CONSENT AND FIRST AMENDMENT
Exhibit 10.2
CONSENT AND FIRST AMENDMENT
THIS CONSENT AND FIRST AMENDMENT (this “Amendment”), dated as of March 11, 2013, to the Credit Agreement referenced below is by and among Acadia Healthcare Company, Inc., a Delaware corporation (the “Borrower”), the Guarantors identified on the signature pages hereto, the Lenders identified on the signature pages hereto and Bank of America, N.A., in its capacity as Administrative Agent (in such capacity, the “Administrative Agent”).
W I T N E S S E T H
WHEREAS, revolving credit and term loan facilities have been extended to the Borrower pursuant to the Amended and Restated Credit Agreement dated as of December 31, 2012 (as amended, modified, supplemented, increased and extended from time to time, the “Credit Agreement”), by and among the Borrower, the Guarantors identified therein, the Lenders identified therein and the Administrative Agent; and
WHEREAS, the Borrower has requested certain modifications to the Credit Agreement and the requisite Lenders have agreed to such modifications to the Credit Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used herein but not otherwise defined herein shall have the meanings provided to such terms in the Credit Agreement.
2. Consent. Each Lender signing below hereby consents that its portion of each payment due March 31, 2016, June 30, 2016 and September 30, 2016 in the original principal amount of $9,375,000, as set forth in the table in Section 2.07(c) of the Credit Agreement, shall not be due until March 31, 2017, June 30, 2017 and September 30, 2017, respectively.
3. Amendments. The Credit Agreement is amended as follows:
3.1 Clause (b)(xvii) of the definition of “Consolidated EBITDA” in Section 1.01 is amended to read as follows:
(xvii) any fees, expenses or charges related to any repayment of Senior Unsecured Indebtedness with the proceeds of any Equity Issuance made by the Borrower, provided that such fees, expenses or charges are deducted from, or made with, the proceeds of such Equity Issuance;
3.2 The definition of “Consolidated Leverage Ratio” in Section 1.01 is amended to read as follows:
“Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a) the difference of (i) Consolidated Funded Indebtedness as of such date minus (ii) from the date of the First Amendment to this Agreement through December 31, 2013, the amount of unrestricted cash and Cash Equivalents held by the Borrower and its Subsidiaries as of such date to (b) Consolidated EBITDA for the period of the four fiscal quarters most recently ended; provided that clause (a)(ii) shall not apply for purposes of calculating the Applicable Rate.
3.3 The definition of “Consolidated Senior Secured Leverage Ratio” in Section 1.01 is amended to read as follows:
“Consolidated Senior Secured Leverage Ratio” means, as of any date of determination, the ratio of (a) the difference of (i) Consolidated Funded Indebtedness (other than Funded Indebtedness that is not secured by a Lien on any property of the Borrower or any Subsidiary) as of such date minus (ii) from the date of the First Amendment to this Agreement through December 31, 2013, the amount of unrestricted cash and Cash Equivalents held by the Borrower and its Subsidiaries as of such date to (b) Consolidated EBITDA for the period of the four fiscal quarters most recently ended.
3.4 Clause (b) of Section 8.17 is amended to read as follows:
(b) Make (or give any notice with respect thereto) any voluntary or optional payment or prepayment or redemption or acquisition for value of (including without limitation, by way of depositing money or securities with the trustee with respect thereto before due for the purpose of paying when due), refund, refinance or exchange of any Senior Unsecured Indebtedness, other than the purchase, payment, prepayment or redemption of Senior Unsecured Indebtedness (including any fees, expenses or charges related to such purchase, payment, prepayment or redemption of Senior Unsecured Indebtedness) with up to 50% of the Net Cash Proceeds of any Equity Issuance so long as such Net Cash Proceeds are used to make such purchase, payment, prepayment or redemption (including any related fees, expenses or charges) within 120 days of the receipt of such Net Cash Proceeds by the Borrower or any Subsidiary.
