EXHIBIT 10.2
SECOND SUPPLEMENTAL INDENTURE
Second Supplemental Indenture (this "Supplemental Indenture"), dated
as of August 12, 2004, among the subsidiary guarantors listed in Schedule I (the
"Guaranteeing Subsidiaries"), Ardent Health Services, Inc., a Delaware
corporation, (the "Company"), Ardent Health Services LLC, a Delaware limited
liability company, (the "Parent"), the Subsidiary Guarantors (as defined in the
Indenture referred to herein) and U.S. Bank Trust National Association, as
Trustee (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company, the Parent and the Subsidiary Guarantors have
heretofore executed and delivered to the Trustee an indenture (the "Indenture"),
dated as of August 19, 2003 providing for the issuance of 10% Senior
Subordinated Notes due 2013 (the "Notes") of the Company;
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiaries shall execute and deliver to the Trustee a
supplemental indenture pursuant to which the Guaranteeing Subsidiaries shall
unconditionally guarantee all of the Company's obligations under the Notes and
the Indenture on the terms and conditions set forth herein (the "Note
Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiaries and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. The Guaranteeing Subsidiaries hereby
agrees as follows:
(a) Along with all other Guarantors, to jointly and severally
Guarantee to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, irrespective of
the validity and enforceability of the Indenture, the Notes or the
obligations of the Company hereunder or thereunder, that:
(i) the principal of and interest on the Notes shall be
promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue
principal of and interest on the Notes, if any, if lawful (subject
in all cases to any applicable grace period provided in the
Indenture), and all other obligations of the Company to the Holders
or the Trustee hereunder or
thereunder shall be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or renewal of
any Notes or any of such other obligations, the same shall be
promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise. Failing payment when due of any amount so
guaranteed or any performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay the same
immediately.
(b) The obligations hereunder shall be unconditional, irrespective
of the validity, regularity or enforceability of the Notes or the
Indenture, the absence of any action to enforce the same, any waiver or
consent by any Holder of the Notes with respect to any provisions hereof
or thereof, the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance that might otherwise
constitute a legal or equitable discharge or defense of a guarantor.
(c) Subject to Section 6.06 of the Indenture and to the extent
permitted by applicable law, each Guarantor hereby waives: diligence
presentment, demand of payment, filing of claims with a court in the event
of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands
whatsoever.
(d) Subject to Section 6.06 of the Indenture and to the extent
permitted by applicable law, this Note Guarantee shall not be discharged
except by complete performance of the obligations contained in the Notes
and the Indenture.
(e) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors, or any custodian,
trustee, liquidator or other similar official acting in relation to either
the Company or the Guarantors, any amount paid by either to the Trustee or
such Holder, this Note Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect.
(f) The Guaranteeing Subsidiaries shall not be entitled to any right
of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed
hereby.
(g) As between the Guarantors, on the one hand, and the Holders and
the Trustee, on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article 6 of the
Indenture for the purposes of this Note Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in
respect of the obligations guaranteed hereby, and (y) in the event of any
declaration of acceleration of such obligations as provided in Article 6
of the Indenture, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Guarantors for the purpose of this
Note Guarantee.
(h) The Guarantors shall have the right to seek contribution from
any non-paying Guarantor so long as the exercise of such right does not
impair the rights of the Holders under the Note Guarantee.
(i) Pursuant to Section 11.03 of the Indenture, after giving effect
to any maximum amount and any other contingent and fixed liabilities of
the Guarantor that are relevant under any applicable Bankruptcy Law, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or
any similar federal or state law to the extent applicable, and after
giving effect to any collections from, rights to receive contribution from
or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under Article 11 of the Indenture, the
Trustee, the Holders and the Guarantor irrevocably agree that the
obligation of such Guarantor shall result in the obligations of such
Guarantor under its Note Guarantee not constituting a fraudulent transfer
or conveyance.
3. Subordination. The Obligations of the Guaranteeing Subsidiaries
under its Note Guarantee pursuant to this Supplemental Indenture shall be junior
and subordinated to the Senior Debt of the Guaranteeing Subsidiaries on the same
basis as the Notes are junior and subordinated to the Senior Debt of the
Company. For the purposes of the foregoing sentence, the Trustee and the Holders
shall have the right to receive and/or retain payments by the Guaranteeing
Subsidiaries only at such time as they may receive and/or retain payments in
respect of the Notes pursuant to the Indenture, including Article 10 thereof.
4. Execution and Delivery. Each Guaranteeing Subsidiaries agrees
that the Note Guarantees shall remain in full force and effect notwithstanding
any failure to endorse on each Note a notation of such Note Guarantee.
