount of Notes then outstanding, an amendment, supplement or waiver may not:
     (1) modify any Security Document or the provisions of this Second Supplemental Indenture dealing with the Security Documents or application of trust moneys, or otherwise release any Collateral, in any manner materially adverse to the Holders other than in accordance with this Second Supplemental Indenture, the Security Documents and the Intercreditor Agreements; or

-78-


 

     (2) modify any Intercreditor Agreement in any manner materially adverse to the Holders other than in accordance with this Second Supplemental Indenture, the Security Documents and the Intercreditor Agreements.
Section 9.03 Compliance with Trust Indenture Act .
          Every amendment or supplement to this Second Supplemental Indenture or the Notes shall be set forth in an amended or supplemental indenture that complies with the Trust Indenture Act as then in effect.
Section 9.04 Revocation and Effect of Consents .
          Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter binds every Holder; provided that any amendment or waiver that requires the consent of each affected Holder shall not become effective with respect to any non-consenting Holder.
          The Issuer may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment, supplement, or waiver. If a record date is fixed, then, notwithstanding the preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only such Persons, shall be entitled to consent to such amendment, supplement, or waiver or to revoke any consent previously given, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 120 days after such record date unless the consent of the requisite number of Holders has been obtained.
Section 9.05 Notation on or Exchange of Notes .
          The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Issuer in exchange for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver.
          Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee to Sign Amendments, etc .
          The Trustee shall sign any amendment, supplement or waiver authorized pursuant to this Article 9 if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. The Issuer may not sign an amendment, supplement or waiver until the board of directors approves it. In executing any amendment, supplement or waiver, the Trustee shall be entitled to receive and (subject to Section 7.01 hereof) shall be fully protected in relying upon, in addition to the documents required by Section 14.04 hereof, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such amended or supplemental indenture is authorized or permitted by this Second Supplemental Indenture and that such amendment, supplement or waiver is the legal, valid and binding obligation of the Issuer and any Guarantors party thereto, enforceable against them in accordance with its

-79-


 

terms, subject to customary exceptions, and complies with the provisions hereof (including Section 9.03). Notwithstanding the foregoing, no Opinion of Counsel will be required for the Trustee to execute any amendment or supplement adding a new Guarantor under this Second Supplemental Indenture.
Section 9.07 Payment for Consent .
          Neither the Issuer nor any Affiliate of the Issuer shall, directly or indirectly, pay or cause to be paid any consideration, whether by way of interest, fee or otherwise, to any Holder for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Second Supplemental Indenture or the Notes unless such consideration is offered to all Holders and is paid to all Holders that so consent, waive or agree to amend in the time frame set forth in solicitation documents relating to such consent, waiver or agreement.
ARTICLE 10
RANKING OF NOTE LIENS
Section 10.01 Relative Rights .
          The Intercreditor Agreements define the relative rights, as lienholders, of holders of ABL Obligations, Junior Lien Obligations and First Lien Obligations. Nothing in this Second Supplemental Indenture or the Intercreditor Agreements will:
     (a) impair, as between the Issuer and Holders of Notes, the obligation of the Issuer, which is absolute and unconditional, to pay principal of, premium and interest on such Notes in accordance with their terms or to perform any other obligation of the Issuer or any Guarantor under this Second Supplemental Indenture, the Notes, the Guarantees and the Security Documents;
     (b) restrict the right of any Holder to sue for payments that are then due and owing, in a manner not inconsistent with the provisions of the Intercreditor Agreements;
     (c) prevent the Trustee or any Holder from exercising against the Issuer or any Guarantor any of its other available remedies upon a Default or Event of Default (other than its rights as a secured party, which are subject to the Intercreditor Agreements); or
     (d) restrict the right of the Trustee or any Holder:
     (i) to file and prosecute a petition seeking an order for relief in an involuntary bankruptcy case as to the Issuer or any Guarantor or otherwise to commence, or seek relief commencing, any Insolvency or Liquidation Proceeding involuntarily against the Issuer or any Guarantor;
     (ii) to make, support or oppose any request for an order for dismissal, abstention or conversion in any Insolvency or Liquidation Proceeding;
     (iii) to make, support or oppose, in any Insolvency or Liquidation Proceeding, any request for an order extending or terminating any period during which the debtor (or any other Person) has the exclusive right to propose a plan of reorganization or other dispositive restructuring or liquidation plan therein;

-80-


 

     (iv) to seek the creation of, or appointment to, any official committee representing creditors (or certain of the creditors) in any Insolvency or Liquidation Proceeding and, if appointed, to serve and act as a member of such committee without being in any respect restricted or bound by, or liable for, any of the obligations under this Article 10;
     (v) to seek or object to the appointment of any professional person to serve in any capacity in any Insolvency or Liquidation Proceeding or to support or object to any request for compensation made by any professional person or others therein;
     (vi) to make, support or oppose any request for order appointing a trustee or examiner in any Insolvency or Liquidation Proceeding; or
     (vii) otherwise to make, support or oppose any request for relief in any Insolvency or Liquidation Proceeding that it is permitted by law to make, support or oppose:
     (x) as if it were a holder of unsecured claims; or
     (y) as to any matter relating to any plan of reorganization or other restructuring or liquidation plan or as to any matter relating to the administration of the estate or the disposition of the case or proceeding (in each case set forth in this clause (vii) except as set forth in the Intercreditor Agreements).
ARTICLE 11
COLLATERAL
Section 11.01 Security Documents .
          The payment of the principal of and interest and premium, if any, on the Notes when due, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise and whether by the Issuer pursuant to the Notes or by any Subsidiary Guarantor pursuant to its Subsidiary Guarantee, the payment of all other Obligations and the performance of all other obligations of the Issuer and the Subsidiary Guarantors under this Second Supplemental Indenture, the Notes, the Subsidiary Guarantees and the Security Documents are secured as provided in the Security Documents and will be secured by Security Documents hereafter delivered as required or permitted by this Second Supplemental Indenture. The Issuer shall, and shall cause each Subsidiary Guarantor to, and each Subsidiary Guarantor shall, do all filings (including filings of continuation statements and amendments to Uniform Commercial Code financing statements that may be necessary to continue the effectiveness of such Uniform Commercial Code financing statements) and all other actions as are necessary or required by the Security Documents to maintain (at the sole cost and expense of the Issuer and the Subsidiary Guarantors) the security interest created by the Security Documents in the Collateral as a perfected security interest, subject only to Liens permitted by this Second Supplemental Indenture.
Section 11.02 First Lien Collateral Agent .
          (a) The First Lien Collateral Agent shall have all the rights and protections provided in the Security Documents.
          (b) Subject to Section 7.01 hereof, neither the Trustee nor Paying Agent, Registrar and Transfer Agent nor any of their respective officers, directors, employees, attorneys or agents will be

-81-


 

responsible or liable for the existence, genuineness, value or protection of any Collateral, for the legality, enforceability, effectiveness or sufficiency of the Security Documents, for the creation, perfection, priority, sufficiency or protection of any First Priority Lien, or any defect or deficiency as to any such matters.
          (c) Subject to the Security Documents, the Trustee shall direct the First Lien Collateral Agent from time to time. Subject to the Security Documents, except as directed by the Trustee as required or permitted by this Second Supplemental Indenture and any other representatives, the Holders acknowledge that the First Lien Collateral Agent will not be obligated:
     (i) to act upon directions purported to be delivered to it by any other Person;
     (ii) to foreclose upon or otherwise enforce any First Priority Lien; or
     (iii) to take any other action whatsoever with regard to any or all of the First Priority Liens, Security Documents or Collateral.
          (d) If the Issuer (i) incurs ABL Obligations at any time when no Intercreditor Agreement is in effect or at any time when Indebtedness constituting ABL Obligations entitled to the benefit of the Intercreditor Agreements is concurrently retired, and (ii) directs the Trustee to deliver to the First Lien Collateral Agent an Officer’s Certificate so stating and requesting the First Lien Collateral Agent to enter into an intercreditor agreement (on substantially the same terms as the Intercreditor Agreements in effect on the Issue Date) in favor of a designated agent or representative for the holders of the ABL Obligations so incurred, the Holders acknowledge that the First Lien Collateral Agent is hereby authorized and directed to enter into such intercreditor agreement, bind the Holders on the terms set forth therein and perform and observe its obligations thereunder.
Section 11.03 Authorization of Actions to Be Taken .
          (a) Each Holder of Notes, by its acceptance thereof, consents and agrees to the terms of each Security Document, as originally in effect and as amended, supplemented or replaced from time to time in accordance with its terms or the terms of this Second Supplemental Indenture, authorizes and directs the Trustee to enter into the Security Documents to which it is a party, authorizes and directs the Trustee to execute and deliver the Additional First Lien Secured Party Consent, authorizes and empowers the Trustee, through such Additional First Lien Secured Party Consent, to appoint the First Lien Collateral Agent on the terms thereof and authorizes and empowers the Trustee and (through the Additional First Lien Secured Party Consent) the First Lien Collateral Agent to bind the Holders of Notes and other holders of First Lien Obligations as set forth in the Security Documents to which they are a party and the Intercreditor Agreements, including, without limitation, the First Lien Intercreditor Agreement, and to perform its obligations and exercise its rights and powers thereunder.
          (b) The Trustee is authorized and empowered to receive for the benefit of the Holders of Notes any funds collected or distributed to the Trustee under the Security Documents to which the Trustee is a party and, subject to the terms of the Security Documents, to make further distributions of such funds to the Holders of Notes according to the provisions of this Second Supplemental Indenture.
          (c) Subject to the provisions of Section 7.01, Section 7.02, and the Security Documents, the Trustee may, in its sole discretion and without the consent of the Holders, direct, on behalf of the Holders, the First Lien Collateral Agent to take all actions it deems necessary or appropriate in order to:
          (i) foreclose upon or otherwise enforce any or all of the First Priority Liens;

-82-


 

     (ii) enforce any of the terms of the Security Documents to which the First Lien Collateral Agent or Trustee is a party; or
     (iii) collect and receive payment of any and all Obligations.
          Subject to the Intercreditor Agreements and at the Issuer’s sole cost and expense, the Trustee is authorized and empowered to institute and maintain, or direct the First Lien Collateral Agent to institute and maintain, such suits and proceedings as it may deem reasonably expedient to protect or enforce the First Priority Liens or the Security Documents to which the First Lien Collateral Agent or Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful or in violation of the Security Documents or this Second Supplemental Indenture, and such suits and proceedings as the Trustee may deem reasonably expedient, at the Issuer’s sole cost and expense, to preserve or protect its interests and the interests of the Holders of Notes in the Collateral, including power to institute and maintain suits or proceedings to restrain the enforcement of or compliance with any legislative or other governmental enactment, rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or compliance with, such enactment, rule or order would impair the security interest hereunder or be prejudicial to the interests of Holders or the Trustee.
Section 11.04 Release of Collateral .
          (a) Collateral may be released from the Lien and security interest created by the Security Documents at any time or from time to time in accordance with the provisions of the Security Documents or the Intercreditor Agreements. In addition, upon the request of the Issuer pursuant to an Officer’s Certificate and Opinion of Counsel certifying that all conditions precedent hereunder have been met, the Issuer and the Subsidiary Guarantors will be entitled to the release of assets included in the Collateral from the Liens securing the Notes, and the First Lien Collateral Agent and the Trustee (if the Trustee is not then the First Lien Collateral Agent) shall release the same from such Liens at the Issuer’s sole cost and expense, under any one or more of the following circumstances:
     (1) to enable the Issuer to consummate the sale, transfer or other disposition of such property or assets to the extent not prohibited under Section 4.08 hereof;
     (2) the release of Excess Proceeds or Collateral Excess Proceeds that remain unexpended after the conclusion of an Asset Sale Offer or a Collateral Asset Sale Offer conducted in accordance with this Second Supplemental Indenture;
     (3) in the case of a Subsidiary Guarantor that is released from its Guarantee with respect to the Notes pursuant to the terms of this Second Supplemental Indenture, the release of the property and assets of such Subsidiary Guarantor;
     (4) with the consent of the holders of at least 75% of the aggregate principal amount of the Notes then outstanding and affected thereby and a majority of all Junior Lien Obligations (including the Existing Second Priority Notes) then outstanding and affected thereby (including, without limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase of, Junior Lien Obligations);
     (5) to the extent that such Collateral is released or no longer required to be pledged pursuant to the terms of the Credit Facilities; or
     (6) as described in Article 9 hereof.

-83-


 

          (b) For the avoidance of doubt, (1) the Lien on the Collateral created by the Security Documents securing the Notes Obligations shall automatically be released and discharged under the circumstances set forth in, and subject to, Section 2.04 of the First Lien Intercreditor Agreement and (2) the Lien on the Shared Receivables Collateral created by the Security Documents securing the Notes Obligations shall automatically be released and discharged under the circumstances set forth in, and subject to, Section 2.4(b) of the Additional Receivables Intercreditor Agreement. Any certificate or opinion required by Section 314(d) of the Trust Indenture Act may be made by an Officer of the Company, except in cases where Section 314(d) requires that such certificate or opinion be made by an independent engineer, appraiser or other expert.
          (c) To the extent necessary and for so long as required for such Subsidiary not to be subject to any requirement pursuant to Rule 3-16 of Regulation S-X under the Securities Act to file separate financial statements with the SEC (or any other governmental agency), the Capital Stock of any Subsidiary of the Issuer (excluding Healthtrust, Inc. — The Hospital Company, a Delaware corporation and its successors and assigns) shall not be included in the Collateral with respect to the Notes and shall not be subject to the Liens securing the Notes and the Notes Obligations.
          (d) The Liens on the Collateral securing the Notes and the Subsidiary Guarantees also will be released automatically upon (i) payment in full of the principal of, together with accrued and unpaid interest on, and premium, if any, on, the Notes and all other Obligations under this Second Supplemental Indenture, the Subsidiary Guarantees and the Security Documents that are due and payable at or prior to the time such principal, together with accrued and unpaid interest, are paid or (ii) a legal defeasance or covenant defeasance under Article 8 hereof or a discharge under Article 13 hereof.
          (e) Notwithstanding anything to the contrary herein, the Issuer and its Subsidiaries shall not be required to comply with all or any portion of Section 314(d) of the Trust Indenture Act if they determine, in good faith based on advice of counsel, that under the terms of that section and/or any interpretation or guidance as to the meaning thereof of the SEC and its staff, including “no action” letters or exemptive orders, all or any portion of Section 314(d) of the Trust Indenture Act is inapplicable to the release of Collateral.
Section 11.05 Filing, Recording and Opinions .
          (a) The Issuer will comply with the provisions of Trust Indenture Act Sections 314(b) and 314(d), in each case following qualification of this Second Supplemental Indenture pursuant to the Trust Indenture Act, except to the extent not required as set forth in any SEC regulation or interpretation (including any no-action letter issued by the Staff of the SEC, whether issued to the Issuer or any other Person). Following such qualification, to the extent the Issuer is required to furnish to the Trustee an Opinion of Counsel pursuant to Trust Indenture Act Section 314(b)(2), the Issuer will furnish such opinion not more than 60 but not less than 30 days prior to each September 30.
          (b) Any release of Collateral permitted by Section 11.04 hereof will be deemed not to impair the Liens under this Second Supplemental Indenture and the Security Documents in contravention thereof and any person that is required to deliver an Officer’s Certificate or Opinion of Counsel pursuant to Section 314(d) of the Trust Indenture Act shall be entitled to rely upon the foregoing as a basis for delivery of such certificate or opinion. The Trustee shall, to the extent permitted by Section 7.01 and 7.02 hereof, accept as conclusive evidence of compliance with the foregoing provisions the appropriate statements contained in such Officer’s Certificate or Opinion of Counsel.
          (c) If any Collateral is released in accordance with this Second Supplemental Indenture or any Security Document, the Trustee will determine whether it has received all documentation

-84-


 

required by Trust Indenture Act Section 314(d) in connection with such release and, based on such determination and the Opinion of Counsel delivered pursuant to Section 11.04(a), will, upon request, deliver a certificate to the First Lien Collateral Agent and the Issuer setting forth such determination.
          (d) [Reserved].
Section 11.06 Powers Exercisable by Receiver or Trustee .
          In case the Collateral shall be in the possession of a receiver or trustee, lawfully appointed, the powers conferred in this Article 11 upon the Issuer or a Subsidiary Guarantor with respect to the release, sale or other disposition of such property may be exercised by such receiver or trustee, and an instrument signed by such receiver or trustee shall be deemed the equivalent of any similar instrument of the Issuer or a Subsidiary Guarantor or of any officer or officers thereof required by the provisions of this Article 11; and if the Trustee or the First Lien Collateral Agent shall be in the possession of the Collateral under any provision of this Second Supplemental Indenture, then such powers may be exercised by the Trustee or the First Lien Collateral Agent, as the case may be.
Section 11.07 Release upon Termination of the Issuer’s Obligations .
          In the event (i) that the Issuer delivers to the Trustee, in form and substance acceptable to it, an Officer’s Certificate and Opinion of Counsel certifying that all the Obligations under this Second Supplemental Indenture, the Notes and the Security Documents have been satisfied and discharged by the payment in full of the Issuer’s obligations under the Notes, this Second Supplemental Indenture and the Security Documents, and all such Obligations have been so satisfied, or (ii) a discharge, legal defeasance or covenant defeasance of this Second Supplemental Indenture occurs under Article 8 or 13, the Trustee shall deliver to the Issuer and the First Lien Collateral Agent a notice stating that the Trustee, on behalf of the Holders, disclaims and gives up any and all rights it has in or to the Collateral, and any rights it has under the Security Documents, and upon receipt by the First Lien Collateral Agent of such notice, the First Lien Collateral Agent shall be deemed not to hold a Lien in the Collateral on behalf of the Trustee, and the Trustee shall (and direct the First Lien Collateral Agent to) do or cause to be done, at the Issuer’s sole cost and expense, all acts reasonably necessary to release such Lien as soon as is reasonably practicable.
Section 11.08 Designations .
          Except as provided in the next sentence, for purposes of the provisions hereof and the Intercreditor Agreements requiring the Issuer to designate Indebtedness for the purposes of the terms ABL Obligations, First Lien Obligations and other Junior Lien Obligations or any other such designations hereunder or under the Intercreditor Agreements, any such designation shall be sufficient if the relevant designation provides in writing that such ABL Obligations, First Lien Obligations or other Junior Lien Obligations are permitted under this Second Supplemental Indenture and is signed on behalf of the Issuer by an Officer and delivered to the Trustee, the Junior Lien Collateral Agent, the First Lien Collateral Agent and the ABL Collateral Agent. For all purposes hereof and the Intercreditor Agreements, the Issuer hereby designates the Obligations pursuant to the ABL Facility as in effect on the Issue Date as ABL Obligations.

-85-


 

ARTICLE 12
GUARANTEES
Section 12.01 Subsidiary Guarantee .
          Subject to this Article 12, each of the Subsidiary Guarantors hereby, jointly and severally, fully and unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Second Supplemental Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that: (a) the principal of, interest, premium on the Notes shall be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Issuer to the Holders or the Trustee hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and severally obligated to pay the same immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
          The Subsidiary Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Second Supplemental Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Subsidiary Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever and covenants that this Subsidiary Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Second Supplemental Indenture.
          Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under this Section 12.01.
          If any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Subsidiary Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuer or the Subsidiary Guarantors, any amount paid either to the Trustee or such Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
          Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors for the purpose of this Subsidiary

-86-


 

Guarantee. The Subsidiary Guarantors shall have the right to seek contribution from any non-paying Subsidiary Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Subsidiary Guarantees.
          Each Subsidiary Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Subsidiary Guarantees, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
          In case any provision of any Subsidiary Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
          The Subsidiary Guarantee issued by any Subsidiary Guarantor shall be a senior obligation of such Subsidiary Guarantor and will be secured by a first-priority lien on the Non-Receivables Collateral and by a second-priority lien on the Shared Receivables Collateral. The Subsidiary Guarantees shall rank equally in right of payment with all existing and future Senior Indebtedness of the Subsidiary Guarantor but, to the extent of the value of the Collateral, will be effectively senior to all of the Subsidiary Guarantor’s unsecured Senior Indebtedness and Junior Lien Obligations and, to the extent of the Shared Receivables Collateral, will be effectively subordinated to the Subsidiary Guarantor’s Obligations under the ABL Facility and any future ABL Obligations. The Subsidiary Guarantees will be senior in right of payment to all existing and future Subordinated Indebtedness of each Subsidiary Guarantor. The Notes will be structurally subordinated to Indebtedness and other liabilities of Subsidiaries of the Issuer that do not Guarantee the Notes.
          Each payment to be made by a Subsidiary Guarantor in respect of its Subsidiary Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
          As used in this Section 12.01, the term “Trustee” shall also include each of the Paying Agent, Registrar and Transfer Agent, as applicable.
Section 12.02 Limitation on Subsidiary Guarantor Liability .
          Each Subsidiary Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Guarantee of such Subsidiary Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to any Subsidiary Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Subsidiary Guarantors hereby irrevocably agree that the obligations of each Subsidiary Guarantor shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Subsidiary Guarantor that are relevant under such laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Subsidiary Guarantor in respect of the obligations of such other Subsidiary Guarantor under this Article 12, result in the obligations of such Subsidiary Guarantor under its Subsidiary Guarantee not

-87-


 

constituting a fraudulent conveyance or fraudulent transfer under applicable law. Each Subsidiary Guarantor that makes a payment under its Guarantee shall be entitled upon payment in full of all guaranteed obligations under this Second Supplemental Indenture to a contribution from each other Subsidiary Guarantor in an amount equal to such other Subsidiary Guarantor’s pro rata portion of such payment based on the respective net assets of all the Subsidiary Guarantors at the time of such payment determined in accordance with GAAP.
Section 12.03 Execution and Delivery .
          To evidence its Subsidiary Guarantee set forth in Section 12.01 hereof, each Subsidiary Guarantor hereby agrees that this Second Supplemental Indenture shall be executed on behalf of such Subsidiary Guarantor by its President, one of its Vice Presidents or one of its Assistant Vice Presidents.
          Each Subsidiary Guarantor hereby agrees that its Subsidiary Guarantee set forth in Section 12.01 hereof shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Subsidiary Guarantee on the Notes.
          If an Officer whose signature is on this Second Supplemental Indenture no longer holds that office at the time the Trustee authenticates the Note, the Subsidiary Guarantee shall be valid nevertheless.
          The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Subsidiary Guarantee set forth in this Second Supplemental Indenture on behalf of the Subsidiary Guarantors.
Section 12.04 Subrogation .
          Each Subsidiary Guarantor shall be subrogated to all rights of Holders of Notes against the Issuer in respect of any amounts paid by any Subsidiary Guarantor pursuant to the provisions of Section 12.01 hereof; provided that, if an Event of Default has occurred and is continuing, no Subsidiary Guarantor shall be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Issuer under this Second Supplemental Indenture or the Notes shall have been paid in full.
Section 12.05 Benefits Acknowledged .
          Each Subsidiary Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Second Supplemental Indenture and that the guarantee and waivers made by it pursuant to its Subsidiary Guarantee are knowingly made in contemplation of such benefits.
Section 12.06 Release of Guarantees .
          A Guarantee by a Subsidiary Guarantor shall be automatically and unconditionally released and discharged, and no further action by such Subsidiary Guarantor, the Issuer or the Trustee is required for the release of such Subsidiary Guarantor’s Guarantee, upon:
     (1) (A) any sale, exchange or transfer (by merger or otherwise) of the Capital Stock of such Subsidiary Guarantor (including any sale, exchange or transfer), after which the applicable Subsidiary Guarantor is no longer a Restricted Subsidiary or all or substantially all the assets

-88-


 

of such Subsidiary Guarantor, which sale, exchange or transfer is made in compliance with the applicable provisions of this Second Supplemental Indenture;
     (B) the release or discharge of the guarantee by such Subsidiary Guarantor of the Senior Credit Facilities or such other guarantee that resulted in the creation of such Guarantee, except a discharge or release by or as a result of payment under such guarantee;
     (C) the designation of any Restricted Subsidiary that is a Subsidiary Guarantor as an Unrestricted Subsidiary in compliance with the definition of “Unrestricted Subsidiary” hereunder;
     (D) the occurrence of an Investment Grade Rating Event; or
     (E) the exercise by the Issuer of its Legal Defeasance option or Covenant Defeasance option in accordance with Article 8 hereof or the discharge of the Issuer’s obligations under this Second Supplemental Indenture, in accordance with the terms of this Second Supplemental Indenture; and
     (2) such Subsidiary Guarantor delivering to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in this Second Supplemental Indenture relating to such transaction have been complied with.
Section 12.07 Parent Guarantee .
          (a) The Parent Guarantor hereby unconditionally guarantees the punctual payment when due, whether at stated maturity, by acceleration or otherwise, of all of the monetary obligations of the Issuer under this Second Supplemental Indenture and the Notes, whether for principal or interest on the Notes, expenses, indemnification or otherwise (all such obligations of the Parent Guarantor being herein referred to as the “ Parent Guaranteed Obligations ”).
          (b) It is the intention of the Parent Guarantor that the Parent Guarantee not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to the Parent Guarantee. To effectuate the foregoing intention, the amount guaranteed by the Parent Guarantor under the Parent Guarantee shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of the Parent Guarantor that are relevant under such laws, result in the obligations of the Parent Guarantor under the Parent Guarantee not constituting a fraudulent transfer or conveyance.
          (c) The Parent Guarantor guarantees that the Parent Guaranteed Obligations will be paid strictly in accordance with the terms of this Second Supplemental Indenture, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holders of the Notes with respect thereto. The liability of the Parent Guarantor under the Parent Guarantee shall be absolute and unconditional irrespective of:
     (i) any lack of validity, enforceability or genuineness of any provision of this Second Supplemental Indenture, the Notes or any other agreement or instrument relating thereto;
     (ii) any change in the time, manner or place of payment of, or in any other term of, all or any of the Parent Guaranteed Obligations, or any other amendment or waiver of or any consent to departure from this Second Supplemental Indenture;

-89-


 

     (iii) any exchange, release or non-perfection of any collateral, or any release or amendment or waiver of or consent to departure from any other guarantee, for all or any of the Parent Guaranteed Obligations; or
     (iv) any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Issuer or a guarantor.
          (d) The Parent Guarantor covenants and agrees that its obligation to make payments of the Parent Guaranteed Obligations hereunder constitutes an unsecured obligation of the Parent Guarantor ranking pari passu with all existing and future senior unsecured indebtedness of the Parent Guarantor that is not subordinated in right of payment to the Parent Guarantee.
          (e) The Parent Guarantor hereby waives promptness, diligence, notice of acceptance and any other notice with respect to the Parent Guarantee and any requirement that the Trustee, or the Holders of any Notes protect, secure, perfect or insure any security interest or lien or any property subject thereto or exhaust any right or take any action against the Issuer or any other Person or any collateral.
          (f) The Parent Guarantor hereby irrevocably waives any claims or other rights that it may now or hereafter acquire against the Issuer that arise from the existence, payment, performance or enforcement of the Parent Guarantor’s obligations under the Parent Guarantee or this Second Supplemental Indenture, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Trustee, or the Holders of any Notes against the Issuer or any collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Issuer, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right. If any amount shall be paid to the Parent Guarantor in violation of the preceding sentence at any time prior to the cash payment in full of the Parent Guaranteed Obligations and all other amounts payable under the Parent Guarantee, such amount shall be held in trust for the benefit of the Trustee and the Holders of any Notes and shall forthwith be paid to the Trustee, to be credited and applied to the Parent Guaranteed Obligations and all other amounts payable under the Parent Guarantee, whether matured or unmatured, in accordance with the terms of this Second Supplemental Indenture and the Parent Guarantee, or be held as collateral for any Parent Guarantor Obligations or other amounts payable under the Parent Guarantee thereafter arising. The Parent Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Second Supplemental Indenture and the Parent Guarantee and that the waiver set forth in this Section 10.01 is knowingly made in contemplation of such benefits.
          (g) No failure on the part of the Trustee or any Holder of the Notes to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
          (h) The Parent Guarantee is a continuing guarantee and shall (a) subject to paragraph 12.07(i), remain in full force and effect until payment in full of the principal amount of all outstanding Notes (whether by payment at maturity, purchase, redemption, defeasance, retirement or other acquisition) and all other applicable Parent Guaranteed Obligations of the Parent Guarantor then due and owing, (b) be binding upon the Parent Guarantor, its successors and assigns, and (c) inure to the benefit of and be enforceable by the Trustee, any Holder of Notes, and by their respective successors, transferees, and assigns.

