EXHIBIT 10.2
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT dated as of July 12, 2004 (the
"Amendment") is entered into among Ardent Health Services, Inc., a Delaware
corporation (the "Borrower"), each of the parties identified as "Guarantors" on
the signature pages hereto (the "Guarantors"), the Lenders party hereto and Bank
One, NA, as Administrative Agent, Swing Line Lender and L/C Issuer. All
capitalized terms used herein and not otherwise defined herein shall have the
meanings given to such terms in the Credit Agreement (as defined below).
RECITALS
WHEREAS, the Borrower, the Guarantors, the Lenders and the Administrative
Agent entered into that certain Credit Agreement dated as of August 19, 2003, as
amended by that certain First Amendment to Credit Agreement dated as of December
31, 2003 (as further amended and modified from time to time, the "Credit
Agreement");
WHEREAS, the Borrower has advised the Lenders that Ardent Medical
Services, Inc. ("Ardent Medical") intends to reduce the amount of Xxxxxxxx
Intercompany Loan from $70 million to $43 million;
WHEREAS, the Borrower has advised the Lenders that Ardent Medical intends
to make an additional intercompany loan (the "Xxxxxxxx Intercompany Loan #2") to
Xxxxxxxx and (i) to secure the Xxxxxxxx Intercompany Loan #2 with the assets of
Xxxxxxxx pursuant to the Intercompany Security Documents and (ii) to pledge
Ardent Medical's rights in the Xxxxxxxx Intercompany Loan #2 to the Collateral
Agent, in each case on or before the earlier of (a) the purchase by the Borrower
of substantially all of the assets of the Hillcrest HealthCare System in Tulsa,
Oklahoma and in certain other Oklahoma communities pursuant to and in accordance
with the terms of the that certain Asset Purchase Agreement dated as of May 11,
2004 between the Borrower and Hillcrest HealthCare System and such other
agreements, instruments and documents relating thereto (the "Hillcrest
Acquisition") and (b) September 13, 2004;
WHEREAS, the Borrower has requested that the Lenders (i) amend the Credit
Agreement as set forth herein to permit the reduction of the Xxxxxxxx
Intercompany Loan from $70 million to $43 million, (ii) consent to Ardent
Medical waiting until the earlier of (a) the date of the closing of the
Hillcrest Acquisition and (b) September 13, 2004 to make certain modifications
to the Intercompany Security Documents securing the Xxxxxxxx Intercompany Loan
in order to reflect the reduction of the Xxxxxxxx Intercompany Loan from $70
million to $43 million, and (iii) consent to Ardent Medical waiting until the
earlier of (x) the date of the closing of the Hillcrest Acquisition and (y)
September 13, 2004 to cause the Xxxxxxxx Intercompany Loan #2 to be secured by
the assets of Xxxxxxxx and to make the related pledge of such assets to the
Collateral Agent, notwithstanding the terms of Sections 7.14 and 8.02(g) of the
Credit Agreement; and
WHEREAS, the Lenders have agreed to amend the Credit Agreement and to
grant such consents on the terms and conditions set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Amendments. The Credit Agreement is amended in the following
respects:
(a) The definition of "Xxxxxxxx" in Section 1.01 is hereby amended
to read as follows:
"Xxxxxxxx" means Xxxxxxxx Xxxxxx Health System, Inc., a New
Mexico corporation.
(b) The following definitions are hereby added to Section 1.01 in
the appropriate alphabetical order and shall read as follows:
"Second Amendment Effective Date" means July 12, 2004.
(c) The following sentence is hereby added at the end of Section
7.12(a)(iii) to read as follows:
Notwithstanding the foregoing, it is understood and agreed
that as of the Second Amendment Effective Date, the $43,000,000
promissory note representing the Xxxxxxxx Intercompany Loan
satisfies the requirements of this Section 7.12(a)(iii).
(d) Subclause (q) of Section 8.01 is hereby amended to read as
follows:
(q) Liens in favor of the Borrower or any Loan Party on the
assets of each HMO Subsidiary or Non-Guarantor Subsidiary in
accordance with the terms hereof to secure the applicable
Intercompany Note of such HMO Subsidiary or Non-Guarantor
Subsidiary;
(e) Section 8.02(g) is hereby amended by replacing both references
to "$70,000,000" in clause (i) thereof with references to "$43,000,000."
