EXHIBIT 10.21
TERM NOTE E
U.S. $7,950,000 Dated: June 28, 2002
FOR VALUE RECEIVED, the undersigned, PSYCHIATRIC SOLUTIONS, INC., a
Delaware corporation, PSYCHIATRIC SOLUTIONS OF ALABAMA, INC., a Tennessee
corporation, PSYCHIATRIC SOLUTIONS OF FLORIDA, INC., a Tennessee corporation,
PSYCHIATRIC SOLUTIONS OF TENNESSEE, INC., a Tennessee corporation, SOLUTIONS
CENTER OF LITTLE ROCK, INC., a Tennessee corporation, PSYCHIATRIC SOLUTIONS OF
NORTH CAROLINA, INC., a Tennessee corporation, PSI COMMUNITY MENTAL HEALTH
AGENCY MANAGEMENT, INC., a Tennessee corporation, PSI-EAP, INC., a Delaware
corporation, SUNSTONE BEHAVIORAL HEALTH, INC., a Tennessee corporation, THE
COUNSELING CENTER OF MIDDLE TENNESSEE, INC., a Tennessee corporation, PSI
HOSPITALS, INC., a Delaware corporation, PSI TEXAS HOSPITALS, LLC, a Texas
limited liability company, PSYCHIATRIC PRACTICE MANAGEMENT OF ARKANSAS, INC., a
Tennessee corporation, TEXAS CYPRESS CREEK HOSPITAL, L.P., a Texas limited
partnership, TEXAS WEST OAKS HOSPITAL, L.P., a Texas limited partnership, NEURO
INSTITUTE OF AUSTIN, L.P., a Texas limited partnership, AERIES HEALTHCARE
CORPORATION, a Delaware corporation, AERIES HEALTHCARE OF ILLINOIS, INC., an
Illinois corporation, XXXXX XXXX REAL ESTATE, LLC, a North Carolina limited
liability company, CYPRESS CREEK REAL ESTATE, L.P., a Texas limited partnership,
WEST OAKS REAL ESTATE, L.P., a Texas limited partnership, and NEURO REHAB REAL
ESTATE, L.P., a Texas limited partnership (individually and collectively,
"BORROWER"), hereby promises to pay to CAPITALSOURCE FINANCE LLC ("LENDER") the
unpaid principal amount at any time outstanding, which shall not exceed SEVEN
MILLION NINE HUNDRED FIFTY THOUSAND DOLLARS ($7,950,000) (the "TERM LOAN"), with
interest thereon and all other Obligations under the Revolving Credit and Term
Loan Agreement dated as of November 30, 2001, between Borrower, Agent and
Lenders (as those terms are defined therein) (as heretofore and may hereafter be
amended, supplemented or otherwise modified from time to time, the "LOAN
AGREEMENT"), on the Term Loan Maturity Date (as defined below) or otherwise at
the times and in the manner set forth in the Loan Agreement. Capitalized terms
used but not defined herein shall have the meanings given them in the Loan
Agreement.
1. INTEREST PAYMENTS. (a) Borrower promises to pay interest on
the outstanding principal amount of the Term Loan from the date of funding of
the Term Loan until such principal amount is irrevocably paid in full in cash.
Interest on the outstanding principal amount of the Term Loan under this Term
Note E (the "TERM NOTE") shall be due and payable monthly in arrears on the
first calendar day of each calendar month, commencing July 1, 2002, at an annual
rate of the Prime Rate, plus 4.75%; provided, however, that, notwithstanding any
other provision of this Agreement or any other Loan Document, the interest on
the outstanding principal balance of the Term Loan under this Term Note E shall
be not less than 10.0%, in each case calculated on the basis of a 360-day year
and for the actual number of calendar days elapsed in each interest calculation
period.
(b) Advances under the Revolving Facility shall be made
automatically for the payment of interest on the Term Loan and other Obligations
on the date when due to the extent available and as provided for in the Loan
Agreement. Any payments of principal or interest or other amounts on or payments
under this Term Note not paid automatically through Advances under the Revolving
Facility as provided in the Loan Agreement shall be paid to
Lender only by wire transfer on the date when due, without offset or
counterclaim, in dollars in immediately available funds as required in the Loan
Agreement. Notwithstanding and without limiting or being limited by any other
provision of this Term Note, any payments or prepayments received upon
termination or otherwise under this Term Note shall be credited and applied in
such manner and order as Lender shall decide in its sole discretion.
