EXHIBIT 10.99
SECOND AMENDMENT
TO
CREDIT AGREEMENT
This SECOND AMENDMENT dated as of September 15, 1995 (this "Amendment") to
the Credit Agreement dated as of May 15, 1993 (the "Credit Agreement") among
RAMSAY HEALTH CARE, INC. (the "Company"), a Delaware corporation, GREENBRIER
HOSPITAL, INC. ("Greenbrier"), a Louisiana corporation, HOUMA PSYCHIATRIC
HOSPITAL, INC. ("Houma"), a Louisiana corporation, HSA OF OKLAHOMA, INC.
("HSA"), an Oklahoma corporation, CAROLINA TREATMENT CENTER, INC. ("Carolina"),
a South Carolina corporation, GULF COAST TREATMENT CENTER, INC. ("Gulf Coast"),
a Florida corporation, and ATLANTIC TREATMENT CENTER, INC. ("Atlantic"), a
Florida corporation, as Borrowers (collectively, the "Borrowers"), GREAT PLAINS
HOSPITAL, INC., a Missouri corporation, and THE HAVEN HOSPITAL, INC., a Delaware
corporation, as Guarantors (collectively, the "Guarantors"), SOCIETE GENERALE, a
French banking corporation acting by and through its New York Branch, FIRST
UNION NATIONAL BANK OF NORTH CAROLINA, a national banking association, and
HIBERNIA NATIONAL BANK, a national banking association, as Lenders
(collectively, the "Lenders"), and SOCIETE GENERALE, as the issuer of the
Letters of Credit described in the Credit Agreement (in such capacity, the
"Issuing Bank") and as agent for the Lenders as provided in the Credit Agreement
(in such capacity, the "Agent"),
W I T N E S S E T H :
A. Pursuant to the Credit Agreement, at the request of the Borrowers, the
Issuing Bank issued the Letters of Credit to support certain Bonds theretofore
issued to finance certain hospital assets for the benefit of the Borrowers.
Subsequent to the original issuance of the Letters of Credit, (i) the Letter of
Credit issued for the account of Atlantic was terminated in connection with the
sale of Atlantic's hospital assets and (ii) the other Letters of Credit have
been reduced in connection with mandatory sinking fund payments of principal of
the Bonds supported by such Letters of Credit. As of the date of this Amendment,
the outstanding Letters of Credit and the respective amounts thereof are as
follows:
LETTER OF INTEREST
ACCOUNT CREDIT PRINCIPAL INTEREST COVERAGE
PARTY AMOUNT COMPONENT COMPONENT CALCULATION
------- ------------------ ----------------- -------------------- ---------------------
Greenbrier $ 5,553,958.34 $ 5,300,000.00 $253,958.34 115 days @ 15%
360-day year
Houma 3,665,410.95 3,500,000.00 165,410.95 115 days @ 15%
365-day year
HSA 3,236,740.00 3,100,000.00 136,740.00 115 days @ 14%
365-day year
Carolina 4,610,833.34 4,400,000.00 210,833.34 115 days @ 15%
360-day year
Gulf Coast 3,974,166.66 3,800,000.00 174,166.66 110 days @ 15%
------------------ ----------------- -------------------- 360-day year
TOTAL $21,041,109.29 $20,100,000.00 $941,109.29
B. The Credit Agreement also provided for Revolving Credit Loans by the
Lenders to the Company up to a maximum aggregate outstanding principal balance
of $4,000,000 to provide working capital for conducting the operations of the
Company and certain of its consolidated subsidiaries. Pursuant to Section
2.04(g) of the Credit Agreement, by letter dated as of April 12, 1995, the
Company irrevocably elected to permanently reduce the Revolving Credit Maximum
Commitment Amount from $4,000,000 to $2,000,000. Pursuant to the Credit
Agreement, the Lenders' Revolving Credit Commitment expires on May 15, 1996.
C. As of the date of this Amendment, the maximum credit available to be
outstanding for the benefit of the Borrowers pursuant to the Credit Agreement
(the Maximum Credit Availability as defined herein) is $23,041,109.29 (up to
$21,041,109.29 under the Letters of Credit or, in the event of conversion to one
or more Term Loans, up to $20,100,000.00 under the Term Loan Commitments, plus
up to $2,000,000.00 under the Revolving Credit Commitment).
D. Pursuant to a Consent and Amendment dated as of April 12, 1995 among
the Borrowers, the Guarantors, the Lenders, the Issuing Bank and the Agent (the
"First Amendment"), (i) the Agent, on behalf of the Lenders, consented to the
consummation of certain sale-leaseback transactions between two wholly-owned
subsidiaries of the Company and Capstone Capital Corporation and (ii) Section
2.04(f) of the Credit Agreement was amended by adding the following provision to
the end of such Section:
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"; provided that no proceeds of the Revolving Credit Loans shall be used
by the Company to fund working capital or other capital needs of Mesa
Psychiatric Hospital, Inc."
