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 Companys 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 Companys subsidiaries (as defined in Section
18 hereof) that guarantee the Companys 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 Companys 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
SummarySummary financial data in the Registration Statement, the Disclosure Package and
the Prospectus and in Updated Item 6, Selected Financial Data to the Companys 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 subsidiarys 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 subsidiarys 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 Companys senior
secured credit facilities, (ii) the indentures governing the Companys 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 managements 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 managements 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 notescertain covenantsliens 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 notescertain covenantsliens.
(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 Underwriters 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 Underwriters 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-
Companys 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 arms 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 partys choice
at the indemnifying partys 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 partys 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 Companys 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 QIUs 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 Womans 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. Marks Lone Peak Hospital, Inc.
|
Sun City Hospital, Inc.
|
Sunrise Mountainview Hospital, Inc.
|
Surgicare of Brandon, Inc.
|
Surgicare of Florida, Inc.
|
Surgicare of Houston Womens, 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.
|
Womans 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 Womens 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 Womans Hospital, L.P.
CHC-El Paso Corp.
CHCK, Inc.
CHC-Miami Corp.
Cheray and Samuels, LLC
Chesterfield Imaging, LLC
Chicago Grant Hospital, Inc.
Childrens 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.
Doctors 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 Lees 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 Lees 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 Womens 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 Womens 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 Doctors 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 Womans 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 Womens 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.
Lees Summit Family Care, LLC
Lees 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 Doctors 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 Lees Summit, LLC
Midwest Trauma Services, LLC
Midwest Womens 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. Marks Hospital, LLC
MountainStar Medical Group Neurosurgery St. Marks, 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 Womans 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 Womens and Childrens 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 Surgeons, 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 Womens 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. Davids Healthcare Partnership, L.P., LLP
St. Davids Neurology, PLLC
St. Davids 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. Marks Ambulatory Surgery Associates, L.P.
St. Marks Gynecology Oncology Care, LLC
St. Marks Investments, Inc.
St. Marks Lone Peak Hospital, Inc.
St. Marks Physicians, Inc.
St. Marks Professional Services, LLC
St. Marks 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 Womens, 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
Womans Health Group, PLLC
Womans Hospital Merger, LLC
Womans Hospital of Texas, Incorporated
Women Practitioners of Houston, PLLC
Women Specialists of Bayshore, PLLC
Women Specialists of Mainland, PLLC
Womens & Childrens Center, LLC
Womens & Childrens Pediatric Hematology/Oncology Center, LLC
Womens & Childrens Pediatric Orthopedic Center, LLC
Womens & Childrens Pulmonology Clinic, LLC
Womens and Childrens Professional Management, L.L.C.
Womens Center at Brookside, LLC
Womens Health Center of Central Florida, LLC
Womens Health Center of SWVA, LLC
Womens Hospital Indianapolis GP, Inc.
Womens Hospital Indianapolis, L.P.
Womens Multi-Specialty Group, LLC
WomensLink 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 Trustees 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 Issuers 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 Moodys 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 Moodys or S&P, respectively (or, if at any time neither
Moodys 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 Moodys 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 Moodys 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 Moodys.
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 Registrars 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 Moodys 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.
Moodys
means Moodys 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.
Officers 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 Moodys and S&P or if Moodys 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 Moodys 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
Persons 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 & Poors, 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 depositarys 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 Trustees 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 Holders 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 Registrars 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 Trustees 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 pledgees 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 Officers 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 Holders 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 Issuers request, the Trustee shall give the notice of redemption in the Issuers 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 Officers 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 Officers 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 Issuers 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 Issuers 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 Officers 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 Officers 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 Holders 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 Officers 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 Officers 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 Guarantors 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 Officers 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 Issuers 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 persons 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 Officers Certificate
or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such Officers Certificate or Opinion of Counsel. The Trustee
may consult with counsel of its selection and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(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
Trustees 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
Issuers use of the proceeds from the Notes or any money paid to the Issuer or upon the Issuers
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 Trustees 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 Trustees 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 Trustees 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 Trustees 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 Issuers 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 Issuers 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 Issuers 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 Issuers 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 Issuers
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 Issuers 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 Issuers 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 Officers 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 Officers 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 Issuers 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 Trustees 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 Holders 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 Officers
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 Guarantors 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 Issuers 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 Issuers 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 Officers 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 Issuers and the Parent Guarantors 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 Officers 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 Officers 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
Officers 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
|
|
|
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 Issuers 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 Issuers 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 Holders 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 assignees legal name)
|
(Insert assignees soc. sec. or tax I.D. no.)
