FIRST AMENDMENT TO STOCK PLEDGE AGREEMENT
FIRST AMENDMENT TO STOCK PLEDGE AGREEMENT
This First Amendment to Stock Pledge Agreement (this “Amendment”) is entered into as of May 8, 2009, by and among Xxxxx Healthcare Corporation, a Nevada corporation (the “Company”), each of the other entities listed on the signature pages hereof as Pledgors, and The Bank of New York Mellon Trust Company, N.A. (“BoNY”), as collateral trustee for the Secured Parties (as defined in the Stock Pledge Agreement referred to below) (in such capacity, the “Collateral Trustee”).
RECITALS
WHEREAS, reference is made to that certain Stock Pledge Agreement, dated as of March 3, 2009 (as amended, restated, supplemented or otherwise modified from time to time, the “Stock Pledge Agreement”; unless otherwise indicated, capitalized terms used herein without definition have the meanings ascribed to such terms i n the Stock Pledge Agreement), by the Company and the Pledgors in favor of the Collateral Trustee;
WHEREAS, pursuant to that certain letter agreement related to exchange offer, dated as of May 8, 2009, between the Company and PNC Bank, National Association, the Company is issuing on the date hereof (a) $14,469,500 of additional 6-year notes (the “Additional 6-Year Notes”) pursuant to an Indenture, dated as of November 6, 2001 (the “Base Indenture”), between the Company and BoNY, as successor trustee to The Bank of New York (the “Trustee”), as supplemented by a Ninth Supplemental Indenture, dated as of March 3, 2009 (the “Ninth Supplemental Indenture”), among the Company, the Guarantors from time to time party thereto and the Trustee (together with the Base Indenture, the “6-year Indenture”) and (b) $14,469,500 of additional 9-year notes (the “Additional 9-Year Notes” and together with the Additional 6-year Notes, the “Additional Notes”) pursuant to the Base Indenture, as supplemented by a Tenth Supplemental Indenture, dated as of March 3, 2009 (the “Tenth Supplemental Indenture” and, together with the Ninth Supplemental Indenture, the “Supplemental Indentures”), among the Company, the Guarantors from time to time party thereto and the Trustee (together with the Base Indenture, the “‘9-year Indenture” and, collectively with the 6-year Indenture, the “Indentures”, as the same may be amended, restated, supplemented or otherwise modified from time to time);
WHEREAS, the Secured Obligations in respect of which a security interest in the Collateral was created by the Stock Pledge Agreement is limited to only the Obligations in respect of the New Notes issued by the Company on March 3, 2009;
WHEREAS, subject to the terms and conditions hereof, the parties hereto desire to and have agreed to amend the Stock Pledge Agreement to include within the Secured Obligations the Obligations in respect of the Additional Notes and any other 6-year notes and 9-year notes issued and authenticated under the Indentures; and
WHEREAS, the sole effect of this Amendment is to secure additional debt of the Company that is permitted by the terms of the Indentures to be secured by the Collateral, and that
as such, pursuant to Section 7.1 of the Stock Pledge Agreement, Article VII of the Supplemental Indentures and Section 7.1 of the Collateral Trust Agreement, this Amendment may be entered into by the Company, the other Pledgors and the Collateral Trustee without (i) the consent of 75% of the holders of the 6-year notes, (ii) the consent of 75% of the holders of the 9-year notes or (ii i) direction to the Collateral Trustee by an Act of Required Stock Secured Debtholders (as defined in the Collateral Trust Agreement).
Now, THEREFORE, in consideration of the premises and the mutual covenants herein contained, and to induce the Holders of the Old Notes to exchange their Old Notes for Additional Notes, each Pledgor hereby agrees with the Collateral Trustee as follows:
1. Section References. Unless otherwise expressly stated herein, all Section references herein shall refer to Sections of the Stock Pledge Agreement.
2. Amendments to Section 1.1. Section 1.1 is hereby amended by:
(a) adding the following definitions i n the proper alphabetical order:
“Ninth Supplemental Indenture Notes” means al l 9.0% Senior Secured Notes due 2015 issued by the Company and authenticated by the Trustee under the 6-year Indenture.
“Notes” means the Ninth Supplemental Indentures Notes and the Tenth Supplemental Indenture Notes.
“Tenth Supplemental Indenture Notes” means all 10.0% Senior Secured Notes due 201 8 issued by the Company and authenticated by the Trustee under the 9-year Indenture.
