EXHIBIT 10.151
THIRD AMENDMENT TO AMENDED AND RESTATED SUBORDINATED NOTE
AND WARRANT PURCHASE AGREEMENT AND SECOND AMENDMENT TO
AMENDED AND RESTATED SUBORDINATION AGREEMENT
This Third Amendment to Amended and Restated Note and Warrant Purchase
Agreement and Second Amendment to Amended and Restated Subordination Agreement
(this "AMENDMENT") is entered into as of the 25th day of February, 2002, by and
among RAMSAY YOUTH SERVICES, INC., a Delaware corporation (the "COMPANY"), each
of the Subsidiaries of the Company listed on the signature pages hereto, as
guarantors (the "SUBSIDIARY GUARANTORS"), SUNTRUST BANKS, INC., a Georgia
corporation ("SUNTRUST"), and ING (U.S.) CAPITAL LLC, a Delaware limited
liability company ("ING"; SunTrust and ING individually, a "PURCHASER" and,
collectively, the "PURCHASERS") and FLEET CAPITAL CORPORATION, or any successor
thereto as Agent (the "AGENT") under the Senior Credit Agreement on behalf of
and for the benefit of itself and the Senior Lenders.
W I T N E S S E T H:
WHEREAS, Company, the Subsidiary Guarantors and the Purchasers are
parties to that certain Amended and Restated Subordinated Note and Warrant
Purchase Agreement, dated as of June 19, 2000, as amended by that certain First
Amendment to Amended and Restated Subordinated Note and Warrant Purchase
Agreement and First Amendment to Amended and Restated Subordination Agreement,
dated as of July 31, 2000, and as further amended by that certain Second
Amendment to Amended and Restated Subordinated Note and Warrant Purchase
Agreement, dated as of April 16, 2001 (as amended, restated, modified or
otherwise supplemented from time to time, the "PURCHASE AGREEMENT"; capitalized
terms used herein but not otherwise defined shall have the meanings given to
such terms in the Purchase Agreement);
WHEREAS, Company has requested that the Purchasers make certain
amendments to the Purchase Agreement and the Purchasers are willing to do so on
the terms and conditions set forth herein;
WHEREAS, Company, the Subsidiary Guarantors, the Purchasers and the
Agent are parties to that certain Amended and Restated Subordination Agreement,
dated as of June 19, 2000, as amended by that certain First Amendment to Amended
and Restated Subordinated Note and Warrant Purchase Agreement and First
Amendment to Amended and Restated Subordination Agreement, dated as of July 31,
2000 (as amended, restated, modified or otherwise supplemented from time to
time, the "SUBORDINATION AGREEMENT");
WHEREAS, Company has requested that the Purchasers and the Agent make
certain amendments to the Subordination Agreement and the Purchasers and the
Agent are willing to do so on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the terms and conditions contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
SECTION 1.
1.1 AMENDMENT TO SECTION 8.6 OF THE PURCHASE AGREEMENT. Section 8.6 of
the Purchase Agreement is amended by replacing subsections 8.6(a), 8.6(b) and
8.6(f) thereof in their entirety with the following:
"(a) any Debt owing to any Purchaser;"
"(b) Debt outstanding on the ING Closing Date (other than the
Senior Debt);"
"(f) Senior Debt; PROVIDED, HOWEVER, that in no event shall
the principal amount of the Senior Debt exceed the sum of (i)
$25,951,962 reduced by the amounts of any repayments and
commitment reductions under the Senior Credit Agreement (after
February 25, 2002) to the extent that such payments and
reductions may not be reborrowed, plus, (ii) $5,000,000."
1.2 AMENDMENT TO SECTION 10.1 OF THE PURCHASE AGREEMENT. Section 10.1
of the Purchase Agreement is hereby amended by replacing the contact information
for SunTrust and ING, respectively, as follows:
"If to SunTrust:
SunTrust Banks, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone Number:(▇▇▇) ▇▇▇-▇▇▇▇"
"If to ING:
ING (U.S.) Capital LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy Number: ▇▇▇-▇▇▇-▇▇▇▇
Telephone Number:▇▇▇-▇▇▇-▇▇▇▇"
1.3 AMENDMENT TO SCHEDULES 6.1.1, 6.1.6, 6.1.20, 6.1.22, 8.4 AND 8.9.
The Purchase Agreement is amended by replacing SCHEDULE 6.1.1, SCHEDULE 6.1.6,
SCHEDULE 6.1.20, SCHEDULE 6.1.22, SCHEDULE 8.4 and SCHEDULE 8.9 with the
corresponding schedules attached hereto.