E. The Borrowers have requested the Lenders, the Agent and the Issuing
Bank (collectively in such capacities, the "Banks") (1) to extend the stated
expiration date of the Letters of Credit from May 15, 1996 to February 15, 1997,
(2) to extend the Revolving Credit Termination Date from May 15, 1996 to
February 15, 1997, and (3) to agree to certain amendments to the Credit
Agreement. Upon the terms and conditions set forth in this Amendment, the Banks
are willing (a) to extend the stated expiration date of the Letters of Credit,
(b) to extend the Revolving Credit Termination Date, and (c) to agree to certain
amendments to the Credit Agreement, all as hereinafter provided.
NOW, THEREFORE, in consideration of the foregoing and the understandings
herein set forth and intending to be legally bound, the Borrowers, the
Guarantors, the Lenders, the Issuing Bank and the Agent hereby agree as follows:
1. Definitions. As used in this Amendment and in the Credit Agreement,
the term "Agreement" shall mean the Credit Agreement as amended by the First
Amendment and this Amendment. All terms used herein and not otherwise defined
shall have the meanings ascribed to such terms in the Credit Agreement, as
certain of such meanings are amended as hereinafter provided. In addition, as
used in this Amendment and the Credit Agreement, the following terms shall have
the meanings specified below:
"EBITDA" as to any Person means, with respect to a specified 12-month
period, (i) Pre-Tax Net Income for such 12-month period, plus (ii) all Interest
Expense for such 12-month period, plus (iii) all depreciation expense,
amortization of financing charges and other non-cash expense for such 12-month
period.
"Maximum Credit Availability" means the maximum credit available to be
outstanding for the benefit of the Borrowers pursuant to the Credit Agreement,
including (i) the total of the Letter of Credit Amounts, plus the aggregate
amount of any unreimbursed draws under the Letters of Credit, or the principal
amount of any outstanding Term Loans in the event of conversion to one or more
Term Loans, plus (ii) the Revolving Credit Maximum Commitment Amount.
2. Extension of Letters of Credit. The Borrowers hereby request the
Banks to extend the stated expiration date of the Letters of Credit to February
15, 1997. Subject to the payment of the extension fee set forth in section 4 of
this
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Amendment and to the other conditions precedent hereinafter set forth, the
Issuing Bank will extend the stated expiration date of the Letters of Credit to
February 15, 1997, such extension to be effected through the issuance by the
Issuing Bank to the Greenbrier Trustee, the Houma Trustee, the HSA Trustee, the
Carolina Trustee and the Gulf Coast Trustee, respectively, of an Amendment No. 1
to each of the outstanding Letters of Credit effective as of September 15, 1995.
3. Extension of Revolving Credit Termination Date. The Company hereby
requests the Lenders to extend the Revolving Credit Termination Date to February
15, 1997. Subject to the payment of the extension fee set forth in section 4 of
this Amendment and to the other conditions precedent hereinafter set forth, the
Lenders agree that the Credit Agreement is hereby amended to extend the
Revolving Credit Termination Date (and thereby extend the maturity date of the
Revolving Credit Note) to February 15, 1997.
4. Extension Fee. On the date of execution and delivery of this
Amendment, the Company shall pay to the Agent in immediately available funds a
nonrefundable extension fee in the amount of $50,000. Such extension fee shall
be shared by the Lenders pro rata on the basis of their respective Percentages.
5. Amendments to Credit Agreement.
5.1 The definitions of the following terms set forth in Section
1.01 of the Credit Agreement are hereby amended and restated in full as follows:
"Base Rate Increment" means one percent (1%) per annum.
"Commitment Fee Rate" means, at any time, (i) two and
three-quarters percent (2 3/4%) per annum if the Debt Service and Lease
Payment Coverage Ratio of the Consolidated Companies for the most recent
12-month period for which financial statements of the Consolidated
Companies have been provided to the Agent pursuant to Section 7.12 is
greater than 1.25 to 1, (ii) three percent (3%) per annum if such Debt
Service and Lease Payment Coverage Ratio is equal to or less than 1.25
to 1 and equal to or greater than 1.00 to 1, and (iii) four percent (4%)
per annum if such Debt Service and Lease Payment Coverage Ratio is less
than 1.00 to 1; provided that, if and so long as such Debt Service and
Lease Payment Coverage Ratio of the Consolidated Companies is greater
than 1.25 to 1 and no Event of Default has occurred and is continuing,
the Commitment Fee Rate shall be reduced by one-
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quarter percent (1/4%) for each permanent reduction from and after
September 15, 1995 of $3,000,000 in the Maximum Credit Availability.
