EXHIBIT 10.1
NINTH AMENDMENT TO LOAN AND SECURITY AGREEMENT AND CONSENT
This Ninth Amendment to Loan and Security Agreement and Consent (this
"NINTH AMENDMENT") is entered into as of the [____]day of September, 2002,
between RAMSAY YOUTH SERVICES, INC., a Delaware corporation, f/k/a RAMSAY HEALTH
CARE, INC. ("HOLDINGS"), with its principal place of business at Columbus
Center, Xxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxx 00000, each of the
Subsidiaries of Holdings party to this Ninth Amendment and listed in EXHIBIT B
to the Loan Agreement (the "HOLDINGS SUBSIDIARIES"), each of which is a
corporation or other legal entity as indicated in EXHIBIT B, is organized under
the laws of the jurisdiction indicated in EXHIBIT B, and has its principal place
of business at the location indicated in EXHIBIT B (Holdings, the Holdings
Subsidiaries, and each other Subsidiary of Holdings or of any Subsidiary of
Holdings from time to time party to the Loan Agreement referred to below are
hereinafter collectively referred to as "BORROWERS" and each individually as a
"BORROWER"), and FLEET CAPITAL CORPORATION, a Rhode Island corporation (in its
individual capacity, "FCC"), with offices at 0000 Xxxxxx Xxxx, Xxxxx 000,
Xxxxxx, Xxxxx 00000, as a Lender, and as agent for all Lenders, in such
capacity, "AGENT"), and such Persons who are or hereafter become parties to the
Loan Agreement as a Lender. Capitalized terms used but not defined in this Ninth
Amendment have the meanings assigned to them in Appendix A of that certain Loan
and Security Agreement and Consent dated October 30, 1998, among Borrowers,
Lenders and Agent, as amended (the "LOAN AGREEMENT").
W I T N E S S E T H:
WHEREAS, by letter dated July 1, 2002, Agent and Lenders consented to
the formation by Holdings of Ramsay Youth Services of Georgia, Inc., a Delaware
corporation, as its wholly-owned subsidiary ("RYSG");
WHEREAS, the Borrowers have requested that Agent and Lenders (i) amend
the Loan Agreement to reflect the addition of RYSG as a subsidiary of Holdings
and a guarantor of the obligations and (ii) consent to (a) the execution of the
Macon Lease (as defined below) by RYSG and Ramsay Hospital Properties, Inc. a
Delaware corporation ("RHPI") and (b) the consummation of the transactions
contemplated therein; and
WHEREAS, subject to the terms and conditions herein contained, Agent
and Lenders have agreed to the Borrowers' request to consent to the execution of
the Macon Lease and the consummation of the transactions contemplated therein
and hereby amend the Loan Agreement as set forth in this Ninth Amendment.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged and confessed,
Borrowers, Agent and Lenders hereby agree as follows:
SECTION 1. Subject to the satisfaction of each condition precedent set
forth in SECTION 3 hereof and in reliance on the representations, warranties,
covenants and agreements contained in this Ninth Amendment, the Loan Agreement
shall be amended effective September [___]2002 (the "NINTH AMENDMENT EFFECTIVE
DATE") in the manner provided in this SECTION 1:
1.1 ADDITIONAL DEFINITIONS. APPENDIX A of the Loan Agreement shall be
and is hereby amended by adding the following definitions to such Appendix:
MACON LEASE - THAT CERTAIN COMMERCIAL LEASE DATED SEPTEMBER
[___], 2002 BY AND AMONG RHPI AND RYSG;
NINTH AMENDMENT - THAT CERTAIN NINTH AMENDMENT TO LOAN AND
SECURITY AGREEMENT AND CONSENT DATED AS OF SEPTEMBER [___], 2002 AMONG
BORROWERS, AGENT AND LENDERS;
NINTH AMENDMENT EFFECTIVE DATE - THE DATE ON WHICH THE NINTH
AMENDMENT BECOMES EFFECTIVE PURSUANT TO SECTION 3 OF THE NINTH
AMENDMENT
RHPI - RAMSAY HOSPITAL PROPERTIES, INC., A DELAWARE
CORPORATION;
RYSG - RAMSAY YOUTH SERVICES OF GEORGIA, INC., A DELAWARE
CORPORATION.
