UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of

the Securities Exchange Act of 1934

Date of Report: March 3, 2009

(Date of earliest event reported)

 

 

TENET HEALTHCARE CORPORATION

(Exact name of Registrant as specified in its charter)

 

 

 

Nevada   1-7293   95-2557091
(State of Incorporation)   (Commission File Number)  

(IRS Employer

Identification Number)

13737 Noel Road

Dallas, Texas 75240

(Address of principal executive offices, including zip code)

(469) 893-2200

(Registrant’s telephone number, including area code)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the Registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


Item 1.01 Entry into a Material Definitive Agreement.

 

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

On March 3, 2009, Tenet Healthcare Corporation (“Tenet” or the “Registrant”) exchanged $914,834,000 aggregate principal amount of its outstanding 6.375% Senior Notes due 2011 and $484,453,000 aggregate principal amount of its outstanding 6.50% Senior Notes due 2012 for $699,543,000 aggregate principal amount of new 9.0% Senior Secured Notes due 2015 (the “6-Year Notes”) and $699,543,000 aggregate principal amount of new 10.0% Senior Secured Notes due 2018 (the “9-Year Notes” and, together with the 6-Year Notes, the “New Notes”). The New Notes were offered for exchange only to eligible holders through a private placement and have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), or any state securities laws.

The 6-Year Notes will mature on May 1, 2015 and the 9-Year Notes will mature on May 1, 2018. Interest on the New Notes will be payable semi-annually in arrears on May 1 and November 1 of each year, commencing on May 1, 2009, to holders of record on the immediately preceding April 15 and October 15.

The 6-Year Notes, which are guaranteed by and secured by a pledge of the capital stock and other ownership interests of certain of the Registrant’s subsidiaries, were issued pursuant to an Indenture, dated as of November 6, 2001 (the “Base Indenture”), between Tenet, as issuer, and The Bank of New York Mellon Trust Company, N.A., as successor trustee to The Bank of New York (the “Trustee”), as supplemented by a Ninth Supplemental Indenture (the “Ninth Supplemental Indenture”), dated March 3, 2009, by and among Tenet, the Trustee and the guarantors party thereto. The 9-Year Notes, which are also guaranteed by and secured by a pledge of the capital stock and other ownership interests of certain of the Registrant’s subsidiaries, were issued pursuant to the Base Indenture, as supplemented by a Tenth Supplemental Indenture (the “Tenth Supplemental Indenture” and, together with the Ninth Supplemental Indenture, the “Supplemental Indentures”), dated March 3, 2009, by and among Tenet, the Trustee and the guarantors party thereto.

The New Notes and the related subsidiary guarantees will be the Registrant’s and the subsidiary guarantors’ senior secured obligations and will rank senior to any subordinated indebtedness that the Registrant or such subsidiary guarantors may incur; will be effectively senior to the Registrant’s and such subsidiary guarantors’ existing and future unsecured indebtedness and other liabilities to the extent of the value of the collateral securing the New Notes and the subsidiary guarantees; will be effectively subordinated to the Registrant’s and such subsidiary guarantors’ obligations under the Registrant’s revolving credit facility to the extent of the value of the collateral securing borrowings thereunder; and will be structurally subordinated to all obligations of the Registrant’s non-guarantor subsidiaries.

Each Supplemental Indenture contains covenants that, among other things, restrict the Registrant’s ability and the ability of its subsidiaries to incur liens, consummate asset sales, enter into sale and lease-back transactions or consolidate, merge or sell all or substantially all of their assets, other than in certain transactions between one or more of the Registrant’s wholly owned subsidiaries and the Registrant. These restrictions, however, are subject to a number of important exceptions and qualifications. In particular, there are no restrictions on the Registrant’s ability or the ability of its subsidiaries to incur additional indebtedness, make restricted payments, pay dividends or make distributions in respect of capital stock, purchase or redeem capital stock, enter into transactions with affiliates or make advances to, or invest in, other entities (including unaffiliated entities).

Upon the occurrence of a “change of control” (as defined in the Supplemental Indentures), the Registrant may be required to purchase all or any part of the New Notes at 101% of the aggregate

 

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principal amount of New Notes repurchased, plus accrued and unpaid interest. In addition, subject to certain exceptions and conditions, at any time after May 1, 2012, in the case of the 6-Year Notes, and after May 1, 2014, in the case of the 9-Year Notes, the Registrant may optionally redeem, in whole or in part, the New Notes at the redemption prices set forth in the respective Supplemental Indentures, together with accrued and unpaid interest thereon, if any, to the redemption date.

In connection with the exchange offer, Tenet entered into a Stock Pledge Agreement (the “Pledge Agreement”) on March 3, 2009 with The Bank of New York Mellon Trust Company, N.A., as collateral trustee, and certain subsidiary guarantors of Tenet as pledgors thereto, defining the terms of the pledges that secure the New Notes. Such pledges will secure the payment and performance when due of all of the Registrant’s obligations under the Base Indenture, the Supplemental Indentures and the New Notes as provided in the Pledge Agreement.

In addition, in connection with the exchange offer, Tenet and certain of its subsidiary guarantors entered into a Collateral Trust Agreement (the “Collateral Trust Agreement”) with The Bank of New York Mellon Trust Company, N.A., as collateral trustee, on March 3, 2009. The Collateral Trust Agreement sets forth the terms on which the collateral will be received, held, administered, maintained and enforced and the terms on which the proceeds of all liens upon the capital stock and other ownership interests pledged as collateral at any time in respect of the Registrant’s first-priority stock secured debt and permitted junior stock secured debt shall be distributed, in trust for the benefit of the present and future holders of such first-priority stock secured debt and such permitted junior stock secured debt.

In connection with the issuance of the New Notes, Tenet and the subsidiary guarantors also entered into an Exchange and Registration Rights Agreement (the “Registration Rights Agreement”), dated March 3, 2009, with Citigroup Global Markets Inc., Bank of America Securities LLC, Goldman, Sachs & Co. and Scotia Capital (USA) Inc., as dealer managers for the benefit of the holders defined therein, pursuant to which the Registrant agreed that, if the New Notes are not freely tradable by a specific date, the Registrant will file a registration statement with respect to a registered exchange offer pursuant to which holders of the New Notes can exchange their New Notes and related guarantees for replacement notes and guarantees that are substantially identical in all material respects to the New Notes and that have been registered under the Securities Act.

The foregoing descriptions of the Supplemental Indentures, the Pledge Agreement, the Collateral Trust Agreement and the Registration Rights Agreement do not purport to be complete and are qualified in their entirety by reference to the Ninth Supplemental Indenture, the Tenth Supplemental Indenture, the Pledge Agreement, the Collateral Trust Agreement and the Registration Rights Agreement, which are filed hereto as Exhibits 4.1, 4.2, 10.1, 10.2 and 10.3, respectively, and are incorporated herein by reference.

 

Item 9.01 Financial Statements and Exhibits.

 

  (d)   Exhibits

 

4.1    Ninth Supplemental Indenture, dated as of March 3, 2009, by and among the Registrant, The Bank of New York Mellon Trust Company, N.A., as successor trustee to The Bank of New York, and the guarantors party thereto
4.2    Tenth Supplemental Indenture, dated as of March 3, 2009, by and among the Registrant, The Bank of New York Mellon Trust Company, N.A., as successor trustee to The Bank of New York, and the guarantors party thereto

 

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10.1    Stock Pledge Agreement, dated as of March 3, 2009, by and among the Registrant, as pledgor, The Bank of New York Mellon Trust Company, N.A., as collateral trustee, and the other pledgors party thereto
10.2    Collateral Trust Agreement, dated as of March 3, 2009, by and among the Registrant, as pledgor, The Bank of New York Mellon Trust Company, N.A., as collateral trustee, and the other pledgors party thereto
10.3    Exchange and Registration Rights Agreement, dated as of March 3, 2009, by and among the Registrant, Citigroup Global Markets Inc., Bank of America Securities LLC, Goldman, Sachs & Co. and Scotia Capital (USA) Inc., and the guarantors party thereto

 

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SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

TENET HEALTHCARE CORPORATION
By:  

/s/ Biggs C. Porter

  Biggs C. Porter
  Chief Financial Officer

Date: March 5, 2009

 

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EXHIBIT INDEX

 

Exhibit No.

 

Description

4.1   Ninth Supplemental Indenture, dated as of March 3, 2009, by and among the Registrant, The Bank of New York Mellon Trust Company, N.A., as successor trustee to The Bank of New York, and the guarantors party thereto
4.2   Tenth Supplemental Indenture, dated as of March 3, 2009, by and among the Registrant, The Bank of New York Mellon Trust Company, N.A., as successor trustee to The Bank of New York, and the guarantors party thereto
10.1   Stock Pledge Agreement, dated as of March 3, 2009, by and among the Registrant, as pledgor, The Bank of New York Mellon Trust Company, N.A., as collateral trustee, and the other pledgors party thereto
10.2   Collateral Trust Agreement, dated as of March 3, 2009, by and among the Registrant, as pledgor, The Bank of New York Mellon Trust Company, N.A., as collateral trustee, and the other pledgors party thereto
10.3   Exchange and Registration Rights Agreement, dated as of March 3, 2009, by and among the Registrant, Citigroup Global Markets Inc., Bank of America Securities LLC, Goldman, Sachs & Co. and Scotia Capital (USA) Inc., and the guarantors party thereto

 

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Exhibit 4.1

 

 

 

TENET HEALTHCARE CORPORATION

AND THE GUARANTORS FROM TIME TO TIME PARTY HERETO

 

 

Ninth Supplemental

Indenture

Dated as of March 3, 2009

 

 

(Supplemental to Indenture Dated as of November 6, 2001)

 

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

as Trustee

 

 

 

9.0% Senior Secured Notes Due 2015


TABLE OF CONTENTS

 

            Page
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION    2

Section 1.1.

     Relation to Existing Indenture    2

Section 1.2.

     Definitions    2
ARTICLE TWO GENERAL TERMS AND CONDITIONS OF THE NOTES    18

Section 2.1.

     Form and Dating    18

Section 2.2.

     Execution and Authentication    18

Section 2.3.

     Registrar and Paying Agent    19

Section 2.4.

     Paying Agent to Hold Money in Trust    19

Section 2.5.

     Transfer and Exchange    19
ARTICLE THREE REDEMPTION AND PREPAYMENT    30

Section 3.1.

     Optional Redemption    30

Section 3.2.

     Sinking Fund    31

Section 3.3.

     Offer to Purchase by Application of Balance in Net Available Cash    31

Section 3.4.

     AHYDO Payments    33
ARTICLE FOUR COVENANTS    33

Section 4.1.

     Limitations on Liens    33

Section 4.2.

     Limitations on Sale and Lease-Back Transactions    34

Section 4.3.

     Limitations on Issuances of Guarantees by Subsidiaries    35

Section 4.4.

     Additional Note Guarantees    35

Section 4.5.

     SEC Reports    35

Section 4.6.

     Asset Dispositions    35

Section 4.7.

     Offer to Repurchase Upon Change of Control    37
ARTICLE FIVE REMEDIES    39

Section 5.1.

     Events of Default    39
ARTICLE SIX DEFEASANCE AND COVENANT DEFEASANCE    41

Section 6.1.

     Defeasance and Discharge    41

Section 6.2.

     Covenant Defeasance    42

Section 6.3.

     Conditions to Legal or Covenant Defeasance    42

ARTICLE SEVEN AMENDMENT, SUPPLEMENT AND WAIVER

   44

 

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ARTICLE EIGHT COLLATERAL AND SECURITY    44

Section 8.1.

     Equal and Ratable Sharing of Collateral by Holders of First-Priority Stock Secured Debt    44

Section 8.2.

     Stock Lien Security Documents    45

Section 8.3.

     Release of Security Interests    45

Section 8.4.

     Additional First-Priority Stock Secured Debt    47

Section 8.5.

     Compliance with Trust Indenture Act    47

Section 8.6.

     Collateral Trustee    48

Section 8.7.

     Further Assurances    48
ARTICLE NINE NOTE GUARANTEES    49

Section 9.1.

     Guarantee    49

Section 9.2.

     Limitation on Guarantor Liability    50

Section 9.3.

     Execution and Delivery of Note Guarantee    50

Section 9.4.

     Guarantors May Consolidate, Etc., Only on Certain Terms    50

Section 9.5.

     Releases    51
ARTICLE TEN MISCELLANEOUS    52

Section 10.1.

     Conditions Precedent    52

Section 10.2.

     Relationship to Existing Indenture    52

Section 10.3.

     Modification of the Existing Indenture    52

Section 10.4.

     Notices    52

Section 10.5.

     Governing Law    53

Section 10.6.

     Counterparts    54

Section 10.7.

     Waiver of Jury Trial    54

Section 10.8.

     Force Majeure    54

EXHIBITS

 

Exhibit A    FORM OF NOTE
Exhibit B    FORM OF CERTIFICATE OF TRANSFER
Exhibit C    FORM OF CERTIFICATE OF EXCHANGE
Exhibit D    FORM OF CERTIFICATE OF TRANSFEREE
Exhibit E    FORM OF NOTATION OF GUARANTEE
Exhibit F    FORM OF SUPPLEMENTAL INDENTURE

 

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NINTH SUPPLEMENTAL INDENTURE, dated as of March 3, 2009, among Tenet Healthcare Corporation, a corporation duly organized and existing under the laws of the State of Nevada (herein called the “Company” ), the Guarantors (as defined herein) from time to time party hereto and The Bank of New York Mellon Trust Company, N.A., as successor trustee to The Bank of New York (herein called “Trustee” );

RECITALS:

WHEREAS, the Company has heretofore executed and delivered to The Bank of New York, as predecessor trustee to the Trustee, an Indenture, dated as of November 6, 2001 (the “Existing Indenture” , and the Existing Indenture, as supplemented by this Ninth Supplemental Indenture, the “Indenture” ), providing for the issuance from time to time of the Company’s unsecured debentures, notes or other evidences of indebtedness (herein and therein called the “Securities” ), to be issued in one or more series as provided in the Existing Indenture, among which (i) $1,000,000,000 aggregate principal amount of the Company’s 6.375% Senior Notes due 2011 (the “Old 2011 Notes” ) and (ii) $600,000,000 aggregate principal amount of the Company’s 6.500% Senior Notes due 2012 (the “Old 2012 Notes” and, together with the Old 2011 Notes, the “Old Notes” ), or $1,600,000,000 aggregate principal amount of Old Notes, have been issued and are outstanding on the date hereof;

WHEREAS, pursuant to an offering memorandum dated as of January 22, 2009, as amended by Supplement No. 1 dated January 30, 2009, Supplement No. 2 dated February 4, 2009 and Supplement No. 3 dated February 17, 2009, the Company made an offer to exchange (the “Exchange Offer” ) up to $1,000,000,000 in the aggregate of its Old 2011 Notes and up to $600,000,000 in the aggregate of its Old 2012 Notes for consideration, for each $1,000 principal amount of the outstanding Old Notes tendered in the Exchange Offer, equal to (a) $500 aggregate principal amount of the Company’s new 9.0% Senior Secured Notes due 2015 (the “Notes” ) and (b) $500 aggregate principal amount of the Company’s new 10.0% Senior Secured Notes due 2018 (the “9-Year Notes” ) to those Holders of Old Notes that tendered by February 4, 2009 or (a) $480 aggregate principal amount of the Company’s Notes and (b) $480 aggregate principal amount of the Company’s 9-Year Notes to those Holders of Old Notes that tendered after February 4, 2009.

WHEREAS, Section 901 of the Existing Indenture permits the Company and the Trustee to enter into an indenture supplemental to the Existing Indenture to provide for the issuance of and establish the form and terms and conditions of any additional series of Securities;

WHEREAS, Sections 201, 301 and 901 of the Existing Indenture permit the form of notes of each additional series of notes to be established pursuant to an indenture supplemental to the Existing Indenture;

WHEREAS, Section 301 of the Existing Indenture permits certain terms of any additional series of notes to be established pursuant to an indenture supplemental to the Existing Indenture; and

WHEREAS, pursuant to resolutions of the Board of Directors of the Company adopted at a meeting duly called on December 5, 2008, the Pricing Committee of the Board of Directors of the Company set the terms of the Notes;

WHEREAS, the Holders of $914,834,000 and $484,453,000 in aggregate principal amount of the Old 2011 Notes and the Old 2012 Notes, respectively, which represents $1,399,287,000 in aggregate principal amount of Old Notes, have tendered their notes in the Exchange Offer for $699,543,000 in aggregate principal amount of Notes and $699,543,000 in aggregate principal amount of 9-Year Notes.

 

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WHEREAS, pursuant to written action of the officers of the Company dated March 3, 2009 in accordance with such resolutions, the Company has authorized the issuance of $699,543,000 in aggregate principal amount of the Notes;

WHEREAS, the Company has duly authorized the execution and delivery of this Ninth Supplemental Indenture to establish the form and terms of the Notes;

WHEREAS, all things necessary to make this Ninth Supplemental Indenture a valid and legally binding agreement according to its terms have been done; and

WHEREAS, the foregoing recitals are made as statements of fact by the Company and not by the Trustee;

NOW, THEREFORE, THIS NINTH SUPPLEMENTAL INDENTURE WITNESSETH:

For and in consideration of the premises and the issuance of the Notes provided for herein, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Notes, as follows:

ARTICLE ONE

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

Section 1.1. Relation to Existing Indenture

This Ninth Supplemental Indenture constitutes an integral part of the Existing Indenture (the provisions of which, as modified by this Ninth Supplemental Indenture, shall apply to the Notes) in respect of the Notes but shall not modify, amend or otherwise affect the Existing Indenture insofar as it relates to any other series of Securities or affect in any manner the terms and conditions of the Securities of any other series (including without limitation Old Notes not tendered in the Exchange Offer). To the extent any provision of this Ninth Supplemental Indenture conflicts with the express provisions of the Existing Indenture, the provisions of this Ninth Supplemental Indenture shall govern and be controlling.

Section 1.2. Definitions

For all purposes of this Ninth Supplemental Indenture, the capitalized terms used herein (i) which are defined in this Section 1.2 have the respective meanings assigned thereto in this Section 1.2, and (ii) which are defined in the Existing Indenture (and which are not defined in this Section 1.2) have the respective meanings assigned thereto in the Existing Indenture. For all purposes of this Ninth Supplemental Indenture:

1.2.1 All references herein to Articles and Sections, unless otherwise specified, refer to the corresponding Articles and Sections of this Ninth Supplemental Indenture;

1.2.2 The terms “hereof”, “herein”, “hereby”, “hereto”, “hereunder” and “herewith” refer to this Ninth Supplemental Indenture; and

1.2.3 The following terms, as used herein, have the following meanings:

“9-Year Notes” has the meaning ascribed to it in the second paragraph under the caption “Recitals.”

“144A Global Note” means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Notes issued in reliance on Rule 144A.

 

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“Act of Required Stock Secured Debtholders” means, as to any matter at any time:

(1) prior to the Discharge of First-Priority Stock Secured Obligations, a direction in writing delivered to the Collateral Trustee by or with the written consent of the holders of more than 50% of the sum of:

(a) the aggregate outstanding principal amount of First-Priority Stock Secured Debt (including outstanding letters of credit whether or not then available or drawn); and

(b) other than in connection with the exercise of remedies, the aggregate unfunded commitments to extend credit which, when funded, would constitute First-Priority Stock Secured Debt; and

(2) at any time after the Discharge of First-Priority Stock Secured Obligations, a direction in writing delivered to the Collateral Trustee by or with the written consent of the holders of Junior Stock Secured Debt representing the Required Junior Stock Secured Debtholders.

For purposes of this definition, (a) Stock Secured Debt registered in the name of, or beneficially owned by, the Company or any Affiliate of the Company will be deemed not to be outstanding and (b) votes will be determined in accordance with Section 7.2 of the Collateral Trust Agreement. Any such Act of Required Stock Secured Debtholders shall be accompanied by a certificate signed by an authorized officer of each First-Priority Stock Lien Representative, in the case of clause (1) above, or of each Junior Stock Lien Representative, in the case of clause (2) above, certifying that such written direction is being delivered to the Collateral Trustee by the requisite number of holders for such written direction to constitute an Act of Required Stock Secured Debtholders, and the Collateral Trustee may rely conclusively on, and shall be fully protected in relying upon, such certificate in proceeding with any direction set forth in such Act of Required Stock Secured Debtholders.

“Additional Assets” means:

 

  (1) any property, plant or equipment or other assets or capital expenditures used in a Related Business or that replace the assets that were the subject of the Asset Disposition;

 

  (2) the Capital Stock of a Person that becomes a Subsidiary as a result of the acquisition of such Capital Stock by us or another Subsidiary; or

 

  (3) Capital Stock constituting a minority interest in any Person that at such time is a Subsidiary;

provided , however , that any such Subsidiary described in clause (2) or (3) above is primarily engaged in a Related Business or replaces the assets that were the subject of the Asset Disposition.

“Additional Notes” means additional Notes (other than the Initial Notes) issued under this Ninth Supplemental Indenture in accordance with Section 2.2 hereof, as part of the same series as the Initial Notes.

 

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“Additional Secured Debt Designation” means a notice in substantially the form of Exhibit A to the Collateral Trust Agreement.

“Adjusted Treasury Rate” means, with respect to any Redemption Date:

(1) the yield, under the heading that represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H.15(519)” or any successor publication that is published weekly by the Board of Governors of the Federal Reserve System and that establishes yields on actively traded U.S. Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury Issue; or

(2) if such 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 semi-annual 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 such Redemption Date.

The Adjusted Treasury Rate shall be calculated on the third Business Day preceding the Redemption Date.

“AHYDO Payment Date has the meaning specified in Section 3.4.

“Applicable Premium” means, with respect to any Note on any Redemption Date, the greater of:

(1) 1.0% of the principal amount of the Note on such Redemption Date; or

(2) the excess, if any, of (A) the present value at such Redemption Date of (I) the Redemption Price of the Note at May 1, 2012 (such Redemption Price being set forth in the table appearing in Section 3.1 hereof), plus (II) all required interest payments due on the Note through May 1, 2012 (excluding accrued but unpaid interest to the applicable Redemption Date), computed using a discount rate equal to the Adjusted Treasury Rate as of such Redemption Date plus 50 basis points, over (B) the principal amount of the Note on such Redemption Date.

“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear and Clearstream that apply to such transfer or exchange.

“Asset Disposition” means any sale, lease, transfer or other voluntary disposition (or series of related sales, leases, transfers or dispositions) by the Company or any of its Subsidiaries, including any disposition by means of a merger, consolidation or similar transaction (each referred to for the purposes of this definition as a “disposition” ), of:

 

  (1) any shares of Capital Stock of a Subsidiary of the Company (other than directors’ qualifying shares or shares required by applicable law to be held by a Person other than the Company or one of its Subsidiaries);

 

  (2) all or substantially all the assets of any division or line of business of the Company or any of its Subsidiaries; or

 

  (3) any other assets of the Company or any of its Subsidiaries outside of the ordinary course of business of the Company or such Subsidiary

 

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other than, in the case of clauses (1), (2) and (3) above,

 

  (A) a disposition by a Subsidiary to the Company or by the Company or any Subsidiary to a Subsidiary Guarantor or by any Subsidiary that is not a Subsidiary Guarantor to any Subsidiary;

 

  (B) for purposes of this definition only, a disposition of all or substantially all of the Company’s assets in accordance with Section 801 of the Existing Indenture or any disposition that constitutes a Change of Control;

 

  (C) a disposition of assets with a fair market value of less than $75.0 million;

 

  (D) a disposition of cash or cash equivalents (as set forth on our balance sheet in accordance with GAAP);

 

  (E) the creation of a Lien (but not the sale or other disposition of the property subject to such Lien);

 

  (F) the Qualifying USC Disposition;

 

  (G) a Hospital Swap;

 

  (H) a disposition of property no longer used or useful in the conduct of the business of the Company and its Subsidiaries;

 

  (I) a foreclosure on assets or transfer by reason of eminent domain;

 

  (J) a disposition of an account receivable in connection with the collection or compromise thereof;

 

  (K) a financing transaction with respect to property built or acquired by the Company or any of its Subsidiaries after the date of this Ninth Supplemental Indenture, including Sale and Lease-Back Transactions, in any such case not prohibited by the Indenture;

 

  (L) a disposition in the ordinary course of business by any Subsidiary engaged in the insurance business in order to provide insurance to the Company and its Subsidiaries;

 

  (M) a disposition 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 agreements and similar binding arrangements; and

 

  (N) a disposition of Capital Stock in connection with ordinary course syndications of Subsidiaries or joint ventures owning or operating one or more healthcare facilities, including, without limitation, hospitals, ambulatory surgery centers, outpatient diagnostic centers, imaging centers or long-term care facilities in any transaction or series of related transactions with an aggregate fair market value of less than $100.0 million.

“Asset Disposition Offer” has the meaning specified in Section 3.3.

“Attributable Debt” when used in connection with a Sale and Lease-Back Transaction, means, as of the date of determination, (i) as to any capitalized lease obligations, the liability related thereto set forth

 

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on the consolidated balance sheet of the Company and (ii) as to any operating lease, the present value (discounted at the rate per annum equal to the rate of interest set forth or implicit in the term of the lease, as determined in good faith by the Board of Directors of the Company) of the total obligation of the lessee for net rental payments during the remaining term of the lease (including any period for which an option to extend such lease has been exercised).

“Authentication Order” has the meaning specified in Section 2.2.

“Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.

“Broker-Dealer” has the meaning set forth in the Registration Rights Agreement.

“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 interests (whether general or limited) or membership interests; 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,

but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.

“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 Company and its Subsidiaries, taken as a whole, to any Person; or

 

  (2) the Company 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), 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 40% or more of the total voting power of our Voting Stock;

 

  (3) the Company merges, consolidates or amalgamates with or into any other Person or any other Person merges, consolidates or amalgamates with or into the Company, in any such event pursuant to a transaction in which the outstanding Voting Stock of the Company is reclassified into or exchanged for cash, securities or other property, other than any such transaction where:

 

  (a) the outstanding Voting Stock of the Company is reclassified into or exchanged for other Voting Stock of the Company or for Voting Stock of the surviving Person, and

 

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  (b) the holders of the Voting Stock of the Company immediately prior to such transaction own, directly or indirectly, not less than a majority of the Voting Stock of the Company or the surviving Person immediately after such transaction as before the transaction; or

 

  (4) the first day on which a majority of the Board of Directors of the Company are not Continuing Directors.

“Change of Control Offer” has the meaning specified in Section 4.7.

“Change of Control Payment” has the meaning specified in Section 4.7.

“Change of Control Payment Date” has the meaning specified in Section 4.7.

“Clearstream” means Clearstream Banking, S.A.

“Code” means the Internal Revenue Code of 1986, as amended and as in effect on the date hereof.

“Collateral” has the meaning specified in the Pledge Agreement and the other Stock Lien Security Documents.

“Collateral Trust Agreement” means the Collateral Trust Agreement dated as of March 3, 2009 by and among the Company, the other Pledgors from time to time party thereto, the Trustee, the other Secured Debt Representatives from time to time party thereto and the Collateral Trustee.

“Collateral Trust Joinder” means (1) with respect to the provisions of the Collateral Trust Agreement relating to any Additional Stock Secured Debt, an agreement substantially in the form of Exhibit B to the Collateral Trust Agreement and (2) with respect to the provisions of the Collateral Trust Agreement relating to the addition of additional Pledgors, an agreement substantially in the form of Exhibit C to the Collateral Trust Agreement.

“Collateral Trustee” means The Bank of New York Mellon Trust Company, N.A., in its capacity as Collateral Trustee under the Collateral Trust Agreement, together with its successors in such capacity.

“Comparable Treasury Issue” means the U.S. Treasury security selected by an Independent Investment Banker as having a maturity most nearly equal to the period from the applicable Redemption Date to May 1, 2012, provided, however , that if the period from the Redemption Date to May 1, 2012 is less than one year, the weekly average yield on actually traded U.S. Treasury securities adjusted to a constant maturity of one year will be used.

“Comparable Treasury Price” means, with respect to any Redemption Date, (1) the average of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (2) if the Independent Investment Banker obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.

“Consolidated Net Income” means, for any period, the consolidated net income (or loss) of the Company and its Consolidated Subsidiaries for such period determined in accordance with GAAP.

 

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“Consolidated Total Assets” means, as of any date of determination, after giving pro forma effect to any acquisition of assets on such date, the sum of the amounts that would appear on the consolidated balance sheet of the Company and its Consolidated Subsidiaries as the total assets of the Company and its Consolidated Subsidiaries.

“Continuing Directors” means, as of any date of determination, any member of the Board of Directors of the Company who (1) was a member of such Board of Directors on the date of this Ninth Supplemental Indenture or (2) was nominated for election or elected to such Board of Directors with the approval of the Continuing Directors who were members of such Board of Directors at the time of such nomination or election.

“Covenant Defeasance” has the meaning specified in Section 6.2.

“Credit Agreement” means the Credit Agreement, dated as of November 16, 2006, as amended by Amendment No. 1 dated as of June 27, 2008, among the Company, the lenders and issuers party thereto, Citicorp USA, Inc., as administrative agent, Bank of America, N.A., as syndication agent, Citigroup Global Markets Inc. and Banc of America Securities LLC, as joint lead arrangers and joint lead book runners, and General Electric Capital Corporation and The Bank of Nova Scotia, as co-documentation agents, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, and, in each case, as amended, restated, modified, renewed, refunded, replaced (whether upon or after termination or otherwise) or refinanced by any other Debt (including by means of sales of debt securities and including any amendment, restatement, modification, renewal, refunding, replacement or refinancing) in whole or in part from time to time.

“Custodian” means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto.

“Debt” means, with respect to any specified Person, any debt of such Person in respect of borrowed money, including Guarantees related thereto.

“Defeasance” has the meaning specified in Section 6.1.

“Definitive Note” means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.5 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 2.3 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 the Indenture.

“Discharge of First-Priority Stock Secured Obligations” means the occurrence of all of the following:

(1) termination or expiration of all commitments to extend credit that would constitute First-Priority Stock Secured Debt;

(2) payment in full in cash of the principal of and interest and premium (if any) on all First-Priority Stock Secured Debt (other than any undrawn letters of credit);

(3) discharge or cash collateralization (at the lower of (A) 105% of the aggregate undrawn amount and (B) the percentage of the aggregate undrawn amount required for release of liens under the terms of the applicable First-Priority Stock Lien Document) of all outstanding letters of credit constituting First-Priority Stock Secured Debt; and

 

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(4) payment in full in cash of all other First-Priority Stock Secured Obligations that are outstanding and unpaid at the time the First-Priority Stock Secured Debt is paid in full in cash (other than any obligations for taxes, costs, indemnifications, reimbursements, damages and other liabilities in respect of which no claim or demand for payment has been made at such time).

“Domestic Hospital Subsidiary” means each of the Company’s current and future direct and indirect Subsidiaries organized in a jurisdiction in the United States that (i) owns or operates a hospital or (ii) has a direct or indirect equity ownership interest in a Subsidiary that owns or operates a hospital, other than, in each of the cases (i) and (ii), any such Subsidiary that is a non-wholly-owned Subsidiary if the organizational documents thereof or related joint venture or similar agreements, or applicable law, would (A) prohibit the pledge of the Capital Stock of such Subsidiary without the consent of the equity holders thereof (other than the Company or its wholly owned Subsidiaries) or (B) upon the making of such pledge, trigger in favor of the equity holders thereof (other than the Company or its wholly owned Subsidiaries) rights in respect of the Capital Stock of such Subsidiary.

“DTC” has the meaning specified in Section 2.3.

“EBITDA” means, for any period, (a) Consolidated Net Income for such period plus (b) the sum of, in each case to the extent included in the calculation of such Consolidated Net Income, but without duplication, (i) losses from discontinued operations, (ii) any provision for income taxes, (iii) any loss from the sale of facilities and long term investments, (iv) any expenses attributable to minority interests, (v) Interest Expense, (vi) losses from extraordinary items or from the early extinguishment of debt, (vii) impairments of long-lived assets and goodwill and restructuring charges, (viii) depreciation and amortization expenses and (ix) stock based compensation expense minus (c) the sum of, in each case to the extent included in the calculation of such Consolidated Net Income but without duplication, (i) the cumulative effect (positive or negative, as the case may be) of changes in accounting principle, (ii) income from discontinued operations, (iii) any net credit for taxes, (iv) any income from the sale of facilities and long term investments, (v) any income attributable to minority interests and (vi) income from extraordinary items or from the early extinguishment of debt.

“Exchange Offer” has the meaning specified in the second paragraph under the caption “Recitals.”

“Exchange Registration Statement” has the meaning set forth in the Registration Rights Agreement.

“Exchange Notes” means the notes issued in the Subsequent Exchange Offer pursuant to Section 2.5(f).

“Euroclear” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.

“Event of Default” has the meaning specified in Section 5.1.

“First-Priority Stock Lien” means a Lien granted by a Stock Lien Security Document to the Collateral Trustee, at any time, upon any property of the Company or any other Pledgor to secure First-Priority Stock Secured Obligations.

“First-Priority Stock Lien Documents” means the Note Documents and the indenture, credit agreement or other agreement pursuant to which any First-Priority Stock Secured Obligations are incurred and the Stock Lien Security Documents (other than any Stock Lien Security Documents that do not secure First-Priority Stock Secured Obligations).

 

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“First-Priority Stock Lien Representative” means:

(1) in the case of the Notes or the 9-Year Notes, the Trustee; or

(2) in the case of any other Series of First-Priority Stock Secured Debt, the trustee, agent or representative of the holders of such Series of First-Priority Stock Secured Debt who maintains the transfer register for such Series of First-Priority Stock Secured Debt and (A) is appointed as a representative of the First-Priority Stock Secured Debt (for purposes related to the administration of the Stock Lien Security Documents) pursuant to the credit agreement, indenture or other agreement governing such Series of First-Priority Stock Secured Debt and (B) has executed a Collateral Trust Joinder.

“First-Priority Stock Secured Debt” means:

(1) the Initial Notes issued on the date hereof (including any related Exchange Notes);

(2) the 9-Year Notes issued on the date hereof (including any related exchange notes);

(3) any other Debt (including Additional Notes and additional 9-Year Notes) that is secured equally and ratably with the Notes by a First-Priority Stock Lien that was permitted to be incurred and so secured under each applicable Stock Secured Debt Document; provided , in the case of any Debt referred to in this clause (3), that:

(a) on or before the date on which such Debt is incurred by the Company or any Subsidiary, such Debt is designated by the Company as “First-Priority Stock Secured Debt” for the purposes of the Stock Secured Debt Documents in an Additional Secured Debt Designation executed and delivered in accordance with Section 3.8(a) of the Collateral Trust Agreement; provided , that no Obligation or Debt may be designated as both Junior Stock Secured Debt and First-Priority Stock Secured Debt;

(b) the First-Priority Stock Lien Representative for such Debt executes and delivers a Collateral Trust Joinder in accordance with Section 3.8(b) of the Collateral Trust Agreement; and

(c) all other requirements set forth in Section 3.8 of the Collateral Trust Agreement have been complied with.

“First-Priority Stock Secured Obligations” means the First-Priority Stock Secured Debt and all other Obligations in respect thereof.

“GAAP” means generally accepted accounting principles in the United States of America as in effect from time to time set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and the statements and pronouncements of the Financial Accounting Standards Board, or in such other statements by such other entity (such as International Financial Reporting Standards) as may be in general use by significant segments of the accounting profession, that are applicable to the circumstances as of the date of determination.

 

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“Global Note Legend” means the legend set forth in Section 2.5(g)(2) hereof, which is required to be placed on all Global Notes issued under the Indenture.

“Global Notes” means, individually and collectively, each of the Restricted Global Notes and the Unrestricted Global Notes deposited with or on behalf of and registered in the name of the Depository 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 2.1, 2.5(b)(3), 2.5(b)(4), 2.5(d)(2) or 2.5(f) hereof.

“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, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Debt.

“Guarantors” means the Subsidiary Guarantors and any other Subsidiary of the Company that executes a Note Guarantee in accordance with the provisions of the Indenture, and their respective successors and assigns, in each case, until the Note Guarantee of such Person has been released in accordance with the provisions of the Indenture.

“Hospital Swap” means an exchange of assets and, to the extent necessary to equalize the value of the assets being exchanged, cash by the Company or one of its Subsidiaries for one or more hospitals and/or one or more Related Businesses, or for 100% of the Capital Stock of any Person owning or operating one or more hospitals and/or one or more Related Businesses; provided that cash does not exceed 30% of the sum of the amount of the cash and the fair market value of the Capital Stock or assets received or given by the Company or such Subsidiary in such transaction. Notwithstanding the foregoing, the Company and its Subsidiaries may consummate two Hospital Swaps in any 12-month period without regard to the requirements of the proviso in the previous sentence.

“Independent Investment Banker” means the Reference Treasury Dealers appointed by the Company.

“Indirect Participant” means a Person who holds a beneficial interest in a Global Note through a Participant.

“Initial Notes” means the first $699,543,000 aggregate principal amount of Notes issued under the Indenture on the date hereof.

“Interest Expense” means, for any period, the consolidated total interest expense of the Company and its Consolidated Subsidiaries for such period plus interest capitalized during such period in accordance with GAAP.

“Junior Stock Lien” means a Lien granted by a Stock Lien Security Document to the Collateral Trustee, at any time, upon any property of the Company or any other Pledgor to secure Junior Stock Secured Obligations.

“Junior Stock Lien Documents” means, collectively, any indenture, credit agreement or other agreement governing each Series of Junior Stock Secured Debt and the Stock Lien Security Documents (other than any Stock Lien Security Documents that do not secure Junior Stock Secured Obligations).

“Junior Stock Lien Representative” means, in the case of any Series of Junior Stock Secured Debt, the trustee, agent or representative of the holders of such Series of Junior Stock Secured Debt who maintains the transfer register for such Series of Junior Stock Secured Debt and (A) is appointed as a Junior Stock Lien Representative (for purposes related to the administration of the Stock Lien Security

 

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Documents) pursuant to the indenture, credit agreement or other agreement governing such Series of Junior Stock Secured Debt, together with its successors in such capacity and (B) has executed a Collateral Trust Joinder.

“Junior Stock Secured Debt” means any Debt that is secured by a Junior Stock Lien on the Collateral that was permitted to be incurred and so secured under each applicable Stock Secured Debt Document; provided , that in the case of any such Debt:

(1) on or before the date on which such Debt is incurred by the Company or any Subsidiary, such Debt is designated by the Company as “Junior Stock Secured Debt” for the purposes of the Stock Secured Debt Documents in an Additional Secured Debt Designation executed and delivered in accordance with Section 3.8(a) of the Collateral Trust Agreement; provided , that no Obligation or Debt may be designated as both Junior Stock Secured Debt and First-Priority Stock Secured Debt;

(2) the Junior Stock Lien Representative for such Debt executes and delivers a Collateral Trust Joinder in accordance with Section 3.8(b) of the Collateral Trust Agreement; and

(3) all other requirements set forth in Section 3.8 of the Collateral Trust Agreement have been complied with.

“Junior Stock Secured Obligations” means Junior Stock Secured Debt and all other Obligations in respect thereof.

“Letter of Transmittal” means the letter of transmittal to be prepared by the Company and sent to all Holders of the Notes for use by such Holders in connection with the Subsequent Exchange Offer.

“Liens” means liens, mortgages, pledges, charges, security interests or other encumbrances.

“Net Available Cash” from an Asset Disposition means cash payments received therefrom (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise and proceeds from the sale or other disposition of any securities received as consideration, but only as and when received, but excluding any other consideration received in the form of assumption by the acquiring Person of debt or other obligations relating to such properties or assets or received in any other non-cash form), in each case net of:

 

  (1) all legal, title and recording tax expenses, commissions and other fees and expenses incurred, and all Federal, state, provincial, foreign and local taxes required to be accrued as a liability under GAAP, as a consequence of such Asset Disposition;

 

  (2) all payments made on any debt which is secured by any assets subject to such Asset Disposition, in accordance with the terms of any Lien upon or other security agreement of any kind with respect to such assets, or which must by its terms, or in order to obtain a necessary consent to such Asset Disposition, or by applicable law, be repaid out of the proceeds from such Asset Disposition;

 

  (3) all distributions and other payments required to be made to minority interest holders in Subsidiaries as a result of such Asset Disposition;

 

  (4) the deduction of appropriate amounts provided by the seller as a reserve, in accordance with GAAP, against any liabilities associated with the property or other assets disposed in such Asset Disposition and retained by the Company or any Subsidiaries after such Asset Disposition; and

 

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  (5) any portion of the purchase price from an Asset Disposition placed in escrow, whether as a reserve for adjustment of the purchase price, for satisfaction of indemnities in respect of such Asset Disposition or otherwise in connection with that Asset Disposition; provided , however , that upon the termination of that escrow, Net Available Cash will be increased by any portion of funds in the escrow that are released to the Company or any of its Subsidiaries.

“Note Documents” means the Indenture, the Notes, the Note Guarantees and the Security Documents.

“Note Guarantee” means the Guarantee by each Guarantor of the Company’s Obligations under the Indenture and the Notes, executed pursuant to the provisions of the Indenture.

“Notes” has the meaning assigned to it under the caption “Recitals.” The Initial Notes and the Additional Notes shall be treated as a single class for all purposes under the Indenture, and unless the context otherwise requires, all references to the Notes shall include the Initial Notes and any Additional Notes.

“Obligations” means any principal, interest, premium (if any), penalties, fees, indemnifications, reimbursements, damages, expenses and other liabilities payable under the documentation governing any Debt.

“Officer” means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice-President of such Person.

“Old 2011 Notes” has the meaning specified in the first paragraph under the caption “Recitals.”

“Old 2012 Notes” has the meaning specified in the first paragraph under the caption “Recitals.”

“Old Notes” has the meaning specified in the first paragraph under the caption “Recitals.”

“Other Secured Debt” has the meaning specified in Section 4.1.

“Participant” means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include Euroclear and Clearstream).

“Paying Agent” has the meaning specified in Section 2.3.

“Permitted Credit Agreement Debt” means Debt outstanding under the Credit Agreement in aggregate principal amount not to exceed $800.0 million.

“Permitted Prior Liens” means Liens that arise by operation of law and are not voluntarily granted, to the extent entitled by law to priority over the Liens created by the Stock Lien Security Documents.

“Person” means any individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof.

 

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“Pledge Agreement” means the Stock Pledge Agreement dated as of March 3, 2009 among the Company, the other Pledgors from time to time party thereto and the Collateral Trustee.

“Pledgors” means the Company and any other Person (if any) that at any time provides collateral security for any Stock Secured Obligations.

“Primary Treasury Dealer” means a primary U.S. government securities dealer in New York City.

“Private Placement Legend” means the legend set forth in Section 2.5(g)(1) hereof to be placed on all Notes issued under the Indenture except where otherwise permitted by the provisions of the Indenture.

“Proceeds” means any and all cash, securities and other property realized from collection, sale, foreclosure or enforcement of the Liens upon any Collateral (including distributions of Collateral in satisfaction of any Stock Secured Obligations) after payment of any applicable Permitted Prior Liens.

“Qualified Equity Offering” means the issue and sale of common stock of the Company in a bona fide public or private offering.

“Qualified Institutional Buyer” or “QIB” has the meaning specified in Rule 144A.

“Qualifying USC Disposition” means the sale of USC University Hospital, an acute care hospital located on land leased from the University of Southern California, along with the Norris Cancer Hospital, a facility specializing in cancer treatment on the campus of USC University Hospital, pursuant to a definitive agreement between the Company and/or one of its Affiliates and the University of Southern California and/or one of its Affiliates.

“Reference Treasury Dealer” means:

(1) Citigroup Global Markets Inc. and its successor; provided that , if any of the foregoing ceases to be a Primary Treasury Dealer, the Company will substitute another Primary Treasury Dealer; and

(2) any other Primary Treasury Dealer selected by the Company.

“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, 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 5:00 p.m., New York City time, on the third Business Day preceding such Redemption Date.

“Registrar” has the meaning specified in Section 2.3.

“Registration Rights Agreement” means the Exchange and Registration Rights Agreement, dated as of March 3, 2009 among the Company, the Guarantors and the other parties named on the signature pages thereof, as such agreement may be amended, modified or supplemented from time to time and, with respect to any Additional Notes, one or more registration rights agreements among the Company, the Guarantors and the other parties thereto, as such agreement(s) may be amended, modified or supplemented from time to time, relating to rights given by the Company to the purchasers of Additional Notes to register such Additional Notes under the Securities Act.

“Regulation S” means Regulation S promulgated under the Securities Act.

 

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“Regulation S Global Note” means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Rule 903 of Regulation S.

“Related Business” means a business affiliated or associated with a hospital or any business related or ancillary to the provision of healthcare services or information or the investment in, or the management, leasing or operation of, any of the foregoing.

“Required Junior Stock Secured Debtholders” means, at any time, the holders of more than 50% of the sum of:

(1) the aggregate outstanding principal amount of Junior Stock Secured Debt (including outstanding letters of credit whether or not then available or drawn); and

(2) other than in connection with the exercise of remedies, the aggregate unfunded commitments to extend credit which, when funded, would constitute Junior Stock Secured Debt.

For purposes of this definition, (a) Junior Stock Secured Debt registered in the name of, or beneficially owned by, the Company or any Affiliate of the Company will be deemed not to be outstanding, and (b) votes will be determined in accordance with the provisions of Section 7.2 of the Collateral Trust Agreement. Any written direction or consent from the Required Junior Stock Secured Debtholders shall be accompanied by a certificate signed by an authorized officer of each Junior Stock Lien Representative certifying that such written direction or consent is being delivered to the Collateral Trustee by the requisite number of holders to constitute the Required Junior Stock Secured Debtholders, and the Collateral Trustee may rely conclusively on, and shall be fully protected in relying upon, such certificate in proceeding with any such written direction or consent.

“Restricted Definitive Note” means a Definitive Note bearing the Private Placement Legend.

“Restricted Global Note” means a Global Note bearing the Private Placement Legend.

“Restricted Period” means the 40-day distribution compliance period as defined in Regulation S.

“Rule 144” means Rule 144 under the Securities Act (including any successor rule thereto), as the same may be amended from time to time.

“Rule 144A” means Rule 144A under the Securities Act (including any successor rule thereto), as the same may be amended from time to time.

“Rule 903” means Rule 903 under the Securities Act (including any successor rule thereto), as the same may be amended from time to time.

“Rule 904” means Rule 904 under the Securities Act (including any successor rule thereto), as the same may be amended from time to time.

“Sale and Lease-Back Transactions” means any arrangement with any Person (other than the Company or a Subsidiary), or to which any such Person is a party, providing for the leasing to the Company or a Subsidiary for a period of more than three years of any hospital that has been or is to be sold or transferred by the Company or such Subsidiary to such Person or to any other Person (other than the Company or a Subsidiary), to which the funds have been or are to be advanced by such Person on the security of the leased property.

 

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“Secured Debt” means Debt secured by a Lien upon the property or assets of the Company or any of its direct or indirect Subsidiaries.

“Secured Debt Ratio” means, as of any date of determination, the ratio of (a) Secured Debt to (b) the aggregate amount of EBITDA for the most recent four consecutive fiscal quarters ending prior to such determination date.

“Securities” has the meaning ascribed to it in the first paragraph under the caption “Recitals.”

“Senior Debt” means with respect to any Person:

 

  (1) Debt of such Person, whether outstanding on the date of this Ninth Supplemental Indenture or thereafter incurred; and

 

  (2) all other Obligations of such Person (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to such Person whether or not post-filing interest is allowed in such proceeding) in respect of Debt described in clause (1) above

unless, in the case of clauses (1) and (2), in the instrument creating or evidencing the same or pursuant to which the same is outstanding, it is provided that such Debt or other Obligations are subordinated in right of payment to the Notes or the Note Guarantee of such Person, as the case may be; provided , however , that Senior Debt shall not include:

 

  (1) any Obligation of such Person to the Company or any of its Subsidiaries;

 

  (2) any liability for Federal, state, local or other taxes owed or owing by such Person;

 

  (3) any accounts payable or other liability to trade creditors arising in the ordinary course of business;

 

  (4) any Debt or other Obligation of such Person which is subordinate or junior in any respect to any other Debt or other Obligation of such Person; or

 

  (5) that portion of any Debt which at the time of incurrence is incurred in violation of the Indenture.

“Series of First-Priority Stock Secured Debt” means the Notes, the 9-Year Notes and each other issue or series of First-Priority Stock Secured Debt for which a single transfer register is maintained.

“Series of Junior Stock Secured Debt” means each issue or series of Junior Stock Secured Debt for which a single transfer register is maintained.

“Series of Stock Secured Debt” means, severally, each Series of First-Priority Stock Secured Debt and each Series of Junior Stock Secured Debt.

“Significant Subsidiary” means any 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 date of this Ninth Supplemental Indenture.

“Special Interest” has the meaning set forth in the Registration Rights Agreement.

“Stock Lien Security Documents” means the Collateral Trust Agreement, each Collateral Trust Joinder relating to Stock Secured Debt, and all security agreements, pledge agreements, collateral

 

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assignments, collateral agency agreements, control agreements or other grants or transfers for security executed and delivered by the Company or any other Pledgor creating (or purporting to create) a Lien upon Collateral in favor of the Collateral Trustee, for the benefit of the Stock Secured Parties, in each case, as amended, modified, renewed, restated or replaced, in whole or in part, from time to time, in accordance with its terms and Section 7.2 of the Collateral Trust Agreement.

“Stock Secured Debt” means First-Priority Stock Secured Debt and Junior Stock Secured Debt.

“Stock Secured Debt Documents” means the First-Priority Stock Lien Documents and the Junior Stock Lien Documents.

“Stock Secured Debt Representative” means each First-Priority Stock Lien Representative and each Junior Stock Lien Representative.

“Stock Secured Obligations” means First-Priority Stock Secured Obligations and Junior Stock Secured Obligations.

“Stock Secured Parties” means the holders of Stock Secured Obligations, the Stock Secured Debt Representatives on behalf of the holders of Stock Secured Obligations, and the Collateral Trustee.

“Subsequent Exchange Offer” has the meaning set forth in the Registration Rights Agreement.

“Subsidiary” means, with respect to any Person, (i) any corporation, limited liability company, association or other business entity of which more than 50% of the outstanding voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, managing members or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more other Subsidiaries of that Person (or a combination thereof) and (ii) any partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are such Person or one or more Subsidiaries of such Person (or any combination thereof).

“Subsidiary Guarantors” means each of the Company’s current and future direct and indirect Subsidiaries organized in a jurisdiction in the United States that (i) owns or operates a hospital or (ii) has a direct or indirect equity ownership interest in a Subsidiary that owns or operates a hospital, other than, in each of the cases (i) and (ii), any such Subsidiary that is a non-wholly-owned Subsidiary if the organizational documents thereof or related joint venture or similar agreements, or applicable law, would (A) prohibit the Guarantee of the Notes without the consent of the equity holders thereof (other than the Company or its wholly owned Subsidiaries) or (B) upon the making of such Guarantee, trigger in favor of the equity holders thereof (other than the Company or its wholly owned Subsidiaries) rights in respect of the Capital Stock of such Subsidiary.

“Unrestricted Definitive Note” means a Definitive Note that does not bear and is not required to bear the Private Placement Legend.

“Unrestricted Global Note” means a Global Note that does not bear and is not required to bear the Private Placement Legend.

“Voting Stock” of any specified 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.

 

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ARTICLE TWO

GENERAL TERMS AND CONDITIONS OF THE NOTES

Section 2.1. Form and Dating

(a) General . The Notes and the Trustee’s certificate of authentication will be substantially in the form of Exhibits A hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note will be dated the date of its authentication. The Notes shall be in denominations of $2,000 and integral multiples of $1,000 in excess thereof.

The terms and provisions contained in the Notes will constitute, and are hereby expressly made, a part of this Ninth Supplemental Indenture and the Company, the Guarantors and the Trustee, by their execution and delivery of this Ninth 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 the Indenture, the provisions of the Indenture shall govern and be controlling.

(b) Global Notes . Notes issued in global form will 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 will be substantially in the form of Exhibit A 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 will represent such of the outstanding Notes as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding 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 appropriate, 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 will 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 2.5 hereof.

Section 2.2. Execution and Authentication

At least one Officer must sign the Notes for the Company 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 will nevertheless be valid.

A Note will not be valid until authenticated by the manual signature of the Trustee. The signature will be conclusive evidence that the Note has been authenticated under the Indenture.

The Trustee will, upon receipt of a written order of the Company signed by an Officer (an “ Authentication Order ”), authenticate Notes for original issue that may be validly issued under the Indenture, including any Additional Notes. The aggregate principal amount of Notes outstanding at any time may not exceed the aggregate principal amount of Notes authorized for issuance by the Company pursuant to one or more Authentication Orders, except as provided in Section 306 of the Existing Indenture.

The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Ninth 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 Company.

 

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Section 2.3. Registrar and Paying Agent

The Company will 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 will keep a register of the Notes and of their transfer and exchange. The Company 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 Company may change any Paying Agent or Registrar without notice to any Holder. The Company will notify the Trustee in writing of the name and address of any Agent not a party to the Indenture. If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.

The Company initially appoints The Depository Trust Company ( “DTC” ) to act as Depositary with respect to the Global Notes.

The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to act as Custodian with respect to the Global Notes and the Trustee hereby agrees so to initially act.

Section 2.4. Paying Agent to Hold Money in Trust

The Company will require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium or Special Interest, if any, or interest on the Notes, and will notify the Trustee of any default by the Company 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 Company 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 will have no further liability for the money.

Section 2.5. 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 Company for Definitive Notes if:

(1) the Company delivers to the Trustee notice from the Depositary that it 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 Company within 90 days after the date of such notice from the Depositary;

(2) the Company 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

(3) there has occurred and is continuing an Event of Default with respect to the Notes.

Upon the occurrence of any of the preceding events in (1), (2) or (3) above, Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee. Such Definitive Notes will be issued in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof and will be in registered form only, without coupons. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 304 and 306 of the Existing Indenture. Every Note authenticated and

 

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delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.5 or Section 304 or 306 of the Existing Indenture, 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 2.5(a), however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.5(b), (c) or (f) 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 the Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Notes will be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also will require compliance with either subparagraph (1) or (2) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:

(1) Transfer of Beneficial Interests in the Same Global Note . Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend; provided, however , that prior to the expiration of the Restricted Period, transfers of beneficial interests in the Regulation S Global Note may not be made to a U.S. Person or for the account or benefit of a U.S. Person. Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.5(b)(1).

(2) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all transfers and exchanges of beneficial interests that are not subject to Section 2.5(b)(1) above, the transferor of such beneficial interest must deliver to the Registrar either:

(A) both:

(i) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged; and

(ii) instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase; or

(B) both:

(i) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged; and

(ii) instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (1) above.

 

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Upon consummation of a Subsequent Exchange Offer by the Company in accordance with Section 2.5(f) hereof, the requirements of this Section 2.5(b)(2) shall be deemed to have been satisfied upon receipt by the Registrar of the instructions contained in the Letter of Transmittal delivered by the Holder of such beneficial interests in the Restricted Global Notes. Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Ninth Supplemental Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.5(h) hereof.

(3) Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial interest in any Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of Section 2.5(b)(2) above and the Registrar receives the following:

(A) if the transferee will take delivery in the form of a beneficial interest in the 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof; and

(B) if the transferee will take delivery in the form of a beneficial interest in the Regulation S Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof.

(4) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of Section 2.5(b)(2) above and:

(A) such exchange or transfer is effected pursuant to the Subsequent Exchange Offer in accordance with the Registration Rights Agreement and the holder of the beneficial interest to be transferred, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person participating in the distribution of the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;

(B) such transfer is effected by a Broker-Dealer pursuant to the Exchange Registration Statement in accordance with the Registration Rights Agreement; or

(C) the Registrar receives the following:

(i) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(a) thereof; or

(ii) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

 

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and, in each such case set forth in this subparagraph (C), an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

If any such transfer is effected pursuant to subparagraph (C) above at a time when an Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of an Authentication Order in accordance with Section 2.2 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to subparagraph (C) above.

Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note.

(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.

(1) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If any holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon receipt by the Registrar of the following documentation:

(A) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof;

(B) if such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;

(C) if such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;

(D) if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;

(E) if such beneficial interest is being transferred in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable;

(F) if such beneficial interest is being transferred to the Company or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or

 

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(G) if such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,

the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.5(h) hereof, and the Company shall execute and the Trustee shall 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 in a Restricted Global Note pursuant to this Section 2.5(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.5(c)(1) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.

(2) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes. A holder of a beneficial interest in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only if:

(A) such exchange or transfer is effected pursuant to the Subsequent Exchange Offer in accordance with the Registration Rights Agreement and the holder of such beneficial interest, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person participating in the distribution of the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;

(B) such transfer is effected by a Broker-Dealer pursuant to the Exchange Registration Statement in accordance with the Registration Rights Agreement; or

(C) the Registrar receives the following:

(i) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof; or

(ii) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

and, in each such case set forth in this subparagraph (C), an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

(3) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder of a beneficial interest in an Unrestricted Global Note proposes to exchange such

 

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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 2.5(b)(2) hereof, the Trustee will cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.5(h) hereof, and the Company 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 2.5(c)(3) 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 so registered. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.5(c)(3) will not bear the Private Placement Legend.

(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.

(1) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation:

(A) if the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof;

(B) if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;

(C) if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;

(D) if such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;

(E) if such Restricted Definitive Note is being transferred in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable;

(F) if such Restricted Definitive Note is being transferred to the Company or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or

(G) if such Restricted Definitive Note is being transferred pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,

 

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the Trustee will cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted Global Note, in the case of clause (B) above, the 144A Global Note, and in the case of clause (C) above, the Regulation S Global Note.

(2) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if:

(A) such exchange or transfer is effected pursuant to the Subsequent Exchange Offer in accordance with the Registration Rights Agreement and the Holder, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person participating in the distribution of the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;

(B) such transfer is effected by a Broker-Dealer pursuant to the Exchange Registration Statement in accordance with the Registration Rights Agreement; or

(C) the Registrar receives the following:

(i) if the Holder of such Definitive Notes proposes to exchange such Notes for a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof; or

(ii) if the Holder of such Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

and, in each such case set forth in this subparagraph (C), an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.5(d)(2), the Trustee will cancel the Definitive Notes and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note.

(3) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee will cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes.

If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to subparagraphs (2)(C) or (3) above at a time when an Unrestricted Global Note has not

 

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yet been issued, the Company will issue and, upon receipt of an Authentication Order in accordance with Section 2.2 hereof, the Trustee will authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so transferred.

(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.5(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 2.5(e).

(1) Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be transferred to and registered in the name of Persons who take delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following:

(A) if the transfer will be made pursuant to Rule 144A, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof;

(B) if the transfer will be made pursuant to Rule 903 or Rule 904, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; and

(C) if the transfer will be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable.

(2) Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note if:

(A) such exchange or transfer is effected pursuant to the Subsequent Exchange Offer in accordance with the Registration Rights Agreement and the Holder, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person participating in the distribution of the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;

(B) any such transfer is effected by a Broker-Dealer pursuant to the Exchange Registration Statement in accordance with the Registration Rights Agreement; or

(C) the Registrar receives the following:

(i) if the Holder of such Restricted Definitive Notes proposes to exchange such Notes for an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(d) thereof; or

 

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(ii) if the Holder of such Restricted Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

and, in each such case set forth in this subparagraph (C), an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

(3) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof.

(f) Subsequent Exchange Offer. Upon the occurrence of the Subsequent Exchange Offer in accordance with the Registration Rights Agreement, the Company will issue and, upon receipt of an Authentication Order in accordance with Section 2.2 hereof, the Trustee will authenticate:

(1) one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of the beneficial interests in the Restricted Global Notes accepted for exchange in the Subsequent Exchange Offer by Persons that certify in the applicable Letters of Transmittal that (A) they are not Broker-Dealers, (B) they are not participating in a distribution of the Exchange Notes and (C) they are not affiliates (as defined in Rule 144) of the Company; and

(2) Unrestricted Definitive Notes in an aggregate principal amount equal to the principal amount of the Restricted Definitive Notes accepted for exchange in the Subsequent Exchange Offer by Persons that certify in the applicable Letters of Transmittal that (A) they are not Broker-Dealers, (B) they are not participating in a distribution of the Exchange Notes and (C) they are not affiliates (as defined in Rule 144) of the Company.

Concurrently with the issuance of such Notes, the Trustee will cause the aggregate principal amount of the applicable Restricted Global Notes to be reduced accordingly, and the Company will execute and the Trustee will authenticate and deliver to the Persons designated by the Holders of Definitive Notes so accepted Unrestricted Definitive Notes in the appropriate principal amount.

(g) Legends. The following legends will appear on the face of all Global Notes and Definitive Notes issued under the Indenture unless specifically stated otherwise in the applicable provisions of this Ninth Supplemental Indenture.

(1) Private Placement Legend .

(A) Except as permitted by subparagraph (B) below, each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form:

“THE SALE OF THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, UNTIL SUCH TIME

 

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AS TENET HEALTHCARE CORPORATION (THE “COMPANY”) HAS INSTRUCTED THE TRUSTEE THAT THIS LEGEND NO LONGER APPLIES, THIS NOTE MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER AGREES (1) THAT IT WILL NOT OFFER, RESELL, PLEDGE OR OTHERWISE TRANSFER THE NOTES EVIDENCED HEREBY, EXCEPT (A) TO THE COMPANY; (B) UNDER A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT; (C) TO A PERSON THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, ALL IN COMPLIANCE WITH RULE 144A (IF AVAILABLE); (D) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT; OR (E) UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND (2) THAT IT WILL, PRIOR TO ANY TRANSFER OF THIS NOTE PURSUANT TO THE FOREGOING CLAUSE (E), FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THEY MAY REQUIRE AND MAY RELY UPON TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. IN ANY EVENT, NO AFFILIATE OF THE COMPANY MAY RESELL THIS NOTE OTHER THAN IN CONFORMITY WITH RULE 144 BEFORE ONE YEAR AFTER THE LAST DATE OF ORIGINAL ISSUANCE OF NOTES.”

(B) Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to subparagraphs (b)(4), (c)(2), (c)(3), (d)(2), (d)(3), (e)(2), (e)(3) or (f) of this Section 2.5 (and all Notes issued in exchange therefor or substitution thereof) will not bear the Private Placement Legend. The Company may also provide a certificate to the Trustee instructing the Trustee that the Private Placement Legend no longer applies or issue one or more new Notes to the Trustee in replacement for all or part of the Notes with the Private Placement Legend.

(2) Global Note Legend . Each Global Note will bear a legend in substantially the following form:

“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE 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 (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.5 OF THE NINTH SUPPLEMENTAL INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.5(a) OF THE NINTH SUPPLEMENTAL INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 309 OF THE EXISTING INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF TENET HEALTHCARE CORPORATION.

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

 

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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 COMPANY 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.”

(3) Original Issue Discount Legend . Each Note will bear a legend in substantially the following form:

“FOR UNITED STATES FEDERAL INCOME TAX PURPOSES, THIS NOTE BEARS ORIGINAL ISSUE DISCOUNT. INFORMATION INCLUDING THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, THE ISSUE DATE, AND THE YIELD TO MATURITY WILL BE MADE AVAILABLE TO HOLDERS UPON REQUEST BY THE TREASURER OF THE COMPANY AT 13737 NOEL ROAD, DALLAS, TX 75240.”

(h) 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 canceled in whole and not in part, each such Global Note will be returned to or retained and canceled by the Trustee in accordance with Section 309 of the Existing Indenture. 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 will be reduced accordingly and an endorsement will 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 will be increased accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.

(i) General Provisions Relating to Transfers and Exchanges.

(1) To permit registrations of transfers and exchanges, the Company will execute and the Trustee will authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.2 hereof or at the Registrar’s request.

(2) No service charge will 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 Company 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 304, 906 and 1107 of the Existing Indenture and Sections 3.3, 4.6 and 4.7 hereof).

(3) The Registrar will not be required to register the transfer of or exchange of any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.

 

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(4) All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes will be the valid Obligations of the Company, evidencing the same Debt, and entitled to the same benefits under the Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.

(5) Neither the Registrar nor the Company will 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 1103 of the Existing Indenture and ending at the close of business on the day of selection;

(B) to register the transfer of or to exchange any Note 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.

(6) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company 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 interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall be affected by notice to the contrary.

(7) The Trustee will authenticate Global Notes and Definitive Notes in accordance with the provisions of Section 2.2 hereof.

(8) All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.5 to effect a registration of transfer or exchange may be submitted by facsimile.

ARTICLE THREE

REDEMPTION AND PREPAYMENT

Section 3.1 . Optional Redemption

(a) At any time or from time to time prior to May 1, 2012, the Company, at its option, may redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture with the net cash proceeds of one or more Qualified Equity Offerings at a Redemption Price equal to 109.000% of the principal amount thereof, plus accrued and unpaid interest and Special Interest, if any, to the Redemption Date; provided that:

(1) at least 65% of the aggregate principal amount of Notes issued under the Indenture remains outstanding immediately after the occurrence of such redemption; and

(2) the redemption occurs within 90 days of the date of the closing of any such Qualified Equity Offering.

 

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(b) Except pursuant to the preceding paragraph and paragraph (d) below, the Notes will not be redeemable at the Company’s option prior to May 1, 2012.

(c) At any time or from time to time after May 1, 2012, the Company, at its option, may redeem the Notes, in whole or in part, at the Redemption Prices (expressed as percentages of principal amount) set forth below, together with accrued and unpaid interest thereon and Special Interest, if any, to the applicable Redemption Date, if redeemed during the twelve-month period beginning on May 1 of the years indicated:

 

Year

   Redemption
Price
 

2012

   104.500 %

2013

   102.250 %

2014 and thereafter

   100.000 %

(d) The Company, at its option, may redeem the Notes, in whole or in part, at any time on or prior to May 1, 2012, at a Redemption Price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium as of the Redemption Date, plus accrued and unpaid interest thereon and Special Interest, if any, to, but not including, the Redemption Date.

(e) Any redemption pursuant to this Section 3.1 shall be made pursuant to the provisions of Article Eleven of the Existing Indenture.

Section 3.2. Sinking Fund

The Company is not required to make mandatory sinking fund payments with respect to the Notes.

Section 3.3. Offer to Purchase by Application of Balance in Net Available Cash

In the event that, pursuant to Section 4.6 hereof, the Company is required to commence an offer to all Holders of Notes (and to holders of other First-Priority Stock Secured Debt) to purchase Notes (and such other First-Priority Stock Secured Debt) (an “Asset Disposition Offer” ), it will follow the procedures specified below.

The Asset Disposition Offer shall be made to all Holders of Notes and all holders of other First-Priority Stock Secured Debt. The Asset Disposition Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “ Offer Period ”). No later than three Business Days after the termination of the Offer Period (the “ Purchase Date ”), the Company will apply the Net Available Cash available for the Asset Disposition Offer (the “Offer Amount” ) to the purchase of Notes and such other First-Priority Stock Secured Debt (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other First-Priority Stock Secured Debt tendered in response to the Asset Disposition Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made.

If the Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest and Special Interest, if any, will 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 will be payable to Holders who tender Notes pursuant to the Asset Disposition Offer.

 

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Upon the commencement of an Asset Disposition Offer, the Company will send, by first class mail, a notice to the Trustee and each of the Holders and each of the holders of other First-Priority Stock Secured Debt, with a copy to the Trustee. The notice will contain all instructions and materials necessary to enable such holders to tender Notes and other First-Priority Stock Secured Debt pursuant to the Asset Disposition Offer. The notice, which will govern the terms of the Asset Disposition Offer, will state:

(1) that the Asset Disposition Offer is being made pursuant to this Section 3.3 and Section 4.6 hereof and the length of time the Asset Disposition Offer will remain open;

(2) the Offer Amount, the purchase price and the Purchase Date;

(3) that any Note not tendered or accepted for payment will continue to accrue interest;

(4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Disposition Offer will cease to accrue interest after the Purchase Date;

(5) that Holders electing to have a Note purchased pursuant to an Asset Disposition Offer may elect to have Notes purchased only in denominations of $2,000 and in integral multiples of $1,000 in excess thereof;

(6) that Holders electing to have Notes purchased pursuant to any Asset Disposition Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;

(7) that holders of Notes and other First-Priority Stock Secured Debt will be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the holder, the principal amount of the Note or other First-Priority Stock Secured Debt the holder delivered for purchase and a statement that such holder is withdrawing his election to have such Note or other First-Priority Stock Secured Debt purchased;

(8) that, if the aggregate principal amount of Notes and other First-Priority Stock Secured Debt surrendered by holders thereof exceeds the Offer Amount, the Company will select the Notes and other First-Priority Stock Secured Debt to be purchased on a pro rata basis based on the principal amount of Notes and such other First-Priority Stock Secured Debt surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or integral multiples of $1,000 in excess thereof, will be purchased); and

(9) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer).

On or before the Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes and other First-Priority Stock Secured Debt or portions thereof tendered pursuant to the Asset Disposition Offer, or if less than the Offer Amount has been tendered, all Notes and other First-Priority Stock Secured Debt tendered, and will

 

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deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 3.3. The Company, the Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon written request from the Company, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on the Purchase Date.

Other than as specifically provided in this Section 3.3, any purchase pursuant to this Section 3.3 shall be made pursuant to the provisions of Article Eleven of the Existing Indenture.

Section 3.4. AHYDO Payments

If the Notes would otherwise constitute “applicable high yield discount obligations” within the meaning of Section 163(i)(1) of the Code, and if Section 163(e)(5) of the Code applies to the Notes, then at the end of each accrual period ending after the fifth anniversary of the issue date of such notes (the “ AHYDO Payment Date ”), the Company will be required to redeem for cash a portion of the principal of each such note equal to the amount necessary to avoid the application of Section 163(e)(5) of the Code. No payment pursuant to any other provisions of this Indenture will alter the Company’s obligation to make any such payment with respect to any Notes that remain outstanding on the AHYDO Payment Date.

ARTICLE FOUR

COVENANTS

Section 4.1. Limitations on Liens

The Company covenants and agrees that neither it nor any of its Subsidiaries will issue, incur, create, assume or guarantee (collectively, “ incur ”) any Debt secured by Liens upon property or assets (including the Collateral), unless at the time of and after giving effect to the incurrence of such Debt, the aggregate amount of all such Secured Debt (including the aggregate principal amount of Notes and 9-Year Notes outstanding at such time) shall not exceed the greater of (x) $3.2 billion and (y) the amount which would cause the Secured Debt Ratio to exceed 4.0 to 1.0; provided that the aggregate amount of all such Debt secured by a Lien pari passu to the Lien securing the Notes (including the aggregate principal amount of Notes and 9-Year Notes outstanding at such time) shall not exceed the greater of (a) $2.6 billion and (b) the amount which would cause the Secured Debt Ratio to exceed 3.0 to 1.0. If any such Secured Debt (other than Permitted Credit Agreement Debt) is secured by property or assets other than the Collateral, the Notes shall be secured equally and ratably with, or prior to, such Debt; provided that up to $75.0 million in principal amount of such Secured Debt (“ Other Secured Debt ”) is not subject to the equal and ratable security requirement in this sentence. To the extent that the Company or any of its Subsidiaries incurs any additional Debt permitted under this Section 4.1 (other than Other Secured Debt) that is secured by a Lien pari passu to the Lien securing the Notes or junior Lien on any property or assets, such Liens shall be subject to the Collateral Trust Agreement.

