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Exhibit 4.3
AMERICAN HEALTHCARE MANAGEMENT, INC.
ORNDA HEALTHCORP
AHM ACQUISITION CO., INC.
AND
NATIONSBANK OF TENNESSEE, NATIONAL ASSOCIATION
Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of April 19, 1994
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Supplemental to Indenture dated as of July 28, 1993 between
American Healthcare Management, Inc. and NationsBank of Tennessee, National
Association, as Trustee, relating to American Healthcare Management, Inc.'s
$100,000,000 principal amount of 10% Senior Subordinated Notes due 2003
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FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of April 19, 1994,
among AMERICAN HEALTHCARE MANAGEMENT, INC., a corporation duly organized and
existing under the laws of the State of Delaware ("AHM"), ORNDA HEALTHCORP, a
corporation duly organized and existing under the laws of the State of Delaware
(the "Company"), AHM ACQUISITION CO., INC., a corporation duly organized and
existing under the laws of the State of Delaware (the "Co-Obligor") and
NATIONSBANK OF TENNESSEE, NATIONAL ASSOCIATION, a national banking association
duly organized and existing under the laws of the United States (the
"Trustee"), as Trustee under the Indenture hereinafter mentioned.
WITNESSETH
WHEREAS, AHM heretofore executed and delivered to the Trustee
an Indenture dated as of July 28, 1993 (the "Indenture"), providing for the
issuance of $100,000,000 principal amount of AHM's 10% Senior Subordinated
Notes due 2003 (the "Securities");
WHEREAS, in connection with the merger of AHM with and into
the Company pursuant to an Agreement and Plan of Merger between the Company,
AHM Acquisition Co., Inc. and AHM, dated as of November 18, 1993 as amended and
restated as of January 14, 1994, the Company assumed and became liable for, by
operation of law, at the closing of such merger on the date hereof, all of
AHM's debts, liabilities, duties and obligations, including AHM's obligations
under the Indenture;
WHEREAS, the Company desires in and by this First Supplemental
Indenture, pursuant to and contemplated by Sections 801 and 901(1) of the
Indenture, to expressly assume all the obligations of AHM under the Securities
and the Indenture;
WHEREAS, the Co-Obligor desires in and by the First
Supplemental Indenture to expressly assume with the Company the due and
punctual payment of the principal and interest on the Securities;
WHEREAS, Section 901 of the Indenture, "Supplemental
Indentures Without Consent of Holders", provides that provisions of the
Indenture may
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be amended or supplemented without the consent of the Holders with respect to
certain matters therein identified;
WHEREAS, Section 902 of the Indenture, "Supplemental
Indentures with Consent of Holders", provides that provisions of the Indenture
may be amended or supplemented with the consent of the Holders of not less than
a majority in aggregate principal amount of the Outstanding Securities with
respect to matters therein identified;
WHEREAS, the Company and Holders of a majority in aggregate
principal amount of the outstanding Securities have entered into a Waiver and
Consent Agreement dated as of February 3, 1994 (the "Waiver and Consent
Agreement") pursuant to which such Holders consented to the amendments of the
Indenture set forth in Article Four hereof and the waiver of Section 1009 of
the Indenture as described in the Waiver and Consent Agreement, and the Company
agreed to pay interest on the Securities at the rate of 10-1/4% per annum from
and after the date hereof.
WHEREAS, all conditions necessary to authorize the execution
and delivery of this First Supplemental Indenture and to make this First
Supplemental Indenture valid and binding have been complied with or have been
done or performed;
NOW, THEREFORE, in consideration of the above premises, and in
order to comply with the terms of Sections 801 and 901(1) of the Indenture and
to effect the applicable provisions of the Waiver and Consent Agreement, the
Company covenants with the Trustee as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. For all purposes of the Indenture and this
First Supplemental Indenture, except as otherwise expressly provided or unless
the context otherwise requires:
(a) the words "herein", "hereof" and "hereunder"
and other words of similar import refer to the Indenture and this First
Supplemental Indenture as a whole and not to any particular Article, Section or
subdivision; and
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(b) capitalized terms used but not defined herein shall
have the meanings assigned to them in the Indenture.
ARTICLE TWO
ASSUMPTION OF CERTAIN OBLIGATIONS BY THE COMPANY
Section 2.01. The Company and the Co-Obligor hereby
expressly and unconditionally assumes the due and punctual payment of the
principal of (and premium, if any) and interest on all the Securities and the
Company hereby expressly and unconditionally assumes the performance of every
covenant of the Indenture to be performed or observed by AHM as if the Company
had been originally named in the Indenture as the "Company" (as such term is
defined therein).
