EXHIBIT 10.4
FOURTH SUPPLEMENTAL INDENTURE
Fourth Supplemental Indenture (this "Fourth Supplemental
Indenture"), dated as of December 31, 2004, among 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 National Association
(formerly known as U.S. Bank Trust National Association), as Trustee (the
"Trustee").
WITNESSETH
WHEREAS, the Company, the Parent and the Subsidiary Guarantors have
heretofore executed and delivered to the Trustee an indenture, dated as of
August 19, 2003, as supplemented by the First Supplemental Indenture and the
Second Supplemental Indenture, each dated as of August 12, 2004, and the Third
Supplemental Indenture, dated as of the date hereof (as so supplemented, the
"Indenture"), providing for the issuance of 10% Senior Subordinated Notes due
2013 (the "Notes") of the Company;
WHEREAS, on December 20, 2004, the Company commenced a solicitation
of consents of the Holders to (i) a proposed amendment (the "Proposed
Amendment") to Section 4.03 of the Indenture and (ii) a waiver (the "Proposed
Waiver") of all Defaults with respect to breaches of Section 4.03 of the
Indenture, and any Events of Default or other consequences under the Indenture
as a result of such Defaults, occurring before the effectiveness of the Proposed
Amendment;
WHEREAS, the Holders of a majority in aggregate principal amount of
the outstanding Notes have delivered consents to the Proposed Amendment and the
Proposed Waiver as required by Section 9.02 of the Indenture;
WHEREAS, the Company desires to amend Section 12.02 of the Indenture
regarding the delivery of notices to the Company; and
WHEREAS, pursuant to Sections 9.01 and 9.02 of the Indenture, the
Trustee is authorized to execute and deliver this Fourth Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties to this Fourth Supplemental Indenture 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. Amendment to Section 4.03(a): Section 4.03(a) of the Indenture is
hereby deleted in its entirety and replaced with the following:
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"(a) Whether or not required by the SEC, so long as any Notes are
outstanding, at all times after the earlier of (A) the date of
commencement of the Exchange Offer or the effectiveness of the Shelf
Registration Statement and (B) the date that is 210 days after the date
the Notes are originally issued, the Company shall, except as otherwise
provided in this Section 4.03(a), furnish to the Holders of Notes, within
the time periods specified in the SEC's rules and regulations, (i) all
quarterly and annual financial information that would be required to be
contained in a filing with the SEC on Forms 10-Q and 10-K if the Company
were required to file such Forms, including a "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and, with
respect to the annual information only, a report on the annual financial
statements by the Company's certified independent accountants; and (ii)
all current reports that would be required to be filed with the SEC on
Form 8-K if the Company were required to file such reports. In addition,
whether or not required by the SEC, the Company shall, except as otherwise
provided in this Section 4.03(a), file a copy of all of the information
and reports referred to in clauses (i) and (ii) above with the SEC for
public availability within the time periods specified in the SEC's rules
and regulations (unless the SEC shall not accept such a filing) and make
such information available to securities analysts and prospective
investors upon request. In addition, the Company and the Guarantors have
agreed that, for so long as any Notes remain outstanding, they shall,
except as otherwise provided in this Section 4.03(a), furnish to the
Holders and to prospective investors, upon their request, the information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities
Act. Notwithstanding any other provision of this Section 4.03 or of this
Indenture, the information and reports referred to in this Section 4.03(a)
that the Company, Parent or the Guarantors would have been required to
furnish to Holders, file with the SEC for public availability and make
available to securities analysts and prospective investors on any date on
or before May 2, 2005 (but for this sentence), will not be required to be
furnished, filed or made available, as the case may be, by the Company,
Parent or the Guarantors until May 2, 2005."
3. Amendment to Section 12.02: Section 12.02 of the Indenture is
hereby deleted in its entirety and replaced with the following:
"Section 12.02. Notices. Any notice or communication by the Company,
any Guarantor or the Trustee to the others is duly given if in writing and
delivered in Person or mailed by first class mail (registered or
certified, return receipt requested), telex, telecopier or overnight air
courier guaranteeing next day delivery, to the others' address.
If to the Company and/or any Guarantor:
Ardent Health Services, Inc.
Xxx Xxxxxx Xxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Facsimile: 000-000-0000
Attention: Treasurer
with a copy to:
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Ardent Health Services, Inc.
