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Exhibit 10.144
FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
This Fifth Amendment to Loan and Security Agreement (this "FIFTH
AMENDMENT") is entered into as of the 19th day of June, 2000, 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 Fifth Amendment and listed in EXHIBIT B to the Loan
Agreement referred to below (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 Lenders. Capitalized terms used but not defined in this Fifth
Amendment have the meanings assigned to them in Appendix A of that certain Loan
and Security Agreement 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, the Borrowers have requested certain amendments to the Loan
Agreement to permit Holdings and Holdings Subsidiaries to incur certain
subordinated debt in favor of ING (U.S.) CAPITAL, LLC ("ING"), in an aggregate
principal amount of $5,000,000; and
WHEREAS, subject to the terms and conditions herein contained, Agent
and Lenders have agreed to the Borrowers' request.
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 2 hereof and in reliance on the representations, warranties,
covenants and agreements contained in this Fifth Amendment, the Loan Agreement
shall be amended effective June 19, 2000 (the "FIFTH AMENDMENT EFFECTIVE DATE")
in the manner provided in this SECTION 1:
1.1 AMENDED DEFINITIONS. The following definitions contained in
APPENDIX A to the Loan Agreement shall be amended to read in their entirety as
follows:
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SUBORDINATED DEBT - (I) ALL INDEBTEDNESS EVIDENCED BY THE 2007
SUBORDINATED DEBT DOCUMENTS, (II) ALL INDEBTEDNESS WITH RESPECT TO THE
PREFERRED STOCK, AND (III) ALL OTHER INDEBTEDNESS OF ANY BORROWER THAT
IS SUBORDINATED TO THE OBLIGATIONS IN A MANNER SATISFACTORY TO AGENT.
SUBORDINATION AGREEMENT - THE JUNIOR SUBORDINATED DEBT SUBORDINATION
AGREEMENT OR THE 2007 SUBORDINATION AGREEMENT, AS THE CASE MAY BE.
1.2 ADDITIONAL DEFINITIONS. Appendix A to the Loan Agreement shall be
amended to add the following definitions to such Appendix:
FIFTH AMENDMENT - THE FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
AMONG BORROWERS, LENDERS AND AGENT DATED JUNE 19, 2000.
FIFTH AMENDMENT EFFECTIVE DATE - AS DEFINED IN THE FIFTH AMENDMENT.
ING - ING (U.S.) CAPITAL, LLC, A DELAWARE LIMITED LIABILITY COMPANY.
ING SUBORDINATED NOTE - COLLECTIVELY, THAT CERTAIN SUBORDINATED NOTE
DUE JANUARY 24, 2007, EXECUTED BY HOLDINGS, AS MAKER, ON OR ABOUT THE
FIFTH AMENDMENT EFFECTIVE DATE, AND BEARING INTEREST AT AN INITIAL
FIXED RATE OF TWELVE AND ONE-HALF PERCENT (12.5%) PER ANNUM, AND
PAYABLE TO THE ORDER OF ING, IN THE AGGREGATE ORIGINAL PRINCIPAL AMOUNT
OF $5,000,000.
ING WARRANT AGREEMENT - THAT CERTAIN WARRANT AGREEMENT, DATED AS OF THE
FIFTH AMENDMENT EFFECTIVE DATE, BETWEEN HOLDINGS AND ING IN ITS
CAPACITY AS A HOLDER OF THE ING WARRANTS, TOGETHER WITH ALL AMENDMENTS
AND MODIFICATIONS THERETO.
ING WARRANTS - THAT (THOSE) CERTAIN WARRANT(S), CONVERTIBLE, UNDER
CERTAIN CIRCUMSTANCES, INTO CAPITAL STOCK OF HOLDINGS, ACQUIRED BY ING
PURSUANT TO THAT CERTAIN WARRANT AGREEMENT, DATED ON OR ABOUT THE FIFTH
AMENDMENT EFFECTIVE DATE, BY AND BETWEEN ING AND HOLDINGS, AS MORE
FULLY DESCRIBED THEREIN.
2007 REGISTRATION AGREEMENT - THAT CERTAIN AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT, DATED AS OF THE FIFTH AMENDMENT
EFFECTIVE DATE AMONG HOLDINGS, SUNTRUST AND ING, TOGETHER WITH ALL
AMENDMENTS AND MODIFICATIONS THERETO.
