UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington D.C. 20549

 

 

FORM 10-Q

 

 

 

x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended September 30, 2012

OR

 

¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from         to        

Commission File Number 1-12607

 

 

SUNLINK HEALTH SYSTEMS, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Ohio   31-0621189

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification No.)

900 Circle 75 Parkway, Suite 1120, Atlanta, Georgia 30339
(Address of principal executive offices)
(Zip Code)

(770) 933-7000

(Registrant’s telephone number, including area code)

 

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filings requirements for the past 90 days.    Yes   x     No   ¨

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter during the preceding 12 months (of for such shorter period that the registrant was required to submit and post such files).    Yes   x     No   ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer, or a smaller reporting company. See definition of “large accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer   ¨    Accelerated filer   ¨
Non-accelerated filer   ¨   (Do not check if a smaller reporting company)    Smaller reporting company   x

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).    Yes   ¨      No   x

The number of Common Shares, without par value, outstanding as of November 14, 2012 was 9,446,040.

 

 

 


PART I. FINANCIAL INFORMATION

ITEM 1. FINANCIAL STATEMENTS

SUNLINK HEALTH SYSTEMS, INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED BALANCE SHEETS

(in thousands)

 

     September 30,
2012
(unaudited)
    June 30,
2012
 
ASSETS     

Current Assets:

    

Cash and cash equivalents

   $ 500      $ 2,057   

Cash in escrow

     850        0   

Receivables - net

     14,334        13,228   

Inventory

     3,950        3,884   

Income tax receivable

     239        198   

Deferred income tax asset

     5,622        5,174   

Prepaid expense and other

     3,691        4,231   

Net current assets held for sale

     318        1,846   
  

 

 

   

 

 

 

Total current assets

     29,504        30,618   

Property, plant and equipment, at cost

     60,412        63,856   

Less accumulated depreciation

     31,455        33,774   
  

 

 

   

 

 

 

Property, plant and equipment - net

     28,957        30,082   

Noncurrent Assets:

    

Intangible assets - net

     3,284        3,320   

Goodwill

     461        461   

Deferred income tax asset

     5,527        5,891   

Other noncurrent assets

     1,587        894   

Net noncurrent assets held for sale

     772        7,906   
  

 

 

   

 

 

 

Total noncurrent assets

     11,631        18,472   
  

 

 

   

 

 

 

TOTAL ASSETS

   $ 70,092      $ 79,172   
  

 

 

   

 

 

 
LIABILITIES AND SHAREHOLDERS’ EQUITY     

Current liabilities:

    

Accounts payable

   $ 7,106      $ 6,934   

Revolving advances

     4,931        5,931   

Current maturities of long-term debt

     1,238        9,050   

Current maturities of subordinated long-term debt

     300        300   

Accrued payroll and related taxes

     4,286        4,584   

Due to third party payors

     612        0   

Other accrued expenses

     3,016        2,566   

Current liabilities held for sale

     404        2,449   
  

 

 

   

 

 

 

Total current liabilities

     21,893        31,814   

Long-Term Liabilities

    

Long-term debt

     13,820        11,588   

Subordinated long-term debt

     2,152        2,152   

Noncurrent liability for professional liability risks

     3,432        3,191   

Other noncurrent liabilities

     907        907   

Noncurrent liabilities held for sale

     0        229   
  

 

 

   

 

 

 

Total long-term liabilities

     20,311        18,067   

Commitment and Contingencies

    

Shareholders’ Equity

    

Preferred Shares, authorized and unissued, 2,000 shares

     0        0   

Common Shares, without par value:

    

Issued and outstanding, 9,446 shares at September 30, 2012 and 9,447 shares at June 30, 2012

     4,723        4,724   

Additional paid-in capital

     13,543        13,521   

Retained earnings

     10,119        11,543   

Accumulated other comprehensive loss

     (497     (497
  

 

 

   

 

 

 

Total Shareholders’ Equity

     27,888        29,291   
  

 

 

   

 

 

 

Total Liabilities and Shareholders’ Equity

   $ 70,092      $ 79,172   
  

 

 

   

 

 

 

See notes to condensed consolidated financial statements.

 

2


SUNLINK HEALTH SYSTEMS, INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF LOSS AND COMPREHENSIVE LOSS

(in thousands, except per share amounts)

(unaudited)

 

     THREE MONTHS ENDED
SEPTEMBER 30,
 
     2012     2011  

Operating revenues (net of contractual allowances)

   $ 29,172      $ 29,556   

Less provision for bad debts of Healthcare Facilities Segment

     3,482        3,379   
  

 

 

   

 

 

 

Net revenues

     25,690        26,177   

Costs and Expenses

    

Cost of goods sold

     4,237        4,934   

Salaries, wages and benefits

     13,221        13,133   

Provision for bad debts of Specialty Pharmacy Segment

     80        270   

Supplies

     2,263        2,191   

Purchased services

     1,956        2,065   

Other operating expenses

     4,105        4,076   

Rent and lease expense

     546        577   

Impairment of property, plant and equipment

     789        0   

Depreciation and amortization

     984        1,099   

Medicaid Electronic Health Records incentive payments

     0        (659
  

 

 

   

 

 

 

Operating loss

     (2,491     (1,509

Other Income (Expense):

    

Interest expense

     (559     (1,303

Interest income

     0        2   
  

 

 

   

 

 

 

Loss from Continuing Operations before income taxes

     (3,050     (2,810

Income Tax Benefit

     (1,428     (1,067
  

 

 

   

 

 

 

Loss from Continuing Operations

     (1,622     (1,743

Earnings from Discontinued Operations, net of taxes

     198        188   
  

 

 

   

 

 

 

Net Loss

     (1,424     (1,555

Other comprehensive income

     0        0   
  

 

 

   

 

 

 

Comprehensive loss

   $ (1,424   $ (1,555
  

 

 

   

 

 

 

Earnings (Loss) Per Share:

    

Continuing Operations:

    

Basic

   $ (0.17   $ (0.20
  

 

 

   

 

 

 

Diluted

   $ (0.17   $ (0.20
  

 

 

   

 

 

 

Discontinued Operations:

    

Basic

   $ 0.02      $ 0.02   
  

 

 

   

 

 

 

Diluted

   $ 0.02      $ 0.02   
  

 

 

   

 

 

 

Net Loss:

    

Basic

   $ (0.15   $ (0.18
  

 

 

   

 

 

 

Diluted

   $ (0.15   $ (0.18
  

 

 

   

 

 

 

Weighted-Average Common Shares Outstanding:

    

Basic

     9,446        8,581   
  

 

 

   

 

 

 

Diluted

     9,446        8,581   
  

 

 

   

 

 

 

See notes to condensed consolidated financial statements.

 

3


SUNLINK HEALTH SYSTEMS, INC. AND SUBSIDIARIES

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

(in thousands)

(unaudited)

 

     THREE MONTHS ENDED
SEPTEMBER 30,
 
     2012     2011  

Net Cash Used in Operating Activities

   $ (1,742   $ (1,347

Cash Flows from Investing Activities:

    

Proceeds from sale of Memorial

     8,350        0   

Expenditures for property, plant and equipment - continuing operations

     (718     (230

Expenditures for property, plant and equipment - discontinued operations

     (17     (44
  

 

 

   

 

 

 

Net Cash Provided by (Used in) Investing Activities

     7,615        (274

Cash Flows from Financing Activities:

    

Revolving advances - net

     (1,000     900   

Proceeds of long-term debt

     9,975        0   

Payments on long-term debt

     (15,555     (8,466

Net proceeds from issuance of common shares

     0        2,345   
  

 

 

   

 

 

 

Net Cash Used in Financing Activities

     (6,580     (5,221
  

 

 

   

 

 

 

Net decrease in Cash and Cash Equivalents

     (707     (6,842

Cash and Cash Equivalents Beginning of Period

     2,057        7,250   
  

 

 

   

 

 

 

Cash and Cash Equivalents End of Period

   $ 1,350      $ 408   
  

 

 

   

 

 

 

Supplement Disclosure of Cash Flow Information:

    

Cash Paid (Received) for:

    

Interest

   $ 664      $ 333   
  

 

 

   

 

 

 

Income taxes

   $ 68      $ (27
  

 

 

   

 

 

 

Non-cash investing and financing activities:

    

Assets acquired under capital lease obligation - continuing operations

   $ 0      $ 0   

Assets acquired under capital lease obligation - discontinued operations

     0        316   
  

 

 

   

 

 

 
   $ 0      $ 316   
  

 

 

   

 

 

 

See notes to condensed consolidated financial statements.

 

4


SUNLINK HEALTH SYSTEMS, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

THREE MONTHS ENDED SEPTEMBER 30, 2012

(all dollar amounts in thousands except per share amounts)

(unaudited)

Note 1. - Basis of Presentation

The accompanying unaudited Condensed Consolidated Financial Statements as of September 30, 2012 and for the three month periods ended September 30, 2012 and 2011 have been prepared in accordance with Rule 10-01 of Regulation S-X of the Securities and Exchange Commission (“SEC”) and, as such, do not include all information required by accounting principles generally accepted in the United States of America (“GAAP”). The condensed consolidated June 30, 2012 balance sheet included in this interim filing has been derived from the audited financial statements at that date but does not include all of the information and related notes required by GAAP for complete financial statements. These Condensed Consolidated Financial Statements should be read in conjunction with the audited consolidated financial statements included in the SunLink Health Systems, Inc. (“SunLink”, “we”, “our”, “ours”, “us” or the “Company”) Annual Report on Form 10-K for the fiscal year ended June 30, 2012, filed with the SEC on September 20, 2012. In the opinion of management, the Condensed Consolidated Financial Statements, which are unaudited, include all adjustments, consisting only of normal recurring adjustments, necessary to present fairly the financial position and results of operations for the periods indicated. The results of operations for the three month period ended September 30, 2012 are not necessarily indicative of the results that may be expected for the entire fiscal year or any other interim period.

Note 2. – Business Operations

Business Operations

SunLink Health Systems, Inc. subsidiaries provide healthcare services in certain rural and exurban markets in the United States. SunLink’s business is composed of the ownership of subsidiaries which operate in two business segments:

 

   

Healthcare Facilities, which consist of

 

   

Our four community hospitals which have a total of 232 licensed beds;

 

   

Our three nursing homes, which have a total of 166 licensed beds, each of which is located adjacent to a corresponding SunLink community hospital; and

 

   

Our one home health agency, which operates in connection with a corresponding SunLink community hospital; and

 

   

One hospital facility and related equipment which is leased to a third party hospital operator. The third party hospital operator has the option to buy the hospital facility and equipment.

 

   

Specialty Pharmacy, which consists of

 

   

Specialty pharmacy services;

 

   

Durable medical equipment;

 

   

Institutional pharmacy services; and

 

   

Retail pharmacy products and services, all of which are conducted in rural markets.

SunLink subsidiaries have conducted the healthcare facilities business since 2001 and the specialty pharmacy business since April 2008. The Specialty Pharmacy Segment currently is operated through Carmichael’s Cashway Pharmacy, Inc. (“Carmichael”), a subsidiary of SunLink ScriptsRx, LLC subsidiary, and is composed of a specialty pharmacy business acquired in April 2008 with four service lines.

SunLink’s Board and management have determined to focus the Company’s strategic investments on enhancing the existing hospital portfolio, including the selective disposal of underperforming and non-strategic subsidiary facilities.

 

5


Note 3. – Subsequent Events

On October 26, 2012, the Company and its Dexter Hospital, LLC (“Dexter”) subsidiary entered into an Asset Purchase Agreement (“Agreement”) with Southeast Missouri Hospital Association (“SoutheastHEALTH”) to sell substantially all of the assets of Dexter to SoutheastHEALTH. The assets of Dexter consist of a leased 50-bed acute-care hospital and related clinics, equipment and home health services in Dexter, Missouri. The transaction is expected to close by December 31, 2012 (“closing date”). It is anticipated that SunLink’s subsidiary, Dexter Hospital, LLC, will manage the hospital for SoutheastHEALTH during a transition period after the closing date through June 30, 2013. The sale of the assets and leasehold interest of Dexter for approximately $9,800, less estimated sale expenses and taxes, is expected to result in net proceeds of approximately $7,400 and an after-tax gain from discontinued operations of approximately $5,000. Dexter’s operations have been reclassified as discontinued operations in our condensed consolidated financial statements as of September 30, 2012 and June 30, 2012 and for the three month periods ended September 30, 2012 and 2011.

On November 6, 2012, SunLink Healthcare Professional Property, LLC, a subsidiary of the Company, entered into and closed on a $2,100 term loan dated as of October 31, 2012 (the “SHPP RDA Loan”) with a bank. SHPP owns and leases a medical office building to North Georgia Medical Center (“North Georgia”), another subsidiary of the Company, located in Ellijay, Georgia.

The SHPP RDA Loan has a term of 25 years with monthly payments of principal and interest until repaid. The SHPP RDA Loan bears interest at a floating rate of interest equal to the greater of (i) the prime rate (as published in The Wall Street Journal) plus 2.0%, or (ii) 5%. The SHPP RDA Loan is collateralized by SHPP’s real estate, equipment and leases and is partially guaranteed under the U.S. Department of Agriculture, Rural Development Business and Industry Program. Of the SHPP RDA Loan proceeds, $1,800 was used by another subsidiary of the Company to acquire a medical office building in Ellijay, Georgia which was then sold to SHPP, with the remainder of the SHPP RDA Loan proceeds used for working capital and closing costs. The SHPP RDA Loan contains certain financial covenants with respect to the ratio of current assets to current liabilities and debt service coverage, all as defined in the SHPP RDA Loan Agreement, which SHPP must maintain and that are measured at the end of each fiscal year. The SHPP RDA Loan is guaranteed by the Company’s MedCare South, LLC subsidiary (f/k/a SunLink Healthcare, LLC) and the Company.

Note 4. – Discontinued Operations

All of the businesses discussed below are reported as discontinued operations and the condensed consolidated financial statements for all prior periods have been adjusted to reflect this presentation.

Results for all of the businesses included in discontinued operations are presented in the following table:

 

     Three Months Ended  
     September 30,  
     2012     2011  

Net Revenues:

    

Dexter

   $ 4,829      $ 5,061   

Memorial

     0        3,610   
  

 

 

   

 

 

 
   $ 4,829      $ 8,671   
  

 

 

   

 

 

 

Earnings (loss) before income taxes:

    

Dexter

   $ 432      $ 791   

Memorial

     (21     (463

Life sciences and engineering

     (34     (22
  

 

 

   

 

 

 

Earnings (loss) before income taxes

     377        306   

Gain on Sale - Memorial

     1,191        0   

Income tax expense

     1,370        118   
  

 

 

   

 

 

 

Earnings from discontinued operations

   $ 198      $ 188   
  

 

 

   

 

 

 

 

6


Dexter Hospital - On October 26, 2012, the Company and its Dexter subsidiary entered into an Agreement with SoutheastHEALTH to sell substantially all of the assets of Dexter to SoutheastHEALTH (see Note 3 – Subsequent Events). Dexter’s operations have been reclassified as discontinued operations in our condensed consolidated financial statements as of September 30, 2012 and June 30, 2012 and for the three month periods ended September 30, 2012 and 2011.

Memorial Hospital of Adel – On July 2, 2012, the Company and its HealthMont of Georgia, Inc. subsidiary completed the sale of substantially of all the assets of the Company’s Memorial Hospital of Adel and Memorial Convalescent Center (collectively “Memorial”) to Hospital Authority of Tift County, Georgia (“Tift”) for approximately $8,350. Excluded assets include accounts receivable as of the March 31, 2012 (“Cutoff Date”) and all Medicare and Medicaid incentive payments (“EHR Funds”) for meaningful use of electronic health record technology and all receivables, claims and settlements made pursuant to the Indigent Care Trust Fund of the State of Georgia (“ICTF”) paid with respect to the State of Georgia’s fiscal year ended June 30, 2012. Retained liabilities consist of liabilities incurred prior to July 2, 2012. The net proceeds from the sale of approximately $7,500 were used to repay a portion of the Company’s senior debt under the Term Loan under the Company’s Credit Facility. Memorial’s operations have been reclassified as discontinued operations in our condensed consolidated financial statements as of September 30, 2012 and June 30, 2012 and for the three month periods ended September 30, 2012 and 2011.

Life Sciences and Engineering Segment – SunLink retained a defined benefit retirement plan which covered substantially all of the employees of this segment when the segment was sold in fiscal 1998. Effective February 28, 1997, the plan was amended to freeze participant benefits and close the plan to new participants. Pension expense and related tax benefit or expense is reflected in the results of operations for this segment for the three months ended September 30, 2012 and 2011. The components of pension expense for the three months ended September 30, 2012 and 2011, respectively, were as follows:

 

     Three Months Ended  
     September 30,  
     2012     2011  

Interest Cost

   $ 17      $ 18   

Expected return on assets

     (10     (10

Amortization of prior service cost

     27        14   
  

 

 

   

 

 

 

Net pension expense

   $ 34      $ 22   
  

 

 

   

 

 

 

SunLink did not contribute to the plan in the three months ended September 30, 2012. We expect to make contributions of $80 to the plan through the end of the fiscal year ending June 30, 2013.

Note 5. – Shareholders’ Equity

Stock-Based Compensation

For the three months ended September 30, 2012 and 2011, the Company recognized $28 and $5, respectively, in stock based compensation for options issued to employees and directors of the Company. The fair value of the share options granted was estimated using the Black-Scholes option pricing model. There were 120,000 and 180,000 share options granted under the 2005 Equity Incentive Plan during the three months ended September 30, 2012 and 2011, respectively. There were 140,000 share options granted under the 2011 Director’s Stock Option Plan during the three months ended September 30, 2012.

Private Placement of Shares

In the first quarter of fiscal 2012, the Company’s Board of Directors authorized the private placement before August 31, 2011 of a total of up to 3,800,000 of the Company’s common shares at a price equal to the average closing price for the shares over the prior ten trading days (on which the Company’s shares traded) with a minimum placement of $2,500.

 

7


On July 28, 2011, SunLink announced the sale of approximately 1,329,000 common shares at approximately $1.90 per share. Such shares were sold to certain of the Company’s officers and directors and/or their affiliates. The net proceeds of the private placement of approximately $2,500 were used, together with the Company’s operating funds, to make an $8,000 pre-payment on the Credit Facility Term Loan. A special committee of the Company’s Board of Directors comprised of non-participating disinterested directors evaluated the private placement transaction and obtained an opinion of an outside advisor selected by the special committee that the price and terms of the private placement were fair from a financial point of view to the Company. No additional shares were sold pursuant to the private placement.

Note 6. – Revenue Recognition and Accounts Receivables

The Company recognizes revenues in the period in which services are performed. Accounts receivable primarily consist of amounts due from third-party payors and patients. The Company’s ability to collect outstanding receivables is critical to its results of operations and cash flows. Amounts the Company receives for treatment of patients covered by governmental programs such as Medicare and Medicaid and other third-party payors such as health maintenance organizations (“HMOs”), preferred provider organizations (“PPOs”) and other private insurers are generally less than the Company’s established billing rates. Additionally, to provide for accounts receivable that could become uncollectible in the future, the Company establishes an allowance for doubtful accounts to reduce the carrying value of such receivables to their estimated net realizable value. Accordingly, the revenues and accounts receivable reported in the Company’s accompanying unaudited condensed consolidated financial statements are recorded at the net amount expected to be received.

The Company’s revenues before provision for doubtful accounts by payor were as follows for the three months ended September 30, 2012:

 

     Three Months Ended  
     September 30,  
     2012     2011  

Healthcare Facilities Segment:

    

Medicare

   $ 9,375      $ 8,817   

Medicaid

     2,839        2,863   

Self-pay

    
3,677
  
   
3,497
  

Managed Care Insurance & Other

     6,495        6,513   

Other

     37        111   
  

 

 

   

 

 

 

Revenues before provision for doubtful accounts

     22,423        21,801   

Provision for doubtful accounts

     (3,482     (3,379
  

 

 

   

 

 

 

Healthcare Facilities Segment Net Revenues

     18,941        18,422   

Specialty Pharmacy Segment Net Revenues

     6,749        7,755   
  

 

 

   

 

 

 

Total Net Revenues

   $ 25,690      $ 26,177   
  

 

 

   

 

 

 

The net revenues of the Specialty Pharmacy Segment are presented net of contractual adjustments. The provision for bad debts of the Specialty Pharmacy Segment is presented as a component of operating expenses in the Condensed Consolidated Statements of Loss and Comprehensive Loss.

Summary information for accounts receivable is as follows:

 

       September 30,
2012
    June 30,
2012
 

Accounts receivable (net of contractual allowances)

   $ 24,532      $ 22,349   

Less allowance for doubtful accounts

     (10,198     (9,121
  

 

 

   

 

 

 

Receivables - net

   $ 14,334      $ 13,228   
  

 

 

   

 

 

 

The following is a summary of the Company’s activity in the allowance for doubtful accounts for the Healthcare Facilities Segment and the Specialty Pharmacy Segment for the three months ended September 30, 2012:

 

     Healthcare     Specialty        
     Facilities     Pharmacy     Total  

Balance at July 1, 2012

   $ 8,714      $ 407      $ 9,121   

Additions recognized as a reduction to revenues

     3,482        80        3,562   

Accounts written off, net of recoveries

     (2,359     (126     (2,485
  

 

 

   

 

 

   

 

 

 

Balance at September 30, 2012

   $ 9,837      $ 361      $ 10,198   
  

 

 

   

 

 

   

 

 

 

Net revenues included increases of $149 and $0 for the three months ended September 30, 2012 and 2011, respectively, for the settlements and filings of prior year Medicare and Medicaid cost reports.

 

8


Note 7. – Medicare and Medicaid Electronic Health Records Incentives

Deferred Gain – Medicare Electronic Health Records Incentives

Electronic Health Records (“EHR”) incentive reimbursements are payments received under the Health Information Technology for Economic and Clinical Health Act (the “HITECH Act”) which was enacted into law on February 17, 2009 as part of the American Recovery and Reinvestment Act of 2009 (“ARRA”). The HITECH Act includes provisions designed to increase the use of EHR by both physicians and hospitals. Beginning with federal fiscal year 2011 (federal fiscal year is October 1 through September 30) and extending through federal fiscal year 2016, eligible hospitals and critical access hospitals (“CAH”) participating in the Medicare and Medicaid programs are eligible for reimbursement incentives based on successfully demonstrating meaningful use of their certified EHR technology. Conversely, those hospitals that do not successfully demonstrate meaningful use of EHR technology are subject to payment penalties or downward adjustments to their Medicare payments beginning in federal fiscal year 2015.