The foregoing provisions shall not apply to:

(1) Liens securing Permitted Credit Agreement Debt;

 

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(2) Liens in favor of the Company or a Domestic Hospital Subsidiary;

(3) Liens existing on the date of this Ninth Supplemental Indenture;

(4) Liens in favor of a government or governmental entity that:

(a) secure Debt that is guaranteed by the government or governmental entity, or

(b) secure Debt 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;

(5) Liens arising in connection with the transfer of tax benefits in accordance with Section 168(f)(8) of the Internal Revenue Code of 1954 (or any similar provision of law from time to time in effect); provided , that such Liens (i) are incurred within 90 days (or any longer period, not in excess of one year, as any such provision of law may from time to time permit) after the acquisition of the property or equipment subject to said Lien, (ii) do not extend to any other property or equipment, and (iii) are solely for the purpose of said transfer of tax benefits;

(6) Liens created in substitution of or as replacements for any Liens permitted by clauses (1) to (5) set forth above, provided that the property encumbered by any substitute or replacement Lien is similar in nature and value to the property encumbered by the Lien that is being replaced, as determined in good faith by an officer of the Company; and

(7) Any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in the foregoing clauses (1) to (6) inclusive of any Debt secured thereby; provided that the principal amount of Debt secured thereby shall not exceed the principal amount of Debt so secured at the time of such extension, renewal or replacement, and that such extension, renewal or replacement Lien shall be limited to all or part of the same property that secured the Lien extended, renewed or replaced (plus improvements on such property).

Section 4.2. Limitations on Sale and Lease-Back Transactions

The Company covenants and agrees that neither it nor any of its Subsidiaries will enter into any Sale and Lease-Back Transaction with another Person, other than the Company or any Guarantor, unless:

(i) the Company or such Subsidiary could incur the Attributable Debt in respect of such Sale and Lease-Back Transaction secured by a Lien on the property to be leased in compliance with Section 4.1 hereof; and

(ii) the Company complies with Section 4.6 hereof.

Notwithstanding the foregoing, the Company and any of its Subsidiaries may enter into any Sale and Lease-Back Transaction, provided that the aggregate Attributable Debt in respect of all such Sale and Lease-Back Transactions does not exceed the greater of (x) $500.0 million and (y) 5% of Consolidated Total Assets.

 

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Section 4.3. Limitations on Issuances of Guarantees by Subsidiaries

The Company will not permit any of its Subsidiaries to Guarantee any Debt of the Company, unless at the time of and after giving effect to the issuance of such Guarantee, the aggregate amount of all such guaranteed Debt (including the aggregate principal amount of Notes and 9-Year Notes outstanding at such time) shall not exceed the greater of (x) $4.2 billion or (y) 5.0 times the aggregate amount of EBITDA for the most recent four consecutive fiscal quarters ending prior to the date of determination; provided that , unless the Notes are secured by substantially all the property and assets (other than accounts receivable and cash) of the Guarantors, the aggregate amount of all such Debt guaranteed by Guarantees that are not subordinated to the Guarantees of the Notes (including the aggregate principal amount of Notes and 9-Year Notes outstanding at such time) shall not exceed the greater of (a) $2.6 billion and (b) 3.0 times the aggregate amount of EBITDA for the most recent four consecutive fiscal quarters ending prior to the date of determination. The foregoing restriction will not prohibit the issuance of Guarantees by any of our Subsidiaries in respect of Permitted Credit Agreement Debt.

Section 4.4. Additional Note Guarantees

The Company shall cause each newly created or acquired direct or indirect Subsidiary organized in a jurisdiction in the United States that (i) owns or operates a hospital or (ii) has a direct or indirect equity interest in a Subsidiary that owns or operates a hospital, other than, in each of the cases (i) and (ii), any such Subsidiary that is a non-wholly-owned Subsidiary if the organizational documents thereof or related joint venture or similar agreements, or applicable law, would (A) prohibit the Guarantee of the Notes without the consent of the equity holders thereof (other than the Company or its wholly owned Subsidiaries) or (B) upon the making of such Guarantee, trigger in favor of the equity holders thereof (other than the Company or its wholly owned Subsidiaries) rights in respect of the Capital Stock of such Subsidiary, to execute and deliver to the Trustee a Note Guarantee pursuant to a supplemental indenture. The form of such Note Guarantee is attached as Exhibit E hereto.

Section 4.5. SEC Reports

If at any time the Company is no longer subject to the periodic reporting requirements of the Exchange Act for any reason, the Company will nevertheless continue to file with the Commission for public availability within the time periods that would have been applicable if the Company were subject to such reporting requirements:

(1) all quarterly and annual reports that would be required to be filed with the Commission on Forms 10-Q and 10-K if the Company were required to file such reports; and

(2) all current reports that would be required to be filed with the Commission on Form 8-K if the Company were required to file such reports.

All such reports shall be prepared in all material respects in accordance with all of the rules and regulations applicable to such reports. Each annual report on Form 10-K shall include a report on the consolidated financial statements of the Company and its Consolidated Subsidiaries by the Company’s certified independent accountants.

Section 4.6. Asset Dispositions

The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, consummate any Asset Disposition unless:

(1) the Company or such Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value, as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition;

 

35


(2) at least 75% of the consideration received in such Asset Disposition by the Company or such Subsidiary is in the form of cash or cash equivalents;

(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company or such Subsidiary, as the case may be:

(A) to the extent the Company elects (or is required by the terms of any Debt), to prepay, repay, redeem or purchase Senior Debt of the Company or of a Guarantor or Debt of a Subsidiary that is not a Guarantor (in each case other than Debt owed to the Company or one of its Subsidiaries) within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; or

(B) to the extent the Company elects, to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and

(4) to the extent of the balance of such Net Available Cash after application in accordance with clauses (3)(A) or (3)(B) above, such balance is applied by the Company or such Subsidiary, as the case may be, to make an Asset Disposition Offer to the Holders of the Notes (and to holders of other First-Priority Stock Secured Debt) to purchase Notes (and such other First-Priority Stock Secured Debt) pursuant to and subject to the conditions contained in this Section and Section 3.3 hereof;

provided , however , that in connection with any prepayment, repayment or purchase of debt pursuant to clause (3)(A) or (4) above, the Company or such Subsidiary shall permanently retire such debt and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; provided , further , however , that, in the case of clause (3)(B) above, a binding commitment shall be treated as a permitted application of the Net Available Cash from the date of such commitment so long as the Company or such Subsidiary enters into such commitment with the good faith expectation that such Net Available Cash will be applied to satisfy such commitment within 180 days of such commitment (an “ acceptable commitment ”); provided , further that if any acceptable commitment is later canceled or terminated for any reason before such Net Available Cash is applied, then such Net Available Cash shall be applied pursuant to clause (4) above.

Notwithstanding the foregoing provisions of the preceding paragraph, the Company and such Subsidiaries will not be required to apply any Net Available Cash in accordance with the preceding paragraph except to the extent that the aggregate Net Available Cash from all Asset Dispositions subject to the preceding paragraph which is not applied in accordance with the preceding paragraph exceeds $100.0 million. Pending application of Net Available Cash pursuant to this Section 4.6, such Net Available Cash may be used in any other manner not prohibited by the Indenture.

For purposes of this Section 4.6, the following are deemed to be cash or cash equivalents:

(1) the assumption or discharge of debt or other liabilities of ours or any Subsidiary and the release of us or such Subsidiary from all liability on such debt or other liability in connection with such Asset Disposition;

(2) securities or other obligations received by us or any Subsidiary from the transferee that are converted by us or such Subsidiary into cash within 180 days of the Asset Disposition, to the extent of the cash received in that conversion; and

(3) Additional Assets.

 

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In the event of an Asset Disposition that requires the purchase of Notes (and other First-Priority Stock Secured Debt), the Company will purchase Notes tendered pursuant to an Asset Disposition Offer by the Company for the Notes (and such other First-Priority Stock Secured Debt) at a purchase price of 100% of their principal amount (or, in the event such other First-Priority Stock Secured Debt was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest and Special Interest, if any (or, in respect of such other First-Priority Stock Secured Debt, such other price, not to exceed 100%, as may be provided for by the terms of such other First-Priority Stock Secured Debt), in accordance with the procedures (including prorating in the event of oversubscription) set forth in Section 3.3 hereof. If there remains a balance of Net Available Cash after purchasing all securities tendered, then such balance may be used in any manner not prohibited by the Indenture. If the aggregate purchase price of the securities tendered exceeds the Net Available Cash allotted to their purchase, the Company will select the securities to be purchased on a pro rata basis but in round denominations, which in the case of the Notes will be denominations of $2,000 principal amount or any greater integral multiple of $1,000 in excess thereof. The Company shall not be required to make such an Asset Disposition Offer to purchase Notes (and other First-Priority Stock Secured Debt) pursuant to this Section 4.6 if the Net Available Cash available therefor is less than $100.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Asset Disposition Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). Upon completion of such an Asset Disposition Offer, Net Available Cash will be deemed to be reduced by the aggregate amount of such Asset Disposition Offer.

The Company will comply, to the extent applicable, with the requirements of Rule 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.6. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.3 hereof or this Section 4.6, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.3 hereof or this Section 4.6 by virtue of such compliance.

Section 4.7. Offer to Repurchase Upon Change of Control

(a) Upon the occurrence of a Change of Control, each Holder of Notes will have the right to require the Company to make an offer (a “Change of Control Offer” ) to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Special Interest, if any, on the Notes repurchased, to the date of purchase (the “Change of Control Payment” ).

Within 30 days following any Change of Control, the Company will mail a notice to each Holder describing the transaction or transactions that constitute the Change of Control and stating:

(1) that the Change of Control Offer is being made pursuant to this Section 4.7 and that all Notes tendered will be accepted for payment;

(2) the purchase price and the purchase date, which shall be no earlier than 30 days and no later than 60 days from the date of such Change of Control (the “Change of Control Payment Date” );

(3) that any Note not tendered will continue to accrue interest;

(4) that, unless the Company 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 after the Change of Control Payment Date;

 

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(5) that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender the Notes, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Paying Agent 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 will be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing his election to have the Notes purchased; and

(7) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of $1,000 in excess thereof.

The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the 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 4.7, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.7 by virtue of such compliance.

(b) On the Change of Control Payment Date, the Company will:

(1) accept for payment all Notes or portions of Notes properly tendered and not validly withdrawn pursuant to the Change of Control Offer;

(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and

(3) 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 of Notes being purchased by the Company.

The Paying Agent will promptly mail to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note issued for surrendered but unpurchased Notes will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. The Company will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.

(c) Notwithstanding anything to the contrary in this Section 4.7, the Company will not be required to make a Change of Control Offer upon 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 4.7 and purchases all Notes properly tendered and not validly withdrawn under the Change of Control Offer.

 

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(d) Notwithstanding anything to contrary in this Section 4.7, 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 the making of the Change of Control Offer.

(e) The Company may, with respect to the Notes, omit in any particular instance to comply with any term, provision or condition set forth in this Section 4.7, if before the time for such compliance the Holders of at least a majority in principal amount of the outstanding Notes shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or effect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect. No supplemental indenture shall, without the consent of the Holder of each Outstanding Note affected thereby, modify any of the provisions of this Section 4.7(e), except to increase the percentage required to waive compliance by the Company of the covenants referenced here, provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section 4.7(e).

ARTICLE FIVE

REMEDIES

Section 5.1. Events of Default

Event of Default ”, wherever used herein with respect to the Notes, 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 the payment of any interest (including any Special Interest) upon any Note when it becomes due and payable, and continuance of such default for a period of 30 days; or

(2) default in the payment of the principal of (or premium, if any) on any Note at its Maturity; or

(3) Reserved; or

(4) default in the performance, or breach, of any covenant or warranty of the Company or any Guarantor in the Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in the Indenture solely for the benefit of series of Securities other than the Notes), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Notes a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or

(5) a default under any bond, debenture, note or other evidence of Debt by the Company or any Guarantor (including a default with respect to Securities of any series other than the Notes) having an aggregate principal amount outstanding in excess of the greater of

 

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(i) $25,000,000 and (ii) 5% of Consolidated Net Tangible Assets, whether such Debt now exists or shall hereafter be created, which default shall constitute a failure to pay principal of such Debt when due and payable (other than as a result of acceleration), after expiration of any applicable grace period with respect thereto, or shall have resulted in such Debt becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, without such Debt having been discharged, such failure to pay at maturity having been cured or paid or such default or acceleration having been rescinded or annulled , within a period of 10 days after there shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 10% in principal amount of the Outstanding Notes a written notice specifying such default and requiring the Company or such Guarantor to cause such Debt to be discharged or cause such acceleration to be rescinded or annulled, as the case may be, and stating that such notice is a “Notice of Default” hereunder; provided, however, that, subject to the provisions of Sections 601 and 602 of the Existing Indenture, the Trustee shall not be deemed to have knowledge of such default unless either (A) a Responsible Officer of the Trustee shall have actual knowledge of such default or (B) the Trustee shall have received written notice thereof from the Company, from any Holder, from the holder of any such Debt or from the trustee under any such mortgage, indenture or other instrument; or

(6) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company, any Guarantor that is a Significant Subsidiary or any group of Guarantors that, taken together, would constitute a Significant Subsidiary in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company, any Guarantor that is a Significant Subsidiary or any group of Guarantors that, taken together, would constitute a Significant Subsidiary a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company, any Guarantor that is a Significant Subsidiary or any group of Guarantors that, taken together, would constitute a Significant Subsidiary under any applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company, any Guarantor that is a Significant Subsidiary or any group of Guarantors that, taken together, would constitute a Significant Subsidiary or of any substantial part of their respective properties, or ordering the winding up or liquidation of their respective affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days; or

(7) the commencement by the Company, any Guarantor that is a Significant Subsidiary or any group of Guarantors that, taken together, would constitute a Significant Subsidiary of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of it in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company, any Guarantor that is a Significant Subsidiary or any group of Guarantors that, taken together, would constitute a Significant Subsidiary or of any substantial part of their respective properties, or the making by the Company, any Guarantor that is a Significant Subsidiary or any group of Guarantors that, taken together, would constitute a Significant Subsidiary of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its

 

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debts generally as they become due, or the taking of corporate, limited liability company or partnership action by the Company, any Guarantor that is a Significant Subsidiary or any group of Guarantors that, taken together, would constitute a Significant Subsidiary in furtherance of any such action; or

(8) failure by the Company to comply with the provisions of Sections 4.6 and 4.7 of this Ninth Supplemental Indenture and continuance of such failure for a period of 30 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Notes a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default”; or

(9) with respect to any Collateral having a fair market value in excess of $25,000,000, (a) the security interest under the Pledge Agreement, at any time, ceases to be in full force and effect for any reason other than in accordance with the terms of the Indenture and the Pledge Agreement and any other Stock Lien Security Document; (b) any security interest created under the Pledge Agreement, such other Stock Lien Security Document relating to the Notes or the Indenture is declared invalid or unenforceable by a court of competent jurisdiction; or (c) the Company or any Subsidiary asserts, in any pleading in any court of competent jurisdiction, that any security interest created under the Pledge Agreement, such other Stock Lien Security Document relating to the Notes or the Indenture is invalid or unenforceable; or

(10) except as permitted by the Indenture or the Note Guarantees, the Note Guarantee of any Guarantor that is a Significant Subsidiary or any group of Guarantors that, taken together, would constitute a Significant Subsidiary shall for any reason cease to be, or shall for any reason be asserted in writing by the Company or any Guarantor not to be, in full force and effect and enforceable in accordance with its terms.

ARTICLE SIX

DEFEASANCE AND COVENANT DEFEASANCE

Section 6.1. Defeasance and Discharge

Upon the Company’s exercise of its option (if any) to have this Section 6.1 applied to the Notes, the Company and each of the Guarantors shall be deemed to have been discharged from their Obligations with respect to the Notes and the Note Guarantees as provided in this Section on and after the date the conditions set forth in Section 6.3 are satisfied (hereinafter called “ Defeasance ”). For this purpose, such Defeasance means that the Company and the Guarantors shall be deemed to have paid and discharged the entire Debt represented by the Notes (including the Note Guarantees) and to have satisfied all their other Obligations under the Notes, the Note Guarantees and the Indenture insofar as the Notes and the Note Guarantees are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments provided to it acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (1) the rights of Holders of the Notes to receive, solely from the trust fund described in Section 6.3 and as more fully set forth in such Section, payments in respect of the principal of and any premium and interest and Special Interest, if any, on the Notes when payments are due, (2) the Company’s Obligations with respect to the Notes under Sections 304, 305, 306, 1002 and 1003 of the Existing Indenture and Section 2.5 of this Ninth Supplemental Indenture, (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (4) this Article. Subject to

 

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compliance with this Article, the Company may exercise its option (if any) to have this Section applied to any Notes notwithstanding the prior exercise of its option (if any) to have Section 6.2 applied to such Notes.

Section 6.2. Covenant Defeasance

Upon the Company’s exercise of its option (if any) to have this Section applied to the Notes, (1) the Company shall be released from its Obligations under Sections 1006 through 1007 of the Existing Indenture, inclusive, and any covenants provided pursuant to Section 301(18), 901(2) or 901(7) of the Existing Indenture for the benefit of the Holders of the Notes and (2) the occurrence of any event specified in Sections 5.1(4) (with respect to any of Sections 1006 through 1007 of the Existing Indenture, inclusive, and any such covenants provided pursuant to Sections 4.1 through 4.7 of this Ninth Supplemental Indenture or Section 301(18), 901(2) or 901(7) of the Existing Indenture) and 5.1(5) and 5.1(8) shall be deemed not to be or result in an Event of Default, in each case with respect to the Notes and Note Guarantees as provided in this Section 6.2 on and after the date the conditions set forth in Section 6.3 are satisfied (hereinafter called “ Covenant Defeasance ”). For this purpose, such Covenant Defeasance means that, with respect to the Notes and Note Guarantees, the Company and the Guarantors may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section (to the extent so specified in the case of Section 5.1(4)), whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision in the Indenture or in any other document, but the remainder of the Indenture and the Notes and Notes Guarantees shall be unaffected thereby.

Section 6.3. Conditions to Legal or Covenant Defeasance

The following shall be the conditions to the application of Section 6.1 or Section 6.2 to the Notes:

(1) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee which satisfies the requirements contemplated by Section 609 of the Existing Indenture and agrees to comply with the provisions of this Article applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefits of the Holders of the Notes, (A) money (in U.S. dollars which shall not be invested) in an amount, or (B) U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination thereof, in each case sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or any such other qualifying trustee) to pay and discharge, the principal of and any premium and interest and Special Interest, if any, on such Notes on the Maturity Date, in accordance with the terms of the Indenture and the Notes. As used herein, “U.S. Government Obligation” means (x) any security which is (i) a direct obligation of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government Obligation which is specified in Clause (x) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any U.S. Government Obligation which is so specified and held, provided that (except

 

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as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt.

(2) In the event of an election to have Section 6.2 apply to the Notes, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date of this instrument, there has been a change in the applicable Federal income tax law, in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders of the Notes will not recognize gain or loss for Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to the Notes and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur.

(3) In the event of an election to have this Section 6.3 apply to the Notes, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Notes will not recognize gain or loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to the Notes and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur.

(4) The Company shall have delivered to the Trustee an Officers’ Certificate to the effect that the Notes, if then listed on any securities exchange, will not be delisted as a result of such deposit.

(5) No event which is, or after notice or lapse of time or both would become, an Event of Default with respect to the Notes shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in Sections 5.1(6) and (7), at any time on or prior to the 90th day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day).

(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities are in default within the meaning of such Act).

(7) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company or any Guarantor is a party or by which it is bound.

(8) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act unless such trust shall be registered under such Act or exempt from registration thereunder.

(9) The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.

 

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ARTICLE SEVEN

AMENDMENT, SUPPLEMENT AND WAIVER

Without the consent of Holders of at least 75% in aggregate principal amount of the Notes then outstanding, an amendment, supplement or waiver may not modify the Pledge Agreement, any other Stock Lien Security Document relating to the Notes or any of the provisions of the Indenture dealing with the pledge or the application of trust moneys, or otherwise release any Collateral, in any manner materially adverse to the Holders other than in accordance with the Indenture, the Pledge Agreement or the applicable Stock Lien Security Document.

ARTICLE EIGHT

COLLATERAL AND SECURITY

Section 8.1. Equal and Ratable Sharing of Collateral by Holders of First-Priority Stock Secured Debt

(a) Notwithstanding (i) anything to the contrary contained in the Stock Lien Security Documents; (ii) the time of incurrence of any Series of First-Priority Stock Secured Debt; (iii) the order or method of attachment or perfection of any Liens securing any Series of First-Priority Stock Secured Debt; (iv) the time or order of filing or recording of financing statements or other documents filed or recorded to perfect any Lien upon any Collateral; (v) the time of taking possession or control over any Collateral; (vi) that any First-Priority Stock Lien may not have been perfected or may be or have become subordinated, by equitable subordination or otherwise, to any other Lien; or (vii) the rules for determining priority under any law governing relative priorities of Liens:

(1) all First-Priority Stock Liens granted at any time by the Company or any other Pledgor shall secure, equally and ratably, all present and future First-Priority Stock Secured Obligations; and

(2) all Proceeds of all First-Priority Stock Liens granted at any time by the Company or any other Pledgor shall be allocated and distributed equally and ratably on account of the First-Priority Stock Secured Debt and other First-Priority Stock Secured Obligations.

The foregoing provision is intended for the benefit of, and shall be enforceable as a third party beneficiary by, each present and future holder of First-Priority Stock Secured Obligations, each present and future First-Priority Stock Lien Representative and the Collateral Trustee as holder of First-Priority Stock Liens. The First-Priority Stock Lien Representative of each future Series of First-Priority Stock Secured Debt shall be required to deliver a Collateral Trust Joinder to the Collateral Trustee at the time of incurrence of such Series of First-Priority Stock Secured Debt, and the Company shall promptly provide the Trustee with a copy of each such Collateral Trust Joinder; provided, however , that the failure to so deliver a copy of such Collateral Trust Joinder to the Trustee shall not affect the status of such future Debt as First-Priority Stock Secured Debt if the other requirements contained in the Collateral Trust Agreement in connection with the incurrence of additional Secured Debt are complied with.

(b) As provided in the Collateral Trust Agreement, the Liens securing the Junior Stock Secured Obligations, if any, are subject and subordinate to the Liens securing the First-Priority Stock Secured Obligations.

(c) The Notes are, and any other Stock Secured Debt permitted to be incurred after the date of this Ninth Supplemental Indenture will be, secured by First-Priority Stock Liens on the Collateral, which consists of the Capital Stock of each of the Company’s Domestic Hospital Subsidiaries. To the extent that the Company or any of its Subsidiaries incurs any Debt (other than Permitted Credit

 

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Agreement Debt) that is secured by a first priority or junior Lien on any property or assets of the Company or its Subsidiaries other than the Collateral, the Company will cause the Notes to be secured equally and ratably with, or prior to, such Debt and such Liens will be subject to the Collateral Trust Agreement; provided that the Other Secured Debt is not subject to the equal and ratable security requirement in this sentence.

Section 8.2. Stock Lien Security Documents

The due and punctual payment of the principal of and interest and Special Interest, if any, on the Notes when and as the same shall be due and payable, whether on an Interest Payment Date, at Maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of and interest and Special Interest (to the extent permitted by law), if any, on the Notes and performance of all other obligations of the Company and the Guarantors to the Holders of Notes or the Trustee under the Indenture and the Notes, according to the terms hereunder or thereunder, are secured as provided in the Stock Lien Security Documents which the Company and the Pledgors have entered into in connection with the execution of this Ninth Supplemental Indenture. Each Holder of Notes, by its acceptance thereof, consents and agrees to the terms of the Stock Lien Security Documents (including, without limitation, the provisions providing for foreclosure and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with its terms and authorizes and directs the Collateral Trustee to enter into the Stock Lien Security Documents and to perform its obligations and exercise its rights thereunder in accordance therewith. The Company will deliver to the Trustee copies of all documents delivered to the Collateral Trustee pursuant to the Stock Lien Security Documents, and will do or cause to be done all such acts and things as may be necessary or proper, or as may be required by the provisions of the Stock Lien Security Documents, to assure and confirm to the Trustee and the Collateral Trustee the security interest in the Collateral contemplated hereby, by the Stock Lien Security Documents or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of the Indenture and of the Notes secured hereby, according to the intent and purposes herein expressed. The Company will take, and will cause its Subsidiaries to take any and all actions reasonably required under applicable law to cause the Stock Lien Security Documents to create and maintain, as security for the Obligations of the Company hereunder, a valid and enforceable perfected first priority Lien in and on all the Collateral, in favor of the Collateral Trustee for the benefit of the Holders of Notes, superior to and prior to the rights of all third Persons and subject to no other Liens (other than Permitted Prior Liens).

Each Holder of the Notes, by acceptance of the Notes, hereby authorizes the Trustee and the Collateral Trustee, as applicable, on behalf of and for the benefit of the Holders, to be the agent for and representative of the Holders with respect to the Note Guarantees, the Collateral and the Stock Lien Security Documents.

Anything contained in any of the Note Documents to the contrary notwithstanding, each Holder hereby agrees that no Holder or the Trustee shall have any right individually to realize upon any of the Collateral, it being understood and agreed that all powers, rights and remedies of the Trustee hereunder may be exercised solely by the Trustee in accordance with the terms hereof and all powers, rights and remedies in respect of the Collateral under the Stock Lien Security Documents may be exercised solely by the Collateral Trustee and its agents.

Section 8.3. Release of Security Interests

(a) In accordance with the provisions of the Collateral Trust Agreement or as provided hereby, the Collateral Trustee’s Liens upon the Collateral will be released:

(1) in whole, upon (A) payment in full and discharge of all outstanding Stock Secured Debt and all other Stock Secured Obligations that are outstanding, due and payable at the

 

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time all of the Stock Secured Debt is paid in full and discharged and (B) termination or expiration of all commitments to extend credit under all Stock Secured Debt Documents and the cancellation or termination or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the applicable Stock Secured Debt Documents) of all outstanding letters of credit, if any, issued pursuant to any Stock Secured Debt Documents;

(2) as to any Collateral that is sold, transferred or otherwise disposed of by the Company or any other Pledgor (including by way of merger or consolidation) to a Person that is not (either before or after such sale, transfer or disposition) the Company or a Guarantor in a transaction or other circumstance that does not violate Section 4.6 hereof and is not prohibited by any of the other Stock Secured Debt Documents, at the time of such sale, transfer or other disposition or to the extent of the interest sold, transferred or otherwise disposed of; provided , that the Collateral Trustee’s Liens upon the Collateral will not be released if the sale or disposition is subject to Section 801 of the Existing Indenture or Section 9.4 hereof;

(3) as to any Collateral constituting pledged Capital Stock of a Subsidiary of the Company, upon liquidation and dissolution of that Subsidiary in a transaction that is not prohibited by any of the Stock Secured Debt Documents;

(4) as to any Collateral owned by a Guarantor, upon the release of that Guarantor from its Guarantee in accordance with the terms of the Stock Secured Debt Documents;

(5) as to a release of any or all of the Collateral, if (A) consent to release of that Collateral has been given by the requisite percentage or number of holders of each Series of Stock Secured Debt at the time outstanding as provided for in the applicable Stock Secured Debt Documents and (B) the Company has delivered an Officers’ Certificate to the Collateral Trustee certifying that any such necessary consents have been obtained; and

(6) as otherwise permitted by the Indenture and each other Stock Secured Debt Document.

(b) With respect to the Notes, the Collateral Trustee’s First-Priority Stock Lien upon the Collateral will no longer secure the Notes outstanding under the Indenture or any other Obligations in respect of such Notes under the Indenture, and the right of the Holders of Notes and such Obligations to the benefits and Proceeds of the Collateral Trustee’s First-Priority Stock Lien on the Collateral will terminate and be discharged:

(1) upon satisfaction and discharge of the Indenture as set forth under Article Four of the Existing Indenture;

(2) upon a Defeasance or Covenant Defeasance of the Notes as set forth under Article Six hereof;

(3) upon payment in full and discharge of all Notes outstanding under the Indenture and all Obligations in respect of such Notes that are outstanding, due and payable under the Indenture at the time the Notes are paid in full and discharged; or

(4) in whole or in part, with the consent of the Holders of the requisite percentage of the Notes then outstanding in accordance with Article Nine of the Existing Indenture, as supplemented by Article Seven of this Ninth Supplemental Indenture.

 

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In addition the Company shall deliver an Officers’ Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to the release of such First-Priority Stock Liens have been satisfied.

Section 8.4. Additional First-Priority Stock Secured Debt

Subject to the provisions of the Indenture and the other Stock Lien Security Documents, the Company may incur additional First-Priority Stock Secured Debt by issuing Additional Notes under the Indenture or issuing or increasing any other Series of First-Priority Stock Secured Debt. All additional First-Priority Stock Secured Debt will be pari passu with the Notes and will be secured by the Collateral equally and ratably with the Notes for as long as the Notes and the Note Guarantees are secured by the Collateral. The additional First-Priority Stock Secured Debt will only be permitted to be secured by the Collateral if such Debt and the related Liens are permitted to be incurred under the Indenture, including Section 4.1 hereof.

The Collateral Trust Agreement sets forth the procedures pursuant to which an additional series of Debt can become an additional Series of First-Priority Stock Secured Debt that is entitled to be secured equally and ratably with the Notes by the Liens on the Collateral granted to the Collateral Trustee. The Indenture and all future First-Priority Stock Lien Documents will be required to provide that, notwithstanding (i) anything to the contrary contained in the Stock Lien Security Documents; (ii) the time of incurrence of any Series of First-Priority Stock Secured Debt; (iii) the order or method of attachment or perfection of any Liens securing any Series of First-Priority Stock Secured Debt; (iv) the time or order of filing or recording of financing statements or other documents filed or recorded to perfect any Lien upon any Collateral; (v) the time of taking possession or control over any Collateral; (vi) that any First-Priority Stock Lien may not have been perfected or may be or have become subordinated, by equitable subordination or otherwise, to any other Lien; or (vii) the rules for determining priority under any law governing relative priorities of Liens:

(1) all First-Priority Stock Liens granted at any time by the Company or any other Pledgor secure, equally and ratably, all present and future First-Priority Stock Secured Obligations; and

(2) all Proceeds of all First-Priority Stock Liens granted at any time by the Company or any other Pledgor will be allocated and distributed equally and ratably on account of the First-Priority Stock Secured Debt and other First-Priority Stock Secured Obligations.

The First-Priority Stock Lien Representative of each future Series of First-Priority Stock Secured Debt shall be required to deliver a Collateral Trust Joinder to the Collateral Trustee at the time of incurrence of such Series of First-Priority Stock Secured Debt, and the Company shall promptly provide the Trustee with a copy of each such Collateral Trust Joinder; provided, however , that the failure to so deliver a copy of such Collateral Trust Joinder to the Trustee shall not affect the status of such future Debt as First-Priority Stock Secured Debt if the other requirements contained in the Collateral Trust Agreement in connection with the incurrence of additional Secured Debt are complied with.

The Company may also incur new or additional Junior Stock Secured Debt in accordance with the provisions of the Indenture and the Collateral Trust Agreement.

Section 8.5. Compliance with Trust Indenture Act

The Company shall comply with the provisions of TIA §314. The Company shall deliver to the Trustee the Opinion of Counsel required in accordance with TIA § 314(b) by no later than March 3 of each year commencing March 3, 2010.

 

47


(a) To the extent applicable, the Company shall cause TIA §313(b), relating to reports, and TIA §314(d), relating to the release of property or securities or relating to the substitution therefor of any property or securities to be subjected to the Lien of the Stock Lien Security Documents, to be complied with. Any certificate or opinion required by TIA §314(d) may be made by an Officer of the Company except in cases where TIA §314(d) requires that such certificate or opinion be made by an independent Person, which Person will be an independent engineer, appraiser or other expert selected or reasonably satisfactory to the Trustee.

(b) Notwithstanding anything to the contrary in Section 8.5(a), the Company shall not be required to comply with all or any portion of TIA §314(d) if it determines, in good faith based on advice of counsel, that under the terms of TIA §314(d) and/or any interpretation or guidance as to the meaning thereof of the Commission and its staff, including “no action” letters or exemptive orders, all or any portion of TIA §314(d) is inapplicable to one or a series of released Collateral.

Section 8.6. Collateral Trustee

(a) The Company has appointed The Bank of New York Mellon Trust Company, N.A. to serve as the Collateral Trustee for the benefit of, among others, the Holders of the Notes and the Holders of future Stock Secured Obligations.

(b) The Collateral Trustee (directly or through co-trustees or agents) will hold, and will be entitled to enforce, all Liens on the Collateral created by the Stock Lien Security Documents.

(c) Except as provided in the Stock Lien Security Documents, Collateral Trust Agreement or as directed by an Act of Required Stock Secured Debtholders, the Collateral Trustee will not be obligated:

(1) to act upon directions purported to be delivered to it by any Person in respect of the Collateral;

(2) to foreclose upon or otherwise enforce any Lien on the Collateral; or

(3) to take any other action whatsoever with regard to any or all of the Stock Lien Security Documents, the Liens created thereby or the Collateral.

Section 8.7. Further Assurances

(a) The Company and each of the other Pledgors will do or cause to be done all acts and things that may be required to assure and confirm that the Collateral Trustee holds, for the benefit of the holders of Stock Secured Obligations, duly created and enforceable and perfected Liens upon the Collateral (including any property or assets that are acquired or otherwise become Collateral after the date hereof), in each case as contemplated by, and with the Lien priority required under, the Stock Secured Debt Documents.

(b) The Company and each of the Pledgors shall promptly execute, acknowledge and deliver such security documents, instruments, certificates, notices and other documents, and take such other actions as may be reasonably required to create, perfect, protect, assure or enforce the Liens and benefits intended to be conferred, in each case as contemplated by the Stock Secured Debt Documents for the benefit of the holders of Stock Secured Obligations.

 

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ARTICLE NINE

NOTE GUARANTEES

Section 9.1. Guarantee

(a) Subject to this Article Nine, each of the Guarantors hereby, jointly and severally, 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 the Indenture, the Notes or the Obligations of the Company hereunder or thereunder, that:

(1) the principal of, premium and Special Interest, if any, and interest 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 Company 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

(2) 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 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 will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.

(b) The Guarantors hereby agree that their Obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability of the Notes or the 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 Company, 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 Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Note Guarantee will not be discharged except by complete performance of the obligations contained in the Notes and the Indenture.

(c) If any Holder, the Trustee or the Collateral Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee, Collateral Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.

(d) Each Guarantor agrees that it will 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 Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the Maturity of the Obligations guaranteed hereby may be accelerated as provided in Article Five of the Existing Indenture (as amended hereby) for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such Obligations as provided in Article Five of the Existing Indenture (as amended

 

49


hereby), such Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantors for the purpose of this Note Guarantee. The Guarantors will 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 the Note Guarantee.

Section 9.2. Limitation on Guarantor Liability

By its execution of this Ninth Supplemental Indenture, each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such 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 Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the Obligations of such Guarantor will be limited to the maximum amount that will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such 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 Guarantor in respect of the Obligations of such other Guarantor under this Article Nine, result in the Obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance.

Section 9.3. Execution and Delivery of Note Guarantee

To evidence its Note Guarantee set forth in Section 9.1 hereof, each Guarantor hereby agrees that a notation of such Note Guarantee substantially in the form attached as Exhibit E hereto will be endorsed by an Officer of such Guarantor on each Note authenticated and delivered by the Trustee and that this Ninth Supplemental Indenture will be executed on behalf of such Guarantor by one of its Officers.

Each Guarantor hereby agrees that its Note Guarantee set forth in Section 9.1 hereof will remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Note Guarantee.

If an Officer whose signature is on this Ninth Supplemental Indenture or on the Note Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a Note Guarantee is endorsed, the Note Guarantee will be valid nevertheless.

The delivery of any Note by the Trustee, after the authentication thereof hereunder, will constitute due delivery of the Note Guarantee set forth in this Ninth Supplemental Indenture on behalf of the Guarantors.

Section 9.4. Guarantors May Consolidate, Etc., Only on Certain Terms

Except as otherwise provided in Section 9.5 hereof, no Guarantor shall, and the Company will not permit any Guarantor to, consolidate with or merge with or into any other Person or convey, transfer or lease all or substantially all of its properties and assets to any Person, and no Guarantor shall, and the Company will not permit any Guarantor to, permit any Person to consolidate with or merge into such Guarantor or convey, transfer or lease its properties and assets substantially as an entirety to such Guarantor, unless:

(1) subject to Section 9.5 hereof, either such Guarantor shall be the surviving corporation of such consolidation or merger or the resultant or successor corporation shall be a corporation organized and validly existing under the laws of the United States of America, any State thereof or the District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all of the Obligations of such Guarantor under the Indenture and such Guarantor’s Guarantee; and

 

50


(2) immediately 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 happened and be continuing.

The Company shall deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.

In case of any such consolidation, merger, conveyance, transfer or lease and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the Note Guarantee endorsed upon the Notes and the due and punctual performance of all of the covenants and conditions of the Indenture to be performed by the Guarantor, such successor Person will succeed to and be substituted for the Guarantor with the same effect as if it had been named herein as a Guarantor. Such successor Person thereupon may cause to be signed any or all of the Note Guarantees to be endorsed upon all of the Notes issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee. All the Note Guarantees so issued will in all respects have the same legal rank and benefit under the Indenture as the Note Guarantees theretofore and thereafter issued in accordance with the terms of the Indenture as though all of such Note Guarantees had been issued at the date of the execution hereof.

Section 9.5. Releases

(a) Upon the full and final payment and performance of all Obligations under the Indenture and the Notes, each Guarantor will be released and relieved of any Obligations under its Note Guarantee.

(b) In the event of any sale or other disposition of all of the Capital Stock of any Guarantor (including by way of merger, consolidation or otherwise) to a Person that is not (either before or after giving effect to such transaction) the Company or a Subsidiary of the Company in a transaction that is not prohibited by the Indenture, then such Guarantor will be released and relieved of any obligations under its Note Guarantee; provided that the Net Available Cash from such sale or other disposition are applied in accordance with the applicable provisions of the Indenture, including without limitation Section 4.6 hereof. Upon delivery by the Company to the Trustee of an Officers’ Certificate and an Opinion of Counsel to the effect that such sale or other disposition was made by the Company in accordance with the provisions of the Indenture, including without limitation Section 4.6 hereof, the Trustee will execute any documents reasonably required and provided to it in order to evidence the release of any Guarantor from its obligations under its Note Guarantee.

(c) Upon liquidation and dissolution of any Guarantor in a transaction that is not prohibited by the Indenture, such Guarantor will be released and relieved of any obligations under its Note Guarantee.

(d) Upon Defeasance of the Notes in accordance with Article Six hereof or satisfaction and discharge of the Indenture in accordance with Article Four of the Existing Indenture, each Guarantor will be released and relieved of any obligations under its Note Guarantee.

Any Guarantor not released from its obligations under its Note Guarantee as provided in this Section 9.5 will remain liable for the full amount of principal of and interest and premium and Special Interest, if any, on the Notes and for the other obligations of any Guarantor under the Indenture as provided in this Article Nine.

 

51


ARTICLE TEN

MISCELLANEOUS

Section 10.1. Conditions Precedent

The effectiveness of this Ninth Supplemental Indenture is conditioned upon the receipt by the Trustee of the items specified in Section 903 of the Existing Indenture.

Section 10.2. Relationship to Existing Indenture

The Ninth Supplemental Indenture is a supplemental indenture within the meaning of the Existing Indenture. The Existing Indenture, as supplemented and amended by this Ninth Supplemental Indenture is in all respects ratified, confirmed and approved and, with respect to the Notes, the Existing Indenture, as supplemented and amended by this Ninth Supplemental Indenture, shall be read, taken and construed as one and the same instrument.

Section 10.3. Modification of the Existing Indenture

Except as expressly modified by this Ninth Supplemental Indenture, the provisions of the Existing Indenture shall govern the terms and conditions of the Notes.

Section 10.4. Notices

Any notice or communication by the Company, any Guarantor or the Trustee to the others is duly given if it writing and delivered in Person or by first class mail (registered or certified, return receipt requested), facsimile transmission or overnight air courier guaranteeing next day delivery, to the others’ address:

If to the Company and/or any Guarantor:

Tenet Healthcare Corporation

13737 Noel Road

Dallas, TX 75240

Facsimile No.: (469) 893-3582

Attention: General Counsel

With a copy to:

Latham & Watkins LLP

355 South Grand Avenue

Los Angeles, CA 90071

Facsimile No.: (213) 891-8763

Attention: Steven B. Stokdyk

 

52


If to the Trustee:

The Bank of New York Mellon Trust Company, N.A.

700 South Flower Street, Suite 500

Los Angeles, CA 90017

Facsimile No.: (213) 630-6298

Attention: Corporate Unit

The Company, any 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) will be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by facsimile; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.

The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, pdf, facsimile transmission or other similar unsecured electronic methods; provided, however , that (a) the party providing such written instructions, subsequent to such transmission of written instructions, shall provide the originally executed instructions or directions to the Trustee in a timely manner, and (b) such originally executed instructions or directions shall be signed by an authorized representative of the party providing such instructions or directions. If the party elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The party providing electronic instructions agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.

Any notice or communication to a Holder will 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 will also be so mailed to any Person described in TIA § 313(c), to the extent required by the TIA. Failure to mail a notice or communication to a Holder or any defect in it will 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 Company mails a notice or communication to Holders, it will mail a copy to the Trustee and each Agent at the same time.

Section 10.5. Governing Law

This instrument shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflicts of laws principles thereof.

 

53


Section 10.6. Counterparts

This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.

Section 10.7. Waiver of Jury Trial

EACH OF THE COMPANY 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 INDENTURE, THE OLD NOTES, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 10.8. Force Majeure

In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its 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 and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

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.

[Signatures on following page]

 

54


Dated as of March 3, 2009

 

TENET HEALTHCARE CORPORATION
By:  

/s/    Biggs C. Porter

Name:   Biggs C. Porter
Title:   Chief Financial Officer
CGH HOSPITAL, LTD.
By CORAL GABLES HOSPITAL, INC., its
General Partner

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer
FMC HOSPITAL, LTD.
By FMC ACQUISITION, INC., its General Partner

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer
HILTON HEAD HEALTH SYSTEM, L.P.
By TENET PHYSICIAN SERVICES—
HILTON HEAD, INC., its General Partner

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer

 

55


NEW MEDICAL HORIZONS II, LTD.
By CYPRESS FAIRBANKS MEDICAL CENTER, INC., its General Partner

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer

NORTHSHORE REGIONAL MEDICAL

CENTER, L.L.C.

By TENET LOUISIANA, INC., its Managing Member

/s/     Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer
TENET FRISCO, LTD.
By TENET TEXAS, INC., its General Partner

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer
TENET HEALTHSYSTEM HAHNEMANN, L.L.C.
By TENET HEALTHSYSTEM PHILADELPHIA, INC., its Managing Member

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer

 

56


TENET HEALTHSYSTEM ST. CHRISTOPHER’S HOSPITAL FOR CHILDREN, L.L.C.
By TENET HEALTHSYSTEM PHILADELPHIA, INC., its Managing Member

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer
TENET HOSPITALS LIMITED
By TENET TEXAS, INC., its General Partner

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer
TH HEALTHCARE, LTD.
By LIFEMARK HOSPITALS, INC., its General Partner

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer

 

57


AMERICAN MEDICAL (CENTRAL), INC.
AMI INFORMATION SYSTEMS GROUP, INC.
AMISUB (HEIGHTS), INC.
AMISUB (HILTON HEAD), INC.
AMISUB (SFH), INC.
AMISUB (TWELVE OAKS), INC.
AMISUB OF NORTH CAROLINA, INC.
AMISUB OF SOUTH CAROLINA, INC.
AMISUB OF TEXAS, INC.
BROOKWOOD HEALTH SERVICES, INC.
COASTAL CAROLINA MEDICAL CENTER, INC.
COMMUNITY HOSPITAL OF LOS GATOS, INC.
CORAL GABLES HOSPITAL, INC.
CYPRESS FAIRBANKS MEDICAL CENTER, INC.
DELRAY MEDICAL CENTER, INC.
DOCTORS HOSPITAL OF MANTECA, INC.
DOCTORS MEDICAL CENTER OF MODESTO, INC.
EAST COOPER COMMUNITY HOSPITAL, INC.
FMC ACQUISITION, INC.
FMC MEDICAL, INC.
FOUNTAIN VALLEY REGIONAL HOSPITAL AND MEDICAL CENTER
FRYE REGIONAL MEDICAL CENTER, INC.
JFK MEMORIAL HOSPITAL, INC.
LAKEWOOD REGIONAL MEDICAL CENTER, INC.
LIFEMARK HOSPITALS OF FLORIDA, INC.
LIFEMARK HOSPITALS, INC.
LOS ALAMITOS MEDICAL CENTER, INC.
MCF, INC.
NORTH FULTON MEDICAL CENTER, INC.
ORNDA HOSPITAL CORPORATION
PALM BEACH GARDENS COMMUNITY HOSPITAL, INC.
PLACENTIA-LINDA HOSPITAL, INC.
SAN RAMON REGIONAL MEDICAL CENTER, INC.
SIERRA VISTA HOSPITAL, INC.
TENET CALIFORNIA, INC.
TENET FLORIDA, INC.
TENET GOOD SAMARITAN, INC.
TENET HEALTHSYSTEM BARTLETT, INC.
TENET HEALTHSYSTEM CFMC, INC.

TENET HEALTHSYSTEM DESERT, INC.

TENET HEALTHSYSTEM DI, INC.
TENET HEALTHSYSTEM GB, INC.
TENET HEALTHSYSTEM HEALTHCORP
TENET HEALTHSYSTEM HOLDINGS, INC.
TENET HEALTHSYSTEM MEDICAL, INC.
TENET HEALTHSYSTEM NORRIS, INC.
TENET HEALTHSYSTEM NORTH SHORE, INC.
TENET HEALTHSYSTEM PHILADELPHIA, INC.

 

58


TENET HEALTHSYSTEM SGH, INC.
TENET HEALTHSYSTEM SL, INC.
TENET HEALTHSYSTEM SPALDING, INC.
TENET HIALEAH HEALTHSYSTEM, INC.
TENET HOSPITALS, INC.
TENET LOUISIANA, INC.
TENET MISSOURI, INC.
TENET PHYSICIAN SERVICES—HILTON HEAD, INC.
TENET SOUTH FULTON, INC.
TENET ST. MARY’S, INC.
TENET TEXAS, INC.
TENETSUB TEXAS, INC.
TWIN CITIES COMMUNITY HOSPITAL, INC.
USC UNIVERSITY HOSPITAL, INC.
WEST BOCA MEDICAL CENTER, INC.

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer

 

59


THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.,
as Trustee
By:  

/s/    Melonee Young

Name:   Melonee Young
Title:   Vice President

 

60


[Face of Note]

 

[Insert Original Issue Discount Legend here, if applicable]

CUSIP/CINS                     

9.0% Senior Secured Notes due 2015

 

No.         $                     

TENET HEALTHCARE CORPORATION

promises to pay to [                  ] or registered assigns,

the principal sum of                                                               DOLLARS on May 1, 2015.

Interest Payment Dates: May 1 and November 1

Record Dates: April 15 and October 15

Dated:              , 200   

 

TENET HEALTHCARE CORPORATION
By:  

 

Name:  
Title:  

This is one of the Notes referred to

in the within-mentioned Indenture:

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

    as Trustee

 

By:  

 

  Authorized Signatory

 

 

 

A-1


[Back of Note]

9.0% Senior Secured Notes due 2015

[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]

[Insert the Private Placement Legend, if applicable pursuant to the provisions of the Indenture]

Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

(1) I NTEREST . Tenet Healthcare Corporation, a corporation duly organized and existing under the laws of the State of Nevada (the “ Company ”), promises to pay interest on the principal amount of this Note at 9.0% per annum from                      , 20      until Maturity and shall pay the Special Interest, if any, payable pursuant to Section 2 of the Registration Rights Agreement referred to below. The Company will pay interest and Special Interest, if any, semi-annually in arrears on May 1 and November 1 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 if there is no existing Event of Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be                      , 20      . Interest will be computed on the basis of a 360-day year of twelve 30-day months.

(2) M ETHOD OF P AYMENT . The Company will pay interest on the Notes and Special Interest, if any, to the Persons who are registered Holders of Notes at the close of business on the April 15 or October 15 next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date. The Notes will be payable as to principal, premium and Special Interest, if any, and interest at the office or agency of the Company maintained for such purpose within the City and State of New York, or, at the option of the Company, payment of interest and Special Interest, if any, may be made by check mailed to the Holders at their respective 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 and Special Interest, if any, on, all Global Notes and all other Notes the Holders of which will have provided wire transfer instructions to the Company or the Paying Agent. Such payment will 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. Until otherwise designated by the Company, the office or agency of the Company in New York will be the office of the Trustee maintained for such purpose.

(3) P AYING A GENT AND R EGISTRAR . Initially, the corporate trust department of The Bank of New York Mellon Trust Company, N.A., the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity.

(4) I NDENTURE AND S ECURITY D OCUMENTS . The Company issued the Notes under an Indenture, dated as of November 6, 2001, between the Company and The Bank of New York, as predecessor trustee to the Trustee, as supplemented by the Ninth Supplemental Indenture (the “Ninth Supplemental Indenture” ), dated as of March 3, 2009 (as so supplemented, the

 

A-2


Indenture ”), among the Company, the Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the TIA. The Notes are subject to all such terms, and Holders are referred to the 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 Indenture, the provisions of the Indenture shall govern and be controlling. The Notes are secured Obligations of the Company. The Notes are secured by a pledge of the Collateral pursuant to the Stock Lien Security Documents referred to in the Indenture. The Indenture does not limit the aggregate principal amount of Notes that may be issued thereunder.

(5) O PTIONAL R EDEMPTION .

(a) Except as set forth in subparagraphs (b) and (c) of this Paragraph 5, the Company will not have the option to redeem the Notes prior to May 1, 2012. On or after May 1, 2012, the Company will have the option to redeem all or a part of the Notes upon not less than 30 nor more than 60 days’ notice, at the Redemption Prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest and Special Interest, if any, on the Notes redeemed to the applicable Redemption Date, if redeemed during the twelve-month period beginning on May 1 of the years indicated below:

 

Year

   Redemption
Price
 

2012

   104.500 %

2013

   102.250 %

2014 and thereafter

   100.000 %

Unless the Company defaults in the payment of the Redemption Price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable Redemption Date.

(b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time or from time to time prior to May 1, 2012, the Company, at its option, may redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture with the net cash proceeds of one or more Qualified Equity Offerings at a Redemption Price equal to 109.000% of the principal amount thereof, plus accrued and unpaid interest and Special Interest, if any, to the Redemption Date; provided that at least 65% in aggregate principal amount of the Notes issued under the Indenture remains outstanding immediately after the occurrence of such redemption and that such redemption occurs within 90 days of the date of the closing of such Qualified Equity Offering.

(c) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, the Company, at its option, may redeem the Notes, in whole or in part, at any time on or prior to May 1, 2012, at a Redemption Price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium as of the Redemption Date, plus accrued and unpaid interest thereon to, but not including, the Redemption Date.

(6) M ANDATORY R EDEMPTION .

The Company is not be required to make mandatory redemption or sinking fund payments with respect to the Notes.

 

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(7) R EPURCHASE AT T HE O PTION OF H OLDER .

(a) Upon the occurrence of a Change of Control, each Holder of Notes will have the right to require the Company to make an offer (a “Change of Control Offer” ) to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Special Interest, if any, on the Notes repurchased, to the date of purchase (the “Change of Control Payment” ). Within 30 days following any Change of Control, the Company will mail a notice to each Holder setting forth the procedures governing the Change of Control Offer as required by the Indenture.

(b) In the event of an Asset Disposition that requires the purchase of Notes (and other First-Priority Stock Secured Debt), the Company will purchase Notes tendered pursuant to an offer (an “Asset Disposition Offer” ) by the Company for the Notes (and such other First-Priority Stock Secured Debt) at a purchase price of 100% of their principal amount (or, in the event such other First-Priority Stock Secured Debt was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest and Special Interest, if any (or, in respect of such other First-Priority Stock Secured Debt, such other price, not to exceed 100%, as may be provided for by the terms of such other First-Priority Stock Secured Debt), in accordance with the procedures (including prorating in the event of oversubscription) set forth in Section 3.3 of the Ninth Supplemental Indenture. If there remains a balance of Net Available Cash after purchasing all securities tendered, then such balance may be used in any manner not prohibited by the Indenture. If the aggregate purchase price of the securities tendered exceeds the Net Available Cash allotted to their purchase, the Company will select the securities to be purchased on a pro rata basis but in round denominations, which in the case of the Notes will be denominations of $2,000 principal amount or any greater integral multiple of $1,000 in excess thereof. Notwithstanding the foregoing, the Company shall not be required to make such an Asset Disposition Offer to purchase Notes (and other First-Priority Stock Secured Debt) if the Net Available Cash available therefor is less than $100.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Asset Disposition Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). Upon completion of such an Asset Disposition Offer, Net Available Cash will be deemed to be reduced by the aggregate amount of such Asset Disposition Offer. Holders of Notes that are the subject of an offer to purchase will receive an Asset Disposition Offer from the Company prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled “ Option of Holder to Elect Purchase ” attached to the Notes.

(8) N OTICE OF R EDEMPTION . Notice of redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be mailed more than 60 days prior to a Redemption Date if the notice is issued in connection with a defeasance of the Notes or a satisfaction or discharge of the Indenture. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed.

(9) A HYDO P AYMENTS . If the Notes would otherwise constitute “applicable high yield discount obligations” within the meaning of Section 163(i)(1) of the Internal Revenue Code of 1986, as amended, and if Section 163(e)(5) of the Internal Revenue Code of 1986, as amended, applies to the Notes, then at the end of each accrual period ending after the fifth anniversary of the issue date of such notes (the “ AHYDO Payment Date ”), the Company will be required to redeem for cash a portion of the principal of each such note equal to the amount necessary to

 

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avoid the application of Section 163(e)(5) of the Internal Revenue Code of 1986, as amended. No payment pursuant to any other provisions of the Indenture will alter the Company’s obligation to make any such payment with respect to any Notes that remain outstanding on the AHYDO Payment Date.

(10) D ENOMINATIONS , T RANSFER , E XCHANGE . 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 Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange or register the transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed or during the period between a record date and the corresponding Interest Payment Date.

(11) P ERSONS D EEMED O WNERS . The registered Holder of a Note may be treated as its owner for all purposes.

(12) A MENDMENT , S UPPLEMENT AND W AIVER . Subject to certain exceptions, the Indenture or the Notes or the Note Guarantees may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class, and any existing Event or Default or compliance with any provision of the Indenture or the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class. Without the consent of any Holder of a Note, the Indenture or the Notes or the Note Guarantees may be amended or supplemented to cure any ambiguity, defect or inconsistency, to provide for uncertificated Notes in addition to or in place of certificated Notes, to provide for the assumption of the Company’s or a Guarantor’s obligations to Holders of the Notes and Note Guarantees in case of a merger or consolidation, to make any change that would provide any additional rights or benefits to the Holders of the Notes or that does not adversely affect the legal rights under the Indenture of any such Holder or to comply with the requirements of the Commission in order to effect or maintain the qualification of the Indenture under the TIA.

(13) E VENTS OF D EFAULT AND R EMEDIES . Events of Default include: (i) default for 30 days in the payment when due of interest on, or Special Interest, if any, with respect to the Notes; (ii) default in the payment when due of the principal of, or premium, if any, on, the Notes when the same becomes due and payable at Maturity, (iii) failure by the Company or any of its Subsidiaries for 30 days after notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes including Additional Notes, if any, then outstanding to comply with Section 4.6 or 4.7 of the Ninth Supplemental Indenture; (iv) failure by the Company or any Guarantor for 90 days after notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes including Additional Notes, if any, then outstanding to comply with the covenants or warranties in the Indenture; (v) default under certain other agreements relating to Debt of the Company or any Guarantor which default results in the acceleration of such Debt prior to its express maturity; (vi) certain events of bankruptcy or insolvency with respect to the Company or any Guarantor that is a Significant Subsidiary or any group of Guarantors that, taken together, would constitute a Significant Subsidiary; (viii) with respect to Collateral having a fair market value in excess of $25.0 million, the security interest created under the Pledge Agreement, any other Stock Lien Security Document or the Indenture is

 

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held in any judicial proceeding to be unenforceable or invalid or the security interest in the Pledge Agreement ceases for any reason to be in full force and effect for any reason other than in accordance with the terms of the Indenture and the Pledge Agreement and any other Stock Lien Security Document or the Company or any Subsidiary asserts, in any pleading in a judicial proceeding, that any security interest created under the Pledge Agreement, any other Stock Lien Security Document or the Indenture is invalid or unenforceable; and (ix) except as permitted by the Indenture or the Note Guarantees, any Note Guarantee of any Guarantor that is a Significant Subsidiary or any group of Guarantors that, taken together, would constitute a Significant Subsidiary ceases for any reason to be in full force and effect and enforceable or the Company or any Guarantor denies or disaffirms the Guarantor’s obligations under such Guarantor’s Note Guarantee. 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 all the 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 Indenture or the Notes except as provided in the 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 Event of Default (except an Event of Default relating to the payment of principal or interest or premium or Special Interest, if any) if it determines that withholding notice is in their interest. The Holders of 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, rescind an acceleration or waive any existing Event of Default and its consequences under the Indenture except a continuing Event of Default in the payment of interest or premium or Special Interest, if any, on, or the principal of, the Notes. The Company is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Company is required, upon becoming aware of any Event of Default, to deliver to the Trustee a statement specifying such Event of Default.

(14) T RUSTEE D EALINGS WITH C OMPANY . The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.

(15) N O R ECOURSE A GAINST O THERS . A director, officer, employee, incorporator or stockholder of the Company or any of the Guarantors, as such, will not have any liability for any obligations of the Company or the Guarantors under the Notes, the Note Guarantees or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes.

(16) A UTHENTICATION . This Note will not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.

(17) A BBREVIATIONS . Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

(18) A DDITIONAL R IGHTS OF H OLDERS OF R ESTRICTED G LOBAL N OTES AND R ESTRICTED D EFINITIVE N OTES . In addition to the rights provided to Holders of Notes under the Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes will have all the

 

A-6


rights set forth in the Exchange and Registration Rights Agreement dated as of March 3, 2009, among the Company, the Guarantors and the other parties named on the signature pages thereof or, in the case of Additional Notes, Holders of Restricted Global Notes and Restricted Definitive Notes will have the rights set forth in one or more registration rights agreements, if any, among the Company, the Guarantors and the other parties thereto, relating to rights given by the Company and the Guarantors to the purchasers of any Additional Notes (collectively, the “ Registration Rights Agreement ”).

(19) CUSIP N UMBERS . Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes, and the Trustee may use CUSIP 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.

(20) GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

The Company will furnish to any Holder upon written request and without charge a copy of the Indenture and/or the Registration Rights Agreement. Requests may be made to:

Tenet Healthcare Corporation

13737 Noel Road

Dallas, TX 75240

Attention: Investor Relations

 

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Assignment Form

To assign this Note, fill in the form below:

(I) or (we) assign and transfer this Note to:                                                                                                                                                                                    

                                                                                                                          (Insert assignee’s legal name)

                                                                                                                                                                                                                                                                       

(Insert assignee’s soc. sec. or tax I.D. no.)

                                                                                                                                                                                                                                                                       

                                                                                                                                                                                                                                                                       

                                                                                                                                                                                                                                                                       

                                                                                                                                                                                                                                                                       

(Print or type assignee’s name, address and zip code)

and irrevocably appoint                                                                                                                                                                                                                          

to transfer this Note on the books of the Company. 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).

 

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Option of Holder to Elect Purchase

If you want to elect to have this Note purchased by the Company pursuant to Section 4.6 or 4.7 of the Ninth Supplemental Indenture, check the appropriate box below:

 

¨   Section 4.6

                    ¨   Section 4.7

If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.6 or Section 4.7 of the Ninth 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-9


Schedule of Exchanges of Interests in the Global Note *

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:

 

Date of Exchange

  Amount of decrease in
Principal Amount

of
this Global Note
  Amount of increase in
Principal Amount

of
this Global Note
  Principal Amount
of this Global Note
following such
decrease

(or increase)
  Signature of authorized
officer of Trustee or
Custodian

 

 

* This schedule should be included only if the Note is issued in global form.

 

A-10


FORM OF CERTIFICATE OF TRANSFER

Tenet Healthcare Corporation

13737 Noel Road

Dallas, TX 75240

Attention: Investor Relations

The Bank of New York Mellon Trust Company, N.A.

700 South Flower Street, Suite 500

Los Angeles, CA 90017

Attention: Corporate Unit

Re: 9.0% Senior Secured Notes Due 2015

Reference is hereby made to the Indenture, dated as of November 6, 2001, between Tenet Healthcare Corporation, as issuer (the “ Company ”) and The Bank of New York Mellon Trust Company, N.A., as successor trustee to The Bank of New York, as supplemented by the Ninth Supplemental Indenture, dated as of March 3, 2009, among the Company, the Guarantors party thereto and the Trustee (as so supplemented, the “ Indenture ”). Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

                             , (the “ Transferor ”) owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of $          in such Note[s] or interests (the “ Transfer ”), to                              (the “ Transferee ”), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:

[CHECK ALL THAT APPLY]

1.   ¨    Check if Transferee will take delivery of a beneficial interest in the 144A Global Note or a Restricted Definitive Note pursuant to Rule 144A . The Transfer is being effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended (the “ Securities Act ”), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A, and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.

2.   ¨    Check if Transferee will take delivery of a beneficial interest in the Regulation S Global Note or a Restricted Definitive Note pursuant to Regulation S . The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a Person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling

 

B-1


efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the Restricted Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed on the Regulation S Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.

3.   ¨    Check and complete if Transferee will take delivery of a beneficial interest in a Restricted Definitive Note pursuant to any provision of the Securities Act other than Rule 144A or Regulation S . The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies that (check one):

(a)   ¨   such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;

OR

(b)   ¨   such Transfer is being effected to the Company or a subsidiary thereof;

OR

(c)   ¨   such Transfer is being effected pursuant to an effective registration statement under the Securities Act and in compliance with the prospectus delivery requirements of the Securities Act;

OR

(d)   ¨   such Transfer is being effected pursuant to an exemption from the registration requirements of the Securities Act other than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby further certifies that it has not engaged in any general solicitation within the meaning of Regulation D under the Securities Act and the Transfer complies with the transfer restrictions applicable to beneficial interests in a Restricted Global Note or Restricted Definitive Notes and the requirements of the exemption claimed, which certification is supported by (1) a certificate executed by the Transferee in the form of Exhibit D to the Indenture and (2) if such Transfer is in respect of a principal amount of Notes at the time of transfer of less than $250,000, an Opinion of Counsel provided by the Transferor or the Transferee (a copy of which the Transferor has attached to this certification), to the effect that such Transfer is in compliance with the Securities Act. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Notes and in the Indenture and the Securities Act.

 

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4.   ¨    Check if Transferee will take delivery of a beneficial interest in an Unrestricted Global Note or of an Unrestricted Definitive Note .

(a)   ¨    Check if Transfer is pursuant to Rule 144 . (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.

(b)   ¨    Check if Transfer is Pursuant to Regulation S . (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.

(c)   ¨    Check if Transfer is Pursuant to Other Exemption . (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.

This certificate and the statements contained herein are made for your benefit and the benefit of the Company.

 

 

[Insert Name of Transferor]

By:

 

 

Name:  
Title:  

Dated:                     

 

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ANNEX A TO CERTIFICATE OF TRANSFER

 

  1. The Transferor owns and proposes to transfer the following:

[CHECK ONE OF (a) OR (b)]

 

  (a) ¨     a beneficial interest in the.

 

  (i) ¨     144A Global Note (CUSIP                      ), or

 

  (ii) ¨     Regulation S Global Note (CUSIP                      ), or

 

  (b) ¨     a Restricted Definitive Note.

 

  2. After the Transfer the Transferee will hold:

[CHECK ONE]

 

  (a) ¨     a beneficial interest in the:

 

  (i) ¨     144A Global Note (CUSIP                      ), or

 

  (ii) ¨     Regulation S Global Note (CUSIP                      ), or

 

  (iii) ¨     Unrestricted Global Note (CUSIP                      ); or

 

  (b) ¨     a Restricted Definitive Note; or

 

  (c) ¨     an Unrestricted Definitive Note,

  in accordance with the terms of the Indenture.

 

B-4


FORM OF CERTIFICATE OF EXCHANGE

Tenet Healthcare Corporation

13737 Noel Road

Dallas, TX 75240

Attention: Investor Relations

The Bank of New York Mellon Trust Company, N.A.

700 South Flower Street, Suite 500

Los Angeles, CA 90017

Attention: Corporate Unit

Re: 9.0% Senior Secured Notes Due 2015

(CUSIP                      )

Reference is hereby made to the Indenture, dated as of November 6, 2001, between Tenet Healthcare Corporation, as issuer (the “ Company ”) and The Bank of New York Mellon Trust Company, N.A., as successor trustee to The Bank of New York, as supplemented by the Ninth Supplemental Indenture, dated as of March 3, 2009, among the Company, the Guarantors party thereto and the Trustee (as so supplemented, the “ Indenture ”). Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

                             , (the “ Owner ”) owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein, in the principal amount of $          in such Note[s] or interests (the “ Exchange ”). In connection with the Exchange, the Owner hereby certifies that:

1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note

(a)   ¨    Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial interest in an Unrestricted Global Note . In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the Securities Act of 1933, as amended (the “ Securities Act ”), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

(b)   ¨    Check if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted Definitive Note . In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

 

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(c)   ¨    Check if Exchange is from Restricted Definitive Note to beneficial interest in an Unrestricted Global Note . In connection with the Owner’s Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

(d)   ¨    Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note . In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes

(a)   ¨    Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act.

(b)   ¨    Check if Exchange is from Restricted Definitive Note to beneficial interest in a Restricted Global Note . In connection with the Exchange of the Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE]   ¨   144A Global Note,   ¨   Regulation S Global Note, with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.

This certificate and the statements contained herein are made for your benefit and the benefit of the Company.

 

 

[Insert Name of Transferor]

By:  

 

Name:  
Title:  

Dated:                     

 

C-2


FORM OF CERTIFICATE FROM

TRANSFEREE

Tenet Healthcare Corporation

13737 Noel Road

Dallas, TX 75240

Attention: Investor Relations

The Bank of New York Mellon Trust Company, N.A.

700 South Flower Street, Suite 500

Los Angeles, CA 90017

Attention: Corporate Unit

Re: 9.0% Senior Secured Notes Due 2015

Reference is hereby made to the Indenture, dated as of November 6, 2001, between Tenet Healthcare Corporation, as issuer (the “ Company ”) and The Bank of New York Mellon Trust Company, N.A., as successor trustee to The Bank of New York, as supplemented by the Ninth Supplemental Indenture, dated as of March 3, 2009, among the Company, the Guarantors party thereto and the Trustee (as so supplemented, the “ Indenture ”). Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

In connection with our proposed purchase of $                      aggregate principal amount of:

(a)   ¨   a beneficial interest in a Global Note, or

(b)   ¨   a Definitive Note,

we confirm that:

1. We understand that any subsequent transfer of the Notes or any interest therein is subject to certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein except in compliance with, such restrictions and conditions and the Securities Act of 1933, as amended (the “ Securities Act ”).

2. We understand that the offer and sale of the Notes have not been registered under the Securities Act, and that the Notes and any interest therein may not be offered or sold except as permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for which we are acting as hereinafter stated, that if we should sell the Notes or any interest therein, we will do so only (A) to the Company; (B) under a registration statement that has been declared effective under the Securities Act; (C) to a Person that we reasonably believe is a “Qualified Institutional Buyer” (as defined in Rule 144A under the Securities Act) that is purchasing for its own account or for the account of another Qualified Institutional Buyer and to whom notice is given that the transfer is being made in reliance on Rule 144A, all in compliance with Rule 144A (if available); (D) in an offshore transaction complying with Rule 903 or Rule 904 of Regulation S under the Securities Act; or (E) under any other available exemption from the registration requirements of the Securities Act.

3. We understand that, prior to any transfer of the Notes pursuant to clause (E) of paragraph 2, we will be required to furnish to you and the Company such certifications, legal opinions and other information as you and the Company may reasonably require and may rely upon to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act. We further understand that the Notes purchased by us will bear a legend to the foregoing effect.

 

D-1


4. We have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Notes, and we and any accounts for which we are acting are each able to bear the economic risk of our or its investment.

5. We are acquiring the Notes or beneficial interest therein purchased by us for our own account or for one or more accounts as to each of which we exercise sole investment discretion.

You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

 

 

[Insert Name of Transferee]

By:  

 

Name:  
Title:  

Dated:                     

 

D-2


[FORM OF NOTATION OF GUARANTEE]

For value received, each Guarantor (which term includes any successor Person under the Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in the Indenture and subject to the provisions in the Indenture dated as of November 6, 2001, between Tenet Healthcare Corporation, as issuer (the “ Company ”) and The Bank of New York Mellon Trust Company, N.A., as successor trustee to The Bank of New York (the “Trustee” ), as supplemented by the Ninth Supplemental Indenture, dated as of March 3, 2009 (the “Ninth Supplemental Indenture” ), among the Company, the Guarantors party thereto and the Trustee (as so supplemented, the “ Indenture ”), (a) the due and punctual payment of the principal of, premium and Special Interest, if any, and interest on, the Notes, whether at Maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on overdue principal of and interest on the Notes, if any, if lawful, and the due and punctual performance of all other Obligations of the Company to the Holders or the Trustee all in accordance with the terms of the Indenture and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will 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. The obligations of the Guarantors to the Holders of Notes and to the Trustee pursuant to the Note Guarantee and the Indenture are expressly set forth in Article Nine of the Ninth Supplemental Indenture and reference is hereby made to the Indenture for the precise terms of the Note Guarantee.

Capitalized terms used but not defined herein have the meanings given to them in the Indenture.

 

[N AME OF G UARANTOR ( S )]

By:  

 

Name:  
Title:  

 

E-1


[FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS]

S UPPLEMENTAL I NDENTURE (this “ Supplemental Indenture ”), dated as of                      , 20      , among                      (the “ Guaranteeing Subsidiary ”), a subsidiary of Tenet Healthcare Corporation (or its permitted successor), a corporation duly organized and existing under the laws of the State of Nevada (the “ Company ”), the Company, the other Guarantors (as defined in the Indenture referred to herein) and The Bank of New York Mellon Trust Company, N.A., as trustee under the Indenture referred to below (the “ Trustee ”).

W I T N E S S E T H

WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture, dated as of November 6, 2001 (the “Base Indenture” ), between the Company and The Bank of New York, as predecessor trustee to the Trustee, as supplemented by the Ninth Supplemental Indenture, dated as of March 3, 2009 (the “Ninth Supplemental Indenture” ), among the Company, the Guarantors party thereto and the Trustee (as so supplemented, the “ Indenture ”), providing for the issuance of 9.0% Senior Secured Notes due 2015 (the “ Notes ”);

WHEREAS, the 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 Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “ Note Guarantee ”); and

WHEREAS, pursuant to Section 901 of the Base 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 Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:

1. C APITALIZED T ERMS . Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.

2. A GREEMENT TO G UARANTEE . The Guaranteeing Subsidiary hereby agrees to provide an unconditional Guarantee on the terms and subject to the conditions set forth in the Note Guarantee and in the Indenture including but not limited to Article Nine of the Ninth Supplemental Indenture.

4. N O R ECOURSE A GAINST O THERS . No past, present or future director, officer, employee, incorporator, stockholder or agent of the Guaranteeing Subsidiary, as such, shall have any liability for any obligations of the Company or any Guaranteeing Subsidiary under the Notes, any Note Guarantees, the 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 of the Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the SEC that such a waiver is against public policy.

5. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

 

F-1


6. C OUNTERPARTS . 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.

7. E FFECT OF H EADINGS . The Section headings herein are for convenience only and shall not affect the construction hereof.

8. T HE T RUSTEE . 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 and the Company.


IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.

