EXHIBIT 10.1
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT dated as of December 31, 2003
(the "Agreement") 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 (in such capacity, the "Administrative Agent").
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 and modified from time to time, the "Credit
Agreement");
WHEREAS, the Borrower has requested and the Lenders have agreed to
amend certain terms of the Credit Agreement as set forth below;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Reaffirmation. The Loan Parties acknowledge and confirm (a) that the
Borrower's obligation to reimburse the L/C Issuer for any drawing on a Letter of
Credit is unconditional and not subject to any offsets, defenses or
counterclaims, (b) that to the best of their knowledge, the Administrative
Agent, the Collateral Agent and the Lenders have performed fully all of their
respective obligations under the Credit Agreement and the other Loan Documents
to date, and (c) by entering into this Agreement, the Lenders do not waive or
release any term or condition of the Credit Agreement or any of the other Loan
Documents or any of their rights or remedies under such Loan Documents or
applicable law or any of the obligations of any Loan Party thereunder.
2. Amendments to the Credit Agreement. Effective on December 31, 2003,
the Credit Agreement is hereby amended as follows:
(a) The words "the Borrower" in the definition of
"Intercompany Note" in Section 1.01 of the Credit Agreement are hereby
deleted and replaced with the words "any Loan Party".
(b) The words "the Borrower" in the definition of
"Intercompany Security Documents" in Section 1.01 of the Credit
Agreement are hereby deleted and replaced with the words "any Loan
Party".
(c) The definition of "Disposition" in Section 1.01 of the
Credit Agreement is hereby amended by adding an additional subclause
(ix) thereto in the appropriate numerical place to read as follows:
"(ix) the disposition of disposable inventory in bulk to a third party
which disposable inventory shall then be consigned from such third
party to the Borrower or any Subsidiary for the benefit of or use by
such Persons in the ordinary course of such Person's patient care
operations,"
(d) The following new definitions are hereby added to Section
1.01 of the Credit Agreement in the appropriate alphabetical order:
"▇▇▇▇▇▇▇▇ Intercompany Loan" has the meaning set
forth in Section 8.02(g)(i).
"Quoted Rate" means, with respect to any Quoted Rate
Swingline Loan, the fixed or floating percentage rate per
annum, if any, offered by the Swing Line Lender and accepted
by the Borrower in accordance with the provisions hereof;
provided that from the date that any Lender funds a
participation interest in such Quoted Rate Swingline Loan, the
Quoted Rate for such Quoted Rate Swingline Loan shall be a
rate equal to the Base Rate plus the Applicable Margin.
"Quoted Rate Swing Line Loan" means any Swing Line
Loan that bears interest at the Quoted Rate.
(e) The penultimate sentence in Section 2.04(a) of the Credit
Agreement is hereby amended to read as follows:
Each Swing Line Loan shall be a Base Rate Loan or a Quoted
Rate Swing Line Loan, as the Borrower may elect.
(f) The second sentence in Section 2.04(b) of the Credit
Agreement is hereby amended to read as follows:
Each such notice must be received by the Swing Line Lender and
the Administrative Agent not later than 1:00 p.m. on the
requested borrowing date, and shall specify (i) the amount to
be borrowed, which shall be a minimum of $100,000, (ii) the
requested borrowing date, which shall be a Business Day and
(iii) whether such Swing Line Loan shall be a Base Rate Loan
or Quoted Rate Swing Line Loan.
(g) Subclause (iii) in Section 2.08(a) of the Credit Agreement
is hereby amended to read as follows:
(iii)(A) each Swing Line Loan that is a Base Rate Loan shall
bear interest on the outstanding principal amount thereof from
the applicable borrowing date at a rate per annum equal to the
Base Rate plus the Applicable Rate, and (B) each Swing Line
Loan that is a Quoted Rate Swing Line Loan shall bear interest
on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the
Quoted Rate applicable thereto.
(h) Section 7.01(a)(i) of the Credit Agreement is hereby
amended to read as follows:
(i) as soon as available, but in any event within
ninety days after the end of each fiscal year of the Parent, a
consolidated balance sheet of the Parent and its Subsidiaries
as at the end of such fiscal year, and the related
consolidated statements of income or operations, shareholders'
equity and cash flows for such fiscal year, setting forth in
each case in comparative form the figures for the previous
fiscal year, all in reasonable detail and prepared in
accordance with GAAP and SEC requirements, audited and
accompanied by a report and opinion of an independent
certified public accountant of nationally recognized standing
reasonably acceptable to the Required Lenders, which report
and opinion shall be prepared in accordance with generally
accepted auditing standards and shall not be subject to any
"going concern" or like qualification or exception or any
qualification or exception as to the scope of such audit; and
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(i) Section 7.01(b)(i) of the Credit Agreement is hereby
amended to read as follows:
(i) as soon as available, but in any event within
forty-five days after the end of each of the first three
fiscal quarters of each fiscal year of the Parent, a
consolidated balance sheet of the Parent and its Subsidiaries
as at the end of such fiscal quarter, and the related
consolidated statements of income or operations, shareholders'
equity and cash flows for such fiscal quarter, setting forth
in each case in comparative form the figures for the
corresponding fiscal quarter of the previous fiscal year and
the corresponding portion of the previous fiscal year, all in
reasonable detail and certified by a Responsible Officer of
the Parent as fairly presenting in all material respects the
financial condition, results of operations, shareholders'
equity and cash flows of the Parent and its Subsidiaries in
accordance with GAAP and SEC requirements, subject only to
normal year-end audit adjustments and the absence of
footnotes.
