AMENDMENT NO. 3
THIS AMENDMENT NO. 3 (this "Amendment") dated as of May 28, 1999, to that
Third Amended and Restated Credit Agreement referenced below, is by and among
CENTENNIAL HEALTHCARE CORPORATION, a Georgia corporation (the "Company"), the
subsidiaries of the Company that are borrowers under the Credit Agreement, the
Lenders identified herein, FIRST UNION NATIONAL BANK, as administrative agent
(the "Agent"), and NATIONSBANK, N.A., as Syndication Agent. Terms used but not
otherwise defined shall have the meanings provided in the Credit Agreement.
W I T N E S S E T H
WHEREAS, a revolving credit facility has been established in favor of the
Company and the other Borrowers identified therein pursuant to the terms of that
Third Amended and Restated Credit Agreement dated as of July 31, 1998 (as
amended and modified, the "Credit Agreement") among the Borrowers, the lenders
identified therein, First Union National Bank, as administrative agent, and
NationsBank, N.A., as syndication agent;
WHEREAS, the Company has requested certain modifications to the Credit
Agreement;
WHEREAS, the Lenders have agreed to make the requested modifications on
the terms and conditions set forth herein;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1.1 The following definitions in Section 1.1 of the Credit Agreement are
amended and modified, or added, to read as follows:
"Adjusted Fixed Charges" shall mean the sum of (i) interest expense,
operating lease expense and taxes for the Company and its Consolidated
Subsidiaries for the most-recently ended Rolling Period, plus (ii) current
maturities of Funded Debt for the Company and its Consolidated
Subsidiaries as of the last day of such period; provided, that (A) in the
event that any Permitted Acquisition has been consummated during such
Rolling Period and the pro forma results of the business so acquired are
included in the calculation of Adjusted EBITDAR, the Adjusted Fixed
Charges for such Rolling Period shall be calculated for the Company and
its Consolidated Subsidiaries including such Permitted Acquisition based
on such pro forma combined historical financial statements and (B)
"Adjusted Fixed Charges" shall not include (i) scheduled commitment
reductions occurring hereunder within one year of the date of
determination or (ii) scheduled commitment reductions and/or sinking fund
payments, or the like, under the Lease Financing Facility occurring within
one year of the date of determination.
"Business Day" shall mean any day not a Saturday, Sunday or other day
on which commercial banks in Charlotte, North Carolina, New York, New York
or [______], Pennsylvania are authorized or required by law to close.
"Capital Expenditures" shall mean expenditures for any fixed assets
or improvements, replacements, substitutions or additions thereto, which
have a useful life of more than one (1) year, including direct or indirect
acquisition of such assets; provided that as used herein "Capital
Expenditures" shall not include (i) Permitted Acquisitions or (ii)
expenditures of proceeds of insurance settlements, condemnation awards and
other settlements in respect of lost, destroyed, damaged or condemned
assets, equipment or other property.
"Collateral Security Documents" shall mean collectively, this
Agreement, the Pledge Agreements, the Security Agreement, the Mortgages,
and related stock certificates and stock powers and financing statements,
the Intercreditor Agreement, if any, and any additional documents granting
security to Agent for the ratable benefit of the Secured Parties.
"Commitment" shall mean the maximum aggregate principal amount up to
which the Lenders, on a several basis, have agreed to make Advances under
Section 2 hereof and/or participate in the issuance of Letters of Credit
under Section 2A hereof, being NINETY MILLION DOLLARS ($90,000,000) on the
date hereof, as such maximum aggregate principal amount may be decreased
from time to time pursuant to Paragraph 2.8 hereof, but shall not include
the Tranche B Commitment under Section 2.1A hereof.
"Consolidated Proforma Fixed Charge Coverage Ratio" shall mean, as of
any date of determination, the ratio of Adjusted EBITDAR to Proforma
Adjusted Fixed Charges.