-90-


 

          (i) The Parent Guarantor will automatically and unconditionally be released from all Parent Guarantee Obligations, and the Parent Guarantee shall thereupon terminate and be discharged and of no further force of effect, (i) upon any merger or consolidation of such Parent Guarantor with the Issuer, (ii) upon exercise by the Issuer of its Legal Defeasance option or Covenant Defeasance option in accordance with Article 8 hereof or the discharge of the Issuer’s obligations under this Second Supplemental Indenture, in accordance with the terms of this Second Supplemental Indenture, or (iii) upon payment in full of the aggregate principal amount of all Notes then outstanding and all other applicable Parent Guaranteed Obligations of the Parent Guarantor then due and owing.
     Upon any such occurrence specified in this paragraph 12.07(i), the Trustee shall execute upon request by the Issuer, any documents reasonably required in order to evidence such release, discharge and termination in respect of the Parent Guarantee. Neither the Issuer nor the Parent Guarantor shall be required to make a notation on the Notes to reflect the Parent Guarantee or any such release, termination or discharge.
          (j) The Parent Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or Parent Guarantee, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
          (k) The Parent Guarantor may amend the Parent Guarantee at any time for any purpose without the consent of the Trustee or any Holder of the Notes; provided , however , that if such amendment adversely affects (a) the rights of the Trustee or (b) any Holder of the Notes, the prior written consent of the Trustee (in the case of (b), acting at the written direction of the Holders of more than 50% in aggregate principal amount of Notes) shall be required.
ARTICLE 13
SATISFACTION AND DISCHARGE
Section 13.01 Satisfaction and Discharge .
          This Second Supplemental Indenture shall be discharged and shall cease to be of further effect as to all Notes, when either:
     (1) all Notes theretofore authenticated and delivered, except lost, stolen or destroyed Notes which have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust, have been delivered to the Trustee for cancellation; or
     (2) (A) all Notes not theretofore delivered to the Trustee for cancellation have become due and payable by reason of the making of a notice of redemption or otherwise, shall become due and payable within one year or may 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 or any Guarantor has irrevocably deposited

-91-


 

or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders of the Notes, cash in U.S. dollars, Government Securities, or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest to pay and discharge the entire indebtedness on the Notes not theretofore delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or redemption;
     (B) no Default (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith) with respect to this Second Supplemental Indenture or the Notes shall have occurred and be continuing on the date of such deposit or shall occur as a result of such deposit and such deposit will not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Second Supplemental Indenture) to which the Issuer or any Guarantor is a party or by which the Issuer or any Guarantor is bound (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness and in each case, the granting of Liens in connection therewith);
     (C) the Issuer has paid or caused to be paid all sums payable by it under this Second Supplemental Indenture; and
     (D) the Issuer has delivered irrevocable instructions to the Trustee to apply the deposited money toward the payment of the Notes at maturity or the Redemption Date, as the case may be.
          In addition, the Issuer must deliver an Officer’s Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied.
          Notwithstanding the satisfaction and discharge of this Second Supplemental Indenture, if money shall have been deposited with the Trustee pursuant to subclause (A) of clause (2) of this Section 13.01, the provisions of Section 13.02 and Section 8.06 hereof shall survive.
Section 13.02 Application of Trust Money .
          Subject to the provisions of Section 8.06 hereof, all money deposited with the Trustee pursuant to Section 13.01 hereof shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Second Supplemental Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money has been deposited with the Trustee; but such money need not be segregated from other funds except to the extent required by law.
          If the Trustee or Paying Agent is unable to apply any money or Government Securities in accordance with Section 13.01 hereof by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s or any Guarantor’s obligations under this Second Supplemental Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to Section 13.01 hereof; provided that if the Issuer has made any payment of principal of, premium or interest on any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or Government Securities held by the Trustee or Paying Agent.

-92-


 

ARTICLE 14
MISCELLANEOUS
Section 14.01 Trust Indenture Act Controls .
          If any provision of this Second Supplemental Indenture limits, qualifies or conflicts with the duties imposed by Trust Indenture Act Section 318(c), the imposed duties shall control.
Section 14.02 Notices .
          Any notice or communication by the Issuer, any Guarantor, the First Lien Collateral Agent or the Trustee to the others is duly given 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 others’ address:
If to the Issuer and/ or any Guarantor:
HCA Inc.
One Park Plaza
Nashville, Tennessee 37203
Fax No.: (615) 344-1531; Attention: General Counsel
Fax No.: (866) 741-5906; Attention: Treasurer
If to the Trustee:
Law Debenture Trust Company of New York
400 Madison Avenue
New York, New York 10017
Fax No.: (212) 750-1361
Attention: Corporate Trust Administration
If to the Registrar, Paying Agent or Transfer Agent:
Deutsche Bank Trust Company Americas
c/o Deutsche Bank National Trust Company
Trust & Securities Services
100 Plaza One, Mailstop JCY03-0699
Jersey City, New Jersey 07311
Fax No.: (732) 578-4635
Attn: Corporates Team Deal Manager — HCA Inc.
          The Issuer, any Guarantor or the First Lien Collateral Agent or the Trustee, by notice to the others, may designate additional or different addresses for subsequent notices or communications.
          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.

-93-


 

          Any notice or communication to a Holder shall be mailed by first-class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to its address shown on the register kept by the Registrar. 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.
          If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
          If the Issuer mails a notice or communication to Holders, it shall mail a copy to the Trustee and each Agent at the same time.
Section 14.03 Communication by Holders of Notes with Other Holders of Notes .
          Holders may communicate pursuant to Trust Indenture Act Section 312(b) with other Holders with respect to their rights under this Second Supplemental Indenture or the Notes. The Issuer, the Trustee, the Registrar and anyone else shall have the protection of Trust Indenture Act Section 312(c).
Section 14.04 Certificate and Opinion as to Conditions Precedent .
          Upon any request or application by the Issuer or any of the Guarantors to the Trustee to take any action under this Second Supplemental Indenture, the Issuer or such Guarantor, as the case may be, shall furnish to the Trustee:
          (a) An Officer’s Certificate in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 14.05 hereof) stating that, in the opinion of the signers, all conditions precedent and covenants, if any, provided for in this Second Supplemental Indenture relating to the proposed action have been satisfied; and
          (b) An Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in Section 14.05 hereof) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been satisfied.
Section 14.05 Statements Required in Certificate or Opinion .
          Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Second Supplemental Indenture (other than a certificate provided pursuant to Section 4.03 hereof or Trust Indenture Act Section 314(a)(4)) shall comply with the provisions of Trust Indenture Act Section 314(e) and shall include:
     (a) a statement that the Person making such certificate or opinion has read such covenant or condition;
     (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
     (c) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with (and, in the case of an Opinion of Counsel, may be limited to reliance on an Officer’s Certificate as to matters of fact); and

-94-


 

     (d) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
Section 14.06 Rules by Trustee and Agents .
          The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
Section 14.07 No Personal Liability of Directors, Officers, Employees and Stockholders .
          No director, officer, employee, incorporator or stockholder of the Issuer or any Guarantor or any of their parent companies (other than the Issuer and the Guarantors) shall have any liability for any obligations of the Issuer or the Guarantors under the Notes, the Guarantees or this Second Supplemental Indenture or for any claim based on, in respect of, or by reason of such obligations or their creation. Each Holder by accepting the Notes waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
Section 14.08 Governing Law .
          THIS SECOND SUPPLEMENTAL INDENTURE, THE NOTES AND ANY GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 14.09 Waiver of Jury Trial .
          EACH OF THE ISSUER, THE GUARANTORS AND THE TRUSTEE 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 SECOND SUPPLEMENTAL INDENTURE, THE GUARANTEE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 14.10 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 Second Supplemental 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 14.11 No Adverse Interpretation of Other Agreements .
          This Second Supplemental Indenture may not be used to interpret any other indenture, loan or debt agreement of the Issuer or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Second Supplemental Indenture.
Section 14.12 Successors .
          All agreements of the Issuer in this Second Supplemental Indenture and the Notes shall bind its successors. All agreements of the Trustee and the Paying Agent, Registrar and Transfer Agent in this

-95-


 

Second Supplemental Indenture shall bind their respective successors. All agreements of each Guarantor in this Second Supplemental Indenture shall bind its successors, except as otherwise provided in Section 12.06 or 12.07(i) hereof. The provisions of Article 11 hereof referring to the First Lien Collateral Agent shall inure to the benefit of such First Lien Collateral Agent.
Section 14.13 Severability .
          In case any provision in this Second Supplemental Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 14.14 Counterpart Originals .
          The parties may sign any number of copies of this Second Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
Section 14.15 Table of Contents, Headings, etc .
          The Table of Contents, Cross-Reference Table and headings of the Articles and Sections of this Second Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Second Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
Section 14.16 Qualification of Second Supplemental Indenture .
          The Issuer and the Guarantors shall qualify this Second Supplemental Indenture under the Trust Indenture Act in accordance with and to the extent required by the terms and conditions of the Registration Rights Agreement and shall pay all reasonable costs and expenses (including attorneys’ fees and expenses for the Issuer, the Guarantors and the Trustee) incurred in connection therewith, including, but not limited to, costs and expenses of qualification of this Second Supplemental Indenture and the Notes and printing this Second Supplemental Indenture and the Notes. The Trustee shall be entitled to receive from the Issuer and the Guarantors any such Officer’s Certificates, Opinions of Counsel or other documentation as it may reasonably request in connection with any such qualification of this Second Supplemental Indenture under the Trust Indenture Act.
Section 14.17 USA Patriot Act .
          The parties hereto acknowledge that in accordance with Section 326 of the USA Patriot Act, the Trustee and Agents, like all financial institutions and in order to help fight the funding of terrorism and money laundering, are required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account. The parties to this agreement agree that they will provide the Trustee and the Agents with such information as they may request in order to satisfy the requirements of the USA Patriot Act.
[Signatures on following pages]

-96-


 

         
  HCA INC.
 
 
  By:   /s/ David G. Anderson  
    Name:   David G. Anderson   
    Title:   Senior Vice President — Finance and Treasurer   
 
  HCA HOLDINGS, INC., as Parent Guarantor
 
 
  By:   /s/ David G. Anderson  
    Name:   David G. Anderson   
    Title:   Senior Vice President — Finance and Treasurer   
 
Signature Page to Second Supplemental Indenture

 


 

         
  Each of the GUARANTORS
listed on Schedule I hereto
 
 
  By:   /s/ John M. Franck   
    Name:   John M. Franck  
    Title:   Authorized Signatory   
 
Signature Page to Second Supplemental Indenture

 


 

         
  LAW DEBENTURE TRUST COMPANY OF NEW
YORK, as Trustee
 
 
  By:   /s/ James D. Heaney   
    Name:   James D. Heaney  
    Title:   Managing Director  
 
Signature Page to the Second Supplemental Indenture

 


 

DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Paying Agent, Registrar and Transfer Agent
By: Deutsche Bank National Trust Company
         
     
  By:   /s/ Wanda Camacho    
    Name:   Wanda Camacho   
    Title:   Vice President   
 
         
     
  By:   /s/ Jeffrey Schoenfeld    
    Name:   Jeffrey Schoenfeld  
    Title:   Associate   
 
Signature Page to the Second Supplemental Indenture

 


 

SCHEDULE I
Subsidiary Guarantors
Columbia ASC Management, L.P.
American Medicorp Development Co.
Bay Hospital, Inc.
Brigham City Community Hospital, Inc.
Brookwood Medical Center of Gulfport, Inc.
Capital Division, Inc.
Centerpoint Medical Center of Independence, LLC
Central Florida Regional Hospital, Inc.
Central Shared Services, LLC
Central Tennessee Hospital Corporation
CHCA Bayshore, L.P.
CHCA Conroe, L.P.
CHCA Mainland, L.P.
CHCA West Houston, L.P.
CHCA Woman’s Hospital, L.P.
Chippenham & Johnston-Willis Hospitals, Inc.
CMS GP, LLC
Colorado Health Systems, Inc.
Columbia Jacksonville Healthcare System, Inc.
Columbia LaGrange Hospital, Inc.
Columbia Medical Center of Arlington Subsidiary, L.P.
Columbia Medical Center of Denton Subsidiary, L.P.
Columbia Medical Center of Las Colinas, Inc.
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 Ogden Medical Center, Inc.
Columbia Parkersburg Healthcare System, LLC
Columbia Plaza Medical Center of Fort Worth Subsidiary, L.P.
Columbia Polk General Hospital, Inc.
Columbia Rio Grande Healthcare, L.P.
Columbia Riverside, Inc.
Columbia Valley Healthcare System, L.P.
Columbia/Alleghany Regional Hospital, Incorporated
Columbia/HCA John Randolph, Inc.
Columbine Psychiatric Center, Inc.
Columbus Cardiology, Inc.
Conroe Hospital Corporation

 


 

Dallas/Ft. Worth Physician, LLC
Dauterive Hospital Corporation
Dublin Community Hospital, LLC
Eastern Idaho Health Services, Inc.
Edward White Hospital, Inc.
El Paso Surgicenter, Inc.
Encino Hospital Corporation, Inc.
EP Health, LLC
Fairview Park GP, LLC
Fairview Park, Limited Partnership
Frankfort Hospital, Inc.
Galen Property, LLC
Good Samaritan Hospital, L.P.
Goppert-Trinity Family Care, LLC
GPCH-GP, Inc.
Grand Strand Regional Medical Center, LLC
Green Oaks Hospital Subsidiary, L.P.
Greenview Hospital, Inc.
HCA — IT&S Field Operations, Inc.
HCA — IT&S Inventory Management, Inc.
HCA Central Group, Inc.
HCA Health Services of Florida, Inc.
HCA Health Services of Louisiana, Inc.
HCA Health Services of Oklahoma, Inc.
HCA Health Services of Tennessee, Inc.
HCA Health Services of Virginia, Inc.
HCA Management Services, L.P.
HCA Realty, Inc.
HD&S Corp. Successor, Inc.
Health Midwest Office Facilities Corporation
Health Midwest Ventures Group, Inc.
Hendersonville Hospital Corporation
Hospital Corporation of Tennessee
Hospital Corporation of Utah
Hospital Development Properties, Inc.
HSS Holdco, LLC
HSS Systems VA, LLC
HSS Systems, LLC
HSS Virginia, L.P.
HTI Memorial Hospital Corporation
HTI MOB, LLC
Integrated Regional Lab, LLC
Integrated Regional Laboratories, LLP

 


 

JFK Medical Center Limited Partnership
KPH-Consolidation, Inc.
Lakeland Medical Center, LLC
Lakeview Medical Center, LLC
Largo Medical Center, Inc.
Las Vegas Surgicare, Inc.
Lawnwood Medical Center, Inc.
Lewis-Gale Hospital, Incorporated
Lewis-Gale Medical Center, LLC
Lewis-Gale Physicians, LLC
Los Robles Regional Medical Center
Management Services Holdings, Inc.
Marietta Surgical Center, Inc.
Marion Community Hospital, Inc.
MCA Investment Company
Medical Centers of Oklahoma, LLC
Medical Office Buildings of Kansas, LLC
Memorial Healthcare Group, Inc.
Midwest Division — ACH, LLC
Midwest Division — LRHC, LLC
Midwest Division — LSH, LLC
Midwest Division — MCI, LLC
Midwest Division — MMC, LLC
Midwest Division — OPRMC, LLC
Midwest Division — PFC, LLC
Midwest Division — RBH, LLC
Midwest Division — RMC, LLC
Midwest Division — RPC, LLC
Midwest Holdings, Inc.
Montgomery Regional Hospital, Inc.
Mountain View Hospital, Inc.
Nashville Shared Services General Partnership
National Patient Account Services, Inc.
New Port Richey Hospital, Inc.
New Rose Holding Company, Inc.
North Florida Immediate Care Center, Inc.
North Florida Regional Medical Center, Inc.
Northern Utah Healthcare Corporation
Northern Virginia Community Hospital, LLC
Northlake Medical Center, LLC
Notami Hospitals of Louisiana, Inc.
Notami Hospitals, LLC
Okaloosa Hospital, Inc.

 


 

Okeechobee Hospital, Inc.
Outpatient Cardiovascular Center of Central Florida, LLC
Palms West Hospital Limited Partnership
Palmyra Park Hospital, Inc.
Pasadena Bayshore Hospital, Inc
Plantation General Hospital, L.P.
Pulaski Community Hospital, Inc.
Redmond Park Hospital, LLC
Redmond Physician Practice Company
Reston Hospital Center, LLC
Retreat Hospital, LLC
Rio Grande Regional Hospital, Inc.
Riverside Healthcare System, L.P.
Riverside Hospital, Inc.
Samaritan, LLC
San Jose Healthcare System, LP
San Jose Hospital, L.P.
San Jose Medical Center, LLC
San Jose, LLC
Sarasota Doctors Hospital, Inc.
SJMC, LLC
Southern Hills Medical Center, LLC
Spotsylvania Medical Center, Inc.
Spring Branch Medical Center, Inc.
Spring Hill Hospital, Inc.
St. Mark’s Lone Peak Hospital, Inc.
Sun City Hospital, Inc.
Sunrise Mountainview Hospital, Inc.
Surgicare of Brandon, Inc.
Surgicare of Florida, Inc.
Surgicare of Houston Women’s, Inc.
Surgicare of Manatee, Inc.
Surgicare of Newport Richey, Inc.
Surgicare of Palms West, LLC
Surgicare of Riverside, LLC
Tallahassee Medical Center, Inc.
TCMC Madison-Portland, Inc.
Terre Haute Hospital GP, Inc.
Terre Haute Hospital Holdings, Inc.
Terre Haute MOB, L.P.
Terre Haute Regional Hospital, L.P.
The Regional Health System of Acadiana, LLC
Timpanogos Regional Medical Services, Inc.

 


 

Trident Medical Center, LLC
Utah Medco, LLC
VH Holdco, Inc.
VH Holdings, Inc.
Virginia Psychiatric Company, Inc.
W & C Hospital, Inc.
Walterboro Community Hospital, Inc.
Wesley Medical Center, LLC
West Florida Regional Medical Center, Inc.
West Valley Medical Center, Inc.
Western Plains Capital, Inc.
WHMC, Inc.
Woman’s Hospital of Texas, Incorporated

 


 

EXHIBIT A
[Face of Note]
[Insert the Global Note Legend, if applicable, pursuant to the provisions of the Second Supplemental Indenture]

A-1


 

CUSIP [                    ]
ISIN [               ] 1
GLOBAL NOTE
6.50% Senior Secured Notes due 2020
     
No. ___
  [$______________]
HCA INC.
promises to pay to CEDE & CO. or registered assigns, the principal sum [set forth on the Schedule of Exchanges of Interests in the Global Note attached hereto] [of ________________________ United States Dollars] on February 15, 2020.
Interest Payment Dates: February 15 and August 15
Record Dates: February 1 and August 1
 
1
CUSIP Numbers:   404121AC9
ISIN Numbers:   US404121AC95

A-2


 

          IN WITNESS HEREOF, the Issuer has caused this instrument to be duly executed.
Dated: August 1, 2011
             
    HCA INC.    
 
           
 
  By:        
 
     
 
Name:
   
 
      Title:    

A-3


 

This is one of the Notes referred to in the within-mentioned Second Supplemental Indenture:
             
    LAW DEBENTURE TRUST COMPANY OF NEW    
    YORK, as Trustee    
 
           
 
  By:        
 
     
 
Authorized Signatory
   

A-4


 

[Back of Note]
6.50% Senior Secured Notes due 2020
          Capitalized terms used herein shall have the meanings assigned to them in the Second Supplemental Indenture referred to below unless otherwise indicated.
          1. INTEREST. HCA Inc., a Delaware corporation, promises to pay interest on the principal amount of this Note at 6.50% per annum from August 1, 2011 until maturity. The Issuer will pay interest semi-annually in arrears on February 15 and August 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “ Interest Payment Date ”). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of issuance; provided that the first Interest Payment Date shall be February 15, 2012. The Issuer will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at the interest rate on the Notes; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand at the interest rate on the Notes. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months.
          2. METHOD OF PAYMENT. The Issuer will pay interest on the Notes to the Persons who are registered Holders of Notes at the close of business on the February 1 and August 1 (whether or not a Business Day), as the case may be, next preceding the Interest Payment Date, even if such Notes are cancelled after such record date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Second Supplemental Indenture with respect to defaulted interest. Payment of interest may be made by check mailed to the Holders at their addresses set forth in the register of Holders, provided that payment by wire transfer of immediately available funds will be required with respect to principal of and interest, premium on, all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Issuer or the Paying Agent. Such payment shall be in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
          3. PAYING AGENT AND REGISTRAR. Initially, Deutsche Bank Trust Company Americas will act as Paying Agent and Registrar. The Issuer may change any Paying Agent or Registrar without notice to the Holders. The Issuer or any of its Subsidiaries may act in any such capacity.
          4. SECOND SUPPLEMENTAL INDENTURE. The Issuer issued the Notes under the Base Indenture dated as of August 1, 2011 (the “ Base Indenture ”) among the HCA Inc., the Guarantors named therein, the Trustee and the Paying Agent, Registrar and Transfer Agent, as supplemented by Supplemental Indenture No. 2, dated as of August 1, 2011 (the “ Second Supplemental Indenture ”), among HCA Inc., the Guarantors named therein, the Trustee and the Paying Agent, Registrar and Transfer Agent. This Note is one of a duly authorized issue of notes of the Issuer designated as its 6.50% Senior Secured Notes due 2020. The Issuer shall be entitled to issue Additional Notes pursuant to Section 2.01 of the Second Supplemental Indenture. The terms of the Notes include those stated in the Second Supplemental Indenture and those made part of the Second Supplemental Indenture by reference to the Trust Indenture Act of 1939, as amended (the “ Trust Indenture Act ”). The Notes are subject to all such terms, and Holders are referred to the Second Supplemental Indenture and such Act for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Second Supplemental Indenture or the Base Indenture, the provisions of the Second Supplemental Indenture shall govern and be controlling.

A-5


 

          5. OPTIONAL REDEMPTION.
          (a) Except as set forth below, the Issuer will not be entitled to redeem Notes at its option prior to the Maturity Date.
          (b) The Notes will be redeemable, at the Issuer’s option, at any time in whole or from time to time in part, at a redemption, or “make-whole,” price equal to the greater of: 100% of the aggregate principal amount of the Notes to be redeemed, and an amount equal to sum of the present value of the remaining scheduled payments of principal of and interest on the Notes to be redeemed (excluding accrued and unpaid interest to the Redemption Date and subject to the right of Holders on the relevant Record Date to receive interest due on the relevant Interest Payment Date) discounted from their scheduled date of payment to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) using a discount rate equal to the Treasury Rate plus 50 basis points plus, in each of the above cases, accrued and unpaid interest, if any, to such Redemption Date.
          (c) Any notice of any redemption may be given prior to the redemption thereof, and any such redemption or notice may, at the Issuer’s discretion, be subject to one or more conditions precedent, including, but not limited to, completion of an Equity Offering or other corporate transaction.
          (d) If the Issuer redeems less than all of the outstanding Notes, the Registrar and Paying Agent shall select the Notes to be redeemed in the manner described under Section 3.02 of the Second Supplemental Indenture.
          (e) Any redemption pursuant to this paragraph 5 shall be made pursuant to the provisions of Sections 3.01 through 3.06 of the Second Supplemental Indenture.
          6. MANDATORY REDEMPTION. The Issuer shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes.
          7. NOTICE OF REDEMPTION. Subject to Section 3.03 of the Second Supplemental Indenture, notice of redemption will be mailed by first-class mail at least 30 days but not more than 60 days before the Redemption Date (except that redemption notices may be mailed more than 60 days prior to a Redemption Date if the notice is issued in connection with Article 8 or Article 11 of the Second Supplemental Indenture) to each Holder whose Notes are to be redeemed at its registered address. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000 in excess thereof, unless all of the Notes held by a Holder are to be redeemed. On and after the Redemption Date interest ceases to accrue on Notes or portions thereof called for redemption.
          8. OFFERS TO REPURCHASE.
          (a) Upon the occurrence of a Change of Control, the Issuer shall make an offer (a “ Change of Control Offer ”) to each Holder to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holder’s Notes at a purchase price equal to 101% of the aggregate principal amount thereof plus accrued and unpaid interest, if any, to the date of purchase (the “ Change of Control Payment ”). The Change of Control Offer shall be made in accordance with Section 4.07 of the Second Supplemental Indenture.
          (b) If the Issuer or any of its Restricted Subsidiaries consummates an Asset Sale of Collateral, within 10 Business Days of each date that the aggregate amount of Collateral Excess Proceeds exceeds $200.0 million, the Issuer shall make an offer to all Holders of the Notes and, if required by the terms of any First Lien Obligations or Obligations secured by a Lien permitted under the Second

A-6


 

Supplemental Indenture (which Lien is not subordinate to the Lien of the Notes with respect to the Collateral), to the holders of such First Lien Obligations or such other Obligations (a “ Collateral Asset Sale Offer ”), to purchase the maximum aggregate principal amount of the Notes and such First Lien Obligations or such other Obligations that is a minimum of $2,000 or an integral multiple of $1,000 in excess thereof that may be purchased out of the Collateral Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest to the date fixed for the closing of such offer, in accordance with the procedures set forth in the Second Supplemental Indenture. To the extent that the aggregate amount of Notes and such other First Lien Obligations or Obligations secured by a Lien permitted by the Second Supplemental Indenture (which Lien is not subordinate to the Lien of the Notes with respect to the Collateral) tendered pursuant to a Collateral Asset Sale Offer is less than the Collateral Excess Proceeds, the Issuer may use any remaining Collateral Excess Proceeds for general corporate purposes, subject to other covenants contained in the Second Supplemental Indenture. If the aggregate principal amount of Notes or other First Lien Obligations or such other Obligations surrendered by such holders thereof exceeds the amount of Collateral Excess Proceeds, the Registrar and Paying Agent shall select the Notes and such other First Lien Obligations or such other Obligations to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes or such other First Lien Obligations or such other Obligations tendered. Upon completion of any such Collateral Asset Sale Offer, the amount of Collateral Excess Proceeds shall be reset at zero.
          (c) If the Issuer or any of its Restricted Subsidiaries consummates an Asset Sale of non-Collateral, within 10 Business Days of each date that the aggregate amount of Excess Proceeds exceeds $200.0 million, the Issuer shall make an offer to all Holders of the Notes and, if required or permitted by the terms of any Senior Indebtedness, to the holders of such Senior Indebtedness (an “ Asset Sale Offer ”), to purchase the maximum aggregate principal amount of the Notes and such Senior Indebtedness that is a minimum of $2,000 or an integral multiple of $1,000 in excess thereof that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest to the date fixed for the closing of such offer, in accordance with the procedures set forth in the Second Supplemental Indenture. To the extent that the aggregate amount of Notes and such Senior Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds for general corporate purposes, subject to other covenants contained in the Second Supplemental Indenture. If the aggregate principal amount of Notes or Senior Indebtedness surrendered by such holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such Senior Indebtedness to be purchased on a pro rata basis based on the accreted value or principal amount of the Notes or such Senior Indebtedness tendered. Upon completion of any such Asset Sale Offer, the amount of Excess Proceeds shall be reset at zero.
          (d) The Issuer may, at its option, make a Collateral Asset Sale Offer or Asset Sale Offer using proceeds from any Asset Sale at any time after consummation of such Asset Sale; provided that such Collateral Asset Sale Offer or Asset Sale Offer shall be in an aggregate amount of not less than $50.0 million. Upon consummation of such Collateral Asset Sale Offer or Asset Sale Offer, any Net Proceeds not required to be used to purchase Notes shall not be deemed Excess Proceeds.
          9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Second Supplemental Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuer may require a Holder to pay any taxes and fees required by law or permitted by the Second Supplemental Indenture. The Issuer need not exchange or register the transfer of any Notes or portion of Notes selected for redemption, except for the unredeemed portion of any Notes being redeemed in part. Also, the Issuer need not exchange or register the transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed.

A-7


 

          10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes.
          11. AMENDMENT, SUPPLEMENT AND WAIVER. The Second Supplemental Indenture, the Guarantees or the Notes may be amended or supplemented as provided in the Second Supplemental Indenture.
          12. DEFAULTS AND REMEDIES. The Events of Default relating to the Notes are defined in Section 6.01 of the Second Supplemental Indenture. If any Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes may declare the principal, premium, if any, interest and any other monetary obligations on all the then outstanding Notes to be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of Default arising from certain events of bankruptcy or insolvency, all outstanding Notes will become due and payable immediately without further action or notice. Holders may not enforce the Second Supplemental Indenture, the Guarantees or the Notes except as provided in the Second Supplemental Indenture. Subject to certain limitations, Holders of a majority in aggregate principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Notes notice of any continuing Default (except a Default relating to the payment of principal, premium, if any, or interest) if it determines that withholding notice is in their interest. The Holders of a majority in aggregate principal amount of the Notes then outstanding by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default or and its consequences under the Second Supplemental Indenture except a continuing Default in payment of the principal of, premium, if any, or interest on, any of the Notes held by a non-consenting Holder. The Issuer is required to deliver to the Trustee annually a statement regarding compliance with the Second Supplemental Indenture, and the Issuer is required within five (5) Business Days after becoming aware of any Default, to deliver to the Trustee a statement specifying such Default and what action the Issuer proposes to take with respect thereto.
          13. AUTHENTICATION. This Note shall not be entitled to any benefit under the Second Supplemental Indenture or be valid or obligatory for any purpose until authenticated by the manual signature of the Trustee.
          14. [RESERVED].
          15. GOVERNING LAW. THE SECOND SUPPLEMENTAL INDENTURE, THE NOTES, THE PARENT GUARANTEE AND ANY GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
          16. CUSIP/ISIN NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP/ISIN numbers to be printed on the Notes and the Trustee may use CUSIP/ISIN numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.