1.2 AMENDMENT TO EXHIBITS. Exhibits B, D, E, F, G, J, L and V to the
Loan Agreement shall be amended in their entirety by substituting Exhibits B, D,
E, F, G, J, L and V attached hereto for such Exhibits.
1.3 CORPORATE OR NAME CHANGE. SUBSECTION 8.1.12 of the Loan and
Security Agreement is hereby added to Section 8 as follows:
8.1.12 CORPORATE OR NAME CHANGE. EACH BORROWER WILL NOTIFY
AGENT IN WRITING THIRTY (30) DAYS PRIOR TO ANY CHANGE IN SUCH
BORROWER'S NAME, IDENTITY OR CORPORATE STRUCTURE. NO BORROWER SHALL
CHANGE ITS STATE OF ORGANIZATION WITHOUT THE PRIOR WRITTEN CONSENT OF
AGENT.
1.4 AMENDMENT TO TOTAL INDEBTEDNESS. Subsections (xi) and (xii) of
SUBSECTION 8.2.3 of the Loan and Security Agreement shall be amended in their
entirety as follows:
(XI) INDEBTEDNESS OF HOLDINGS INCURRED IN CONNECTION WITH THE
GUARANTY OF THE MACON LEASE; AND
(XII) INDEBTEDNESS NOT INCLUDED IN PARAGRAPHS (I) THROUGH (XI)
ABOVE WHICH BY ITS TERMS IS UNSECURED AND DOES NOT EXCEED AT ANY TIME,
IN THE AGGREGATE, THE SUM OF FIVE HUNDRED THOUSAND DOLLARS ($500,000).
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1.5 AMENDMENT TO LEASES. SUBSECTION 8.2.16 of the Loan and Security
Agreement shall be amended in its entirety to read as follows:
8.2.16 LEASES. BECOME OR PERMIT ANY OF THE SUBSIDIARIES OF
HOLDINGS TO BECOME, A LESSEE UNDER ANY OPERATING LEASE EXECUTED AFTER
THE CLOSING DATE (OTHER THAN A LEASE UNDER WHICH A BORROWER OR ANY OF
ITS SUBSIDIARIES IS LESSOR OR THE MACON LEASE) OF PROPERTY IF THE
AGGREGATE RENTALS PAYABLE DURING ANY CURRENT OR FUTURE PERIOD OF 12
CONSECUTIVE MONTHS UNDER THE LEASE IN QUESTION AND ALL OTHER LEASES
EXECUTED AFTER THE CLOSING DATE UNDER WHICH HOLDINGS OR ANY OF ITS
SUBSIDIARIES IS THEN LESSEE WOULD EXCEED $500,000. THE TERM "RENTALS"
MEANS, AS OF THE DATE OF DETERMINATION, ALL PAYMENTS WHICH THE LESSEE
IS REQUIRED TO MAKE BY THE TERMS OF ANY LEASE.
SECTION 2. CONSENT. Effective as of the Ninth Amendment Effective Date,
Agent and Lenders hereby consent to (i) RYSG's execution of the Macon Lease with
RHPI as landlord pursuant to the reasonable requirements of RYSG's business and
upon terms which are fully disclosed to Agent and no less favorable than would
be obtained in a comparable arm's length transaction with a Person not an
Affiliate of RYSG as required by SECTION 8.2.4 and (ii) the consummation of the
transactions contemplated in the Macon Lease. Borrowers acknowledge and agree
that the foregoing consents are limited solely to the matters expressly set
forth. Nothing contained in the consent set forth herein shall obligate Agent
and Lenders to grant any additional or future consent pursuant to SECTION 8.2.4
of the Loan Agreement or any other provision of the Loan Agreement or any other
Loan Document.
SECTION 3. CONDITIONS PRECEDENT TO EFFECTIVENESS OF AMENDMENTS. The
amendments to the Loan Agreement contained in SECTION 1 of this Ninth Amendment
shall be effective only upon the satisfaction of each of the conditions set
forth in this SECTION 3. If each condition set forth in this SECTION 3 has not
been satisfied by September [____], 2002, this Ninth Amendment and all
obligations of Lenders contained herein shall, at the option of Lenders,
terminate.
