ADDITIONAL GENERAL INTERCREDITOR AGREEMENT
EXHIBIT 4.6
ADDITIONAL GENERAL INTERCREDITOR AGREEMENT (this “Agreement”), dated as of April 22, 2009, by
and among BANK OF AMERICA, N.A., in its capacity as First Lien Collateral Agent, including its
successors and assigns from time to time, THE BANK OF NEW YORK MELLON, in its capacity as Junior
Lien Collateral Agent and in its capacity as 2006 Second Lien Trustee, including its successors and
assigns from time to time, and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., in its capacity as
2009 Second Lien Trustee, including its successors and assigns from time to time.
A. Reference is made to (i) the General Intercreditor Agreement dated as of November 17, 2006
(as may be amended or modified from time to time, the “Intercreditor Agreement”; capitalized terms
used herein without definition have the meanings given such terms by the Intercreditor Agreement)
by and between Bank of America, N.A. as First Lien Collateral Agent and The Bank of New York
Mellon, as Junior Lien Collateral Agent, and (ii) the Indenture (the “New First Lien Agreement”),
dated as April 22, 2009, by and among the Company and the other Grantors, Law Debenture Trust
Company of New York, as trustee (including its successors and assigns from time to time, the “New
First Lien Trustee”), and Deutsche Bank Trust Company Americas, as registrar, paying agent and
transfer agent.
B. Pursuant to the terms of the Junior Lien Documents, the Junior Lien Collateral Agent is
permitted to enter into this Agreement.
C. Pursuant to the First Lien Security Documents, the Grantors have granted Liens in the
Common Collateral to the First Lien Collateral Agent to secure the payment and performance of the
New First Lien Obligations.
D In order to induce the holders of New First Lien Obligations to extend credit to the
Grantors, the First Lien Collateral Agent, the Junior Lien Collateral Agent and the New First Lien
Trustee hereby agree as follows:
SECTION 1. Definitions.
1.1. Defined Terms. As used in this Agreement, the following terms have the meanings
specified below:
“Agreement” shall mean this Agreement, as amended, renewed, extended, supplemented or
otherwise modified from time to time in accordance with the terms hereof.
“Common Collateral” shall mean all of the assets of any Grantor, whether real, personal or
mixed, constituting both New First Lien Collateral and Junior Lien Collateral including without
limitation (a) any assets in which the First Lien Collateral Agent is automatically deemed to have
a Lien pursuant to the provisions of Section 2.3 of the Intercreditor Agreement (as
incorporated into this Agreement pursuant to Section 2.1 hereof) and (b) Shared Receivables
Collateral.
“Discharge of New First Lien Obligations” shall mean, except to the extent otherwise provided
in Section 5.7 of the Intercreditor Agreement, the discharge or legal defeasance
or covenant defeasance of the New First Lien Agreement in accordance with its terms; provided
that the Discharge of New First Lien Obligations shall not be deemed to have occurred if such
payments are made with the proceeds of other New First Lien Obligations that constitute an exchange
or replacement for or a Refinancing, in whole or in part, of such New First Lien Obligations. In
the event the New First Lien Obligations are modified and such Obligations are paid over time or
otherwise modified pursuant to Section 1129 of the Bankruptcy Code, the New First Lien Obligations
shall be deemed to be discharged when the final payment is made, in cash, in respect of such
indebtedness and any obligations pursuant to such new indebtedness shall have been satisfied.
“First Lien Collateral Agent” means Bank of America, N.A., in its capacity as administrative
agent and collateral agent for the lenders and other secured parties under the Credit Agreement and
the other First Lien Documents and in its capacity as collateral agent for the New First Lien
Secured Parties, together with its successors and permitted assigns under the Credit Agreement, any
New First Lien Agreement and the First Lien Documents exercising substantially the same rights and
powers; and in each case provided that if such First Lien Collateral Agent is not Bank of America,
N.A., such First Lien Collateral Agent shall have become a party to the Intercreditor Agreement,
this Agreement and the other applicable First Lien Security Documents.
“First Lien Documents” means the credit, guarantee and security documents governing the New
First Lien Obligations, including, without limitation, the New First Lien Agreement and the First
Lien Security Documents.
“First Lien Security Documents” means the Security Documents (as defined in the New First Lien
Agreement) and any other agreement, document or instrument pursuant to which a Lien is granted or
purported to be granted securing New First Lien Obligations or under which rights or remedies with
respect to such Liens are governed, in each case to the extent relating to Common Collateral.
“New First Lien Agreement” shall have the meaning set forth in the recitals.
“New First Lien Collateral” shall mean all of the assets of any Grantor, whether real,
personal or mixed, with respect to which a Lien is granted or purported to be granted as security
for any New First Lien Obligations pursuant to a First Lien Security Document.
“New First Lien Obligations” shall mean all advances to, and debts, liabilities, obligations,
covenants and duties of, any Grantor arising under the New First Lien Agreement and any other First
Lien Documents, whether direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and including interest and fees
that accrue after the commencement by or against any Grantor or any Affiliate thereof of any
proceeding under any bankruptcy or insolvency law naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed claims in such proceeding, in
each case, that have been designated as “Additional First Lien Obligations” pursuant to and in
accordance with Section 8.17 of the Security Agreement (as defined in the New First Lien
Agreement).
“New First Lien Secured Parties” means, at any relevant time, the holders of New First Lien
Obligations at such time, including without limitation the New First Lien Trustee and the holders
of notes issued pursuant to the New First Lien Agreement.