1.4 AMENDMENT TO SCHEDULE 8.6 OF THE PURCHASE AGREEMENT. The Purchase
Agreement is amended by deleting SCHEDULE 8.6 in its entirety.
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1.5 AMENDMENT TO SECTION 1.1 OF THE SUBORDINATION AGREEMENT. Section
1.1 of the Subordination Agreement is hereby amended by replacing the definition
therein of "Senior Indebtedness" with the following new definition:
"SENIOR INDEBTEDNESS" at any time of determination
means and includes the "Obligations" (as such term is defined in the
Senior Credit Agreement) and all other indebtedness, obligations and
liabilities of any Subordinated Indebtedness Obligor under the Senior
Indebtedness Documents, including without limitation all principal,
interest, premiums and other amounts payable thereunder (including,
without limitation, any interest, fees, costs and charges accruing
subsequent to the commencement of an Insolvency Event), at the rate and
in such amounts as are specified in the Senior Credit Agreement or
other Senior Indebtedness Documents which provides for the payment of
such amounts (whether or not any such interest, fees, expenses, costs
and charges are an allowed claim in any such Insolvency Event), whether
now existing or hereafter arising, direct or indirect, primary or
secondary, joint, several or joint and several, final or contingent,
whether advanced or arising prior to or after the commencement of an
Insolvency Event, and whether incurred as maker, endorser, guarantor,
or otherwise including without limitation the aggregate amount of all
advances made by Senior Creditors for the preservation, maintenance,
insurance or protection of any Collateral (as such term is defined in
the Senior Credit Agreement) together with (a) all complete or partial
refinancings of the Obligations (as such term is defined in the Senior
Credit Agreement), and (b) any amendments, modifications, renewals or
extensions thereof; provided, however, that in no event shall the
principal amount of the Senior Indebtedness exceed the sum of (i)
$25,951,962.00 reduced by the amount of any repayments and commitment
reductions under the Senior Credit Agreement (after February 25, 2002
(as such term is defined in the Subordinated Credit Agreement)) to the
extent that such payments and reductions may not be reborrowed, plus
(ii) $5,000,000."
SECTION 2. CONDITIONS TO EFFECTIVENESS OF AMENDMENT. This Amendment
shall become effective (the "AMENDMENT EFFECTIVE DATE") when each Purchaser
shall have received a duly executed counterpart of this Amendment executed by
each party hereto.
SECTION 3. CONSENT. In accordance with Section 8.6 of the Purchase
Agreement, Purchaser hereby consents to Company's and Subsidiary Guarantors'
execution, delivery and performance of the Eighth Amendment to Loan and Security
Agreement and Waiver, in the form attached hereto as Exhibit A, and related
documents entered into by and between Company and Subsidiary Guarantors.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BORROWERS. To induce
Lenders to enter into this Amendment, the Company hereby represents and warrants
to each Lender as follows:
4.1 REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each
representation and warranty of the Company or any Subsidiary Guarantor contained
in the Purchase Agreement, Subordination Agreement and the other Loan Documents,
as amended hereby, is true and correct on the date hereof and will be true and
correct after giving effect to the amendments set forth in SECTION 1 hereof.
3
4.2 CORPORATE AUTHORITY; NO CONFLICTS. The execution, delivery and
performance of this Amendment (i) is within the Company's and each Subsidiary
Guarantor's respective corporate powers, (ii) has been duly authorized by all
necessary corporate and shareholder action, (iii) does not require the consent,
approval, authorization of, or registration or filing with, any Person under any
Material Contract, with any Person under the organizational documents of the
Consolidated Companies, or with any governmental authority other than such
consents, approvals, authorizations, registrations or filings which have been
made or obtained and are in full force and effect, and (iv) will not cause a
breach or default under any of the Consolidated Companies Material Contracts or
organizational documents of any of the Consolidated Companies except as could
not reasonably be expected to have a Material Adverse Effect.
4.3 ENFORCEABILITY. This Amendment has been duly executed and delivered
for the benefit of or on behalf of the Company and constitutes the legal, valid
and binding obligation of Company and each of the Subsidiary Guarantors,
enforceable against it in accordance with its terms, except as the
enforceability hereof may be limited by bankruptcy, insolvency, reorganization,
moratorium and other laws affecting creditors' rights and remedies in general,
and by general principles of equity. or similar laws affecting creditor's rights
generally, and after giving effect to this Amendment, all of the representations
and warranties set forth in Article 6 of the Purchase Agreement are true and
correct in all material respects and no Default or Event of Default has occurred
and is continuing as of the date hereof.
