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EXHIBIT 10.140
FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
This Fourth Amendment to Loan and Security Agreement (this "FOURTH
AMENDMENT") is entered into as of the 25th day of January, 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, ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, each of the Subsidiaries
of Holdings party to this Fourth 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 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, 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 Fourth
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 (i) permit Holdings to incur certain subordinated debt in favor of
SunTrust Banks, Inc., a Georgia corporation ("SUNTRUST"), in an aggregate
principal amount of $5,000,000, to be evidenced by a certain Subordinated Note
and Warrant Purchase Agreement by and between SunTrust and Holdings (the
"SUNTRUST PURCHASE AGREEMENT") and one or more Subordinated Notes (the "SUNTRUST
SUBORDINATED NOTES"), and (ii) permit SunTrust to purchase certain Warrants (the
"SUNTRUST WARRANTS") convertible, under certain circumstances, into capital
stock of Holdings, pursuant to that certain Warrant Agreement by and between
SunTrust and Holdings (the "SUNTRUST WARRANT AGREEMENT"; together with the
SunTrust Purchase Agreement, SunTrust Subordinated Notes, SunTrust Warrants,
that certain Registration Rights Agreement by and between SunTrust and Holdings
of even date herewith ("SUNTRUST REGISTRATION AGREEMENT") and all other
instruments, documents and agreements executed by or on behalf of any Loan Party
in connection therewith, collectively, the "SUNTRUST SUBORDINATED DEBT
DOCUMENTS"); and
WHEREAS, subject to the terms and conditions herein contained, Agent
and Lenders have agreed to the Borrowers' requests.
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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 Fourth Amendment, the Loan Agreement
shall be amended effective January 25, 2000 (the "FOURTH 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:
SUBORDINATED DEBT - (I) ALL INDEBTEDNESS EVIDENCED BY THE SUNTRUST
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 SUNTRUST 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:
FOURTH AMENDMENT - THE FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
AMONG BORROWERS, LENDERS AND AGENT DATED JANUARY 25, 2000.
FOURTH AMENDMENT EFFECTIVE DATE - AS DEFINED IN THE FOURTH AMENDMENT.
JUNIOR SUBORDINATED DEBT SUBORDINATION AGREEMENT - SUBORDINATION
AGREEMENT DATED ON OR ABOUT THE CLOSING DATE BETWEEN AGENT AND ONE OR
MORE HOLDERS OF THE JUNIOR SUBORDINATED DEBT AND PREFERRED STOCK, AS
THE SAME MAY BE AMENDED OR MODIFIED FROM TIME TO TIME.
SUNTRUST - SUNTRUST BANKS, INC., A GEORGIA CORPORATION.
SUNTRUST REGISTRATION AGREEMENT - THAT CERTAIN REGISTRATION RIGHTS
AGREEMENT, DATED AS OF THE FOURTH AMENDMENT EFFECTIVE DATE BETWEEN
HOLDINGS AND SUNTRUST IN ITS CAPACITY AS A HOLDER OF THE SUNTRUST
WARRANTS, TOGETHER WITH ALL AMENDMENTS AND MODIFICATIONS THERETO.
SUNTRUST SUBORDINATED DEBT - THE SUBORDINATED INDEBTEDNESS EVIDENCED BY
THE SUNTRUST SUBORDINATED DEBT DOCUMENTS.
SUNTRUST SUBORDINATED DEBT DOCUMENTS - THE SUNTRUST SUBORDINATED LOAN
AGREEMENT, THE SUNTRUST SUBORDINATED NOTES, THE SUNTRUST WARRANT
AGREEMENT, THE SUNTRUST REGISTRATION AGREEMENT, THE SUNTRUST WARRANTS,
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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 HOLDERS OF THE SUNTRUST WARRANTS, OR ANY
AGENT OR REPRESENTATIVE THEREOF IN CONNECTION WITH THE SUNTRUST
SUBORDINATED DEBT AND OTHER TRANSACTIONS CONTEMPLATED BY THE SUNTRUST
SUBORDINATED LOAN AGREEMENT, ALL AS AMENDED, SUPPLEMENTED OR MODIFIED
FROM TIME TO TIME AS PERMITTED UNDER THE LOAN AGREEMENT; BUT EXCLUDING
ALL LOAN DOCUMENTS.
