EXHIBIT 4.6
FIFTH SUPPLEMENTAL TRUST INDENTURE
Dated as of June 1, 1997
Between
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.
AND
THE BANK OF NEW YORK
AND
XXXXXX XXXXXXXXXX
AS TRUSTEES
TABLE OF CONTENTS
PAGE
Section 1. Definitions............................................... 2
Section 1.1 Definitions Contained in the Original Indenture........... 2
Section 1.2 Amendment of Certain Definitions Contained in the Original
Indenture................................................. 2
Section 1.3 New Definitions........................................... 3
Section 2. Amendments................................................ 4
Section 2.1 Amendment of Section 2.1 to Original Indenture............ 4
Section 2.2 Amendment of Notes........................................ 5
Section 2.3 Amendment of Section 3.17 of the Original Indenture....... 5
Section 2.4 Amendment of Section 3.18(a) of the Original Indenture.... 6
Section 2.5 Amendment of Section 3.20 of the Original Indenture....... 6
Section 2.6 Amendment of Section 3.21(e) of the Original Indenture.... 7
Section 2.7 Amendment of Section 3.25(a) of the Original Indenture.... 7
Section 2.8 Amendment of Section 3.28 of the Original Indenture....... 7
Section 2.9 Amendment of Section 5.2 of the Original Indenture........ 8
Section 2.10 Amendment of Section 5.4 of the Original Indenture........ .10
Section 2.11 Amendment of Section 6.1 of the Original Indenture........ 10
Section 2.12 Amendment of Exhibits to Original Indenture............... 11
Section 3. Miscellaneous............................................. 11
Section 3.1 Applicability of the Original Indenture................... 11
Section 3.2 Counterparts.............................................. 11
Section 3.3 No Legend Required........................................ 12
Section 3.4 No Responsibility of Trustees for Recitals................ 12
Section 3.5 Consent of Lenders to Supplement.......................... 12
Section 3.6 Furnishing of Documents................................... 12
Section 3.7 Execution and Delivery of Mortgage Amendments............. 13
Section 3.8 Payment of Fees and Expenses of Noteholders and Trustees.. 13
Section 3.9 Payment of Administrative Fee............................. 13
Section 3.10 No Conflicts, Etc......................................... 13
i
FIFTH SUPPLEMENTAL TRUST INDENTURE
FIFTH SUPPLEMENTAL TRUST INDENTURE dated as of June 1, 1997 (herein,
called this "SUPPLEMENT") between 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 corporation ("HAVENWYCK"), MESA PSYCHIATRIC
HOSPITAL, INC., an Arizona corporation ("MESA PSYCHIATRIC"), and PSYCHIATRIC
INSTITUTE OF WEST VIRGINIA, 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"), whose post office addresses are Columbus Center,
Xxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxx 00000, and THE BANK OF NEW
YORK, a New York banking corporation (the "TRUSTEE"), whose post office address
is Corporate Trust Division, 000 Xxxxxxx Xxxxxx, Xxxxx 21 West, New York, New
York 10286, Attention Corporate Trust Department and XXXXXX XXXXXXXXXX (the
"INDIVIDUAL TRUSTEE"), whose post office address is x/x Xxx Xxxx xx Xxx Xxxx,
Xxxxxxxxx Trust Division, 000 Xxxxxxx Xxxxxx, Xxxxx 21 West, New York, New York
10286, as Trustees (the Trustee and the Individual Trustee hereinafter
collectively referred to as the "TRUSTEES").
WHEREAS, the Obligors on April 30, 1990 issued their 11 6% Senior
Secured Notes due March 31, 2000 in the aggregate principal amount of
$56,500,000 (the "SENIOR NOTES") and their 15.6% Subordinated Secured Notes due
March 31, 2000 in the aggregate principal amount of $3,000,000 (the
"SUBORDINATED NOTES"; collectively with the Senior Notes, the "NOTES") UNDER and
secured by the Trust Indenture dated as of March 31, 1990 from the Obligors to
the Trustee (the "FIRST INDENTURE");
WHEREAS, the Obligors and the Trustees entered into a First
Supplemental Trust Indenture dated as of June 15, 1991 (the "FIRST SUPPLEMENTAL
INDENTURE"), entered into a Second Supplemental Trust Indenture dated as of May
15,1993 (the "SECOND SUPPLEMENTAL INDENTURE"), entered into a Third Supplemental
Trust Indenture dated as of April 12, 1995 (the "THIRD SUPPLEMENTAL INDENTURE"),
and entered into a Fourth Supplemental Trust Indenture dated as of September 15,
1995 (the "FOURTH SUPPLEMENTAL INDENTURE"); the First Indenture as amended by
the First Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture and the Fourth Supplemental Indenture (the "ORIGINAL
INDENTURE"), and as hereby amended and as the same may be further amended and
supplemented from time to time being referred to as the "INDENTURE"; and
WHEREAS, the Obligors have requested the holders of the Senior Notes
and the Subordinated Notes to consent to certain amendments to the Indenture and
the holders of all of the Notes outstanding have consented in writing to such
changes and all other matters set forth in or effectuated by this Supplement;
and
WHEREAS, all things necessary to make this Supplement the valid
obligation of the Obligors according to its tenor and effect have been done or
authorized;
NOW, THEREFORE, in consideration of the premises and of the sum of Ten
Dollars and of other good and valuable consideration, receipt whereof upon the
delivery of this Supplement
the Obligors hereby acknowledge, 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
in order to secure the payment, subject to Section 10 of the Indenture, of both
the principal of and interest and premium, if any, upon the Notes at any time
outstanding thereunder according to their tenor and the provisions hereof, and
further subject to Section 10 of the Indenture, to secure the faithful
performance and observance of all the covenants and provisions in the Notes, the
Note Agreements, the Pledge Agreements, the Mortgages and in the Indenture
contained, the Obligors hereby covenant and agree with the Trustees for the
equal and pro rata benefit of all present and future holders of all Notes issued
under the Indenture, subject to Section 10 of the Indenture, without any
preference, priority or distinction as follows:
SECTION 1. DEFINITIONS.