2007 SUBORDINATION AGREEMENT - THAT CERTAIN AMENDED AND RESTATED
SUBORDINATION AGREEMENT DATED ON OR ABOUT THE FIFTH AMENDMENT EFFECTIVE
DATE, BY AND AMONG AGENT, SUNTRUST AND ING, AS THE SAME MAY BE AMENDED
OR MODIFIED FROM TIME TO TIME.
2007 SUBORDINATED DEBT - THE SUBORDINATED INDEBTEDNESS EVIDENCED BY THE
2007 SUBORDINATED DEBT DOCUMENTS.
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2007 SUBORDINATED DEBT DOCUMENTS - THE 2007 PURCHASE AGREEMENT, THE
SUNTRUST SUBORDINATED NOTES, THE SUNTRUST WARRANT AGREEMENT, THE 2007
REGISTRATION AGREEMENT, THE SUNTRUST WARRANTS, THE ING SUBORDINATED
NOTES, THE ING WARRANT AGREEMENT, THE ING WARRANTS, AND ALL OTHER
INSTRUMENTS, DOCUMENTS AND AGREEMENTS EXECUTED BY OR ON BEHALF OF ANY
LOAN PARTY AND DELIVERED CONCURRENTLY THEREWITH OR AT ANY TIME
HEREAFTER TO OR FOR THE BENEFIT OF THE HOLDERS OF THE SUNTRUST
SUBORDINATED NOTES OR THE ING SUBORDINATED NOTES OR THE HOLDERS OF THE
SUNTRUST WARRANTS OR ING WARRANTS, OR ANY AGENT OR REPRESENTATIVE
THEREOF IN CONNECTION WITH THE 2007 SUBORDINATED DEBT AND OTHER
TRANSACTIONS CONTEMPLATED BY THE 2007 PURCHASE AGREEMENT, ALL AS
AMENDED, SUPPLEMENTED OR MODIFIED FROM TIME TO TIME AS PERMITTED UNDER
THE LOAN AGREEMENT; BUT EXCLUDING ALL LOAN DOCUMENTS.
2007 PURCHASE AGREEMENT - THAT CERTAIN AMENDED AND RESTATED
SUBORDINATED NOTE AND WARRANT PURCHASE AGREEMENT DATED ON OR ABOUT THE
FIFTH AMENDMENT EFFECTIVE DATE, BY AND AMONG ING, SUNTRUST, HOLDINGS,
AND HOLDINGS SUBSIDIARIES.
1.3 DELETED DEFINITIONS. The following definitions contained in
APPENDIX A to the Loan Agreement shall be deleted in their entirety: SUNTRUST
REGISTRATION AGREEMENT, SUNTRUST SUBORDINATION AGREEMENT, SUNTRUST SUBORDINATED
DEBT, SUNTRUST SUBORDINATED DEBT DOCUMENTS and SUNTRUST PURCHASE AGREEMENT.