4. Conditions Precedent. This Amendment shall become effective as of the date hereof upon receipt by the Administrative Agent of counterparts of this Amendment executed by the Borrower, the Guarantors, the requisite Lenders and the Administrative Agent.
5. Amendment is a “Loan Document”. This Amendment is a Loan Document and all references to a “Loan Document” in the Credit Agreement and the other Loan Documents (including, without limitation, all such references in the representations and warranties in the Credit Agreement and the other Loan Documents) shall be deemed to include this Amendment.
6. Representations and Warranties; No Default. Each Loan Party represents and warrants to the Administrative Agent and each Lender that after giving effect to this Amendment (a) the representations and warranties of each Loan Party contained in the Credit Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection with the Credit Agreement or any other Loan Document are true and correct in all material respects on and as of the date hereof, except to the extent that such representations and warranties specifically refer to an earlier date, in which case such representations and warranties are true and correct in all material respects as of such earlier date, and (b) no Default exists.
7. Reaffirmation of Obligations. Each Loan Party (a) acknowledges and consents to all of the terms and conditions of this Amendment, (b) affirms all of its obligations under the Loan Documents and (c) agrees that this Amendment does not operate to reduce or discharge such Loan Party’s obligations under the Loan Documents.
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8. Reaffirmation of Security Interests. Each Loan Party (a) affirms that each of the Liens granted in or pursuant to the Loan Documents are valid and subsisting and (b) agrees that this Amendment does not in any manner impair or otherwise adversely affect any of the Liens granted in or pursuant to the Loan Documents.
9. No Other Changes. Except as modified hereby, all of the terms and provisions of the Loan Documents shall remain in full force and effect.
10. Counterparts; Delivery. This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of this Amendment by facsimile or other electronic imaging means shall be effective as an original.
11. Governing Law. This Amendment shall be deemed to be a contract made under, and for all purposes shall be construed in accordance with, the laws of the State of New York.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Consent and First Amendment to be duly executed as of the date first above written.
| BORROWER: | ACADIA HEALTHCARE COMPANY, INC., | |||||
| a Delaware corporation | ||||||
| By: | /s/ Xxxxx Xxxxxx | |||||
| Name: |
Xxxxx Xxxxxx | |||||
| Title: |
President | |||||
| GUARANTORS: | ABILENE BEHAVIORAL HEALTH, LLC, | |||||
| a Delaware limited liability company | ||||||
| ACADIA - YFCS HOLDINGS, INC., a Delaware corporation | ||||||
| ACADIA MANAGEMENT COMPANY, LLC, | ||||||
| a Delaware limited liability company | ||||||
| ACADIA MERGER SUB, LLC, a Delaware limited liability company | ||||||
| ACADIANA ADDICTION CENTER, LLC, | ||||||