SECTION 1.1 DEFINITIONS CONTAINED IN THE ORIGINAL INDENTURE. Except
as otherwise provided in Section 1.2 of this Supplement, words and phrases
defined in the Original Indenture shall have the same meanings ascribed to them
therein when used herein, unless the context or use indicates a different
meaning or intent.
SECTION 1.2 AMENDMENT OF CERTAIN DEFINITIONS CONTAINED IN THE
ORIGINAL INDENTURE. Unless the context otherwise requires, the following
definitions contained in Section 1.1 of the Original Indenture are hereby
amended in their entirety as follows:
"BANK DEBT" shall mean (i) indebtedness outstanding under the letter
of credit facility provided under the Credit Agreement in an aggregate amount
not to exceed $16,442,976.60 and referred to therein as the "Letters of Credit"
and (ii) indebtedness outstanding under the term loan facility provided under
the Credit Agreement upon termination of the Letters of Credit referred to in
(i) above in an aggregate principal amount not to exceed $16,442,976.60 and
referred to therein as the "Terms Loans".
"CONSOLIDATED SUBSIDIARY" shall mean each of the Principal
Subsidiaries and any other Subsidiary (i) which is organized under the laws of
the United States or any State thereof; (ii) which conducts all of its business
and has all of its assets within the United States; (iii) of which more than 80%
(by number of votes) of the Voting Stock is owned by the Company and/or one or
more Consolidated Subsidiaries; (iv) which is engaged directly or through a
subsidiary in the health care business in the United States; and (v) which is
consolidated with the Company for financial reporting purposes in accordance
with generally accepted accounting principles; provided, solely for purposes of
--------
calculating Consolidated Cash Flow, Consolidated Current Assets, Consolidated
Current Liabilities, Consolidated Debt Service, Consolidated Net Income,
Consolidated Net Tangible Assets, Consolidated Pre-Tax Net Income, Consolidated
Tangible Net Worth, Fixed Charges and Interest Expense, RMCI and all
subsidiaries of RMCI shall be excluded from the definition of "Consolidated
Subsidiaries".
"CREDIT AGREEMENT" shall mean the Credit Agreement dated as of May 15,
1993, as amended as of April 12, 1995, as of September 15, 1995, as of August
15,1996, as of May 15, 1997 and as of June 4,1997 among the Company and certain
Subsidiaries, as the Borrowers, Great Plains Hospital, Inc., The Haven Hospital,
Inc., H.C. Partnership, HSA Hill Crest Corporation and H.C. Corporation, as
2
the Guarantors, Societe Generale, New York Branch, First Union National Bank of
North Carolina and Hibernia National Bank, as lenders, and Societe Generale, New
York Branch, as Issuing Bank and Agent.
"OVERDUE RATE" shall mean, at any time with respect to any Note, the
greater of (A) a rate per annum equal to two (2) percent per annum plus the per
----
annum interest rate that would otherwise be in effect at such time under such
Note and (B) the sum of 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 1%.
"SUPERIOR INDEBTEDNESS" shall mean (i) all obligations, liabilities
and indebtedness of the Obligors to the holders of the Senior Secured Notes in
an aggregate principal amount not to exceed $56,500,000 arising under the Senior
Secured Notes, the Note Purchase Agreements and this Indenture, (ii) all
obligations, liabilities and indebtedness in an aggregate amount not to exceed
$16,442,976.60 created or arising under certain industrial development bonds of
the Company or its Subsidiaries and associated letters of credit and
reimbursement obligations in connection therewith under the Credit Agreement
(including extensions, renewals and refundings thereof without increase in the
outstanding principal amount under such facility at such time), (iii) all
obligations, liabilities and indebtedness outstanding under the Credit Agreement
arising under the "Term Loans" provided in the Credit Agreement in an aggregate
principal amount not to exceed $16,442,976.60 (including extensions, renewals
and refundings thereof without increase in the outstanding principal amount
under such facility at such time), and (iv) additional indebtedness incurred
after the date of the Original Indenture in an aggregate principal amount not to
exceed $25,000,000, provided that all proceeds of such additional indebtedness
are used exclusively to finance the acquisition, construction or renovation of
facilities owned or acquired by the Company or any Subsidiary. Interest accrued
on the indebtedness described in the foregoing clauses (i), (ii), (iii) and (iv)
shall constitute "Superior Indebtedness" regardless of whether such interest
accrues before or after the commencement of any bankruptcy, insolvency or
receivership proceedings.
