COLLATERAL TRUST AGREEMENT dated as of March 3, 2009 among

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

 

 

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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

 

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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.

 

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“ 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

 

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(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.

 

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“ 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.

 

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“ 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);

 

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(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)