10.25
FIRST AMENDMENT TO REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT
This FIRST AMENDMENT TO REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT
(the "First Amendment") is made as of this 15th day of September, 2005 by and
between CAPITALSOURCE FINANCE LLC, a Delaware limited liability company, with
its chief executive office located at 4445 Willard Avenue, Chevy Chase, Maryland
20815 ( the "Lender") and PHC, INC., a Massachusetts corporation, PHC OF
MICHIGAN, INC., a Massachusetts corporation, PHC OF NEVADA, INC., a
Massachusetts corporation, PHC OF UTAH, INC., a Massachusetts corporation, PHC
OF VIRGINIA, INC., a Massachusetts corporation, WELLPLACE, INC., a Massachusetts
corporation, DETROIT BEHAVIORAL INSTITUTE, INC., a Massachusetts corporation and
NORTH POINT - PIONEER, INC., a Massachusetts corporation (individually,
collectively, and jointly and severally, the "Borrower")
W I T N E S S E T H:
WHEREAS, Lender and Borrower entered into a certain Revolving Credit, Term
Loan and Security Agreement dated as of the 19th day of October, 2004 (the
"Agreement") whereby Lender agreed to make loans, advances and other extensions
of credit to Borrower thereunder;
WHEREAS, Lender and Borrower desire to amend the Agreement in certain
respects upon the terms and conditions set forth herein to provide for the
foregoing; and
WHEREAS, Section 12.8 of the Agreement provides that no modification or
amendment of the Agreement shall be effective unless the same shall be in
writing and signed by the parties thereto.
NOW, THEREFORE, in consideration of the promises and other mutual
covenants contained herein, the receipt and sufficiency of which is hereby
acknowledged, Lender and Borrower agree as follows:
1. Amendment of Agreement. As of the Effective Date (defined below), Lender
and Borrower hereby agree to amend the Agreement as follows:
(a) The following sections of Annex I to the Agreement are hereby amended
and restated as follows:
1) Minimum Census
Commencing as of August 31, 2005 and as of the end each calendar month
thereafter, the average aggregate census levels for the Test Period then ending
at each of Harbor Oaks and Highland Ridge shall be not less than the census set
forth below:
As to Harbor Oaks, 75% of the bed capacity of such facility.
As to Highland Ridge, 70% of the bed capacity of such facility.
2) Minimum EBITDAM
Borrower shall not permit EBITDAM for any Test Period (commencing with the
Test Period ending August 31, 2005) to be less than $300,000.
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2. Conditions to Effectiveness. This First Amendment shall be effective as of
the date first set forth above on the date (the "Effective Date") upon
which the following conditions precedent are satisfied:
(a) Borrower shall have delivered to Lender an executed copy of this First
Amendment duly executed by an authorized officer of Borrower and each
other agreement, document or instrument reasonably requested by the
Lender in connection with this First Amendment, each in form and
substance reasonably satisfactory to Lender; and
(b) Lender shall have received all fees, charges and expenses payable to
Lender as required by this First Amendment and in connection with this
First Amendment and the documentation related hereto, including, but
not limited to, legal fees and out-of-pocket costs (including in-house
counsel fees and expenses).
3. Effect of Amendment. Lender and Borrower hereby acknowledge and agree that
except as provided in this First Amendment, the Agreement and the other
Loan Documents remain in full force and effect and have not been modified
or amended in any respect, it being the intention of Lender and Borrower
that this First Amendment and the Agreement be read, construed and
interpreted as one and the same instrument.
4. References to Loan Documents. Each of the other Loan Documents are hereby
modified in such a manner as to be consistent with all modifications and
agreements contained herein and to the extent that all references therein
to and descriptions therein of the Agreement shall be deemed to refer to
and describe the Agreement.
5. Capitalized Terms. All capitalized terms not otherwise defined in this
First Amendment shall have the meanings ascribed to such terms in the
Agreement.
