EXHIBIT 4.4
--------------------------------------------------------------------------------
THIRD SUPPLEMENTAL TRUST INDENTURE
Dated as of April 12, 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 HOSPITAL OF WEST VIRGINIA, INC.
and
NATIONSBANK OF GEORGIA, NATIONAL ASSOCIATION
and
XXXXXXXXX XXXXXX
As Trustees
--------------------------------------------------------------------------------
Table of Contents
Page
Parties............................................................... 1
Section 1. Definitions............................................... 2
Section 1.1. Definitions Contained in Original
Indenture........................................... 2
Section 1.2. New Definitions................................ 3
Section 2. Sale-Leaseback of Desert Vista Hospital................... 4
Section 2.1. Conditions of the Sale-Leaseback
Transaction......................................... 4
Section 2.2. Disposition of Amounts Deposited with
Trustee............................................. 5
Section 3. Appraisals................................................ 6
Section 4. Miscellaneous............................................. 6
Section 4.1. Applicability of Original Indenture............ 6
Section 4.2. Counterparts................................... 7
Section 4.3. No Legend Required............................. 7
Section 4.4. No Responsibility of Trustees for
Recitals............................................ 7
Section 4.5. Consent of Lenders to Supplement............... 7
Section 4.6. Furnishing of Documents........................ 7
Section 4.7. Payment of Special Counsel Fees................ 7
i
THIRD SUPPLEMENTAL TRUST INDENTURE
THIRD SUPPLEMENTAL TRUST INDENTURE dated as of
April 12, 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 "Original
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") and
entered into a Second Supplemental Trust Indenture dated as
of May 15, 1993 (the "Second Supplemental Indenture"; and
the Original Indenture as amended by the First Supplemental
Indenture, the Second Supplemental Indenture, as hereby
2
amended and as the same may be further amended and
supplemented from time to time being referred to as the
"Indenture"); and
WHEREAS, the Trustees are beneficiaries under that
certain Leasehold Deed of Trust, Assignment of Rents and
Security Agreement with Financing Statement (Fixture Filing)
dated as of March 31, 1990 (the "Mesa Psychiatric Mortgage")
delivered by Mesa Psychiatric pursuant to 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 Sec. 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 Sec. 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 Sec. 10 of the
Indenture, without any preference, priority or distinction
as follows:
Section I. Definitions.
Section 1.1. Definitions Contained in 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
3
therein when used herein, unless the context or use
indicates a different meaning or intent.
Section 1.2. New Definitions. Unless the context
otherwise requires, the terms hereinafter set forth when
used in the Indenture shall have the following meanings and
the following definitions shall be equally applied to both
the singular and plural forms to any of the terms herein
defined:
"`Additional Sum' shall mean an amount equal
to $234,000."
"`Buyer-Lessor' shall mean Capstone Capital
Corporation, a Maryland corporation, or an
affiliate thereof."
"`Desert Vista Assets' shall mean the Land
Parcels, buildings, improvements, fixtures and all
other real property constituting the Desert Vista
Hospital."
"`Lease' shall mean a lease agreement to be
entered into between Buyer-Lessor and Mesa
Psychiatric of the Desert Vista Assets."
"`Mesa Net Proceeds of Sale' shall mean, with
respect to the purchase price proceeds to be paid
to Mesa Psychiatric for the Desert Vista Assets,
an aggregate amount equal to $7,500,000."
"`Sale-Leaseback Transaction' shall mean the
sale-leaseback transaction between Buyer-Lessor
and Mesa Psychiatric pursuant to which, among
other things, (i) Mesa Psychiatric will sell to
Buyer-Lessor for an aggregate purchase price of
$8,550,000 (subject to adjustment as agreed to
between the Company and Buyer-Lessor) the Desert
Vista Assets and (ii) pursuant to the Lease,
Buyer-Lessor will lease the Desert Vista Assets to
Mesa Psychiatric for an initial term of 15 years
(with three successive renewal options of 5 years
each) for aggregate annual Rentals of $1,026,000
(subject to adjustment as agreed to between the
Company and Buyer-Lessor), payable monthly,
subject to an annual upward adjustment from the
Consumer Price Index with an annual cap of 3%."
4
Section 2. Sale-Leaseback of Desert Vista Hospital.
