EXHIBIT 10.100
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FOURTH SUPPLEMENTAL TRUST INDENTURE
Dated as of September 15, 1995
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
NATIONSBANK OF GEORGIA, NATIONAL ASSOCIATION
and
XXXXXXXXX XXXXXX
As Trustees
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Table of Contents
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Section 1. Definitions...................................................
Section 1.1. Definitions Contained in the Original Indenture.......
Section 1.2. Amendment of Certain Definitions Contained in
the Original Indenture................................
Section 1.3 New Definitions.......................................
Section 2. Amendments....................................................
Section 2.1. Amendment of (S) 3.17 of the Original Indenture.......
Section 2.2 Amendment of (S) 3.18 of the Original Indenture.......
Section 3. Miscellaneous.................................................
Section 3.1. Applicability of the Original Indenture...............
Section 3.2. Counterparts..........................................
Section 3.3. No Legend Required....................................
Section 3.4. No Responsibility of Trustees for Recitals............
Section 3.5. Consent of Lenders to Supplement......................
Section 3.6. Furnishing of Documents...............................
Section 3.7. Payment of Special Counsel Fees.......................
Section 3.8. Payment of Administrative Fee.........................
FOURTH SUPPLEMENTAL TRUST INDENTURE
-----------------------------------
FOURTH SUPPLEMENTAL TRUST INDENTURE dated as of September 15, 1995
(herein called the "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, 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"), whose post office addresses are One
Poydras Plaza, 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxx 00000, and
NATIONSBANK OF GEORGIA, NATIONAL ASSOCIATION (formerly The Citizens and Southern
National Bank), a national banking association (the "Trustee"), whose post
office address is 000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx Xxxxxxx 00000,
Attention: Corporate Trust Department and XXXXXXXXX XXXXXX (the "Individual
Trustee"), whose post office address is 000 Xxxxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000, 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"; and the Senior Notes and Subordinated Notes collectively,
the "Notes") under and secured by the Trust Indenture dated as of March 31, 1990
from the Obligors to the Trustees (the "First Indenture"); and
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") and entered into a Third
Supplemental Trust Indenture dated as of April 12, 1995 (the "Third Supplemental
Indenture"; and the
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First Indenture as amended by the First Supplemental Indenture, the Second
Supplemental Indenture and the Third 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 or 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
(S) 10 of the Indenture, of both the principal of and interest and premium, if
any, on the Notes at any time outstanding thereunder according to their tenor
and the provisions thereof, and, further subject to (S) 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 (S) 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.
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Section 1.2. Amendment of Certain Definitions Contained in the
Original Indenture. Unless the context otherwise requires, the following
definitions contained in Section (S) 1.1 of the Original Indenture are hereby
amended in their entirely as follows:
"'Bank Debt' shall mean (i) indebtedness for borrowed money
outstanding under the working capital facility provided under the Credit
Agreement and referred to therein as the 'Revolving Credit Loans' in an
aggregate principal amount not to exceed $2,000,000, (ii) indebtedness
outstanding under the letter of credit facility provided under the Credit
Agreement in an aggregate amount not to exceed $21,041,109.29 and referred to
therein as the 'Letters of Credit' and (iii) indebtedness outstanding under the
term loan facility provided under the Credit Agreement upon termination of the
Letters of Credit referred to in (ii) above in an aggregate principal amount not
to exceed $20,100,000 and referred to therein as the 'Term Loans'".
"'Credit Agreement' shall mean the Credit Agreement dated as of May
15, 1993, as amended as of April 12, 1995 and as of September 15, 1995, among
the Company and certain Subsidiaries, as the Borrowers, Great Plains Hospital,
Inc., and The Haven Hospital, Inc., as 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."