| a Delaware limited liability company | ||||||
| AMICARE BEHAVIORAL CENTERS, LLC, | ||||||
| a Delaware limited liability company | ||||||
| AMICARE CONTRACT SERVICES, LLC, | ||||||
| a Delaware limited liability company | ||||||
| ASCENT ACQUISITION CORPORATION, an Arkansas corporation | ||||||
| ASCENT ACQUISITION CORPORATION - CYPDC, an Arkansas corporation | ||||||
| ASCENT ACQUISITION CORPORATION - PSC, an Arkansas corporation | ||||||
| BCA OF DETROIT, LLC, a Delaware limited liability company | ||||||
| BCA REAL ESTATE HOLDINGS, LLC, a Delaware limited liability company | ||||||
| BEHAVIORAL CENTERS OF AMERICA, LLC, | ||||||
| a Delaware limited liability company | ||||||
| BEHAVIORAL HEALTH ONLINE, INC., a Massachusetts corporation | ||||||
| CEDAR CREST CLINIC, a Texas non-profit corporation | ||||||
| CHILD & YOUTH PEDIATRIC DAY CLINICS, INC, an Arkansas corporation | ||||||
| CHILDREN’S BEHAVIORAL SOLUTIONS, LLC, | ||||||
| a Delaware limited liability company | ||||||
| CHILDRENS MEDICAL TRANSPORTATION SERVICES, LLC, | ||||||
| an Arkansas limited liability company | ||||||
| COMMODORE ACQUISITION SUB, LLC, | ||||||
| a Delaware limited liability company | ||||||
| DETROIT BEHAVIORAL INSTITUTE, INC., a Massachusetts corporation | ||||||
| FORT XXXXX HEALTHCARE REAL ESTATE, L.C., | ||||||
| a Texas limited liability company | ||||||
| FSRE, LLC, an Arkansas limited liability company | ||||||
| FVRE, LLC, an Arkansas limited liability company | ||||||
| GENERATIONS BEHAVIORAL HEALTH - GENEVA, LLC, | ||||||
| an Ohio limited liability company | ||||||
| By: | /s/ Xxxxx Xxxxxx | |||||
| Name: | Xxxxx Xxxxxx | |||||
| Title: | Vice President and Assistant Secretary | |||||
[SIGNATURE PAGES CONTINUE]
| XXXXXXXXX CENTER, LLC, a Delaware limited liability company | ||||||
| HABILITATION CENTER, INC., an Arkansas corporation | ||||||
| HEALTHCARE MANAGEMENT AND INVESTMENT OF OHIO, LLC, an Ohio limited liability company | ||||||
| HEP BCA HOLDINGS CORP., a Delaware corporation | ||||||
| HERMITAGE BEHAVIORAL, LLC, a Delaware limited liability company | ||||||
| HMIH CEDAR CREST, LLC, a Delaware limited liability company | ||||||
| KIDS BEHAVIORAL HEALTH OF MONTANA, INC., a Montana corporation | ||||||
| LAKELAND HOSPITAL ACQUISITION CORPORATION, a Georgia corporation | ||||||
| LAKEVIEW BEHAVIORAL HEALTH SYSTEM LLC, a Delaware limited liability company | ||||||
| LINDEN BCA BLOCKER CORP., a Delaware corporation | ||||||
| MED PROPERTIES, INC., an Arkansas corporation | ||||||
| MEDUCARE TRANSPORT, L.L.C., an Arkansas limited liability company | ||||||
| MEMORIAL HOSPITAL ACQUISITION CORPORATION, a New Mexico corporation | ||||||
| MILLCREEK MANAGEMENT CORPORATION, a Georgia corporation | ||||||
| MILLCREEK SCHOOL OF ARKANSAS, INC., an Arkansas corporation | ||||||
| MILLCREEK SCHOOLS INC., a Mississippi corporation | ||||||
| NORTHEAST BEHAVIORAL HEALTH, LLC, a Delaware limited liability company | ||||||
| OHIO HOSPITAL FOR PSYCHIATRY, LLC, an Ohio limited liability company | ||||||
| OPTIONS COMMUNITY BASED SERVICES, INC., an Indiana corporation | ||||||
| OPTIONS TREATMENT CENTER ACQUISITION CORPORATION, an Indiana corporation | ||||||