"Eurodollar Rate Increment" means two and three-quarters
percent (2 3/4%) per annum.
"Long-Term Debt" means all Debt which, on the date of
incurrence, has a final maturity or term greater than one year or which
is renewable at the option of the debtor for a term greater than one
year from the date of original incurrence.
5.2. Section 2.03(a) of the Credit Agreement is hereby amended
and restated in full as follows:
(a) Conversion to Term Loans. With respect to each
Letter of Credit, the Lenders agree that, subject to and upon
satisfaction of the terms and conditions contained in this Section and
so long as the Term Loan Commitments have not theretofore been
terminated, the aggregate amount of the related Subsidiary Borrower's
unpaid reimbursement obligations under Section 2.02 on the date
specified by the Company pursuant to Section 2.03(b)(1) in respect of
amounts drawn against the Principal Component of the Letter of Credit
Amount of such Letter of Credit shall be converted to a Term Loan on
such date. The original principal amount of each Term Loan shall not
exceed the lesser of (1) the related Term Loan Commitment Amount, (2)
the aggregate Outstanding balance of the related Bonds immediately prior
to the payment of the final drawing under the related Letter of Credit,
less (i) the aggregate amount of all moneys held by the respective
Trustee in the funds established under the related Indenture available
to reimburse the Lenders, (ii) the principal of the related Bonds (other
than Pledged Bonds) which will remain outstanding after the final
drawing under the related Letter of Credit, and (iii) the principal
amount of the related Bonds for which refunding bonds have been or will
be issued, and (3) 75% of the then current appraised value of the real
property of the Subsidiary Borrower to which such Term Loan is being
made which is subject to a first lien priority Mortgage that will secure
such Term Loan, plus 75% of the appraisal value of any additional real
property collateral provided by the Obligors and satisfactory to the
Lenders in which the Lenders already have or are given a first lien
priority mortgage so as to result in a Term Loan to collateral value
ratio of not greater than 75% (provided that in
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calculating such ratio there shall be deducted from the appraised value
of any such additional collateral the amount thereof allocated to
provide collateral coverage at the same ratio for any and all other
obligations owing to the Lenders secured by such collateral). With
respect to each Subsidiary Borrower, the related Term Loan Commitment
and the Lenders' obligation to permit conversion to a Term Loan under
this Section shall terminate as of the close of business of the Agent at
its Lending Office on the first to occur of (A) the date the related
Letter of Credit terminates, (B) the first date on which there are no
longer any related Bonds Outstanding other than Bonds secured by a
Substitute Letter of Credit, and (C) the date the Agent terminates the
Term Loan Commitments pursuant to Section 8.02.
5.3. Section 2.03(b)(3) of the Credit Agreement is hereby amended and
restated in full as follows:
(3) Receipt by the Agent of (i) an endorsement to the mortgage
title insurance policy delivered pursuant to Section 4.04 insuring, in
favor of the Agent for the benefit of the Lenders, that the Mortgage
delivered by such Subsidiary Borrower secures the Subsidiary Borrower
Note evidencing such Term Loan and that there have been no intervening
liens since the original issuance of such mortgage title insurance
policy, (ii) evidence of comparable mortgage title insurance in favor of
the Agent for the benefit of the Lenders with respect to the mortgage on
any additional real property collateral intended to satisfy the loan to
collateral value ratio requirement of Section 2.03(a), and (iii) an
appraisal (or appraisals) of the real property covered by such Mortgage
(or additional mortgage) in compliance with federal and state laws
applicable to the Lenders, prepared by an appraiser satisfactory to
Lenders, dated as of a date no more than 60 days prior to the date of
conversion to such Term Loan, valuing such real property (and any such
additional real property collateral) in an amount sufficient to provide
a Term Loan to collateral value ratio of at least 75%;
5.4. Section 2.04(c) of the Credit Agreement is hereby amended and
restated in full as follows:
(c) Revolving Credit Interest Rate. The unpaid principal
balance of each Revolving Credit Loan shall bear interest from the date
such Revolving Credit Loan is made until the principal balance thereof
is
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paid in full at a fluctuating rate per annum equal to (1) in the
case of a Base Rate Loan, the Base Rate plus one percent (1%)
per annum, computed for the actual number of days elapsed
(including the first day but excluding the last day) based on a
360-day year, and (2) in the case of a Eurodollar Loan, the
Eurodollar Rate plus two and one-half (2 1/2%) per annum,
computed for the actual number of days elapsed (including the
first day but excluding the last day) based on a 360-day year.