Dated:                      , 20     

 

[G UARANTEEING S UBSIDIARY ]
By:  

 

Name:  
Title:  
TENET HEALTHCARE CORPORATION
By:  

 

Name:  
Title:  
[E XISTING G UARANTORS ]
By:  

 

Name:  
Title:  

THE BANK OF NEW YORK MELLON TRUST COMPANY,

    as Trustee

By:  

 

  Authorized Signatory

Exhibit 4.2

 

 

 

TENET HEALTHCARE CORPORATION

AND THE GUARANTORS FROM TIME TO TIME PARTY HERETO

 

 

Tenth Supplemental

Indenture

Dated as of March 3, 2009

 

 

(Supplemental to Indenture Dated as of November 6, 2001)

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

as Trustee

 

 

 

10.0% Senior Secured Notes Due 2018


TABLE OF CONTENTS

 

              Page

ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

   2

Section 1.1.

     Relation to Existing Indenture    2

Section 1.2.

     Definitions    2

ARTICLE TWO GENERAL TERMS AND CONDITIONS OF THE NOTES

   18

Section 2.1.

     Form and Dating    18

Section 2.2.

     Execution and Authentication    18

Section 2.3.

     Registrar and Paying Agent    18

Section 2.4.

     Paying Agent to Hold Money in Trust    19

Section 2.5.

     Transfer and Exchange    19

ARTICLE THREE REDEMPTION AND PREPAYMENT

   30

Section 3.1.

     Optional Redemption    30

Section 3.2.

     Sinking Fund    31

Section 3.3.

     Offer to Purchase by Application of Balance in Net Available Cash    31

Section 3.4.

     AHYDO Payments    33

ARTICLE FOUR COVENANTS

   33

Section 4.1.

     Limitations on Liens    33

Section 4.2.

     Limitations on Sale and Lease-Back Transactions    34

Section 4.3.

     Limitations on Issuances of Guarantees by Subsidiaries    34

Section 4.4.

     Additional Note Guarantees    35

Section 4.5.

     SEC Reports    35

Section 4.6.

     Asset Dispositions    35

Section 4.7.

     Offer to Repurchase Upon Change of Control    37

ARTICLE FIVE REMEDIES

   39

Section 5.1.

     Events of Default    39

ARTICLE SIX DEFEASANCE AND COVENANT DEFEASANCE

   41

Section 6.1.

     Defeasance and Discharge    41

Section 6.2.

     Covenant Defeasance    41

Section 6.3.

     Conditions to Legal or Covenant Defeasance    42

ARTICLE SEVEN AMENDMENT, SUPPLEMENT AND WAIVER

   43

 

i


ARTICLE EIGHT COLLATERAL AND SECURITY

   44

Section 8.1.

     Equal and Ratable Sharing of Collateral by Holders of First-Priority Stock Secured Debt    44

Section 8.2.

     Stock Lien Security Documents    44

Section 8.3.

     Release of Security Interests    45

Section 8.4.

     Additional First-Priority Stock Secured Debt    46

Section 8.5.

     Compliance with Trust Indenture Act    47

Section 8.6.

     Collateral Trustee    48

Section 8.7.

     Further Assurances    48

ARTICLE NINE NOTE GUARANTEES

   48

Section 9.1.

     Guarantee    48

Section 9.2.

     Limitation on Guarantor Liability    49

Section 9.3.

     Execution and Delivery of Note Guarantee    50

Section 9.4.

     Guarantors May Consolidate, Etc., Only on Certain Terms    50

Section 9.5.

     Releases    51

ARTICLE TEN MISCELLANEOUS

   51

Section 10.1.

     Conditions Precedent    51

Section 10.2.

     Relationship to Existing Indenture    51

Section 10.3.

     Modification of the Existing Indenture    52

Section 10.4.

     Notices    52

Section 10.5.

     Governing Law    53

Section 10.6.

     Counterparts    53

Section 10.7.

     Waiver of Jury Trial    53

Section 10.8.

     Force Majeure    53

EXHIBITS

 

Exhibit A    FORM OF NOTE
Exhibit B    FORM OF CERTIFICATE OF TRANSFER
Exhibit C    FORM OF CERTIFICATE OF EXCHANGE
Exhibit D    FORM OF CERTIFICATE OF TRANSFEREE
Exhibit E    FORM OF NOTATION OF GUARANTEE
Exhibit F    FORM OF SUPPLEMENTAL INDENTURE

 

ii


TENTH SUPPLEMENTAL INDENTURE, dated as of March 3, 2009, among Tenet Healthcare Corporation, a corporation duly organized and existing under the laws of the State of Nevada (herein called the “Company” ), the Guarantors (as defined herein) from time to time party hereto and The Bank of New York Mellon Trust Company, N.A., as successor trustee to The Bank of New York (herein called “Trustee” );

RECITALS:

WHEREAS, the Company has heretofore executed and delivered to The Bank of New York, as predecessor trustee to the Trustee, an Indenture, dated as of November 6, 2001 (the “Existing Indenture” , and the Existing Indenture, as supplemented by this Tenth Supplemental Indenture, the “Indenture” ), providing for the issuance from time to time of the Company’s unsecured debentures, notes or other evidences of indebtedness (herein and therein called the “Securities” ), to be issued in one or more series as provided in the Existing Indenture, among which (i) $1,000,000,000 aggregate principal amount of the Company’s 6.375% Senior Notes due 2011 (the “Old 2011 Notes” ) and (ii) $600,000,000 aggregate principal amount of the Company’s 6.500% Senior Notes due 2012 (the “Old 2012 Notes” and, together with the Old 2011 Notes, the “Old Notes” ), or $1,600,000,000 aggregate principal amount of Old Notes, have been issued and are outstanding on the date hereof;

WHEREAS, pursuant to an offering memorandum dated as of January 22, 2009, as amended by Supplement No. 1 dated January 30, 2009, Supplement No. 2 dated February 4, 2009 and Supplement No. 3 dated February 17, 2009, the Company made an offer to exchange (the “Exchange Offer” ) up to $1,000,000,000 in the aggregate of its Old 2011 Notes and up to $600,000,000 in the aggregate of its Old 2012 Notes for consideration, for each $1,000 principal amount of the outstanding Old Notes tendered in the Exchange Offer, equal to (a) $500 aggregate principal amount of the Company’s new 9.0% Senior Secured Notes due 2015 (the “6-Year Notes” ) and (b) $500 aggregate principal amount of the Company’s new 10.0% Senior Secured Notes due 2018 (the “Notes” ) to those Holders of Old Notes that tendered by February 4, 2009 or (a) $480 aggregate principal amount of the Company’s Notes and (b) $480 aggregate principal amount of the Company’s 6-Year Notes to those Holders of Old Notes that tendered after February 4, 2009.

WHEREAS, Section 901 of the Existing Indenture permits the Company and the Trustee to enter into an indenture supplemental to the Existing Indenture to provide for the issuance of and establish the form and terms and conditions of any additional series of Securities;

WHEREAS, Sections 201, 301 and 901 of the Existing Indenture permit the form of notes of each additional series of notes to be established pursuant to an indenture supplemental to the Existing Indenture;

WHEREAS, Section 301 of the Existing Indenture permits certain terms of any additional series of notes to be established pursuant to an indenture supplemental to the Existing Indenture; and

WHEREAS, pursuant to resolutions of the Board of Directors of the Company adopted at a meeting duly called on December 5, 2008, the Pricing Committee of the Board of Directors of the Company set the terms of the Notes;

WHEREAS, the Holders of $914,834,000 and $484,453,000 in aggregate principal amount of the Old 2011 Notes and the Old 2012 Notes, respectively, which represents $1,399,287,000 in aggregate principal amount of Old Notes, have tendered their notes in the Exchange Offer for $699,543,000 in aggregate principal amount of Notes and $699,543,000 in aggregate principal amount of 6-Year Notes.

 

1


WHEREAS, pursuant to written action of the officers of the Company dated March 3, 2009 in accordance with such resolutions, the Company has authorized the issuance of $699,543,000 in aggregate principal amount of the Notes;

WHEREAS, the Company has duly authorized the execution and delivery of this Tenth Supplemental Indenture to establish the form and terms of the Notes;

WHEREAS, all things necessary to make this Tenth Supplemental Indenture a valid and legally binding agreement according to its terms have been done; and

WHEREAS, the foregoing recitals are made as statements of fact by the Company and not by the Trustee;

NOW, THEREFORE, THIS TENTH SUPPLEMENTAL INDENTURE WITNESSETH:

For and in consideration of the premises and the issuance of the Notes provided for herein, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Notes, as follows:

ARTICLE ONE

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

Section 1.1. Relation to Existing Indenture

This Tenth Supplemental Indenture constitutes an integral part of the Existing Indenture (the provisions of which, as modified by this Tenth Supplemental Indenture, shall apply to the Notes) in respect of the Notes but shall not modify, amend or otherwise affect the Existing Indenture insofar as it relates to any other series of Securities or affect in any manner the terms and conditions of the Securities of any other series (including without limitation Old Notes not tendered in the Exchange Offer). To the extent any provision of this Tenth Supplemental Indenture conflicts with the express provisions of the Existing Indenture, the provisions of this Tenth Supplemental Indenture shall govern and be controlling.

Section 1.2. Definitions

For all purposes of this Tenth Supplemental Indenture, the capitalized terms used herein (i) which are defined in this Section 1.2 have the respective meanings assigned thereto in this Section 1.2, and (ii) which are defined in the Existing Indenture (and which are not defined in this Section 1.2) have the respective meanings assigned thereto in the Existing Indenture. For all purposes of this Tenth Supplemental Indenture:

1.2.1 All references herein to Articles and Sections, unless otherwise specified, refer to the corresponding Articles and Sections of this Tenth Supplemental Indenture;

1.2.2 The terms “hereof”, “herein”, “hereby”, “hereto”, “hereunder” and “herewith” refer to this Tenth Supplemental Indenture; and

1.2.3 The following terms, as used herein, have the following meanings:

“6-Year Notes” has the meaning ascribed to it in the second paragraph under the caption “Recitals.”

“144A Global Note” means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and registered in the name of, the Depositary or its nominee that will be issued in a denomination equal to the outstanding principal amount of the Notes issued in reliance on Rule 144A.

 

2


“Act of Required Stock Secured Debtholders” means, as to any matter at any time:

(1) prior to the Discharge of First-Priority Stock Secured Obligations, a direction in writing delivered to the Collateral Trustee by or with the written consent of the holders of more than 50% of the sum of:

(a) the aggregate outstanding principal amount of First-Priority Stock Secured Debt (including outstanding letters of credit whether or not then available or drawn); and

(b) other than in connection with the exercise of remedies, the aggregate unfunded commitments to extend credit which, when funded, would constitute First-Priority Stock Secured Debt; and

(2) at any time after the Discharge of First-Priority Stock Secured Obligations, a direction in writing delivered to the Collateral Trustee by or with the written consent of the holders of Junior Stock Secured Debt representing the Required Junior Stock Secured Debtholders.

For purposes of this definition, (a) Stock Secured Debt registered in the name of, or beneficially owned by, the Company or any Affiliate of the Company will be deemed not to be outstanding and (b) votes will be determined in accordance with Section 7.2 of the Collateral Trust Agreement. Any such Act of Required Stock Secured Debtholders shall be accompanied by a certificate signed by an authorized officer of each First-Priority Stock Lien Representative, in the case of clause (1) above, or of each Junior Stock Lien Representative, in the case of clause (2) above, certifying that such written direction is being delivered to the Collateral Trustee by the requisite number of holders for such written direction to constitute an Act of Required Stock Secured Debtholders, and the Collateral Trustee may rely conclusively on, and shall be fully protected in relying upon, such certificate in proceeding with any direction set forth in such Act of Required Stock Secured Debtholders.

“Additional Assets” means:

 

  (1) any property, plant or equipment or other assets or capital expenditures used in a Related Business or that replace the assets that were the subject of the Asset Disposition;

 

  (2) the Capital Stock of a Person that becomes a Subsidiary as a result of the acquisition of such Capital Stock by us or another Subsidiary; or

 

  (3) Capital Stock constituting a minority interest in any Person that at such time is a Subsidiary;

provided , however , that any such Subsidiary described in clause (2) or (3) above is primarily engaged in a Related Business or replaces the assets that were the subject of the Asset Disposition.

“Additional Notes” means additional Notes (other than the Initial Notes) issued under this Tenth Supplemental Indenture in accordance with Section 2.2 hereof, as part of the same series as the Initial Notes.

“Additional Secured Debt Designation” means a notice in substantially the form of Exhibit A to the Collateral Trust Agreement.

 

3


“Adjusted Treasury Rate” means, with respect to any Redemption Date:

(1) the yield, under the heading that represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H.15(519)” or any successor publication that is published weekly by the Board of Governors of the Federal Reserve System and that establishes yields on actively traded U.S. Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury Issue; or

(2) if such 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 semi-annual 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 such Redemption Date.

The Adjusted Treasury Rate shall be calculated on the third Business Day preceding the Redemption Date.

“AHYDO Payment Date has the meaning specified in Section 3.4.

“Applicable Premium” means, with respect to any Note on any Redemption Date, the greater of:

(1) 1.0% of the principal amount of the Note on such Redemption Date; or

(2) the excess, if any, of (A) the present value at such Redemption Date of (I) the Redemption Price of the Note at May 1, 2014 (such Redemption Price being set forth in the table appearing in Section 3.1 hereof), plus (II) all required interest payments due on the Note through May 1, 2014 (excluding accrued but unpaid interest to the applicable Redemption Date), computed using a discount rate equal to the Adjusted Treasury Rate as of such Redemption Date plus 50 basis points, over (B) the principal amount of the Note on such Redemption Date.

“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear and Clearstream that apply to such transfer or exchange.

“Asset Disposition” means any sale, lease, transfer or other voluntary disposition (or series of related sales, leases, transfers or dispositions) by the Company or any of its Subsidiaries, including any disposition by means of a merger, consolidation or similar transaction (each referred to for the purposes of this definition as a “disposition” ), of:

 

  (1) any shares of Capital Stock of a Subsidiary of the Company (other than directors’ qualifying shares or shares required by applicable law to be held by a Person other than the Company or one of its Subsidiaries);

 

  (2) all or substantially all the assets of any division or line of business of the Company or any of its Subsidiaries; or

 

  (3) any other assets of the Company or any of its Subsidiaries outside of the ordinary course of business of the Company or such Subsidiary

other than, in the case of clauses (1), (2) and (3) above,

 

4


  (A) a disposition by a Subsidiary to the Company or by the Company or any Subsidiary to a Subsidiary Guarantor or by any Subsidiary that is not a Subsidiary Guarantor to any Subsidiary;

 

  (B) for purposes of this definition only, a disposition of all or substantially all of the Company’s assets in accordance with Section 801 of the Existing Indenture or any disposition that constitutes a Change of Control;

 

  (C) a disposition of assets with a fair market value of less than $75.0 million;

 

  (D) a disposition of cash or cash equivalents (as set forth on our balance sheet in accordance with GAAP);

 

  (E) the creation of a Lien (but not the sale or other disposition of the property subject to such Lien);

 

  (F) the Qualifying USC Disposition;

 

  (G) a Hospital Swap;

 

  (H) a disposition of property no longer used or useful in the conduct of the business of the Company and its Subsidiaries;

 

  (I) a foreclosure on assets or transfer by reason of eminent domain;

 

  (J) a disposition of an account receivable in connection with the collection or compromise thereof;

 

  (K) a financing transaction with respect to property built or acquired by the Company or any of its Subsidiaries after the date of this Tenth Supplemental Indenture, including Sale and Lease-Back Transactions, in any such case not prohibited by the Indenture;

 

  (L) a disposition in the ordinary course of business by any Subsidiary engaged in the insurance business in order to provide insurance to the Company and its Subsidiaries;

 

  (M) a disposition 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 agreements and similar binding arrangements; and

 

  (N) a disposition of Capital Stock in connection with ordinary course syndications of Subsidiaries or joint ventures owning or operating one or more healthcare facilities, including, without limitation, hospitals, ambulatory surgery centers, outpatient diagnostic centers, imaging centers or long-term care facilities in any transaction or series of related transactions with an aggregate fair market value of less than $100.0 million.

“Asset Disposition Offer” has the meaning specified in Section 3.3.

“Attributable Debt” when used in connection with a Sale and Lease-Back Transaction, means, as of the date of determination, (i) as to any capitalized lease obligations, the liability related thereto set forth on the consolidated balance sheet of the Company and (ii) as to any operating lease, the present value (discounted at the rate per annum equal to the rate of interest set forth or implicit in the term of the lease, as determined in good faith by the Board of Directors of the Company) of the total obligation of the lessee for net rental payments during the remaining term of the lease (including any period for which an option to extend such lease has been exercised).

 

5


“Authentication Order” has the meaning specified in Section 2.2.

“Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief of debtors.

“Broker-Dealer” has the meaning set forth in the Registration Rights Agreement.

“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 interests (whether general or limited) or membership interests; 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,

but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.

“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 Company and its Subsidiaries, taken as a whole, to any Person; or

 

  (2) the Company 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), 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 40% or more of the total voting power of our Voting Stock;

 

  (3) the Company merges, consolidates or amalgamates with or into any other Person or any other Person merges, consolidates or amalgamates with or into the Company, in any such event pursuant to a transaction in which the outstanding Voting Stock of the Company is reclassified into or exchanged for cash, securities or other property, other than any such transaction where:

 

  (a) the outstanding Voting Stock of the Company is reclassified into or exchanged for other Voting Stock of the Company or for Voting Stock of the surviving Person, and

 

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  (b) the holders of the Voting Stock of the Company immediately prior to such transaction own, directly or indirectly, not less than a majority of the Voting Stock of the Company or the surviving Person immediately after such transaction as before the transaction; or

 

  (4) the first day on which a majority of the Board of Directors of the Company are not Continuing Directors.

“Change of Control Offer” has the meaning specified in Section 4.7.

“Change of Control Payment” has the meaning specified in Section 4.7.

“Change of Control Payment Date” has the meaning specified in Section 4.7.

“Clearstream” means Clearstream Banking, S.A.

“Code” means the Internal Revenue Code of 1986, as amended and as in effect on the date hereof.

“Collateral” has the meaning specified in the Pledge Agreement and the other Stock Lien Security Documents.

“Collateral Trust Agreement” means the Collateral Trust Agreement dated as of March 3, 2009 by and among the Company, the other Pledgors from time to time party thereto, the Trustee, the other Secured Debt Representatives from time to time party thereto and the Collateral Trustee.

“Collateral Trust Joinder” means (1) with respect to the provisions of the Collateral Trust Agreement relating to any Additional Stock Secured Debt, an agreement substantially in the form of Exhibit B to the Collateral Trust Agreement and (2) with respect to the provisions of the Collateral Trust Agreement relating to the addition of additional Pledgors, an agreement substantially in the form of Exhibit C to the Collateral Trust Agreement.

“Collateral Trustee” means The Bank of New York Mellon Trust Company, N.A., in its capacity as Collateral Trustee under the Collateral Trust Agreement, together with its successors in such capacity.

“Comparable Treasury Issue” means the U.S. Treasury security selected by an Independent Investment Banker as having a maturity most nearly equal to the period from the applicable Redemption Date to May 1, 2014, provided, however , that if the period from the Redemption Date to May 1, 2014 is less than one year, the weekly average yield on actually traded U.S. Treasury securities adjusted to a constant maturity of one year will be used.

“Comparable Treasury Price” means, with respect to any Redemption Date, (1) the average of five Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (2) if the Independent Investment Banker obtains fewer than five such Reference Treasury Dealer Quotations, the average of all such quotations.

“Consolidated Net Income” means, for any period, the consolidated net income (or loss) of the Company and its Consolidated Subsidiaries for such period determined in accordance with GAAP.

“Consolidated Total Assets” means, as of any date of determination, after giving pro forma effect to any acquisition of assets on such date, the sum of the amounts that would appear on the consolidated balance sheet of the Company and its Consolidated Subsidiaries as the total assets of the Company and its Consolidated Subsidiaries.

 

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“Continuing Directors” means, as of any date of determination, any member of the Board of Directors of the Company who (1) was a member of such Board of Directors on the date of this Tenth Supplemental Indenture or (2) was nominated for election or elected to such Board of Directors with the approval of the Continuing Directors who were members of such Board of Directors at the time of such nomination or election.

“Covenant Defeasance” has the meaning specified in Section 6.2.

“Credit Agreement” means the Credit Agreement, dated as of November 16, 2006, as amended by Amendment No. 1 dated as of June 27, 2008, among the Company, the lenders and issuers party thereto, Citicorp USA, Inc., as administrative agent, Bank of America, N.A., as syndication agent, Citigroup Global Markets Inc. and Banc of America Securities LLC, as joint lead arrangers and joint lead book runners, and General Electric Capital Corporation and The Bank of Nova Scotia, as co-documentation agents, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, and, in each case, as amended, restated, modified, renewed, refunded, replaced (whether upon or after termination or otherwise) or refinanced by any other Debt (including by means of sales of debt securities and including any amendment, restatement, modification, renewal, refunding, replacement or refinancing) in whole or in part from time to time.

“Custodian” means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto.

“Debt” means, with respect to any specified Person, any debt of such Person in respect of borrowed money, including Guarantees related thereto.

“Defeasance” has the meaning specified in Section 6.1.

“Definitive Note” means a certificated Note registered in the name of the Holder thereof and issued in accordance with Section 2.5 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 2.3 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 the Indenture.

“Discharge of First-Priority Stock Secured Obligations” means the occurrence of all of the following:

(1) termination or expiration of all commitments to extend credit that would constitute First-Priority Stock Secured Debt;

(2) payment in full in cash of the principal of and interest and premium (if any) on all First-Priority Stock Secured Debt (other than any undrawn letters of credit);

(3) discharge or cash collateralization (at the lower of (A) 105% of the aggregate undrawn amount and (B) the percentage of the aggregate undrawn amount required for release of liens under the terms of the applicable First-Priority Stock Lien Document) of all outstanding letters of credit constituting First-Priority Stock Secured Debt; and

(4) payment in full in cash of all other First-Priority Stock Secured Obligations that are outstanding and unpaid at the time the First-Priority Stock Secured Debt is paid in full in cash (other than any obligations for taxes, costs, indemnifications, reimbursements, damages and other liabilities in respect of which no claim or demand for payment has been made at such time).

 

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“Domestic Hospital Subsidiary” means each of the Company’s current and future direct and indirect Subsidiaries organized in a jurisdiction in the United States that (i) owns or operates a hospital or (ii) has a direct or indirect equity ownership interest in a Subsidiary that owns or operates a hospital, other than, in each of the cases (i) and (ii), any such Subsidiary that is a non-wholly-owned Subsidiary if the organizational documents thereof or related joint venture or similar agreements, or applicable law, would (A) prohibit the pledge of the Capital Stock of such Subsidiary without the consent of the equity holders thereof (other than the Company or its wholly owned Subsidiaries) or (B) upon the making of such pledge, trigger in favor of the equity holders thereof (other than the Company or its wholly owned Subsidiaries) rights in respect of the Capital Stock of such Subsidiary.

“DTC” has the meaning specified in Section 2.3.

“EBITDA” means, for any period, (a) Consolidated Net Income for such period plus (b) the sum of, in each case to the extent included in the calculation of such Consolidated Net Income, but without duplication, (i) losses from discontinued operations, (ii) any provision for income taxes, (iii) any loss from the sale of facilities and long term investments, (iv) any expenses attributable to minority interests, (v) Interest Expense, (vi) losses from extraordinary items or from the early extinguishment of debt, (vii) impairments of long-lived assets and goodwill and restructuring charges, (viii) depreciation and amortization expenses and (ix) stock based compensation expense minus (c) the sum of, in each case to the extent included in the calculation of such Consolidated Net Income but without duplication, (i) the cumulative effect (positive or negative, as the case may be) of changes in accounting principle, (ii) income from discontinued operations, (iii) any net credit for taxes, (iv) any income from the sale of facilities and long term investments, (v) any income attributable to minority interests and (vi) income from extraordinary items or from the early extinguishment of debt.

“Exchange Offer” has the meaning specified in the second paragraph under the caption “Recitals.”

“Exchange Registration Statement” has the meaning set forth in the Registration Rights Agreement.

“Exchange Notes” means the notes issued in the Subsequent Exchange Offer pursuant to Section 2.5(f).

“Euroclear” means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.

“Event of Default” has the meaning specified in Section 5.1.

“First-Priority Stock Lien” means a Lien granted by a Stock Lien Security Document to the Collateral Trustee, at any time, upon any property of the Company or any other Pledgor to secure First-Priority Stock Secured Obligations.

“First-Priority Stock Lien Documents” means the Note Documents and the indenture, credit agreement or other agreement pursuant to which any First-Priority Stock Secured Obligations are incurred and the Stock Lien Security Documents (other than any Stock Lien Security Documents that do not secure First-Priority Stock Secured Obligations).

“First-Priority Stock Lien Representative” means:

(1) in the case of the Notes or the 6-Year Notes, the Trustee; or

 

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(2) in the case of any other Series of First-Priority Stock Secured Debt, the trustee, agent or representative of the holders of such Series of First-Priority Stock Secured Debt who maintains the transfer register for such Series of First-Priority Stock Secured Debt and (A) is appointed as a representative of the First-Priority Stock Secured Debt (for purposes related to the administration of the Stock Lien Security Documents) pursuant to the credit agreement, indenture or other agreement governing such Series of First-Priority Stock Secured Debt and (B) has executed a Collateral Trust Joinder.

“First-Priority Stock Secured Debt” means:

(1) the Initial Notes issued on the date hereof (including any related Exchange Notes);

(2) the 6-Year Notes issued on the date hereof (including any related exchange notes);

(3) any other Debt (including Additional Notes and additional 6-Year Notes) that is secured equally and ratably with the Notes by a First-Priority Stock Lien that was permitted to be incurred and so secured under each applicable Stock Secured Debt Document; provided , in the case of any Debt referred to in this clause (3), that:

(a) on or before the date on which such Debt is incurred by the Company or any Subsidiary, such Debt is designated by the Company as “First-Priority Stock Secured Debt” for the purposes of the Stock Secured Debt Documents in an Additional Secured Debt Designation executed and delivered in accordance with Section 3.8(a) of the Collateral Trust Agreement; provided , that no Obligation or Debt may be designated as both Junior Stock Secured Debt and First-Priority Stock Secured Debt;

(b) the First-Priority Stock Lien Representative for such Debt executes and delivers a Collateral Trust Joinder in accordance with Section 3.8(b) of the Collateral Trust Agreement; and

(c) all other requirements set forth in Section 3.8 of the Collateral Trust Agreement have been complied with.

“First-Priority Stock Secured Obligations” means the First-Priority Stock Secured Debt and all other Obligations in respect thereof.

“GAAP” means generally accepted accounting principles in the United States of America as in effect from time to time set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and the statements and pronouncements of the Financial Accounting Standards Board, or in such other statements by such other entity (such as International Financial Reporting Standards) as may be in general use by significant segments of the accounting profession, that are applicable to the circumstances as of the date of determination.

“Global Note Legend” means the legend set forth in Section 2.5(g)(2) hereof, which is required to be placed on all Global Notes issued under the Indenture.

“Global Notes” means, individually and collectively, each of the Restricted Global Notes and the Unrestricted Global Notes deposited with or on behalf of and registered in the name of the Depository 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 2.1, 2.5(b)(3), 2.5(b)(4), 2.5(d)(2) or 2.5(f) hereof.

 

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“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, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Debt.

“Guarantors” means the Subsidiary Guarantors and any other Subsidiary of the Company that executes a Note Guarantee in accordance with the provisions of the Indenture, and their respective successors and assigns, in each case, until the Note Guarantee of such Person has been released in accordance with the provisions of the Indenture.

“Hospital Swap” means an exchange of assets and, to the extent necessary to equalize the value of the assets being exchanged, cash by the Company or one of its Subsidiaries for one or more hospitals and/or one or more Related Businesses, or for 100% of the Capital Stock of any Person owning or operating one or more hospitals and/or one or more Related Businesses; provided that cash does not exceed 30% of the sum of the amount of the cash and the fair market value of the Capital Stock or assets received or given by the Company or such Subsidiary in such transaction. Notwithstanding the foregoing, the Company and its Subsidiaries may consummate two Hospital Swaps in any 12-month period without regard to the requirements of the proviso in the previous sentence.

“Independent Investment Banker” means the Reference Treasury Dealers appointed by the Company.

“Indirect Participant” means a Person who holds a beneficial interest in a Global Note through a Participant.

“Initial Notes” means the first $699,543,000 aggregate principal amount of Notes issued under the Indenture on the date hereof.

“Interest Expense” means, for any period, the consolidated total interest expense of the Company and its Consolidated Subsidiaries for such period plus interest capitalized during such period in accordance with GAAP.

“Junior Stock Lien” means a Lien granted by a Stock Lien Security Document to the Collateral Trustee, at any time, upon any property of the Company or any other Pledgor to secure Junior Stock Secured Obligations.

“Junior Stock Lien Documents” means, collectively, any indenture, credit agreement or other agreement governing each Series of Junior Stock Secured Debt and the Stock Lien Security Documents (other than any Stock Lien Security Documents that do not secure Junior Stock Secured Obligations).

“Junior Stock Lien Representative” means, in the case of any Series of Junior Stock Secured Debt, the trustee, agent or representative of the holders of such Series of Junior Stock Secured Debt who maintains the transfer register for such Series of Junior Stock Secured Debt and (A) is appointed as a Junior Stock Lien Representative (for purposes related to the administration of the Stock Lien Security Documents) pursuant to the indenture, credit agreement or other agreement governing such Series of Junior Stock Secured Debt, together with its successors in such capacity and (B) has executed a Collateral Trust Joinder.

 

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“Junior Stock Secured Debt” means any Debt that is secured by a Junior Stock Lien on the Collateral that was permitted to be incurred and so secured under each applicable Stock Secured Debt Document; provided , that in the case of any such Debt:

(1) on or before the date on which such Debt is incurred by the Company or any Subsidiary, such Debt is designated by the Company as “Junior Stock Secured Debt” for the purposes of the Stock Secured Debt Documents in an Additional Secured Debt Designation executed and delivered in accordance with Section 3.8(a) of the Collateral Trust Agreement; provided , that no Obligation or Debt may be designated as both Junior Stock Secured Debt and First-Priority Stock Secured Debt;

(2) the Junior Stock Lien Representative for such Debt executes and delivers a Collateral Trust Joinder in accordance with Section 3.8(b) of the Collateral Trust Agreement; and

(3) all other requirements set forth in Section 3.8 of the Collateral Trust Agreement have been complied with.

“Junior Stock Secured Obligations” means Junior Stock Secured Debt and all other Obligations in respect thereof.

“Letter of Transmittal” means the letter of transmittal to be prepared by the Company and sent to all Holders of the Notes for use by such Holders in connection with the Subsequent Exchange Offer.

“Liens” means liens, mortgages, pledges, charges, security interests or other encumbrances.

“Net Available Cash” from an Asset Disposition means cash payments received therefrom (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise and proceeds from the sale or other disposition of any securities received as consideration, but only as and when received, but excluding any other consideration received in the form of assumption by the acquiring Person of debt or other obligations relating to such properties or assets or received in any other non-cash form), in each case net of:

 

  (1) all legal, title and recording tax expenses, commissions and other fees and expenses incurred, and all Federal, state, provincial, foreign and local taxes required to be accrued as a liability under GAAP, as a consequence of such Asset Disposition;

 

  (2) all payments made on any debt which is secured by any assets subject to such Asset Disposition, in accordance with the terms of any Lien upon or other security agreement of any kind with respect to such assets, or which must by its terms, or in order to obtain a necessary consent to such Asset Disposition, or by applicable law, be repaid out of the proceeds from such Asset Disposition;

 

  (3) all distributions and other payments required to be made to minority interest holders in Subsidiaries as a result of such Asset Disposition;

 

  (4) the deduction of appropriate amounts provided by the seller as a reserve, in accordance with GAAP, against any liabilities associated with the property or other assets disposed in such Asset Disposition and retained by the Company or any Subsidiaries after such Asset Disposition; and

 

  (5)

any portion of the purchase price from an Asset Disposition placed in escrow, whether as a reserve for adjustment of the purchase price, for satisfaction of indemnities in respect of

 

12


 

such Asset Disposition or otherwise in connection with that Asset Disposition; provided , however , that upon the termination of that escrow, Net Available Cash will be increased by any portion of funds in the escrow that are released to the Company or any of its Subsidiaries.

“Note Documents” means the Indenture, the Notes, the Note Guarantees and the Security Documents.

“Note Guarantee” means the Guarantee by each Guarantor of the Company’s Obligations under the Indenture and the Notes, executed pursuant to the provisions of the Indenture.

“Notes” has the meaning assigned to it under the caption “Recitals.” The Initial Notes and the Additional Notes shall be treated as a single class for all purposes under the Indenture, and unless the context otherwise requires, all references to the Notes shall include the Initial Notes and any Additional Notes.

“Obligations” means any principal, interest, premium (if any), penalties, fees, indemnifications, reimbursements, damages, expenses and other liabilities payable under the documentation governing any Debt.

“Officer” means, with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice-President of such Person.

“Old 2011 Notes” has the meaning specified in the first paragraph under the caption “Recitals.”

“Old 2012 Notes” has the meaning specified in the first paragraph under the caption “Recitals.”

“Old Notes” has the meaning specified in the first paragraph under the caption “Recitals.”

“Other Secured Debt” has the meaning specified in Section 4.1.

“Participant” means, with respect to the Depositary, Euroclear or Clearstream, a Person who has an account with the Depositary, Euroclear or Clearstream, respectively (and, with respect to DTC, shall include Euroclear and Clearstream).

“Paying Agent” has the meaning specified in Section 2.3.

“Permitted Credit Agreement Debt” means Debt outstanding under the Credit Agreement in aggregate principal amount not to exceed $800.0 million.

“Permitted Prior Liens” means Liens that arise by operation of law and are not voluntarily granted, to the extent entitled by law to priority over the Liens created by the Stock Lien Security Documents.

“Person” means any individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof.

“Pledge Agreement” means the Stock Pledge Agreement dated as of March 3, 2009 among the Company, the other Pledgors from time to time party thereto and the Collateral Trustee.

“Pledgors” means the Company and any other Person (if any) that at any time provides collateral security for any Stock Secured Obligations.

 

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“Primary Treasury Dealer” means a primary U.S. government securities dealer in New York City.

“Private Placement Legend” means the legend set forth in Section 2.5(g)(1) hereof to be placed on all Notes issued under the Indenture except where otherwise permitted by the provisions of the Indenture.

“Proceeds” means any and all cash, securities and other property realized from collection, sale, foreclosure or enforcement of the Liens upon any Collateral (including distributions of Collateral in satisfaction of any Stock Secured Obligations) after payment of any applicable Permitted Prior Liens.

“Qualified Equity Offering” means the issue and sale of common stock of the Company in a bona fide public or private offering.

“Qualified Institutional Buyer” or “QIB” has the meaning specified in Rule 144A.

“Qualifying USC Disposition” means the sale of USC University Hospital, an acute care hospital located on land leased from the University of Southern California, along with the Norris Cancer Hospital, a facility specializing in cancer treatment on the campus of USC University Hospital, pursuant to a definitive agreement between the Company and/or one of its Affiliates and the University of Southern California and/or one of its Affiliates.

“Reference Treasury Dealer” means:

(1) Citigroup Global Markets Inc. and its successor; provided that , if any of the foregoing ceases to be a Primary Treasury Dealer, the Company will substitute another Primary Treasury Dealer; and

(2) any other Primary Treasury Dealer selected by the Company.

“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any Redemption Date, 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 5:00 p.m., New York City time, on the third Business Day preceding such Redemption Date.

“Registrar” has the meaning specified in Section 2.3.

“Registration Rights Agreement” means the Exchange and Registration Rights Agreement, dated as of March 3, 2009 among the Company, the Guarantors and the other parties named on the signature pages thereof, as such agreement may be amended, modified or supplemented from time to time and, with respect to any Additional Notes, one or more registration rights agreements among the Company, the Guarantors and the other parties thereto, as such agreement(s) may be amended, modified or supplemented from time to time, relating to rights given by the Company to the purchasers of Additional Notes to register such Additional Notes under the Securities Act.

“Regulation S” means Regulation S promulgated under the Securities Act.

“Regulation S Global Note” means a Global Note substantially in the form of Exhibit A hereto bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of the Notes sold in reliance on Rule 903 of Regulation S.

 

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“Related Business” means a business affiliated or associated with a hospital or any business related or ancillary to the provision of healthcare services or information or the investment in, or the management, leasing or operation of, any of the foregoing.

“Required Junior Stock Secured Debtholders” means, at any time, the holders of more than 50% of the sum of:

(1) the aggregate outstanding principal amount of Junior Stock Secured Debt (including outstanding letters of credit whether or not then available or drawn); and

(2) other than in connection with the exercise of remedies, the aggregate unfunded commitments to extend credit which, when funded, would constitute Junior Stock Secured Debt.

For purposes of this definition, (a) Junior Stock Secured Debt registered in the name of, or beneficially owned by, the Company or any Affiliate of the Company will be deemed not to be outstanding, and (b) votes will be determined in accordance with the provisions of Section 7.2 of the Collateral Trust Agreement. Any written direction or consent from the Required Junior Stock Secured Debtholders shall be accompanied by a certificate signed by an authorized officer of each Junior Stock Lien Representative certifying that such written direction or consent is being delivered to the Collateral Trustee by the requisite number of holders to constitute the Required Junior Stock Secured Debtholders, and the Collateral Trustee may rely conclusively on, and shall be fully protected in relying upon, such certificate in proceeding with any such written direction or consent.

“Restricted Definitive Note” means a Definitive Note bearing the Private Placement Legend.

“Restricted Global Note” means a Global Note bearing the Private Placement Legend.

“Restricted Period” means the 40-day distribution compliance period as defined in Regulation S.

“Rule 144” means Rule 144 under the Securities Act (including any successor rule thereto), as the same may be amended from time to time.

“Rule 144A” means Rule 144A under the Securities Act (including any successor rule thereto), as the same may be amended from time to time.

“Rule 903” means Rule 903 under the Securities Act (including any successor rule thereto), as the same may be amended from time to time.

“Rule 904” means Rule 904 under the Securities Act (including any successor rule thereto), as the same may be amended from time to time.

“Sale and Lease-Back Transactions” means any arrangement with any Person (other than the Company or a Subsidiary), or to which any such Person is a party, providing for the leasing to the Company or a Subsidiary for a period of more than three years of any hospital that has been or is to be sold or transferred by the Company or such Subsidiary to such Person or to any other Person (other than the Company or a Subsidiary), to which the funds have been or are to be advanced by such Person on the security of the leased property.

“Secured Debt” means Debt secured by a Lien upon the property or assets of the Company or any of its direct or indirect Subsidiaries.

“Secured Debt Ratio” means, as of any date of determination, the ratio of (a) Secured Debt to (b) the aggregate amount of EBITDA for the most recent four consecutive fiscal quarters ending prior to such determination date.

 

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“Securities” has the meaning ascribed to it in the first paragraph under the caption “Recitals.”

“Senior Debt” means with respect to any Person:

 

  (1) Debt of such Person, whether outstanding on the date of this Tenth Supplemental Indenture or thereafter incurred; and

 

  (2) all other Obligations of such Person (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to such Person whether or not post-filing interest is allowed in such proceeding) in respect of Debt described in clause (1) above

unless, in the case of clauses (1) and (2), in the instrument creating or evidencing the same or pursuant to which the same is outstanding, it is provided that such Debt or other Obligations are subordinated in right of payment to the Notes or the Note Guarantee of such Person, as the case may be; provided , however , that Senior Debt shall not include:

 

  (1) any Obligation of such Person to the Company or any of its Subsidiaries;

 

  (2) any liability for Federal, state, local or other taxes owed or owing by such Person;

 

  (3) any accounts payable or other liability to trade creditors arising in the ordinary course of business;

 

  (4) any Debt or other Obligation of such Person which is subordinate or junior in any respect to any other Debt or other Obligation of such Person; or

 

  (5) that portion of any Debt which at the time of incurrence is incurred in violation of the Indenture.

“Series of First-Priority Stock Secured Debt” means the Notes, the 6-Year Notes and each other issue or series of First-Priority Stock Secured Debt for which a single transfer register is maintained.

“Series of Junior Stock Secured Debt” means each issue or series of Junior Stock Secured Debt for which a single transfer register is maintained.

“Series of Stock Secured Debt” means, severally, each Series of First-Priority Stock Secured Debt and each Series of Junior Stock Secured Debt.

“Significant Subsidiary” means any 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 date of this Tenth Supplemental Indenture.

“Special Interest” has the meaning set forth in the Registration Rights Agreement.

“Stock Lien Security Documents” means the Collateral Trust Agreement, each Collateral Trust Joinder relating to Stock Secured Debt, and all security agreements, pledge agreements, collateral assignments, collateral agency agreements, control agreements or other grants or transfers for security executed and delivered by the Company or any other Pledgor creating (or purporting to create) a Lien upon Collateral in favor of the Collateral Trustee, for the benefit of the Stock Secured Parties, in each case, as amended, modified, renewed, restated or replaced, in whole or in part, from time to time, in accordance with its terms and Section 7.2 of the Collateral Trust Agreement.

“Stock Secured Debt” means First-Priority Stock Secured Debt and Junior Stock Secured Debt.

 

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“Stock Secured Debt Documents” means the First-Priority Stock Lien Documents and the Junior Stock Lien Documents.

“Stock Secured Debt Representative” means each First-Priority Stock Lien Representative and each Junior Stock Lien Representative.

“Stock Secured Obligations” means First-Priority Stock Secured Obligations and Junior Stock Secured Obligations.

“Stock Secured Parties” means the holders of Stock Secured Obligations, the Stock Secured Debt Representatives on behalf of the holders of Stock Secured Obligations, and the Collateral Trustee.

“Subsequent Exchange Offer” has the meaning set forth in the Registration Rights Agreement.

“Subsidiary” means, with respect to any Person, (i) any corporation, limited liability company, association or other business entity of which more than 50% of the outstanding voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, managing members or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more other Subsidiaries of that Person (or a combination thereof) and (ii) any partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are such Person or one or more Subsidiaries of such Person (or any combination thereof).

“Subsidiary Guarantors” means each of the Company’s current and future direct and indirect Subsidiaries organized in a jurisdiction in the United States that (i) owns or operates a hospital or (ii) has a direct or indirect equity ownership interest in a Subsidiary that owns or operates a hospital, other than, in each of the cases (i) and (ii), any such Subsidiary that is a non-wholly-owned Subsidiary if the organizational documents thereof or related joint venture or similar agreements, or applicable law, would (A) prohibit the Guarantee of the Notes without the consent of the equity holders thereof (other than the Company or its wholly owned Subsidiaries) or (B) upon the making of such Guarantee, trigger in favor of the equity holders thereof (other than the Company or its wholly owned Subsidiaries) rights in respect of the Capital Stock of such Subsidiary.

“Unrestricted Definitive Note” means a Definitive Note that does not bear and is not required to bear the Private Placement Legend.

“Unrestricted Global Note” means a Global Note that does not bear and is not required to bear the Private Placement Legend.

“Voting Stock” of any specified 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.

 

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ARTICLE TWO

GENERAL TERMS AND CONDITIONS OF THE NOTES

Section 2.1. Form and Dating

(a) General . The Notes and the Trustee’s certificate of authentication will be substantially in the form of Exhibits A hereto. The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage. Each Note will be dated the date of its authentication. The Notes shall be in denominations of $2,000 and integral multiples of $1,000 in excess thereof.

The terms and provisions contained in the Notes will constitute, and are hereby expressly made, a part of this Tenth Supplemental Indenture and the Company, the Guarantors and the Trustee, by their execution and delivery of this Tenth 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 the Indenture, the provisions of the Indenture shall govern and be controlling.

(b) Global Notes . Notes issued in global form will 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 will be substantially in the form of Exhibit A 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 will represent such of the outstanding Notes as will be specified therein and each shall provide that it represents the aggregate principal amount of outstanding 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 appropriate, 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 will 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 2.5 hereof.

Section 2.2. Execution and Authentication

At least one Officer must sign the Notes for the Company 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 will nevertheless be valid.

A Note will not be valid until authenticated by the manual signature of the Trustee. The signature will be conclusive evidence that the Note has been authenticated under the Indenture.

The Trustee will, upon receipt of a written order of the Company signed by an Officer (an “ Authentication Order ”), authenticate Notes for original issue that may be validly issued under the Indenture, including any Additional Notes. The aggregate principal amount of Notes outstanding at any time may not exceed the aggregate principal amount of Notes authorized for issuance by the Company pursuant to one or more Authentication Orders, except as provided in Section 306 of the Existing Indenture.

The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Tenth 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 Company.

Section 2.3. Registrar and Paying Agent

The Company will 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 will keep a register of the Notes and of their transfer and exchange. The Company may appoint one or more co-registrars and one or more additional paying agents. The term

 

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“Registrar” includes any co-registrar and the term “Paying Agent” includes any additional paying agent. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company will notify the Trustee in writing of the name and address of any Agent not a party to the Indenture. If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.

The Company initially appoints The Depository Trust Company ( “DTC” ) to act as Depositary with respect to the Global Notes.

The Company initially appoints the Trustee to act as the Registrar and Paying Agent and to act as Custodian with respect to the Global Notes and the Trustee hereby agrees so to initially act.

Section 2.4. Paying Agent to Hold Money in Trust

The Company will require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the Paying Agent for the payment of principal, premium or Special Interest, if any, or interest on the Notes, and will notify the Trustee of any default by the Company 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 Company 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 will have no further liability for the money.

Section 2.5. 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 Company for Definitive Notes if:

(1) the Company delivers to the Trustee notice from the Depositary that it 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 Company within 90 days after the date of such notice from the Depositary;

(2) the Company 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

(3) there has occurred and is continuing an Event of Default with respect to the Notes.

Upon the occurrence of any of the preceding events in (1), (2) or (3) above, Definitive Notes shall be issued in such names as the Depositary shall instruct the Trustee. Such Definitive Notes will be issued in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof and will be in registered form only, without coupons. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 304 and 306 of the Existing Indenture. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to this Section 2.5 or Section 304 or 306 of the Existing Indenture, 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 2.5(a), however, beneficial interests in a Global Note may be transferred and exchanged as provided in Section 2.5(b), (c) or (f) hereof.

 

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(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 the Indenture and the Applicable Procedures. Beneficial interests in the Restricted Global Notes will be subject to restrictions on transfer comparable to those set forth herein to the extent required by the Securities Act. Transfers of beneficial interests in the Global Notes also will require compliance with either subparagraph (1) or (2) below, as applicable, as well as one or more of the other following subparagraphs, as applicable:

(1) Transfer of Beneficial Interests in the Same Global Note . Beneficial interests in any Restricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in the same Restricted Global Note in accordance with the transfer restrictions set forth in the Private Placement Legend; provided, however , that prior to the expiration of the Restricted Period, transfers of beneficial interests in the Regulation S Global Note may not be made to a U.S. Person or for the account or benefit of a U.S. Person. Beneficial interests in any Unrestricted Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note. No written orders or instructions shall be required to be delivered to the Registrar to effect the transfers described in this Section 2.5(b)(1).

(2) All Other Transfers and Exchanges of Beneficial Interests in Global Notes. In connection with all transfers and exchanges of beneficial interests that are not subject to Section 2.5(b)(1) above, the transferor of such beneficial interest must deliver to the Registrar either:

(A) both:

(i) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to credit or cause to be credited a beneficial interest in another Global Note in an amount equal to the beneficial interest to be transferred or exchanged; and

(ii) instructions given in accordance with the Applicable Procedures containing information regarding the Participant account to be credited with such increase; or

(B) both:

(i) a written order from a Participant or an Indirect Participant given to the Depositary in accordance with the Applicable Procedures directing the Depositary to cause to be issued a Definitive Note in an amount equal to the beneficial interest to be transferred or exchanged; and

(ii) instructions given by the Depositary to the Registrar containing information regarding the Person in whose name such Definitive Note shall be registered to effect the transfer or exchange referred to in (1) above.

Upon consummation of a Subsequent Exchange Offer by the Company in accordance with Section 2.5(f) hereof, the requirements of this Section 2.5(b)(2) shall be deemed to have been satisfied upon receipt by the Registrar of the instructions contained in the Letter of Transmittal delivered by the Holder of such beneficial interests in the Restricted Global Notes. Upon satisfaction of all of the requirements for transfer or exchange of beneficial interests in Global Notes contained in this Tenth Supplemental Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust the principal amount of the relevant Global Note(s) pursuant to Section 2.5(h) hereof.

 

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(3) Transfer of Beneficial Interests to Another Restricted Global Note. A beneficial interest in any Restricted Global Note may be transferred to a Person who takes delivery thereof in the form of a beneficial interest in another Restricted Global Note if the transfer complies with the requirements of Section 2.5(b)(2) above and the Registrar receives the following:

(A) if the transferee will take delivery in the form of a beneficial interest in the 144A Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof; and

(B) if the transferee will take delivery in the form of a beneficial interest in the Regulation S Global Note, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof.

(4) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer complies with the requirements of Section 2.5(b)(2) above and:

(A) such exchange or transfer is effected pursuant to the Subsequent Exchange Offer in accordance with the Registration Rights Agreement and the holder of the beneficial interest to be transferred, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person participating in the distribution of the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;

(B) such transfer is effected by a Broker-Dealer pursuant to the Exchange Registration Statement in accordance with the Registration Rights Agreement; or

(C) the Registrar receives the following:

(i) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(a) thereof; or

(ii) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of a beneficial interest in an Unrestricted Global Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

and, in each such case set forth in this subparagraph (C), an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

If any such transfer is effected pursuant to subparagraph (C) above at a time when an Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of an Authentication Order in accordance with Section 2.2 hereof, the Trustee shall authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the aggregate principal amount of beneficial interests transferred pursuant to subparagraph (C) above.

 

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Beneficial interests in an Unrestricted Global Note cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a beneficial interest in a Restricted Global Note.

(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.

(1) Beneficial Interests in Restricted Global Notes to Restricted Definitive Notes. If any holder of a beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Restricted Definitive Note, then, upon receipt by the Registrar of the following documentation:

(A) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for a Restricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (2)(a) thereof;

(B) if such beneficial interest is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;

(C) if such beneficial interest is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;

(D) if such beneficial interest is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;

(E) if such beneficial interest is being transferred in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable;

(F) if such beneficial interest is being transferred to the Company or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or

(G) if such beneficial interest is being transferred pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,

the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.5(h) hereof, and the Company shall execute and the Trustee shall 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 in a Restricted Global Note pursuant to this Section 2.5(c) shall be registered in such name or names and in such authorized denomination or denominations as the holder of such beneficial interest shall instruct the Registrar through instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall

 

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deliver such Definitive Notes to the Persons in whose names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to this Section 2.5(c)(1) shall bear the Private Placement Legend and shall be subject to all restrictions on transfer contained therein.

(2) Beneficial Interests in Restricted Global Notes to Unrestricted Definitive Notes. A holder of a beneficial interest in a Restricted Global Note may exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note only if:

(A) such exchange or transfer is effected pursuant to the Subsequent Exchange Offer in accordance with the Registration Rights Agreement and the holder of such beneficial interest, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person participating in the distribution of the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;

(B) such transfer is effected by a Broker-Dealer pursuant to the Exchange Registration Statement in accordance with the Registration Rights Agreement; or

(C) the Registrar receives the following:

(i) if the holder of such beneficial interest in a Restricted Global Note proposes to exchange such beneficial interest for an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit C hereto, including the certifications in item (1)(b) thereof; or

(ii) if the holder of such beneficial interest in a Restricted Global Note proposes to transfer such beneficial interest to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

and, in each such case set forth in this subparagraph (C), an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

(3) Beneficial Interests in Unrestricted Global Notes to Unrestricted Definitive Notes. If any holder of a beneficial interest in an Unrestricted 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 2.5(b)(2) hereof, the Trustee will cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 2.5(h) hereof, and the Company 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 2.5(c)(3) 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 so registered. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 2.5(c)(3) will not bear the Private Placement Legend.

 

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(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.

(1) Restricted Definitive Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Restricted Global Note, then, upon receipt by the Registrar of the following documentation:

(A) if the Holder of such Restricted Definitive Note proposes to exchange such Note for a beneficial interest in a Restricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (2)(b) thereof;

(B) if such Restricted Definitive Note is being transferred to a QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (1) thereof;

(C) if such Restricted Definitive Note is being transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule 904, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (2) thereof;

(D) if such Restricted Definitive Note is being transferred pursuant to an exemption from the registration requirements of the Securities Act in accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;

(E) if such Restricted Definitive Note is being transferred in reliance on an exemption from the registration requirements of the Securities Act other than those listed in subparagraphs (B) through (D) above, a certificate to the effect set forth in Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable;

(F) if such Restricted Definitive Note is being transferred to the Company or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(b) thereof; or

(G) if such Restricted Definitive Note is being transferred pursuant to an effective registration statement under the Securities Act, a certificate to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,

the Trustee will cancel the Restricted Definitive Note, increase or cause to be increased the aggregate principal amount of, in the case of clause (A) above, the appropriate Restricted Global Note, in the case of clause (B) above, the 144A Global Note, and in the case of clause (C) above, the Regulation S Global Note.

 

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(2) Restricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of a Restricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive Note to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note only if:

(A) such exchange or transfer is effected pursuant to the Subsequent Exchange Offer in accordance with the Registration Rights Agreement and the Holder, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person participating in the distribution of the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;

(B) such transfer is effected by a Broker-Dealer pursuant to the Exchange Registration Statement in accordance with the Registration Rights Agreement; or

(C) the Registrar receives the following:

(i) if the Holder of such Definitive Notes proposes to exchange such Notes for a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(c) thereof; or

(ii) if the Holder of such Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of a beneficial interest in the Unrestricted Global Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

and, in each such case set forth in this subparagraph (C), an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

Upon satisfaction of the conditions of any of the subparagraphs in this Section 2.5(d)(2), the Trustee will cancel the Definitive Notes and increase or cause to be increased the aggregate principal amount of the Unrestricted Global Note.

(3) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may exchange such Note for a beneficial interest in an Unrestricted Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in an Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee will cancel the applicable Unrestricted Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Unrestricted Global Notes.

If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to subparagraphs (2)(C) or (3) above at a time when an Unrestricted Global Note has not yet been issued, the Company will issue and, upon receipt of an Authentication Order in accordance with Section 2.2 hereof, the Trustee will authenticate one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of Definitive Notes so transferred.

 

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(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.5(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 2.5(e).

(1) Restricted Definitive Notes to Restricted Definitive Notes. Any Restricted Definitive Note may be transferred to and registered in the name of Persons who take delivery thereof in the form of a Restricted Definitive Note if the Registrar receives the following:

(A) if the transfer will be made pursuant to Rule 144A, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (1) thereof;

(B) if the transfer will be made pursuant to Rule 903 or Rule 904, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications in item (2) thereof; and

(C) if the transfer will be made pursuant to any other exemption from the registration requirements of the Securities Act, then the transferor must deliver a certificate in the form of Exhibit B hereto, including the certifications, certificates and Opinion of Counsel required by item (3) thereof, if applicable.

(2) Restricted Definitive Notes to Unrestricted Definitive Notes. Any Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted Definitive Note or transferred to a Person or Persons who take delivery thereof in the form of an Unrestricted Definitive Note if:

(A) such exchange or transfer is effected pursuant to the Subsequent Exchange Offer in accordance with the Registration Rights Agreement and the Holder, in the case of an exchange, or the transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person participating in the distribution of the Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;

(B) any such transfer is effected by a Broker-Dealer pursuant to the Exchange Registration Statement in accordance with the Registration Rights Agreement; or

(C) the Registrar receives the following:

(i) if the Holder of such Restricted Definitive Notes proposes to exchange such Notes for an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit C hereto, including the certifications in item (1)(d) thereof; or

(ii) if the Holder of such Restricted Definitive Notes proposes to transfer such Notes to a Person who shall take delivery thereof in the form of an Unrestricted Definitive Note, a certificate from such Holder in the form of Exhibit B hereto, including the certifications in item (4) thereof;

 

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and, in each such case set forth in this subparagraph (C), an Opinion of Counsel in form reasonably acceptable to the Registrar to the effect that such exchange or transfer is in compliance with the Securities Act and that the restrictions on transfer contained herein and in the Private Placement Legend are no longer required in order to maintain compliance with the Securities Act.

(3) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A Holder of Unrestricted Definitive Notes may transfer such Notes to a Person who takes delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to register such a transfer, the Registrar shall register the Unrestricted Definitive Notes pursuant to the instructions from the Holder thereof.

(f) Subsequent Exchange Offer. Upon the occurrence of the Subsequent Exchange Offer in accordance with the Registration Rights Agreement, the Company will issue and, upon receipt of an Authentication Order in accordance with Section 2.2 hereof, the Trustee will authenticate:

(1) one or more Unrestricted Global Notes in an aggregate principal amount equal to the principal amount of the beneficial interests in the Restricted Global Notes accepted for exchange in the Subsequent Exchange Offer by Persons that certify in the applicable Letters of Transmittal that (A) they are not Broker-Dealers, (B) they are not participating in a distribution of the Exchange Notes and (C) they are not affiliates (as defined in Rule 144) of the Company; and

(2) Unrestricted Definitive Notes in an aggregate principal amount equal to the principal amount of the Restricted Definitive Notes accepted for exchange in the Subsequent Exchange Offer by Persons that certify in the applicable Letters of Transmittal that (A) they are not Broker-Dealers, (B) they are not participating in a distribution of the Exchange Notes and (C) they are not affiliates (as defined in Rule 144) of the Company.

Concurrently with the issuance of such Notes, the Trustee will cause the aggregate principal amount of the applicable Restricted Global Notes to be reduced accordingly, and the Company will execute and the Trustee will authenticate and deliver to the Persons designated by the Holders of Definitive Notes so accepted Unrestricted Definitive Notes in the appropriate principal amount.

(g) Legends. The following legends will appear on the face of all Global Notes and Definitive Notes issued under the Indenture unless specifically stated otherwise in the applicable provisions of this Tenth Supplemental Indenture.

(1) Private Placement Legend .

(A) Except as permitted by subparagraph (B) below, each Global Note and each Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall bear the legend in substantially the following form:

“THE SALE OF THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, UNTIL SUCH TIME AS TENET HEALTHCARE CORPORATION (THE “COMPANY”) HAS INSTRUCTED THE TRUSTEE THAT THIS LEGEND NO LONGER APPLIES, THIS NOTE MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER AGREES (1) THAT IT WILL NOT OFFER, RESELL, PLEDGE OR OTHERWISE TRANSFER THE NOTES EVIDENCED HEREBY, EXCEPT (A) TO THE COMPANY; (B) UNDER A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT; (C) TO A PERSON THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE

 

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SECURITIES ACT) THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, ALL IN COMPLIANCE WITH RULE 144A (IF AVAILABLE); (D) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT; OR (E) UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND (2) THAT IT WILL, PRIOR TO ANY TRANSFER OF THIS NOTE PURSUANT TO THE FOREGOING CLAUSE (E), FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THEY MAY REQUIRE AND MAY RELY UPON TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. IN ANY EVENT, NO AFFILIATE OF THE COMPANY MAY RESELL THIS NOTE OTHER THAN IN CONFORMITY WITH RULE 144 BEFORE ONE YEAR AFTER THE LAST DATE OF ORIGINAL ISSUANCE OF NOTES.”

(B) Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant to subparagraphs (b)(4), (c)(2), (c)(3), (d)(2), (d)(3), (e)(2), (e)(3) or (f) of this Section 2.5 (and all Notes issued in exchange therefor or substitution thereof) will not bear the Private Placement Legend. The Company may also provide a certificate to the Trustee instructing the Trustee that the Private Placement Legend no longer applies or issue one or more new Notes to the Trustee in replacement for all or part of the Notes with the Private Placement Legend.

(2) Global Note Legend . Each Global Note will bear a legend in substantially the following form:

“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE 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 (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.5 OF THE TENTH SUPPLEMENTAL INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.5(a) OF THE TENTH SUPPLEMENTAL INDENTURE, (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 309 OF THE EXISTING INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF TENET HEALTHCARE CORPORATION.

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 COMPANY 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.”

 

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(3) Original Issue Discount Legend . Each Note will bear a legend in substantially the following form:

“FOR UNITED STATES FEDERAL INCOME TAX PURPOSES, THIS NOTE BEARS ORIGINAL ISSUE DISCOUNT. INFORMATION INCLUDING THE ISSUE PRICE, AMOUNT OF ORIGINAL ISSUE DISCOUNT, THE ISSUE DATE, AND THE YIELD TO MATURITY WILL BE MADE AVAILABLE TO HOLDERS UPON REQUEST BY THE TREASURER OF THE COMPANY AT 13737 NOEL ROAD, DALLAS, TX 75240.”

(h) 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 canceled in whole and not in part, each such Global Note will be returned to or retained and canceled by the Trustee in accordance with Section 309 of the Existing Indenture. 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 will be reduced accordingly and an endorsement will 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 will be increased accordingly and an endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to reflect such increase.

(i) General Provisions Relating to Transfers and Exchanges.

(1) To permit registrations of transfers and exchanges, the Company will execute and the Trustee will authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.2 hereof or at the Registrar’s request.

(2) No service charge will 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 Company 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 304, 906 and 1107 of the Existing Indenture and Sections 3.3, 4.6 and 4.7 hereof).

(3) The Registrar will not be required to register the transfer of or exchange of any Note selected for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in part.

(4) All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes will be the valid Obligations of the Company, evidencing the same Debt, and entitled to the same benefits under the Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.

(5) Neither the Registrar nor the Company will 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 1103 of the Existing Indenture and ending at the close of business on the day of selection;

 

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(B) to register the transfer of or to exchange any Note 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.

(6) Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company 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 interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall be affected by notice to the contrary.

(7) The Trustee will authenticate Global Notes and Definitive Notes in accordance with the provisions of Section 2.2 hereof.

(8) All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.5 to effect a registration of transfer or exchange may be submitted by facsimile.

ARTICLE THREE

REDEMPTION AND PREPAYMENT

Section 3.1. Optional Redemption

(a) At any time or from time to time prior to May 1, 2012, the Company, at its option, may redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture with the net cash proceeds of one or more Qualified Equity Offerings at a Redemption Price equal to 110.000% of the principal amount thereof, plus accrued and unpaid interest and Special Interest, if any, to the Redemption Date; provided that:

(1) at least 65% of the aggregate principal amount of Notes issued under the Indenture remains outstanding immediately after the occurrence of such redemption; and

(2) the redemption occurs within 90 days of the date of the closing of any such Qualified Equity Offering.

(b) At any time or from time to time after May 1, 2014, the Company, at its option, may redeem the Notes, in whole or in part, at the Redemption Prices (expressed as percentages of principal amount) set forth below, together with accrued and unpaid interest thereon and Special Interest, if any, to the applicable Redemption Date, if redeemed during the twelve-month period beginning on May 1 of the years indicated:

 

Year

   Redemption
Price
 

2014

   105.000 %

2015

   103.333 %

2016

   101.667 %

2017 and thereafter

   100.000 %

 

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(c) The Company, at its option, may redeem the Notes, in whole or in part, at any time on or prior to May 1, 2014, at a Redemption Price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium as of the Redemption Date, plus accrued and unpaid interest thereon and Special Interest, if any, to, but not including, the Redemption Date.

(d) Any redemption pursuant to this Section 3.1 shall be made pursuant to the provisions of Article Eleven of the Existing Indenture.

Section 3.2. Sinking Fund

The Company is not required to make mandatory sinking fund payments with respect to the Notes.

Section 3.3. Offer to Purchase by Application of Balance in Net Available Cash

In the event that, pursuant to Section 4.6 hereof, the Company is required to commence an offer to all Holders of Notes (and to holders of other First-Priority Stock Secured Debt) to purchase Notes (and such other First-Priority Stock Secured Debt) (an “Asset Disposition Offer” ), it will follow the procedures specified below.

The Asset Disposition Offer shall be made to all Holders of Notes and all holders of other First-Priority Stock Secured Debt. The Asset Disposition Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “ Offer Period ”). No later than three Business Days after the termination of the Offer Period (the “ Purchase Date ”), the Company will apply the Net Available Cash available for the Asset Disposition Offer (the “Offer Amount” ) to the purchase of Notes and such other First-Priority Stock Secured Debt (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other First-Priority Stock Secured Debt tendered in response to the Asset Disposition Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made.

If the Purchase Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest and Special Interest, if any, will 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 will be payable to Holders who tender Notes pursuant to the Asset Disposition Offer.

Upon the commencement of an Asset Disposition Offer, the Company will send, by first class mail, a notice to the Trustee and each of the Holders and each of the holders of other First-Priority Stock Secured Debt, with a copy to the Trustee. The notice will contain all instructions and materials necessary to enable such holders to tender Notes and other First-Priority Stock Secured Debt pursuant to the Asset Disposition Offer. The notice, which will govern the terms of the Asset Disposition Offer, will state:

(1) that the Asset Disposition Offer is being made pursuant to this Section 3.3 and Section 4.6 hereof and the length of time the Asset Disposition Offer will remain open;

(2) the Offer Amount, the purchase price and the Purchase Date;

 

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(3) that any Note not tendered or accepted for payment will continue to accrue interest;

(4) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Disposition Offer will cease to accrue interest after the Purchase Date;

(5) that Holders electing to have a Note purchased pursuant to an Asset Disposition Offer may elect to have Notes purchased only in denominations of $2,000 and in integral multiples of $1,000 in excess thereof;

(6) that Holders electing to have Notes purchased pursuant to any Asset Disposition Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company, a Depositary, if appointed by the Company, or a Paying Agent at the address specified in the notice at least three days before the Purchase Date;

(7) that holders of Notes and other First-Priority Stock Secured Debt will be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives, not later than the expiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the holder, the principal amount of the Note or other First-Priority Stock Secured Debt the holder delivered for purchase and a statement that such holder is withdrawing his election to have such Note or other First-Priority Stock Secured Debt purchased;

(8) that, if the aggregate principal amount of Notes and other First-Priority Stock Secured Debt surrendered by holders thereof exceeds the Offer Amount, the Company will select the Notes and other First-Priority Stock Secured Debt to be purchased on a pro rata basis based on the principal amount of Notes and such other First-Priority Stock Secured Debt surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or integral multiples of $1,000 in excess thereof, will be purchased); and

(9) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer).

On or before the Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes and other First-Priority Stock Secured Debt or portions thereof tendered pursuant to the Asset Disposition Offer, or if less than the Offer Amount has been tendered, all Notes and other First-Priority Stock Secured Debt tendered, and will deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 3.3. The Company, the Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon written request from the Company, will authenticate and mail or deliver (or cause to be transferred by book entry) such new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Disposition Offer on the Purchase Date.

 

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Other than as specifically provided in this Section 3.3, any purchase pursuant to this Section 3.3 shall be made pursuant to the provisions of Article Eleven of the Existing Indenture.

Section 3.4. AHYDO Payments

If the Notes would otherwise constitute “applicable high yield discount obligations” within the meaning of Section 163(i)(1) of the Code, and if Section 163(e)(5) of the Code applies to the Notes, then at the end of each accrual period ending after the fifth anniversary of the issue date of such notes (the “ AHYDO Payment Date ”), the Company will be required to redeem for cash a portion of the principal of each such note equal to the amount necessary to avoid the application of Section 163(e)(5) of the Code. No payment pursuant to any other provisions of this Indenture will alter the Company’s obligation to make any such payment with respect to any Notes that remain outstanding on the AHYDO Payment Date.

ARTICLE FOUR

COVENANTS

Section 4.1. Limitations on Liens

The Company covenants and agrees that neither it nor any of its Subsidiaries will issue, incur, create, assume or guarantee (collectively, “ incur ”) any Debt secured by Liens upon property or assets (including the Collateral), unless at the time of and after giving effect to the incurrence of such Debt, the aggregate amount of all such Secured Debt (including the aggregate principal amount of Notes and 6-Year Notes outstanding at such time) shall not exceed the greater of (x) $3.2 billion and (y) the amount which would cause the Secured Debt Ratio to exceed 4.0 to 1.0; provided that the aggregate amount of all such Debt secured by a Lien pari passu to the Lien securing the Notes (including the aggregate principal amount of Notes and 6-Year Notes outstanding at such time) shall not exceed the greater of (a) $2.6 billion and (b) the amount which would cause the Secured Debt Ratio to exceed 3.0 to 1.0. If any such Secured Debt (other than Permitted Credit Agreement Debt) is secured by property or assets other than the Collateral, the Notes shall be secured equally and ratably with, or prior to, such Debt; provided that up to $75.0 million in principal amount of such Secured Debt (“ Other Secured Debt ”) is not subject to the equal and ratable security requirement in this sentence. To the extent that the Company or any of its Subsidiaries incurs any additional Debt permitted under this Section 4.1 (other than Other Secured Debt) that is secured by a Lien pari passu to the Lien securing the Notes or junior Lien on any property or assets, such Liens shall be subject to the Collateral Trust Agreement.

The foregoing provisions shall not apply to:

(1) Liens securing Permitted Credit Agreement Debt;

(2) Liens in favor of the Company or a Domestic Hospital Subsidiary;

(3) Liens existing on the date of this Tenth Supplemental Indenture;

(4) Liens in favor of a government or governmental entity that:

(a) secure Debt that is guaranteed by the government or governmental entity, or

 

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(b) secure Debt 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;

(5) Liens arising in connection with the transfer of tax benefits in accordance with Section 168(f)(8) of the Internal Revenue Code of 1954 (or any similar provision of law from time to time in effect); provided , that such Liens (i) are incurred within 90 days (or any longer period, not in excess of one year, as any such provision of law may from time to time permit) after the acquisition of the property or equipment subject to said Lien, (ii) do not extend to any other property or equipment, and (iii) are solely for the purpose of said transfer of tax benefits;

(6) Liens created in substitution of or as replacements for any Liens permitted by clauses (1) to (5) set forth above, provided that the property encumbered by any substitute or replacement Lien is similar in nature and value to the property encumbered by the Lien that is being replaced, as determined in good faith by an officer of the Company; and

(7) Any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Lien referred to in the foregoing clauses (1) to (6) inclusive of any Debt secured thereby; provided that the principal amount of Debt secured thereby shall not exceed the principal amount of Debt so secured at the time of such extension, renewal or replacement, and that such extension, renewal or replacement Lien shall be limited to all or part of the same property that secured the Lien extended, renewed or replaced (plus improvements on such property).

Section 4.2. Limitations on Sale and Lease-Back Transactions

The Company covenants and agrees that neither it nor any of its Subsidiaries will enter into any Sale and Lease-Back Transaction with another Person, other than the Company or any Guarantor, unless:

(i) the Company or such Subsidiary could incur the Attributable Debt in respect of such Sale and Lease-Back Transaction secured by a Lien on the property to be leased in compliance with Section 4.1 hereof; and

(ii) the Company complies with Section 4.6 hereof.

Notwithstanding the foregoing, the Company and any of its Subsidiaries may enter into any Sale and Lease-Back Transaction, provided that the aggregate Attributable Debt in respect of all such Sale and Lease-Back Transactions does not exceed the greater of (x) $500.0 million and (y) 5% of Consolidated Total Assets.

Section 4.3. Limitations on Issuances of Guarantees by Subsidiaries

The Company will not permit any of its Subsidiaries to Guarantee any Debt of the Company, unless at the time of and after giving effect to the issuance of such Guarantee, the aggregate amount of all such guaranteed Debt (including the aggregate principal amount of Notes and 6-Year Notes outstanding at such time) shall not exceed the greater of (x) $4.2 billion or (y) 5.0 times the aggregate amount of EBITDA for the most recent four consecutive fiscal quarters ending prior to the date of determination; provided that , unless the Notes are secured by substantially all the property and assets (other than accounts receivable and cash) of the Guarantors, the aggregate amount of all such Debt guaranteed by Guarantees that are not subordinated to the Guarantees of the Notes (including the aggregate principal amount of Notes and 6-Year Notes outstanding at such time) shall not exceed the greater of (a) $2.6 billion and (b) 3.0 times the aggregate amount of EBITDA for the most recent four consecutive fiscal quarters ending prior to the date of determination. The foregoing restriction will not prohibit the issuance of Guarantees by any of our Subsidiaries in respect of Permitted Credit Agreement Debt.

