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EXHIBIT 10.2
SIXTH AMENDMENT TO LETTER LOAN AGREEMENT
THIS SIXTH AMENDMENT TO LETTER LOAN AGREEMENT (the "Amendment"), dated
as of November 15, 2000, is among NORTH CENTRAL DEVELOPMENT COMPANY, a Texas
corporation (the "Borrower"), HORIZON HEALTH CORPORATION, a Delaware corporation
(formerly known as Horizon Mental Health Management, Inc. and hereinafter the
"Parent"), HORIZON MENTAL HEALTH MANAGEMENT, INC., a Texas corporation
("Management"), MENTAL HEALTH OUTCOMES, INC., a Delaware corporation
("Outcomes"), HHMC PARTNERS, INC., a Delaware corporation ("Partners"),
GERIATRIC MEDICAL CARE, INC., a Tennessee corporation ("Geriatric"), SPECIALTY
REHAB MANAGEMENT, INC., a Delaware corporation ("Specialty"), HORIZON BEHAVIORAL
SERVICES, INC., a Florida corporation (formerly FPM Behavioral Health, Inc. and
herein "HBS"), FLORIDA PSYCHIATRIC ASSOCIATES, INC., a Florida corporation
("FPA"), FLORIDA PSYCHIATRIC MANAGEMENT, INC., a Florida corporation ("FPMI"),
FPMBH OF TEXAS, INC., a Delaware corporation ("Texas"), HMHM of Tennessee, Inc.,
a Tennessee corporation, Horizon Behavioral Services-Colorado, Inc., a Colorado
corporation, and THE CHASE MANHATTAN BANK (as successor in interest by merger to
the Chase Bank of Texas, National Association, formerly known as Texas Commerce
Bank National Association and herein the "Bank").
RECITALS:
WHEREAS, Borrower, Parent, Management, Outcomes, and Bank have entered
into that certain Letter Loan Agreement dated as of December 20, 1995 (as the
same has been amended as hereinafter described, the "Loan Agreement"). Pursuant
to the Loan Agreement each of Parent, Management, Outcomes, Hhg Colorado, Inc.,
a Colorado corporation ("Colorado"), and Partners executed: (a) a separate
Guaranty Agreement dated as of December 20, 1995 (the "Original Guaranty
Agreements") and (b) a separate Security Agreement dated as of December 20, 1995
(the "Original Security Agreements").
WHEREAS, Parent, Bank in its individual capacity and as agent for
itself and the other lending institutions party thereto, Bank of America, N.A.
(formerly known as Bank of America National Trust and Savings Association),
Comerica Bank-Texas, Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A.,
"Rabobank Nederland", New York Branch, and Banque Paribas, Houston Agency have
entered into that certain Credit Agreement dated as of December 9, 1997 (as
amended, the "Existing Credit Agreement").
WHEREAS, Borrower, Parent, Management, Outcomes, Colorado, Partners,
Geriatric, Specialty, Acorn Behavioral Healthcare Management Corporation, a
Pennsylvania corporation ("Acorn"), Florida Professional Psychological Services,
Inc., a Florida corporation ("FPPS"), and Bank entered into a First Amendment to
Letter Loan Agreement and Note Modification Agreement, dated as of December 9,
1997 (the "First Amendment"), amending the Loan Agreement and adding Geriatric,
Specialty, Acorn, and FPPS as guarantors to the Loan Agreement. Pursuant to the
First Amendment, the Original Guaranty Agreements were amended and restated and
Geriatric, Speciality, Acorn and FPPS were added as parties thereto under one
Guaranty Agreement (Synthetic Lease) dated December 9, 1997 executed in favor of
the Bank (as the same has been and may hereafter be amended or otherwise
modified the "Guaranty Agreement"), and the Original Security Agreements were
amended and restated and Geriatric, Speciality, Acorn and FPPS were added as
parties thereto under one Security Agreement (Synthetic Lease) dated December 9,
1997 with the Bank (as the same has been and may hereafter be amended or
otherwise modified, the "Security Agreement").