SUNTRUST PURCHASE AGREEMENT - THAT CERTAIN SUBORDINATED NOTE AND
WARRANT PURCHASE AGREEMENT DATED ON OR ABOUT THE FOURTH AMENDMENT
EFFECTIVE DATE, BY AND BETWEEN SUNTRUST AND HOLDINGS.
SUNTRUST SUBORDINATED NOTE - COLLECTIVELY, THAT CERTAIN SUBORDINATED
NOTE DUE JANUARY 25, 2007, EXECUTED BY HOLDINGS, AS MAKER, ON OR ABOUT
THE FOURTH AMENDMENT EFFECTIVE DATE, AND BEARING INTEREST AT AN INITIAL
FIXED RATE OF TWELVE AND ONE-HALF PERCENT (12 1/2%) PER ANNUM, AND
PAYABLE TO THE ORDER OF SUNTRuST BANKS, INC., IN THE AGGREGATE ORIGINAL
PRINCIPAL AMOUNT OF $5,000,000.
SUNTRUST SUBORDINATION AGREEMENT - THAT CERTAIN SUBORDINATION AGREEMENT
DATED ON OR ABOUT THE FOURTH AMENDMENT EFFECTIVE DATE, BY AND BETWEEN
AGENT AND SUNTRUST, AS THE SAME MAY BE AMENDED OR MODIFIED FROM TIME TO
TIME.
SUNTRUST WARRANT AGREEMENT - THAT CERTAIN WARRANT AGREEMENT, DATED AS
OF THE FOURTH AMENDMENT EFFECTIVE DATE, BETWEEN HOLDINGS AND SUNTRUST
IN ITS CAPACITY AS A HOLDER OF THE SUNTRUST WARRANTS, TOGETHER WITH ALL
AMENDMENTS AND MODIFICATIONS THERETO.
SUNTRUST WARRANTS - THAT (THOSE) CERTAIN WARRANT(S), CONVERTIBLE, UNDER
CERTAIN CIRCUMSTANCES, INTO CAPITAL STOCK OF HOLDINGS, ACQUIRED BY
SUNTRUST PURSUANT TO THAT CERTAIN WARRANT AGREEMENT, DATED ON OR ABOUT
THE FOURTH AMENDMENT EFFECTIVE DATE, BY AND BETWEEN SUNTRUST AND
HOLDINGS, AS MORE FULLY DESCRIBED THEREIN.
1.3 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 SUNTRUST SUBORDINATED DEBT AND
INDEBTEDNESS, IF ANY, RELATING TO THE PREFERRED STOCK;
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(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;
(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; AND
(XI) 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).
1.4 AMENDMENT TO DISTRIBUTIONS. SECTION 8.2.8 of the Loan
Agreement is hereby amended to read in its entirety as follows:
8.2.8 DISTRIBUTIONS. DECLARE OR MAKE, OR PERMIT ANY OF
THEIR RESPECTIVE SUBSIDIARIES TO DECLARE OR MAKE, ANY DISTRIBUTIONS (INCLUDING,
WITHOUT LIMITATION, THE REDEMPTION OF ANY SUNTRUST WARRANT OR ANY OTHER
OUTSTANDING OPTION TO PURCHASE, OR WARRANT TO SUBSCRIBE FOR, ANY SHARES OF THE
CAPITAL STOCK OF ANY LOAN PARTY) EXCEPT THAT SO LONG AS NO DEFAULT OR EVENT OF
DEFAULT EXISTS, (A) ANY SUBSIDIARY OF ANY LOAN PARTY MAY MAKE DISTRIBUTIONS TO
ANY LOAN PARTY, (B) ANY LOAN PARTY MAY MAKE DISTRIBUTIONS TO ANY OTHER LOAN
PARTY, AND (C) HOLDINGS MAY PAY REGULARLY SCHEDULED DISTRIBUTIONS ON THE
PREFERRED STOCK, BUT ONLY IF AND TO THE EXTENT PERMITTED UNDER THE JUNIOR
SUBORDINATED DEBT SUBORDINATION AGREEMENT.