ARTICLE THREE
REPRESENTATIONS OF THE COMPANY
Section 3.01. The Company hereby represents and warrants to
the Trustee and to the Holders of the Notes as follows:
(a) The Company is a corporation organized and existing
under the laws of the State of Delaware.
(b) On the date hereof, AHM has been merged with and into
the Company.
(c) Immediately after giving effect to the aforementioned
merger, no Event of Default and no event which, after notice or
lapse of time, or both, would become an Event of Default has
happened and is continuing.
ARTICLE FOUR
AMENDMENTS
Section 4.01. The definition of Consolidated Cash Flow
Ratio in Section 101 of the Indenture shall be amended to read, in its
entirety, as follows:
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""Consolidated Cash Flow Ratio" means for any period
the ratio of (i) Consolidated Cash Flow Available for Fixed Charges of
a Person for such period to (ii) the sum of (A) Consolidated Interest
Expense of such Person for such period plus (B) the annual interest
expense (including the amortization of debt discount and all items
which would be included in Consolidated Interest Expense) with respect
to any Debt Incurred or proposed to be Incurred by such Person or its
Consolidated Subsidiaries during such period or since the end of such
period to the extent not included in Clause (ii)(A) calculated as if
incurred at the beginning of such period (variable rate debt shall be
assumed to bear interest at the rate in effect or, in the case of
proposed Debt, which would be in effect, at the time of calculation)
minus (C) Consolidated Interest Expense of such Person with respect to
any Debt that is no longer outstanding, or will no longer be
outstanding as a result of the Incurrence of the Debt proposed to be
Incurred, in each case to the extent included in Clause (ii) (A). The
Consolidated Cash Flow Ratio shall be calculated on the assumption
that the transactions or series of transactions pursuant to which any
Debt had been Incurred during such period or since the end of such
period (including any acquisition of the stock or assets of another
Person consummated in connection with the Incurrence of such Debt)
shall have occurred on the first day of such period."
Section 4.02. Section 101 of the Indenture is hereby
amended to include the definition of "Co-Obligor" which will follow the
definition of "Controlling Person" and will state:
""Co-Obligor" means AHM Acquisition Co., Inc., a corporation
duly organized under the laws of the State of Delaware."
Section 4.03. The definition of Senior Debt in Section 101 of
the Indenture shall be amended by adding the following sentence at the end
thereof:
"For the purpose of determining the obligations of the Co-Obligor to
make payments with respect to the Securities and the relative rights
of any holder of Senior Debt and any holder of a Security against the
Co-Obligor and for no other purpose, each reference to "Company" in
the definition of " Senior Debt" contained in this Indenture shall be
deemed to be a reference to "Co-Obligor" and
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each reference to "Senior Debt" in any provision in this Indenture or
in any Security shall be deemed to be a reference to such definition
as so modified."
Section 4.04. Section 202 of the Indenture is hereby
amended to read, in its entirety, the following:
"Section 202. Form of Face of Security.
ORNDA HEALTHCORP
10-1/4% Senior Subordinated Note due 2003
No. __________ $__________
OrNda HealthCorp, a corporation duly organized and existing
under the laws of Delaware (herein called the "Company," which term
includes any successor Person under the Indenture hereinafter referred
to), or AHM Acquisition Co., Inc., a corporation duly organized and
existing under the laws of Delaware (herein called the "Co-Obligor"),
for value received, hereby promises to pay to ________________, or
registered assigns, the principal sum of _______________ Dollars on
August 1, 2003, and to pay interest thereon from July 28, 1993, or
from the most recent Interest Payment Date to which interest has been
paid or duly provided for, semi-annually on February 1 and August 1 in
each year, commencing February 1, 1994, at the rate of 10% per annum
and from and after the date of the execution and delivery of the First
Supplemental Indenture, at the rate of 10-1/4% per annum, until the
principal hereof is paid or made available for payment, and (to the
extent that the payment of such interest shall be legally enforceable)
at the same rate per annum on any overdue principal and premium and on
any overdue installment of interest until paid as specified on the
reverse hereof.
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of
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business on the Regular Record Date for such interest, which shall be
January 15 or July 15 (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date. Any such interest not
so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be
fixed by the Trustee, notice whereof shall be given to Holders of
Securities not less than 10 days prior to such Special Record Date, or
be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which this Security may
be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture.
Principal of (and premium, if any) and interest on this
Security will be payable at the Corporate Trust Operations Office and
at the office or agency of the Company maintained for that purpose in
the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided,
however, that at the option of the Company or the Co-Obligor, payment
of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security
Register. Interest on this Security shall be computed on the basis of
a 360-day year comprised of twelve 30-day months.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this
place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual
signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company and the Co-Obligor have caused
this instrument to be duly executed by the manual or facsimile
signatures of its authorized officers and its corporate seal to be
affixed or reproduced hereon.
Date of Authentication:
ORNDA HEALTHCORP
By: _________________________
(SEAL)
AHM ACQUISITION CO., INC.
By: _________________________
(SEAL)
This is one of the Securities referred to in the within-mentioned
Indenture.
NATIONSBANK OF TENNESSEE,
NATIONAL ASSOCIATION
as Trustee
By: _________________________
Authorized Officer"
Section 4.05. Section 1001 of the Indenture is hereby
amended to read, in its entirety, the following:
"Section 1001. Payment of Principal, Premium and Interest.
The Company or the Co-Obligor shall duly and punctually pay the
principal of (and premium, if any) and interest on the Securities in
accordance with the terms of the Securities and this Indenture, and
the obligation of each of the Company and the Co-Obligor under this
Section shall be joint and several."
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Section 4.06. Section 1015 of the Indenture is hereby
amended to read, in its entirety, the following:
"Section 1015. Limitation on Certain Asset Dispositions.
(a) The Company shall not, and shall not permit any
Restricted Subsidiary to, make any Asset Disposition (other than an
Asset Disposition permitted under Article Eight, Section 801 hereof)
in one or more transactions in any fiscal year unless:
(i) The Company (or such Subsidiary, as the case
may be) receives consideration at the time of such disposition
at least equal to the fair market value of the shares or the
assets disposed of, as determined in good faith by the Board
of Directors; and
(ii) 100% of the Net Available Proceeds from such
disposition, less Reinvested Amounts (as hereinafter defined),
are applied by the Company (or such Subsidiary, as the case
may be) (A) first, within 360 days of such disposition (or, in
the case of Net Available Proceeds received after the time of
such disposition, within 360 days of receipt thereof), to
repayment of Senior Debt then outstanding under any agreements
or instruments which would require such application or which
would prohibit payments pursuant to Clause (B) following; (B)
second, to the extent Net Available Proceeds are not required
to be applied to Senior Debt as specified in Clause (A), to
purchases of Outstanding Securities (to the extent such an
offer is not prohibited by the terms of any Senior Debt)
pursuant to an Offer to Purchase at a purchase price equal to
100% of their principal amount plus accrued interest to the
date of purchase (provided, however, that installments of
interest whose Stated Maturity is on or prior to the Purchase
Date will be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such at the
close of business on the relevant Regular Record Dates or
Special Record Dates, as the case may be, according to their
terms and the provisions of Article Three, Section 307
hereof); and (C) third, to the extent of any remaining Net
Available Proceeds following completion of the Offer to
Purchase referred to in Clause (B) above, to the repayment,
within 10 days after the Purchase Date of such Offer to
Purchase, of other Senior Debt and, to the extent there is no
such Senior
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Debt, Company Debt that is pari passu with the
Securities and, to the extent there is no such Company Debt,
other Debt of the Company or a Restricted Subsidiary.
Notwithstanding the foregoing, the Company shall not be
required to repurchase or to redeem Debt pursuant to Clause (ii) above
if the Net Available Proceeds, less any amounts ("Reinvested Amounts")
invested within 360 days of the disposition (or, in the case of Net
Available Proceeds received after the time of disposition, within 360
days of receipt thereof) in assets that will be used in the business
of the Company or any Wholly Owned Restricted Subsidiary as such
business is conducted prior to such Asset Disposition or in any
business principally engaged in providing medical or health care
services, are less than $5 million (such lesser amount to be carried
forward on a cumulative basis for purposes of determining the
application of this paragraph). Notwithstanding the foregoing, if any
Restricted Subsidiary in which a Reinvested Amount is invested becomes
an Unrestricted Subsidiary thereafter, then such change in status will
be deemed an Asset Disposition with Net Available Proceeds of cash in
an amount equal to such Reinvested Amount, and such amount of cash
will be applied pursuant to Clause (ii) above (subject to this
paragraph).