 

34


Section 4.4. Additional Note Guarantees

The Company shall cause each newly created or acquired direct or indirect Subsidiary organized in a jurisdiction in the United States that (i) owns or operates a hospital or (ii) has a direct or indirect equity interest in a Subsidiary that owns or operates a hospital, other than, in each of the cases (i) and (ii), any such Subsidiary that is a non-wholly-owned Subsidiary if the organizational documents thereof or related joint venture or similar agreements, or applicable law, would (A) prohibit the Guarantee of the Notes without the consent of the equity holders thereof (other than the Company or its wholly owned Subsidiaries) or (B) upon the making of such Guarantee, trigger in favor of the equity holders thereof (other than the Company or its wholly owned Subsidiaries) rights in respect of the Capital Stock of such Subsidiary, to execute and deliver to the Trustee a Note Guarantee pursuant to a supplemental indenture. The form of such Note Guarantee is attached as Exhibit E hereto.

Section 4.5. SEC Reports

If at any time the Company is no longer subject to the periodic reporting requirements of the Exchange Act for any reason, the Company will nevertheless continue to file with the Commission for public availability within the time periods that would have been applicable if the Company were subject to such reporting requirements:

(1) all quarterly and annual reports that would be required to be filed with the Commission on Forms 10-Q and 10-K if the Company were required to file such reports; and

(2) all current reports that would be required to be filed with the Commission on Form 8-K if the Company were required to file such reports.

All such reports shall be prepared in all material respects in accordance with all of the rules and regulations applicable to such reports. Each annual report on Form 10-K shall include a report on the consolidated financial statements of the Company and its Consolidated Subsidiaries by the Company’s certified independent accountants.

Section 4.6. Asset Dispositions

The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, consummate any Asset Disposition unless:

(1) the Company or such Subsidiary receives consideration at the time of such Asset Disposition at least equal to the fair market value, as determined in good faith by the Company, of the shares and assets subject to such Asset Disposition;

(2) at least 75% of the consideration received in such Asset Disposition by the Company or such Subsidiary is in the form of cash or cash equivalents;

(3) an amount equal to 100% of the Net Available Cash from such Asset Disposition is applied by the Company or such Subsidiary, as the case may be:

(A) to the extent the Company elects (or is required by the terms of any Debt), to prepay, repay, redeem or purchase Senior Debt of the Company or of a Guarantor or Debt of a Subsidiary that is not a Guarantor (in each case other than Debt owed to the Company or one of its Subsidiaries) within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; or

 

35


(B) to the extent the Company elects, to acquire Additional Assets within one year from the later of the date of such Asset Disposition or the receipt of such Net Available Cash; and

(4) to the extent of the balance of such Net Available Cash after application in accordance with clauses (3)(A) or (3)(B) above, such balance is applied by the Company or such Subsidiary, as the case may be, to make an Asset Disposition Offer to the Holders of the Notes (and to holders of other First-Priority Stock Secured Debt) to purchase Notes (and such other First-Priority Stock Secured Debt) pursuant to and subject to the conditions contained in this Section and Section 3.3 hereof;

provided , however , that in connection with any prepayment, repayment or purchase of debt pursuant to clause (3)(A) or (4) above, the Company or such Subsidiary shall permanently retire such debt and shall cause the related loan commitment (if any) to be permanently reduced in an amount equal to the principal amount so prepaid, repaid or purchased; provided , further , however , that, in the case of clause (3)(B) above, a binding commitment shall be treated as a permitted application of the Net Available Cash from the date of such commitment so long as the Company or such Subsidiary enters into such commitment with the good faith expectation that such Net Available Cash will be applied to satisfy such commitment within 180 days of such commitment (an “ acceptable commitment ”); provided , further that if any acceptable commitment is later canceled or terminated for any reason before such Net Available Cash is applied, then such Net Available Cash shall be applied pursuant to clause (4) above.

Notwithstanding the foregoing provisions of the preceding paragraph, the Company and such Subsidiaries will not be required to apply any Net Available Cash in accordance with the preceding paragraph except to the extent that the aggregate Net Available Cash from all Asset Dispositions subject to the preceding paragraph which is not applied in accordance with the preceding paragraph exceeds $100.0 million. Pending application of Net Available Cash pursuant to this Section 4.6, such Net Available Cash may be used in any other manner not prohibited by the Indenture.

For purposes of this Section 4.6, the following are deemed to be cash or cash equivalents:

(1) the assumption or discharge of debt or other liabilities of ours or any Subsidiary and the release of us or such Subsidiary from all liability on such debt or other liability in connection with such Asset Disposition;

(2) securities or other obligations received by us or any Subsidiary from the transferee that are converted by us or such Subsidiary into cash within 180 days of the Asset Disposition, to the extent of the cash received in that conversion; and

(3) Additional Assets.

In the event of an Asset Disposition that requires the purchase of Notes (and other First-Priority Stock Secured Debt), the Company will purchase Notes tendered pursuant to an Asset Disposition Offer by the Company for the Notes (and such other First-Priority Stock Secured Debt) at a purchase price of 100% of their principal amount (or, in the event such other First-Priority Stock Secured Debt was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest and Special Interest, if any (or, in respect of such other First-Priority Stock Secured Debt, such other price, not to exceed 100%, as may be provided for by the terms of such other First-Priority Stock Secured Debt), in accordance with the procedures (including prorating in the event of

 

36


oversubscription) set forth in Section 3.3 hereof. If there remains a balance of Net Available Cash after purchasing all securities tendered, then such balance may be used in any manner not prohibited by the Indenture. If the aggregate purchase price of the securities tendered exceeds the Net Available Cash allotted to their purchase, the Company will select the securities to be purchased on a pro rata basis but in round denominations, which in the case of the Notes will be denominations of $2,000 principal amount or any greater integral multiple of $1,000 in excess thereof. The Company shall not be required to make such an Asset Disposition Offer to purchase Notes (and other First-Priority Stock Secured Debt) pursuant to this Section 4.6 if the Net Available Cash available therefor is less than $100.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Asset Disposition Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). Upon completion of such an Asset Disposition Offer, Net Available Cash will be deemed to be reduced by the aggregate amount of such Asset Disposition Offer.

The Company will comply, to the extent applicable, with the requirements of Rule 14(e) of the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to this Section 4.6. To the extent that the provisions of any securities laws or regulations conflict with the provisions of Section 3.3 hereof or this Section 4.6, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under Section 3.3 hereof or this Section 4.6 by virtue of such compliance.

Section 4.7. Offer to Repurchase Upon Change of Control

(a) Upon the occurrence of a Change of Control, each Holder of Notes will have the right to require the Company to make an offer (a “Change of Control Offer” ) to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Special Interest, if any, on the Notes repurchased, to the date of purchase (the “Change of Control Payment” ).

Within 30 days following any Change of Control, the Company will mail a notice to each Holder describing the transaction or transactions that constitute the Change of Control and stating:

(1) that the Change of Control Offer is being made pursuant to this Section 4.7 and that all Notes tendered will be accepted for payment;

(2) the purchase price and the purchase date, which shall be no earlier than 30 days and no later than 60 days from the date of such Change of Control (the “Change of Control Payment Date” );

(3) that any Note not tendered will continue to accrue interest;

(4) that, unless the Company 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 after 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 the Notes, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Paying Agent 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 will be entitled to withdraw their election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Change of

 

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Control Payment Date, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing his election to have the Notes purchased; and

(7) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered, which unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of $1,000 in excess thereof.

The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the 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 4.7, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 4.7 by virtue of such compliance.

(b) On the Change of Control Payment Date, the Company will:

(1) accept for payment all Notes or portions of Notes properly tendered and not validly withdrawn pursuant to the Change of Control Offer;

(2) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and

(3) 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 of Notes being purchased by the Company.

The Paying Agent will promptly mail to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note issued for surrendered but unpurchased Notes will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. The Company will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date.

(c) Notwithstanding anything to the contrary in this Section 4.7, the Company will not be required to make a Change of Control Offer upon 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 4.7 and purchases all Notes properly tendered and not validly withdrawn under the Change of Control Offer.

(d) Notwithstanding anything to contrary in this Section 4.7, 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 the making of the Change of Control Offer.

(e) The Company may, with respect to the Notes, omit in any particular instance to comply with any term, provision or condition set forth in this Section 4.7, if before the time for such compliance the Holders of at least a majority in principal amount of the outstanding Notes shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or effect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall

 

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remain in full force and effect. No supplemental indenture shall, without the consent of the Holder of each Outstanding Note affected thereby, modify any of the provisions of this Section 4.7(e), except to increase the percentage required to waive compliance by the Company of the covenants referenced here, provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section 4.7(e).

ARTICLE FIVE

REMEDIES

Section 5.1. Events of Default

Event of Default ”, wherever used herein with respect to the Notes, 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 the payment of any interest (including any Special Interest) upon any Note when it becomes due and payable, and continuance of such default for a period of 30 days; or

(2) default in the payment of the principal of (or premium, if any) on any Note at its Maturity; or

(3) Reserved; or

(4) default in the performance, or breach, of any covenant or warranty of the Company or any Guarantor in the Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in the Indenture solely for the benefit of series of Securities other than the Notes), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Notes a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or

(5) a default under any bond, debenture, note or other evidence of Debt by the Company or any Guarantor (including a default with respect to Securities of any series other than the Notes) having an aggregate principal amount outstanding in excess of the greater of (i) $25,000,000 and (ii) 5% of Consolidated Net Tangible Assets, whether such Debt now exists or shall hereafter be created, which default shall constitute a failure to pay principal of such Debt when due and payable (other than as a result of acceleration), after expiration of any applicable grace period with respect thereto, or shall have resulted in such Debt becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, without such Debt having been discharged, such failure to pay at maturity having been cured or paid or such default or acceleration having been rescinded or annulled , within a period of 10 days after there shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 10% in principal amount of the Outstanding Notes a written notice specifying such default and requiring the Company or such Guarantor to cause such Debt to be discharged or cause such acceleration to be rescinded or

 

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annulled, as the case may be, and stating that such notice is a “Notice of Default” hereunder; provided, however, that, subject to the provisions of Sections 601 and 602 of the Existing Indenture, the Trustee shall not be deemed to have knowledge of such default unless either (A) a Responsible Officer of the Trustee shall have actual knowledge of such default or (B) the Trustee shall have received written notice thereof from the Company, from any Holder, from the holder of any such Debt or from the trustee under any such mortgage, indenture or other instrument; or

(6) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company, any Guarantor that is a Significant Subsidiary or any group of Guarantors that, taken together, would constitute a Significant Subsidiary in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company, any Guarantor that is a Significant Subsidiary or any group of Guarantors that, taken together, would constitute a Significant Subsidiary a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company, any Guarantor that is a Significant Subsidiary or any group of Guarantors that, taken together, would constitute a Significant Subsidiary under any applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company, any Guarantor that is a Significant Subsidiary or any group of Guarantors that, taken together, would constitute a Significant Subsidiary or of any substantial part of their respective properties, or ordering the winding up or liquidation of their respective affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days; or

(7) the commencement by the Company, any Guarantor that is a Significant Subsidiary or any group of Guarantors that, taken together, would constitute a Significant Subsidiary of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of it in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company, any Guarantor that is a Significant Subsidiary or any group of Guarantors that, taken together, would constitute a Significant Subsidiary or of any substantial part of their respective properties, or the making by the Company, any Guarantor that is a Significant Subsidiary or any group of Guarantors that, taken together, would constitute a Significant Subsidiary of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate, limited liability company or partnership action by the Company, any Guarantor that is a Significant Subsidiary or any group of Guarantors that, taken together, would constitute a Significant Subsidiary in furtherance of any such action; or

(8) failure by the Company to comply with the provisions of Sections 4.6 and 4.7 of this Tenth Supplemental Indenture and continuance of such failure for a period of 30 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Notes a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default”; or

 

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(9) with respect to any Collateral having a fair market value in excess of $25,000,000, (a) the security interest under the Pledge Agreement, at any time, ceases to be in full force and effect for any reason other than in accordance with the terms of the Indenture and the Pledge Agreement and any other Stock Lien Security Document; (b) any security interest created under the Pledge Agreement, such other Stock Lien Security Document relating to the Notes or the Indenture is declared invalid or unenforceable by a court of competent jurisdiction; or (c) the Company or any Subsidiary asserts, in any pleading in any court of competent jurisdiction, that any security interest created under the Pledge Agreement, such other Stock Lien Security Document relating to the Notes or the Indenture is invalid or unenforceable; or

(10) except as permitted by the Indenture or the Note Guarantees, the Note Guarantee of any Guarantor that is a Significant Subsidiary or any group of Guarantors that, taken together, would constitute a Significant Subsidiary shall for any reason cease to be, or shall for any reason be asserted in writing by the Company or any Guarantor not to be, in full force and effect and enforceable in accordance with its terms.

ARTICLE SIX

DEFEASANCE AND COVENANT DEFEASANCE

Section 6.1. Defeasance and Discharge

Upon the Company’s exercise of its option (if any) to have this Section 6.1 applied to the Notes, the Company and each of the Guarantors shall be deemed to have been discharged from their Obligations with respect to the Notes and the Note Guarantees as provided in this Section on and after the date the conditions set forth in Section 6.3 are satisfied (hereinafter called “ Defeasance ”). For this purpose, such Defeasance means that the Company and the Guarantors shall be deemed to have paid and discharged the entire Debt represented by the Notes (including the Note Guarantees) and to have satisfied all their other Obligations under the Notes, the Note Guarantees and the Indenture insofar as the Notes and the Note Guarantees are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments provided to it acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (1) the rights of Holders of the Notes to receive, solely from the trust fund described in Section 6.3 and as more fully set forth in such Section, payments in respect of the principal of and any premium and interest and Special Interest, if any, on the Notes when payments are due, (2) the Company’s Obligations with respect to the Notes under Sections 304, 305, 306, 1002 and 1003 of the Existing Indenture and Section 2.5 of this Tenth Supplemental Indenture, (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (4) this Article. Subject to compliance with this Article, the Company may exercise its option (if any) to have this Section applied to any Notes notwithstanding the prior exercise of its option (if any) to have Section 6.2 applied to such Notes.

Section 6.2. Covenant Defeasance

Upon the Company’s exercise of its option (if any) to have this Section applied to the Notes, (1) the Company shall be released from its Obligations under Sections 1006 through 1007 of the Existing Indenture, inclusive, and any covenants provided pursuant to Section 301(18), 901(2) or 901(7) of the Existing Indenture for the benefit of the Holders of the Notes and (2) the occurrence of any event specified in Sections 5.1(4) (with respect to any of Sections 1006 through 1007 of the Existing Indenture, inclusive, and any such covenants provided pursuant to Sections 4.1 through 4.7 of this Tenth Supplemental Indenture or Section 301(18), 901(2) or 901(7) of the Existing Indenture) and 5.1(5) and

 

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5.1(8) shall be deemed not to be or result in an Event of Default, in each case with respect to the Notes and Note Guarantees as provided in this Section 6.2 on and after the date the conditions set forth in Section 6.3 are satisfied (hereinafter called “ Covenant Defeasance ”). For this purpose, such Covenant Defeasance means that, with respect to the Notes and Note Guarantees, the Company and the Guarantors may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section (to the extent so specified in the case of Section 5.1(4)), whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision in the Indenture or in any other document, but the remainder of the Indenture and the Notes and Notes Guarantees shall be unaffected thereby.

Section 6.3. Conditions to Legal or Covenant Defeasance

The following shall be the conditions to the application of Section 6.1 or Section 6.2 to the Notes:

(1) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee which satisfies the requirements contemplated by Section 609 of the Existing Indenture and agrees to comply with the provisions of this Article applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefits of the Holders of the Notes, (A) money (in U.S. dollars which shall not be invested) in an amount, or (B) U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination thereof, in each case sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or any such other qualifying trustee) to pay and discharge, the principal of and any premium and interest and Special Interest, if any, on such Notes on the Maturity Date, in accordance with the terms of the Indenture and the Notes. As used herein, “U.S. Government Obligation” means (x) any security which is (i) a direct obligation of the United States of America for the payment of which the full faith and credit of the United States of America is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case (i) or (ii), is not callable or redeemable at the option of the issuer thereof, and (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any U.S. Government Obligation which is specified in Clause (x) above and held by such bank for the account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any U.S. Government Obligation which is so specified and held, 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 depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt.

(2) In the event of an election to have Section 6.2 apply to the Notes, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Company has received from, or there has been published by, the Internal Revenue Service a ruling or (B) since the date of this instrument, there has been a change in the applicable Federal income tax law, in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders of the Notes will not recognize gain or loss for Federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to the Notes and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur.

 

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(3) In the event of an election to have this Section 6.3 apply to the Notes, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Notes will not recognize gain or loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to the Notes and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur.

(4) The Company shall have delivered to the Trustee an Officers’ Certificate to the effect that the Notes, if then listed on any securities exchange, will not be delisted as a result of such deposit.

(5) No event which is, or after notice or lapse of time or both would become, an Event of Default with respect to the Notes shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in Sections 5.1(6) and (7), at any time on or prior to the 90 th day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90 th day).

(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities are in default within the meaning of such Act).

(7) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company or any Guarantor is a party or by which it is bound.

(8) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act unless such trust shall be registered under such Act or exempt from registration thereunder.

(9) The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.

ARTICLE SEVEN

AMENDMENT, SUPPLEMENT AND WAIVER

Without the consent of Holders of at least 75% in aggregate principal amount of the Notes then outstanding, an amendment, supplement or waiver may not modify the Pledge Agreement, any other Stock Lien Security Document relating to the Notes or any of the provisions of the Indenture dealing with the pledge or the application of trust moneys, or otherwise release any Collateral, in any manner materially adverse to the Holders other than in accordance with the Indenture, the Pledge Agreement or the applicable Stock Lien Security Document.

 

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ARTICLE EIGHT

COLLATERAL AND SECURITY

Section 8.1. Equal and Ratable Sharing of Collateral by Holders of First-Priority Stock Secured Debt

(a) Notwithstanding (i) anything to the contrary contained in the Stock Lien Security Documents; (ii) the time of incurrence of any Series of First-Priority Stock Secured Debt; (iii) the order or method of attachment or perfection of any Liens securing any Series of First-Priority Stock Secured Debt; (iv) the time or order of filing or recording of financing statements or other documents filed or recorded to perfect any Lien upon any Collateral; (v) the time of taking possession or control over any Collateral; (vi) that any First-Priority Stock Lien may not have been perfected or may be or have become subordinated, by equitable subordination or otherwise, to any other Lien; or (vii) the rules for determining priority under any law governing relative priorities of Liens:

(1) all First-Priority Stock Liens granted at any time by the Company or any other Pledgor shall secure, equally and ratably, all present and future First-Priority Stock Secured Obligations; and

(2) all Proceeds of all First-Priority Stock Liens granted at any time by the Company or any other Pledgor shall be allocated and distributed equally and ratably on account of the First-Priority Stock Secured Debt and other First-Priority Stock Secured Obligations.

The foregoing provision is intended for the benefit of, and shall be enforceable as a third party beneficiary by, each present and future holder of First-Priority Stock Secured Obligations, each present and future First-Priority Stock Lien Representative and the Collateral Trustee as holder of First-Priority Stock Liens. The First-Priority Stock Lien Representative of each future Series of First-Priority Stock Secured Debt shall be required to deliver a Collateral Trust Joinder to the Collateral Trustee at the time of incurrence of such Series of First-Priority Stock Secured Debt, and the Company shall promptly provide the Trustee with a copy of each such Collateral Trust Joinder; provided, however , that the failure to so deliver a copy of such Collateral Trust Joinder to the Trustee shall not affect the status of such future Debt as First-Priority Stock Secured Debt if the other requirements contained in the Collateral Trust Agreement in connection with the incurrence of additional Secured Debt are complied with.

(b) As provided in the Collateral Trust Agreement, the Liens securing the Junior Stock Secured Obligations, if any, are subject and subordinate to the Liens securing the First-Priority Stock Secured Obligations.

(c) The Notes are, and any other Stock Secured Debt permitted to be incurred after the date of this Tenth Supplemental Indenture will be, secured by First-Priority Stock Liens on the Collateral, which consists of the Capital Stock of each of the Company’s Domestic Hospital Subsidiaries. To the extent that the Company or any of its Subsidiaries incurs any Debt (other than Permitted Credit Agreement Debt) that is secured by a first priority or junior Lien on any property or assets of the Company or its Subsidiaries other than the Collateral, the Company will cause the Notes to be secured equally and ratably with, or prior to, such Debt and such Liens will be subject to the Collateral Trust Agreement; provided that the Other Secured Debt is not subject to the equal and ratable security requirement in this sentence.

Section 8.2. Stock Lien Security Documents

The due and punctual payment of the principal of and interest and Special Interest, if any, on the Notes when and as the same shall be due and payable, whether on an Interest Payment Date, at Maturity, by acceleration, repurchase, redemption or otherwise, and interest on the overdue principal of and interest and Special Interest (to the extent permitted by law), if any, on the Notes and performance of all other obligations of the Company and the Guarantors to the Holders of Notes or the Trustee under the Indenture

 

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and the Notes, according to the terms hereunder or thereunder, are secured as provided in the Stock Lien Security Documents which the Company and the Pledgors have entered into in connection with the execution of this Tenth Supplemental Indenture. Each Holder of Notes, by its acceptance thereof, consents and agrees to the terms of the Stock Lien Security Documents (including, without limitation, the provisions providing for foreclosure and release of Collateral) as the same may be in effect or may be amended from time to time in accordance with its terms and authorizes and directs the Collateral Trustee to enter into the Stock Lien Security Documents and to perform its obligations and exercise its rights thereunder in accordance therewith. The Company will deliver to the Trustee copies of all documents delivered to the Collateral Trustee pursuant to the Stock Lien Security Documents, and will do or cause to be done all such acts and things as may be necessary or proper, or as may be required by the provisions of the Stock Lien Security Documents, to assure and confirm to the Trustee and the Collateral Trustee the security interest in the Collateral contemplated hereby, by the Stock Lien Security Documents or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of the Indenture and of the Notes secured hereby, according to the intent and purposes herein expressed. The Company will take, and will cause its Subsidiaries to take any and all actions reasonably required under applicable law to cause the Stock Lien Security Documents to create and maintain, as security for the Obligations of the Company hereunder, a valid and enforceable perfected first priority Lien in and on all the Collateral, in favor of the Collateral Trustee for the benefit of the Holders of Notes, superior to and prior to the rights of all third Persons and subject to no other Liens (other than Permitted Prior Liens).

Each Holder of the Notes, by acceptance of the Notes, hereby authorizes the Trustee and the Collateral Trustee, as applicable, on behalf of and for the benefit of the Holders, to be the agent for and representative of the Holders with respect to the Note Guarantees, the Collateral and the Stock Lien Security Documents.

Anything contained in any of the Note Documents to the contrary notwithstanding, each Holder hereby agrees that no Holder or the Trustee shall have any right individually to realize upon any of the Collateral, it being understood and agreed that all powers, rights and remedies of the Trustee hereunder may be exercised solely by the Trustee in accordance with the terms hereof and all powers, rights and remedies in respect of the Collateral under the Stock Lien Security Documents may be exercised solely by the Collateral Trustee and its agents.

Section 8.3. Release of Security Interests

(a) In accordance with the provisions of the Collateral Trust Agreement or as provided hereby, the Collateral Trustee’s Liens upon the Collateral will be released:

(1) in whole, upon (A) payment in full and discharge of all outstanding Stock Secured Debt and all other Stock Secured Obligations that are outstanding, due and payable at the time all of the Stock Secured Debt is paid in full and discharged and (B) termination or expiration of all commitments to extend credit under all Stock Secured Debt Documents and the cancellation or termination or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the applicable Stock Secured Debt Documents) of all outstanding letters of credit, if any, issued pursuant to any Stock Secured Debt Documents;

(2) as to any Collateral that is sold, transferred or otherwise disposed of by the Company or any other Pledgor (including by way of merger or consolidation) to a Person that is not (either before or after such sale, transfer or disposition) the Company or a Guarantor in a transaction or other circumstance that does not violate Section 4.6 hereof and is not prohibited by any of the other Stock Secured Debt Documents, at the time of such sale, transfer or other disposition or to the extent of the interest sold, transferred or otherwise disposed of; provided , that the Collateral Trustee’s Liens upon the Collateral will not be released if the sale or disposition is subject to Section 801 of the Existing Indenture or Section 9.4 hereof;

 

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(3) as to any Collateral constituting pledged Capital Stock of a Subsidiary of the Company, upon liquidation and dissolution of that Subsidiary in a transaction that is not prohibited by any of the Stock Secured Debt Documents;

(4) as to any Collateral owned by a Guarantor, upon the release of that Guarantor from its Guarantee in accordance with the terms of the Stock Secured Debt Documents;

(5) as to a release of any or all of the Collateral, if (A) consent to release of that Collateral has been given by the requisite percentage or number of holders of each Series of Stock Secured Debt at the time outstanding as provided for in the applicable Stock Secured Debt Documents and (B) the Company has delivered an Officers’ Certificate to the Collateral Trustee certifying that any such necessary consents have been obtained; and

(6) as otherwise permitted by the Indenture and each other Stock Secured Debt Document.

(b) With respect to the Notes, the Collateral Trustee’s First-Priority Stock Lien upon the Collateral will no longer secure the Notes outstanding under the Indenture or any other Obligations in respect of such Notes under the Indenture, and the right of the Holders of Notes and such Obligations to the benefits and Proceeds of the Collateral Trustee’s First-Priority Stock Lien on the Collateral will terminate and be discharged:

(1) upon satisfaction and discharge of the Indenture as set forth under Article Four of the Existing Indenture;

(2) upon a Defeasance or Covenant Defeasance of the Notes as set forth under Article Six hereof;

(3) upon payment in full and discharge of all Notes outstanding under the Indenture and all Obligations in respect of such Notes that are outstanding, due and payable under the Indenture at the time the Notes are paid in full and discharged; or

(4) in whole or in part, with the consent of the Holders of the requisite percentage of the Notes then outstanding in accordance with Article Nine of the Existing Indenture, as supplemented by Article Seven of this Tenth Supplemental Indenture.

In addition the Company shall deliver an Officers’ Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to the release of such First-Priority Stock Liens have been satisfied.

Section 8.4. Additional First-Priority Stock Secured Debt

Subject to the provisions of the Indenture and the other Stock Lien Security Documents, the Company may incur additional First-Priority Stock Secured Debt by issuing Additional Notes under the Indenture or issuing or increasing any other Series of First-Priority Stock Secured Debt. All additional First-Priority Stock Secured Debt will be pari passu with the Notes and will be secured by the Collateral equally and ratably with the Notes for as long as the Notes and the Note Guarantees are secured by the Collateral. The additional First-Priority Stock Secured Debt will only be permitted to be secured by the Collateral if such Debt and the related Liens are permitted to be incurred under the Indenture, including Section 4.1 hereof.

 

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The Collateral Trust Agreement sets forth the procedures pursuant to which an additional series of Debt can become an additional Series of First-Priority Stock Secured Debt that is entitled to be secured equally and ratably with the Notes by the Liens on the Collateral granted to the Collateral Trustee. The Indenture and all future First-Priority Stock Lien Documents will be required to provide that, notwithstanding (i) anything to the contrary contained in the Stock Lien Security Documents; (ii) the time of incurrence of any Series of First-Priority Stock Secured Debt; (iii) the order or method of attachment or perfection of any Liens securing any Series of First-Priority Stock Secured Debt; (iv) the time or order of filing or recording of financing statements or other documents filed or recorded to perfect any Lien upon any Collateral; (v) the time of taking possession or control over any Collateral; (vi) that any First-Priority Stock Lien may not have been perfected or may be or have become subordinated, by equitable subordination or otherwise, to any other Lien; or (vii) the rules for determining priority under any law governing relative priorities of Liens:

(1) all First-Priority Stock Liens granted at any time by the Company or any other Pledgor secure, equally and ratably, all present and future First-Priority Stock Secured Obligations; and

(2) all Proceeds of all First-Priority Stock Liens granted at any time by the Company or any other Pledgor will be allocated and distributed equally and ratably on account of the First-Priority Stock Secured Debt and other First-Priority Stock Secured Obligations.

The First-Priority Stock Lien Representative of each future Series of First-Priority Stock Secured Debt shall be required to deliver a Collateral Trust Joinder to the Collateral Trustee at the time of incurrence of such Series of First-Priority Stock Secured Debt, and the Company shall promptly provide the Trustee with a copy of each such Collateral Trust Joinder; provided, however , that the failure to so deliver a copy of such Collateral Trust Joinder to the Trustee shall not affect the status of such future Debt as First-Priority Stock Secured Debt if the other requirements contained in the Collateral Trust Agreement in connection with the incurrence of additional Secured Debt are complied with.

The Company may also incur new or additional Junior Stock Secured Debt in accordance with the provisions of the Indenture and the Collateral Trust Agreement.

Section 8.5. Compliance with Trust Indenture Act

The Company shall comply with the provisions of TIA §314. The Company shall deliver to the Trustee the Opinion of Counsel required in accordance with TIA § 314(b) by no later than March 3 of each year commencing March 3, 2010.

(a) To the extent applicable, the Company shall cause TIA §313(b), relating to reports, and TIA §314(d), relating to the release of property or securities or relating to the substitution therefor of any property or securities to be subjected to the Lien of the Stock Lien Security Documents, to be complied with. Any certificate or opinion required by TIA §314(d) may be made by an Officer of the Company except in cases where TIA §314(d) requires that such certificate or opinion be made by an independent Person, which Person will be an independent engineer, appraiser or other expert selected or reasonably satisfactory to the Trustee.

(b) Notwithstanding anything to the contrary in Section 8.5(a), the Company shall not be required to comply with all or any portion of TIA §314(d) if it determines, in good faith based on advice of counsel, that under the terms of TIA §314(d) and/or any interpretation or guidance as to the meaning thereof of the Commission and its staff, including “no action” letters or exemptive orders, all or any portion of TIA §314(d) is inapplicable to one or a series of released Collateral.

 

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Section 8.6. Collateral Trustee

(a) The Company has appointed The Bank of New York Mellon Trust Company, N.A. to serve as the Collateral Trustee for the benefit of, among others, the Holders of the Notes and the Holders of future Stock Secured Obligations.

(b) The Collateral Trustee (directly or through co-trustees or agents) will hold, and will be entitled to enforce, all Liens on the Collateral created by the Stock Lien Security Documents.

(c) Except as provided in the Stock Lien Security Documents, Collateral Trust Agreement or as directed by an Act of Required Stock Secured Debtholders, the Collateral Trustee will not be obligated:

(1) to act upon directions purported to be delivered to it by any Person in respect of the Collateral;

(2) to foreclose upon or otherwise enforce any Lien on the Collateral; or

(3) to take any other action whatsoever with regard to any or all of the Stock Lien Security Documents, the Liens created thereby or the Collateral.

Section 8.7. Further Assurances

(a) The Company and each of the other Pledgors will do or cause to be done all acts and things that may be required to assure and confirm that the Collateral Trustee holds, for the benefit of the holders of Stock Secured Obligations, duly created and enforceable and perfected Liens upon the Collateral (including any property or assets that are acquired or otherwise become Collateral after the date hereof), in each case as contemplated by, and with the Lien priority required under, the Stock Secured Debt Documents.

(b) The Company and each of the Pledgors shall promptly execute, acknowledge and deliver such security documents, instruments, certificates, notices and other documents, and take such other actions as may be reasonably required to create, perfect, protect, assure or enforce the Liens and benefits intended to be conferred, in each case as contemplated by the Stock Secured Debt Documents for the benefit of the holders of Stock Secured Obligations.

ARTICLE NINE

NOTE GUARANTEES

Section 9.1. Guarantee

(a) Subject to this Article Nine, each of the Guarantors hereby, jointly and severally, 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 the Indenture, the Notes or the Obligations of the Company hereunder or thereunder, that:

(1) the principal of, premium and Special Interest, if any, and interest 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 Company 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

 

48


(2) 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 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 will be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.

(b) The Guarantors hereby agree that their Obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability of the Notes or the 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 Company, 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 Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Note Guarantee will not be discharged except by complete performance of the obligations contained in the Notes and the Indenture.

(c) If any Holder, the Trustee or the Collateral Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Guarantors, any amount paid by either to the Trustee, the Collateral Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.

(d) Each Guarantor agrees that it will 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 Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the Maturity of the Obligations guaranteed hereby may be accelerated as provided in Article Five of the Existing Indenture (as amended hereby) for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such Obligations as provided in Article Five of the Existing Indenture (as amended hereby), such Obligations (whether or not due and payable) will forthwith become due and payable by the Guarantors for the purpose of this Note Guarantee. The Guarantors will 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 the Note Guarantee.

Section 9.2. Limitation on Guarantor Liability

By its execution of this Tenth Supplemental Indenture, each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such 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 Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the Obligations of such Guarantor will be limited to the maximum amount that will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such 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 Guarantor in respect of the Obligations of such other Guarantor under this Article Nine, result in the Obligations of such Guarantor under its Note Guarantee not constituting a fraudulent transfer or conveyance.

 

49


Section 9.3. Execution and Delivery of Note Guarantee

To evidence its Note Guarantee set forth in Section 9.1 hereof, each Guarantor hereby agrees that a notation of such Note Guarantee substantially in the form attached as Exhibit E hereto will be endorsed by an Officer of such Guarantor on each Note authenticated and delivered by the Trustee and that this Tenth Supplemental Indenture will be executed on behalf of such Guarantor by one of its Officers.

Each Guarantor hereby agrees that its Note Guarantee set forth in Section 9.1 hereof will remain in full force and effect notwithstanding any failure to endorse on each Note a notation of such Note Guarantee.

If an Officer whose signature is on this Tenth Supplemental Indenture or on the Note Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a Note Guarantee is endorsed, the Note Guarantee will be valid nevertheless.

The delivery of any Note by the Trustee, after the authentication thereof hereunder, will constitute due delivery of the Note Guarantee set forth in this Tenth Supplemental Indenture on behalf of the Guarantors.

Section 9.4. Guarantors May Consolidate, Etc., Only on Certain Terms

Except as otherwise provided in Section 9.5 hereof, no Guarantor shall, and the Company will not permit any Guarantor to, consolidate with or merge with or into any other Person or convey, transfer or lease all or substantially all of its properties and assets to any Person, and no Guarantor shall, and the Company will not permit any Guarantor to, permit any Person to consolidate with or merge into such Guarantor or convey, transfer or lease its properties and assets substantially as an entirety to such Guarantor, unless:

(1) subject to Section 9.5 hereof, either such Guarantor shall be the surviving corporation of such consolidation or merger or the resultant or successor corporation shall be a corporation organized and validly existing under the laws of the United States of America, any State thereof or the District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, all of the Obligations of such Guarantor under the Indenture and such Guarantor’s Guarantee; and

(2) immediately 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 happened and be continuing.

The Company shall deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.

In case of any such consolidation, merger, conveyance, transfer or lease and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the Note Guarantee endorsed upon the Notes and the due and punctual performance of all of the covenants and conditions of the Indenture to be performed by the Guarantor, such successor Person will succeed to and be substituted for the Guarantor with the same

 

50


effect as if it had been named herein as a Guarantor. Such successor Person thereupon may cause to be signed any or all of the Note Guarantees to be endorsed upon all of the Notes issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee. All the Note Guarantees so issued will in all respects have the same legal rank and benefit under the Indenture as the Note Guarantees theretofore and thereafter issued in accordance with the terms of the Indenture as though all of such Note Guarantees had been issued at the date of the execution hereof.

Section 9.5. Releases

(a) Upon the full and final payment and performance of all Obligations under the Indenture and the Notes, each Guarantor will be released and relieved of any Obligations under its Note Guarantee.

(b) In the event of any sale or other disposition of all of the Capital Stock of any Guarantor (including by way of merger, consolidation or otherwise) to a Person that is not (either before or after giving effect to such transaction) the Company or a Subsidiary of the Company in a transaction that is not prohibited by the Indenture, then such Guarantor will be released and relieved of any obligations under its Note Guarantee; provided that the Net Available Cash from such sale or other disposition are applied in accordance with the applicable provisions of the Indenture, including without limitation Section 4.6 hereof. Upon delivery by the Company to the Trustee of an Officers’ Certificate and an Opinion of Counsel to the effect that such sale or other disposition was made by the Company in accordance with the provisions of the Indenture, including without limitation Section 4.6 hereof, the Trustee will execute any documents reasonably required and provided to it in order to evidence the release of any Guarantor from its obligations under its Note Guarantee.

(c) Upon liquidation and dissolution of any Guarantor in a transaction that is not prohibited by the Indenture, such Guarantor will be released and relieved of any obligations under its Note Guarantee.

(d) Upon Defeasance of the Notes in accordance with Article Six hereof or satisfaction and discharge of the Indenture in accordance with Article Four of the Existing Indenture, each Guarantor will be released and relieved of any obligations under its Note Guarantee.

Any Guarantor not released from its obligations under its Note Guarantee as provided in this Section 9.5 will remain liable for the full amount of principal of and interest and premium and Special Interest, if any, on the Notes and for the other obligations of any Guarantor under the Indenture as provided in this Article Nine.

ARTICLE TEN

MISCELLANEOUS

Section 10.1. Conditions Precedent

The effectiveness of this Tenth Supplemental Indenture is conditioned upon the receipt by the Trustee of the items specified in Section 903 of the Existing Indenture.

Section 10.2. Relationship to Existing Indenture

The Tenth Supplemental Indenture is a supplemental indenture within the meaning of the Existing Indenture. The Existing Indenture, as supplemented and amended by this Tenth Supplemental Indenture is in all respects ratified, confirmed and approved and, with respect to the Notes, the Existing Indenture, as supplemented and amended by this Tenth Supplemental Indenture, shall be read, taken and construed as one and the same instrument.

 

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Section 10.3. Modification of the Existing Indenture

Except as expressly modified by this Tenth Supplemental Indenture, the provisions of the Existing Indenture shall govern the terms and conditions of the Notes.

Section 10.4. Notices

Any notice or communication by the Company, any Guarantor or the Trustee to the others is duly given if it writing and delivered in Person or by first class mail (registered or certified, return receipt requested), facsimile transmission or overnight air courier guaranteeing next day delivery, to the others’ address:

If to the Company and/or any Guarantor:

Tenet Healthcare Corporation

13737 Noel Road

Dallas, TX 75240

Facsimile No.: (469) 893-3582

Attention: General Counsel

With a copy to:

Latham & Watkins LLP

355 South Grand Avenue

Los Angeles, CA 90071

Facsimile No.: (213) 891-8763

Attention: Steven B. Stokdyk

If to the Trustee:

The Bank of New York Mellon Trust Company, N.A.

700 South Flower Street, Suite 500

Los Angeles, CA 90017

Facsimile No.: (213) 630-6298

Attention: Corporate Unit

The Company, any 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) will be deemed to have been duly given: at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by facsimile; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery.

The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, pdf, facsimile transmission or other similar unsecured electronic methods; provided, however , that (a) the party providing such written instructions, subsequent to such transmission of written instructions, shall provide the originally executed instructions or directions to the Trustee in a timely

 

52


manner, and (b) such originally executed instructions or directions shall be signed by an authorized representative of the party providing such instructions or directions. If the party elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The party providing electronic instructions agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.

Any notice or communication to a Holder will 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 will also be so mailed to any Person described in TIA § 313(c), to the extent required by the TIA. Failure to mail a notice or communication to a Holder or any defect in it will 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 Company mails a notice or communication to Holders, it will mail a copy to the Trustee and each Agent at the same time.

Section 10.5. Governing Law

This instrument shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflicts of laws principles thereof.

Section 10.6. Counterparts

This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.

Section 10.7. Waiver of Jury Trial

EACH OF THE COMPANY 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 INDENTURE, THE OLD NOTES, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 10.8. Force Majeure

In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its 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 and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

 

53


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.

[Signatures on following page]

 

54


Dated as of March 3, 2009

 

TENET HEALTHCARE CORPORATION
By:  

/s/    Biggs C. Porter

Name:   Biggs C. Porter
Title:   Chief Financial Officer
CGH HOSPITAL, LTD.
By CORAL GABLES HOSPITAL, INC., its General Partner

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer
FMC HOSPITAL, LTD.
By FMC ACQUISITION, INC., its General Partner

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer
HILTON HEAD HEALTH SYSTEM, L.P.
By TENET PHYSICIAN SERVICES— HILTON HEAD, INC., its General Partner

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer

 

55


NEW MEDICAL HORIZONS II, LTD.
By CYPRESS FAIRBANKS MEDICAL CENTER, INC., its General Partner

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer
NORTHSHORE REGIONAL MEDICAL CENTER, L.L.C.
By TENET LOUISIANA, INC., its Managing Member

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer

TENET FRISCO, LTD.

By TENET TEXAS, INC., its General Partner

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer
TENET HEALTHSYSTEM HAHNEMANN, L.L.C.

By TENET HEALTHSYSTEM

PHILADELPHIA, INC., its Managing Member

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer

 

56


TENET HEALTHSYSTEM ST. CHRISTOPHER’S HOSPITAL FOR CHILDREN, L.L.C.
By TENET HEALTHSYSTEM PHILADELPHIA, INC., its Managing Member

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer
TENET HOSPITALS LIMITED
By TENET TEXAS, INC., its General Partner

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer
TH HEALTHCARE, LTD.
By LIFEMARK HOSPITALS, INC., its General Partner

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer

 

57


AMERICAN MEDICAL (CENTRAL), INC.
AMI INFORMATION SYSTEMS GROUP, INC.
AMISUB (HEIGHTS), INC.
AMISUB (HILTON HEAD), INC.
AMISUB (SFH), INC.
AMISUB (TWELVE OAKS), INC.
AMISUB OF NORTH CAROLINA, INC.
AMISUB OF SOUTH CAROLINA, INC.
AMISUB OF TEXAS, INC.
BROOKWOOD HEALTH SERVICES, INC.
COASTAL CAROLINA MEDICAL CENTER, INC.
COMMUNITY HOSPITAL OF LOS GATOS, INC.
CORAL GABLES HOSPITAL, INC.
CYPRESS FAIRBANKS MEDICAL CENTER, INC.
DELRAY MEDICAL CENTER, INC.
DOCTORS HOSPITAL OF MANTECA, INC.
DOCTORS MEDICAL CENTER OF MODESTO, INC.
EAST COOPER COMMUNITY HOSPITAL, INC.
FMC ACQUISITION, INC.
FMC MEDICAL, INC.
FOUNTAIN VALLEY REGIONAL HOSPITAL AND MEDICAL CENTER
FRYE REGIONAL MEDICAL CENTER, INC.
JFK MEMORIAL HOSPITAL, INC.
LAKEWOOD REGIONAL MEDICAL CENTER, INC.
LIFEMARK HOSPITALS OF FLORIDA, INC.
LIFEMARK HOSPITALS, INC.
LOS ALAMITOS MEDICAL CENTER, INC.
MCF, INC.
NORTH FULTON MEDICAL CENTER, INC.
ORNDA HOSPITAL CORPORATION
PALM BEACH GARDENS COMMUNITY HOSPITAL, INC.
PLACENTIA-LINDA HOSPITAL, INC.
SAN RAMON REGIONAL MEDICAL CENTER, INC.
SIERRA VISTA HOSPITAL, INC.
TENET CALIFORNIA, INC.
TENET FLORIDA, INC.
TENET GOOD SAMARITAN, INC.
TENET HEALTHSYSTEM BARTLETT, INC.
TENET HEALTHSYSTEM CFMC, INC.
TENET HEALTHSYSTEM DESERT, INC.
TENET HEALTHSYSTEM DI, INC.
TENET HEALTHSYSTEM GB, INC.
TENET HEALTHSYSTEM HEALTHCORP
TENET HEALTHSYSTEM HOLDINGS, INC.
TENET HEALTHSYSTEM MEDICAL, INC.
TENET HEALTHSYSTEM NORRIS, INC.
TENET HEALTHSYSTEM NORTH SHORE, INC.
TENET HEALTHSYSTEM PHILADELPHIA, INC.
TENET HEALTHSYSTEM SGH, INC.

 

58


TENET HEALTHSYSTEM SL, INC.
TENET HEALTHSYSTEM SPALDING, INC.
TENET HIALEAH HEALTHSYSTEM, INC.
TENET HOSPITALS, INC.
TENET LOUISIANA, INC.
TENET MISSOURI, INC.
TENET PHYSICIAN SERVICES—HILTON HEAD, INC.
TENET SOUTH FULTON, INC.
TENET ST. MARY’S, INC.
TENET TEXAS, INC.
TENETSUB TEXAS, INC.
TWIN CITIES COMMUNITY HOSPITAL, INC.
USC UNIVERSITY HOSPITAL, INC.
WEST BOCA MEDICAL CENTER, INC.

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer

 

59


THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee
By:  

/s/    Melonee Young

Name:   Melonee Young
Title:   Vice President

 

60


[Face of Note]

 

[Insert Original Issue Discount Legend here, if applicable]

CUSIP/CINS                     

10.0% Senior Secured Notes due 2018

 

No.                     

   $                     

TENET HEALTHCARE CORPORATION

promises to pay to [              ] or registered assigns,

the principal sum of                                                               DOLLARS on May 1, 2018.

Interest Payment Dates: May 1 and November 1

Record Dates: April 15 and October 15

Dated:              , 200   

 

TENET HEALTHCARE CORPORATION
By:  

 

Name:  
Title:  

This is one of the Notes referred to

in the within-mentioned Indenture:

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee

By:  

 

  Authorized Signatory

 

 

 

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[Back of Note]

10.0% Senior Secured Notes due 2018

[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]

[Insert the Private Placement Legend, if applicable pursuant to the provisions of the Indenture]

Capitalized terms used herein have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.

(1) I NTEREST .

Tenet Healthcare Corporation, a corporation duly organized and existing under the laws of the State of Nevada (the “ Company ”), promises to pay interest on the principal amount of this Note at 10.0% per annum from              , 20      until Maturity and shall pay the Special Interest, if any, payable pursuant to Section 2 of the Registration Rights Agreement referred to below. The Company will pay interest and Special Interest, if any, semi-annually in arrears on May 1 and November 1 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 if there is no existing Event of Default in the payment of interest, and if this Note is authenticated between a record date referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment Date; provided further that the first Interest Payment Date shall be              , 20      . Interest will be computed on the basis of a 360-day year of twelve 30-day months.

(2) M ETHOD OF P AYMENT .

The Company will pay interest on the Notes and Special Interest, if any, to the Persons who are registered Holders of Notes at the close of business on the April 15 or October 15 next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date. The Notes will be payable as to principal, premium and Special Interest, if any, and interest at the office or agency of the Company maintained for such purpose within the City and State of New York, or, at the option of the Company, payment of interest and Special Interest, if any, may be made by check mailed to the Holders at their respective 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 and Special Interest, if any, on, all Global Notes and all other Notes the Holders of which will have provided wire transfer instructions to the Company or the Paying Agent. Such payment will 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. Until otherwise designated by the Company, the office or agency of the Company in New York will be the office of the Trustee maintained for such purpose.

(3) P AYING A GENT AND R EGISTRAR .

Initially, the corporate trust department of The Bank of New York Mellon Trust Company, N.A., the Trustee under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in any such capacity.

(4) I NDENTURE AND S ECURITY D OCUMENTS .

The Company issued the Notes under an Indenture, dated as of November 6, 2001, between the Company and The Bank of New York, as predecessor trustee to the Trustee, as supplemented by the Tenth Supplemental Indenture (the “Tenth Supplemental Indenture” ), dated as of March 3, 2009 (as so supplemented, the

 

A-2


Indenture ”), among the Company, the Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the TIA. The Notes are subject to all such terms, and Holders are referred to the 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 Indenture, the provisions of the Indenture shall govern and be controlling. The Notes are secured Obligations of the Company. The Notes are secured by a pledge of the Collateral pursuant to the Stock Lien Security Documents referred to in the Indenture. The Indenture does not limit the aggregate principal amount of Notes that may be issued thereunder.

(5) O PTIONAL R EDEMPTION .

(a) On or after May 1, 2014, the Company will have the option to redeem all or a part of the Notes upon not less than 30 nor more than 60 days’ notice, at the Redemption Prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest and Special Interest, if any, on the Notes redeemed to the applicable Redemption Date, if redeemed during the twelve-month period beginning on May 1 of the years indicated below:

 

Year

   Redemption
Price
 

2014

   105.000 %

2015

   103.333 %

2016

   101.667 %

2017 and thereafter

   100.000 %

Unless the Company defaults in the payment of the Redemption Price, interest will cease to accrue on the Notes or portions thereof called for redemption on the applicable Redemption Date.

(b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time or from time to time prior to May 1, 2012, the Company, at its option, may redeem up to 35% of the aggregate principal amount of Notes issued under the Indenture with the net cash proceeds of one or more Qualified Equity Offerings at a Redemption Price equal to 110.000% of the principal amount thereof, plus accrued and unpaid interest and Special Interest, if any, to the Redemption Date; provided that at least 65% in aggregate principal amount of the Notes issued under the Indenture remains outstanding immediately after the occurrence of such redemption and that such redemption occurs within 90 days of the date of the closing of such Qualified Equity Offering.

(c) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, the Company, at its option, may redeem the Notes, in whole or in part, at any time on or prior to May 1, 2014, at a Redemption Price equal to 100% of the principal amount of the Notes redeemed plus the Applicable Premium as of the Redemption Date, plus accrued and unpaid interest thereon to, but not including, the Redemption Date.

(6) M ANDATORY R EDEMPTION .

The Company is not be required to make mandatory redemption or sinking fund payments with respect to the Notes.

 

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(7) R EPURCHASE A T T HE O PTION O F H OLDER .

(a) Upon the occurrence of a Change of Control, each Holder of Notes will have the right to require the Company to make an offer (a “Change of Control Offer” ) to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in excess thereof) of that Holder’s Notes at a purchase price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest and Special Interest, if any, on the Notes repurchased, to the date of purchase (the “Change of Control Payment” ). Within 30 days following any Change of Control, the Company will mail a notice to each Holder setting forth the procedures governing the Change of Control Offer as required by the Indenture.

(b) In the event of an Asset Disposition that requires the purchase of Notes (and other First-Priority Stock Secured Debt), the Company will purchase Notes tendered pursuant to an offer (an “Asset Disposition Offer” ) by the Company for the Notes (and such other First-Priority Stock Secured Debt) at a purchase price of 100% of their principal amount (or, in the event such other First-Priority Stock Secured Debt was issued with significant original issue discount, 100% of the accreted value thereof), without premium, plus accrued but unpaid interest and Special Interest, if any (or, in respect of such other First-Priority Stock Secured Debt, such other price, not to exceed 100%, as may be provided for by the terms of such other First-Priority Stock Secured Debt), in accordance with the procedures (including prorating in the event of oversubscription) set forth in Section 3.3 of the Tenth Supplemental Indenture. If there remains a balance of Net Available Cash after purchasing all securities tendered, then such balance may be used in any manner not prohibited by the Indenture. If the aggregate purchase price of the securities tendered exceeds the Net Available Cash allotted to their purchase, the Company will select the securities to be purchased on a pro rata basis but in round denominations, which in the case of the Notes will be denominations of $2,000 principal amount or any greater integral multiple of $1,000 in excess thereof. Notwithstanding the foregoing, the Company shall not be required to make such an Asset Disposition Offer to purchase Notes (and other First-Priority Stock Secured Debt) if the Net Available Cash available therefor is less than $100.0 million (which lesser amount shall be carried forward for purposes of determining whether such an Asset Disposition Offer is required with respect to the Net Available Cash from any subsequent Asset Disposition). Upon completion of such an Asset Disposition Offer, Net Available Cash will be deemed to be reduced by the aggregate amount of such Asset Disposition Offer. Holders of Notes that are the subject of an offer to purchase will receive an Asset Disposition Offer from the Company prior to any related purchase date and may elect to have such Notes purchased by completing the form entitled “ Option of Holder to Elect Purchase ” attached to the Notes.

(8) N OTICE OF R EDEMPTION .

Notice of redemption will be mailed at least 30 days but not more than 60 days before the Redemption Date to each Holder whose Notes are to be redeemed at its registered address, except that redemption notices may be mailed more than 60 days prior to a Redemption Date if the notice is issued in connection with a defeasance of the Notes or a satisfaction or discharge of the Indenture. Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed.

(9) A HYDO P AYMENTS .

If the Notes would otherwise constitute “applicable high yield discount obligations” within the meaning of Section 163(i)(1) of the Internal Revenue Code of 1986, as amended, and if Section 163(e)(5) of the Internal Revenue Code of 1986, as amended, applies to the Notes, then at the end of each accrual period ending after the fifth anniversary of the issue date of such notes (the “ AHYDO Payment Date ”), the Company will be required to redeem for cash a portion of the principal of each such note equal to the amount necessary to avoid the application of Section 163(e)(5) of the Internal Revenue Code of 1986, as amended. No payment pursuant to any other provisions of the Indenture will alter the Company’s obligation to make any such payment with respect to any Notes that remain outstanding on the AHYDO Payment Date.

 

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(10) D ENOMINATIONS , T RANSFER , E XCHANGE .

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 Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Company may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer of any Note or portion of a Note selected for redemption, except for the unredeemed portion of any Note being redeemed in part. Also, the Company need not exchange or register the transfer of any Notes for a period of 15 days before a selection of Notes to be redeemed or during the period between a record date and the corresponding Interest Payment Date.

(11) P ERSONS D EEMED O WNERS .

The registered Holder of a Note may be treated as its owner for all purposes.

(12) A MENDMENT , S UPPLEMENT AND W AIVER .

Subject to certain exceptions, the Indenture or the Notes or the Note Guarantees may be amended or supplemented with the consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class, and any existing Event or Default or compliance with any provision of the Indenture or the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in aggregate principal amount of the then outstanding Notes including Additional Notes, if any, voting as a single class. Without the consent of any Holder of a Note, the Indenture or the Notes or the Note Guarantees may be amended or supplemented to cure any ambiguity, defect or inconsistency, to provide for uncertificated Notes in addition to or in place of certificated Notes, to provide for the assumption of the Company’s or a Guarantor’s obligations to Holders of the Notes and Note Guarantees in case of a merger or consolidation, to make any change that would provide any additional rights or benefits to the Holders of the Notes or that does not adversely affect the legal rights under the Indenture of any such Holder or to comply with the requirements of the Commission in order to effect or maintain the qualification of the Indenture under the TIA.

(13) E VENTS OF D EFAULT AND R EMEDIES .

Events of Default include: (i) default for 30 days in the payment when due of interest on, or Special Interest, if any, with respect to the Notes; (ii) default in the payment when due of the principal of, or premium, if any, on, the Notes when the same becomes due and payable at Maturity, (iii) failure by the Company or any of its Subsidiaries for 30 days after notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes including Additional Notes, if any, then outstanding to comply with Section 4.6 or 4.7 of the Tenth Supplemental Indenture; (iv) failure by the Company or any Guarantor for 90 days after notice to the Company by the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes including Additional Notes, if any, then outstanding to comply with the covenants or warranties in the Indenture; (v) default under certain other agreements relating to Debt of the Company or any Guarantor which default results in the acceleration of such Debt prior to its express maturity; (vi) certain events of bankruptcy or insolvency with respect to the Company or any Guarantor that is a Significant Subsidiary or any group of Guarantors that, taken together, would constitute a Significant Subsidiary; (viii) with respect to Collateral having a fair market value in excess of $25.0 million, the security interest created under the Pledge Agreement, any other Stock Lien Security Document or the Indenture is held in any judicial proceeding to be unenforceable or invalid or the security interest in the Pledge Agreement ceases for any reason to be in full force and effect for any reason other than in

 

A-5


accordance with the terms of the Indenture and the Pledge Agreement and any other Stock Lien Security Document or the Company or any Subsidiary asserts, in any pleading in a judicial proceeding, that any securing interest created under the Pledge Agreement, any other Stock Lien Security Document or the Indenture is invalid or unenforceable; and (ix) except as permitted by the Indenture or the Note Guarantees, any Note Guarantee of any Guarantor that is a Significant Subsidiary or any group of Guarantors that, taken together, would constitute a Significant Subsidiary ceases for any reason to be in full force and effect and enforceable or the Company or any Guarantor denies or disaffirms the Guarantor’s obligations under such Guarantor’s Note Guarantee. 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 all the 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 Indenture or the Notes except as provided in the 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 Event of Default (except an Event of Default relating to the payment of principal or interest or premium or Special Interest, if any) if it determines that withholding notice is in their interest. The Holders of 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, rescind an acceleration or waive any existing Event of Default and its consequences under the Indenture except a continuing Event of Default in the payment of interest or premium or Special Interest, if any, on, or the principal of, the Notes. The Company is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Company is required, upon becoming aware of any Event of Default, to deliver to the Trustee a statement specifying such Event of Default.

(14) T RUSTEE D EALINGS WITH C OMPANY .

The Trustee, in its individual or any other capacity, may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not the Trustee.

(15) N O R ECOURSE A GAINST O THERS .

A director, officer, employee, incorporator or stockholder of the Company or any of the Guarantors, as such, will not have any liability for any obligations of the Company or the Guarantors under the Notes, the Note Guarantees or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issuance of the Notes.

(16) A UTHENTICATION .

This Note will not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.

(17) A BBREVIATIONS .

Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

(18) A DDITIONAL R IGHTS OF H OLDERS OF R ESTRICTED G LOBAL N OTES AND R ESTRICTED D EFINITIVE N OTES .

In addition to the rights provided to Holders of Notes under the Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes will have all the rights set forth in the Exchange and Registration Rights Agreement dated as of March 3, 2009, among the Company, the Guarantors and the other parties named on the signature pages thereof

 

A-6


or, in the case of Additional Notes, Holders of Restricted Global Notes and Restricted Definitive Notes will have the rights set forth in one or more registration rights agreements, if any, among the Company, the Guarantors and the other parties thereto, relating to rights given by the Company and the Guarantors to the purchasers of any Additional Notes (collectively, the “ Registration Rights Agreement ”).

(19) CUSIP N UMBERS .

Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be printed on the Notes, and the Trustee may use CUSIP 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.

(20) GOVERNING LAW.

THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

The Company will furnish to any Holder upon written request and without charge a copy of the Indenture and/or the Registration Rights Agreement. Requests may be made to:

Tenet Healthcare Corporation

13737 Noel Road

Dallas, TX 75240

Attention: Investor Relations

 

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Assignment Form

To assign this Note, fill in the form below:

(I) or (we) assign and transfer this Note to:                                                                                                                                                                                    

                                                                                                                          (Insert assignee’s legal name)

                                                                                                                                                                                                                                                                       

(Insert assignee’s soc. sec. or tax I.D. no.)

                                                                                                                                                                                                                                                                       

                                                                                                                                                                                                                                                                       

                                                                                                                                                                                                                                                                       

                                                                                                                                                                                                                                                                       

(Print or type assignee’s name, address and zip code)

and irrevocably appoint                                                                                                                                                                                                                         

to transfer this Note on the books of the Company. 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-8


Option of Holder to Elect Purchase

If you want to elect to have this Note purchased by the Company pursuant to Section 4.6 or 4.7 of the Tenth Supplemental Indenture, check the appropriate box below:

 

¨   Section 4.6

                    ¨   Section 4.7

If you want to elect to have only part of the Note purchased by the Company pursuant to Section 4.6 or Section 4.7 of the Tenth 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-9


Schedule of Exchanges of Interests in the Global Note *

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:

 

Date of Exchange

  Amount of decrease in
Principal Amount

of
this Global Note
  Amount of increase in
Principal Amount
of
this Global Note
  Principal Amount
of this Global Note
following such
decrease

(or increase)
  Signature of authorized
officer of Trustee or
Custodian

 

 

* This schedule should be included only if the Note is issued in global form.

 

A-10


FORM OF CERTIFICATE OF TRANSFER

Tenet Healthcare Corporation

13737 Noel Road

Dallas, TX 75240

Attention: Investor Relations

The Bank of New York Mellon Trust Company, N.A.

700 South Flower Street, Suite 500

Los Angeles, CA 90017

Attention: Corporate Unit

Re: 10.0% Senior Secured Notes Due 2018

Reference is hereby made to the Indenture, dated as of November 6, 2001, between Tenet Healthcare Corporation, as issuer (the “ Company ”) and The Bank of New York Mellon Trust Company, N.A., as successor trustee to The Bank of New York, as supplemented by the Tenth Supplemental Indenture, dated as of March 3, 2009, among the Company, the Guarantors party thereto and the Trustee (as so supplemented, the “ Indenture ”). Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

                             , (the “ Transferor ”) owns and proposes to transfer the Note[s] or interest in such Note[s] specified in Annex A hereto, in the principal amount of $          in such Note[s] or interests (the “ Transfer ”), to                              (the “ Transferee ”), as further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:

[CHECK ALL THAT APPLY]

1.   ¨    Check if Transferee will take delivery of a beneficial interest in the 144A Global Note or a Restricted Definitive Note pursuant to Rule 144A . The Transfer is being effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended (the “ Securities Act ”), and, accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest or Definitive Note for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A, and such Transfer is in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.

2.   ¨    Check if Transferee will take delivery of a beneficial interest in the Regulation S Global Note or a Restricted Definitive Note pursuant to Regulation S . The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is not being made to a Person in the United States and (x) at the time the buy order was originated, the Transferee was outside the United States or such Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was outside the United States or (y) the transaction was executed in, on or through the facilities of a designated offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the transaction was prearranged with a buyer in the United States, (ii) no directed selling

 

B-1


efforts have been made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the Restricted Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the Private Placement Legend printed on the Regulation S Global Note and/or the Restricted Definitive Note and in the Indenture and the Securities Act.

3.   ¨    Check and complete if Transferee will take delivery of a beneficial interest in a Restricted Definitive Note pursuant to any provision of the Securities Act other than Rule 144A or Regulation S . The Transfer is being effected in compliance with the transfer restrictions applicable to beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any applicable blue sky securities laws of any state of the United States, and accordingly the Transferor hereby further certifies that (check one):

(a)   ¨   such Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act;

OR

(b)   ¨   such Transfer is being effected to the Company or a subsidiary thereof;

OR

(c)   ¨   such Transfer is being effected pursuant to an effective registration statement under the Securities Act and in compliance with the prospectus delivery requirements of the Securities Act;

OR

(d)   ¨   such Transfer is being effected pursuant to an exemption from the registration requirements of the Securities Act other than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby further certifies that it has not engaged in any general solicitation within the meaning of Regulation D under the Securities Act and the Transfer complies with the transfer restrictions applicable to beneficial interests in a Restricted Global Note or Restricted Definitive Notes and the requirements of the exemption claimed, which certification is supported by (1) a certificate executed by the Transferee in the form of Exhibit D to the Indenture and (2) if such Transfer is in respect of a principal amount of Notes at the time of transfer of less than $250,000, an Opinion of Counsel provided by the Transferor or the Transferee (a copy of which the Transferor has attached to this certification), to the effect that such Transfer is in compliance with the Securities Act. Upon consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Notes and in the Indenture and the Securities Act.

 

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4.   ¨    Check if Transferee will take delivery of a beneficial interest in an Unrestricted Global Note or of an Unrestricted Definitive Note .

(a)   ¨    Check if Transfer is pursuant to Rule 144 . (i) The Transfer is being effected pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.

(b)   ¨    Check if Transfer is Pursuant to Regulation S . (i) The Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.

(c)   ¨    Check if Transfer is Pursuant to Other Exemption . (i) The Transfer is being effected pursuant to and in compliance with an exemption from the registration requirements of the Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will not be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or Restricted Definitive Notes and in the Indenture.

This certificate and the statements contained herein are made for your benefit and the benefit of the Company.

 

 

[Insert Name of Transferor]

 

By:  

 

Name:  
Title:  

Dated:                     

 

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ANNEX A TO CERTIFICATE OF TRANSFER

 

  1. The Transferor owns and proposes to transfer the following:

[CHECK ONE OF (a) OR (b)]

 

  (a) ¨     a beneficial interest in the.

 

  (i) ¨     144A Global Note (CUSIP                      ), or

 

  (ii) ¨     Regulation S Global Note (CUSIP                      ), or

 

  (b) ¨   a Restricted Definitive Note.

 

  2. After the Transfer the Transferee will hold:

[CHECK ONE]

 

  (a) ¨     a beneficial interest in the:

 

  (i) ¨     144A Global Note (CUSIP                      ), or

 

  (ii) ¨     Regulation S Global Note (CUSIP                      ), or

 

  (iii) ¨     Unrestricted Global Note (CUSIP                      ); or

 

  (b) ¨     a Restricted Definitive Note; or

 

  (c) ¨     an Unrestricted Definitive Note,

  in accordance with the terms of the Indenture.

 

B-4


FORM OF CERTIFICATE OF EXCHANGE

Tenet Healthcare Corporation

13737 Noel Road

Dallas, TX 75240

Attention: Investor Relations

The Bank of New York Mellon Trust Company, N.A.

700 South Flower Street, Suite 500

Los Angeles, CA 90017

Attention: Corporate Unit

 

  Re: 10.0% Senior Secured Notes Due 2018

(CUSIP                      )

Reference is hereby made to the Indenture, dated as of November 6, 2001, between Tenet Healthcare Corporation, as issuer (the “ Company ”) and The Bank of New York Mellon Trust Company, N.A., as successor trustee to The Bank of New York, as supplemented by the Tenth Supplemental Indenture, dated as of March 3, 2009, among the Company, the Guarantors party thereto and the Trustee (as so supplemented, the “ Indenture ”). Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

                             , (the “ Owner ”) owns and proposes to exchange the Note[s] or interest in such Note[s] specified herein, in the principal amount of $          in such Note[s] or interests (the “ Exchange ”). In connection with the Exchange, the Owner hereby certifies that:

1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note

(a)   ¨    Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial interest in an Unrestricted Global Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in accordance with the Securities Act of 1933, as amended (the “ Securities Act ”), (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

(b)   ¨    Check if Exchange is from beneficial interest in a Restricted Global Note to Unrestricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

 

C-1


(c)   ¨    Check if Exchange is from Restricted Definitive Note to beneficial interest in an Unrestricted Global Note . In connection with the Owner’s Exchange of a Restricted Definitive Note for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

(d)   ¨    Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note . In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any applicable blue sky securities laws of any state of the United States.

2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes

(a)   ¨    Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act.

(b)   ¨    Check if Exchange is from Restricted Definitive Note to beneficial interest in a Restricted Global Note . In connection with the Exchange of the Owner’s Restricted Definitive Note for a beneficial interest in the [CHECK ONE] ¨ 144A Global Note, ¨ Regulation S Global Note, with an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.

This certificate and the statements contained herein are made for your benefit and the benefit of the Company.

 

 

[Insert Name of Transferor]

 

By:  

 

Name:  
Title:  

Dated:                     

 

C-2


FORM OF CERTIFICATE FROM

TRANSFEREE

Tenet Healthcare Corporation

13737 Noel Road

Dallas, TX 75240

Attention: Investor Relations

The Bank of New York Mellon Trust Company, N.A.

700 South Flower Street, Suite 500

Los Angeles, CA 90017

Attention: Corporate Unit

 

  Re: 10.0% Senior Secured Notes Due 2018

Reference is hereby made to the Indenture, dated as of November 6, 2001, between Tenet Healthcare Corporation, as issuer (the “ Company ”) and The Bank of New York Mellon Trust Company, N.A., as successor trustee to The Bank of New York, as supplemented by the Tenth Supplemental Indenture, dated as of March 3, 2009, among the Company, the Guarantors party thereto and the Trustee (as so supplemented, the “ Indenture ”). Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.

In connection with our proposed purchase of $          aggregate principal amount of:

(a)   ¨   a beneficial interest in a Global Note, or

(b)   ¨   a Definitive Note,

we confirm that:

1. We understand that any subsequent transfer of the Notes or any interest therein is subject to certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein except in compliance with, such restrictions and conditions and the Securities Act of 1933, as amended (the “ Securities Act ”).

2. We understand that the offer and sale of the Notes have not been registered under the Securities Act, and that the Notes and any interest therein may not be offered or sold except as permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for which we are acting as hereinafter stated, that if we should sell the Notes or any interest therein, we will do so only (A) to the Company; (B) under a registration statement that has been declared effective under the Securities Act; (C) to a Person that we reasonably believe is a “Qualified Institutional Buyer” (as defined in Rule 144A under the Securities Act) that is purchasing for its own account or for the account of another Qualified Institutional Buyer and to whom notice is given that the transfer is being made in reliance on Rule 144A, all in compliance with Rule 144A (if available); (D) in an offshore transaction complying with Rule 903 or Rule 904 of Regulation S under the Securities Act; or (E) under any other available exemption from the registration requirements of the Securities Act.

3. We understand that, prior to any transfer of the Notes pursuant to clause (E) of paragraph 2, we will be required to furnish to you and the Company such certifications, legal opinions and other information as you and the Company may reasonably require and may rely upon to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act. We further understand that the Notes purchased by us will bear a legend to the foregoing effect.

 

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4. We have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Notes, and we and any accounts for which we are acting are each able to bear the economic risk of our or its investment.

5. We are acquiring the Notes or beneficial interest therein purchased by us for our own account or for one or more accounts as to each of which we exercise sole investment discretion.

You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

 

 

[Insert Name of Transferee]

 

By:  

 

Name:  
Title:  

Dated:                     

 

D-2


[FORM OF NOTATION OF GUARANTEE]

For value received, each Guarantor (which term includes any successor Person under the Indenture) has, jointly and severally, unconditionally guaranteed, to the extent set forth in the Indenture and subject to the provisions in the Indenture dated as of November 6, 2001, between Tenet Healthcare Corporation, as issuer (the “ Company ”) and The Bank of New York Mellon Trust Company, N.A., as successor trustee to The Bank of New York (the “Trustee” ), as supplemented by the Tenth Supplemental Indenture, dated as of March 3, 2009 (the “Tenth Supplemental Indenture” ), among the Company, the Guarantors party thereto and the Trustee (as so supplemented, the “ Indenture ”), (a) the due and punctual payment of the principal of, premium and Special Interest, if any, and interest on, the Notes, whether at Maturity, by acceleration, redemption or otherwise, the due and punctual payment of interest on overdue principal of and interest on the Notes, if any, if lawful, and the due and punctual performance of all other Obligations of the Company to the Holders or the Trustee all in accordance with the terms of the Indenture and (b) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that the same will 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. The obligations of the Guarantors to the Holders of Notes and to the Trustee pursuant to the Note Guarantee and the Indenture are expressly set forth in Article Nine of the Tenth Supplemental Indenture and reference is hereby made to the Indenture for the precise terms of the Note Guarantee.

Capitalized terms used but not defined herein have the meanings given to them in the Indenture.

 

[ NAME O F G UARANTOR ( S )]

By:

 

 

Name:

 

Title:

 

 

E-1


[FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS]

S UPPLEMENTAL I NDENTURE (this “ Supplemental Indenture ”), dated as of             , 20      , among                              (the “ Guaranteeing Subsidiary ”), a subsidiary of Tenet Healthcare Corporation (or its permitted successor), a corporation duly organized and existing under the laws of the State of Nevada (the “ Company ”), the Company, the other Guarantors (as defined in the Indenture referred to herein) and The Bank of New York Mellon Trust Company, N.A., as trustee under the Indenture referred to below (the “ Trustee ”).

W I T N E S S E T H

WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture, dated as of November 6, 2001 (the “Base Indenture” ), between the Company and The Bank of New York, as predecessor trustee to the Trustee, as supplemented by the Tenth Supplemental Indenture, dated as of March 3, 2009 (the “Tenth Supplemental Indenture” ), among the Company, the Guarantors party thereto and the Trustee (as so supplemented, the “ Indenture ”), providing for the issuance of 10.0% Senior Secured Notes due 2018 (the “ Notes ”);

WHEREAS, the 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 Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “ Note Guarantee ”); and

WHEREAS, pursuant to Section 901 of the Base 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 Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:

1. C APITALIZED T ERMS . Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.

2. A GREEMENT TO G UARANTEE . The Guaranteeing Subsidiary hereby agrees to provide an unconditional Guarantee on the terms and subject to the conditions set forth in the Note Guarantee and in the Indenture including but not limited to Article Nine of the Tenth Supplemental Indenture.

