PROFESSIONAL SERVICES AGREEMENT
Exhibit 10.24
EXECUTION COPY
THIS PROFESSIONAL SERVICES AGREEMENT (this “Agreement”) is made and entered into as of
April 1, 2011 (the “Effective Date”) by and between Waud Capital Partners, L.L.C., a
Delaware limited liability company (“WCP”), and Acadia Healthcare Company, LLC, a Delaware
limited liability company (the “LLC”). Capitalized terms used and not otherwise defined
herein have the meanings set forth in that certain Second Amended and Restated Limited Liability
Company Agreement of Acadia Healthcare Holdings, LLC, dated as of the date hereof (the “LLC
Agreement”).
WHEREAS, the LLC desires to receive financial and management consulting services from WCP and
obtain the benefit of WCP’s experience in business and financial management generally and its
knowledge of the LLC and the LLC’s financial affairs in particular; and
WHEREAS, WCP is willing to provide financial and management consulting services to the LLC,
and the compensation arrangements set forth in this Agreement are designed to compensate WCP for
such services.
NOW, THEREFORE, in consideration of the foregoing premises and the respective agreements
hereinafter set forth and the mutual benefits to be derived herefrom, WCP and the LLC hereby agree
as follows:
1. Engagement. The LLC hereby engages WCP as a financial and management consultant,
and WCP hereby agrees to provide financial and management consulting services to the LLC, all on
the terms and subject to the conditions set forth below.
2. Services of WCP. WCP hereby agrees during the term of this engagement to consult
with the Board, the boards of managers (or similar governing bodies) of the LLC’s Subsidiaries and
other Affiliates and the management of the LLC and its affiliates in such manner and on such
business and financial matters as may be reasonably requested from time to time by the Board,
including: (a) corporate strategy; (b) budgeting of future corporate investments; (c) acquisition
and divestiture strategies; and (d) debt and equity financings.
3. Personnel. WCP shall provide and devote to the performance of this Agreement such
partners, employees and agents of WCP as WCP shall deem appropriate for the furnishing of the
services required hereby.
4. Fees. Subject to Section 6, WCP shall be entitled to receive from the LLC
(a) commencing on the Effective Date and continuing until dissolution of the LLC, an annual
advisory fee (the “Advisory Fee”), payable on the Effective Date for the period from and
including the Effective Date to an including June 30, 2011 and thereafter on a semi-annual basis on
January 1 and July 1 of each year in advance (each such date, an “Advisory Fee Due Date”),
as compensation for the financial and management consulting services WCP has agreed to provide the
LLC hereunder, (b) a transaction fee in cash in the amount of $3,600,000, payable on the Effective
Date, (c) a commitment fee in cash in the amount of $450,000, payable on the Effective Date; (d) a
financing fee in cash in the amount of $2,100,000, payable on the Effective Date, (e) upon
consummation of any Applicable Loans, financing fees, in cash in an aggregate amount equal to 1.5%
of the aggregate principal amount of all Applicable Loans (except in the case of public bond issuances, in which case it shall be 1.0% of the
aggregate amount of all such public bond issuances), as compensation for the negotiation, arranging
and structuring services WCP has agreed to provide the LLC with respect to the Applicable Loans;
(f) advisory fees in connection with the negotiation and consummation of any acquisitions and/or
dispositions (regardless of whether an equity or asset acquisition or disposition) by or of the LLC
or any of its Subsidiaries in an
aggregate amount per transaction equal to 2.0% of the gross purchase price of such acquisition(s) or disposition(s) (including any debt and other liabilities
assumed or otherwise included in the transaction(s)), such fees to be due and payable at the
closing of such acquisition(s) or disposition(s), as applicable, as compensation for the
negotiation, arranging and structuring services WCP has agreed to provide the Company with respect
thereto; and (g) upon consummation of a Sale of the LLC, a sale fee in cash in an amount equal to
1.5% of the enterprise value assigned to Holdings and its Subsidiaries in connection with or
implied by the Sale of the LLC, as compensation for the negotiation, structuring and other services
WCP has agreed to provide the LLC with respect to the Sale of the LLC. The Advisory Fee shall be
$2,000,000 for the calendar year ending December 31, 2011. Effective January 1, 2012 and January 1
of each year thereafter, the Advisory Fee shall be increased to an amount equal to the greater of
(i) 5.0% of EBITDA for the immediately preceding fiscal year (as determined in good faith by the
Board) and (ii) 110% of the prior year’s Advisory Fee. Installments of the Advisory Fee payable
for any period other than a full six-month period (including the Advisory Fee payment payable on
the Effective Date) shall be adjusted on a pro rata basis according to the actual number of days in
such period. For purposes of this Agreement, “Applicable Loans” means any credit facility
(including incremental loan amount as a result of any amendments to existing credit facilities
which have the effect of increasing the committed amount under such facility by the LLC or its
Subsidiaries) entered into by the LLC or its Subsidiaries after the Effective Date (other than
extensions of credit in the ordinary course of business, including trade payables and equipment
leases) with respect to which WCP provided negotiation, arranging or structuring services to the
LLC or its Subsidiaries. In no event shall “Applicable Loans” include any credit facility
entered into by the LLC or its Subsidiaries after the Effective Date with any Affiliate of WCP if
such Affiliate of WCP is receiving a closing or similar fee in connection with such facility. For
the purposes of this Agreement, “EBITDA” means, for any period, the result of (i) the
consolidated net income (or loss) of Holdings and its Subsidiaries for such period, plus
(ii) to the extent deducted in any such period in determining such net income or loss (A) all
federal, state and local taxes, (B) interest expense, (C) amortization and depreciation expenses,
and (D) extraordinary losses, minus (iii) to the extent included in any such period in
determining such net income or loss, extraordinary gains, in each case determined in accordance
with United States generally accepted accounting principles applied on a basis consistent with the
methodologies, practices, estimation techniques, assumptions and principles used in the preparation
of the internal financial statements of Holdings and its Subsidiaries. Notwithstanding anything to
the contrary contained herein, the LLC’s obligation to pay Deferred Fees shall accrue interest on a
daily basis at the rate of 8.5% per annum, compounded daily, until such Deferred Fees are paid in
full in accordance with the terms hereof, and all such interest accrued shall constitute fees
payable pursuant to this Section 4.