A-8


 

          The Issuer will furnish to any Holder upon written request and without charge a copy of the Second Supplemental Indenture. Requests may be made to the Issuer at the following address:
HCA Inc.
One Park Plaza
Nashville, Tennessee 37203
Fax No.: (615) 344-1531; Attention: General Counsel
Fax No.: (866) 741-5906; Attention: Treasurer

A-9


 

ASSIGNMENT FORM
          To assign this Note, fill in the form below:
         
(I) or (we) assign and transfer this Note to:
       
 
 
 
(Insert assignee’s legal name)
   
 
(Insert assignee’s soc. sec. or tax I.D. no.)
 
 
 
 
(Print or type assignee’s name, address and zip code)
and irrevocably appoint                                                                                                                                      
to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Date: _____________________
             
 
  Your Signature:        
 
     
 
(Sign exactly as your name appears on
   
 
      the face of this Note)    
Signature Guarantee*: ________________________
 
*   Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

A-10


 

OPTION OF HOLDER TO ELECT PURCHASE
          If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.07 or Section 4.08 of the Second Supplemental Indenture, check the appropriate box below:
[     ] Section 4.07            [     ] Section 4.08
          If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 4.07 or Section 4.08 of the Second Supplemental Indenture, state the amount you elect to have purchased:
$_______________
Date: _____________________
             
 
  Your Signature:        
 
     
 
(Sign exactly as your name appears on
   
 
      the face of this Note)    
 
  Tax Identification No.:        
 
     
 
   
Signature Guarantee*: ________________________
 
*   Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

A-11


 

SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
          The initial outstanding principal amount of this Global Note is $_________. The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:
                                 
                    Principal Amount        
    Amount of             of        
    decrease     Amount of increase     this Global Note     Signature of  
    in Principal     in Principal     following such     authorized officer  
Date of   Amount of this     Amount of this     decrease or     of Trustee or  
Exchange   Global Note     Global Note     increase     Notes Registrar  
 
                               
 
*   This schedule should be included only if the Note is issued in global form.

A-12


 

EXHIBIT B
[FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS]
          Supplemental Indenture (this “ Supplemental Indenture ”), dated as of __________, among __________________ (the “ Guaranteeing Subsidiary ”), a subsidiary of HCA Inc., a Delaware Corporation (the “ Issuer ”), Law Debenture Trust Company of New York, as trustee (the “ Trustee ”) and Deutsche Bank Trust Company Americas, as Paying Agent, Registrar and Transfer Agent
W I T N E S S E T H
          WHEREAS, each of HCA Inc. and the Guarantors (as defined in the Second Supplemental Indenture referred to below) have heretofore executed and delivered to the Trustee an indenture (the “ Second Supplemental Indenture ”), dated as of August 1, 2011, providing for the issuance of an unlimited aggregate principal amount of 6.50% Senior Secured Notes due 2020 (the “ Notes ”);
          WHEREAS, the Second Supplemental Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Issuer’s Obligations under the Notes and the Second Supplemental Indenture on the terms and conditions set forth herein and under the Second Supplemental Indenture (the “ Guarantee ”); and
          WHEREAS, pursuant to Section 9.01 of the Second Supplemental Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.
          NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
          (1) Capitalized Terms . Capitalized terms used herein without definition shall have the meanings assigned to them in the Second Supplemental Indenture.
          (2) Agreement to Guarantee . The Guaranteeing Subsidiary hereby agrees as follows:
     (a) Along with all Guarantors named in the Second Supplemental Indenture, to jointly and severally unconditionally guarantee to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee, the Paying Agent, the Registrar and the Transfer Agent and their successors and assigns, irrespective of the validity and enforceability of the Second Supplemental Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that:
     (i) the principal of and interest, premium on the Notes will be promptly paid in full when due, whether at maturity, by acceleration, redemption or otherwise, and interest on the overdue principal of and interest on the Notes, if any, if lawful, and all other obligations of the Issuer to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and
     (ii) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or

CB-1


 

performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Guarantors and the Guaranteeing Subsidiary shall be jointly and severally obligated to pay the same immediately. This is a guarantee of payment and not a guarantee of collection.
     (b) The obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Second Supplemental Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor.
     (c) The following is hereby waived: diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever.
     (d) This Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes, the Second Supplemental Indenture and this Supplemental Indenture, and the Guaranteeing Subsidiary accepts all obligations of a Guarantor under the Second Supplemental Indenture.
     (e) If any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Guarantors (including the Guaranteeing Subsidiary), or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuer or the Guarantors, any amount paid either to the Trustee or such Holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
     (f) The Guaranteeing Subsidiary shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of all obligations guaranteed hereby.
     (g) As between the Guaranteeing Subsidiary, on the one hand, and the Holders and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 6 of the Second Supplemental Indenture for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the event of any declaration of acceleration of such obligations as provided in Article 6 of the Second Supplemental Indenture, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guaranteeing Subsidiary for the purpose of this Guarantee.
     (h) The Guaranteeing Subsidiary shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under this Guarantee.
     (i) Pursuant to Section 12.02 of the Second Supplemental Indenture, after giving effect to all other contingent and fixed liabilities that are relevant under any applicable Bankruptcy Law or fraudulent conveyance laws, and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under Article 12 of the Second Supplemental Indenture, this new Guarantee shall be limited to the maximum amount permissible such that the obligations

CB-2


 

of such Guaranteeing Subsidiary under this Guarantee will not constitute a fraudulent transfer or conveyance.
     (j) This Guarantee shall remain in full force and effect and continue to be effective should any petition be filed by or against the Issuer for liquidation, reorganization, should the Issuer become insolvent or make an assignment for the benefit of creditors or should a receiver or trustee be appointed for all or any significant part of the Issuer’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes and Guarantee, whether as a “voidable preference,” “fraudulent transfer” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Note shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
     (k) In case any provision of this Guarantee shall be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
     (l) This Guarantee shall be a general senior obligation of such Guaranteeing Subsidiary, ranking equally in right of payment with all existing and future Senior Indebtedness of the Guaranteeing Subsidiary but, to the extent of the value of the Collateral, will be effectively senior to all of the Guaranteeing Subsidiary’s unsecured Senior Indebtedness and Junior Lien Obligations and, to the extent of the Shared Receivables Collateral, will be effectively subordinated to the Guaranteeing Subsidiary’s Obligations under the ABL Facility and any future ABL Obligations. The Guarantees will be senior in right of payment to all existing and future Subordinated Indebtedness of each Guarantor. The Notes will be structurally subordinated to Indebtedness and other liabilities of Subsidiaries of the Issuer that do not Guarantee the Notes, if any.
     (m) Each payment to be made by the Guaranteeing Subsidiary in respect of this Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
          (3) Execution and Delivery . The Guaranteeing Subsidiary agrees that the Guarantee shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes.
          (4) Merger, Consolidation or Sale of All or Substantially All Assets .
          (a) Except as otherwise provided in Section 5.01(c) of the Second Supplemental Indenture, the Guaranteeing Subsidiary may not consolidate or merge with or into or wind up into (whether or not the Issuer or Guaranteeing Subsidiary 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:
     (i) such Guarantor is the surviving corporation or the Person formed by or surviving any such consolidation or merger (if other than such Guarantor) or to which such sale, assignment, transfer, lease, conveyance or other disposition will have been made is a corporation, partnership, limited partnership, limited liability corporation or trust organized or existing under the laws of the jurisdiction of organization of such Guarantor, as the case may be, or the laws of the

CB-3


 

United States, any state thereof, the District of Columbia, or any territory thereof (such Guarantor or such Person, as the case may be, being herein called the “ Successor Person ”);
     (ii) the Successor Person, if other than such Guarantor, expressly assumes all the obligations of such Guarantor under the Second Supplemental Indenture and such Guarantor’s related Guarantee pursuant to supplemental indentures or other documents or instruments in form reasonably satisfactory to the Trustee;
     (iii) immediately after such transaction, no Default exists; and
     (iv) the Issuer shall have delivered to the Trustee an Officer’s Certificate, each stating that such consolidation, merger or transfer and such supplemental indentures, if any, comply with the Second Supplemental Indenture; or
     (v) the transaction is made in compliance with Section 4.08 of the Second Supplemental Indenture.
          (b) Subject to certain limitations described in the Second Supplemental Indenture, the Successor Person will succeed to, and be substituted for, such Guarantor under the Second Supplemental Indenture and such Guarantor’s Guarantee. Notwithstanding the foregoing, any Guarantor may (i) merge into or transfer all or part of its properties and assets to another Guarantor or the Issuer, (ii) merge with an Affiliate of the Issuer solely for the purpose of reincorporating the Guarantor in the United States, any state thereof, the District of Columbia or any territory thereof or (iii) convert into a corporation, partnership, limited partnership, limited liability corporation or trust organized or existing under the laws of the jurisdiction of organization of such Guarantor.
          (5) Releases . The Guarantee of the Guaranteeing Subsidiary shall be automatically and unconditionally released and discharged, and no further action by the Guaranteeing Subsidiary, the Issuer or the Trustee is required for the release of the Guaranteeing Subsidiary’s Guarantee, upon:
     (1) (A) any sale, exchange or transfer (by merger or otherwise) of the Capital Stock of such Guarantor (including any sale, exchange or transfer), after which the applicable Guarantor is no longer a Restricted Subsidiary or all or substantially all the assets of such Guarantor which sale, exchange or transfer is made in compliance with the applicable provisions of the Second Supplemental Indenture;
     (B) the release or discharge of the guarantee by such Guarantor of the Senior Credit Facilities or such other guarantee that resulted in the creation of such Guarantee, except a discharge or release by or as a result of payment under such guarantee;
     (C) the designation of such Guarantor, if a Restricted Subsidiary, as an Unrestricted Subsidiary in compliance with the definition of “Unrestricted Subsidiary” hereunder;
     (D) the occurrence of an Investment Grade Rating Event; or
     (E) the exercise by Issuer of its Legal Defeasance option or Covenant Defeasance option in accordance with Article 8 hereof or the Issuer’s obligations under the Second Supplemental Indenture being discharged in accordance with the terms of the Second Supplemental Indenture; and

CB-4


 

     (2) such Guarantor delivering to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in the Second Supplemental Indenture relating to such transaction have been complied with.
          (6) No Recourse Against Others . No director, officer, employee, incorporator or stockholder of the Guaranteeing Subsidiary shall have any liability for any obligations of the Issuer or the Guarantors (including the Guaranteeing Subsidiary) under the Notes, any Guarantees, the Second Supplemental Indenture or this Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting Notes waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
          (7) Governing Law . THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
          (8) Counterparts . The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
          (9) Effect of Headings . The Section headings herein are for convenience only and shall not affect the construction hereof.
          (10) The Trustee . The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary.
          (11) Subrogation . The Guaranteeing Subsidiary shall be subrogated to all rights of Holders of Notes against the Issuer in respect of any amounts paid by the Guaranteeing Subsidiary pursuant to the provisions of Section 2 hereof and Section 12.01 of the Second Supplemental Indenture; provided that, if an Event of Default has occurred and is continuing, the Guaranteeing Subsidiary shall not be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Issuer under the Second Supplemental Indenture or the Notes shall have been paid in full.
          (12) Benefits Acknowledged . The Guaranteeing Subsidiary’s Guarantee is subject to the terms and conditions set forth in the Second Supplemental Indenture. The Guaranteeing Subsidiary acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Second Supplemental Indenture and this Supplemental Indenture and that the guarantee and waivers made by it pursuant to this Guarantee are knowingly made in contemplation of such benefits.
          (13) Successors . All agreements of the Guaranteeing Subsidiary in this Supplemental Indenture shall bind its Successors, except as otherwise provided in Section 2(k) hereof or elsewhere in this Supplemental Indenture. All agreements of the Trustee in this Supplemental Indenture shall bind its successors.

CB-5


 

          IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.
         
  Each of the GUARANTORS
listed on the Schedule I hereto
 
 
  By:      
    Name:      
    Title:      
 
 

LAW DEBENTURE TRUST COMPANY OF NEW
YORK, as Trustee
 
 
  By:      
    Name:      
    Title:      
 
 

DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Paying Agent, Registrar and Transfer Agent
 
 
  By:      
 
     
  By:      
    Name:      
    Title:      
 
     
  By:      
    Name:      
    Title:      
 

CB-6

Exhibit 4.9
ADDITIONAL GENERAL INTERCREDITOR AGREEMENT
     ADDITIONAL GENERAL INTERCREDITOR AGREEMENT (this “ Agreement ”), dated as of August 1, 2011, by and among BANK OF AMERICA, N.A., in its capacity as First Lien Collateral Agent, including its successors and assigns from time to time, THE BANK OF NEW YORK MELLON, in its capacity as Junior Lien Collateral Agent and in its capacity as 2006 Second Lien Trustee, including its successors and assigns from time to time, and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., in its capacity as 2009 Second Lien Trustee, including its successors and assigns from time to time.
     A. Reference is made to (i) the General Intercreditor Agreement dated as of November 17, 2006 (as may be amended or modified from time to time, the “ Intercreditor Agreement ”; capitalized terms used herein without definition have the meanings given such terms by the Intercreditor Agreement) by and between Bank of America, N.A. as First Lien Collateral Agent and The Bank of New York Mellon, as Junior Lien Collateral Agent, and (ii) the Indenture, dated as of August 1, 2011 (the “ Base Indenture ”) among the Company, HCA Holdings, Inc., the (“ Parent Guarantor ”), Law Debenture Trust Company of New York, as trustee (in such capacity, the “ Trustee ”) and Deutsche Bank Trust Company Americas, as registrar, paying agent and transfer agent (in each such capacity, the “ Registrar ”), as supplemented by the Supplemental Indenture No. 2 for the 6.50% Senior Secured Notes due 2020, dated as of August 1, 2011 (together with the Base Indenture, the “ New First Lien Agreement ”), among the Company, the Parent Guarantor, the other Subsidiary Guarantors party thereto, the Trustee (in such capacity, “ New First Lien Trustee ”) and the Registrar.
     B. Pursuant to the terms of the Junior Lien Documents, the Junior Lien Collateral Agent is permitted to enter into this Agreement.
     C. Pursuant to the First Lien Security Documents, the Grantors have granted Liens in the Common Collateral to the First Lien Collateral Agent to secure the payment and performance of the New First Lien Obligations.
     D In order to induce the holders of New First Lien Obligations to extend credit to the Grantors, the First Lien Collateral Agent, the Junior Lien Collateral Agent and the New First Lien Trustee hereby agree as follows:
    SECTION 1. Definitions .
     1.1. Defined Terms . As used in this Agreement, the following terms have the meanings specified below:
      “Agreement ” shall mean this Agreement, as amended, renewed, extended, supplemented or otherwise modified from time to time in accordance with the terms hereof.
     “ Common Collateral ” shall mean all of the assets of any Grantor, whether real, personal or mixed, constituting both New First Lien Collateral and Junior Lien Collateral including without limitation (a) any assets in which the First Lien Collateral Agent is automatically deemed to have a Lien pursuant to the provisions of Section 2.3 of the Intercreditor Agreement

 


 

(as incorporated into this Agreement pursuant to Section 2.1 hereof) and (b) Shared Receivables Collateral.
     “ CF Credit Agreement ” shall mean that certain credit agreement dated as of November 17, 2006 among the Company, HCA UK Capital Limited, a limited liability company (company no. 04779021) formed under the laws of England and Wales, as the European Subsidiary Borrower thereunder, the Lenders party thereto from time to time, Bank of America, N.A., as administrative agent, swingline lender and letter of credit issuer, JPMorgan Chase Bank, N.A. and Citicorp North America, Inc., as co-syndication agents, Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities LLC and Citigroup Global Markets Inc., as joint lead arrangers and bookrunners, Deutsche Bank Securities Inc. and Wachovia Capital Markets LLC, as joint bookrunners, and Merrill Lynch Capital Corporation, as documentation agent, as amended and restated on May 9, 2011 and as further amended, restated, supplemented, waived, refinanced or otherwise modified from time to time.
     “ Discharge of New First Lien Obligations ” shall mean, except to the extent otherwise provided in Section 5.7 of the Intercreditor Agreement, the discharge or legal defeasance or covenant defeasance of the New First Lien Agreement in accordance with its terms; provided that the Discharge of New First Lien Obligations shall not be deemed to have occurred if such payments are made with the proceeds of other New First Lien Obligations that constitute an exchange or replacement for or a Refinancing, in whole or in part, of such New First Lien Obligations. In the event the New First Lien Obligations are modified and such Obligations are paid over time or otherwise modified pursuant to Section 1129 of the Bankruptcy Code, the New First Lien Obligations shall be deemed to be discharged when the final payment is made, in cash, in respect of such indebtedness and any obligations pursuant to such new indebtedness shall have been satisfied.
     “ First Lien Collateral Agent ” means Bank of America, N.A., in its capacity as administrative agent and collateral agent for the lenders and other secured parties under the CF Credit Agreement, in its capacity as collateral agent for the secured parties under any Additional First Lien Obligations (as defined in the New First Lien Agreement) in existence from time to time and in its capacity as collateral agent for the New First Lien Secured Parties, together with its successors and permitted assigns under the CF Credit Agreement, any agreement governing any Additional First Lien Obligations, the New First Lien Agreement and the First Lien Documents exercising substantially the same rights and powers; and in each case provided that if such First Lien Collateral Agent is not Bank of America, N.A., such First Lien Collateral Agent shall have become a party to the Intercreditor Agreement, this Agreement and the other applicable First Lien Security Documents.
     “ First Lien Documents ” means the credit, guarantee and security documents governing the New First Lien Obligations, including, without limitation, the New First Lien Agreement and the First Lien Security Documents.
     “ First Lien Security Documents ” means the Security Documents (as defined in the New First Lien Agreement) and any other agreement, document or instrument pursuant to which a Lien is granted or purported to be granted securing New First Lien Obligations or under

 


 

which rights or remedies with respect to such Liens are governed, in each case to the extent relating to Common Collateral.
     “ New First Lien Agreement ” shall have the meaning set forth in the recitals.
     “ New First Lien Collateral ” shall mean all of the assets of any Grantor, whether real, personal or mixed, with respect to which a Lien is granted or purported to be granted as security for any New First Lien Obligations pursuant to a First Lien Security Document.
     “ New First Lien Obligations ” shall mean all advances to, and debts, liabilities, obligations, covenants and duties of, any Grantor arising under the New First Lien Agreement and any other First Lien Documents, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Grantor or any Affiliate thereof of any proceeding under any bankruptcy or insolvency law naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding, in each case, that have been designated as “Additional First Lien Obligations” pursuant to and in accordance with Section 8.17 of the Security Agreement (as defined in the New First Lien Agreement).
     “ New First Lien Secured Parties ” means, at any relevant time, the holders of New First Lien Obligations at such time, including without limitation the New First Lien Trustee and the holders of notes issued pursuant to the New First Lien Agreement.
     “ Second Lien Trustees ” means the 2006 Second Lien Trustee, the 2009 Second Lien Trustee and any trustee that enters into a joinder to this Agreement pursuant to Section 3.12 hereof, and any successor trustee in accordance with the applicable Junior Lien Document.
      “2009 Second Lien Indenture” means the Indenture dated as of February 19, 2009, among the Company, the guarantors identified therein and the 2009 Second Lien Trustee, as amended, restated, supplemented, waived, referenced or otherwise modified from time to time.
     “ 2006 Second Lien Trustee ” means The Bank of New York Mellon, as trustee under the Indenture, and any successor trustee in accordance with the Indenture.
     “ 2009 Second Lien Trustee ” means The Bank of New York Mellon Trust Company, N.A., as trustee under the 2009 Second Lien Indenture, and any successor trustee in accordance with such indenture.
     1.2. Terms Generally . The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified

 


 

in accordance with this Agreement, (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Sections shall be construed to refer to Sections of this Agreement and (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
    SECTION 2. INTERCREDITOR AGREEMENT .
     2.1. Subordination of Liens; Rights of New First Lien Secured Parties . The First Lien Collateral Agent, on behalf of itself and the New First Lien Secured Parties, the New First Lien Trustee, on behalf of itself and the New First Lien Secured Parties, and the Junior Lien Collateral Agent and the Second Lien Trustees, each on behalf of itself and the Junior Lien Secured Parties, hereby agree that notwithstanding (i) the date, time, manner or order of filing or recordation of any document or instrument or grant, attachment or perfection (including any defect or deficiency or alleged defect or deficiency in any of the foregoing) of any Liens granted to the Junior Lien Collateral Agent or the Junior Lien Secured Parties on the Common Collateral or of any Liens granted to the First Lien Collateral Agent or the New First Lien Secured Parties on the Common Collateral to secure the New First Lien Obligations, (ii) any provision of the UCC, the Bankruptcy Code, any applicable law, the Junior Lien Documents or the First Lien Documents, (iii) whether the First Lien Collateral Agent, either directly or through agents, holds possession of, or has control over, all or any part of the Common Collateral, (iv) the fact that any such Liens may be subordinated, voided, avoided, invalidated or lapsed or (v) any other circumstance of any kind or nature whatsoever: (a) any Lien on the Common Collateral securing any New First Lien Obligations now or hereafter held by or on behalf of the First Lien Collateral Agent or any New First Lien Secured Parties or any agent or trustee therefor regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall have priority over and be senior in all respects and prior to any Lien on the Common Collateral securing any Junior Lien Obligations and (b) any Lien on the Common Collateral securing any Junior Lien Obligations now or hereafter held by or on behalf of the Junior Lien Collateral Agent or any Junior Lien Secured Party or any agent or trustee therefor regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on the Common Collateral securing any New First Lien Obligations, in each case, to the same extent as the Liens on the Common Collateral securing the Junior Lien Obligations are subordinate and junior to the Liens securing the First Lien Obligations pursuant to the terms of the Intercreditor Agreement as in effect on the date hereof. Prior to the Discharge of New First Lien Obligations, (x) the New First Lien Secured Parties shall have all rights and benefits under this Agreement as are provided to the “First Lien Secured Parties” pursuant to the Intercreditor Agreement with respect to the Common Collateral prior to the Discharge of First Lien Obligations under the Intercreditor Agreement, (y) the Junior Lien Collateral Agent and the Junior Lien Secured Parties shall have all obligations with respect to the Common Collateral for the benefit of the New First Lien Secured Parties as are required pursuant to the Intercreditor Agreement for the benefit of the First Lien Secured Parties, and the provisions of the Intercreditor Agreement are incorporated herein mutatis mutandis (it being understood that, prior to the Discharge of First Lien Obligations, in the event of any conflict between this Agreement and the Intercreditor Agreement, the Junior Lien Collateral Obligations and the Junior Lien Secured

 


 

Parties shall comply with the provisions of the Intercreditor Agreement). For the avoidance of doubt, in incorporating the provisions of the Intercreditor Agreement herein mutatis mutandis , (A) references in the Intercreditor Agreement to “First Priority Liens,” when incorporated herein, shall be deemed to include Liens securing New First Lien Obligations, (B) references in the Intercreditor Agreement to the “Credit Agreement” in the definitions of “ABL Controlled Accounts,” “Indebtedness,” “Junior Lien Obligations,” “Notes” and “Subsidiary” and in Sections 5.1(a), 5.1(c), 5.5(g), 5.7, 7.3(b), 8.3 and 8.19 of the Intercreditor Agreement, when incorporated herein, shall become references to the New First Lien Agreement, (C) references in the Intercreditor Agreement to the “Indenture” in paragraphs A and B of the recitals, the definitions of “ABL Controlled Accounts,” “Indebtedness,” “Indenture Documents,” “Indenture Obligations,” “Indenture Secured Parties,” “Indenture Security Documents,” “Junior Lien Collateral Agent,” “Junior Lien Obligations,” “Officer’s Certificate” and “Subsidiary” and in Sections 5.1(a), 7.3(b), 8.3, 8.18(b) and 8.19, when incorporated herein, shall become references to both the Indenture and the 2009 Second Lien Indenture, (D) the definition of “Indenture” in the Intercreditor Agreement, when incorporated herein, shall instead read, “‘ Indenture ’ shall mean the New First Lien Agreement” and (E) the definition of “Notes” in the Intercreditor Agreement, when incorporated herein, shall refer both to the Notes described in such definition and the Notes under and as defined in the 2009 Second Lien Indenture, including the exchange notes issued in exchange therefor as contemplated by the Registration Rights Agreement (as defined in the 2009 Second Lien Indenture) and any additional notes issued under the 2009 Second Lien Indenture by the Company, to the extent permitted by the 2009 Second Lien Indenture and the New First Lien Agreement.
    SECTION 3. Miscellaneous .
     3.1. Amendments; Waivers . No amendment, modification or waiver of any of the provisions of this Agreement by the Junior Lien Collateral Agent, the New First Lien Trustee, the First Lien Collateral Agent or the Second Lien Trustees shall be deemed to be made unless the same shall be in writing signed by or on behalf of the First Lien Collateral Agent, the New First Lien Trustee, the Junior Lien Collateral Agent and the Second Lien Trustees or their respective authorized agents, and consented to in writing by the Company, and each waiver, if any, shall be a waiver only with respect to the specific instance involved and shall in no way impair the rights of the parties making such waiver or the obligations of the other parties to such party in any other respect or at any other time. Any Junior Lien Secured Party that executes a supplement or joinder to the Intercreditor Agreement shall execute a supplement hereto agreeing to be bound by the terms of this Agreement.
     3.2. Consent to Jurisdiction; Waivers . The parties hereto consent to the jurisdiction of any state or federal court located in New York, New York, and consent that all service of process may be made by registered mail directed to such party as provided in Section 3.3 for such party. Service so made shall be deemed to be completed three days after the same shall be posted as aforesaid. The parties hereto waive any objection to any action instituted hereunder in any such court based on forum non conveniens, and any objection to the venue of any action instituted hereunder in any such court. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, VERBAL OR WRITTEN

 


 

STATEMENT OR ACTION OF ANY PARTY HERETO IN CONNECTION WITH THE SUBJECT MATTER HEREOF.
     3.3. Notices . All notices to the First Lien Collateral Agent or the Junior Lien Collateral Agent permitted or required under this Agreement may be sent to the First Lien Collateral Agent or the Junior Lien Collateral Agent, respectively, as provided in the Intercreditor Agreement. All notices to the New First Lien Trustee permitted or required under this Agreement may be sent to the New First Lien Trustee as provided in the New First Lien Agreement. All notices to any Second Lien Trustee permitted or required under this Agreement may be sent to such Second Lien Trustee as provided in the applicable indenture or other Junior Lien Document. Unless otherwise specifically provided herein, any notice or other communication herein required or permitted to be given shall be in writing and may be personally served, telecopied, electronically mailed or sent by courier service or U.S. mail and shall be deemed to have been given when delivered in person or by courier service, upon receipt of a telecopy or electronic mail or upon receipt via U.S. mail (registered or certified, with postage prepaid and properly addressed). For the purposes hereof, the addresses of the parties hereto shall be asset forth below each party’s name on the signature pages hereto, or, as to each party, at such other address as may be designated by such party in a written notice to all of the other parties.
     3.4. Further Assurances . The Junior Lien Collateral Agent and the Second Lien Trustees, each on behalf of itself and each Junior Lien Secured Party, and the First Lien Collateral Agent, on behalf of itself and each New First Lien Secured Party, agree that each of them shall take such further action and shall execute and deliver to the First Lien Collateral Agent, the New First Lien Trustee and the New First Lien Secured Parties such additional documents and instruments (in recordable form, if requested) as the First Lien Collateral Agent, the New First Lien Trustee or the New First Lien Secured Parties may reasonably request to effectuate the terms of and the lien priorities contemplated by this Agreement.
     3.5. Governing Law . This Agreement has been delivered and accepted at and shall be deemed to have been made at New York, New York and shall be interpreted, and the rights and liabilities of the parties bound hereby determined, in accordance with the laws of the State of New York.
     3.6. Section Titles . The section titles contained in this Agreement are and shall be without substantive meaning or content of any kind whatsoever and are not a part of this Agreement.
     3.7. Counterparts . This Agreement may be executed in one or more counterparts, including by means of facsimile or “pdf” file thereof, each of which shall be an original and all of which shall together constitute one and the same document.
     3.8. Authorization . By its signature, each party hereto represents and warrants to the other parties hereto that the Person executing this Agreement on behalf of such party is duly authorized to execute this Agreement. The New First Lien Trustee represents and warrants that this Agreement is binding upon the New First Lien Secured Parties. The Junior Lien Collateral Agent, the Second Lien Trustees and each Junior Lien Representative represent and warrant that this Agreement is binding upon the Junior Lien Secured Parties.