1.4 AMENDMENT TO TOTAL INDEBTEDNESS. SECTION 8.2.3 of the Loan
Agreement is hereby amended to read in its entirety as follows:
8.2.3 TOTAL INDEBTEDNESS. CREATE, INCUR, ASSUME, OR SUFFER TO
EXIST, OR PERMIT ANY OF THEIR RESPECTIVE SUBSIDIARIES TO CREATE, INCUR OR SUFFER
TO EXIST, ANY INDEBTEDNESS, EXCEPT:
(I) OBLIGATIONS OWING TO AGENT AND LENDERS;
(II) THE 2007 SUBORDINATED DEBT AND INDEBTEDNESS, IF
ANY, RELATING TO THE PREFERRED STOCK;
(III) INDEBTEDNESS OF A LOAN PARTY OR A SUBSIDIARY IF
AND TO THE EXTENT PERMITTED BY SECTION 8.2.2;
(IV) ACCOUNTS PAYABLE TO TRADE CREDITORS AND CURRENT
OPERATING EXPENSES(OTHER THAN FOR MONEY BORROWED) NINETY PERCENT (90%)
OF WHICH ARE AGED NOT MORE THAN 45 DAYS FROM THE DUE DATE, OR, IF AGED
OUTSIDE OF THE PRECEDING PARAMETERS, THAT ARE BEING PROPERLY CONTESTED,
BUT IN EACH CASE INITIALLY INCURRED IN THE ORDINARY COURSE OF BUSINESS
AND EITHER PAID WITHIN SUCH TIME PERIOD OR, IF BEING PROPERLY CONTESTED
AT THE TIME AND IN THE MANNER CONTEMPLATED IN THE DEFINITION OF THE
TERM "PROPERLY CONTESTED";
(V) OBLIGATIONS TO PAY RENTALS PERMITTED BY SECTION
8.2.16;
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(VI) PERMITTED PURCHASE MONEY INDEBTEDNESS;
(VII) CONTINGENT LIABILITIES ARISING OUT OF
ENDORSEMENTS OF CHECKS AND OTHER NEGOTIABLE INSTRUMENTS FOR DEPOSIT OR
COLLECTION IN THE ORDINARY COURSE OF BUSINESS;
(VIII) CAPITALIZED LEASE OBLIGATIONS TO THE EXTENT
THE UNDERLYING CAPITAL LEASE IS PERMITTED BY THE TERMS OF SECTION
8.2.9;
(IX) INDEBTEDNESS IN RESPECT TO DEFERRED TAXES;
(X) INDEBTEDNESS EXISTING ON THE CLOSING DATE AND
DESCRIBED IN EXHIBIT T ATTACHED HERETO;
(XI) INDEBTEDNESS NOT TO EXCEED SIX HUNDRED THOUSAND
DOLLARS ($600,000) INCURRED BY HOLDINGS WITH RESPECT TO ITS PURCHASE OF
ALL OF THE CAPITAL STOCK OF RAMSAY HOSPITAL CORPORATION OF LOUISIANA,
INC.; AND
(XII) INDEBTEDNESS NOT INCLUDED IN PARAGRAPHS (I)
THROUGH (X) 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).
1.5 AMENDMENT TO OTHER DEFAULTS. Section 10.1.6 of the Loan Agreement
is hereby amended in its entirety to read as follows:
10.1.6 OTHER DEFAULTS. (A) THERE SHALL OCCUR ANY DEFAULT OR
EVENT OF DEFAULT ON THE PART OF ANY LOAN PARTY UNDER ANY AGREEMENT, DOCUMENT OR
INSTRUMENT TO WHICH LOAN PARTY IS A PARTY OR BY WHICH ANY LOAN PARTY OR ANY
PROPERTY OF ANY LOAN PARTY IS BOUND, CREATING OR RELATING TO ANY INDEBTEDNESS IN
EXCESS OF $250,000 (OTHER THAN THE OBLIGATIONS AND THE 2007 SUBORDINATED DEBT,
BUT INCLUDING THE SUBORDINATED DEBT OTHER THAN THE 2007 SUBORDINATED DEBT) IF
THE PAYMENT OR MATURITY OF SUCH INDEBTEDNESS IS OR COULD BE ACCELERATED IN
CONSEQUENCE OF SUCH EVENT OF DEFAULT OR IF DEMAND FOR PAYMENT OF SUCH
INDEBTEDNESS IS MADE BY THE HOLDER OR HOLDERS THEREOF, OR (B) THERE SHALL OCCUR
ANY DEFAULT OR EVENT OF DEFAULT ON THE PART OF ANY LOAN PARTY UNDER ANY OF THE
2007 SUBORDINATED DEBT DOCUMENTS IF THE PAYMENT OR MATURITY OF SUCH INDEBTEDNESS
IS OR COULD BE ACCELERATED IN CONSEQUENCE OF SUCH DEFAULT OR EVENT OF DEFAULT OR
IF DEMAND FOR PAYMENT OF SUCH INDEBTEDNESS IS MADE BY THE HOLDER OR HOLDERS
THEREOF.
1.6 AMENDMENT TO EXHIBITS. Exhibits B, D, E, F, G, L, U, V and W to the
Loan Agreement shall be amended in their entirety by substituting the attached
Exhibits B, D, E, F, G, L, U, V and W.