5. Expenses. The LLC shall promptly upon demand reimburse WCP for all reasonable
travel expenses, legal fees and other out-of-pocket fees and expenses as have been or may be
incurred by or on behalf of WCP or any of its Affiliates, or any of their respective members,
partners, directors, managers, officers, principals, employees or agents (collectively, the
“WCP Parties”), in connection with (a) any completed or proposed financing, acquisition,
merger, public offering, sale, recapitalization, reorganization or similar transaction involving
the Company or any of its Subsidiaries and/or (b) the rendering of any services hereunder
(including fees and expenses incurred in attending LLC-related meetings and retaining legal,
regulatory, political or other advisors).
6. Subordination. WCP and the LLC agree that on the terms and conditions herein,
until Satisfaction in Full, the payment of any fees to be paid pursuant to Section 4 above,
including any interest payable with respect to Deferred Fees (“Fees”), by any Loan Party is
subordinated, to the extent and in the manner provided herein, to the prior payment in full of all of the Senior Debt. The
Senior Lenders have made and may hereafter make loans and other credit extensions to the Loan
Parties in reliance on these provisions and such provisions are for the benefit of the Senior
Lenders. The LLC may pay and WCP may accept payment of the Fees only to the extent such payment is
permitted by Section 8.08(b) of the Senior Credit Agreement (or any successor provision). Any
payments (whether in cash, securities or
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other property) with respect to the Fees received by any of the WCP Parties in violation of Section 8.08(b) of the Senior Credit Agreement (or any successor
provision) shall be held in trust for the Loan Parties and the applicable WCP Parties will
forthwith turn over any such payments in the form received, properly endorsed or assigned, to the
Loan Parties. Until Satisfaction in Full, none of the WCP Parties will ask, demand, accept,
receive or retain any collateral security for the payment of the Fees from any of the Loan Parties,
and will not initiate or prosecute, or encourage any other person to initiate or prosecute any
claim or other proceeding for such fees; provided that nothing in this Section 6 shall
preclude (i) the filing or prosecution of any claim in any proceeding under a Debtor Relief Law (as
defined in the Senior Credit Agreement), or (ii) any claim or proceeding to collect any Fee that is
both due and payable pursuant to Section 4 above and permitted by the Senior Credit
Agreement. As used herein, the following terms have the following meanings:
“Deferred Fee” means any Fee that is due and payable pursuant to Section 4
but is not paid when due, including any Fee not permitted to be paid by the Senior Credit
Agreement.
“Loan Party” means the LLC and any subsidiary or affiliate of the LLC that is a
“Borrower” or “Guarantor” under the Senior Credit Agreement.
“Satisfaction in Full” or “Satisfied in Full” shall have the meaning set forth in
the Senior Credit Agreement.
“Senior Credit Agreement” means the Credit Agreement dated as of the date hereof
among the LLC, as borrower, the subsidiaries and affiliates of the LLC identified therein,
as guarantors, the lenders from time to time party thereto and Bank of America, N.A., as
Administrative Agent, as amended, modified, supplemented, increased, extended, restated,
refinanced and replaced from time to time.
“Senior Debt” means all “Obligations” as such term is defined in the Senior Credit
Agreement.
“Senior Lenders” means the lenders from time to time party to the Senior Credit
Agreement.
7. Term. This Agreement shall be in effect for a term commencing on the Effective Date
and terminating on the earlier of (a) the tenth anniversary of the Effective Date and (b) the
consummation of a Sale of the LLC. No termination of this Agreement, whether pursuant to this
paragraph or otherwise, shall affect the LLC’s obligations with respect to the fees, costs and
expenses incurred by WCP in rendering services hereunder and not paid or reimbursed by the LLC as
of the effective date of such termination.
8. Liability. Neither WCP nor any of its Affiliates (other than the LLC and its
Subsidiaries), nor any of their respective members, partners, directors, managers, officers,
principals, employees or agents, shall be liable to the LLC or its Subsidiaries or other Affiliates
for any loss, liability, damage or expense arising out of or in connection with the performance of
services contemplated by this Agreement, except to the extent a court of competent jurisdiction
shall determine in a final non-appealable order that such loss, liability, damage or expense
resulted directly from the gross negligence or willful misconduct of WCP.
9. Indemnification. The LLC agrees to indemnify and hold harmless WCP and its
Affiliates (other than the LLC and its Subsidiaries), and each of their respective members,
partners, directors, managers, officers, principals, employees and agents, against and from any and
all loss, liability, suits, claims, costs, damages and expenses (including attorneys’ fees) arising
from their performance hereunder, except to the extent resulting from their gross negligence or
willful misconduct as determined by a court of competent jurisdiction in a final non-appealable
order.
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10. Independent Contractor. WCP shall perform services hereunder as an independent
contractor, retaining control over and responsibility for its own operations and personnel. Neither
WCP nor any of its Affiliates (other than the LLC and its Subsidiaries), nor any of their
respective members, partners, directors, managers, officers, principals, employees or agents, shall
be considered employees or agents of the LLC as a result of this Agreement nor shall any of them
have authority as a result of this Agreement to contract in the name of or bind the LLC, except as
expressly agreed to in writing by the LLC.
11. Notices. All notices, demands or other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to
have been given when (a) delivered personally to the recipient, (b) sent to the recipient by
reputable express courier service (charges prepaid), (c) mailed to the recipient by certified or
registered mail, return receipt requested and postage prepaid, or (d) telecopied to the recipient
(with hard copy sent to the recipient by reputable overnight courier service (charges prepaid) that
same day) if telecopied before 5:00 p.m. Chicago, Illinois time on a business day, and otherwise on
the next business day. Such notices, demands and other communications shall be sent to WCP and to
the LLC at the addresses indicated below (or at such other address as shall be given in writing by
one party to the others):
If to WCP:
Waud Capital Partners, L.L.C.
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxx
Xxxxxxx X. Xxxxxxx
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxx
Xxxxxxx X. Xxxxxxx
If to the LLC:
Acadia Healthcare Holdings, LLC
0000 Xxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Board of Managers
0000 Xxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Board of Managers
12. Entire Agreement; Modification. This Agreement, those documents expressly
referred to herein and other documents of even date herewith (a) contain the complete and entire
understanding and agreement of WCP and the LLC with respect to the subject matter hereof and (b)
supersede all prior and contemporaneous understandings, conditions and agreements, oral or written,
express or implied, regarding the engagement of WCP in connection with the subject matter hereof.
The provisions of this Agreement may be amended, modified and/or waived only with the prior written
consent of the LLC and WCP; provided that any amendment to Section 6 that would be
adverse to the Senior Lenders shall require the consent of the Administrative Agent under the
Senior Credit Agreement.
13. Waiver of Breach. The waiver by either party of a breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver of any subsequent breach
of that provision or any other provision hereof.
14. Assignment. Neither WCP nor the LLC may assign its rights or obligations under
this Agreement without the express written consent of the other, except that WCP may assign all or
any of its rights and obligations hereunder to any of its Affiliates.
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15. Successors. This Agreement and all of the obligations and benefits hereunder shall
inure to the successors and permitted assigns of the parties hereto.
16. Counterparts. This Agreement may be executed and delivered by each party hereto in
separate counterparts (including by means of facsimile or electronic transmission in portable
document format (pdf)), each of which when so executed and delivered shall be deemed an original
and both of which taken together shall constitute one and the same agreement.
17. Choice of Law. This Agreement shall be governed by and construed in accordance
with the domestic laws of the State of Delaware, without giving effect to any choice of law or
conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the State of Delaware.
18. MUTUAL WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE
PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE
PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE,
TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, EACH
PARTY TO THIS AGREEMENT HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE BETWEEN THE PARTIES HERETO, WHETHER ARISING IN CONTRACT,
TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THIS AGREEMENT AND/OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
19. No Strict Construction. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. In the event any ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly by the parties
hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
20. Descriptive Headings; Interpretation. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a substantive part of this Agreement.
Whenever required by the context, any pronoun used in this Agreement shall include the
corresponding masculine, feminine, or neuter forms, and the singular form of nouns, pronouns, and
verbs shall include the plural and vice versa. The use of the word “including” in this
Agreement shall be, in each case, by way of example and without limitation. The use of the words
“or,” “either,” and “any” shall not be exclusive. Reference to any
agreement, document, or instrument means such agreement, document, or instrument as amended or
otherwise modified from time to time in accordance with the terms thereof, and, if applicable,
hereof.
* * * * *
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IN WITNESS WHEREOF, the undersigned have caused this Professional Services Agreement to be
duly executed and delivered as of the date and year first above written.
| WCP: WAUD CAPITAL PARTNERS, L.L.C. |
||||
| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Its: Authorized Signatory | ||||
| THE LLC: ACADIA HEALTHCARE COMPANY, LLC |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx X. Xxxxxx | |||
| Its: Chief Executive Officer | ||||