The Company shall pay interest on Base Rate Loans to the Agent
for the accounts of the Lenders monthly in arrears on the first
Business Day of each calendar month or, if sooner, on the
Revolving Credit Termination Date. The Company shall pay
interest on Eurodollar Loans to the Agent for the accounts of
the Lenders in arrears in the last day of the applicable
Interest Period, or, if sooner, on the Revolving Credit
Termination Date. Upon the occurrence and during the continuance
of an Event of Default, the rate of interest on the outstanding
principal balance of the Revolving Credit Loans shall be
increased to a rate per annum equal to two and one-half percent
(2 1/2%) per annum above the rate otherwise payable wth respect
to such Revolving Credit Loans at such time. Each determination
by the Agent of a Revolving Credit Loan interest rate under this
Agreement and the Revolving Credit Note shall be conclusive and
binding for all purposes, absent manifest error.
5.5. Section 2.04(e)(4) of the Credit Agreement is hereby
amended and restated in full as follows:
(a) Annual Clean-Up Period. For a clean-up period of 30
consecutive days in each Fiscal Year the aggregate amount of the
Revolving Credit Loans outstanding shall be reduced to zero, and
the Company shall prepay to the Agent for the accounts of the
Lenders the aggregate outstanding balance of all Revolving
Credit Loans, together with all accrued but unpaid interest on
such balance through the Business Day immediately preceding the
date of commencement of such clean-up period, and all other
fees, costs and amounts (if any) payable under this Agreement or
the Revolving Credit Note in connection with such prepayment on
such Business Day.
5.6. Section 2.04(f) of the Credit Agreement is hereby amended
and restated in full as follows:
(f) Use of Revolving Credit Proceeds. The proceeds of
the Revolving Credit Loans shall be used by
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the Company solely for working capital (including, without
limitation, short-term bridge financing of fixed assets) of the
Obligors, the Life Company Subsidiaries and the Other Revolving
Credit Subsidiaries; provided that no proceeds of the Revolving
Credit Loans shall be used by the Company to fund working
capital or other capital needs of Mesa Psychiatric Hospital,
Inc. In no case shall such proceeds be used, directly or
indirectly, to pay reimbursement obligations with respect to the
Letters of Credit or to repay the Life Company Senior Notes, the
Life Company Subordinated Notes or any other Debt of the Company
or any of its Subsidiaries.
5.7. Section 7.12(a) of the Credit Agreement is hereby amended
by adding the following clauses (7) and (8) to the end of such Section:
(7) a report as of the end of such quarter of the
Obligors' status with respect to (i) permitted additional debt
incurred pursuant to Section 7.13, permitted loans, advances,
capital expenditures and other investments made pursuant to
Section 7.20 (provided that such requirement to report the
Obligors' status with respect to Section 7.20 shall start with
the fiscal quarter ending December 31, 1995), and permitted
obligations under Operating Leases under Section 7.22; and
(8) a report on the current status of any and all
significant ongoing efforts or proposals to sell any of the
hospital facilities operated by any of the Subsidiary Borrowers
(including specific information with respect to the Harbor Oaks
Hospital and the Coastal Carolina Hospital) or by any of the
Guarantors, the Life Company Subsidiaries or the Other
Consolidated Subsidiaries; provided that any and all significant
developments occurring with respect to any such proposed sales
shall be reported to the Bank in writing as soon as possible and
not later than 15 days after the occurrence of such
developments.
5.8. Section 7.12 of the Credit Agreement is hereby further
amended by adding the following subsection (o) to end of Section 7.12 as an
additional requirement for information to be furnished pursuant to Section 7.12:
(o) Monthly Reports. As soon as available and in any
event within 30 days after the close of each calendar month:
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(1) unaudited consolidated and consolidating
financial statements for the Consolidated Companies,
including consolidated balance sheets and related
consolidated and consolidating statements of income as
of the end of such month and for such month and the
current Fiscal Year to the end of such month, which
shall be internally prepared and presented on a
consistent basis and, in the case of consolidated
financial statements, in accordance with GAAP (without
footnotes and subject to normal year-end adjustments);
and
(2) a report on the utilization of the
Consolidated Companies' Facilities operated by the
Consolidated Companies for such month and the current
Fiscal Year to the end of such month, including number
of beds in service, admissions, patient days, average
length of stay and occupancy, all in such reasonable
detail as the Agent may request.