The Company accounts for EHR incentive payments in accordance with ASC 450-30, “Gain Contingencies”, (“ASC 450-30”). In accordance with ASC 450-30, the Company recognizes a gain for Medicare and Medicaid EHR incentive payments when its eligible hospitals have demonstrated meaningful use of certified EHR technology for the applicable period and when the cost report information needed for the full cost report year used for the final calculation of the EHR incentive reimbursement payment is available. The demonstration of meaningful use is based on meeting a series of objectives and varies among hospitals, between the Medicare and Medicaid programs and within the Medicaid program from state to state. Additionally, meeting the series of objectives in order to demonstrate meaningful use becomes progressively more stringent as its implementation is phased in through stages as outlined by the Centers for Medicare and Medicaid Services.

SunLink’s four operating hospitals and Memorial and Dexter (see Note 4. – Discontinued Operations) and its formerly owned operations of Chilton Medical Center (“Chilton”) successfully attested for the Medicare EHR program for the fiscal year ended June 30, 2011. Incentive payments for all four operating hospital subsidiaries and Memorial, Dexter and Chilton totaling $8,521 were received during the quarter ended June 30, 2011. As Medicare EHR incentive payments cannot be recognized until the cost report information utilized to determine the final amount of reimbursement is known, the hospitals recorded the $8,521 as deferred gain as of June 30, 2011. This deferred gain was recognized in the quarter ended June 30, 2012, when information for the cost report period July 1, 2011 through June 30, 2012 was known. Based on revised estimates using June 30, 2012 information, a receivable of $103 was recorded as of September 30, 2012 and June 30, 2012. This amount will be collected upon final settlement of cost reports for fiscal year 2012. SunLink’s hospital subsidiary in Mississippi successfully attested for the Medicaid EHR program in the quarter ended June 30, 2011. SunLink’s one Missouri hospital, two Georgia hospitals and Memorial, Dexter and Chilton successfully attested for the Medicaid EHR program for the federal attestation year ended September 30, 2011 and recognized EHR incentive payments in the fiscal year ended June 30, 2012. Medicaid EHR incentive reimbursement payments were received for SunLink’s four operating hospital subsidiaries and Dexter, Memorial and Chilton during the fiscal year ended June 30, 2012 totaling $2,080.

Note 8. - Goodwill and Intangible Assets

SunLink’s subsidiaries have goodwill and intangible assets related to its Healthcare Facilities and Specialty Pharmacy Segments.

 

9


Intangibles consist of the following, net of amortization:

 

     September 30,
2012
    June 30,
2012
 

Healthcare Facilities Segment

    

Certficates of Need

   $ 80      $ 80   

Accumulated Amortization

     (24     (23
  

 

 

   

 

 

 
     56        57   
  

 

 

   

 

 

 

Specialty Pharmacy Segment

    

Trade Name

     2,000        2,000   

Customer Relationships

     1,089        1,089   

Medicare License

     769        769   
  

 

 

   

 

 

 
     3,858        3,858   

Accumulated Amortization

     (630     (595
  

 

 

   

 

 

 
     3,228        3,263   
  

 

 

   

 

 

 

Total

   $ 3,284      $ 3,320   
  

 

 

   

 

 

 

The trade name intangible asset under the Specialty Pharmacy Segment is a non-amortizing intangible asset.

Amortization expense was $36 and $43 for the three months ended September 30, 2012 and 2011, respectively.

Goodwill consists of the following:

 

     September 30,
2012
     June 30,
2012
 

Specialty Pharmacy Segment

   $ 461       $ 461   
  

 

 

    

 

 

 

Note 9. – Impairment of Long-Lived Assets

Central Alabama Medical Associates, LLC (“CAMA”), an indirect subsidiary of the Company owns a hospital facility and related equipment in Clanton, Alabama, which it leases to a third party hospital operator. The lessee/operator holds the Certificate of Need and other required hospital operating licenses. On October 29, 2012, the Alabama Department of Public Health issued an emergency order to suspend operating license of the lease/operator and for the cessation of all operations in an orderly manner due to the lease/operator’s inability to meet its financial obligations and failure to have an effective governing authority. The lease/operator’s license will remain effective, although suspended, until December 21, 2012 to allow another person or entity to submit an application for licensure to operate the hospital. CAMA is evaluating its legal alternatives under the hospital facility lease and related documents and marketing the facility to other potential operators.

 

10


Due to the changes in circumstances regarding the hospital and equipment in Clanton, Alabama, the carrying amount of these assets may not be fully recoverable. The net realizable value of the hospital and equipment was evaluated and it was determined that an impairment of the net value of the leased property, plant and equipment had occurred. An impairment charge of $789 was recognized in the three months ended September 30, 2012.

As the property, plant and equipment is currently not in use due the lease/operator’s suspended operating license, the plant, property and equipment of CAMA is considered temporarily idle as of September 30, 2012. Temporarily idle assets included in the balances of property, plant and equipment in the condensed consolidated balance sheet are comprised of the following (after the impairment charge):

 

     September 30,  
     2012  

Property, plant and equipment, at cost

   $ 3,086   

Less accumulated depreciation

     1,430   
  

 

 

 

Property, plant and equipment - net

   $ 1,656   
  

 

 

 

Note 10. – Long-Term Debt and Revolving Line of Credit

Long-term debt consisted of the following:

 

     September 30,     June 30,  
     2012     2012  

Term Loan

   $ 648      $ 16,086   

Trace RDA Loan

     9,892        0   

Callaway RDA Loan

     4,362        4,376   

Capital lease obligations

     156        176   
  

 

 

   

 

 

 

Total

     15,058        20,638   

Less current maturities

     (1,238     (9,050
  

 

 

   

 

 

 
   $ 13,820      $ 11,588   
  

 

 

   

 

 

 

Se nior Credit Facility — On April 23, 2008, SunLink and substantially all of its subsidiaries entered into a $47,000 seven-year senior secured credit facility (“Credit Facility”) initially comprised of a revolving line of credit of up to $12,000 (the “Revolving Loan”) and a $35,000 term loan (the “Term Loan”). The Credit Facility has subsequently been amended by eight modification agreements as a result of which the Revolving Loan commitment has been reduced to $9,000 as of September 20, 2012 and the termination date of the Credit Facility is January 1, 2013. At September 30, 2012, the Revolving Loan balance was $4,931 with an interest rate at LIBOR plus 9.375% (12.125% at September 30, 2012) and the Term Loan had an outstanding balance of $648 with an interest rate at LIBOR plus 11.32% (14.07% at September 30, 2012). In the Credit Facility, LIBOR is defined as the Thirty-Day published rate, not to be less than 2.75%, nor more than 5.50%. The maximum availability of the Revolving Loan is keyed to the calculated net collectible value of eligible accounts receivable. Interest rates for the Revolving Loan and Term Loan were as follows:

 

     Interest Rate  

Dates

   Term Loan     Revolver  

July 1, 2011 - July 15, 2011

     14.82     13.25

July 16, 2011 - July 28, 2011

     15.82     14.25

July 29, 2011 - September 30, 2011

     13.57     11.625

October 1, 2011 - December 31, 2011

     13.82     11.875

January 1, 2012 - September 30, 2012

     14.07     12.125

Financing costs and expenses related to the Credit Facility of $2,700 are being amortized over the modified life of the Credit Facility. Accumulated amortization and amortization expense was approximately $2,606 and $84, respectively, as of and for the three months ended September 30, 2012 and $2,364 and $42 as of and for the three

 

11


months ended September 30, 2011. The Credit Facility is secured by a first priority security interest in substantially all real and personal property of the Company and its consolidated domestic subsidiaries, including a pledge of all of the equity interests in such subsidiaries (except for Callaway Community Hospital (“Callaway”) and Trace Regional Hospital (“Trace”) which are both a second lien on the real and personal property).

The Credit Facility contains various terms and conditions, including operational and financial restrictions and limitations, and affirmative and negative covenants. The covenants include financial covenants measured on a quarterly basis which require SunLink and its subsidiaries to comply with maximum leverage and minimum fixed charge ratios, maximum capital expenditure amounts, collateral value to loan amount and liquidity and cash flow measures, all as defined in the Credit Facility. We believe that the Company and its subsidiaries should be able to continue in compliance with the revised levels of financial covenants and terms in the Credit Facility through January 2013, but there is no assurance that the Company and its subsidiaries will be able to do so. We are actively seeking options to refinance the Credit Facility by its termination date and also provide financing for the Company’s liquidity needs. We believe we will be able to refinance the Credit Facility or repay the balance of the Senior Credit Facility from internally available cash. In addition, we have announced an agreement to sell substantially all of the assets of our Dexter subsidiary which we expect to result in net proceeds of approximately $7,400. This asset sale is expected to close by December 31, 2012 and the proceeds are to be used to repay any outstanding balances under the Credit Agreement by the January 1, 2013 facility termination date and provide additional liquidity. If the Company and its subsidiaries fail to remain in compliance with the Credit Facility as modified, they would cease to have a right to draw on the revolving line of credit facility and the lenders would, among other things, be entitled to call a default and demand repayment of the indebtedness outstanding. If SunLink or its applicable subsidiaries experience a material adverse change in their business, assets, financial condition, management or operations, or if the value of the collateral securing the Credit Facility decreases, we may be unable to draw on the credit facility.

Callaway RDA Loan - SunLink, HealthMont of Missouri, LLC (“HOM”) and HealthMont LLC (“HLLC”), the direct parent of HOM closed on a $5,000 Loan Agreement dated as of March 16, 2012 (the “Callaway RDA Loan”) with a bank. The loan is guaranteed by the Company and HLLC. HealthMont of Missouri, LLC owns and operates Callaway in Fulton, Missouri. The Loan Agreement consists of a $4,000 term loan and $1,000 construction loan. The $4,000 term loan was drawn in its entirety at closing. As of September 30, 2012, $388 has been drawn on the $1,000 construction loan in connection with the construction and improvement projects.

The Callaway RDA Loan has a term of 25 years with monthly payments of principal and interest. The Callaway RDA Loan bears interest at a floating interest rate computed as the prime rate (as published in The Wall Street Journal) plus 2%. The Callaway RDA Loan is collateralized by Callaway’s real estate and equipment and is partially guaranteed under the U.S. Department of Agriculture, Rural Development Business and Industry Program. Of the Callaway RDA Loan proceeds, $3,250 was applied as payment against the Company’s Credit Facility. Approximately $1,000 of the Callaway RDA Loan proceeds are being used to finance improvements, including to provide an inpatient geriatric psychiatry unit and an emergency department upgrade, with the remainder of the Callaway RDA Loan proceeds used for working capital and closing costs. The Callaway RDA Loan contains certain financial covenants with respect to the ratio of current assets to current liabilities and debt service coverage, all as defined in the Callaway RDA Loan Agreement and measured at the end of each fiscal year. The Callaway RDA Loan is guaranteed by HLLC and the Company.

Trace RDA Loan - On July 11, 2012, SunLink, SunLink Healthcare, LLC (“SHL”) and Southern Health Corporation of Houston, Inc. (“SHCH”), an indirect wholly-owned subsidiary of the Company, closed on a $9,975 Mortgage Loan Agreement dated as of July 5, 2012 (“Trace RDA Loan”) and a $1,000 Working Capital Loan Agreement dated as of July 5, 2012 (“Trace Working Capital Loan”) with a bank. SHCH owns and operates Trace in Houston, Mississippi. Both the Trace RDA Loan and the Trace Working Capital Loan were unconditionally guaranteed by the Company and SunLink Healthcare LLC (“SHL”), a wholly-owned intermediate holding company.

The Trace RDA Loan has a term of 15 years with monthly payments of principal and interest until repaid. The Trace RDA Loan bears a floating rate of interest equal to the greater of (i) the prime rate (as published in The Wall Street Journal) plus 1.5%, or (ii) 6%. The Trace RDA Loan is collateralized by Trace’s real estate and equipment and is partially guaranteed under the U.S. Department of Agriculture, Rural Development Business and Industry Program. Approximately $8,500 of the Trace RDA Loan proceeds were used to repay a portion of the Company’s senior debt under the Term Loan under the Credit Facility. Approximately $850 of the Trace RDA Loan proceeds are being used for improvements to the hospital and its medical office building with the remainder of the loan proceeds used for working capital and closing costs. The unused portion of the loan proceeds is held in escrow and included on the balance sheet at September 30, 2012 as cash in escrow. The Trace RDA Loan contains covenants

 

12


which it believes are customary to similar loan agreements as well as certain financial covenants with respect to SHCH’s ratio of current assets to current liabilities and debt service coverage, fixed charge coverage and funded debt to EBITDA, all as defined in the Trace RDA Loan Agreement.

Note 11. – Subordinated Long-Term Debt

Subordinated long-term debt consisted of the following:

 

     September 30,     June 30,  
     2012     2012  

Carmichael’s

   $ 2,452      $ 2,452   

Less current maturities

     (300     (300
  

 

 

   

 

 

 
   $ 2,152      $ 2,152   
  

 

 

   

 

 

 

Carmichael Notes – On April 22, 2008, SunLink Scripts Rx, LLC (formerly known as SunLink Homecare Services, LLC) entered into a $3,000 promissory note agreement with an interest rate of 8% with the former owners of Carmichael as part of the acquisition purchase price (the “Carmichael Purchase Note”). On April 12, 2011, an amendment to the Carmichael Purchase Note was entered into under which SunLink has the option to issue subordinated promissory notes to the former owners of Carmichael in payment of up to two semi-annual payments of principal and interest due under the Carmichael Purchase Note (the “PIK Notes”). The PIK Notes bear an interest rate of 8% and are due on April 22, 2015. A PIK Note for $247 was issued on April 22, 2011 for the principal and interest payment that would have been due on April 22, 2011. A PIK Note for $252 was issued on October 22, 2011 for the principal and interest payment that would have been due on October 22, 2011. The Carmichael Purchase Note is payable in semi-annual installments of $150, which began on April 22, 2009, with the remaining balance of the Carmichael Purchase Note and the PIK Notes of $1,702 due April 22, 2015. Interest is payable in arrears semi-annually on the six and twelve-month anniversary of the issuance of the note. The Carmichael Purchase Note is guaranteed by the Company. The note and the guarantee are subordinate to the Credit Facility.

Under the terms of the Credit Facility (see Note 10 – Long-Term Debt and Revolving Line of Credit), if SunLink is in violation of certain terms and conditions of such facility, the Company cannot make principal payments due under the Carmichael Purchase Note without permission of the agent for the lenders of the Credit Facility.

Note 12. – Income Taxes

Income tax benefit of $1,428 ($1,559 federal tax benefit and $131 state tax expense) and $1,067 ($960 federal tax benefit and $107 state tax benefit) was recorded for the three months ended September 30, 2012 and 2011, respectively.

We had an estimated net operating loss carry-forward for federal income tax purposes of approximately $5,900 at September 30, 2012. Use of this net operating loss carry-forward is subject to the limitations of the provisions of Internal Revenue Code Section 382. As a result, not all of the net operating loss carry-forward is available to offset federal taxable income in the current year. At September 30, 2012, we have provided a partial valuation allowance against the deferred tax asset so that the net tax asset was $11,149. Based upon management’s assessment that it was more likely than not that a portion of its deferred tax asset (primarily its net operating losses subject to limitation) would not be recovered, the Company established a valuation allowance for the portion of the tax asset which management estimates will not be utilized.

The Company accounts for uncertainty in income taxes for a change in judgment related to prior years’ tax positions in the quarter of such change. The Company classifies interest and penalties related to unrecognized tax benefits as part of its provision for income taxes. Accordingly, included in the liability for unrecognized tax benefits was a liability of $17 as of September 30, 2012.

 

13


A reconciliation of the beginning and ending amounts of unrecognized tax benefits, included interest and penalties from July 1, 2010 through September 30, 2012 is presented below:

 

Balance at July 1, 2010

   $ 71   

Reduction for tax positions of prior years

     (34
  

 

 

 

Balance at June 30, 2011

     37   

Reduction for tax positions of prior years

     (18
  

 

 

 

Balance at June 30, 2012

     19   

Reduction for tax positions of prior years

     (2
  

 

 

 

Balance at September 30, 2012

   $ 17   
  

 

 

 

Note 13. – Commitments and Contingencies

Legal Proceedings

In 2007, Southern Health Corporation of Ellijay, Inc. (“SHC-Ellijay”) filed a Complaint against James P. Garrett and Roberta Mundy, both individually and as Fiduciary of the Estate of Randy Mundy (collectively, “Defendants”), seeking specific performance of an Option Agreement (the “Option Agreement”) dated April 17, 2007, between SHC-Ellijay, Mr. Garrett, and Ms. Mundy as Executrix of the Estate of Randy Mundy for the sale of approximately 24.74 acres of real property located in Gilmer County, Georgia, and recovery of SHC-Ellijay’s damages suffered as a result of Defendants’ failure to close the transaction in accordance with the Option Agreement. SHC-Ellijay also stated alternative claims for breach of the Option Agreement and fraud, along with claims to recover attorney’s fees and punitive damages and the defendants filed counterclaims against SHC-Ellijay.

On April 11, 2012, the Court granted SHC-Ellijay’s motion for partial summary judgment and denied Defendants’ motions for summary judgment. On or about April 23, 2012, Defendants filed a notice of appeal to the Georgia Court of Appeals. Defendants filed their Brief of Appellants on July 30, 2012. SHC-Ellijay filed its Brief of Appellee on August 21, 2012. Defendants filed their Reply Brief on September 10, 2012. The case remains pending before the Georgia Court of Appeals. A ruling is expected by March 31, 2013.

SunLink denies that it has any liability to Defendants and intends to vigorously defend the claims asserted against SunLink by the Defendants and to vigorously pursue its claims against the Defendants. While the ultimate outcome and materiality of the litigation cannot be determined, in management’s opinion the litigation will not have a material adverse effect on SunLink’s financial condition or results of operations.

SunLink and its subsidiaries are a party to claims and litigation incidental to its business, for which it is not currently possible to determine the ultimate liability, if any. Based on an evaluation of information currently available and consultation with legal counsel, management believes that resolution of such claims and litigation is not likely to have a material effect on the financial position, cash flows, or results of operations of the Company. The Company expenses legal costs as they are incurred.

 

14


Contractual Obligations, Commitments and Contingencies

Contractual obligations, commitments and contingencies related to long-term debt, non-cancelable operating leases, physician guarantees and interest on outstanding debt from continuing operations at September 30, 2012 were as follows:

 

Payments due in:

   Long-Term
Debt
     Subordinated
Long-Term
Debt
     Non-cancellable
Operating Leases
     Physician
Guarantees
     Interest on
Outstanding
Debt
     Interest on
Outstanding
Subordinated

Debt
 

1 year

   $ 1,238       $ 300       $ 1,318       $ 63       $ 846       $ 184   

2 years

     568         300         641         59         789         160   

3 years

     585         1,852         388         0         754         74   

4 years

     620         0         156         0         719         0   

5+ years

     12,047         0         43         0         5,475         0   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 
   $ 15,058       $ 2,452       $ 2,546       $ 122       $ 8,583       $ 418   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

At September 30, 2012, SunLink subsidiaries had guarantee agreements with two physicians. A physician with whom a guarantee agreement is made generally agrees to maintain his or her practice within a hospital geographic area for a specific period (normally three years) or be liable to repay all or a portion of the guarantee received. The physician’s liability for any guarantee repayment due to non-compliance with the provisions of a guarantee agreement generally is collateralized by the physician’s patient accounts receivable and/or a promissory note from the physician. Included in the Company’s condensed consolidated balance sheet at September 30, 2012 is a liability of $122 for one physician guarantee. SunLink expensed $31 and $57 on physician guarantees and recruiting for the three months ended September 30, 2012 and 2011, respectively. The table above shows non-cancelable commitments under physician guarantee contracts as of September 30, 2012.

Note 14. - Related Party Transactions

A director of the Company and our company secretary (and director emeritus) are members of two different law firms, each of which provides services to SunLink. The Company has paid an aggregate of $213 and $255 for legal services to these law firms in the three months ended September 30, 2012 and 2011, respectively. Included in the Company’s condensed consolidated balance sheet at September 30, 2012 and June 30, 2012 is $385 and $644, respectively, of amounts payable to these law firms.

Note 15. - Financial Information by Segment

Under ASC Topic No. 280, Segment Reporting, operating segments are defined as components of an enterprise about which separate financial information is available that is evaluated regularly by the chief operating decision maker, or decision-making group, in deciding how to allocate resources and in assessing performance. Our chief operating decision-making group is composed of SunLink’s chief executive officer and other members of SunLink’s senior management. Our two reportable operating segments are Healthcare Facilities and Specialty Pharmacy.