Xxx Xxxxxx Xxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Facsimile: 000-000-0000
Attention: Chief Financial Officer
with a copy to:
Ardent Health Services, Inc.
Xxx Xxxxxx Xxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Facsimile: 000-000-0000
Attention: General Counsel
If to the Trustee:
U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, XX 00000-0000
Facsimile: 000-000-0000
Attention: Corporate Trust Department
The Company, any Guarantor or the Trustee, by notice to the others
may designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: (i) at the time delivered by
hand, if personally delivered; (ii) five Business Days after being
deposited in the mail, postage prepaid, if mailed; (iii) when answered
back, (iv) if telexed; when receipt acknowledged, if telecopied; and (v)
the next Business Day after timely delivery to the courier, if sent by
overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first
class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown
on the register kept by the Registrar. Any notice or communication shall
also be so mailed to any Person described in TIA Section 313(c), to the
extent required by the TIA. Failure to mail a notice or communication to a
Holder or any defect in it shall not affect its sufficiency with respect
to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time."
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4. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS FOURTH SUPPLEMENTAL INDENTURE.
5. Counterparts. The parties may sign any number of copies of this
Fourth Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
6. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
7. Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Fourth
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Company.
8. Ratification of Indenture. Except as amended by this Fourth
Supplemental Indenture, the Indenture is hereby ratified and remains in full
force and effect.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Supplemental Indenture to be duly executed and attested, all as of the date
first above written.
ARDENT HEALTH SERVICES, INC.
By: /s/ R. Xxxx Xxxxxxx
------------------------------
Name: R. Xxxx Xxxxxxx
Title: Executive Vice President
and Chief Financial
Officer
ARDENT HEALTH SERVICES LLC
By: /s/ R. Xxxx Xxxxxxx
------------------------------
Name: R. Xxxx Xxxxxxx
Title: Executive Vice President
and Chief Financial
Officer
SUBSIDIARY GUARANTORS:
AHS ACADEMIC HEALTH CENTER, INC.
AHS ALBUQUERQUE HOLDINGS, LLC
AHS XXXXXXX HOSPITAL, LLC
AHS CLEVELAND HOSPITAL, LLC
AHS CUMBERLAND 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 KENTUCKY HOLDINGS, INC.
AHS KENTUCKY HOSPITALS, INC.
AHS LOUISIANA HOLDINGS, INC.
AHS LOUISIANA HOSPITALS, INC.
AHS MANAGEMENT COMPANY, INC.
AHS MANAGEMENT SERVICES OF OKLAHOMA,
LLC
AHS NEW MEXICO HOLDINGS, INC.
AHS OKLAHOMA HEALTH SYSTEM, LLP
By: /s/ R. Xxxx Xxxxxxx
------------------------------
Name: R. Xxxx Xxxxxxx
Title: Senior Vice President
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AHS OKLAHOMA HOLDINGS, INC.
AHS OKLAHOMA HOSPITALS, INC.
AHS OKLAHOMA PHYSICIAN GROUP, LLC
AHS PAWNEE HOSPITAL, LLC
AHS RESEARCH AND REVIEW, LLC
AHS RIVERSIDE PHO, LLC
AHS SAMARITAN HOSPITAL, LLC
AHS S.E.D. MEDICAL LABORATORIES,
INC.
AHS SUMMIT HOSPITAL, LLC
AHS TULSA HOLDINGS, LLC
AHS TULSA REGIONAL MEDICAL
CENTER, LLC
AHS XXXXXXX 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
LOUISIANA, LLC
BHC MANAGEMENT SERVICES OF NEW
MEXICO, LLC
By: /s/ R. Xxxx Xxxxxxx
------------------------------
Name: R. Xxxx Xxxxxxx
Title: Senior Vice President
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BHC MANAGEMENT SERVICES OF
STREAMWOOD, LLC
BHC MANAGEMENT SERVICES OF
TULSA, 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
AHS XXXXXX MEDICAL CENTER, LLC
EAST BATON ROUGE MEDICAL CENTER, LLC
By: /s/ R. Xxxx Xxxxxxx
------------------------------
Name: R. Xxxx Xxxxxxx
Title: Senior Vice President
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U.S. BANK NATIONAL ASSOCIATION, AS
TRUSTEE
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
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