3.1 DOCUMENTATION. Agent and Lenders shall have received, in form and
substance acceptable to Agent and Lenders and their counsel, a duly executed
copy of this Ninth Amendment. Agent and each Lender shall have received, in form
and substance acceptable to Agent and Lenders and their counsel, a duly executed
original of each of the following: (i) Pledge Amendment of Holdings, (ii)
Guaranty of RYSG, (iii) Security Agreement of RYSG, (iv) Landlord Agreement
between RHPI and Agent and (v) any other documents, instruments and certificates
as Agent and Lenders and their counsel shall require in connection therewith
prior to the date hereof, all in form and substance satisfactory to Agent and
Lenders and their counsel.
3.2 2007 SUBORDINATED DEBT DOCUMENTS. ING and SunTrust shall have (i)
consented to (a) RYSG's execution of the Macon Lease and (b) the execution by
Holdings' of the Guarantee of the Macon Lease and the consummation of the
transactions contemplated thereby and (ii) amended the 2007 Subordinated Debt
Documents in a manner and on terms and conditions satisfactory to the Agent and
Lenders.
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3.3 CORPORATE EXISTENCE AND AUTHORITY. Agent and Lenders shall have
received such resolutions, certificates and other documents as Agent and Lenders
shall request relative to the authorization, execution and delivery by each Loan
Party of this Ninth Amendment, including, but not limited to the following:
1. Company General Certificate for RYSG;
2. Copy of Resolutions of RYSG, authorizing the execution of the
Ninth Amendment and the other documents required by Section
3.1 hereof; and
3. Good Standing Certificates for RYSG from its state of
incorporation.
3.4 NO DEFAULT. No Default or Event of Default shall exist.
3.5 NO LITIGATION. No action, proceeding, investigation, regulation or
legislation shall have been instituted, threatened or proposed before any court,
governmental agency or legislative body to enjoin, restrain or prohibit, or to
obtain damages in respect of, or which is related to or arises out of this Ninth
Amendment, the Loan Agreement or the consummation of the transactions
contemplated hereby.
3.6 FEE. Borrowers shall have paid to Agent an amendment fee of $2,500.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF BORROWERS AND RYSG. To
induce Agent and Lenders to enter into this Ninth Amendment, each Loan Party
hereby represents and warrants to Agent and Lenders as follows:
4.1 NO LIABILITIES OF RYSG. RYSG has no material liabilities,
indebtedness or other obligations (including, without limitation, contingent
liabilities).
4.2 REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each
representation and warranty of any Loan Party contained in the Loan 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 (i) the amendments
set forth in SECTION 1 hereof and (ii) the formation of RYSG.
4.3 NO OUTSTANDING JUNIOR SUBORDINATED DEBT OR PREFERRED STOCK. As of
the date hereof, there is no outstanding Indebtedness with respect to the Junior
Subordinated Debt Documents and no Preferred Stock is outstanding.
4.4 CORPORATE AUTHORITY; NO CONFLICTS. The execution, delivery and
performance by each Borrower of this Ninth Amendment and all documents,
instruments and agreements contemplated herein are within each Borrower's
respective corporate powers, have been duly authorized by necessary action,
require no action by or in respect of, or filing with, any court or agency of
government and do not violate or constitute a default under any provision of
applicable Law or any material agreement binding upon any Loan Party or result
in the creation or imposition of any Lien upon any of the assets of any Loan
Party except as permitted in the Loan Agreement, as amended hereby.
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4.5 ENFORCEABILITY. This Ninth Amendment constitutes the valid and
binding obligation of each of the Borrowers enforceable in accordance with its
terms, except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally, and (ii) the
availability of equitable remedies may be limited by equitable principles of
general application.
4.6 NO DEFENSES. No Loan Party has any defenses to payment,
counterclaims or rights of set off with respect to the Obligations.
SECTION 5. MISCELLANEOUS.
5.1 REAFFIRMATION OF LOAN DOCUMENTS; EXTENSION OF LIENS. Any and all of
the terms and provisions of the Loan Agreement and the Loan Documents shall,
except as amended and modified hereby, remain in full force and effect.
Borrowers hereby extend the Liens securing the Obligations until the Obligations
have been paid in full, and agree that the amendments and modifications herein
contained shall in no manner affect or impair the Obligations or the Liens
securing the payment and performance thereof.
5.2 PARTIES IN INTEREST. All of the terms and provisions of this Ninth
Amendment shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns.
