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RAMSAY HEALTH CARE, INC.
BOUNTIFUL PSYCHIATRIC HOSPITAL, INC.
CUMBERLAND MENTAL HEALTH, INC.
EAST CAROLINA PSYCHIATRIC SERVICES CORPORATION
HAVENWYCK HOSPITAL, INC.
MESA PSYCHIATRIC HOSPITAL, INC.
and
PSYCHIATRIC INSTITUTE OF WEST VIRGINIA, INC.
______________________________________________
NOTE PURCHASE AGREEMENT
Dated as of March 31, 1990
______________________________________________
Re:
$56,500,000 11.6% Senior Secured Notes
Due March 31, 2000
and
$3,000,000 15.6% Subordinated Secured Notes
Due March 31, 2000
and
Warrants to Purchase Common Stock of Ramsay Health Care, Inc.
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TABLE OF CONTENTS
Section Page
Parties.......................................................................1
1. Issue of Note and Warrants...........................................2
2. Security for the Notes.............................4
3. Other Agreements...................................4
4. Sale of Notes......................................4
5. Representations of the Obligors....................5
6. Representations of the Purchasers..................5
7. Closing Conditions.................................6
8. Expenses and Taxes................................13
9. Successors and Assigns............................14
10. Survival of Covenants and Representations.........14
11. Severability......................................14
12. Communications....................................15
13. Governing Law.....................................15
14. Counterparts......................................15
15. Headings and Table of Contents....................15
ATTACHMENTS TO NOTE PURCHASE AGREEMENT:
Schedule I - Name and Address of Purchasers
Schedule II - Identification of Warrants
Exhibit A - Form of Trust Indenture
Exhibit B - Form of Mortgage and Security Agreement
Exhibit C - Form of Pledge and Security Agreement
Exhibit D - Closing Certificate of Obligors other than
the Company
Exhibit E - Closing Certificate of the Company
-i-
Page
Exhibit F - Description of Special Counsel's Closing
Opinion
Exhibit G - Description of Closing Opinion of Counsel
for the Obligors
Exhibit H - Description of Closing Opinion of Local
Counsel
Exhibit I - Form of Warrant
-ii-
RAMSAY HEALTH CARE, INC.
BOUNTIFUL PSYCHIATRIC HOSPITAL, INC.
CUMBERLAND MENTAL HEALTH, INC.
EAST CAROLINA PSYCHIATRIC SERVICES CORPORATION
HAVENWYCK HOSPITAL, INC.
MESA PSYCHIATRIC HOSPITAL, INC.
and
PSYCHIATRIC INSTITUTE OF WEST VIRGINIA, INC.
NOTE PURCHASE AGREEMENT
Re:
$56,500,000 11.6% Senior Secured Notes
Due March 31, 2000
and
$3,000,000 15.6% Subordinated Secured Notes
Due March 31, 2000
Dated as of
March 31, 1990
To the Purchaser named in Schedule I
attached hereto which is a signatory
to this Agreement
Gentlemen:
The undersigned, RAMSAY HEALTH CARE, INC., a Delaware corporation (the
"Company", BOUNTIFUL PSYCHIATRIC HOSPITAL, INC., a Utah corporation ("Bountiful
Psychiatric"), CUMBERLAND MENTAL HEALTH, INC., a North Carolina corporation
("Cumberland"), EAST CAROLINA PSYCHIATRIC SERVICES CORPORATION, a North Carolina
corporation ("East Carolina Psychiatric"), HAVENWYCK HOSPITAL, INC., a Michigan
2
corporation ("Havenwyck"), MESA PSYCHIATRIC HOSPITAL, INC., an Arizona
corporation ("Mesa Psychiatric"), and PSYCHIATRIC INSTITUTE OF WEST VIRGINIA,
INC., a Virginia corporation ("Psychiatric Institute"; together with the
Company, Bountiful Psychiatric, Cumberland, East Carolina Psychiatric, Havenwyck
and Mesa Psychiatric collectively being hereinafter referred to as the
"Obligors"), jointly and severally agree with you as follows:
1. Issue of Notes and Warrants. (a) The Obligors require funds to
prepay certain indebtedness for borrowed money of the Obligors (which
indebtedness was issued by or guaranteed by each of the Obligors) and to finance
capital expenditures, renovations and construction at facilities owned by
certain of the Obligors, and in order to strengthen the financial and operating
condition of each and every Obligor, directly and indirectly, as a result of the
enhanced ability of the Company to provide financial, accounting, consulting and
administrative assistance and services to each other Obligor. In order to
provide funds for such purposes, the Obligors will authorize the issue and sale
of $56,500,000 aggregate principal amount of 11.6% Senior Secured Notes due
March 31, 2000 (the "Senior Secured Notes") and $3,000,000 aggregate principal
amount of 15.6% Subordinated Secured Notes due March 31, 2000 of the Obligors
(the "Subordinated Secured Notes"). The Senior Secured Notes and the
Subordinated Secured Notes (collectively, the "Notes") will be dated the date of
issue, bear interest from the issue date, be payable quarterly on March 31, June