Section 2.1. Conditions of the Sale-Leaseback
Transaction. In accordance with the provisions of Sec. 4.2(c)
of the Indenture, and notwithstanding the provisions of
Sec.Sec. 3.21(d) and 3.21(e) of the Indenture, Mesa Psychiatric is
hereby permitted to consummate the Sale-Leaseback
Transaction. The Trustees shall release the Lien of the
Mesa Psychiatric Mortgage and the security interests therein
with respect to the collateral covered thereby upon
compliance by the Obligors with each of the following
conditions:
(a) such sale shall have been the subject of a
binding contract to purchase the Desert Vista Assets
between Mesa Psychiatric and Buyer-Lessor or any
assignee thereof (the "Purchaser") (the "Desert
Hospital Sale Contract");
(b) Mesa Psychiatric shall have determined by
resolution of its Board of Directors that the sale of
the Desert Vista Assets is made at an amount not less
than the fair market value thereof at the time of the
execution of the Desert Vista Hospital Sale Contract
and Mesa Psychiatric shall furnish each Noteholder and
the Trustee on or prior to the date of closing the sale
of the Desert Vista Assets a copy of such resolution
certified by the Secretary or an Assistant Secretary of
Mesa Psychiatric;
(c) on the date of sale of the Desert Vista
Assets and concurrently with the release by the
Trustees of the Lien of the applicable Mortgage, the
Obligors shall pay or cause the Purchaser to pay an
amount equal to the Mesa Net Proceeds of Sale plus the
Additional Sum by wire transfer of immediately
available funds to the account specified by the Trustee
for deposit in trust for the benefit of the
Noteholders, such account to be in the name of Mesa
Psychiatric and held and disbursed in accordance with
Section 2.2 of this Supplement; and
(d) On the date of sale of the Desert Vista
Assets, the Trustees shall have received an opinion of
counsel for Mesa Psychiatric, dated the date of such
sale, to the effect that upon deposit of the Mesa Net
Proceeds of Sale with the Trustees, the Trustees shall
have a perfected security interest in such Mesa Net
Proceeds of Sale entitled to the same priority as the
Mesa Psychiatric Mortgage with respect to the Desert
Vista Assets.
5
Section 2.2 Disposition of Amounts Deposited with
Trustee.
(a) The Mesa Net Proceeds of Sale and the
Additional Sum shall constitute property of Mesa
Psychiatric subject to the Lien of the Indenture and
shall be held by the Trustee in a separate account
under the Indenture containing only the Mesa Net
Proceeds of Sale and the Additional Sum;
(b) The Mesa Net Proceeds of Sale shall be
applied by the Trustee within three Business Days
following receipt by the Trustee from the Company of a
copy of a written consent by the Lenders under the
Credit Agreement to such application, which consent
shall be reasonably satisfactory to the Company (the
"Written Consent"), to the prepayment of $7,500,000
principal amount of the Senior Secured Notes, as
follows: $7,062,500 to the payment in full of the
principal prepayments of the Senior Secured Notes due
and payable on September 30, 1995 and March 31, 1996,
respectively, and the balance of $437,500 to the
principal prepayment of the Senior Secured Notes due
and payable on September 30, 1996; provided, however,
that if the Company shall not furnish a copy of the
Written Consent to the Trustee, the Trustee shall apply
the Mesa Net Proceeds of Sale to the payment of the
Senior Secured Notes as and when such payments become
due pursuant to Section 5.2(a) of the Indenture until
the Mesa Net Proceeds of Sale are exhausted.
(c) The Additional Sum shall be applied by the
Trustee as follows:
(i) if the Written Consent shall not have
been furnished to the Trustee on or before the
close of business on April 30, 1995, the Trustee
shall on May 1, 1995 pay the Additional Sum to the
Holders of the Senior Secured Notes pro rata; or
(ii) if the Written Consent shall have been
furnished to the Trustee on or before the close of
business on April 30, 1995, the Trustee shall pay
the Additional Sum to the Holders of the Senior
Secured Notes concurrently with the prepayment of
principal of the Senior Secured Notes pursuant to
Section 2.2(b) of this Supplement.