SIXTH AMENDMENT TO LETTER LOAN AGREEMENT, Page 1
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WHEREAS, Borrower, Parent, Management, Outcomes, Colorado, Geriatric,
Specialty, Acorn, Partners, FPPS, and Bank entered into a Consent Letter, dated
as of April 30, 1998, consenting to the acquisition by Parent of FPM Behavioral
Health, Inc. (who is now Horizon Behavioral Services, Inc. and is referred to
herein as "HBS"). Pursuant to such Consent Letter, HBS entered into a Subsidiary
Joinder Agreement, dated as of June 1, 1998, joining into the Loan Agreement,
the Guaranty Agreement and the Security Agreement as a guarantor and debtor
thereunder.
WHEREAS, pursuant to Parent's acquisition of HBS, each of HBS's
subsidiaries, Arizona Psychiatric Affiliates, Inc. ("APA"), Florida Psychiatric
Associates, Inc. ("FPA"), FPM/Hawaii, Inc. ("Hawaii"), FPMI, FPM of Louisiana,
Inc. ("Louisiana"), FPM Management, Inc. ("FPMMI"), FPM of Ohio, Inc. ("Ohio"),
FPM of Utah, Inc. ("Utah"), FPM/Southeast, Inc. ("Southeast"), FPM of West
Virginia, Inc. ("West Virginia"), FPMBH of Arizona, Inc., a Delaware corporation
("Arizona"), FPMBH Clinical Services, Inc. ("Clinical"), and Texas, entered into
a separate Subsidiary Joinder Agreement, dated as of June 1, 1998, joining into
the Loan Agreement, the Guaranty Agreement and the Security Agreement as a
guarantor and debtor thereunder ("Texas").
WHEREAS, the following corporate restructuring occurred: (a) FPPS
merged with and into HBS effective as of June 4, 1998 ("FPMBH Merger"), (b)
Hawaii, FPMMI, Louisiana, Ohio, Utah, West Virginia, and Southeast were merged
with and into HBS effective as of September 1, 1998 and (c) Clinical merged with
and into FPA effective as of September 10, 1998 and APA merged with and into FPA
effective as of September 24, 1998 (collectively, the "Florida Psychiatric
Mergers").
WHEREAS, Borrower, Parent, Management, Outcomes, Colorado, Geriatric,
Specialty, Acorn, Partners, HBS, FPA, FPMI, Arizona, Texas, and Bank entered
into a Second Amendment to Credit Agreement and Third Amendment to Letter Loan
Agreement, dated as of September 30, 1998, pursuant to which: (i) certain
provisions of the Loan Agreement were amended, (ii) the Bank consented to HBS's
acquisition of all of the shares of Choicehealth, Inc., a Colorado corporation
("Choice"), (iii) the Bank consented to Parent's contribution to HBS of one
hundred percent (100%) of the issued and outstanding shares of capital stock of
Acorn, and (iv) the Bank consented to the Florida Psychiatric Mergers and FPMBH
Merger.
WHEREAS, Choice entered into a Subsidiary Joinder Agreement, dated as
of October 5, 1998, joining the Loan Agreement, the Guaranty Agreement and the
Security Agreement as guarantor and debtor thereunder.
WHEREAS, Borrower, Parent, Management, Outcome, Colorado, Geriatric,
Specialty, Acorn, Partners, HBS, FPA, FPMI, Arizona, Texas, Choice, and Bank
entered into a Third Amendment to Credit Agreement and Fourth Amendment to
Letter Loan Agreement, dated as of November 6, 1998, amending certain provisions
of the Loan Agreement.
WHEREAS, Resources in Employee Assistance and Corporate Health, Inc., a
New Jersey corporation ("Reach"), a wholly-owned subsidiary of HBS, entered into
a Subsidiary Joinder Agreement, dated as of March 31, 1999, joining into the
Loan Agreement, the Guaranty Agreement and the Security Agreement as guarantor
and debtor thereunder.
WHEREAS, Borrower, Parent, Management, Outcomes, Geriatric, Specialty,
Partners, HBS, FPA, FPM, Texas, Choice, Reach, and Bank entered into a Fourth
Amendment to Credit Agreement and Fifth Amendment to Letter Loan Agreement,
dated as of October 12, 1999, amending certain provisions of the Loan Agreement.
WHEREAS, Acron was merged with and into HBS on June 2, 2000; Choice was
dissolved on January 19, 2000; Colorado was dissolved on January 19, 1999;
Arizona was merged with and into HBS on December 17, 1998; and Reach was
dissolved on August 10, 2000.