6. Benefit. This First Amendment shall inure to the benefit of and bind the
parties hereto and their respective successors and assigns.
7. Amendments. This First Amendment may not be changed, modified, amended,
restated, waived, supplemented, discharged, canceled or terminated orally
or by any course of dealing or in any other manner other than by the
written agreement of Lender and Borrower. This First Amendment shall be
considered part of the Agreement for all purposes under the Agreement.
8. Headings and Counterparts. The captions in this First Amendment are
intended for convenience and reference only and do not constitute and shall
not be interpreted as part of this First Amendment and shall not affect the
meaning or interpretation of this First Amendment. This First Amendment may
be executed in one or more counterparts, all of which taken together shall
constitute but one and the same instrument. This First Amendment may be
executed by facsimile transmission, which facsimile signatures shall be
considered original executed counterparts for all purposes, and each party
to this First Amendment agrees that it will be bound by its own facsimile
signature and that it accepts the facsimile signature of each other party
to this First Amendment.
9. Governing Law; JURY TRIAL WAIVER. THIS FIRST AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS FIRST AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE CHOICE OF LAW
PROVISIONS SET FORTH IN THE AGREEMENT AND SHALL BE SUBJECT TO THE WAIVER OF
JURY TRIAL AND NOTICE PROVISIONS OF THE AGREEMENT.
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10. Entire Agreement. This First Amendment, the Agreement and the other Loan
Documents constitute the entire agreement between the parties with respect
to the subject matter hereof and thereof and supersede all prior agreements
and understandings, if any, relating to the subject matter hereof and
thereof and may not be contradicted by evidence of prior, contemporaneous
or subsequent oral agreements between the parties. There are no unwritten
oral agreements between the parties.
11. Miscellaneous. Whenever the context and construction so require, all words
used in the singular number herein shall be deemed to have been used in the
plural, and vice versa, and the masculine gender shall include the feminine
and neuter and the neuter shall include the masculine and feminine. This
First Amendment shall inure to the benefit of Lender, all future holders of
any Note, any of the Obligations or any of the Collateral and all
Transferees, and each of their respective successors and permitted assigns.
No Borrower may assign, delegate or transfer this First Amendment or any of
its rights or obligations under this First Amendment without the prior
written consent of Lender. No rights are intended to be created under this
First Amendment for the benefit of any third party donee, creditor or
incidental beneficiary of Borrower.
[Signature Pages Follow]
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[Signature Page 1 to First Amendment]
IN WITNESS WHEREOF, Lender and Borrower have executed this First Amendment
as of the date first above written.
LENDER: CAPITALSOURCE FINANCE LLC
By: /s/ Keith D. Reuben
Name: Keith D. Reuben
Title: Managing Director
BORROWER: PHC, INC.
By:: /s/ Paula C. Wurts
Name: Paula C. Wurts
Title: Chief Financial Officer
PHC OF MICHIGAN, INC.
By:: /s/ Paula C. Wurts
Name: Paula C. Wurts
Title: Chief Financial Officercer
PHC OF NEVADA, INC.
By:: /s/ Paula C. Wurts
Name: Paula C. Wurts
Title: Chief Financial Officer
PHC OF UTAH, INC.
By:: /s/ Paula C. Wurts
Name: Paula C. Wurts
Title: Chief Financial Officer
PHC OF VIRGINIA, INC
By:: /s/ Paula C. Wurts
Name: Paula C. Wurts
Title: Chief Financial Officer
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[Signature Page 2 to First Amendment]
WELLPLACE, INC.
By:: /s/ Paula C. Wurts
Name: Paula C. Wurts
Title: Chief Financial Officer
DETROIT BEHAVIORAL INSTITUTE, INC,
By:: /s/ Paula C. Wurts
Name: Paula C. Wurts
Title: Chief Financial Officer
NORTH POINT - PIONEER, INC.
By:: /s/ Paula C. Wurts
Name: Paula C. Wurts
Title: Chief Financial Officer
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