2. PRINCIPAL PAYMENT AND MATURITY. Unless earlier due and payable
or accelerated under the Loan Agreement, this Term Note shall mature, and the
outstanding principal balance hereunder and other Obligations under the Term
Loan, together with all other outstanding amounts due hereunder and under the
Loan Agreement, shall be made monthly pursuant to the Loan Agreement beginning
July 1, 2002 and continuing on the 1st day of each month thereafter through the
last month of the Term Loan Term; and (b) the unpaid principal of the Term Loan
and all other Obligations under the Term Loan shall be due and payable in full,
and this Term Note shall mature, if not earlier in accordance with the Loan
Agreement, on the earlier of (i) the occurrence of an Event of Default if
required pursuant to the Loan Agreement or Lender's demand upon an Event of
Default, and (ii) the last day of the Term Loan Term (such earlier date being
the "TERM LOAN MATURITY DATE"). Until such time as the Obligations relating to
the Term Loan are indefeasibly paid in full in cash and fully performed, fifty
percent (50%) of Borrower's Excess Cash Flow for each fiscal year shall be paid
by Borrower to Lender and shall be applied by Lender to reduce the outstanding
balance of the Obligations relating to the Term Loan all in accordance with the
Loan Agreement.
3. LATE FEE; DEFAULT RATE. (a) Notwithstanding any other
provision of this Term Note or the Loan Agreement or any Loan Document, if any
payment, interest, Obligation, fee, charge or other amount due hereunder or
under any other Loan Document is not received by Lender within three (3)
Business Days of the day such payment is due and payable, then Borrower shall
pay to Lender a late charge equal to fifteen percent (15.0%) of the amount of
such interest or other payment not timely made.
(b) Upon the occurrence of an Event of Default and during
the continuation thereof, the Applicable Rate of interest in effect at such time
with respect to the Obligations shall be increased by five percent (5.0%) per
annum.
4. LOAN AGREEMENT AND SECURITY AGREEMENT. (a) This Term Note is
referred to in, made pursuant to, and entitled to the benefits of, the Loan
Agreement. The Loan Agreement, among other things, (i) provides for the making
of the Term Loan by Xxxxxx to Borrower in the dollar amount first mentioned
above, (ii) contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events upon the terms and conditions therein
specified, and (iii) contains provisions defining an Event of Default and the
rights and remedies of Lender upon the occurrence of an Event of Default.
(b) This Term Note is a secured note, entitled to the
benefits of and security interests granted in, among other things, that certain
Security Agreement dated as of even date herewith, between Borrower and Agent,
and the other Security Documents (as such Security Agreement and other Security
Documents have been heretofore and may hereafter be amended, supplemented or
otherwise modified from time to time).
5. PREPAYMENTS. This Term Note may be prepaid in whole or in part
upon notice to Lender and shall be prepaid in whole, in each case as provided or
required in the Loan Agreement and upon payment of all fees and other
Obligations set forth therein. No payment or
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prepayment of any amount shall entitle any Person to be subrogated to the rights
of Lender hereunder or under the Loan Agreement unless and until the Obligations
have been performed in full and paid irrevocably in full in cash and the Loan
Agreement has been terminated.
6. PAYMENTS DUE ON A DAY OTHER THAN A BUSINESS DAY. If any
payment to be made on or under this Term Note is stated to be due or becomes due
and payable on a day other than a Business Day, the due date thereof shall be
extended to, and such payment shall be made on, the next succeeding Business
Day, and such extension of time in such case shall be included in the
computation of payment of any interest (at the interest rate then in effect
during such extension) and/or fees, as the case may be.
7. WAIVERS. The Borrower hereby waives demand, presentment,
protest, notice of dishonor or non-payment, as well as all defenses with respect
to this Term Note, the Loan Agreement and/or any Obligation, notice of
acceptance hereof, notice of loans or Advances made, credit extended, collateral
received or delivered, or any other action taken in reliance hereon, and all
other demands and notices of any description, except such as are expressly
provided for herein. The pleading of any statute of limitations as a defense to
any demand against Borrower hereunder is expressly waived by Xxxxxxxx. No cause
of action or dealing, renewal or extension of this Term Note or any Loan
Document or any rights hereunder or thereunder, release of Borrower or any
Guarantor, or delay, failure or omission on Lender's part in enforcing this Term
Note or any other Loan Document or in exercising or enforcing any right, remedy,
option or power hereunder or under any other Loan Document shall affect the
liability of Borrower or any Guarantor or operate as a waiver of such or any
other right, remedy, power or option or of any default, nor shall any single or
partial exercise of any right, remedy, option or power hereunder or under any
other Loan Document affect the liability of Borrower or any Guarantor or
preclude any other or further exercise of such or any other right, remedy, power
or option. No waiver of any one or more defaults in the performance of any of
the provisions of this Term Note shall operate or be construed as a waiver of
any future default or defaults, whether of a like or different nature.