(f) Subclause (e) of Section 8.04 is hereby amended to read as
follows and a new subclause (f) is hereby added thereafter to read as
follows:
(e) the Sandia Parties may merge or consolidate with
Xxxxxxxx pursuant to the Xxxxxxxx/Sandia Merger; provided that (i)
Xxxxxxxx shall have delivered an Intercompany Note in the amount of
$70 million to the Borrower (it being acknowledged that the amount
of such note as of the Second Amendment Effective Date has been
lowered to $43 million as set out in Section 7.12(a)(iii)) and
pledged its assets to the Borrower to secure such Intercompany Note
pursuant to the Intercompany Security Documents and (ii) the
Borrower shall have delivered such Intercompany Note to the
Collateral Agent, executed Collateral Assignment Documents and
delivered such other documentation to the Collateral Agent in
accordance with Section 7.14 and (f) nothing in this Section 8.04
shall prohibit any Disposition otherwise permitted under Section
8.05.
(g) Subclause (i) of Section 10.11(b) is hereby amended by adding
the following language immediately after the words "$70 million" and
before the word "to":
(it being acknowledged that the amount of such note as of the Second
Amendment Effective Date has been lowered to $43 million as set out
in Section 7.12(a)(iii))
2. Consents. Subject to the satisfaction of the conditions precedent
set forth in Section 3 of this Amendment, the Administrative Agent and the
Lenders hereby (a) consent to the reduction of the Xxxxxxxx Intercompany Loan
from $70 million to $43 million, (b) consent to permitting Ardent Medical to
wait until the earlier of (i) the date of the closing of the Hillcrest
Acquisition and (ii) September 13, 2004 to make certain modifications to the
Intercompany Security Documents securing the Xxxxxxxx Intercompany Loan in order
to reflect the reduction of the Xxxxxxxx Intercompany Loan from $70 million to
$43 million, and (c) consent to permitting Ardent Medical to wait until the
earlier (i) the date of the closing of the Hillcrest Acquisition and (ii)
September 13, 2004 to cause the Xxxxxxxx Intercompany Loan #2 to be secured by
the assets of Xxxxxxxx and to make the related pledge of such assets to the
Collateral Agent, notwithstanding the terms of Sections 7.14 and 8.02(g) of the
Credit Agreement. This consent is limited solely to the consents specifically
identified in the preceding sentence, and nothing contained in this Amendment
shall be deemed to constitute a waiver of any other rights or remedies the
Administrative Agent or any Lender may have under the Credit Agreement, any
other Loan Documents, applicable law or any of the obligations of any Loan Party
thereunder.
3. Conditions Precedent. This Amendment shall be effective upon
satisfaction of the following conditions precedent:
(a) receipt by the Administrative Agent of this Amendment executed
by the Borrower, the Guarantors, the Required Lenders and the
Administrative Agent; and
(b) receipt by the Collateral Agent of a replacement promissory
note evidencing the Xxxxxxxx Intercompany Loan in the amount of
$43,000,000 in form and substance satisfactory to the Collateral Agent.
4. Miscellaneous.
(a) The Credit Agreement, and the obligations of the Loan Parties
thereunder and under the other Loan Documents, are hereby ratified and
confirmed and shall remain in full force and effect according to their
terms.
(b) Each Guarantor (i) acknowledges and consents to all of the
terms and conditions of this Amendment, (ii) affirms all of its
obligations under the Loan Documents, (iii) agrees that this Amendment and
all documents executed in connection herewith do not operate to reduce or
discharge its obligations under the Credit Agreement or the other Loan
Documents and (iv) hereby confirms and agrees that its Guaranty shall
continue and remain in full force and effect after giving effect to this
Amendment and that, notwithstanding any contrary terms in such Guaranty,
such Guaranty now applies to the Credit Agreement as amended by this
Amendment.
(c) The Borrower and the Guarantors hereby represent and warrant
as follows:
(i) Each Loan Party has taken all necessary action to
authorize the execution, delivery and performance of this Amendment.
(ii) This Amendment has been duly executed and delivered by
the Loan Parties and constitutes each of the Loan Parties' legal,
valid and binding obligations, enforceable in accordance with its
terms, except as such enforceability may be subject to (A)
bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer, moratorium or similar laws affecting creditors' rights
generally and (B) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
(iii) No consent, approval, authorization or order of, or
filing, registration or qualification with, any court or
governmental authority or third party is required in connection with
the execution, delivery or performance by any Loan Party of this
Amendment, other than those that have already been obtained and are
in full force and effect as of the date hereof.
(d) The Loan Parties represent and warrant to the Lenders that (i)
the representations and warranties of the Loan Parties set forth in
Article VI of the Credit Agreement and in each other Loan Document are
true and correct in all material respects as of the date hereof with the
same effect as if made on and as of the date hereof, except to the extent
such representations and warranties expressly relate solely to an earlier
date and (ii) no event has occurred and is continuing which constitutes a
Default or an Event of Default.