| PEDIATRIC SPECIALTY CARE, INC., an Arkansas corporation | ||||||
| PEDIATRIC SPECIALTY CARE PROPERTIES, LLC, an Arkansas limited liability company | ||||||
| PHC MEADOWWOOD, INC., a Delaware corporation | ||||||
| PHC OF MICHIGAN, INC., a Massachusetts corporation | ||||||
| PHC OF NEVADA, INC., a Massachusetts corporation | ||||||
| PHC OF UTAH, INC., a Massachusetts corporation | ||||||
| PHC OF VIRGINIA, INC., a Massachusetts corporation | ||||||
| PINEWOOD ENTERPRISES, L.C., a Texas limited liability company | ||||||
| PINEWOOD HEALTHCARE REALTY, L.P., a Texas limited partnership | ||||||
| PINEWOOD SERVICES, INC., a Texas corporation | ||||||
| PINEY RIDGE TREATMENT CENTER, LLC, a Delaware limited liability company | ||||||
| PRC I, INC., a Delaware corporation | ||||||
| PSYCHIATRIC RESOURCE PARTNERS, INC., a Delaware limited liability company | ||||||
| REBOUND BEHAVIORAL HEALTH, LLC, a South Carolina limited liability company | ||||||
| By: | /s/ Xxxxx Xxxxxx | |||||
| Name: | Xxxxx Xxxxxx | |||||
| Title: | Vice President and Assistant Secretary | |||||
[SIGNATURE PAGES CONTINUE]
| RED RIVER HOSPITAL, LLC, a Delaware limited liability company | ||||||
| REHABILITATION CENTERS, INC., a Mississippi corporation | ||||||
| RENAISSANCE RECOVERY, INC., a Massachusetts corporation | ||||||
| RESOLUTE ACQUISITION CORPORATION, an Indiana corporation | ||||||
| RESOURCE COMMUNITY BASED SERVICES, INC., an Indiana corporation | ||||||
| RIVERWOODS BEHAVIORAL HEALTH, LLC, a Delaware limited liability company | ||||||
| ROLLING HILLS HOSPITAL, INC., an Oklahoma corporation | ||||||
| ROLLING HILLS PROPERTIES, INC., an Oklahoma corporation | ||||||
| RTC RESOURCE ACQUISITION CORPORATION, an Indiana corporation | ||||||
| SBOF-BCA HOLDINGS CORPORATION, a Delaware corporation | ||||||
| SEVEN HILLS HOSPITAL, INC., a Delaware corporation | ||||||
| SHAKER CLINIC, LLC, an Ohio limited liability company | ||||||
| SONORA BEHAVIORAL HEALTH HOSPITAL, LLC, a Delaware limited liability company | ||||||
| SOUTHWESTERN CHILDREN’S HEALTH SERVICES, INC., an Arizona corporation | ||||||
| SOUTHWOOD PSYCHIATRIC HOSPITAL, INC., a Pennsylvania corporation | ||||||
| STONE CREST CLINC, a Michigan non-profit corporation | ||||||
| SUCCESS ACQUISITION CORPORATION, an Indiana corporation | ||||||
| SUNCOAST BEHAVIORAL, LLC, a Delaware limited liability company | ||||||
| SW BEHAVIORAL, LLC, a Delaware limited liability company | ||||||
| TBA TEXARKANA, L.L.C., a Texas limited liability company | ||||||
| TEN LAKES CENTER, LLC, a Delaware limited liability company | ||||||
| TK BEHAVIORAL, LLC, a Delaware limited liability company | ||||||
| VALLEY BEHAVIORAL HEALTH SYSTEM, LLC, a Delaware limited liability company | ||||||
| VANTAGE POINT BEHAVIORAL HEALTH, LLC, a Texas limited liability company | ||||||
| VERMILION HOSPITAL, LLC, a Delaware limited liability company | ||||||
| VILLAGE BEHAVIORAL HEALTH, LLC, a Delaware limited liability company | ||||||
| VISTA BEHAVIORAL HEALTH, LLC, a Delaware limited liability company | ||||||
| WELLPLACE, INC., a Massachusetts corporation | ||||||
| YFCS HOLDINGS - GEORGIA, INC., a Georgia corporation | ||||||
| YFCS MANAGEMENT, INC., a Georgia corporation | ||||||