8. EXERCISE OF RIGHTS. (a) Lender shall have the right in its
sole discretion to determine which rights, powers, Liens, security interests or
remedies Lender may at any time pursue, relinquish, subordinate or modify or to
take any other action with respect thereto, and such determination will not in
any way modify or affect any of Lender's rights, powers, Liens, security
interests or remedies hereunder or under any of the Loan Documents, under
applicable law or at equity.
(b) The enumeration of the foregoing rights and remedies
is not intended to be exhaustive. The rights and remedies of Lender described
herein are cumulative and are not alternative to or exclusive of any other
rights or remedies which Lender otherwise may have by contract or at law or in
equity, and the partial or complete exercise of any right or remedy shall not
preclude any other further exercise of such or any other right or remedy.
9. LAWFUL LIMITS. This Term Note is expressly limited so that in
no contingency or event whatsoever, whether by reason of acceleration or
otherwise, shall the interest and other charges paid or agreed to be paid to
Lender for the use, forbearance or detention of money hereunder exceed the
maximum rate permissible under applicable law which a court of competent
jurisdiction shall, in a final determination, deem applicable hereto. If, due to
any circumstance whatsoever, fulfillment of any provision hereof, at the time
performance of such provision shall be due, shall exceed any such limit, then
the obligation to be so fulfilled shall be reduced to such lawful limit, and, if
Lender shall have received interest or any other charges of any kind which
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might be deemed to be interest under applicable law in excess of the maximum
lawful rate, then such excess shall be applied first to any unpaid fees and
charges hereunder, then to unpaid principal balance owed by Xxxxxxxx hereunder,
and if the then remaining excess interest is greater than the previously unpaid
principal balance hereunder, Lender shall promptly refund such excess amount to
Borrower and the provisions hereof shall be deemed amended to provide for such
permissible rate. The terms and provisions of this Section 9 shall control to
the extent any other provision of this Term Note or any Loan Document is
inconsistent herewith.
10. GOVERNING LAW. This Term Note shall be governed by and
construed in accordance with the internal laws of the State of Maryland without
giving effect to its choice of laws provisions.
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Executed as of the date first written above.
PSYCHIATRIC SOLUTIONS, INC.
PSYCHIATRIC SOLUTIONS OF ALABAMA, INC.
PSYCHIATRIC SOLUTIONS OF FLORIDA, INC.
PSYCHIATRIC SOLUTIONS OF TENNESSEE, INC.
SOLUTIONS CENTER OF LITTLE ROCK, INC.
PSYCHIATRIC SOLUTIONS OF NORTH CAROLINA, INC.
PSI COMMUNITY MENTAL HEALTH AGENCY MANAGEMENT, INC.
PSI-EAP, INC.
SUNSTONE BEHAVIORAL HEALTH, INC.
THE COUNSELING CENTER OF MIDDLE TENNESSEE, INC.
PSI HOSPITALS, INC.
PSI TEXAS HOSPITALS, LLC
PSYCHIATRIC PRACTICE MANAGEMENT OF ARKANSAS, INC.
AERIES HEALTHCARE CORPORATION
AERIES HEALTHCARE OF ILLINOIS, INC.
XXXXX XXXX REAL ESTATE, LLC
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
-------------------------------------------
Title: Vice President
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TEXAS CYPRESS CREEK HOSPITAL, L.P.
By: PSI Texas Hospitals, LLC,
its general partner
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------------------
Title: Vice President
---------------------------------------
TEXAS WEST OAKS HOSPITAL, L.P.
By: PSI Texas Hospitals, LLC,
its general partner
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
--------------------------------------
Title: Vice President
--------------------------------------
NEURO INSTITUTE OF AUSTIN, L.P.
By: PSI Texas Hospitals, LLC,
its general partner
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
-------------------------------------
Title: Vice President
----------------------------------
CYPRESS CREEK REAL ESTATE, L.P.
By: PSI Texas Hospitals, LLC,
its general partner
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
WEST OAKS REAL ESTATE, L.P.
By: PSI Texas Hospitals, LLC,
its general partner
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------------------
Title: Vice President
--------------------------------------
NEURO REHAB REAL ESTATE, L.P.
By: PSI Texas Hospitals, LLC,
its general partner
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxx
--------------------------------------
Title: Vice President
-------------------------------------
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