 


 

     3.9. No Third Party Beneficiaries; Successors and Assigns . This Agreement and the rights and benefits hereof shall inure to the benefit of, and be binding upon, each of the parties hereto and their respective successors and assigns and shall inure to the benefit of each of, and be binding upon, the First Lien Collateral Agent, the New First Lien Secured Parties, the New First Lien Trustee, the Junior Lien Secured Parties, the Second Lien Trustees, the Junior Lien Representatives, the Junior Lien Collateral Agent, the Company, the Company’s Subsidiaries consenting hereto and their respective permitted successors and assigns. No other Person shall have or be entitled to assert rights or benefits hereunder.
     3.10. Effectiveness . This Agreement shall become effective when executed and delivered by the parties hereto. This Agreement shall be effective both before and after the commencement of any Insolvency or Liquidation Proceeding. All references to the Company or any other Grantor shall include the Company or any other Grantor as debtor and debtor-in-possession and any receiver or trustee for the Company or any other Grantor (as the case may be) in any Insolvency or Liquidation Proceeding.
     3.11. Other Provisions Applicable to Agents and Trustees . It is understood and agreed that (a) Bank of America is entering into this Agreement in its capacity as First Lien Collateral Agent, and the provisions of Section 11.02 of the New First Lien Agreement applicable to the collateral agent thereunder shall also apply to the First Lien Collateral Agent hereunder, (b) The Bank of New York Mellon is entering into this Agreement in its capacity as Junior Lien Collateral Agent and 2006 Second Lien Trustee and the provisions of Article 7of the Indenture applicable to the trustee and Section 11.02 of the Indenture applicable to the collateral agent thereunder shall also apply to the Junior Lien Collateral Agent and the 2006 Second Lien Trustee hereunder, (c) The Bank of New York Mellon Trust Company, N.A. is entering into this Agreement in its capacity as 2009 Second Lien Trustee and (d) Law Debenture Trust Company of New York has acknowledged and accepted the terms of this Agreement in its capacity as New First Lien Trustee through its execution of an Additional First Lien Secured Party Consent in the form attached as an exhibit to the Security Agreement (as defined in the New First Lien Agreement), and the provisions of Article 7 of the New First Lien Agreement applicable to the trustee thereunder shall also apply to the New First Lien Trustee hereunder.
     3.12. Joinders to this Agreement . If, after the date hereof, the Company shall designate any additional Junior Lien Obligations as Additional Secured Obligations pursuant to Section 8.17 of the Security Agreement, dated as of November 17, 2006, among the Company, the subsidiary grantors named therein and the Junior Lien Collateral Agent, and Section 27 of the Pledge Agreement, dated as of November 17, 2006, among the Company, the subsidiary pledgors named therein and the Junior Lien Collateral Agent, the Company shall cause the applicable Second Lien Trustee or other authorized representative of such Junior Lien Obligations that signs the Additional Secured Party Consents pursuant to such Security Agreement and Pledge Agreement to enter into a joinder to this Agreement substantially in the form of Annex A hereto.

 


 

     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
         
  BANK OF AMERICA, N.A.,
as First Lien Collateral Agent
 
 
  By:   /s/ Liliana Claar    
    Name:   Liliana Claar   
    Title:   Vice President   

 


 

         
  THE BANK OF NEW YORK MELLON,
as Junior Lien Collateral Agent and
as 2006 Second Lien Trustee
 
 
  By:   /s/ Scott I. Klein    
    Name:   Scott I. Klein   
    Title:   Vice President   
 
  THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as 2009 Second Lien Trustee
 
 
  By:   /s/ Reda Sabaliauskaite  
    Name:   Reda Sabaliauskaite  
    Title:   Senior Associate   

 


 

ANNEX A TO THE
ADDITIONAL GENERAL INTERCREDITOR AGREEMENT
[Form of]
JOINDER TO ADDITIONAL GENERAL INTERCREDITOR AGREEMENT
The Bank of New York Mellon,
   as Junior Lien Collateral Agent
900 Ashwood Parkway, Suite 425
Atlanta, GA 30338
[ Name of Additional Second Lien Trustee ]
[ Address of Additional Second Lien Trustee ]
[ Date ]
Bank of America, N.A.,
   as First Lien Collateral Agent
[ Address ]
Ladies and Gentlemen:
     The undersigned are the Junior Lien Collateral Agreement and the Second Lien Trustee in respect of the Junior Lien Obligations under the [ Insert new indenture or other Junior Lien Document under which the additional Second Lien Trustee and the Junior Lien Collateral Agent are acting ], dated as of [ ] (the “ New Second Lien Indenture ”), among the Company, the guarantors party thereto and [ Insert name of Second Lien Trustee ], as trustee (the “ New Second Lien Trustee ”). Terms used without definition herein have the meanings assigned to such term by the Additional General Intercreditor Agreement, dated as of August 1, 2011 (the “ Additional General Intercreditor Agreement ”), among Bank of America, N.A., as First Lien Collateral Agent, The Bank of New York Mellon, as Junior Lien Collateral Agent and 2006 Second Lien Trustee, and The Bank of New York Mellon Trust Company, N.A., as 2009 Second Lien Indenture Trustee.
     The undersigned and the First Lien Collateral Agent hereby agree for the benefit of the New First Lien Secured Parties as follows:
     1.  Joinder . Each of the undersigned hereby acknowledges that it has received and reviewed a copy of the Additional General Intercreditor Agreement and all other documents it deems fit to enter into this joinder to the Additional General Intercreditor Agreement (the “ Joinder Agreement ”), and acknowledges and agrees to (i) join and become a party to the Additional General Intercreditor Agreement with respect to the Junior Lien Obligations under the New Second Lien Indenture as indicated by its signature below; (ii) be bound by all covenants, agreements, representations, warranties and acknowledgments attributable to a Second Lien

 


 

Trustee, the Junior Lien Collateral Agent or a Junior Lien Secured Party, as the case may be, in the Additional General Intercreditor Agreement as if made by, and with respect to, each signatory hereto; and (iii) perform all obligations and duties required of a Second Lien Trustee, the Junior Lien Collateral Agent or a Junior Lien Secured Party, as the case may be, pursuant to the Additional General Intercreditor Agreement.
     2.  Acknowledgment . Each of the undersigned acknowledges that, notwithstanding anything to the contrary in any Junior Lien Document, (i) the liens and security interests granted to the Junior Lien Collateral Agent pursuant to the Security Agreement, dated as of November 17, 2006 (the “ Security Agreement ”), among the Company, the subsidiary grantors named therein and the Junior Lien Collateral Agent, the Pledge Agreement, dated as of November 17, 2006 (the “ Pledge Agreement ”), among the Company, the subsidiary pledgors named therein and the Junior Lien Collateral Agent, and any other Junior Lien Security Documents are expressly subject and subordinate to the liens and security interests granted to the First Lien Collateral Agent for the benefit of the New First Lien Secured Parties pursuant to the Additional General Intercreditor Agreement and (ii) the exercise of any right or remedy by the Junior Lien Collateral Agent under the Security Agreement, the Pledge Agreement or any other Junior Lien Security Document is subject to the limitations and provisions of the Additional General Intercreditor Agreement. Notwithstanding anything in the Security Agreement, the Pledge Agreement or any other Junior Lien Security Document to the contrary, prior to the Discharge of New First Lien Obligations, the requirements under the Security Agreement, the Pledge Agreement and any other Junior Lien Security Document to deliver Collateral (as defined under each such document) shall be deemed satisfied by delivery of such Collateral to the First Lien Collateral Agent.
     3.  Authorization . By its signature, each party hereto represents and warrants to the other parties hereto that the Person executing this Joinder Agreement on behalf of such party is duly authorized to execute this Joinder Agreement. The New Second Lien Trustee represents and warrants that it has been authorized by the Junior Lien Secured Parties in respect of the New Second Lien Indenture to execute this Joinder Agreement on their behalf.
     4.  Governing Law . This Agreement has been delivered and accepted at and shall be deemed to have been made at New York, New York and shall be interpreted, and the rights and liabilities of the parties bound hereby determined, in accordance with the laws of the State of New York.
     5.  Section Titles . The section titles contained in this Agreement are and shall be without substantive meaning or content of any kind whatsoever and are not a part of this Agreement.
     6.  Counterparts . This Agreement may be executed in one or more counterparts, including by means of facsimile or “pdf” file thereof, each of which shall be an original and all of which shall together constitute one and the same document.
     7.  Amendments . No amendment or waiver of any provision of this Joinder Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties thereto.

 


 

         
  Very truly yours,
[NAME OF NEW SECOND LIEN TRUSTEE]
 
 
  By:      
    Name:      
    Title:      
 
  THE BANK OF NEW YORK MELLON,
as Junior Lien Collateral Agent
 
 
  By:      
    Name:      
    Title:      
         
  Acknowledged and Agreed:

BANK OF AMERICA, N.A.,
as First Lien Collateral Agent
 
 
  By:      
    Name:      
    Title:      
 
  Consented to by:

HCA Inc., a Delaware corporation
 
 
  By:      
    Name:      
    Title:      
 
  The Grantors listed on Schedule I to the Security
Agreement, each as Grantor
 
 
  By:      
    Name:      
    Title:      
 

 


 

CONSENT OF COMPANY AND GRANTORS
Dated: August 1, 2011
     Reference is made to the Additional General Intercreditor Agreement dated as of the date hereof, among Bank of America, N.A., as First Lien Collateral Agent, The Bank of New York Mellon, as Junior Lien Collateral Agent and 2006 Second Lien Trustee (as defined therein), and The Bank of New York Mellon Trust Company, N.A., as 2009 Second Lien Trustee (as defined therein), as the same may be amended, restated, supplemented, waived, or otherwise modified from time to time (the “ Intercreditor Agreement ”). Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Intercreditor Agreement.
     Each of the undersigned Grantors has read the foregoing Intercreditor Agreement and consents thereto. Each of the undersigned Grantors agrees not to take any action that would be contrary to the express provisions of the foregoing Intercreditor Agreement, agrees to abide by the requirements expressly applicable to it under the foregoing Intercreditor Agreement and agrees that, except as otherwise provided therein, neither the First Lien Collateral Agent, the New First Lien Trustee, any New First Lien Secured Party nor any Junior Lien Secured Party shall have any liability to any Grantor for acting in accordance with the provisions of the foregoing Intercreditor Agreement, the First Lien Documents or the Junior Lien Documents. Each Grantor understands that the foregoing Intercreditor Agreement is for the sole benefit of the New First Lien Secured Parties and the Junior Lien Secured Parties and their respective successors and assigns, and that such Grantor is not an intended beneficiary or third party beneficiary thereof except to the extent otherwise expressly provided therein.
     Without limitation to the foregoing, each Grantor agrees to take such further action and to execute and deliver such additional documents and instruments (in recordable form, if requested) as the First Lien Collateral Agent, the New First Lien Trustee or the Junior Lien Collateral Agent (or any of their respective agents or representatives) may reasonably request to effectuate the terms of and the lien priorities contemplated by the Intercreditor Agreement.
     This Consent shall be governed and construed in accordance with the laws of the State of New York. Notices delivered to any Grantor pursuant to this Consent shall be delivered in accordance with the notice provisions set forth in the New First Lien Agreement.

 


 

     IN WITNESS HEREOF, this Consent is hereby executed by each of the Grantors as of the date first written above.
         
  HCA INC.
 
 
  By:   /s/ David G. Anderson    
    Name:   David G. Anderson   
    Title:   Senior Vice President — Finance and Treasurer   
[ Subsidiary Grantors Signature Blocks ]

 

Exhibit 4.10
ADDITIONAL RECEIVABLES INTERCREDITOR AGREEMENT
by and between
BANK OF AMERICA, N.A.,
as ABL Collateral Agent,
and
BANK OF AMERICA, N.A.,
as New First Lien Collateral Agent
Dated as of August 1, 2011

 


 

TABLE OF CONTENTS
         
    Page No.
ARTICLE 1
DEFINITIONS
 
       
Section 1.1 Definitions
    2  
Section 1.2 Rules of Construction
    10  
 
       
ARTICLE 2
LIEN PRIORITY
 
       
Section 2.1 Priority of Liens
    11  
Section 2.2 Waiver of Right to Contest Liens
    12  
Section 2.3 Remedies Standstill
    13  
Section 2.4 Exercise of Rights
    14  
Section 2.5 No New Liens
    15  
Section 2.6 Waiver of Marshaling
    16  
 
       
ARTICLE 3
ACTIONS OF THE PARTIES
 
       
Section 3.1 Certain Actions Permitted
    16  
Section 3.2 Agent for Perfection
    16  
Section 3.3 Inspection and Access Rights
    17  
Section 3.4 Insurance
    17  
Section 3.5 Exercise of Remedies—Set-off and Tracing of and Priorities in Proceeds
    18  
 
       
ARTICLE 4
APPLICATION OF PROCEEDS
 
       
Section 4.1 Application of Proceeds
    18  
Section 4.2 Specific Performance
    20  
 
       
ARTICLE 5
INTERCREDITOR ACKNOWLEDGMENTS AND WAIVERS
 
       
Section 5.1 Notice of Acceptance and Other Waivers
    20  
Section 5.2 Modifications to ABL Documents and New First Lien Documents
    21  
Section 5.3 Reinstatement and Continuation of Agreement
    22  
 
       
ARTICLE 6
INSOLVENCY PROCEEDINGS
 
       
Section 6.1 DIP Financing
    23  

-i-


 

         
    Page No.
Section 6.2 Relief from Stay
    24  
Section 6.3 No Contest; Adequate Protection
    24  
Section 6.4 Asset Sales
    25  
Section 6.5 Separate Grants of Security and Separate Classification
    25  
Section 6.6 Enforceability
    26  
Section 6.7 ABL Obligations Unconditional
    26  
 
       
ARTICLE 7
MISCELLANEOUS
 
       
Section 7.1 Rights of Subrogation
    26  
Section 7.2 Further Assurances
    26  
Section 7.3 Representations
    27  
Section 7.4 Amendments
    27  
Section 7.5 Addresses for Notices
    28  
Section 7.6 No Waiver; Remedies
    28  
Section 7.7 Continuing Agreement; Transfer of Secured Obligations
    28  
Section 7.8 Governing Law; Entire Agreement
    28  
Section 7.9 Counterparts
    29  
Section 7.10 No Third Party Beneficiaries
    29  
Section 7.11 Headings
    29  
Section 7.12 Severability
    29  
Section 7.13 Attorneys Fees
    29  
Section 7.14 VENUE; JURY TRIAL WAIVER
    29  
Section 7.15 Intercreditor Agreement
    30  
Section 7.16 Effectiveness
    30  
Section 7.17 Collateral Agents
    30  
Section 7.18 No Warranties or Liability
    30  
Section 7.19 Conflicts
    31  
Section 7.20 Information Concerning Financial Condition of the Credit Parties
    31  
Section 7.21 Acknowledgement
    31  

-ii-


 

ADDITIONAL RECEIVABLES INTERCREDITOR AGREEMENT
     THIS ADDITIONAL RECEIVABLES INTERCREDITOR AGREEMENT (as amended, supplemented, restated or otherwise modified from time to time pursuant to the terms hereof, this “ Agreement ”) is entered into as of August 1, 2011 between BANK OF AMERICA, N.A. (“ Bank of America ”), in its capacity as collateral agent for the ABL Obligations (as defined below), and Bank of America, in its capacity as collateral agent for the New First Lien Obligations (as defined below).
RECITALS
     A. HCA INC., a Delaware corporation (the “ Company ”), is party to the Credit Agreement dated as of November 17, 2006, as amended and restated as of May 4, 2011 (as may be further amended, restated, supplemented, waived, Refinanced or otherwise modified from time to time (including without limitation to add new loans thereunder or increase the amount of loans thereunder), the “ ABL Credit Agreement ”), among the Company, the several Subsidiary Borrowers party thereto, the Lenders party thereto from time to time, BANK OF AMERICA, N.A., as Administrative Agent, Swingline Lender and Letter of Credit Issuer, JPMORGAN CHASE BANK, N.A. and CITICORP NORTH AMERICA, INC., as Co-Syndication Agents, MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, J.P. MORGAN SECURITIES LLC and CITIGROUP GLOBAL MARKETS INC., as Joint Lead Arrangers and Bookrunners, DEUTSCHE BANK SECURITIES INC. and WELLS FARGO CAPITAL FINANCE, LLC, as Joint Bookrunners, and MERRILL LYNCH CAPITAL CORPORATION, as Documentation Agent. The ABL Credit Agreement is designated by the Company to be included in the definition of “ABL Facility” under the New First Lien Agreement (as defined below) and the Obligations thereunder constitute ABL Obligations within the meaning of the New First Lien Agreement.
     B. The Company is party to the Indenture, dated as of August 1, 2011 (the “ Base Indenture ”) among the Company, HCA Holdings, Inc., the (“ Parent Guarantor ”), Law Debenture Trust Company of New York, as trustee (in such capacity, the “ Trustee ”) and Deutsche Bank Trust Company Americas, as registrar, paying agent and transfer agent (in each such capacity, the “ Registrar ”), as supplemented by the Supplemental Indenture No. 2 for the 6.50% Senior Secured Notes due 2020, dated as of August 1, 2011 (together with the Base Indenture, the “ New First Lien Agreement ”), among the Company, the Parent Guarantor, the other Subsidiary Guarantors party thereto, the Trustee (in such capacity, “ New First Lien Trustee ”) and the Registrar.
     C. Bank of America, N.A., as ABL collateral agent, Bank of America, as collateral agent for the holders of Obligations under the CF Credit Agreement, and The Bank of New York, as collateral agent for the holders of notes issued under the Second Lien Notes Indentures, are party to that certain Receivables Intercreditor Agreement (the “ Original Receivables Intercreditor Agreement ”) dated as of November 17, 2006, which sets forth and governs the relative rights, privileges and obligations with respect to the Common Collateral as between the ABL Collateral Agent, on the one hand, and the Subordinated Lien Collateral Agent and Subordinated Lien Secured Parties (each as defined therein), on the other hand.

 


 

     D. Bank of America, N.A., as collateral agent for the lenders and other secured parties under the CF Credit Agreement, and The Bank of New York Mellon, as collateral agent for the noteholders and other secured parties pursuant to the Second Lien Notes Indentures, are party to that certain General Intercreditor Agreement (the “ Original General Intercreditor Agreement ”), dated as of November 17, 2006, which sets forth and governs the relative rights, privileges and obligations with respect to the collateral described therein (including, without limitation, the Shared Receivables Collateral) as between the First Lien Secured Parties (as defined therein), on the one hand, and the Junior Lien Secured Parties (as defined therein), on the other hand.
     E. Bank of America, N.A., as first lien collateral agent, The Bank of New York Mellon, as junior lien collateral agent and as trustee under the 2006 Indenture, and The Bank of New York Mellon Trust Company, N.A., as trustee under the 2009 Indenture, are party to that certain Additional General Intercreditor Agreement (the “ Additional General Intercreditor Agreement ”), dated as of August 1, 2011, which sets forth and governs the relative rights, privileges and obligations with respect to the collateral described therein (including without limitation, the Shared Receivables Collateral) as between the New First Lien Secured Parties (as defined therein), on the one hand, and the Junior Lien Secured Parties, on the other hand.
     F. Bank of America, N.A., as collateral agent for the holders of Obligations under the CF Credit Agreement, the New First Lien Agreement and the Existing First Lien Indentures (as defined below) and as authorized representative for the holders of Obligations under the CF Credit Agreement, and Law Debenture Trust Company of New York, as authorized representative for the holders of the Obligations under the Existing First Lien Indentures, are party to that certain First Lien Intercreditor Agreement (the “ First Lien Intercreditor Agreement ”), dated as of April 22, 2009, which sets forth and governs the relative rights, privileges and obligations with respect to the collateral described therein (including, without limitation, the Shared Receivables Collateral) as among the holders of Obligations under the CF Credit Agreement, the New First Lien Secured Parties and any series of Additional First Lien Secured Parties (as defined therein) and to which the New First Lien Secured Parties have joined by virtue of the Additional First Lien Secured Party Consent, dated as of August 1, 2011.
     Accordingly, in consideration of the foregoing, the mutual covenants and obligations herein set forth and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE 1
DEFINITIONS
      Section 1.1 Definitions . Unless the context otherwise requires, all capitalized terms used but not defined herein shall have the meanings set forth in the ABL Credit Agreement and the New First Lien Agreement, in each case as in effect on August 1, 2011. In addition, as used in this Agreement, the following terms shall have the meanings set forth below:
     “ ABL Collateral Agent ” shall mean Bank of America, in its capacity as collateral agent for the lenders and other secured parties under the ABL Credit Agreement and the other ABL

-2-


 

Documents entered into pursuant to the ABL Credit Agreement, together with its successors and permitted assigns under the ABL Credit Agreement exercising substantially the same rights and powers; and in each case provided that if such ABL Collateral Agent is not Bank of America, such ABL Collateral Agent shall have become a party to this Agreement and the other applicable ABL Security Documents.
     “ ABL Controlled Accounts ” shall mean, collectively, with respect to each Grantor, (i) all Deposit Accounts and all Securities Accounts and all accounts and sub-accounts relating to any of the foregoing accounts and (ii) all cash, funds, checks, notes, “securities entitlements” (as such terms are defined in the UCC) and instruments from time to time on deposit in any of the accounts or sub-accounts described in clause (i) of this definition, in each case, which are subject to a control agreement in favor of the ABL Collateral Agent.
     “ ABL Documents ” means the credit, guarantee and security documents governing the ABL Obligations, including, without limitation, the ABL Credit Agreement and the ABL Security Documents and Secured Cash Management Agreements (as defined in the ABL Credit Agreement as in effect on the date hereof) and Secured Hedge Agreements (as defined in the ABL Credit Agreement as in effect on the date hereof).
     “ ABL Entity ” shall mean a direct Subsidiary of a 1993 Indenture Restricted Subsidiary, substantially all of the business of which consists of financing of accounts receivable and related assets.
     “ ABL Obligations ” shall mean all “Obligations” as defined in the ABL Credit Agreement. For the avoidance of doubt, Obligations with respect to the New First Lien Agreement and the other New First Lien Documents shall not constitute ABL Obligations.
     “ ABL Recovery ” shall have the meaning set forth in Section 5.3.
     “ ABL Secured Parties ” means “Secured Parties” as defined in the ABL Credit Agreement.
     “ ABL Security Agreement ” means the Security Agreement (as defined in the ABL Credit Agreement).
     “ ABL Security Documents ” means the ABL Security Agreement and the other Security Documents (as defined in the ABL Credit Agreement) and any other agreement, document or instrument pursuant to which a Lien is granted or purported to be granted securing ABL Obligations or under which rights or remedies with respect to such Liens are governed.
     “ Affiliate ” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with such Person. A Person shall be deemed to control a corporation if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such corporation, whether through the ownership of voting securities, by contract or otherwise.

-3-


 

     “ Agreement ” shall have the meaning assigned to that term in the introduction to this Agreement.
     “ Bank of America ” shall have the meaning assigned to that term in the introduction to this Agreement.
     “ Bankruptcy Code ” shall mean Title 11 of the United States Code.
     “ Capital Stock ” shall mean, as to any Person that is a corporation, the authorized shares of such Person’s capital stock, including all classes of common, preferred, voting and nonvoting capital stock, and, as to any Person that is not a corporation or an individual, the membership or other ownership interests in such Person, including the right to share in profits and losses, the right to receive distributions of cash and other property, and the right to receive allocations of items of income, gain, loss, deduction and credit and similar items from such Person, whether or not such interests include voting or similar rights entitling the holder thereof to exercise Control over such Person, collectively with, in any such case, all warrants, options and other rights to purchase or otherwise acquire, and all other instruments convertible into or exchangeable for, any of the foregoing.
     “ CF Credit Agreement ” shall mean that certain credit agreement dated as of November 17, 2006 among the Company, HCA UK Capital Limited, a limited liability company (company no. 04779021) formed under the laws of England and Wales, as the European Subsidiary Borrower thereunder, the Lenders party thereto from time to time, Bank of America, N.A., as administrative agent, swingline lender and letter of credit issuer, JPMorgan Chase Bank, N.A. and Citicorp North America, Inc., as co-syndication agents, Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities LLC and Citigroup Global Markets Inc., as joint lead arrangers and bookrunners, Deutsche Bank Securities Inc. and Wachovia Capital Markets LLC, as joint bookrunners, and Merrill Lynch Capital Corporation, as documentation agent, as amended and restated on May 9, 2011 and as further amended, restated, supplemented, waived, refinanced or otherwise modified from time to time.
     “ Collateral Agent(s) ” means individually the ABL Collateral Agent or the New First Lien Collateral Agent and collectively means the ABL Collateral Agent and the New First Lien Collateral Agent.
     “ Common Collateral ” means Receivables Collateral other than Separate Receivables Collateral.
     “ Comparable New First Lien Security Document ” shall mean, in relation to any Common Collateral subject to any Lien created under any ABL Document, those New First Lien Security Documents that create a Lien on the same Common Collateral (but only to the extent relating to such Common Collateral), granted by the same Grantor.
     “ Control ” shall mean the possession, directly or indirectly, of the power (a) to vote 50% or more of the securities having ordinary voting power for the election of directors (or any similar governing body) of a Person, or (b) to direct or cause the direction of the management or

-4-


 

policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. The terms “ Controlling ” and “ Controlled ” have meanings correlative thereto.
     “ Credit Documents ” shall mean the ABL Documents and the New First Lien Documents.
     “ Deposit Account ” shall have the meaning set forth in the UCC.
     “ Designated Non-Receivables Accounts ” means Deposit Accounts containing exclusively cash consisting of proceeds from the sale of Non-Receivables Collateral.
     “ DIP Financing ” shall have the meaning set forth in Section 6.1(a).
     “ Discharge of ABL Obligations ” shall mean, except to the extent otherwise provided in Section 5.3, payment in full in cash (except for contingent indemnities and cost and reimbursement obligations to the extent no claim has been made) of all ABL Obligations and, with respect to letters of credit or letter of credit guaranties outstanding under the ABL Documents, delivery of cash collateral or backstop letters of credit in respect thereof in a manner consistent with the ABL Credit Agreement, in each case after or concurrently with the termination of all commitments to extend credit thereunder, and the termination of all commitments of ABL Secured Parties under ABL Documents; provided that the Discharge of ABL Obligations shall not be deemed to have occurred if such payments are made with the proceeds of other ABL Obligations that constitute an exchange or replacement for or a Refinancing of such ABL Obligations (unless in connection with such exchange, replacement or Refinancing all the ABL Obligations are repaid in full in cash (and the other conditions set forth in this definition prior to the proviso are satisfied) with the proceeds of a Permitted Receivables Financing (as defined in the ABL Credit Agreement), in which case a Discharge of ABL Obligations shall be deemed to have occurred). In the event the ABL Obligations are modified and the ABL Obligations are paid over time or otherwise modified pursuant to Section 1129 of the Bankruptcy Code, the ABL Obligations shall be deemed to be discharged when the final payment is made, in cash, in respect of such indebtedness and any obligations pursuant to such new indebtedness shall have been satisfied.
     “ Disposition ” has the meaning set forth in Section 2.4(b).
     “ Enforcement Notice ” shall mean a written notice delivered by the New First Lien Collateral Agent to the ABL Collateral Agent announcing the commencement of an Exercise of Secured Creditor Remedies.
     “ Exercise Any Secured Creditor Remedies ” or “ Exercise of Secured Creditor Remedies ” shall mean, except as otherwise provided in the final sentence of this definition:
     (a) the taking by any Secured Party of any action to enforce or realize upon any Lien on Common Collateral, including the institution of any foreclosure proceedings or the noticing of any public or private sale pursuant to Article 9 of the Uniform Commercial Code;

-5-


 

     (b) the exercise by any Secured Party of any right or remedy provided to a secured creditor on account of a Lien on Common Collateral under any of the Credit Documents, under applicable law, in an Insolvency Proceeding or otherwise, including the election to retain any of the Common Collateral in satisfaction of a Lien;
     (c) the taking of any action by any Secured Party or the exercise of any right or remedy by any Secured Party in respect of the collection on, set off against, marshaling of, injunction respecting or foreclosure on the Common Collateral or the Proceeds thereof;
     (d) the appointment on the application of a Secured Party, of a receiver, receiver and manager or interim receiver of all or part of the Common Collateral;
     (e) the sale, lease, license, or other disposition of all or any portion of the Common Collateral by private or public sale conducted by a Secured Party or any other means at the direction of a Secured Party permissible under applicable law; or
     (f) the exercise of any other right of a secured creditor under Part 6 of Article 9 of the Uniform Commercial Code in respect of Common Collateral.
For the avoidance of doubt, none of the following shall be deemed to constitute an Exercise of Secured Creditor Remedies: (i) the filing a proof of claim in bankruptcy court or seeking adequate protection, (ii) the exercise of rights by the ABL Collateral Agent upon the occurrence of a Cash Dominion Event (as defined in the ABL Credit Agreement), including, without limitation, the notification of account debtors, depository institutions or any other Person to deliver proceeds of Receivables Collateral to the ABL Collateral Agent (unless and until the Lenders under the ABL Credit Agreement cease to extend credit to the Borrowers thereunder, in which event an Exercise of Secured Creditor Remedies shall be deemed to have occurred), (iii) the consent by a Secured Party to a sale or other disposition by any Grantor of any of its assets or properties, (iv) the acceleration of all or a portion of the ABL Obligations or any New First Lien Obligations, (v) the reduction of the borrowing base, advance rates or sub-limits by the Administrative Agent under the ABL Credit Agreement, the ABL Collateral Agent and the Lenders under the ABL Credit Agreement, (vi) the imposition of reserves by the ABL Collateral Agent, (vii) an account ceasing to be an “eligible account” under the ABL Credit Agreement or (viii) any action taken by any ABL Secured Party in respect of Separate Receivables Collateral. For the avoidance of doubt, the actions permitted by Sections 2.3(b), 2.4(a) and 3.1 shall not be deemed to be an Exercise of Secured Creditor Remedies.
     “ Existing First Lien Indentures ” shall mean collectively, (i) that certain Indenture, dated as of April 22, 2009, among the Company, the guarantors named on Schedule I thereto, Law Debenture Trust Company of New York, as trustee, and Deutsche Bank Trust Company Americas, as paying agent, registrar and transfer agent, (ii) that certain Indenture dated as of August 11, 2009 among the Company, the guarantors named on Schedule I thereto, Law Debenture Trust Company of New York, as trustee, and Deutsche Bank Trust Company Americas, as paying agent, registrar and transfer agent, and (iii) that certain Indenture dated as of March 10, 2010 among the Company, the guarantors named on Schedule I thereto, Law Debenture Trust

