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Exhibit 10.148
FIRST AMENDMENT TO AMENDED AND RESTATED SUBORDINATED NOTE AND
WARRANT PURCHASE AGREEMENT AND FIRST AMENDMENT TO
AMENDED AND RESTATED SUBORDINATION AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED SUBORDINATED NOTE AND
WARRANT PURCHASE AGREEMENT AND FIRST AMENDMENT TO AMENDED AND RESTATED
SUBORDINATION AGREEMENT, dated as of July __, 2000 (this "Amendment"), by and
among Ramsay Youth Services, Inc. (the "Company"), the Subsidiaries of the
Company listed on the signature pages hereto, as guarantors (the "Subsidiary
Guarantors"), SUNTRUST BANKS, INC., a corporation organized under the laws of
the State of Georgia ("SunTrust"), and ING (U.S.) CAPITAL LLC, a Delaware
limited liability company ("ING"; SunTrust and ING individually, a "Purchaser"
and, collectively, the "Purchasers") and FLEET CAPITAL CORPORATION, or any
successor thereto as Agent (the "Agent") under the Senior Credit Agreement on
behalf of and for the benefit of itself and the Senior Lenders.
W I T N E S S E T H :
WHEREAS, Company, the Subsidiary Guarantors and the Purchasers are
parties to that certain Amended and Restated Subordinated Note and Warrant
Purchase Agreement, dated as of June 19, 2000 (as amended, restated, modified or
otherwise supplemented from time to time, the "Purchase Agreement"), pursuant to
which the Purchasers made a $10,000,000 subordinated debt investment in the
Company;
WHEREAS, Company has requested that the Purchasers make certain
amendments to the Purchase Agreement and the Purchasers are willing to do so on
the terms and conditions set forth herein;
WHEREAS, Company, the Subsidiary Guarantors, the Purchasers and the
Agent are party to that certain Amended and Restated Subordination Agreement,
dated as of June 19, 2000 (as amended, restated, modified or otherwise
supplemented from time to time, the "Subordination Agreement"), pursuant to
which the Purchasers agreed to subordinate certain Obligations to the Senior
Lenders;
WHEREAS, Company has requested that the Purchasers and the Agent make
certain amendments to the Subordination Agreement and the Purchasers and the
Agent are willing to do so on the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the terms and conditions contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
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1. Definitions. Capitalized terms used but not otherwise defined herein
shall have the meanings given to such terms in the Purchase Agreement.
2. Amendment to Section 1.1 of the Purchase Agreement. Section 1.1 of
the Purchase Agreement is amended by replacing the definition therein of "Net
Securities Proceeds" with the following new definition:
"Net Securities Proceeds" means, with respect to the issuance
or sale by the Company or any Subsidiary of any securities representing
Stock or indebtedness of such Person, but not including the Notes and
not including any increase in the principal amount of Senior Debt
(subject to the limits in the amount of Senior Debt set forth in the
definition of Senior Debt), the excess of (a) the gross cash proceeds
received from such issuance and sale, minus (b) all reasonable
out-of-pocket fees and expenses incurred in connection with such
issuance and sale and paid to Persons that are not Affiliates of the
Company.
3. Amendment to Section 8.6(f) of the Purchase Agreement. Section
8.6(f) of the Purchase Agreement is amended by replacing such subsection in its
entirety with the following new subsection 8.6(f):
"Senior Debt; provided, however, that in no event shall the
principal amount of the Senior Debt exceed the sum of (i)
$19,557,233.32 reduced by the amounts of any repayments and commitment
reductions under the Senior Credit Agreement (after the SunTrust
Closing Date) to the extent that such payments and reductions may not
be reborrowed, plus (ii) $11,350,000;"
4. Amendment to Section 8.12 of the Purchase Agreement. Section 8.12 of
the Purchase Agreement is amended by adding the following proviso to the end of
such Section:
"provided, however, that notwithstanding anything to the
contrary contained herein, the following amounts shall be added to the
Company's EBITDA for each of the following fiscal quarters for purposes
of this Section 8.12:
Fiscal Quarter Ending Amount
--------------------- --------
December 31, 1999 $538,000
March 31, 2000 $664,000
June 30, 2000 $537,000
September 30, 2000 $222,000"
5. Amendment to Section 1.1 of the Subordination Agreement. Section 1.1
of the Subordination Agreement is hereby amended by replacing the definition
therein of "Senior Indebtedness" with the following new definition:
""Senior Indebtedness" at any time of determination means and includes
the "Obligations" (as such term is defined in the Senior Credit
Agreement) and all
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other indebtedness, obligations and liabilities of any Subordinated
Indebtedness Obligor under the Senior Indebtedness Documents, including
without limitation all principal, interest, premiums and other amounts
payable thereunder (including, without limitation, any interest, fees,
costs and charges accruing subsequent to the commencement of an
Insolvency Event), at the rate and in such amounts as are specified in
the Senior Credit Agreement or other Senior Indebtedness Documents
which provides for the payment of such amounts (whether or not any such
interest, fee, expenses, costs and charges are an allowed claim in any
such Insolvency Event), whether now existing or hereafter arising,
direct or indirect, primary or secondary, joint, several or joint and
several, final or contingent, whether advanced or arising prior to or
after the commencement of an Insolvency Event, and whether incurred as
maker, endorser, guarantor, or otherwise including without limitation
the aggregate amount of all advances made by Senior Creditor for the
preservation, maintenance, insurance or protection of any Collateral
(as such term is defined in the Senior Credit Agreement) together with
(a) all complete or partial refinancings of the Obligations, and (b)
any amendments, modifications, renewals or extensions thereof;
provided, however, that in no event shall the principal amount of the
Senior Indebtedness exceed the sum of (i) $19,557,233.33 reduced by the
amount of any repayments and commitment reductions under the Senior
Credit Agreement (after the SunTrust Closing Date (as such term is
defined in the Subordinated Credit Agreement)) to the extent that such
payments and reductions may not be reborrowed, plus (ii) $11,350,000."
