ADDITIONAL GENERAL INTERCREDITOR AGREEMENT
Exhibit 4.6
ADDITIONAL
GENERAL INTERCREDITOR AGREEMENT (this “Agreement”), dated as of March 10, 2010, 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 of March 10, 2010, 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, in
its capacity as collateral agent for the secured parties under any Additional First Lien
Obligations (as defined in the New First Lien Agreement) in existence from time to time 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 agreement governing any Additional First Lien
Obligations, the 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 3.12 hereof, and any
successor trustee in accordance with the applicable Junior Lien Document.
“2009 Second Lien Indenture” means the Indenture dated as of February 19, 2009, among the
Company, the guarantors identified therein and the 2009 Second Lien Trustee, as amended, restated,
supplemented, waived, referenced or otherwise modified from time to time.
“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 2009 Second Lien Indenture, 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 Accounts,” “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
paragraphs A and B of the recitals, the definitions of “ABL Controlled Accounts,” “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 both the Indenture and the 2009 Second Lien Indenture, (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 refer both to the Notes described in such definition and the Notes under
and as defined in the 2009 Second Lien Indenture, including the exchange notes issued in exchange
therefor as contemplated by the Registration Rights Agreement (as defined in the 2009 Second Lien
Indenture) and any additional notes issued under the 2009 Second Lien Indenture by the Company, to
the extent permitted by the 2009 Second Lien Indenture and the New First Lien 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-inpossession 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 7of the Indenture 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 7 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/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | Senior Vice President | |||
Signature Page to Additional General Intercreditor Agreement
| THE BANK OF NEW YORK MELLON, as Junior Lien Collateral Agent and as 2006 Second Lien Trustee |
||||
| By: | /s/ XXXX XXXXXXX | |||
| Name: | XXXX XXXXXXX | |||
| Title: | VICE PRESIDENT | |||
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as 2009 Second Lien Trustee |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Signature Page to Additional General Intercreditor Agreement
| THE BANK OF NEW YORK MELLON, as Junior Lien Collateral Agent and as 2006 Second Lien Trustee |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as 2009 Second Lien Trustee |
||||
| By: | /s/ XXX XXX XXXXXX | |||
| Name: XXX XXX XXXXXX | ||||
| Title: | Senior Associate | |||
Signature Page to Additional General Intercreditor Agreement
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 | ||
| 000 Xxxxxxx Xxxxxxx, Xxxxx 000 | ||
| Xxxxxxx, XX 00000 | ||
| [Name of Additional Second Lien Trustee] | ||
| [Address of Additional Second Lien Trustee] | ||
| [Date] |
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 March 10, 2010 (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: March 10, 2010
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 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/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | Senior Vice President - Finance and Treasurer | |||
Additional General lntercreditor Agreement
| Each of the GUARANTORS listed on Schedule I hereto |
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| By: | /s/ R. Xxxxxx Xxxxxxx | |||
| R. Xxxxx Xxxxxxx | ||||
| Senior Vice President | ||||
Additional General lntercreditor Agreement