30, September 30 and December 31 in each year (commencing June 30, 1990) and be
expressed to mature on March 31, 2000. The Senior Secured Notes will bear
interest at the rate of 11.6% per annum prior to maturity; the Subordinated
Secured Notes will bear interest at the rate of 15.6% per annum prior to
maturity and the Notes will bear interest on overdue principal (including any
overdue required or optional prepayment of principal) and premium, if any, and
(to the extent legally enforceable) on any overdue installment of interest at a
rate equal to the greater of (i) 13.6% per annum and (ii) the sum of (y) the
rate of interest publicly announced by Xxxxxx Guaranty Trust Company of New York
from time to time in New York City as its prime rate plus (z) 1%, in the case of
the Senior Secured Notes, and at a rate equal to the greater of (i) 17.6% per
annum and (ii) the sum of (y) the rate of interest publicly announced by Xxxxxx
Guaranty Trust Company of New York from time to time in New York City as its
prime rate plus (z) 1%, in the case of the Subordinated Secured Notes, after
maturity, whether by acceleration or otherwise, until paid. Interest on the
Notes will be computed on the basis of a 360-day year of twelve 30-day months.
3
The Senior Secured Notes will be substantially in the form attached as Exhibit A
to the Trust Indenture hereinafter referred to; the Subordinated Secured Notes
will be substantially in the form attached as Exhibit B to said Trust Indenture.
The term "Notes" as used herein shall include each Note delivered pursuant to
this Agreement, the separate Note Purchase Agreements entered into with the
other purchasers named in Schedule I and said Trust Indenture. You and the other
purchasers named in Schedule I hereto are hereinafter sometimes referred to as
the "Purchasers".
(b) (i) if you are purchasing Subordinated Secured Notes hereunder,
then, in consideration of and as an inducement to your execution and delivery of
this Agreement and your purchase of such Subordinated Secured Notes, on the
Closing Date the Company will execute and deliver to you a stock purchase
warrant substantially in the form thereof attached hereto as Exhibit I (the
"Warrants") to purchase, at the price, in the manner and upon the terms and
conditions therein set forth, the Original Number of Warrant Shares (as defined
in the Warrants) set forth opposite your name in Schedule II hereto.
(ii) The Company and you agree (as contemplated by proposed Treasury
Regulations section 1.1273-2(d)(2)(iv)) for U.S. federal income tax purposes (i)
that (a) the present value as of the closing date of all payments under the
Subordinated Secured Notes, using a discount rate based on a yield which the
Company and you agree is the original yield of comparable debt instruments not
issued as part of an investment unit (which rate is not less than the applicable
federal rate on the date the Notes are issued), is equal to $994 per $1,000
principal amount, and (b) the aggregate "issue price" under section 1273(b) of
the Internal Revenue Code of 1986, as amended (the "Code") of all of the
Subordinated Secured Notes issued hereunder and under the other Note Agreements
is $2,982,000; and (ii) that the aggregate "issue price" under section 1273(b)
of the Code of all of the Warrants to be purchased hereunder and under the other
Note Agreements is $18,000. The Company and you agree to use the foregoing issue
prices, purchase prices and values and the yields which result in such issue
prices for U.S. federal income tax purposes with respect to this transaction.
(iii) Common Stock. The rights, powers and terms of and relating to
the Common Stock (as defined in the Warrants) will be provided for in the
Company's Certificate of Incorporation as in effect as of the Closing Date, and
as otherwise provided by Delaware law.
4
2. Security for the Notes. The Notes will be issued under and secured
by a Trust Indenture (the "Indenture") substantially in the form attached hereto
as Exhibit A from the Obligors, jointly and severally, to The Citizens and
Southern National Bank, as corporate trustee, and Xxxxx X. Xxxxx, as individual
trustee (collectively the "Trustees"). Pursuant to the Indenture, each of
Bountiful Psychiatric, Cumberland, East Carolina Psychiatric, Havenwyck, Mesa
Psychiatric and Psychiatric Institute will on or before the Closing Date
referred to in section 4(b) execute, acknowledge and deliver a Mortgage and
Security Agreement (a "Mortgage" and collectively, the "Mortgages")
substantially in the form attached hereto as Exhibit B with respect to certain
hospital facilities referred to in the Mortgages creating a first mortgage lien
and a first security interest thereon. Terms not otherwise defined herein shall
have the meanings set forth in the Indenture.