 

15


We evaluate performance of our operating segments based on revenue and operating income (loss). Segment information for the three months ended September 30, 2012 and 2011 is as follows:

 

     Healthcare     Specialty     Corporate        
     Facilities     Pharmacy     and Other     Total  

Three months ended September 30, 2012

        

Net revenues from external customers

   $ 18,941      $ 6,749      $ 0      $ 25,690   

Operating loss

     (1,327     (100     (1,064     (2,491

Depreciation and amortization

     680        165        139        984   

Assets

     44,899        10,627        14,566        70,092   

Expenditures for property, plant and equipment

     584        126        8        718   

Three months ended September 30, 2011

        

Net revenues from external customers

   $ 18,422      $ 7,755      $ 0      $ 26,177   

Operating loss

     (1     (276     (1,232     (1,509

Depreciation and amortization

     736        228        135        1,099   

Assets

     54,859        11,633        14,941        81,433   

Expenditures for property, plant and equipment

     85        113        18        216   

 

16


ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS –

(dollars in thousands, except per share and admissions data)

Forward-Looking Statements

This Quarterly Report and the documents that are incorporated by reference in this Quarterly Report contain certain forward-looking statements within the meaning of the safe harbor for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995. Forward-looking statements include all statements that do not relate solely to historical or current facts and may be identified by the use of words such as “may,” “believe,” “will,” “expect,” “project,” “estimate,” “anticipate,” “plan” or “continue.” These forward-looking statements are based on current plans and expectations and are subject to a number of risks, uncertainties and other factors which could significantly affect current plans and expectations and our future financial condition and results. These factors, which could cause actual results, performance and achievements to differ materially from those anticipated, include, but are not limited to:

General Business Conditions

 

   

general economic and business conditions in the U.S., both nationwide and in the states in which we operate;

 

   

increases in uninsured and/or underinsured patients due to unemployment or other conditions resulting in higher bad debt amounts;

 

   

the competitive nature of the U.S. community hospital, nursing home, homecare and specialty pharmacy businesses;

 

   

demographic changes in areas where we operate;

 

   

the availability of new long-term financing to replace our existing credit facility;

 

   

the availability of cash or borrowings to fund working capital, renovations, replacements, expansions and capital improvements at existing hospital facilities and for acquisitions and replacement hospital facilities;

 

   

changes in accounting principles generally accepted in the U.S.; and,

 

   

fluctuations in the market value of equity securities including SunLink common shares;

Operational Factors

 

   

inability to operate profitability in one or more segments of the healthcare business;

 

   

the availability of, and our ability to attract and retain, sufficient qualified staff physicians, management, nurses, pharmacists and staff personnel for our operations;

 

   

timeliness and amount of reimbursement payments received under government programs;

 

   

increases in interest rates under our indebtedness;

 

   

the inability to refinance existing indebtedness and potential defaults under existing indebtedness;

 

   

restrictions imposed by debt agreements;

 

   

the cost and availability of insurance coverage including professional liability (e.g., medical malpractice) and general liability insurance;

 

   

the efforts of insurers, healthcare providers, and others to contain healthcare costs;

 

   

the impact on hospital services of the treatment of patients in lower acuity healthcare settings, whether with drug therapy or in alternative healthcare settings, such as surgery centers or urgent care centers;

 

   

changes in medical and other technology;

 

   

risks of changes in estimates of self insurance claims and reserves;

 

   

increases in prices of materials and services utilized in our Healthcare Facilities and Specialty Pharmacy Segments;

 

   

increases in wages as a result of inflation or competition for management, physician, nursing, pharmacy and staff positions;

 

   

increases in the amount and risk of collectability of accounts receivable, including deductibles and co-pay amounts;

 

   

the functionality of, or costs with respect to our information systems for our Healthcare Facilities and Specialty Pharmacy Segments and our corporate office, including both software and hardware; and

 

   

the availability of and competition from alternative drugs or treatments provided by our Specialty Pharmacy Segment;

 

17


Liabilities, Claims, Obligations and Other Matters

 

   

claims under leases, guarantees and other obligations relating to discontinued operations, including sold facilities, retained or acquired subsidiaries and former subsidiaries;

 

   

potential adverse consequences of known and unknown government investigations;

 

   

claims for product and environmental liabilities from continuing and discontinued operations;

 

   

professional, general and other claims which may be asserted against us; and,

 

   

natural disasters and weather-related events such as earthquakes, flooding, snow, ice and wind damage and population evacuations affecting areas in which we operate.

Regulation and Governmental Activity

 

   

existing and proposed governmental budgetary constraints;

 

   

the regulatory environment for our businesses, including state certificate of need laws and regulations, rules and judicial cases relating thereto;

 

   

anticipated adverse changes in the levels and terms of government (including Medicare, Medicaid and other programs) and private reimbursement for SunLink’s healthcare services including the payment arrangements and terms of managed care agreements;

 

   

changes in or failure to comply with federal, state or local laws and regulations affecting the healthcare industry including federal healthcare reform legislation and,

 

   

the possible enactment of federal healthcare reform laws or reform laws in states where we operate hospital and pharmacy facilities (including Medicaid waivers and other reforms);

Acquisition Related Matters

 

   

the availability and terms of capital to fund acquisitions;

 

   

impairment or uncollectibility of certain acquired assets;

 

   

assumed liabilities discovered subsequent to an acquisition;

 

   

our ability to integrate acquired healthcare businesses and implement our business strategy; and,

 

   

competition in the market for acquisitions of hospitals and healthcare businesses.

The foregoing are significant factors we think could cause our actual results to differ materially from expected results. However, there could be additional factors besides those listed herein that also could affect SunLink in an adverse manner.

You should read this Quarterly Report completely and with the understanding that actual future results may be materially different from what we expect. You are cautioned not to unduly rely on forward-looking statements when evaluating the information presented in this Quarterly Report or our other disclosures because current plans, anticipated actions, and future financial conditions and results may differ from those expressed in any forward-looking statements made by or on behalf of SunLink.

We have not undertaken any obligation to publicly update or revise any forward-looking statements. All of our forward-looking statements speak only as of the date of the document in which they are made or, if a date is specified, as of such date. We disclaim any obligation or undertaking to provide any updates or revisions to any forward-looking statement to reflect any change in our expectations or any changes in events, conditions, circumstances or information on which the forward-looking statement is based. All subsequent written and oral forward-looking statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by the foregoing factors and the risk factors set forth elsewhere in this report and in our Annual Report on Form 10-K.

Corporate Business Strategy

SunLink’s Board and management have determined to focus the Company’s strategic investments on enhancing the existing hospital portfolio, including the selective disposal of underperforming and non-strategic subsidiary facilities.

 

18


Operations

Our operational strategy is focused on efforts to improve operations and generate internal growth. Our primary operational strategy for our community hospitals is to improve the operations and profitability of such hospitals by reducing out-migration of patients, recruiting physicians, improving quality and safety of services, expanding services and implementing and maintaining effective cost controls. Our operational strategy for our nursing homes and home health agency is similar to that for our community hospitals and is focused on quality patient care, expanding services and implementing and maintaining effective cost controls. Our operational strategy for our Specialty Pharmacy Segment is focused on increasing market share, expanding services, and implementing and maintaining effective cost controls.

Acquisitions and Dispositions Strategy

The Company continues to evaluate certain rural and exurban hospitals and healthcare businesses, which may be for sale, and monitor other selected rural and exurban healthcare acquisition targets which it believes might become available for sale or lease.

We believe there may be renewed opportunities for acquisitions or dispositions of individual hospitals in the future due to, among other things, continued negative trends in certain government reimbursement programs and other factors. We also believe there may be opportunities for the acquisition or disposition of individual or groups of hospitals in the future as other for-profit and not-for-profit hospital operators seek to re-align the focus of their portfolios.

We also consider the disposition of one or more of our healthcare facilities, Specialty Pharmacy Segment service lines or business segments, if we determine that the operating results or potential growth of such facility, service line or segment no longer meet our business objectives.

Critical Accounting Estimates

The preparation of financial statements in accordance with U.S. generally accepted accounting principles requires us to make estimates and assumptions that affect reported amounts and related disclosures. We consider an accounting estimate to be critical if:

 

   

it requires assumptions to be made that were uncertain at the time the estimate was made; and

 

   

changes in the estimate or different estimates that could have been made could have a material impact on our consolidated results of operations or financial condition.

Our critical accounting estimates are more fully described in our 2012 Annual Report on Form 10-K and continue to include the following areas:

 

   

Receivables – net and provision for doubtful accounts;

 

   

Revenue recognition / Net Patient Service Revenues;

 

   

Valuation of goodwill, intangible and long-lived assets;

 

   

Professional and general liability claims; and

 

   

Accounting for income taxes; and

 

   

Electronic Health Record incentives.

 

19


Financial Summary

The results of continuing operations shown in the financial summary below are for our two business segments, Healthcare Facilities and Specialty Pharmacy.

 

     Three Months Ended September 30,  
     2012     2011     % Change  

Net Revenues—Healthcare Facilities

   $ 18,941      $ 18,422        2.8

Net Revenues—Specialty Pharmacy

     6,749        7,755        -13.0
  

 

 

   

 

 

   

 

 

 

Total Net Revenues

     25,690        26,177        -1.9

Costs and expenses

     (27,392     (28,345     -3.4

Impairment of property, plant and equipment

     (789     0        N/A   

Electronic health records incentives

     0        659        -100.0
  

 

 

   

 

 

   

 

 

 

Operating loss

     (2,491     (1,509     -65.1

Interest expense

     (559     (1,303     -57.1

Interest income

     —          2        -100.0
  

 

 

   

 

 

   

 

 

 

Loss from continuing operations before income taxes

   $ (3,050   $ (2,810     -8.5
  

 

 

   

 

 

   

 

 

 

Healthcare Facilities Segment:

      

Admissions

     879        924        -5

Equivalent admissions

     3,158        3,231        -2

Surgeries

     469        496        -5

Revenue per equivalent admission

   $ 5,987      $ 5,699        5

Equivalent admissions – Equivalent admissions is used by management (and certain investors) as a general measure of combined inpatient and outpatient volume for our hospital operations. Equivalent admissions are computed by multiplying admissions (inpatient volume) by the sum of gross inpatient revenues and gross outpatient revenues and dividing the result by gross inpatient revenues. The equivalent admissions computation is intended to relate outpatient revenues to the volume measure (admissions) used to measure inpatient volume to result in a general approximation of combined inpatient and outpatient volume (equivalent admissions).

Results of Operations

Our net revenues are from our two business segments, healthcare facilities and specialty pharmacy.

Healthcare Facilities Segment

Net revenues for the three months ended September 30, 2012 were $18,941 with a total of 3,158 equivalent admissions and revenue per equivalent admission of $5,987 compared to net revenues of $18,422 with a total of 3,231 equivalent admissions and revenue per equivalent admission of $5,699 for the quarter ended September 30, 2011.

The following table sets forth the percentage of patient revenues before bad debts from major payor sources for the Company’s four hospitals (exclusive of the hospital operated by our Dexter Hospital, LLC subsidiary which is under contract to be sold) during the periods indicated:

 

     Three Months Ended
September 30,
 
     2012     2011  

Source:

    

Medicare

     41.7     40.6

Medicaid

     12.7     13.2

Self-pay

     16.5     16.2

Managed Care Insurance & Other

     29.1     30.0
  

 

 

   

 

 

 
     100.0     100.0
  

 

 

   

 

 

 

 

20


As a percentage of net revenue, Medicare increased in the three months ended September 30, 2012 compared to the prior year period as a result of increased Medicare admissions and the opening of two Geriatric Psychiatry Units (“GPUs”) in July 2012. These two new GPUs had net Medicare revenue of $814 for the three months ended September 30, 2012. Medicare net revenue increased to $9,375 for the three months ended September 30, 2012 from $8,817 for the three months ended September 30, 2011. Medicaid as a percentage of net revenue decreased slightly due to decreased nursing home reimbursement. Medicaid revenue decreased from $2,863 for the three months end September 30, 2011 to $2,839 for the three months ended September 30, 2012. Managed care and other revenue decreased from $6,513 for the three months ended September 30, 2011 to $6,495 for the three months ended September 30, 2012. Self-pay revenue as a percentage of net patient revenue increased slightly for the three months ended September 30, 2012 due to an increase in emergency room visits compared to the prior year period. Self-pay revenue increased from $3,497 in the three months ended September 30, 2011 to $3,667 for the three months ended September 30, 2012.

Specialty Pharmacy Segment

Specialty Pharmacy net revenues for the three months ended September 30, 2012 was $6,749, a decrease of $1,006, or 12.9%, from $7,775 for the three months ended September 30, 2011. The decrease was largely due to the loss of certain institutional direct-servicing and management contracts, a decrease in the sale of a seasonal infusion therapy drug and reduced reimbursement resulting from the implementation of Louisiana Medicaid managed care.

Healthcare Facilities Segment Cost and Expenses

Costs and expenses for our Healthcare Facilities, including depreciation and amortization, were $19,492 and $18,423 for the three months ended September 30, 2012 and 2011, respectively.

 

     Cost and Expenses
as a % of Net Revenues
 
     Three Months Ended
September 30,
 
     2012     2011  

Salaries, wages and benefits

     57.8     57.7

Supplies

     11.7     11.6

Purchased services

     8.7     9.4

EHR incentive payments

     0.0     -2.6

Other operating expenses

     18.7     18.2

Rent and lease expense

     2.3     2.6

Depreciation and amortization expense

     3.6     3.9

Purchased services as a percentage of net revenue decreased from the comparable prior year period due to previously outsourced services being performed by employees.

EHR incentive payments as a percent of net revenue is a negative 2.6% for the three months ended September 30, 2011. This is related to the $659 of Medicaid EHR incentive payments recognized in the three months ended September 30, 2011. There were no Medicaid EHR incentive payments recognized in the three months ended September 30, 2012.

Other operating expenses as a percentage of net revenue increased from the comparable prior period due to an increase in insurance expense resulting from professional and general liability claims incurred in the three months ended September 30, 2012.

 

21


Specialty Pharmacy Segment Cost and Expenses

Cost and expenses for our Specialty Pharmacy Segment, including depreciation and amortization, were $6,849 and $8,031 for the three months ended September 30, 2012 and 2011, respectively.

 

     Cost and Expenses
as a % of Net Revenues
 
     Three Months Ended
September 30,
 
     2012     2011  

Cost of goods sold

     62.8     63.6

Salaries, wages and benefits

     24.4     22.9

Provision for bad debts

     1.2     3.5

Supplies

     0.7     0.7

Purchased services

     4.7     4.2

Other operating expenses

     4.0     4.6

Rent and lease expense

     1.1     1.0

Depreciation and amortization expense

     2.4     2.9

Cost of goods sold as a percent of net revenues decreased in the three months ended September 30, 2012 as compared to the comparable period of the prior year due the current period’s decreases in sales of certain infusion therapy products, which have a higher cost of sales as a percentage of net revenues, favorable purchasing contracts negotiations, and improved margins for the institutional pharmacy business.

Salaries, wages and benefits decreased in total in the three months ended September 30, 2012 as compared to the comparable period of the prior year due to cost-cutting measures. However, salaries, wages and benefits as a percent of net revenues increased in the three months ended September 30, 2012 as compared to the comparable period of the prior year due to decreased net revenues in the current period.

Provision for bad debts as a percent of net revenues decreased in the three months ended September 30, 2012 as compared to the comparable period of the prior year due primarily to the implementation of additional business office and intake policies and procedures.

Purchased services decreased in total in the three months ended September 30, 2012 as compared to the comparable period of the prior year due to cost-cutting measures. However, purchased services as a percent of net revenues increased in the three months ended September 30, 2012 as compared to the comparable period of the prior year due to decreased net revenues in the current period.

Other operating expenses as a percent of net revenues decreased in the three months ended September 30, 2012 as compared to the comparable period of the prior year due to a favorable insurance trend and cost-cutting measures.

Impairment of Long-Lived Assets

Central Alabama Medical Associates, LLC (“CAMA”), an indirect subsidiary of the Company owns a hospital facility and related equipment in Clanton, Alabama, which it leases to a third party hospital operator. The lessee/operator holds the Certificate of Need and other required hospital operating licenses. On October 29, 2012, the Alabama Department of Public Health issued an emergency order to suspend operating license of the lease/operator and for the cessation of all operations in an orderly manner due to the lease/operator’s inability to meet its financial obligations and failure to have an effective governing authority. The lease/operator’s license will remain effective, although suspended, until December 21, 2012 to allow another person or entity to submit an application for licensure to operate the hospital. CAMA is evaluating its legal alternatives under the hospital facility lease and related documents and marketing the facility to other potential operators.

Due to the changes in circumstances regarding CAMA’s owned hospital and equipment in Clanton, Alabama, the carrying amount of these assets may not be fully recoverable. The net realizable value of the hospital facility and equipment was evaluated and it was determined that an impairment of the net value of the leased property, plant and equipment had occurred. An impairment charge of $789 was recognized for the Healthcare Facilities Segment in the three months ended September 30, 2012.

 

22


Corporate Overhead Costs and Expenses

Cost and expenses for Corporate Overhead including depreciation and amortization, was $1,051 and $1,232 for the three months ended September 30, 2012 and 2011, respectively. Corporate Overhead decreased in the three months ending September 30, 2012 due to decreased legal and consulting expenses in the three months ended September 30, 2012.

Operating Loss

SunLink had an operating loss of $2,491 for the three months ended September 30, 2012 and $1,509 for the three months ended September 30, 2011. The increase in operating loss for the three months ended September 30, 2012 compared to the comparable period in 2011 resulted from the fact that the three months ended September 30, 2011 were favorably affected by the recognition of $659 of EHR incentive payments which were not recurring in the three months ended September 30, 2012 and the impairment charge of $789 related to the Healthcare Facilities Segment for the three months ended September 30, 2012. This increase in operating loss was partially offset by the overall decrease in operating expenses.

Interest Expense

Interest expense was $559 and $1,303 for the three months ended September 30, 2012 and 2011, respectively. Interest expense for the three months ended September 30, 2012 decreased from the same period last year due to lower outstanding debt and a decrease in interest rates. The decrease also resulted from decreased waiver fees partially offset by an increase in non-cash amortization of costs and fees in the current year periods. Non-cash amortization expense of costs and fees were $84 and $42 for the three months ended September 30, 2012 and 2011, respectively. Waiver fees and costs were $0 and $131 for the three months ended September 30, 2012 and 2011, respectively.

Income Taxes

Income tax benefit of $1,428 ($1,559 federal tax benefit and $131 state tax expense) and $1,067 ($960 federal tax benefit and $107 state tax benefit) was recorded for the three months ended September 30, 2012 and 2011, respectively.

SunLink had an estimated consolidated net operating loss carry-forward for federal income tax purposes of approximately $5,900 at September 30, 2012. Use of this net operating loss carry-forward is subject to the limitations of the provisions of Internal Revenue Code Section 382. As a result, not all of the net operating loss carry-forward is available to offset federal taxable income in the current year. At September 30, 2012, we have provided a partial valuation allowance against the deferred tax asset so that the net tax asset was $11,149. Based upon management’s assessment that it was more likely than not that a portion of its deferred tax asset (primarily its net operating losses subject to limitation) would not be recovered, the Company established a valuation allowance for the portion of the tax asset which management estimates will not be utilized.

Loss After Taxes

Loss from continuing operations was $1,622 ($0.17 loss per fully diluted share) for the quarter ended September 30, 2012 compared to $1,743 ($0.20 loss per fully diluted share) for the quarter ended September 30, 2011. The decreased loss for the three months ended September 30, 2012 resulted from decreased interest expense partially offset by increased operating loss as compared to the comparable prior year period.

Earnings from discontinued operations of $198 for the three months ended September 30, 2012 resulted from the Dexter Hospital, LLC (“Dexter”) pre-tax earnings from operation of $432, Memorial Hospital of Adel and Memorial Convalescent Center (collectively “Memorial”) pre-tax losses from operations of $21 and a gain from the sale of Memorial of $1,191. The earnings from discontinued operations for the three months ended September 30, 2012 also was partially offset by $34 of losses resulting from pension items relating to discontinued operations. Tax expense for discontinued operations for the three months ended September 30, 2023 was $1,370. Our effective tax rate for discontinued operations during the three months ended September 30, 2012 was 104.1%, which is primarily due to the non-deductibility of approximately $1,600 of the recorded value of the intangible assets sold in the sale of Memorial.

 

23


Net loss for the quarter ended September 30, 2012 was $1,424 ($0.15 loss per fully diluted share) compared to net loss of $1,555 ($0.18 loss per fully diluted share) for the quarter ended September 30, 2011.

Adjusted earnings before income taxes, interest, depreciation and amortization

Earnings before income taxes, interest, depreciation and amortization (“EBITDA”) represent the sum of income before income taxes, interest, depreciation and amortization. We understand that certain industry analysts and investors generally consider EBITDA to be one measure of the liquidity of a company, and it is presented to assist analysts and investors in analyzing the ability of a company to generate cash, service debt and meet capital requirements. We believe increased EBITDA is an indicator of improved ability to service existing debt and to satisfy capital requirements. EBITDA, however, is not a measure of financial performance under accounting principles generally accepted in the United States of America and should not be considered an alternative to net income as a measure of operating performance or to cash liquidity. Because EBITDA is not a measure determined in accordance with accounting principles generally accepted in the United States of America and is thus susceptible to varying calculations, EBITDA, as presented, may not be comparable to other similarly titled measures of other corporations. Where we adjust EBITDA for non-cash charges we refer to such measurement as “Adjusted EBITDA”, which we report on a company wide basis. Non-cash adjustments in Adjusted EBITDA are not intended to be identified or characterized in any respect as “non-recurring, infrequent or unusual,” if we believe such charge is reasonably likely to recur within two years, or if there was a similar charge (or gain) within the prior two years. Where we report Adjusted EBITDA, we typically also report Healthcare Facilities Segment Adjusted EBITDA and Specialty Pharmacy Segment Adjusted EBITDA which is the EBITDA for the applicable segments without any allocation of corporate overhead, which we report as a separate line item, gains on sales of businesses and without any allocation of the non-cash adjustments, which we also report as a separate line item in Adjusted EBITDA. Net cash used in operations for the three months ended September 30, 2012 and 2011, respectively, is shown below.

 

     Three Months Ended
September 30,
 
     2012     2011  

Healthcare Facilities Adjusted EBITDA

   $ 112      $ 735   

Specialty Pharmacy Adjusted EBITDA

     80        (46

Corporate overhead costs

     (910     (1,098

Taxes and interest expense

     (502     (355

Other non-cash expenses and net change in operating assets and liabilities

     (522     (583
  

 

 

   

 

 

 

Net cash provided by (used in) operations

   $ (1,742   $ (1,347
  

 

 

   

 

 

 

Liquidity and Capital Resources

Our primary sources of liquidity are cash generated from continuing operations and availability under the Revolving Loan under our Credit Facility which is discussed below. Subject to the risks and uncertainties discussed herein, we believe we have adequate financing and liquidity to support our current level of operations through the next twelve months.

Credit Facility

In April 2008, SunLink entered into a seven-year senior secured credit facility (“Credit Facility”) initially comprised of a revolving line of credit of up to $12,000 (the “Revolving Loan”) and a $35,000 term loan (the “Term Loan”). The Credit Facility has subsequently been amended such that the termination date for the Credit Facility currently is January 1, 2013 and the maximum Revolving Loan commitment currently is $9,000. At September 30, 2012, SunLink’s calculated net collectible value of eligible accounts receivable was $7,795, the Revolving Loan balance was $4,931 with an interest rate of 12.125%, and the Term Loan balance was $649 with an interest rate at 14.07%. Borrowings under the Credit Facility are at LIBOR plus an applicable interest rate. Under the Credit Facility, LIBOR is defined as the Thirty-Day published rate, not to be less than 2.75%, nor more than 5.50%. The maximum availability of the Revolving Loan is keyed to the calculated net collectible value of eligible accounts receivable.