4. N O R ECOURSE A GAINST O THERS . No past, present or future director, officer, employee, incorporator, stockholder or agent of the Guaranteeing Subsidiary, as such, shall have any liability for any obligations of the Company or any Guaranteeing Subsidiary under the Notes, any Note Guarantees, the 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 of the Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the SEC that such a waiver is against public policy.

5. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

 

F-1


6. C OUNTERPARTS . 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.

7. E FFECT OF H EADINGS . The Section headings herein are for convenience only and shall not affect the construction hereof.

8. T HE T RUSTEE . 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 and the Company.


IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.

Dated:              , 20     

 

[G UARANTEEING S UBSIDIARY ]
By:  

 

Name:  
Title:  
TENET HEALTHCARE CORPORATION
By:  

 

Name:  
Title:  
[E XISTING G UARANTORS ]
By:  

 

Name:  
Title:  
THE BANK OF NEW YORK MELLON TRUST COMPANY, as Trustee
By:  

 

  Authorized Signatory

Exhibit 10.1

STOCK PLEDGE AGREEMENT

Dated as of March 3, 2009

among

T ENET H EALTHCARE C ORPORATION

as a Pledgor

and

Each Other Pledgor

From Time to Time Party Hereto

and

T HE B ANK OF N EW Y ORK M ELLON T RUST C OMPANY , N.A.

as Collateral Trustee

W EIL , G OTSHAL  & M ANGES LLP

767 F IFTH A VENUE

N EW Y ORK , N EW Y ORK 10153-0119


TABLE OF CONTENTS

 

          Page
A RTICLE I    D EFINED T ERMS    1

Section 1.1

       Definitions    1

Section 1.2

       Certain Other Terms    5
A RTICLE II    G RANT OF S ECURITY I NTEREST    6

Section 2.1

       Collateral    6

Section 2.2

       Grant of Security Interest in Collateral    6
A RTICLE III    R EPRESENTATIONS AND W ARRANTIES    6

Section 3.1

       Title; No Other Liens    6

Section 3.2

       Perfection and Priority    6

Section 3.3

       Jurisdiction of Organization; Chief Executive Office    7

Section 3.4

       Pledged Collateral    7
A RTICLE IV    C OVENANTS    7

Section 4.1

       Generally    7

Section 4.2

       Maintenance of Perfected Security Interest; Further Documentation    8

Section 4.3

       Changes in Locations, Name, Etc    8

Section 4.4

       Pledged Collateral    8

Section 4.5

       Payment of Secured Obligations    10
A RTICLE V    R EMEDIAL P ROVISIONS    10

Section 5.1

       Code and Other Remedies    10

Section 5.2

       Pledged Collateral    11

Section 5.3

       Sales    12

Section 5.4

       Deficiency    13

Section 5.5

       Collateral Trust Agreement    13
A RTICLE VI    T HE C OLLATERAL T RUSTEE    13

Section 6.1

       Collateral Trustee’s Appointment as Attorney-in-Fact    13

Section 6.2

       Duty of Collateral Trustee    14

Section 6.3

       Authorization of Financing Statements    14

Section 6.4

       Authority of Collateral Trustee    15
A RTICLE  VII    M ISCELLANEOUS    15

Section 7.1

       Amendments in Writing    15

Section 7.2

       Notices    15

Section 7.3

       No Waiver by Course of Conduct; Cumulative Remedies    15

Section 7.4

       Successors and Assigns    16

Section 7.5

       Counterparts    16

Section 7.6

       Severability    16

Section 7.7

       Section Headings    16

Section 7.8

       Entire Agreement    16

Section 7.9

       Governing Law    17

Section 7.10

       Additional Pledgors    17

Section 7.11

       Release of Collateral    17

Section 7.12

       Reinstatement    18

Section 7.13

       Collateral Trust Agreement    18

 

i


TABLE OF CONTENTS

(continued)

 

          Page

Section 7.14

       Trustee Protections, Immunities and Indemnities    18

Section 7.15

       Indemnity    18

Section 7.16

       Special Consent Regarding Partnerships and LLCs    19

 

ii


A NNEXES AND S CHEDULES

 

Annex 1          Form of Pledge Amendment
Annex 2          Form of Joinder Agreement
Schedule 1          Jurisdiction of Organization; Principal Executive Office
Schedule 2          Pledged Collateral
Schedule 3          Filings

 

iii


S TOCK P LEDGE A GREEMENT , dated as of March 3, 2009, by T ENET H EALTHCARE C ORPORATION (the “ Company ”) and each of the other entities listed on the signature pages hereof or that becomes a party hereto pursuant to Section 7.10 ( Additional Pledgors ) (each a “ Pledgor ” and, collectively, the “ Pledgors ”), in favor of The Bank of New York Mellon Trust Company, N.A. (“ BoNY ”), as trustee (in such capacity, the “ Collateral Trustee ”) for the Secured Parties (as defined below).

W I T N E S S E T H :

W HEREAS , the Company is issuing on the date hereof (a) new 6-year notes (the “ 6-Year Notes ”) pursuant to an Indenture, dated as of November 6, 2001 (the “ Base Indenture ”), between the Company and BoNY, as successor trustee to The Bank of New York, (the “ Trustee ”) as supplemented by a Ninth Supplemental Indenture, dated as of the date hereof, (the “ Ninth Supplemental Indenture ”) among the Company, the Guarantors from time to time party thereto and the Trustee (together with the Base Indenture, the “ 6-year Indenture ”) and (b) new 9-year notes (the “ 9-Year Notes ” and together with the 6-year Notes, the “ New Notes ”) pursuant to the Base Indenture, as supplemented by a Tenth Supplemental Indenture, dated as of the date hereof (the “ Tenth Supplemental Indenture ” and, together with the Ninth Supplemental Indenture, the “ Supplemental Indentures ”), among the Company, the Guarantors from time to time party thereto and the Trustee (together with the Base Indenture, the “ 9-year Indenture ” and, collectively with the 6-year Indenture, the “ Indentures ”, as the same may be amended, restated, supplemented or otherwise modified from time to time).

W HEREAS , the Company has offered to exchange outstanding Old Notes (as defined in the Indentures) for the New Notes pursuant to the Exchange Offer (as defined in the Indentures);

W HEREAS , pursuant to the Indentures, the Pledgors have guaranteed the Obligations (as defined in the Indentures) under the New Notes;

W HEREAS , the Collateral Trustee, the Trustee and the Pledgors have entered into that certain Collateral Trust Agreement dated as of the date hereof (the “ Collateral Trust Agreement ”); and

W HEREAS , pursuant to the Indentures it is a condition precedent to the issuance of the New Notes that the Pledgors shall have executed and delivered this Agreement.

N OW , THEREFORE , in consideration of the premises and to induce the Holders of the Old Notes to accept the Exchange Offer, each Pledgor hereby agrees with the Collateral Trustee as follows:

ARTICLE I D EFINED T ERMS

Section 1.1 Definitions

(a) Unless otherwise defined herein, terms defined in the Indentures and used herein have the meanings given to them in the Indentures.

 

1


S TOCK P LEDGE A GREEMENT

T ENET H EALTHCARE C ORPORATION

 

(b) Terms used herein without definition that are defined in the UCC have the meanings given to them in the UCC, including the following terms (which are capitalized herein):

“Certificated Security”

“General Intangibles”

“Instruments”

“Proceeds”

“Security”

(c) The following terms shall have the following meanings:

Additional Pledged Collateral ” means any Pledged Collateral acquired by any Pledgor after the date hereof and in which a security interest is granted pursuant to Section 2.2 ( Grant of Security Interest in Collateral ) , including, to the extent a security interest is granted therein pursuant to Section 2.2 ( Grant of Security Interest in Collateral ) , (i) all Capital Stock of any Domestic Hospital Subsidiary that is acquired by any Pledgor after the date hereof, together with all certificates, Instruments or other documents representing any of the foregoing and (ii) all interest, cash, instruments and other property or Proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any of the foregoing. “ Additional Pledged Collateral ” may be General Intangibles or Instruments.

Agreement ” means this Stock Pledge Agreement.

Business Day ” means a day of the year on which banks are not required or authorized to close in New York City.

CGH Hospital, Ltd. LP Agreement ” means the Agreement of Limited Partnership of CGH Hospital, Ltd. (incorrectly identified therein as CGH, Ltd.), dated July 13, 1995 among Coral Gables Hospital, Inc. as general partner and FMC Center, Inc. (now known as FMC Medical, Inc.), as limited partner.

Collateral ” has the meaning specified in Section 2.1 ( Collateral ).

Constituent Document ” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

Contractual Obligations ” of any Person means any obligation, agreement, undertaking or similar provision of any Security Instrument issued by such Person or of any agreement, undertaking, contract, lease, indenture, mortgage, deed of trust or other instrument (excluding a Related Document) to which such Person is a party or by which it or any of its property is bound or to which any of its property is subject.

 

2


S TOCK P LEDGE A GREEMENT

T ENET H EALTHCARE C ORPORATION

 

Federal Funds Rate ” means, for any period, a fluctuating interest rate per annum equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day on such transactions received by the Collateral Trustee from three Federal funds brokers of recognized standing selected by it.

Governmental Authority ” means any nation, sovereign or government, any state or other political subdivision thereof and any entity or authority exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any central bank or stock exchange.

Indemnified Liabilities ” means any and all liabilities (including all environmental liabilities), obligations, losses, damages, penalties, actions, judgments, suits, costs, taxes, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, performance, administration or enforcement of this Agreement, including any of the foregoing relating to the use of proceeds of any Secured Debt or the violation of, noncompliance with or liability under, any law (including environmental laws) applicable to or enforceable against the Company, any of its Subsidiaries or any other Pledgor or any of the Collateral and all reasonable costs and expenses (including reasonable fees and expenses of legal counsel selected by the Indemnitee) incurred by any Indemnitee in connection with any claim, action, investigation or proceeding in any respect relating to any of the foregoing, whether or not suit is brought.

Indemnitee ” has the meaning specified in Section 7.15 (Indemnity) .

LLC ” means each limited liability company in which a Pledgor has an interest, including those set forth on Schedule 2 ( Pledged Collateral ).

LLC Agreement ” means each operating agreement with respect to an LLC, as each agreement has heretofore been, and may hereafter be, amended, restated, supplemented or otherwise modified from time to time.

Partnership ” means each partnership in which a Pledgor has an interest, including those set forth on Schedule 2 ( Pledged Collateral ).

Partnership Agreement ” means each partnership agreement governing a Partnership, as each such agreement has heretofore been, and may hereafter be, amended, restated, supplemented or otherwise modified.

Pledged Certificated Stock ” means all Certificated Securities and any other Capital Stock of a Domestic Hospital Subsidiary evidenced by a certificate, Instrument or other equivalent document, in each case owned by any Pledgor.

Pledged Collateral ” means, collectively, the Pledged Stock, together with all certificates, Instruments or other documents representing any of the Pledged Stock and all interest, cash, instruments and other property or Proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any of the foregoing. “ Pledged Collateral ” may be General Intangibles or Instruments.

 

3


S TOCK P LEDGE A GREEMENT

T ENET H EALTHCARE C ORPORATION

 

Pledged Stock ” means all Pledged Certificated Stock and all Pledged Uncertificated Stock, including all Capital Stock listed on Schedule 2 ( Pledged Collateral ); provided, however , that in the event that the Company files a registration statement with respect to the New Notes and such registration statement is declared effective by the SEC, “ Pledged Stock ” shall not include any Capital Stock of a Domestic Hospital Subsidiary to the extent that the mortgage, pledge or hypothecation of such Capital Stock herein results in the Company being required to file separate financial statements of such Subsidiary with the SEC, but only to the extent necessary not to be subject to such requirement and only for so long as such requirement is in existence and only with respect to the relevant New Notes affected and provided that neither the Company nor the Subsidiary shall take any action in the form of a reorganization, merger or other restructuring a principal purpose of which is to provide for the release of the Lien on Capital Stock pursuant to this paragraph; provided further , that in the event that Rule 3-16 of Regulation S-X is amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements of any Subsidiary of the Company due to the fact that such Subsidiary’s Capital Stock secures New Notes affected thereby, and such law, rule or regulation is applicable to the Company as a result of the New Notes, the Capital Stock of such Subsidiary will automatically be deemed not to be a part of the Pledged Stock securing the New Notes affected thereby but only to the extent necessary to not be subject to such requirement and only for so long as required not to be subject to such requirement.

Pledged Uncertificated Stock ” means any Capital Stock of any Domestic Hospital Subsidiary that is not Pledged Certificated Stock, including all right, title and interest of any Pledgor as a limited or general partner in any Partnership or as a member of any LLC and all right, title and interest of any Pledgor in, to and under any Partnership Agreement or LLC Agreement to which it is a party.

Related Document ” means the Indentures, the Collateral Trust Agreement, the New Notes and the Note Guarantees.

Requirement of Law ” means, with respect to any Person, the common law and all federal, state, local and foreign laws, treaties, rules and regulations, orders, judgments, decrees and other determinations of, concessions, grants, franchises, licenses and other Contractual Obligations with, any Governmental Authority or arbitrator, applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject..

SEC ” means the U.S. Securities & Exchange Commission.

Secured Obligations ” means Obligations in respect of the New Notes and the Note Guarantees.

Secured Parties ” means the Holders of the New Notes and the Collateral Trustee.

Securities Act ” means the Securities Act of 1933, as amended.

 

4


S TOCK P LEDGE A GREEMENT

T ENET H EALTHCARE C ORPORATION

 

Security Instrument ” means any Capital Stock, voting trust certificate, bond, debenture, note or other evidence of indebtedness, whether secured, unsecured, convertible or subordinated, or any certificate of interest, share or participation in, any temporary or interim certificate for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing, but shall not include any evidence of the Secured Obligations.

UCC ” means the Uniform Commercial Code as from time to time in effect in the State of New York; provided , however , that, in the event that, by reason of mandatory provisions of law, any of the attachment, perfection or priority of the Collateral Trustee’s security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, the term “ UCC ” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such attachment, perfection or priority and for purposes of definitions related to such provisions.

Section 1.2 Certain Other Terms

(a) In this Agreement, in the computation of periods of time from a specified date to a later specified date, the word “ from ” means “from and including” and the words “ to ” and “ until ” each mean “to but excluding” and the word “ through ” means “to and including.”

(b) The terms “ herein ,” “ hereof ,” “ hereto ” and “ hereunder ” and similar terms refer to this Agreement as a whole and not to any particular Article, Section, subsection or clause in this Agreement.

(c) References herein to an Annex, Schedule, Article, Section, subsection or clause refer to the appropriate Annex or Schedule to, or Article, Section, subsection or clause in this Agreement.

(d) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.

(e) Where the context requires, provisions relating to any Collateral, when used in relation to a Pledgor, shall refer to such Pledgor’s Collateral or any relevant part thereof.

(f) Any reference in this Agreement to the Indentures shall include all appendices, exhibits and schedules thereto, and, unless specifically stated otherwise all amendments, restatements, supplements or other modifications thereto, and as the same may be in effect at any time such reference becomes operative.

(g) The term “ including ” means “including without limitation” except when used in the computation of time periods.

(h) The terms “ Holder ,” “ Company ,” “ Pledgor ,” “ Collateral Trustee ” and “ Secured Party ” include their respective successors.

(i) References in this Agreement to any statute shall be to such statute as amended or modified and in effect from time to time.

 

5


S TOCK P LEDGE A GREEMENT

T ENET H EALTHCARE C ORPORATION

 

ARTICLE II G RANT OF S ECURITY I NTEREST

Section 2.1 Collateral

For the purposes of this Agreement, all of the following property now owned or at any time hereafter acquired by a Pledgor or in which a Pledgor now has or at any time in the future may acquire any right, title or interests is collectively referred to as the “ Collateral ”:

(a) all Pledged Collateral; and

(b) to the extent not otherwise included, all Proceeds in respect of the foregoing.

Section 2.2 Grant of Security Interest in Collateral

Each Pledgor, as collateral security for the full, prompt and complete payment and performance when due (whether at Stated Maturity, by acceleration or otherwise) of the Secured Obligations of such Pledgor, hereby mortgages, pledges and hypothecates to the Collateral Trustee for the benefit of the Secured Parties, and grants to the Collateral Trustee for the benefit of the Secured Parties a lien on and security interest in, all of its right, title and interest in, to and under the Collateral of such Pledgor.

ARTICLE III R EPRESENTATIONS AND W ARRANTIES

To induce the Secured Parties to enter into the transactions contemplated by the Indentures, each Pledgor hereby represents and warrants each of the following to the Secured Parties:

Section 3.1 Title; No Other Liens

Except for the Lien granted to the Collateral Trustee pursuant to this Agreement and the Collateral Trust Agreement and the other Liens permitted to exist on the Collateral under the Indentures, such Pledgor (a) is the record and beneficial owner of the Pledged Collateral pledged by it hereunder and (b) has rights in or the power to transfer each item of Pledged Collateral, free and clear of any other Lien.

Section 3.2 Perfection and Priority

The security interest granted pursuant to this Agreement shall constitute a valid and continuing perfected security interest in favor of the Collateral Trustee in the Collateral for which perfection is governed by the UCC upon (i) in the case of all Collateral in which a security interest may be perfected by filing a financing statement under the UCC, the completion of the filings and other actions specified on Schedule 3 ( Filings ) (which, in the case of all filings and other documents referred to on such schedule, have been delivered to the Collateral Trustee in completed and duly executed form), and (ii) the delivery to the Collateral Trustee of all Collateral consisting of all Certificated Securities, in each case properly endorsed for transfer to the Collateral Trustee or in blank. Such security interest shall be prior to all other Liens on the Collateral except for Permitted Prior Liens having priority over the Collateral Trustee’s Lien by operation of law or otherwise as permitted under the Indentures.

 

6


S TOCK P LEDGE A GREEMENT

T ENET H EALTHCARE C ORPORATION

 

Section 3.3 Jurisdiction of Organization; Chief Executive Office

Such Pledgor’s jurisdiction of organization, legal name, organizational identification number, if any, and the location of such Pledgor’s chief executive office or sole place of business, in each case as of the date hereof, is specified on Schedule 1 ( Jurisdiction of Organization; Principal Executive Office ) .

Section 3.4 Pledged Collateral

(a) At the date hereof, the Pledged Stock pledged hereunder by such Pledgor is listed on Schedule 2 ( Pledged Collateral ) and constitutes that percentage of the issued and outstanding equity of all classes of each issuer thereof as set forth on Schedule 2 ( Pledged Collateral ) .

(b) All of the Pledged Stock (other than Pledged Stock in limited liability companies and partnerships) has been duly authorized, validly issued and is fully paid and nonassessable.

(c) At the date hereof, all Pledged Collateral consisting of Certificated Securities has been delivered to the Collateral Trustee in accordance with Section 4.4(a) ( Pledged Collatera l) and Section 8.7 of each Supplemental Indenture.

(d) Other than the Pledged Stock constituting General Intangibles, there is no Pledged Collateral other than that represented by Certificated Securities in the possession of the Collateral Trustee.

(e) Other than with respect to the CGH Hospital, Ltd. LP Agreement, the Constituent Documents of any Person governing any Pledged Stock do not prohibit, upon the occurrence and during the continuance of an Event of Default, the Collateral Trustee exercising all of the rights of the Pledgor granting the security interest therein, and that a transferee or assignee of Capital Stock of such Person shall become a member, partner or, as the case may be, other holder of such Pledged Stock to the same extent as the Pledgor in such Person entitled to participate in the management of such Person and, upon the transfer of the entire interest of such Pledgor, such Pledgor ceases to be a member, partner or, as the case may be, other holder of such Pledged Stock or, in the case of any Constituent Documents which do not permit the foregoing, all consents and authorizations of any Persons required pursuant to any Constituent Document to permit the foregoing shall have been obtained by virtue of Section 7.16 (Special Consent Regarding Partnerships and LLCs) .

ARTICLE IV C OVENANTS

Each Pledgor agrees with the Collateral Trustee to the following, as long as any Secured Obligation remains outstanding and unless the Collateral Trustee (as directed in accordance with the Collateral Trust Agreement) otherwise consents:

Section 4.1 Generally

Such Pledgor shall (a) except for the security interest created by this Agreement, not create or suffer to exist any Lien upon or with respect to any Collateral, except Liens permitted under Section 4.1 of each Supplemental Indenture, (b) not use or permit any Collateral

 

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to be used unlawfully or in violation of any provision of this Agreement, any Indenture, any Related Document or any other Stock Lien Security Document, or any Requirement of Law, (c) not sell, transfer or assign (by operation of law or otherwise) any Collateral except as permitted under the Indentures and the Collateral Trust Agreement, (d) not enter into any agreement or undertaking restricting the right or ability of such Pledgor or the Collateral Trustee to sell, assign or transfer any Collateral, except as provided in the Collateral Trust Agreement and (e) promptly notify the Collateral Trustee of its entry into any agreement or assumption of undertaking that restricts the ability to sell, assign or transfer any Collateral.

Section 4.2 Maintenance of Perfected Security Interest; Further Documentation

(a) Such Pledgor shall maintain the security interest created by this Agreement as a perfected security interest having at least the priority described in Section 3.2 ( Perfection and Priority ) and Section 2.2 (Grant of Security Interest in Collateral) and shall defend such security interest and such priority against the claims and demands of all Persons (other than holders of Permitted Prior Liens).

(b) Such Pledgor shall furnish to the Collateral Trustee from time to time statements and schedules further identifying and describing the Collateral and such other reports in connection with the Collateral as the Collateral Trustee may reasonably request, all in reasonable detail and in form and substance satisfactory to the Collateral Trustee.

(c) At any time and from time to time, upon the written request of the Collateral Trustee, and at the sole expense of such Pledgor, such Pledgor shall promptly and duly execute and deliver, and have recorded, such further Instruments and documents and take such further action as the Collateral Trustee may reasonably request for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted, including the filing of any financing or continuation statement under the UCC (or other similar laws) in effect in any jurisdiction with respect to the security interest created hereby.

Section 4.3 Changes in Locations, Name, Etc.

Except upon 15 days’ prior written notice to the Collateral Trustee and delivery to the Collateral Trustee of all additional financing statements and other documents necessary or desirable to maintain the validity, perfection and priority of the security interests provided for herein, such Pledgor shall not do any of the following:

(a) change its jurisdiction of organization or its location, in each case from that referred to in Section 3.3 ( Jurisdiction of Organization; Chief Executive Office ) ; or

(b) change its legal name or organizational identification number, if any, or corporation, limited liability company or other organizational structure to such an extent that any financing statement filed in connection with this Agreement would become misleading.

Section 4.4 Pledged Collateral

(a) Such Pledgor shall deliver to the Collateral Trustee all certificates and Instruments representing or evidencing any Pledged Collateral (including Additional Pledged Collateral), whether now existing or hereafter acquired, in suitable form for transfer by delivery

 

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or, as applicable, accompanied by such Pledgor’s endorsement, where necessary, or duly executed instruments of transfer or assignment in blank, all in form and substance satisfactory to the Collateral Trustee, together, in respect of any Additional Pledged Collateral, with a Pledge Amendment, duly executed by the Pledgor, in substantially the form of Annex 1 ( Form of Pledge Amendment ) , an acknowledgment and agreement to a Joinder Agreement duly executed by the Pledgor, in substantially the form of Annex 2 ( Form of Joinder Agreement ) , or such other documentation acceptable to the Collateral Trustee. Such Pledgor authorizes the Collateral Trustee to attach each Pledge Amendment to this Agreement. The Collateral Trustee shall have the right, as directed in accordance with the Collateral Trust Agreement, to transfer to or to register in its name or in the name of its nominees its Lien on or security interest in any Pledged Collateral. The Collateral Trustee shall have the right at any time to exchange any certificate or instrument representing or evidencing any Pledged Collateral for certificates or instruments of smaller or larger denominations. Following the issuance of any Additional Pledged Collateral or any changes to the information contained in Schedule 2 ( Pledged Collateral ) , the Company shall promptly deliver to the Collateral Trustee a copy of Schedule 2 ( Pledged Collateral ) amended to accurately reflect such changes or the Additional Pledged Collateral, as the case may be.

(b) Except as provided in Article V ( Remedial Provisions ) , such Pledgor shall be entitled to receive all cash dividends (other than liquidating or distributing dividends) paid in respect of the Pledged Collateral. Any sums paid upon or in respect of any Pledged Collateral upon the liquidation or dissolution of any issuer of any Pledged Collateral, any distribution of capital made on or in respect of any Pledged Collateral or any property distributed upon or with respect to any Pledged Collateral pursuant to the recapitalization or reclassification of the capital of any issuer of Pledged Collateral or pursuant to the reorganization thereof shall, unless otherwise subject to a perfected security interest in favor of the Collateral Trustee, be delivered to the Collateral Trustee to be held by it hereunder as additional collateral security for the Secured Obligations; provided, however , that any such sums paid or distributions or other Proceeds received in respect of Capital Stock upon which the Collateral Trustee’s Lien has been released pursuant to Section 8.3(a)(3) of each Supplemental Indenture shall not be subject to the delivery requirement in this sentence. If any sum of money or property so paid or distributed in respect of any Pledged Collateral shall be received by such Pledgor, such Pledgor shall, until such money or property is paid or delivered to the Collateral Trustee, hold such money or property in trust for the Collateral Trustee, segregated from other funds of such Pledgor, as additional security for the Obligations.

(c) Except as provided in Article V ( Remedial Provisions ) , such Pledgor shall be entitled to exercise all voting, consent and corporate, partnership, limited liability company and similar rights with respect to the Pledged Collateral; provided , however , that no vote shall be cast, consent given or right exercised or other action taken by such Pledgor that would impair the Collateral, be inconsistent with or result in any violation of any provision of the Indentures, this Agreement or the Collateral Trust Agreement.

(d) In the case of each Pledgor that is an issuer of Pledged Collateral, such Pledgor agrees to be bound by the terms of this Agreement relating to the Pledged Collateral issued by it and shall comply with such terms insofar as such terms are applicable to it. Each Pledgor consents to (i) the exercise of the rights granted to the Collateral Trustee hereunder (including those described in Section 5.2 ( Pledged Collateral ) ), and (ii) the pledge by each other Pledgor, pursuant to the terms hereof, of the Pledged Stock and to the transfer of such Pledged Stock to the Collateral Trustee or its nominee and to the substitution of the Collateral Trustee or

 

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its nominee as a holder of such Pledged Stock (in accordance with the terms of this Agreement or the Collateral Trust Agreement) with all the rights, powers and duties of other holders of Pledged Stock of the same class and, if the Pledgor having pledged such Pledged Stock hereunder had any right, power or duty at the time of such pledge or at the time of such substitution beyond that of such other holders, with all such additional rights, powers and duties. Such Pledgor agrees to execute and deliver to the Collateral Trustee such certificates, agreements and other documents as may be necessary to evidence, formalize or otherwise give effect to the consents given in this clause (d).

(e) Coral Gables Hospital, Inc. and FMC Medical, Inc. as general partner and limited partner, respectively, of CGH Hospital, Ltd. shall amend the CGH Hospital, Ltd. LP Agreement within 10 Business Days of the date hereof to remove the limitation on the right of FMC Medical, Inc. to grant to the Collateral Trustee, as assignee of its partnership interest in the Partnership (as defined therein) pursuant to this Agreement, the right to become a substituted limited partner of the Partnership (as defined therein).

(f) Such Pledgor shall not, without the consent of the Collateral Trustee (as directed in accordance with the Collateral Trust Agreement), agree to any amendment of any Constituent Document that in any way adversely affects the perfection of the security interest of the Collateral Trustee in the Pledged Collateral pledged by such Pledgor hereunder, including any amendment electing to treat any membership interest or partnership interest that is part of the Pledged Collateral as a “security” under Section 8-103 of the UCC, or any election to turn any previously uncertificated Capital Stock that is part of the Pledged Collateral into certificated Capital Stock.

Section 4.5 Payment of Secured Obligations

Such Pledgor shall pay and discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all taxes, assessments and governmental charges or levies imposed upon the Collateral or in respect of income or profits therefrom, as well as all claims of any kind (including claims for labor, materials and supplies) against or with respect to the Collateral, except that no such charge need be paid if the amount or validity thereof is currently being contested in good faith by appropriate proceedings, reserves in conformity with GAAP with respect thereto have been provided on the books of such Pledgor and such proceedings could not reasonably be expected to result in the sale, forfeiture or loss of any material portion of the Collateral or any interest therein.

ARTICLE V R EMEDIAL P ROVISIONS

Section 5.1 Code and Other Remedies

During the continuance of an Event of Default, the Collateral Trustee may exercise, in addition to all other rights and remedies granted to it in this Agreement and in any other instrument or agreement securing, evidencing or relating to the Secured Obligations, all rights and remedies of a secured party under the UCC or any other applicable law. Without limiting the generality of the foregoing, the Collateral Trustee, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Pledgor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), may, as directed in accordance with the Indentures and the Collateral Trust Agreement, in such circumstances

 

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forthwith collect, receive, appropriate and realize upon any Collateral, and may, as directed in accordance with the Indentures and the Collateral Trust Agreement, forthwith sell, lease, assign, give option or options to purchase, or otherwise dispose of and deliver any Collateral (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of the Collateral Trustee or any Holder of New Notes or elsewhere upon such terms and conditions as are commercially reasonable, for cash or on credit or for future delivery without assumption of any credit risk. The Collateral Trustee shall have the right upon any such public sale or sales, and, to the extent permitted by the UCC and other applicable law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption of any Pledgor, which right or equity is hereby waived and released. Each Pledgor further agrees, at the Collateral Trustee’s request, to assemble the Collateral and make it available to the Collateral Trustee at places that the Collateral Trustee shall reasonably select, whether at such Pledgor’s premises or elsewhere. The Collateral Trustee shall apply the net proceeds of any action taken by it pursuant to this Section 5.1 , after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any Collateral or in any way relating to the Collateral or the rights of the Collateral Trustee and any other Secured Party hereunder, including reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the Secured Obligations, in such order as the Collateral Trust Agreement shall prescribe. To the extent permitted by applicable law, each Pledgor waives all claims, damages and demands it may acquire against the Collateral Trustee or any other Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition.

Section 5.2 Pledged Collateral

(a) During the continuance of an Event of Default, upon notice by the Collateral Trustee (as directed in accordance with the Indentures and the Collateral Trust Agreement) to the relevant Pledgor or Pledgors, (i) the Collateral Trustee shall have the right to receive any Proceeds of the Pledged Collateral and make application thereof to the Secured Obligations in the order set forth in the Collateral Trust Agreement and (ii) the Collateral Trustee or its nominee may (as directed in accordance with the Indentures and the Collateral Trust Agreement) exercise (A) any voting, consent, corporate and other right pertaining to the Pledged Collateral at any meeting of shareholders, partners or members, as the case may be, of the relevant issuer or issuers of Pledged Collateral or otherwise and (B) any right of conversion, exchange and subscription and any other right, privilege or option pertaining to the Pledged Collateral as if it were the absolute owner thereof (including the right to exchange at its discretion any of the Pledged Collateral upon the merger, amalgamation, consolidation, reorganization, recapitalization or other fundamental change in the corporate or equivalent structure of any issuer of Pledged Stock and the right to deposit and deliver any Pledged Collateral with any committee, depositary, transfer agent, registrar or other designated agency upon such terms and conditions as the Collateral Trustee may determine), all without liability except to account for property actually received by it; provided , however , that the Collateral Trustee shall have no duty to any Pledgor to exercise any such right, privilege or option and shall not be responsible for any failure to do so or delay in so doing.

(b) In order to permit the Collateral Trustee to exercise the voting and other consensual rights that it may be entitled to exercise pursuant hereto and to receive all dividends

 

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and other distributions that it may be entitled to receive hereunder, (i) each Pledgor shall promptly execute and deliver (or cause to be executed and delivered) to the Collateral Trustee all such proxies, dividend payment orders and other instruments as the Collateral Trustee may from time to time reasonably request and (ii) without limiting the effect of clause (i) above, such Pledgor hereby grants to the Collateral Trustee an irrevocable proxy to vote all or any part of the Pledged Collateral and to exercise all other rights, powers, privileges and remedies to which a holder of the Pledged Collateral would be entitled (including giving or withholding written consents of shareholders, partners or members, as the case may be, calling special meetings of shareholders, partners or members, as the case may be, and voting at such meetings), which proxy shall be effective, automatically and without the necessity of any action (including any transfer of any Pledged Collateral on the record books of the issuer thereof) by any other person (including the issuer of such Pledged Collateral or any officer or agent thereof) during the continuance of an Event of Default and which proxy shall only terminate upon the payment in full of the Secured Obligations.

(c) Each Pledgor hereby expressly authorizes and instructs each issuer of any Pledged Collateral pledged hereunder by such Pledgor to (i) comply with any instruction received by it from the Collateral Trustee in writing that (A) states that an Event of Default has occurred and is continuing and (B) is otherwise in accordance with the terms of this Agreement or the Collateral Trust Agreement, without any other or further instructions from such Pledgor, and each Pledgor agrees that such issuer shall be fully protected in so complying and (ii) during the continuance of an Event of Default, pay any dividend or other payment with respect to the Pledged Collateral directly to the Collateral Trustee.

Section 5.3 Sales

(a) Each Pledgor recognizes that the Collateral Trustee may be unable to effect a public sale of any Pledged Collateral by reason of certain prohibitions contained in the Securities Act and applicable state securities laws or otherwise or may determine that a public sale is impracticable or not commercially reasonable and, accordingly, may resort to one or more private sales thereof to a restricted group of purchasers that shall be obliged to agree, among other things, to acquire such securities for their own account for investment and not with a view to the distribution or resale thereof. Each Pledgor acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner. The Collateral Trustee shall be under no obligation to delay a sale of any Pledged Collateral for the period of time necessary to permit the issuer thereof to register such securities for public sale under the Securities Act, or under applicable state securities laws, even if such issuer would agree to do so.

(b) Each Pledgor agrees to use its best efforts to do or cause to be done all such other acts as may be necessary to make such sale or sales of all or any portion of the Pledged Collateral pursuant to this Section 5.3 valid and binding and in compliance with all other applicable Requirements of Law. Each Pledgor further agrees that a breach of any covenant contained in this Section 5.3 will cause irreparable injury to the Collateral Trustee and other Secured Parties, that the Collateral Trustee and the other Secured Parties have no adequate remedy at law in respect of such breach and, as a consequence, that each and every covenant contained in this Section 5.3 shall be specifically enforceable against such Pledgor, and such Pledgor hereby waives and agrees not to assert any defense against an action for specific performance of such covenants except for a defense that no Event of Default has occurred under the Indentures.

 

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Section 5.4 Deficiency

Each Pledgor shall remain liable for any deficiency if the proceeds of any sale or other disposition of the Collateral are insufficient to pay the Secured Obligations and the fees and disbursements of any attorney employed by the Collateral Trustee or any other Secured Party to collect such deficiency.

Section 5.5 Collateral Trust Agreement

The Collateral Trustee hereby agrees that any actions taken by it pursuant to this Article V ( Remedial Provisions ) shall be consistent with and in accordance with the terms of the Collateral Trust Agreement; provided that the Collateral Trustee may at all times exercise the rights afforded to it by Sections 5.4, 5.9 and 5.10 of the Collateral Trust Agreement.

ARTICLE VI T HE C OLLATERAL T RUSTEE

Section 6.1 Collateral Trustee’s Appointment as Attorney-in-Fact

(a) Each Pledgor hereby irrevocably constitutes and appoints the Collateral Trustee and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Pledgor and in the name of such Pledgor or in its own name, for the purpose of carrying out the terms of this Agreement, to take any appropriate action and to execute any document or instrument that may be necessary or desirable to accomplish the purposes of this Agreement, and, without limiting the generality of the foregoing, each Pledgor hereby gives the Collateral Trustee the power and right (but not the obligation), on behalf of such Pledgor, without notice to or assent by such Pledgor, to do any of the following:

(i) pay or discharge taxes and Liens levied or placed on or threatened against the Collateral;

(ii) execute, in connection with any sale provided for in Section 5.1 ( Code and Other Remedies ) or Section 5.3 (Sales) , any endorsement, assignment or other instrument of conveyance or transfer with respect to the Collateral; and

(iii) (A) defend any suit, action or proceeding brought against such Pledgor with respect to any Collateral, (B) settle, compromise or adjust any such suit, action or proceeding and, in connection therewith, give such discharges or releases as the Collateral Trustee may deem appropriate, and (C) generally, sell, transfer, pledge and make any agreement with respect to or otherwise deal with any Collateral as fully and completely as though the Collateral Trustee were the absolute owner thereof for all purposes, and do, at the Collateral Trustee’s option and such Pledgor’s expense, at any time, or from time to time, all acts and things that the Collateral Trustee deems necessary to protect, preserve or realize upon the Collateral and the Collateral Trustee’s security interests therein and to effect the intent of this Agreement, all as fully and effectively as such Pledgor might do.

 

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Anything in this clause (a) to the contrary notwithstanding, the Collateral Trustee agrees that it shall not exercise any right under the power of attorney provided for in this clause (a) unless an Event of Default shall be continuing.

(b) If any Pledgor fails to perform or comply with any of its agreements contained herein, the Collateral Trustee, at its option but without any obligation so to do, may perform or comply, or otherwise cause performance or compliance, with such agreement.

(c) The expenses of the Collateral Trustee incurred in connection with actions undertaken as provided in this Section 6.1 , together with interest thereon at a rate per annum equal to the Federal Funds Rate plus 3%, from the date of payment by the Collateral Trustee to the date reimbursed by the relevant Pledgor, shall be payable by such Pledgor to the Collateral Trustee on demand.

(d) Each Pledgor hereby ratifies all that said attorneys shall lawfully do or cause to be done by virtue hereof. All powers, authorizations and agencies contained in this Agreement are coupled with an interest and are irrevocable until this Agreement is terminated and the security interests created hereby are released.

Section 6.2 Duty of Collateral Trustee

(a) Beyond the exercise of reasonable care in the custody of Collateral in its possession, the Collateral Trustee will have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Collateral Trustee will not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any Liens on the Collateral. The Collateral Trustee will be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property, and the Collateral Trustee will not be liable or responsible for any loss or diminution in the value of any of the Collateral by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Trustee in good faith.

(b) The Collateral Trustee will not be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Collateral Trustee, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of any Pledgor to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. The Collateral Trustee hereby disclaims any representation or warranty to the present and future holders of the Secured Obligations concerning the perfection of the Liens granted hereunder or in the value of any of the Collateral.

Section 6.3 Authorization of Financing Statements

Each Pledgor authorizes the Collateral Trustee and its Affiliates, counsel and other representatives (without creating any obligation on the part of such Persons), at any time

 

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and from time to time, to file or record financing statements, amendments to financing statements, and other filing or recording documents or instruments with respect to the Collateral in such form and in such offices as the Collateral Trustee reasonably determines appropriate to perfect the security interests of the Collateral Trustee under this Agreement. Each Pledgor hereby also authorizes the Collateral Trustee and its Affiliates, counsel and other representatives (without creating any obligation on the part of such Persons), at any time and from time to time, to file continuation statements with respect to previously filed financing statements. A photographic or other reproduction of this Agreement shall be sufficient as a financing statement or other filing or recording document or instrument for filing or recording in any jurisdiction. The preparation, filing and recording of any and all financing statements and continuation statements necessary to perfect any Liens on any of the Collateral shall be the sole responsibility of the Pledgors and the Collateral Trustee shall be under no such obligation whatsoever to effect any such filings.

Section 6.4 Authority of Collateral Trustee

Each Pledgor acknowledges that the rights and responsibilities of the Collateral Trustee under this Agreement with respect to any action taken by the Collateral Trustee or the exercise or non-exercise by the Collateral Trustee of any option, voting right, request, judgment or other right or remedy provided for herein or resulting or arising out of this Agreement shall, as between the Collateral Trustee and the other Secured Parties, be governed by the Indentures and the Collateral Trust Agreement and by such other agreements with respect thereto as may exist from time to time among them, but, as between the Collateral Trustee and the Pledgors, the Collateral Trustee shall be conclusively presumed to be acting as agent for the Secured Parties with full and valid authority so to act or refrain from acting, and no Pledgor shall be under any obligation, or entitlement, to make any inquiry respecting such authority.

ARTICLE VII M ISCELLANEOUS

Section 7.1 Amendments in Writing

None of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except in accordance with Article Nine of the Base Indenture, as supplemented by Article Seven of each Supplemental Indenture; provided , however , that annexes to this Agreement may be supplemented (but no existing provisions may be modified and no Collateral may be released) through Pledge Amendments and Joinder Agreements, in substantially the form of Annex 1 ( Form of Pledge Amendment ) and Annex 2 ( Form of Joinder Agreement ) respectively, in each case duly executed by the Collateral Trustee and each Pledgor directly affected thereby.

Section 7.2 Notices

All notices, requests and demands to or upon the Collateral Trustee or any Pledgor hereunder shall be effected in the manner provided for in Section 10.4 of the Supplemental Indentures; provided , however , that any such notice, request or demand to or upon any Pledgor shall be addressed to the Company’s notice address set forth in such Section 10.4 .

Section 7.3 No Waiver by Course of Conduct; Cumulative Remedies

Neither the Collateral Trustee nor any other Secured Party shall by any act (except by a written instrument pursuant to Section 7.1 ( Amendments in Writing ) ), delay,

 

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indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any Event of Default. No failure to exercise, nor any delay in exercising, on the part of the Collateral Trustee or any other Secured Party, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by the Collateral Trustee or any other Secured Party of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy that the Collateral Trustee or such other Secured Party would otherwise have on any future occasion. The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies provided by law.

Section 7.4 Successors and Assigns

This Agreement shall be binding upon the successors and assigns of each Pledgor and shall inure to the benefit of the Collateral Trustee and each other Secured Party and their successors and assigns; provided , however , that no Pledgor may assign, transfer or delegate any of its rights or obligations under this Agreement without the prior written consent of the Collateral Trustee (as directed in accordance with the Collateral Trust Agreement).

Section 7.5 Counterparts

This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts (including by telecopy), each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple counterparts and attached to a single counterpart so that all signature pages are attached to the same document. Delivery of an executed counterpart by telecopy shall be effective as delivery of a manually executed counterpart.

Section 7.6 Severability

Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

Section 7.7 Section Headings

The Article and Section titles contained in this Agreement are, and shall be, without substantive meaning or content of any kind whatsoever and are not part of the agreement of the parties hereto.

Section 7.8 Entire Agreement

This Agreement together with the Related Documents represents the entire agreement of the parties and supersedes all prior agreements and understandings relating to the subject matter hereof.

 

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Section 7.9 Governing Law

This Agreement and the rights and obligations of the parties hereto shall be governed by, and construed and interpreted in accordance with, the law of the State of New York.

Section 7.10 Additional Pledgors

The Company shall cause any Subsidiary that owns any Capital Stock in a Domestic Hospital Subsidiary that is not a Pledgor to become a Pledgor hereunder by causing such Subsidiary to execute and deliver to the Collateral Trustee a Joinder Agreement substantially in the form of Annex 2 ( Form of Joinder Agreement ) , whereupon such Subsidiary shall thereafter for all purposes be a party hereto and have the same rights, benefits and obligations as a Pledgor party hereto on the date hereof. The Company shall ensure that every Subsidiary that becomes a Pledgor and that is not a Guarantor becomes a Guarantor in accordance with the Indentures.

Section 7.11 Release of Collateral

(a) At the time provided in Section 8.3 of the Supplemental Indentures and Section 4.1 of the Collateral Trust Agreement, the Collateral shall be released from the Lien created hereby and this Agreement and all obligations (other than those expressly stated to survive such termination) of the Collateral Trustee and each Pledgor hereunder shall terminate, all without delivery of any instrument or performance of any act by any party, and all rights to the Collateral shall revert to the Pledgors. At the request and sole expense of any Pledgor following any such termination, the Collateral Trustee shall deliver to such Pledgor any Collateral of such Pledgor held by the Collateral Trustee hereunder and execute and deliver to such Pledgor such documents as such Pledgor shall reasonably request to evidence such termination.

(b) If the Collateral Trustee shall be directed or permitted pursuant to Section 8.3 of each Supplemental Indenture and Section 4.1 or Section 4.4 of the Collateral Trust Agreement to release any Lien created hereby upon any Collateral (including any Collateral sold or disposed of by any Pledgor in a transaction permitted by the Indentures), such Collateral shall be released from the Lien created hereby to the extent provided under, and subject to the terms and conditions set forth in, Section 8.3 of the Supplemental Indentures and Section 4.1 or Section 4.4 of the Collateral Trust Agreement. In connection therewith, the Collateral Trustee, at the request and sole expense of the Company, shall execute and deliver to the Company all releases or other documents, including, without limitation, UCC termination statements, reasonably necessary or desirable for the release of the Lien created hereby on such Collateral. At the request and sole expense of the Company, a Pledgor shall be released from its obligations hereunder in the event that all the Capital Stock of such Pledgor shall be so sold or disposed; provided , however , that the Company shall have delivered to the Collateral Trustee, at least 10 Business Days, or such shorter period to which the Collateral Trustee may agree, prior to the date of the proposed release, a written request for release identifying the relevant Pledgor and the terms of the sale or other disposition in reasonable detail, including the price thereof and any expenses in connection therewith, together with a certification by the Company in form and substance satisfactory to the Collateral Trustee stating that such transaction is in compliance with the Indentures and the other Note Documents.

 

17


S TOCK P LEDGE A GREEMENT

T ENET H EALTHCARE C ORPORATION

 

Section 7.12 Reinstatement

Each Pledgor further agrees that, if any payment made by any Pledgor, Guarantor or other Person and applied to the Secured Obligations is at any time annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to be refunded or repaid, or the proceeds of Collateral are required to be returned by any Secured Party to such Pledgor, Guarantor or other Person, its estate, trustee, receiver or any other party, including any Pledgor, under any bankruptcy law, state or federal law, common law or equitable cause, then, to the extent of such payment or repayment, any Lien or other Collateral securing such liability shall be and remain in full force and effect, as fully as if such payment had never been made or, if prior thereto the Lien granted hereby or other Collateral securing such liability hereunder shall have been released or terminated by virtue of such cancellation or surrender), such Lien or other Collateral shall be reinstated in full force and effect, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect any Lien or other Collateral securing the obligations of any Pledgor in respect of the amount of such payment.

Section 7.13 Collateral Trust Agreement

This Agreement is subject to the terms and conditions set forth in the Collateral Trust Agreement in all respects and in the event of any conflict between such agreement and this Agreement, the terms of the Collateral Trust Agreement shall govern.

Section 7.14 Trustee Protections, Immunities and Indemnities

The Collateral Trustee will be entitled to all of the rights, protections, immunities and indemnities set forth in the Indentures in each case as if specifically set forth herein all of which are hereby incorporated herein by reference.

Section 7.15 Indemnity

(a) The Pledgors jointly and severally agree to defend, indemnify, pay and hold harmless the Collateral Trustee and each of its Affiliates and each and all of the directors, officers, partners, trustees, employees, attorneys and agents, and (in each case) their respective heirs, representatives, successors and assigns (each of the foregoing, an “Indemnitee”) from and against any and all Indemnified Liabilities; provided, no Indemnitee will be entitled to indemnification hereunder with respect to any Indemnified Liability to the extent such Indemnified Liability is found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Indemnitee.

(b) All amounts due under this Section 7.15 will be payable upon demand.

(c) To the extent that the undertakings to defend, indemnify, pay and hold harmless set forth in Section 7.15(a) may be unenforceable in whole or in part because they violate any law or public policy, each of the Pledgors will contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of them.

(d) No Pledgor will ever assert any claim against any Indemnitee, on any theory of liability, for any lost profits or special, indirect or consequential damages or (to the

 

18


S TOCK P LEDGE A GREEMENT

T ENET H EALTHCARE C ORPORATION

 

fullest extent a claim for punitive damages may lawfully be waived) any punitive damages arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument or transaction contemplated hereby or relating in any respect to any Indemnified Liability, and each of the Pledgors hereby forever waives, releases and agrees not to sue upon any claim for any such lost profits or special, indirect, consequential or (to the fullest extent lawful) punitive damages, whether or not accrued and whether or not known or suspected to exist in its favor.

(e) The agreements in this Section 7.15 will survive repayment of all other Secured Obligations and the removal or resignation of the Collateral Trustee.

Section 7.16 Special Consent Regarding Partnerships and LLCs

The undersigned Pledgors, in their respective capacities as a limited partner, general partner or managing member of each Person that is a partnership or limited liability company whose interests constitute Pledged Stock, hereby acknowledge and agree (a) to the grant of the security interest pursuant to the terms hereof in the Pledged Stock of such Pledgor, (b) to the exercise by the Collateral Trustee (in accordance with the terms of this Agreement or the Collateral Trust Agreement) of all rights of such Pledgor in the applicable Pledged Stock in such Person and (c) that a transferee or assignee of such Pledged Stock shall, subject to compliance with all Requirements of Law, become a member, partner or, as the case may be, other holder of such Pledged Stock to the same extent as the Pledgor in such Person entitled to participate in the management of such Person and, upon the transfer of the entire interest of such Pledgor, such Pledgor ceases to be a member, partner or, as the case may be, other holder of such Pledged Stock without any requirement to comply with any right of first refusal or similar provisions contained in the applicable Constituent Documents.

[S IGNATURE P AGES F OLLOW ]

 

19


S TOCK P LEDGE A GREEMENT

T ENET H EALTHCARE C ORPORATION

 

I N WITNESS WHEREOF , each of the undersigned has caused this Stock Pledge Agreement to be duly executed and delivered as of the date first above written.

 

T ENET H EALTHCARE C ORPORATION , as a Pledgor
By:  

/s/    Biggs C. Porter

Name:   Biggs C. Porter
Title:   Chief Financial Officer

 


S TOCK P LEDGE A GREEMENT

T ENET H EALTHCARE C ORPORATION

 

A MERICAN M EDICAL (C ENTRAL ), I NC .,
AMI I NFORMATION S YSTEMS G ROUP , I NC .,
A MISUB (H EIGHTS ), I NC .,
A MISUB (H ILTON H EAD ), I NC .,
A MISUB (T WELVE O AKS ), I NC .,
A MISUB OF T EXAS , I NC .,
B ROOKWOOD H EALTH S ERVICES , I NC .,
C ORAL G ABLES H OSPITAL , I NC .,
C YPRESS F AIRBANKS M EDICAL C ENTER , I NC .,
FMC A CQUISITION , I NC .,
FMC MEDICAL, INC.,
L IFEMARK H OSPITALS , I NC .,
MCF, I NC .,
O R N DA H OSPITAL C ORPORATION ,
T ENET C ALIFORNIA , I NC .,
T ENET F LORIDA , I NC .,
T ENET H EALTHSYSTEM CFMC, I NC .,
T ENET H EALTHSYSTEM H EALTHCORP ,
T ENET H EALTHSYSTEM H OLDINGS ,
T ENET H EALTHSYSTEM M EDICAL , I NC .,
T ENET H EALTHSYSTEM P HILADELPHIA , I NC .,
T ENET H OSPITALS , I NC .,
T ENET L OUISIANA , I NC .,
T ENET M ISSOURI , I NC .,
T ENET P HYSICIAN S ERVICES — H ILTON H EAD , I NC .,
T ENET T EXAS , I NC .,

T ENETSUB T EXAS , I NC .,

 

each as a Pledgor

By:  

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer


S TOCK P LEDGE A GREEMENT

T ENET H EALTHCARE C ORPORATION

 

A CCEPTED AND A GREED
as of the date first above written:

T HE B ANK OF N EW Y ORK M ELLON T RUST C OMPANY , N.A.,

as Collateral Trustee

By:  

/s/    Melonee Young

Name:   Melonee Young
Title:   Vice President


A NNEX 1

TO

S TOCK P LEDGE A GREEMENT

F ORM OF P LEDGE A MENDMENT

This P LEDGE A MENDMENT , dated as of                   , 20    , is delivered pursuant to Section 4.4(a) ( Pledged Collatera l) of the Stock Pledge Agreement, dated as of March 3 2009, by T ENET H EALTHCARE C ORPORATION (the “ Company ”), the [undersigned Pledgor and the other ]Subsidiaries of the Company from time to time party thereto as Pledgors in favor of T HE B ANK OF N EW Y ORK M ELLON T RUST C OMPANY , N.A., as trustee for the Secured Parties referred to therein (the “ Stock Pledge Agreement ”) and the undersigned hereby agrees that this Pledge Amendment may be attached to the Stock Pledge Agreement and that the Pledged Collateral listed on this Pledge Amendment shall be and become part of the Collateral referred to in the Stock Pledge Agreement and shall secure all Secured Obligations of the undersigned. Capitalized terms used herein but not defined herein are used herein with the meaning given them in the Stock Pledge Agreement.

 

[P LEDGOR ]
By:  

 

Name:  
Title:  

P LEDGED S TOCK

 

Issuer

 

Cert

 

Pledgor

 

Class of

Equity Interest

 

Par

Value

 

Certificate

No(s)

 

Number of

Membership

Interests or

Common

Stock

 

Percentage of

Outstanding

Membership

Interests or

Common Stock

             

 

A1-1


A CKNOWLEDGED AND A GREED

as of the date first above written:

 

T HE B ANK OF N EW Y ORK M ELLON T RUST C OMPANY , N.A.,

as Collateral Trustee

By:

 

 

Name:

 

Title:

 

 

A1-2


A NNEX 2

TO

S TOCK P LEDGE A GREEMENT

F ORM OF J OINDER A GREEMENT

This J OINDER A GREEMENT , dated as of                   , 20    , is delivered pursuant to Section 7.10 ( Additional Pledgors ) of the Stock Pledge Agreement, dated as of March 3 2009, by T ENET H EALTHCARE C ORPORATION (the “ Company ”) and the Subsidiaries of the Company from time to time party thereto as Pledgors in favor of T HE B ANK OF N EW Y ORK M ELLON T RUST C OMPANY , N.A., as trustee for the Secured Parties referred to therein (the “ Stock Pledge Agreement ”). Capitalized terms used herein but not defined herein are used with the meanings given them in the Stock Pledge Agreement.

By executing and delivering this Joinder Agreement, the undersigned, as provided in Section 7.10 ( Additional Pledgors ) of the Stock Pledge Agreement, hereby becomes a party to the Stock Pledge Agreement as a Pledgor thereunder with the same force and effect as if originally named as a Pledgor therein and, without limiting the generality of the foregoing, hereby grants to the Collateral Trustee, as collateral security for the full, prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the Secured Obligations of the undersigned, a Lien on and security interest in, all of its right, title and interest in, to and under the Collateral of the undersigned and expressly assumes all obligations and liabilities of a Pledgor thereunder.

The information set forth in Schedule 1 hereto is hereby added to the information set forth in Schedules 1 through 3 to the Stock Pledge Agreement. By acknowledging and agreeing to this Joinder Agreement, the undersigned hereby agree that this Joinder Agreement may be attached to the Stock Pledge Agreement and that the Pledged Collateral listed on Schedule 1 to this Joinder Amendment shall be and become part of the Collateral referred to in the Stock Pledge Agreement and shall secure all Secured Obligations of the undersigned.

The undersigned hereby represents and warrants that each of the representations and warranties contained in Article III ( Representations and Warranties ) of the Stock Pledge Agreement applicable to it is true and correct in all material respects on and as the date hereof as if made on and as of such date.

I N WITNESS WHEREOF , the undersigned has caused this Joinder Agreement to be duly executed and delivered as of the date first above written.

 

[A DDITIONAL P LEDGOR ]
By:  

 

Name:  
Title:  

 

A2-1


S CHEDULE 1

TO

S TOCK P LEDGE A GREEMENT

J URISDICTION OF O RGANIZATION ; P RINCIPAL E XECUTIVE O FFICE

 

ENTITY

  

JURISDICTION
OF
ORGANIZATION

  

ADDRESS OF CHIEF
EXECUTIVE OFFICE

  

ORGANIZATIONAL

IDENTIFICATION

NUMBER

TENET HEALTHCARE CORPORATION

   Nevada    13737 Noel Road, Ste. 100, Dallas, TX 75240    C3523-1975

AMERICAN MEDICAL (CENTRAL), INC.

   California    13737 Noel Road, Ste. 100, Dallas, TX 75240    C0556036

AMI INFORMATION SYSTEMS GROUP, INC.

   California    13737 Noel Road, Ste. 100, Dallas, TX 75240    C0683469

AMISUB (HEIGHTS), INC.

   Delaware    13737 Noel Road, Ste. 100, Dallas, TX 75240    2281986

Amisub (Hilton Head), Inc.

   South Carolina    13737 Noel Road, Ste. 100, Dallas, TX 75240    (state does not issue an ID number)

AMISUB (TWELVE OAKS), INC.

   Delaware    13737 Noel Road, Ste. 100, Dallas, TX 75240    2281985

AMISUB OF TEXAS, INC.

   Delaware    13737 Noel Road, Ste. 100, Dallas, TX 75240    2281984

BROOKWOOD HEALTH SERVICES, INC.

   Alabama    13737 Noel Road, Ste. 100, Dallas, TX 75240    (state does not issue an ID number)

CORAL GABLES HOSPITAL, INC.

   Florida    13737 Noel Road, Ste. 100, Dallas, TX 75240    G11755

Cypress Fairbanks Medical Center, Inc.

   Texas    13737 Noel Road, Ste. 100, Dallas, TX 75240    47986200

FMC Acquisition, Inc.

   Delaware    13737 Noel Road, Ste. 100, Dallas, TX 75240    2339157

FMC MEDICAL, INC.

   Florida    13737 Noel Road, Ste. 100, Dallas, TX 75240    P95000053796

LIFEMARK HOSPITALS, INC.

   Delaware    13737 Noel Road, Ste. 100, Dallas, TX 75240    0829727

MCF, INC.

   Florida    13737 Noel Road, Ste. 100, Dallas, TX 75240    L32855

OrNda Hospital Corporation

   California    13737 Noel Road, Ste. 100, Dallas, TX 75240    C1080506

Tenet California, Inc.

   Delaware    13737 Noel Road, Ste. 100, Dallas, TX 75240    3565182

Tenet Florida, Inc.

   Delaware    13737 Noel Road, Ste. 100, Dallas, TX 75240    3594022

Tenet HealthSystem CFMC, Inc.

   Delaware    13737 Noel Road, Ste. 100, Dallas, TX 75240    2865558

Tenet HealthSystem HealthCorp

   Delaware    13737 Noel Road, Ste. 100, Dallas, TX 75240    0921444

Tenet HealthSystem Holdings, Inc.

   Delaware    13737 Noel Road, Ste. 100, Dallas, TX 75240    2200624

 

S1-1


ENTITY

  

JURISDICTION
OF
ORGANIZATION

  

ADDRESS OF CHIEF
EXECUTIVE OFFICE

  

ORGANIZATIONAL

IDENTIFICATION

NUMBER

Tenet HealthSystem Medical, Inc.

   Delaware    13737 Noel Road, Ste. 100, Dallas, TX 75240    0826070

Tenet HealthSystem Philadelphia, Inc.

   Pennsylvania    13737 Noel Road, Ste. 100, Dallas, TX 75240    2837021

Tenet Hospitals, Inc.

   Delaware    13737 Noel Road, Ste. 100, Dallas, TX 75240    3566140

Tenet Louisiana, Inc.

   Delaware    13737 Noel Road, Ste. 100, Dallas, TX 75240    3582836

Tenet Missouri, Inc.

   Delaware    13737 Noel Road, Ste. 100, Dallas, TX 75240    3601886

Tenet Physician Services - Hilton Head, Inc.

   South Carolina    13737 Noel Road, Ste. 100, Dallas, TX 75240    (state does not issue an ID number)

Tenet Texas, Inc.

   Delaware    13737 Noel Road, Ste. 100, Dallas, TX 75240    3594043

TENETSUB TEXAS, INC.

   Delaware    13737 Noel Road, Ste. 100, Dallas, TX 75240    2514721

 

S1-2


S CHEDULE 2

TO

S TOCK P LEDGE A GREEMENT

P LEDGED C OLLATERAL

 

Issuer

   Cert   

Grantor

   Class of
Equity
Interest
   Par
Value
   Certificate
No(s)
   Number of
Membership
Interests or
Common Stock
   Percentage
of
Outstanding
Membership
Interests or
Common
Stock
 
American Medical (Central), Inc., a California corporation    Y    Tenet HealthSystem Medical, Inc. (formerly American Medical International, Inc.)    Common
Stock
   $ 1.00    1    1,000    100 %
AMI Information Systems Group, Inc., a California corporation    Y    Tenet HealthSystem Medical, Inc. (formerly American Medical International, Inc.)    Common
Stock
   $ 1.00    4    999    100 %
     

 

Tenet HealthSystem Medical, Inc. (formerly American Medical International, Inc.)

  

 

Common
Stock

   $ 1.00    6    1   
Amisub (Heights), Inc., a Delaware corporation    Y    American Medical (Central), Inc.    Common
Stock
   $ 1.00    1    100    100 %
Amisub (Hilton Head), Inc., a South Carolina corporation    Y    Tenet HealthSystem Medical, Inc. (formerly American Medical International, Inc.)    Common
Stock
   $ 1.00    1    1,000    100 %
Amisub (SFH), Inc., a Tennessee corporation    Y    Tenet HealthSystem Medical, Inc. (formerly American Medical International, Inc.)    Common
Stock
   $ 1.00    1    1,000    100 %
Amisub (Twelve Oaks), Inc., a Delaware corporation    Y    American Medical (Central), Inc.    Common
Stock
   $ 1.00    1    100    100 %

 

S2-1


Issuer

   Cert   

Grantor

   Class of
Equity
Interest
   Par
Value
   Certificate
No(s)
   Number of
Membership
Interests or
Common Stock
   Percentage
of
Outstanding
Membership
Interests or
Common
Stock
 
Amisub of North Carolina, Inc., a North Carolina corporation    Y    Tenet HealthSystem Medical, Inc. (formerly American Medical International, Inc.)    Common
Stock
   $ 1.00    1    1,000    100 %
Amisub of South Carolina, Inc., a South Carolina corporation    Y    Tenet HealthSystem Medical, Inc. (formerly American Medical International, Inc.)    Common
Stock
   $ 1.00    1    1,000    100 %
Amisub of Texas, Inc., a Delaware corporation    Y   

 

Lifemark Hospitals, Inc.

  

 

Common
Stock

   $ 1.00    1    100    67 %
     

 

Lifemark Hospitals, Inc.

  

 

Common
Stock

   $ 1.00    6    637   
     

 

Tenet HealthSystem Medical, Inc. (formerly American Medical International, Inc.)

  

 

Common
Stock

   $ 1.00    2    198    18 %
     

 

American Medical (Central), Inc.

  

 

Common
Stock

   $ 1.00    3    110    10 %
     

 

AMI Information Systems Group, Inc.

  

 

Common
Stock

   $ 1.00    4    4    0.36 %
     

 

Brookwood Health Services, Inc.

  

 

Common
Stock

   $ 1.00    5    51    4.64 %
Brookwood Health Services, Inc., a Alabama corporation    Y    Tenet HealthSystem Medical, Inc. (formerly American Medical International, Inc.)    Common
Stock
   $ 1.00    1    2,934    100 %
CGH Hospital, Ltd., a Florida limited partnership    N    Coral Gables Hospital, Inc.    General
Partner
     —      —      —      99 %
     

 

FMC Medical, Inc. (formerly FMC Center, Inc.)

  

 

Limited
Partner

     —      —      —      1 %

 

S2-2


Issuer

   Cert   

Grantor

   Class of
Equity
Interest
   Par
Value
   Certificate
No(s)
   Number of
Membership
Interests or
Common Stock
   Percentage
of
Outstanding
Membership
Interests or
Common
Stock
 
Coastal Carolina Medical Center, Inc., a South Carolina corporation    Y    Tenet HealthSystem Medical, Inc.    Common
Stock
   $ 0.01    3    1,000    100 %
Community Hospital of Los Gatos, Inc., a California corporation    Y    Tenet California, Inc.    Common
Stock
   $ 0.00    3    1,000    100 %
Coral Gables Hospital, Inc., a Florida corporation    Y    OrNda Hospital Corporation    Common
Stock
   $ 0.00    2    1,000    100 %
Cypress Fairbanks Medical Center, Inc., a Texas corporation    Y    OrNda Hospital Corporation (formerly Summit Hospital Corporation)    Common
Stock
   $ 0.00    015    350,208    100 %
Delray Medical Center, Inc., a Florida corporation    Y    Tenet Florida, Inc.    Common
Stock
   $ 1.00    3    1,000    100 %
Doctors Hospital of Manteca, Inc., a California corporation    Y    Tenet California, Inc.    Common
Stock
   $ 0.00    3    1,000    100 %
Doctors Medical Center of Modesto, Inc., a California corporation    Y    Tenet California, Inc.    Common
Stock
   $ 0.00    3    1,000    100 %

 

S2-3


Issuer

   Cert   

Grantor

   Class of
Equity
Interest
   Par
Value
   Certificate
No(s)
   Number of
Membership
Interests or
Common Stock
   Percentage
of
Outstanding
Membership
Interests or
Common
Stock
 
East Cooper Community Hospital, Inc., a South Carolina corporation    Y    Tenet HealthSystem Medical, Inc. (formerly American Medical International, Inc.)    Common
Stock
   $ 0.00    1    1,000    100 %
FMC Acquisition, Inc., a Delaware corporation    Y    Tenet HealthSystem HealthCorp (formerly OrNda HealthCorp)    Common
Stock
   $ 1.00    1    55    100 %
     

 

Tenet HealthSystem HealthCorp (formerly OrNda HealthCorp)

  

 

Common
Stock

   $ 1.00    3    45   
FMC Hospital, Ltd., a Florida limited partnership    N    FMC Acquisition, Inc.    General
Partner
     —      —      —      36 %
     

 

MCF, Inc.

  

 

Limited
Partner

     —      —      —      64 %
FMC Medical, Inc., a Florida corporation    Y    OrNda Hospital Corporation    Common
Stock
   $ 0.00    1    1,000    100 %
Fountain Valley Regional Hospital and Medical Center, a California corporation    Y    OrNda Hospital Corporation    Common
Stock
   $ 1.00    4    100    100 %
Frye Regional Medical Center, Inc., a North Carolina corporation    Y    Tenet HealthSystem Medical, Inc. (formerly American Medical International, Inc.)    Common
Stock
   $ 10.00    A13    1,000    100 %
     

 

Tenet HealthSystem Medical, Inc. (formerly American Medical International, Inc.)

  

 

Common
Stock

   $ 10.00    B26    4,000   
Hilton Head Health System, L.P., a South Carolina limited partnership    N    Tenet Physician Services — Hilton Head, Inc.    General

Partner

     —      —      —      21 %
     

 

Amisub (Hilton Head), Inc.

  

 

Limited
Partner

     —      —      —      79 %

 

S2-4


Issuer

   Cert   

Grantor

   Class of
Equity
Interest
   Par
Value
   Certificate
No(s)
   Number of
Membership
Interests or
Common Stock
   Percentage
of
Outstanding
Membership
Interests or
Common
Stock
 
JFK Memorial Hospital, Inc., a California corporation    Y    Tenet California, Inc    Common
Stock
   $ 0.00    3    1,000    100 %
Lakewood Regional Medical Center, Inc., a California corporation    Y    Tenet California, Inc    Common
Stock
   $ 0.00    3    1,000    100 %
Lifemark Hospitals of Florida, Inc., a Florida corporation    Y    Lifemark Hospitals, Inc.    Common
Stock
   $ 0.00    1    1,000    100 %
Lifemark Hospitals, Inc., a Delaware corporation    Y    American Medical (Central), Inc.    Common
Stock
   $ 0.00    1    1,000    100 %
Los Alamitos Medical Center, Inc., a California corporation    Y    Tenet California, Inc    Common
Stock
   $ 0.00    3    1,000    100 %
MCF, Inc., a Florida corporation    Y    OrNda Hospital Corporation    Common
Stock
   $ 0.001    13    800    100 %
New Medical Horizons II, Ltd., a Texas limited partnership    N    Cypress Fairbanks Medical Center, Inc.    General
Partner
     —      —      —      5 %
     

 

Tenet HealthSystem CFMC, Inc.

  

 

Limited
Partner

     —      —      —      95 %
North Fulton Medical Center, Inc., a Georgia corporation    Y    Tenet HealthSystem Medical, Inc. (formerly American Medical International, Inc.)    Common
Stock
   $ 1.00    1    1,000    100 %

 

S2-5


Issuer

   Cert   

Grantor

   Class of
Equity
Interest
   Par
Value
   Certificate
No(s)
   Number of
Membership
Interests or
Common Stock
   Percentage
of
Outstanding
Membership
Interests or
Common
Stock
 
NorthShore Regional Medical Center, L.L.C., a Louisiana limited liability company    N    Tenet Louisiana, Inc.    Member      —      —      —      100 %
OrNda Hospital Corporation, a California corporation (formerly Summit Hospital Corporation)    Y    Tenet HealthSystem HealthCorp (formerly OrNda Healthcorp)    Common
Stock
   $ 0.00    005    2,000    100 %
Palm Beach Gardens Community Hospital, Inc., a Florida corporation    Y    Tenet HealthSystem Medical, Inc. (formerly American Medical International, Inc.)    Common
Stock
   $ 1.00    1    1,000    100 %
     

 

Tenet HealthSystem Medical, Inc. (formerly American Medical International, Inc.)

  

 

Common
Stock

   $ 1.00    2    2,100   
Placentia-Linda Hospital, Inc., a California corporation    Y    Tenet California, Inc    Common
Stock
   $ 0.00    3    1,000    100 %
San Ramon Regional Medical Center, Inc., a California corporation    Y    Tenet California, Inc    Common
Stock
   $ 0.00    3    1,000    100 %

 

S2-6


Issuer

   Cert   

Grantor

   Class of
Equity
Interest
   Par
Value
   Certificate
No(s)
   Number of
Membership
Interests or
Common Stock
   Percentage
of
Outstanding
Membership
Interests or
Common
Stock
 
Sierra Vista Hospital, Inc., a California corporation    Y    Tenet HealthSystem Medical, Inc. (formerly American Medical International, Inc.)    Common
Stock
   $ 10.00    1    500    100 %
     

 

Tenet HealthSystem Medical, Inc. (formerly American Medical International, Inc.)

  

 

Common
Stock

   $ 10.00    2    500   
     

 

Tenet HealthSystem Medical, Inc. (formerly American Medical International, Inc.)

  

 

Common
Stock

   $ 10.00    3    1,000   
Tenet California, Inc., a Delaware corporation    Y    Tenet Hospitals, Inc.    Common
Stock
   $ 1.00    1    1,000    100 %
Tenet Florida, Inc., a Delaware corporation    Y    Tenet Hospitals, Inc.    Common
Stock
   $ 1.00    1    1,000    100 %
Tenet Frisco, Ltd., a Texas limited partnership    N    Tenet Texas, Inc.    General
partner
     —      —      —      1 %
     

 

Tenetsub Texas, Inc.