-6-


 

Company of New York, as trustee, and Deutsche Bank Trust Company Americas, as paying agent, registrar and transfer agent.
     “ Governmental Authority ” shall mean any nation or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
     “ Grantors ” shall mean the Company and each Subsidiary that has executed and delivered an ABL Security Document or a New First Lien Security Document.
     “ Indebtedness ” shall have the meaning provided in the ABL Credit Agreement and the New First Lien Agreement as in effect on the date hereof.
     “ Insolvency Proceeding ” shall mean:
     (1) any case commenced by or against the Company or any other Grantor under any Bankruptcy Law, any other proceeding for the reorganization, recapitalization or adjustment or marshaling of the assets or liabilities of the Company or any other Grantor, any receivership or assignment for the benefit of creditors relating to the Company or any other Grantor or any similar case or proceeding relative to the Company or any other Grantor or its creditors, as such, in each case whether or not voluntary;
     (2) any liquidation, dissolution, marshaling of assets or liabilities or other winding up of or relating to the Company or any other Grantor, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency; or
     (3) any other proceeding of any type or nature in which substantially all claims of creditors of the Company or any other Grantor are determined and any payment or distribution is or may be made on account of such claims.
     “ Lien ” shall mean any mortgage, pledge, security interest, hypothecation, assignment, lien (statutory or other) or similar encumbrance (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement or any lease in the nature thereof).
     “ Lien Priority ” shall mean with respect to any Lien of the ABL Collateral Agent, the ABL Secured Parties, the New First Lien Collateral Agent or the New First Lien Secured Parties on the Common Collateral, the order of priority of such Lien as specified in Section 2.1.
     “ New First Lien Agreement ” shall have the meaning set forth in the recitals.
     “ New First Lien Collateral Agent ” shall mean (i) so long as obligations are outstanding under the New First Lien Agreement, Bank of America, N.A., in its capacity as collateral agent for the noteholders and other secured parties under the New First Lien Agreement and the other security documents thereunder, and (ii) at any time thereafter, such agent or trustee as is designated “New First Lien Collateral Agent” by the New First Lien Secured Parties holding a majority in principal amount of the New First Lien Obligations then outstanding or pursuant to such

-7-


 

other arrangements as agreed to among the holders of the New First Lien Obligations; it being understood that as of the date of this Agreement, Bank of America, N.A. shall be such New First Lien Collateral Agent.
     “ New First Lien Documents ” means the indenture, credit documents and security documents governing the New First Lien Obligations, including, without limitation, the New First Lien Agreement and the New First Lien Security Documents.
     “ New First Lien Enforcement Date ” means the date which is 180 days after the occurrence of both (i) a continuing Event of Default (under and as defined in the New First Lien Agreement) and (ii) the ABL Collateral Agent’s receipt of an Enforcement Notice from the New First Lien Collateral Agent; provided that the New First Lien Enforcement Date shall be stayed and shall not occur (or be deemed to have occurred) (A) at any time the ABL Collateral Agent or the ABL Secured Parties have commenced and are diligently pursuing enforcement action against the Common Collateral, (B) at any time that any Grantor is then a debtor under or with respect to (or otherwise subject to) any Insolvency Proceeding, or (C) if the Event of Default under the New First Lien Agreement is waived or cured in accordance with the terms of the New First Lien Agreement.
     “ New First Lien Obligations ” shall mean Obligations under the New First Lien Documents and Obligations with respect to other Indebtedness permitted to be incurred under the New First Lien Documents and the ABL Credit Agreement which is by its terms intended to be secured equally and ratably with the Obligations under the New First Lien Documents or on a basis junior to the Liens securing the New First Lien Obligations ( provided such Lien is permitted to be incurred under the New First Lien Documents and the ABL Credit Agreement); provided that the holders of such Indebtedness or their New First Lien Representative is a party to the New First Lien Security Documents in accordance with the terms thereof and has appointed the New First Lien Collateral Agent as collateral agent for such holders of New First Lien Obligations with respect to all or a portion of the Common Collateral.
     “ New First Lien Representative ” shall mean any duly authorized representative of any holders of New First Lien Obligations, which representative is a party to the New First Lien Documents.
     “ New First Lien Secured Parties ” shall mean (i) so long as the New First Lien Obligations are outstanding, the New First Lien Trustee and the holders of the New First Lien Obligations (including any New First Lien Obligations subsequently issued under and in compliance with the New First Lien Agreement), (ii) the New First Lien Collateral Agent, (iii) the holders from time to time of any other New First Lien Obligations and (iv) each New First Lien Representative.
     “ New First Lien Security Documents ” shall mean (a) so long as the New First Lien Obligations are outstanding, the Security Documents (as defined in the New First Lien Agreement) and (b) thereafter, any agreement, document or instrument pursuant to which a Lien is granted or purported to be granted securing New First Lien Obligations or under which rights or remedies with respect to such Liens are governed, which in each case may include intercreditor and/or subordination agreements or arrangements among various New First Lien Secured Parties.

-8-


 

     “ 1993 Indenture ” shall mean the Indenture dated as of December 16, 1993 between the Company and First National Bank of Chicago, as trustee, as amended, and as may be further amended, supplemented or modified from time to time.
     “ 1993 Indenture Restricted Subsidiary ” shall mean any Subsidiary that on the date hereof constitutes a Restricted Subsidiary under (and as defined in) the 1993 Indenture, as in effect on the date hereof.
     “ Non-Receivables Collateral ” shall mean all “Collateral” as defined in any New First Lien Security Document, but excluding all Receivables Collateral.
     “ Obligations ” means any principal, interest (including any interest accruing subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable state, federal or foreign law), premium, penalties, fees, indemnifications, reimbursements (including reimbursement obligations with respect to letters of credit and banker’s acceptances), damages and other liabilities, and guarantees of payment of such principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable under the documentation governing any Indebtedness.
     “ Party ” shall mean the ABL Collateral Agent or the New First Lien Collateral Agent, and “ Parties ” shall mean collectively the ABL Collateral Agent and the New First Lien Collateral Agent.
     “ Person ” shall mean an individual, partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, Governmental Authority or other entity of whatever nature.
     “ Proceeds ” shall mean (a) all “proceeds,” as defined in Article 9 of the Uniform Commercial Code, with respect to the Common Collateral, and (b) whatever is recoverable or recovered when any Common Collateral is sold, exchanged, collected, or disposed of, whether voluntarily or involuntarily.
     “ Receivables Collateral ” means Collateral as defined in the ABL Security Agreement as in effect on the date hereof. Without expanding the foregoing, for the avoidance of doubt, neither European Collateral (as defined in the CF Credit Agreement) (whether in the form of accounts receivable or otherwise), Principal Properties (as defined in the New First Lien Agreement), any capital stock (or capital stock equivalents) pledged pursuant to any New First Lien Security Documents, Designated Non-Receivables Accounts nor Mortgaged Properties (as defined in the CF Credit Agreement) shall constitute Receivables Collateral.
     “ Refinance ” means, in respect of any indebtedness, to refinance, extend, renew, defease, amend, increase, modify, supplement, restructure, refund, replace or repay, or to issue other indebtedness or enter alternative financing arrangements, in exchange or replacement for such indebtedness, including by adding or replacing lenders, creditors, agents, borrowers and/or guarantors, and including in each case, but not limited to, after the original instrument giving rise to

-9-


 

such indebtedness has been terminated. “ Refinanced ” and “ Refinancing ” have correlative meanings.
     “ Second Lien Notes Indentures ” means the 2006 Indenture and the 2009 Indenture.
     “ Secured Parties ” shall mean the ABL Secured Parties and the New First Lien Secured Parties.
     “ Securities Account ” has the meaning set forth in the UCC.
     “ Separate Receivables Collateral ” means Receivables Collateral owned or held by an ABL Entity and Proceeds (as defined in the ABL Security Agreement) thereof.
     “ Shared Receivables Collateral ” means Common Collateral.
     “ Subsidiary ” shall mean with respect to any Person (the “ parent ”) at any date, any corporation, limited liability company, partnership, association or other entity (a) of which Capital Stock representing more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, Controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.
     “ 2006 Indenture ” means the Indenture, dated as of November 17, 2006, among the Company, the guarantors identified therein and The Bank of New York Mellon, as trustee, as amended, restated, supplemented, waived, Refinanced or otherwise modified from time to time.
     “ 2009 Indenture ” means the Indenture, dated as of February 19, 2009, among the Company, the guarantors identified therein, The Bank of New York Trust Company, N.A., as trustee, and The Bank of New York Mellon, as collateral agent, as amended, restated, supplemented, waived, Refinanced or otherwise modified from time to time.
     “ Uniform Commercial Code ” or “ UCC ” shall mean the Uniform Commercial Code as the same may, from time to time, be in effect in the State of New York; provided that to the extent that the Uniform Commercial Code is used to define any term in any security document and such term is defined differently in differing Articles of the Uniform Commercial Code, the definition of such term contained in Article 9 shall govern; provided , further , that in the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection, publication or priority of, or remedies with respect to, Liens of any Party is governed by the Uniform Commercial Code or foreign personal property security laws as enacted and in effect in a jurisdiction other than the State of New York, the term “Uniform Commercial Code” will mean the Uniform Commercial Code or such foreign personal property security laws as enacted and in effect in such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority or remedies and for purposes of definitions related to such provisions.
      Section 1.2 Rules of Construction . Unless the context of this Agreement clearly requires otherwise, references to the plural include the singular, references to the singular include the plural, the term “including” is not limiting and shall be deemed to be followed by the phrase

-10-


 

“without limitation,” and the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or.” The words “hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. Article, section, subsection, clause, schedule and exhibit references herein are to this Agreement unless otherwise specified. Any reference in this Agreement to any agreement, instrument, or document shall include all alterations, amendments, changes, restatements, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements thereto and thereof, as applicable (subject to any restrictions on such alterations, amendments, changes, restatements, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements set forth herein). Any reference herein to any Person shall be construed to include such Person’s successors and assigns. Any reference herein to the repayment in full of an obligation shall mean the payment in full in cash of such obligation, or in such other manner as may be approved in writing by the requisite holders or representatives in respect of such obligation, or in such other manner as may be approved by the requisite holders or representatives in respect of such obligation.
ARTICLE 2
LIEN PRIORITY
      Section 2.1 Priority of Liens .
     (a) Notwithstanding (i) the date, time, method, manner, or order of grant, attachment, or perfection of any Liens granted to the ABL Collateral Agent or the ABL Secured Parties in respect of all or any portion of the Common Collateral or of any Liens granted to any New First Lien Collateral Agent or any New First Lien Secured Parties in respect of all or any portion of the Common Collateral, and regardless of how any such Lien was acquired (whether by grant, statute, operation of law, subrogation or otherwise), (ii) the order or time of filing or recordation of any document or instrument for perfecting the Liens in favor of the ABL Collateral Agent or any New First Lien Collateral Agent (or the ABL Secured Parties or any of the New First Lien Secured Parties) on any Common Collateral, (iii) any provision of the Uniform Commercial Code, the Bankruptcy Code or any other applicable law, or of any of the ABL Documents or any of the New First Lien Documents, or (iv) whether the ABL Collateral Agent or any New First Lien Collateral Agent, in each case, either directly or through agents, holds possession of, or has control over, all or any part of the Common Collateral, the ABL Collateral Agent, on behalf of itself and the ABL Secured Parties, and the New First Lien Collateral Agent, on behalf of itself and the New First Lien Secured Parties, hereby agree that:
     (1) any Lien in respect of all or any portion of the Common Collateral now or hereafter held by or on behalf of the New First Lien Collateral Agent or the New First Lien Secured Parties that secures all or any portion of the New First Lien Obligations shall in all respects be junior and subordinate to all Liens granted to the ABL Collateral Agent and the ABL Secured Parties on the Common Collateral; and
     (2) any Lien in respect of all or any portion of the Common Collateral now or hereafter held by or on behalf of the ABL Collateral Agent or any ABL Secured Party that secures all or any portion of the ABL Obligations shall in all respects be senior and

-11-


 

prior to all Liens granted to the New First Lien Collateral Agent or the New First Lien Secured Parties on the Common Collateral.
The New First Lien Collateral Agent, for and on behalf of itself and each New First Lien Secured Party, expressly agrees that any Lien purported to be granted on any Common Collateral as security for the ABL Obligations shall be deemed to be and shall be deemed to remain senior in all respects and prior to all Liens on the Common Collateral securing any New First Lien Obligations for all purposes regardless of whether the Lien purported to be granted is found to be improperly granted, improperly perfected, preferential, a fraudulent conveyance or legally or otherwise deficient in any manner.
          (b) The ABL Collateral Agent, for and on behalf of itself and the ABL Secured Parties, acknowledges and agrees that, concurrently herewith, the New First Lien Collateral Agent, for the benefit of itself and the New First Lien Secured Parties, has been granted Liens upon all of the Common Collateral in which the ABL Collateral Agent has been granted Liens and the ABL Collateral Agent hereby consents thereto. The subordination of Liens by the New First Lien Collateral Agent in favor of the ABL Collateral Agent as set forth herein shall not be deemed to subordinate the respective Liens of the New First Lien Collateral Agent or the New First Lien Secured Parties to Liens securing any other Obligations other than the ABL Obligations (subject to the First Lien Intercreditor Agreement and the Additional General Intercreditor Agreement).
      Section 2.2 Waiver of Right to Contest Liens .
          (a) The New First Lien Collateral Agent, for and on behalf of itself and the New First Lien Secured Parties, agrees that it shall not (and hereby waives any right to) take any action to contest or challenge (or assist or support any other Person in contesting or challenging), directly or indirectly, whether or not in any proceeding (including in any Insolvency Proceeding), the validity, priority, enforceability, or perfection of the Liens of the ABL Collateral Agent and the ABL Secured Parties in respect of Receivables Collateral or the provisions of this Agreement. Except to the extent expressly set forth in this Agreement, the New First Lien Collateral Agent, for itself and on behalf of the New First Lien Secured Parties, agrees that it will not take any action that would interfere with any Exercise of Secured Creditor Remedies undertaken by the ABL Collateral Agent or any ABL Secured Party under the ABL Documents with respect to the Common Collateral. Except to the extent expressly set forth in this Agreement, the New First Lien Collateral Agent, for itself and on behalf of the New First Lien Secured Parties, hereby waives any and all rights it may have as a junior lien creditor or otherwise to contest, protest, object to, or interfere with the manner in which the ABL Collateral Agent or any ABL Secured Party seeks to enforce its Liens in any Common Collateral.
          (b) The ABL Collateral Agent, for and on behalf of itself and the ABL Secured Parties, agrees that it and they shall not (and hereby waives any right to) take any action to contest or challenge (or assist or support any other Person in contesting or challenging), directly or indirectly, whether or not in any proceeding (including in any Insolvency Proceeding), the validity, priority, enforceability, or perfection of the respective Liens of the New First Lien Collateral Agent or the New First Lien Secured Parties in respect of the Common Collateral or the provisions of this Agreement.

-12-


 

      Section 2.3 Remedies Standstill .
          (a) The New First Lien Collateral Agent, on behalf of itself and the New First Lien Secured Parties, agrees that, from the date hereof until the date upon which the Discharge of ABL Obligations shall have occurred, neither the New First Lien Collateral Agent nor any New First Lien Secured Party will Exercise Any Secured Creditor Remedies with respect to any Common Collateral without the written consent of the ABL Collateral Agent, and will not take, receive or accept any Proceeds of Common Collateral, it being understood and agreed that the temporary deposit of Proceeds of Common Collateral in a Deposit Account controlled by the New First Lien Collateral Agent shall not constitute a breach of this Agreement so long as such Proceeds are promptly remitted to the ABL Collateral Agent; provided that, subject to Section 4.1(b) and the provisions of the First Lien Intercreditor Agreement, upon the occurrence of the New First Lien Enforcement Date, the New First Lien Collateral Agent acting on behalf of itself and the New First Lien Secured Parties may exercise such remedies without such prior written consent of the other Collateral Agent. Subject to the First Lien Intercreditor Agreement, from and after the date upon which the Discharge of ABL Obligations shall have occurred (or prior thereto upon the occurrence of the New First Lien Enforcement Date), the New First Lien Collateral Agent or any New First Lien Secured Party may Exercise Any Secured Creditor Remedies under the New First Lien Documents or applicable law as to any Common Collateral.
          (b) Notwithstanding the provisions of Section 2.3(a) or any other provision of this Agreement but subject to the First Lien Intercreditor Agreement, nothing contained herein shall be construed to prevent any Collateral Agent or any Secured Party from (i) filing a claim or statement of interest with respect to the ABL Obligations or New First Lien Obligations owed to it in any Insolvency Proceeding commenced by or against any Grantor, (ii) taking any action (not adverse to the priority status of the Liens of the other Collateral Agent or other Secured Parties on the Common Collateral in which such other Collateral Agent or other Secured Parties has a priority Lien or the rights of the other Collateral Agent or any of the other Secured Parties to exercise remedies in respect thereof) in order to create, perfect, preserve or protect (but not enforce) its Lien on any Common Collateral, (iii) filing any necessary or responsive pleadings in opposition to any motion, adversary proceeding or other pleading filed by any Person objecting to or otherwise seeking disallowance of the claim or Lien of such Collateral Agent or Secured Party, (iv) filing any pleadings, objections, motions, or agreements which assert rights available to unsecured creditors of the Grantors arising under any Insolvency Proceeding or applicable non-bankruptcy law, (vi) voting on any plan of reorganization or file any proof of claim in any Insolvency Proceeding of any Grantor, or (vii) objecting to the proposed retention of collateral by any other Collateral Agent or any other Secured Party in full or partial satisfaction of any ABL Obligations or New First Lien Obligations due to such other Collateral Agent or Secured Party, in each case (i) through (vii) above to the extent not inconsistent with, or could not result in a resolution inconsistent with, the terms of this Agreement.
          (c) Subject to Section 2.3(b), (i) the New First Lien Collateral Agent, for itself and on behalf of the New First Lien Secured Parties, agrees that neither it nor any such New First Lien Secured Party will take any action that would hinder any exercise of remedies undertaken by the ABL Collateral Agent or the ABL Secured Parties with respect to the Receivables Collateral, including any sale, lease, exchange, transfer or other disposition of Receivables Collateral,

-13-


 

whether by foreclosure or otherwise, and (ii) the New First Lien Collateral Agent, for itself and on behalf of the New First Lien Secured Parties, hereby waives any and all rights it or any such New First Lien Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the ABL Collateral Agent or the ABL Secured Parties seek to enforce or collect the ABL Obligations or the Liens granted in any of the Receivables Collateral, regardless of whether any action or failure to act by or on behalf of the ABL Collateral Agent or ABL Secured Parties is adverse to the interests of the New First Lien Secured Parties.
          (d) The New First Lien Collateral Agent, for itself and on behalf of the New First Lien Secured Parties, hereby acknowledges and agrees that no covenant, agreement or restriction contained in any New First Lien Document shall be deemed to restrict in any way the rights and remedies of the ABL Collateral Agent or the ABL Secured Parties with respect to the Receivables Collateral as set forth in this Agreement and the ABL Documents.
          (e) Subject to Section 2.3(b), the New First Lien Collateral Agent, for itself and on behalf of the New First Lien Secured Parties, agrees that, unless and until the Discharge of ABL Obligations has occurred, it will not commence, or join with any Person (other than the ABL Secured Parties and the ABL Collateral Agent upon the request thereof) in commencing, any enforcement, collection, execution, levy or foreclosure action or proceeding with respect to any Lien held by it in the Common Collateral.
          (f) Notwithstanding the foregoing, clauses (c), (d) and (e) of this Section 2.3 shall not apply from and after the occurrence of the New First Lien Enforcement Date, subject to the First Lien Intercreditor Agreement.
      Section 2.4 Exercise of Rights .
          (a) No Other Restrictions . Except as otherwise expressly set forth in Section 2.1(a), Section 2.2(a), Section 2.3, Section 3.5 and Article 6 of this Agreement and subject to the First Lien Intercreditor Agreement, the New First Lien Collateral Agent and each New First Lien Secured Party may exercise rights and remedies as an unsecured creditor against the Company or any Subsidiary that has guaranteed the New First Lien Obligations in accordance with the terms of the New First Lien Documents and applicable law. Nothing in this Agreement shall prohibit the receipt by the New First Lien Collateral Agent or any New First Lien Secured Party of the required payments of interest and principal so long as such receipt is not the direct or indirect result of the exercise by the New First Lien Collateral Agent or any New First Lien Secured Party of rights or remedies as a secured creditor in respect of Common Collateral or enforcement in contravention of this Agreement of any Lien in respect of New First Lien Obligations held by any of them or in any Insolvency Proceeding. In the event the New First Lien Collateral Agent or any New First Lien Secured Party becomes a judgment lien creditor or other secured creditor in respect of Common Collateral as a result of its enforcement of its rights as an unsecured creditor in respect of New First Lien Obligations or otherwise, such judgment or other lien shall be subordinated to the Liens securing ABL Obligations on the same basis as the other Liens securing the New First Lien Obligations are so subordinated to such Liens securing ABL Obligations under this Agreement. Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the ABL Collateral Agent or the ABL Secured Parties may have with respect to the Receivables Collateral. Furthermore, subject to Section 3.3 hereof, for the

-14-


 

avoidance of doubt, nothing in this Agreement shall restrict any right any New First Lien Secured Party may have (secured or otherwise) in any property or asset of any Grantor that does not constitute Common Collateral.
          (b) Release of Liens . If at any time any Grantor or any ABL Secured Party delivers notice to the New First Lien Collateral Agent with respect to any specified Common Collateral that:
     (A) such specified Common Collateral is sold, transferred or otherwise disposed of (a “ Disposition ”) by the owner of such Common Collateral in a transaction permitted under the ABL Credit Agreement and the New First Lien Agreement; or
     (B) the ABL Secured Parties are releasing or have released their Liens on such Common Collateral in connection with a Disposition in connection with an Exercise of Secured Creditor Remedies with respect to such Common Collateral,
then the Liens upon such Common Collateral securing New First Lien Obligations will automatically be released and discharged as and when, but only to the extent, such Liens on such Common Collateral securing ABL Obligations are released and discharged ( provided that in the case of clause (B) of this Section 2.4(b), the Liens on any Common Collateral disposed of in connection with an Exercise of Secured Creditor Remedies shall be automatically released but any proceeds thereof not applied to repay ABL Obligations shall be subject to the respective Liens securing New First Lien Obligations and shall be applied pursuant to Section 4.1). Upon delivery to the New First Lien Collateral Agent of a notice from the ABL Collateral Agent stating that any such release of Liens securing or supporting the ABL Obligations has become effective (or shall become effective upon the New First Lien Collateral Agent’s receipt of such notice), the New First Lien Collateral Agent shall, at the Company’s expense, promptly execute and deliver such instruments, releases, termination statements or other documents confirming such release on customary terms, which instruments, releases and termination statements shall be substantially identical to the comparable instruments, releases and termination statements executed by the ABL Collateral Agent in connection with such release. The New First Lien Collateral Agent hereby appoints the ABL Collateral Agent and any officer or duly authorized person of the ABL Collateral Agent, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of the New First Lien Collateral Agent and in the name of the New First Lien Collateral Agent or in the ABL Collateral Agent’s own name, from time to time, in the ABL Collateral Agent’s sole discretion, for the purposes of carrying out the terms of this paragraph, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be necessary or desirable to accomplish the purposes of this paragraph, including any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable).
      Section 2.5 No New Liens . Until the date upon which the Discharge of ABL Obligations shall have occurred, the parties hereto agree that no New First Lien Secured Party shall acquire or hold any Lien on any accounts receivable of any Grantor, the proceeds thereof or any deposit or other accounts of any Grantor in which accounts receivable or proceeds thereof are held or deposited, in each case of the type that would constitute Receivables Collateral as

-15-


 

described in the definition thereof (but for the avoidance of doubt, excluding any European Collateral (as defined in the CF Credit Agreement), whether in the form of accounts receivable or otherwise), securing any New First Lien Obligation, if such accounts and proceeds are not also subject to the Lien of the ABL Collateral Agent under the ABL Documents (and subject to the Lien Priorities contemplated herein). If any New First Lien Secured Party shall (nonetheless and in breach hereof) acquire or hold any Lien on any such accounts or proceeds securing any New First Lien Obligation, which accounts and proceeds are not also subject to the Lien of the ABL Collateral Agent under the ABL Documents, subject to the Lien Priority set forth herein, then the New First Lien Collateral Agent (or the applicable New First Lien Secured Party) shall, without the need for any further consent of any other New First Lien Secured Party and notwithstanding anything to the contrary in any other New First Lien Document, be deemed to also hold and have held such Lien as agent or bailee for the benefit of the ABL Collateral Agent as security for the ABL Obligations (subject to the Lien Priority and other terms hereof) and shall use its best efforts to promptly notify the ABL Collateral Agent in writing of the existence of such Lien.
      Section 2.6 Waiver of Marshaling . Until the Discharge of the ABL Obligations, the New First Lien Collateral Agent, on behalf of itself and the New First Lien Secured Parties, agrees not to assert and hereby waives, to the fullest extent permitted by law, any right to demand, request, plead or otherwise assert or otherwise claim the benefit of, any marshaling, appraisal, valuation or other similar right that may otherwise be available under applicable law with respect to the Common Collateral or any other similar rights a junior secured creditor may have under applicable law.
ARTICLE 3
ACTIONS OF THE PARTIES
      Section 3.1 Certain Actions Permitted . The New First Lien Collateral Agent and the ABL Collateral Agent may make such demands or file such claims in respect of the New First Lien Obligations or the ABL Obligations, as applicable, as are necessary to prevent the waiver or bar of such claims under applicable statutes of limitations or other statutes, court orders, or rules of procedure at any time. Except as provided in Section 5.2, nothing in this Agreement shall prohibit the receipt by the New First Lien Collateral Agent or the New First Lien Secured Parties of the required payments of interest, principal and other amounts owed in respect of the New First Lien Obligations so long as such receipt is not the direct or indirect result of the exercise by the New First Lien Collateral Agent or the New First Lien Secured Parties of rights or remedies as a secured creditor (including set-off with respect to the Receivables Collateral) or enforcement in contravention of this Agreement of any Lien held by any of them.
      Section 3.2 Agent for Perfection . The New First Lien Collateral Agent appoints the ABL Collateral Agent, and the ABL Collateral Agent expressly accepts such appointment, to act as agent of the New First Lien Collateral Agent and the New First Lien Secured Parties under each control agreement with respect to all ABL Controlled Accounts for the purpose of perfecting the respective security interests granted under the New First Lien Security Documents. None of the ABL Collateral Agent, any ABL Secured Party, the New First Lien Collateral Agent or any New First Lien Secured Party, as applicable, shall have any obligation whatsoever to the others to assure that the Common Collateral is genuine or owned by the Company, any Grantor