“Second Lien Trustees” means the 2006 Second Lien Trustee, the 2009 Second Lien Trustee and
any trustee that enters into a joinder to this Agreement pursuant to Section 3.13 any successor
trustee in accordance with the applicable Junior Lien Document.
“2006 Second Lien Trustee” means The Bank of New York Mellon, as trustee under the Indenture,
and any successor trustee in accordance with the Indenture.
“2009 Second Lien Trustee” means The Bank of New York Mellon Trust Company, N.A., as trustee
under the Indenture, dated as of February 19, 2009, among the Company, the guarantors identified
therein and the 2009 Second Lien Trustee, and any successor trustee in accordance with such
indenture.
1.2. Terms Generally. The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include,”
“includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The
word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified in accordance with this Agreement,
(b) any reference herein to any Person shall be construed to include such Person’s successors and
assigns, (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular provision hereof,
(d) all references herein to Sections shall be construed to refer to Sections of this Agreement and
(e) the words “asset” and “property” shall be construed to have the same meaning and effect and to
refer to any and all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
SECTION 2. INTERCREDITOR AGREEMENT.
2.1. Subordination of Liens; Rights of New First Lien Secured Parties. The First Lien
Collateral Agent, on behalf of itself and the New First Lien Secured Parties, the New First Lien
Trustee, on behalf of itself and the New First Lien Secured Parties, and the Junior Lien Collateral
Agent and the Second Lien Trustees, each on behalf of itself and the Junior Lien Secured Parties,
hereby agree that notwithstanding (i) the date, time, manner or order of filing or recordation of
any document or instrument or grant, attachment or perfection (including any defect or deficiency
or alleged defect or deficiency in any of the foregoing) of any Liens granted to the Junior Lien
Collateral Agent or the Junior Lien Secured Parties on the Common Collateral or of any Liens
granted to the First Lien Collateral Agent or the New First Lien Secured Parties on the Common
Collateral to secure the New First Lien Obligations, (ii) any provision of the UCC, the Bankruptcy
Code, any applicable law, the Junior Lien Documents or the First Lien Documents, (iii) whether the
First Lien Collateral Agent, either directly or through agents, holds possession of, or has control
over, all or any part of the Common Collateral, (iv) the fact that any
such Liens may be subordinated, voided, avoided, invalidated or lapsed or (v) any other
circumstance of any kind or nature whatsoever: (a) any Lien on the Common Collateral securing any
New First Lien Obligations now or hereafter held by or on behalf of the First Lien Collateral Agent
or any New First Lien Secured Parties or any agent or trustee therefor regardless of how acquired,
whether by grant, statute, operation of law, subrogation or otherwise, shall have priority over and
be senior in all respects and prior to any Lien on the Common Collateral securing any Junior Lien
Obligations and (b) any Lien on the Common Collateral securing any Junior Lien Obligations now or
hereafter held by or on behalf of the Junior Lien Collateral Agent or any Junior Lien Secured Party
or any agent or trustee therefor regardless of how acquired, whether by grant, statute, operation
of law, subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on
the Common Collateral securing any New First Lien Obligations, in each case, to the same extent as
the Liens on the Common Collateral securing the Junior Lien Obligations are subordinate and junior
to the Liens securing the First Lien Obligations pursuant to the terms of the Intercreditor
Agreement as in effect on the date hereof. Prior to the Discharge of New First Lien Obligations,
(x) the New First Lien Secured Parties shall have all rights and benefits under this Agreement as
are provided to the “First Lien Secured Parties” pursuant to the Intercreditor Agreement with
respect to the Common Collateral prior to the Discharge of First Lien Obligations under the
Intercreditor Agreement, (y) the Junior Lien Collateral Agent and the Junior Lien Secured Parties
shall have all obligations with respect to the Common Collateral for the benefit of the New First
Lien Secured Parties as are required pursuant to the Intercreditor Agreement for the benefit of the
First Lien Secured Parties, and the provisions of the Intercreditor Agreement are incorporated
herein mutatis mutandis (it being understood that, prior to the Discharge of First
Lien Obligations, in the event of any conflict between this Agreement and the Intercreditor
Agreement, the Junior Lien Collateral Obligations and the Junior Lien Secured Parties shall comply
with the provisions of the Intercreditor Agreement). For the avoidance of doubt, in incorporating
the provisions of the Intercreditor Agreement herein mutatis mutandis, (A) references in
the Intercreditor Agreement to “First Priority Liens,” when incorporated herein, shall be deemed to
include Liens securing New First Lien Obligations, (B) references in the Intercreditor Agreement to
the “Credit Agreement” in the definitions of “ABL Controlled Account,” “Indebtedness,” “Junior Lien
Obligations,” “Notes” and “Subsidiary” and in Sections 5.1(a), 5.1(c), 5.5(g), 5.7, 7.3(b), 8.3 and
8.19 of the Intercreditor Agreement, when incorporated herein, shall become references to the New
First Lien Agreement, (C) references in the Intercreditor Agreement to the “Indenture” in paragraph
A of the recitals, the definitions of “ABL Controlled Account,” “Indebtedness,” “Indenture
Documents,” “Indenture Obligations,” “Indenture Secured Parties,” “Indenture Security Documents,”
“Junior Lien Collateral Agent,” “Junior Lien Obligations,” “Officer’s Certificate” and “Subsidiary”
and in Sections 5.1(a), 7.3(b), 8.3, 8.18(b) and 8.19, when incorporated herein, shall become
references to the New First Lien Agreement, (D) the definition of “Indenture” in the Intercreditor
Agreement, when incorporated herein, shall instead read, “‘Indenture’ shall mean the New First Lien
Agreement” and (E) the definition of “Notes” in the Intercreditor Agreement, when incorporated
herein, shall instead read, “‘Notes’ shall mean the Notes under and as defined in the New First
Lien Agreement, including the exchange notes issued in exchange therefor as contemplated by the
Registration Rights Agreement (as defined in the New First Lien Agreement) and any additional notes
issued under the New First Lien Agreement by the Company, to the extent permitted by the New First
Lien Agreement and the Credit Agreement.