In addition, the Company, of which the other Obligors are
Subsidiaries, Michigan Psychiatric Services, Inc., a Michigan corporation and a
Subsidiary ("Michigan Psychiatric"), Americare of Galax, Inc., a Virginia
corporation and a Subsidiary ("Americare"), and Bountiful Psychiatric will
execute and deliver a Pledge and Security Agreement (a "Pledge Agreement" and
collectively, the "Pledge Agreements") substantially in the form attached hereto
as Exhibit C pledging all capital stock of such other Obligors owned by the
Company or such Subsidiary as further security for the Notes.
3. Other Agreements. Concurrently with the execution and delivery of
this Agreement, the Obligors are entering into similar agreements with the other
Purchasers under which such other Purchasers agree to purchase from the Obligors
the principal amount of Notes set opposite such Purchasers' names in Schedule I
and your obligations and the obligations of the Obligors hereunder are subject
to the execution and delivery of the similar agreements by the other Purchasers.
The obligations of each Purchaser shall be several and not joint and no
Purchaser shall be liable or responsible for the act of any other Purchaser.
4. Sale of Notes. (a) Subject to the terms and conditions herein
contained and on the basis of the representations and warranties hereinafter set
forth, the Obligors agree to issue and sell to you and you agree to purchase
from the Obligors on the Closing Date hereinafter specified, Notes of the
Obligors of the class specified in Schedule I at a price equal to 100% of the
principal amount set forth opposite your name in Schedule I.
5
(b) Delivery of the Notes will be made at the offices of Xxxxxxx and
Xxxxxx, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 against payment therefor
by wire transfer of Federal or other funds current and immediately available at
the principal office of Continental Bank, N.A., ABA No. 071 000 039, for credit
to Account No. 00-00000-0, at 10:00 a.m. local time on such business day (the
"Closing Date") not later than April 30, 1990 as the Company shall designate to
you by not less than three days' prior written notice.
(c) The Notes delivered to you on the Closing Date will be delivered
to you in the form of a single registered Note for the principal amount then to
be purchased by you of each class of Notes (unless different denominations are
specified by you), registered in your name or in the name of such nominee as
specified in Schedule I and in substantially the form attached to the Indenture
as Exhibits A and B, respectively.
5. Representations of the Obligors. The Obligors represent and warrant
that all representations set forth in the forms of Closing Certificates attached
hereto as Exhibits D and E are true and correct as of the date hereof and are
incorporated herein by reference with the same force and effect as though herein
set forth in full.
6. Representation of the Purchasers. You acknowledge that the Notes
(and the Warrants, if any) have not been registered under the Securities Act of
1933, as amended, and as such, constitute restricted securities that may not be
resold by you without registration under the Act or the availability of an
exemption therefrom; you represent that you shall not resell the Notes (or the
Warrants, if any) in the absence of such registration or applicable exemption;
and you represent, and in making this sale to you it is specifically understood
and agreed, that you are not acquiring the Notes (or Warrants, if any) to be
purchased by you hereunder with a view to or for sale in connection with any
distribution thereof within the meaning of the Securities Act of 1933, as
amended; provided that the disposition of your property shall at all times be
and remain within your control. You also represent that no part of the funds
being used by you to pay the purchase price of the Notes (or Warrants, if any)
being purchased by you hereunder constitutes assets allocated to any separate
account maintained by you in which any employee benefit plan, other than
employee benefit plans identified on a list which has been furnished by you to
the Company, participates to the extent of 5% or more. For the purpose of this
section 6, the terms "separate account" and "employee benefit plan" shall have
6
shall have the respective meanings specified in Section 3 of the Employee
Retirement Income Security Act of 1974, as amended.
7. Closing Conditions. Your obligation to purchase and pay for the
Notes to be sold to you on the Closing Date is subject to the performance by the
Obligors of their agreements hereunder which, by the terms hereof, are to be
performed at or prior to the time of the delivery of the Notes and to the
following conditions precedent:
(a) On or prior to the Closing Date --
(i) Execution of Indenture. The Obligors and the Trustees shall
have executed, acknowledged and delivered the Indenture.
(ii) Execution of Mortgages and Financing Statements. Each of the
Obligors except the Company shall have executed, acknowledged and delivered a
Mortgage with respect to the Land Parcels, buildings, improvements and Equipment
owned by such Obligor comprising Benchmark Regional Hospital, Xxxxx Cross, Utah
(the "Benchmark Regional Hospital"), Xxxxx Xxxx Hospital and Life Center of
Jacksonville, Jacksonville, North Carolina (the "Xxxxx Xxxx Hospital"), Chestnut
Ridge Hospital, Morgantown, West Virginia (the "Chestnut Ridge Hospital"),
Cumberland Hospital and Life Center of Fayetteville, Fayetteville, North
Carolina (the "Cumberland Hospital"), Desert Vista Hospital, Mesa, Arizona (the
"Desert Vista Hospital") and Havenwyck Hospital, Auburn Hills, Michigan (the
"Havenwyck Hospital"), respectively, as security for the Notes, in the form
necessary or appropriate for the purpose of creating a first and paramount Lien
on each such Land Parcel, the buildings, improvements and Equipment thereon; and
any Person which has or purports to have an interest in any Land Parcel in
respect of which any Obliger holds a leasehold estate shall have executed,
acknowledged and delivered an Estoppel Agreement in respect of such Land Parcel.
Each such Mortgage and financing statements with respect to the Equipment shall
have been recorded or filed for record in each public office wherein such
recording or filing is deemed necessary or appropriate by you or your special
counsel to perfect the Lien thereof as against creditors of or purchasers from
the Obligors and each such Estoppel Agreement shall have been recorded or filed
for record in each public office wherein such recording or filing is deemed
necessary or appropriate by you or your special counsel to protect the rights of
the Obligor and the Trustees created thereby.
7
For purposes of this section 7(a)(ii), "Estoppel Agreement" means
any agreement between the Trustees and the fee holder/lessor under the leases of
the real property upon which the Morgantown, West Virginia and the Mesa, Arizona
properties are located (the "Ground Leases"), and any Mortgage of the fee
interest of such property providing, inter alia for notice of default under
either Ground Lease, the right to cure any defaults under either Ground Lease,
the approval of a leasehold Mortgage of the Company's interests under each
Ground Lease, if required, the right to "quiet enjoyment" of the land subject to
either Ground Lease and such other terms as are requires by your special
counsel.
(iii) Survey. The Company shall have caused a physical survey of
each Land Parcel relating to the Benchmark Regional Hospital, the Xxxxx Xxxx
Hospital, the Chestnut Ridge Hospital, the Cumberland Hospital, the Desert Vista
Hospital and the Havenwyck Hospital to be made by a registered civil engineer or
surveyor licensed in the jurisdiction in which each such Land Parcel is located
and shall have furnished to the Trustees and your special counsel a plot of
survey duly certified by such engineer or surveyor which shall show no
encroachments upon such real estate parcel by adjoining buildings or structures
and no encroachments on adjoining premises by the building or improvements
erected thereon, other then as permitted under section 3.19(f) of the Indenture.
Each survey shall be prepared in accordance with the standard detail
requirements for land surveys adopted by the American Land Title Association
("ALTA") and the American Congress on Surveying and Mapping, as revised and in
effect on the date of delivery of such survey, and shall be certified to the
Trustees.
(iv) Evidence of Title. The Company shall have obtained the
commitment of Chicago Title Insurance Company or another title insurance company
or companies of good standing selected by the Company and satisfactory to you
(collectively, the "Title Company"), to issue policies of mortgage title
insurance on a standard American Land Title Association Mortgage Title Insurance
Policy (Loan Policy-1970 Form) in the aggregate amount which will provide for
mortgage title insurance in an amount not less than the aggregate principal
amount of Notes, covering each Land Parcel relating to the Benchmark Regional
Hospital, the Xxxxx Xxxx Hospital, the Chestnut Ridge Hospital, the Cumberland
Hospital, the Desert Vista Hospital and the Havenwyck Hospital and showing
marketable record title thereto to be vested in Bountiful Psychiatric, East
Carolina Psychiatric, Psychiatric Institute, Cumberland, Mesa Psychiatric and
Havenwyck, respectively, subject only to:
8
(y) the Liens, if any, permitted by the related Mortgages; and
(z) such other exceptions as shall be satisfactory to you and
your special counsel; and
agreeing to insure the Trustees and the holders of the Notes upon the proper
execution and recording of the related Mortgages against loss or damage
sustained by reason of such Mortgages not being a first and paramount Lien upon
such Land Parcels, subject only to the exceptions referred to in the foregoing
clauses (y) and (z). Risk assumed by the Title Company under the title policy or
policies will be reinsured when the Loan Value of any one individual Land Parcel
and Mortgage Facility insured pursuant to the provisions of this section
7(a)(iv) by First American Title Insurance Company shall exceed $35,000,000 and
when any such Land Parcel and Mortgaged Facility insured pursuant to the
provisions of this section 7(a)(iv) by Transamarica Title Insurance Company
shall exceed $16,600,000, with a reinsurance company satisfactory to the
Purchasers and by means of R coinsurance and direct-access agreement
satisfactory to the Purchasers.
Such title insurance shall insure over all general exceptions and
shall include the following endorsements in form and substance satisfactory to
you and your special counsel: (i) an endorsement over mechanics' and
materialmen's lien claims for all labor, materials and services, (ii) an ALTA
Form 3.1 Zoning Endorsement (including parking), (iii) an unconditional
Comprehensive Endorsement No. 1 containing a commitment by the Title company to
extend the coverage of such endorsement to cover all improvements on the Land
Parcels, (iv) a usury endorsement, (v) an endorsement to the effect that any
interest accrued and added to principal will be secured by the lien of the
Mortgage, (vi) a tie-in endorsement and (vii) such other endorsements as you or
your special counsel may require. If any Land Parcel consists of several
subparcels, the title policy must affirmatively insure the contiguity of those
subparcels and contain a perimeter endorsement. If the Survey furnished pursuant
to section 7(a)(iii) reveals that any Land Parcel makes use of any other
property as a means of, ingress and egress (or for any other purpose), then the
title policy shall specifically insure the same as easements appurtenant to the
Land Parcel, subject only to Permitted Encumbrances. If ingress and egress is by
way of a private street, then the title policy shall insure ingress and egress
via such private street subject only to Permitted Encumbrances. If any required
endorsement is unavailable due to state insurance laws or regulations applicable
9
to the Title Company, then you and your special counsel may require, in lieu of
such endorsement, an opinion of counsel to the Obligors as to such matters in
form and substance and from counsel satisfactory to you and your special
counsel.
The Company will, as soon as practicable and in any event within
30 days after the Closing Date, without cost or expense to you, obtain and
deliver to you and the Trustee the policy or policies contemplated by the
commitments of the Title Company.
(v) Environmental Audit. The Company shall have furnished you
with an Environmental Agreement ("Environmental Audit") performed by Xxxx X.
Xxxx Associates, Inc. and/or Xxxxxxxx X. Xxxxxx and Company, Inc. for each such
Hospital and a report of the engineer who performed each Environmental Audit
dated not more than 60 days prior to the Closing Date stating that except as
disclosed to you in such Environmental Audit, each such Hospital is free of
asbestos and any other hazardous material and otherwise in form and substance
satisfactory to you and your special counsel.
(vi) Appraisal. The Company shall have furnished to you an
appraisal of the Land Parcels relating to the Benchmark Regional Hospital, the
Xxxxx Xxxx Hospital, the Chestnut Ridge Hospital, the Cumberland Hospital, the
Desert Vista Hospital and the Havenwyck Hospital and such Hospitals in form and
substance satisfactory to you prepared by Valuation Counseling, Inc. (the
"Appraiser"). The appraisal shall reflect a correlated value conclusion for such
Hospitals, the related Land Parcels and Equipment, of at least $109,000.000.
(vii) Pledge Agreements. The Company, Michigan Psychiatric,
Americare and Bountiful Psychiatric shall have executed and delivered the Pledge
Agreements and the Pledge Agreements shall be in full force and effect.
(viii) Evidence of Accreditation. The Company shall have
furnished you with evidence that the Benchmark Regional Hospital, the Xxxxx Xxxx
Hospital, the Chestnut Ridge Hospital, the CumberLand Hospital, the Desert Vista
Hospital and the Havenwyck Hospital are each fully accredited by the Joint
Commission on Accreditation of Healthcare Organizations; that each of the
Benchmark Regional Hospital, the Xxxxx Xxxx Hospital, the Chestnut Ridge
Hospital, the Cumberland Hospital, the Desert Vista Hospital and the Havenwyck
Hospital is a "hospital" as defined in the Health Insurance for the Aged and
Disabled Act (Title 42, Section 1395 of the United States Code Annotated) to
10
which payment for medical and other health services are permitted under the
terms and provisions of said Act, and each such Hospital is an eligible provider
for third party reimbursement programs as set forth in Annex D to Exhibit D
attached hereto.
(ix) Consent of Holders of Other Securities. Any consents or
approvals required to be obtained from any holder or holders of any (outstanding
Security of any Obligor and any amendments of agreements pursuant to which any
Security may have been issued which shall be necessary to permit the
consummation of the transactions contemplated hereby shall have been obtained
and all such consents or amendments shall be satisfactory in form and substance
to you and your special counsel.
(x) Regulatory Agency Approvals. You shall be provided with
copies of all licenses, orders, permits and approvals of all state and local
governmental licensing or regulatory agencies, having jurisdiction over the
operation of a Hospital, required under applicable laws, regulations and
ordinances for the issuance of the Notes, the mortgaging of such Hospital or the
occupancy or operation of such Hospital, including, without limitation, a
"certificate of occupancy" covering each such Hospital.
(xi) Issuance of Warrants. The Company shall have duly executed
and delivered the Warrants to the Purchasers or the Subordinated Secured Notes,
all as contemplated and provided in section 1(b) hereof.
(xii) Subordinated Convertible Promissory Note. You shall have
received evidence of the amendment of the Company's Amended and Restated 10%
Subordinated Convertible Promissory Note, dated October 27, 1988, due November
5, 1993, payable to Ramsay Corporation in the principal amount of $2,500,000 (as
amended on the Closing Date, the "Subordinated Convertible Promissory Note"),
which amendment shall be satisfactory in form and substance to you.
(xiii) Subordinated Promissory Note. You shall have received
evidence of the amendment of the Company's Amended and Restated 13% Subordinated
Promissory Note, dated October 27, 1988, due November 5, 1990, payable to Ramsay
Corporation in the principal amount of $5,000,000 (as amended on the Closing
Date, the "Subordinated Promissory Note"), which amendment shall be satisfactory
in form and substance to you and shall evidence an aggregate outstanding
principal amount thereunder of $2,000,000.
11
(b) On the Closing Date --
(i) Obligors Closing Certificate. You and the Trustee shall have
received from the Obligors other than the Company a certificate dated the
Closing Date, executed by the President or any Vice President or each such
Obligor substantially in the form attached hereto as Exhibit D, the truth and
accuracy of which shall be a condition to your obligation to accept and pay for
the Notes.
(ii) Company Closing Certificate. You and the Trustee shall have
received from the Company a certificate dated the Closing Date, executed by the
President or any Vice President of the Company, substantially in the form
attached hereto as Exhibit E, the truth and accuracy of which shall be a
condition to your obligation to accept and pay for the Notes.
(iii) Insurance. You and the Trustee shall have received from the
Company a certificate dated the Closing Date executed by the President and a
Vice President or the Treasurer of the Company certifying to the existence of
the insurance required by Section 2.6 of the Mortgages covering the Hospitals
and the payment of all premiums due thereon. Copies of the policies evidencing
such insurance (or originals of the certificates with respect thereto issued by
the insurer) shall have been delivered to the Trustee.
(iv) Legal Opinions. You and, in the case of the opinions
delivered from McGlinchey, Stafford, Cellini & Lang and local counsel for the
Obligors, the Trustee shall have received from Xxxxxxx and Xxxxxx, who are
acting as your special counsel in this transaction, from McGinchey, Stafford,
Cellini & Lang, counsel for the Obligors, and from local counsel for the
Obligors other than the Company their respective opinions dated the Closing
Date, in form and substance satisfactory to you, and covering the matters set
forth in Exhibits F, G and H, respectively, hereto.
(v) Audited Annual Financial Statements. You shall have received
from the Company the audited consolidated balance sheets, statements of
operations, changes in shareholder's equity and cash flows of the Company and
its Restricted Subsidiaries for the fiscal year ended June 30, 1989, together
with an opinion thereon of Ernst & Young to the effect set forth in section 3.27
of the Indenture.
(vi) Unaudited Quarterly Financial Statement. You shall have
received from the Company the unaudited consolidated balance sheets, statements
12
of operations, changes in shareholder's equity and cash flows of the Company and
its Consolidated Subsidiaries for the fiscal quarter ended December 31, 1989,
certified as complete and correct, by an authorized financing officer of the
Company.
(vii) Release of Prior Liens. The Trustee shall have been
furnished with executed releases in recordable form of all liens upon the
Hospitals which would constitute liens prior to or on a parity with the lien of
any Mortgage, such releases to be satisfactory in form and substance to the
Title Company, to you and your special counsel.
(viii) Proceedings Satisfactory. All proceedings taken or to be
taken in connection with all of the transactions described in and contemplated
by this Agreement, and all documents necessary to the consummation thereof,
shall he satisfactory to you and your special counsel and you and your special
counsel shall have received copies (executed or certified as may be appropriate)
of all legal documents or proceedings which you and they may require in
connection with said transactions.
(ix) No legal Impediment. No change shall have occurred in
applicable laws or regulations or any interpretations thereof which might makes
it illegal for you to participate in any of the transactions contemplated by
this Agreement.
(x) Compliance with Agreements. The Obligors shall have performed
and complied with all agreements and conditions contained herein, in the
Indenture, in the Pledge Agreements and in the Mortgages which are required to
be performed or complied with by the Obligers on or prior to the Closing Date.
(xi) Commitment Fees. Aetna Life Insurance Company shall receive
a Structuring Fee by check from the Company in the amount Of $38,750. Monumental
Life Insurance Company shall receive an Commitment Fee by check from the Company
in the amount of $65,625. Connecticut Mutual Life Insurance Company shall
receive a Commitment Fee by check (payable to the order of State House Capital
Management, Inc.) from the Company in the amount of $56,250.
(xii) Special Counsel Fees. Concurrently with the delivery of the
Notes on the Closing Date, the reasonable charges and disbursements of Xxxxxxx
and Xxxxxx, your special counsel, shall have been paid.
13
(xiii) Waiver of Condition. If on the Closing Date the Obligors
fail to tender to you the Notes, or if any other Purchaser fails to take up and
pay for the Notes to be issued, or if the conditions specified in this section 7
have not been fulfilled, you may thereupon elect to be relieved of all further
obligations under this Agreement. Without limiting the foregoing, if the
conditions specified in this 57(b)(xiii) have not been fulfilled, you may waive
compliance by the Obligors with any such condition to such extent as you may in
your sole discretion determine. Nothing in this section 7(b)(xiii) shall operate
to relieve the Obligors of any of their joint and several obligations hereunder
or to waive any of your rights or remedies against the Obligors other than as
expressly waived in writing by you.
8. Expenses and Taxes. Whether or not the Notes are sold, the Company
will pay all reasonable expenses relating to this Agreement, the Indenture, the
Pledge Agreements and the Mortgages, including but not limited to;
(a) the cost of reproducing this Agreement, the Indenture, the Pledge
Agreements, the Mortgages, the Warrants, the Notes and all other documents
required or contemplated thereunder;
(b) the reasonable fees and disbursements of Xxxxxxx and Xxxxxx, your
special counsel;
(c) your reasonable out-of-pocket expenses;
(d) the cost of delivering to your home office, insured to your
satisfaction, the Notes purchased by you on a Closing Date;
(e) the reasonable fees, costs and other expenses of the Trustees
under the Indenture or any other agreement related thereto;
(f) all recording and filing fees and stamp taxes in connection with
the recordation or filing and re-recordation or re-filing of the Mortgages and
other notices thereof;
(g) the reasonable fees and disbursements of the Title Company
referred to in section 7(a)(iv) hereof in connection with the issuance of the
title insurance policies referred to herein and the reasonable fees and
disbursements of the civil engineer or surveyor referred to in section 7(a)(iii)
hereof in connection with the preparation of the surveys referred to herein;
14
(h) the reasonable fees and disbursements of Xxxx X. Xxxx Associates,
Inc. and/or Xxxxxxxx X. Xxxxxx and Company, Inc. in connection with the
Environmental Audits referred to in section 7(a)(v) hereof;
(i) the reasonable fees and disbursements of the Appraiser in
connection with the appraisals referred to in section 7(a)(vi) hereof;
(j) the reasonable fees and disbursements of X. X. Xxxxxxxx & Co., the
Obligers' investment banking firm, in connection with the sale of the Notes;
(k) the processing fee of Standard & Poors Corporation for providing
Private Placement Numbers for the Senior Secured Notes, the Subordinated Secured
Notes and the Warrants;
(l) all reasonable expenses, including without limitation attorneys'
fees, relating to any amendments, waivers or consents pursuant to the provisions
of this Agreement, the Indenture, any of the Pledge Agreements, any of the
Mortgages or any other agreement or document relating to such agreements; and
(m) expenses incurred by any Purchaser in connection with any
bankruptcy, voluntary or involuntary, or similar proceeding of any Obliger.
The obligations of the Company under this section 8 shall survive the
payment or prepayment of the Notes and the termination of this Agreement, the
Indenture, the Pledge Agreements and the Mortgages.
9. Successors and Assigns. This Agreement shall be binding upon the
Obligors and their respective successors and assigns and shall inure to your
benefit and to the benefit of your successors and assigns, including each
successive holder or holders of any Notes.
10. Survival of Covenants and Representations. All covenants,
representations and warranties made by the Obligors herein and in any
certificates delivered pursuant hereto, whether or not in connection with the
Closing Date, shall survive the issuance of the Notes and the delivery of this
Agreement and the Notes and shall survive until all of the Notes are paid in
full.
11. Severability. Should any part of this Agreement for any reason be
declared invalid, such decision shall not affect the validity of any remaining
portion, which remaining portion shall remain in force and effect as if this
15
Agreement had been executed with the invalid portion thereof eliminated and it
is hereby declared the intention of the parties hereto that they would have
executed the remaining portion of this Agreement without including therein any
such part, parts or portion which may, for any reason, be hereafter declared
invalid.
12. Communications. All communications provided for hereunder shall be
in writing, and if to you, delivered or mailed by registered or certified mail,
postage prepaid, or by overnight courier, charges prepaid, addressed to you at
your address appearing on Schedule I to this Agreement or to such other address
as you may designate to the Company in writing, and, if to the Obligers,
delivered or mailed by registered or certified mail or by overnight courier to
the Company at One Poydras Plaza, 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx,
Xxxxxxxxx 00000, Attention: Chief Financial Officer, or to such other address as
the Obligors may designate to you in writing.
13. GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND WARRANTS ISSUED
AND SOLD HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
ILLINOIS LAW.
14. Counterparts. This Agreement may be simultaneously executed in any
number of counterparts, each of which when so executed and delivered shall be an
original, but such counterparts together shall constitute but one and the same
instrument.
15. Headings and Table of Contents. The headings of the sections of
his Agreement and the Table of Contents are inserted for purposes of convenience
only and shall not be construed to affect the meaning or construction of any of
the provisions hereof.
* * *
16
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed copy of this Agreement,
whereupon it shall become a binding agreement between us.
RAMSAY HEALTH CARE, INC.
By____________________________
Its President
BOUNTIFUL PSYCHIATRIC
HOSPITAL, INC.
By____________________________
Its President
CUMBERLAND MENTAL HEALTH, INC.
By____________________________
Its President
EAST CAROLINA PSYCHIATRIC
SERVICES CORPORATION
By____________________________
Its President
HAVENWYCK HOSPITAL, INC.
By____________________________
Its President
MESA PSYCHIATRIC HOSPITAL,
INC.
By____________________________
Its President
17
PSYCHIATRIC INSTITUTE OF WEST
VIRGINIA, INC.
By____________________________
Its President
The foregoing is hereby confirmed and accepted as of the date
aforesaid.
AETNA LIFE INSURANCE COMPANY
By____________________________
Its _____________________
SCHEDULE I
(to Note Purchase Agreement)
Principal Amount of Principal Amount of
Name and Address Senior Secured Notes Subordinated Secured
of Purchasers to be Purchased Notes to be Purchased
AETNA LIFE INSURANCE COMPANY $26,000,000 $1,000,000
CityPlace
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Aetna Bond Investors,
YFC4
Denominations Denominations
Payments $20,000,000 $770,000
6,000,000 230,000
All payments on or in respect of the Notes
to be by bank wire transfer of Federal or
other immediately available funds
(identifying each payment as 11.6% Senior
Secured Notes due March 31, 2000 and/or
15.6% Subordinated Secured Notes due
March 31, 2000, principal or interest")
to:
Xxxxxx Guaranty Trust Company
of New York
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Money Transfer Department
for credit to Aetna Life
Insurance Company's Account
No. 000-00-000
Notices
All notices and communications to be
addressed as first provided above,
except notice with respect to
payment, and written confirmation of
each such payment, to be addressed
Attention: Income Collection, YF44
and notices with respect to
quarterly and annual financial
statements addressed Attention:
Records Unit, Aetna Bond Investors,
YFC4.
Name of Nominee in which Notes are to be issued:
None.
2
Principal Amount of Principal Amount of
Name and Address Senior Secured Notes Subordinated Secured
of Purchasers to be Purchased Notes to be Purchased
MONUMENTAL LIFE INSURANCE COMPANY $15,500,000 $2,000,000
c/o Monumental Corporation
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Securities Department
Payments
All payments on or in respect of the
Notes to be by bank wire transfer of
Federal or other immediately
available funds (identifying each
payment as 11.6% Senior Secured
Notes due March 31, 2000 and/or
15.6% Subordinated Secured Notes due
March 31, 2000, principal or
interest") to:
Mercantile Safe-Deposit and
Trust Company
Xxxxxxx and Xxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxx
for credit to Monumental Life
Insurance Company's Account
No. 08525-1
Notices
All notices of payment, on or in
respect of the Notes and written
confirmation of each such payment
to:
Monumental Life Insurance Company
Two Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
All notices and communications other
than those in respect to payments to
be addressed as first provided
above.
Name of Nominee in which Notes are to be
issued: None.
3
Principal Amount of Principal Amount of
Name and Address Senior Secured Notes Subordinated Secured
of Purchasers to be Purchased Notes to be Purchased
CONNECTICUT MUTUAL LIFE INSURANCE $15,000,000
COMPANY
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Private Placement
Department
Payments
All payments on or in respect of the
Notes to be by bank wire transfer of
Federal or other immediately
available funds (identifying each
payment as 11.6% Senior Secured
Notes due March 31, 2000 and/or
15.6% Subordinated Secured Notes due
March 31, 2000, principal or
interest") to:
The Connecticut Bank and Trust Company
Xxx Xxxxxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
for credit to CML IND
Account No. 000-000-0
Notices
All notices and communications, to
be addressed as first provided
above, except notices with respect
to payment and written confirmation
of each such payment to be addressed
Attention: Securities Accounting.
Name of Nominee in which Notes are to be
issued: Garden St. Co.
SCHEDULE II
(to Note Purchase Agreement)
Information With Respect to Warrants
Holder's Equity Original
Percentage of Number of
Purchaser Warrants Warrants Issued Warrant Valuation
AETNA LIFE INSURANCE 33-1/3% 113,302 $6,000
COMPANY
MONUMENTAL LIFE 66-2/3% 226,603 $12,000
INSURANCE COMPANY