SECTION 1.3 NEW DEFINITIONS. Unless the context otherwise requires,
the terms hereinafter set forth when used herein in the Indenture shall have the
following meanings and the following definitions shall be equally applicable to
both the singular and plural forms of any of the terms herein defined:
"ACQUISITION CORP." shall mean RHCI Acquisition Corp., a Delaware
corporation and wholly-owned Subsidiary.
"BONDS" shall have the meaning ascribed to such term in the Credit
Agreement.
"BOND DOCUMENTS" shall have the meaning ascribed to such term in the
Credit Agreement.
"FIFTH SUPPLEMENTAL INDENTURE" shall mean the Fifth Supplemental Trust
Indenture dated as of June 1, 1997 between the Obligors and the Trustees.
3
"FOURTH AMENDMENT" shall mean the Fourth Amendment to Credit
Agreement, First Amendment to Waiver, Consent to Merger and Extension Agreement
dated as of May 15, 1997 by and among the parties to the Credit Agreement.
"GREENBRIER BONDS" shall have the meaning ascribed to such term in
the Credit Agreement.
"GULF COAST BONDS" shall have the meaning ascribed to such term in
the Credit Agreement.
"GULF COAST TERM NOTE" shall have the meaning ascribed to such term
in the Credit Agreement.
"HOUMA BONDS" shall have the meaning ascribed to such term in the
Credit Agreement.
"LETTERS OF CREDIT" shall have the meaning ascribed to such term in
the Credit Agreement.
"PLAN OF MERGER" shall mean that certain Agreement and Plan of Merger
dated as of October 1, 1996 by and among the Company, Acquisition Corp. and
RMCI.
"RMCI" shall mean Ramsay Managed Care, Inc., a Delaware corporation,
which term shall include the surviving corporation of the merger between RMCI
and Acquisition Corp. pursuant to the Plan of Merger.
SECTION 2. AMENDMENTS.
SECTION 2.1 AMENDMENT OF SECTION 2.1 TO ORIGINAL INDENTURE. Section
2.1 of the Original Indenture is hereby amended and restated in its entirety as
follows:
SECTION 2.1 THE NOTES.
(a) The Notes constitute the joint and several obligation of
the Obligors and shall be issuable as fully registered Notes. The
Notes will be dated the date of authentication and bear interest
payable quarterly on March 31, June 30, September 30, and December
31 in each year (commencing June 30, 1990) and will mature on March
31, 2000. Interest on the Notes will be computed on the basis of a
360-day year of twelve 30-day months.
(b) The Senior Secured Notes shall be designated the
Obligors' 11.6% Senior Secured Notes due March 31, 2000 and shall be
limited to $56,500,000 in aggregate principal amount. The Senior
Secured Notes will bear interest from the date of issue until
maturity at an initial rate of 11.6% per annum, subject to
adjustment as set forth therein, and 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 the Overdue
Rate after
4
maturity, whether by acceleration or otherwise, until paid, and will
be in substantially the form attached hereto as Exhibit A.
(c) The Subordinated Secured Notes shall be designated the
Obligors' 15.6% Subordinated Secured Notes due March 31, 2000 and
shall be limited to $3,000,000 in aggregate principal amount. The
Subordinated Secured Notes will bear interest from the date of issue
until maturity at an initial rate of 15.6% per annum, subject to
adjustment as set forth therein, and 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 the Overdue
Rate after maturity, whether by acceleration or otherwise, until
paid, and will be in substantially the form attached hereto as
Exhibit B.
(d) The Trustee's certificate of authentication to be borne
by such Notes shall be substantially of the tenor and purport as set
forth in Exhibit A and Exhibit B hereto, and the Notes may have such
letters, numbers or other marks of identification or designation and
such legends or endorsements thereon as the Obligors may deem
appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or any rule
or regulation made pursuant thereto.
SECTION 2.2 AMENDMENT OF NOTES. Each of the Outstanding Senior
Secured Notes (the "EXISTING SENIOR NOTES") is hereby amended and restated to be
in the form set forth in Exhibit A attached hereto (the Existing Senior Notes,
as so amended and restated, are referred to herein, collectively, as the
"AMENDED SENIOR NOTES"), and each of the Outstanding Subordinated Secured Notes
(the "EXISTING SUBORDINATED NOTES") is hereby amended and restated to be in the
form set forth in Exhibit B attached hereto (the Existing Subordinated Notes, as
so amended and restated, are referred to herein, collectively, as the "AMENDED
SUBORDINATED NOTES" and, together with the Amended Senior Notes, collectively
referred to as the "AMENDED NOTES"). Each of the Existing Senior Notes and
Existing Subordinated Notes shall be deemed so amended and restated (without any
action required on the part of the Obligors or any holder of Notes) to be
consistent with the terms and provisions of the Amended Senior Notes and Amended
Subordinated Notes, respectively. If, after the date of this Supplement, the
Obligors shall issue any new Senior Secured Notes or Subordinated Secured Notes,
each of such Notes shall be in the form of the Amended Senior Notes or Amended
Subordinated Notes, as the case may be. Promptly upon request of the holder of
a Note, the Obligors shall issue to such holder an Amended Senior Note or
Amended Subordinated Note, as the case may be, in exchange and substitution for
the Existing Senior Note or Existing Subordinated Note held by such holder, and
otherwise in accordance with the provisions of Sections 2.6, 2.7 and 2.8 of the
Original Indenture. Each reference in the Indenture, any Pledge Agreement or
any Mortgage to a "Note" or the "Notes" shall be deemed to be a reference to,
respectively, an Amended Note and the Amended Notes. The Amended Notes shall be
and are entitled to all of the rights and benefits provided for the Notes in the
Indenture, the Pledge Agreements, the Mortgages and any other document or
agreement securing the Notes.