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WHEREAS, Management has created a new subsidiary, HMHM of Tennessee,
Inc., a Tennessee corporation (herein "HMHM"); HBS created two new subsidiaries,
Horizon Behavioral Services-Colorado, Inc., a Colorado corporation ("HBS CO")
and Horizon Behavioral Services of California, Inc., a California corporation
("HBS CA") and Texas created a new subsidiary, FPM Behavioral Health Services,
Inc., a Delaware corporation ("FPM"). In connection with the creation of the
forgoing subsidiaries, each of HMHM and HBS CO entered into a Subsidiary Joinder
Agreement, dated as of November 15, 2000, joining into the Loan Agreement, the
Guaranty Agreement and the Security Agreement as a guarantor and debtor
thereunder.
WHEREAS, as a result of and after giving effect to the foregoing
transactions, Parent, Management, Outcomes, Geriatric, Speciality, Partners,
HBS, FPA, FPMI, Texas, HMHM, and HBS CO are Guarantors as of the date of this
Amendment.
WHEREAS, Parent, Management, the banks party thereto, and Bank as agent
are entering into that certain Amended and Restated Credit Agreement, dated as
of the date hereof, amending the Existing Credit Agreement in its entirety
(herein the "Amended and Restated Credit Agreement").
WHEREAS, Borrower, Bank, and the other parties hereto now desire to
further amend the Loan Agreement as herein set forth.
NOW, THEREFORE, in consideration of the premises herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
Definitions
Section 1.1 Definitions. Capitalized terms used in this Amendment, to the extent
not otherwise defined herein, shall have the same meanings as in the Loan
Agreement, as amended hereby.
ARTICLE 2
Consent
Section 2.1 Consent to Amendment to Credit Agreement. Borrower has advised Bank
that the Existing Credit Agreement is being amended and restated by the Amended
and Restated Credit Agreement. Borrower requests that Bank consent and give
effect to the amendments and other modifications included in the Amended and
Restated Credit Agreement for purposes of the incorporation of the terms thereof
into the Loan Agreement under Section 6.01. Bank consents and gives effect to
such amendments and other modifications included in the Amended and Restated
Credit Agreement and agrees that any reference to the Credit Agreement in the
Loan Agreement shall mean the Existing Credit Agreement as amended and restated
by the Amended and Restated Credit Agreement.
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ARTICLE 3
Section 3.1 Amendment to Section 6.25 of the Loan Agreement. Section
6.25 of the Loan Agreement is amended in its entirety to read as follows:
Section 6.25 Subsidiaries of Parent.
(a) Parent will cause any and all of its Subsidiaries, other
than AHG Partnership (as defined in the Credit Agreement) and the
Insignificant Subsidiaries (as defined below), formed or created after
the date hereof to guaranty all present and future indebtedness and
other obligations of Borrower to Bank under the Term Loan B and pledge
certain of its assets to Bank to secure its guaranty obligations, both
pursuant to the execution and delivery of a Subsidiary Joinder
Agreement substantially in the form as Exhibit A attached to the
Guaranty Agreement. As used herein the term "Subsidiary" means any
corporation (or other entity) of which at least a majority of the
outstanding shares of stock (or other ownership interests) having by
the terms thereof ordinary voting power to elect a majority of the
board of directors (or similar governing body) of such corporation (or
other entity) irrespective of whether or not at the time stock (or
other ownership interests) of any other class or classes of such
corporation (or other entity) shall have or might have voting power by
reason of the happening of any contingency) is at the time directly or
indirectly owned or controlled by the Parent to one or more of the
Subsidiaries or by the Parent and one or more of its Subsidiaries .