5.9. Section 7.16 of the Credit Agreement is hereby amended and
restated in full as follows:
(a) Consolidated Maximum Annual Debt Service and Lease Payment
Coverage Ratio. The Obligors will maintain, and the Company will cause
the other Consolidated Companies to maintain, as to the Consolidated
Companies on a consolidated basis, as of the end of each fiscal quarter
of the Consolidated Companies for the 12-month period then ended, a
Maximum Annual Debt Service and Lease Payment Coverage Ratio of at least
the following amounts from and after the date indicated:
From and Maximum Annual Debt Service
after June 30 and Lease Payment Coverage Ratio
------------- --------------------------------
1995 1.00 to 1
1996 1.10 to 1
(b) Consolidated Fixed Charge Coverage Ratio. The Obligors will
maintain, and the Company will cause the other Consolidated Companies to
maintain, as to the Consolidated Companies on a consolidated basis, as
of the end of each fiscal quarter of the Consolidated Companies for the
12-month period then ended, a Fixed Charge Coverage Ratio of at least
the following amounts from and after the date indicated:
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From and
after June 30 Fixed Charge Coverage Ratio
------------- ---------------------------
1995 1.50
1996 1.75
(c) Consolidated Current Ratio. The Obligors will maintain, and
the Company will cause the other Consolidated Companies to maintain, as
to the Consolidated Companies on a consolidated basis at all times a
Current Ratio of at least 1.50 to 1.
(d) Consolidated Leverage Ratio. The Obligors will maintain, and
the Company will cause the other Consolidated Companies to maintain, as
to the Consolidated Companies on a consolidated basis at all times a
Leverage Ratio of not more than 1.50 to 1.
(e) Consolidated Tangible Net Worth. The Obligors will maintain,
and the Company will cause the other Consolidated Companies to maintain,
at all times a Consolidated Tangible Net Worth of at least $48,000,000.
(f) Additional Maximum Annual Debt Service and Lease Payment
Coverage Ratio. The Subsidiary Borrowers and Guarantors will maintain,
as a consolidated group, as of the end of each fiscal quarter of such
group for the 12-month period then ended, a Maximum Annual Debt Service
and Lease Payment Coverage Ratio of at least 3.00 to 1.
(g) Short-Term Debt. The Obligors will not permit, and the
Company will cause the other Consolidated Companies not to permit,
Short-Term Debt of the Consolidated Companies on a consolidated basis to
exceed at any time an amount equal to $2,000,000; and for at least 30
consecutive days during each Fiscal Year the Obligors will reduce, and
the Company will cause the other Consolidated Companies to reduce, the
aggregate outstanding principal amount of Short-Term Debt of the
Consolidated Companies on a consolidated basis to zero.
5.10 Section 7.22 of the Credit Agreement is hereby amended and
restated in full as follows:
Section 7.22. Operating Lease Obligations. The Obligors will not
create or incur, and the Company will not permit the other Consolidated
Companies to create or incur, any obligations for the payment by the
Consolidated Companies of rentals for any property under Operating
Leases, except for Operating Leases
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which, together with all other Operating Leases of the Consolidated
Companies (including, without limitation, the Consolidated Companies
existing Operating Leases with Capstone Capital Corporation and Charter
Canyon Behavioral Health System, Inc.), provide for aggregate annual
rental payments by the Consolidated Companies on a consolidated basis in
the current or any future Fiscal Year not exceeding $5,000,000.
5.11. Section 7.24 of the Credit Agreement is hereby amended and
restated in full as follows:
Section 7.24. Management Agreements. The Obligors will not pay,
and the Company will not permit any of the other Consolidated Companies
to pay, any Ramsay Management Fees, except Ramsay Management Fees
payable by the Company to any Xxxx Xxxxxx Affiliate pursuant to the
Ramsay Management Agreement; provided that (i) the Company's obligation
to pay Ramsay Management Fees shall be subordinate to all amounts now or
hereafter owing by the Company to the Agent, the Issuing Bank of the
Lenders under the Credit Documents, (ii) the Company's obligations to pay
Ramsay Management Fees for services rendered during each Fiscal Year
shall accrue and may be paid in common stock of the Company at any time,
but shall not be paid in cash or other property (except such common
stock) until after the close of such Fiscal Year, and then such payment
shall be permitted only if, with respect to the Company's Fiscal Year
ending June 30, 1996, the Consolidated Companies' EBITDA for such Fiscal
Year (as shown on the Consolidated Companies audited financial statements
for such Fiscal Year furnished to the Agent pursuant to the Credit
Agreement) is at least $17,800,000 (less amounts reasonably acceptable to
the Lenders in its discretion to reflect the reduction in budgeted
earning capacity in such Fiscal Year allocable to any operating assets
disposed of prior to the close of such Fiscal Year), and with respect to
each Fiscal Year thereafter, the Consolidated Companies' EBITDA for such
Fiscal Year (as shown on the Consolidated Companies audited financial
statements for such Fiscal Year furnished to the Agent pursuant to the
Credit Agreement) is at least 90% of the Company's budget therefor as
presented to the Lenders prior to September 15, 1995 or as thereafter
presented to and approved by the Lenders at their discretion (less
amounts reasonably acceptable to the Lenders in its discretion to reflect
the reduction in budgeted earning capacity in such Fiscal Year allocable
to any operating assets disposed of prior to the close of such Fiscal
Year).