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SECTION 2. CONDITIONS PRECEDENT TO EFFECTIVENESS OF AMENDMENTS. The
amendments to the Loan Agreement contained in SECTION 1 of this Fifth Amendment
shall be effective only upon the satisfaction of each of the conditions set
forth in this SECTION 2. If each condition set forth in this SECTION 2 has not
been satisfied by June 19, 2000, this Fifth Amendment and all obligations of
Lenders contained herein shall, at the option of Lenders, terminate.
2.1 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 Fifth Amendment, copies of the 2007 Subordinated Debt Documents, and 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.
2.2 2007 SUBORDINATION AGREEMENT. ING and SunTrust shall have executed
and delivered, and each Loan Party shall have acknowledged, the 2007
Subordination Agreement expressly subordinating the obligations of the Loan
Parties to ING and SunTrust under the 2007 Subordinated Debt Documents to the
Obligations, in form and substance satisfactory to Agent and Lenders and their
counsel.
2.3 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 Fifth Amendment.
2.4 NO DEFAULT. No Default or Event of Default shall exist.
2.5 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 Fifth
Amendment, the Loan Agreement or the consummation of the transactions
contemplated hereby.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF BORROWERS. To induce Agent
and Lenders to enter into this Fifth Amendment, each Borrower hereby represents
and warrants to Agent and Lenders as follows:
3.1 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 the amendments set
forth in SECTION 1 hereof.
3.2 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.
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3.3 CORPORATE AUTHORITY; NO CONFLICTS. The execution, delivery and
performance by each Borrower of this Fifth 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.
3.4 ENFORCEABILITY. This Fifth 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 creditor's rights generally, and (ii) the
availability of equitable remedies may be limited by equitable principles of
general application.
3.5 NO DEFENSES. No Loan Party has any defenses to payment,
counterclaims or rights of set off with respect to the Obligations.
SECTION 4. MISCELLANEOUS.
4.1 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.
4.2 PARTIES IN INTEREST. All of the terms and provisions of this Fifth
Amendment shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns.
4.3 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 Fifth Amendment and all
related documents.
4.4 COUNTERPARTS. This Fifth Amendment may be executed in counterparts,
and all parties need not execute the same counterpart. However, no party shall
be bound by this Fifth Amendment until all parties have executed a counterpart.
Facsimiles shall be effective as originals.
4.5 COMPLETE AGREEMENT. THIS FIFTH 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,
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CONTEMPORANEOUS OR ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
4.6 HEADINGS. The headings, captions and arrangements used in this
Fifth Amendment are, unless specified otherwise, for convenience only and shall
not be deemed to limit, amplify or modify the terms of this Fifth Amendment, nor
affect the meaning thereof.
(SIGNATURE PAGES FOLLOW)
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment
to be duly executed by their respective authorized officers on the date and year
first above written.
BORROWERS:
RAMSAY YOUTH SERVICES, INC.
XXXXXXX PSYCHIATRIC HOSPITAL, INC.
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 EDUCATIONAL SERVICES, INC.
RAMSAY LOUISIANA, 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: /s/ XXXXXX XXXXXXX
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Xxxxxx Xxxxxxx
Executive Vice President
H. C. PARTNERSHIP
By: H.C. CORPORATION, General Partner
By: HSA HILL CREST CORPORATION, General Partner
By: /s/ XXXXXX XXXXXXX
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Xxxxxx Xxxxxxx
Executive Vice President
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AGENT AND LENDERS:
FLEET CAPITAL CORPORATION
("Agent" and a "Lender")
By: /s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
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Title: Senior Vice President
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SUNTRUST BANK
(a "Lender")
By: /s/ XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxx
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Title: Assistant Vice President
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CONSENT AND REAFFIRMATION
The undersigned (each a "GUARANTOR") hereby (i) acknowledges receipt of
a copy of the foregoing Fifth Amendment to Loan and Security Agreement (the
"FIFTH 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 Fifth Amendment.
GUARANTOR:
RAMSAY HOSPITAL CORPORATION OF LOUISIANA, INC.
RAMSAY YOUTH SERVICES PUERTO RICO, INC.
By: /s/ XXXXXX XXXXXXX
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Xxxxxx Xxxxxxx
Executive Vice President
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[REPLACEMENT EXHIBITS
TO BE PROVIDED BY
BORROWER]