SECTION 2.3 AMENDMENT OF SECTION 3.17 OF THE ORIGINAL INDENTURE.
Section 3.17 of the Original Indenture is amended and restated to read in its
entirety as follows:
SECTION 3.17 FIXED CHARGE COVERAGE. The Company will, as
of the end of each fiscal quarter, keep and maintain the ratio of
(i) the sum of (A)
5
Consolidated Cash Flow plus (B) Rentals to (ii) Fixed Charges for
the most recent four fiscal quarters, at not less than (u) 1.5 to 1,
in the case of any determination being made hereunder on or prior to
December 31, 1995, (v) 1.75 to 1, in the case of any determination
being made hereunder as of the end of the fiscal quarter ending
March 31, 1996, (w) 1.4 to 1, in the case of any determination being
made as of the end of any fiscal quarter ending subsequent to April
1, 1996 and on or before September 30, 1998, (x) 1.5 to 1, in the
case of any determination being made as of the end of any fiscal
quarter ending subsequent to October 1, 1998 and on or before June
30, 1999, (y) 1.75 to 1, in the case of any determination being made
as of the end of any fiscal quarter ending subsequent to July 1,
1999 and on or before December 31, 1999, and (z) 2 to 1, in the case
of any determination being made as of the end of any fiscal quarter
ending on or after March 31, 2000.
SECTION 2.4 AMENDMENT OF SECTION 3.18(A) OF THE ORIGINAL INDENTURE.
(a) Subsection (14) of Section 3.18(a) of the Original Indenture is
amended and restated to read in its entirety as follows:
(14) Guaranties of the Company and any Consolidated
Subsidiary (other than the Principal Subsidiaries) entered into
pursuant to the Credit Agreement; provided that any such Guaranties
entered into by Subsidiaries (other than the obligors under the
Credit Agreement) after the date of the Fifth Supplemental Indenture
shall be for the equal and pro rata benefit of the Lenders under the
Credit Agreement and the holders of the Notes.
(b) Subsection (15) of Section 3.18(a) of the Original Indenture is
amended and restated to read in its entirety as follows:
(15) Indebtedness (A) of RMCI owed from time to time to Xxxx
Xxxxxx Hospitals Pty. Limited, an Australian corporation, or to an
Affiliate thereof, and (B) owed to an Affiliate of the Company;
provided, no payments of interest or principal shall be required or
--------
permitted in respect of such Indebtedness while any of the Notes are
Outstanding, and copies of all instruments and any other agreements
evidencing or governing the terms of payment of such indebtedness
are provided to the holders of the Notes simultaneously with the
incurring of such Indebtedness;
SECTION 2.5 AMENDMENT OF SECTION 3.20 OF THE ORIGINAL INDENTURE.
Section 3.20 of the Original Indenture is amended by inserting the following
paragraph at the end of such section:
Any provisions in this Section 3.20 or in any other Section of this
Indenture to the contrary notwithstanding, (i) neither the Company nor any
Subsidiary shall, directly or indirectly, make any investments in, or loans,
advances or extensions of credit to, RMCI (other than the investment made in the
creation of Acquisition Corp. to effect the merger between RMCI and Acquisition
Corp. as described in the Plan of Merger), and (ii) RMCI may distribute cash or
other Property to the Company.
6
SECTION 2.6 AMENDMENT OF SECTION 3.21(E) OF THE ORIGINAL INDENTURE.
Section 3.21(e) of the Original Indenture is amended and restated to read in its
entirety as follows:
(e) The Company will not, and will not permit any Consolidated
Subsidiary to (i) sell, lease or otherwise dispose of any asset mortgaged or
pledged pursuant to the Mortgages or the Pledge Agreements or otherwise
constituting security for the Notes, (ii) sell or otherwise dispose of any
receivables for consideration less than the stated value thereof, or (iii)
consolidate or merge with RMCI (excluding the merger between Acquisition Corp.
and RMCI pursuant to the Plan of Merger).
SECTION 2.7 AMENDMENT OF SECTION 3.25(A) OF THE ORIGINAL INDENTURE.
Section 3.25(a) of the Original Indenture is amended and restated to read in its
entirety as follows:
(a) investments, loans and advances by the Company and its
Consolidated Subsidiaries in and to Consolidated Subsidiaries (other than RMCI),
including any investments in a corporation engaged in the business of operating
psychiatric hospitals in the United States which, after giving effect to such
investment, will become a Consolidated Subsidiary; provided, at the time of such
--------
investment and after giving effect thereto and to the application of the
proceeds thereof, no Default or Event of Default shall have occurred and be
continuing, and provided further, no Principal Subsidiary shall make any
----------------
investment in any entity other than the Company or another Principal Subsidiary;
SECTION 2.8 AMENDMENT OF SECTION 3.28 OF THE ORIGINAL INDENTURE.