 

24


The Credit Facility is secured by a first priority security interest in substantially all real and personal property of the Company and its consolidated subsidiaries, including a pledge of all of the equity interests in such subsidiaries (except for Callaway Community Hospital (“Callaway”) Trace Regional Hospital (“Trace”) which are both second liens on the real and personal property). The Credit Facility contains various terms and conditions, including operational and financial restrictions and limitations, and affirmative and negative covenants. The covenants include financial covenants measured on a quarterly basis which require SunLink to comply with maximum leverage and minimum fixed charge ratios, maximum capital expenditure amounts, collateral value to loan amount and liquidity and cash flow measures, all as defined in the Credit Facility.

We believe that the Company should be able to continue in compliance with the revised levels of financial covenants and terms in the Credit Facility through January 1, 2013, the facility termination date, but there is no assurance that the Company will be able to do so. We are actively seeking options to refinance the Credit Facility by its termination date and also provide financing for the Company’s liquidity needs. We believe we will be able to refinance the Credit Facility or repay the balance of the Senior Credit Facility from internally available cash. In addition, we have announced an agreement to sell substantially all of the assets of our Dexter subsidiary which we expect to result in net proceeds of approximately $7,400 and an after-tax gain of approximately $5,000. This asset sale is expected to close by December 31, 2012 and the proceeds are to be used to repay any outstanding balances under the Credit Agreement by the January 1, 2013 facility termination date and provide additional liquidity. If we fail to remain in compliance with the Credit Facility as modified, we would cease to have a right to draw on the revolving line of credit facility and the lenders would, among other things, be entitled to call a default and demand repayment of the indebtedness outstanding. If SunLink or its applicable subsidiaries experience a material adverse change in their business, assets, financial condition, management or operations, or if the value of the collateral securing the Credit Facility decreases, we may be unable to draw on the Revolving Loan.

We also believe our current level of operations will allow us to continue to borrow under the Revolving Loan if we otherwise remain in compliance with all of the current terms and covenants under the Credit Facility. Failure to remain in compliance with all the terms of and covenants under the Credit Facility could have adverse material effects on the Company. In addition, if SunLink or its applicable subsidiaries experience a material adverse change in their business, assets, financial condition, management or operations, or if the value of the collateral securing the Credit Facility substantially decreases, we may be unable to draw on the Revolving Loan. The current remaining availability under the Revolving Loan could be adversely affected by, among other things, the risk, uncertainties and other factors listed in Item 3. – Quantitative and Qualitative Disclosures about Market Risk (“Item 3”), as well as lower earnings due to lower demand for our services by patients, changes in patient mix and changes in terms and levels of government and private reimbursement for services. Cash generated from operations could be adversely affected by, among other things, the risks, uncertainties and other factors listed in Item 3, as well as lower patient demand for our services, higher operating costs (including, but not limited to, salaries, wages and benefits, provisions for bad debts, general liability and other insurance costs, cost of pharmaceutical drugs and other operating expenses) or by changes in terms and levels of government and private reimbursement for services, and the regulatory environment of the community hospital segment.

On July 5, 2012, the Company entered into the Eighth Modification to the Credit Facility. The Eighth Modification contained, among other things, the consent by the lenders under the Credit Facility for the Company’s indirect wholly-owned subsidiary Health Corporation of Houston, Inc. (“SHCH”) to enter into a $9,975 Mortgage Loan Agreement dated as of July 5, 2012 (“Trace RDA Loan”) and a $1,000 Working Capital Loan Agreement dated as of July 5, 2012 (“Trace Working Capital Loan”) with a bank. The Eighth Modification also provides for approximately $8,500 of the Trace RDA Loan proceeds be used to refinance a portion of the Company’s senior debt under the Term Loan under the Credit Facility.

Subsequent to the end of the first quarter, on October 31, 2012, the Company entered into the Ninth Modification to the Credit Facility. The Ninth Modification contained, among other things, the consent by the lenders under the Credit Facility for the Company’s indirect wholly-owned subsidiary SunLink Healthcare Professional Property. LLC to enter into a $2,100 Mortgage Loan Agreement dated as of October 31, 2012 (“SHPP RDA Loan”) with a bank. The Ninth Modification also provided for the net proceeds of the SHPP RDA Loan proceeds to be used by another subsidiary of the Company to acquire a medical office building in Ellijay, Georgia and for the sale of the Dexter assets.

 

25


RDA Loans

SunLink, HealthMont of Missouri, LLC (“HOM”), and HealthMont LLC (“HLLC”), the direct parent of HOM closed on a $5,000 Loan Agreement with a bank dated as of March 16, 2012 (the “Callaway RDA Loan”). The loan is guaranteed by the Company and HLLC. HealthMont of Missouri, LLC owns and operates Callaway in Fulton, Missouri. The Loan Agreement consists of a $4,000 term loan and $1,000 construction loan. The $4,000 term loan was drawn in its entirety at closing. As of September 30, 2012, $388 has been drawn on the $1,000 construction loan in connection with the construction and improvement projects.

The Callaway RDA Loan has a term of 25 years with monthly payments of principal and interest. The Callaway RDA Loan bears interest at a floating interest rate computed as the prime rate (as published in The Wall Street Journal) plus 2%. The Callaway RDA Loan is collateralized by Callaway’s real estate and equipment and is partially guaranteed under the U.S. Department of Agriculture, Rural Development Business and Industry Program. Of the Callaway RDA Loan proceeds, $3,250 was applied as payment against the Company’s senior debt under the Term Loan under the Company’s Credit Facility. Approximately $1,000 of the Callaway RDA Loan proceeds are being used to finance improvements, including to provide an inpatient geriatric psychiatry unit and an emergency department upgrade, with the remainder of the Callaway RDA Loan proceeds used for working capital and closing costs. The Callaway RDA Loan contains certain financial covenants with respect to the ratio of current assets to current liabilities and debt service coverage, all as defined in the Callaway RDA Loan Agreement and measured at the end of each fiscal year. The Callaway RDA Loan is guaranteed by HLLC and the Company.

On July 11, 2012, SunLink, MedCare South, LLC (f/k/a SunLink Healthcare, LLC) (“MedCare”) and SHCH, an indirect wholly-owned subsidiary of the Company, closed on the $9,975 Trace RDA Loan and the $1,000 Trace Working Capital Loan, each dated as of July 5, 2012. SHCH owns and operates Trace in Houston, Mississippi. Both the Trace RDA Loan and the Trace Working Capital Loan were unconditionally guaranteed by the Company and MedCare, a wholly-owned intermediate holding company.

The Trace RDA Loan has a term of 15 years with monthly payments of principal and interest until repaid. The Trace RDA Loan bears a floating rate of interest equal to the greater of (i) the prime rate (as published in The Wall Street Journal) plus 1.5%, or (ii) 6%. The Trace RDA Loan is collateralized by Trace’s real estate and equipment and is partially guaranteed under the U.S. Department of Agriculture, Rural Development Business and Industry Program. Approximately $8,500 of the Trace RDA Loan proceeds were used to refinance a portion of the Company’s senior debt under the Term Loan under the Credit Facility. Approximately $850 of the Trace RDA Loan proceeds will be used for improvements to the hospital and its medical office building with the remainder of the Trace RDA Loan proceeds used for working capital and closing costs. The Trace RDA Loan contains covenants which SunLink believes are customary to similar loan agreements as well as certain financial covenants with respect to SHCH’s current ratio of current assets to current liabilities and debt service coverage, fixed charge coverage and funded debt to EBITDA, all as defined in the Trace RDA Loan Agreement.

Subsequent to the end of the first quarter, on October 31, 2012, SunLink Healthcare Professional Property, LLC entered into and closed on a $2,100 term loan with a bank dated as of October 31, 2012 (the “SHPP RDA Loan”). SHPP owns and leases a medical office building to North Georgia Medical Center (“North Georgia”), another subsidiary of the Company, located in Ellijay, Georgia.

The SHPP RDA Loan has a term of 25 years with monthly payments of principal and interest until repaid. The SHPP RDA Loan bears interest at a floating rate of interest equal to the greater of (i) the prime rate (as published in The Wall Street Journal) plus 2.0%, or (ii) 5%. The SHPP RDA Loan is collateralized by SHPP’s real estate, equipment and leases and is partially guaranteed under the U.S. Department of Agriculture, Rural Development Business and Industry Program. Of the SHPP RDA Loan proceeds, $1,800 was used by another subsidiary of the Company to acquire a medical office building in Ellijay Georgia which was then sold to SHPP, with the remainder of the SHPP RDA Loan proceeds used for working capital and closing costs. The SHPP RDA Loan contains certain financial covenants with respect to the ratio of current assets to current liabilities and debt service coverage, all as defined in the SHPP RDA Loan Agreement, which SHPP must maintain and that are measured at the end of each fiscal year. The SHPP RDA Loan is guaranteed by the Company’s MedCare subsidiary and the Company.

 

26


We used $1,742 of cash from operations during the year ended September 30, 2012. Cash used resulted from operating partially offset by non-cash expenses of impairment and depreciation and amortization, and cash generated from discontinued operations.

Contractual Obligations, Commitments and Contingencies

Contractual obligations, commitments and contingencies related to long-term debt, non-cancelable operating leases, physician guarantees and interest on outstanding debt from continuing operations at September 30, 2012 were as follows:

 

Payments due in:

   Long-Term
Debt
     Subordinated
Long-Term
Debt
     Non-cancellable
Operating Leases
     Physician
Guarantees
     Interest on
Outstanding
Debt
     Interest on
Outstanding
Subordinated
Debt
 

1 year

   $ 1,238       $ 300       $ 1,318       $ 63       $ 846       $ 184   

2 years

     568         300         641         59         789         160   

3 years

     585         1,852         388         0         754         74   

4 years

     620         0         156         0         719         0   

5+ years

     12,047         0         43         0         5,475         0   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 
   $ 15,058       $ 2,452       $ 2,546       $ 122       $ 8,583       $ 418   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

At September 30, 2012, SunLink subsidiaries had guarantee agreements with two physicians. A physician with whom a guarantee agreement is made generally agrees to maintain his or her practice within a hospital geographic area for a specific period (normally three years) or be liable to repay all or a portion of the guarantee received. The physician’s liability for any guarantee repayment due to non-compliance with the provisions of a guarantee agreement generally is collateralized by the physician’s patient accounts receivable and/or a promissory note from the physician. Included in the Company’s condensed consolidated balance sheet at September 30, 2012 is a liability of $122 for one physician guarantee. SunLink expensed $31 and $57 on physician guarantees and recruiting for the three months ended September 30, 2012 and 2011, respectively. The table above shows non-cancelable commitments under physician guarantee contracts as of September 30, 2012.

At September 30, 2012, we had outstanding long-term debt and subordinated debt of $17,510 of which $648 was incurred under the Term Loan, $4,362 was incurred under the Callaway RDA Loan, $9,892 was incurred under the Trace RDA Loan, $2,452 was incurred under the subordinated Carmichael Notes, and $156 was related to capital leases. Also outstanding at September 30, 2012 was $4,931 under the Revolving Loan.

Discontinued Operations

On October 26, 2012, the Company and its Dexter subsidiary entered into an Asset Purchase Agreement (“Agreement”) by and among Dexter, SunLink and Southeast Missouri Hospital Association (“SoutheastHEALTH”) pursuant to which Dexter agreed to sell substantially all of its assets to SoutheastHEALTH. The assets of Dexter consist of a leased 50-bed acute-care hospital and related clinics, equipment and home health services in Dexter, Missouri. The transaction is expected to close by December 31, 2012 (“closing date”). It is anticipated that Dexter will manage the hospital for SoutheastHEALTH during a transition period after the closing date through June 30, 2013. The sale of the assets and leasehold interest of Dexter for approximately $9,800, less estimated sale expenses and taxes, is expected to result in net proceeds of approximately $7,400 and an after-tax gain from discontinued operations of approximately $5,000.

Dexter’s operations have been reclassified as discontinued operations in our condensed consolidated financial statements for the three month periods ended September 30, 2012 and 2011, and as of June 30, 2012.

On July 2, 2012, the Company and its HealthMont of Georgia, Inc. subsidiary completed the sale of substantially of all the assets of the Company’s subsidiary, Memorial, to Hospital Authority of Tift County, Georgia (“Tift”) for approximately $8,350. SunLink and its HealthMont of Georgia, Inc. subsidiary entered into an Asset Purchase Agreement by and among HealthMont of Georgia, Inc., Excluded assets include accounts receivable as of the March 31, 2012 (“Cutoff Date”) and all Medicare and Medicaid incentive payments (“EHR Funds”) for meaningful use of electronic health record technology and all receivables, claims and settlements made pursuant to the Indigent Care Trust Fund of the State of Georgia (“ICTF”) paid with respect to the State of Georgia’s fiscal year

 

27


ended June 30, 2012. Retained liabilities consist of liabilities incurred prior to July 2, 2012. The net proceeds from the sale of approximately $7,500 were used to repay a portion of the Company’s senior debt under the Term Loan under the Company’s Credit Facility.

Memorial’s operations have been reclassified as discontinued operations in our condensed consolidated financial statements for the three month periods ended September 30, 2012 and 2011 and as of June 30, 2012.

Related Party Transactions

A director of the Company and our company secretary (and director emeritus) are members of two different law firms, each of which provides services to SunLink. The Company has paid an aggregate of $213 and $255 for legal services to these law firms in the three months ended September 30, 2012 and 2011, respectively. Included in the Company’s condensed consolidated balance sheet at September 30, 2012 and June 30, 2012 were $385 and $644, respectively, of amounts payable to these law firms.

 

28


ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

We are exposed to interest rate changes, primarily as a result of borrowing under our Credit Facility. At September 30, 2012, borrowings under the Credit Facility of $648 have been drawn at an interest rate based upon LIBOR plus the applicable margin. A one percent change in the LIBOR rate or the applicable interest rate would result in a change in interest expense of $6 on an annual basis. No action has been taken to mitigate our exposure to interest rate market risk and we are not a party to any interest rate market risk management activities.

ITEM 4. CONTROLS AND PROCEDURES

Disclosure Controls and Procedures – We maintain controls and procedures designed to ensure that we are able to collect the information we are required to disclose in the reports we file with the SEC, and to process, summarize and disclose this information within the time periods specified in the rules of the SEC.

Our management, with the participation of our Chief Executive Officer and Chief Financial Officer, has evaluated the effectiveness of disclosure controls and procedures (as such term is defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934 as amended (the “Exchange Act”)) as of the end of the period covered by this report. Based on such evaluation, our Chief Executive Officer and Chief Financial Officer have concluded that, as of the end of such period, our disclosure controls and procedures are effective in providing reasonable assurances that information required to be disclosed by the Company in the reports filed or submitted under the Exchange Act are recorded, processed, summarized and reported in a timely manner.

 

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PART II. OTHER INFORMATION

Items required under Part II not specifically shown below are not applicable.

ITEM 1. LEGAL PROCEEDINGS

There have been no material developments in the legal proceeding previously reported in SunLink’s Annual Report on Form 10-K for the period ended June 30, 2012.

SunLink is a party to claims and litigation incidental to its business, for which it is not currently possible to determine the ultimate liability, if any. Based on an evaluation of information currently available and consultation with legal counsel, management believes that resolution of such claims and litigation is not likely to have a material effect on the financial position, cash flows, or results of operations of the Company. The Company expenses legal costs as they are incurred.

ITEM 1A. RISK FACTORS

Risk Factors Relating to an Investment in SunLink

Information regarding risk factors appears in “MD&A – Forward-Looking Statements,” in Part I – Item 2 of this Form 10-Q and in “MD&A-Risks Factors Relating to an Investment in SunLink” in Part I – Item 1A of the Company’s Annual Report on Form 10-K for the year ended June 30, 2012. While we believe there have been no material changes from the risk factors previously disclosed in such Annual Report, you should carefully consider, in addition to the other information set forth in this report, the risk factors discussed in our Annual Report which could materially affect our business, financial condition or future results. Such risk factors are expressly incorporated herein by reference. The risks described in our Annual Report are not the only risks facing our Company. In addition to risks and uncertainties inherent in forward looking statements contained in this Report on Form 10-Q, additional risks and uncertainties not currently known to us or that we currently deem to be immaterial also may materially adversely affect our business, financial condition and/or operating results. Whenever we refer to “SunLink,” “Company”, “we,” “our,” or “us” in this Item 1A, we mean SunLink Health Systems, Inc. and its subsidiaries, unless the context suggests otherwise.

 

ITEM 6. EXHIBITS

Exhibits:

 

10.29    Ninth Modification to Loan Documents between SunLink Health Systems, Inc., SunLink Healthcare LLC, Dexter Hospital LLC, Southern Health Corporation of Ellijay, Inc., Southern Health Corporation of Dahlonega, LLC, Southern Health Corporation of Houston, Inc., HealthMont of Georgia, Inc., HealthMont, LLC, HealthMont of Missouri, LLC, SunLink Services, Inc., SunLink ScriptsRX, LLC, Central Alabama Medical Associates, LLC, Dahlonega Clinic, LLC, Carmichael’s Cashway Pharmacy, Inc., Carmichael’s Nutritional Distributor, Inc., Breath of Life Home Health Equipment, Inc., and Chatham Credit Management III, LLC, dated October 31, 2012.
10.30    Loan Agreement dated as of October 31, 2012 by and among Pioneer Bank, SSB; SunLink Healthcare Professional Property, LLC; MedCare South, LLC; and SunLink Health Systems, Inc.
31.1    Chief Executive Officer’s Certification Pursuant to Rule 13a-14(a) of the Securities Exchange Act of 1934.
31.2    Chief Financial Officer’s Certification Pursuant to Rule 13a-14(a) of the Securities Exchange Act of 1934.
32.1    Chief Executive Officer’s Certification Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
32.2    Chief Financial Officer’s Certification Pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
101    The following materials from the Company’s quarterly report on Form 10-Q for the three months ended September 30, 2012, formatted in XBRL (eXtensible Business Reporting Language): (i) Condensed Consolidated Balance Sheets as of September 30, 2012 (unaudited) and June 30, 2012, (ii) Condensed Consolidated Statements of Operations for the three months ended September 30, 2012 and 2011 (unaudited), (iii) Condensed Consolidated Statements of Cash Flows, for the three months ended September 30, 2012 and 2011 (unaudited), and (iv) Notes to Condensed Consolidated Financial Statements (unaudited), with detail tagging. In accordance with Regulation S-T, the XBRL-formatted interactive data files that comprise this Exhibit 101 shall be deemed “furnished” and not “filed.”

 

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, SunLink Health Systems, Inc. has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

SunLink Health Systems, Inc.

By:   /s/ Mark J. Stockslager
  Mark J. Stockslager
  Chief Financial Officer

Dated: November 14, 2012

 

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Exhibit 10.29

NINTH MODIFICATION TO LOAN DOCUMENTS

THIS NINTH MODIFICATION TO LOAN DOCUMENTS (this “ Modification Agreement ”) is entered into as of October 31, 2012, by and among SUNLINK HEALTH SYSTEMS, INC., a corporation organized under the laws of the State of Ohio (“ SHSI ”), SUNLINK HEALTHCARE LLC, a limited liability company organized under the laws of the State of Georgia (“ SunLink Healthcare ”), DEXTER HOSPITAL, LLC, a limited liability company organized under the laws of the State of Georgia, SOUTHERN HEALTH CORPORATION OF ELLIJAY, INC., a corporation organized under the laws of the State of Georgia (“ SHC Ellijay ”), SOUTHERN HEALTH CORPORATION OF DAHLONEGA, INC., a corporation organized under the laws of the State of Georgia (“ SHC Dahlonega ”), SOUTHERN HEALTH CORPORATION OF HOUSTON, INC., a corporation organized under the laws of the State of Georgia (“ SHC Houston ”), HEALTHMONT OF GEORGIA, INC., a corporation organized under the laws of the State of Tennessee, HEALTHMONT, LLC, a limited liability company organized under the laws of the State of Georgia, HEALTHMONT OF MISSOURI, LLC, a limited liability company organized under the laws of the State of Georgia, SUNLINK SERVICES, INC., a corporation organized under the laws of the State of Georgia, SUNLINK SCRIPTSRX, LLC (f/k/a SunLink Homecare Services, LLC), a limited liability company organized under the laws of the State of Georgia, CENTRAL ALABAMA MEDICAL ASSOCIATES, LLC, a limited liability company organized under the laws of the State of Georgia, CASTLEMARK PROPERTIES, LLC (f/k/a Dahlonega Clinic, LLC), a limited liability company organized under the laws of the State of Georgia (“ Castlemark ”), CARMICHAEL’S CASHWAY PHARMACY, INC., a corporation organized under the laws of Louisiana, CARMICHAEL’S NUTRITIONAL DISTRIBUTOR, INC., a corporation organized under the laws of Louisiana, BREATH OF LIFE HOME HEALTH EQUIPMENT, INC., a corporation organized under the laws of Louisiana, SUNLINK HEALTHCARE PROFESSIONAL PROPERTY, LLC, a Georgia limited liability company (“ SHPP ”) (each individually, a “ Borrower ” and, collectively, the “ Borrowers ”), the other persons designated as “Credit Parties” on the signature pages hereof, the financial institutions who are parties to this Modification Agreement as Lenders (the “ Lenders ”), and CHATHAM CREDIT MANAGEMENT III, LLC, a Georgia limited liability company (in its individual capacity “ Chatham ”), as Agent.