5. Guaranteeing Subsidiaries May Consolidate, Etc., on Certain
Terms. Except as otherwise provided in Section 11.06 of the Indenture, a
Guarantor may not sell or otherwise dispose of all or substantially all of its
assets, or consolidate with or merge with or into (whether or not such Guarantor
is the surviving Person) another Person unless:
(a) immediately after giving effect to such transaction, no Default or
Event of Default exists; and
(b) either:
(i) the Person acquiring the property in any such sale or
disposition or the Person formed by or surviving any such
consolidation or merger is a corporation, organized or existing
under (i) the laws of the United States, any state thereof or the
District of Columbia or (ii) the laws of the same jurisdiction as
that Guarantor and, in each case, assumes all the obligations of
that Guarantor under the Indenture, its Note Guarantee and the
Registration Rights Agreement pursuant to a supplemental indenture
satisfactory to the Trustee; or
(ii) in the case of a Subsidiary Guarantor (and except in the
case of any consolidation or merger of a Subsidiary Guarantor with
or into Xxxxxxxx Health
Systems, Inc. as described in Section 11.06 of the Indenture), such
sale or other disposition (A) complies with Section 4.10 of the
Indenture, including the application of the Net Proceeds therefrom
and (B) is to a Person that is not a Restricted Subsidiary of the
Company.
In case of any such consolidation, merger, sale or conveyance and
upon the assumption by the successor Person, by supplemental indenture, executed
and delivered to the Trustee and satisfactory in form to the Trustee, of the
Note Guarantee endorsed upon the Notes and the due and punctual performance of
all of the obligations and conditions of the Indenture to be performed by a
Guarantor, such successor Person shall succeed to and be substituted for a
Guarantor with the same effect as if it had been named herein as a Guarantor.
Such successor Person thereupon may cause to be signed any or all of the Note
Guarantees to be endorsed upon all of the Notes issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee. All the Note Guarantees so issued shall in all respects have the same
legal rank and benefit under the Indenture as the Note Guarantees theretofore
and thereafter issued in accordance with the terms of the Indenture as though
all of such Note Guarantees had been issued at the date of the execution hereof.
Except as set forth in Articles 4 and 5 of the Indenture, and
notwithstanding clauses (a) and (b) above, nothing contained in the Indenture or
in any of the Notes shall prevent any consolidation or merger of a Guarantor
with or into the Company or another Guarantor, or shall prevent any sale or
conveyance of the property of a Guarantor as an entirety or substantially as an
entirety to the Company or another Guarantor.
6. Releases. (a) Any Guarantor shall be released and relieved of any
obligations under its Note Guarantee, (i) in connection with any sale of all of
the Capital Stock of that Guarantor (including by way of merger or
consolidation) to a Person that is not (either before or after giving effect to
such transaction) a Restricted Subsidiary of the Company, if the sale of all of
such Capital Stock of that Guarantor complies with Section 4.10 of the
Indenture, including the application of the Net Proceeds therefrom; (ii) in
connection with the merger or consolidation of AHS Albuquerque Regional Medical
Center, LLC, AHS West Mesa Hospital, LLC, AHS Albuquerque Rehabilitation
Hospital, LLC, AHS Northeast Heights Hospital, LLC, AHS Albuquerque Physician
Group, LLC and Mesilla Valley Hospital with, or into, Xxxxxxxx Health Systems,
Inc., if (A) the surviving Person is an HMO Subsidiary and is prohibited from
providing a full and unconditional Guarantee of the Notes; (B) no such
Subsidiary Guarantor has outstanding at the time of such consolidation or merger
any indebtedness other than Indebtedness that it would otherwise be permitted to
incur at such time as a Restricted Subsidiary that is not a Subsidiary Guarantor
under Section 4.08 of the Indenture; and (C) the Company complies with Section
4.12 of the Indenture; or (iii) if the Company designated such Subsidiary
Guarantor as an Unrestricted Subsidiary in accordance with the Indenture.
(b) Any Guarantor not released from its obligations under its Note
Guarantee shall remain liable for the full amount of principal of and interest
on the Notes and for the other obligations of any Guarantor under the Indenture
as provided in Article 10 of the Indenture.
7. No Recourse Against Others. No past, present or future director,
officer, employee, incorporator, stockholder or agent of the Guaranteeing
Subsidiaries, as such, shall
have any liability for any obligations of the Company or any Guaranteeing
Subsidiaries under the Notes, any Note Guarantees, the Indenture or this
Supplemental Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder of the Notes by accepting a
Note waives and releases all such liability. The waiver and release are part of
the consideration for issuance of the Notes. Such waiver may not be effective to
waive liabilities under the federal securities laws and it is the view of the
SEC that such a waiver is against public policy.
8. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.
9. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
10. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
11. Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Subsidiaries and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
GUARANTEEING SUBSIDIARIES:
AHS ACADEMIC HEALTH CENTER, LLC
AHS XXXXXXX HOSPITAL, LLC
AHS CLEVELAND HOSPITAL, LLC
AHS XXXXXXX HOSPITAL, LLC
AHS EASTERN OKLAHOMA MEDICAL CENTER, LLC
AHS HENRYETTA HOSPITAL, LLC
AHS HILLCREST MEDICAL CENTER, LLC
AHS HILLCREST SPECIALTY HOSPITAL, LLC
AHS MANAGEMENT SERVICES OF OKLAHOMA, LLC
AHS OKLAHOMA HEALTH SYSTEM, LLP
AHS OKLAHOMA HOLDINGS,INC.
AHS OKLAHOMA HOSPITALS, INC.