(Print or type assignees name, address and zip code)
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 Trustees 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 Issuers 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 Issuers 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 Moodys 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 Moodys or S&P, respectively (or, if at any time neither
Moodys 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 Moodys 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 Moodys 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 Moodys.
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 Persons
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 Officers 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 Officers 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 Issuers or any direct or indirect parent
companys 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 Officers 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 Issuers 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 Registrars 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 Moodys 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.
Moodys
means Moodys 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.
Officers 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 workmens 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, warehousemens 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 Persons 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 Moodys and S&P or if Moodys 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 Moodys 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
Persons 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
Subsidiarys ceasing to be an Unrestricted Subsidiary, such Subsidiary shall be included in the
definition of Restricted Subsidiary.
S&P
means Standard & Poors, 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 Issuers
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 Officers 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 depositarys 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 Trustees 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 Holders 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 Registrars 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 Trustees 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 pledgees 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 Officers 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 Holders 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 Issuers request, the Trustee shall give the notice of redemption in the Issuers 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 Officers 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 Officers 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 Issuers 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 Issuers 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 Officers 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 Officers 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 Officers 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 Officers 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 Officers 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 Officers 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 Holders 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 Officers 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 Issuers or such Restricted Subsidiarys
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 Issuers 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 Persons
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 Officers 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 Guarantors
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 Officers 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 Guarantors 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 Issuers 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 persons 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 Officers Certificate
or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such Officers Certificate or Opinion of Counsel. The Trustee
may consult with counsel of its selection and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(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
Trustees 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
Issuers use of the proceeds from the Notes or any money paid to the Issuer or upon the Issuers
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 Trustees 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 Trustees 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 Trustees 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 Trustees 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 Issuers 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 Issuers 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 Issuers 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 Issuers 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 Issuers
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 Issuers 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 Issuers 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 Officers 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 Officers 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 Issuers 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 Officers 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 Trustees 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 Holders 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 Officers
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 Officers 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 Issuers 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 Issuers 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 Officers 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 Issuers 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 Officers 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 Officers 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 Issuers Obligations
.
In the event (i) that the Issuer delivers to the Trustee, in form and substance acceptable to
it, an Officers 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 Issuers 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 Issuers 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 Issuers 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 Guarantors unsecured Senior Indebtedness and Junior Lien
Obligations and, to the extent of the Shared Receivables Collateral, will be effectively
subordinated to the Subsidiary Guarantors 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 Guarantors
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 Guarantors 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 Issuers 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 Officers 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 Guarantors 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 Issuers 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 Issuers 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 Officers 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 Issuers or any Guarantors 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 Officers 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 Officers 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 Officers 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 Womans 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. Marks Lone Peak Hospital, Inc.
Sun City Hospital, Inc.
Sunrise Mountainview Hospital, Inc.
Surgicare of Brandon, Inc.
Surgicare of Florida, Inc.
Surgicare of Houston Womens, 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.
Womans 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
|
|
|
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 Issuers 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 Issuers 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 Holders 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 assignees legal name)
|
|
|
(Insert assignees soc. sec. or tax I.D. no.)
(Print or type assignees 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 Issuers
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 Issuers
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 Subsidiarys unsecured
Senior Indebtedness and Junior Lien Obligations and, to the extent of the Shared Receivables
Collateral, will be effectively subordinated to the Guaranteeing Subsidiarys 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 Guarantors
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 Officers 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 Guarantors 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 Subsidiarys 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 Issuers 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 Officers 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 Subsidiarys 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 4.10
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 RemediesSet-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 Persons 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 Agents 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 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.
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 Persons 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 Agents receipt of such notice), the New First Lien Collateral
Agent shall, at the Companys 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 Agents own name, from time to time, in the ABL
Collateral Agents 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 Agents 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 RemediesSet-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 Grantors 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 Companys 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 officers 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 officers certificate nor Collateral Agents 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 Agents 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 Agents 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 Companys 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 Companys 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
|
|
|