"'Funded Indebtedness' of any Person shall mean and include without
duplication,
(i) any obligation payable more than one year from the date of
creation thereof, which under generally accepted accounting principles is shown
on the balance sheet as a liability (including Capitalized Lease obligations but
excluding reserves for deferred income taxes and other reserves to the extent
that such reserves do not constitute an obligation),
(ii) indebtedness payable more than one year from the date of creation
thereof which is secured by any Lien on, or payable out of the proceeds of
production from, property owned by the Company or any Subsidiary, whether or not
the indebtedness secured thereby shall have been assumed by the Company or such
Subsidiary,
(iii) contingent obligations in respect of letters of credit issued
and not yet drawn upon,
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(iv) all Guaranties by such Person of Funded Indebtedness of others,
PROVIDED that if the indebtedness so guaranteed is also included in consolidated
Funded Indebtedness of such Person, the amount of such Guaranty shall not be
included as additional Funded Indebtedness,
(v) obligations under any contract providing for the making of loans,
advances or capital contributions to any other Person, or for the purchase of
any property from any Person, in each case in order to enable such Person
primarily to maintain working capital, net worth or any other balance sheet
condition or to pay debts, dividends or expenses,
(vi) obligations under any contract for the purchase of materials,
supplies or other property or services if such contract (or any related
document) requires that payment for such materials, supplies or other property
or services shall be made regardless of whether or not delivery of such
materials, supplies or other property or services is ever made or tendered,
(vii) obligations under any Capitalized Lease or contract to rent or
lease (as lessee) any real or personal property if such contract (or any related
document) provides that the obligation to make payments thereunder is absolute
and unconditional under conditions not customarily found in commercial leases or
requires that the lessee purchase or otherwise acquire securities or obligations
of the lessor,
(viii) obligations under any contract for the sale or use of
materials, supplies or other property or services if such contract (or any
related document) requires that payment for such materials, supplies or other
property or services, or the use thereof, shall be subordinated to any
indebtedness (of the purchaser or user of such materials, supplies or other
property or the Person entitled to the benefit of such services) owed or to be
owed to any Person,
(ix) obligations under any other contract which, in economic effect,
is substantially equivalent to a guarantee, and
(x) all capital stock of Subsidiaries of such Person which has a
preference as to dividends or upon liquidation and which is not owned by such
Person, either directly or through Subsidiaries of such Person,
all as determined in accordance with generally accepted accounting
principles. Notwithstanding anything herein to the contrary, 'FUNDED
INDEBTEDNESS' of the Company
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or any Consolidated Subsidiary shall not include (i) Subordinated Funded
Indebtedness, (ii) indebtedness outstanding under the working capital facility
of the Credit Agreement in a principal amount not to exceed $2,000,000 or (iii)
Practice Guaranties. 'CONSOLIDATED' when used as a prefix to any Funded
Indebtedness shall mean the aggregate amount of all such Funded Indebtedness of
the Company and its Consolidated Subsidiaries on a consolidated basis
eliminating intercompany items."
"'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
$21,041,109.29 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
in an aggregate principal amount not to exceed $2,000,000 arising under the
"Revolving Loan Commitment" provided in the Credit Agreement (including
extensions, renewals and refundings thereof without increase in the outstanding
principal amount under such facility at such time), (iv) 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 $20,100,000 (including extensions, renewals and
refundings thereof without increase in the outstanding principal amount under
such facility at such time), and (v) 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), (iv) and (v)
shall constitute "Superior Indebtedness" regardless of whether such interest
accrues before or after the commencement of any bankruptcy, insolvency or
receivership proceedings."
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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:
"'Fourth Supplemental Indenture' shall mean the Fourth Supplemental
Trust Indenture dated as of September 15, 1995 between the Obligors and the
Trustees."
Section 2. Amendments.
Section 2.1. Amendment of (S) 3.17 of the Original Indenture. (S) 3.17 of
the Original Indenture is hereby amended 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) Consolidated Cash Flow plus (B) Rentals to (ii) Fixed Charges for the
most recent four fiscal quarters, at not less than (x) 1.5 to 1, in the
case of any determination being made hereunder on or prior to December 31,
1995, (y) 1.75 to 1, in the case of any determination being made as of the
end of the fiscal quarter ending March 31, 1996, and (z) 2.0 to 1, in the
case of any determination being made hereunder at any time after March 31,
1996."