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The Company will cause Ramsay Health Care Pty. Ltd to execute and
deliver to the Agent and the Lenders on the Closing Date a Ramsay
Management Fee Subordination Agreement (the "Ramsay Management Fee
Subordination Agreement") pursuant to which Ramsay Health Care Pty. Ltd
will subordinate all present and future claims to Ramsay Management Fees
owing under the Ramsay Management Agreement (or any successor management
agreement) to all amounts now or hereafter owing by any Obligor under the
Credit Documents. The Company will not (i) amend, modify or supplement
the Ramsay Management Agreement, other than one or more extensions of the
term thereof on the same terms and conditions as are in effect on the
Closing Date and other than an assignment thereof by a Xxxx Xxxxxx
Affiliate to another Xxxx Xxxxxx Affiliate (in each case subject to the
Ramsay Management Fee Subordination Agreement), (ii) enter into any other
management agreement with Xxxx X. Xxxxxx or any Xxxx Xxxxxx Affiliate, or
(iii) enter into any management agreement with any other Person (other
than a Consolidated Company) with respect to the management by such
Person of material operations of any Obligor or of the Consolidated
Companies taken as a whole.
5.12. Article VII of the Credit Agreement is hereby amended by adding
the following Sections 7.33 and 7.34 to the end of such Article:
Section 7.33. Limitation on Dividends and Purchases of Shares. The
Company will not pay dividends (other than dividends payable exclusively
in common stock of the Company) on or purchase any shares of any class of
its common or preferred stock, unless (i) with respect to dividends to
be paid or shares to be purchased during the Company's fiscal ending June
30, 1996, the Consolidated Companies' Maximum Annual Debt Service and
Lease Payment Coverage Ratio for the Fiscal Year ended June 30, 1995 is
more than 1.30 to 1 (as shown on the Consolidated Companies' audited
financial statements for such Fiscal Year furnished to the Agent pursuant
to the Credit Agreement), and with respect to dividends to be paid or
shares to be purchased after June 30, 1996, the Consolidated Companies'
Maximum Annual Debt Service and Lease Payment Coverage Ratio for the
immediately preceding Fiscal Year of the Consolidated Companies is at
least 1.50 to 1 (as shown on the Consolidated Companies' audited
financial statements for such Fiscal Year furnished to the Agent pursuant
to the Credit Agreement), (ii) no Default or Event of Default has
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occurred and is continuing or would occur as a result of such payment or
purchase, and (iii) the aggregate amount of any and all such dividends
and purchases is less than 50% of the Net Income of the Consolidated
Companies for the immediately preceding Fiscal Year of the Consolidated
Companies (as shown on the Consolidated Companies' audited financial
statements for such Fiscal Year furnished to the Agent pursuant to the
Credit Agreement); provided that the payment of dividends by the Company
of not more than $387,200 on the Company's Class B and Class C
convertible preferred stock shall be permitted in any Fiscal Year as long
as no Default or Event of Default has occurred and is continuing or would
occur as a result of such payment.
Section 7.34. Reduction of Maximum Credit Availability. The
Borrowers will cause the Maximum Credit Availability to be reduced to not
more than $20,308,364.72 by December 31, 1995, and to not more than
$17,145,835.32 by July 1, 1996, through permanent reductions in the total
of the Letter of Credit Amounts of the Letters of Credit as a result of
mandatory sinking fund redemptions and/or optional redemptions of Bonds
and/or through permanent reductions of the Revolving Credit Maximum
Commitment Amount pursuant to Section 2.04(g).