(e) The Borrower agrees to pay all reasonable costs and expenses
of the Administrative Agent in connection with the preparation, execution
and delivery of this Amendment, including without limitation the
reasonable fees and expenses of Xxxxx & Xxx Xxxxx, PLLC.
(f) This Amendment may be executed in any number of counterparts,
each of which when so executed and delivered shall be an original, but all
of which shall constitute one and the same instrument. Delivery of an
executed counterpart of this Amendment by telecopy shall be effective as
an original and shall constitute a representation that an executed
original shall be delivered.
(g) THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
[Signature pages follow]
Each of the parties hereto has caused a counterpart of this Amendment to
be duly executed and delivered as of the date first above written.
BORROWER: ARDENT HEALTH SERVICES, INC.,
a Delaware corporation
By: /s/ R. Xxxx Xxxxxxx
------------------------------
Name: R. Xxxx Xxxxxxx
Title: Executive Vice President and Chief Financial Officer
GUARANTORS: ARDENT HEALTH SERVICES LLC,
a Delaware limited liability company
By: /s/ R. Xxxx Xxxxxxx
------------------------------
Name: R. Xxxx Xxxxxxx
Title: Executive Vice President and Chief Financial Officer
AHS ALBUQUERQUE HOLDINGS, LLC,
a New Mexico limited liability company
AHS CUMBERLAND HOSPITAL, LLC,
a Virginia limited liability company
AHS KENTUCKY HOLDINGS, INC.,
a Delaware corporation
AHS KENTUCKY HOSPITALS, INC.,
a Delaware corporation
AHS LOUISIANA HOLDINGS, INC.,
a Delaware corporation
AHS LOUISIANA HOSPITALS, INC.,
a Delaware corporation
AHS MANAGEMENT COMPANY, INC.,
a Tennessee corporation
AHS NEW MEXICO HOLDINGS, INC.,
a New Mexico corporation
AHS SAMARITAN HOSPITAL, LLC,
a Kentucky limited liability company
AHS S.E.D. MEDICAL LABORATORIES, INC.,
a New Mexico corporation
AHS SUMMIT HOSPITAL, LLC,
a Delaware limited liability company
ARDENT MEDICAL SERVICES, INC.,
a Delaware corporation
BEHAVIORAL HEALTHCARE CORPORATION,
a Delaware corporation
By: ______________________________
Name: R. Xxxx Xxxxxxx
Title: Senior Vice President of each of the foregoing Guarantors
Each of the parties hereto has caused a counterpart of this Amendment to
be duly executed and delivered as of the date first above written.
BORROWER: ARDENT HEALTH SERVICES, INC.,
a Delaware corporation
By: _________________________________
Name:
Title:
GUARANTORS: ARDENT HEALTH SERVICES LLC,
a Delaware limited liability company
By: _________________________________
Name: R. Xxxx Xxxxxxx
Title: Executive Vice President and Chief Financial Officer
AHS ALBUQUERQUE HOLDINGS, LLC,
a New Mexico limited liability company
AHS CUMBERLAND HOSPITAL, LLC,
a Virginia limited liability company
AHS KENTUCKY HOLDINGS, INC.,
a Delaware corporation
AHS KENTUCKY HOSPITALS, INC.,
a Delaware corporation
AHS LOUISIANA HOLDINGS, INC.,
a Delaware corporation
AHS LOUISIANA HOSPITALS, INC.,
a Delaware corporation
AHS MANAGEMENT COMPANY, INC.,
a Tennessee corporation
AHS NEW MEXICO HOLDINGS, INC.,
a New Mexico corporation
AHS SAMARITAN HOSPITAL, LLC,
a Kentucky limited liability company
AHS S.E.D. MEDICAL LABORATORIES, INC.,
a New Mexico corporation
AHS SUMMIT HOSPITAL, LLC,
a Delaware limited liability company
ARDENT MEDICAL SERVICES, INC.,
a Delaware corporation
BEHAVIORAL HEALTHCARE CORPORATION,
a Delaware corporation
By: /s/ R. Xxxx Xxxxxxx
-----------------------------
Name: R. Xxxx Xxxxxxx
Title: Senior Vice President of each of the foregoing Guarantors
BHC MANAGEMENT SERVICES OF NEW MEXICO, LLC,
a Delaware limited liability company
BHC MANAGEMENT SERVICES OF STREAMWOOD, LLC,
a Delaware limited liability company
BHC XXXXXXX PARTNER, INC.,
a Delaware corporation
BHC MONTEVISTA HOSPITAL, INC.,
a Nevada corporation