"Eligible Assignee" means (i) a lender hereunder; (ii) an Affiliate
of a lender hereunder or any fund that invests in bank loans and is
managed by an investment advisor to a Lender; and (iii) any other Person
(other than a Person in a Permitted Line of Business) approved by the
Administrative Agent and, unless an Event of Default has occurred and is
continuing at the time any assignment is effected in accordance with
Section 10.2, the Borrowers (such approval by the Administrative Agent or
the Borrowers not to be unreasonably withheld or delayed and such approval
to be deemed given by the Borrowers if no objection is received by the
assigning lender and the Administrative Agent from the Borrowers within
two Business Days after notice of such proposed assignment has been
provided by the assigning lender to the Borrower); provided, however, that
neither the Borrowers nor an Affiliate of any Borrower shall qualify as an
Eligible Assignee.
"Intercreditor Agreement" means any Intercreditor Agreement entered
into by the Secured Parties relating to the Collateral Security Documents.
"Maximum Tranche B Principal Amount" shall mean the maximum principal
amount of the Tranche B Commitment up to which the applicable Tranche B
Lender has agreed to lend funds, as set forth in Schedule 2 attached
hereto.
"Mortgages" means those mortgages, deeds of trust, security deeds or
like instruments given by the Borrowers to secure the Secured Obligations
referenced therein, as amended and modified.
"Proforma Adjusted Fixed Charges" shall mean the sum of (i) Adjusted
Fixed Charges, plus (ii) scheduled commitment reductions hereunder
occurring within one year of the date of determination, plus (iii)
scheduled commitment reductions and/or sinking fund payments, or the like,
under the Lease Financing Facility occurring within one year of the date
of determination.
"Secured Parties" shall mean, individually and collectively, Agent,
the Lenders, the Tranche B Lenders, the Lease Financing Lenders, and, as
defined in the Lease Financing Rules of Usage and Definitions, the
Holders, the Lessor, the Owner Trustee, in its capacity as trustee,
NationsBank, N.A., as holder of that $5 million promissory note dated as
of May 28, 1999, as amended and modified, the Agent and the Syndication
Agent.
"Security Agreement" means the security agreement dated as of May 28,
1999 given by the Borrowers to secure the Secured Obligations referenced
therein, as amended and modified.
"Tranche B Advance" shall mean an advance of funds by the Tranche B
Lenders under the Tranche B Commitment.
"Tranche B Advance Request Form" shall mean a certificate in
substantially the same form as the Advance Request Form with appropriate
modifications to reference Tranche B Advances.
"Tranche B Commitment" shall mean the maximum aggregate principal
amount up to which the Tranche B Lenders, on a several basis, have agreed
to make Tranche B Advances under Section 2.1A hereof, being FIVE MILLION
EIGHT HUNDRED SIXTY-NINE THOUSAND FIVE HUNDRED AND NO/100 DOLLARS
($5,869,500) on May 28, 1999 (being the date of Amendment No. 3), as such
maximum aggregate principal amount may be decreased from time to time
hereunder.
"Tranche B Lenders" shall mean individually and "Tranche B Lenders"
shall mean individually and collectively, the institutions identified on
Schedule 2 attached hereto and their respective successors and assigns in
accordance with Paragraph 10.2 hereof (which as provided therein, requires
the prior written consent of the Borrowers under certain circumstances),
so long as such institution retains any portion of the Tranche B
Commitment or Tranche B Loan hereunder.
"Tranche B Loan" shall mean the outstanding principal balance of
indebtedness advanced under the Tranche B Commitment, together with
interest accrued on and fees and expenses incurred in connection with any
of the foregoing.
"Tranche B Note" shall mean individually, and "Tranche B Notes" shall
mean individually and collectively the Tranche B Notes in substantially
the form of the Notes shown in Exhibit C attached hereto, to be delivered
by the Borrowers to the Tranche B Lenders pursuant to Section 2.1A(b)
hereof, as the same may be amended, modified, extended, consolidated or
restated from time to time.
"Tranche B Pro Rata Share" shall mean, as to a Tranche B Lender at
any time, the ratio which the outstanding principal balance of its portion
of the Tranche B Loan outstanding at such time hereunder bears to the
aggregate outstanding principal balance of the Tranche B Loan at such
time.
"Tranche B Required Lenders" shall mean those Tranche B Lenders
(which may include the Agent in its capacity as a Lender) holding Tranche
B Pro Rata Shares of the Tranche B Loan in excess of fifty percent (50%).
"Tranche B Termination Date" shall mean the earlier of (i) December
31, 1999 or (ii) the date on which the Tranche B Commitment may have been
terminated hereunder.