RECITALS

WHEREAS, the Agent, the Funding Agent, the financial institutions that are party thereto as lenders, the Borrowers (other than SHPP), the other Credit Parties are parties to that certain Amended and Restated Credit Agreement, dated as of August 1, 2008 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”; unless otherwise defined herein, capitalized terms used herein that are not otherwise defined herein shall have the respective meanings assigned to such terms in the Credit Agreement);

WHEREAS, Sunlink Healthcare has caused to be formed SHPP as a new Subsidiary for the purpose of, among other things, acquiring and operating certain real estate currently leased to SHC Ellijay, including a certain medical office building located in Ellijay, Georgia, as more particularly described in Exhibit A attached hereto (the “ Medical Office ”) pursuant to the exercise of a purchase option held by SCH Ellijay which Medical Office concurrently will be purchased by SHPP from SHC Ellijay (collectively, the “ Medical Office Purchase ”);

WHEREAS, SHPP expects to enter into a certain Loan Agreement with Pioneer Bank, SSB (the “ SHPP RDA Lender ”), and certain other related instruments and agreements on or about October 31, 2012 evidencing a term loan in a principal amount of $2,100,000 (collectively, the “ SHPP RDA Loan Transaction ”) and intends to use the proceeds of such term loan to finance the Medical Office Purchase, pay for certain costs and expenses associate therewith and for working capital;


WHEREAS, Sunlink and Sunlink Healthcare desire to guaranty the obligations of SHPP under such loan facility with the SHPP RDA Lender (the “ SHPP RDA Loan Guarantees ”);

WHEREAS, SHC Dahlonega desires to convey that certain vacant lot of approximately two acres located in Dahlonega, Georgia (as more particularly described in Exhibit B attached hereto, the “ Dahlonega Lot ”) to Castlemark (the “ Dahlonega Lot Transfer ”);

WHEREAS, SunLink Healthcare desires to change its name to “MedCare South, LLC” and SunLink Services desire to change its name to “MedCare Services, Inc.” (collectively, the “ Name Changes ”); and

WHEREAS, the Borrowers are hereby requesting that the Agent and Lenders (i) consent to the Option Exercise (as defined below), the Medical Office Purchase, the SHPP RDA Loan Transaction, the SHPP RDA Guarantees, the Dahlonega Lot Transfer, the Name Changes and certain other transactions described below and (ii) agree to modify certain terms of the Credit Agreement and Pledge Agreement, in each case, in accordance with the terms of this Modification Agreement.

NOW, THEREFORE, in consideration of the foregoing recitals and the mutual agreements and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the parties hereto hereby agree as follows:

Section 1. Limited Consents .

(a) SHPP Transaction Consent . The Borrowers have advised the Agent and the Lenders that SHPP desires to consummate the Medical Office Purchase, the SHPP RDA Loan Transaction and certain other transactions described below and Sunlink and Sunlink Healthcare desire to execute and deliver to the SHPP Lender the SHPP RDA Loan Guarantees, as described in detail as follows: (a) SHC Ellijay will exercise its option to purchase the Medical Office (the “ Option Exercise ”) and purchase the Medical Office and concurrently SHPP, with the financing concurrently provided by the SHPP RDA Loan Transaction, will acquire the Medical Office from SHC Ellijay and SHC Ellijay will pay the consideration due the seller under the Medical Office Purchase and consummate the Medical Office Purchase, (b) SHC Ellijay concurrently with the extension of the SHPP RDA Loan will transfer to SHPP certain equipment having a net book value of approximately $120,000 as more fully described on Exhibit 1(a) hereto and requests that Agent agree to release its Liens on such equipment effective upon such transfer (collectively the “ Equipment Transfer and Release ”), (c) concurrently with the Medical Office Purchase, SHPP will enter into a certain loan agreement with the SHPP RDA Lender, together with a certain related promissory note evidencing indebtedness in the original principal amount of $2,100,000; (d) concurrently with the Medical Office Purchase, SunLink and SunLink Healthcare will enter into the SHPP RDA Loan Guarantees in favor of the SHPP RDA Lender; and (e) concurrently with the extension of the SHPP RDA Loan, SHPP will enter into a security agreement, a deed of trust and certain other documents related thereto (as in effect on the date hereof, the “ SHPP RDA Security Documents ”), pursuant to which SHPP will grant a lien on and security interest in the assets and property described in such SHPP RDA Security Documents as in effect on the date hereof as “Collateral” and “Mortgaged Property” to and for the benefit of the SHPP RDA Lender (such assets and property, the “ SHPP RDA Collateral ”). Section 6.12 of the Credit Agreement prohibits the making of certain Investments, including the purchase of real estate. Section 6.5 of the Credit Agreement prohibits the creation of certain restrictions on the creation of Liens or the payment of dividends and distributions. Sections 6.13, 6.14 and 6.15 of the Credit Agreement prohibit the incurrence of certain Indebtedness, Liens, and Contingent Obligations (subject to enumerated exceptions), and Section 6.2 of the Credit Agreement prohibits the assignment and other conveyances of any property (subject to enumerated exceptions) of the Credit Parties or their Subsidiaries. The Credit Parties request that the Agent and the

 

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Lenders consent to the Option Exercise, the Medical Office Purchase, the Equipment Transfer and Release, the SHPP RDA Loan Transaction (including the granting of security interests relating thereto) and the SHPP RDA Loan Guarantees, notwithstanding the terms of Sections 6.2, 6.5, 6.12, 6.13, 6.14 and 6.15 of the Credit Agreement and the formation of SHPP (such consent, the “ Requested SHPP Transaction Consent ”). Subject to the terms of this Modification Agreement and satisfaction of each of the conditions to the Effective Date set forth herein, the Agent and the Lenders hereby agree to the Requested SHPP Transaction Consent.

(b) SHPP Deferral Consent . Section 5.14 of the Credit Agreement requires any new Domestic Subsidiary to be joined as a Borrower (as defined in the Credit Agreement) under the Credit Agreement and to execute such Loan Documents as the Agent may request, including, without limitation, a Security Agreement and Mortgage to secure all Obligations owing under the Loan Documents. The Credit Parties request that the Agent and the Lenders agree to defer the obligations of the Credit Parties to cause SHPP to comply with the requirements of Section 5.14 until January 2, 2013 (the “ Requested SHPP Deferral Consent ”). Subject to the terms of this Modification Agreement and satisfaction of each of the conditions to the Effective Date set forth herein, the Agent and the Lenders hereby agree to the Requested SHPP Deferral Consent.

(c) Dahlonega Lot Transfer Consent . Section 6.2 of the Credit Agreement prohibits the assignment and other conveyances of any property (subject to enumerated exceptions) of the Credit Parties or their Subsidiaries. The Credit Parties request that the Agent and the Lenders confirm that the Dahlonega Lot Transfer constitutes a disposition permitted under the enumerated exceptions of Section 6.2 of the Credit Agreement. Subject to the terms of this Modification Agreement and satisfaction of each of the conditions to the Effective Date set forth herein, the Agent and the Lenders hereby confirm that Dahlonega Lot Transfer is permitted under the Credit Agreement.

(d) Name Change Consent . Subject to enumerated exceptions, Section 6.4 of the Credit Agreement prohibits amendments to the organization documents of the Credit Parties, and Section 6 of the Security Agreement prohibits name changes for the Credit Parties without certain prior written notice. The Credit Parties request that the Agent and the Required Lenders consent to the Name Changes. Subject to the terms of this Modification Agreement and satisfaction of each of the conditions to the Effective Date set forth herein, the Agent and the Lenders hereby consent to the Name Changes.

Section 2. Changes to Credit Agreement and Pledge Agreement . Subject to the satisfaction of the conditions to the Effective Date set forth in Section 3 herein, the Borrowers, the other Credit Parties, the Agent and the Lenders hereby agree as follows:

(a) Section 1.1 of the Credit Agreement is revised by adding the following new defined term in proper alphabetical order:

““ RDA Loan Documents ”: the HealthMont RDA Loan Documents, the SHC Houston RDA Loan Documents and the SHPP RDA Loan Documents.”

““ SHPP ”: SunLink Healthcare Professional Property, LLC, a Georgia limited liability company.”

““ SHPP RDA Collateral ”: has the definition ascribed to such term in that certain Ninth Modification to Loan Documents dated as of October 31, 2012, among the Borrowers, the Credit Parties, the Agent and the Lenders.”

““ SHPP RDA Lender ”: Pioneer Bank, SSB.”

 

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““ SHPP RDA Loan ”: that certain $2,100,000 term loan provided by the SHPP RDA Lender to SHPP, and evidenced by the SHPP RDA Loan Documents.”

““ SHPP RDA Loan Documents ”: that certain Loan Agreement dated as of October 31, 2012, by and between SHPP and the SHPP RDA Lender together with all related notes, security agreements, guarantees, documents, instruments, financing statements, and deeds of trusts executed in connection therewith, as the same may be amended or modified from time to time in accordance with Section 6.28 of this Agreement.”

(b) A new Section 2.1(a)(iv) of the Credit Agreement is hereby added to read as follows:

“(iv) Notwithstanding anything in this Agreement to the contrary, (A) from and after July 1, 2012, each of the Borrowers and the Guarantors acknowledges and agrees that HealthMont of Georgia, Inc. shall not be entitled to request or receive any additional Advances under Section 2.1(a) from any of the Agent or any Lender; provided , however , that nothing contained in this Section 2.1(a)(iv) shall in any way diminish or limit any of the Obligations of HealthMont of Georgia, Inc. in its capacity as a Borrower under this Agreement or any other Loan Document and (B) each of the Borrowers and the Guarantors acknowledges and agrees that SHPP shall not be entitled to request or receive any Advances under Section 2.1(a) from any of the Agent or any Lender; provided , however , that nothing contained in this Section 2.1(a)(iv) shall in any way diminish or limit any of the Obligations of SHPP under any Loan Document to which it may become a party from time to time.”

(c) Section 2.5(b) of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

“(b) The principal of the Term Loan shall be payable in equal installments of One Hundred Sixty-Two Thousand One Hundred One Dollars and 45/100 cents ($162,101.45) on the first Business Day of each month.”

(d) Section 6.5 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

“Section 6.5 Negative Pledges; Subsidiary Restrictions . Except as set forth in the HealthMont RDA Loan Documents with respect to HealthMont of Missouri, LLC and its Subsidiaries, the SHC Houston RDA Loan Documents with respect to Southern Health Corporation of Houston, Inc. and SunLink Healthcare, L.L.C. (to be known as MedCare South, LLC) and their respective Subsidiaries, and the SHPP RDA Loan Documents with respect to SHPP, no Credit Party will, nor permit any Subsidiary to, enter into any agreement, bond, note or other instrument with or for the benefit of any Person other than the Agent and Lenders which would (i) prohibit such Credit Party or such Subsidiary from granting, or otherwise limit the ability of such Credit Party or such Subsidiary to grant, to the Agent, for the benefit of the Beneficiaries, any Lien on any assets or properties of such Credit Party or such Subsidiary, or (ii) require such Credit Party or such Subsidiary to grant a Lien to any other Person if such Credit Party or such Subsidiary grants any Lien to the Agent, for the benefit of the beneficiaries. Except as set forth in the HealthMont RDA Loan Documents with respect to HealthMont of Missouri, LLC and its Subsidiaries, except as set forth herein and in the SHC Houston RDA Loan Documents with respect to Southern Health Corporation of Houston, Inc. and SunLink Healthcare, L.L.C. and their respective Subsidiaries, and except as set forth herein and in the SHPP RDA Loan Documents with respect to SHPP, no Credit Party will permit any Subsidiary to place or allow any restriction, directly or indirectly, on the ability of such Subsidiary to (x) pay dividends or any distributions on or with respect to such Subsidiary’s capital stock or (y) make loans or other cash payments to such Credit Party.”

 

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(e) Section 6.7 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

“Section 6.7 Transactions with Affiliates . No Credit Party will, nor permit any Subsidiary to, enter into any transaction with any Affiliate of such Credit Party except upon fair and reasonable terms no less favorable than such Credit Party, or such Subsidiary, would obtain in a comparable arm’s-length transaction with a Person not an Affiliate; provided , however , (i) subject to clause (ii) below, the Credit Parties shall be permitted to (a) make the transfers, distributions, payments or prepayments permitted under Section 6.6 hereof to its Subsidiaries and Affiliates and (b) make loans to other Borrowers provided such loans are evidenced by the Subordinated Intercompany Note and (ii) notwithstanding anything to the contrary contained in this Agreement, (y) on and after the occurrence of an Event of Default and during the continuation thereof, no Credit Party will provide any intercompany loans to, make any additional Investments of any kind in, or transfer any cash or other assets to HealthMont of Missouri, LLC or SHPP and (z) except as set forth in the proviso below with respect to intercompany loans, no Credit Party will make any additional Investments of any kind in, or transfer any cash or other assets to Southern Health Corporation of Houston, Inc. on or after the SHC Houston RDA Loan First Advance Date or to SHPP (other than the sale of a medical office building located in Ellijay Georgia and the substantially concurrent transfer of certain equipment to SHPP) at any time; provided, that , any Credit Party may make intercompany loans to Southern Health Corporation of Houston, Inc. on or after the SHC Houston RDA Loan First Advance Date so long as immediately prior to and upon giving effect to such intercompany loan (1) no Event of Default shall have occurred or be continuing, (2) the Credit Parties shall be in pro forma compliance with all the covenants set forth in Section 6.16, Section 6.17, Section 6.18, Section 6.19, Section 6.20 and Section 6.21, and (3) the sum of the Availability and the actual cash and Cash Equivalents of the Credit Parties (excluding the actual cash and Cash Equivalents of Southern Health Corporation of Houston, Inc.) shall not be less than $500,000.”

(f) Section 6.9 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

“Section 6.9 Deposit and Other Accounts . No Credit Party will, nor permit any Subsidiary to (a) establish any Deposit Accounts investment accounts or securities accounts other than those described on Schedule 4.28 , except for Deposit Accounts, investment accounts or securities accounts as to which the applicable Credit Party or Subsidiary(ies), as applicable, shall have delivered to the Agent a Control Agreement in form and substance satisfactory to the Agent (except in the case of any Local Bank Account as to which the applicable Credit Party shall have delivered to the Agent a Local Bank Account Agreement in form and substance satisfactory to the Agent), (b) violate directly or indirectly any bank agency agreement, Control Agreement, Local Bank Account Agreement or other agreement in favor of the Agent or (c) revoke or attempt to revoke any instructions or directions given by it under any Control Agreement, Local Bank Account Agreement or other agreement with respect to or altering the rights of the Agent and Lenders thereunder, including, without limitation, attempting to make any withdrawal from or requesting the reduction of funds on deposit in any Local Bank Account without the prior written consent of the Agent; provided , however , that (i) HealthMont of Missouri, LLC, may maintain an account or accounts with the HealthMont RDA Lender that are not specifically listed on Schedule 4.28 and are not

 

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subject to a Control Agreement as long as the HealthMont RDA Loan is outstanding for the following purposes: (x) to hold proceeds of the delayed draw portion of the HealthMont RDA Loan prior to such amounts being used for construction of intended improvements on the Real Estate (as defined in the HealthMont RDA Loan Documents), (y) to hold proceeds of HealthMont RDA Collateral prior to such proceeds being used for reinvestment purposes, payments to the HealthMont RDA Lender, or repairs, replacements, or restoration of any assets or property in accordance with the terms of the HealthMont RDA Loan Documents, and/or (z) to hold any funds related to taxes on the Real Estate (as defined in the HealthMont RDA Loan Documents); (ii) Southern Health Corporation of Houston, Inc., may maintain the following accounts with the SHC Houston RDA Lender that may or may not be specifically listed on Schedule 4.28 and are not subject to a Control Agreement as long as any SHC Houston RDA Loan is outstanding for the following purposes: (v) account #5191883, to serve as the Construction Escrow Account referred to in the SHC Houston RDA Loan Documents, (w) account #5191872, to serve as the USDA Fee Account referred to in the SHC Houston RDA Loan Documents, (x) account #5016499, to serve as the Medicare Account referred to in the SHC Houston RDA Loan Documents, (y) account #5016488, to serve as the Operating Account referred to in the SHC Houston Loan Documents, and (z) an account for the purpose of holding any funds related to taxes on the Mortgaged Property (as defined in the SHC Houston RDA Loan Documents); and (iii) SHPP may maintain an account or accounts with the SHPP RDA Lender or one or more other banking institutions that are not specifically listed on Schedule 4.28 and are not subject to a Control Agreement for the following time periods and purposes: (x) for as long as the SHPP RDA Loan is outstanding, to hold proceeds of SHPP RDA Collateral prior to such proceeds being used for reinvestment purposes, payments to the SHPP RDA Lender, or repairs, replacements, or restoration of any assets or property in accordance with the terms of the SHPP RDA Loan Documents, and/or (y) until January 2, 2013 (by which date such account shall be required to be subject to a Control Agreement in form and substance satisfactory to the Agent), an operating account to hold any funds related to payments of rents by lessors or sublessors of the SHPP RDA Collateral or any portion thereof, provided that, in each case, SHPP shall identify such accounts, the financial institution with which they are maintained, and such other information as Agent may request, to Agent in writing promptly after their creation;”

(g) A new Section 6.13(k) of the Credit Agreement is hereby added to read as follows:

“(k) Indebtedness (including guarantees) relating to the SHPP RDA Loan and the SHPP RDA Loan Documents owing by one or more Credit Parties to the SHPP RDA Lender in an aggregate principal amount not to exceed $2,100,000 (less the amount of all principal payments made in respect of the SHPP RDA Loan).”

(h) A new Section 6.14(n) of the Credit Agreement is hereby added to read as follows:

“(n) Liens upon the SHPP RDA Collateral securing Indebtedness permitted by Section 6.13(k).”

(i) Section 6.15 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

“Section 6.15 Contingent Liabilities . No Credit Party will, nor permit any Subsidiary to, be or become liable on any Contingent Obligations except (a) Contingent Obligations existing on the date of this Agreement and disclosed on Schedule 6.15 ; (b) Contingent Obligations of HealthMont, LLC and SHSI relating to the HealthMont RDA Loan

 

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and the HealthMont RDA Loan Documents; (c) Contingent Obligations of Southern Health Corporation of Houston, Inc., SHSI and SunLink Healthcare, L.L.C. relating to the SHC Houston RDA Loans and the SHC Houston RDA Loan Documents; (d) Contingent Obligations of SHPP, Sunlink Health Systems, Inc. and SunLink Healthcare, L.L.C. relating to the SHPP RDA Loans and the SHPP RDA Loan Documents and (e) Contingent Obligations for the benefit of the Agent and Lenders.”

(j) Section 6.29 of the Credit Agreement is hereby amended and restated in its entirety to read as follows:

“Section 6.29 Prepayments of HealthMont RDA Loan, SHC Houston RDA Mortgage Loan and SHPP RDA Loan . No Credit Party shall, directly or indirectly, voluntarily prepay any principal in respect of the HealthMont RDA Loan, the SHC Houston RDA Mortgage Loan or the SHPP RDA Loan.”

(k) Schedule 5.16 of the Credit Agreement is hereby amended to add at the end thereof the following new post-closing requirements:

“4. SHPP Loan Documents . On or prior to January 2, 2013, Credit Parties shall cause SHPP to comply with each of the requirements set forth in Section 5.14 of the Credit Agreement, including without limitation, causing SHPP to (a) be joined as a Borrower under the Credit Agreement, a maker of each Note and a “Grantor” under and as defined in the Security Agreement and (b) execute and deliver a Mortgage and cause to be delivered a title insurance policy with respect to the real property owned by SHPP, in each case, in form and substance satisfactory to Agent, which Mortgage Lien may be subordinated in priority to the Lien granted to SHPP RDA Lender in respect of the SHPP RDA Loan pursuant to a lien subordination agreement substantially the form set forth as Exhibit 5.16(4) hereof. Each Credit Party agrees to execute and/or deliver such additional documents, instruments and agreements as the Agent may reasonably request in connection with the requirements of Section 5.14 with respect to SHPP.

5. Notice of Name Changes . Within 5 days after changing the legal names of “SunLink Healthcare, LLC” to “MedCare South, LLC” and “SunLink Services, Inc.” to “MedCare Services, Inc.”, Credit Parties shall provide Agent with copies of all amendments to such Credit Parties’ organization documents certified by the relevant Governmental Authorities reflecting such name changes whereupon Agent shall be entitled to file amendments to the relevant UCC-1 financing statements of record to reflect such name changes.

6. Filing of Partial Assumption of Deed to Secure Debt . Concurrent with the recordation of any deeds or other documents with the relevant Governmental Authority necessary to convey fee title from Southern Health Corporation of Dahlonega, Inc. to Castlemark Properties, LLC of a certain vacant lot of approximately two acres located in Dahlonega, Georgia, the Credit Parties shall cause to also be properly recorded with such relevant Governmental Authority a partial assumption of deed to secure debt executed by Castlemark in form and substance satisfactory to Agent and shall thereafter promptly cause to be delivered to Agent a duly recorded, file stamped copy of such recorded documents.”

(l) The Credit Agreement is hereby amended to add in proper order a new Exhibit 5.16(4) to the Credit Agreement in the form of Exhibit 5.16(4) attached hereto.

 

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(m) Schedule I to the Pledge Agreement is hereby amended to add in proper order the following new information relating to the pledge of the SHPP Equity Interests:

 

“SunLink Healthcare, LLC (to be known as MedCare South, LLC)   

Stock Issuer: SunLink Healthcare Professional

Property, LLC

Percentage Ownership: 100%

Class of Interest: Membership Interest Units

Certificate No(s).: 1

Par Value: N/A

Number of Units: 100”

Section 3. Conditions Precedent . The terms of Section 1 and Section 2 of this Modification Agreement shall become effective as of the date each of the following conditions is satisfied (the “ Effective Date ”):

(a) The Agent shall have received duly executed counterparts to this Modification Agreement from each of the Credit Parties, the Agent, and the Required Lenders;

(b) The Agent shall have received (i) all original certificates representing 100% of the Equity Interests of SHPP together with undated powers executed in blank, in form and substance acceptable to the Agent and (ii) a partial assumption of deed to secure debt in the form attached hereto as Exhibit C hereto;

(c) The SHPP RDA Loan Transaction and Medical Office Purchase shall have been consummated and SHPP shall have received proceeds (net of all reasonable transaction costs, expenses and holdbacks) from the loan in the principal amount of $2,100,000 from the SHPP RDA Loan Transaction;

(d) The Agent and Lenders shall have received fully executed copies of the SHPP RDA Loan Documents and any other documents relating to the SHPP RDA Loan Transaction, which shall in each case be on terms and conditions reasonably satisfactory to the Agent and the Lenders;

(e) The Agent shall have received payment of its reasonable legal fees and out-of-pocket expenses arising from and relating to this Modification Agreement.