Section 2.2. Amendment of (S) 3.18 of the Original Indenture. (S)
3.18 of the Original Indenture shall be amended as follows:
(a) (S) 3.18(A)(2) of the Original Indenture is hereby amended in its
entirety as follows:
"(2) the Bank Debt, PROVIDED that during the twelve-month period
prior to May 15, 1993, there shall have been a period of 45
consecutive days during which the Company and each of its Consolidated
Subsidiaries shall have been free of all Indebtedness outstanding
under the working capital facility of the Old Credit Agreement,
FURTHER PROVIDED that during the twelve-month period immediately
preceding the date of any determination hereunder occurring on or
after May 15, 1994 and prior to September 15, 1995, there shall have
been a period of 45 consecutive days during which the Company and each
of its
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Consolidated Subsidiaries shall have been free of Indebtedness
outstanding under the "Revolving Credit Loans" facility of the Credit
Agreement in an amount equal to at least 75% of the "Revolving Credit
Maximum Commitment Amount" (as such term is defined in the Credit
Agreement as originally executed), and FURTHER PROVIDED that during
the twelve-month period immediately preceding the date of any
determination hereunder occurring on or after September 15, 1995,
there shall have been a period of 30 consecutive days during which the
Company and each of its Consolidated Subsidiaries shall have been free
of Indebtedness outstanding under the "Revolving Credit Loans"
facility of the Credit Agreement;"
(b) (S) 3.18(A)(4) of the Original Indenture is hereby amended in its
entirety as follows:
"(4) Funded Indebtedness issued or incurred for the purpose of
extending, renewing or refinancing (y) Funded Indebtedness outstanding
as of the date of execution and delivery of the Fourth Supplemental
Indenture and (z) that portion of the Bank Debt constituting Funded
Indebtedness issued or incurred from time to time under the Credit
Agreement, PROVIDED that in either case the principal amount of Funded
Indebtedness extended, renewed or refinanced does not exceed the
principal amount of such Funded Indebtedness outstanding immediately
preceding such extension, renewal or refinancing;"
(c) (S) 3.18(A)(7) of the Original Indenture is hereby amended in its
entirety as follows:
"(7) unsecured Current Indebtedness of the Company and its
Consolidated Subsidiaries, PROVIDED that during the twelve-month
period prior to May 15, 1993, there shall have been a period of 45
consecutive days during which the Company and each of its Consolidated
Subsidiaries shall have been free of (x) all Indebtedness outstanding
under the working capital facility of the Old Credit Agreement and (y)
all other Current Indebtedness, PROVIDED FURTHER that during the
twelve-month period immediately preceding the date of any
determination hereunder occurring on or after May 15, 1994 and prior
to September 15, 1995, there shall have been a period of 45
consecutive days during which the Company and each
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of its Consolidated Subsidiaries shall have been free of (x)
Indebtedness outstanding under the "Revolving Credit Loans" facility
of the Credit Agreement in an amount equal to at least 75% of the
"Revolving Loan Maximum Commitment Amount" (as such term is defined in
the Credit Agreement as originally executed) and (y) all other Current
Indebtedness, and PROVIDED FURTHER that during the twelve-month period
immediately preceding the date of any determination hereunder
occurring on or after September 15, 1995, there shall have been a
period of 30 consecutive days during which the Company and each of its
Consolidated Subsidiaries shall have been free of (x) Indebtedness
outstanding under the "Revolving Credit Loans" facility of the Credit
Agreement and (y) all other Current Indebtedness;"
(d) (S) 3.18(A)(15) of the Original Indenture is hereby amended in
its entirety as follows:
"(15) additional Current Indebtedness incurred under the
"Revolving Credit Loans" facility of the Credit Agreement in an
aggregate principal amount not to exceed $2,000,000, PROVIDED that, at
the time of the issuance or incurrence thereof and after giving effect
thereto and to the application of the proceeds thereof:
(i) Consolidated Funded Indebtedness shall not exceed the
following percentages of Total Capitalization:
PERCENTAGE
OF TOTAL
PERIOD CAPITALIZATION
July 1, 1992 thru June 30, 1993 69%
July 1, 1993 and thereafter 65%
(ii) the ratio of Consolidated Funded Indebtedness to
Consolidated Cash Flow for the most recent four fiscal quarters
shall not exceed 4.0 to 1;
(iii) the sum of Consolidated Cash Flow plus Rentals for the
most recent four fiscal quarters shall be not less than 1.5 times
proforma Consolidated Debt Service for the immediately succeeding
four fiscal quarters; and
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(iv) No Default or Event of Default shall have occurred and
be continuing;
PROVIDED FURTHER that during the twelve-month period immediately preceding the
date of any determination hereunder occurring on or after May 15, 1994 and prior
to September 15, 1995, there shall have been a period of 45 consecutive days
during which the Company and each of its Consolidated Subsidiaries shall have
been free of (x) Indebtedness outstanding under the "Revolving Credit Loans"
facility of the Credit Agreement in an amount equal to at least 75% of the
"Revolving Credit Maximum Commitment Amount" (as such term is defined in the
Credit Agreement as originally executed) and (y) all other Current Indebtedness,
and PROVIDED FURTHER that during the twelve-month period immediately preceding
the date of any determination hereunder occurring on or after September 15,
1995, there shall have been a period of 30 consecutive days during which the
Company and each of its Consolidated Subsidiaries shall have been free of (x)
Indebtedness outstanding under the "Revolving Credit Loans" facility of the
Credit Agreement and (y) all other Current Indebtedness."