Section 3.28 of the Original Indenture is amended and restated to read in its
entirety as follows:
SECTION 3.28 AMENDMENT AND MODIFICATION OF CREDIT AGREEMENT AND
OTHER DOCUMENTS.
(a) The Company will not, and will not permit any Subsidiary to,
directly or indirectly, amend, modify or supplement any term, provision or
condition of (i) the Credit Agreement or any document ancillary or related
thereto, or (ii) any agreement, document, instrument or notes evidencing any
existing or future Subordinated Funded Indebtedness without the prior written
consent of the Required Holders; provided that the provisions of this Section
3.28(a)(ii) shall not prohibit the exchange of the Company's Subordinated
Promissory Note for shares of its Class C Convertible Preferred Stock permitted
by the provisions of Section 3.24(a)(v). Without limiting the foregoing, the
Company will not, and will not permit any Subsidiary to, directly or indirectly,
pledge any additional security for the performance of the obligations and
liabilities of the obligors under the Credit Agreement (exclusive of security
representing proceeds of existing security or Property subject to the effect of
so-called "after-acquired" Lien provisions of the Credit Agreement and related
documents existing as of June 4, 1997), except as required pursuant to Section
3.6(b) of the Fifth Supplemental Indenture or Sections 8(c)(i) or 8(d) of the
Fourth Amendment.
(b) The Company will not, and will not permit any Subsidiary to,
directly or indirectly, (i) agree to any amendment in the terms of the Bond
Documents which has the effect of (A) increasing the rate of interest payable
under the Bonds (excluding changes pursuant to provisions currently
7
existing in the Bond Documents), (B) changing the schedules of payments under
the Bonds, or (C) requiring the payment of additional fees or other compensation
to any holders of Bonds, or (ii) voluntarily redeem or make any prepayments in
respect of the Bonds (other than regularly scheduled payments), except for (A)
redemption of the Houma Bonds on or after September 1, 1997, and (B) redemption
of the Greenbrier Bonds and the Gulf Coast Bonds on or after August 1, 1998;
provided, any reimbursement obligations of the Company or any Consolidated
--------
Subsidiary arising from drawings upon Letters of Credit to effect a redemption
referred to in clauses (ii)(A) or (ii)(B) shall not be due and payable prior to
September 30, 1997 or September 30, 1998, respectively.
SECTION 2.9 AMENDMENT OF SECTION 5.2 OF THE ORIGINAL INDENTURE.
Section 5.2 of the Original Indenture shall be amended and restated in its
entirety as follows:
SECTION 5.2 MANDATORY PREPAYMENT.
(a) The Obligors agree that they will prepay the Senior Secured Notes
at 100% of the principal amount of the Senior Secured Notes to be prepaid on
March 31 and September 30 of each of the years and in the principal amount as
follows:
Prepayment Principal Prepayment Principal
Date Amount Date Amount
---- ------- ---- ------
March 31, 1993 $2,825,000 March 31, 1997 $3,531,250
September 30, 1993 2,825,000 September 30, 1997 3,531,250
March 31, 1994 2,825,000 March 31, 1998 3,531,250
September 30, 1994 2,825,000 September 30, 1998 3,531,250
March 31, 1995 3,531,250 March 31, 1999 3,937,340
September 30, 1995 3,531,250 September 30, 1999 3,937,340
March 31, 1996 3,531,250
September 30, 1996 3,531,250
(b) Subject to Section 10 hereof, the Obligors agree that they will prepay
the Subordinated Secured Notes at 100% of the principal amount of the
Subordinated Secured Notes to be prepaid on March 31 and September 30 of each of
the years and in the principal amounts as follows:
Prepayment Principal Prepayment Principal
Date Amount Date Amount
---- ------ ---- ------
March 31, 1994 $230,769.23 March 31, 1997 $230,769.23
September 30, 1994 230,769.23 September 30, 1997 230,769.23
March 31, 1995 230,769.23 March 31, 1998 230,769.23
September 30, 1995 230,769.23 September 30, 1998 230,769.23
March 31, 1996 230,769.23 March 31, 1999 230,769.23
September 30, 1996 230,769.23 September 30, 1999 230,769.23
8
(c) The Obligors agree that on September 30,1998 they will make, in addition to
the prepayments required on such date pursuant to Section 5.2(a) and
Section 5.2(b), a prepayment in respect of the principal amount of the
Senior Secured Notes in the aggregate amount of $5,137,980.77, such
prepayment to be shared pro rata by the holders of the Senior Secured
Notes, which prepayment shall be accompanied by a premium on such principal
amount equal to the Yield-Maintenance Premium.