Section 4. Representations and Warranties . Each of the Credit Parties hereby represents and warrants to the Agent and Lenders, which representations and warranties shall survive the execution and delivery of this Modification Agreement, that:

(a) All of the representations and warranties contained in Article IV of the Credit Agreement shall be true and correct in all material respects (except with respect to those representations and warranties which are qualified as to materiality in which case such specific materiality qualifiers shall apply) on the Effective Date, with the same force and effect as if made on such date, unless such representation and warranty expressly applies to an earlier date, in which case such representation and warranty shall be deemed made as of such earlier date.

(b) The execution, delivery and performance by each Credit Party of this Modification Agreement have been duly authorized by all necessary corporate action by such Credit Party. This Modification Agreement constitutes the legal, valid and binding obligations of each Credit Party executing the same, enforceable against each Credit Party in accordance with its terms, subject to limitations as to enforceability which might result from bankruptcy, insolvency, moratorium and other similar laws affecting creditors’ rights generally and subject to limitations on the availability of equitable remedies.

 

8


(c) The execution, delivery and performance by each Credit Party of this Modification Agreement will not (i) violate any provision of any law, statute, rule or regulation or any order, writ, judgment, injunction, decree, determination or award of any court, governmental agency or arbitrator presently in effect having applicability to such Credit Party, (ii) violate or contravene any provision of the Articles or Certificates of Incorporation or Formation, bylaws, operating agreement or partnership agreement of such Credit Party, or (iii) result in a breach of or constitute a default under any indenture, loan or credit agreement or any other agreement, lease or instrument to which such Credit Party is a party or by which it or any of its properties may be bound or result in the creation of any Lien thereunder.

(d) No Default or Event of Default has occurred and is continuing.

(e) No order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption by, any governmental or public body or authority is required on the part of any Credit Party to authorize, or is required in connection with the execution, delivery and performance of, or the legality, validity, binding effect or enforceability of, this Modification Agreement.

Section 5. Acknowledgment; Release . The Credit Parties acknowledge and agree that their obligations to the Agent and the Lenders under the Credit Agreement as revised hereby are owing without offset, defense or counterclaim assertable by the Credit Parties against the Agent or any Lender. The Credit Parties further acknowledge and agree that the Security Documents continue to secure the obligations of the Borrowers under the Credit Agreement as revised hereby. Each of the Credit Parties hereby waives, releases and discharges Agent, the Funding Agent and Lenders from any and all claims, demands, actions or causes of action arising out of or in any way relating to the Loans, the other Obligations, the Loan Documents and/or any documents, agreements, dealings or other matters connected with any of the foregoing including, without limitation, all known and unknown matters, claims, transactions, or things occurring prior to the date of this Modification Agreement related to the Loans, the other Obligations, the Loan Documents and/or any documents, agreements, dealings or other matters connected with any of the foregoing.

Section 6. General Provisions .

(a) Except as specifically revised or waived set forth above, the Credit Agreement and the other Loan Documents shall remain in full force and effect and are hereby ratified and confirmed. Each of the Credit Parties hereby confirms its respective guarantees, pledges, grants of security interests and mortgages and other obligations, as applicable, under and subject to the terms of each of the other Loan Documents to which it is party, and agrees that, notwithstanding the effectiveness of this Modification Agreement, such guarantees, pledges, grants of security interests and mortgages and other obligations, and the terms of each of the other Loan Documents to which it is a party, are not impaired or affected in any manner whatsoever and shall continue to be in full force and effect after giving effect to this Modification Agreement.

(b) The execution, delivery and effectiveness of this Modification Agreement shall not operate as a waiver of any right, power or remedy of the Agent or any Lender under the Credit Agreement or any other Loan Document, nor constitute amendment of any provision of the Credit Agreement or any other Loan Document, except as specifically set forth herein. Upon the Effective Date of this Modification Agreement, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of similar import shall mean and be a reference to the Credit Agreement as revised hereby.

 

9


(c) Each Credit Party acknowledges and agrees that the revisions, waivers and consents set forth herein are effective solely for the purposes set forth herein and shall not be deemed (i) except as expressly provided in this Modification Agreement, to be a consent by the Agent or any Lender to any amendment, waiver or modification of any term or condition of the Credit Agreement or of any other Loan Document, (ii) to create a course of dealing or otherwise obligate the Agent or Lenders to forbear, waive, consent or execute similar revisions or waivers under the same or similar circumstances in the future, or (iii) to amend, prejudice, relinquish or impair any right of the Agent or Lenders to receive any indemnity or similar payment from any Person or entity as a result of any matter arising from or relating to this Modification Agreement.

(d) This Modification Agreement may be executed in any number of counterparts, each such counterpart constituting an original but all together one and the same instrument. Any party delivering an executed counterpart of this Modification Agreement by fax shall also deliver an original executed counterpart, but the failure to do so shall not affect the validity, enforceability or binding effect of this Modification Agreement.

(e) In case any provision in or obligation under this Modification Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.

(f) This Modification Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

(g) Without limiting the general applicability of Section 8.2 of the Credit Agreement, the Credit Parties agree to reimburse the Agent for the reasonable fees, costs and expenses of counsel in connection with the preparation, negotiation, execution, delivery and administration of this Modification Agreement.

(h) This Modification Agreement shall constitute a Loan Document.

(i) Section headings in this Modification Agreement are included herein for convenience of reference only and shall not constitute a part of this Modification Agreement for any other purposes.

(j) THE VALIDITY, CONSTRUCTION AND ENFORCEABILITY OF THIS MODIFICATION AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF GEORGIA, WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF.

 

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IN WITNESS WHEREOF , the parties hereto have executed this Modification Agreement as of the date first written above.

 

BORROWERS:

SUNLINK HEALTH SYSTEMS, INC.,

as a Borrower and Borrowers’ Agent

By:    
Name:    
Title:    

 

SUNLINK HEALTHCARE, LLC

(to be known as MedCare South, LLC),

as a Borrower

By its Sole Member SunLink Health Systems, Inc.

By:    
Name:    
Title:    

 

DEXTER HOSPITAL, LLC,
as a Borrower
By its Sole Member SunLink Healthcare, LLC
  By its Sole Member SunLink Health Systems, Inc.
          By:    
          Name:    
          Title:    

 

SOUTHERN HEALTH CORPORATION OF

ELLIJAY, INC.,

as a Borrower
By:    
Name:    
Title:    

 

SOUTHERN HEALTH CORPORATION OF

DAHLONEGA, INC.,

as a Borrower
By:    
Name:    
Title:    


SOUTHERN HEALTH CORPORATION OF

HOUSTON, INC.,

as a Borrower

By:    
Name:    
Title:    

 

HEALTHMONT OF GEORGIA, INC.,

as a Borrower

By:    
Name:    
Title:    

 

HEALTHMONT, LLC,

as a Borrower

By its Sole Member SunLink Health Systems, Inc.

By:    
Name:    
Title:    

 

HEALTHMONT OF MISSOURI, LLC,

as a Borrower

By its Sole Member HealthMont, LLC
  By its Sole Member SunLink Health Systems, Inc.
          By:    
          Name:    
          Title:    

 

SUNLINK SERVICES, INC.

(to be known as MedCare Services, Inc.),

as a Borrower

By:    
Name:    
Title:    


SUNLINK SCRIPTSRX, LLC

(f/k/a SunLink Homecare Services, LLC),

as a Borrower

By its sole member SunLink Health Systems, Inc.

By:    
Name:    
Title:    

 

CENTRAL ALABAMA MEDICAL ASSOCIATES, LLC,

as a Borrower

By its Sole Member SunLink Healthcare, LLC

  By its Sole Member SunLink Health Systems, Inc.
          By:    
          Name:    
          Title:    

 

CASTLEMARK PROPERTIES, LLC

(f/k/a Dahlonega Clinic, LLC),

as a Borrower

By its Sole Member Southern Health Corporation of

Dahlonega, Inc.

          By:    
          Name:    
          Title:    

 

CARMICHAEL’S CASHWAY PHARMACY, INC.,

as a Borrower

By:    
Name:    
Title:    

 

 

CARMICHAEL’S NUTRITIONAL DISTRIBUTOR,

INC.,

as a Borrower

By:    
Name:    
Title:    


BREATH OF LIFE HOME HEALTH EQUIPMENT, INC.,

as a Borrower

By:    
Name:    
Title:    

 

SUNLINK HEALTHCARE PROFESSIONAL

PROPERTY, LLC

By its Sole Member SunLink Healthcare, LLC

  By its Sole Member SunLink Health Systems, Inc.
          By:    
          Name:    
          Title:    


AGENT :

CHATHAM CREDIT MANAGEMENT III, LLC,

as Agent

By:    
Name:    
Title:    


FUNDING AGENT :

CHATHAM CREDIT MANAGEMENT III, LLC,

as Funding Agent

By:    
Name:    
Title:    


LENDERS :

CHATHAM CREDIT MANAGEMENT III, LLC,

not individually, but as agent for

CHATHAM INVESTMENT FUND QP III, LLC, as

a Lender and CHATHAM INVESTMENT

FUND III, LLC, as a Lender

By:    
Name:    
Title:    

 

CHATHAM CREDIT MANAGEMENT III, LLC,

not individually, but as agent for CHATHAM

CASCADE FUND III, LLC, as a Lender, and

CHATHAM CASCADE FUND QP III, LLC,

as a Lender

By:    
Name:    
Title:    

 

CHATHAM CAPITAL MANAGEMENT IV, LLC,

not individually, but as agent for

CHATHAM INVESTMENT FUND QP IV, LLC, as

a Lender, and CHATHAM INVESTMENT

FUND IV, LLC, as a Lender

By:    
Name:    
Title:    

Exhibit 10.30

LOAN AGREEMENT

THIS LOAN AGREEMENT (the “ Loan Agreement ”) is made and entered into this 31st day of October, 2012 (the “ Effective Date ”), by, between and among Pioneer Bank, SSB (hereinafter “ Lender ”), SunLink Healthcare Professional Property, LLC, a Georgia limited liability company (“ Borrower ”); MedCare South, LLC, a Georgia limited liability company (formerly known as SunLink Healthcare, LLC and referred to in this Loan Agreement as “ Guarantor ”), and SunLink Health Systems, Inc., an Ohio corporation (“ SunLink ”), who enters into this Loan Agreement for the purposes herein stated, and who has separately guaranteed the subject indebtedness pursuant to its Unlimited, Unconditional Guaranty of even date.

RECITALS

WHEREAS, Borrower and Guarantor have requested that Lender extend certain credit and related financial accommodations to Borrower in connection with the purchase by Borrower of the existing real estate, building, and related improvements located in Ellijay, Gilmer County, Georgia; and

WHEREAS, Lender has agreed to accommodate the requests from Borrower and Guarantor, subject to the provisions of this Loan Agreement.

NOW THEREFORE, in consideration of the mutual covenants, conditions and agreements set forth herein, and other good and valuable consideration, the receipt and adequacy of which the parties hereto acknowledge, Borrower, Guarantor and Lender hereby agree as follows:

ARTICLE I

DEFINITIONS

The following terms which appear in this Loan Agreement shall be defined as set forth in this Article I:

1.1 Advance is any advance of money made by Lender to Borrower pursuant to this Loan Agreement.

1.2 Affiliate shall mean, with respect to any person, any person or entity which is controlling, controlled by, or under common control with, directly or indirectly through any person or entity, the person referred to, and, if the person referred to is a natural person, any of such person’s parents, brothers, sisters, spouse or children. The term “control” (including, with correlative meaning, the terms “controlled by” and “under common control with”) as used with respect to any person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract or otherwise.

1.3 Base Rate shall mean the interest rate most recently established and published by the Wall Street Journal as its prime interest rate. If the Wall Street Journal prime interest rate ceases to be available, Lender will choose a new interest rate index based upon comparable information.

 

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1.4 Borrower Documents are this Loan Agreement, the Note, the Guaranty, the Mortgage, the Security Agreement and the Financing Statement, and any and all other documents and instruments executed by Borrower or Guarantor (as applicable) and delivered to Lender in connection with the financing transactions contemplated hereby.

1.5 Collateral shall mean the real estate described in the Mortgage and the personal property assets more fully set forth in the Security Agreement.

1.6 Current Ratio shall mean the current assets of Borrower divided by the current liabilities of Borrower computed in accordance with GAAP.

1.7 Debt Service Coverage is defined as set forth in Section 4.3(c) , below.

1.8 Designated Person(s) shall be Ronald M. Turner or Mark J. Stockslager (either of them, at Borrower’s discretion). The Designated Person(s) may be changed by Borrower from time to time by written notification of Borrower to Lender. Lender shall be entitled to rely at all times on the most current listing of the Designated Person(s) available to it.

1.9 Environmental Report is the Phase I Assessment Report prepared by Evergreen Environmental Services, LLC dated March 27, 2012.

1.10 Environmental Laws shall be defined as any and all federal, state, local and foreign statutes, laws, regulations, ordinances, rules or other governmental restrictions relating to the environment or to emissions, discharges or releases of pollutants, contaminants, petroleum or petroleum products, chemicals or toxic or hazardous substances or wastes into the environment including, without limitation, ambient air, surface water, ground water, or land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants, petroleum or petroleum products, chemicals or toxic or hazardous substances or wastes or the clean-up or other remediation thereof and any and all judgments, orders, decrees, permits, grants, franchises, licenses or agreements relating to the foregoing to which Borrower is a party or which is otherwise applicable to Borrower.

1.11 Event of Default is defined as set forth in Section 7.1 below.

1.12 Financing Statement shall be the financing statement perfecting the security interest granted under the Security Agreement, naming Borrower as Debtor in favor of Lender as Secured Party, all as amended and/or continued from time to time.

1.13 GAAP is the generally accepted accounting principles in effect in the United States, applied on a consistent basis; provided, however, that no portion of the indebtedness outstanding under the Chatham Amended and Restated Credit Agreement which otherwise would be treated as owing by, or allocable to, Borrower shall be included for purposes of determining compliance by Borrower with Section 3.1(p) and Section 4.3 hereof.

 

Page 2


1.14 Guaranty shall mean and refer to both the Unlimited Unconditional Guaranty of MedCare South, LLC and the Unlimited Unconditional Guaranty of SunLink.

1.15 Guarantor, as used herein , refers to MedCare South, LLC, only, notwithstanding the fact that both MedCare South, LLC and SunLink are guarantors of the Loan. It is the express intent of Borrower, Lender, SunLink and Guarantor that the provisions of this Loan Agreement which require affirmative actions and reportings to be taken and made by Guarantor shall refer to MedCare South, LLC, only; provided, however, nothing stated herein-above shall be construed to in any manner diminish or limit the obligations and liabilities of SunLink, to the extent the same are required by the Unlimited Unconditional Guaranty executed by SunLink.

1.16 Laws shall mean any statute, law, treaty, rule or regulation or determination (whether now existing or hereinafter enacted) of an arbitrator or a court or other governmental authority (including, without limitation, all requirements relating to zoning, parking, ingress and egress, building setbacks, or use of the Real Estate, all Environmental Laws, the Architectural Barriers Act of 1968, the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, erosion control ordinances, storm drainage control laws and doing business and/or licensing laws), in each case applicable to or binding upon such person or any of its property or to which such person or any of its property is subject.

1.17 Legal Opinion is the legal opinion with respect to Borrower and Guarantor provided by                      in a form acceptable to Lender.

1.18 Loan is the loan of $2,100,000.00, to Borrower under this Loan Agreement and shall be evidenced by the Note.

1.19 Maximum Lawful Rate shall mean the lesser of (i) the highest rate permitted by applicable Texas or United States law, or (ii) an annual rate equal to the weekly ceiling determined in accordance with the computation specified in the Texas Finance Code, as amended, as such weekly ceiling is in effect from time to time, but in no event greater than eighteen percent (18%) annually. Unless precluded by law, changes in the Maximum Lawful Rate created by statute or governmental action during the term of the Note shall be immediately applicable to the Note on the effective date of such changes.

1.20 Maturity Date shall mean the date which is 25 years from the Effective Date.

1.21 MOB shall mean the medical office buildings located on the Real Estate.

1.22 Mortgage shall mean the Deed to Secure Debt, Assignment of Rents and Lease and Security Agreement describing the Real Estate, delivered by Borrower to Lender to secure all of Borrower’s obligations hereunder, to be held by Lender and recorded consistent with the provisions of this Loan Agreement.

 

Page 3


1.23 Net Intercompany Funding means (x) the change in receivables from Affiliates of Borrower during the applicable annual test period less (y) the change in payables to Affiliates of Borrower (excluding changes in Ordinary Affiliate Indebtedness) during the test period.

1.24 Note is Borrower’s promissory note to Lender executed as of the Effective Date evidencing Borrower’s obligation to Lender for the Loan.

1.25 Ordinary Affiliate Indebtedness shall mean indebtedness owed by Borrower to Guarantor or any other subsidiary of SunLink for shared services or Borrower’s allocable share of costs owed to third parties for shared services for:

 

  (i) audit and tax compliance services;

 

  (ii) legal compliance services including with respect to Sarbanes-Oxley;

 

  (iii) liability insurance including for errors and omissions insurance and all forms of insurance required or permitted under Section 4.2(j) of this Loan Agreement;

 

  (iv) employee insurance and other benefits including self-insurance reserves and stop loss payments for medical, dental, vision, life, and disability insurance;

 

  (v) reasonable administrative costs for employee insurance and other benefits;

 

  (vi) reasonable severance benefits including the administration of all benefits provided under or pursuant to COBRA;

 

  (vii) telecommunications and information technology services including internet services, VPN services, telephone and data services;

 

  (viii) workers’ compensation insurance and administrative costs and workers compensation benefits and payments;

 

  (ix) withholding taxes and administrative costs for tax withholdings;

 

  (x) payroll services;

 

  (xi) healthcare management system costs and expenses including allocations of expenditures for EHR technologies, medical coding technologies, and systems and medical record transcription services;

 

  (xii) fees and expenses for physician recruiting services;

 

  (xiii) retirement plan payments including 401k contributions;

 

  (xiv) the shared services specifically identified in Exhibit 1.25 ;

 

Page 4


  (xv) other substantially similar shared services incurred in the ordinary course of business of Borrower and SunLink; and

 

  (xvi) Permitted Affiliate Management Fees.

1.26 Organizational Documents shall mean copies of Borrower’s Articles of Organization dated as of December     , 2011 as amended by that certain First Amendment thereto dated as of October     , 2012; Borrower’s Operating Agreement dated as of December     , 2011 as amended by that certain First Amendment thereto dated as of October     , 2012; and the resolutions authorizing it to execute Borrower Documents (the “ Resolutions ”) certified by the Borrower’s Secretary.

1.27 Permitted Affiliate Management Fees shall mean fees for the provision of management services to the Borrower including in connection with services with respect to the medical office building and other healthcare or ancillary services facilities operated by Borrower and which fees are not otherwise Ordinary Affiliate Indebtedness and which fees are payable SunLink or any subsidiary or controlled Affiliate of SunLink; provided that (i) no such fees shall be paid in cash if an Event of Default has occurred and is continuing or if an Event of Default would result after giving effect to any such payments.

1.28 Permitted Contingent Liabilities shall mean guarantees or other contingently liabilities of Borrower for:

 

  (i) Permitted Affiliate Management Fees;

 

  (ii) Ordinary Affiliate Indebtedness;

 

  (iii) advances in the ordinary course of Borrower’s business to management personnel and employees consistent with past practice of SunLink;

 

  (iv) guaranty or employment agreements with physicians and other healthcare professionals employed by Borrower or engaged by Borrower as independent contractors of the type consistent with past practice or as otherwise customarily utilized in the healthcare industry;

 

  (v) customary tax and indemnity provisions in equipment leases entered into in the ordinary course of business;

 

  (vi) assumptions, guarantees, endorsements, and contingent agreements to purchase or otherwise become liable in respect of any Permitted Indebtedness; or

 

  (vii) guaranties existing on the date of this Agreement and identified in Exhibit 1.28 to this Loan Agreement if material in amount.

 

Page 5


1.29 Permitted Encumbrances shall mean and include for purposes of this Loan Agreement and the Security Agreement, any encumbrance, lien, charge, pledge, security interest or other charges of any kind, whether or not filed, recorded or otherwise perfected under applicable law, including any mortgage, deed to secure debt, deed of trust, conditional sale or other title retention agreement and any lease deemed to constitute a security interest and any option or other agreement to give any security interest:

 

  (a) imposed by governmental authorities for taxes, assessments or other charges either not yet due or which are being contested in good faith and by appropriate procedures;

 

  (b) imposed by statute if favor of landlords, carriers, warehousemen, mechanics, materialmen, repairmen or others similarly situated arising by operation of law in the ordinary course of business;

 

  (c) upon deposits to secure the performance of bids, trade contracts (other than borrowed money), leases, statutory, regulatory, contractual or warranty obligations, surety and appeal bonds, government contracts, performance bonds, workers compensation and/or unemployment insurance (or letters of credit securing the same) and other obligations of a like nature, in each case, incurred in the ordinary course of business;

 

  (d) for easements, rights-of-way, zoning, similar restrictions and other similar encumbrances or title defects existing or incurred in the ordinary course of business which, in the aggregate, are not material in amount and which do not in any case materially detract from the value of the Real Estate subject thereto (as such Real Estate is used by Borrower) or interfere in any material respect with the ordinary conduct of the business of the Borrower;

 

  (e) arising by operation of law in connection with judgments, only to the extent, for an amount and for a period not resulting in an Event of Default with respect thereto;

 

  (f) on any assets subsequently acquired existing at the time such assets are acquired by Borrower so long as such encumbrances (i) are not created, incurred or assumed in contemplation of such assets being acquired by Borrower, (ii) do not extend to any other assets of Borrower and (iii) do not exceed 90% of the fair market value of any such assets as determined in good faith by the board of directors of Borrower;

 

  (g) for any interest or title of a lessor in property subject to any existing or subsequently entered into capitalized lease or any existing or subsequently entered into operating lease including any such arising from filing a Uniform Commercial Code financing statement regarding such leases;

 

  (h) arising solely by virtue of any statutory or common law provision relating to banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution;

 

Page 6


  (i) in connection with any extension, renewal, or replacement of the foregoing (a) through (f), provided that any such extension, renewal or replacement is granted in the ordinary course of business and limited to the property originally encumbered thereby and the amount of the obligation secured thereby is not increased;

 

  (j) for existing easements and restrictions of record as listed in the Mortgage and/or policies of title insurance issued to Lender covering the Real Estate;

 

  (k) for leases of the MOB or any portion thereof in the ordinary course of business of Borrower, leases of the MOB or any portion thereof to any Affiliate of Borrower;

 

  (l) for leases of other improvements located on the Real Estate in the ordinary course of business;

 

  (m) for leases or subleases of less than all or less than substantially all of the other Property: (i) in connection with the provision of contract medical services with respect to a medical department or (ii) to physicians or other providers of medical services in the ordinary course of business;

 

  (n) securing any indebtedness or other obligation to Lender;

 

  (o) securing any Permitted Refinancing Indebtedness; and

 

  (p) securing indebtedness under that certain Amended and Restated Credit Agreement dated as of August 1, 2008, among SunLink, Borrower and their affiliates, as borrowers, and Chatham Credit Management III, LLC, as Agent and Funding Agent, and other financial institutions, as lenders, (as the same may be amended, restated, supplemented or otherwise modified from time to time) (collectively, the “ Chatham Amended and Restated Credit Agreement ”), provided that any such indebtedness is subordinated to the Loan pursuant to a Subordination of Security Documents Agreement (the “ Subordination Agreement ”) in substantially the form of Exhibit 1.29 .