SECTION 5. MISCELLANEOUS.
5.1 SURVIVAL. Except as expressly provided herein, the Purchase
Agreement and the Subordination Agreement shall continue in full force and
effect, and the unamended terms and conditions of the Purchase Agreement and the
Subordination Agreement are expressly incorporated herein and ratified and
confirmed in all respects. This Amendment is not intended to be or to create,
nor shall it be construed as, a novation or an accord and satisfaction.
5.2 EFFECT OF AMENDMENT. From and after the date hereof, references to
the Purchase Agreement shall be references to the Purchase Agreement as amended
hereby and references to the Subordination Agreement shall be references to the
Subordination Agreement as amended hereby.
5.3 ENTIRE UNDERSTANDING. This Amendment constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof.
Neither this Amendment nor any provision hereof may be changed, waived,
discharged, modified or terminated orally, but only by an instrument in writing
signed by the parties required to be a party thereto pursuant to Section 10.4 of
the Purchase Agreement.
5.4 LEGAL EXPENSES. The Company hereby agrees to pay promptly all
reasonable fees and expenses of counsel to each Purchaser incurred by such
Purchaser in connection with the preparation, negotiation and execution of this
Amendment and all related documents.
5.5 GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
AND BE GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW
PRINCIPLES THEREOF) OF THE STATE OF GEORGIA.
4
5.6 COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
together shall constitute one and the same instrument.
5.7 HEADINGS. The headings, captions and arrangements used in this
Amendment are, unless specified otherwise, for convenience only and shall not be
deemed to limit, amplify or modify the terms of this Amendment, nor affect the
meaning thereof.
5.8 MERGER AND NAME CHANGE OF SUBSIDIARIES. Ramsay Treatment Services,
Inc. is the new name of the former Ramsay Educational Services, Inc. ▇▇▇▇▇▇▇
Psychiatric Hospital, Inc., Ramsay Louisiana, Inc. and Ramsay Hospital
Corporation have been merged into Ramsay Managed Care.
5.9 CONSENT AND REAFFIRMATION OF SUBSIDIARY GUARANTY. Each undersigned
Subsidiary Guarantor hereby (i) acknowledges receipt of a copy of the foregoing
Amendment, (ii) consents to the Company's execution and delivery thereof, (iii)
agrees to be bound thereby and (iv) affirms that nothing contained therein shall
modify in any respect whatsoever its guaranty of the obligations of the Company
to the Purchasers pursuant to the terms of its Guaranty in favor of the
Purchasers (the "GUARANTY") and reaffirms that the Guaranty is and shall
continue to remain in full force and effect. Although each Subsidiary Guarantor
has been informed of the matters set forth herein and has acknowledged and
agreed to same, each Subsidiary Guarantor understands that the Purchasers have
no obligation to inform any Subsidiary Guarantor of such matters in the future
or to seek any Subsidiary Guarantor's acknowledgment or agreement to future
amendments or waivers, and nothing herein shall create such duty.
(SIGNATURE PAGES FOLLOW)
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers on the date and year first
above written.
COMPANY:
RAMSAY YOUTH SERVICES, INC.
By:
------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Executive Vice President
SUBSIDIARY GUARANTORS:
BOUNTIFUL PSYCHIATRIC HOSPITAL, INC.
EAST CAROLINA PSYCHIATRIC HOSPITAL, INC.
GREAT PLAINS HOSPITAL, INC.
GULF COAST TREATMENT CENTER, INC.
HAVENWYCK HOSPITAL, INC.
H. C. CORPORATION
HSA HILL CREST CORPORATION
HSA OF OKLAHOMA, INC.
MICHIGAN PSYCHIATRIC SERVICES, INC.
RAMSAY TREATMENT SERVICES, INC.
RAMSAY MANAGED CARE, INC.
RAMSAY YOUTH SERVICES OF ALABAMA, INC.
RAMSAY YOUTH SERVICES OF FLORIDA, INC.
RAMSAY YOUTH SERVICES OF PUERTO RICO, INC.
RAMSAY YOUTH SERVICES OF SOUTH CAROLINA, INC.