SECTION 3. Miscellaneous.
3.1. Amendments; Waivers. No amendment, modification or waiver of any of the
provisions of this Agreement by the Junior Lien Collateral Agent, the New First Lien Trustee, the
First Lien Collateral Agent or the Second Lien Trustees shall be deemed to be made unless the same
shall be in writing signed by or on behalf of the First Lien Collateral Agent, the New First Lien
Trustee, the Junior Lien Collateral Agent and the Second Lien Trustees or their respective
authorized agents, and consented to in writing by the Company, and each waiver, if any, shall be a
waiver only with respect to the specific instance involved and shall in no way impair the rights of
the parties making such waiver or the obligations of the other parties to such party in any other
respect or at any other time. Any Junior Lien Secured Party that executes a supplement or joinder
to the Intercreditor Agreement shall execute a supplement hereto agreeing to be bound by the terms
of this Agreement.
3.2. Consent to Jurisdiction; Waivers. The parties hereto consent to the jurisdiction
of any state or federal court located in New York, New York, and consent that all service of
process may be made by registered mail directed to such party as provided in Section 3.3
for such party. Service so made shall be deemed to be completed three days after the same shall be
posted as aforesaid. The parties hereto waive any objection to any action instituted hereunder in
any such court based on forum non conveniens, and any objection to the venue of any action
instituted hereunder in any such court. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, VERBAL OR WRITTEN STATEMENT OR ACTION
OF ANY PARTY HERETO IN CONNECTION WITH THE SUBJECT MATTER HEREOF.
3.3. Notices. All notices to the First Lien Collateral Agent or the Junior Lien
Collateral Agent permitted or required under this Agreement may be sent to the First Lien
Collateral Agent or the Junior Lien Collateral Agent, respectively, as provided in the
Intercreditor Agreement. All notices to the New First Lien Trustee permitted or required under
this Agreement may be sent to the New First Lien Trustee as provided in the New First Lien
Agreement. All notices to any Second Lien Trustee permitted or required under this Agreement may
be sent to such Second Lien Trustee as provided in the applicable indenture or other Junior Lien
Document. Unless otherwise specifically provided herein, any notice or other communication herein
required or permitted to be given shall be in writing and may be personally served, telecopied,
electronically mailed or sent by courier service or U.S. mail and shall be deemed to have been
given when delivered in person or by courier service, upon receipt of a telecopy or electronic mail
or upon receipt via U.S. mail (registered or certified, with postage prepaid and properly
addressed). For the purposes hereof, the addresses of the parties hereto shall be asset forth
below each party’s name on the signature pages hereto, or, as to each party, at such other address
as may be designated by such party in a written notice to all of the other parties.
3.4. Further Assurances. The Junior Lien Collateral Agent and the Second Lien
Trustees, each on behalf of itself and each Junior Lien Secured Party, and the First Lien
Collateral Agent, on behalf of itself and each New First Lien Secured Party, agree that each of
them shall take such further action and shall execute and deliver to the First Lien Collateral
Agent, the New First Lien Trustee and the New First Lien Secured Parties such additional
documents and instruments (in recordable form, if requested) as the First Lien Collateral Agent,
the New First Lien Trustee or the New First Lien Secured Parties may reasonably request to
effectuate the terms of and the lien priorities contemplated by this Agreement.
3.5. Governing Law. This Agreement has been delivered and accepted at and shall be
deemed to have been made at New York, New York and shall be interpreted, and the rights and
liabilities of the parties bound hereby determined, in accordance with the laws of the State of New
York.
3.6. Section Titles. The section titles contained in this Agreement are and shall be
without substantive meaning or content of any kind whatsoever and are not a part of this Agreement.
3.7. Counterparts. This Agreement may be executed in one or more counterparts,
including by means of facsimile or “pdf” file thereof, each of which shall be an original and all
of which shall together constitute one and the same document.
3.8. Authorization. By its signature, each party hereto represents and warrants to
the other parties hereto that the Person executing this Agreement on behalf of such party is duly
authorized to execute this Agreement. The New First Lien Trustee represents and warrants that this
Agreement is binding upon the New First Lien Secured Parties. The Junior Lien Collateral Agent,
the Second Lien Trustees and each Junior Lien Representative represent and warrant that this
Agreement is binding upon the Junior Lien Secured Parties.
3.9. No Third Party Beneficiaries; Successors and Assigns. This Agreement and the
rights and benefits hereof shall inure to the benefit of, and be binding upon, each of the parties
hereto and their respective successors and assigns and shall inure to the benefit of each of, and
be binding upon, the First Lien Collateral Agent, the New First Lien Secured Parties, the New First
Lien Trustee, the Junior Lien Secured Parties, the Second Lien Trustees, the Junior Lien
Representatives, the Junior Lien Collateral Agent, the Company, the Company’s Subsidiaries
consenting hereto and their respective permitted successors and assigns. No other Person shall
have or be entitled to assert rights or benefits hereunder.
