10.26
SECOND AMENDMENT TO REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT
This SECOND AMENDMENT TO REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT
(the "Second Amendment") is made as of this 16th day of November, 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, as
amended by that certain First Amendment to Revolving Credit, Term Loan and
Security Agreement dated as of September 15, 2005 (as from time to time amended,
restated, supplemented or otherwise modified and in effect, 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 definition of "Term" contained in Appendix A of the Agreement is
hereby amended and restated as follows: "Term" shall mean the period
commencing on the date set forth on the first page hereof and ending
on the date that is four (4) years after the Closing Date; provided
that in the case of the Revolving Facility, the Term is subject to
extension for up to two (2) additional periods of one (1) year in
duration as provided in Section 2.2(b).
2. Conditions to Effectiveness. This Second 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:
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(a) Borrower shall have delivered to Lender an executed copy of this
Second 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 Second 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 Second Amendment and in connection with
this Second 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), plus a non-refundable $15,000
extension fee. Borrower hereby authorizes Lender to charge such
amounts as an Advance under the Revolving Facility.
3. Effect of Amendment. Lender and Borrower hereby acknowledge and agree that
except as provided in this Second 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 Second 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
Second Amendment shall have the meanings ascribed to such terms in the
Agreement.
6. Benefit. This Second Amendment shall inure to the benefit of and bind the
parties hereto and their respective successors and assigns.
7. Amendments. This Second 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 Second Amendment shall be
considered part of the Agreement for all purposes under the Agreement.
8. Headings and Counterparts. The captions in this Second Amendment are
intended for convenience and reference only and do not constitute and shall
not be interpreted as part of this Second Amendment and shall not affect
the meaning or interpretation of this Second Amendment. This Second
Amendment may be executed in one or more counterparts, all of which taken
together shall constitute but one and the same instrument. This Second
Amendment may be executed by facsimile transmission, which facsimile
signatures shall be considered original executed counterparts for all
purposes, and each party to this Second 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 Second 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.
10. Entire Agreement. This Second 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.
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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
Second 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 Second Amendment or any
of its rights or obligations under this Second Amendment without the prior
written consent of Lender. No rights are intended to be created under this
Second 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 Second Amendment]
IN WITNESS WHEREOF, Lender and Borrower have executed this Second Amendment
as of the date first above written.
LENDER: CAPITALSOURCE FINANCE LLC
By: /s/ Keith D. Reuben
Name: Keith D. Reuben
Title: Managing Directo
BORROWER: PHC, INC.
By: /s/ Bruce A. Shear
Name: Bruce Shear
Title: President
PHC OF MICHIGAN, INC.
By: /s/ Bruce A. Shear
Name: Bruce Shear
Title: President
PHC OF NEVADA, INC.
By: /s/ Bruce A. Shear
Name: Bruce Shear
Title: President
PHC OF UTAH, INC.
By: /s/ Bruce A. Shear
Name: Bruce Shear
Title: President
PHC OF VIRGINIA, INC
By: /s/ Bruce A. Shear
Name: Bruce Shear
Title: President
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[Signature Page 2 to Second Amendment]
WELLPLACE, INC.
By: /s/ Bruce A. Shear
Name: Bruce Shear
Title: President
DETROIT BEHAVIORAL INSTITUTE, INC,
By: /s/ Bruce A. Shear
Name: Bruce Shear
Title: President
NORTH POINT - PIONEER, INC.
By: /s/ Bruce A. Shear
Name: Bruce Shear
Title: President
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