  

 

Limited
Partner

     —      —      —      99 %
Tenet Good Samaritan, Inc., a Florida corporation    Y    Tenet HealthSystem Medical, Inc.    Common
Stock
   $ 1.00    1    1,000    100 %
Tenet HealthSystem Bartlett, Inc., a Tennessee corporation    Y    Tenet HealthSystem Medical, Inc.    Common
Stock
   $ 1.00    1    1,000    100 %
Tenet HealthSystem CFMC, Inc., a Delaware corporation    Y    OrNda Hospital Corporation    Common
Stock
   $ 1.00    1    1,000    100 %
Tenet HealthSystem Desert, Inc., a California corporation    Y    Tenet California, Inc    Common
Stock
   $ 1.00    3    1,000    100 %

 

S2-7


Issuer

   Cert   

Grantor

   Class of
Equity
Interest
   Par
Value
   Certificate
No(s)
   Number of
Membership
Interests or
Common Stock
   Percentage
of
Outstanding
Membership
Interests or
Common
Stock
 
Tenet HealthSystem DI, Inc., a Missouri corporation    Y    Tenet Missouri, Inc.    Common
Stock
   $ 1.00    3    1,000    100 %
Tenet HealthSystem GB, Inc., a Georgia corporation    Y    Tenet HealthSystem Medical, Inc.    Common
Stock
   $ 0.00    2    10,000    100 %
Tenet HealthSystem Hahnemann, LLC, a Pennsylvania limited liability company    N    Tenet HealthSystem Philadelphia, Inc.    Member      —      —      —      100 %
Tenet HealthSystem HealthCorp, a Delaware corporation    Y    Tenet Healthcare Corporation    Common
Stock
   $ 1.00    1    1,000    100 %
Tenet HealthSystem Holdings, Inc., a Delaware corporation    Y    Tenet Healthcare Corporation    Common
Stock
   $ 1.00    1    1,000    100 %
Tenet HealthSystem Medical, Inc., a Delaware corporation    Y    Tenet HealthSystem Holdings, Inc.    Common
Stock
   $ 0.01    ZZ-4    1,000    100 %
Tenet HealthSystem Norris, Inc., a California corporation    Y    Tenet California, Inc.    Common
Stock
   $ 1.00    1    1,000    100 %

 

S2-8


Issuer

   Cert   

Grantor

   Class of
Equity
Interest
   Par
Value
   Certificate
No(s)
   Number of
Membership
Interests or
Common Stock
   Percentage
of
Outstanding
Membership
Interests or
Common
Stock
 
Tenet HealthSystem North Shore, Inc., a Florida corporation    Y    Tenet HealthSystem Medical, Inc.    Common
Stock
   $ 1.00    9    1,000    100 %
Tenet HealthSystem Philadelphia, Inc., a Pennsylvania corporation    Y    Tenet HealthSystem Medical, Inc.    Common
Stock
   $ 1.00    1    1,000    100 %
Tenet HealthSystem SGH, Inc., a Georgia corporation    Y    Tenet HealthSystem Medical, Inc.    Common
Stock
   $ 1.00    1    1,000    100 %
Tenet HealthSystem SL, Inc., a Missouri corporation    Y    Tenet HealthSystem Medical, Inc.    Common
Stock
   $ 1.00    2    1,000    100 %
Tenet HealthSystem Spalding, Inc., a Georgia corporation (formerly Amisub (McIntosh Trail Regional Medical Center), Inc.)    Y    Tenet HealthSystem Medical, Inc. (formerly American Medical International, Inc.)    Common
Stock
   $ 1.00    1    1,000    100 %

 

S2-9


Issuer

   Cert   

Grantor

   Class of
Equity
Interest
   Par
Value
   Certificate
No(s)
   Number of
Membership
Interests or
Common
Stock
   Percentage
of
Outstanding
Membership
Interests or
Common
Stock
 
Tenet HealthSystem St. Christopher’s Hospital for Children, L.L.C., Pennsylvania limited liability company    N    Tenet HealthSystem Philadelphia, Inc.    Member      —      —      —      100 %
Tenet Hialeah HealthSystem, Inc., a Florida corporation    Y    Tenet Florida, Inc.    Common
Stock
   $ 0.01    6    1,000    100 %
Tenet Hospitals, Inc., a Delaware corporation    Y    Tenet Healthcare Corporation    Common
Stock
   $ 1.00    1    1,000    100 %
Tenet Hospitals Limited, a Texas limited partnership    N    Tenet Texas, Inc.    General
Partner
     —      —      —      1 %
     

 

Tenetsub Texas, Inc.

  

 

Limited
Partner

     —      —      —      99 %
Tenet Louisiana, Inc., a Delaware corporation    Y    Tenet Hospitals, Inc.    Common
Stock
   $ 1.00    1    1,000    100 %
Tenet Missouri, Inc., a Delaware corporation    Y    Tenet Hospitals, Inc    Common
Stock
   $ 1.00    1    1,000    100 %

 

S2-10


Issuer

   Cert   

Grantor

   Class of
Equity
Interest
   Par
Value
   Certificate
No(s)
   Number of
Membership
Interests or
Common Stock
   Percentage
of
Outstanding
Membership
Interests or
Common
Stock
 
Tenet Physician Services—Hilton Head, Inc., a South Carolina corporation (formerly Amisub Development of South Carolina)    Y    Tenet HealthSystem Medical, Inc. (formerly American Medical International, Inc.)    Common
Stock
   $ 1.00    1    1,000    100 %
Tenet South Fulton, Inc., a Georgia corporation    Y    Tenet HealthSystem Medical, Inc.    Common
Stock
   $ 1.00    1    1,000    100 %
Tenet St. Mary’s, Inc., a Florida corporation    Y    Tenet HealthSystem Medical, Inc.    Common
Stock
   $ 1.00    1    1,000    100 %
Tenet Texas, Inc., a Delaware corporation    Y    Tenet Hospitals, Inc.    Common
Stock
   $ 1.00    1    1,000    100 %
Tenetsub Texas, Inc., a Delaware corporation    Y    Tenet Texas, Inc.    Common
Stock
   $ 0.00    3    1,000    100 %
TH Healthcare, Ltd., a Texas limited partnership    N    Lifemark Hospitals, Inc.    General
Partner
     —      —      —      1 %
     

 

Amisub (Heights), Inc. (formerly Heights Medical Center, Inc.)

  

 

Limited
Partner

     —      —      —      10.3 %
     

 

Amisub (Twelve Oaks), Inc. (formerly Twelve Oaks Medical Center, Inc.)

  

 

Limited
Partner

     —      —      —      18.6 %
     

 

Amisub of Texas, Inc. (formerly Lifemark Hospitals of Texas, Inc.)

  

 

Limited
Partner

     —      —      —      70.1 %

 

S2-11


Issuer

   Cert   

Grantor

   Class of
Equity
Interest
   Par
Value
   Certificate
No(s)
   Number of
Membership
Interests or
Common Stock
   Percentage
of
Outstanding
Membership
Interests or
Common
Stock
 
Twin Cities Community Hospital, Inc., a California corporation    Y    Tenet California, Inc.    Common
Stock
   $ 0.00    3    1,000    100 %
USC University Hospital, Inc., a California corporation    Y    Tenet California, Inc.    Common
Stock
   $ 0.00    3    1,000    100 %
West Boca Medical Center, Inc., a Florida corporation    Y    Tenet Florida, Inc.    Common
Stock
   $ 1.00    3    1,000    100 %

 

S2-12


S CHEDULE 3

TO

S TOCK P LEDGE A GREEMENT

F ILINGS

A UCC Financing Statement in connection with the Pledged Collateral shall be filed in respect of each Pledgor in the jurisdiction of organization of such Pledgor specified in Schedule 1 ( Jurisdiction of Organization; Principal Executive Office ) hereto.

 

S3-1

Exhibit 10.2

 

 

 

COLLATERAL TRUST AGREEMENT

dated as of March 3, 2009

among

TENET HEALTHCARE CORPORATION,

THE OTHER PLEDGORS

FROM TIME TO TIME PARTY HERETO,

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. ,

as Trustee under the Indenture,

THE OTHER SECURED DEBT REPRESENTATIVES

FROM TIME TO TIME PARTY HERETO ,

and

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. ,

as Collateral Trustee

 

 

 


TABLE OF CONTENTS

 

         Page
ARTICLE 1.    DEFINITIONS; PRINCIPLES OF CONSTRUCTION    2

SECTION 1.1

  Defined Terms    2

SECTION 1.2

  Rules of Interpretation    19
ARTICLE 2.     THE TRUST ESTATES    20

SECTION 2.1

  Declaration of First-Priority Stock Secured Trust    20

SECTION 2.2

  Declaration of Junior Stock Secured Trust    21

SECTION 2.3

  Declaration of First-Priority Asset Secured Trust    22

SECTION 2.4

  Declaration of Junior Asset Secured Trust    23

SECTION 2.5

  Priority of Liens    24

SECTION 2.6

  Restrictions on Enforcement of Junior Stock Liens    25

SECTION 2.7

  Restrictions on Enforcement of Junior Asset Liens    27

SECTION 2.8

  Waiver of Right of Marshalling.    30

SECTION 2.9

  Discretion in Enforcement of First-Priority Liens.    30

SECTION 2.10

  Discretion in Enforcement of First-Priority Obligations.    31

SECTION 2.11

  Insolvency or Liquidation Proceedings    32

SECTION 2.12

  Collateral Shared Equally and Ratably within Class    35
ARTICLE 3.    OBLIGATIONS AND POWERS OF COLLATERAL TRUSTEE    35

SECTION 3.1

  Undertaking of the Collateral Trustee    35

SECTION 3.2

  Subordination of Liens    36

SECTION 3.3

  Enforcement of Liens    37

SECTION 3.4

  Application of Proceeds    37

SECTION 3.5

  Powers of the Collateral Trustee    40

SECTION 3.6

  Documents and Communications    40

SECTION 3.7

  For Sole and Exclusive Benefit of Holders of Secured Obligations    41

SECTION 3.8

  Additional Secured Debt    41
ARTICLE 4.    OBLIGATIONS ENFORCEABLE BY THE COMPANY AND THE OTHER PLEDGORS    42

SECTION 4.1

  Release of Liens on Collateral    42

SECTION 4.2

  Delivery of Copies to Secured Debt Representatives    46

SECTION 4.3

  Collateral Trustee not Required to Serve, File or Record    46

SECTION 4.4

  Release of Liens in Respect of Notes    46
ARTICLE 5.    IMMUNITIES OF THE COLLATERAL TRUSTEE    47

SECTION 5.1

  No Implied Duty    47

SECTION 5.2

  Appointment of Agents and Advisors    47

SECTION 5.3

  Other Agreements    47

SECTION 5.4

  Solicitation of Instructions    47

SECTION 5.5

  Limitation of Liability    48

SECTION 5.6

  Documents in Satisfactory Form    48

SECTION 5.7

  Entitled to Rely    48

SECTION 5.8

  Secured Debt Default    48

 

i


SECTION 5.9

  Actions by Collateral Trustee    48

SECTION 5.10

  Security or Indemnity in favor of the Collateral Trustee    49

SECTION 5.11

  Rights of the Collateral Trustee    49

SECTION 5.12

  Limitations on Duty of Collateral Trustee in Respect of Collateral    50

SECTION 5.13

  Assumption of Rights, Not Assumption of Duties    51

SECTION 5.14

  No Liability for Clean Up of Hazardous Materials    51
ARTICLE 6.    RESIGNATION AND REMOVAL OF THE COLLATERAL TRUSTEE    51

SECTION 6.1

  Resignation or Removal of Collateral Trustee    51

SECTION 6.2

  Appointment of Successor Collateral Trustee    51

SECTION 6.3

  Succession    52

SECTION 6.4

  Merger, Conversion or Consolidation of Collateral Trustee    52
ARTICLE 7.    MISCELLANEOUS PROVISIONS    53

SECTION 7.1

  Amendment.    53

SECTION 7.2

  Voting    55

SECTION 7.3

  Further Assurances; Insurance    56

SECTION 7.4

  Perfection of Junior Trust Estates    57

SECTION 7.5

  Successors and Assigns    57

SECTION 7.6

  Delay and Waiver    58

SECTION 7.7

  Notices    58

SECTION 7.8

  Notice Following Discharge of First-Priority Lien Obligations    59

SECTION 7.9

  Entire Agreement    59

SECTION 7.10

  Compensation; Expenses    59

SECTION 7.11

  Indemnity    60

SECTION 7.12

  Severability    61

SECTION 7.13

  Headings    61

SECTION 7.14

  Obligations Secured    61

SECTION 7.15

  Governing Law    61

SECTION 7.16

  Consent to Jurisdiction    61

SECTION 7.17

  Waiver of Jury Trial    62

SECTION 7.18

  Counterparts    62

SECTION 7.19

  Effectiveness    62

SECTION 7.20

  Additional Pledgors    62

SECTION 7.21

  Continuing Nature of this Agreement    63

SECTION 7.22

  Insolvency    64

SECTION 7.23

  Rights and Immunities of Secured Debt Representatives    64

EXHIBIT A — Additional Secured Debt Designation

EXHIBIT B — Form of Collateral Trust Joinder—Additional Secured Debt

EXHIBIT C — Form of Collateral Trust Joinder—Additional Pledgors

 

ii


This Collateral Trust Agreement (this Agreement ) is dated as of March 3, 2009 and is by and among Tenet Healthcare Corporation, a Nevada corporation (the Company ), the other Pledgors from time to time party hereto, The Bank of New York Mellon Trust Company, N.A., as Trustee (as defined below), the other Secured Debt Representatives from time to time party hereto and The Bank of New York Mellon Trust Company, N.A., as Collateral Trustee (in such capacity and together with its successors in such capacity, the Collateral Trustee ).

RECITALS

Capitalized terms used in this Agreement have the meanings assigned to them above or in Article 1 below.

The Company has completed an exchange offer on the date hereof pursuant to which eligible holders of $914,834,000 in the aggregate of the Company’s outstanding 6.375% Senior Notes due 2011 and $484,453,000 in the aggregate of the Company’s outstanding 6.500% Senior Notes due 2012 have tendered their notes in exchange for $699,543,000 in aggregate principal amount of 9.0% Senior Secured Notes due 2015 (the “ 6-Year Notes ”) and $699,543,000 in aggregate principal amount of 10.0% Senior Secured Notes due 2018 (the “ 9-Year Notes ” and, together with the 6-Year Notes, the “ Notes ”). The Notes will be issued pursuant to an Indenture, dated as of November 6, 2001, between the Company and The Bank of New York Mellon Trust Company, N.A., as successor trustee (in such capacity and together with its successors in such capacity, the Trustee ) (the Base Indenture and as the same may be amended or supplemented, amended and restated or otherwise modified and in effect from time to time, including, with respect to the 6-Year Notes, by the Ninth Supplemental Indenture, and, with respect to the 9-Year Notes, by the Tenth Supplemental Indenture, the Indenture ).

The Company and the other Pledgors intend to secure the Notes and any future First-Priority Stock Secured Debt on a priority basis and, subject to such priority, intend to secure any future Junior Stock Secured Debt, with Liens on all present and future Stock Collateral to the extent that such Liens have been provided for in the applicable Stock Lien Security Documents. The Company and the other Pledgors also intend to secure the Notes (A) Equally and Ratably with any future First-Priority Asset Secured Debt on a priority basis and (B) Equally and Ratably with, or prior to, any future Junior Asset Secured Debt, with Liens on Asset Collateral to the extent that such Liens have been provided for in the applicable Asset Lien Security Documents.

This Agreement sets forth the terms on which each Secured Party has appointed the Collateral Trustee to act as the collateral trustee for the present and future holders of the Secured Obligations to receive, hold, maintain, administer and distribute the Collateral at any time delivered to the Collateral Trustee or the subject of the Security Documents, and to enforce the Security Documents and all interests, rights, powers and remedies of the Collateral Trustee with respect thereto or thereunder and the Proceeds thereof.

AGREEMENT

In consideration of the premises and the mutual agreements herein set forth, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement hereby agree as follows:


ARTICLE 1. DEFINITIONS; PRINCIPLES OF CONSTRUCTION

SECTION 1.1 Defined Terms . The following terms will have the following meanings:

6-Year Notes has the meaning set forth in the recitals.

75% Requirement has the meaning set forth in Section 7.1(c).

9-Year Notes has the meaning set forth in the recitals.

Act of Required Debtholders means, as to any matter at any time:

(1) prior to the Discharge of First-Priority Asset Secured Obligations and the Discharge of First-Priority Stock Secured Obligations, a direction in writing delivered to the Collateral Trustee by or with the written consent of the holders of more than 50% of the sum of:

(a) the aggregate outstanding principal amount of First-Priority Asset Secured Debt and First-Priority Stock Secured Debt (including, in each case, outstanding letters of credit whether or not then available or drawn); and

(b) other than in connection with the exercise of remedies, the aggregate unfunded commitments to extend credit which, when funded, would constitute First-Priority Asset Secured Debt or First-Priority Stock Secured Debt; and

(2) at any time after both the Discharge of First-Priority Asset Secured Obligations and the Discharge of First-Priority Stock Secured Obligations, a direction in writing delivered to the Collateral Trustee by or with the written consent of the holders of more than 50% of the sum of:

(a) the aggregate outstanding principal amount of Junior Asset Secured Debt and Junior Stock Secured Debt (including, in each case, outstanding letters of credit whether or not then available or drawn); and

(b) other than in connection with the exercise of remedies, the aggregate unfunded commitments to extend credit which, when funded, would constitute Junior Asset Secured Debt or Junior Stock Secured Debt.

For purposes of this definition, (a) Secured Debt registered in the name of, or beneficially owned by, the Company or any Affiliate of the Company will be deemed not to be outstanding and (b) votes will be determined in accordance with Section 7.2. Any such Act of Required Debtholders shall be accompanied by a certificate signed by an authorized officer of each First-Priority Lien Representative, in the case of clause (1) above, or of each Junior Lien Representative, in the case of clause (2) above, certifying that such written direction is being delivered to the Collateral Trustee by the requisite number of holders for such written direction to constitute an Act of Required Debtholders, and the Collateral Trustee may rely conclusively on, and shall be fully protected in relying upon, such certificate in proceeding with any direction set forth in such Act of Required Debtholders.

 

2


Act of Required Asset Secured Debtholders means, as to any matter at any time:

(1) prior to the Discharge of First-Priority Asset Secured Obligations, a direction in writing delivered to the Collateral Trustee by or with the written consent of the holders of more than 50% of the sum of:

(a) the aggregate outstanding principal amount of First-Priority Asset Secured Debt (including outstanding letters of credit whether or not then available or drawn); and

(b) other than in connection with the exercise of remedies, the aggregate unfunded commitments to extend credit which, when funded, would constitute First-Priority Asset Secured Debt; and

(2) at any time after the Discharge of First-Priority Asset Secured Obligations, a direction in writing delivered to the Collateral Trustee by or with the written consent of the holders of Junior Asset Secured Debt representing the Required Junior Asset Secured Debtholders.

For purposes of this definition, (a) Asset Secured Debt registered in the name of, or beneficially owned by, the Company or any Affiliate of the Company will be deemed not to be outstanding and (b) votes will be determined in accordance with Section 7.2. Any such Act of Required Asset Secured Debtholders shall be accompanied by a certificate signed by an authorized officer of each First-Priority Asset Lien Representative, in the case of clause (1) above, or of each Junior Asset Lien Representative, in the case of clause (2) above, certifying that such written direction is being delivered to the Collateral Trustee by the requisite number of holders for such written direction to constitute an Act of Required Asset Secured Debtholders, and the Collateral Trustee may rely conclusively on, and shall be fully protected in relying upon, such certificate in proceeding with any direction set forth in such Act of Required Asset Secured Debtholders.

Act of Required Stock Secured Debtholders means, as to any matter at any time:

(1) prior to the Discharge of First-Priority Stock Secured Obligations, a direction in writing delivered to the Collateral Trustee by or with the written consent of the holders of more than 50% of the sum of:

(a) the aggregate outstanding principal amount of First-Priority Stock Secured Debt (including outstanding letters of credit whether or not then available or drawn); and

(b) other than in connection with the exercise of remedies, the aggregate unfunded commitments to extend credit which, when funded, would constitute First-Priority Stock Security Debt; and

 

3


(2) at any time after the Discharge of First-Priority Stock Secured Obligations, a direction in writing delivered to the Collateral Trustee by or with the written consent of the holders of Junior Stock Secured Debt representing the Required Junior Stock Secured Debtholders.

For purposes of this definition, (a) Stock Secured Debt registered in the name of, or beneficially owned by, the Company or any Affiliate of the Company will be deemed not to be outstanding and (b) votes will be determined in accordance with Section 7.2. Any such Act of Required Stock Secured Debtholders shall be accompanied by a certificate signed by an authorized officer of each First-Priority Stock Lien Representative, in the case of clause (1) above, or of each Junior Stock Lien Representative, in the case of clause (2) above, certifying that such written direction is being delivered to the Collateral Trustee by the requisite number of holders for such written direction to constitute an Act of Required Stock Secured Debtholders, and the Collateral Trustee may rely conclusively on, and shall be fully protected in relying upon, such certificate in proceeding with any direction set forth in such Act of Required Stock Secured Debtholders.

Additional Secured Debt has the meaning set forth in Section 3.8.

“Additional Secured Debt Designation” means a notice in substantially the form of Exhibit A .

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”), when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.

Agreement has the meaning set forth in the preamble.

Asset Collateral means, in the case of each Series of Asset Secured Debt, all properties and assets of the Company and the other Pledgors now owned or hereafter acquired, other than Stock Collateral, in which Liens have been granted to the Collateral Trustee to secure the Asset Secured Obligations, and shall exclude any properties and assets in which the Collateral Trustee is required to release its Liens pursuant to Section 3.2; provided , that, if such Liens are required to be released as a result of the sale, transfer or other disposition of any properties or assets of the Company or any other Pledgor, such assets or properties will cease to be excluded from the Collateral if the Company or any other Pledgor thereafter acquires or reacquires such assets or properties.

Asset Lien Security Documents means this Agreement, each Collateral Trust Joinder relating to Asset Secured Debt, and all security agreements, pledge agreements, collateral assignments, mortgages, collateral agency agreements, control agreements, deeds of trust or other grants or transfers for security executed and delivered by the Company or any other Pledgor creating (or purporting to create) a Lien upon Asset Collateral in favor of the Collateral Trustee, for the benefit of the Asset Secured Parties, in each case, as amended, modified, renewed, restated or replaced, in whole or in part, from time to time, in accordance with its terms and Section 7.1.

 

4


Asset Secured Debt means First-Priority Asset Secured Debt and Junior Asset Secured Debt.

Asset Secured Debt Documents means First-Priority Asset Lien Documents and Junior Asset Lien Documents.

Asset Secured Debt Representative means each First-Priority Asset Lien Representative and each Junior Asset Lien Representative.

Asset Secured Obligations means First-Priority Asset Secured Obligations and Junior Asset Secured Obligations.

Asset Secured Parties means the holders of Asset Secured Obligations, the Asset Secured Debt Representatives on behalf of the holders of Asset Secured Obligations, and the Collateral Trustee.

Base Indenture has the meaning set forth in the recitals.

Board of Directors means (1) with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board, (2) with respect to a partnership, the Board of Directors of the general partner of the partnership, (3) with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof and (4) with respect to any other Person, the board or committee of such Person serving a similar function.

Business Day means any day other than a Saturday, a Sunday or a day on which banking institutions in the City of New York or at a place of payment are authorized by law, regulations or executive order to remain closed.

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 interests (whether general or limited) or membership interests; 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,

but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.

 

5


Class means (1) in the case of First-Priority Stock Secured Debt, every Series of First-Priority Stock Secured Debt, taken together, (2) in the case of Junior Stock Secured Debt, every Series of Junior Stock Secured Debt, taken together, (3) in the case of First-Priority Asset Secured Debt, every Series of First-Priority Asset Secured Debt, taken together, and (4) in the case of Junior Asset Secured Debt, every Series of Junior Asset Secured Debt, taken together.

Collateral means Asset Collateral and Stock Collateral.

Collateral Trustee has the meaning set forth in the preamble.

Collateral Trust Joinder means (1) with respect to the provisions of this Agreement relating to any Additional Secured Debt, an agreement substantially in the form of Exhibit B and (2) with respect to the provisions of this Agreement relating to the addition of additional Pledgors, an agreement substantially in the form of Exhibit C .

Company has the meaning set forth in the preamble.

Consolidated Subsidiaries means those Subsidiaries that are consolidated with the Company for financial reporting purposes.

Contractual Obligations of any Person means any obligation, agreement, undertaking or similar provision of any Security Instrument issued by such Person or of any agreement, undertaking, contract, lease, indenture, mortgage, deed of trust or other instrument (excluding a Secured Debt Document) to which such Person is a party or by which it or any of its property is bound or to which any of its property is subject.

Credit Agreement means the Credit Agreement, dated as of November 16, 2006, as amended by Amendment No. 1 dated as of June 27, 2008, among the Company, the lenders and issuers party thereto, Citicorp USA, Inc., as administrative agent, Bank of America, N.A., as syndication agent, Citigroup Global Markets Inc. and Banc of America Securities LLC, as joint lead arrangers and joint lead book runners, and General Electric Capital Corporation and The Bank of Nova Scotia, as co-documentation agents, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, and, in each case, as amended, restated, modified, renewed, refunded, replaced (whether upon or after termination or otherwise) or refinanced by any other Debt (including by means of sales of debt securities and including any amendment, restatement, modification, renewal, refunding, replacement or refinancing) in whole or in part from time to time.

Debt means, with respect to any specified Person, any debt of such Person in respect of borrowed money, including Guarantees related thereto.

Discharge of First-Priority Asset Secured Obligations means the occurrence of all of the following:

(1) termination or expiration of all commitments to extend credit that would constitute First-Priority Asset Secured Debt;

(2) payment in full in cash of the principal of and interest and premium (if any) on all First-Priority Asset Secured Debt (other than any undrawn letters of credit);

 

6


(3) discharge or cash collateralization (at the lower of (A) 105% of the aggregate undrawn amount and (B) the percentage of the aggregate undrawn amount required for release of liens under the terms of the applicable First-Priority Asset Lien Document) of all outstanding letters of credit constituting First-Priority Asset Secured Debt; and

(4) payment in full in cash of all other First-Priority Asset Secured Obligations that are outstanding and unpaid at the time the First-Priority Asset Secured Debt is paid in full in cash (other than any obligations for taxes, costs, indemnifications, reimbursements, damages and other liabilities in respect of which no claim or demand for payment has been made at such time).

Discharge of First-Priority Stock Secured Obligations means the occurrence of all of the following:

(1) termination or expiration of all commitments to extend credit that would constitute First-Priority Stock Secured Debt;

(2) payment in full in cash of the principal of and interest and premium (if any) on all First-Priority Stock Secured Debt (other than any undrawn letters of credit);

(3) discharge or cash collateralization (at the lower of (A) 105% of the aggregate undrawn amount and (B) the percentage of the aggregate undrawn amount required for release of liens under the terms of the applicable First-Priority Stock Lien Document) of all outstanding letters of credit constituting First-Priority Stock Secured Debt; and

(4) payment in full in cash of all other First-Priority Stock Secured Obligations that are outstanding and unpaid at the time the First-Priority Stock Secured Debt is paid in full in cash (other than any obligations for taxes, costs, indemnifications, reimbursements, damages and other liabilities in respect of which no claim or demand for payment has been made at such time).

Discharge of Junior Asset Secured Obligations means the occurrence of all of the following:

(1) termination or expiration of all commitments to extend credit that would constitute Junior Asset Secured Debt;

(2) payment in full in cash of the principal of and interest and premium (if any) on all Junior Asset Secured Debt (other than any undrawn letters of credit);

(3) discharge or cash collateralization (at the lower of (A) 105% of the aggregate undrawn amount and (B) the percentage of the aggregate undrawn amount required for release of liens under the terms of the applicable Junior Asset Lien Document) of all outstanding letters of credit constituting Junior Asset Secured Debt; and

 

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(4) payment in full in cash of all other Junior Asset Secured Obligations that are outstanding and unpaid at the time the Junior Asset Secured Debt is paid in full in cash (other than any obligations for taxes, costs, indemnifications, reimbursements, damages and other liabilities in respect of which no claim or demand for payment has been made at such time).

Discharge of Junior Stock Secured Obligations means the occurrence of all of the following:

(1) termination or expiration of all commitments to extend credit that would constitute Junior Stock Secured Debt;

(2) payment in full in cash of the principal of and interest and premium (if any) on all Junior Stock Secured Debt (other than any undrawn letters of credit);

(3) discharge or cash collateralization (at the lower of (A) 105% of the aggregate undrawn amount and (B) the percentage of the aggregate undrawn amount required for release of liens under the terms of the applicable Junior Stock Lien Document) of all outstanding letters of credit constituting Junior Stock Secured Debt; and

(4) payment in full in cash of all other Junior Stock Secured Obligations that are outstanding and unpaid at the time the Junior Stock Secured Debt is paid in full in cash (other than any obligations for taxes, costs, indemnifications, reimbursements, damages and other liabilities in respect of which no claim or demand for payment has been made at such time).

Domestic Hospital Subsidiaries means each of the Company’s current and future direct and indirect Subsidiaries organized in a jurisdiction in the United States that (1) owns or operates a hospital or (2) has a direct or indirect equity ownership interest in a Subsidiary that owns or operates a hospital, other than, in each of the cases (1) and (2), any such Subsidiary that is a non-wholly-owned Subsidiary if the organizational documents thereof or related joint venture or similar agreements, or applicable law, would (i) prohibit the pledge of the Capital Stock of such Subsidiary without the consent of the equity holders thereof (other than the Company or its wholly owned Subsidiaries) or (ii) upon the making of such pledge, trigger in favor of the equity holders thereof (other than the Company or its wholly owned Subsidiaries) rights in respect of the Capital Stock of such Subsidiary.

Equally and Ratably means, in reference to sharing of Liens or Proceeds thereof as between holders of Secured Obligations within the same Class, that such Liens or Proceeds:

(1) will be allocated and distributed in accordance with Section 3.4 first to the Secured Debt Representative for each outstanding Series of Secured Debt within that Class, for the account of the holders of such Series of Secured Debt, ratably in proportion to the principal of, and interest and premium (if any) and reimbursement obligations (contingent or otherwise) with respect to letters of credit (if any) (whether or not drawings have been made under such letters of credit) outstanding on each outstanding Series of Secured Debt within that Class when the allocation or distribution is made, and thereafter

 

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(2) will be allocated and distributed in accordance with Section 3.4 (if any remain after payment in full of all of the amounts referred to in paragraph (1) above) to the Secured Debt Representative for each outstanding Series of Secured Obligations within that Class, for the account of the holders of any remaining Secured Obligations within that Class, ratably in proportion to the aggregate unpaid amount of such remaining Secured Obligations within that Class (with written notice to the applicable Secured Debt Representative and the Collateral Trustee) prior to the date such distribution is made.

First-Priority Asset Lien means a Lien granted by an Asset Lien Security Document to the Collateral Trustee, at any time, upon any property of the Company or any other Pledgor to secure First-Priority Asset Secured Obligations.

First-Priority Asset Lien Documents means the indenture, credit agreement or other agreement pursuant to which any First-Priority Asset Secured Obligations are incurred and the Asset Lien Security Documents (other than any Asset Lien Security Documents that do not secure First-Priority Asset Secured Obligations).

First-Priority Asset Lien Representative means in the case of any Series of First-Priority Asset Secured Debt, the trustee, agent or representative of the holders of such Series of First-Priority Asset Secured Debt who maintains the transfer register for such Series of First-Priority Asset Secured Debt and (A) is appointed as a representative of the First-Priority Asset Secured Debt (for purposes related to the administration of the Asset Lien Security Documents) pursuant to the credit agreement, indenture or other agreement governing such Series of First-Priority Asset Secured Debt and (B) has executed a Collateral Trust Joinder.

First-Priority Asset Secured Debt means any Debt (including the Notes and any additional Notes) that is secured by a First-Priority Asset Lien on the Asset Collateral that was permitted to be incurred and so secured under each applicable Asset Secured Debt Document; provided , that in the case of any such Debt:

(a) on or before the date on which such Debt is incurred by the Company or any Subsidiary, such Debt is designated by the Company as “First-Priority Asset Secured Debt” for the purposes of the Asset Secured Debt Documents in an Additional Secured Debt Designation executed and delivered in accordance with Section 3.8(a); provided , that no Obligation or Debt may be designated as both Junior Asset Secured Debt and First-Priority Asset Secured Debt;

(b) the First-Priority Asset Lien Representative for such Debt executes and delivers a Collateral Trust Joinder in accordance with Section 3.8(b); and

(c) all other requirements set forth in Section 3.8 have been complied with.

First-Priority Asset Secured Obligations means the First-Priority Asset Secured Debt and all other Obligations in respect thereof.

First-Priority Asset Secured Trust Estate has the meaning set forth in Section 2.3.

 

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First-Priority Lien Obligations means the First-Priority Asset Secured Obligations and the First-Priority Stock Secured Obligations.

First-Priority Lien Representative means each First-Priority Asset Lien Representative and each First-Priority Stock Lien Representative.

First-Priority Stock Lien means a Lien granted by a Stock Lien Security Document to the Collateral Trustee, at any time, upon any property of the Company or any other Pledgor to secure First-Priority Stock Secured Obligations.

First-Priority Stock Lien Documents means the Note Documents and the indenture, credit agreement or other agreement pursuant to which any First-Priority Stock Secured Obligations are incurred and the Stock Lien Security Documents (other than any Stock Lien Security Documents that do not secure First-Priority Stock Secured Obligations).

First-Priority Stock Lien Representative means:

(1) in the case of the Notes, the Trustee; or

(2) in the case of any other Series of First-Priority Stock Secured Debt, the trustee, agent or representative of the holders of such Series of First-Priority Stock Secured Debt who maintains the transfer register for such Series of First-Priority Stock Secured Debt and (A) is appointed as a representative of the First-Priority Stock Secured Debt (for purposes related to the administration of the Stock Lien Security Documents) pursuant to the credit agreement, indenture or other agreement governing such Series of First-Priority Stock Secured Debt and (B) has executed a Collateral Trust Joinder.

First-Priority Stock Secured Debt means:

(1) the Notes issued on the date hereof (including any related exchange notes);

(2) any other Debt (including additional Notes) that is secured Equally and Ratably with the Notes by a First-Priority Stock Lien that was permitted to be incurred and so secured under each applicable Stock Secured Debt Document; provided , that in the case of any such Debt:

(a) on or before the date on which such Debt is incurred by the Company or any Subsidiary, such Debt is designated by the Company as “First-Priority Stock Secured Debt” for the purposes of the Stock Secured Debt Documents in an Additional Secured Debt Designation executed and delivered in accordance with Section 3.8(a); provided , that no Obligation or Debt may be designated as both Junior Stock Secured Debt and First-Priority Stock Secured Debt;

(b) the First-Priority Stock Lien Representative for such Debt executes and delivers a Collateral Trust Joinder in accordance with Section 3.8(b); and

 

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(c) all other requirements set forth in Section 3.8 have been complied with.

First-Priority Stock Secured Obligations means the First-Priority Stock Secured Debt and all other Obligations in respect thereof.

First-Priority Stock Secured Trust Estate has the meaning set forth in Section 2.1.

GAAP means generally accepted accounting principles in the United States of America as in effect from time to time set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and the statements and pronouncements of the Financial Accounting Standards Board, or in such other statements by such other entity (such as International Financial Reporting Standards) as may be in general use by significant segments of the accounting profession, that are applicable to the circumstances as of the date of determination.

Governmental Authority means any nation, sovereign or government, any state or other political subdivision thereof and any entity or authority exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any central bank or stock exchange.

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, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Debt.

Guarantors means, collectively, each Person from time to time party to the Supplemental Indentures as a Guarantor.

Indemnified Liabilities means any and all liabilities (including all environmental liabilities), obligations, losses, damages, penalties, actions, judgments, suits, costs, taxes, expenses or disbursements of any kind or nature whatsoever with respect to the execution, delivery, performance, administration or enforcement of this Agreement or any of the other Security Documents, including any of the foregoing relating to the use of proceeds of any Secured Debt or the violation of, noncompliance with or liability under, any law (including environmental laws) applicable to or enforceable against the Company, any of its Subsidiaries or any other Pledgor or any of the Collateral and all reasonable costs and expenses (including reasonable fees and expenses of legal counsel selected by the Indemnitee) incurred by any Indemnitee in connection with any claim, action, investigation or proceeding in any respect relating to any of the foregoing, whether or not suit is brought.

Indemnitee has the meaning set forth in Section 7.11(a).

Indenture has the meaning set forth in the recitals.

 

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Insolvency or Liquidation Proceeding means:

(1) any case commenced by or against the Company or any other Pledgor under Title 11, U.S. Code or any similar federal or state law for the relief of debtors, any other proceeding for the reorganization, recapitalization or adjustment, protection, relief, composition or marshalling of the assets or liabilities of the Company or any other Pledgor, any receivership or assignment for the benefit of creditors relating to the Company or any other Pledgor or any similar case or proceeding relative to the Company or any other Pledgor 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 Company or any other Pledgor, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency;

(3) any case or proceeding seeking the appointment of a custodian, receiver, trustee or other similar official for the Company or any other Pledgor; or

(4) any other proceeding of any type or nature in which substantially all claims of creditors of the Company or any other Pledgor are determined and any payment or distribution is or may be made on account of such claims.

Junior Asset Lien means a Lien granted by an Asset Lien Security Document to the Collateral Trustee, at any time, upon any property of the Company or any other Pledgor to secure Junior Asset Secured Obligations.

Junior Asset Lien Documents means, collectively, any indenture, credit agreement or other agreement governing each Series of Junior Asset Secured Debt and the Asset Lien Security Documents (other than any Asset Lien Security Documents that do not secure Junior Asset Secured Obligations).

Junior Asset Lien Representative means, in the case of any Series of Junior Asset Secured Debt, the trustee, agent or representative of the holders of such Series of Junior Asset Secured Debt who maintains the transfer register for such Series of Junior Asset Secured Debt and (A) is appointed as a Junior Asset Lien Representative (for purposes related to the administration of the Asset Lien Security Documents) pursuant to the indenture, credit agreement or other agreement governing such Series of Junior Asset Secured Debt, together with its successors in such capacity and (B) has executed a Collateral Trust Joinder.

Junior Asset Secured Debt means any Debt that is secured by a Junior Asset Lien on the Asset Collateral that was permitted to be incurred and so secured under each applicable Asset Secured Debt Document; provided , that in the case of any such Debt:

(1) on or before the date on which such Debt is incurred by the Company or any Subsidiary, such Debt is designated by the Company as “Junior Asset Secured Debt” for the purposes of the Asset Secured Debt Documents in an Additional Secured Debt Designation executed and delivered in accordance with Section 3.8(a); provided , that no Obligation or Debt may be designated as both Junior Asset Secured Debt and First-Priority Asset Secured Debt;

 

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(2) the Junior Asset Lien Representative for such Debt executes and delivers a Collateral Trust Joinder in accordance with Section 3.8(b); and

(3) all other requirements set forth in Section 3.8 have been complied with.

Junior Asset Secured Obligations means Junior Asset Secured Debt and all other Obligations in respect thereof.

Junior Asset Secured Trust Estate has the meaning set forth in Section 2.4.

Junior Lien Obligations means the Junior Asset Secured Obligations and the Junior Stock Secured Obligations.

Junior Lien Representative means each Junior Asset Lien Representative and each Junior Stock Lien Representative.

Junior Stock Lien means a Lien granted by a Stock Lien Security Document to the Collateral Trustee, at any time, upon any property of the Company or any other Pledgor to secure Junior Stock Secured Obligations.

Junior Stock Lien Documents means, collectively, any indenture, credit agreement or other agreement governing each Series of Junior Stock Secured Debt and the Stock Lien Security Documents (other than any Stock Lien Security Documents that do not secure Junior Stock Secured Obligations).

Junior Stock Lien Representative means, in the case of any Series of Junior Stock Secured Debt, the trustee, agent or representative of the holders of such Series of Junior Stock Secured Debt who maintains the transfer register for such Series of Junior Stock Secured Debt and (A) is appointed as a Junior Stock Lien Representative (for purposes related to the administration of the Stock Lien Security Documents) pursuant to the indenture, credit agreement or other agreement governing such Series of Junior Stock Secured Debt, together with its successors in such capacity and (B) has executed a Collateral Trust Joinder.

Junior Stock Secured Debt means any Debt that is secured by a Junior Stock Lien on the Stock Collateral that was permitted to be incurred and so secured under each applicable Stock Secured Debt Document; provided , that in the case of any such Debt:

(1) on or before the date on which such Debt is incurred by the Company or any Subsidiary, such Debt is designated by the Company as “Junior Stock Secured Debt” for the purposes of the Stock Secured Debt Documents in an Additional Secured Debt Designation executed and delivered in accordance with Section 3.8(a); provided , that no Obligation or Debt may be designated as both Junior Stock Secured Debt and First-Priority Stock Secured Debt;

(2) the Junior Stock Lien Representative for such Debt executes and delivers a Collateral Trust Joinder in accordance with Section 3.8(b); and

 

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(3) all other requirements set forth in Section 3.8 have been complied with.

Junior Stock Secured Obligations means Junior Stock Secured Debt and all other Obligations in respect thereof.

Junior Stock Secured Trust Estate has the meaning set forth in Section 2.2.

Liens means liens, mortgages, pledges, charges, security interests or other encumbrances.

Ninth Supplemental Indenture means the Ninth Supplemental Indenture, dated as of the date hereof, among the Company, the Guarantors from time to time party thereto and the Trustee.

Notes has the meaning set forth in the recitals.

Note Documents means the Indenture, the Notes, the Note Guarantees and the Security Documents.

Note Guarantees means the Guarantee by each Guarantor of the Company’s obligations under the Indenture and the Notes, executed pursuant to the provisions of the Indenture.

Obligations means any principal (including reimbursement and collateralization obligations with respect to letters of credit whether or not drawn), interest (including all interest accrued thereon after the commencement of any Insolvency or Liquidation Proceeding at the rate, including any applicable post-default rate, specified in the First-Priority Stock Lien Documents and the First-Priority Asset Lien Documents, even if such interest is not enforceable, allowable or allowed as a claim in such proceeding), premium (if any), fees, indemnifications, reimbursements, expenses and other liabilities payable under the documentation governing any Debt.

Officers’ Certificate means a certificate with respect to compliance with a definition, covenant, condition or any other provision provided for in this Agreement, signed on behalf of the Company by two officers of the Company, one of whom must be the principal executive officer, the principal financial officer, the treasurer or the principal accounting officer of the Company, including:

(1) a statement that the Person making such certificate has read such definition, covenant, condition or other provision;

(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate are based;

(3) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such definition, covenant, condition or other provision has been satisfied; and

 

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(4) a statement as to whether or not, in the opinion of such Person, such definition, covenant, condition or other provision has been satisfied and/or that the action directed is authorized and permitted.

Permitted Asset Secured Debt means Asset Secured Debt permitted to be incurred by the Indenture in aggregate principal amount not to exceed $75.0 million.

Permitted Credit Agreement Debt means Debt outstanding under the Credit Agreement in aggregate principal amount not to exceed $800.0 million.

Permitted Prior Asset Liens means:

(1) Liens existing on the date hereof securing the Permitted Credit Agreement Debt or any replacement Liens thereof;

(2) Liens securing the Permitted Asset Secured Debt;

(3) Liens existing on the date of entry into any Asset Secured Debt Document, provided that such Liens have not been subordinated to the Liens securing the Asset Secured Debt governed by such Asset Secured Debt Document;

(4) Liens in respect of capital lease obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation or improvement of property, plant or equipment used in the business of the Company or any Pledgor; or

(5) Liens that arise by operation of law and are not voluntarily granted, to the extent entitled by law to priority over the Liens created by the Asset Lien Security Documents

in each case, as designated by the Company as a “Permitted Prior Asset Lien” pursuant to an Officers’ Certificate delivered to the Collateral Trustee. The Company will deliver to each Asset Secured Debt Representative a copy of each Officers’ Certificate delivered to the Collateral Trustee pursuant to the foregoing sentence.

Permitted Prior Stock Liens means Liens that arise by operation of law and are not voluntarily granted, to the extent entitled by law to priority over the Liens created by the Stock Lien Security Documents, as designated by the Company as a “Permitted Prior Stock Lien” pursuant to an Officers’ Certificate delivered to the Collateral Trustee. The Company will deliver to each Stock Secured Debt Representative a copy of each Officers’ Certificate delivered to the Collateral Trustee pursuant to the foregoing sentence.

Person means any individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof.

 

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Pledgors means the Company and any other Person (if any) that at any time provides collateral security for any Secured Obligations.

Proceeds means any and all cash, securities and other property realized from collection, sale, foreclosure or enforcement of the Liens upon (i) any Asset Collateral (including distributions of Asset Collateral in satisfaction of any Asset Secured Obligations) after payment of any applicable Permitted Prior Asset Liens or (ii) any Stock Collateral (including distributions of Stock Collateral in satisfaction of any Stock Secured Obligations) after payment of any applicable Permitted Prior Stock Liens.

Required Junior Asset Secured Debtholders means, at any time, the holders of more than 50% of the sum of:

(1) the aggregate outstanding principal amount of Junior Asset Secured Debt (including outstanding letters of credit whether or not then available or drawn); and

(2) other than in connection with the exercise of remedies, the aggregate unfunded commitments to extend credit which, when funded, would constitute Junior Asset Secured Debt.

For purposes of this definition, (a) Junior Asset Secured Debt registered in the name of, or beneficially owned by, the Company or any Affiliate of the Company will be deemed not to be outstanding, and (b) votes will be determined in accordance with the provisions of Section 7.2. Any written direction or consent from the Required Junior Asset Secured Debtholders shall be accompanied by a certificate signed by an authorized officer of each Junior Asset Lien Representative certifying that such written direction or consent is being delivered to the Collateral Trustee by the requisite number of holders to constitute the Required Junior Asset Secured Debtholders, and the Collateral Trustee may rely conclusively on, and shall be fully protected in relying upon, such certificate in proceeding with any such written direction or consent.

Required Junior Stock Secured Debtholders means, at any time, the holders of more than 50% of the sum of:

(1) the aggregate outstanding principal amount of Junior Stock Secured Debt (including outstanding letters of credit whether or not then available or drawn); and

(2) other than in connection with the exercise of remedies, the aggregate unfunded commitments to extend credit which, when funded, would constitute Junior Stock Secured Debt.

For purposes of this definition, (a) Junior Stock Secured Debt registered in the name of, or beneficially owned by, the Company or any Affiliate of the Company will be deemed not to be outstanding, and (b) votes will be determined in accordance with the provisions of Section 7.2. Any written direction or consent from the Required Junior Stock Secured Debtholders shall be accompanied by a certificate signed by an authorized officer of each Junior Stock Lien Representative certifying that such written direction or consent is being delivered to the Collateral Trustee by the requisite number of holders to constitute the Required Junior Stock Secured Debtholders, and the Collateral Trustee may rely conclusively on, and shall be fully protected in relying upon, such certificate in proceeding with any such written direction or consent.

 

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Requirement of Law means, with respect to any Person, the common law and all federal, state, local and foreign laws, treaties, rules and regulations, orders, judgments, decrees and other determinations of, concessions, grants, franchises, licenses and other Contractual Obligations with, any Governmental Authority or arbitrator, applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.

Secured Debt means Asset Secured Debt and Stock Secured Debt.

Secured Debt Default means any event or condition which, under the terms of any credit agreement, indenture or other agreement governing any Series of Secured Debt causes, or permits holders of Secured Debt outstanding thereunder (with or without the giving of notice or lapse of time, or both, and whether or not notice has been given or time has lapsed) to cause, the Secured Debt outstanding thereunder to become immediately due and payable.

Secured Debt Documents means Asset Secured Debt Documents and Stock Secured Debt Documents.

Secured Debt Representative means each Asset Secured Debt Representative and each Stock Secured Debt Representative.

Secured Obligations means Asset Secured Obligations and Stock Secured Obligations.

Secured Parties means Asset Secured Parties and Stock Secured Parties.

Security Documents means the Asset Lien Security Documents and the Stock Lien Security Documents.

Security Instrument means any Capital Stock, voting trust certificate, bond, debenture, note or other evidence of indebtedness, whether secured, unsecured, convertible or subordinated, or any certificate of interest, share or participation in, any temporary or interim certificate for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing, but shall not include any evidence of the Secured Obligations.

Series of Asset Secured Debt means, severally, each Series of First-Priority Asset Secured Debt and each Series of Junior Asset Secured Debt.

Series of First-Priority Asset Secured Debt means, severally, each issue or series of First-Priority Asset Secured Debt for which a single transfer register is maintained.

Series of First-Priority Stock Secured Debt means, severally, the 6-Year Notes, the 9-Year Notes and each other issue or series of First-Priority Stock Secured Debt for which a single transfer register is maintained.

 

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Series of Junior Asset Secured Debt means, severally, each issue or series of Junior Asset Secured Debt for which a single transfer register is maintained.

Series of Junior Stock Secured Debt means, severally, each issue or series of Junior Stock Secured Debt for which a single transfer register is maintained.

Series of Notes means, severally, the 6-Year Notes, the 9-Year Notes and each other issue or series of notes issued pursuant to the Indenture for which a single transfer register is maintained.

Series of Secured Debt means, severally, each Series of Stock Secured Debt and each Series of Asset Secured Debt.

Series of Stock Secured Debt means, severally, each Series of First-Priority Stock Secured Debt and each Series of Junior Stock Secured Debt.

Stock Collateral means, in the case of each Series of Stock Secured Debt, the Capital Stock of the Company’s Domestic Hospital Subsidiaries, and shall exclude any such Capital Stock in which the Collateral Trustee is required to release its Liens pursuant to Section 3.2; provided , that, if such Liens are required to be released as a result of the sale, transfer or other disposition of any such Capital Stock, such Capital Stock will cease to be excluded from the Collateral if the Company or any other Pledgor thereafter acquires or reacquires that Capital Stock.

Stock Lien Security Documents means this Agreement, each Collateral Trust Joinder relating to Stock Secured Debt, and all security agreements, pledge agreements, collateral assignments, collateral agency agreements, control agreements or other grants or transfers for security executed and delivered by the Company or any other Pledgor creating (or purporting to create) a Lien upon Stock Collateral in favor of the Collateral Trustee, for the benefit of the Stock Secured Parties, in each case, as amended, modified, renewed, restated or replaced, in whole or in part, from time to time, in accordance with its terms and Section 7.1.

Stock Secured Debt means First-Priority Stock Secured Debt and Junior Stock Secured Debt.

Stock Secured Debt Documents means the First-Priority Stock Lien Documents and the Junior Stock Lien Documents.

Stock Secured Debt Representative means each First-Priority Stock Lien Representative and each Junior Stock Lien Representative.

Stock Secured Obligations means First-Priority Stock Secured Obligations and Junior Stock Secured Obligations.

Stock Secured Parties means the holders of Stock Secured Obligations, the Stock Secured Debt Representatives on behalf of the holders of Stock Secured Obligations, and the Collateral Trustee.

 

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Subsidiary means, with respect to any Person,

(1) any corporation, limited liability company, association or other business entity of which more than 50% of the outstanding voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, managing members or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more other Subsidiaries of that Person (or a combination thereof); and

(2) any partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are such Person or one or more Subsidiaries of such Person (or any combination thereof).

Supplemental Indentures ” means the Ninth Supplemental Indenture and the Tenth Supplemental Indenture.

Tenth Supplemental Indenture means the Tenth Supplemental Indenture, dated as of the date hereof, among the Company, the Guarantors from time to time party thereto and the Trustee.

Trustee has the meaning set forth in the recitals.

Trust Estates has the meaning set forth in Section 2.4.

UCC means the Uniform Commercial Code as in effect in the State of New York or any other applicable jurisdiction.

Voting Stock of any specified 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 1.2 Rules of Interpretation .

(a) All terms used in this Agreement that are defined in Article 9 of the UCC and not otherwise defined herein have the meanings assigned to them in Article 9 of the UCC.

(b) Unless otherwise indicated, any reference to any agreement or instrument will be deemed to include a reference to that agreement or instrument as assigned, amended, supplemented, amended and restated, or otherwise modified and in effect from time to time or replaced in accordance with the terms of this Agreement.

(c) The use in this Agreement or any of the other Security Documents of the word “include” or “including,” when following any general statement, term or matter, will not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not nonlimiting language (such as “without limitation” or “but not limited to” or words of similar import) is used with reference thereto, but will be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter. The word “will” shall be construed to have the same meaning and effect as the word “shall.”

 

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(d) References to “Sections,” “clauses,” “recitals” and the “preamble” will be to Sections, clauses, recitals and the preamble, respectively, of this Agreement unless otherwise specifically provided. References to “Articles” will be to Articles of this Agreement unless otherwise specifically provided. References to “Exhibits” and “Schedules” will be to Exhibits and Schedules, respectively, to this Agreement unless otherwise specifically provided.

(e) Notwithstanding anything to the contrary in this Agreement, any references contained herein to any section, clause, paragraph, definition or other provision of the Indenture (including any definition contained therein) shall be deemed to be a reference to such section, clause, paragraph, definition or other provision as in effect on the date of this Agreement; provided , that any reference to any such section, clause, paragraph or other provision shall refer to such section, clause, paragraph or other provision of the Indenture (including any definition contained therein) as amended or modified from time to time if such amendment or modification has been made in accordance with the Indenture.

(f) Each of this Agreement and the other Security Documents will be construed without regard to the identity of the party who drafted it and as though the parties participated equally in drafting it. Consequently, each of the parties acknowledges and agrees that any rule of construction that a document is to be construed against the drafting party will not be applicable either to this Agreement or the other Security Documents.

ARTICLE 2. THE TRUST ESTATES

SECTION 2.1 Declaration of First-Priority Stock Secured Trust .

To secure the payment of the First-Priority Stock Secured Obligations and in consideration of the mutual agreements set forth in this Agreement, each of the Pledgors hereby grants to the Collateral Trustee, and the Collateral Trustee hereby accepts and agrees to hold, in trust under this Agreement for the benefit of all present and future holders of First-Priority Stock Secured Obligations, all of such Pledgor’s right, title and interest in, to and under all Stock Collateral granted to the Collateral Trustee under any Stock Lien Security Document for the benefit of the holders of First-Priority Stock Secured Obligations, together with all of the Collateral Trustee’s right, title and interest in, to and under the Stock Lien Security Documents, and all interests, rights, powers and remedies of the Collateral Trustee thereunder or in respect thereof and all cash and non-cash Proceeds thereof (collectively, the First-Priority Stock Secured Trust Estate ).

The Collateral Trustee and its successors and assigns under this Agreement will hold the First-Priority Stock Secured Trust Estate in trust for the benefit solely and exclusively of all present and future holders of First-Priority Stock Secured Obligations as security for the payment of all present and future First-Priority Stock Secured Obligations.

 

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Notwithstanding the foregoing, if at any time:

(1) all Liens securing the First-Priority Stock Secured Obligations have been released as provided in Section 4.1;

(2) the Collateral Trustee holds no other property in trust as part of the First-Priority Stock Secured Trust Estate;

(3) no monetary obligation (other than indemnification and other contingent obligations not then due and payable and letters of credit that have been cash collateralized as provided in clause (3) of the definition of “ Discharge of First-Priority Stock Secured Obligations ”) is outstanding and payable under this Agreement to the Collateral Trustee or any of its co-trustees or agents (whether in an individual or representative capacity); and

(4) the Company delivers to the Collateral Trustee an Officers’ Certificate stating that all First-Priority Stock Liens of the Collateral Trustee have been released in compliance with all applicable provisions of the First-Priority Stock Lien Documents and that the Pledgors are not required by any First-Priority Stock Lien Document to grant any First-Priority Stock Lien upon any property,

then the First-Priority Stock Secured Trust Estate will terminate, except that all provisions set forth in Sections 7.10, 7.11 and 7.21 that are enforceable by the Collateral Trustee or any of its co-trustees or agents (whether in an individual or representative capacity) will remain enforceable in accordance with their terms.

The parties further declare and covenant that the First-Priority Stock Secured Trust Estate will be held and distributed by the Collateral Trustee subject to the further agreements herein.

SECTION 2.2 Declaration of Junior Stock Secured Trust .

To secure the payment of the Junior Stock Secured Obligations, if any, and in consideration of the premises and the mutual agreements set forth herein, each of the Pledgors hereby grants to the Collateral Trustee, and the Collateral Trustee hereby accepts and agrees to hold, in trust under this Agreement for the benefit of any future holders of Junior Stock Secured Obligations, all of such Pledgor’s right, title and interest in, to and under all Stock Collateral granted to the Collateral Trustee under any Stock Lien Security Document for the benefit of the holders of Junior Stock Secured Obligations, together with all of the Collateral Trustee’s right, title and interest in, to and under the Stock Lien Security Documents, and all interests, rights, powers and remedies of the Collateral Trustee thereunder or in respect thereof and all cash and non-cash Proceeds thereof (collectively, the Junior Stock Secured Trust Estate ).

The Collateral Trustee and its successors and assigns under this Agreement will hold the Junior Stock Secured Trust Estate in trust for the benefit solely and exclusively of any future holders of Junior Stock Secured Obligations as security for the payment of any future Junior Stock Secured Obligations.

 

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Notwithstanding the foregoing, if at any time:

(1) all Liens securing the Junior Stock Secured Obligations have been released as provided in Section 4.1;

(2) the Collateral Trustee holds no other property in trust as part of the Junior Stock Secured Trust Estate;

(3) no monetary obligation (other than indemnification and other contingent obligations not then due and payable and letters of credit that have been cash collateralized as provided in clause (3) of the definition of “ Discharge of Junior Stock Secured Obligations ”) is outstanding and payable under this Agreement to the Collateral Trustee or any of its co-trustees or agents (whether in an individual or representative capacity); and

(4) the Company delivers to the Collateral Trustee an Officers’ Certificate stating that all Junior Stock Liens of the Collateral Trustee have been released in compliance with all applicable provisions of the Junior Stock Lien Documents and that the Pledgors are not required by any Junior Stock Lien Document to grant any Junior Stock Lien upon any property,

then the Junior Stock Secured Trust Estate will terminate, except that all provisions set forth in Sections 7.10, 7.11 and 7.21 that are enforceable by the Collateral Trustee or any of its co-trustees or agents (whether in an individual or representative capacity) will remain enforceable in accordance with their terms.

The parties further declare and covenant that the Junior Stock Secured Trust Estate will be held and distributed by the Collateral Trustee subject to the further agreements herein.

SECTION 2.3 Declaration of First-Priority Asset Secured Trust .

To secure the payment of the First-Priority Asset Secured Obligations, if any, and in consideration of the mutual agreements set forth in this Agreement, each of the Pledgors hereby grants to the Collateral Trustee, and the Collateral Trustee hereby accepts and agrees to hold, in trust under this Agreement for the benefit of any future holders of First-Priority Asset Secured Obligations, all of such Pledgor’s right, title and interest in, to and under all Asset Collateral granted to the Collateral Trustee under any Asset Lien Security Document for the benefit of the holders of First-Priority Asset Secured Obligations, together with all of the Collateral Trustee’s right, title and interest in, to and under the Asset Lien Security Documents, and all interests, rights, powers and remedies of the Collateral Trustee thereunder or in respect thereof and all cash and non-cash Proceeds thereof (collectively, the First-Priority Asset Secured Trust Estate ).

The Collateral Trustee and its successors and assigns under this Agreement will hold the First-Priority Asset Secured Trust Estate in trust for the benefit solely and exclusively of any future holders of First-Priority Asset Secured Obligations as security for the payment of any future First-Priority Asset Secured Obligations.

 

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Notwithstanding the foregoing, if at any time:

(1) all Liens securing the First-Priority Asset Secured Obligations have been released as provided in Section 4.1;

(2) the Collateral Trustee holds no other property in trust as part of the First-Priority Asset Secured Trust Estate;

(3) no monetary obligation (other than indemnification and other contingent obligations not then due and payable and letters of credit that have been cash collateralized as provided in clause (3) of the definition of “ Discharge of First-Priority Asset Secured Obligations ”) is outstanding and payable under this Agreement to the Collateral Trustee or any of its co-trustees or agents (whether in an individual or representative capacity); and

(4) the Company delivers to the Collateral Trustee an Officers’ Certificate stating that all First-Priority Asset Liens of the Collateral Trustee have been released in compliance with all applicable provisions of the First-Priority Asset Lien Documents and that the Pledgors are not required by any First-Priority Asset Lien Document to grant any First-Priority Asset Lien upon any property,

then the First-Priority Asset Secured Trust Estate will terminate, except that all provisions set forth in Sections 7.10, 7.11 and 7.21 that are enforceable by the Collateral Trustee or any of its co-trustees or agents (whether in an individual or representative capacity) will remain enforceable in accordance with their terms.

The parties further declare and covenant that the First-Priority Asset Secured Trust Estate will be held and distributed by the Collateral Trustee subject to the further agreements herein.

SECTION 2.4 Declaration of Junior Asset Secured Trust .

To secure the payment of the Junior Asset Secured Obligations, if any, and in consideration of the premises and the mutual agreements set forth herein, each of the Pledgors hereby grants to the Collateral Trustee, and the Collateral Trustee hereby accepts and agrees to hold, in trust under this Agreement for the benefit of any future holders of Junior Asset Secured Obligations, all of such Pledgor’s right, title and interest in, to and under all Asset Collateral granted to the Collateral Trustee under any Asset Lien Security Document for the benefit of the holders of Junior Asset Secured Obligations, together with all of the Collateral Trustee’s right, title and interest in, to and under the Asset Lien Security Documents, and all interests, rights, powers and remedies of the Collateral Trustee thereunder or in respect thereof and all cash and non-cash Proceeds thereof (collectively, the Junior Asset Secured Trust Estate ,” and together with the First-Priority Stock Secured Trust Estate, the Junior Stock Secured Trust Estate and the First-Priority Asset Secured Trust Estate, the Trust Estates ).

The Collateral Trustee and its successors and assigns under this Agreement will hold the Junior Asset Secured Trust Estate in trust for the benefit solely and exclusively of any future holders of Junior Asset Secured Obligations as security for the payment of any future Junior Asset Secured Obligations.

 

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Notwithstanding the foregoing, if at any time:

(1) all Liens securing the Junior Asset Secured Obligations have been released as provided in Section 4.1;

(2) the Collateral Trustee holds no other property in trust as part of the Junior Asset Secured Trust Estate;

(3) no monetary obligation (other than indemnification and other contingent obligations not then due and payable and letters of credit that have been cash collateralized as provided in clause (3) of the definition of “ Discharge of Junior Asset Secured Obligations ”) is outstanding and payable under this Agreement to the Collateral Trustee or any of its co-trustees or agents (whether in an individual or representative capacity); and

(4) the Company delivers to the Collateral Trustee an Officers’ Certificate stating that all Junior Asset Liens of the Collateral Trustee have been released in compliance with all applicable provisions of the Junior Asset Lien Documents and that the Pledgors are not required by any Junior Asset Lien Document to grant any Junior Asset Lien upon any property,

then the Junior Asset Secured Trust Estate will terminate, except that all provisions set forth in Sections 7.10, 7.11 and 7.21 that are enforceable by the Collateral Trustee or any of its co-trustees or agents (whether in an individual or representative capacity) will remain enforceable in accordance with their terms.

The parties further declare and covenant that the Junior Asset Secured Trust Estate will be held and distributed by the Collateral Trustee subject to the further agreements herein.

SECTION 2.5 Priority of Liens . Notwithstanding (i) the date, manner or order of grant, attachment or perfection of any First-Priority Asset Lien, First-Priority Stock Lien, Junior Asset Lien or Junior Stock Lien, (ii) any provision of the UCC or any other applicable Requirement of Law, or (iii) anything else contained herein or in any other Security Document or any other circumstance whatsoever, it is the intent of the parties that:

(1) this Agreement and the other Security Documents create four separate and distinct Trust Estates and Liens: (1) the First-Priority Stock Secured Trust Estate and First-Priority Stock Lien securing the payment and performance of the First-Priority Stock Secured Obligations, (2) the Junior Stock Secured Trust Estate and Junior Stock Lien securing the payment and performance of the Junior Stock Secured Obligations, if any, (3) the First-Priority Asset Secured Trust Estate and First-Priority Asset Lien securing the payment and performance of the First-Priority Asset Secured Obligations, if any, and (4) the Junior Asset Secured Trust Estate and Junior Asset Lien securing the payment and performance of the Junior Asset Secured Obligations, if any;

(2) any Liens securing any First-Priority Stock Secured Obligations, whether now or hereafter existing and regardless of how acquired or created, shall be senior and prior to any Liens securing Junior Stock Secured Obligations on such Stock Collateral and shall remain so, whether or not such Lien securing First-Priority Stock Secured Obligations is junior or subordinate to any other Obligation or any other Lien securing any other Obligation;

 

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(3) any Liens securing any First-Priority Asset Secured Obligations, whether now or hereafter existing and regardless of how acquired or created, shall be senior and prior to any Liens securing Junior Asset Secured Obligations on such Asset Collateral and shall remain so, whether or not such Lien securing First-Priority Asset Secured Obligations is junior or subordinate to any other Obligation or any other Lien securing any other Obligation;

(4) any Liens securing any Junior Stock Secured Obligations, whether now or hereafter existing and regardless of how acquired or created, whether by grant, statute, operation of law, subrogation or otherwise, are subject and subordinate to the Liens securing the First-Priority Stock Secured Obligations; and

(5) any Liens securing any Junior Asset Secured Obligations, whether now or hereafter existing and regardless of how acquired or created, whether by grant, statute, operation of law, subrogation or otherwise, are subject and subordinate to any Liens securing any First-Priority Asset Secured Obligations.

SECTION 2.6 Restrictions on Enforcement of Junior Stock Liens .

(a) Until the Discharge of First-Priority Stock Secured Obligations, the holders of First-Priority Stock Secured Obligations will have, subject to the exceptions set forth below in clauses (1) through (4), the exclusive right to authorize and direct the Collateral Trustee with respect to the Stock Lien Security Documents and the Stock Collateral including, without limitation, the exclusive right to authorize or direct the Collateral Trustee to enforce, collect or realize on any Stock Collateral or exercise any other right or remedy with respect to the Stock Collateral and no Junior Stock Lien Representative or holder of Junior Stock Secured Obligations may authorize or direct the Collateral Trustee with respect to such matters. Notwithstanding the foregoing, the holders of Junior Stock Secured Obligations may direct the Collateral Trustee:

(1) without any condition or restriction whatsoever, at any time after the Discharge of First-Priority Stock Secured Obligations;

(2) as necessary to redeem any Stock Collateral in a creditor’s redemption permitted by law or to deliver any notice or demand necessary to enforce (subject to the prior Discharge of First-Priority Stock Secured Obligations) any right to claim, take or receive Proceeds of Stock Collateral remaining after the Discharge of First-Priority Stock Secured Obligations in the event of foreclosure or other enforcement of any Permitted Prior Stock Lien;

(3) as necessary to perfect or establish the priority (subject to First-Priority Stock Liens) of the Junior Stock Liens upon any Stock Collateral, except that the holders of Junior Stock Secured Obligations may not require the Collateral Trustee to take any action to perfect any Stock Collateral through possession or control other than the Collateral Trustee taking any action for possession or control required by the holders

 

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of Junior Stock Liens and the Collateral Trustee agreeing pursuant to Section 7.4 that the Collateral Trustee as agent for the benefit of the holders of First-Priority Stock Secured Obligations agrees to act as agent for the benefit of the holders of Junior Stock Secured Obligations; or

(4) as necessary to create, prove, preserve or protect (but not enforce) the Junior Stock Liens upon any Stock Collateral.

(b) Until the Discharge of First-Priority Stock Secured Obligations, none of the holders of Junior Stock Secured Obligations, the Collateral Trustee on behalf of the holders of the Junior Stock Secured Obligations or any Junior Stock Lien Representative will:

(1) request judicial relief, in an Insolvency or Liquidation Proceeding or in any other court, that would hinder, delay, limit or prohibit the lawful exercise or enforcement of any right or remedy otherwise available to the holders of First-Priority Stock Secured Obligations in respect of the First-Priority Stock Liens or that would limit, invalidate, avoid or set aside any First-Priority Stock Lien or subordinate the First-Priority Stock Liens to the Junior Stock Liens or grant the Junior Stock Liens equal ranking to the First-Priority Stock Liens;

(2) oppose or otherwise contest any motion for relief from the automatic stay or for any injunction against foreclosure or enforcement of First-Priority Stock Liens made by any holder of First-Priority Stock Secured Obligations or any First-Priority Stock Lien Representative in any Insolvency or Liquidation Proceeding;

(3) oppose or otherwise contest any lawful exercise by any holder of First-Priority Stock Secured Obligations or any First-Priority Stock Lien Representative of the right to credit bid First-Priority Stock Secured Debt at any sale in foreclosure of First-Priority Stock Liens;

(4) oppose or otherwise contest any other request for judicial relief made in any court by any holder of First-Priority Stock Secured Obligations or any First-Priority Stock Lien Representative relating to the lawful enforcement of any First-Priority Stock Lien; or

(5) challenge the validity, enforceability, perfection or priority of the First-Priority Stock Liens or this Agreement.

Notwithstanding the foregoing, both before and during an Insolvency or Liquidation Proceeding, the holders of Junior Stock Secured Obligations and the Junior Stock Lien Representatives may take any actions and exercise any and all rights that would be available to a holder of unsecured claims, including, without limitation, the commencement of an Insolvency or Liquidation Proceeding against the Company or any other Pledgor in accordance with applicable law; provided, that the holders of Junior Stock Secured Obligations and the Junior Stock Lien Representatives may not take any of the actions prohibited by clauses (1) through (5) of this Section 2.6(b) or oppose or contest any order that they have agreed not to oppose or contest under Section 2.11.

 

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(c) Without in any way limiting the generality of Section 2.5, at any time prior to the Discharge of First-Priority Stock Secured Obligations and after (1) the commencement of any Insolvency or Liquidation Proceeding in respect of the Company or any other Pledgor or (2) the Collateral Trustee and each Junior Stock Lien Representative have received written notice from any First-Priority Stock Lien Representative at the direction of an Act of Required Stock Secured Debtholders stating that (A) any Series of First-Priority Stock Secured Debt has become due and payable in full (whether at maturity, upon acceleration or otherwise) or (B) the holders of First-Priority Stock Liens securing one or more Series of First-Priority Stock Secured Debt have become entitled under any First-Priority Stock Lien Documents to and desire to enforce any or all of the First-Priority Stock Liens by reason of a default under such First-Priority Stock Lien Documents, no payment of money (or the equivalent of money) shall be made from the Proceeds of Stock Collateral by the Company or any other Pledgor to any Junior Stock Lien Representative or any holder (or to the Collateral Trustee or any Junior Stock Lien Representative, in each case for the benefit of any holder) of Junior Stock Secured Obligations (including, without limitation, payments and prepayments made for application to Junior Stock Secured Obligations and all other payments and deposits made pursuant to any provision of any Junior Stock Lien Document).

(d) All Proceeds of Stock Collateral received by any Junior Stock Lien Representative or any holder (or by the Collateral Trustee or any Junior Stock Lien Representative, in each case for the benefit of any holder) of Junior Stock Secured Obligations in violation of Section 2.6(c) will be held by the Collateral Trustee, the applicable Junior Stock Lien Representative or the applicable holder of Junior Stock Secured Obligations for the account of the holders of First-Priority Stock Liens and remitted to any First-Priority Stock Lien Representative within three (3) days of receipt of such Proceeds. The Junior Stock Liens will remain attached to and enforceable against all Proceeds so held or remitted. All Proceeds of Stock Collateral received by the Collateral Trustee, holders of Junior Stock Secured Obligations and Junior Stock Lien Representatives not in violation of Section 2.6(c) will be received by the Collateral Trustee, holders of Junior Stock Secured Obligations and the Junior Stock Lien Representatives free from the First-Priority Stock Liens and all other Liens except the Junior Stock Liens.

SECTION 2.7 Restrictions on Enforcement of Junior Asset Liens .