5.13. Section 8.01(c) of the Credit Agreement is hereby amended and
restated in full as follows:
(c) Failure by any Obligor to perform or comply with any of the
terms or conditions contained in Section 7.01, 7.07, 7.10, 7.13, 7.16,
7.20, 7.21, 7.22, 7.24, 7.25, 7.26, 7.27, 7.29, 7.30, 7.33 or 7.34, or
the Obligors shall grant or otherwise create any Lien or sale/lease-back
transaction in violation of Section 7.14;
5.14. The address as which notices and other communications are to be
sent to the Agent, the Issuing Bank or Societe Generale (in its capacity as a
Lender) pursuant to Section 10.01 of the Credit Agreement is hereby changed to
the following:
Societe Generale, New York Branch
1221 Avenue of the Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Sedare Xxxxxxx
Vice President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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with a copy to:
Societe Generale, New York Branch
1221 Avenue of the Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Assistant Treasurer
Special Letter of Credit Services
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
6. Conditions Precedent. As conditions precedent to the Banks'
execution and delivery of this Amendment, the Agent shall have received the
following in form and substance satisfactory to the Banks:
(a) A certificate of the president, chief executive officer or
chief financial officer of each Obligor as of the date of execution and
delivery by the Obligors or this Amendment stating that (1) the
representations and warranties contained in Section 7 of this Amendment
are true and correct, (2) all obligations, covenants, agreements and
conditions contained in the Agreement to be performed or satisfied by
such Obligor on or prior to the date of execution and delivery by the
Obligors of this Amendment have been performed or satisfied in all
respects, (3) since June 30, 1995, there has been no material adverse
change in the properties, business, operations, assets, condition
(financial or otherwise) or prospects of such Obligor (or, in the case of
the certificate of the respective officer of the Company, the
Consolidated Companies taken as a whole) other than as disclosed in such
certificate, and (4) after given effect to this Amendment, no Default or
Event of Default has occurred and is continuing;
(b) An opinion of Xxxxxx & Xxxxxx, New York, New York, counsel to
the Obligors, to the effect that (1) the execution and delivery by the
Obligors of this Amendment has been duly authorized by all requisite
corporate action, (2) this Amendment has been duly executed and delivered
by the Obligors and constitutes the legal, valid and binding obligation
of the Obligors enforceable against the Obligors in accordance with its
terms, except to the extent that the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting the rights of creditors generally and by the
application of general principles of equity, and (3) the execution and
delivery of this Amendment does not conflict with or constitute a default
under the Life Company Indenture or the Consolidated Companies' Operating
Leases with Capstone Capital Corporation and Charter Canyon
14
Behavioral Health System, Inc. or the Consolidated Companies have otherwise
obtained all requisite consents of the parties to such agreements in
connection with this Amendment; and
(c) Such other documents, certificates and opinions of counsel as the
Agent may reasonably request.
7. Representations and Warranties. The Obligors hereby represent and warrant
that:
(a) The representations and warranties made by the Obligors in the Credit
Agreement and all documents delivered in connection therewith are true and
correct on and as of the date of execution and delivery by the Obligors of this
Amendment, except to the extent that such representations and warranties
expressly relate to an earlier date. After giving effect to this Amendment, no
Default or Event of Default has occurred and is continuing on the date of
execution and delivery by the Obligors of this Amendment.
(b) This Amendment has been duly authorized by all requisite action on
behalf of the Obligors and constitutes the legal, valid and binding obligation
of the Obligors, enforceable in accordance with its terms, except as the same
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other laws or equitable principles affecting creditors' rights generally.
(c) The Obligors have obtained all consents and approvals necessary to their
execution and delivery of this Amendment.
8. Costs and Expenses. The Obligors hereby agree to pay on demand all costs
and expenses of the Agent and the Issuing Bank in connection with the
preparation, execution and delivery of this Amendment and the amendments
extending the Letters of Credit being delivered pursuant to section 2 of this
Amendment, including without limitation the reasonable fees and expenses of
counsel for the Agent and the Issuing Bank with respect thereto.
9. Counterparts. This Amendment may be executed in one or more counterparts
each of which shall constitute an original Amendment and all of which together
shall constitute one and the same Amendment.
10. Effect. Upon the execution and delivery of this Amendment, the Credit
Agreement shall be and be deemed to be amended as set forth in this Amendment.
All of the provisions of the Credit Agreement shall remain in full force and
effect as amended by the First Amendment and this Amendment.
15
11. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to principles
of conflicts of law. The foregoing choice of law is made pursuant to Section
5-1401 of the General Obligations Law of the State of New York.
16
IN WITNESS WHEREOF, the Obligors, the Lenders, the Issuing Bank and the
Agent have caused this Agreement to be duly executed and delivered as of the
date first above written.
[CORPORATE SEAL] RAMSAY HEALTH CARE, INC.
Attest /s/ Xxxxxx Xxxx By /s/ Xxxxxxx Xxxxxxxx
------------------------ --------------------------
Assistant Secretary President
[CORPORATE SEAL] GREENBRIER HOSPITAL, INC.
Attest /s/ Xxxx Xxxxx By /s/ Xxxxxxx Xxxxxxxx
------------------------ --------------------------
Secretary President
[CORPORATE SEAL] HOUMA PSYCHIATRIC HOSPITAL, INC.
Attest /s/ Xxxx Xxxxx By /s/ Xxxxxxx Xxxxxxxx
------------------------ --------------------------
Secretary President
[CORPORATE SEAL] HSA OF OKLAHOMA, INC.
Attest /s/ Xxxx Xxxxx By /s/ Xxxxxxx Xxxxxxxx
------------------------ --------------------------
Secretary President
[CORPORATE SEAL] CAROLINA TREATMENT CENTER, INC.