3.10. Effectiveness. This Agreement shall become effective when executed and
delivered by the parties hereto. This Agreement shall be effective both before and after the
commencement of any Insolvency or Liquidation Proceeding. All references to the Company or any
other Grantor shall include the Company or any other Grantor as debtor and debtor-in-possession and
any receiver or trustee for the Company or any other Grantor (as the case may be) in any Insolvency
or Liquidation Proceeding.
3.11. Other Provisions Applicable to Agents and Trustees. It is understood and agreed
that (a) Bank of America is entering into this Agreement in its capacity as First Lien Collateral
Agent, and the provisions of Section 11.02 of the New First Lien Agreement applicable to the
collateral agent thereunder shall also apply to the First Lien Collateral Agent hereunder, (b) The
Bank of New York Mellon is entering into this Agreement in its capacity as Junior Lien Collateral
Agent and 2006 Second Lien Trustee and the provisions of Article VI applicable to the
trustee and Section 11.02 of the Indenture applicable to the collateral agent thereunder shall
also apply to the Junior Lien Collateral Agent and the 2006 Second Lien Trustee hereunder, (c) The
Bank of New York Mellon Trust Company, N.A. is entering into this Agreement in its capacity as 2009
Second Lien Trustee and (d) Law Debenture Trust Company of New York has acknowledged and accepted
the terms of this Agreement in its capacity as New First Lien Trustee through its execution of an
Additional First Lien Secured Party Consent in the form attached as an exhibit to the Security
Agreement (as defined in the New First Lien Agreement), and the provisions of Article VII of the
New First Lien Agreement applicable to the trustee thereunder shall also apply to the New First
Lien Trustee hereunder.
3.12. Joinders to this Agreement. If, after the date hereof, the Company shall
designate any additional Junior Lien Obligations as Additional Secured Obligations pursuant to
Section 8.17 of the Security Agreement, dated as of November 17, 2006, among the Company, the
subsidiary grantors named therein and the Junior Lien Collateral Agent, and Section 27 of the
Pledge Agreement, dated as of November 17, 2006, among the Company, the subsidiary pledgors named
therein and the Junior Lien Collateral Agent, the Company shall cause the applicable Second Lien
Trustee or other authorized representative of such Junior Lien Obligations that signs the
Additional Secured Party Consents pursuant to such Security Agreement and Pledge Agreement to enter
into a joinder to this Agreement substantially in the form of Annex A hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.
| BANK OF AMERICA, N.A., as First Lien Collateral Agent |
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| By: | /s/ ▇▇▇▇▇▇▇▇ ▇. Manduk | |||
| Name: | ▇▇▇▇▇▇▇▇ ▇. Manduk | |||
| Title: | Assistant Vice President | |||
| THE BANK OF NEW YORK MELLON, as Junior Lien Collateral Agent and as 2006 Second Lien Trustee |
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| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: | Vice President | |||
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as 2009 Second Lien Trustee |
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| By: | /s/ Stefan Victory | |||
| Name: | Stefan Victory | |||
| Title: | Vice President | |||
ANNEX A TO THE
ADDITIONAL GENERAL INTERCREDITOR AGREEMENT
ADDITIONAL GENERAL INTERCREDITOR AGREEMENT
[Form of]
JOINDER TO ADDITIONAL GENERAL INTERCREDITOR AGREEMENT
| The Bank of New York Mellon, as Junior Lien Collateral Agent ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ [Name of Additional Second Lien Trustee] [Address of Additional Second Lien Trustee] [Date] |
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Bank of America, N.A.,
as First Lien Collateral Agent
[Address]
as First Lien Collateral Agent
[Address]
Ladies and Gentlemen:
The undersigned are the Junior Lien Collateral Agreement and the Second Lien Trustee in
respect of the Junior Lien Obligations under the [Insert new indenture or other Junior Lien
Document under which the additional Second Lien Trustee and the Junior Lien Collateral Agent are
acting], dated as of [ ] (the “New Second Lien Indenture”), among the
Company, the guarantors party thereto and [Insert name of Second Lien Trustee], as trustee (the
“New Second Lien Trustee”). Terms used without definition herein have the meanings assigned to
such term by the Additional General Intercreditor Agreement, dated as of [ ], 2009
(the “Additional General Intercreditor Agreement”), among Bank of America, N.A., as First Lien
Collateral Agent, The Bank of New York Mellon, as Junior Lien Collateral Agent and 2006 Second Lien
Trustee, and The Bank of New York Mellon Trust Company, N.A., as 2009 Second Lien Indenture
Trustee.
The undersigned and the First Lien Collateral Agent hereby agree for the benefit of the New
First Lien Secured Parties as follows:
1. Joinder. Each of the undersigned hereby acknowledges that it has received and
reviewed a copy of the Additional General Intercreditor Agreement and all other documents it deems
fit to enter into this joinder to the Additional General Intercreditor Agreement (the “Joinder
Agreement”), and acknowledges and agrees to (i) join and become a party to the Additional
General Intercreditor Agreement with respect to the Junior Lien Obligations under the New Second
Lien Indenture as indicated by its signature below; (ii) be bound by all covenants, agreements,
representations, warranties and acknowledgments attributable to a Second
Lien Trustee, the Junior Lien Collateral Agent or a Junior Lien Secured Party, as the case may
be, in the Additional General Intercreditor Agreement as if made by, and with respect to, each
signatory hereto; and (iii) perform all obligations and duties required of a Second Lien Trustee,
the Junior Lien Collateral Agent or a Junior Lien Secured Party, as the case may be, pursuant to
the Additional General Intercreditor Agreement.