(a) Until the Discharge of First-Priority Asset Secured Obligations, the holders of First-Priority Asset Secured Obligations will have, subject to the exceptions set forth below in clauses (1) through (4), the exclusive right to authorize and direct the Collateral Trustee with respect to the Asset Lien Security Documents and the Asset Collateral including, without limitation, the exclusive right to authorize or direct the Collateral Trustee to enforce, collect or realize on any Asset Collateral or exercise any other right or remedy with respect to the Asset Collateral and no Junior Asset Lien Representative or holder of Junior Asset Secured Obligations may authorize or direct the Collateral Trustee with respect to such matters. Notwithstanding the foregoing, the holders of Junior Asset Secured Obligations may direct the Collateral Trustee:

(1) without any condition or restriction whatsoever, at any time after the Discharge of First-Priority Asset Secured Obligations;

 

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(2) as necessary to redeem any Asset Collateral in a creditor’s redemption permitted by law or to deliver any notice or demand necessary to enforce (subject to the prior Discharge of First-Priority Asset Secured Obligations) any right to claim, take or receive Proceeds of Asset Collateral remaining after the Discharge of First-Priority Asset Secured Obligations in the event of foreclosure or other enforcement of any Permitted Prior Asset Lien;

(3) as necessary to perfect or establish the priority (subject to First-Priority Asset Liens) of the Junior Asset Liens upon any Asset Collateral, except that the holders of Junior Asset Secured Obligations may not require the Collateral Trustee to take any action to perfect any Asset Collateral through possession or control other than the Collateral Trustee taking any action for possession or control required by the holders of Junior Asset Liens and the Collateral Trustee agreeing pursuant to Section 7.4 that the Collateral Trustee as agent for the benefit of the holders of First-Priority Asset Secured Obligations agrees to act as agent for the benefit of the holders of Junior Asset Secured Obligations; or

(4) as necessary to create, prove, preserve or protect (but not enforce) the Junior Asset Liens upon any Asset Collateral.

(b) Until the Discharge of First-Priority Asset Secured Obligations, none of the holders of Junior Asset Secured Obligations, the Collateral Trustee on behalf of the holders of the Junior Asset Secured Obligations or any Junior Asset Lien Representative will:

(1) request judicial relief, in an Insolvency or Liquidation Proceeding or in any other court, that would hinder, delay, limit or prohibit the lawful exercise or enforcement of any right or remedy otherwise available to the holders of First-Priority Asset Secured Obligations in respect of the First-Priority Asset Liens or that would limit, invalidate, avoid or set aside any First-Priority Asset Lien or subordinate the First-Priority Asset Liens to the Junior Asset Liens or grant the Junior Asset Liens equal ranking to the First-Priority Asset Liens;

(2) oppose or otherwise contest any motion for relief from the automatic stay or for any injunction against foreclosure or enforcement of First-Priority Asset Liens made by any holder of First-Priority Asset Secured Obligations or any First-Priority Asset Lien Representative in any Insolvency or Liquidation Proceeding;

(3) oppose or otherwise contest any lawful exercise by any holder of First-Priority Asset Secured Obligations or any First-Priority Asset Lien Representative of the right to credit bid First-Priority Asset Secured Debt at any sale in foreclosure of First-Priority Asset Liens;

(4) oppose or otherwise contest any other request for judicial relief made in any court by any holder of First-Priority Asset Secured Obligations or any First-Priority Asset Lien Representative relating to the lawful enforcement of any First-Priority Asset Lien; or

 

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(5) challenge the validity, enforceability, perfection or priority of the First-Priority Asset Liens.

Notwithstanding the foregoing, both before and during an Insolvency or Liquidation Proceeding, the holders of Junior Asset Secured Obligations and the Junior Asset Lien Representatives may take any actions and exercise any and all rights that would be available to a holder of unsecured claims, including, without limitation, the commencement of an Insolvency or Liquidation Proceeding against the Company or any other Pledgor in accordance with applicable law; provided, that the holders of Junior Asset Secured Obligations and the Junior Asset Lien Representatives may not take any of the actions prohibited by clauses (1) through (5) of this Section 2.7(b) or oppose or contest any order that they have agreed not to oppose or contest under Section 2.11.

(c) Without in any way limiting the generality of Section 2.5, at any time prior to the Discharge of First-Priority Asset Secured Obligations and after (1) the commencement of any Insolvency or Liquidation Proceeding in respect of the Company or any other Pledgor or (2) the Collateral Trustee and each Junior Asset Lien Representative have received written notice from any First-Priority Asset Lien Representative at the direction of an Act of Required Asset Secured Debtholders stating that (A) any Series of First-Priority Asset Secured Debt has become due and payable in full (whether at maturity, upon acceleration or otherwise) or (B) the holders of First-Priority Asset Liens securing one or more Series of First-Priority Asset Secured Debt have become entitled under any First-Priority Asset Lien Documents to and desire to enforce any or all of the First-Priority Asset Liens by reason of a default under such First-Priority Asset Lien Documents, no payment of money (or the equivalent of money) shall be made from the Proceeds of Asset Collateral by the Company or any other Pledgor to any Junior Asset Lien Representative or any holder (or to the Collateral Trustee or any Junior Asset Lien Representative, in each case for the benefit of any holder) of Junior Asset Secured Obligations (including, without limitation, payments and prepayments made for application to Junior Asset Secured Obligations and all other payments and deposits made pursuant to any provision of any Junior Asset Lien Document).

(d) All Proceeds of Asset Collateral received by any Junior Asset Lien Representative or any holder (or by the Collateral Trustee or any Junior Asset Lien Representative, in each case for the benefit of any holder) of Junior Asset Secured Obligations in violation of Section 2.7(c) will be held by the Collateral Trustee, the applicable Junior Asset Lien Representative or the applicable holder of Junior Asset Secured Obligations for the account of the holders of First-Priority Asset Liens and remitted to any First-Priority Asset Lien Representative within three (3) days of receipt of such Proceeds. The Junior Asset Liens will remain attached to and enforceable against all Proceeds so held or remitted. All Proceeds of Asset Collateral received by the Collateral Trustee, holders of Junior Asset Secured Obligations and Junior Asset Lien Representatives not in violation of Section 2.7(c) will be received by the Collateral Trustee, holders of Junior Asset Secured Obligations and the Junior Asset Lien Representatives free from the First-Priority Asset Liens and all other Liens except the Junior Asset Liens.

 

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SECTION 2.8 Waiver of Right of Marshalling .

(a) Prior to the Discharge of First-Priority Stock Secured Obligations, holders of Junior Stock Secured Obligations, each Junior Stock Lien Representative and the Collateral Trustee may not assert or enforce any right of marshalling accorded to a junior lienholder, as against the holders of First-Priority Stock Secured Obligations and the First-Priority Stock Lien Representatives (in their capacity as priority lienholders).

(b) Following the Discharge of First-Priority Stock Secured Obligations, the holders of Junior Stock Secured Obligations and any Junior Stock Lien Representative may assert their right under the UCC or otherwise to any Proceeds remaining following a sale or other disposition of Stock Collateral by, or on behalf of, the holders of First-Priority Stock Secured Obligations.

(c) Prior to the Discharge of First-Priority Asset Secured Obligations, holders of Junior Asset Secured Obligations, each Junior Asset Lien Representative and the Collateral Trustee may not assert or enforce any right of marshalling accorded to a junior lienholder, as against the holders of First-Priority Asset Secured Obligations and the First-Priority Asset Lien Representatives (in their capacity as priority lienholders).

(d) Following the Discharge of First-Priority Asset Secured Obligations, the holders of Junior Asset Secured Obligations and any Junior Asset Lien Representative may assert their right under the UCC or otherwise to any Proceeds remaining following a sale or other disposition of Asset Collateral by, or on behalf of, the holders of First-Priority Asset Secured Obligations.

SECTION 2.9 Discretion in Enforcement of First-Priority Liens .

(a) In exercising rights and remedies with respect to the Stock Collateral, the holders of First-Priority Stock Secured Obligations may deliver to the Collateral Trustee an Act of Required Stock Secured Debtholders so as to cause the Collateral Trustee to enforce (or refrain from enforcing) the provisions of this Agreement and exercise (or refrain from exercising) remedies hereunder or any such rights and remedies, all in such order and in such manner as may be permitted under this Agreement, including:

(1) the exercise or forbearance from exercise of all rights and remedies in respect of the Stock Collateral and/or the First-Priority Stock Secured Obligations;

(2) the enforcement or forbearance from enforcement of any First-Priority Stock Lien in respect of the Stock Collateral;

(3) the exercise or forbearance from exercise of rights and powers of a holder of shares of stock included in the First-Priority Stock Secured Trust Estate to the extent provided in the Stock Lien Security Documents;

(4) the acceptance of the Stock Collateral in full or partial satisfaction of the First-Priority Stock Secured Obligations; and

 

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(5) the exercise or forbearance from exercise of all rights and remedies of a secured lender under the UCC or any similar law of any applicable jurisdiction or in equity.

(b) In exercising rights and remedies with respect to the Asset Collateral, the holders of First-Priority Asset Secured Obligations may deliver to the Collateral Trustee an Act of Required Asset Secured Debtholders so as to cause the Collateral Trustee to enforce (or refrain from enforcing) the provisions of this Agreement and exercise (or refrain from exercising) remedies hereunder or any such rights and remedies, all in such order and in such manner as may be permitted under this Agreement, including:

(1) the exercise or forbearance from exercise of all rights and remedies in respect of the Asset Collateral and/or the First-Priority Asset Secured Obligations;

(2) the enforcement or forbearance from enforcement of any First-Priority Asset Lien in respect of the Asset Collateral;

(3) the exercise or forbearance from exercise of rights and powers of a holder of shares of stock included in the First-Priority Asset Secured Trust Estate to the extent provided in the Asset Lien Security Documents;

(4) the acceptance of the Asset Collateral in full or partial satisfaction of the First-Priority Asset Secured Obligations; and

(5) the exercise or forbearance from exercise of all rights and remedies of a secured lender under the UCC or any similar law of any applicable jurisdiction or in equity.

SECTION 2.10 Discretion in Enforcement of First-Priority Obligations .

(a) The requisite percentage or number of holders of any Series of First-Priority Stock Secured Debt at the time outstanding as provided for in the applicable First-Priority Stock Lien Documents and the First-Priority Stock Lien Representatives on behalf of the holders of any Series of First-Priority Stock Secured Debt may, at any time and from time to time, without the consent of or notice to holders of Junior Stock Secured Obligations or the Junior Stock Lien Representatives, without incurring responsibility to holders of Junior Stock Secured Obligations and the Junior Stock Lien Representatives and without impairing or releasing the subordination provided in this Agreement or the obligations hereunder of holders of Junior Stock Secured Obligations and the Junior Stock Lien Representatives, do any one or more of the following:

(1) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, the First-Priority Stock Secured Obligations in respect of such Series of First-Priority Stock Secured Debt, or otherwise amend or supplement in any manner such First-Priority Stock Secured Obligations, or any instrument evidencing such First-Priority Stock Secured Obligations or any agreement under which such First-Priority Stock Secured Obligations are outstanding;

 

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(2) release any Person or entity liable in any manner for the collection of such First-Priority Stock Secured Obligations;

(3) release the First-Priority Stock Lien granted by the First-Priority Stock Lien Documents governing any such First-Priority Stock Secured Obligations on all Stock Collateral; and

(4) exercise or refrain from exercising any rights against any Pledgor.

(b) The requisite percentage or number of holders of any Series of First-Priority Asset Secured Debt at the time outstanding as provided for in the applicable First-Priority Asset Lien Documents and the First-Priority Asset Lien Representatives on behalf of the holders of any Series of First-Priority Asset Secured Debt may may, at any time and from time to time, without the consent of or notice to holders of Junior Asset Secured Obligations or the Junior Asset Lien Representatives, without incurring responsibility to holders of Junior Asset Secured Obligations and the Junior Asset Lien Representatives and without impairing or releasing the subordination provided in this Agreement or the obligations hereunder of holders of Junior Asset Secured Obligations and the Junior Asset Lien Representatives, do any one or more of the following:

(1) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, the First-Priority Asset Secured Obligations in respect of such Series of First-Priority Asset Secured Debt, or otherwise amend or supplement in any manner such First-Priority Asset Secured Obligations, or any instrument evidencing such First-Priority Asset Secured Obligations or any agreement under which such First-Priority Asset Secured Obligations are outstanding;

(2) release any Person or entity liable in any manner for the collection of such First-Priority Asset Secured Obligations;

(3) release the First-Priority Asset Lien granted by the First-Priority Asset Lien Documents governing any such First-Priority Asset Secured Obligations on all Asset Collateral; and

(4) exercise or refrain from exercising any rights against any Pledgor.

SECTION 2.11 Insolvency or Liquidation Proceedings .

(a) If in any Insolvency or Liquidation Proceeding and prior to the Discharge of First-Priority Stock Secured Obligations, the holders of First-Priority Stock Secured Obligations by an Act of Required Stock Secured Debtholders consent to any order:

(1) for use of cash collateral;

(2) approving a debtor-in-possession financing secured by a Lien that is senior to or on a parity with all First-Priority Stock Liens upon any property of the estate in such Insolvency or Liquidation Proceeding;

 

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(3) granting any relief on account of First-Priority Stock Secured Obligations as adequate protection (or its equivalent) for the benefit of the holders of First-Priority Stock Secured Obligations in the Stock Collateral subject to First-Priority Stock Liens; or

(4) relating to a sale of assets of the Company or any other Pledgor that provides, to the extent the Stock Collateral sold is to be free and clear of Liens, that all First-Priority Stock Liens and Junior Stock Liens will attach to the proceeds of the sale;

then, the holders of Junior Stock Secured Obligations and the Junior Stock Lien Representatives, in their capacity as holders or representatives of secured claims, will not oppose or otherwise contest the entry of such order, so long as none of the holders of First-Priority Stock Secured Obligations or First-Priority Stock Lien Representatives in any respect opposes or otherwise contests any request made by any holder of Junior Stock Secured Obligations or Junior Stock Lien Representative for the grant to the Collateral Trustee, for the benefit of the holders of Junior Stock Secured Obligations and the Junior Stock Lien Representatives, of a junior Lien upon any property on which a Lien is (or is to be) granted under such order to secure the First-Priority Stock Secured Obligations, co-extensive in all respects with, but subordinated (as set forth in Section 2.5) to, such Lien and all First-Priority Stock Liens on such property.

Notwithstanding the foregoing, both before and during an Insolvency or Liquidation Proceeding, the holders of Junior Stock Secured Obligations and the Junior Stock Lien Representatives may take any actions and exercise any and all rights that would otherwise be available to a holder of unsecured claims, including, without limitation, the commencement of Insolvency or Liquidation Proceedings against any Pledgors in accordance with applicable law; provided, however, that, both before and during an Insolvency or Liquidation Proceeding, the holders of Junior Stock Secured Obligations and the Junior Stock Lien Representatives may not take any of the actions prohibited under Section 2.6(b) or oppose or contest any order that they have agreed not to oppose or contest under clauses (1) through (4) of the preceding paragraph.

(b) The holders of Junior Stock Secured Obligations or any Junior Stock Lien Representative will not file or prosecute in any Insolvency or Liquidation Proceeding any motion for adequate protection (or any comparable request for relief) based upon their interest in the Stock Collateral under the Junior Stock Liens, except that:

(1) they may freely seek and obtain relief: (A) granting a junior Lien co-extensive in all respects with, but subordinated (as set forth in Section 2.5) to, all Liens granted in such Insolvency or Liquidation Proceeding to, or for the benefit of, the holders of First-Priority Stock Secured Obligations; or (B) in connection with the confirmation of any plan of reorganization or similar dispositive restructuring plan; and

(2) they may freely seek and obtain any relief upon a motion for adequate protection (or any comparable relief), without any condition or restriction whatsoever, at any time after the Discharge of First-Priority Stock Secured Obligations.

 

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(c) If in any Insolvency or Liquidation Proceeding and prior to the Discharge of First-Priority Asset Secured Obligations, the holders of First-Priority Asset Secured Obligations by an Act of Required Asset Secured Debtholders consent to any order:

(1) for use of cash collateral;

(2) approving a debtor-in-possession financing secured by a Lien that is senior to or on a parity with all First-Priority Asset Liens upon any property of the estate in such Insolvency or Liquidation Proceeding;

(3) granting any relief on account of First-Priority Asset Secured Obligations as adequate protection (or its equivalent) for the benefit of the holders of First-Priority Asset Secured Obligations in the Asset Collateral subject to First-Priority Asset Liens; or

(4) relating to a sale of assets of the Company or any other Pledgor that provides, to the extent the Asset Collateral sold is to be free and clear of Liens, that all First-Priority Asset Liens and Junior Asset Liens will attach to the proceeds of the sale;

then, the holders of Junior Asset Secured Obligations and the Junior Asset Lien Representatives, in their capacity as holders or representatives of secured claims, will not oppose or otherwise contest the entry of such order, so long as none of the holders of First-Priority Asset Secured Obligations or First-Priority Asset Lien Representatives in any respect opposes or otherwise contests any request made by any holder of Junior Asset Secured Obligations or Junior Asset Lien Representative for the grant to the Collateral Trustee, for the benefit of the holders of Junior Asset Secured Obligations and the Junior Asset Lien Representatives, of a junior Lien upon any property on which a Lien is (or is to be) granted under such order to secure the First-Priority Asset Secured Obligations, co-extensive in all respects with, but subordinated (as set forth in Section 2.5) to, such Lien and all First-Priority Asset Liens on such property.

Notwithstanding the foregoing, both before and during an Insolvency or Liquidation Proceeding, the holders of Junior Asset Secured Obligations and the Junior Asset Lien Representatives may take any actions and exercise any and all rights that would otherwise be available to a holder of unsecured claims, including, without limitation, the commencement of Insolvency or Liquidation Proceedings against any Pledgors in accordance with applicable law; provided, however, that, both before and during an Insolvency or Liquidation Proceeding, the holders of Junior Asset Secured Obligations and the Junior Asset Lien Representatives may not take any of the actions prohibited under Section 2.7(b) or oppose or contest any order that they have agreed not to oppose or contest under clauses (1) through (4) of the preceding paragraph.

(d) The holders of Junior Asset Secured Obligations or any Junior Asset Lien Representative will not file or prosecute in any Insolvency or Liquidation Proceeding any motion for adequate protection (or any comparable request for relief) based upon their interest in the Asset Collateral under the Junior Asset Liens, except that:

(1) they may freely seek and obtain relief: (A) granting a junior Lien co-extensive in all respects with, but subordinated (as set forth in Section 2.5) to, all

 

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Liens granted in such Insolvency or Liquidation Proceeding to, or for the benefit of, the holders of First-Priority Asset Secured Obligations; or (B) in connection with the confirmation of any plan of reorganization or similar dispositive restructuring plan; and

(2) they may freely seek and obtain any relief upon a motion for adequate protection (or any comparable relief), without any condition or restriction whatsoever, at any time after the Discharge of First-Priority Asset Secured Obligations.

SECTION 2.12 Collateral Shared Equally and Ratably within Class . The parties to this Agreement agree that the payment and satisfaction of all of the Secured Obligations within each Class will be secured Equally and Ratably by the Liens established in favor of the Collateral Trustee for the benefit of the Secured Parties belonging to such Class. It is understood and agreed that nothing in this Section 2.12 is intended to alter the priorities among Secured Parties belonging to different Classes as provided in Section 2.5.

ARTICLE 3. OBLIGATIONS AND POWERS OF COLLATERAL TRUSTEE

SECTION 3.1 Undertaking of the Collateral Trustee .

(a) Subject to, and in accordance with, this Agreement, including without limitation Section 5.3, the Collateral Trustee will, as trustee, for the benefit solely and exclusively of the present and future Secured Parties:

(1) accept, enter into, hold, maintain, administer and enforce all Security Documents, including all Collateral subject thereto, and all Liens created thereunder, perform its obligations under the Security Documents and protect, exercise and enforce the interests, rights, powers and remedies granted or available to it under, pursuant to or in connection with the Security Documents;

(2) take all lawful and commercially reasonable actions permitted under the Security Documents that it may deem necessary or advisable to protect or preserve its interest in the Collateral subject thereto and such interests, rights, powers and remedies;

(3) deliver and receive notices pursuant to the Security Documents, as directed in writing by the relevant Secured Debt Representatives;

(4) sell, assign, collect, assemble, foreclose on, institute legal proceedings with respect to, or otherwise exercise or enforce the rights and remedies of a secured party (including a mortgagee, trust deed beneficiary and insurance beneficiary or loss payee) with respect to the Collateral under the Security Documents and its other interests, rights, powers and remedies;

(5) remit as provided in Section 3.4 all cash Proceeds received by the Collateral Trustee from the collection, foreclosure or enforcement of its interest in the Collateral under the Security Documents or any of its other interests, rights, powers or remedies;

 

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(6) execute and deliver amendments to the Security Documents as from time to time authorized pursuant to Section 7.1 accompanied by an Officers’ Certificate to the effect that the amendment was permitted under Section 7.1; and

(7) release any Lien granted to it by any Security Document upon any Collateral if and as required by Section 4.1(c).

(b) Each party to this Agreement acknowledges and consents to the undertaking of the Collateral Trustee set forth in Section 3.1(a) and agrees to each of the other provisions of this Agreement applicable to the Collateral Trustee.

(c) Notwithstanding anything to the contrary contained in this Agreement, the Collateral Trustee will not commence any exercise of remedies or any foreclosure actions or otherwise take any action or proceeding against (i) any of the Stock Collateral (other than actions as necessary to prove, protect or preserve the Liens securing the Stock Secured Obligations) unless and until it shall have been directed by written notice of an Act of Required Stock Secured Debtholders and then only in accordance with the provisions of this Agreement or (ii) any of the Asset Collateral (other than actions as necessary to prove, protect or preserve the Liens securing the Asset Secured Obligations) unless and until it shall have been directed by written notice of an Act of Required Asset Secured Debtholders and then only in accordance with the provisions of this Agreement.

(d) Notwithstanding anything to the contrary contained in this Agreement, no Secured Debt Representative may serve as Collateral Trustee, provided that the Trustee may serve as Collateral Trustee if the Trustee is the Secured Debt Representative for each Series of Secured Debt that is then outstanding.

SECTION 3.2 Subordination of Liens . The Collateral Trustee will not subordinate any Lien of the Collateral Trustee on any Collateral or consent to the subordination of any Lien of the Collateral Trustee on any Collateral, except:

(a) as directed by (i) in the case of Liens on Stock Collateral, an Act of Required Stock Secured Debtholders or (ii) in the case of Liens on Asset Collateral, an Act of Required Asset Secured Debtholders, accompanied, in each case, by an Officers’ Certificate to the effect that the release or subordination was permitted by each applicable Secured Debt Document;

(b) as ordered pursuant to applicable law under a final and nonappealable order or judgment of a court of competent jurisdiction; or

(c) for the subordination of (i) the Junior Stock Secured Trust Estate and the Junior Stock Liens to the First-Priority Stock Secured Trust Estate and the First-Priority Stock Liens or (ii) the Junior Asset Secured Trust Estate and the Junior Asset Liens to the First-Priority Asset Secured Trust Estate and the First-Priority Asset Liens.

 

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SECTION 3.3 Enforcement of Liens .

(a) If the Collateral Trustee at any time receives written notice that any event has occurred that constitutes a default under any Stock Secured Debt Document entitling the Collateral Trustee to foreclose upon, collect or otherwise enforce its Liens on the Stock Collateral hereunder, the Collateral Trustee will promptly deliver written notice thereof to each Stock Secured Debt Representative. Thereafter, the Collateral Trustee may await direction by an Act of Required Stock Secured Debtholders and will act, or decline to act, as directed by an Act of Required Stock Secured Debtholders, in the exercise and enforcement of the Collateral Trustee’s interests, rights, powers and remedies in respect of the Stock Collateral or under the Stock Lien Security Documents or applicable law and, following the initiation of such exercise of remedies, the Collateral Trustee will act, or decline to act, with respect to the manner of such exercise of remedies as directed by an Act of Required Stock Secured Debtholders. Unless it has been directed to the contrary by an Act of Required Stock Secured Debtholders, the Collateral Trustee in any event may (but will not be obligated to) take or refrain from taking such action with respect to any default under any Stock Secured Debt Document as it may deem advisable and in the best interest of the holders of Stock Secured Obligations.

(b) If the Collateral Trustee at any time receives written notice that any event has occurred that constitutes a default under any Asset Secured Debt Document entitling the Collateral Trustee to foreclose upon, collect or otherwise enforce its Liens on the Asset Collateral hereunder, the Collateral Trustee will promptly deliver written notice thereof to each Asset Secured Debt Representative. Thereafter, the Collateral Trustee may await direction by an Act of Required Asset Secured Debtholders and will act, or decline to act, as directed by an Act of Required Asset Secured Debtholders, in the exercise and enforcement of the Collateral Trustee’s interests, rights, powers and remedies in respect of the Asset Collateral or under the Asset Lien Security Documents or applicable law and, following the initiation of such exercise of remedies, the Collateral Trustee will act, or decline to act, with respect to the manner of such exercise of remedies as directed by an Act of Required Asset Secured Debtholders. Unless it has been directed to the contrary by an Act of Required Asset Secured Debtholders, the Collateral Trustee in any event may (but will not be obligated to) take or refrain from taking such action with respect to any default under any Asset Secured Debt Document as it may deem advisable and in the best interest of the holders of Asset Secured Obligations.

SECTION 3.4 Application of Proceeds .

(a) The Collateral Trustee will apply the Proceeds of any collection, sale, foreclosure or other realization upon any Stock Collateral in the following order of application:

FIRST, to the payment of all amounts payable under this Agreement on account of the Collateral Trustee’s reasonable and documented fees, legal fees, costs and expenses or other liabilities of any kind reasonably incurred by the Collateral Trustee or any co-trustee or agent of the Collateral Trustee in connection with any Stock Lien Security Document;

SECOND, to the respective First-Priority Stock Lien Representatives for application to the payment of all outstanding First-Priority Stock Secured Debt and any other First-Priority Stock Secured Obligations that are then due and payable in such order as may be provided in the First-Priority Stock Lien Documents in an amount sufficient to

 

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pay in full in cash all outstanding First-Priority Stock Secured Debt and all other First-Priority Stock Secured Obligations that are then due and payable (including all interest accrued thereon after the commencement of any Insolvency or Liquidation Proceeding at the rate, including any applicable post-default rate, specified in the First-Priority Stock Lien Documents, even if such interest is not enforceable, allowable or allowed as a claim in such proceeding, and including the discharge or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the applicable First-Priority Stock Lien Document) of all outstanding letters of credit, if any, constituting First-Priority Stock Secured Debt);

THIRD, to the respective Junior Stock Lien Representatives for application to the payment of all outstanding Junior Stock Secured Debt and any other Junior Stock Secured Obligations that are then due and payable in such order as may be provided in the Junior Stock Lien Documents in an amount sufficient to pay in full in cash all outstanding Junior Stock Secured Debt and all other Junior Stock Secured Obligations that are then due and payable (including, to the extent legally permitted, all interest accrued thereon after the commencement of any Insolvency or Liquidation Proceeding at the rate, including any applicable post-default rate, specified in the Junior Stock Lien Documents, even if such interest is not enforceable, allowable or allowed as a claim in such proceeding, and including the discharge or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the applicable Junior Stock Lien Document) of all outstanding letters of credit, if any, constituting Junior Stock Secured Debt); and

FOURTH, any surplus remaining after the payment in full in cash of amounts described in the preceding clauses will be paid to the Company or the applicable Pledgor, as the case may be, its successors or assigns, or as a court of competent jurisdiction may direct.

(b) If any Junior Stock Lien Representative or any holder of a Junior Stock Secured Obligation collects or receives any Proceeds of such foreclosure, collection or other enforcement prior to written notice that all First-Priority Stock Secured Obligations have been paid in full in accordance with Section 3.4(a) above, whether after the commencement of an Insolvency or Liquidation Proceeding or otherwise, such Junior Stock Lien Representative or such holder of a Junior Stock Secured Obligation, as the case may be, will forthwith deliver the same to the Collateral Trustee, for the account of the holders of such First-Priority Stock Secured Obligations, to be applied in accordance with Section 3.4(a). Until so delivered, such Proceeds will be segregated and held by that Junior Stock Lien Representative or that holder of a Junior Stock Secured Obligation, as the case may be, in trust for the benefit of the holders of the First-Priority Stock Secured Obligations.

(c) The Collateral Trustee will apply the Proceeds of any collection, sale, foreclosure or other realization upon any Asset Collateral and the Proceeds of any title insurance policy required under any First-Priority Asset Lien Document or Junior Asset Lien Document in the following order of application:

 

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FIRST, to the payment of all amounts payable under this Agreement on account of the Collateral Trustee’s reasonable and documented fees, legal fees, costs and expenses or other liabilities of any kind reasonably incurred by the Collateral Trustee or any co-trustee or agent of the Collateral Trustee in connection with any Asset Lien Security Document;

SECOND, to the respective First-Priority Asset Lien Representatives for application to the payment of all outstanding First-Priority Asset Secured Debt and any other First-Priority Asset Secured Obligations that are then due and payable in such order as may be provided in the First-Priority Asset Lien Documents in an amount sufficient to pay in full in cash all outstanding First-Priority Asset Secured Debt and all other First-Priority Asset Secured Obligations that are then due and payable (including all interest accrued thereon after the commencement of any Insolvency or Liquidation Proceeding at the rate, including any applicable post-default rate, specified in the First-Priority Asset Lien Documents, even if such interest is not enforceable, allowable or allowed as a claim in such proceeding, and including the discharge or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the applicable First-Priority Asset Lien Document) of all outstanding letters of credit, if any, constituting First-Priority Asset Secured Debt);

THIRD, to the respective Junior Asset Lien Representatives for application to the payment of all outstanding Junior Asset Secured Debt and any other Junior Asset Secured Obligations that are then due and payable in such order as may be provided in the Junior Asset Lien Documents in an amount sufficient to pay in full in cash all outstanding Junior Asset Secured Debt and all other Junior Asset Secured Obligations that are then due and payable (including, to the extent legally permitted, all interest accrued thereon after the commencement of any Insolvency or Liquidation Proceeding at the rate, including any applicable post-default rate, specified in the Junior Asset Lien Documents, even if such interest is not enforceable, allowable or allowed as a claim in such proceeding, and including the discharge or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the applicable Junior Asset Lien Document) of all outstanding letters of credit, if any, constituting Junior Asset Secured Debt); and

FOURTH, any surplus remaining after the payment in full in cash of amounts described in the preceding clauses will be paid to the Company or the applicable Pledgor, as the case may be, its successors or assigns, or as a court of competent jurisdiction may direct.

(d) If any Junior Asset Lien Representative or any holder of a Junior Asset Secured Obligation collects or receives any Proceeds of such foreclosure, collection or other enforcement prior to written notice that all First-Priority Asset Secured Obligations have been paid in full in accordance with Section 3.4(c) above, whether after the commencement of an Insolvency or Liquidation Proceeding or otherwise, such Junior Asset Lien Representative or such holder of a Junior Asset Secured Obligation, as the case may be, will forthwith deliver the

 

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same to the Collateral Trustee, for the account of the holders of such First-Priority Asset Secured Obligations, to be applied in accordance with Section 3.4(c). Until so delivered, such Proceeds will be segregated and held by that Junior Asset Lien Representative or that holder of a Junior Asset Secured Obligation, as the case may be, in trust for the benefit of the holders of the First-Priority Asset Secured Obligations.

(e) This section 3.4 is intended for the benefit of, and will be enforceable as a third party beneficiary by, each present and future holder of Secured Obligations, each present and future Secured Debt Representative and the Collateral Trustee as holder of Liens on the Collateral. The Secured Debt Representative of each future Series of Secured Debt will be required to deliver a Collateral Trust Joinder including a lien sharing and priority confirmation as provided in Section 3.8 at the time of incurrence of such Series of Secured Debt.

(f) In connection with the application of Proceeds pursuant to Sections 3.4(a) and (c), except as otherwise directed by an Act of Required Stock Secured Debtholders or an Act of Required Asset Secured Debtholders, as the case may be, the Collateral Trustee may sell any non-cash Proceeds for cash prior to the application of the Proceeds thereof.

SECTION 3.5 Powers of the Collateral Trustee .

(a) The Collateral Trustee is irrevocably authorized and empowered to enter into and perform its obligations and protect, perfect, exercise and enforce its interests, rights, powers and remedies under the Security Documents and applicable law and in equity and to act as set forth in this Article 3 or as requested in any lawful directions given to it from time to time in respect of any matter by (i) an Act of Required Stock Secured Debtholders, if such matter relates to Stock Collateral or (ii) an Act of Required Asset Secured Debtholders, if such matter relates to Asset Collateral.

(b) No Secured Debt Representative or holder of Secured Obligations will have any liability whatsoever for any act or omission of the Collateral Trustee.

SECTION 3.6 Documents and Communications .

(a) The Collateral Trustee will permit each Stock Secured Debt Representative and each holder of Stock Secured Obligations through its Stock Secured Debt Representative upon reasonable written notice from time to time to inspect and copy, at the cost and expense of the party requesting such copies, at such reasonable times during normal business hours and only as often as may be reasonably desired, any and all Stock Lien Security Documents and other documents, notices, certificates, instructions or communications received by the Collateral Trustee in its capacity as such.

(b) The Collateral Trustee will permit each Asset Secured Debt Representative and each holder of Asset Secured Obligations through its Asset Secured Debt Representative upon reasonable written notice from time to time to inspect and copy, at the cost and expense of the party requesting such copies, at such reasonable times during normal business hours and only as often as may be reasonably desired, any and all Asset Lien Security Documents and other documents, notices, certificates, instructions or communications received by the Collateral Trustee in its capacity as such.

 

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SECTION 3.7 For Sole and Exclusive Benefit of Holders of Secured Obligations . The Collateral Trustee will accept, hold, administer and enforce all Liens on the Collateral at any time transferred or delivered to it and all other interests, rights, powers and remedies at any time granted to or enforceable by the Collateral Trustee and all other property of the Trust Estates solely and exclusively for the benefit of the present and future holders of present and future Secured Obligations, and will distribute all Proceeds received by it in realization thereon or from enforcement thereof solely and exclusively pursuant to the provisions of Section 3.4.

SECTION 3.8 Additional Secured Debt .

(a) The Collateral Trustee will, as trustee hereunder, perform its undertakings set forth in Section 3.1(a) with respect to each holder of Secured Obligations of a Series of Secured Debt that is issued or incurred after the date hereof that:

(1) holds Secured Obligations that are identified as First-Priority Stock Secured Debt, Junior Stock Secured Debt, First-Priority Asset Secured Debt or Junior Asset Secured Debt in accordance with the procedures set forth in Section 3.8(b); and

(2) signs, through its designated Secured Debt Representative identified pursuant to Section 3.8(b), a Collateral Trust Joinder and delivers the same to the Collateral Trustee.

(b) The Company will be permitted to designate as an additional holder of Secured Obligations hereunder each Person who is, or who becomes, the registered holder of First-Priority Stock Secured Debt, Junior Stock Secured Debt, First-Priority Asset Secured Debt or Junior Asset Secured Debt incurred by the Company or any other Pledgor after the date of this Agreement in accordance with the terms of all applicable Secured Debt Documents. The Company may only effect such designation by delivering to the Collateral Trustee an Additional Secured Debt Designation:

(1) stating that the Company or such other Pledgor intends to incur additional Secured Debt ( Additional Secured Debt ) which will either be (i) First-Priority Stock Secured Debt permitted by each applicable Stock Secured Debt Document to be secured by a First-Priority Stock Lien Equally and Ratably with all previously existing and future First-Priority Stock Secured Debt, (ii) Junior Stock Secured Debt permitted by each applicable Stock Secured Debt Document to be secured with a Junior Stock Lien Equally and Ratably with all previously existing and future Junior Stock Secured Debt, (iii) First-Priority Asset Secured Debt permitted by each applicable Asset Secured Debt Document to be secured by a First-Priority Asset Lien Equally and Ratably with all previously existing and future First-Priority Asset Secured Debt or (iv) Junior Asset Secured Debt permitted by each applicable Asset Secured Debt Document to be secured with a Junior Asset Lien Equally and Ratably with all previously existing and future Junior Asset Secured Debt;

(2) specifying the name and address of the Secured Debt Representative for such series of Additional Secured Debt for purposes of Section 7.7; and

 

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(3) stating the Company has caused a copy of the Additional Secured Debt Designation to be delivered to (i) each then existing Stock Secured Debt Representative, if the Additional Secured Debt is Stock Secured Debt or (ii) each then existing Asset Secured Debt Representative, if the Additional Secured Debt is Asset Secured Debt.

Although the Company shall be required to deliver a copy of each Additional Secured Debt Designation and each Collateral Trust Joinder to each then existing Stock Secured Debt Representative, if the Additional Secured Debt is Stock Secured Debt, or each then existing Asset Secured Debt Representative, if the Additional Secured Debt is Asset Secured Debt, the failure to so deliver a copy of the Additional Secured Debt Designation and/or Collateral Trust Joinder to any then existing Stock Secured Debt Representative or to any then existing Asset Secured Debt Representative, as the case may be, shall not affect the status of such debt as Additional Secured Debt if the other requirements of this Section 3.8 are complied with. Each of the Collateral Trustee and the other then existing Stock Secured Debt Representatives or the other then existing Asset Secured Debt Representatives, as the case may be, shall have the right to request that the Company use commercially reasonable efforts to provide a copy of any legal opinion of counsel provided to the holders of Additional Secured Debt or their Secured Debt Representative as to the Additional Secured Debt being secured by a valid and perfected security interest; provided, however , that such legal opinion or opinions need not address any collateral of a type or located in a jurisdiction not previously covered by any legal opinion delivered by or on behalf of the Company. Notwithstanding the foregoing, nothing in this Agreement will be construed to allow the Company or any other Pledgor to incur additional Debt unless otherwise permitted by the terms of all applicable Secured Debt Documents.

ARTICLE 4. OBLIGATIONS ENFORCEABLE BY THE COMPANY AND THE OTHER PLEDGORS

SECTION 4.1 Release of Liens on Collateral .

(a) The Collateral Trustee’s Liens upon the Stock Collateral will be released:

(1) in whole, upon (A) payment in full and discharge of all outstanding Stock Secured Debt and all other Stock Secured Obligations that are outstanding, due and payable at the time all of the Stock Secured Debt is paid in full and discharged and (B) termination or expiration of all commitments to extend credit under all Stock Secured Debt Documents and the cancellation or termination or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the applicable Stock Secured Debt Documents) of all outstanding letters of credit, if any, issued pursuant to any Stock Secured Debt Documents;

(2) as to any Stock Collateral that is sold, transferred or otherwise disposed of by the Company or any other Pledgor (including by way of merger or consolidation) to a Person that is not (either before or after such sale, transfer or disposition) the Company or a Guarantor in a transaction or other circumstance that does not violate Section 4.6 of each of the Supplemental Indentures and is not prohibited by

 

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any of the other Stock Secured Debt Documents, at the time of such sale, transfer or other disposition or to the extent of the interest sold, transferred or otherwise disposed of; provided , that the Collateral Trustee’s Liens upon the Stock Collateral will not be released if the sale or disposition is subject to Section 801 of the Base Indenture or Section 9.4 of each of the Supplemental Indentures;

(3) as to any Stock Collateral constituting pledged Capital Stock of a Subsidiary of the Company, upon liquidation and dissolution of that Subsidiary in a transaction that is not prohibited by any of the Stock Secured Debt Documents;

(4) as to any Stock Collateral owned by a Guarantor, upon the release of that Guarantor from its Guarantee in accordance with the terms of the Stock Secured Debt Documents;

(5) as to a release of any or all of the Stock Collateral, if (A) consent to release of that Stock Collateral has been given by the requisite percentage or number of holders of each Series of Stock Secured Debt at the time outstanding as provided for in the applicable Stock Secured Debt Documents and (B) the Company has delivered an Officers’ Certificate to the Collateral Trustee certifying that any such necessary consents have been obtained; and

(6) as otherwise permitted by the Indenture and each other Stock Secured Debt Document.

(b) The Collateral Trustee’s Liens upon the Asset Collateral will be released:

(1) in whole, upon (A) payment in full and discharge of all outstanding Asset Secured Debt and all other Asset Secured Obligations that are outstanding, due and payable at the time all of the Asset Secured Debt is paid in full and discharged and (B) termination or expiration of all commitments to extend credit under all Asset Secured Debt Documents and the cancellation or termination or cash collateralization (at the lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the aggregate undrawn amount required for release of Liens under the terms of the applicable Asset Secured Debt Documents) of all outstanding letters of credit issued pursuant to any Asset Secured Debt Documents;

(2) as to any Asset Collateral that is sold, transferred or otherwise disposed of by the Company or any other Pledgor (including by way of merger or consolidation) to a Person that is not (either before or after such sale, transfer or disposition) the Company or a Guarantor in a transaction or other circumstance that does not violate Section 4.6 of each of the Supplemental Indentures and is not prohibited by any of the other Asset Secured Debt Documents, at the time of such sale, transfer or other disposition or to the extent of the interest sold, transferred or otherwise disposed of; provided , that the Collateral Trustee’s Liens upon the Asset Collateral will not be released if the sale or disposition is subject to Section 801 of the Base Indenture or Section 9.4 of each of the Supplemental Indentures;

 

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(3) as to any Asset Collateral constituting pledged Capital Stock of a Subsidiary of the Company, upon liquidation and dissolution of that Subsidiary in a transaction that is not prohibited by any of the Asset Secured Debt Documents;

(4) as to any Asset Collateral owned by a Guarantor, upon the release of that Guarantor from its Guarantee in accordance with the terms of the Asset Secured Debt Documents;

(5) as to a release of less than all or substantially all of the Asset Collateral, if consent to the release of all First-Priority Asset Liens on such Asset Collateral has been given by an Act of Required Asset Secured Debtholders, in which case both the Collateral Trustee’s First-Priority Asset Lien and its Junior Asset Lien on such Asset Collateral will be released;

(6) as to a release of all or substantially all of the Asset Collateral, if (A) consent to release of that Asset Collateral has been given by the requisite percentage or number of holders of each Series of Asset Secured Debt at the time outstanding as provided for in the applicable Asset Secured Debt Documents and (B) the Company has delivered an Officers’ Certificate to the Collateral Trustee certifying that any such necessary consents have been obtained; and

(7) as otherwise permitted by the Indenture and each other Asset Secured Debt Document.

(c) The Collateral Trustee agrees for the benefit of the Company and the other Pledgors that if the Collateral Trustee at any time receives:

(1) an Officers’ Certificate stating that (A) each signing officer has read Article 4 of this Agreement and understands the provisions and the definitions relating hereto, (B) such officer has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not the conditions precedent in this Agreement and all other Secured Debt Documents, if any, relating to the release of the applicable Collateral have been complied with, (C) in the opinion of such officer, such conditions precedent, if any, have been complied with and, if applicable, (D) in the opinion of such officer, each proposed instrument releasing such Lien as to such property is in recordable form;

(2) the proposed instrument or instruments releasing such Lien as to such property in recordable form, if applicable (as certified in the Officers’ Certificate contemplated in clause (1) above); and

(3) (i) in the case of any release pursuant to Section 4.1(a), prior to the Discharge of First-Priority Stock Secured Obligations, the written confirmation of each First-Priority Stock Lien Representative (or, at any time after the Discharge of First-Priority Stock Secured Obligations, each Junior Stock Lien Representative) (such confirmation to be given following receipt of, and based solely on, the Officers’ Certificate described in clause (1) above) that, in its view, such release is permitted by Section 4.1(a) and the respective Stock Secured Debt Documents governing the Stock

 

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Secured Obligations the holders of which such Stock Secured Debt Representative represents, or (ii) in the case of any release pursuant to Section 4.1(b), prior to the Discharge of First-Priority Asset Secured Obligations, the written confirmation of each First-Priority Asset Lien Representative (or, at any time after the Discharge of First-Priority Asset Secured Obligations, each Junior Asset Lien Representative) (such confirmation to be given following receipt of, and based solely on, the Officers’ Certificate described in clause (1) above) that, in its view, such release is permitted by Section 4.1(b) and the respective Asset Secured Debt Documents governing the Asset Secured Obligations the holders of which such Asset Secured Debt Representative represents;

then the Collateral Trustee will execute (with such acknowledgements and/or notarizations as are required) and deliver such release to the Company or other applicable Pledgor on or before the later of (x) the date specified in such request for such release and (y) the fifth Business Day after the date of receipt of the items required by this Section 4.1(c) by the Collateral Trustee.

(d) The Collateral Trustee hereby agrees that:

(1) in the case of any release pursuant to clause (2) of Section 4.1(a) or Section 4.1(b), if the terms of any such sale, transfer or other disposition require the payment of the purchase price to be contemporaneous with the delivery of the applicable release, then, at the written request of and at the expense of the Company or other applicable Pledgor, the Collateral Trustee will either (A) be present at and deliver the release at the closing of such transaction or (B) deliver the release under customary escrow arrangements that permit such contemporaneous payment and delivery of the release; and

(2) at any time when a Secured Debt Default under a Series of Secured Debt that constitutes Junior Asset Secured Debt has occurred and is continuing and the Collateral Trustee has received notice of such Secured Debt Default, promptly upon but in any event not more than three (3) Business Days after the receipt by it of any Act of Required Asset Secured Debtholders pursuant to Section 4.1(b)(5), the Collateral Trustee will deliver a copy of any such Act of Required Asset Secured Debtholders to each Asset Secured Debt Representative.

(e) Each Secured Debt Representative hereby agrees that:

(1) as soon as reasonably practicable after receipt of an Officers’ Certificate from the Company pursuant to Section 4.1(c)(1) it will, to the extent required by such Section, either provide (A) the written confirmation required by Section 4.1(c)(3), (B) a written statement that such release is not permitted by Section 4.1(a) or Section 4.1(b), as applicable, or (C) a request for further information from the Company reasonably necessary to determine whether the proposed release is permitted by Section 4.1(a) or Section 4.1(b), as applicable, and after receipt of such information such Secured Debt Representative will as soon as reasonably practicable either provide the written confirmation or statement required pursuant to clause (A) or (B), as applicable; and

 

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(2) promptly upon but in any event not more than three (3) Business Days after the receipt by it of any notice from the Collateral Trustee pursuant to Section 4.1(d)(2), such Secured Debt Representative will deliver a copy of such notice to each registered holder of the Series of Secured Debt for which it acts as Secured Debt Representative.

SECTION 4.2 Delivery of Copies to Secured Debt Representatives . The Company will deliver to (i) each Stock Secured Debt Representative, in the case of any release pursuant to Section 4.1(a) or (ii) each Asset Secured Debt Representative, in the case of a release pursuant to Section 4.1(b), a copy of each Officers’ Certificate delivered to the Collateral Trustee pursuant to Section 4.1(c), together with copies of all documents delivered to the Collateral Trustee with such Officers’ Certificate. The Secured Debt Representatives receiving such copies will not be obligated to take notice thereof or to act thereon, subject to Section 4.1(e).

SECTION 4.3 Collateral Trustee not Required to Serve, File or Record . The Collateral Trustee is not required to serve, file, register or record any instrument releasing or subordinating its Liens on any Collateral; provided, however , that if the Company or any other Pledgor shall make a written demand for a termination statement under Section 9-513(c) of the UCC, the Collateral Trustee shall comply with the written request of such Company or Pledgor to comply with the requirements of such UCC provision; provided , further, that the Collateral Trustee must first confirm with the applicable Secured Debt Representatives that the requirements of such UCC provisions have been satisfied.

SECTION 4.4 Release of Liens in Respect of Notes . The Collateral Trustee’s First-Priority Stock Lien and, if applicable, First-Priority Asset Lien will no longer secure any Series of Notes outstanding under the Indenture or any other Obligations in respect of such Series of Notes under the Indenture, and the right of the holders of such Series of Notes and such Obligations to the benefits and Proceeds of the Collateral Trustee’s First-Priority Stock Lien on the Stock Collateral and First-Priority Asset Lien, if any, on the Asset Collateral will terminate and be discharged:

(1) upon satisfaction and discharge of the Indenture as set forth under Article Four of the Base Indenture;

(2) upon a Defeasance or Covenant Defeasance (each as defined under the Supplemental Indentures) of such Series of Notes as set forth under Article Six of the applicable Supplemental Indenture;

(3) upon payment in full and discharge of all of such Series of Notes outstanding under the Indenture and all Obligations in respect of such Series of Notes that are outstanding, due and payable under the Indenture at the time such Series of Notes are paid in full and discharged; or

 

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(4) in whole or in part, with the consent of the holders of the requisite percentage of the Notes then outstanding in respect of such Series of Notes in accordance with Article Nine of the Base Indenture, as supplemented by Article Seven of the applicable Supplemental Indenture.

ARTICLE 5. IMMUNITIES OF THE COLLATERAL TRUSTEE

SECTION 5.1 No Implied Duty . The Collateral Trustee will not have any fiduciary duties nor will it have responsibilities or obligations other than those expressly assumed by it in this Agreement and the other Security Documents. The Collateral Trustee will not be required to take any action that is contrary to applicable law or any provision of this Agreement or the other Security Documents.

SECTION 5.2 Appointment of Agents and Advisors . The Collateral Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, accountants, appraisers or other experts or advisors selected by it in good faith as it may reasonably require and will not be responsible for any misconduct or negligence on the part of any of them.

SECTION 5.3 Other Agreements . The Collateral Trustee has accepted and is bound by the Security Documents executed by the Collateral Trustee as of the date of this Agreement and, as directed by an Act of Required Stock Secured Debtholders or an Act of Required Asset Secured Debtholders, as the case may be, the Collateral Trustee shall execute additional Stock Lien Security Documents or Asset Lien Security Documents, respectively, delivered to it after the date of this Agreement; provided, however , that such additional Security Documents do not adversely affect the rights, privileges, benefits and immunities of the Collateral Trustee; provided, further , that the Collateral Trustee may execute additional Security Documents without the direction of an Act of Required Stock Secured Debtholders or an Act of Required Asset Secured Debtholders if it is executing such additional Security Documents in its capacity other than as Collateral Trustee. The Collateral Trustee will not otherwise be bound by, or be held obligated by, the provisions of any credit agreement, indenture or other agreement governing Secured Debt (other than this Agreement and the other Security Documents). Each Security Document must contain an express statement that it is subject to this Agreement.

SECTION 5.4 Solicitation of Instructions .

(a) The Collateral Trustee may at any time solicit written confirmatory instructions, in the form of an Act of Required Stock Secured Debtholders or an Act of Required Asset Secured Debtholders, as the case may be, an Officers’ Certificate or an order of a court of competent jurisdiction, as to any action that it may be requested or required to take, or that it may propose to take, in the performance of any of its obligations under this Agreement or the other Security Documents.

(b) No written direction given to the Collateral Trustee by an Act of Required Stock Secured Debtholders or an Act of Required Asset Secured Debtholders that in the sole judgment of the Collateral Trustee imposes, purports to impose or might reasonably be expected to impose upon the Collateral Trustee any obligation or liability not set forth in or arising under this Agreement and the other Security Documents will be binding upon the Collateral Trustee unless the Collateral Trustee elects, at its sole option, to accept such direction.

 

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SECTION 5.5 Limitation of Liability . The Collateral Trustee will not be responsible or liable for any action taken or omitted to be taken by it hereunder or under any other Security Document, except for its own negligence, bad faith or willful misconduct as determined by a court of competent jurisdiction.

SECTION 5.6 Documents in Satisfactory Form . The Collateral Trustee will be entitled to require that all agreements, certificates, opinions, instruments and other documents at any time submitted to it, including those expressly provided for in this Agreement, be delivered to it in a form and with substantive provisions reasonably satisfactory to it.

SECTION 5.7 Entitled to Rely . The Collateral Trustee may seek and rely upon, and shall be fully protected in relying upon, any judicial order or judgment, upon any advice, opinion or statement of legal counsel, independent consultants and other experts selected by it in good faith and upon any certification, instruction, notice or other writing delivered to it by the Company or any other Pledgor in compliance with the provisions of this Agreement or delivered to it by any Secured Debt Representative as to the holders of Secured Obligations for whom it acts, without being required to determine the authenticity thereof or the correctness of any fact stated therein or the propriety or validity of service thereof. The Collateral Trustee may act in reliance upon any instrument comporting with the provisions of this Agreement or any signature reasonably believed by it to be genuine and may assume that any Person purporting to give notice or receipt or advice or make any statement or execute any document in connection with the provisions hereof or the other Security Documents has been duly authorized to do so. To the extent an Officers’ Certificate or opinion of counsel is required or permitted under this Agreement to be delivered to the Collateral Trustee in respect of any matter, the Collateral Trustee may rely conclusively on an Officers’ Certificate or opinion of counsel as to such matter and such Officers’ Certificate or opinion of counsel shall be full warranty and protection to the Collateral Trustee for any action taken, suffered or omitted by it under the provisions of this Agreement and the other Security Documents.

SECTION 5.8 Secured Debt Default . The Collateral Trustee will not be required to inquire as to the occurrence or absence of any Secured Debt Default and will not be affected by or required to act upon any notice or knowledge as to the occurrence of any Secured Debt Default unless and until it is directed by an Act of Required Stock Secured Debtholders or an Act of Required Asset Secured Debtholders, as the case may be.

SECTION 5.9 Actions by Collateral Trustee .

(a) As to any matter not expressly provided for by this Agreement or the other Security Documents, the Collateral Trustee will act or refrain from acting as directed by an Act of Required Stock Secured Debtholders or an Act of Required Asset Secured Debtholders, as the case may be, and will be fully protected if it does so, and any action taken, suffered or omitted pursuant hereto or thereto shall be binding on the holders of the applicable Secured Obligations.

 

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(b) The Collateral Trustee shall not be obligated to execute any document whatsoever if in the sole judgment of the Collateral Trustee such document imposes, purports to impose or might reasonably be expected to impose upon the Collateral Trustee any obligation or liability not set forth in or arising under this Agreement or any other Security Document unless the Collateral Trustee elects, at its sole option, to execute such document. Notwithstanding anything to the contrary contained herein, in no event shall the Collateral Trustee be subject to any document that it has not executed.

SECTION 5.10 Security or Indemnity in favor of the Collateral Trustee . The Collateral Trustee will not be required to advance or expend any funds or otherwise incur any financial liability in the performance of its duties or the exercise of its powers or rights hereunder unless it has been provided with security or indemnity reasonably satisfactory to it against any and all liability or expense which may be incurred by it by reason of taking or continuing to take such action.

SECTION 5.11 Rights of the Collateral Trustee . In the event of any conflict between any terms and provisions set forth in this Agreement and those set forth in any other Security Document, the terms and provisions of this Agreement shall supersede and control the terms and provisions of such other Security Document. In the event there is any bona fide, good faith disagreement between the other parties to this Agreement or any of the other Security Documents resulting in adverse claims being made in connection with Collateral held by the Collateral Trustee and the terms of this Agreement or any of the other Security Documents do not unambiguously mandate the action the Collateral Trustee is to take or not to take in connection therewith under the circumstances then existing, or the Collateral Trustee is in doubt as to what action it is required to take or not to take hereunder or under the other Security Documents, it will be entitled to refrain from taking any action (and will incur no liability for doing so) until directed otherwise in writing by a request signed jointly by the parties hereto entitled to give such direction or by order of a court of competent jurisdiction.

In no event shall the Collateral Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its 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 and hardware) services; it being understood that the Collateral Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

In no event shall the Collateral 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 Collateral Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.

The Collateral Trustee agrees to accept and act upon instructions or directions pursuant to this Agreement sent by unsecured e-mail (in .pdf format), facsimile transmission or other similar unsecured electronic methods; provided, however, that (a) the party providing such written instructions, subsequent to such transmission of written instructions, shall provide the originally

 

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executed instructions or directions to the Collateral Trustee in a timely manner, and (b) such originally executed instructions or directions shall be signed by an authorized representative of the party providing such instructions or directions. If the party elects to give the Collateral Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Collateral Trustee in its discretion elects to act upon such instructions, the Collateral Trustee’s understanding of such instructions shall be deemed controlling. The Collateral Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Collateral Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The party providing electronic instructions agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Collateral Trustee, including without limitation the risk of the Collateral Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.

In acting under and by virtue of this Agreement and any Security Document to which the Trustee is subject, the Trustee shall have all of the rights granted to it under the Indenture, all of which are incorporated by reference herein and therein, mutatis mutandis . Furthermore, in acting under this Agreement or any Security Document, all of the rights, protections and immunities granted to the Trustee under the Indenture shall inure to the benefit of the Collateral Trustee hereunder and thereunder.

SECTION 5.12 Limitations on Duty of Collateral Trustee in Respect of Collateral .

(a) Beyond the exercise of reasonable care in the custody of Collateral in its possession, the Collateral Trustee will have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Collateral Trustee will not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any Liens on the Collateral. The Collateral Trustee will be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property, and the Collateral Trustee will not be liable or responsible for any loss or diminution in the value of any of the Collateral by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Collateral Trustee in good faith.

(b) The Collateral Trustee will not be responsible for the existence, genuineness or value of any of the Collateral or for the validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Collateral Trustee, for the validity or sufficiency of the Collateral or any agreement or assignment contained therein, for the validity of the title of any Pledgor to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. The preparation, filing and recordation of any and all financing statements and continuation statements necessary to perfect any Liens on any

 

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Collateral shall be the sole responsibility of the Pledgors, and the Collateral Trustee shall be under no obligation whatsoever to effect such filings. The Collateral Trustee hereby disclaims any representation or warranty to the present and future holders of the Secured Obligations concerning the perfection of the Liens granted hereunder or in the value of any of the Collateral.

SECTION 5.13 Assumption of Rights, Not Assumption of Duties . Notwithstanding anything to the contrary contained herein:

(1) each of the parties thereto will remain liable under each of the Security Documents (other than this Agreement) to the extent set forth therein to perform all of their respective duties and obligations thereunder to the same extent as if this Agreement had not been executed;

(2) the exercise by the Collateral Trustee of any of its rights, remedies or powers hereunder will not release such parties from any of their respective duties or obligations under the other Security Documents; and

(3) the Collateral Trustee will not be obligated to perform any of the obligations or duties of any of the parties thereunder other than the obligations and duties of the Collateral Trustee.

SECTION 5.14 No Liability for Clean Up of Hazardous Materials . In the event that the Collateral Trustee is required or elects to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any fiduciary or trust obligation for the benefit of another, which in the Collateral Trustee’s sole discretion may cause the Collateral Trustee to be considered an “owner or operator” under any environmental laws or otherwise cause the Collateral Trustee to incur, or be exposed to, any environmental liability or any liability under any other federal, state or local law, the Collateral Trustee reserves the right, at any time, instead of taking such action, either to resign as Collateral Trustee or to arrange for the transfer of the title or control of the asset to a court appointed receiver. The Collateral Trustee will not be liable to any Person for any environmental liability or any environmental claims or contribution actions under any federal, state or local law, rule or regulation by reason of the Collateral Trustee’s actions and conduct as authorized, empowered and directed hereunder or relating to any kind of discharge or release or threatened discharge or release of any hazardous materials into the environment.

ARTICLE 6. RESIGNATION AND REMOVAL OF THE COLLATERAL TRUSTEE

SECTION 6.1 Resignation or Removal of Collateral Trustee . The Collateral Trustee may (1) resign at any time by giving not less than 30 days’ notice of resignation to each Secured Debt Representative and the Company (except as otherwise permitted under Section 5.14) and (2) be removed at any time, with or without cause, by an Act of Required Debtholders.

SECTION 6.2 Appointment of Successor Collateral Trustee . Upon any such resignation or removal, a successor Collateral Trustee may be appointed by an Act of Required Debtholders subject to the consent of the Company. If no successor Collateral Trustee has been so appointed and accepted such appointment within 30 days after the predecessor Collateral Trustee gave notice of resignation or was removed, the retiring Collateral Trustee may (at the

 

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expense of the Company), at its option, appoint a successor Collateral Trustee, or petition a court of competent jurisdiction for appointment of a successor Collateral Trustee, which must be a bank or trust company:

(1) authorized to exercise corporate trust powers;

(2) having a combined capital and surplus of at least $250,000,000; and

(3) maintaining an office in New York, New York.

If the Collateral Trustee notifies the Company and each Secured Debt Representative that no qualifying successor Collateral Trustee has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (1) the Collateral Trustee shall be discharged from its duties and obligations hereunder and under any other Secured Debt Document (except that in the case of any physical Collateral held by the Collateral Trustee, the retiring Collateral Trustee shall continue to hold such Collateral as nominee on behalf of the holders of the Secured Obligations until such time as a successor Collateral Trustee is appointed) and (2) all payments, communications and determinations provided to be made by, to or through the Collateral Trustee shall instead be made by or to each applicable Secured Debt Representative directly, until such time as an Act of Required Debtholders (subject to the consent of the Company) appoints a successor Collateral Trustee.

SECTION 6.3 Succession . When the Person so appointed as successor Collateral Trustee accepts such appointment:

(1) such Person will succeed to and become vested with all the rights, powers, privileges and duties of the predecessor Collateral Trustee, and the predecessor Collateral Trustee will be discharged from its duties and obligations hereunder; and

(2) the predecessor Collateral Trustee will (at the expense of the Company) promptly transfer all Liens and collateral security and other property of the Trust Estates within its possession or control to the possession or control of the successor Collateral Trustee and will execute instruments and assignments as may be necessary or desirable or reasonably requested by the successor Collateral Trustee to transfer to the successor Collateral Trustee all Liens, interests, rights, powers and remedies of the predecessor Collateral Trustee in respect of the Security Documents or the Trust Estates.

Thereafter the predecessor Collateral Trustee will remain entitled to enforce the immunities granted to it in Article 5 and the provisions of Sections 7.10 and 7.11.

SECTION 6.4 Merger, Conversion or Consolidation of Collateral Trustee . Any Person into which the Collateral Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Collateral Trustee shall be a party, or any Person succeeding to the business of the Collateral Trustee shall be the successor of the Collateral Trustee pursuant to Section 6.3, provided that (i) without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto, except where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding, such Person

 

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satisfies the eligibility requirements specified in clauses (1) through (3) of Section 6.2 and (ii) prior to any such merger, conversion or consolidation, the Collateral Trustee shall have notified the Company and each Secured Debt Representative thereof in writing, it being understood that failure to so notify the Company and each Secured Debt Representative shall not disrupt the succession of such Person as the successor Collateral Trustee if the other requirements in this Section 6.4 are complied with.

ARTICLE 7. MISCELLANEOUS PROVISIONS

SECTION 7.1 Amendment .

(a) Subject to Section 7.1(c), no amendment or supplement to the provisions of (1) any Stock Lien Security Document will be effective without the approval of the Collateral Trustee acting as directed by an Act of Required Stock Secured Debtholders or (2) any Asset Lien Security Document will be effective without the approval of the Collateral Trustee acting as directed by an Act of Required Asset Secured Debtholders, except that:

(1) any amendment or supplement that has the effect solely of (i) adding or maintaining Collateral, securing additional Secured Debt that was otherwise permitted by the terms of the Secured Debt Documents to be secured by the Collateral or preserving, perfecting or establishing the priority of the Liens thereon or the rights of the Collateral Trustee therein; (ii) curing any ambiguity, defect or inconsistency; (iii) providing for the assumption of the Company’s or another Pledgor’s obligations under any Security Document in the case of a merger or consolidation or sale of all or substantially all of such Pledgor’s assets, as applicable; (iv) releasing a Pledgor from a Security Document and the termination of such Security Document, all in accordance with the provisions of the credit agreement, indenture or other agreement governing such release and termination; or (v) making any change that would provide any additional rights or benefits to the Secured Parties or the Collateral Trustee or that does not adversely affect the legal rights under the Indenture or any other Secured Debt Document of any holder of Notes, any other Secured Party or the Collateral Trustee, will, in each case, become effective when executed and delivered by the Company or any other applicable Pledgor party thereto and the Collateral Trustee;

(2) no amendment or supplement that reduces, impairs or adversely affects the right of any holder of Secured Obligations:

(A) to vote its outstanding Secured Debt as to any matter described as subject to an Act of Required Stock Secured Debtholders or an Act of Required Asset Secured Debtholders (or amends the provisions of this clause (2), the definition of “ Act of Required Stock Secured Debtholders ” or the definition of “ Act of Required Asset Secured Debtholders ”),

(B) to share in the order of application described in Section 3.4 in the Proceeds of enforcement of or realization on any Stock Collateral or any Asset Collateral, as the case may be, that has not been released in accordance with the provisions described in Section 4.1 or

 

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(C) to require that Liens securing Secured Obligations be released only as set forth in the provisions described in Section 4.1,

will become effective without the consent of the requisite percentage or number of holders of each Series of Secured Debt so affected under the applicable Secured Debt Documents; and

(3) no amendment or supplement that imposes any obligation upon the Collateral Trustee or any Secured Debt Representative or adversely affects the rights of the Collateral Trustee or any Secured Debt Representative, respectively, in its capacity as such will become effective without the consent of the Collateral Trustee or such Secured Debt Representative, respectively.

(b) Notwithstanding Section 7.1(a) but subject to Sections 7.1(a)(2) and 7.1(a)(3):

(1) any Stock Lien Security Document that secures Junior Stock Secured Obligations (but not First-Priority Stock Secured Obligations) may be amended or supplemented with the approval of the Collateral Trustee acting as directed in writing by the Required Junior Stock Secured Debtholders, unless such amendment or supplement would not be permitted under the terms of this Agreement or the other First-Priority Stock Lien Documents;

(2) any amendment or waiver of, or any consent under, any provision of this Agreement or any other Stock Lien Security Document that secures First-Priority Stock Secured Obligations will apply automatically to any comparable provision of any comparable Junior Stock Lien Document without the consent of or notice to any holder of Junior Stock Secured Obligations and without any action by the Company or any other Pledgor or any holder of Junior Stock Secured Obligations;

(3) any mortgage or other Asset Lien Security Document that secures Junior Asset Secured Obligations (but not First-Priority Asset Secured Obligations) may be amended or supplemented with the approval of the Collateral Trustee acting as directed in writing by the Required Junior Asset Secured Debtholders, unless such amendment or supplement would not be permitted under the terms of this Agreement or the other First-Priority Asset Lien Documents; and

(4) any amendment or waiver of, or any consent under, any provision of this Agreement or any other Asset Lien Security Document that secures First-Priority Asset Secured Obligations will apply automatically to any comparable provision of any comparable Junior Asset Lien Document without the consent of or notice to any holder of Junior Asset Secured Obligations and without any action by the Company or any other Pledgor or any holder of Junior Asset Secured Obligations.

(c) Notwithstanding anything contained in this Agreement, without the consent of the holders of at least 75% in aggregate principal amount of any Series of Notes then outstanding (the 75% Requirement ), an amendment, supplement, or waiver may not modify the Stock Lien Security Documents relating to such Series of Notes or any of the provisions of

 

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the Indenture dealing with the pledge of Stock Collateral or the application of trust moneys, or otherwise release any Stock Collateral securing such Series of Notes, in any manner materially adverse to the holders of such Series of Notes other than in accordance with the Indenture, this Agreement and any other applicable Stock Lien Security Document; provided, however , that any such amendment, supplement or waiver in furtherance of the terms of the Indenture shall not be subject to the 75% Requirement.

(d) The Collateral Trustee will not enter into any amendment or supplement unless it has received an Officers’ Certificate and a certificate from an authorized officer of each Secured Debt Representative to the effect that such amendment or supplement will not result in a breach of any provision or covenant contained in any of the Secured Debt Documents. Prior to executing any amendment or supplement pursuant to this Section 7.1, the Collateral Trustee will be entitled to receive an opinion of counsel of the Company (which may be provided by internal counsel to the Company) to the effect that the execution of such document is authorized or permitted hereunder, and with respect to amendments adding Collateral, an opinion of counsel of the Company (which may be provided by internal counsel to the Company) addressing customary perfection matters with respect to such additional Collateral (subject to customary qualifications and assumptions).

(e) The holders of Junior Lien Obligations and the Junior Lien Representatives agree that each Security Document that secures Junior Lien Obligations will include the following language:

“Notwithstanding anything herein to the contrary, the lien and security interest granted to the Collateral Trustee pursuant to this Agreement and the exercise of any right or remedy by such Collateral Trustee hereunder are subject to the provisions of the Collateral Trust Agreement, dated as of March 3, 2009, among Tenet Healthcare Corporation, a Nevada corporation, the other Pledgors from time to time party thereto, The Bank of New York Mellon Trust Company, N.A., as Trustee under the Indenture (as defined therein), the other Secured Debt Representatives from time to time party thereto and The Bank of New York Mellon Trust Company, N.A., as Collateral Trustee (as amended, supplemented, amended and restated or otherwise modified and in effect from time to time, the “ Collateral Trust Agreement ”). In the event of any conflict between the terms of the Collateral Trust Agreement and this Agreement, the terms of the Collateral Trust Agreement will govern.”

; provided, however , that if the jurisdiction in which any such Junior Asset Lien Document or any Junior Stock Lien Document will be filed prohibits the inclusion of the language above or would prevent a document containing such language from being recorded, the Junior Lien Representatives and the First-Priority Lien Representatives agree, prior to such Junior Asset Lien Document or Junior Stock Lien Document being entered into, to negotiate in good faith replacement language stating that the lien and security interest granted under such Junior Asset Lien Document or Junior Stock Lien Document is subject to the provisions of this Agreement.

SECTION 7.2 Voting . In connection with any matter under this Agreement requiring a vote of holders of Secured Debt, each Series of Secured Debt will cast its votes in accordance with the Secured Debt Documents governing such Series of Secured Debt. The amount of Secured Debt to be voted by a Series of Secured Debt will equal (1) the aggregate principal

 

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amount of Secured Debt held by such Series of Secured Debt (including outstanding letters of credit whether or not then available or drawn), plus (2) other than in connection with an exercise of remedies, the aggregate unfunded commitments to extend credit which, when funded, would constitute Debt of such Series of Secured Debt. Following and in accordance with the outcome of the applicable vote under its Secured Debt Documents, the Secured Debt Representative of each Series of Secured Debt will cast all of its votes as a block in respect of any vote under this Agreement.

SECTION 7.3 Further Assurances; Insurance .

(a) The Company and each of the other Pledgors will do or cause to be done all acts and things that may be required, or that the Collateral Trustee from time to time may reasonably request, to assure and confirm that the Collateral Trustee holds, for the benefit of the holders of Secured Obligations, duly created and enforceable and perfected Liens upon the Collateral (including any property or assets that are acquired or otherwise become Collateral after the date hereof), in each case as contemplated by, and with the Lien priority required under, the Secured Debt Documents.

(b) Upon the reasonable request of the Collateral Trustee or any Secured Debt Representative at any time and from time to time, the Company and each of the other Pledgors will promptly execute, acknowledge and deliver such security documents, instruments, certificates, notices and other documents, and take such other actions as may be reasonably required, or that the Collateral Trustee may reasonably request, to create, perfect, protect, assure or enforce the Liens and benefits intended to be conferred, in each case as contemplated by the Secured Debt Documents for the benefit of holders of Secured Obligations.

(c) Upon the incurrence by the Company or the other Pledgors of Asset Secured Debt, and in the event the Asset Collateral in respect of such Asset Secured Debt consists of real property or tangible personal property other than Capital Stock, the Company and the other Pledgors will maintain such insurance as may be required by the Asset Lien Security Documents.

(d) All insurance policies required by Section 7.3(c) above will:

(1) provide that, with respect to third party liability insurance, the holders of Asset Secured Obligations, as a class, shall be named as additional insureds, with a waiver of subrogation;

(2) name the Collateral Trustee as a loss payee and additional insured;

(3) provide that (x) no cancellation or termination of such insurance and (y) no reduction in the limits of liability of such insurance or other material change shall be effective until 30 days (10 days in the case of failure to pay premium) after written notice is given by the insurers to the Collateral Trustee of such cancellation, termination, reduction or change;

(4) waive all claims for insurance premiums or commissions or additional premiums or assessments against the Asset Secured Parties; and

 

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(5) waive any right of the insurers to setoff or counterclaim or to make any other deductions, whether by way of attachment or otherwise, as against the Asset Secured Parties.

(f) Upon the request of the Collateral Trustee, the Company and the other Pledgors will permit the Collateral Trustee or any of its agents or representatives, at reasonable times and intervals upon reasonable prior notice, to visit their offices and sites and inspect any of the Asset Collateral and to discuss matters relating to the Asset Collateral with their respective officers and independent public accountants. The Company and the other Pledgors shall, at any reasonable time and from time to time upon reasonable prior notice, permit the Collateral Trustee or any of its agents or representatives to examine and make copies of and abstracts from the records and books of account of the Company and the other Pledgors and their Subsidiaries in respect of the Asset Collateral, all at the Company’s expense.

SECTION 7.4 Perfection of Junior Trust Estates .