(b) The Company shall mail the Offer Document for an
Offer to Purchase required pursuant to Section 1015(a) not more than
360 days after consummation of the disposition or, if proceeds are
received after the time of the disposition, within 360 days of receipt
of such proceeds giving rise to such requirement referred to in
Section 1015(a). The aggregate principal amount of the Securities to
be offered to be purchased pursuant to the Offer to Purchase shall
equal the Net Available Proceeds, less Reinvested Amounts, required to
be made available therefor pursuant to Clause (ii) (B) (rounded down
to the next lowest integral multiple of $1,000). Each Holder shall be
entitled to tender all or any portion of the Securities owned by such
Holder pursuant to the Offer to Purchase, subject to the requirement
that any portion of a Security tendered must be tendered in an
integral multiple of $1,000 principal amount. The Company shall
comply with the requirements of Rule 14e-1 under the Exchange Act and
any other securities laws and regulations thereunder to the extent
such laws and regulations are applicable in connection with the
repurchase of the Securities pursuant to this Section.
The Company shall not be entitled to any credit against its
obligations under this Section hereof for the principal amount of any
Securities acquired by the Company otherwise than pursuant to the
Offer to Purchase pursuant to this Section.
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(c) Not later than the date of the Offer Document with
respect to an Offer to Purchase pursuant to this Section, the Company
shall deliver to the Trustee an Officers' Certificate as to (i) the
Purchase Amount, (ii) the allocation of the Net Available Proceeds
from the Asset Disposition pursuant to which such offer is being made,
including, if amounts are invested in assets for the business, the
actual assets acquired and a statement that such assets shall be used
in the business as such business was conducted prior to such Asset
Disposition or in any business principally engaged in providing
medical or health care services and (iii) the compliance of such
allocation with the provisions of Section 1015(a).
The Company shall perform its obligations specified in the
Offer Document for the Offer to Purchase. On or prior to the Purchase
Date, the Company shall (i) accept for payment (pro rata, if
necessary, and in no case in an aggregate principal amount exceeding
the Purchase Amount) Securities or portions thereof tendered pursuant
to the Offer to Purchase, (ii) deposit with the Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in
trust as provided in Article Ten, Section 1003 hereof) money
sufficient to pay the purchase price of all Securities or portions
thereof so accepted and (iii) deliver or cause to be delivered to the
Trustee all Securities so accepted together with an Officers'
Certificate stating the Securities or portions thereof accepted for
payment by the Company. The Paying Agent (or the Company, if so
acting) shall promptly mail or deliver to Holders of Securities so
accepted payment in an amount equal to the purchase price specified in
Section 1015(a)(ii)(B), and the Trustee shall promptly authenticate
and mail or deliver to such Holders a new Security equal in principal
amount to any unpurchased portion of the Security surrendered. Any
Security not accepted for payment shall be promptly mailed or
delivered by the Company to the Holder thereof. The Company shall
publicly announce the results of the Offer to Purchase on or as soon
as practicable after the Purchase Date.
(d) Notwithstanding the foregoing, this Section shall not
apply to any Asset Disposition which constitutes a transfer,
conveyance, sale, lease or other disposition of all or substantially
all of the Company's properties or assets within the meaning of
Article Eight, Section 801 hereof."
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Section 4.07. Section 1201 of the Indenture shall be amended
by adding the following new paragraph at the end thereof:
"Co-Obligor agrees to be bound by and comply with the terms
and conditions of this Article Twelve as if each reference to
"Company" in this Article Twelve were a reference to "Co-Obligor"."
ARTICLE FIVE
MISCELLANEOUS
Section 5.01. All of the terms and conditions of the
Indenture shall remain in full force and effect.
Section 5.02. The Trustee accepts the modification of the
Indenture effected by this First Supplemental Indenture, but only upon the
terms and conditions set forth in the Indenture. Without limiting the
generality of the foregoing, the Trustee assumes no responsibility for the
correctness of the recitals herein contained, which shall be taken as the
statements of the Company. The Trustee makes no representation and shall have
no responsibility as to the validity of this First Supplemental Indenture.
Section 5.03. In case any provision in this First
Supplemental Indenture shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 5.04. This First Supplemental Indenture shall be
deemed to be a contract made under the laws of the State of New York and for
all purposes shall be governed by and construed in accordance with the laws of
the State of New York without regard to principles of conflicts of laws.
Section 5.05. This First Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but such counterparts shall together constitute but
one and the same instrument.