2. Acknowledgment. Each of the undersigned acknowledges that, notwithstanding
anything to the contrary in any Junior Lien Document, (i) the liens and security interests granted
to the Junior Lien Collateral Agent pursuant to the Security Agreement, dated as of November 17,
2006 (the “Security Agreement”), among the Company, the subsidiary grantors named therein and the
Junior Lien Collateral Agent, the Pledge Agreement, dated as of November 17, 2006 (the “Pledge
Agreement”), among the Company, the subsidiary pledgors named therein and the Junior Lien
Collateral Agent, and any other Junior Lien Security Documents are expressly subject and
subordinate to the liens and security interests granted to the First Lien Collateral Agent for the
benefit of the New First Lien Secured Parties pursuant to the Additional General Intercreditor
Agreement and (ii) the exercise of any right or remedy by the Junior Lien Collateral Agent under
the Security Agreement, the Pledge Agreement or any other Junior Lien Security Document is subject
to the limitations and provisions of the Additional General Intercreditor Agreement.
Notwithstanding anything in the Security Agreement, the Pledge Agreement or any other Junior Lien
Security Document to the contrary, prior to the Discharge of New First Lien Obligations, the
requirements under the Security Agreement, the Pledge Agreement and any other Junior Lien Security
Document to deliver Collateral (as defined under each such document) shall be deemed satisfied by
delivery of such Collateral to the First Lien Collateral Agent.
3. Authorization. By its signature, each party hereto represents and warrants to the
other parties hereto that the Person executing this Joinder Agreement on behalf of such party is
duly authorized to execute this Joinder Agreement. The New Second Lien Trustee represents and
warrants that it has been authorized by the Junior Lien Secured Parties in respect of the New
Second Lien Indenture to execute this Joinder Agreement on their behalf.
4. Governing Law. This Agreement has been delivered and accepted at and shall be
deemed to have been made at New York, New York and shall be interpreted, and the rights and
liabilities of the parties bound hereby determined, in accordance with the laws of the State of New
York.
5. Section Titles. The section titles contained in this Agreement are and shall be
without substantive meaning or content of any kind whatsoever and are not a part of this Agreement.
6. Counterparts. This Agreement may be executed in one or more counterparts,
including by means of facsimile or “pdf” file thereof, each of which shall be an original and all
of which shall together constitute one and the same document.
7. Amendments. No amendment or waiver of any provision of this Joinder Agreement, nor
any consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties thereto.
| Very truly yours, [NAME OF NEW SECOND LIEN TRUSTEE] |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| THE BANK OF NEW YORK MELLON, as Junior Lien Collateral Agent |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| Acknowledged and Agreed: BANK OF AMERICA, N.A., as First Lien Collateral Agent |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| Consented to by: HCA Inc., a Delaware corporation |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| The Grantors listed on Schedule I to the Security Agreement, each as Grantor |
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| By: | ||||
| Name: | ||||
| Title: | ||||
CONSENT OF COMPANY AND GRANTORS
Dated: April 22, 2009
Reference is made to the Additional General Intercreditor Agreement dated as of the date
hereof, among Bank of America, N.A., as First Lien Collateral Agent, The Bank of New York Mellon,
as Junior Lien Collateral Agent and 2006 Second Lien Trustee (as defined therein), and The Bank of
New York Mellon Trust Company, N.A., as 2009 Second Lien Indenture Trustee (as defined therein), as
the same may be amended, restated, supplemented, waived, or otherwise modified from time to time
(the “Intercreditor Agreement”). Capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Intercreditor Agreement.
Each of the undersigned Grantors has read the foregoing Intercreditor Agreement and consents
thereto. Each of the undersigned Grantors agrees not to take any action that would be contrary to
the express provisions of the foregoing Intercreditor Agreement, agrees to abide by the
requirements expressly applicable to it under the foregoing Intercreditor Agreement and agrees
that, except as otherwise provided therein, neither the First Lien Collateral Agent, the New First
Lien Trustee, any New First Lien Secured Party nor any Junior Lien Secured Party shall have any
liability to any Grantor for acting in accordance with the provisions of the foregoing
Intercreditor Agreement, the First Lien Documents or the Junior Lien Documents. Each Grantor
understands that the foregoing Intercreditor Agreement is for the sole benefit of the New First
Lien Secured Parties and the Junior Lien Secured Parties and their respective successors and
assigns, and that such Grantor is not an intended beneficiary or third party beneficiary thereof
except to the extent otherwise expressly provided therein.
Without limitation to the foregoing, each Grantor agrees to take such further action and to
execute and deliver such additional documents and instruments (in recordable form, if requested) as
the First Lien Collateral Agent, the New First Lien Trustee or the Junior Lien Collateral Agent (or
any of their respective agents or representatives) may reasonably request to effectuate the terms
of and the lien priorities contemplated by the Intercreditor Agreement.
This Consent shall be governed and construed in accordance with the laws of the State of New
York. Notices delivered to any Grantor pursuant to this Consent shall be delivered in accordance
with the notice provisions set forth in the New First Lien Agreement.
IN WITNESS HEREOF, this Consent is hereby executed by each of the Grantors as of the date
first written above.
| HCA INC. |
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| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| Title: | Senior Vice President — Finance and Treasurer | |||
| Each of the GUARANTORS listed on Schedule I hereto |
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| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇ | |||
| Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇ | |||
| Title: | Vice President and Assistant Secretary | |||
SCHEDULE I
Guarantors
American Medicorp Development Co.