1.30 Permitted Indebtedness means:

 

  (i) Permitted Affiliate Management Fees;
 
  (ii) Ordinary Affiliate Indebtedness;
 
  (iii) Permitted Contingent Liabilities, whether or not matured or due or payable;
 
  (iv) Trade payables and similar obligations in the ordinary course of business;
 
  (v) indebtedness or other obligations owing to the Lender;
 
  (v) If subordinated in accordance with the Subordination Agreement between the Lender and Chatham, indebtedness or other obligations under the Chatham Amended and Restated Credit Agreement (the “ Chatham Indebtedness ”);

 

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  (vi) intercompany indebtedness between the Borrower on the one hand and SunLink or Guarantor or both of them on the other hand, provided Borrower immediately after the incurrence of such indebtedness would be in compliance with the Financial Covenants;

 

  (vii) capital leases and all other leases required to be treated as indebtedness as result of any changes in GAAP;

 

  (viii) Permitted Refinancing Indebtedness;

 

  (ix) any indebtedness not secured by any collateral of the Borrower; and

 

  (x) any indebtedness secured by the Borrower’s accounts receivable, contract rights, inventory, working capital or proceeds of any thereof provided Borrower’s liability thereunder does not exceed the fair market value of such property as determined in good faith by the Borrower at time of incurrence.

 

  (xi) so long as no Event of Default has occurred and is continuing, intercompany periodic cash management transfers to and from Affiliates of Borrower if such transfers and net indebtedness are properly accounted for in determining distributions pursuant to Section 5.1(b) and Net Intercompany Funding.

1.31 Permitted Refinancing Indebtedness shall mean any indebtedness of Borrower for money borrowed or securities issued or incurred in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace or refund Permitted Indebtedness, provided that if an Event of Default under the Loan Agreement shall have occurred and then be continuing, then:

 

  (a) the principal amount (or accreted value, if applicable) does not exceed the principal amount (or accreted value, if applicable) of the indebtedness extended, refinanced, renewed, replaced or refunded (plus all accrued interest thereon and the amount of any reasonably determined premium necessary to accomplish such refinancing and such reasonable expenses incurred in connection therewith);

 

  (b) if the indebtedness being extended, refinanced, renewed, replaced or refunded is equal to or subordinated in right of payment to the Note, such Permitted Refinancing Indebtedness

 

  (1) has a final maturity date later than the final maturity date of, and has a weighted average life to maturity equal to or greater than the weighted average life to maturity of, the indebtedness being extended, refinanced, renewed, replaced or refunded; and

 

  (2) is equal to, or subordinated in right of payment to, the Note on terms taken as a whole which are at least as favorable to Lender as those contained in the documentation governing the indebtedness being extended, refinanced, renewed, replaced or refunded; and

 

Page 8


  (c) such indebtedness is incurred either by Borrower, Guarantor or SunLink or a controlled Affiliate thereof who is the obligor on the indebtedness being extended, refinanced, renewed, replaced or refunded.

Each of the categories of Permitted Refinancing Indebtedness referred to in the definition hereof is cumulative and independent of each other category.

1.32 Project is the purchase of the Real Estate and other personal property by Borrower.

1.33 Real Estate is the real property, and all improvements and appurtenances thereto, located in Ellijay, Gilmer County, Georgia more particularly described in the Mortgage.

1.34 Resolutions are the resolutions of the Borrower authorizing the execution of this Loan Agreement and all of the documents and agreements referenced herein.

1.35 Security Agreement is Borrower’s general business security agreement as executed by Borrower and Lender on the Effective Date.

1.36 Security Documents are the Mortgage, the Financing Statement, the Guaranty and the Security Agreement and all of the instruments securing the payment of the Note.

1.37 Survey is the “as built” ALTA survey certified to Borrower, Lender and the Title Company.

1.38 Tangible Net Worth shall mean Borrower’s tangible net worth as determined in accordance with GAAP and shall not include subordinated debt or any appraisal surplus.

1.39 Title Company is Corridor Title, LLC and Busch, Slipakoff & Schoh, LLP.

1.40 Title Policy is a mortgagee’s title insurance policy issued by Title Company in the amount of $2,100,000.00 insuring the Mortgage as a first lien on a good and marketable fee simple title to the Real Estate as of the Effective Date, subject only to Permitted Encumbrances and, without limiting the generality of the foregoing, insuring the Mortgage against survey exceptions and against claims for mechanics’ liens, rights of parties in possession and matters which would be disclosed by special assessment searches, UCC searches, and all other customary searches.

1.41 USDA is the United States Department of Agriculture.

 

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1.42 USDA Conditional Commitment is the Conditional Commitment issued by the USDA dated September 10, 2012 (Case No. 10-61-*****-4636).

1.43 USDA Guaranty Fee shall mean $50,400.00.

ARTICLE II

TERMS, ADVANCES AND REPAYMENT OF TERM NOTE

2.1 Terms . The Loan shall be non-revolving and evidenced by the Note.

The Loan shall be payable in accordance with the terms and conditions of the Note. The Note shall be executed and delivered by Borrower to Lender upon execution of this Loan Agreement. The Loan shall mature on the Maturity Date.

Commencing on the      day of the month following the Effective Date and continuing until all indebtedness of Borrower is paid in full, Borrower shall make level monthly payments of principal on the Note on the basis of a 25 year amortization, plus interest calculated on the basis of a three hundred sixty (360) day year. The monthly principal and interest payments owed by Borrower shall be adjusted, on the          day of December, March, June and September of each year to the extent of any corresponding change in the Base Rate in order to fully amortize the payments owed by Borrower under the Note. Interest shall accrue in arrears on the unpaid principal amount of the Note from time to time outstanding at the greater of (i) five percent (5%) per annum or (ii) Base Rate, plus 2.0% per annum, but never greater than the Maximum Legal Rate as described in the Note.

Borrower shall use the proceeds of the Loan solely for the purchase of the Real Estate and personal property associated with the operation of the Real Estate and Borrower’s business and for working capital and closing costs.

In the event payments are not timely made pursuant to the provisions of the Note and this Loan Agreement, Borrower hereby authorizes the Lender to charge against Borrower’s accounts with the Lender any and all amounts due to the Lender from Borrower as of the day of such charge or any time thereafter that sufficient funds exist in such accounts; provided, nothing stated herein shall be construed to give Lender a security interest in accounts receivable of Borrower. In the event Lender shall make any such charge, it shall notify Borrower of the charge within three (3) business days. Payments not made when due shall bear an additional charge equal to five percent (5%) of the late payment.

2.2 Advance . Lender and Borrower agree that, on the terms and subject to the conditions of this Loan Agreement, the Lender shall fund the Loan by a single Advance of $2,100,000.00 from Lender to Borrower upon the Effective Date.

2.3 USDA Guaranty . Borrower agrees that, it shall, to the best of its reasonable ability, cooperate with Lender and take all steps as are necessary and required by Lender and the USDA to secure the final approval of the USDA to guaranty the refinancing of the Loan into long term financing as described in the USDA Conditional Commitment.

 

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2.4 Prepayment Premium . In the event the Loan is paid in full prior to the date such amount is due, whether such payment is made voluntarily or involuntarily (including as a result of an acceleration under this Loan Agreement), the Borrower will pay to the Lender within 15 days of the Lender’s written demand a prepayment fee of 5.0% of the prepaid amount received during the period commencing on the date hereof and continuing until the fifth anniversary of the Effective Date. Thereafter, the Loan may be prepaid in part or full without penalty.

Borrower acknowledges and agrees that it is extremely difficult and impracticable to ascertain the amount of losses that would be incurred by the Lender if Borrower prepays the Loan as described above. Borrower therefore agrees that the foregoing prepayment fees are a reasonable and bargained for understanding between the parties.

ARTICLE III

CONDITIONS OF LENDING

3.1 Conditions Precedent to Fund the Advance . The obligation of Lender to make the Advance under the Note shall be subject to the conditions precedent that Lender has received the following:

(a) this executed Loan Agreement;

(b) the executed Note;

(c) the Organizational Documents and Resolutions;

(d) the Security Documents as executed by the Borrower and the Lender (as applicable);

(e) the executed Guaranty;

(f) a commitment for the Title Policy including “gap coverage” that insures Lender against liens for work completed prior to the recording of the Mortgage;

(g) the Survey;

(h) the USDA Guaranty Fee;

(i) proof of compliance by Borrower with the provisions of Section 4.2(j) , below;

(j) all information required by the Federal Patriot Act, Regulation B;

(k) all information required by the Federal Institutions Reform, Recovery and Enforcement Act of 1989;

 

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(l) a flood hazard certification;

(m) an Appraisal, in a form acceptable to the Lender;

(n) verification of accounting procedures used to calculate Borrower’s equity requirement under USDA regulations;

(o) the Legal Opinion;

(p) confirmation in a form acceptable to the Lender that at, and only at the Effective Date, Borrower’s Tangible Net Worth is not less than ten percent (10%) as reflected on a pro forma balance sheet in a form reasonably acceptable to the Lender and the USDA;

(q) any such other and further documents, assurances or materials as Lender may reasonably request.

ARTICLE IV

WARRANTIES, REPRESENTATIONS AND COVENANTS

4.1 Warranties and Representations . To the extent made applicable below, Borrower and Guarantor warrant, represent and certify to and for the benefit of Lender as follows:

(a) Borrower is a limited liability company organized under the laws of the State of Georgia, is validly existing, and is under no legal disability to execute, deliver and perform Borrower’s Documents, and to own and manage the Project and conduct its business as presently conducted and as contemplated under this Loan Agreement with respect to the ownership and operation of the Project;

(b) Borrower and/or Guarantor possess adequate licenses, certificates, permits, or rights thereto, to conduct their respective businesses, substantially as now conducted, profitably as they intend;

(c) the execution, delivery and performance of this Loan Agreement and the ancillary documents hereto by Borrower and, as applicable, by Guarantor, will not violate any Laws or result in the breach of or constitute a default under any indenture or loan, credit or other agreement or instrument to which Borrower or Guarantor is a party or by which any or their properties may be bound or affected or result in the creation or imposition or any lien, charge or encumbrance of any nature upon any of their properties or assets contrary to the terms of any such instrument or agreement;

(d) the use of the Real Estate by Borrower and any lease of the Real Estate or any portion thereof by Borrower are permitted by and will comply in all material respects with all presently applicable use or other restrictions and requirements in prior conveyances, zoning ordinances and all other laws, regulations, rules and ordinances of the United States, the State of Georgia, Gilmer County and the City of Ellijay and the respective agencies thereof;

 

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(e) there is no suit, action or proceeding pending or, to the knowledge of Borrower, threatened against or affecting Borrower or Guarantor before or by any court, arbitrator, administrative agency or other governmental authority which reasonably may be expected to materially adversely affect the financial condition or the ability of the Borrower or Guarantor to perform their respective obligations hereunder or under the Borrower Documents or the Guaranty;

(f) neither the Borrower nor Guarantor is in default of a material provision under any material agreement, instrument, decree or order to which either of such parties is a party or to which or its property is bound or affected;

(g) excepting the Permitted Encumbrances and the security interests granted pursuant to the terms of this Loan Agreement, Borrower has good title to all Collateral owned by Borrower, free and clear of all liens, charges or encumbrances of all kinds, and the Security Documents will constitute valid and perfected first priority security interests in and to the Collateral;

(h) the Borrower and the Real Estate and all of Borrower’s facilities located on the Real Estate and all subsidiaries, successors and assigns of Borrower, will, at all times, be licensed and in compliance with rules and regulations issued by the State of Georgia and all agencies of the State of Georgia that may have jurisdiction over the Borrower or the Real Estate, and any other local, state, or federal governmental authority having jurisdiction over any operations conducted on the Real Estate. The Borrower will provide copies of any written inspections by any of the above agencies to the Lender and USDA upon request.

(i) the Real Estate will be used for its intended purpose as approved by USDA.

(j) the Real Estate shall comply with the Americans with Disabilities Act (ADA) and all facilities located on the Real Estate that are accessible to the public shall be in compliance with the ADA.

(k) no part of the proceeds of the Loan shall be used, directly or indirectly, for the purpose of purchasing or carrying any margin stock within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or to extend credit to others for the purpose of purchasing or carrying any such margin stock;

(l) Borrower and Guarantor are solvent and will not be rendered insolvent by the transactions contemplated hereby and, after giving effect to such transactions, will not be left with an unreasonably small amount of capital with which to engage in their respective businesses. Neither Borrower nor Guarantor intends to incur, or believes that it has incurred, debts beyond its ability to pay such debts as they mature. Neither

 

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Borrower nor Guarantor has commenced or filed nor contemplates the commencement or filing of any bankruptcy, insolvency, reorganization, moratorium, sequestration, liquidation, consolidation or similar proceedings or the appointment of a receiver, liquidator, assignee, conservator, trustee or similar official in respect of it or any of its/their assets. The amount of the Loan constitutes reasonably equivalent value and fair consideration for the transfer to Lender of the interest in the Collateral represented by the Security Documents. Neither Borrower nor Guarantor is transferring any interest in the Collateral with any intent to hinder, delay or defraud any of its creditors;

(m)(i) each exhibit, appraisal, financial statement, operating statement, operating agreement, document, book, record, report and other item of written information furnished by Borrower or Guarantor (or by any of their respective legal or accounting advisors), as the case may be, to Lender (or its legal representatives or contractors) in connection with the Project and/or this Loan Agreement is accurate as of its date and as of the date so furnished and (ii) to the best of Borrower’s knowledge and belief, all financial projections contained therein are based on reasonable and stated assumptions, and to the best of Borrower’s knowledge, no such document contains any material misstatement of fact or omits to state a material fact necessary to make the statements therein not materially misleading;

(n) to the knowledge of Borrower and Guarantor, no part of the Real Estate is contaminated or affected in any adverse manner by “regulated substances” or has “hazardous waste,” as defined in any Environmental Laws which has, will or threatens to impose a material liability on the Borrower, Guarantor or the Lender or which requires or would require a material expenditure by the Borrower to cure; and

(o) the buildings and improvements relating to the Real Estate are located within the boundary lines of the described parcels of land; the buildings and improvements relating to the Real Estate are not in violation of applicable setback requirements, zoning laws, or other applicable building or use law, ordinance, restriction or other Law (and none of the properties or buildings or improvements thereon are subject to “permitted non-conforming use” or “permitted non-conforming structure” classifications), and do not encroach on any easement which may burden the Real Estate. The buildings, fixtures and mechanical systems located on the Real Estate do not contain any material structural defects or inadequacies and the mechanical systems and apparatus serving the buildings are in good working order and repair, reasonable wear and tear excepted.

4.2 General Covenants . Borrower and Guarantor, as made applicable hereby, and on a joint and several basis as made applicable hereby, hereby covenant and agree with Lender, at all times during the term of this Loan Agreement:

(a) to create, permit to be created or to allow no liens, charges or encumbrances on the Real Estate, except Permitted Encumbrances and liens in favor of Lender;

 

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(b) not to assign this Loan Agreement or any interest herein or all or any part of any Advances to be made hereunder;

(c) to permit Lender, acting by and through its officers, employees and agents, upon reasonable advance notice (which shall not be less that five (5) calendar days) to examine all books, records, contracts, plans, permits, bills and statements of account pertaining to the financial aspects of Borrower’s business and all contracts, plans, drawings, permits, bills and statements of account pertaining to the Project, and to make extracts therefrom and copies thereof, provided, however, that Lender, its officers, employees and agents, shall not be provided access to Protected Health Information (as defined in the Health Insurance Portability and Accountability Act of 1996, and its implementing regulations (“ HIPAA ”);

(d) to permit the USDA personnel and any person(s) accompanying USDA personnel to enter upon the Real Estate with prior notice and during normal business hours and into any building thereon, whether permanent or temporary, jointly or separately, with personnel of Lender to carry out the functions involving their interests, it is anticipated that scheduled and unscheduled inspections may be conducted by these personnel as well as final acceptance inspections;

(e) to furnish to Lender as soon as possible and in any event within five (5) days after Borrower has obtained knowledge of the occurrence of an Event of Default, or an event which with the giving of notice or lapse of time or both would constitute an Event of Default, a statement signed by the Borrower setting forth details of such Event of Default or event and the action which Borrower has taken, is taking or proposes to take to correct the same;

(f) to preserve and maintain or acquire a substitution of all of Borrower’s material rights, privileges and agreements necessary in the normal conduct of Borrower’s business; and not to suspend its business operations;

(g) to obtain and maintain all necessary material state, federal, local and private clearances, authorizations, permits and licenses which are necessary with respect to the business of Borrower or with respect to the Project;

(h) to furnish the following to Lender:

 

  (1) With respect to Borrower, within forty-five (45) days after the end of each quarter, copies of the balance sheet as of the end of each such quarter and related statements of income, retained earnings, cash flows, aging of accounts receivable and payable, of Borrower for said quarter, together with year-to-date figures, all in reasonable detail and all prepared and signed by an employee of Borrower charged with such responsibility as having been prepared in accordance with GAAP and without footnotes to such interim statements;

 

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  (2) With respect to Borrower, compiled annual financial statements to include a balance sheet, income statement and statement of cash flows, aging of accounts receivable and payable and any other supporting statements for the period, in a format approved by Lender within ninety (90) days of each fiscal year end as having been prepared in accordance with GAAP and with footnotes to the extent required by GAAP for such annual financial statements;

 

  (3) With respect to SunLink, Borrower shall cause to be provided to Lender and USDA, the following, and SunLink by executing this Loan Agreement agrees to cooperate with Borrower and Lender in providing the following: (i) annual tax returns within 30 days of filing, and (ii) audited financial statements to include a balance sheet, income statement and statement of cash flows and any other supporting statements for the period, within ninety (90) days of fiscal year-end in a format consistent with generally accepted accounting principles and reasonably acceptable to the Lender and audited by an independent certified public accountant; it being agreed that providing to Lender the annual 10-K statement required by the United States Securities and Exchange Commission shall be satisfactory as to form.

 

  (4) Such other and further financial information as Lender may reasonably request from time to time.

(i) to comply with the requirements of the Environmental Laws and of all applicable laws, rules, regulations and orders of all governmental authorities and licensing and regulatory bodies, and with all contractual and other legal obligations, the non-compliance with which would materially and adversely affect the business, assets or financial condition of Borrower;

(j) with respect to Borrower, to maintain and preserve in good working order and condition, ordinary wear and tear excepted, all of its assets necessary for the operation of its business and obtain and maintain, or cause to be obtained and maintained, at all times during the term of the Loan (and, from time to time at the request of Lender, furnish Lender with proof of payment of premiums on):

 

  (1) Hazard insurance, upon the Real Estate and all Collateral, insuring against loss by fire, windstorm, lightning, hail, business interruption, explosion, riot, civil commotion, aircraft, vehicle, marine, smoke, builder’s risk, public liability, property damage, vandalism, malicious mischief, and other risks customarily covered by a standard extended coverage endorsement, in an amount not less than the greater of (i) 100% of the then outstanding balance of the Note, or (ii) the full insurable value of the improvements to all real property Collateral and the personal property Collateral, and naming Lender as mortgagee and lender payee under mortgagee payee and lender loss payee endorsements; and

 

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  (2) Comprehensive general liability insurance (including operations, contingent liability, completed operations and contractual liability insurance) in such amount as Lender may require from time to time (but with coverage of not less than $1,000,000.00 per occurrence and $3,000,000.00 aggregate) and naming Lender as additional insured, by additional insured endorsements.

Such policies of insurance to be in form and content satisfactory to Lender and to be placed with insurers acceptable to Lender, licensed to transact business in the State of Georgia and to contain an agreement of the insurer to give not less than thirty (30) days prior written notice to Lender in the event of cancellation, termination, amendment, change, or non-renewal of such policy affecting the coverage thereunder;

(k) to promptly pay and discharge when due all taxes and assessments levied and assessed or imposed upon the Real Estate or upon Borrower’s income, as well as all claims which, if unpaid, might by law become a lien or charge upon the Real Estate; provided, however, that nothing herein contained shall require Borrower to pay any such taxes, assessments or claims so long as Borrower shall in good faith contest the validity and stay the execution and enforcement thereof.

4.3 Financial Covenants. Borrower agrees to maintain the following financial covenants (all computed and determined in accordance with GAAP) and comply with the other affirmative and negative financial related terms and conditions:

(a) Borrower shall maintain a Current Ratio of at least 1.0:1.0 as of the end of each fiscal year of the Borrower;

(b) Borrower shall maintain a minimum a Debt Service Coverage Ratio of at least 1.25 as of the end of each fiscal year;

(c) For the purposes of this Loan Agreement, the term “ Debt Service Coverage Ratio ” means (i) Borrower’s net income, plus interest expense, plus depreciation expense, plus amortization expense, plus income tax expense, plus Permitted Affiliate Management Fees not paid in cash all for the immediately preceding one (1) fiscal year, divided by (ii) Borrower’s scheduled principal payments on indebtedness for money borrowed (Ratio Indebtedness) during the immediately preceding one (1) fiscal year, plus scheduled capital lease payments for the immediately preceding one (1) fiscal year plus interest expense for the immediately preceding one (1) fiscal year provided that Ratio Indebtedness shall not include any Chatham Indebtedness or any Permitted Refinancing Indebtedness.