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 (S) 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.
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.
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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. The Company will within 10
business days after the date of the closing of the Second Amendment dated as of
September 15, 1995 (the "Bank Amendment") to the Credit Agreement (as defined in
the Indenture), furnish to each holder of the Notes, the Trustee and Xxxxxxx and
Xxxxxx (a) fully executed counterparts of this Supplement and (b) the Bank
Amendment.
Section 3.7. Payment of Special Counsel Fees. The Company will pay
within 30 days after receipt of a statement therefor, the reasonable fees and
disbursements of Xxxxxxx and Xxxxxx as special counsel to the Noteholders in
connection with the execution and delivery of this Supplement.
Section 3.8. Payment of Administrative Fee. The Company has paid to
the Trustee for the ratable benefit of the Holders of the Senior Notes an
administrative fee in the aggregate amount of $60,000.
* * *
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 NationsBank of Georgia, National
Association has caused this Supplement to be executed on its behalf by one of
its Corporate Trust Officers and attested by one of its Assistant Secretaries
and Xxxxxxxxx Xxxxxx has hereunto set her hand, all as of the date first above
written.
RAMSAY HEALTH CARE, INC.
By /S/ Xxxxxxx X. Xxxxxxxx
____________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: President
ATTEST:
/S/ Xxxxxx X. Xxxx
_________________________
Name: Xxxxxx X. Xxxx
Title: Assistant Secretary
BOUNTIFUL PSYCHIATRIC
HOSPITAL, INC.
By /S/ Xxxxxxx X. Xxxxxxxx
____________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: President
ATTEST:
/S/ Xxxxxx X. Xxxx
_________________________
Name: Xxxxxx X. Xxxx
Title: Assistant Secretary
CUMBERLAND MENTAL HEALTH, INC.
By /S/ Xxxxxxx X. Xxxxxxxx
____________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: President
ATTEST:
/S/ Xxxxxx X. Xxxx
_________________________
Name: Xxxxxx X. Xxxx
Title: Assistant Secretary
EAST CAROLINA PSYCHIATRIC
SERVICES CORPORATION
By /S/ Xxxxxxx X. Xxxxxxxx
____________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: President
ATTEST:
/S/ Xxxxxx X. Xxxx
_________________________
Name: Xxxxxx X. Xxxx
Title: Assistant Secretary
HAVENWYCK HOSPITAL, INC.
By /S/ Xxxxxxx X. Xxxxxxxx
____________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: President
ATTEST:
/S/ Xxxxxx X. Xxxx
_________________________
Name: Xxxxxx X. Xxxx
Title: Assistant Secretary
MESA PSYCHIATRIC HOSPITAL, INC.
By /S/ Xxxxxxx X. Xxxxxxxx
____________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: President
ATTEST:
/S/ Xxxxxx X. Xxxx
_________________________
Name: Xxxxxx X. Xxxx
Title: Assistant Secretary
PSYCHIATRIC INSTITUTE OF
WEST VIRGINIA, INC.
By /S/ Xxxxxxx X. Xxxxxxxx
____________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: President
ATTEST:
/S/ Xxxxxx X. Xxxx
______________________
Name: Xxxxxx X. Xxxx
Title: Assistant Secretary
NATIONSBANK OF GEORGIA,
NATIONAL ASSOCIATION,
As Corporate Trustee
(SEAL) By /S/ Xxxxxxxxx X. Xxxxxx
____________________________
Name: Xxxxxxxxx X. Xxxxxx
Title: Asst. Vice President
ATTEST:
/S/ Xxxxxxx Xxxxxx
_________________________
Name: Xxxxxxx Xxxxxx
Title: Trust Officer
/S/ Xxxxxxxxx X. Xxxxxx
______________________________
Xxxxxxxxx X. Xxxxxx,
As Individual Trustee