(b) If as of any date, the aggregate amount of the
Insignificant Subsidiaries' (as defined below) EBITDA (as defined in
the Credit Agreement) as calculated for the most recently completed
four (4) Fiscal Quarter (as defined in the Credit Agreement) period as
of the date of determination exceeds Five Hundred Thousand Dollars
($500,000), then, within thirty (30) days after the date of
determination, the Parent and Borrower shall either (i) cause each
Insignificant Subsidiary to execute and deliver such documentation as
Bank may request to cause such Insignificant Subsidiary to evidence,
perfect, or otherwise implement the guaranty of and security for the
obligations contemplated by the Guaranty Agreement and the Security
Agreement or (ii) provide Bank written notice that the Insignificant
Subsidiaries shall be excluded from the calculation of all consolidated
financial covenants hereunder. If Parent and the Borrower elect to
exclude the Insignificant Subsidiaries from the calculation of all
consolidated financial covenants, then without any further amendment or
other modification of the Loan Documents, the Insignificant
Subsidiaries shall thereafter be so excluded. In calculating compliance
with the financial covenants thereafter, the Parent will show the
calculations utilized to exclude the Insignificant Subsidiaries from
such financial covenants. "Insignificant Subsidiary" means Horizon
Behavioral Services of California, Inc., a California corporation and
FPM Behavioral Health Services, Inc., a Delaware corporation.
SIXTH AMENDMENT TO LETTER LOAN AGREEMENT, Page 4
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ARTICLE 4
Modification to the Notes
Section 4.1 Amendment to the Definitions Utilized in the Notes. The
definition of the term "Maturity Date" in Section 1 of each of the Notes is as
modified as follows:
"Maturity Date" means the Revolving Termination Date (as
defined in that certain Credit Agreement dated as of November 15, 2000
among Horizon Health Corporation, Horizon Mental Health Management,
Inc., The Chase Manhattan Bank, as agent and each of the other banks
and lending institutions named therein, as such credit agreement exists
on November 15, 2000 without giving effect to any amendment or other
modification thereto unless amended or otherwise modified with the
agreement of Payee and whether or not at any time such credit agreement
remains in effect as a valid, binding, and enforceable agreement, in
such form, herein the "Credit Agreement").
Section 4.2 Reference to Amended and Restated Credit Agreement and Loan
Agreement. Each of the Notes is hereby amended so that any reference in such
Note to the Credit Agreement means the Existing Credit Agreement as amended and
restated by the Amended and Restated Credit Agreement and any reference in such
Note to the Loan Agreement means the Loan Agreement as amended hereby.
ARTICLE 5
Conditions Precedent
Section 5.1 Conditions. The effectiveness of Articles 2 and 3 of this
Amendment is subject to the satisfaction of the following conditions precedent:
(a) Bank shall have received all of the following, each dated
(unless otherwise indicated) the date of this Amendment, in form and
substance satisfactory to Bank:
(i) The Amended and Restated Credit Agreement
executed and delivered by Parent and Management and evidence
that all conditions precedent to its effectiveness thereunder
have been satisfied;
(ii) Such documentation as the Bank may request to
evidence the joinder of each of HMHM and HBS CO to the Loan
Agreement, the Guaranty Agreement and the Security Agreement
as a guarantor and debtor thereunder;
(iii) An amendment to the Lease Agreement; and
(iv) Such other additional approvals, opinions, or
documents as Bank may reasonably request;
(b) The representations and warranties contained herein and in
all other Loan Documents, as amended hereby, shall be true and correct
as of the date hereof as if made on the date hereof;
SIXTH AMENDMENT TO LETTER LOAN AGREEMENT, Page 5
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(c) No Event of Default shall have occurred and be continuing
and no event or condition shall have occurred that with the giving
notice or lapse of time or both would be an Event of Default; and
(d) All corporate proceedings taken in connection with the
transactions contemplated by this Amendment and all documents,
instruments, and other legal matters incident thereto shall be
satisfactory to Bank and its legal counsel, Jenkens & Xxxxxxxxx, a
Professional Corporation.
ARTICLE 6
Ratifications, Representations and Warranties
Section 6.1 Ratifications. The terms and provisions set forth in this
Amendment shall modify and supersede all inconsistent terms and provisions set
forth in the Loan Agreement and the Notes and except as expressly modified and
superseded by this Amendment, the terms and provisions of the Loan Agreement and
the Notes and the other Loan Documents are ratified and confirmed and shall
continue in full force and effect. Borrower, each Guarantor, and Bank agree that
the Loan Agreement and the Notes, as amended hereby, and the other Loan
Documents shall continue to be legal, valid, binding, and enforceable in
accordance with their respective terms.
