AMENDMENT TO AMENDED AND RESTATED SENIOR SECURED NOTE
Exhibit
10.1
THIS
AMENDMENT NO. 1 TO AMENDED AND RESTATED SENIOR SECURED NOTE (this “Amendment”)
is entered into as of August 11, 2009 by and among Hythiam, Inc., a Delaware
corporation (the “Company”)
and HIGHBRIDGE INTERNATIONAL LLC (“Holder”). Capitalized
terms used but not defined herein shall have the meanings ascribed to such terms
in the Amended and Restated Note (as defined below).
WHEREAS,
Company executed and issued that certain Amended and Restated Senior Secured
Note (the “Note”)
in the principal amount of Five Million Dollars ($5,000,000) to be paid to
Holder dated as of January 18, 2007;
WHEREAS,
on August 5, 2009, the outstanding balance on the Note was Three Million Six
Hundred and Fifty Thousand Dollars ($3,650,000).
WHEREAS,
each of the parties hereto desire to amend the Note as set forth herein;
and
WHEREAS,
pursuant to Section 11
of the Note, the Required Holders by an affirmative vote approved the amendment
to the Note.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. MATURITY. The
last sentence of Section 1 of the Note is amended and restated in its entirety
as follows:
“The
‘Maturity
Date’ shall be July 15, 2010.”
2. AUCTION
RATE SECURITIES. The following shall be added to the end of
Section 5(b):
“In
accordance with the terms of the Rights Offering by UBS AG, which
provides that UBS will offer to purchase Company’s ARS commencing June 30, 2010,
the Company will exercise its right to sell its ARS to UBS AG as soon
as permissible at a price equal to the original par value of such
ARS. The proceeds from such sale shall be used to redeem this
Note.”
3. HOLDER’S
RIGHT OF OPTIONAL REDEMPTION. Section 6(b) of the
Note is deleted in its entirety and all references to Holder Optional Redemption
Right, Holder Optional Redemption Notice, Holder Optional Redemption Price,
Holder Optional Redemption Date, and Holder Optional Redemption Amount in the
Note are deleted.
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4. PRE-PAYMENT
OF NOTE FROM CAPITAL. The following shall be added to the Note
as a new Section 5(d):
“(d) Pre-Payment
of Note from Capital Raises. If the Company (i) incurs any
Permitted Indebtedness as defined in Section 24(k)(F), or (ii) sells any of its
or its Subsidiaries’ equity or equity equivalent securities, including, without
limitation any convertible debt, preferred stock, common stock, or other such
instrument or security, the Company shall pay from the aggregate amount of such
capital raised, whether in one or more capital raisings (a “Capital
Raising Transaction”) at any time from time to time after the date of
this Amendment (the “Capital
Raising Proceeds”) to Holder one hundred ten percent (110%) of the
original principal amount of the Note, in accordance with the
following: (i) five percent (5%) of the Capital Raising Proceeds if
the Capital Raising Proceeds is Ten Million Dollars ($10,000,000) or less, (ii)
five percent (5%) of the first Ten Million Dollars ($10,000,000) of Capital
Raising Proceeds and ten percent (10%) thereafter if the Capital Raising
Proceeds is more than Ten Million Dollars ($10,000,000) but less than or equal
to Fifteen Million Dollars ($15,000,000); or (iii) five percent (5%) of the
first Ten Million Dollars ($10,000,000) of Capital Raising Proceeds, ten percent
(10%) of the next Five Million Dollars ($5,000,000) of Capital Raising Proceeds
over the first Ten Million Dollars ($10,000,000) and all proceeds from the
Capital Raising Proceeds above Fifteen Million Dollars ($15,000,000) until the
outstanding balance of the Note is paid in full if the Capital Raising Proceeds
is over Fifteen Million Dollars ($15,000,000). Redemptions made
pursuant to this Section 5(d) shall be made in accordance with Section 8, with
any amounts payable pursuant to this Section 5(d) being deemed a Company
Optional Redemption Price; provided, however, that all such amounts shall be
payable within one (1) Business Day of the closing of the Capital Raising
Transaction.”
5. Full
Force and Effect. Other than as modified in accordance with
the foregoing provisions, the remaining terms of the Note remain in full force
and effect.
6. Counterparts. This
Amendment may be executed in several counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
document.
7. Governing
Law. This Amendment shall be governed by and construed and
interpreted in accordance with the laws of the State of New York without giving
effect to conflict of laws principles thereof.
8. Headings. Headings
of Sections in this Amendment are for reference purposes only and shall not
be deemed to have any substantive effect.
[Remainder
of this page intentionally left blank; Signature page to follow.]
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IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date
first above written.
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COMPANY:
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HYTHIAM,
INC.
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By:
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/s/
XXXXXX X. XXXXXX
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Xxxxxx
X. Xxxxxx
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Chief
Executive Officer
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HOLDER:
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HIGHBRIDGE
INTERNATIONAL LLC
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By:
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Highbridge
Capital Management, LLC
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Its
Trading Manager
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By:
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/s/
XXXX X. XXXXXXXX
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Xxxx
X. Xxxxxxxx
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Managing
Director
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