RHCI SAN ANTONIO, INC.
TRANSITIONAL CARE VENTURES, INC.
TRANSITIONAL CARE VENTURES (TEXAS), INC.
By:
---------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
6
H. C. PARTNERSHIP
By: H.C. CORPORATION, General Partner
By: HSA HILL CREST CORPORATION, General Partner
By:
-------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
PURCHASERS:
SUNTRUST BANKS, INC.
By:
--------------------------------------------------
Name:
Title:
ING (U.S.) CAPITAL LLC
By:
--------------------------------------------------
Name:
Title:
AGENT:
FLEET CAPITAL CORPORATION
By:
--------------------------------------------------
Name:
Title:
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SCHEDULE 6.1.1
LIST OF SUBSIDIARIES
Bountiful Psychiatric Hospital, Inc.
East Carolina Psychiatric Hospital, Inc.
Great Plains Hospital, Inc.
Gulf Coast Treatment Center, Inc.
Michigan Psychiatric Services, Inc.
Havenwyck Hospital, Inc.
H.C. Partnership
H.C. Corporation
HSA Hill Crest Corporation
HSA of Oklahoma, Inc.
Ramsay Treatment Services, Inc.
Ramsay Managed Care, Inc.
Ramsay Youth Services of Alabama, Inc.
Ramsay Youth Services of Florida, Inc.
Ramsay Youth Services of South Carolina, Inc.
Ramsay Youth Services Puerto Rico, Inc.
RHCI San Antonio, Inc.
Transitional Care Ventures, Inc.
Transitional Care Ventures (Texas), Inc.
SCHEDULE 6.1.6
LITIGATION
None.
SCHEDULE 6.1.16
LIST OF MATERIAL CONTRACTS
BOUNTIFUL PSYCHIATRIC HOSPITAL, INC.
BENCHMARK:
City of Philadelphia Department of Human Services
State of Illinois Department of Children and Family Services
EAST CAROLINA PSYCHIATRIC HOSPITAL, INC.
▇▇▇▇▇ ▇▇▇▇:
Blue Cross/Blue Shield of North Carolina
North Carolina Division of Medical Assistance (Medicaid)
RAMSAY YOUTH SERVICES OF ALABAMA, INC.
DOTHAN:
State of Alabama, Department of Human Resources
GULF COAST TREATMENT CENTER, INC.
Gulf Coast Treatment Center:
State of Florida Department of Juvenile Justice
HAVENWYCK HOSPITAL, INC.:
Blue Cross/Blue Shield of Michigan
GREAT PLAINS HOSPITAL, INC.
HEARTLAND:
Missouri Department of Social Services
HAS HILL CREST CORPORATION/H.C. PARTNERSHIP/H.C. CORPORATION/HILL CREST:
Alabama Medicaid Agency
State of Alabama, Department of Human Resources
RAMSAY YOUTH SERVICES OF FLORIDA, INC.:
MANATEE ADOLESCENT TREATMENT SERVICES:
State of Florida Department of Juvenile Justice
MANATEE PALMS YOUTH SERVICES:
State of Illinois Department of Children and Families
Florida Medicaid
RHCI SAN ANTONIO, INC.
MISSION VISTA:
Medicare
TRANSITIONAL CARE VENTURES (TEXAS), INC.
MISSION VISTA COMPASS UNIT:
Medicare
SCHEDULE 6.1.20
REGISTRATION RIGHTS AGREEMENTS
1. Registration Rights Agreement dated as of October 25, 1994 by and
between the Company and ▇▇▇▇ ▇▇▇▇▇▇ Hospitals Pty. Ltd.
2. Amended and Restated Registration Rights Agreement dated as of June 19,
2000, by and between the Company and SunTrust Banks, Inc.
SCHEDULE 6.1.22
CONTINUING BUSINESS OF COMPANY
None.
SCHEDULE 8.4
ISSUANCE OF STOCK
None.
SCHEDULE 8.9
SALE/LEASEBACK AGREEMENTS
1. Lease Agreement dated April 12, 1995 between Capstone Capital of San
Antonio, LTD, d/b/a Cahaba of San Antonio, Ltd. and RHCI San Antonio,
Inc. in favor of Capstone Capital of San Antonio, Ltd.
2. Lease Agreement dated as of September 28, 1998 between Capstone Capital
Corporation and Havenwyck Hospital, Inc. in favor of Capstone Capital
Corporation.