(j) Section 7.02(c) of the Credit Agreement is hereby amended
to read as follows:
(c) within 30 days after the end of each calendar
month, a certificate as of the end of the immediately
preceding month, substantially in the form of Exhibit K and
certified by a Responsible Officer of the Borrower to be true
and correct as of the date thereof (a "Borrowing Base
Certificate");
(k) Section 7.02(d) of the Credit Agreement is hereby amended
to read as follows:
(d) within 30 days after the end of each fiscal year
of the Parent, beginning with the fiscal year ending December
31, 2003, an annual business plan and budget of the Parent and
its Subsidiaries containing, among other things, pro forma
financial statements for each quarter of the next fiscal year
and projected Consolidated Capital Expenditures (in reasonable
detail) for such fiscal year.
(l) The penultimate sentence in the last paragraph of Section
7.02 of the Credit Agreement is hereby amended to read as follows:
Notwithstanding anything contained herein, the Loan Parties
shall be required to deliver the Compliance Certificates
required by Section 7.02(b) either (a) directly to the
Administrative Agent and each of the Lenders in the form of
paper copies or (b) to the Administrative Agent and the
Lenders via the IntraLinks/IntraAgency website or another
relevant website, if any, to which each Lender and the
Administrative Agent have access (whether a commercial, third
party website or whether sponsored by the Administrative
Agent).
(m) Subclause (i) in Section 8.02(g) of the Credit Agreement
is hereby amended to read as follows:
(i) $70,000,000 intercompany loan from any Loan Party
to ▇▇▇▇▇▇▇▇ (the "▇▇▇▇▇▇▇▇ Intercompany Loan") (it being
understood and agreed that the consideration giving rise to
the ▇▇▇▇▇▇▇▇ Intercompany Loan shall not be cash consideration
but rather the value contributed to ▇▇▇▇▇▇▇▇ pursuant to the
▇▇▇▇▇▇▇▇/Sandia Merger); provided that (A) ▇▇▇▇▇▇▇▇ shall have
delivered an Intercompany Note in the amount of $70 million to
such Loan Party and pledged its assets to such Loan Party to
secure such Intercompany Note pursuant to the Intercompany
Security Documents and (B) such Loan Party shall have
delivered such Intercompany Note to the Collateral Agent,
executed Collateral Assignment
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Documents and delivered such other documentation to the
Collateral Agent in accordance with Section 7.14.
(n) The last sentence of Section 8.05 of the Credit Agreement
is hereby amended to read as follows:
Notwithstanding the foregoing, the parties hereto agree that
AHS Summit Hospital, LLC may donate the Baton Rouge Property
to Health Care Services Foundation.
(o) Section 8.11(e) of the Credit Agreement is hereby amended
to increase the amount of permitted Consolidated Capital Expenditures
for the period from July 1, 2003 through December 31, 2003 from
$35,000,000 to $47,000,000.
(p) Section 8.12(d) of the Credit Agreement is hereby amended
to read as follows:
(d) Accept or permit to be made any principal payment
on (i) the ▇▇▇▇▇▇▇▇ Intercompany Loan or (ii) any other
intercompany loan made to an HMO Subsidiary in accordance with
the terms of Section 7.12(a)(iii) and Section 8.02(g)(ii).
3. Conditions Precedent. This Agreement shall be effective upon the
receipt by the Administrative Agent of counterparts of this Agreement, duly
executed by the Borrower, the Guarantors and the Required Lenders.
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 (a) acknowledges and consents to all of the
terms and conditions of this Agreement, (b) affirms all of its
obligations under the Loan Documents and (c) agrees that this Agreement
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.
(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
Agreement.
(ii) This Agreement 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 (i) bankruptcy, insolvency, reorganization,
fraudulent conveyance or transfer, moratorium or similar laws
affecting creditors' rights generally and (ii) 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 Agreement.
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(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 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) This Agreement 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 Agreement by
telecopy shall be effective as an original and shall constitute a
representation that an executed original shall be delivered.
(f) THIS AGREEMENT 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.
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Each of the parties hereto has caused a counterpart of this Agreement
to be duly executed and delivered as of the date first above written.
BORROWER: ARDENT HEALTH SERVICES, INC.,
a Delaware corporation
By: /s/ R. ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: R. ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President and Chief
Financial Officer
GUARANTORS: ARDENT HEALTH SERVICES LLC,
a Delaware limited liability company
By: /s/ R. ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: R. ▇▇▇▇ ▇▇▇▇▇▇▇
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. ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: R. ▇▇▇▇ ▇▇▇▇▇▇▇
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 ▇▇▇▇▇▇▇ 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. ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: R. ▇▇▇▇ ▇▇▇▇▇▇▇
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 ▇▇▇▇▇ VISTA HOSPITAL, INC.,
a Tennessee corporation
BHC WINDSOR HOSPITAL, INC.,
an Ohio corporation
BLOOMINGTON ▇▇▇▇▇▇▇, ▇.▇.,
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
▇▇▇▇▇ 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. ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: R. ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President of each of the
foregoing Guarantors
ADMINISTRATIVE
AGENT: BANK ONE, NA,
as Administrative Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: First Vice President
LENDERS: BANK ONE, NA,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: First Vice President
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL, A DIVISION OF
▇▇▇▇▇▇▇ ▇▇▇▇▇ BUSINESS FINANCIAL SERVICES INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By:
-----------------------------------------
Name:
Title:
RESIDENTIAL FUNDING CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: SVP
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Managing Director
FIFTH THIRD BANK
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director