AHS OKLAHOMA PHYSICIAN GROUP, LLC
AHS PAWNEE HOSPITAL, LLC
AHS RIVERSIDE PHO, LLC
AHS TULSA HOLDINGS, LLC
AHS TULSA REGIONAL MEDICAL CENTER, LLC
AHS XXXXXXX HOSPITAL, LLC
BHC MANAGEMENT SERVICES OF LOUISIANA, LLC
BHC MANAGEMENT SERVICES OF TULSA, LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President and Secretary
SUBSIDIARY GUARANTORS:
AHS ALBURQUERQUE HOLDINGS, LLC
AHS CUMBERLAND HOSPITAL, LLC
AHS KENTUCKY HOLDINGS, INC.
AHS KENTUCKY HOSPITALS, INC.
AHS LOUISIANA HOLDINGS, INC.
AHS LOUISIANA HOSPITALS, INC.
AHS MANAGEMENT COMPANY, INC.
AHS NEW MEXICO HOLDINGS, INC.
AHS RESEARCH AND REVIEW, LLC
AHS SAMARITAN HOSPITAL, LLC
AHS S.E.D. MEDICAL LABORATORIES, INC.
AHS SUMMIT HOSPITAL, LLC
ARDENT MEDICAL SERVICES, INC.
BEHAVIORAL HEALTHCARE CORPORATION
BHC ALHAMBRA HOSPITAL, INC.
BHC BELMONT PINES HOSPITAL, INC.
BHC CEDAR VISTA HOSPITAL, INC.
BHC COLUMBUS HOSPITAL, INC.
BHC FAIRFAX HOSPITAL, INC.
BHC FOX RUN HOSPITAL, INC.
BHC FREMONT HOSPITAL, INC.
BHC GULF COAST MANAGEMENT GROUP, INC.
BHC HEALTH SERVICES OF NEVADA, INC.
BHC HERITAGE OAKS HOSPITAL, INC.
BHC HOSPITAL HOLDINGS, INC.
BHC INTERMOUNTAIN HOSPITAL, INC.
BHC LEBANON HOSPITAL, INC.
BHC MANAGEMENT HOLDINGS, INC.
BHC MANAGEMENT SERVICES, LLC
BHC MANAGEMENT SERVICES OF INDIANA, LLC
BHC MANAGEMENT SERVICES OF KENTUCKY, LLC
BHC MANAGEMENT SERVICES OF NEW MEXICO, LLC
BHC MANAGEMENT SERVICES OF STREAMWOOD, LLC
BHC XXXXXXX PARTNER, INC.
BHC MONTEVISTA HOSPITAL, INC.
BHC NORTHWEST PSYCHIATRIC HOSPITAL, LLC
BHC OF INDIANA, GENERAL PARTNERSHIP
BHC OF NORTHERN INDIANA, INC.
BHC PHYSICIAN SERVICES OF KENTUCKY, LLC
BHC PINNACLE POINTE HOSPITAL, INC.
BHC PROPERTIES, INC.
BHC SIERRA VISTA HOSPITAL, INC.
BHC SPIRIT OF ST. LOUIS HOSPITAL, INC.
BHC STREAMWOOD HOSPITAL, INC.
BHC XXXXX VISTA HOSPITAL, INC.
BHC WINDSOR HOSPITAL, INC.
BLOOMINGTON XXXXXXX, X.X.
COLUMBUS HOSPITAL, LLC
INDIANA PSYCHIATRIC INSTITUTES, INC.
LEBANON HOSPITAL, LLC
MESILLA VALLEY GENERAL PARTNERSHIP
MESILLA VALLEY HOSPITAL, INC.
MESILLA VALLEY MENTAL HEALTH ASSOCIATES, INC.
NORTHERN INDIANA HOSPITAL, LLC
XXXXX VISTA, LLC
WILLOW SPRINGS, LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President and Secretary
ARDENT HEALTH SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President, General
Counsel and Secretary
ARDENT HEALTH SERVICES LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President, General
Counsel and Secretary
U.S. BANK TRUST NATIONAL ASSOCIATION,
AS TRUSTEE
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
SCHEDULE I
SUBSIDIARY GUARANTORS
AHS Academic Health Center, LLC
AHS Xxxxxxx Hospital, LLC
AHS Cleveland Hospital, LLC
AHS Xxxxxxx Hospital, LLC
AHS Eastern Oklahoma, LLC
AHS Henryetta Hospital, LLC
AHS Hillcrest Medical Center, LLC
AHS Hillcrest Specialty Hospital, LLC
AHS Management Services of Oklahoma, LLC
AHS Oklahoma Health System, LLP
AHS Oklahoma Holdings, Inc.
AHS Oklahoma Hospitals, Inc.
AHS Oklahoma Physician Group, LLC
AHS Pawnee Hospital, LLC
AHS Riverside PHO, LLC
AHS Tulsa Holdings, LLC
AHS Tulsa Regional Medical Center, LLC
AHS Xxxxxxx Hospital, LLC
BHC Management Services of Louisiana, LLC
BHC Management Services of Tulsa, LLC