Attest /s/ Xxxx Xxxxx By /s/ Xxxxxxx Xxxxxxxx
------------------------ --------------------------
Secretary President
This execution page is part of the Second Amendment dated as of September 15,
1995 to the Credit Agreement dated as of May 15, 1993, among Ramsay Health Care,
Inc., Greenbrier Hospital, Inc., Houma Psychiatric Hospital, Inc., HSA of
Oklahoma, Inc., Carolina Treatment Center, Inc., Gulf Coast Treatment Center,
Inc. and Atlantic Treatment Center, Inc., as Borrowers, Great Plains Hospital,
Inc. and The Haven Hospital, Inc., as Guarantors, Societe Generale, New York
Branch, First Union National Bank of North Carolina and Hibernia National Bank,
as Lenders, Societe Generale, as Issuing Bank, and Societe Generale, as Agent.
17
[CORPORATE SEAL] GULF COAST TREATMENT CENTER, INC.
Attest /s/ Xxxx Xxxxx By /s/ Xxxxxxx Xxxxxxxx
------------------------ --------------------------
Secretary President
[CORPORATE SEAL] ATLANTIC TREATMENT CENTER, INC.
Attest /s/ Xxxx Xxxxx By /s/ Xxxxxxx Xxxxxxxx
------------------------ --------------------------
Secretary President
[CORPORATE SEAL] GREAT PLAINS HOSPITAL, INC.
Attest /s/ Xxxx Xxxxx By /s/ Xxxxxxx Xxxxxxxx
------------------------ --------------------------
Secretary President
[CORPORATE SEAL] THE HAVEN HOSPITAL, INC.
Attest /s/ Xxxx Xxxxx By /s/ Xxxxxxx Xxxxxxxx
------------------------ --------------------------
Secretary President
This execution page is part of the Second Amendment dated as of September 15,
1995 to the Credit Agreement dated as of May 15, 1993, among Ramsay Health Care,
Inc., Greenbrier Hospital, Inc., Houma Psychiatric Hospital, Inc., HSA of
Oklahoma, Inc., Carolina Treatment Center, Inc., Gulf Coast Treatment Center,
Inc. and Atlantic Treatment Center, Inc., as Borrowers, Great Plains Hospital,
Inc. and The Haven Hospital, Inc., as Guarantors, Societe Generale, New York
Branch, First Union National Bank of North Carolina and Hibernia National Bank,
as Lenders, Societe Generale, as Issuing Bank, and Societe Generale, as Agent.
18
SOCIETE GENERALE, NEW YORK
BRANCH, as Lender, Issuing
Bank and Agent
By /s/ Sedare Xxxxxxx
-------------------------------
Title Vice President
----------------------------
This execution page is part of the Second Amendment dated as of September 15,
1995 to the Credit Agreement dated as of May 15, 1993, among Ramsay Health Care,
Inc., Greenbrier Hospital, Inc., Houma Psychiatric Hospital, Inc., HSA of
Oklahoma, Inc., Carolina Treatment Center, Inc., Gulf Coast Treatment Center,
Inc. and Atlantic Treatment Center, Inc., as Borrowers, Great Plains Hospital,
Inc. and The Haven Hospital, Inc., as Guarantors, Societe Generale, New York
Branch, First Union National Bank of North Carolina and HiberniaNational Bank,
as Lenders, Societe Generale, as Issuing Bank, and Societe Generale, as Agent.
00
XXXXX XXXXX XXXX XX XXXXX
XXXXXXXX, as Lender
By: /s/ Xxxx Xxxxxx
-------------------------
Title: Senior Vice President
----------------------
This execution page is part of the Second Amendment dated as of September 15,
1995 to the Credit Agreement dated as of May 15, 1993, among Ramsay Health Care,
Inc., Greenbrier Hospital, Inc., Houma Psychiatric Hospital, Inc., HSA of
Oklahoma, Inc., Carolina Treatment Center, Inc., Gulf Coast Treatment Center,
Inc. and Atlantic Treatment Center, Inc., as Borrowers, Great Plains Hospital,
Inc. and The Haven Hospital, Inc., as Guarantors, Societe Generale, New York
Branch, First Union National Bank of North Carolina and Hibernia National Bank,
as Lenders, Societe Generale, as Issuing Bank, and Societe Generale, as Agent.
20
HIBERNIA NATIONAL BANK, as
Lender
By: /s/ Xxxx Wales
-------------------------
Title: Banking Officer
----------------------
This execution page is part of the Second Amendment dated as of September 15,
1995 to the Credit Agreement dated as of May 15, 1993, among Ramsay Health Care,
Inc., Greenbrier Hospital, Inc., Houma Psychiatric Hospital, Inc., HSA of
Oklahoma, Inc., Carolina Treatment Center, Inc., Gulf Coast Treatment Center,
Inc. and Atlantic Treatment Center, Inc., as Borrowers, Great Plains Hospital,
Inc. and The Haven Hospital, Inc., as Guarantors, Societe Generale, New York
Branch, First Union National Bank of North Carolina and Hibernia National Bank,
as Lenders, Societe Generale, as Issuing Bank, and Societe Generale, as Agent.
21