(d) The Company will give prompt written notice (the "TERM NOTE PAYMENT NOTICE")
to the Trustees and all holders of Senior Secured Notes upon any principal
payment made in respect of the Gulf Coast Term Note at a time when the
principal balance of the Gulf Coast Term Note is less than $2,800,000, or
which has the effect of reducing the principal balance of the Gulf Coast
Term Note to less than $2,800,000. The Term Note Payment Notice shall (i)
refer to this Section 5.2(d) and the rights of the holders of the Senior
Secured Notes to require a prepayment in respect of their Senior Secured
Notes on the terms and conditions provided for herein, (ii) contain an
offer by the Obligors to prepay a principal amount in respect of the Senior
Secured Notes in an amount which, together with all previous principal
prepayments, if any, made pursuant to this Section 5.2(d), is equal to
twice the amount by which the principal balance of the Gulf Coast Term Note
is less than $2,800,000, together with accrued interest thereon to the date
of prepayment and a premium equal to the Yield-Maintenance Premium and
(iii) set forth the date, which shall be not less than 15 nor more than 30
days following the date of the Term Note Payment Notice, on which the
Obligors will make such prepayment. Each holder of the Senior Secured
Notes shall have the right to accept such offer and require such prepayment
by written notice to the Company given within 15 days following receipt of
the Term Note Payment Notice. The Obligors shall, on the prepayment date
set forth in the Term Note Payment Notice, make a principal prepayment in
respect of each Senior Secured Note held by a holder who has accepted such
offer of prepayment in an amount equal to a pro rata portion of the amount
prescribed by clause (ii), based on the principal balance of such Note
relative to the aggregate principal balance of all Outstanding Senior
Secured Notes as of the date of such prepayment, together with the
applicable pro rata amount of the Yield-Maintenance Premium.
(e) Upon full and complete satisfaction of all obligations and liabilities of
the Company and other Obligors under the Credit Agreement (as evidenced by
a certificate from the Agent under the Credit Agreement to that effect),
the Obligors shall make a prepayment in respect of the principal amount of
the Notes, subject to Section 10 hereof, within five (5) Business Days
after the sale by the Company or any Subsidiary of any Property which,
together with any other Property sold by the Company or any Subsidiary on
or after the date such obligations and liabilities have been satisfied, has
an aggregate value of more than $500,000. Such prepayment shall be in an
amount equal to the proceeds of such sale, after deducting ordinary and
reasonable costs of sale (including taxes payable in respect of such sale),
unless satisfactory evidence is delivered to the Required Holders that such
proceeds are to be promptly reinvested in replacement Property.
9
(f) Subject to Section 10 hereof, the Obligors agree that they will pay the
entire unpaid principal amount of the Notes at maturity on March 31, 2000.
Prepayment of less than all of the Notes pursuant to the provisions of
Section 5.3, or Section 5.4 shall not relieve the Obligors of their
obligation pursuant to this Section 5.2.
SECTION 2.10 AMENDMENT OF SECTION 5.4 OF THE ORIGINAL INDENTURE. The
definitions of "Called Principal", "Settlement Date" and "Yield-Maintenance
Premium" appearing in Section 5.4 of the Original Indenture are amended and
restated in their entirety respectively as follows:
"CALLED PRINCIPAL" shall mean, with respect to any Note, the principal of such
Note that is to be prepaid pursuant to Sections 5.2(c), 5.2(d), 5.2(e),
5.3, 5.4, or 5.5 hereof (any partial prepayment pursuant to Sections
5.2(d), 5.2(e), 5.3, 5.4, or 5.5 hereof being applied in satisfaction of
required payments of principal in inverse order of their scheduled due
dates), or that is declared to be immediately due and payable pursuant to
Section 6.2 hereof, as the context requires.
"SETTLEMENT DATE" shall mean, with respect to the Called Principal of any
Note, the date on which such Called Principal is to be prepaid pursuant to
Sections 5.2(c), 5.2(d), 5.2(e), 5.3, 5.4, or 5.5 hereof or is declared to be
immediately due and payable pursuant to Section 6.2 hereof, as the context
requires.
"YIELD-MAINTENANCE PREMIUM" shall mean, with respect to any Note, a premium
equal to the excess, if any, of the Discounted Value of the Called
Principal of such Note over the sum of (i) such Called Principal plus (ii)
interest accrued thereon as of (including interest due on) the Settlement
Date with respect to such Called Principal. The Yield Maintenance Premium
shall in no event be less than zero. Any provisions of this Section 5.4 to
the contrary notwithstanding, the Yield-Maintenance Premium, if any,
payable in connection with a prepayment pursuant to Section 5.2(c) of this
Indenture shall be calculated assuming (i) the Called Principal is
$5,137,980.77, (ii) the Settlement Date is September 30, 1998, (iii) the
Remaining Scheduled Payments consists of a payment on March 31, 1999, of
principal in the amount of $5,137,980.77, and interest in the amount of the
interest accrued on such principal amount from the Settlement Date through
and including March 31, 1999, (iv) the Remaining Average Life is one-half
of one year, and (v) the Discounted Value is calculated using a discount
factor equal to the Reinvestment Yield plus one-half of one percent (1/2%)
----
per annum.
SECTION 2.11 AMENDMENT OF SECTION 6.1 OF THE ORIGINAL INDENTURE.