(b) amending the definitions of “Pledged Stock”, “Related Document”, “Secured Obligations” and “Secured Parties” by deleting each reference to “New Notes” therein and replacing it with “Notes”.
3. Amendment to Section 5.1. Section 5.1 is hereby amended by deleting the reference to “New Notes” therein and replacing it with “Notes”.
4. Conditions Precedent. The effectiveness of this Amendment is subject to the Collateral Trustee’s receipt of each of the following:
(a) this Amendment, duly executed and delivered by the Company, each other Pledgor and the Collateral Trustee;
(b) an Officers’ Certificate (as defined in the Collateral Trust Agreement) to the effect that this Amendment will not result in a breach of any provision or covenant contained in any of the Secured Debt Documents (as defined in the Collateral Trust Agreement); and
(c) an opinion of counsel of the Company to the effect that the Collateral Trustee’s execution of this Amendment is permitted by the Collateral Trust Agreement.
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5. Reference to Stock Pledge Agreement. The Stock Pledge Agreement and the Related Documents, including the Indentures and the Collateral Trust Agreement, and any and all other agreements, documents or instruments now or hereafter executed and/or delivered pursuant to the terms hereof, pursuant to the terms of the Related Documents or pursuant to the terms of the Stock Pledge Agreement as amended hereby, are hereby amended so that any reference in the Stock Pledge Agreement, the Related Documents or such other agreements, documents or instruments to the Stock Pledge Agreement, whether direct or indirect, shall mean a reference to the Stock Pledge Agreement as amended hereby.
6. Counterparts. This Amendment may be executed by one or more of the parties to this Amendment on any number of separate counterparts (including by telecopy), each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple counterparts and attached to a single counterpart so that all signature pages are attached to the same document. Delivery of an executed counterpart by telecopy shall be effective as delivery of a manually executed counterpart.
7. Severability. Any provision of this Amendment that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibitions or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision i n any other jurisdiction.
8. Governing Law. This Amendment and the rights and obligations of the parties hereto shall be governed by, and construed and interpreted in accordance with, the law of the State of New York.
9. Limited Effect. Except to the extent specifically amended or modified hereby, the provisions of the Stock Pledge Agreement shall not be amended, modified, impaired or otherwise affected hereby.
10. The Collateral Trustee is not responsible for the validity or sufficiency of this Amendment or the recitals contained herein.
[Signature Pages Follow]
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IN WITNESS WHEREOF, each of the undersigned has caused this Amendment to be duly executed and delivered as of the date first above written.
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XXXXX HEALTHCARE CORPORATION, as a Pledgor |
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By: |
/s/ Xxxxx X. Xxxxxx |
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Name: Xxxxx X. Xxxxxx |
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Title: Chief Financial Officer |
Signature Page to First Amendment to Stock Pledge Agreement
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American Medical (Central), Inc., |
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AMI Information Systems Group, Inc., |
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Amisub (Heights), Inc., |
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Amisub (Hilton Head), Inc., |
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Amisub (Twelve Oaks), Inc., |
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Amisub of Texas, Inc., |
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Brookwood Health Services, Inc., |
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Coral Gables Hospital, Inc., |
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Cypress Fairbanks Medical Center, Inc., |
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Fmc Acquisition, Inc., |
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Fmc Medical, Inc., |
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Lifemark Hospitals, Inc., |
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MCF, Inc., |
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Ornda Hospital Corporation, |
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Tenet California, Inc., |
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Tenet Florida, Inc., |
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Tenet Healthsystem CFMC, Inc., |
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Tenet Healthsystem Healthcorp, |
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Tenet Healthsystem Holdings, |
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Tenet Healthsystem Medical, Inc., |
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Tenet Healthsystem Philadelphia, Inc., |
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Xxxxx Hospitals, Inc., |
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Tenet Louisiana, Inc., |
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Tenet Missouri, Inc., |
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Tenet Physician Services -Hilton Head, Inc., |
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Tenet Texas, Inc., |
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Tenetsub Texas, Inc., |
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each as a Pledgor |
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By: |
/s/ Xxxxxxxx X. Xxxx |
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Name: Xxxxxxxx X. Xxxx |
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Title: Sole Director |
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Accepted and Agreed
as of the date first above written:
The Bank of New York Mellon Trust Company, N.A.,
as Collateral Trustee
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By: |
/s/ Xxxxxx Xxxxx |
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Name: Xxxxxx Xxxxx |
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Title: Authorized Signatory |
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Signature Page to First Amendment to Stock Pledge Agreement