-16-


 

or any other Person or to preserve rights or benefits of any Person. The duties or responsibilities of the ABL Collateral Agent under this Section 3.2 are and shall be limited solely to holding or maintaining control of the Common Collateral as agent for the New First Lien Secured Parties for purposes of perfecting the respective Liens held by the New First Lien Secured Parties. The ABL Collateral Agent is not and shall not be deemed to be a fiduciary of any kind for the New First Lien Collateral Agent or the New First Lien Secured Parties, or any other Person. The New First Lien Collateral Agent is not nor shall it be deemed to be a fiduciary of any kind for any other Collateral Agent or Secured Party, or any other Person. Prior to the Discharge of ABL Obligations, in the event that the New First Lien Collateral Agent or any New First Lien Secured Party receives any Common Collateral or Proceeds of Common Collateral in violation of the terms of this Agreement, then the New First Lien Collateral Agent or such New First Lien Secured Party, as the case may be, shall promptly pay over such Proceeds or Common Collateral to the ABL Collateral Agent in the same form as received with any necessary endorsements, for application in accordance with the provisions of Section 4.1 of this Agreement.
      Section 3.3 Inspection and Access Rights . Without limiting any rights the ABL Collateral Agent or any other ABL Secured Party may otherwise have under applicable law or by agreement, in the event of any liquidation of any Receivables Collateral (or any other Exercise of Secured Creditor Remedies by the ABL Collateral Agent) and whether or not the New First Lien Collateral Agent or any New First Lien Secured Party has commenced and is continuing to Exercise Any Secured Creditor Remedies of any New First Lien Secured Party, the ABL Collateral Agent shall have the right (a) during normal business hours on any business day, to access Receivables Collateral that is stored or located in or on Non-Receivables Collateral, and (b) shall have the right to reasonably use the Non-Receivables Collateral (including, without limitation, equipment, computers, software, intellectual property, real property and books and records) in order to inspect, copy or download information stored on, take actions to perfect its Lien on, or otherwise deal with the Receivables Collateral, in each case without notice to, the involvement of or interference by the New First Lien Collateral Agent or any New First Lien Secured Party and without liability to any New First Lien Secured Party; provided , however , if the New First Lien Collateral Agent takes actual possession of any Non-Receivables Collateral in contemplation of a sale of such Non-Receivables Collateral or is otherwise exercising a remedy with respect to Non-Receivables Collateral, the New First Lien Collateral Agent shall give the ABL Collateral Agent reasonable opportunity (of reasonable duration and with reasonable advance notice) prior to the New First Lien Collateral Agent’s sale of any such Non-Receivables Collateral to access Receivables Collateral as contemplated in (a) and (b) above. For the avoidance of doubt, this Section 3.3 governs the rights of access and inspection as between the ABL Secured Parties on the one hand and the New First Lien Secured Parties on the other (and not as between the Secured Parties and the Grantors, which rights are set forth in and governed by the applicable Credit Documents and are not affected by this Section 3.3).
      Section 3.4 Insurance . Proceeds of Common Collateral include insurance proceeds and, therefore, the Lien Priority shall govern the ultimate disposition of insurance proceeds to the extent such insurance insures Receivables Collateral. Prior to the Discharge of ABL Obligations, the ABL Collateral Agent shall have the sole and exclusive right, as against the New First Lien Collateral Agent, to the extent permitted by the ABL Documents and subject to the rights of the Grantors thereunder, to adjust settlement of insurance claims to the extent such insurance

-17-


 

insures Receivables Collateral in the event of any covered loss, theft or destruction of Receivables Collateral. Prior to the Discharge of ABL Obligations, all proceeds of such insurance with respect to Receivables Collateral shall be remitted for application in accordance with Section 4.1 hereof.
      Section 3.5 Exercise of Remedies—Set-off and Tracing of and Priorities in Proceeds . The New First Lien Collateral Agent, for itself and on behalf of the New First Lien Secured Parties, acknowledges and agrees that, to the extent the New First Lien Collateral Agent or the New First Lien Secured Parties exercise their rights of set-off against any Grantor’s Deposit Accounts or Securities Accounts to the extent constituting or containing Receivables Collateral or proceeds thereof, the amount of such set-off shall be deemed to be Receivables Collateral to be held and distributed pursuant to Section 4.1. In addition, unless and until the Discharge of ABL Obligations occurs, the New First Lien Collateral Agent and the New First Lien Secured Parties hereby consent to the application of cash or other proceeds of Receivables Collateral deposited under control agreements to the repayment of ABL Obligations pursuant to the ABL Documents.
ARTICLE 4
APPLICATION OF PROCEEDS
      Section 4.1 Application of Proceeds .
          (a) Revolving Nature of ABL Obligations . The New First Lien Collateral Agent, for and on behalf of itself and the New First Lien Secured Parties, expressly acknowledges and agrees that (i) the ABL Credit Agreement includes a revolving commitment, that in the ordinary course of business the ABL Collateral Agent and the ABL Secured Parties will apply payments and make advances thereunder, and that no application of any Receivables Collateral or the release of any Lien by the ABL Collateral Agent upon any portion of the Receivables Collateral in connection with a permitted disposition by the Grantors under the ABL Credit Agreement shall constitute an Exercise of Secured Creditor Remedies under this Agreement; (ii) subject to the limitations set forth in Section 4.10(b)(1) of the New First Lien Agreement (as in effect on the date hereof) or such additional amounts as consented to by the holders of New First Lien Obligations (in accordance with the provisions of the New First Lien Agreement), the amount of the ABL Obligations that may be outstanding at any time or from time to time may be increased or reduced and subsequently reborrowed, and that the terms of the ABL Obligations may be modified, extended or amended from time to time, and that the aggregate amount of the ABL Obligations may be increased, replaced or Refinanced, in each event, without notice to or consent by the New First Lien Secured Parties and without affecting the provisions hereof; and (iii) all Receivables Collateral received by the ABL Collateral Agent may be applied, reversed, reapplied, credited, or reborrowed, in whole or in part, to the ABL Obligations at any time. The Lien Priority shall not be altered or otherwise affected by any such amendment, modification, supplement, extension, repayment, reborrowing, increase, replacement, renewal, restatement or Refinancing of either the ABL Obligations or any New First Lien Obligations, or any portion thereof.
          (b) Application of Proceeds of Common Collateral . The ABL Collateral Agent and the New First Lien Collateral Agent hereby agree that all Common Collateral and all

-18-


 

Proceeds thereof, received by any of them in connection with any Exercise of Secured Creditor Remedies with respect to the Common Collateral shall be applied, first , to the payment of costs and expenses of the ABL Collateral Agent in connection with such Exercise of Secured Creditor Remedies, and second , to the payment of the ABL Obligations in accordance with the ABL Documents until the Discharge of ABL Obligations shall have occurred.
          (c) Payments Over . Any Common Collateral or Receivables Collateral or proceeds thereof received by the New First Lien Collateral Agent or any New First Lien Secured Party in connection with the exercise of any right or remedy (including set-off or credit bid) or in any Insolvency Proceeding relating to the Common Collateral not expressly permitted by this Agreement or prior to the Discharge of ABL Obligations shall be segregated and held in trust for the benefit of and forthwith paid over to the ABL Collateral Agent (and/or its designees) for the benefit of the ABL Secured Parties in the same form as received, with any necessary endorsements or as a court of competent jurisdiction may otherwise direct. The ABL Collateral Agent is hereby authorized to make any such endorsements as agent for the New First Lien Collateral Agent or the New First Lien Secured Parties. This authorization is coupled with an interest and is irrevocable.
          (d) Limited Obligation or Liability . In exercising remedies, whether as a secured creditor or otherwise, the ABL Collateral Agent shall have no obligation or liability to the New First Lien Collateral Agent or any New First Lien Secured Party regarding the adequacy of any proceeds realized on any collateral or for any action or omission, save and except solely for an action or omission that breaches the express obligations undertaken by each Party under the terms of this Agreement. Notwithstanding anything to the contrary herein contained, none of the Parties hereto waives any claim that it may have against a Secured Party on the grounds that and sale, transfer or other disposition by the Secured Party was not commercially reasonable in every respect as required by the UCC.
          (e) Turnover of Collateral After Discharge . Upon the Discharge of ABL Obligations, the ABL Collateral Agent shall (a) notify the New First Lien Collateral Agent in writing of the occurrence of such Discharge of ABL Obligations and (b) subject to the First Lien Intercreditor Agreement, at the Company’s expense, deliver to the New First Lien Collateral Agent or execute such documents as the New First Lien Collateral Agent may reasonably request (including assignment of control agreements with respect to ABL Controlled Accounts) in order to effect a transfer of control to the New First Lien Collateral Agent over any and all ABL Controlled Accounts in the same form as received with any necessary endorsements, or as a court of competent jurisdiction may otherwise direct; provided , however , that the ABL Collateral Agent shall not be required hereunder to deliver such instruments or documents relating to the control agreements with respect to ABL Collateral Agreements if, as of the time of such Discharge of ABL Obligations, no Event of Default (as defined in the New First Lien Agreement) has occurred or is then continuing. The ABL Collateral Agent shall presume that an Event of Default has occurred and is continuing under the New First Lien Agreement unless at the time of such Discharge of ABL Obligations the Company shall have delivered to each of the Collateral Agents an officer’s certificate executed by an Authorized Officer (as defined in the ABL Credit Agreement) certifying that no such Event of Default has occurred and is then continuing (and the New First Lien Collateral Agent shall have confirmed in writing to the ABL Collateral Agent

-19-


 

that it has no actual knowledge of the continuance of an Event of Default under the New First Lien Agreement), upon which the ABL Collateral Agent may conclusively rely (it being understood that neither such officer’s certificate nor Collateral Agent’s confirmation will effect whether or not such Event of Default has in fact occurred or is then in fact continuing).
      Section 4.2 Specific Performance . Each of the ABL Collateral Agent and the New First Lien Collateral Agent is hereby authorized to demand specific performance of this Agreement, whether or not the Company or any Grantor shall have complied with any of the provisions of any of the Credit Documents, at any time when the other Party shall have failed to comply with any of the provisions of this Agreement applicable to it. Each of the ABL Collateral Agent, for and on behalf of itself and the ABL Secured Parties, and the New First Lien Collateral Agent, for and on behalf of itself and the New First Lien Secured Parties, hereby irrevocably waives any defense based on the adequacy of a remedy at law that might be asserted as a bar to such remedy of specific performance.
ARTICLE 5
INTERCREDITOR ACKNOWLEDGMENTS AND WAIVERS
      Section 5.1 Notice of Acceptance and Other Waivers .
          (a) All ABL Obligations at any time made or incurred by the Company or any Grantor shall be deemed to have been made or incurred in reliance upon this Agreement, and the New First Lien Collateral Agent, on behalf of itself and the New First Lien Secured Parties, hereby waives notice of acceptance, or proof of reliance by the ABL Collateral Agent or any ABL Secured Party of this Agreement, and notice of the existence, increase, renewal, extension, accrual, creation, or non-payment of all or any part of the ABL Obligations. All New First Lien Obligations at any time made or incurred by the Company or any Grantor shall be deemed to have been made or incurred in reliance upon this Agreement, and the New First Lien Collateral Agent, on behalf of itself and the New First Lien Secured Parties, hereby waives notice of acceptance, or proof of reliance, by the New First Lien Collateral Agent or the New First Lien Secured Parties of this Agreement, and notice of the existence, increase, renewal, extension, accrual, creation, or non-payment of all or any part of the New First Lien Obligations.
          (b) None of the ABL Collateral Agent, any ABL Secured Party or any of their respective Affiliates, directors, officers, employees, or agents shall be liable for failure to demand, collect or realize upon any of the Common Collateral or any Proceeds thereof, or for any delay in doing so, or shall be under any obligation to sell or otherwise dispose of any Common Collateral or Proceeds thereof or to take any other action whatsoever with regard to the Common Collateral or any part or Proceeds thereof, except as specifically provided in this Agreement. If the ABL Collateral Agent or any ABL Secured Party honors (or fails to honor) a request by any Borrower under the ABL Credit Agreement for an extension of credit pursuant to any ABL Credit Agreement or any of the other ABL Documents, whether the ABL Collateral Agent or any ABL Secured Party has knowledge that the honoring of (or failure to honor) any such request would constitute a default under the terms of any New First Lien Document (but not a default under this Agreement) or an act, condition, or event that, with the giving of notice or the passage of time, or both, would constitute such a default, or if the ABL Collateral Agent or any ABL Secured Party otherwise should exercise any of its contractual rights or remedies under any ABL

-20-


 

Documents (subject to the express terms and conditions hereof), neither the ABL Collateral Agent nor any ABL Secured Party shall have any liability whatsoever to the New First Lien Collateral Agent or any New First Lien Secured Party as a result of such action, omission, or exercise (so long as any such exercise does not breach the express terms and provisions of this Agreement). The ABL Collateral Agent and the ABL Secured Parties shall be entitled to manage and supervise their loans and extensions of credit under any ABL Credit Agreement and any of the other ABL Documents as they may, in their sole discretion, deem appropriate, and may manage their loans and extensions of credit without regard to any rights or interests that the New First Lien Collateral Agent or any New First Lien Secured Party have in the Common Collateral, except as otherwise expressly set forth in this Agreement. The New First Lien Collateral Agent, on behalf of itself and the New First Lien Secured Parties, agrees that neither the ABL Collateral Agent nor any ABL Secured Party shall incur any liability as a result of a sale, lease, license, application, or other disposition of all or any portion of the Common Collateral or Proceeds thereof, pursuant to the ABL Documents, so long as such disposition is conducted in accordance with mandatory provisions of applicable law and does not breach the provisions of this Agreement. The New First Lien Collateral Agent and the New First Lien Secured Parties shall be entitled to manage and supervise their loans and extensions of credit under any New First Lien Document as they may, in their sole discretion, deem appropriate, and may manage their loans and extensions of credit without regard to any rights or interests of the ABL Collateral Agent or any ABL Secured Parties, except as otherwise expressly set forth in this Agreement.
      Section 5.2 Modifications to ABL Documents and New First Lien Documents .
          (a) In the event that the ABL Collateral Agent or the ABL Secured Parties enter into any amendment, waiver or consent in respect of or replace any of the ABL Security Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any ABL Security Document or changing in any manner the rights of the ABL Collateral Agent, the ABL Secured Parties, the Company or any other Grantor thereunder (including the release of any Liens in Common Collateral in accordance with Section 2.4(b)), then such amendment, waiver or consent, to the extent related to Common Collateral, shall apply automatically to any comparable provision (but only to the extent as such provision relates to Common Collateral) of each Comparable New First Lien Security Document without the consent of the New First Lien Collateral Agent or any New First Lien Secured Party and without any action by the New First Lien Collateral Agent, any New First Lien Secured Party, the Company or any other Grantor; provided , however , that such amendment, waiver or consent does not materially adversely affect the rights of the New First Lien Secured Parties or the interests of the New First Lien Secured Parties in the Common Collateral in a manner materially different from that affecting the rights of the ABL Secured Parties thereunder or therein. The ABL Collateral Agent shall give written notice of such amendment, waiver or consent (along with a copy thereof) to the New First Lien Collateral Agent; provided , however , that the failure to give such notice shall not affect the effectiveness of such amendment with respect to the provisions of any New First Lien Security Document as set forth in this Section 5.2(a). For the avoidance of doubt, no such amendment, modification or waiver shall apply to or otherwise affect (a) any Non-Receivables Collateral or (b) any document, agreement or instrument which neither grants nor purports to grant a Lien on, nor governs nor purports to govern any rights or remedies in respect of, Common Collateral.

-21-


 

          (b) So long as the Discharge of ABL Obligations has not occurred, without the prior written consent of the ABL Collateral Agent, the New First Lien Collateral Agent shall not consent to amend, supplement or otherwise modify any, or enter into any new, New First Lien Security Document relating to Common Collateral to the extent such amendment, supplement or modification, or the terms of such New First Lien Security Document, would be prohibited by or inconsistent with any of the terms of this Agreement. The New First Lien Collateral Agent agrees that each New First Lien Security Document relating to Common Collateral shall include the following language (or language to similar effect approved by the ABL Collateral Agent):
“Notwithstanding anything herein to the contrary, the liens and security interests granted to [the New First Lien Collateral Agent] pursuant to this Agreement and the exercise of any right or remedy by [the New First Lien Collateral Agent] hereunder are subject to the limitations and provisions of the Additional Receivables Intercreditor Agreement, dated as of [ ], 2011 (as amended, restated, supplemented or otherwise modified from time to time, the “ Intercreditor Agreement ”), among Bank of America, N.A., as ABL Collateral Agent, Bank of America, N.A., as New First Lien Collateral Agent, and certain other persons party or that may become party thereto from time to time, and consented to by HCA INC. and the Grantors identified therein. In the event of any conflict between the terms of the Intercreditor Agreement and the terms of this Agreement, the terms of the Intercreditor Agreement shall govern and control.”
     The ABL Collateral Agent hereby approves the language set forth in Section 8.15 of the Amended and Restated Security Agreement, dated as of March 2, 2009, among the Company, the grantors party thereto and Bank of America as collateral agent, for purposes of this Section 5.2(b). For purposes of this 5.2(b), the reference to the Additional Receivables Intercreditor Agreement, dated as of April 22, 2009, set forth on the cover page of the First Lien Intercreditor Agreement shall be deemed to be a reference to this Agreement.
          (c) No consent furnished by the ABL Collateral Agent or the New First Lien Collateral Agent pursuant to Section 5.2(a) or 5.2(b) hereof shall be deemed to constitute the modification or waiver of any provisions of the ABL Documents or any of the New First Lien Documents, each of which remain in full force and effect as written.
          (d) The ABL Obligations and the several New First Lien Obligations may be Refinanced, in whole or in part, in each case, without notice to, or the consent (except to the extent a consent is required to permit the refinancing transaction under any ABL Document or any New First Lien Document) of, the ABL Collateral Agent, the ABL Secured Parties, the New First Lien Collateral Agent or the New First Lien Secured Parties, as the case may be; provided such Refinancing does not affect the relative Lien Priorities provided for herein or directly alter the other provisions hereof to the extent relating to the relative rights, obligations and priorities of the ABL Secured Parties on the one hand and the New First Lien Secured Parties on the other.
      Section 5.3 Reinstatement and Continuation of Agreement . If the ABL Collateral Agent or any ABL Secured Party is required in any Insolvency Proceeding or otherwise to turn over or otherwise pay to the estate of the Company, any Grantor, or any other Person any

-22-


 

payment made in satisfaction of all or any portion of the ABL Obligations (an “ ABL Recovery ”), then the ABL Obligations shall be reinstated to the extent of such ABL Recovery. If this Agreement shall have been terminated prior to such ABL Recovery, this Agreement shall be reinstated in full force and effect in the event of such ABL Recovery, and such prior termination shall not diminish, release, discharge, impair, or otherwise affect the obligations of the Parties from such date of reinstatement. The ABL Collateral Agent shall use commercially reasonable efforts to give written notice to the New First Lien Collateral Agent of the occurrence of any such ABL Recovery ( provided that the failure to give such notice shall not affect the ABL Collateral Agent’s rights hereunder, except it being understood that the New First Lien Collateral Agent shall not be charged with knowledge of such ABL Recovery or required to take any actions based on such ABL Recovery until it has received such written notice of the occurrence of such ABL Recovery).
     All rights, interests, agreements, and obligations of the ABL Collateral Agent, the New First Lien Collateral Agent, the ABL Secured Parties and the New First Lien Secured Parties under this Agreement shall remain in full force and effect and shall continue irrespective of the commencement of, or any discharge, confirmation, conversion, or dismissal of, any Insolvency Proceeding by or against the Company or any Grantor or any other circumstance which otherwise might constitute a defense (other than a defense that such obligations have in fact been repaid) available to, or a discharge of the Company or any Grantor in respect of the ABL Obligations or the New First Lien Obligations. No priority or right of the ABL Collateral Agent or any ABL Secured Party shall at any time be prejudiced or impaired in any way by any act or failure to act on the part of the Company or any Grantor or by the noncompliance by any Person with the terms, provisions, or covenants of any of the ABL Documents, regardless of any knowledge thereof which the ABL Collateral Agent or any ABL Secured Party may have.
ARTICLE 6
INSOLVENCY PROCEEDINGS
      Section 6.1 DIP Financing .
          (a) If the Company or any Grantor shall be subject to any Insolvency Proceeding at any time prior to the Discharge of ABL Obligations, and the ABL Collateral Agent or the ABL Secured Parties shall seek to provide the Company or any Grantor with, or consent to a third party providing, any financing under Section 364 of the Bankruptcy Code or consent to any order for the use of cash collateral constituting Receivables Collateral under Section 363 of the Bankruptcy Code (each, a “ DIP Financing ”), with such DIP Financing to be secured by all or any portion of the Receivables Collateral (including assets that, but for the application of Section 552 of the Bankruptcy Code would be Receivables Collateral) but not any other asset or any Non-Receivables Collateral, then the New First Lien Collateral Agent, on behalf of itself and the New First Lien Secured Parties, agrees that it will raise no objection and will not support any objection to such DIP Financing or use of cash collateral or to the Liens securing the same on the grounds of a failure to provide “adequate protection” for the Liens of the New First Lien Collateral Agent securing the New First Lien Obligations or on any other grounds (and will not request any adequate protection solely as a result of such DIP Financing or use of cash collateral that is Receivables Collateral, except as permitted by Section 6.3(b)), so long as (i) the New First

-23-


 

Lien Collateral Agent retains its Lien on the Common Collateral to secure the New First Lien Obligations (in each case, including Proceeds thereof arising after the commencement of the case under the Bankruptcy Code); (ii) the terms of the DIP Financing do not compel the applicable Grantor to seek confirmation of a specific plan of reorganization for which all or substantially all of the material terms of such plan are set forth in the DIP Financing documentation or related document; and (iii) all Liens on Common Collateral securing any such DIP Financing shall be senior to or on a parity with the Liens of the ABL Collateral Agent and the ABL Secured Parties securing the ABL Obligations on Common Collateral; provided , however , that nothing contained in this Agreement shall prohibit or restrict the New First Lien Collateral Agent or any New First Lien Secured Party from raising any objection or supporting any objection to such DIP Financing or use of cash collateral or to the Liens securing the same on the grounds of a failure to provide “adequate protection” for the Liens of the New First Lien Collateral Agent on Non-Receivables Collateral securing the New First Lien Obligations.
          (b) All Liens granted to the ABL Collateral Agent or the New First Lien Collateral Agent in any Insolvency Proceeding, whether as adequate protection or otherwise, are intended by the Parties to be and shall be deemed to be subject to the Lien Priority and the other terms and conditions of this Agreement.
      Section 6.2 Relief from Stay . The New First Lien Collateral Agent, on behalf of itself and the New First Lien Secured Parties, agrees not to seek relief from the automatic stay or any other stay in any Insolvency Proceeding in respect of any portion of the Common Collateral without the ABL Collateral Agent’s express written consent.
      Section 6.3 No Contest; Adequate Protection .
          (a) The New First Lien Collateral Agent, on behalf of itself and the New First Lien Secured Parties, agrees that it shall not contest (or support any other Person contesting) (x) any request by the ABL Collateral Agent or any ABL Secured Party for adequate protection of its interest in the Common Collateral, (y) any objection by the ABL Collateral Agent or any ABL Secured Party to any motion, relief, action, or proceeding based on a claim by the ABL Collateral Agent or any ABL Secured Party that its interests in the Common Collateral are not adequately protected (or any other similar request under any law applicable to an Insolvency Proceeding), so long as any Liens granted to the ABL Collateral Agent as adequate protection of its interests are subject to this Agreement or (z) any lawful exercise by the ABL Collateral Agent or any ABL Secured Party of the right to credit bid ABL Obligations at any sale of Common Collateral or Receivables Collateral; provided , however , that nothing contained in this Agreement shall prohibit or restrict the New First Lien Collateral Agent or any New First Lien Secured Party from contesting or challenging (or support any other Person contesting or challenging) any request by the ABL Collateral Agent or any ABL Secured Party for “adequate protection” (or the grant of any such “adequate protection”) to the extent such “adequate protection” is in the form of a Lien on any Non-Receivables Collateral.
          (b) Notwithstanding the foregoing provisions in this Section 6.3, in any Insolvency Proceeding, if the ABL Secured Parties (or any subset thereof) are granted adequate protection with respect to Common Collateral in the form of additional collateral (even if such collateral is not of a type which would otherwise have constituted Common Collateral (unless such

-24-


 

additional collateral is an asset of an ABL Entity)), then the ABL Collateral Agent, on behalf of itself and the ABL Secured Parties, agrees that the New First Lien Collateral Agent, on behalf of itself and/or any of the New First Lien Secured Parties, may, subject to the First Lien Intercreditor Agreement, seek or request (and the ABL Secured Parties will not oppose such request) adequate protection with respect to its interests in such Common Collateral in the form of a Lien on the same additional collateral, which Lien will be subordinated to the Liens securing the ABL Obligations on the same basis as the other Liens of the New First Lien Collateral Agent on the Common Collateral (it being understood that to the extent that any such additional collateral constituted Non-Receivables Collateral at the time it was granted to the ABL Secured Parties, the Lien thereon in favor of the ABL Secured Parties shall be subordinate in all respects to the Liens thereon in favor of the New First Lien Secured Parties).
      Section 6.4 Asset Sales . The New First Lien Collateral Agent agrees, on behalf of itself and the New First Lien Secured Parties, that it will not oppose any sale consented to by the ABL Collateral Agent of any Common Collateral pursuant to Section 363(f) of the Bankruptcy Code (or any similar provision under the law applicable to any Insolvency Proceeding) so long as the proceeds of such sale are applied in accordance with this Agreement.
      Section 6.5 Separate Grants of Security and Separate Classification . The New First Lien Collateral Agent, each New First Lien Secured Party, each ABL Secured Party and the ABL Collateral Agent each acknowledge and agree that (i) the grants of Liens pursuant to the ABL Security Documents on the one hand and the New First Lien Security Documents on the other hand constitute separate and distinct grants of Liens and the New First Lien Secured Parties’ claims against the Company and/or any Grantor in respect of Common Collateral constitute junior claims separate and apart (and of a different class) from the senior claims of the ABL Secured Parties against the Company and the Grantors in respect of Common Collateral and (ii) because of, among other things, their differing rights in the Common Collateral, the New First Lien Obligations are fundamentally different from the ABL Obligations and must be separately classified in any plan of reorganization proposed or adopted in an Insolvency Proceeding. To further effectuate the intent of the parties as provided in the immediately preceding sentence, if it is held that the claims of the ABL Secured Parties and any New First Lien Secured Parties in respect of the Common Collateral constitute only one secured claim (rather than separate classes of senior and junior secured claims), then the ABL Secured Parties and the New First Lien Secured Parties hereby acknowledge and agree that all distributions shall be made as if there were separate classes of ABL Obligation claims and New First Lien Obligation claims against the Grantors (with the effect being that, to the extent that the aggregate value of the Common Collateral is sufficient (for this purpose ignoring all claims held by the New First Lien Secured Parties), the ABL Secured Parties shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre-petition interest and other claims, all amounts owing in respect of post-petition interest at the relevant contract rate, before any distribution is made in respect of the claims held by the New First Lien Secured Parties from such Common Collateral), with the New First Lien Secured Parties hereby acknowledging and agreeing to turn over to the ABL Secured Parties amounts otherwise received or receivable by them to the extent necessary to effectuate the intent of this sentence, even if such turnover has the effect of reducing the aggregate recoveries.