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1.5 AMENDMENT TO PREFERRED STOCK LIMITATIONS. SECTION 8.2.18 of
the Loan Agreement is hereby amended to read in its entirety as follows:
8.2.18 LIMITS ON PREFERRED STOCK. ISSUE ANY ADDITIONAL
SHARES OF PREFERRED STOCK, UNLESS ANY LIABILITIES OR OBLIGATIONS WITH RESPECT
THERETO ARE SUBORDINATED TO THE OBLIGATIONS IN THE MANNER SET FORTH IN THE
JUNIOR SUBORDINATED DEBT SUBORDINATION AGREEMENT OR OTHERWISE IN A MANNER
SATISFACTORY TO AGENT.
1.6 AMENDMENT TO TOTAL INDEBTEDNESS TO EBITDA. SECTION 8.3.3 of
the Loan Agreement shall be amended in its entirety to read as follows:
8.3.3 TOTAL INDEBTEDNESS TO EBITDA. AS OF THE LAST DAY OF
EACH FISCAL QUARTER SET FORTH BELOW (THE "CALCULATION DATE"), A RATIO OF (I)
HOLDINGS' TOTAL INDEBTEDNESS ON SUCH CALCULATION DATE, TO (II) HOLDINGS' EBITDA
FOR THE TWELVE CALENDAR MONTH PERIOD ENDING ON SUCH CALCULATION DATE, OF NOT
GREATER THAN THE RATIO SET FORTH BELOW ON THE CALCULATION DATE CORRESPONDING
THERETO:
CALCULATION DATE RATIO
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(I) DECEMBER 31, 1998 (I) 6.00 TO 1.0
(II) ▇▇▇▇▇ ▇▇, ▇▇▇▇ (▇▇) 6.00 TO 1.0
(III) JUNE 30, 1999 (III) 4.00 TO 1.0
(IV) SEPTEMBER 30, 1999 (IV) 4.00 TO 1.0
(V) DECEMBER 31, 1999 (V) 3.50 TO 1.0
(VI) MARCH 31, 2000 (VI) 3.50 TO 1.0
(VII) JUNE 30, 2000 (VII) 3.50 TO 1.0
(VIII) SEPTEMBER 30, 2000 (VIII) 3.50 TO 1.0
(IX) DECEMBER 31, 2000 (IX) 3.50 TO 1.0
(X) MARCH 31, 2001 (X) 3.50 TO 1.0
(XI) JUNE 30, 2001 (XI) 3.50 TO 1.0
(XII) SEPTEMBER 30, 2001 (XII) 3.00 TO 1.0
AND ON THE LAST DAY OF
EACH THEREAFTER OCCURRING
FISCAL QUARTER;
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PROVIDED, HOWEVER, THAT, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED
HEREIN, (A) HOLDINGS' EBITDA FOR PURPOSES OF THE DECEMBER 31, 1998 CALCULATION
DATE SHALL BE THE AMOUNT EQUAL TO (I) HOLDINGS' EBITDA FOR THE THREE MONTHS
ENDING DECEMBER 31, 1998, MULTIPLIED BY (II) FOUR; (B) HOLDINGS' EBITDA FOR
PURPOSES OF THE MARCH 31, 1999 CALCULATION DATE SHALL BE THE AMOUNT EQUAL TO (I)
HOLDINGS' EBITDA FOR THE SIX MONTHS ENDING MARCH 31, 1999, MULTIPLIED BY (II)
TWO; AND (C) HOLDINGS' EBITDA FOR PURPOSES OF THE JUNE 30, 1999 CALCULATION DATE
SHALL BE THE AMOUNT EQUAL TO (I) HOLDINGS' EBITDA FOR THE NINE MONTHS ENDING
JUNE 30, 1999, MULTIPLIED BY (II) FOUR, AND DIVIDED BY (III) THREE.