Bay Hospital, Inc.
▇▇▇▇▇▇▇ City Community Hospital, Inc.
Brookwood Medical Center of Gulfport, Inc.
Capital Division, Inc.
Centerpoint Medical Center of Independence, LLC
Central Florida Regional Hospital, Inc.
Central Shared Services, LLC
Central Tennessee Hospital Corporation
CHCA Bayshore, L.P.
CHCA Conroe, L.P.
CHCA Mainland, L.P.
CHCA West Houston, L.P.
CHCA Woman’s Hospital, L.P.
Chippenham & ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Hospitals, Inc.
CMS GP, LLC
Colorado Health Systems, Inc.
Columbia ASC Management, L.P.
Columbia Jacksonville Healthcare System, Inc.
Columbia LaGrange Hospital, Inc.
Columbia Medical Center of Arlington Subsidiary, L.P.
Columbia Medical Center of ▇▇▇▇▇▇ Subsidiary, L.P.
Columbia Medical Center of Las Colinas, Inc.
Columbia Medical Center of Lewisville Subsidiary, L.P.
Columbia Medical Center of ▇▇▇▇▇▇▇▇ Subsidiary, L.P.
Columbia Medical Center of Plano Subsidiary, L.P.
Columbia North Hills Hospital Subsidiary, L.P.
Columbia ▇▇▇▇▇ Medical Center, Inc.
Columbia Parkersburg Healthcare System, LLC
Columbia Plaza Medical Center of Fort Worth Subsidiary, L.P.
Columbia Polk General Hospital, Inc.
Columbia Rio Grande Healthcare, L.P.
Columbia Riverside, Inc.
Columbia Valley Healthcare System, L.P.
Columbia/Alleghany Regional Hospital, Incorporated
Columbia/HCA ▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.
Columbine Psychiatric Center, Inc.
Columbus Cardiology, Inc.
Conroe Hospital Corporation
Dallas/Ft. Worth Physician, LLC
▇▇▇▇▇▇▇▇▇ Hospital Corporation
Dublin Community Hospital, LLC
Eastern Idaho Health Services, Inc.
▇▇▇▇▇▇ Regional Medical Center, LLC
▇▇▇▇▇▇ ▇▇▇▇▇ Hospital, Inc.
El Paso Surgicenter, Inc.
Bay Hospital, Inc.
▇▇▇▇▇▇▇ City Community Hospital, Inc.
Brookwood Medical Center of Gulfport, Inc.
Capital Division, Inc.
Centerpoint Medical Center of Independence, LLC
Central Florida Regional Hospital, Inc.
Central Shared Services, LLC
Central Tennessee Hospital Corporation
CHCA Bayshore, L.P.
CHCA Conroe, L.P.
CHCA Mainland, L.P.
CHCA West Houston, L.P.
CHCA Woman’s Hospital, L.P.
Chippenham & ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ Hospitals, Inc.
CMS GP, LLC
Colorado Health Systems, Inc.
Columbia ASC Management, L.P.
Columbia Jacksonville Healthcare System, Inc.
Columbia LaGrange Hospital, Inc.
Columbia Medical Center of Arlington Subsidiary, L.P.
Columbia Medical Center of ▇▇▇▇▇▇ Subsidiary, L.P.
Columbia Medical Center of Las Colinas, Inc.
Columbia Medical Center of Lewisville Subsidiary, L.P.
Columbia Medical Center of ▇▇▇▇▇▇▇▇ Subsidiary, L.P.
Columbia Medical Center of Plano Subsidiary, L.P.
Columbia North Hills Hospital Subsidiary, L.P.
Columbia ▇▇▇▇▇ Medical Center, Inc.
Columbia Parkersburg Healthcare System, LLC
Columbia Plaza Medical Center of Fort Worth Subsidiary, L.P.
Columbia Polk General Hospital, Inc.
Columbia Rio Grande Healthcare, L.P.
Columbia Riverside, Inc.
Columbia Valley Healthcare System, L.P.
Columbia/Alleghany Regional Hospital, Incorporated
Columbia/HCA ▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.
Columbine Psychiatric Center, Inc.
Columbus Cardiology, Inc.
Conroe Hospital Corporation
Dallas/Ft. Worth Physician, LLC
▇▇▇▇▇▇▇▇▇ Hospital Corporation
Dublin Community Hospital, LLC
Eastern Idaho Health Services, Inc.
▇▇▇▇▇▇ Regional Medical Center, LLC
▇▇▇▇▇▇ ▇▇▇▇▇ Hospital, Inc.
El Paso Surgicenter, Inc.
Encino Hospital Corporation, Inc.
EP Health, LLC
Fairview Park GP, LLC
Fairview Park, Limited Partnership
Frankfort Hospital, Inc.
▇▇▇▇▇ Property, LLC
General Healthserv, LLC
Good Samaritan Hospital, ▇.▇.
▇▇▇▇▇▇▇-Trinity Family Care, LLC
GPCH-GP, Inc.
Grand Strand Regional Medical Center, LLC
Green Oaks Hospital Subsidiary, L.P.
Greenview Hospital, Inc.
▇▇▇▇▇▇▇▇ Medical Center, Inc.
HCA — IT&S Field Operations, Inc.
HCA — IT&S Inventory Management, Inc.
HCA Central Group, Inc.
