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EXHIBIT 10.150
SECOND AMENDMENT TO AMENDED AND RESTATED
SUBORDINATED NOTE AND WARRANT PURCHASE AGREEMENT
This SECOND AMENDMENT TO AMENDED AND RESTATED SUBORDINATED NOTE AND
WARRANT PURCHASE AGREEMENT (this "Amendment") is made and entered into as of
April 16, 2001, by and between RAMSAY YOUTH SERVICES, INC., a corporation
organized under the laws of the State of Delaware, as issuer of the Notes and
the Warrants (the "COMPANY"), each of the subsidiaries of the Company listed on
the signature pages hereto, as guarantors (individually, a "GUARANTOR" and,
collectively, the "GUARANTORS"), SUNTRUST BANKS, INC., ("SUNTRUST"), ING (U.S.)
CAPITAL, LLC ("ING"; ING and SunTrust individually a "PURCHASER" and
collectively the "PURCHASERS").
W I T N E S S E T H :
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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, dated as of July 31, 2000, (as amended, restated, modified or
otherwise supplemented from time to time, the "Purchase Agreement"), pursuant to
which the Purchasers made a $10,000,000 subordinated debt investment in the
Company;
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;
NOW THEREFORE, in consideration of the terms and conditions contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
A. DEFINITIONS. Capitalized terms used but not otherwise defined herein
shall have the meanings given to such terms in the Purchase Agreement.
B. AMENDMENT TO SECTION 1.1 OF THE PURCHASE AGREEMENT. Section 1.1 of the
Purchase Agreement is amended by replacing the definition therein of
"Total Debt to EBITDA Ratio" with the following new definition:
"TOTAL DEBT TO EBITDA RATIO" shall mean, with respect to the
Company and its Subsidiaries on a consolidated basis, as of any
calculation date, the ratio of (a) Money Borrowed, less the amount of
unrestricted cash balances of the Company, as of such date, to (b)
EBITDA for the preceding four fiscal quarter period then ending.
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C. AMENDMENT TO SECTION 8.12 OF THE PURCHASE AGREEMENT. Section 8.12 of
the Purchase Agreement is amended by replacing such subsection in its
entirety with the following new subsection 8.12:
"FINANCIAL COVENANTS. At any time during the term of this
Agreement, have a Total Debt to EBITDA Ratio, calculated on the last
day of each fiscal quarter of the Company, commencing with the quarter
ending December 31, 1999, of more than 3.80:1.0.; PROVIDED, HOWEVER,
that notwithstanding anything to the contrary contained herein, the
following amounts shall be added to the Company's EBITDA for each of
the following fiscal quarters for purposes of this Section 8.12:
FISCAL QUARTER ENDING AMOUNT
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December 31, 1999 $538,000
March 31, 2000 $664,000
June 30, 2000 $731,000
September 30, 2000 $455,000
December 31, 2000 $549,000"
D. CONDITIONS TO EFFECTIVENESS OF AMENDMENT. This Amendment shall become
effective (the "SECOND AMENDMENT EFFECTIVE DATE") when each Purchaser
shall have received a duly executed counterpart of this Amendment
executed by each party hereto.
E. REPRESENTATIONS AND WARRANTIES. The Company hereby represents and
warrants to the Purchasers that:
(a) the execution, delivery and performance of this Amendment
(i) is within Company's corporate power; (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 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;
(b) this Amendment has been duly executed and delivered for
the benefit or on behalf of Company and constitutes the legal, valid and binding
obligation of Company, 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; and
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(c) after giving effect to this Amendment, all of
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.
F. 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.
G. 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.
H. ENTIRE UNDERSTANDING. This Amendment constitutes the entire agreement
between 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.
I. 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.
J. 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 shall together constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as of the date first above written.
COMPANY:
RAMSAY YOUTH SERVICES, INC.
By:
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Xxxxxx X. Xxxxxxx
Executive Vice President
SUBSIDIARY GUARANTORS:
XXXXXXX PSYCHIATRIC HOSPITAL, INC., an Oklahoma
corporation
BOUNTIFUL PSYCHIATRIC HOSPITAL, INC., a Utah corporation
EAST CAROLINA PSYCHIATRIC SERVICES CORPORATION, a North
Carolina corporation
GREAT PLAINS HOSPITAL, INC., a Missouri corporation
GULF COAST TREATMENT CENTER, INC., a Florida corporation
H.C. CORPORATION, an Alabama corporation
HAVENWYCK HOSPITAL, INC., a Michigan corporation
HSA HILL CREST CORPORATION, an Alabama corporation
HSA OF OKLAHOMA, INC., an Oklahoma corporation
MICHIGAN PSYCHIATRIC SERVICES, INC., a Michigan
corporation
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RAMSAY EDUCATIONAL SERVICES, INC., a Delaware
corporation
RAMSAY HOSPITAL CORPORATION OF LOUISIANA, INC., a
Louisiana corporation
RAMSAY LOUISIANA, INC., a Delaware corporation
RAMSAY MANAGED CARE, INC., a Delaware corporation
RAMSAY YOUTH SERVICES OF ALABAMA, INC., a Delaware
corporation
RAMSAY YOUTH SERVICES OF FLORIDA, INC., a Delaware
corporation
RAMSAY YOUTH SERVICES OF SOUTH CAROLINA, INC., a
Delaware corporation
RAMSAY YOUTH SERVICES PUERTO RICO, INC., a Puerto Rico
corporation
RHCI SAN ANTONIO, INC., a Delaware corporation
TRANSITIONAL CARE VENTURES, INC., a Delaware corporation
TRANSITIONAL CARE VENTURES (TEXAS), INC., a Delaware
corporation
By:
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Xxxxxx X. Xxxxxxx
Vice President
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H.C. PARTNERSHIP
By: H.C. CORPORATION, an Alabama
corporation, as a general partner
By:
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Xxxxxx X. Xxxxxxx
Vice President
By: HSA HILL CREST
CORPORATION,
an Alabama corporation, as a
general partner
By:
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Xxxxxx X. Xxxxxxx
Vice President
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PURCHASERS:
SUNTRUST BANKS, INC.
By:
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Xxxxxx X. Xxxxxx
Group Vice President
ING (U.S.) CAPITAL LLC
By:
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Xxxxxx X. Xxxxxxx
Director
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