Section 6.2 Representations and Warranties. Each of Borrower and each
Guarantor hereby represents and warrants to Bank as to itself that (i) the
execution, delivery, and performance of this Amendment and any and all other
Loan Documents executed and/or delivered by it in connection herewith have been
authorized by all requisite corporate action on its part and will not violate
its articles of incorporation or bylaws, (ii) the representations and warranties
contained in the Loan Agreement, as amended hereby, and any other Loan Document
to which it is a party are true and correct on and as of the date hereof as
though made on and as of the date hereof, except to the extent such
representations and warranties relate specifically to an earlier date, (iii) no
Event of Default with respect to Borrower or such Guarantor, as applicable, has
occurred and is continuing and no event or condition has occurred that with the
giving of notice or lapse of time or both would be an Event of Default, and (iv)
it is in full compliance with all covenants and agreements of Borrower or such
Guarantor, as applicable, contained in the Agreement as amended hereby and the
other Loan Documents.
ARTICLE 7
Miscellaneous
Section 7.1 Reference to Loan Agreement. Each of the Loan Documents,
including the Loan Agreement and any and all other agreements, documents, or
instruments now or hereafter executed and delivered pursuant to the terms hereof
or pursuant to the terms of the Loan Agreement as amended hereby, are hereby
amended so that any reference in such Loan Documents to the Loan Agreement or
the Notes shall mean a reference to the Loan Agreement or the Notes, as
applicable, as amended hereby.
Section 7.2 Expenses of Bank. As provided in the Loan Agreement, each
Guarantor agrees to pay on demand all costs and expenses incurred by the Bank in
connection with the preparation, negotiation, and execution of this Amendment.
Section 7.3 Severability. Any provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
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Section 7.4 Applicable Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of Texas.
Section 7.5 Successors and Assigns. This Amendment is binding upon and
shall inure to the benefit of Bank, Borrower, and each of the Guarantors and
their respective successors and assigns, except neither Borrower nor any
Guarantor may assign or transfer any of their rights or obligations hereunder
without the prior written consent of Bank.
Section 7.6 Counterparts. This Amendment may be executed in one or more
counterparts and on telecopy counterparts, each of which when so executed shall
be deemed to be an original, but all of which when taken together shall
constitute one and the same agreement.
Section 7.7 Effect of Waiver. No consent or waiver, express or implied,
by Bank to or for any breach of or deviation from any covenant, condition or
duty by Borrower or any Guarantor shall be deemed a consent or waiver to or of
any other breach of the same or any other covenant, condition or duty.
Section 7.8 Headings. The headings, captions, and arrangements used in
this Amendment are for convenience only and shall not affect the interpretation
of this Amendment.
Section 7.9 ENTIRE AGREEMENT. THIS AMENDMENT EMBODIES THE FINAL, ENTIRE
AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS,
AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
RELATING TO THIS AMENDMENT, AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE
PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO.
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Executed as of the date first written above.
BANK:
THE CHASE MANHATTAN BANK (as successor in
interest by merger to the Chase Bank of
Texas, National Association, who was
formerly known as Texas Commerce Bank
National Association)
By: /s/ D. XXXXX XXXXXX
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Name: D. Xxxxx Xxxxxx
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Title: Senior Vice President
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GUARANTORS:
HORIZON HEALTH CORPORATION
HORIZON MENTAL HEALTH MANAGEMENT, INC.
MENTAL HEALTH OUTCOMES, INC.
GERIATRIC MEDICAL CARE, INC.
SPECIALTY REHAB MANAGEMENT, INC.
HHMC PARTNERS, INC.
HORIZON BEHAVIORAL SERVICES, INC.
FLORIDA PSYCHIATRIC ASSOCIATES, INC.
FLORIDA PSYCHIATRIC MANAGEMENT, INC.
FPMBH OF TEXAS, INC.
HMHM OF TENNESSEE, INC.
HORIZON BEHAVIORAL SERVICES-COLORADO, INC.
By: /s/ XXXXX X. XxXXXX
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Name: Xxxxx X. XxXxxx
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Authorized Officer for all Guarantors
BORROWER:
NORTH CENTRAL DEVELOPMENT COMPANY
By: /s/ XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
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Title: President
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SIXTH AMENDMENT TO LETTER LOAN AGREEMENT, Page 8