HCA Health Services of Florida, Inc.
HCA Health Services of Louisiana, Inc.
HCA Health Services of Oklahoma, Inc.
HCA Health Services of Tennessee, Inc.
HCA Health Services of Virginia, Inc.
HCA Management Services, L.P.
HCA Realty, Inc.
HD&S Corp. Successor, Inc.
Health Midwest Office Facilities Corporation
Health Midwest Ventures Group, Inc.
Healthtrust MOB, LLC
Hendersonville Hospital Corporation
Hospital Corporation of Tennessee
Hospital Corporation of Utah
Hospital Development Properties, Inc.
HSS Holdco, LLC
HSS Systems VA, LLC
HSS Systems, LLC
HSS Virginia, L.P.
HTI Memorial Hospital Corporation
Integrated Regional Lab, LLC
Integrated Regional Laboratories, LLP
JFK Medical Center Limited Partnership
KPH-Consolidation, Inc.
Lakeland Medical Center, LLC
Lakeview Medical Center, LLC
Largo Medical Center, Inc.
Las Vegas Surgicare, Inc.
Lawnwood Medical Center, Inc.
▇▇▇▇▇-▇▇▇▇ Hospital, Incorporated
▇▇▇▇▇-▇▇▇▇ Medical Center, LLC
▇▇▇▇▇-▇▇▇▇ Physicians, LLC
Los ▇▇▇▇▇▇ Regional Medical Center
EP Health, LLC
Fairview Park GP, LLC
Fairview Park, Limited Partnership
Frankfort Hospital, Inc.
▇▇▇▇▇ Property, LLC
General Healthserv, LLC
Good Samaritan Hospital, ▇.▇.
▇▇▇▇▇▇▇-Trinity Family Care, LLC
GPCH-GP, Inc.
Grand Strand Regional Medical Center, LLC
Green Oaks Hospital Subsidiary, L.P.
Greenview Hospital, Inc.
▇▇▇▇▇▇▇▇ Medical Center, Inc.
HCA — IT&S Field Operations, Inc.
HCA — IT&S Inventory Management, Inc.
HCA Central Group, Inc.
HCA Health Services of Florida, Inc.
HCA Health Services of Louisiana, Inc.
HCA Health Services of Oklahoma, Inc.
HCA Health Services of Tennessee, Inc.
HCA Health Services of Virginia, Inc.
HCA Management Services, L.P.
HCA Realty, Inc.
HD&S Corp. Successor, Inc.
Health Midwest Office Facilities Corporation
Health Midwest Ventures Group, Inc.
Healthtrust MOB, LLC
Hendersonville Hospital Corporation
Hospital Corporation of Tennessee
Hospital Corporation of Utah
Hospital Development Properties, Inc.
HSS Holdco, LLC
HSS Systems VA, LLC
HSS Systems, LLC
HSS Virginia, L.P.
HTI Memorial Hospital Corporation
Integrated Regional Lab, LLC
Integrated Regional Laboratories, LLP
JFK Medical Center Limited Partnership
KPH-Consolidation, Inc.
Lakeland Medical Center, LLC
Lakeview Medical Center, LLC
Largo Medical Center, Inc.
Las Vegas Surgicare, Inc.
Lawnwood Medical Center, Inc.
▇▇▇▇▇-▇▇▇▇ Hospital, Incorporated
▇▇▇▇▇-▇▇▇▇ Medical Center, LLC
▇▇▇▇▇-▇▇▇▇ Physicians, LLC
Los ▇▇▇▇▇▇ Regional Medical Center
Management Services Holdings, Inc.
Marietta Surgical Center, Inc.
▇▇▇▇▇▇ Community Hospital, Inc.
MCA Investment Company
Medical Centers of Oklahoma, LLC
Medical Office Buildings of Kansas, LLC
Memorial Healthcare Group, Inc.
Midwest Division — ACH, LLC
Midwest Division — LRHC, LLC
Midwest Division — LSH, LLC
Midwest Division — MCI, LLC
Midwest Division — MMC, LLC
Midwest Division — OPRMC, LLC
Midwest Division — PFC, LLC
Midwest Division — RBH, LLC
Midwest Division — RMC, LLC
Midwest Division — RPC, LLC
Midwest Holdings, Inc.
▇▇▇▇▇▇▇▇▇▇ Regional Hospital, Inc.
Mountain View Hospital, Inc.
Nashville Shared Services General Partnership
National Patient Account Services, Inc.
New Port ▇▇▇▇▇▇ Hospital, Inc.
New Rose Holding Company, Inc.
North Florida Immediate Care Center, Inc.
North Florida Regional Medical Center, Inc.
Northern Utah Healthcare Corporation
Northern Virginia Community Hospital, LLC
Northlake Medical Center, LLC
Notami Hospitals of Louisiana, Inc.
Notami Hospitals, LLC
Okaloosa Hospital, Inc.
Okeechobee Hospital, Inc.
Outpatient Cardiovascular Center of Central Florida, LLC
Palms West Hospital Limited Partnership
Palmyra Park Hospital, Inc.
Pasadena Bayshore Hospital, Inc.
Plantation General Hospital Limited Partnership
Pulaski Community Hospital, Inc.
▇▇▇▇▇▇▇ Park Hospital, LLC
▇▇▇▇▇▇▇ Physician Practice Company
Reston Hospital Center, LLC
Retreat Hospital, LLC
Rio Grande Regional Hospital, Inc.
Riverside Healthcare System, L.P.
Riverside Hospital, Inc.