6. Conditions to Effectiveness of Amendment. This Amendment shall
become effective (the "First Amendment Effective Date") when each Purchaser
shall have received a duly executed counterpart of this Amendment executed by
each party hereto.
7. Representations and Warranties. The Company hereby represents and
warrants to the Purchasers that:
(a) the execution, delivery and performance of this Amendment
(i) is within Company's corporate power; (ii) has been duly authorized by all
necessary corporate and shareholder action; (iii) does not require the consent,
approval, authorization of, or registration or filing with, any Person under any
Material Contract, with any Person under the organizational documents of the
Consolidated Companies, or with any governmental authority other than such
consents, approvals, authorizations, registrations or filings which have been
made or obtained and are in full force and effect, and (iv) will not cause a
breach or default under any of any of the Consolidated Companies Material
Contracts or organizational documents of any of the Consolidated Companies
except as could not reasonably be expected to have a Material Adverse Effect;
(b) this Amendment has been duly executed and delivered for
the benefit or on behalf of Company and constitutes the legal, valid and binding
obligation of Company, enforceable against it in accordance with its terms,
except as the enforceability hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting creditors' rights and
remedies in general, and by general principles of equity; and
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(c) after giving effect to this Amendment, all of
representations and warranties set forth in Article 6 of the Purchase Agreement
are true and correct in all material respects and no Default or Event of Default
has occurred and is continuing as of the date hereof.
8. Survival. Except as expressly provided herein, the Purchase
Agreement and the Subordination Agreement shall continue in full force and
effect, and the unamended terms and conditions of the Purchase Agreement and the
Subordination Agreement are expressly incorporated herein and ratified and
confirmed in all respects. This Amendment is not intended to be or to create,
nor shall it be construed as, a novation or an accord and satisfaction.
9. Effect of Amendment. From and after the date hereof, references to
the Purchase Agreement shall be references to the Purchase Agreement as amended
hereby and references to the Subordination Agreement shall be references to the
Subordination Agreement as amended hereby.
10. Entire Understanding. This Amendment constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof.
Neither this Amendment nor any provision hereof may be changed, waived,
discharged, modified or terminated orally, but only by an instrument in writing
signed by the parties required to be a party thereto pursuant to Section 10.4 of
the Purchase Agreement.
11. GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
AND BE GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW
PRINCIPLES THEREOF) OF THE STATE OF GEORGIA.
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12. Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as of the date first above written.
COMPANY:
RAMSAY YOUTH SERVICES, INC.
By:________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President
SUBSIDIARY GUARANTORS:
▇▇▇▇▇▇▇ PSYCHIATRIC HOSPITAL, INC., an Oklahoma
corporation
BOUNTIFUL PSYCHIATRIC HOSPITAL, INC., a Utah
corporation
EAST CAROLINA PSYCHIATRIC SERVICES CORPORATION, a
North Carolina corporation
GREAT PLAINS HOSPITAL, INC., a Missouri
corporation
GULF COAST TREATMENT CENTER, INC., a Florida
corporation
H.C. CORPORATION, an Alabama corporation
HAVENWYCK HOSPITAL, INC., a Michigan corporation
HSA HILL CREST CORPORATION, an Alabama corporation
HSA OF OKLAHOMA, INC., an Oklahoma corporation
SIGNATURE PAGE TO FIRST AMENDMENT TO SUBORDINATED
NOTE AND WARRANT PURCHASE AGREEMENT
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MICHIGAN PSYCHIATRIC SERVICES, INC., a Michigan
corporation
RAMSAY EDUCATIONAL SERVICES, INC., a Delaware
corporation
RAMSAY HOSPITAL CORPORATION OF LOUISIANA, INC., a
Louisiana corporation
RAMSAY LOUISIANA, INC., a Delaware corporation
RAMSAY MANAGED CARE, INC., a Delaware corporation
RAMSAY YOUTH SERVICES OF ALABAMA, INC., a Delaware
corporation
RAMSAY YOUTH SERVICES OF FLORIDA, INC., a Delaware
corporation
RAMSAY YOUTH SERVICES OF SOUTH CAROLINA, INC., a
Delaware corporation
RAMSAY YOUTH SERVICES PUERTO RICO, INC., a Puerto
Rico corporation
RHCI SAN ANTONIO, INC., a Delaware corporation
TRANSITIONAL CARE VENTURES, INC., a Delaware
corporation
TRANSITIONAL CARE VENTURES (TEXAS), INC., a
Delaware corporation
By:_____________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
SIGNATURE PAGE TO FIRST AMENDMENT TO SUBORDINATED
NOTE AND WARRANT PURCHASE AGREEMENT
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H.C. PARTNERSHIP
By: H.C. CORPORATION, an Alabama
corporation, as a general partner
By:_______________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
By: HSA HILL CREST
CORPORATION,
an Alabama corporation, as a general
partner
By:_______________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
SIGNATURE PAGE TO FIRST AMENDMENT TO SUBORDINATED
NOTE AND WARRANT PURCHASE AGREEMENT
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PURCHASERS:
SUNTRUST BANKS, INC.
By: ___________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Group Vice President
ING (U.S.) CAPITAL LLC
By: ___________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Director
AGENT:
FLEET CAPITAL CORPORATION
By:_____________________________________
Name:
Title:
SIGNATURE PAGE TO FIRST AMENDMENT TO SUBORDINATED
NOTE AND WARRANT PURCHASE AGREEMENT