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Section 5.06. From and after the date hereof, all Securities
shall bear the following notation which may be stamped or typewritten thereon:
"On April 19, 1994, American Healthcare Management, Inc. was
merged with and into OrNda Healthcorp which has, along with
AHM Acquisition Co., Inc., assumed the due and punctual
payment of the principal of (any premium, if any) and interest
on the 10% Senior Subordinated Notes due 2003; and the
performance by OrNda HealthCorp of every covenant of the
Indenture on the part of American Healthcare Management, Inc.
to be performed or observed. From and after April 19, 1994,
OrNda HealthCorp or AHM Acquisition Co., Inc. shall pay
interest on the 10% Senior Subordinated Notes due 2003 at the
rate of 10-1/4% per annum."
If the Company shall so determine, new Securities so modified
as to conform to the Indenture as hereby supplemented, in form satisfactory to
the Trustee, may at any time hereafter be prepared and executed by the Company
and authenticated and delivered by the Trustee in exchange for Securities then
Outstanding, and thereafter the notation herein provided shall no longer be
required. Anything herein or in the Indenture to the contrary notwithstanding,
the failure to affix the notation herein provided to any Security or to
exchange any Security for a new Security modified as herein provided shall not
affect any of the rights of the Holder of such Security.
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IN WITNESS WHEREOF, AHM, the Company, the Co-Obligor and the
Trustee have caused their names to be signed hereto by their respective
officers thereunder duly authorized and their respective corporate seals, duly
attested, to be hereunto duly affixed, all as of the day and the year first
above written.
AMERICAN HEALTHCARE MANAGEMENT, INC.
By: /s/ Steven L. Volla
[SEAL] _____________________________
Name: Steven L. Volla
Title: Chairman, President & CEO
Attest:
/s/ Robert M. Dubbs
______________________________________________
ORNDA HEALTHCORP
[SEAL] By: /s/ Keith B. Pitts
_____________________________
Name: Keith B. Pitts
Title: Executive Vice President & CEO
Attest:
/s/ James H. Johnson
______________________________________________
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AHM ACQUISITION CO., INC.
By: /s/ Keith B. Pitt
[SEAL] _____________________________
Name:
Title:
Attest:
/s/ James H. Johnson
______________________________________________
NATIONSBANK OF TENNESSEE,
NATIONAL ASSOCIATION
By: /s/ Tamara L. Johnston
[SEAL] _____________________________
Name: Tamara L. Johnston
Title: Vice President
Attest:
/s/ Gina Ewley
______________________________________________
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STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the 19th day of April, 1994, before me personally came
Steven L. Volla
_________________, to me known, who, being by me duly sworn, did depose and say
President & CEO
that he is the _____________________ of AMERICAN HEALTHCARE MANAGEMENT, INC.,
one of the corporations described in and which executed the foregoing
instrument; that the seal affixed to said instrument is such corporate seal;
that is was so affixed by the authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
/s/ Daniel Weisberg
__________________________
Daniel Weisberg
Notary Public, State of New York
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the 19th day of April, 1994, before me personally came
Keith B. Pitts
__________________, to me known, who, being duly sworn, did depose and say that
Executive VP & CFO
he is the _____________________ of ORNDA HEALTHCORP, one of the corporations
describe in and which executed the foregoing instrument; that the seal affixed
to said instrument is such corporate seal; that is was so affixed by the
authority of the Board of Directors of said corporation; and that he signed his
name thereto by like authority.
/s/ Daniel Weisberg
__________________________
Daniel Weisberg
Notary Public, State of New York
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STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the 19th day of April, 1994, before me personally came
Keith B. Pitts
__________________, to me known, who, being duly sworn, did depose and say that
Executive VP & CEO
he is the _____________________ of AHM ACQUISITION CO., INC. one of the
corporations describe in and which executed the foregoing instrument; that the
seal affixed to said instrument is such corporate seal; that is was so affixed
by the authority of the Board of Directors of said corporation; and that he
signed his name thereto by like authority.
/s/ Daniel Weisberg
__________________________
Notary Public, State of New York
STATE OF TENNESSEE )
ss.:
COUNTY OF DAVIDSON )
19th April
On the ___ day of ________, 1994, before me personally came
Tamara L. Johnston
__________________, to me known, who, being duly sworn, did depose and say that
Vice President
he is the _____________________ of NATIONSBANK OF TENNESSEE, NATIONAL
ASSOCIATION, one of the corporations describe in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that is was so affixed by
the authority of the Board of Directors of said corporation; and that he signed
his name thereto by like authority.
/s/ Laye McElliston
__________________________
Commission expires
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