(a) Section 6.1 of the Original Indenture is amended by amending and restating
Subsection 6.1(g) to read in its entirety as follows:
(g) the existence of an Event of Default under (and as defined in) the
Credit Agreement;
10
(b) Section 6.1 of the Original Indenture is amended by deleting "or"
appearing at the end of subsection 6.1(o), and amending and restating Subsection
6.1(p) to read in its entirety as follows:
(p) without limiting the provisions of Subsection 6.1(g), if the Company or
any Consolidated Subsidiary defaults in any payment of principal of or
interest on any other obligation for money borrowed (or any obligation under
any Capitalized Lease, any obligation under a conditional sale or other title
retention agreement, any obligation issued or assumed as full or partial
payment for property whether or not secured by a purchase money mortgage or
any obligation under notes payable or drafts accepted representing extensions
of credit) beyond any period of grace provided with respect thereto, or the
Company or any Consolidated Subsidiary fails to perform or observe any other
Agreement, term or condition contained in any agreement under which any such
obligation is created (or if any other event thereunder or under any such
agreement shall occur and be continuing) and the effect of such failure or
other event is to cause, or to permit the holder or holders of such
obligation (or a trustee on behalf of such holder or holders) to cause, such
obligation to become due prior to any stated maturity, provided that the
aggregate amount of all obligations as to which such a payment default shall
occur and be continuing or such a failure or other event causing or
permitting acceleration shall occur and be continuing exceeds $1,000,000;
(c) Section 6.1 of the Original Indenture is amended by inserting the
following as Subsections 6.1(q) and 6.1(r) thereof:
(q) if the maturity of any Bond is accelerated for any reason, unless at the
time of acceleration, prepayment or redemption of such Bond so
accelerated would be permitted by Section 3.28(b) of this Indenture; or
(r) the existence of an Event of Default under, and as defined in, that
certain Guarantee dated as of June 4, 1997 by Xxxx X. Xxxxxx and Xxxx Xxxxxx
Holdings Pty. Ltd. in favor of the Trustees and the holders of the Notes.
SECTION 2.12 AMENDMENT OF EXHIBITS TO ORIGINAL INDENTURE. Exhibits A and B
to the Original Indenture are amended by substituting therefor Exhibits A and B,
respectively, attached to this Supplement.
SECTION 3. MISCELLANEOUS.
SECTION 3.1 APPLICABILITY OF THE ORIGINAL INDENTURE. The provisions of the
Original Indenture, as supplemented and amended by this Supplement, are
hereby ratified, approved and confirmed and remain in full force and
effect. This Supplement shall be construed as having been authorized,
executed and delivered under the provisions of Section 8.2 of the
Indenture.
SECTION 3.2 COUNTERPARTS. This Supplement may be simultaneously executed in
several counterparts, each of which shall be an original and all of which
shall constitute but one and the same instrument.
11
SECTION 3.3 NO LEGEND REQUIRED. Any and all notices, requests, certificates
and any other instruments, including the Notes, may refer to the Indenture or
the Trust Indenture dated as of March 31, 1990, without making specific
reference to this Supplement, but nevertheless all such references shall be
deemed to include this Supplement unless the context shall otherwise require.
SECTION 3.4 NO RESPONSIBILITY OF TRUSTEES FOR RECITALS. The recitals and
statements contained in this Supplement shall be taken as the recitals and
statements of the Obligors, and the Trustees assume no responsibility for
the correctness of the same.
SECTION 3.5 CONSENT OF LENDERS TO SUPPLEMENT. The Company represents and
covenants that it has obtained the written consent of the Requisite Lenders
(as defined in the Credit Agreement) to its execution of this Supplement.
SECTION 3.6 FURNISHING OF DOCUMENTS. On or before July 15, 1997 or, in the
case of Liens to be granted to or for the equal and pro rata benefit of the
Lenders under the Credit Agreement and the holders of the Notes, such
earlier date as may be required under the Credit Agreement, the Company
will execute and deliver or furnish, or cause to be executed or delivered
or furnished, as the case may be, to the Trustees, the following:
(a) depositary account agreements with respect to each of the Obligors'
deposit accounts, for the equal and pro rata benefit of the holders of Notes,
duly executed by the depositary banks relating thereto;
(b) for the equal and pro rata benefit of the holders of the Notes and the
Lenders under the Credit Agreement, (i) mortgages and security
agreements granting Liens to the Trustees and the Agent under the
Credit Agreement, in and upon all currently unencumbered Property of
the Company, RMCI and all Subsidiaries of such Persons (excluding (A)
Desert Vista Hospital and the Property located thereat, (B) Property
of the Principal Subsidiaries, (C) Property of the obligors under the
Credit Agreement, and (D) the real Property and improvements thereon
commonly known as Three Rivers Hospital owned by Ramsay Louisiana,
Inc., but including any contract now existing or hereafter entered
into for the sale of the Three Rivers Hospital and the proceeds
thereof); such mortgages and security agreements shall contain
provisions requiring the release of such Liens from the Property
covered thereby upon payment to the Trustees and such Agent of the
proceeds of a sale to a third party of such Property approved by the
Required Holders and Requisite Lenders under the Credit Agreement; and
(ii) joint and several Guaranties of all Subsidiaries of the Company
other than the Obligors, the obligors under the Credit Agreement, HSA
Hill Crest Corporation, H.C. Corporation and H.C. Partnership. The
foregoing Liens and Guaranties shall be governed by the terms of the
Intercreditor Agreement dated as of December 4, 1996 by and among
Societe Generale, as Agent under the Credit Agreement and the
Trustees, as appropriately amended and pursuant to documentation
reasonably satisfactory to the Agent and the Trustees; provided, the
---------
Company shall not be in default of this Section 3.6(b) in the event
that the Agent and the Trustees do not agree on such amendments or
documentation;
12
(c) title insurance policies insuring the Liens of the mortgages, if any,
described in Section 3.6(b) above as first priority Liens, subject to
no exceptions to title except as approved by the Required Holders;
(d) UCC searches in all appropriate jurisdictions, confirming the perfection
and first priority of the Liens of the security agreements described in
Section 3.6(b) above with respect to all Property covered by such security
agreements in which a security interest may be perfected by the filing of a
UCC statement; provided, the date by which the search in any jurisdiction
--------
shall be required to be delivered to the Trustees shall be extended, as
necessary, to take into account any delay in the filing office in such
jurisdiction in making filing information available and current;
(e) such other documents, instruments or other agreements (including but not
limited to stock certificates evidencing shares of stock in RMCI and
other Subsidiaries) as may be reasonably required by the Required
Holders to perfect the Liens granted by the mortgages and security
agreements described in Section 3.6(b) above; and
(f) such opinions of counsel to the Obligors as the Required Holders may
reasonably request in connection with the execution and delivery of
the documents required pursuant to this Section 3.6, concerning the
authorization, execution, delivery, effectiveness and enforceability
of such documents.