(d) Prior to the exercise of remedies upon an
Event of Default or the application thereof as provided
in this Section, the Mesa Net Proceeds of Sale and the
6
Additional Sum shall be in the name of Mesa
Psychiatric, as directed by an authorized financial
officer of the Company, in direct obligations of the
United States of America or any agency thereof maturing
on or prior to the respective dates of application of
such moneys to the prepayment of the Senior Secured
Notes. Interest earned on such investments (i) from
the date of consummation of the Sale-Leaseback
Transaction to the date of disbursement of such amounts
in accordance with the provisions of Section 2.2(b)
shall be for the account of the Holders of the Senior
Notes, if the Trustee shall have received a copy of the
Written Consent on or prior to April 30, 1995 and (ii)
from the date of consummation of the Sale-Leaseback
Transaction to the date of disbursement of such amounts
in accordance with the provisions of Section 2.2(c)
shall be for the account of the Obligors, if the
Trustee shall not have received a copy of the Written
Consent on or prior to April 30, 1995; provided that
upon the exercise of remedies upon an Event of Default,
all such investment interest on deposit with the
Trustee or paid to it thereafter shall be applied to
the payment of the principal, premium, if any, and
interest on the Senior Secured Notes.
Section 3. Appraisals.
The Company will furnish to the Noteholders not
more than 90 days following the date of consummation of the
Sale-Leaseback Transaction appraisals of Benchmark Regional
Hospital, Xxxxx Xxxx Hospital, Chestnut Ridge Hospital and
Havenwyck Hospital. Each such appraisal shall be (i)
conducted by Valuation Counselors, Inc., Atlanta, Georgia,
or another firm of appraisers selected by the Company with
the consent of the Noteholders and (ii) in a form
substantially similar to the form of appraisals of such
Hospitals furnished to the Noteholders in connection with
their purchase of the Notes pursuant to Section 7(a)(vi) of
the Note Agreements or in such other form as shall be
satisfactory to the Noteholders.
Section 4. Miscellaneous.
Section 4.1. Applicability of Original Indenture.
The provisions of the Original Indenture, as heretofore
supplemented and amended and 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 Sec. 8.2 of the Indenture.
7
Section 4.2. 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 4.3. 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 4.4. 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 Trustee assume no responsibility for
the correctness of the same.
Section 4.5. Consent of Lenders to Supplement.
The Company represents and covenants that it has obtained
the written consent of the Agent under the Credit Agreement
to its execution of this Supplement.
Section 4.6. Furnishing of Documents. The
Company will within 10 business days after the date of the
closing of the Sale-Leaseback Transaction furnish to each
holder of the Notes, the Trustee and Xxxxxxx and Xxxxxx (a)
fully executed counterparts of this Supplement and (b) the
Desert Hospital Sale Contract.
Section 4.7. 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 the waiver and
consent dated April 12, 1995 and this Supplement.
* * *
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____________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: President
ATTEST:
_________________________
Name: Xxxxxx X. Xxxx
Title: Assistant Secretary
BOUNTIFUL PSYCHIATRIC
HOSPITAL, INC.
By____________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: President
ATTEST:
_________________________
Name: Xxxxxx X. Xxxx
Title: Assistant Secretary
CUMBERLAND MENTAL HEALTH, INC.
By____________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: President
ATTEST:
_________________________
Name: Xxxxxx X. Xxxx
Title: Assistant Secretary
EAST CAROLINA PSYCHIATRIC
SERVICES CORPORATION
By____________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: President
ATTEST:
_________________________
Name: Xxxxxx X. Xxxx
Title: Assistant Secretary
HAVENWYCK HOSPITAL, INC.
By____________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: President
ATTEST:
_________________________
Name: Xxxxxx X. Xxxx
Title: Assistant Secretary
MESA PSYCHIATRIC HOSPITAL,INC.
By____________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: President
ATTEST:
_________________________
Name: Xxxxxx X. Xxxx
Title: Assistant Secretary
PSYCHIATRIC INSTITUTE OF
WEST VIRGINIA, INC.
By____________________________
Name: Xxxxxxx X. Xxxxxxxx
Title: President
ATTEST:
______________________
Name: Xxxxxx X. Xxxx
Title: Assistant Secretary
NATIONSBANK OF GEORGIA,
NATIONAL ASSOCIATION,
As Corporate Trustee
(SEAL) By____________________________
Name:
Title: President
ATTEST:
_________________________
Name:
Title:
______________________________
Xxxxxxxxx Xxxxxx,
As Individual Trustee