5.3 LEGAL EXPENSES. The Borrowers hereby agree to pay promptly
following receipt of an invoice detailing all reasonable fees and expenses of
counsel to Agent and Lenders incurred by Agent or any Lender, in connection with
the preparation, negotiation and execution of this Ninth Amendment and all
related documents.
5.4 COMPLETE AGREEMENT. THIS NINTH AMENDMENT, THE LOAN AGREEMENT AND
THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
5.5 HEADINGS. The headings, captions and arrangements used in this
Ninth Amendment are, unless specified otherwise, for convenience only and shall
not be deemed to limit, amplify or modify the terms of this Ninth Amendment, nor
affect the meaning thereof.
(SIGNATURE PAGES FOLLOW)
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IN WITNESS WHEREOF, the parties hereto have caused this Ninth Amendment
to be duly executed by their respective authorized officers on the date and year
first above written.
BORROWERS:
RAMSAY YOUTH SERVICES, INC.
By:
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Xxxxxx X. Xxxxxxx
Executive Vice President
BOUNTIFUL PSYCHIATRIC HOSPITAL, INC.
EAST CAROLINA PSYCHIATRIC SERVICES CORPORATION
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.
f/k/a RAMSAY EDUCATIONAL 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.
RHCI SAN ANTONIO, INC.
TRANSITIONAL CARE VENTURES, INC.
TRANSITIONAL CARE VENTURES (TEXAS), INC.
By:
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Xxxxxx X. Xxxxxxx
Vice President
H. C. PARTNERSHIP
By: H.C. CORPORATION, General Partner
By: HSA HILL CREST CORPORATION, General Partner
By:
--------------------------------------------
Xxxxxx X. Xxxxxxx
Vice President
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AGENT AND LENDERS:
FLEET CAPITAL CORPORATION
("Agent" and a "Lender")
By:
--------------------------------------------------
Xxxxxx X. Xxxxxx
Senior Vice President
Revolving Credit Loan Commitment: $15,000,000.00
Revolving Credit Percentage: 100%
Term Loan Commitment: $ 6,945,763.00
Term Loan Percentage: 100%
Acquisition Loan Commitment: $ 364,862.87
Acquisition Loan Percentage: 100%
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CONSENT AND REAFFIRMATION
The undersigned (each a "GUARANTOR") hereby (i) acknowledges receipt of a
copy of the foregoing Ninth Amendment to Loan and Security Agreement and Consent
(the "NINTH AMENDMENT"); (ii) consents to Borrowers' 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 Borrowers to Lenders pursuant to the terms of its Guaranty in
favor of Agent and the Lenders (the "GUARANTY") and reaffirms that the Guaranty
is and shall continue to remain in full force and effect. Although Guarantor has
been informed of the matters set forth herein and has acknowledged and agreed to
same, Guarantor understands that the Lenders have no obligation to inform
Guarantor of such matters in the future or to seek Guarantor's acknowledgment or
agreement to future amendments or waivers, and nothing herein shall create such
duty.
IN WITNESS WHEREOF, the undersigned has executed this Consent and
Reaffirmation on and as of the date of the Ninth Amendment.
GUARANTOR:
RAMSAY YOUTH SERVICES OF GEORGIA, INC.
By:
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Xxxxxx X. Xxxxxxx
President
RAMSAY YOUTH SERVICES PUERTO RICO, INC.
By:
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Xxxxxx X. Xxxxxxx
Vice President
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EXHIBIT B
BORROWERS AND EACH SUBSIDIARY'S BUSINESS LOCATIONS
[SEE ATTACHED]
EXHIBIT D
JURISDICTIONS IN WHICH EACH BORROWER AND EACH SUBSIDIARY
ARE AUTHORIZED TO DO BUSINESS
[SEE ATTACHED]
EXHIBIT E
CAPITAL STRUCTURE OF BORROWERS
[SEE ATTACHED]
EXHIBIT F
CORPORATE NAMES
[SEE ATTACHED]
EXHIBIT G
TAX IDENTIFICATION NUMBERS OF SUBSIDIARIES
[SEE ATTACHED]
EXHIBIT J
[SEE ATTACHED]
EXHIBIT L
[SEE ATTACHED]
EXHIBIT V
[SEE ATTACHED]