All documents, agreements and other information executed and delivered and/or
furnished pursuant to this Section 3.6 shall be in form and substance
satisfactory to the Required Holders. Within thirty (30) days after receipt of
an appropriate invoice or statement, the Obligors shall pay all reasonable costs
and expenses incurred or associated with the requirements of this Section 3.6,
including but not limited to the reasonable fees and disbursements of counsel to
the Trustees and of counsel to the holders of the Notes.
SECTION 3.7 EXECUTION AND DELIVERY OF MORTGAGE AMENDMENTS. Promptly upon
request of the Required Holders, the Obligors shall promptly execute and
deliver to the Trustees such amendments of any of the Mortgages as the
Required Holders deem reasonably necessary or desirable to reflect the
amendment and restatement of the Existing Senior Notes and the Existing
Subordinated Notes effected hereby.
SECTION 3.8 PAYMENT OF FEES AND EXPENSES OF NOTEHOLDERS AND TRUSTEES. Within
thirty (30) days after receipt of an appropriate invoice or statement, the
Obligors shall pay all reasonable costs and expenses incurred or associated
with the execution and delivery of this Supplement or the enforcement or
administration hereof, including but not limited to recording and filing
fees and charges, search fees, title insurance premiums and the reasonable
fees and disbursements of counsel to the Trustees and of counsel to the
holders of the Notes.
SECTION 3.9 PAYMENT OF ADMINISTRATIVE FEE. The Company has paid to the Trustee
for the ratable benefit of the holders of the Notes an administrative fee in the
aggregate amount of $92,045.
13
SECTION 3.10 NO CONFLICTS, ETC. The Obligors warrant and represent to the
Trustees, for the benefit of the holders of the Notes, that they have the right
and power and are duly authorized and empowered to enter into, executes, deliver
and perform this Supplement and each of the documents contemplated to be
executed and delivered by them pursuant to Section 3.6 of this Supplement. This
Supplement has been duly authorized and approved by all necessary corporate
action of the Obligors, and is the legal, valid and binding obligations of the
Obligors, enforceable against the Obligors in accordance with its terms, except
to the extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting the
rights of creditors generally and by the application of general principles of
equity. The execution, delivery and performance of this Supplement and the
documents contemplated to be executed and delivered by the Obligors pursuant to
Section 3.6 of this Supplement will not conflict with, nor result in any breach
in any of the provisions of, or constitute a default under, or result in the
creation of any Lien (except Liens permitted by the Indenture) upon any Property
of the Obligors under, the provisions of any agreement, charter instrument,
bylaw, or other instrument to which any Obligor is a party or by which it may be
bound.
IN WITNESS WHEREOF, each Obligor has caused this Supplement to be executed on
its behalf by its President or Vice President and Vice President or Secretary or
Assistant Secretary; and THE BANK OF NEW YORK. In evidence of its acceptance of
the trusts hereby created, has caused this Indenture to be executed on its
behalf by one of its Corporate Trust Officers and attested by one of its
authorized officers, and Xxxxxx Xxxxxxxxxx in token of his acceptance of the
trusts hereby created, has hereunto set his hand, all as of the date first above
written.
RAMSAY HEALTH CARE, INC.
By _________________________
Its President
ATTEST:
_________________________
Secretary
14
BOUNTIFUL PSYCHIATRIC HOSPITAL, INC.
By_________________________________
Its President
ATTEST:
_________________________
Secretary
CUMBERLAND MENTAL HEALTH, INC.
By_________________________________
Its President
ATTEST:
_________________________
Secretary
EAST CAROLINA PSYCHIATRIC SERVICES
CORPORATION
By_________________________________
Its President
ATTEST:
_________________________
Secretary
15
HAVENWYCK HOSPITAL, INC.
By_________________________________
Its President
ATTEST:
_________________________
Secretary
MESA PSYCHIATRIC HOSPITAL, INC.
By_________________________________
Its President
ATTEST:
_________________________
Secretary
PSYCHIATRIC INSTITUTE OF WEST
VIRGINIA, INC.
By_________________________________
Its President
ATTEST:
_________________________
Secretary
00
XXX XXXX XX XXX XXXX
as Corporate Trustee
By_________________________________
Name: XXXX X. XXXXX
Title: ASSISTANT VICE PRESIDENT
ATTEST:
_________________________
Secretary
XXXXX X. XXXXXXXX
Assistant Treasurer
___________________________________
Xxxxxx Xxxxxxxxxx
As Individual Trustee