(a) Solely for purposes of perfecting the Liens of the Collateral Trustee in its capacity as agent of the holders of Junior Stock Secured Obligations and the Junior Stock Lien Representatives in any portion of the Junior Stock Secured Trust Estate in the possession or control of the Collateral Trustee (or its agents or bailees) as part of the First-Priority Stock Secured Trust Estate, the Collateral Trustee, the holders of First-Priority Stock Secured Obligations and the First-Priority Stock Lien Representatives hereby acknowledge that the Collateral Trustee also holds such property as (1) agent for the benefit of the holders of any Series of Junior Stock Secured Debt in respect of which the Collateral Trustee serves as Junior Stock Lien Representative or (2) bailee for the benefit of the holders of any Series of Junior Stock Secured Debt in respect of which the Collateral Trustee does not serve as Junior Stock Lien Representative.

(b) Solely for purposes of perfecting the Liens of the Collateral Trustee in its capacity as agent of the holders of Junior Asset Secured Obligations and the Junior Asset Lien Representatives in any portion of the Junior Asset Secured Trust Estate in the possession or control of the Collateral Trustee (or its agents or bailees) as part of the First-Priority Asset Secured Trust Estate including, without limitation, any instruments, goods, negotiable documents, tangible chattel paper, electronic chattel paper, certificated securities, money, deposit accounts and securities accounts, the Collateral Trustee, the holders of First-Priority Asset Secured Obligations and the First-Priority Asset Lien Representatives hereby acknowledge that the Collateral Trustee also holds such property as (1) agent for the benefit of the holders of any Series of Junior Asset Secured Debt in respect of which the Collateral Trustee serves as Junior Asset Lien Representative or (2) bailee for the benefit of the holders of any Series of Junior Asset Secured Debt in respect of which the Collateral Trustee does not serve as Junior Asset Lien Representative.

SECTION 7.5 Successors and Assigns .

(a) Except as provided in Section 5.2, the Collateral Trustee may not, in its capacity as such, delegate any of its duties or assign any of its rights hereunder, and any attempted delegation or assignment of any such duties or rights will be null and void. All

 

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obligations of the Collateral Trustee hereunder in respect of Stock Collateral will inure to the sole and exclusive benefit of, and be enforceable by, each Stock Secured Debt Representative and each present and future holder of Stock Secured Obligations, each of whom will be entitled to enforce this Agreement as a third-party beneficiary hereof, and all of their respective successors and assigns. All obligations of the Collateral Trustee hereunder in respect of Asset Collateral will inure to the sole and exclusive benefit of, and be enforceable by, each Asset Secured Debt Representative and each present and future holder of Asset Secured Obligations, each of whom will be entitled to enforce this Agreement as a third-party beneficiary hereof, and all of their respective successors and assigns.

(b) Neither the Company nor any other Pledgor may delegate any of its duties or assign any of its rights hereunder, and any attempted delegation or assignment of any such duties or rights will be null and void. All obligations of the Company and the other Pledgors hereunder will inure to the sole and exclusive benefit of, and be enforceable by, the Collateral Trustee and each Secured Debt Representative, on behalf of itself and on behalf of each present and future holder of Secured Obligations, each of whom will be entitled to enforce this Agreement as a third-party beneficiary hereof, and all of their respective successors and assigns.

SECTION 7.6 Delay and Waiver . No failure to exercise, no course of dealing with respect to the exercise of, and no delay in exercising, any right, power or remedy arising under this Agreement or any of the other Security Documents will impair any such right, power or remedy or operate as a waiver thereof. No single or partial exercise of any such right, power or remedy will preclude any other or future exercise thereof or the exercise of any other right, power or remedy. The remedies herein are cumulative and are not exclusive of any remedies provided by law.

SECTION 7.7 Notices . Any communications, including notices and instructions, between the parties hereto or notices provided herein to be given may be given to the following addresses:

 

If to the Collateral Trustee:    The Bank of New York Mellon Trust Company, N.A.
   700 South Flower Street, Suite 500
   Los Angeles, CA 90017
   Attn: Corporate Unit
   Fax: (213) 630-6298
If to the Company or any other Pledgor:    Tenet Healthcare Corporation
   13737 Noel Road
   Dallas, TX 75240
   Attn: General Counsel
   Fax: (469) 893-3582
If to the Trustee:    The Bank of New York Mellon Trust Company, N.A.
   700 South Flower Street, Suite 500
   Los Angeles, CA 90017
   Attn: Corporate Unit
   Fax: (213) 630-6298

and if to any other Secured Debt Representative, to such address as it may specify by written notice to the parties named above.

 

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All notices and communications will be mailed by first class mail, certified or registered, return receipt requested, or by overnight air courier guaranteeing next day delivery, to the relevant address set forth above or, as to any holder of Secured Debt, to its Secured Debt Representative. To the extent applicable, any notice or communication will also be so mailed to any Person described in § 313(c) of the Trust Indenture Act of 1939, as amended, to the extent required thereunder. Failure to mail a notice or communication to a holder of Secured Debt or any defect in it will not affect its sufficiency with respect to other holders of Secured Debt.

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.

SECTION 7.8 Notice Following Discharge of First-Priority Lien Obligations .

(a) Promptly following the Discharge of First-Priority Stock Secured Obligations with respect to one or more Series of First-Priority Stock Secured Debt, each First-Priority Stock Lien Representative with respect to each applicable Series of First-Priority Stock Secured Debt that is so discharged will provide written notice of such discharge to the Collateral Trustee and to each other Stock Secured Debt Representative.

(b) Promptly following the Discharge of First-Priority Asset Secured Obligations with respect to one or more Series of First-Priority Asset Secured Debt, each First-Priority Asset Lien Representative with respect to each applicable Series of First-Priority Asset Secured Debt that is so discharged will provide written notice of such discharge to the Collateral Trustee and to each other Asset Secured Debt Representative.

SECTION 7.9 Entire Agreement . This Agreement states the complete agreement of the parties relating to the undertaking of the Collateral Trustee set forth herein and supersedes all oral negotiations and prior writings in respect of such undertaking.

SECTION 7.10 Compensation; Expenses . The Pledgors jointly and severally agree to pay, promptly upon demand:

(1) such compensation to the Collateral Trustee and its agents as the Company and the Collateral Trustee may agree in writing from time to time;

(2) all reasonable costs and expenses incurred by the Collateral Trustee and its agents in the preparation, execution, delivery, filing, recordation, administration or enforcement of this Agreement or any other Security Document or any consent, amendment, waiver or other modification relating hereto or thereto;

 

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(3) all reasonable fees, expenses and disbursements of legal counsel and any auditors, accountants, consultants or appraisers or other professional advisors and agents engaged by the Collateral Trustee or any Secured Debt Representative incurred in connection with the negotiation, preparation, closing, administration, performance or enforcement of this Agreement and the other Security Documents or any consent, amendment, waiver or other modification relating hereto or thereto and any other document or matter requested by the Company or any other Pledgor;

(4) all reasonable costs and expenses incurred by the Collateral Trustee and its agents in creating, perfecting, preserving, releasing or enforcing the Collateral Trustee’s Liens on the Collateral, including filing and recording fees, expenses and taxes, stamp or documentary taxes, search fees, and title insurance premiums;

(5) all other reasonable costs and expenses incurred by the Collateral Trustee and its agents in connection with the negotiation, preparation and execution of the Security Documents and any consents, amendments, waivers or other modifications thereto and the transactions contemplated thereby or the exercise of rights or performance of obligations by the Collateral Trustee thereunder; and

(6) after the occurrence of any Secured Debt Default, all costs and expenses incurred by the Collateral Trustee or its agents in connection with the preservation, collection, foreclosure or enforcement of Stock Collateral or Asset Collateral, as applicable, subject to the Stock Lien Security Documents or the Asset Lien Security Documents, respectively, or any interest, right, power or remedy of the Collateral Trustee or in connection with the proof, protection, administration or resolution of any claim based upon the Stock Secured Obligations or the Asset Secured Obligations, as applicable, in any Insolvency or Liquidation Proceeding, including all fees and disbursements of attorneys, accountants, auditors, consultants, appraisers and other professionals engaged by the Collateral Trustee or its agents.

The agreements in this Section 7.10 will survive repayment of all other Secured Obligations and the removal or resignation of the Collateral Trustee.

SECTION 7.11 Indemnity .

(a) The Pledgors jointly and severally agree to defend, indemnify, pay and hold harmless the Collateral Trustee and each of its Affiliates and each and all of the directors, officers, partners, trustees, employees, attorneys and agents, and (in each case) their respective heirs, representatives, successors and assigns (each of the foregoing, an Indemnitee ) from and against any and all Indemnified Liabilities; provided , no Indemnitee will be entitled to indemnification hereunder with respect to any Indemnified Liability to the extent such Indemnified Liability is found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of such Indemnitee.

(b) All amounts due under this Section 7.11 will be payable upon demand.

 

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(c) To the extent that the undertakings to defend, indemnify, pay and hold harmless set forth in Section 7.11(a) may be unenforceable in whole or in part because they violate any law or public policy, each of the Pledgors will contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of them.

(d) No Pledgor will ever assert any claim against any Indemnitee, on any theory of liability, for any lost profits or special, indirect or consequential damages or (to the fullest extent a claim for punitive damages may lawfully be waived) any punitive damages arising out of, in connection with, or as a result of, this Agreement, any other Stock Secured Debt Document, any other Asset Secured Debt Document or any agreement or instrument or transaction contemplated hereby or relating in any respect to any Indemnified Liability, and each of the Pledgors hereby forever waives, releases and agrees not to sue upon any claim for any such lost profits or special, indirect, consequential or (to the fullest extent lawful) punitive damages, whether or not accrued and whether or not known or suspected to exist in its favor.

(e) The agreements in this Section 7.11 will survive repayment of all other Secured Obligations and the removal or resignation of the Collateral Trustee.

SECTION 7.12 Severability . If any provision of this Agreement is invalid, illegal or unenforceable in any respect or in any jurisdiction, the validity, legality and enforceability of such provision in all other respects and of all remaining provisions, and of such provision in all other jurisdictions, will not in any way be affected or impaired thereby.

SECTION 7.13 Headings . Section headings herein have been inserted for convenience of reference only, are not to be considered a part of this Agreement and will in no way modify or restrict any of the terms or provisions hereof.

SECTION 7.14 Obligations Secured . All obligations of the Pledgors set forth in or arising under this Agreement will be Secured Obligations and are secured by all Liens granted by the Security Documents.

SECTION 7.15 Governing Law . THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS AGREEMENT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

SECTION 7.16 Consent to Jurisdiction . All judicial proceedings brought against any party hereto arising out of or relating to this Agreement or any of the other Security Documents may be brought in any state or federal court of competent jurisdiction in the State, County and City of New York. By executing and delivering this Agreement, each Pledgor, for itself and in connection with its properties, irrevocably:

(1) accepts generally and unconditionally the nonexclusive jurisdiction and venue of such courts;

 

61


(2) waives any defense of forum non conveniens;

(3) agrees that service of all process in any such proceeding in any such court may be made by registered or certified mail, return receipt requested, to such party at its address provided in accordance with Section 7.7;

(4) agrees that service as provided in clause (3) above is sufficient to confer personal jurisdiction over such party in any such proceeding in any such court and otherwise constitutes effective and binding service in every respect; and

(5) agrees that each party hereto retains the right to serve process in any other manner permitted by law or to bring proceedings against any party in the courts of any other jurisdiction.

SECTION 7.17 Waiver of Jury Trial . Each party to this Agreement waives its rights to a jury trial of any claim or cause of action based upon or arising under this Agreement or any of the other Security Documents or any dealings between them relating to the subject matter of this Agreement or the intents and purposes of the other Security Documents. The scope of this waiver is intended to be all-encompassing of any and all disputes that may be filed in any court and that relate to the subject matter of this Agreement and the other Security Documents, including contract claims, tort claims, breach of duty claims and all other common law and statutory claims. Each party to this Agreement acknowledges that this waiver is a material inducement to enter into a business relationship, that each party hereto has already relied on this waiver in entering into this Agreement, and that each party hereto will continue to rely on this waiver in its related future dealings. Each party hereto further warrants and represents that it has reviewed this waiver with its legal counsel and that it knowingly and voluntarily waives its jury trial rights following consultation with legal counsel. This waiver is irrevocable, meaning that it may not be modified either orally or in writing (other than by a mutual written waiver specifically referring to this Section 7.17 and executed by each of the parties hereto), and this waiver will apply to any subsequent amendments, renewals, supplements or modifications of or to this Agreement or any of the other Security Documents or to any other documents or agreements relating thereto. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court.

SECTION 7.18 Counterparts . This Agreement may be executed in any number of counterparts (including by facsimile or electronic transmission in .pdf format), each of which when so executed and delivered will be deemed an original, but all such counterparts together will constitute but one and the same instrument.

SECTION 7.19 Effectiveness . This Agreement will become effective upon the execution of a counterpart hereof by each of the parties hereto and receipt by each party of written notification of such execution and written or telephonic authorization of delivery thereof.

SECTION 7.20 Additional Pledgors . The Company will cause each Person that becomes a Pledgor or is required by any Secured Debt Document to become a party to this

 

62


Agreement to become a party to this Agreement, for all purposes of this Agreement, by causing such Person to execute and deliver to the Collateral Trustee a Collateral Trust Joinder stating either that (1) the Collateral Trust Joinder is being executed and delivered pursuant to such Person’s obligations under a Stock Secured Debt Document, (2) the Collateral Trust Joinder is being executed and delivered pursuant to such Person’s obligations under an Asset Secured Debt Document or (3) the Collateral Trust Joinder is being executed and delivered pursuant to such Person’s obligations under a Stock Secured Debt Document and an Asset Secured Debt Document, whereupon such Person will be bound by the terms hereof to the same extent as if it had executed and delivered this Agreement as of the date hereof. The Company shall promptly provide each Stock Secured Debt Representative with a copy of each Collateral Trust Joinder executed and delivered pursuant to a Stock Secured Debt Document and this Section 7.20, and the Company shall promptly provide each Asset Secured Debt Representative with a copy of each Collateral Trust Joinder executed and delivered pursuant to an Asset Secured Debt Document and this Section 7.20; provided, however , that the failure to so deliver a copy of the Collateral Trust Joinder to any then existing Stock Secured Debt Representative or any then existing Asset Secured Debt Representative, as the case may be, shall not affect the inclusion of such Person as a Pledgor if the other requirements of this Section 7.20 are complied with.

SECTION 7.21 Continuing Nature of this Agreement .

(a) This Agreement, including the subordination provisions hereof, will be reinstated if at any time any payment or distribution in respect of any of the First-Priority Lien Obligations is rescinded or must otherwise be returned in an Insolvency or Liquidation Proceeding or otherwise by any holder of First-Priority Lien Obligations or First-Priority Lien Representative or any representative of any such party (whether by demand, settlement, litigation or otherwise).

(b) In the event that all or any part of a payment or distribution made with respect to the First-Priority Stock Secured Obligations is recovered from any holder of First-Priority Stock Secured Obligations or any First-Priority Stock Lien Representative in an Insolvency or Liquidation Proceeding or otherwise, and any holder of Junior Stock Secured Obligations or Junior Stock Lien Representative with respect to the Junior Stock Secured Obligations receives a payment or distribution from the Proceeds of any Stock Collateral at any time after the date of the payment or distribution that is so recovered, whether pursuant to a right of subrogation or otherwise, that Junior Stock Lien Representative or that holder of a Junior Stock Secured Obligation, as the case may be, will forthwith deliver the same to the Collateral Trustee, for the account of the holders of the First-Priority Stock Secured Obligations, to be applied in accordance with Section 3.4. Until so delivered, such Proceeds will be segregated and held by that Junior Stock Lien Representative or that holder of a Junior Stock Secured Obligation, as the case may be, in trust for the benefit of the holders of the First-Priority Stock Secured Obligations.

(c) In the event that all or any part of a payment or distribution made with respect to the First-Priority Asset Secured Obligations is recovered from any holder of First-Priority Asset Secured Obligations or any First-Priority Asset Lien Representative in an Insolvency or Liquidation Proceeding or otherwise, and any holder of Junior Asset Secured Obligations or Junior Asset Lien Representative with respect to the Junior Asset Secured

 

63


Obligations receives a payment or distribution from the Proceeds of any Asset Collateral or any title insurance policy required by any real property mortgage at any time after the date of the payment or distribution that is so recovered, whether pursuant to a right of subrogation or otherwise, that Junior Asset Lien Representative or that holder of a Junior Asset Secured Obligation, as the case may be, will forthwith deliver the same to the Collateral Trustee, for the account of the holders of the First-Priority Asset Secured Obligations, to be applied in accordance with Section 3.4. Until so delivered, such Proceeds will be segregated and held by that Junior Asset Lien Representative or that holder of a Junior Asset Secured Obligation, as the case may be, in trust for the benefit of the holders of the First-Priority Asset Secured Obligations.

(d) The provisions of this Section 7.21 will survive repayment of the Secured Obligations and termination of this Agreement.

SECTION 7.22 Insolvency . This Agreement will be applicable both before and after the commencement of any Insolvency or Liquidation Proceeding by or against any Pledgor. The relative rights, as provided for in this Agreement, will continue after the commencement of any such Insolvency or Liquidation Proceeding on the same basis as prior to the date of the commencement of any such case, as provided in this Agreement.

SECTION 7.23 Rights and Immunities of Secured Debt Representatives . The Trustee will be entitled to all of the rights, protections, immunities and indemnities set forth in the Indenture and any future Secured Debt Representative will be entitled to all of the rights, protections, immunities and indemnities set forth in the credit agreement, indenture or other agreement governing the applicable Secured Debt with respect to which such Person will act as representative, in each case as if specifically set forth herein. In no event will any Secured Debt Representative be liable for any act or omission on the part of the Pledgors or the Collateral Trustee hereunder.

[Signature pages follow]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Collateral Trust Agreement to be executed by their respective officers or representatives as of the day and year first above written.

 

TENET HEALTHCARE CORPORATION
By:  

/s/    Biggs C. Porter

Name:   Biggs C. Porter
Title:   Chief Financial Officer
AMERICAN MEDICAL (CENTRAL), INC.
AMI INFORMATION SYSTEMS GROUP, INC.
AMISUB (HEIGHTS), INC.
AMISUB (HILTON HEAD), INC.
AMISUB (SFH), INC.
AMISUB (TWELVE OAKS), INC.
AMISUB OF TEXAS, INC.
BROOKWOOD HEALTH SERVICES, INC.
CORAL GABLES HOSPITAL, INC.
CYPRESS FAIRBANKS MEDICAL CENTER, INC.
FMC ACQUISITION, INC.
FMC MEDICAL, INC.
LIFEMARK HOSPITALS, INC.
MCF, INC.
ORNDA HOSPITAL CORPORATION
TENET CALIFORNIA, INC.
TENET FLORIDA, INC.
TENET HEALTHSYSTEM CFMC, INC.
TENET HEALTHSYSTEM HEALTHCORP
TENET HEALTHSYSTEM HOLDINGS, INC.
TENET HEALTHSYSTEM MEDICAL, INC.
TENET HEALTHSYSTEM PHILADELPHIA, INC.
TENET HOSPITALS, INC.
TENET LOUISIANA, INC.
TENET MISSOURI, INC.
TENET PHYSICIAN SERVICES HILTON HEAD, INC.
TENET TEXAS, INC.
TENETSUB TEXAS, INC.
By:  

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer

 

S-1


THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee under the Indenture
By:  

/s/    Melonee Young

Name:   Melonee Young
Title:   Vice President
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Collateral Trustee
By:  

/s/    Melonee Young

Name:   Melonee Young
Title:   Vice President

 

S-2


EXHIBIT A

to Collateral Trust Agreement

[FORM OF]

ADDITIONAL SECURED DEBT DESIGNATION

Reference is made to the Collateral Trust Agreement dated as of March 3, 2009 (as amended, supplemented, amended and restated or otherwise modified and in effect from time to time, the Collateral Trust Agreement ) among Tenet Healthcare Corporation, a Nevada corporation (the Company ), the other Pledgors from time to time party thereto, The Bank of New York Mellon Trust Company, N.A., as Trustee under the Indenture (as defined therein), the other Secured Debt Representatives from time to time party thereto and The Bank of New York Mellon Trust Company, N.A., as Collateral Trustee. Capitalized terms used but not otherwise defined herein shall have the meaning set forth in the Collateral Trust Agreement. This Additional Secured Debt Designation is being executed and delivered in order to designate additional secured debt as either First-Priority Stock Secured Debt, Junior Stock Secured Debt, First-Priority Asset Secured Debt or Junior Asset Secured Debt entitled to the benefit of the Collateral Trust Agreement.

The undersigned, the duly appointed [ specify title ] of the Company hereby certifies on behalf of the Company that:

(A) [ insert name of the Company or other Pledgor ] intends to incur additional Secured Debt ( Additional Secured Debt ) which will be [ select appropriate alternative ] [First-Priority Stock Secured Debt permitted by each applicable Stock Secured Debt Document to be secured by a First-Priority Stock Lien Equally and Ratably with all previously existing and future First-Priority Stock Secured Debt] [Junior Stock Secured Debt permitted by each applicable Stock Secured Debt Document to be secured with a Junior Stock Lien Equally and Ratably with all previously existing and future Junior Stock Secured Debt] [First-Priority Asset Secured Debt permitted by each applicable Asset Secured Debt Document to be secured by a First-Priority Asset Lien Equally and Ratably with all previously existing and future First-Priority Asset Secured Debt] [Junior Asset Secured Debt permitted by each applicable Asset Secured Debt Document to be secured with a Junior Asset Lien Equally and Ratably with all previously existing and future Junior Asset Secured Debt];

(B) the name and address of the Secured Debt Representative for the Additional Secured Debt for purposes of Section 7.7 of the Collateral Trust Agreement is:

 

 

 

Telephone:  

 

Fax:  

 

EXHIBIT A


(C) the Company has caused a copy of this Additional Secured Debt Designation to be delivered to each existing [Stock Secured Debt Representative] [Asset Secured Debt Representative].

[ Signature page follows ]

EXHIBIT A


IN WITNESS WHEREOF, the Company has caused this Additional Secured Debt Designation to be duly executed by the undersigned officer as of                                  , 20      .

 

Tenet Healthcare Corporation
By:  

 

Name:  

 

Title:  

 

ACKNOWLEDGEMENT OF RECEIPT

The undersigned, the duly appointed Collateral Trustee under the Collateral Trust Agreement, hereby acknowledges receipt of an executed copy of this Additional Secured Debt Designation.

 

The Bank of New York Mellon Trust Company, N.A., as Collateral Trustee

By:  

 

Name:  

 

Title:  

 

 

S-1


EXHIBIT B

to Collateral Trust Agreement

[FORM OF]

COLLATERAL TRUST JOINDER – ADDITIONAL SECURED DEBT

Reference is made to the Collateral Trust Agreement dated as of March 3, 2009 (as amended, supplemented, amended and restated or otherwise modified and in effect from time to time, the Collateral Trust Agreement ) among Tenet Healthcare Corporation, a Nevada corporation (the Company ), the other Pledgors from time to time party thereto, The Bank of New York Mellon Trust Company, N.A., as Trustee under the Indenture (as defined therein), the other Secured Debt Representatives from time to time party thereto and The Bank of New York Mellon Trust Company, N.A., as Collateral Trustee. Capitalized terms used but not otherwise defined herein shall have the meaning set forth in the Collateral Trust Agreement. This Collateral Trust Joinder is being executed and delivered pursuant to Section 3.8 of the Collateral Trust Agreement as a condition precedent to the debt for which the undersigned is acting as agent being entitled to the benefits of being Additional Secured Debt under the Collateral Trust Agreement.

1. Joinder . The undersigned,                                          , a                                          (the “New Representative”) as [trustee, administrative agent] under that certain [ describe applicable indenture, credit agreement or other document governing the Additional Secured Debt ] hereby agrees to become party as [a First-Priority Stock Lien Representative] [a Junior Stock Lien Representative] [a First-Priority Asset Lien Representative] [a Junior Asset Lien Representative] under the Collateral Trust Agreement for all purposes thereof on the terms set forth therein, and to be bound by the terms of the Collateral Trust Agreement as fully as if the undersigned had executed and delivered the Collateral Trust Agreement as of the date thereof.

2. Lien Sharing and Priority Confirmation .

[ Option A: to be used if Additional Secured Debt is First-Priority Stock Secured Debt ] The undersigned New Representative, on behalf of itself and each holder of Obligations in respect of the Series of First-Priority Stock Secured Debt for which the undersigned is acting as First-Priority Stock Lien Representative hereby agrees, for the enforceable benefit of all holders of each existing and future Series of First-Priority Stock Secured Debt and Junior Stock Secured Debt, each existing and future Junior Stock Lien Representative, each other existing and future First-Priority Stock Lien Representative and each existing and future holder of Permitted Prior Stock Liens and as a condition to being treated as Stock Secured Debt under the Collateral Trust Agreement that:

(a) all First-Priority Stock Secured Obligations will be and are secured Equally and Ratably by all First-Priority Stock Liens at any time granted by the Company or any other Pledgor to secure any Obligations in respect of any Series of First-Priority Stock Secured Debt, whether or not upon property otherwise constituting collateral for such Series of First-Priority Stock Secured Debt, and

EXHIBIT B


that all such First-Priority Stock Liens will be enforceable by the Collateral Trustee for the benefit of all holders of First-Priority Stock Secured Obligations Equally and Ratably;

(b) the New Representative and each holder of Obligations in respect of the Series of First-Priority Stock Secured Debt for which the undersigned is acting as First-Priority Stock Lien Representative are bound by the provisions of this Agreement, including the provisions relating to the ranking of First-Priority Stock Liens and the order of application of Proceeds from the enforcement of First-Priority Stock Liens; and

(c) the Collateral Trustee shall perform its obligations under the Collateral Trust Agreement and the other Security Documents. [or]

[ Option B: to be used if Additional Secured Debt is Junior Stock Secured Debt ] The undersigned New Representative, on behalf of itself and each holder of Obligations in respect of the Series of Junior Stock Secured Debt for which the undersigned is acting as Junior Stock Lien Representative hereby agrees, for the enforceable benefit of all holders of each existing and future Series of First-Priority Stock Secured Debt and Junior Stock Secured Debt, each existing and future First-Priority Stock Lien Representative, each other existing and future Junior Stock Lien Representative and each existing and future holder of Permitted Prior Stock Liens and as a condition to being treated as Stock Secured Debt under the Collateral Trust Agreement that:

(a) all Junior Stock Secured Obligations will be and are secured Equally and Ratably by all Junior Stock Liens at any time granted by the Company or any other Pledgor to secure any Obligations in respect of any Series of Junior Stock Secured Debt, whether or not upon property otherwise constituting collateral for such Series of Junior Stock Secured Debt, and that all such Junior Stock Liens will be enforceable by the Collateral Trustee for the benefit of all holders of Junior Stock Secured Obligations Equally and Ratably;

(b) the New Representative and each holder of Obligations in respect of the Series of Junior Stock Secured Debt for which the undersigned is acting as Junior Stock Lien Representative are bound by the provisions of this Agreement, including the provisions relating to the ranking of Junior Stock Liens and the order of application of Proceeds from the enforcement of Junior Stock Liens; and

(c) the Collateral Trustee shall perform its obligations under the Collateral Trust Agreement and the other Security Documents. [or]

[ Option C: to be used if Additional Secured Debt is First-Priority Asset Secured Debt ] The undersigned New Representative, on behalf of itself and each holder of Obligations in respect of the Series of First-Priority Asset Secured Debt for which the undersigned is acting as First-Priority Asset Lien Representative hereby agrees, for the enforceable benefit of all holders of each existing and future Series of First-Priority Asset Secured Debt and Junior Asset Secured Debt, each existing and future Junior Asset Lien Representative, each other existing and future First-Priority Asset Lien Representative and each existing and future holder of Permitted Prior

EXHIBIT B


Asset Liens and as a condition to being treated as Asset Secured Debt under the Collateral Trust Agreement that:

(a) all First-Priority Asset Secured Obligations will be and are secured Equally and Ratably by all First-Priority Asset Liens at any time granted by the Company or any other Pledgor to secure any Obligations in respect of any Series of First-Priority Asset Secured Debt, whether or not upon property otherwise constituting collateral for such Series of First-Priority Asset Secured Debt, and that all such First-Priority Asset Liens will be enforceable by the Collateral Trustee for the benefit of all holders of First-Priority Asset Secured Obligations Equally and Ratably;

(b) the New Representative and each holder of Obligations in respect of the Series of First-Priority Asset Secured Debt for which the undersigned is acting as First-Priority Asset Lien Representative are bound by the provisions of this Agreement, including the provisions relating to the ranking of First-Priority Asset Liens and the order of application of Proceeds from the enforcement of First-Priority Asset Liens; and

(c) the Collateral Trustee shall perform its obligations under the Collateral Trust Agreement and the other Security Documents. [or]

[ Option D: to be used if Additional Secured Debt is Junior Asset Secured Debt ] The undersigned New Representative, on behalf of itself and each holder of Obligations in respect of the Series of Junior Asset Secured Debt for which the undersigned is acting as Junior Asset Lien Representative hereby agrees, for the enforceable benefit of all holders of each existing and future Series of First-Priority Asset Secured Debt and Junior Asset Secured Debt, each existing and future First-Priority Asset Lien Representative, each other existing and future Junior Asset Lien Representative and each existing and future holder of Permitted Prior Asset Liens and as a condition to being treated as Asset Secured Debt under the Collateral Trust Agreement that:

(a) all Junior Asset Secured Obligations will be and are secured Equally and Ratably by all Junior Asset Liens at any time granted by the Company or any other Pledgor to secure any Obligations in respect of any Series of Junior Asset Secured Debt, whether or not upon property otherwise constituting collateral for such Series of Junior Asset Secured Debt, and that all such Junior Asset Liens will be enforceable by the Collateral Trustee for the benefit of all holders of Junior Asset Secured Obligations Equally and Ratably;

(b) the New Representative and each holder of Obligations in respect of the Series of Junior Asset Secured Debt for which the undersigned is acting as Junior Asset Lien Representative are bound by the provisions of this Agreement, including the provisions relating to the ranking of Junior Asset Liens and the order of application of Proceeds from the enforcement of Junior Asset Liens; and

(c) the Collateral Trustee shall perform its obligations under the Collateral Trust Agreement and the other Security Documents.

EXHIBIT B


3. Governing Law and Miscellaneous Provisions . The provisions of Article 7 of the Collateral Trust Agreement will apply with like effect to this Collateral Trust Joinder.

[ Signature page follows ]

EXHIBIT B


IN WITNESS WHEREOF, the undersigned has caused this Collateral Trust Joinder to be executed by its officer or representative as of                      , 20      .

 

[INSERT NAME OF THE NEW REPRESENTATIVE]
By:  

 

Name:  

 

Title:  

 

The Collateral Trustee hereby acknowledges receipt of this Collateral Trust Joinder and agrees to act as Collateral Trustee for the New Representative and the holders of the Obligations represented thereby:

 

The Bank of New York Mellon Trust Company,     N.A., as Collateral Trustee
By:  

 

Name:  

 

Title:  

 

 

S-1


EXHIBIT C

to Collateral Trust Agreement

[FORM OF]

COLLATERAL TRUST JOINDER – ADDITIONAL PLEDGOR

Reference is made to the Collateral Trust Agreement dated as of March 3, 2009 (as amended, supplemented, amended and restated or otherwise modified and in effect from time to time, the Collateral Trust Agreement ) among Tenet Healthcare Corporation, a Nevada corporation (the Company ), the other Pledgors from time to time party thereto, The Bank of New York Mellon Trust Company, N.A., as Trustee under the Indenture (as defined therein), the other Secured Debt Representatives from time to time party thereto and The Bank of New York Mellon Trust Company, N.A., as Collateral Trustee. Capitalized terms used but not otherwise defined herein shall have the meaning set forth in the Collateral Trust Agreement. This Collateral Trust Joinder is being executed and delivered pursuant to Section 7.20 of the Collateral Trust Agreement.

1. Joinder . The undersigned,                                          , a                      , hereby agrees to become party as a Pledgor under the Collateral Trust Agreement for all purposes thereof on the terms set forth therein, and to be bound by the terms of the Collateral Trust Agreement as fully as if the undersigned had executed and delivered the Collateral Trust Agreement as of the date thereof. This Collateral Trust Joinder is being executed and delivered pursuant to the undersigned’s obligations under [a Stock Secured Debt Document] [and] [an Asset Secured Debt Document].

2. Governing Law and Miscellaneous Provisions . The provisions of Article 7 of the Collateral Trust Agreement will apply with like effect to this Collateral Trust Joinder.

[ Signature page follows ]

EXHIBIT C


IN WITNESS WHEREOF, [each of] the undersigned has caused this Collateral Trust Joinder to be executed by its officer or representative as of                      , 20      .

 

[                                                                                   ]
By:  

 

Name:  

 

Title:  

 

The Collateral Trustee hereby acknowledges receipt of this Collateral Trust Joinder and agrees to act as Collateral Trustee with respect to the Collateral pledged by the new Pledgor:

 

The Bank of New York Mellon Trust Company, N.A., as Collateral Trustee

By:  

 

Name:  

 

Title:  

 

 

S-1

Exhibit 10.3

TENET HEALTHCARE CORPORATION

9.0% Senior Secured Notes due 2015 and

10.0% Senior Secured Notes due 2018

unconditionally guaranteed as to the

payment of principal, premium,

if any, and interest by the

Guarantors named on Schedule I hereto

 

 

Exchange and Registration Rights Agreement

March 3, 2009

Citigroup Global Markets Inc.

388 Greenwich Street

New York, NY 10013

Banc of America Securities LLC

One Bryant Park

New York, NY 10036

Goldman, Sachs & Co.

85 Broad Street

New York, NY 10004

Scotia Capital (USA) Inc.

165 Broadway – 25th Floor

One Liberty Plaza

New York, NY 10006

Ladies and Gentlemen:

Tenet Healthcare Corporation, a Nevada corporation (the “ Company ”), is exchanging, on the date hereof, certain outstanding notes of the Company (collectively, the “ Existing Notes ”) for approximately $1.4 billion in aggregate principal amount of the Company’s new 9.0% Senior Secured Notes due 2015 and new 10.0% Senior Secured Notes due 2018 (the “ Exchange Offer ”), which are unconditionally guaranteed by the Guarantors (as defined herein), upon the terms and conditions set forth in that certain Offering Memorandum, dated January 22, 2009, as amended and supplemented, and that certain Dealer Manager Agreement (the “ Dealer Manager Agreement ”), dated as of January 22, 2009, among the Company, Citigroup Global Markets Inc., Banc of America Securities LLC, Goldman, Sachs & Co. and Scotia Capital (USA) Inc. As an inducement to the holders of Existing Notes to tender their Existing Notes in the Exchange Offer, and in satisfaction of a condition to the obligations of the Company under the Exchange Offer, the Company and the Guarantors agree with the Dealer Managers (as defined herein), for the benefit of the holders (as defined herein) from time to time of the Registrable Securities (as defined herein), as follows:

1. Certain Definitions . For purposes of this Exchange and Registration Rights Agreement (this “ Agreement ”), the following terms shall have the following respective meanings:

Base Interest ” shall mean the interest that would otherwise accrue on the Securities under the terms thereof and the Indenture, without giving effect to the provisions of this Agreement.


The term “ broker-dealer ” shall mean any broker or dealer registered with the Commission under the Exchange Act.

Business Day ” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in New York City are generally authorized or obligated by law or executive order to be closed.

Closing Date ” shall mean the date on which the Securities are initially issued.

Commission ” shall mean the United States Securities and Exchange Commission, or any other federal agency at the time administering the Exchange Act or the Securities Act, whichever is the relevant statute for the particular purpose.

Company ” shall have the meaning assigned thereto in the preamble.

Consummation Date ” shall have the meaning assigned thereto in Section 2(a) hereof.

Dealer Manager Agreement ” shall have the meaning assigned thereto in the preamble.

Dealer Managers ” shall mean Citigroup Global Markets Inc., Banc of America Securities LLC, Goldman, Sachs & Co. and Scotia Capital (USA) Inc.

Effective Time ” shall mean the time and date as of which the Commission declares the Exchange Registration Statement effective or as of which the Exchange Registration Statement otherwise becomes effective.

Exchange Act ” shall mean the Securities Exchange Act of 1934, or any successor thereto, as the same shall be amended from time to time.

Exchange Offer ” shall have the meaning assigned thereto in the preamble.

Exchange Registration ” shall have the meaning assigned thereto in Section 3(c) hereof.

Exchange Registration Statement ” shall have the meaning assigned thereto in Section 2(a) hereof.

Exchange Securities ” shall have the meaning assigned thereto in Section 2(a) hereof.

Existing Notes ” shall have the meaning assigned thereto in the preamble.

FINRA ” shall mean the Financial Industry Regulatory Authority, Inc.

Free Trade Date ” shall mean the 380 th day following the Closing Date.

Freely Tradable ” shall mean, with respect to the Securities at any time of determination, that (a) all outstanding Securities are eligible to be sold by a person who has not been an “affiliate” (as defined in Rule 405 under the Securities Act) of the Company or any Guarantor during the preceding 90 days without any volume or manner of sale restrictions under the Securities Act, (b) the Company has provided a certificate to the Trustee instructing the Trustee that the restrictive legend on the Securities no longer applies and (c) the Securities have been assigned an unrestricted CUSIP number.

 

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Guarantors ” shall have the meaning assigned thereto in the Indenture.

The term “ holder ” shall mean each of the persons who acquire Registrable Securities from time to time (including any successors or assigns), in each case for so long as such person owns any Registrable Securities.

Indenture ” shall mean the Indenture, dated November 6, 2001, between the Company and The Bank of New York Mellon Trust Company, N.A., as successor to The Bank of New York, as supplemented by the Ninth Supplemental Indenture, dated as of March 3, 2009, between the Company, the Guarantors and the Trustee, as the same shall be supplemented or amended from time to time, and the Tenth Supplemental Indenture, dated as of March 3, 2009, between the Company, the Guarantors and the Trustee, as the same shall be supplemented or amended from time to time.

The term “ person ” shall mean a corporation, association, partnership, organization, business, individual, government or political subdivision thereof or governmental agency.

Registrable Securities ” shall mean the Securities; provided, however, that a Security shall cease to be a Registrable Security when (a) in the circumstances contemplated by Section 2(a) hereof, the Security has been exchanged for an Exchange Security in a Subsequent Exchange Offer as contemplated in Section 2(a) hereof ( provided that any Exchange Security that, pursuant to the second to last and third to last sentences of Section 2(a), is included in a prospectus for use in connection with resales by broker-dealers shall be deemed to be a Registrable Security with respect to Sections 5, 6 and 9 until resale of such Registrable Security has been effected within the 180-day period referred to in Section 2(a)); (b) the Securities become Freely Tradable or (c) such Security shall cease to be outstanding.

Registration Default ” shall have the meaning assigned thereto in Section 2(b) hereof.

Registration Default Period ” shall have the meaning assigned thereto in Section 2(b) hereof.

Registration Expenses ” shall have the meaning assigned thereto in Section 4 hereof.

Resale Period ” shall have the meaning assigned thereto in Section 2(a) hereof.

Restricted Holder ” shall mean (i) a holder that is an affiliate of the Company within the meaning of Rule 405, (ii) a holder who acquires Exchange Securities outside the ordinary course of such holder’s business, (iii) a holder who has arrangements or understandings with any person to participate in the Subsequent Exchange Offer for the purpose of distributing Exchange Securities and (iv) a holder that is a broker-dealer, but only with respect to Exchange Securities received by such broker-dealer pursuant to a Subsequent Exchange Offer in exchange for Registrable Securities acquired by the broker-dealer directly from the Company.

Rule 144 ,” “ Rule 405 ” and “ Rule 415 ” shall mean, in each case, such rule promulgated under the Securities Act (or any successor provision), as the same shall be amended from time to time.

Securities ” shall mean, collectively, approximately $1.4 billion in aggregate principal amount of the Company’s 9.0% Senior Secured Notes due 2015 and the Company’s 10.0% Senior Secured Notes due 2018 to be issued to the holders in the Exchange Offer, and securities issued in exchange therefor or in lieu thereof pursuant to the Indenture. Each Security is entitled to the benefit of the guarantees provided for in the Indenture (the “ Guarantees ”) and, unless the context otherwise requires, any reference herein to a “Security,” an “Exchange Security” or a “Registrable Security” shall include a reference to the related Guarantees.

 

3


Securities Act ” shall mean the Securities Act of 1933, or any successor thereto, as the same shall be amended from time to time.

Special Interest ” shall have the meaning assigned thereto in Section 2(b) hereof.

Subsequent Exchange Offer ” shall have the meaning assigned thereto in Section 2(a) hereof.

Trustee ” shall mean The Bank of New York Mellon Trust Company, N.A., as trustee under the Indenture, together with any successors in such capacity.

Trust Indenture Act ” shall mean the Trust Indenture Act of 1939, or any successor thereto, and the rules, regulations and forms promulgated thereunder, all as the same shall be amended from time to time.

Unless the context otherwise requires, any reference herein to a “Section” or “clause” refers to a Section or clause, as the case may be, of this Agreement, and the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section or other subdivision.

2. Registration Under the Securities Act .

(a) Subject to the last sentence of this Section 2(a), if the Securities have not become Freely Tradable on or before the Free Trade Date, the Company and the Guarantors agree to use all commercially reasonable efforts to (i) file under the Securities Act a registration statement relating to an offer to exchange (such registration statement, the “ Exchange Registration Statement ,” and such offer, the “ Subsequent Exchange Offer ”) any and all of the Securities for a like aggregate principal amount of debt securities issued by the Company and guaranteed by the Guarantors, which debt securities and guarantees are substantially identical to the Securities and the related Guarantees, respectively (and are entitled to the benefits of a trust indenture that is substantially identical to the Indenture or is the Indenture and that has been qualified under the Trust Indenture Act), except that they have been registered pursuant to an effective registration statement under the Securities Act and do not contain provisions for the additional interest contemplated in Section 2(b) below (such new debt securities are hereinafter called “ Exchange Securities ”), (ii) cause the Exchange Registration Statement to become effective under the Securities Act, (iii) commence the Subsequent Exchange Offer promptly after such Exchange Registration Statement has become effective, (iv) hold the Subsequent Exchange Offer open for at least 20 Business Days (or longer if required by applicable law) after the date that notice of the Subsequent Exchange Offer is mailed to holders of the Securities, (v) exchange Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn on or prior to the expiration of the Subsequent Exchange Offer and (vi) consummate the Subsequent Exchange Offer on the earliest practicable date after the Exchange Registration Statement has become affected, but in no event later than 30 Business Days thereafter (such 30th Business Day being the “ Consummation Date ”). The Subsequent Exchange Offer will be registered under the Securities Act on the appropriate form and will comply with all applicable tender offer rules and regulations under the Exchange Act. The Subsequent Exchange Offer will be deemed to have been “completed” only if the debt securities and related guarantees received by holders other than Restricted Holders in the Subsequent Exchange Offer for Registrable Securities are, upon receipt, transferable by each such holder without restriction under the Securities Act and the Exchange Act and without material restrictions under the blue sky or securities laws of a substantial majority of the states of the United States of America. The Subsequent Exchange Offer shall be deemed to have been completed upon the earlier to occur of (A) the Company having exchanged the Exchange Securities for all outstanding Registrable Securities pursuant to the Subsequent Exchange Offer and (B) the Company having exchanged, pursuant to the Subsequent Exchange Offer, Exchange Securities for all Registrable Securities that have been properly tendered and not withdrawn before the expiration of

 

4


the Subsequent Exchange Offer, which shall be on a date that is at least 20 Business Days following the commencement of the Subsequent Exchange Offer. The Company and the Guarantors agree (I) to include in the Exchange Registration Statement a prospectus for use in any resales by any holder of Exchange Securities that is a broker-dealer and (II) to keep such Exchange Registration Statement effective for a period (the “ Resale Period ”) beginning when Exchange Securities are first issued in the Subsequent Exchange Offer and ending upon the earlier of the expiration of the 180th day after the Subsequent Exchange Offer has been completed or such time as such broker-dealers no longer own any Registrable Securities. With respect to such Exchange Registration Statement, such holders shall have the benefit of the rights of indemnification and contribution set forth in Sections 6(a), (b), (c) and (d) hereof. The obligations of the Company and the Guarantors set forth in this Section 2(a) shall cease on the date on which the Securities become Freely Tradable.

(b) If (i) the Subsequent Exchange Offer has not been consummated prior to the Consummation Date, (ii) the Securities have not become Freely Tradable on or before the Free Trade Date, or (iii) any Exchange Registration Statement required by this Agreement is filed and declared effective, but shall thereafter cease to be effective or fail to be usable for its intended purpose without being succeeded by a post-effective amendment or prospectus supplement to such Exchange Registration Statement that cures such failure and that is itself declared effectively promptly (each such event referred to in clauses (i) through (iii), a “ Registration Default ,” and the period during which a Registration Default has occurred and is continuing, the “ Registration Default Period ”), then, as liquidated damages for such Registration Default, subject to the provisions of Section 8(b), special interest (“ Special Interest ”), in addition to the Base Interest, shall accrue at a per annum rate of 0.25% for the first 90 days of the Registration Default Period, at a per annum rate of 0.50% for the second 90 days of the Registration Default Period, at a per annum rate of 0.75% for the third 90 days of the Registration Default Period and at a per annum rate of 1.0% thereafter for the remaining portion of the Registration Default Period, provided that in no event shall the Company be required to pay Special Interest for more than one Registration Default at any given time. The Registration Default Period shall terminate on the date on which (i) the Securities become Freely Tradable or (ii) the Exchange Registration Statement has been declared effective and the Subsequent Exchange Offer has been consummated.

(c) The Company shall take, and shall cause the Guarantors to take, all actions necessary or advisable to be taken to ensure that the transactions contemplated herein are effected as so contemplated, including all actions necessary or desirable to register the Guarantees under the Exchange Registration Statement contemplated in Section 2(a) hereof.

(d) Any reference herein to a registration statement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time and any reference herein to any post-effective amendment to a registration statement as of any time shall be deemed to include any document incorporated, or deemed to be incorporated, therein by reference as of such time.

3. Registration Procedures .

If the Company and the Guarantors file a registration statement pursuant to Section 2(a), the following provisions shall apply:

(a) At or before the Effective Time of the Exchange Registration, the Company and the Guarantors shall qualify the Indenture under the Trust Indenture Act.

(b) In the event that such qualification would require the appointment of a new trustee under the Indenture, the Company and the Guarantors shall appoint a new trustee thereunder pursuant to the applicable provisions of the Indenture.

 

5


(c) In connection with the Company’s and the Guarantors’ obligations with respect to the registration of Exchange Securities as contemplated by Section 2(a) (the “ Exchange Registration ”), if applicable, the Company and the Guarantors shall, as soon as practicable (or as otherwise specified):

(i) prepare and file with the Commission an Exchange Registration Statement on any form that may be utilized by the Company and the Guarantors and that shall permit the Subsequent Exchange Offer and resales of Exchange Securities by broker-dealers during the Resale Period to be effected as contemplated by Section 2(a), and use all commercially reasonable efforts to cause such Exchange Registration Statement to become effective;

(ii) prepare and file with the Commission such amendments and supplements to such Exchange Registration Statement and the prospectus included therein as may be necessary to effect and maintain the effectiveness of such Exchange Registration Statement for the periods and purposes contemplated in Section 2(a) hereof and as may be required by the applicable rules and regulations of the Commission and the instructions applicable to the form of such Exchange Registration Statement, and promptly provide each broker-dealer holding Exchange Securities with such number of copies of the prospectus included therein (as then amended or supplemented), in conformity in all material respects with the requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder, as such broker-dealer reasonably may request prior to the expiration of the Resale Period, for use in connection with resales of Exchange Securities;

(iii) notify each broker-dealer that has requested or received copies of the prospectus included in such Exchange Registration Statement, and confirm such advice in writing, (A) when such Exchange Registration Statement or the prospectus included therein or any prospectus amendment or supplement or post-effective amendment has been filed, and, with respect to such Exchange Registration Statement or any post-effective amendment, when the same has become effective, (B) of any comments by the Commission and by the blue sky or securities commissioner or regulator of any state with respect thereto or any request by the Commission for amendments or supplements to such Exchange Registration Statement or prospectus or for additional information, (C) of the issuance by the Commission of any stop order suspending the effectiveness of such Exchange Registration Statement or the initiation or threatening of any proceedings for that purpose, (D) if at any time the representations and warranties of the Company and the Guarantors contemplated by Section 5 cease to be true and correct in all material respects, (E) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Exchange Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, or (F) at any time during the Resale Period when a prospectus is required to be delivered under the Securities Act, that such Exchange Registration Statement, prospectus, prospectus amendment or supplement or post-effective amendment does not conform in all material respects to the applicable requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder or contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;

(iv) in the event that the Company and the Guarantors would be required, pursuant to Section 3(c)(iii)(F) above, to notify any broker-dealers holding Exchange Securities, prepare and furnish to each such holder a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to purchasers of such Exchange Securities during the Resale Period, such prospectus shall conform in all material respects to the applicable requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder and shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;

 

6


(v) use all commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of such Exchange Registration Statement or any post-effective amendment thereto at the earliest practicable date;

(vi) use all commercially reasonable efforts to (A) register or qualify the Exchange Securities under the securities laws or blue sky laws of such jurisdictions as are contemplated by Section 2(a) no later than the commencement of the Subsequent Exchange Offer, (B) keep such registrations or qualifications in effect and comply with such laws so as to permit the continuance of offers, sales and dealings therein in such jurisdictions until the expiration of the Resale Period and (C) take any and all other actions as may be reasonably necessary or advisable to enable each broker-dealer holding Exchange Securities to consummate the disposition thereof in such jurisdictions; provided, however, that neither the Company nor any of the Guarantors shall be required for any such purpose to (1) qualify as a foreign corporation in any jurisdiction wherein it would not otherwise be required to qualify but for the requirements of this Section 3(c)(vi), (2) consent to general service of process in any such jurisdiction or (3) in the case of the Company, make any changes to its certificate of incorporation or bylaws or any agreement between it and its stockholders, and in the case of the Guarantors, make any changes to (x) the certificate (or articles) of incorporation, certificate (or articles) of organization, certificate (or articles) of formation or certificate of limited partnership, as the case may be, and any amendments thereto, of any Guarantor, (y) the bylaws, limited liability company agreement, operating agreement or partnership agreement, as the case may be, and any amendments thereto, of any Guarantor or (z) any agreement between any Guarantor and its stockholders, shareholders, members or partners;

(vii) use all commercially reasonable efforts to obtain the consent or approval of each governmental agency or authority, whether federal, state or local, that may be required to effect the Exchange Registration, the Subsequent Exchange Offer and the offering and sale of Exchange Securities by broker-dealers during the Resale Period;

(viii) provide a CUSIP number for all Exchange Securities, not later than the applicable Effective Time; and

(ix) comply with all applicable rules and regulations of the Commission, and make generally available to its securityholders as soon as practicable but no later than 18 months after the Effective Time of such Exchange Registration Statement, an earnings statement of the Company and its subsidiaries complying with Section 11(a) of the Securities Act (including, at the option of the Company, Rule 158 thereunder).

(d) Until the expiration of one year after the Closing Date, the Company and the Guarantors will not, and will not permit any of their “affiliates” (as defined in Rule 144) to, resell any of the Securities that have been reacquired by any of them except pursuant to an effective registration statement under the Securities Act.

4. Registration Expenses .

The Company and the Guarantors agree to bear and to pay or cause to be paid promptly all expenses incident to the Company’s and the Guarantors’ performance of or compliance with this Agreement, including (a) all Commission and any FINRA registration, filing and review fees and expenses including fees and disbursements of counsel for the placement or sales agent or underwriters in connection with such registration, filing and review; (b) all expenses relating to the preparation, printing,

 

7


production, distribution and reproduction of each registration statement required to be filed hereunder, each prospectus included therein or prepared for distribution pursuant hereto, each amendment or supplement to the foregoing, the expenses of preparing the Securities for delivery and the expenses of printing or producing any blue sky or legal investment memoranda and all other documents in connection with the offering, sale or delivery of Securities to be disposed of (including certificates representing the Securities); (c) messenger, telephone and delivery expenses relating to the offering, sale or delivery of Securities and the preparation of documents referred in clause (b) above; (d) fees and expenses of the Trustee under the Indenture, any agent of the Trustee and any counsel for the Trustee and of any collateral agent or custodian; (e) internal expenses (including all salaries and expenses of the Company’s or Guarantors’ officers and employees performing legal or accounting duties); (f) fees, disbursements and expenses of counsel and independent certified public accountants of the Company (including the expenses of any opinions or “cold comfort” letters required by or incident to such performance and compliance); (g) any fees charged by securities rating services for rating the Securities; and (h) fees, expenses and disbursements of any other persons, including special experts, retained by the Company or its Guarantors in connection with this Agreement (collectively, the “ Registration Expenses ”). To the extent that any reasonable fees are incurred, assumed or paid by any holder of Registrable Securities or its counsel, the Company or its Guarantors shall reimburse such person for the full amount of such reasonable fees so incurred, assumed or paid promptly after receipt of a request therefor. Notwithstanding the foregoing, the holders of the Registrable Securities being registered shall pay all agency fees and commissions attributable to the sale of such Registrable Securities.

5. Representations and Warranties .

The Company and each of the Guarantors represents and warrants to, and agrees with, the Dealer Managers and each of the holders from time to time of Registrable Securities that:

(a) Each registration statement covering Registrable Securities and each prospectus (including any preliminary or summary prospectus) contained therein or furnished pursuant to Section 3(c) hereof and any further amendments or supplements to any such registration statement or prospectus, when it becomes effective or is filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and at all times subsequent to the Effective Time when a prospectus would be required to be delivered under the Securities Act, other than from (i) such time as a notice has been given to holders of Registrable Securities pursuant to Section 3(c)(iii)(F) hereof until (ii) such time as the Company furnishes an amended or supplemented prospectus pursuant to Section 3(c)(iv) hereof, each such registration statement, and each prospectus (including any summary prospectus) contained therein or furnished pursuant to Section 3(c) hereof, as then amended or supplemented, will conform in all material respects to the requirements of the Securities Act and the Trust Indenture Act and the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by a holder of Registrable Securities expressly for use therein.

(b) Any documents incorporated by reference in any prospectus referred to in Section 5(a) hereof, when they become or became effective or are or were filed with the Commission, as the case may be, will conform or conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and none of such documents will contain or contained an untrue statement of a material fact or will omit or omitted to state a material fact required to be stated therein

 

8


or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by a holder of Registrable Securities expressly for use therein.

(c) The compliance by the Company and the Guarantors with all of the provisions of this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a material breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any subsidiary of the Company is a party or by which the Company or any subsidiary of the Company is bound or to which any of the property or assets of the Company or any subsidiary of the Company is subject, nor will such action result in any violation of the provisions of the articles of incorporation, as amended, or the bylaws of the Company; the certificate (or articles) of incorporation, certificate (or articles) of organization, certificate (or articles) of formation or certificate of limited partnership, as the case may be, and any amendments thereto, of any Guarantor; the bylaws, limited liability company agreement, operating agreement or partnership agreement, as the case may be, and any amendments thereto, of any Guarantor; or any material violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any subsidiary of the Company or any of their properties; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the consummation by the Company and the Guarantors of the transactions contemplated by this Agreement, except the registration under the Securities Act of the Securities, qualification of the Indenture under the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under State securities or blue sky laws in connection with the offering and distribution of the Securities.

(d) This Agreement has been duly authorized, executed and delivered by the Company and each Guarantor.

6. Indemnification .

(a) Indemnification by the Company and the Guarantors. The Company and the Guarantors, jointly and severally, will indemnify and hold harmless each of the holders of Registrable Securities included in an Exchange Registration Statement, and each person who participates as a placement or sales agent or as an underwriter in any offering or sale of such Registrable Securities against any losses, claims, damages or liabilities, joint or several, to which such holder, agent or underwriter may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Exchange Registration Statement under which such Registrable Securities were registered under the Securities Act, or any preliminary, final or summary prospectus contained therein or furnished by the Company to any such holder, agent or underwriter, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse such holder, such agent and such underwriter for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such action or claim as such expenses are incurred; provided, however, that neither the Company nor any Guarantor shall be liable to any such person in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any registration statement contemplated hereunder, or preliminary, final or summary prospectus, or amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by such person expressly for use therein.

 

9


(b) Notices of Claims, Etc. Promptly after receipt by an indemnified party under subsection (a) above of written notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party pursuant to the indemnification provisions of or contemplated by this Section 6, notify such indemnifying party in writing of the commencement of such action; but the omission so to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under the indemnification provisions of or contemplated by Section 6(a) hereof. In case any such action shall be brought against any indemnified party and it shall notify an indemnifying party of the commencement thereof, such indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, such indemnifying party shall not be liable to such indemnified party for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.

(c) Contribution. If for any reason the indemnification provisions contemplated by Section 6(a) are unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative fault of such indemnifying party and indemnified party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by such indemnifying party or by such indemnified party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The parties hereto agree that it would not be just and equitable if contributions pursuant to this Section 6(c) were determined by pro rata allocation (even if the holders or any agents or underwriters or all of them were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in this Section 6(c). The amount paid or payable by an indemnified party as a result of the losses, claims, damages, or liabilities (or actions in respect thereof) referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 6(c), no holder shall be required to contribute any amount in excess of the amount by which the dollar amount of the proceeds received by such holder from the sale of any Registrable Securities (after deducting any fees, discounts and commissions applicable thereto) exceeds the amount of any damages that such holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission, and no underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Registrable Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such underwriter has otherwise been required to

 

10


pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The holders’ obligations in this Section 6(c) to contribute shall be several in proportion to the principal amount of Registrable Securities registered by them and not joint.

(d) The obligations of the Company and the Guarantors under this Section 6 shall be in addition to any liability which the Company or the Guarantors may otherwise have and shall extend, upon the same terms and conditions, to each officer, director and partner of each holder, agent and underwriter and each person, if any, who controls any holder, agent or underwriter within the meaning of the Securities Act; and the obligations of the holders and any agents or underwriters contemplated by this Section 6 shall be in addition to any liability which the respective holder, agent or underwriter may otherwise have and shall extend, upon the same terms and conditions, to each officer and director of the Company or any Guarantor (including any person who, with his consent, is named in any registration statement as about to become a director of the Company or any Guarantor) and to each person, if any, who controls the Company within the meaning of the Securities Act.

7. Rule 144 .

The Company covenants to the holders of Registrable Securities that to the extent it shall be required to do so under the Exchange Act, the Company shall timely file the reports required to be filed by it under the Exchange Act or the Securities Act (including the reports under Section 13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by the Commission under the Securities Act) and the rules and regulations adopted by the Commission thereunder, and shall take such further action as any holder of Registrable Securities may reasonably request, all to the extent required from time to time to enable such holder to sell Registrable Securities without registration under the Securities Act within the limitations of the exemption provided by Rule 144 under the Securities Act, as such Rule may be amended from time to time, or any similar or successor rule or regulation hereafter adopted by the Commission. Upon the request of any holder of Registrable Securities in connection with that holder’s sale pursuant to Rule 144, the Company shall deliver to such holder a written statement as to whether it has complied with such requirements.

8. Miscellaneous .

(a) No Inconsistent Agreements. The Company and each Guarantor represents, warrants, covenants and agrees that it has not granted, and shall not grant, registration rights with respect to Registrable Securities or any other securities which would be inconsistent with the terms contained in this Agreement.

(b) Specific Performance. The parties hereto acknowledge that there would be no adequate remedy at law if the Company or any Guarantor fails to perform any of its obligations hereunder and that the Dealer Managers and the holders from time to time of the Registrable Securities may be irreparably harmed by any such failure, and accordingly agree that the Dealer Managers and such holders, in addition to any other remedy to which they may be entitled at law or in equity, shall be entitled to seek specific performance of the obligations of the Company and the Guarantors under this Agreement in accordance with the terms and conditions of this Agreement, in any court of the United States or any state thereof having jurisdiction.

(c) Notices. All notices, requests, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered by hand, if delivered personally or by courier, or three days after being deposited in the mail (registered or certified mail, postage prepaid, return receipt requested) as follows: If to the Company, to it at 13737 Noel Road, Dallas, Texas 75240, Attention: Chief Financial Officer, and if to a holder, to the address

 

11


of such holder set forth in the security register or other records of the Company, or to such other address as the Company or any such holder may have furnished to the other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt.

(d) Parties in Interest. All the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by the parties hereto and the holders from time to time of the Registrable Securities and the respective successors and assigns of the parties hereto and such holders. In the event that any transferee of any holder of Registrable Securities shall acquire Registrable Securities, in any manner, whether by gift, bequest, purchase, operation of law or otherwise, such transferee shall, without any further writing or action of any kind, be deemed a beneficiary hereof for all purposes and such Registrable Securities shall be held subject to all of the terms of this Agreement, and by taking and holding such Registrable Securities such transferee shall be entitled to receive the benefits of, and be conclusively deemed to have agreed to be bound by all of the applicable terms and provisions of this Agreement. If the Company shall so request, any such successor, assign or transferee shall agree in writing to acquire and hold the Registrable Securities subject to all of the applicable terms hereof.

(e) Survival. The respective indemnities, agreements, representations, warranties and each other provision set forth in this Agreement or made pursuant hereto shall remain in full force and effect regardless of any investigation (or statement as to the results thereof) made by or on behalf of any holder of Registrable Securities, any director, officer or partner of such holder, any agent or underwriter or any director, officer or partner thereof, or any controlling person of any of the foregoing, and shall survive delivery of and payment for the Registrable Securities pursuant to the Dealer Manager Agreement and the transfer and registration of Registrable Securities by such holder and the consummation of a Subsequent Exchange Offer.

(f) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York.

(g) Headings. The descriptive headings of the several sections and paragraphs of this Agreement are inserted for convenience only, do not constitute a part of this Agreement and shall not affect in any way the meaning or interpretation of this Agreement.

(h) Entire Agreement; Amendments. This Agreement and the other writings referred to herein (including the Indenture, the Dealer Manager Agreement and the form of Securities) or delivered pursuant hereto which form a part hereof contain the entire understanding of the parties with respect to its subject matter. This Agreement supersedes all prior agreements and understandings between the parties with respect to its subject matter. This Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) only by a written instrument duly executed by the Company, the Guarantors and the holders of at least a majority in aggregate principal amount of the Registrable Securities at the time outstanding. Each holder of any Registrable Securities at the time or thereafter outstanding shall be bound by any amendment or waiver effected pursuant to this Section 8(h), whether or not any notice, writing or marking indicating such amendment or waiver appears on such Registrable Securities or is delivered to such holder.

(i) Inspection. For so long as this Agreement shall be in effect, this Agreement and a complete list of the names and addresses of all the holders of Registrable Securities shall be made available for inspection and copying on any Business Day by any holder of Registrable Securities for proper purposes only (which shall include any purpose related to the rights of the holders of Registrable Securities under the Securities, the Indenture and this Agreement) at the offices of the Company at the address thereof set forth in Section 8(c) above and at the office of the Trustee under the Indenture.

 

12


(j) Counterparts. This Agreement may be executed by the parties in counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument.

(signature pages follow)

 

13


If the foregoing is in accordance with your understanding, please sign and return to us two counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the holders, this letter and such acceptance hereof shall constitute a binding agreement among each of the holders, the Guarantors and the Company.

 

Very truly yours,
TENET HEALTHCARE CORPORATION
By:  

/s/    Biggs C. Porter

Name:   Biggs C. Porter
Title:   Chief Financial Officer


CORAL GABLES HOSPITAL, INC., as:
General Partner of CGH HOSPITAL, LTD.

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer
FMC ACQUISITION, INC., as:
General Partner of FMC HOSPITAL, LTD.

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer
TENET PHYSICIAN SERVICES—HILTON HEAD, INC., as:
General Partner of HILTON HEAD HEALTH SYSTEM, L.P.

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer
CYPRESS FAIRBANKS MEDICAL CENTER, INC., as:
General Partner of NEW MEDICAL HORIZONS II, LTD.

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer
TENET LOUISIANA, INC., as:
Sole and Managing Member of NORTHSHORE
REGIONAL MEDICAL CENTER, L.L.C.

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer


TENET TEXAS, INC., as:
General Partner of TENET FRISCO, LTD.

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer
TENET HEALTHSYSTEM PHILADELPHIA,
INC., as:
Managing Member of TENET HEALTHSYSTEM
HAHNEMANN, LLC

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer
TENET HEALTHSYSTEM PHILADELPHIA,
INC., as:
Managing Member of TENET HEALTHSYSTEM
ST. CHRISTOPHER’S HOSPITAL FOR
CHILDREN, L.L.C.

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer
TENET TEXAS, INC., as:
General Partner of TENET HOSPITALS LIMITED

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer
LIFEMARK HOSPITALS, INC., as:
General Partner of TH HEALTHCARE, LTD.

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer


AMERICAN MEDICAL (CENTRAL), INC.

AMI INFORMATION SYSTEMS GROUP, INC.

AMISUB (HEIGHTS), INC.

AMISUB (HILTON HEAD), INC.

AMISUB (SFH), INC.

AMISUB (TWELVE OAKS), INC.

AMISUB OF NORTH CAROLINA, INC.

AMISUB OF SOUTH CAROLINA, INC.

AMISUB OF TEXAS, INC.

BROOKWOOD HEALTH SERVICES, INC.

COASTAL CAROLINA MEDICAL CENTER, INC.

COMMUNITY HOSPITAL OF LOS GATOS, INC.

CORAL GABLES HOSPITAL, INC.

CYPRESS FAIRBANKS MEDICAL CENTER, INC.

DELRAY MEDICAL CENTER, INC.

DOCTORS HOSPITAL OF MANTECA, INC.

DOCTORS MEDICAL CENTER OF MODESTO, INC.

EAST COOPER COMMUNITY HOSPITAL, INC.

FMC ACQUISITION, INC.

FMC MEDICAL, INC.

FOUNTAIN VALLEY REGIONAL HOSPITAL AND MEDICAL CENTER

FRYE REGIONAL MEDICAL CENTER, INC.

JFK MEMORIAL HOSPITAL, INC.

LAKEWOOD REGIONAL MEDICAL CENTER, INC.

LIFEMARK HOSPITALS OF FLORIDA, INC.

LIFEMARK HOSPITALS, INC.

LOS ALAMITOS MEDICAL CENTER, INC.

MCF, INC., A FLORIDA CORPORATION

NORTH FULTON MEDICAL CENTER, INC.

ORNDA HOSPITAL CORPORATION

PALM BEACH GARDENS COMMUNITY HOSPITAL, INC.

PLACENTIA-LINDA HOSPITAL, INC.

SAN RAMON REGIONAL MEDICAL CENTER, INC.

SIERRA VISTA HOSPITAL, INC.

TENET CALIFORNIA, INC.

TENET FLORIDA, INC.

TENET GOOD SAMARITAN, INC.

TENET HEALTHSYSTEM BARTLETT, INC.

TENET HEALTHSYSTEM CFMC, INC.

TENET HEALTHSYSTEM DESERT, INC.

TENET HEALTHSYSTEM DI, INC.

TENET HEALTHSYSTEM GB, INC.

TENET HEALTHSYSTEM HEALTHCORP

TENET HEALTHSYSTEM HOLDINGS, INC.

TENET HEALTHSYSTEM MEDICAL, INC.

TENET HEALTHSYSTEM NORRIS, INC.

TENET HEALTHSYSTEM NORTH SHORE, INC.

TENET HEALTHSYSTEM PHILADELPHIA, INC.

TENET HEALTHSYSTEM SGH, INC.

TENET HEALTHSYSTEM SL, INC.

TENET HEALTHSYSTEM SPALDING, INC.


TENET HIALEAH HEALTHSYSTEM, INC.
TENET HOSPITALS, INC.
TENET LOUISIANA, INC.
TENET MISSOURI, INC.
TENET PHYSICIAN SERVICES—HILTON     HEAD, INC.
TENET SOUTH FULTON, INC.
TENET ST. MARY’S, INC.
TENET TEXAS, INC.
TENETSUB TEXAS, INC.
TWIN CITIES COMMUNITY HOSPITAL, INC.
USC UNIVERSITY HOSPITAL, INC.
WEST BOCA MEDICAL CENTER, INC.

/s/    Jeffrey S. Sherman

Name:   Jeffrey S. Sherman
Title:   Treasurer


The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
CITIGROUP GLOBAL MARKETS INC.
(on behalf of the holders)
By:  

/s/    Richard Hardy

Name:   Richard Hardy
Title:   Director
BANC OF AMERICA SECURITIES LLC
(on behalf of the holders)
By:  

/s/    R. Sean Snipes

Name:   R. Sean Snipes
Title:   Managing Director
GOLDMAN, SACHS & CO.
(on behalf of the holders)
By:  

/s/    Goldman, Sachs & Co.

  Goldman, Sachs & Co.
SCOTIA CAPITAL (USA) INC.
(on behalf of the holders)
By:  

/s/    Greg Greer

Name:   Greg Greer
Title:   Managing Director


Schedule I

Guarantors

American Medical (Central), Inc.

AMI Information Systems Group, Inc.

Amisub (Heights), Inc.

Amisub (Hilton Head), Inc.

Amisub (SFH), Inc.

Amisub (Twelve Oaks), Inc.

Amisub of North Carolina, Inc.

Amisub of South Carolina, Inc.

Amisub of Texas, Inc.

Brookwood Health Services, Inc.

CGH Hospital, Ltd.

Coastal Carolina Medical Center, Inc.

Community Hospital of Los Gatos, Inc.

Coral Gables Hospital, Inc.

Cypress Fairbanks Medical Center, Inc.

Delray Medical Center, Inc.

Doctors Hospital of Manteca, Inc.

Doctors Medical Center of Modesto, Inc.

East Cooper Community Hospital, Inc.

FMC Acquisition, Inc.

FMC Hospital, Ltd.

FMC Medical, Inc.

Fountain Valley Regional Hospital and Medical Center

Frye Regional Medical Center, Inc.

Hilton Head Health System, L.P.

JFK Memorial Hospital, Inc.

Lakewood Regional Medical Center, Inc.

Lifemark Hospitals of Florida, Inc.

Lifemark Hospitals, Inc.

Los Alamitos Medical Center, Inc.

MCF, Inc., a Florida corporation

New Medical Horizons II, Ltd.

North Fulton Medical Center, Inc.

NorthShore Regional Medical Center, L.L.C.

OrNda Hospital Corporation

Palm Beach Gardens Community Hospital, Inc.

Placentia-Linda Hospital, Inc.

San Ramon Regional Medical Center, Inc.

Sierra Vista Hospital, Inc.

Tenet California, Inc.

Tenet Florida, Inc.

Tenet Frisco, Ltd.

Tenet Good Samaritan, Inc.

Tenet HealthSystem Bartlett, Inc.

Tenet HealthSystem CFMC, Inc.

Tenet HealthSystem Desert, Inc.

Tenet HealthSystem DI, Inc.

Tenet HealthSystem GB, Inc.


Tenet HealthSystem Hahnemann, LLC

Tenet HealthSystem HealthCorp

Tenet HealthSystem Holdings, Inc.

Tenet HealthSystem Medical, Inc.

Tenet HealthSystem Norris, Inc.

Tenet HealthSystem North Shore, Inc.

Tenet HealthSystem Philadelphia, Inc.

Tenet HealthSystem SGH, Inc.

Tenet HealthSystem SL, Inc.

Tenet HealthSystem Spalding, Inc.

Tenet HealthSystem St. Christopher’s Hospital for Children, L.L.C.

Tenet Hialeah HealthSystem, Inc.

Tenet Hospitals, Inc.

Tenet Hospitals Limited

Tenet Louisiana, Inc.

Tenet Missouri, Inc.

Tenet Physician Services—Hilton Head, Inc.

Tenet South Fulton, Inc.

Tenet St. Mary’s, Inc.

Tenet Texas, Inc.

Tenetsub Texas, Inc.

TH Healthcare, Ltd.

Twin Cities Community Hospital, Inc.

USC University Hospital, Inc.

West Boca Medical Center, Inc.