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.
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“ 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
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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.
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(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;
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(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, a