BHC OF INDIANA, GENERAL PARTNERSHIP,
a Tennessee general partnership
BHC ALHAMBRA HOSPITAL, INC.,
a Tennessee corporation
BHC BELMONT PINES HOSPITAL, INC.,
a Tennessee corporation
BHC CEDAR VISTA HOSPITAL, INC.,
a California corporation
BHC COLUMBUS HOSPITAL, INC.,
a Tennessee corporation
BHC FAIRFAX HOSPITAL, INC.,
a Tennessee corporation
BHC FOX RUN HOSPITAL, INC.,
a Tennessee corporation
BHC FREMONT HOSPITAL, INC.,
a Tennessee corporation
BHC GULF COAST MANAGEMENT GROUP, INC.,
a Tennessee corporation
BHC HEALTH SERVICES OF NEVADA, INC.,
a Nevada corporation
BHC HERITAGE OAKS HOSPITAL, INC.,
a Tennessee corporation
BHC HOSPITAL HOLDINGS, INC.,
a Delaware corporation
BHC INTERMOUNTAIN HOSPITAL, INC.,
a Tennessee corporation
BHC LEBANON HOSPITAL, INC.,
a Tennessee corporation
BHC MANAGEMENT HOLDINGS, INC.,
a Delaware corporation
BHC MANAGEMENT SERVICES, LLC,
a Delaware limited liability company
BHC MANAGEMENT SERVICES OF INDIANA, LLC,
a Delaware limited liability company
BHC MANAGEMENT SERVICES OF KENTUCKY, LLC,
a Delaware limited liability company
By: /s/ R. Xxxx Xxxxxxx
-----------------------------
Name: R. Xxxx Xxxxxxx
Title: Senior Vice President of each of the foregoing Guarantors
BHC OF NORTHERN INDIANA, INC.,
a Tennessee corporation
BHC PHYSICIAN SERVICES OF KENTUCKY, LLC,
a Delaware limited liability company
BHC PINNACLE POINTE HOSPITAL, INC.,
a Tennessee corporation
BHC PROPERTIES, INC.,
a Tennessee corporation
BHC SIERRA VISTA HOSPITAL, INC.,
a Tennessee corporation
BHC SPIRIT OF ST. LOUIS HOSPITAL, INC.,
a Tennessee corporation
BHC STREAMWOOD HOSPITAL, INC.,
a Tennessee corporation
BHC XXXXX VISTA HOSPITAL, INC.,
a Tennessee corporation
BHC WINDSOR HOSPITAL, INC.,
an Ohio corporation
BLOOMINGTON XXXXXXX, X.X.,
a Delaware general partnership
COLUMBUS HOSPITAL, LLC,
a Delaware limited liability company
INDIANA PSYCHIATRIC INSTITUTES, INC.,
a Delaware corporation
LEBANON HOSPITAL, LLC,
a Delaware limited liability company
MESILLA VALLEY GENERAL PARTNERSHIP,
a New Mexico general partnership
MESILLA VALLEY MENTAL HEALTH ASSOCIATES, INC.,
a New Mexico corporation
NORTHERN INDIANA HOSPITAL, LLC,
a Delaware limited liability company
XXXXX VISTA, LLC,
a Delaware limited liability company
WILLOW SPRINGS, LLC,
a Delaware limited liability company
AHS RESEARCH AND REVIEW, LLC,
a New Mexico limited liability company
BHC NORTHWEST PSYCHIATRIC HOSPITAL, LLC,
a Delaware limited liability company
By: /s/ R. Xxxx Xxxxxxx
-----------------------------
Name: R. Xxxx Xxxxxxx
Title: Senior Vice President of each of the foregoing Guarantors
ADMINISTRATIVE
AGENT: BANK ONE, NA,
as Administrative Agent
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: First Vice President
LENDERS: BANK ONE, NA,
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: First Vice President
BANK OF AMERICA, N.A.
By: /s/ Xxxxx X. Xxxx
-----------------------------------------------
Name: Xxxxx X. Xxxx
Title: Managing Director
UBS AG, CAYMAN ISLANDS BRANCH
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Director
Banking Products Services, US
By: /s/ Salloz Xxxxx
-----------------------------------------------
Name: Salloz Xxxxx
Title: Associate Director
Banking Products Services, US
XXXXXXX XXXXX CAPITAL, A DIVISION OF
XXXXXXX XXXXX BUSINESS FINANCIAL SERVICES INC.
By: _______________________________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ X. Xxxxx Whiteley
-----------------------------------------------
Name: X. Xxxxx Xxxxxxxx
Title: Vice President
RESIDENTIAL FUNDING CORPORATION
By: _______________________________________________
Name:
Title:
FLEET NATIONAL BANK
By: /s/ Xxxxx X. Xxxx
-----------------------------------------------
Name: Xxxxx X. Xxxx
Title: Managing Director
FIFTH THIRD BANK
By: _______________________________________________
Name:
Title:
