OBLIGOR SUBROGATION
AND CONTRIBUTION AGREEMENT
This OBLIGOR SUBROGATION AND CONTRIBUTION AGREEMENT (this "Agreement")
dated as of April __, 1990, is executed by The Citizens and Southern National
Bank, a national banking association (as Trustee under the Indenture described
below, the "Trustee") and Xxxxx X. Xxxxx (as Individual Trustee under the
Indenture described below, the "Individual Trustee") as Trustees (the
"Trustees") those certain subsidiaries (collectively, the "Principal
Subsidiaries," and each individually a "Principal Subsidiary") of RAMSAY HEALTH
CARE, INC., a Delaware corporation (the "Company"), which are or hereafter
become parties to this Agreement and the Company, for the benefit of each other,
the Company, those certain institutional investors (collectively, the
"Noteholders," and each individually, a "Noteholder") which are holders of the
outstanding Notes under the Indenture described below and with respect to the
following facts:
A. The Company has entered into that certain Trust Indenture (the
"Indenture") dated as of March 31, 1990, together with those certain
subsidiaries of the Company which are or hereafter become parties thereto (the
"Principal Subsidiaries", together with the Company, collectively, the
"Obligors," and each individually, an "Obligor") and the Trustees. All terms
used, but not defined, herein shall have the respective meanings set forth in
the Indenture.
B. The Noteholders have agreed to purchase the $56,500,000 aggregate
principal amount of 11.6% Senior Secured Notes of the Obligors (the "Senior
Secured Notes") and the $3,000,000 aggregate principal amount of 15.6%
Subordinated Secured Notes of the Obligors (the "Subordinated Secured Notes",
collectively with the Senior Secured Notes, the "Notes") on the terms and
subject to the conditions of the Indenture.
C. The Trustees and the Noteholders have required that the Obligors
execute and deliver this Agreement to the Trustees for the benefit of the
Noteholders as a condition to purchasing the Notes.
D. In order to induce the Noteholders to purchase the Notes on the
terms and subject to the conditions of the Indenture, and to effect an equitable
2
sharing of the risks of the joint and several issuance of the Notes, the
Obligors wish to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration as set forth in Section 1 hereof, the receipt
and adequacy of which are hereby acknowledged, the Obligors hereby agree with
the Trustees and the Noteholders as follows:
1. Consideration. Each Obligor hereby acknowledges that the Company
requires funds to prepay certain indebtedness for borrowed money of the Company
(which indebtedness was issued 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 and
that, as a result, each Obligor will receive direct and indirect benefits from
the purchase of the Notes contemplated by the Indenture and that the waiver set
forth in this Section 1 knowingly is made in contemplation of such benefits.
2. Contribution Rights. If any Principal Subsidiary makes a payment
with respect to the Notes, it shall have the rights of contribution set forth
below against the other Principal Subsidiaries; provided, however, that such
Principal Subsidiary shall not enforce its right to any payment by way of
exercising its right of contribution or by any other means until after all the
obligations incurred by any of the Obligors under the Indenture shall have been
fully satisfied. If any Principal Subsidiary makes a payment with respect to the
obligations under the Indenture which is smaller in proportion to its Allocable
Share, as determined by the Obligors and as set forth in Schedule A hereto (such
Principal Subsidiary's "Allocable Share"), than the payments made by the other
Principal Subsidiaries are in proportion to the respective Allocable Share, the
Principal Subsidiary making such proportionately smaller payment shall, when
permitted by the preceding sentence, pay to the other Principal Subsidiaries an
amount such that the aggregate amount of the net payments made by the Principal
Subsidiaries with respect to the obligations under the Indenture shall be shared
among the Principal Subsidiaries pro rata in proportion to their respective
Allocable Share. Notwithstanding anything to the contrary set forth in this
Agreement, no liability or obligation of any Principal Subsidiary that shall
3
accrue pursuant to this Agreement shall be paid, nor shall it be deemed owed
pursuant to this Agreement, until after all of the obligations incurred by any
of the Obligors under the Indenture shall have been fully satisfied.
3. Continuing Agreement to Pay. To the extent that any Obligor makes a
payment or payments to the Trustees or any Noteholder or any Noteholder or the
Trustees receives any proceeds of collateral and a claim is made upon such
Noteholder or the Trustees at any time for repayment or recovery of any such
amount received, and the Trustees or such Noteholder repays or otherwise becomes
liable for all or any part of such claim by reason of (a) any judgment, decree
or order of any court or administrative body having competent jurisdiction, or
(b) any settlement or compromise of any such claim, the obligation or part
thereof which has been paid, reduced or satisfied by such amount shall be
reinstated and continued in full force and effect as of the date such initial
payment, reduction or satisfaction occurred, to the same extent as if such
amount never had been received by the Trustees or such Noteholder,
notwithstanding any termination hereof or the cancellation of the Indenture, the
Notes or any other document, instrument or agreement evidencing any of the
obligations incurred by the Obligors under the transactions contemplated by the
Indenture. Each Obligor shall defend and indemnify the Trustees and each
Noteholder from and against any claim or loss under this Section 3 (including
any reasonable attorneys' fees and expenses) in the defense of any such action
or other proceeding.
4. Relation to Indenture. This Agreement is executed pursuant to the
Indenture and, unless otherwise expressly set forth herein or therein, shall be
construed, administered and applied in accordance with the provisions of the
Indenture.
5. Notices. Any notice, request, demand or other communication
required or permitted under this Agreement shall be given or made in the manner
and to the appropriate address set forth in the Indenture.
6. Amendments. Except as otherwise set forth in the Indenture, the
provisions of this Agreement may not be modified, amended, restated or
supplemented, whether or not the modification, amendment, restatement or
supplement is supported by new consideration, except by a written instrument
duly executed and delivered on behalf of the Trustees and all of the
Noteholders.
4
7. Waivers and Consents. Except as otherwise set forth in the
Indenture or this Agreement, any waiver of the terms and conditions of this
Agreement, or any Default or Event of Default and its consequences hereunder or
thereunder, and any consent or approval required or permitted by this Agreement
to be given by the Noteholders, may be made or given with, but only with the
written consent of the Trustees and the Required Holders on such terms and
conditions as specified in the written instrument granting such waiver, consent
or approval. A waiver, to be effective, must be in writing and signed by the
party making the waiver.
8. Headings and Captions. The headings and captions used in this
Agreement are solely for the purpose of reference and are not to be considered
as construing or interpreting the provisions hereof.
9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REFERENCE
TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES THEREOF.
10. Necessary Acts. Each Obligor shall perform any further acts and
execute and deliver any additional agreements, assignments, documents or
instruments that may be reasonably necessary to carry out the provisions or to
effectuate the purposes of this Agreement.
11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all which shall
together constitute one and the same documents.
IN WITNESS WHEREOF, the Obligors have caused this Agreement to be duly
executed and delivered to the Trustees as of the date first written above.
RAMSAY HEALTH CARE, INC.
By_________________________________
Its President
ATTEST:
_________________________
Assistant Secretary
5
BOUNTIFUL PSYCHIATRIC HOSPITAL,
INC.
By_________________________________
Its President
ATTEST:
_________________________
Assistant Secretary
CUMBERLAND MENTAL HEALTH, INC.
By_________________________________
Its President
ATTEST:
_________________________
Assistant Secretary
EAST CAROLINA PSYCHIATRIC SERVICES
CORPORATION
By_________________________________
Its President
ATTEST:
_________________________
Assistant Secretary
6
HAVENWYCK HOSPITAL, INC.
By_________________________________
Its President
ATTEST:
_________________________
Assistant Secretary
MESA PSYCHIATRIC HOSPITAL, INC.
By_________________________________
Its President
ATTEST:
_________________________
Assistant Secretary
PSYCHIATRIC INSTITUTE OF WEST
VIRGINIA, INC.
By_________________________________
Its President
ATTEST:
_________________________
Assistant Secretary
7
THE CITIZENS AND SOUTHERN NATIONAL
BANK, as Corporate Trustee
By_________________________________
Its Corporate Trust Officer
ATTEST:
_________________________
Senior Vice President
___________________________________
Xxxxx X. Xxxxx,
as Individual Trustee
8
STATE OF ILLINOIS )
) ss
COUNTY OF XXXX )
On this _____ day of April, 1990, before me, _________________, a
Notary Public, personally appeared Xxxxx X. Xxxxx, who acknowledges himself to
be the President of Ramsay Health Care, Inc., a Delaware corporation, and that
he, as such President, being authorized so to do executed the foregoing
instrument for the purposes therein contained, by signing the name of the
corporation by himself as President.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
___________________________________
Notary Public
(Notarial Seal)
STATE OF ILLINOIS )
) ss
COUNTY OF XXXX )
On this _____ day of April, 1990, before me, _________________, a
Notary Public, personally appeared Xxxxx X. Xxxxx, who acknowledges himself to
be the President of Bountiful Psychiatric Hospital, Inc., a Utah corporation,
and that he, as such President, being authorized so to do executed the foregoing
instrument for the purposes therein contained, by signing the name of the
corporation by himself as President.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
___________________________________
Notary Public
(Notarial Seal)
9
STATE OF ILLINOIS )
) ss
COUNTY OF XXXX )
On this _____ day of April, 1990, before me, _________________, a
Notary Public, personally appeared Xxxxx X. Xxxxx, who acknowledges himself to
be the President of Cumberland Mental Health, Inc., a North Carolina
corporation, and that he, as such President, being authorized so to do executed
the foregoing instrument for the purposes therein contained, by signing the name
of the corporation by himself as President.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
___________________________________
Notary Public
(Notarial Seal)
STATE OF ILLINOIS )
) ss
COUNTY OF XXXX )
On this _____ day of April, 1990, before me, _________________, a
Notary Public, personally appeared Xxxxx X. Xxxxx, who acknowledges himself to
be the President of East Carolina Psychiatric Services Corporation, a North
Carolina corporation, and that he, as such President, being authorized so to do
executed the foregoing instrument for the purposes therein contained, by signing
the name of the corporation by himself as President.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
___________________________________
Notary Public
(Notarial Seal)
10
STATE OF ILLINOIS )
) ss
COUNTY OF XXXX )
On this _____ day of April, 1990, before me, _________________, a
Notary Public, personally appeared Xxxxx X. Xxxxx, who acknowledges himself to
be the President of Havenwyck Hospital, Inc., a Michigan corporation, and that
he, as such President, being authorized so to do executed the foregoing
instrument for the purposes therein contained, by signing the name of the
corporation by himself as President.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
___________________________________
Notary Public
(Notarial Seal)
STATE OF ILLINOIS )
) ss
COUNTY OF XXXX )
On this _____ day of April, 1990, before me, _________________, a
Notary Public, personally appeared Xxxxx X. Xxxxx, who acknowledges himself to
be the President of Mesa Psychiatric Hospital, Inc., an Arizona corporation, and
that he, as such President, being authorized so to do executed the foregoing
instrument for the purposes therein contained, by signing the name of the
corporation by himself as President.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
___________________________________
Notary Public
(Notarial Seal)
11
STATE OF ILLINOIS )
) ss
COUNTY OF XXXX )
On this _____ day of April, 1990, before me, _________________, a
Notary Public, personally appeared Xxxxx X. Xxxxx, who acknowledges himself to
be the President of Psychiatric Institute of West Virginia, Inc., a Virginia
corporation, and that he, as such President, being authorized so to do executed
the foregoing instrument for the purposes therein contained, by signing the name
of the corporation by himself as President.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
___________________________________
Notary Public
(Notarial Seal)
STATE OF ILLINOIS )
) ss
COUNTY OF XXXX )
On this _____ day of April, 1990, before me, _________________, a
Notary Public, personally appeared ______________, who acknowledges himself to
be a Corporate Trust Officer of The Citizens and Southern National Bank, a
national banking association, and that he, as such Corporate Trust Officer,
being authorized so to do executed the foregoing instrument for the purposes
therein contained, by signing the name of said Bank by himself as Corporate
Trust Officer.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
___________________________________
Notary Public
(Notarial Seal)
12
STATE OF ILLINOIS )
) ss
COUNTY OF XXXX )
On this _____ day of April, 1990, before me, _________________, a
Notary Public, personally appeared Xxxxx X. Xxxxx, known to me to be the person
whose name is subscribed to the within instrument as the Individual Trustee and
acknowledged to me that she executed the same as such Individual Trustee.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
___________________________________
Notary Public
(Notarial Seal)
13
Principal Subsidiary Allocable Share
Bountiful Psychiatric 5.8%
Hospital, Inc.
Cumberland Mental Health, 33.3
Inc.
East Carolina Psychiatric 17.3
Services Corporation
Havenwyck Hospital, Inc. 21.9
Mesa Psychiatric Hospital, 8.9
Inc.
Psychiatric Institute of 12.8
West Virginia, Inc.
Schedule A
(to Obligor Subrogation Waiver
and Contribution Agreement)