Samaritan, LLC
San ▇▇▇▇ Healthcare System, LP
San ▇▇▇▇ Hospital, L.P.
San ▇▇▇▇ Medical Center, LLC
Marietta Surgical Center, Inc.
▇▇▇▇▇▇ Community Hospital, Inc.
MCA Investment Company
Medical Centers of Oklahoma, LLC
Medical Office Buildings of Kansas, LLC
Memorial Healthcare Group, Inc.
Midwest Division — ACH, LLC
Midwest Division — LRHC, LLC
Midwest Division — LSH, LLC
Midwest Division — MCI, LLC
Midwest Division — MMC, LLC
Midwest Division — OPRMC, LLC
Midwest Division — PFC, LLC
Midwest Division — RBH, LLC
Midwest Division — RMC, LLC
Midwest Division — RPC, LLC
Midwest Holdings, Inc.
▇▇▇▇▇▇▇▇▇▇ Regional Hospital, Inc.
Mountain View Hospital, Inc.
Nashville Shared Services General Partnership
National Patient Account Services, Inc.
New Port ▇▇▇▇▇▇ Hospital, Inc.
New Rose Holding Company, Inc.
North Florida Immediate Care Center, Inc.
North Florida Regional Medical Center, Inc.
Northern Utah Healthcare Corporation
Northern Virginia Community Hospital, LLC
Northlake Medical Center, LLC
Notami Hospitals of Louisiana, Inc.
Notami Hospitals, LLC
Okaloosa Hospital, Inc.
Okeechobee Hospital, Inc.
Outpatient Cardiovascular Center of Central Florida, LLC
Palms West Hospital Limited Partnership
Palmyra Park Hospital, Inc.
Pasadena Bayshore Hospital, Inc.
Plantation General Hospital Limited Partnership
Pulaski Community Hospital, Inc.
▇▇▇▇▇▇▇ Park Hospital, LLC
▇▇▇▇▇▇▇ Physician Practice Company
Reston Hospital Center, LLC
Retreat Hospital, LLC
Rio Grande Regional Hospital, Inc.
Riverside Healthcare System, L.P.
Riverside Hospital, Inc.
Samaritan, LLC
San ▇▇▇▇ Healthcare System, LP
San ▇▇▇▇ Hospital, L.P.
San ▇▇▇▇ Medical Center, LLC
San ▇▇▇▇, LLC
Sarasota Doctors Hospital, Inc.
SJMC, LLC
Southern Hills Medical Center, LLC
Spotsylvania Medical Center, Inc.
Spring Branch Medical Center, Inc.
Spring Hill Hospital, Inc.
St. Mark’s Lone Peak Hospital, Inc.
Sun City Hospital, Inc.
Sunrise Mountainview Hospital, Inc.
Surgicare of ▇▇▇▇▇▇▇, Inc.
Surgicare of Florida, Inc.
Surgicare of Houston Women’s, Inc.
Surgicare of Manatee, Inc.
Surgicare of Newport ▇▇▇▇▇▇, Inc.
Surgicare of Palms West, LLC
Surgicare of Riverside, LLC
Tallahassee Medical Center, Inc.
TCMC Madison-Portland, Inc.
Terre Haute Hospital GP, Inc.
Terre Haute Hospital Holdings, Inc.
Terre Haute MOB, L.P.
Terre Haute Regional Hospital, L.P.
Timpanogos Regional Medical Services, Inc.
Trident Medical Center, LLC
Utah Medco, LLC
VH Holdco, Inc.
VH Holdings, Inc.
Virginia Psychiatric Company, Inc.
W & C Hospital, Inc.
Walterboro Community Hospital, Inc.
▇▇▇▇▇▇ Medical Center, LLC
West Florida Regional Medical Center, Inc.
West Valley Medical Center, Inc.
Western Plains Capital, Inc.
WHMC, Inc.
Woman’s Hospital of Texas, Incorporated
Women’s and Children’s Hospital, Inc.
Sarasota Doctors Hospital, Inc.
SJMC, LLC
Southern Hills Medical Center, LLC
Spotsylvania Medical Center, Inc.
Spring Branch Medical Center, Inc.
Spring Hill Hospital, Inc.
St. Mark’s Lone Peak Hospital, Inc.
Sun City Hospital, Inc.
Sunrise Mountainview Hospital, Inc.
Surgicare of ▇▇▇▇▇▇▇, Inc.
Surgicare of Florida, Inc.
Surgicare of Houston Women’s, Inc.
Surgicare of Manatee, Inc.
Surgicare of Newport ▇▇▇▇▇▇, Inc.
Surgicare of Palms West, LLC
Surgicare of Riverside, LLC
Tallahassee Medical Center, Inc.
TCMC Madison-Portland, Inc.
Terre Haute Hospital GP, Inc.
Terre Haute Hospital Holdings, Inc.
Terre Haute MOB, L.P.
Terre Haute Regional Hospital, L.P.
Timpanogos Regional Medical Services, Inc.
Trident Medical Center, LLC
Utah Medco, LLC
VH Holdco, Inc.
VH Holdings, Inc.
Virginia Psychiatric Company, Inc.
W & C Hospital, Inc.
Walterboro Community Hospital, Inc.
▇▇▇▇▇▇ Medical Center, LLC
West Florida Regional Medical Center, Inc.
West Valley Medical Center, Inc.
Western Plains Capital, Inc.
WHMC, Inc.
Woman’s Hospital of Texas, Incorporated
Women’s and Children’s Hospital, Inc.