-25-


 

      Section 6.6 Enforceability . The provisions of this Agreement are intended to be and shall be enforceable under Section 510(a) of the Bankruptcy Code.
      Section 6.7 ABL Obligations Unconditional . All rights, interests, agreements and obligations of the ABL Collateral Agent and the ABL Secured Parties, and the New First Lien Collateral Agent and the New First Lien Secured Parties, respectively, hereunder shall remain in full force and effect irrespective of:
     (a) any lack of validity or enforceability of any ABL Documents or any New First Lien Documents;
     (b) any change in the time, manner or place of payment of, or in any other terms of, all or any of the ABL Obligations or New First Lien Obligations, or any amendment or waiver or other modification, including any increase in the amount thereof, whether by course of conduct or otherwise, of the terms of the ABL Credit Agreement or any other ABL Document or of the terms of the New First Lien Agreement or any other New First Lien Document;
     (c) any exchange of any security interest in any Receivables Collateral or any other collateral, or any amendment, waiver or other modification, whether in writing or by course of conduct or otherwise, of all or any of the ABL Obligations or New First Lien Obligations or any guarantee thereof;
     (d) the commencement of any Insolvency Proceeding in respect of the Company or any other Grantor; or
     (e) any other circumstances that otherwise might constitute a defense (other than a defense that such obligations have in fact been repaid) available to, or a discharge of, the Company or any other Grantor in respect of ABL Obligations or New First Lien Obligations in respect of this Agreement.
ARTICLE 7
MISCELLANEOUS
      Section 7.1 Rights of Subrogation . The New First Lien Collateral Agent, for and on behalf of itself and the New First Lien Secured Parties, agrees that no payment to the ABL Collateral Agent or any ABL Secured Party pursuant to the provisions of this Agreement shall entitle the New First Lien Collateral Agent or such New First Lien Secured Party to exercise any rights of subrogation in respect thereof until the Discharge of ABL Obligations shall have occurred. Following the Discharge of ABL Obligations, the ABL Collateral Agent agrees to execute such documents, agreements, and instruments as the New First Lien Collateral Agent or any New First Lien Secured Party may reasonably request, at the Company’s expense, to evidence the transfer by subrogation to any such Person of an interest in the ABL Obligations resulting from payments to the ABL Collateral Agent by such Person.
      Section 7.2 Further Assurances . The Parties will, at their own expense and at any time and from time to time, promptly execute and deliver all further instruments and documents,

-26-


 

and take all further action, that may be necessary or desirable, or that any Party may reasonably request, in order to protect any right or interest granted or purported to be granted hereby or to enable the ABL Collateral Agent or the New First Lien Collateral Agent to exercise and enforce its rights and remedies hereunder; provided , however , that no Party shall be required to pay over any payment or distribution, execute any instruments or documents, or take any other action referred to in this Section 7.2, to the extent that such action would contravene any law, order or other legal requirement or any of the terms or provisions of this Agreement, and in the event of a controversy or dispute, such Party may interplead any payment or distribution in any court of competent jurisdiction, without further responsibility in respect of such payment or distribution under this Section 7.2.
      Section 7.3 Representations . The New First Lien Collateral Agent represents and warrants for itself to the ABL Collateral Agent that it has the requisite power and authority under the New First Lien Documents to enter into, execute, deliver, and carry out the terms of this Agreement on behalf of itself and the New First Lien Secured Parties and that this Agreement shall be binding obligations of the New First Lien Collateral Agent and the New First Lien Secured Parties, enforceable against the New First Lien Collateral Agent and the New First Lien Secured Parties in accordance with its terms. The ABL Collateral Agent represents and warrants to the New First Lien Collateral Agent that it has the requisite power and authority under the ABL Documents to enter into, execute, deliver, and carry out the terms of this Agreement on behalf of itself and the ABL Secured Parties and that this Agreement shall be binding obligations of the ABL Collateral Agent and the ABL Secured Parties, enforceable against the ABL Collateral Agent and the ABL Secured Parties in accordance with its terms.
      Section 7.4 Amendments . No amendment or waiver of any provision of this Agreement nor consent to any departure by any Party hereto shall be effective unless it is in a written agreement executed by the New First Lien Collateral Agent and the ABL Collateral Agent, and consented to in writing by the Company, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. Notwithstanding anything in this Section 7.4 to the contrary, this Agreement may be amended from time to time at the request of the Company, at the Company’s expense, and without the consent of the ABL Collateral Agent, any ABL Secured Party, the New First Lien Collateral Agent or any New First Lien Secured Party to (i) provide for a replacement ABL Collateral Agent in accordance with the ABL Documents (including for the avoidance of doubt to provide for a replacement ABL Collateral Agent assuming such role in connection with any Refinancing of the ABL Credit Agreement not prohibited by the New First Lien Agreement), provide for a replacement New First Lien Collateral Agent in accordance with the New First Lien Documents (including for the avoidance of doubt to provide for a replacement New First Lien Collateral Agent assuming such role in connection with any Refinancing of the New First Lien Documents permitted hereunder) and/or secure additional extensions of credit or add other parties holding ABL Obligations or New First Lien Obligations to the extent such Indebtedness does not expressly violate the ABL Credit Agreement or the New First Lien Agreement and (ii) in the case of such additional New First Lien Obligations, (a) establish that the Lien on the Common Collateral securing such New First Lien Obligations shall be junior and subordinate in all respects to all Liens on the Common Collateral securing any ABL Obligations (at least to the same extent as (taken together as a whole) the Liens on Common Collateral in favor of the New First Lien Obligations are junior and

-27-


 

subordinate to the Liens on Common Collateral in favor of the ABL Obligations pursuant to this Agreement immediately prior to the incurrence of such additional New First Lien Obligations) and (b) provide to the holders of such New First Lien Obligations (or any agent or trustee thereof) the comparable rights and benefits (including any improved rights and benefits that have been consented to by the ABL Collateral Agent) as are provided to the New First Lien Secured Parties under this Agreement.
      Section 7.5 Addresses for Notices . All notices to the ABL Secured Parties and the New First Lien Secured Parties permitted or required under this Agreement may be sent to the applicable Collateral Agent for such Secured Party, respectively, as provided in the applicable Credit Document. Unless otherwise specifically provided herein, any notice or other communication herein required or permitted to be given shall be in writing and may be personally served, telecopied, electronically mailed or sent by courier service or U.S. mail and shall be deemed to have been given when delivered in person or by courier service, upon receipt of a telecopy or electronic mail or upon receipt via U.S. mail (registered or certified, with postage prepaid and properly addressed).
      Section 7.6 No Waiver; Remedies . No failure on the part of any Party to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
      Section 7.7 Continuing Agreement; Transfer of Secured Obligations . This Agreement is a continuing agreement and shall (a) subject to Section 5.3, remain in full force and effect until the Discharge of ABL Obligations shall have occurred, (b) be binding upon the Parties and their successors and assigns, and (c) inure to the benefit of and be enforceable by the Parties and their respective successors, transferees and assigns. Nothing herein is intended, or shall be construed to give, any other Person any right, remedy or claim under, to or in respect of this Agreement or any Common Collateral. All references to any Grantor shall include any Grantor as debtor-in-possession and any receiver or trustee for such Grantor in any Insolvency Proceeding. Without limiting the generality of the foregoing clause (c), the ABL Collateral Agent, any ABL Secured Party, the New First Lien Collateral Agent and any New First Lien Secured Party may assign or otherwise transfer all or any portion of the ABL Obligations or the New First Lien Obligations, as applicable, to any other Person (other than the Company, any Grantor or any Affiliate of the Company or any Grantor and any Subsidiary of the Company or any Grantor), and such other Person shall thereupon become vested with all the rights and obligations in respect thereof granted to the ABL Collateral Agent, the New First Lien Collateral Agent, any ABL Secured Party or any New First Lien Secured Party, as the case may be, herein or otherwise. The ABL Secured Parties and the New First Lien Secured Parties may continue, at any time and without notice to the other parties hereto, to extend credit and other financial accommodations, lend monies and provide Indebtedness to, or for the benefit of, any Grantor on the faith hereof.
      Section 7.8 Governing Law; Entire Agreement . The validity, performance, and enforcement of this Agreement shall be governed by, and construed in accordance with, the laws of

-28-


 

the State of New York. This Agreement constitutes the entire agreement and understanding among the Parties with respect to the subject matter hereof and supersedes any prior agreements, written or oral, with respect thereto.
      Section 7.9 Counterparts . This Agreement may be executed in any number of counterparts, including by means of facsimile or “pdf” file thereof, and it is not necessary that the signatures of all Parties be contained on any one counterpart hereof, each counterpart will be deemed to be an original, and all together shall constitute one and the same document.
      Section 7.10 No Third Party Beneficiaries . This Agreement is solely for the benefit of the ABL Collateral Agent, the ABL Secured Parties, the New First Lien Collateral Agent and the New First Lien Secured Parties. No other Person (including the Company, any Grantor or any Affiliate or Subsidiary of the Company or any Grantor) shall be deemed to be a third party beneficiary of this Agreement.
      Section 7.11 Headings . The headings of the articles and sections of this Agreement are inserted for purposes of convenience only and shall not be construed to affect the meaning or construction of any of the provisions hereof.
      Section 7.12 Severability . If any of the provisions in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement and shall not invalidate the Lien Priority or the application of Proceeds and other priorities set forth in this Agreement.
      Section 7.13 Attorneys’ Fees . The Parties agree that if any dispute, arbitration, litigation, or other proceeding is brought with respect to the enforcement of this Agreement or any provision hereof, the prevailing party in such dispute, arbitration, litigation, or other proceeding shall be entitled to recover its reasonable attorneys’ fees and all other costs and expenses incurred in the enforcement of this Agreement, irrespective of whether suit is brought.
      Section 7.14 VENUE; JURY TRIAL WAIVER .
          (a) The parties hereto consent to the jurisdiction of any state or federal court located in New York, New York, and consent that all service of process may be made by registered mail directed to such party as provided in Section 7.5 for such party. Service so made shall be deemed to be completed three days after the same shall be posted as aforesaid. The parties hereto waive any objection to any action instituted hereunder in any such court based on forum non conveniens, and any objection to the venue of any action instituted hereunder in any such court. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, VERBAL OR WRITTEN STATEMENT OR ACTION OF ANY PARTY HERETO IN CONNECTION WITH THE SUBJECT MATTER HEREOF.
          (b) EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 7.5. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO

-29-


 

THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
      Section 7.15 Intercreditor Agreement . This Agreement is the Additional Receivables Intercreditor Agreement referred to in the New First Lien Documents. Nothing in this Agreement shall be deemed to subordinate the obligations due to (i) any ABL Secured Party to the obligations due to any New First Lien Secured Party or (ii) any New First Lien Secured Party to the obligations due to any ABL Secured Party (in each case, whether before or after the occurrence of an Insolvency Proceeding), it being the intent of the Parties that this Agreement shall effectuate a subordination of Liens but not a subordination of Indebtedness.
     Notwithstanding anything to the contrary contained in this Agreement, each party hereto agrees that the New First Lien Secured Parties may enter into intercreditor agreements (or similar arrangements (including without limitation the First Lien Intercreditor Agreement and the Additional General Intercreditor Agreement)) governing the rights, benefits and privileges as among the New First Lien Secured Parties and holders of certain other indebtedness of the Company in respect of the Common Collateral, this Agreement and the other New First Lien Documents, including as to application of proceeds of the Common Collateral, voting rights, control of the Common Collateral and waivers with respect to the Common Collateral, in each case so long as the terms thereof do not violate or conflict with the provisions of this Agreement or the New First Lien Documents. In any event, if a respective intercreditor agreement (or similar arrangement) exists, the provisions thereof shall not be (or be construed to be) an amendment, modification or other change to this Agreement and the provisions of this Agreement and the other ABL Security Documents and New First Lien Security Documents shall remain in full force and effect in accordance with the terms hereof and thereof (as such provisions may be amended, modified or otherwise supplemented from time to time in accordance with the terms hereof and thereof, including to give effect to any intercreditor agreement (or similar arrangement)).
      Section 7.16 Effectiveness . This Agreement shall become effective when executed and delivered by the parties hereto. This Agreement shall be effective both before and after the commencement of any Insolvency Proceeding.
      Section 7.17 Collateral Agents . It is understood and agreed that (a) Bank of America is entering into this Agreement in its capacity as collateral agent under the ABL Credit Agreement, and the provisions of Section 13 of the ABL Credit Agreement applicable to the administrative agent and collateral agent thereunder shall also apply to the ABL Collateral Agent hereunder and (b) Bank of America is entering into this Agreement in its capacity as collateral agent under the New First Lien Agreement, and the provisions of Section 11.02 of the New First Lien Agreement applicable to the collateral agent thereunder shall also apply to the New First Lien Collateral Agent hereunder.
      Section 7.18 No Warranties or Liability . Each of the ABL Collateral Agent and the New First Lien Collateral Agent acknowledges and agrees that neither of them has made any representation or warranty with respect to the execution, validity, legality, completeness, collectability or enforceability of any other ABL Document or New First Lien Document, as the case may be.

-30-


 

      Section 7.19 Conflicts. In the event of any conflict between the provisions of this Agreement and the provisions of any Credit Document, the provisions of this Agreement shall govern.
      Section 7.20 Information Concerning Financial Condition of the Credit Parties . Each of the New First Lien Collateral Agent and the ABL Collateral Agent hereby assumes responsibility for keeping itself informed of the financial condition of the Grantors and all other circumstances bearing upon the risk of nonpayment of the ABL Obligations or the New First Lien Obligations. The ABL Collateral Agent and the New First Lien Collateral Agent each hereby agrees that no party shall have any duty to advise any other party of information known to it regarding such condition or any such circumstances. In the event either the ABL Collateral Agent or the New First Lien Collateral Agent, in its sole discretion, undertakes at any time or from time to time to provide any information to any other party to this Agreement, (a) it shall be under no obligation (i) to provide any such information to any other party or any other party on any subsequent occasion, (ii) to undertake any investigation not a part of its regular business routine, or (iii) to disclose any other information, or (b) it makes no representation as to the accuracy or completeness of any such information and shall not be liable for any information contained therein, and (c) the Party receiving such information hereby to hold the other Party harmless from any action the receiving Party may take or conclusion the receiving Party may reach or draw from any such information, as well as from and against any and all losses, claims, damages, liabilities, and expenses to which such receiving Party may become subject arising out of or in connection with the use of such information.
      Section 7.21 Acknowledgement . The New First Lien Collateral Agent hereby acknowledges for itself and on behalf of each New First Lien Secured Party that there are assets of the Company and its Subsidiaries (including Grantors) which are subject to Liens in favor of the ABL Collateral Agent or other creditors but which do not constitute Common Collateral and nothing in this Agreement shall grant or imply the grant of any Lien or other security interest in such assets in favor of any New First Lien Secured Party to secure any New First Lien Obligations. The ABL Collateral Agent hereby acknowledges for itself and on behalf of each ABL Secured Party that there are assets of the Company and its Subsidiaries (including Grantors) which are subject to Liens in favor of the New First Lien Collateral Agent or other creditors but which do not constitute Common Collateral and nothing in this Agreement shall grant or imply the grant of any Lien or other security interest in such assets in favor of the ABL Collateral Agent to secure any ABL Obligations and nothing in this Agreement shall affect or limit the rights of the New First Lien Collateral Agent or any New First Lien Secured Party in any Non-Receivables Collateral or any other assets of the Company or any of its Subsidiaries (other than Receivables Collateral) securing any New First Lien Obligations. The New First Lien Collateral Agent acknowledges and agrees that the relative priorities, as among the New First Lien Secured Parties, the holders of Obligations under the CF Credit Agreement and any Additional First Lien Secured Parties (as defined in the First Lien Intercreditor Agreement), of the Liens granted on Common Collateral are governed by the First Lien Intercreditor Agreement.
[Signature pages follow]

-31-


 

     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
         
  BANK OF AMERICA, N.A.,
as ABL Collateral Agent
 
 
  By:   /s/ William J. Wilson    
    Name:   William J. Wilson   
    Title:   Senior Vice President   
 
  BANK OF AMERICA, N.A.,
as New First Lien Collateral Agent
 
 
  By:   /s/ Liliana Claar    
    Name:   Liliana Claar   
    Title:   Vice President   
 

S-1


 

CONSENT OF COMPANY AND GRANTORS
Dated: August 1, 2011
     Reference is made to the Additional Receivables Intercreditor Agreement dated as of the date hereof between Bank of America, N.A., as ABL Collateral Agent, and Bank of America, N.A., as New First Lien Collateral Agent, as the same may be amended, restated, supplemented, waived, or otherwise modified from time to time (the “ Intercreditor Agreement ”). Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Intercreditor Agreement.
     Each of the undersigned Grantors has read the foregoing Intercreditor Agreement and consents thereto. Each of the undersigned Grantors agrees not to take any action that would be contrary to the express provisions of the foregoing Intercreditor Agreement applicable to it, agrees to abide by the requirements expressly applicable to it under the foregoing Intercreditor Agreement and agrees that, except as otherwise provided therein, no ABL Secured Party or New First Lien Secured Party shall have any liability to any Grantor for acting in accordance with the provisions of the foregoing Intercreditor Agreement. Each Grantor understands that the foregoing Intercreditor Agreement is for the sole benefit of the ABL Secured Parties and the New First Lien Secured Parties and their respective successors and assigns, and that such Grantor is not an intended beneficiary or third party beneficiary thereof except to the extent otherwise expressly provided therein.
     Without limitation to the foregoing, each Grantor agrees to take such further action and shall execute and deliver such additional documents and instruments (in recordable form, if requested) as the ABL Collateral Agent or the New First Lien Collateral Agent (or any of their respective agents or representatives) may reasonably request to effectuate the terms of and the lien priorities contemplated by the Intercreditor Agreement.
     This Consent shall be governed and construed in accordance with the laws of the State of New York. Notices delivered to any Grantor pursuant to this Consent shall be delivered in accordance with the notice provisions set forth in the ABL Credit Agreement.

 


 

     IN WITNESS WHEREOF, this Consent is hereby executed by each of the Grantors as of the date first written above.
         
  HCA INC.
 
 
  By:   /s/ David G. Anderson   
    Name:   David G. Anderson   
    Title:   Senior Vice President —
Finance and Treasurer 
 
 
  [Subsidiary Grantors Signature Blocks]
 
 
  By:   /s/ John M. Franck   
    Name:   John M. Franck   
    Title:   Authorized Signatory   
 

 

Exhibit 5.1
August 1, 2011
HCA Inc.
One Park Plaza
Nashville, Tennessee 37203
Ladies and Gentlemen:
     We have acted as counsel to HCA Inc., a Delaware corporation (the “Company”), HCA Holdings, Inc., a Delaware corporation and the direct parent of the Company (“Holdings” or the “Parent Guarantor”) and the subsidiaries of the Company listed on Schedules I and II hereto (collectively, the “Subsidiary Guarantors” and, together with the Parent Guarantor, the “Guarantors”) in connection with the Registration Statement on Form S-3 (File No. 333-175791) (the “Registration Statement”) filed by the Company and the Guarantors with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), relating to the issuance thereunder by the Company of (i) $2,000,000,000 aggregate principal amount of 7.50% Senior Notes due 2022 (the “Unsecured Notes”), unconditionally guaranteed (each, an “Unsecured Note Guarantee,” and collectively, the “Unsecured Note Guarantees”) on a senior unsecured basis by the Parent Guarantor and (ii) $3,000,000,000 aggregate principal amount of 6.50% Senior Secured Notes due 2020 (the “Secured Notes” and, together with the “Unsecured Notes,” the “Notes”), unconditionally guaranteed (each, a “Secured Note Guarantee,” and collectively, the “Secured Note Guarantees” and, together with the “Unsecured Note Guarantees,” the “Guarantees”) (a) jointly and severally, on a senior secured basis by each of the Subsidiary Guarantors and (b) on a senior unsecured basis by the Parent

 


 

Guarantor, pursuant to the Underwriting Agreement, dated July 26, 2011, among the Company, the Parent Guarantor, the Subsidiary Guarantors and the underwriters named therein (the “Underwriting Agreement”).
     We have examined the Registration Statement as it became effective under the Act; the prospectus dated July 26, 2011 (the “Base Prospectus”), as supplemented by the prospectus supplement dated July 26, 2011 (the “Final Prospectus Supplement” and, together with the Base Prospectus, the “Prospectus”), filed by the Company and the Guarantors pursuant to Rule 424(b) of the rules and regulations of the Commission under the Act; the Indenture, dated as of August 1, 2011 (the “Base Indenture”) among the Company, Holdings, Law Debenture Trust Company of New York, as trustee (the “Trustee”) and Deutsche Bank Trust Company Americas, as registrar, paying agent and transfer agent (in each capacity, the “Registrar”), as supplemented by the Supplemental Indenture No. 1, dated as of August 1, 2011 (together with the Base Indenture, the “Unsecured Notes Indenture”), among the Company, the Parent Guarantor, the Trustee (in such capacity, the “Unsecured Notes Trustee”) and the Registrar and the Supplemental Indenture No. 2, dated as of August 1, 2011 (together with the Base Indenture, the “Secured Notes Indenture”), among the Company, the Guarantors, the Trustee (in such capacity, the “Secured Notes Trustee”) and the Registrar; duplicates of the global notes representing the Notes; and the Underwriting Agreement.
     We also have examined the originals, or duplicates or certified or conformed copies, of such records, agreements, documents and other instruments and have made such other investigations as we have deemed relevant and necessary in connection with the opinions hereinafter set forth. As to questions of fact material to this opinion, we have relied upon

 


 

certificates or comparable documents of public officials and of officers and representatives of the Company and the Guarantors.
     In rendering the opinions set forth below, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as duplicates or certified or conformed copies and the authenticity of the originals of such latter documents. We also have assumed that the Unsecured Notes Indenture and the Secured Notes Indenture are the valid and legally binding obligations of the Unsecured Notes Trustee and the Secured Notes Trustee, as applicable.
     We have assumed further that (1) each of the Subsidiary Guarantors listed on Schedule I (the “Schedule I Guarantors”) has duly authorized, executed, delivered and/or issued, as applicable, the Secured Notes Indenture and Secured Notes Guarantees in accordance with the law of the jurisdiction in which it was organized, (2) the execution, delivery and performance by each of the Schedule I Guarantors of the Secured Notes Indenture and Secured Notes Guarantees do not and will not violate the certificate of incorporation, certificate of formation, certificate of limited partnership, by laws, limited liability company agreement, limited partnership agreement or partnership agreement, as the case may be, of the Schedule I Guarantors or the law of the jurisdiction in which each such Schedule I Guarantor is organized or any other applicable law (excepting the law of the State of New York and the federal laws of the United States) and (3) the execution, delivery and performance by the Company and the Guarantors of the Indentures and the Guarantees will not breach or result in a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Holdings or any of its subsidiaries is a party or by which Holdings or any of its subsidiaries is bound or to which any of the property or assets of Holdings or any of its subsidiaries is subject.

 


 

     Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion that:
  1.   Assuming due authentication of the Notes by the Unsecured Notes Trustee and the Secured Notes Trustee, as applicable, the Notes constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms.
 
  2.   Assuming due authentication of the Notes by the Unsecured Notes Trustee and the Secured Notes Trustee, as applicable, the Guarantees constitute valid and legally binding obligations of the Guarantors enforceable against the Guarantors in accordance with their terms.
     Our opinions set forth above are subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
     We do not express any opinion herein concerning any law other than the law of the State of New York, the federal law of the United States, the Delaware General Corporation Law, the Delaware Limited Liability Company Act and the Delaware Revised Uniform Limited Partnership Act (including the statutory provisions, all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting such laws of Delaware).
     We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement and to the use of our name under the caption “Legal matters” in the Prospectus included in the Registration Statement.
         
  Very truly yours,
 
 
  /s/ Simpson Thacher & Bartlett LLP
 
 
  SIMPSON THACHER & BARTLETT LLP   
     
 

 


 

Schedule I
Guarantors Incorporated or Formed in Jurisdictions Other Than
the State of Delaware or Constituting Delaware General Partnerships
or Delaware Limited Liability Partnerships
     
    Jurisdiction of
    Incorporation or
Entity Name   Formation
Bay Hospital, Inc.
  FL
Brigham City Community Hospital, Inc.
  UT
Brookwood Medical Center of Gulfport, Inc.
  MS
Capital Division, Inc.
  VA
Central Florida Regional Hospital, Inc.
  FL
Central Shared Services, LLC
  VA
Central Tennessee Hospital Corporation
  TN
Chippenham & Johnston-Willis Hospitals, Inc.
  VA
Colorado Health Systems, Inc.
  CO
Columbia ASC Management, L.P.
  CA
Columbia Jacksonville Healthcare System, Inc.
  FL
Columbia LaGrange Hospital, Inc.
  IL
Columbia Medical Center of Arlington Subsidiary, L.P.
  TX
Columbia Medical Center of Denton Subsidiary, L.P.
  TX
Columbia Medical Center of Las Colinas, Inc.
  TX
Columbia Medical Center of Lewisville Subsidiary, L.P.
  TX
Columbia Medical Center of McKinney Subsidiary, L.P.
  TX
Columbia Medical Center of Plano Subsidiary, L.P.
  TX
Columbia North Hills Hospital Subsidiary, L.P.
  TX
Columbia Ogden Medical Center, Inc.
  UT
Columbia Parkersburg Healthcare System, LLC
  WV
Columbia Plaza Medical Center of Fort Worth Subsidiary, L.P.
  TX
Columbia Polk General Hospital, Inc.
  GA
Columbia Riverside, Inc.
  CA
Columbia/Alleghany Regional Hospital, Incorporated
  VA
Columbia/HCA John Randolph, Inc.
  VA
Columbine Psychiatric Center, Inc.
  CO
Columbus Cardiology, Inc.
  GA
Conroe Hospital Corporation
  TX
Dauterive Hospital Corporation
  LA
Dublin Community Hospital, LLC
  GA
Eastern Idaho Health Services, Inc.
  ID
Edward White Hospital, Inc.
  FL
El Paso Surgicenter, Inc.
  TX
Encino Hospital Corporation, Inc.
  CA


 

     
    Jurisdiction of
    Incorporation or
Entity Name   Formation
Fairview Park, Limited Partnership
  GA
Frankfort Hospital, Inc.
  KY
Galen Property, LLC
  VA
Green Oaks Hospital Subsidiary, L.P.
  TX
Greenview Hospital, Inc.
  KY
HCA Central Group, Inc.
  TN
HCA Health Services of Florida, Inc.
  FL
HCA Health Services of Louisiana, Inc.
  LA
HCA Health Services of Oklahoma, Inc.
  OK
HCA Health Services of Tennessee, Inc.
  TN
HCA Health Services of Virginia, Inc.
  VA
HCA Realty, Inc.
  TN
HD&S Corp. Successor, Inc.
  FL
Health Midwest Office Facilities Corporation
  MO
Health Midwest Ventures Group, Inc.
  MO
Hendersonville Hospital Corporation
  TN
Hospital Corporation of Tennessee
  TN
Hospital Corporation of Utah
  UT
HSS Virginia, L.P.
  VA
HTI Memorial Hospital Corporation
  TN
Integrated Regional Lab, LLC
  FL
Integrated Regional Laboratories, LLP
  DE
KPH-Consolidation, Inc.
  TX
Largo Medical Center, Inc.
  FL
Las Vegas Surgicare, Inc.
  NV
Lawnwood Medical Center, Inc.
  FL
Lewis-Gale Hospital, Incorporated
  VA
Lewis-Gale Physicians, LLC
  VA
Los Robles Regional Medical Center
  CA
Marietta Surgical Center, Inc.
  GA
Marion Community Hospital, Inc.
  FL
MCA Investment Company
  CA
Memorial Healthcare Group, Inc.
  FL
Midwest Division — RBH, LLC
  MO
Montgomery Regional Hospital, Inc.
  VA
Mountain View Hospital, Inc.
  UT
National Patient Account Services, Inc.
  TX
Nashville Shared Services General Partnership
  DE
New Port Richey Hospital, Inc.
  FL
New Rose Holding Company, Inc.
  CO
North Florida Immediate Care Center, Inc.
  FL


 

     
    Jurisdiction of
    Incorporation or
Entity Name   Formation
North Florida Regional Medical Center, Inc.
  FL
Northern Utah Healthcare Corporation
  UT
Northern Virginia Community Hospital, LLC
  VA
Northlake Medical Center, LLC
  GA
Notami Hospitals of Louisiana, Inc.
  LA
Okaloosa Hospital, Inc.
  FL
Okeechobee Hospital, Inc.
  FL
Palmyra Park Hospital, Inc.
  GA
Pasadena Bayshore Hospital, Inc.
  TX
Pulaski Community Hospital, Inc.
  VA
Redmond Park Hospital, LLC
  GA
Redmond Physician Practice Company
  GA
The Regional Health System of Acadiana, LLC
  LA
Retreat Hospital, LLC
  VA
Rio Grande Regional Hospital, Inc.
  TX
Riverside Healthcare System, L.P.
  CA
Sarasota Doctors Hospital, Inc.
  FL
Southern Hills Medical Center, LLC
  NV
Spotsylvania Medical Center, Inc.
  VA
Spring Branch Medical Center, Inc.
  TX
Spring Hill Hospital, Inc.
  TN
St. Mark’s Lone Peak Hospital, Inc.
  UT
Sun City Hospital, Inc.
  FL
Sunrise Mountainview Hospital, Inc.
  NV
Surgicare of Brandon, Inc.
  FL
Surgicare of Florida, Inc.
  FL
Surgicare of Houston Women’s, Inc.
  TX
Surgicare of Manatee, Inc.
  FL
Surgicare of New Port Richey, Inc.
  FL
Surgicare of Palms West, LLC
  FL
Surgicare of Riverside, LLC
  CA
Tallahassee Medical Center, Inc.
  FL
TCMC Madison-Portland, Inc.
  TN
Terre Haute MOB, L.P.
  IN
Timpanogos Regional Medical Services, Inc.
  UT
VH Holdco, Inc.
  NV
VH Holdings, Inc.
  NV
Virginia Psychiatric Company, Inc.
  VA
W & C Hospital, Inc.
  TX
Walterboro Community Hospital, Inc.
  SC
West Florida Regional Medical Center, Inc.
  FL


 

     
    Jurisdiction of
    Incorporation or
Entity Name   Formation
West Valley Medical Center, Inc.
  ID
Western Plains Capital, Inc.
  NV
WHMC, Inc.
  TX
Woman’s Hospital of Texas, Incorporated
  TX


 

Schedule II
Guarantors That Are Corporations, Limited Liability Companies or Limited
Partnerships Incorporated or Formed in the State of Delaware
     
    Jurisdiction of
    Incorporation or
Entity Name   Formation
American Medicorp Development Co.
  Delaware
Centerpoint Medical Center of Independence, LLC
  Delaware
CHCA Bayshore, L.P.
  Delaware
CHCA Conroe, L.P.
  Delaware
CHCA Mainland, L.P.
  Delaware
CHCA West Houston, L.P.
  Delaware
CHCA Woman’s Hospital, L.P.
  Delaware
CMS GP, LLC
  Delaware
Columbia Rio Grande Healthcare, L.P.
  Delaware
Columbia Valley Healthcare System, L.P.
  Delaware
Dallas/Ft. Worth Physician, LLC
  Delaware
EP Health, LLC
  Delaware
Fairview Park GP, LLC
  Delaware
Good Samaritan Hospital, L.P.
  Delaware
Goppert-Trinity Family Care, LLC
  Delaware
GPCH-GP, Inc.
  Delaware
Grand Strand Regional Medical Center, LLC
  Delaware
HCA — IT&S Field Operations, Inc.
  Delaware
HCA — IT&S Inventory Management, Inc.
  Delaware
HCA Management Services, L.P.
  Delaware
Hospital Development Properties, Inc.
  Delaware
HSS Holdco, LLC
  Delaware
HSS Systems VA, LLC
  Delaware
HSS Systems, LLC
  Delaware
HTI MOB, LLC
  Delaware
JFK Medical Center Limited Partnership
  Delaware
Lakeland Medical Center, LLC
  Delaware
Lakeview Medical Center, LLC
  Delaware
Lewis-Gale Medical Center, LLC
  Delaware
Management Services Holdings, Inc.
  Delaware
Medical Centers of Oklahoma, LLC
  Delaware
Medical Office Buildings of Kansas, LLC
  Delaware
Midwest Division — ACH, LLC
  Delaware
Midwest Division — LRHC, LLC
  Delaware
Midwest Division — LSH, LLC
  Delaware
Midwest Division — MCI, LLC
  Delaware