| YOUTH AND FAMILY CENTERED SERVICES OF FLORIDA, INC., a Florida corporation | ||||||
| YOUTH AND FAMILY CENTERED SERVICES OF NEW MEXICO, INC., a New Mexico corporation | ||||||
| YOUTH AND FAMILY CENTERED SERVICES, INC., a Georgia corporation | ||||||
| By: |
/s/ Xxxxx Xxxxxx | |||||
| Name: | Xxxxx Xxxxxx | |||||
| Title: | Vice President and Assistant Secretary | |||||
[SIGNATURE PAGES CONTINUE]
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A., as Administrative Agent
| By: | /s/ Xxxxxx Xxxxx | |||||
| Name: | Xxxxxx Xxxxx | |||||
| Title: | Assistant Vice President | |||||
| LENDERS: | BANK OF AMERICA, N.A., | |||||
| as a Lender, L/C Issuer and Swing Line Lender | ||||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||||
| Name: | Xxxxxxx X. Xxxxx | |||||
| Title: | Senior Vice President | |||||
| FIFTH THIRD BANK | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||||
| Name: | Xxxxxxx X. Xxxxxxxx | |||||
| Title: | Senior Vice President | |||||
| CITIBANK, N.A. | ||||||
| By: | /s/ Xxxxx Xxxxxxx | |||||
| Name: | Xxxxx Xxxxxxx | |||||
| Title: | Vice President | |||||
| ROYAL BANK OF CANADA | ||||||
| By: | /s/ Xxxxxx X. Xxxx | |||||
| Name: | Xxxxxx X. Xxxx | |||||
| Title: | Authorized Signatory | |||||
| JEFFERIES FINANCE LLC | ||||||
| By: | /s/ E. Xxxxxx Xxxx | |||||
| Name: | E. Xxxxxx Xxxx | |||||
| Title: | Managing Director | |||||
| REGIONS BANK | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||
| Name: | Xxxxxxx X. Xxxxxxx | |||||
| Title: | Senior Vice President | |||||
| XXXXXXX XXXXX BANK, N.A. | ||||||
| By: | /s/ Xxxxxxxxx X. Xxxx | |||||
| Name: | Xxxxxxxxx X. Xxxx | |||||
| Title: | Senior Vice President | |||||
[SIGNATURE PAGES CONTINUE]
| GENERAL ELECTRIC CAPITAL CORPORATION | ||||||
| By: | /s/ Xxxx Xxxx | |||||
| Name: | Xxxx Xxxx | |||||
| Title: | Duly Authorized Signatory | |||||
| GE CAPITAL BANK (f/k/a GE CAPITAL FINANCIAL INC.) | ||||||
| By: | /s/ Xxxxxxx-Xxxxx Glade | |||||
| Name: | Xxxxxxx-Xxxxx Glade | |||||
| Title: | Duly Authorized Signatory | |||||
| CADENCE BANK, N.A. | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||||
| Name: | Xxxxxxx X. Xxxxxxxx | |||||
| Title: | EVP | |||||
| CAPITAL ONE, N.A. | ||||||
| By: | /s/ Xxx Xxxxx | |||||
| Name: | Xxx Xxxxx | |||||
| Title: | Authorized Signatory | |||||
| BANK OF MONTREAL | ||||||
| By: | /s/ Xxxxxxx Xx | |||||
| Name: | Xxxxxxx Xx | |||||
| Title: | Director | |||||
| PINNACLE BANK | ||||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||||
| Name: | Xxxxxxx X. Xxxxx | |||||
| Title: | SVP | |||||
| FIRST TENNESSEE BANK | ||||||
| By: | /s/ Xxxxx Xxxxxx | |||||
| Name: | Xxxxx Xxxxxx | |||||
| Title: | Bank Officer | |||||
| CAPSTAR BANK | ||||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||||
| Name: | Xxxxxxx X. Xxxxx | |||||
| Title: | SVP | |||||
[SIGNATURE PAGES CONTINUE]
| XXXXXXXXX GROUP INC. | ||||||||
| By: | /s/ Xxxx Xxxxxxxx | |||||||
| Name: | Xxxx Xxxxxxxx | |||||||
| Title: | Global Treasurer | |||||||
| JFIN CLO 2007 LTD | ||||||||
| BY: | JEFFERIES FINANCE LLC, as Collateral Manager | |||||||
| By: | /s/ E. Xxxxxx Xxxx | |||||||
| Name: | E. Xxxxxx Xxxx | |||||||
| Title: | Managing Director | |||||||