1.7 AMENDMENT TO OTHER DEFAULTS. Section 10.1.6 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 SUNTRUST SUBORDINATED
DEBT, BUT INCLUDING THE SUBORDINATED DEBT OTHER THAN THE SUNTRUST 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
SUNTRUST 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.
1.8 AMENDMENT TO OTHER REMEDIES. The first sentence of SECTION
10.3 is hereby amended in its entirety to read as follows:
10.3 OTHER REMEDIES. AFTER THE OCCURRENCE, AND DURING THE
CONTINUATION OF AN EVENT OF DEFAULT, AGENT ON BEHALF OF LENDERS MAY, AND AT THE
REQUEST OF REQUIRED LENDERS SHALL, EXERCISE FROM TIME TO TIME THE FOLLOWING
RIGHTS AND REMEDIES:
1.9 AMENDMENT TO NOTICE PROVISION. SECTION 12.8 is hereby amended
by replacing the address for Agent with the following:
FLEET CAPITAL CORPORATION
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
ATTENTION: LOAN ADMINISTRATION MANAGER
FACSIMILE NO.: (▇▇▇) ▇▇▇-▇▇▇▇
1.10 AMENDMENT TO EXHIBITS. Exhibit E to the Loan Agreement shall
be amended in its entirety by substituting the attached Exhibit E.
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1.11 CONSENT TO ASSIGNMENT TO SUNTRUST. By their execution hereof,
Holdings and Agent hereby consent to the sale and assignment, on or about the
date hereof, to SunTrust of an aggregate amount of Revolving Loan and Term Loan
Commitments aggregating $2,500,000.
SECTION 2. CONDITIONS PRECEDENT TO EFFECTIVENESS OF AMENDMENTS. The
amendments to the Loan Agreement contained in SECTION 1 of this Fourth 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 January 25, 2000, this Fourth 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 Fourth Amendment, copies of the SunTrust 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 SUNTRUST SUBORDINATION AGREEMENT. SunTrust shall have executed
and delivered, and each Loan Party shall have acknowledged, the SunTrust
Subordination Agreement expressly subordinating the obligations of the Loan
Parties under the SunTrust 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 Fourth 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 Fourth 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 Fourth 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
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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.
3.3 CORPORATE AUTHORITY; NO CONFLICTS. The execution, delivery and
performance by each Borrower of this Fourth 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 Fourth 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
Fourth 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 Fourth Amendment and all
related documents.
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4.4 COUNTERPARTS. This Fourth Amendment may be executed in
counterparts, and all parties need not execute the same counterpart. However, no
party shall be bound by this Fourth Amendment until all parties have executed a
counterpart. Facsimiles shall be effective as originals.
4.5 COMPLETE AGREEMENT. THIS FOURTH 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.
4.6 HEADINGS. The headings, captions and arrangements used in this
Fourth Amendment are, unless specified otherwise, for convenience only and shall
not be deemed to limit, amplify or modify the terms of this Fourth Amendment,
nor affect the meaning thereof.
( Signature Pages Follow )
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Amendment to be duly executed by their respective authorized officers on the
date and year first above written.
BORROWERS:
RAMSAY YOUTH SERVICES, INC.
▇▇▇▇▇▇▇ 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/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Executive Vice President
H. C. PARTNERSHIP
By: H.C. CORPORATION, General Partner
By: HSA HILL CREST CORPORATION, General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Executive Vice President
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CONSENT AND REAFFIRMATION
The undersigned (the "GUARANTOR") hereby (i) acknowledges receipt of a
copy of the foregoing Fourth Amendment to Loan and Security Agreement (the
"FOURTH 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 that certain Guaranty dated
March 19, 1999 (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 Fourth Amendment.
GUARANTOR:
RAMSAY YOUTH SERVICES PUERTO RICO, INC.,
a Puerto Rico corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Executive Vice President
Accepted in Dallas, Texas:
FLEET CAPITAL CORPORATION
("Agent" and a "Lender")
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
SUNTRUST BANK
(a "Lender")
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
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[REPLACEMENT EXHIBIT E
TO BE PROVIDED BY
BORROWER]
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