(d) Beginning in fiscal year commencing July 1, 2013 and continuing thereafter, Borrower shall limit capital expenditures to an amount not exceeding $100,000.00 in any fiscal year without prior Lender approval (not including any capital expenditures financed under the Loan);

 

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(e) Borrower shall limit monthly Permitted Affiliate Management Fees to not more than four percent (4%) of Borrower’s monthly revenues;

(f) The Borrower agrees that compensation (whether in the form of salary, guaranteed payments, bonuses or otherwise) of officers, members of the Borrower shall be limited to an amount that, when taken, would not reasonably be expected to adversely affect, in any material respect, the repayment ability of the Borrower under this Loan Agreement. Borrower shall not increase the foregoing described compensation amounts year to year unless (1) the Borrower is and will remain in compliance with the covenants of this Loan Agreement, (2) all payments owed under this Loan Agreement are current, and (3) Borrower is current with all of its trade payables and other debts.

(g) Notwithstanding the foregoing, with respect to any requirements of this Loan Agreement or the Conditional Commitment issued by the USDA, provisions relating to the aging of accounts receivable and accounts payable shall not be applicable to Guarantor.

ARTICLE V

NEGATIVE COVENANTS

5.1 From and after the date of this Loan Agreement and while any part of the Loan contemplated hereunder remains outstanding and until the entire amount owing from Borrower and/or Guarantor to Lender under the terms and conditions of this Loan Agreement or documents referred to and/or incorporated herein is paid in full, Borrower shall not, without the prior written consent of Lender, which shall not be unreasonably withheld or delayed:

(a) Create, assume or suffer to exist any security interest, lien or charge, upon the Collateral, except:

 

  (1) The security interest described herein which is being created in conjunction with and as security for this Loan Agreement; or

 

  (2) Permitted Encumbrances.

(b) At such time as any Event of Default exists, with respect to Borrower, declare and/or pay any dividend, distribution or any other payment (exclusive of Ordinary Affiliate Indebtedness or non-cash Permitted Affiliate Management Fees) to the members of Borrower based upon the ownership of membership interests or shares of Borrower, excepting distributions to the members of Borrower to cover their actual tax liability for income of Borrower passed through to such members. Notwithstanding the foregoing, Borrower agrees that no distribution will be permitted in the event the distribution (if made) would trigger an Event of Default under this Loan Agreement.

 

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(c) Except upon not less than ten (10) days advance written notice to the Lender and provided no Event of Default then exists, directly or indirectly merge or consolidate with or into any other entity, or sell, lease, transfer or otherwise dispose of all or a substantial portion of its assets.

(d) Purchase, sell, lease or otherwise transfer any fixed asset constituting Collateral without the advance written consent of the Lender and USDA (such consent not to be unreasonably withheld or delayed); provided, however, that no advance written consent shall be necessary if no Event of Default then exists and further provided that such purchase, sale or lease (i) is made in the ordinary course of business or (ii) is made in furtherance of or pursuant to a transaction permitted under Section 5.1(c) or (iii) consists of a lease of the Real Estate or other Collateral to an Affiliate of Borrower or (iv) leases made in the ordinary course of business, including but not limited to leases of the MOB or portions thereof or leases of other improvements or portions thereof situated on the Real Estate; it being expressly anticipated that Borrower as of the date of this Loan Agreement is leasing and in the future may lease certain portions of the improvements situated on the Property including the MOB to Affiliates or directly or indirectly to third parties, in which instance Borrower shall provide copies of such leases to Lender.

(e) Make any loans to officers or owners (other than customary intercompany transactions consolidating cash by and among Borrower, Guarantor, SunLink and Affiliated Companies) without prior Lender approval, which shall not be unreasonably withheld or delayed.

(f) Except for Permitted Indebtedness, Borrower will not incur, assume, co-sign, guarantee, endorse, contingently agree to purchase or otherwise become liable upon the obligation of any person, firm or corporation without the prior written consent of Lender and USDA.

(g) Significantly change the ownership of Borrower without the prior written consent of the Lender and USDA, no such consent to be unreasonably withheld or delayed.

Notwithstanding the foregoing, the negative covenants contained herein shall not be construed to prohibit Borrower, Guarantor or SunLink from making inter-company transfers in the ordinary course of their respective business, as disclosed to Lender within the financial statements hereby required.

ARTICLE VI

SECURITY

6.1 The terms, conditions, covenants and warranties contained in the Security Documents are incorporated herein as if set forth in full. It is the parties’ express intention that the Security Documents shall secure repayment of the Note and of all other obligations of Borrower and/or Guarantor to Lender created hereunder.

 

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ARTICLE VII

DEFAULT AND ACCELERATION

7.1 Events of Default . The occurrence of any of the following shall constitute an Event of Default hereunder:

(a) Borrower and/or Guarantor shall default in the due and punctual payment of any payment installment herein or any other sums of money owing from Borrower and/or Guarantor to Lender under the Note or any renewals or extensions thereof or under any Security Documents, and such default shall continue for a period of ten (10) days after receipt of written notice to Borrower from Lender;

(b) Borrower and/or Guarantor shall default in the due and punctual retirement by payment of all principal and interest amounts due to Lender, as applicable, upon maturity of the Note or any Security Documents and such default shall continue for a period of ten (10) days after receipt of written notice to Borrower from Lender;

(c) Any representation, warranty or certification made by Borrower or Guarantor herein or in any writing furnished in connection with or pursuant to this Loan Agreement or any of the Security Documents, and reasonably relied upon by Lender in its decision to grant the Loan, shall prove to have been false in any material respect on the date as of which made or as of which the same is to be effective and the same shall not be cured within ten (10) days after receipt of written notice to Borrower from Lender;

(d) Borrower or Guarantor shall default in the performance or observance of any other term, covenant or agreement contained herein or in any other document incorporated or referred to herein including the Security Documents, and the defaulting party shall not have cured such default within thirty (30) days following receipt of notice of such default to Borrower from Lender; provided, however, that if the default is of such a nature that it cannot be cured within such thirty (30) days and Borrower or Guarantor, as the case may be, have within such thirty (30) days commenced attempts to cure and continues to diligently pursue such attempts, then Borrower or Guarantor shall have a reasonable time not to exceed ninety (90) days after receipt of notice of such default from Lender to Borrower to cure such default;

(e) Borrower or Guarantor shall become insolvent or be unable to pay their respective debts as they mature or shall make an assignment for the benefit of creditors or shall be adjudicated a bankrupt; or any proceedings shall be commenced by Borrower or Guarantor relating to any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt or liquidation law or statute of the federal or any state government, whether now or hereafter in effect; or any such proceeding shall be initiated against Borrower or Guarantor and an order approving the petition is entered or such proceedings shall remain undismissed for a period of ninety (90) days; or Borrower or Guarantor by any action shall indicate approval of, consent to, or acquiescence in any such proceeding or in the appointment of a trustee or receiver; or any such trustee or receiver shall not be discharged within a period of ninety (90) days after the appointment thereof;

 

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(f) Borrower or Guarantor shall default under any other covenant, warranty or obligation to Lender under any other agreement or obligation surrounding the loan from Lender to Borrower, and such default shall not be cured within thirty (30) days following receipt of notice of such default to Borrower from Lender; provided, however, that if the default is of such a nature that it cannot be cured within such thirty (30) days and Borrower or Guarantor, as the case may be, have within such thirty (30) days commenced attempts to cure and continues to diligently pursue such attempts, then Borrower or Guarantor shall have a reasonable time not to exceed ninety (90) days after receipt of notice of such default from Lender to Borrower to cure such default; provided, however , if an applicable cure period is otherwise expressly provided for with respect to such default such cure period shall control (subject to Section 7.1 (a) above, the cure provisions contained in this Section 7.1 (f) shall not apply to the payment of any sums due under the Note or any Security Documents).

7.2 Remedies upon Default . Upon the occurrence of any Event of Default, and while the same is continuing, Lender may then, without demand or action of any kind by Lender, but subject to the express cure rights of Borrower as herein stated:

(a) Declare the entire amount of unpaid principal and all accrued and unpaid interest, fees and charges under the Note and under all of Borrower’s obligations to Lender to be automatically and immediately due and payable; and/or

(b) Declare Borrower in default under the Security Documents and exercise against Borrower, Guarantor, the Collateral and all assets subject to the Security Documents all rights and remedies for default provided in this Loan Agreement, the Security Documents, the Guaranties and all other agreements between Lender and Borrower and/or Guarantor, and/or other applicable law; and/or

(c) Set off against any of Borrower’s accounts maintained with Lender or its Affiliates, all amounts then due.

7.3 Non-Exclusive Remedies . No remedy herein conferred upon Lender is intended to be exclusive of any other remedy and each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. No failure or delay on the part of Lender in exercising any right or remedy hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any right hereunder preclude other or further exercise thereof or the exercise of any other right or remedy.

7.4 Conflicts . In the event of a conflict in the default or notice of default provisions of this Loan Agreement and any document referred to or incorporated herein, the provisions hereof shall control. In every other case, all remedies shall be deemed cumulative.

 

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ARTICLE VIII

INDEMNIFICATION

8.1 Indemnification for Hazardous Substances and Materials . Borrower and Guarantor, on a joint and several basis, hereby indemnify, agree to defend and hold harmless Lender and each officer, director, employee and agent of Lender from and against any and all claims, damages, fines, judgments, penalties, costs, liabilities or losses, including, without limitation, any decreases in the value of the Real Estate, damages caused by the loss or restriction of rentable or usable space or any damages caused by adverse impact on marketing of the space, and any and all sums paid for settlement of claims, reasonable attorneys’ fees, consultant and expert fees arising during or after the term hereof and arising as a result of a breach of the environmental covenants set forth in Section 4.2(i) (hereinafter the “ Contamination ”). The indemnification includes, without limitation, any and all costs incurred because of any investigation of the Real Estate or any cleanup, removal or restoration mandated by a federal, state or local agency or political subdivision. Without limitation of the foregoing, if the Borrower, Guarantor or any of their respective Affiliates or any other party causes or permits the presence of any hazardous or toxic substances or materials on the Real Estate that results in Contamination, Borrower and Guarantor shall promptly, at their sole expense, take any and all necessary actions to return the Real Estate to the condition existing prior to the presence of any such hazardous or toxic substances or materials on the Real Estate. Borrower shall first obtain Lender’s approval for any such remedial action. This indemnification is a continuing indemnification and irrespective of the fact that the Loan and any other indebtedness due hereunder shall have been paid by Borrower.

8.2 Indemnification for Other Actions . Borrower and Guarantor, on a joint and several basis, hereby indemnify, agree to defend and hold harmless Lender and each officer, director, employee and agent of Lender from and against any and all claims, damages, losses, liabilities, costs or expenses whatsoever which Lender may incur (which may be asserted against Lender by any person or entity whatsoever) by reason of or in connection with the entry into this Loan Agreement and Borrower’s Documents, the consummation of the transactions contemplated hereby or the use of the proceeds of the Loan; provided, however, that Borrower and Guarantor shall not be required to indemnify Lender from any claims, damages, losses, liabilities, costs or expenses to the extent, but only to the extent, caused by the intentional misconduct or recklessness of Lender or any liability for which Lender may be strictly liable. Nothing in this section is intended to limit the obligation of Borrower or Guarantor to pay the indebtedness hereunder.

ARTICLE IX

MISCELLANEOUS

9.1 Enforcement Expenses . If an Event of Default occurs and is continuing, Borrower and Guarantor shall be responsible to pay all reasonable and necessary costs and expenses of Lender, including reasonable attorneys’ fees, whether or not a lawsuit is commenced, and all additional costs, expenses and fees of enforcing and/or exercising any right or remedy Lender may have under the Security Documents, the Guaranties, this Loan Agreement and all agreements referenced herein or attached hereto, or any other provision in law or equity.

 

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9.2 Assignment . Borrower’s rights and liabilities under this Loan Agreement are not assignable, in whole or in part, without the prior written consent of Lender, which shall not be unreasonably withheld or delayed. Lender’s rights and obligations under this Loan Agreement are assignable to any successor in interest to Lender. The provisions of this Loan Agreement shall inure to the benefit of and be binding upon the successors and assigns of the parties.

9.3 GAAP . All accounting terminology not specifically defined in this Loan Agreement shall be defined in accordance and consistent with GAAP.

9.4 Reimbursement of Expenses . Borrower shall pay, or reimburse Lender for all reasonable and necessary costs and expenses, including without limitation attorneys’ fees, Architect fees, appraisal fees, fees for the Survey, construction draw processing fees, closing charges, recording and filing fees, insurance premiums and service charges as required by this Loan Agreement, paid or incurred by Lender in connection with (i) the preparation, negotiation, approval, execution and delivery of this Loan Agreement and any other documents and instruments related hereto or thereto; and (ii) the negotiation of any amendments or modifications to any of the foregoing documents, instruments or agreements and the preparation of any and all documents necessary or desirable to effect such amendments or modifications.

9.5 Survival . All agreements, representations and warranties made herein or in any document executed and/or delivered pursuant hereto shall survive the execution of this Loan Agreement, the making of the Loan and the delivery of any document in connection therewith; provided, to the extent that the terms and conditions of any other document pertaining to the Loan shall be deemed by a court of competent jurisdiction to conflict with those of this Loan Agreement, the terms and conditions stated in this Loan Agreement shall govern and control.

9.6 Entire Agreement . This Loan Agreement and the exhibits and attachments attached hereto and the other documents referred to or incorporated herein, contain the entire understanding of the parties with respect to the subject matter hereof. There are no restrictions, promises, warranties, covenants or undertakings other than those expressly set forth herein. This Loan Agreement supersedes all prior negotiations, agreements and undertakings between the parties with respect to such subject matter.

9.7 Notices . All communications or notices required or permitted by this Loan Agreement shall be in writing and shall be deemed to have been given at the earlier of the date when actually delivered to an officer of the other party or when received following deposit in the United States mail, certified or registered mail, postage prepaid, with receipt as evidenced by the return receipt, and addressed as follows, unless and until either of such parties notifies the other in accordance with this section of a change of address:

 

Page 23


If to Borrower or any Guarantor:    SunLink Healthcare Professional Property, LLC
   c/o SunLink Health Systems, Inc.
   900 Circle 75 Parkway
   Suite 1120
   Atlanta, GA 30339
With copies to:    SunLink Health Systems, Inc.
   900 Circle 75 Parkway
   Suite 1120
   Atlanta, GA 30339
   Attn: CFO
  
   Howard E. Turner
   Smith, Gambrell & Russell, LLP
   1230 Peachtree Street, NE
   Suite 3100, Promenade II
   Atlanta, GA 30309
  
If to Lender:    Pioneer Bank, SSB
   Attn: Lance Spruiell
   P O Box 4
   Dripping Springs, TX 78620
  
With a copy to:    Baker & Robertson
   Attn: Rex G. Baker, III
   P O Box 718
   Dripping Springs, Texas 78620

9.8 Payment Obligations Absolute . The payment obligations of Borrower and Guarantor to Lender are absolute and Borrower shall not be permitted any right of set off or equitable adjustment to any payment obligation hereunder.

9.9 Amendment . No amendment of this Loan Agreement shall be effective unless in writing and signed by all of the parties signing this Loan Agreement and, if so required, by the USDA.

9.10 Governing Law . This Loan Agreement shall be governed by the internal laws of the State of Texas. Any provision of this Loan Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforcement of such remaining provisions. Notwithstanding the foregoing, with respect to any remedy pertaining to foreclosure or repossession of Collateral, the laws of the state wherein the Collateral is situated shall govern and control to the extent that applicable real property laws or Article 9 of the Uniform Commercial Code of such state so require.

 

Page 24


9.11 Waiver of Jury Trial . LENDER, BORROWER AND GUARANTOR HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MATTER OF THIS LOAN AGREEMENT. THIS WAIVER IS KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY MADE BY LENDER, BORROWER AND GUARANTOR. LENDER, BORROWER AND GUARANTOR ACKNOWLEDGE THAT NO PERSON ACTING ON BEHALF OF ANOTHER PARTY TO THIS LOAN AGREEMENT HAS MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. LENDER, BORROWER AND GUARANTOR FURTHER ACKNOWLEDGE THAT THEY HAVE BEEN REPRESENTED (OR HAVE HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF THIS LOAN AGREEMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, SELECTED OF THEIR OWN FREE WILL, AND THAT THEY HAVE HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.

9.12 Waivers . No waiver by Lender of any default hereunder shall operate as a waiver of any other default or of the same type of default on a future occasion. No delay on the part of Lender in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude other or further exercise thereof or the exercise of any other right or remedy. No waiver by Lender of any default hereunder shall operate as a waiver of any other default or of the same type of default on a future occasion. No delay on the part of Lender in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude other or further exercise thereof or the exercise of any other right or remedy. The rights and remedies herein specified are cumulative and not exclusive of any rights or remedies that Lender would otherwise have.

9.13 Participation . It is understood that all or a portion of the indebtedness described herein may be sold to a third party. Lender may enter into such a sale of all or a portion of the indebtedness, at its discretion, or grant to any person or entity a participation in any part of the indebtedness described herein. In the event of a sale of a portion of the indebtedness or the granting of a participation interest in favor of a third party, Lender is to act as servicer and lead bank, and all representations, warranties and covenants as set forth in this Loan Agreement shall apply to such participants with the same force and effect as if expressly so made to each participant. Without limiting the foregoing, in the event of a sale or participation by Lender of any or all of the indebtedness, Lender shall provide Borrower with written notice of same, on or before the time any such sale or participation shall be made effective.

9.14 No Obligation to Renew Loan . Notwithstanding references in this Loan Agreement to potential obligations of Borrower to Lender beyond the maturity of the Note, Lender shall have no obligation to renew the Note beyond its maturity. Any such references herein are included solely in the event Lender agrees to renew, extend or modify the Note upon its maturity.

 

Page 25


9.15 Facsimile and Counterpart . This document may be signed in any number of separate copies, each of which shall be effective as an original, but all of which taken together shall constitute a single document. An (i) electronic transmission or other facsimile of this document or any related document and (ii) electronically generated signature on this document or any related document, shall be deemed an original and shall be admissible as evidence of such document and each signer’s execution.

IN WITNESS WHEREOF, the parties have duly executed this Loan Agreement as of the day and year first above written.

 

Page 26


LENDER:       PIONEER BANK, SSB
  By:    
  Name:    
  Title:    

 

Page 27


BORROWER:   SUNLINK HEALTHCARE PROFESSIONAL PROPERTY, LLC
  A Georgia limited liability company
          By its Sole Member:
                  MedCare South, LLC
                  A Georgia limited liability company
                  By its Sole Member:
     SunLink Health Systems, Inc.                                 
     An Ohio corporation
     By:                                                               
     Name:                                                          
     Title:                                                            
GUARANTOR:   MEDCARE SOUTH, LLC
  A Georgia limited liability company
          By its Sole Member:
          SunLink Health Systems, Inc.
          An Ohio corporation
          By:                                                                
          Name:                                                          
          Title:                                                            
ACKNOWLEDGED:           SUNLINK HEALTH SYSTEMS, INC.
          An Ohio corporation
          By:                                                                
          Name:                                                          
          Title:                                                            

 

Page 28

Exhibit 31.1

CERTIFICATION

I, Robert M. Thornton, Jr., the Chief Executive Officer of SunLink Health Systems, Inc. (the “registrant”), certify that:

 

  (1) I have reviewed this quarterly report on Form 10-Q of the registrant for the period ended September 30, 2012 (the “report”);

 

  (2) Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

  (3) Based on my knowledge, the financial statements and other financial information included in this report fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

  (4) The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

  (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  (b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

  (c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of September 30, 2012 (the “Evaluation Date”), based on such evaluation; and

 

  (d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

  (5) The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

  (a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

  (b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

November 14, 2012       /s/ Robert M. Thornton, Jr.
      Robert M. Thornton, Jr.
     

SunLink Health Systems, Inc.

Chief Executive Officer

Exhibit 31.2

CERTIFICATION

I, Mark J. Stockslager, the Chief Financial Officer of SunLink Health Systems, Inc. (the “registrant”), certify that:

 

  (1) I have reviewed this quarterly report on Form 10-Q of the registrant for the period ended September 30, 2012 (the “report”);

 

  (2) Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

  (3) Based on my knowledge, the financial statements and other financial information included in this report fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

  (4) The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

  (a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  (b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

  (c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of September 30, 2012 (the “Evaluation Date”), based on such evaluation; and

 

  (d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

  (5) The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

  (a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

  (b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

November 14, 2012       /s/ Mark J. Stockslager
      Mark J. Stockslager
     

SunLink Health Systems, Inc.

Chief Financial Officer

Exhibit 32.1

SUNLINK HEALTH SYSTEMS, INC.

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the quarterly report of SunLink Health Systems, Inc. (the “Company”) on Form 10-Q for the quarterly period ended September 30, 2012, as filed with the United States Securities and Exchange Commission on the date hereof (the “Report”), I, Robert M. Thornton, Jr., Chief Executive Officer of the Company, do hereby certify, pursuant to 18 U.S.C. 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:

 

  (1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and

 

  (2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

By:   /s/    Robert M. Thornton, Jr.        
 

Robert M. Thornton, Jr.

Chief Executive Officer

November 14, 2012

Exhibit 32.2

SUNLINK HEALTH SYSTEMS, INC.

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the quarterly report of SunLink Health Systems, Inc. (the “Company”) on Form 10-Q for the quarterly period ended September 30, 2012, as filed with the United States Securities and Exchange Commission on the date hereof (the “Report”), I, Mark J. Stockslager, Chief Financial Officer of the Company, do hereby certify, pursuant to 18 U.S.C. 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:

 

  (1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and

 

  (2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

By:   /s/    Mark J. Stockslager
 

Mark J. Stockslager

Chief Financial Officer

November 14, 2012