1.2 A new Section 2.1A is inserted immediately following Section 2.1 to
read as follows:
2.1A Tranche B Commitment.
(a) Tranche B Commitment. From time to time prior to the Tranche
B Termination Date, subject to the provisions below, each Tranche B Lender
severally agrees to make Tranche B Advances to Borrowers up to such
Tranche B Lender's Maximum Tranche B Principal Amount as set forth on
Schedule 2 attached hereto, and borrowers may repay at the offices of
Agent and reborrow under the Tranche B Commitment, up to an aggregate
principal amount not to exceed at any time outstanding the amount of the
Tranche B Commitment as from time to time in effect. The obligations of
the Borrowers hereunder are and shall be joint and several. Each of the
Borrowers hereby irrevocably authorizes and requests that the Company
execute all Tranche B Advance Request Forms, make all elections as to
interest rates and take any other actions required or permitted of
Borrowers hereunder, on its respective behalf, in each case with the same
force and effect as if such Borrower had executed such Tranche B Advance
Request form, made such election or taken such other action itself.
(b) Tranche B Promissory Notes. The indebtedness of the
Borrowers to each Tranche B Lender under the Tranche B Loans will be
evidenced by a Tranche B Note executed by the Borrowers, jointly and
severally, in favor of such Lender. The original principal amount of each
Tranche B Lender's Tranche B Note will be the amount identified in
Schedule 2 attached hereto as its Maximum Tranche B Principal Amount;
provided, however, that notwithstanding the face amount of each such Note,
the Borrowers' liability under each of such Note shall be limited at all
times to the actual indebtedness, principal, interest, fees and expenses,
then outstanding to such Tranche B Lender under the Tranche B Loan.
(c) Tranche B Lenders' Participation. The Tranche B Lenders
shall participate in the Tranche B Loan in the Maximum Tranche B Principal
Amounts and Tranche B Pro Rata Shares set forth in Schedule 2 attached
hereto.
(d) Use of Proceeds. Tranche B Advances under the Tranche B
Commitment may be used for the same purposes provided in Section 2.4 for
Advances.
(e) Repayment. The aggregate outstanding principal balance of
the Tranche B Loan shall be due and payable in full on the Tranche B
Termination Date; provided, however, that notwithstanding the foregoing,
the entire outstanding balance of the Tranche B Loan shall be payable in
full on the date of acceleration of the Tranche B Loan as provided herein.
(f) Interest. The Tranche B Loan shall bear interest at the same
rates and as provided in Section 2.8 for Advances.
(g) Tranche B Advances. Tranche B Advances shall be made as
provided in Section 2.9 for Advances (with appropriate modifications to
refer to the Tranche B Advances).
(h) Adjustments to Tranche B Commitment.
(i) Optional Reduction by Borrowers. Borrowers shall have
the right at any time and from time to time, upon three (3) Business Days'
prior written notice to Agent, to reduce the Tranche B Commitment in whole
or in part pro rata among the Tranche B Lenders in increments of
$1,000,000, without penalty or premium, provided that on the effective
date of such reduction Borrowers shall make a payment to the Agent for the
account of the Tranche B Lenders in an amount, if any, by which the
aggregate outstanding principal balance of the Tranche B Loan exceeds the
amount of the Tranche B Commitment, as then so reduced, together with
accrued interest on the amount so prepaid, and, if a portion is paid prior
to the last day of an Interest Period, any amounts which may be due
pursuant to Paragraph 2.10 hereof.
(ii) Termination by Lenders. Pursuant to Paragraph 8.2
hereof, Tranche B Required Lenders shall have the right to terminate the
Tranche B Commitment at any time, in their sole discretion and upon notice
to Borrowers, upon the occurrence of any Event of Default hereunder. Any
payment following the occurrence of any Event of Default, acceleration and
demand for payment shall include the payment of any amounts due pursuant
to Paragraph 2.10 hereof.
(iii) Pro Rata Reductions in Maximum Tranche B Principal
Amounts; Restoration Only with Consent. Any termination or reduction of
the Tranche B Commitment shall result in pro rata reduction in each
Tranche B Lender's Maximum Tranche B Principal Amount, and shall be
permanent; and the commitment and respective Maximum Principal Amounts
cannot thereafter be restored or increased without the written consent of
all Tranche B Lenders.