 

     
    Jurisdiction of
    Incorporation or
Entity Name   Formation
Midwest Division — MMC, LLC
  Delaware
Midwest Division — OPRMC, LLC
  Delaware
Midwest Division — PFC, LLC
  Delaware
Midwest Division — RMC, LLC
  Delaware
Midwest Division — RPC, LLC
  Delaware
Midwest Holdings, Inc.
  Delaware
Notami Hospitals, LLC
  Delaware
Outpatient Cardiovascular Center of Central Florida, LLC
  Delaware
Palms West Hospital Limited Partnership
  Delaware
Plantation General Hospital, L.P.
  Delaware
Reston Hospital Center, LLC
  Delaware
Riverside Hospital, Inc.
  Delaware
Samaritan, LLC
  Delaware
San Jose Healthcare System, LP
  Delaware
San Jose Hospital, L.P.
  Delaware
San Jose Medical Center, LLC
  Delaware
San Jose, LLC
  Delaware
SJMC, LLC
  Delaware
Terre Haute Hospital GP, Inc.
  Delaware
Terre Haute Hospital Holdings, Inc.
  Delaware
Terre Haute Regional Hospital, L.P.
  Delaware
Trident Medical Center, LLC
  Delaware
Utah Medco, LLC
  Delaware
Wesley Medical Center, LLC
  Delaware

Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
Form T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE

Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) o
 
LAW DEBENTURE TRUST COMPANY OF NEW YORK
(Exact name of trustee as specified in its charter)
     
New York   01-0622605
(Jurisdiction of incorporation or organization if not a U.S.
national bank)
  (I.R.S. Employer Identification
Number)
400 Madison Avenue
4 th Floor

New York, New York 10017
(Address of principal executive offices, including zip code)
James D. Heaney
Managing Director
Law Debenture Trust Company of New York
400 Madison Avenue
4th Floor
New York, New York 10017
(212) 750-6474

(Name, address and telephone number of agent for services)
HCA INC.
(Exact name of obligor as specified in its charter)
     
Delaware   75-2497104
(State or other jurisdiction of incorporation or organization)   (I.R.S. Employer Identification No.)
One Park Plaza
Nashville, TN 37203

(Address of principal executive offices, including zip code
Debt Securities
Guarantees of Debt Securities

(Title of the indenture securities)

 


 

 
Table of Additional Registrant Guarantors
 
 
             
            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
  Guarantor’s Principal
Organizational Document)
  Organization   Number   Executive Offices
 
American Medicorp Development Co. 
  Delaware   23-1696018   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Bay Hospital, Inc. 
  Florida   62-0976863   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Brigham City Community Hospital, Inc. 
  Utah   87-0318837   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Brookwood Medical Center of Gulfport, Inc. 
  Mississippi   63-0751470   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Capital Division, Inc. 
  Virginia   62-1668319   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Centerpoint Medical Center of Independence, LLC
  Delaware   45-0503121   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Central Florida Regional Hospital, Inc. 
  Florida   59-1978725   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Central Shared Services, LLC
  Virginia   76-0771216   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Central Tennessee Hospital Corporation
  Tennessee   62-1620866   One Park Plaza
Nashville, TN 37203
(615) 344-9551
CHCA Bayshore, L.P. 
  Delaware   62-1801359   One Park Plaza
Nashville, TN 37203
(615) 344-9551
CHCA Conroe, L.P. 
  Delaware   62-1801361   One Park Plaza
Nashville, TN 37203
(615) 344-9551
CHCA Mainland, L.P. 
  Delaware   62-1801362   One Park Plaza
Nashville, TN 37203
(615) 344-9551
CHCA West Houston, L.P. 
  Delaware   62-1801363   One Park Plaza
Nashville, TN 37203
(615) 344-9551
CHCA Woman’s Hospital, L.P. 
  Delaware   62-1810381   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Chippenham & Johnston-Willis Hospitals, Inc. 
  Virginia   54-1779911   One Park Plaza
Nashville, TN 37203
(615) 344-9551
CMS GP, LLC
  Delaware   62-1778113   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Colorado Health Systems, Inc. 
  Colorado   62-1593008   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Columbia ASC Management, L.P. 
  California   33-0539838   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
  Guarantor’s Principal
Organizational Document)
  Organization   Number   Executive Offices
 
Columbia Jacksonville Healthcare System, Inc. 
  Florida   61-1272241   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Columbia LaGrange Hospital, Inc. 
  Illinois   61-1276162   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Columbia Medical Center of Arlington Subsidiary, L.P. 
  Texas   62-1682201   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Columbia Medical Center of Denton Subsidiary, L.P. 
  Texas   62-1682213   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Columbia Medical Center of Las Colinas, Inc. 
  Texas   62-1650582   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Columbia Medical Center of Lewisville Subsidiary, L.P. 
  Texas   62-1682210   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Columbia Medical Center of McKinney Subsidiary, L.P. 
  Texas   62-1682207   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Columbia Medical Center of Plano Subsidiary, L.P. 
  Texas   62-1682203   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Columbia North Hills Hospital Subsidiary, L.P. 
  Texas   62-1682205   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Columbia Ogden Medical Center, Inc. 
  Utah   62-1650578   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Columbia Parkersburg Healthcare System, LLC
  West Virginia   62-1634494   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Columbia Plaza Medical Center of Fort Worth Subsidiary, L.P. 
  Texas   62-1682202   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Columbia Polk General Hospital, Inc. 
  Georgia   62-1619423   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Columbia Rio Grande Healthcare, L.P. 
  Delaware   62-1656022   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Columbia Riverside, Inc. 
  California   62-1664328   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Columbia Valley Healthcare System, L.P. 
  Delaware   62-1669572   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Columbia/Alleghany Regional Hospital, Incorporated
  Virginia   54-1761046   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Columbia/HCA John Randolph, Inc. 
  Virginia   61-1272888   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
  Guarantor’s Principal
Organizational Document)
  Organization   Number   Executive Offices
 
Columbine Psychiatric Center, Inc. 
  Colorado   84-1042212   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Columbus Cardiology, Inc. 
  Georgia   58-1941109   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Conroe Hospital Corporation
  Texas   74-2467524   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Dallas/Ft. Worth Physician, LLC
  Delaware   62-1769694   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Dauterive Hospital Corporation
  Louisiana   58-1741846   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Dublin Community Hospital, LLC
  Georgia   58-1431023   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Eastern Idaho Health Services, Inc. 
  Idaho   82-0436622   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Edward White Hospital, Inc. 
  Florida   59-3089836   One Park Plaza
Nashville, TN 37203
(615) 344-9551
El Paso Surgicenter, Inc. 
  Texas   74-2361005   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Encino Hospital Corporation, Inc. 
  California   95-4113862   One Park Plaza
Nashville, TN 37203
(615) 344-9551
EP Health, LLC
  Delaware   62-1769682   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Fairview Park GP, LLC
  Delaware   62-1815913   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Fairview Park, Limited Partnership
  Georgia   62-1817469   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Frankfort Hospital, Inc. 
  Kentucky   61-0859329   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Galen Property, LLC
  Virginia   35-2260545   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Good Samaritan Hospital, L.P. 
  Delaware   62-1763090   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Goppert-Trinity Family Care, LLC
  Delaware   76-0726651   One Park Plaza
Nashville, TN 37203
(615) 344-9551
GPCH-GP, Inc. 
  Delaware   64-0805500   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Grand Strand Regional Medical Center, LLC
  Delaware   62-1768105   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
  Guarantor’s Principal
Organizational Document)
  Organization   Number   Executive Offices
 
Green Oaks Hospital Subsidiary, L.P. 
  Texas   62-1797829   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Greenview Hospital, Inc. 
  Kentucky   61-0724492   One Park Plaza
Nashville, TN 37203
(615) 344-9551
HCA — IT&S Field Operations, Inc. 
  Delaware   06-1795732   One Park Plaza
Nashville, TN 37203
(615) 344-9551
HCA — IT&S Inventory Management, Inc. 
  Delaware   06-1796286   One Park Plaza
Nashville, TN 37203
(615) 344-9551
HCA Central Group, Inc. 
  Tennessee   02-0762180   One Park Plaza
Nashville, TN 37203
(615) 344-9551
HCA Health Services of Florida, Inc. 
  Florida   62-1113740   One Park Plaza
Nashville, TN 37203
(615) 344-9551
HCA Health Services of Louisiana, Inc. 
  Louisiana   62-1113736   One Park Plaza
Nashville, TN 37203
(615) 344-9551
HCA Health Services of Oklahoma, Inc. 
  Oklahoma   62-1106156   One Park Plaza
Nashville, TN 37203
(615) 344-9551
HCA Health Services of Tennessee, Inc. 
  Tennessee   62-1113737   One Park Plaza
Nashville, TN 37203
(615) 344-9551
HCA Health Services of Virginia, Inc. 
  Virginia   62-1113733   One Park Plaza
Nashville, TN 37203
(615) 344-9551
HCA Management Services, L.P. 
  Delaware   62-1778108   One Park Plaza
Nashville, TN 37203
(615) 344-9551
HCA Realty, Inc. 
  Tennessee   06-1106160   One Park Plaza
Nashville, TN 37203
(615) 344-9551
HD&S Corp. Successor, Inc. 
  Florida   62-1657694   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Health Midwest Office Facilities Corporation
  Missouri   43-1175071   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Health Midwest Ventures Group, Inc. 
  Missouri   43-1315348   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Hendersonville Hospital Corporation
  Tennessee   62-1321255   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Hospital Corporation of Tennessee
  Tennessee   62-1124446   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Hospital Corporation of Utah
  Utah   87-0322019   One Park Plaza
Nashville, TN 37203
(615) 344-9551
Hospital Development Properties, Inc. 
  Delaware   62-1321246   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
  Guarantor’s Principal
Organizational Document)
  Organization   Number   Executive Offices
 
HSS Holdco, LLC
  Delaware   62-1839825   One Park Plaza
Nashville, TN 37203
(615) 344-9551
HSS Systems VA, LLC
  Delaware   62-1804832   One Park Plaza
Nashville, TN 37203
(615) 344-9551
HSS Systems, LLC
  Delaware   62-1804834   One Park Plaza
Nashville, TN 37203
(615) 344-9551
HSS Virginia, L.P. 
  Virginia   62-1848294   One Park Plaza
Nashville, TN 37203
(615) 344-9551
HTI Memorial Hospital Corporation
  Tennessee   62-1560757   One Park Plaza
Nashville, TN 37203
(615) 344-9551
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
  Guarantor’s 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
  Guarantor’s 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
  Guarantor’s 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
  Guarantor’s Principal
Organizational Document)
  Organization   Number   Executive Offices
 
St. Mark’s 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 Women’s, 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
  Guarantor’s 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
Woman’s Hospital of Texas, Incorporated
  Texas   74-1991424   One Park Plaza
Nashville, TN 37203
(615) 344-9551


 

Item 1. General information.
Furnish the following information as to the trustee
  a.   Name and address of each examining or supervising authority to which it is subject.
     
Name   Address
Superintendent of Banks of the State of New York
  2 Rector Street, New York, NY
10006, and Albany, NY 12203
  b.   Whether it is authorized to exercise corporate trust powers.
 
      Yes
Item 2. Affiliations with the obligor.
      If the obligor is an affiliate of the trustee, describe each such affiliation.
      None.
Items 3-14.
      No responses are included for Items 3-14 of this Form T-1 because the obligor is not in default as provided under Item 13.
Item 15. Foreign Trustee.
      Not applicable.
Item 16. List of exhibits.
List below all exhibits filed as a part of this statement of eligibility.
  1   A copy of the articles of association of the trustee as now in effect. (see Exhibit 1 to Form T-1 filed in connection with Registration Statement No. 333-127469, which is incorporated by reference).
 
  2   A copy of the certificate of authority of the trustee to commence business, if not contained in the articles of association. (see Exhibit 2 to Form T-1 filed in connection with Registration Statement No. 333-127469, which is incorporated by reference).
 
  3   A copy of the existing bylaws of the trustee, or instruments corresponding thereto. (see Exhibit 3 to Form T-1 filed in connection with Registration Statement No. 333-127469, which is incorporated by reference).
 
  4   The consents of the Trustee required by Section 321(b) of the Act. (see Exhibit 4 to Form T-1 filed in connection with Registration Statement 333-133414, which is incorporated by reference).
 
  5   A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.
SIGNATURE
      Pursuant to the requirements of the Trust Indenture Act of 1939 the trustee, Law Debenture Trust Company of New York, a trust company organized and existing under the laws of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York, and State of New York, on the 1 st day of August 2011.
         
  Law Debenture Trust Company of New York
(Trustee)
 
 
  By:   /s/ James D. Heaney    
    James D. Heaney   
    Managing Director   
 
T-1 Item 16

 


 

Consolidated Report of Condition (attached as Exhibit A hereto) of
LAW DEBENTURE TRUST COMPANY OF NEW YORK
of 400 Madison Avenue, New York, NY 10017,
a limited purpose trust company (“LDTC-NY”) and U.S. subsidiary of Law Debenture Corporation plc, London, England (“Law Debenture”), at the close of business June 30, 2011 published with the Federal Financial Institutions Examination Council/Board of Governors of the Federal Reserve System, and in accordance with Chapter 2 of the Consolidated Laws of the State of New York Banking Department license granted on May 8, 2002.
Prior to this Consolidated Report of Condition dated June 30, 2011 a Guarantee and Keep Well Agreement (attached as Exhibit B hereto) was executed by subsidiaries of Law Debenture, to effect capitalization of LDTC-NY in the total aggregate amount of $50,000,000, on July 12, 2002.
I, Kenneth Portera, Chief Executive Officer of Law Debenture Trust Company of New York do hereby declare that this Report of Condition has been prepared in conformance with instructions issued by the Board of Governors of the Federal Reserve System and is true to the best of my knowledge and belief.
IN WITNESS WHEREOF, I have executed this certificate the 29th day of July, 2011.
         
 
  /s/ Kenneth Portera    
 
 
 
Kenneth Portera
   
 
  Chief Executive Officer    
 
  Law Debenture Trust Company of New York    
I, James D. Heaney, Managing Director of Law Debenture Trust Company of New York, do hereby attest that the signature set forth above is the true and genuine signature of Kenneth Portera, Chief Executive Officer of Law Debenture Trust Company of New York.
         
Attested by:
  /s/ James D. Heaney    
 
 
 
James D. Heaney
   
Its:
  Managing Director    

 


 

Exhibit A
     
Law Debenture Trust Company of New York
  FFIEC 041
 
  PAGE RC-1
 
       13
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for June 30, 2011
All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding as of the last business day of the quarter.
Schedule RC—Balance Sheet
                                             
Dollar Amounts in Thousands   RCON   Bil   Mil   Thou    
ASSETS
                                           
1. Cash and balances due from depository institutions (from Schedule RC-A):
                                           
a. Noninterest-bearing balances and currency and coin 1
            0081                       524     1.a.
b. Interest-bearing balances 2
            0071               3       939     1.b.
2. Securities:
                                           
a. Held-to-maturity securities (from Schedule RC-B, column A)
            1754                             2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)
            1773                             2.b.
3. Federal funds sold and securities purchased under agreements to resell:
                                           
a. Federal funds sold
            B987                             3.a.
b. Securities purchased under agreements to resell 3
            B989                             3.b.
4. Loans and lease financing receivables (from Schedule RC-C)
                                           
a. Loans and leases held for sale
            5369                             4.a.
b. Loans and leases, net of unearned income
    B528                                     4.b.
c. LESS: Allowance for loan and lease losses
    3123                                     4.c.
d. Loans and leases, net of unearned income and allowance (item 4.b minus 4.c)
            B529                             4.d.
5. Trading assets (from Schedule RC-D)
            3545                             5.
6. Premises and fixed assets (including capitalized leases)
            2145                             6.
7. Other real estate owned (from Schedule RC-M
            2150                             7.
8. Investments in unconsolidated subsidiaries and associated companies
            2130                             8.
9. Direct and indirect investments in real estate ventures
            3656                             9.
10. Intangible assets:
                                           
a. Goodwill
            3163                             10.a.
b. Other intangible assets (from Schedule RC-M)
            0426                             10.b.
11. Other assets (from Schedule RC-F)
            2160               1       144     11.
12. Total assets (sum of items 1 through 11)
            2170               1       612     12.
 
1   Includes cash items in process of collection and unposted debits.
 
2   Includes time certificates of deposit not held for trading.
 
3   Includes all securities resale agreements, regardless of maturity.

 


 

     
 
  FFIEC 041
 
  PAGE RC-2
 
       14
Schedule RC—Continued
                                             
Dollar Amounts in Thousands   RCON   Bil   Mil   Thou    
LIABILITIES
                                           
13. Deposits:
                                           
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E)
            2200                             13.a.
(1) Noninterest-bearing 1
    6631                                     13.a.(1)
(2) Interest-bearing
    6636                                     13.a.(2)
b. Not applicable
                                           
14. Federal funds purchased and securities sold under agreements to repurchase:
                                           
a. Federal funds purchased 2
            B993                             14.a.
b. Securities sold under agreements to repurchase 3
            B995                             14.b.
15. Trading liabilities (from Schedule RC-D)
            3548                             15.
16. Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases) (from Schedule RC-M)
            3190                             16.
17. and 18. Not applicable
                                           
19. Subordinated notes and debentures 4
            3200                             19.
20. Other liabilities (from Schedule RC-G)
            2930               1       612     20.
21. Total liabilities (sum of items 13 through 20)
            2948               1       612     21.
22. Not applicable
                                           
EQUITY CAPITAL
                                           
Bank Equity Capital
                                           
23. Perpetual preferred stock and related surplus
            3838                             23.
24. Common stock
            3230                             24.
25. Surplus (excludes all surplus related to preferred stock)
            3839                             25.
26. a. Retained earnings
            3632                             26.a.
b. Accumulated other comprehensive income 5
            B530                             26.b.
c. Other equity capital components 6
            A130                             26.c.
27. a. Total bank equity capital (sum of items 23 through 26.c)
            3210               3       995     27.a.
b. Noncontrolling (minority) interests in consolidated subsidiaries
            3000                             27.b
28. Total equity capital (sum of items 27.a and 27.b)
            G105               3       995     28.
29. Total liabilities and equity capital (sum of items 21 and 28)
            3300               5       607     29.
Memoranda
To be reported with the March Report of Condition.
                     
    RCON   Number    
1. Indicate in the box at the right the number of the statement below that best describes the most comprehensive level of auditing work performed for the bank by independent external auditors as of any date during 2009
                  M.1.
1  =  Independent audit of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm which submits a report on the bank
 
2  =  Independent audit of the bank’s parent holding company conducted in accordance with generally accepted auditing standards by a certified public accounting firm which submits a report on the consolidated holding company (but not on the bank separately)
 
3  =  Attestation on bank management’s assertion on the effectiveness of the bank’s internal control over financial reporting by a certified public accounting firm
 
4  =  Directors’ examination of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm (may be required by state chartering authority)
 
5  =  Directors’ examination of the bank performed by other external auditors (may be required by state chartering authority)
 
6  =  Review of the bank’s financial statements by external auditors
 
7  =  Compilation of the bank’ financial statements by external auditors
 
8  =  Other audit procedures (excluding tax preparation work)
 
9  =  No external audit work
To be reported with the March Report of Condition.
                             
    RCON   MM   DD    
2. Bank’s fiscal year-end date
    8678                     M.2.

 


 

 7
 
1   Includes total demand deposits and noninterest-bearing time and savings deposits.
 
2   Report overnight Federal Home Loan Bank advances in Schedule RC, item 16, “Other borrowed money.”
 
3   Includes all securities repurchase agreements, regardless of maturity.
 
4   Includes limited-life preferred stock and related surplus.
 
5   Includes net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow hedges, and minimum pension liability adjustments.
 
6   Includes treasury stock and unearned Employee Stock Ownership Plan shares.

 


 

 8
Exhibit B
GUARANTEE AND KEEP WELL AGREEMENT
This Guarantee and Keep Well Agreement (the “Agreement”) dated as of July 12, 2002 is entered into by and among Law Debenture Guarantee Limited (the “Guarantor”), LDC Trust Management Limited (the “Parent”), and Law Debenture Trust Company of New York (the “Trust Company”).
WHEREAS, the Guarantor and the Trust Company are wholly-owned subsidiaries of the Parent:
WHEREAS, in order to enable the Trust Company to conduct its corporate trust business and meet qualification requirements of documents pertaining to its acceptance of trust appointments, the Trust Company requires combined capital and surplus of U.S. $50,000,000; and
WHEREAS, the Parent and the Guarantor have determined that the execution and delivery by them of this Agreement is necessary in order for the Trust Company to conduct, promote and attain corporate trust business in the United States.
Now, THEREFORE, in consideration of the promises herein and intending to be legally bound by this Agreement, each of the Guarantor, the Trust Company and the Parent hereby agree as follows:
     1.  Stock Ownership .
     During the term of this Agreement, the Parent will own, indirectly or directly, all of the capital stock of the Trust Company and the Guarantor provided, however, that, upon sixty (60) days, prior written notice to and the consent of the Trust Company (which consent shall not be unreasonably withheld), the Guarantor may sell, transfer or otherwise assign any such capital stock (or any interest therein) that it now owns or may hereafter acquire.
     2.  Covenants of the Parent .
It is understood and agreed by all parties hereto that the obligations under Section 3(a) are solely those of the Guarantor and no recourse can be had in connection therewith against the Parent.
     (a) The Parent agrees that during the term of this Agreement, it shall not, without the prior written consent of the Trust Company and the Guarantor, unless it has already contributed the Maximum Aggregate Capitalization Amount (as defined below), cause the Guarantor to consolidate with or merge into any other corporation, or liquidated, wind up or dissolve the Guarantor (or otherwise cause the Guarantor to suffer any liquidation, winding up or dissolution), or sell, transfer lease or otherwise dispose of all or substantially all of its assets, whether now owned or hereafter acquired, to any person, except (i) the merger or consolidation of the Guarantor and any person, provided, that the surviving corporation is the Guarantor, and (ii) sales, transfers, leases and other disposition of assets in the ordinary course of the Guarantor’s business, provided, that such sale, transfer, lease or other disposition of assets does not materially adversely affect the Guarantor’s ability to perform its obligations hereunder.
     (b) If, during the term of this Agreement, the Guarantor is unable or refuses to perform its obligations under section 3(a) of this Agreement, the Parent may, at its option or at the request of the Trust Company, cause such obligations to be performed. During the term of this Agreement, the Parent agrees to monitor the financial condition and management of the Guarantor and the Trust Company.
     3.  The Guarantee .
     (a) The Guarantor hereby guarantees a combined capital and surplus to the Trust Company in the amount of U.S. $50 million provided, however, that the maximum amount of capitalization shall not at any time exceed U.S. $50,000,000 in the aggregate (the “Maximum Aggregate Capitalization Amount”). Under no circumstances shall the Guarantor be required to pay or contribute any amounts in excess of the Maximum Aggregate Capitalization Amount hereunder.

 


 

 9
     (b) If, during the term of this Agreement, the Trust Company is unable to make timely payment of any debt, liability or other obligation as the same shall become due (the “Guaranteed Obligations”), the Trust Company shall request from the Guarantor, and the Guarantor promptly shall provide the Trust Company, pursuant to its obligations under (a) above, such funds (in the form of cash or liquid assets in an amount sufficient to permit the Trust Company to make timely payment in respect of such debt, liability or other obligation) as equity provided, however, that such Guaranteed Obligations shall not in the aggregate exceed the Maximum Aggregate Capitalization Amount. Any request for payment pursuant to this section shall specifically identify the debt, liability or other obligation in respect of which the Trust Company is unable to make timely payment and with respect to which the Trust Company seeks funds not to exceed the Maximum Aggregate Capitalization Amount. Each of the Trust Company and the Guarantor hereby acknowledges that any funds provided by the Guarantor pursuant thereto shall be used solely to make payment with respect to such identified Guaranteed Obligation and not for any other purposes. Notwithstanding any termination of this Agreement as provided hereunder or otherwise, this Agreement shall continue in effect or be reinstated with respect to the payment of a debt, liability or an obligation which is rescinded or must otherwise be returned upon the insolvency, bankruptcy, reorganization, dissolution or liquidation of the Trust Company, all as though such payment had not been made, provided, however, that such Guaranteed Obligations shall not in the aggregate exceed the Maximum Aggregate Capitalization Amount.
     (c) Any payments made hereunder by the Guarantor to the Trust Company within 30 days after the end of a quarterly period shall be deemed to have been made as of the end of such period.
     (d) This Agreement may be amended from time to time by mutual written consent of duly authorized officers of each of the Guarantor, the Parent and the Trust Company.
     (e) This Agreement may be terminated only upon written notification to the Trust Company by the Guarantor, and the Parent, and in no event shall termination occur earlier than ninety days following such written notification. Unless so terminated, this Agreement shall remain in effect for the duration of the Trust Company’s conducting of trust business in the United States.
     (f) The Guarantor hereby waives any failure or delay on the part of the Trust Company in asserting or enforcing any of its rights or in making any claims or demands hereunder. The Trust Company may at any time, without the Guarantor’s consent, without notice to the Guarantor and without affecting or impairing the Trust Company’s rights, or impairing the Guarantor’s obligation hereunder, do any of the following with respect to any obligation: (a) grant renewals and extensions of time, for payment or otherwise, (b) accept new or additional documents, instruments or agreements relating to or in substitution of said obligation, or (c) otherwise handle the enforcement of its respective rights and remedies in accordance with its business judgment.
     (g) Nothing in this Agreement, express or implied, shall give to any person, other than the parties hereto and their successors and assigns hereunder, any benefit or any legal or equitable right, remedy or claim under this Agreement.
     (h) The covenants herein act forth shall be mutually binding upon, and issue to the mutual benefit of the Guarantor and its successors and assignees, the Trust Company and its respective successors and assignees, and to the Parent and its respective successors and assignees.
     (i) The obligations of the Guarantor under this Agreement are absolute and unconditional and shall remain in full force and effect without regard to, and shall not be released, suspended, discharged, terminated or otherwise affected by any circumstance or occurrence whatsoever including without limitation.
(i) any lack of validity or enforceability of this Agreement or any other document or instrument relating hereto;
(ii) any extension or renewal for one or more periods (whether or not longer than the original period) or change in the time, manner, or place or payment of, or in any other term of, all or any of the Guaranteed Obligations;
(iii) any change in the ownership of capital stock of the Trust Company or any change in the identity or structure of the Trust Company, whether by consolidation, merger or otherwise;

 


 

 10
(iv) any release or amendment or waiver of or consent to departure from the terms of this Agreement; or
(v) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Guarantor in respect of the Guaranteed Obligations in respect of this Agreement.
4. Representations and Warranties
  (a)   The Guarantor hereby represents that:
     (i) the Guarantor is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation; and
     (ii) the Guarantor has the requisite power and authority to execute, deliver, and perform its obligations under this Agreement, and has taken all necessary action to authorize the execution, delivery and performance by it of this Agreement.
  (b)   The Parent hereby represents that the Parent owns directly or indirectly 100% of the issued and outstanding voting common stock of the Trust Company and the Guarantor.
5. Governing Law and Submission to Jurisdiction
     (a) Governing Law — This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to principles of conflicts of law.
     (b) The Parent and the Guarantor hereby irrevocably consent to and hereby submit themselves to the jurisdiction of the United States.
District Court of the Southern District of New York (the “New York Court”) Solely in connection with any proceeding relating hereto.
     (c) The Parent and the Guarantor hereby severally represent and warrant each in respect of itself alone that it has no right to immunity from the service of process or jurisdiction or any judicial proceedings of any competent court located pursuant to action (b) above or from execution of any judgment in the United States or from the execution or enforcement therein of any arbitration decision in respect of any suit, action, proceeding or any other matter solely arising out of or relating to its obligations under this Agreement or the transactions contemplated hereby, and to the extent that the Parent or the Guarantor is or becomes entitled to any such immunity with respect to the service of process or jurisdiction or any judicial proceedings of any competent court located pursuant to section (b) above, and to the extent permitted by law, it does hereby and will irrevocably and unconditionally agree not to plead or claim any such immunity solely with respect to its obligations hereunder or any other matter under or arising out of or in connection with this Agreement or the transactions contemplated hereby.
IN WITNESS WHEREOF, each of the Guarantor, the Trust Company and the Parent have caused this Agreement to be executed by their respective duly authorized officers as of this 12 day of July 2002. CB
         
LAW DEBENTURE GUARANTEE LIMITED    
 
       
By:
  /s/ Caroline J Banszky    
Name:
 
 
Caroline J Banszky
   
Title:
  Director    
 
       
LDC TRUST MANAGEMENT LIMITED    
 
       
By:
  /s/ Julian Mason-Jess    
Name:
 
 
Julian Mason-Jess
   
Title:
  Director    

 


 

 11
         
LAW DEBENTURE TRUST COMPANY OF NEW YORK    
 
       
By:
  /s/ N J Kuenstner    
Name:
 
 
N J Kuenstner
   
Title:
  President