(i) Voluntary Prepayments. Voluntary prepayments may be made on
the Tranche B Loan as provided in Section 2.9(a) for Advances.
(j) Funding Costs and Loss of Earnings. The provisions of
Section 2.10 shall apply with equal effect to the Tranche B Loan.
(k) Payments. The provisions of Section 2.11 shall apply with
equal effect to the Tranche B Loan.
(l) Tranche B Commitment Fee. Borrowers shall pay to the Agent,
for the benefit of the Tranche B Lenders, a non-refundable commitment fee
on the average unused portion of each Tranche B Lender's Maximum Tranche B
Principal Amount as from time to time in effect from the date hereof
through the Tranche B Termination Date at the applicable rate, and payable
as, provided in Section 2.12 for the Commitment based on the ratio of
Adjusted Total Debt to Adjusted EBITDAR for the Company and its
Consolidated Subsidiaries.
(m) Regulatory Changes in Capital Requirements. The provisions
of Section 2.16 shall apply with equal effect to the Tranche B Loan.
(n) Taxes. The provisions of Section 2.17 shall apply with equal
effect to the Tranche B Loan.
(o) Representations and Warranties. The representations and
warranties in Section 3 shall be extended also to the Tranche B Lenders
and apply with equal effect to the Tranche B Loan.
(p) Conditions to Tranche B Advances. The provisions of Sections
4.2 and 4.3 shall apply with equal effect to the Tranche B Advances.
(q) Covenants. The affirmative covenants of Section 5 and the
negative covenants of Section 6 shall be extended also to the Tranche B
Lenders and shall remain in effect until the Tranche B Loan is paid in
full and the Tranche B Commitment has been terminated.
(r) Collateral and Rights of Set-Off. The provisions of Section
7 shall be extended also to the Tranche B Lenders and apply with equal
effect to the Tranche B Loan.
1.3 In Section 2.8 of the Credit Agreement, subsection (b) is amended in
its entirety to read as follows:
(b) Scheduled Permanent Reductions in Commitments. The
Commitments hereunder shall be permanently reduced on the dates and in the
amounts shown below:
Date of Reduction Scheduled Commitment
Reduction Amount
December 31, 2000 $ 6,000,000
December 31, 2001 $12,500,000
December 31, 2002 $12,500,000
1.4A Section 2.9(b)(i) is hereby amended and restated to read as follows:
(i) Asset Dispositions. Prior to January 1, 2000 in connection
with each Sale of Material Assets approved by Lenders pursuant to
Paragraph 6.7 hereof and on and after January 1, 2000 in connection with
any sale of assets (whether or not a Sale of Material Assets subject to
approval pursuant to Section 6.7 hereof), the Net Cash Proceeds to the
seller of such transaction shall be paid directly to Agent for the account
of Lenders and applied to the Loan as set forth in subparagraph (iv)
below.
1.4 The last sentence of subclause (iv) of clause (b) of Section 2.9 is
amended in its entirety to read as follows:
Prepayments made under clauses (ii) in respect of the incurrence of
additional Indebtedness or (iii) in respect of equity issuances above
prior to the Termination Date shall not reduce the Commitment and may be
reborrowed in accordance with this Agreement. Prepayments made under
clause (i) shall serve to reduce the Commitment hereunder on a dollar-for-
dollar basis by the amount of prepayment required thereunder.
1.5 The following sentence is added to the end of Section 4.3 of the
Credit Agreement:
Each request for an Advance (including extensions and conversions of
an Advance) or a Letter of Credit and each acceptance by the Borrower of
an Advance (including extensions and conversions of an Advance) or a
Letter of Credit shall be deemed to constitute a representation and
warranty by the Borrower as of the date of such request or acceptance of
an Advance or Letter of Credit that the applicable conditions set forth in
the foregoing sentence have been satisfied.
1.6 Section 5.2 is amended to read as follows:
(a) Quarterly Financial Statements. Furnish Lenders within
forty-five (45) days of the end of each of the first three fiscal quarters
of each fiscal year with unaudited quarterly consolidated and
consolidating financial statements of the Company and its Consolidated
Subsidiaries, in form and substance as reasonably required by Lenders,
including a balance sheet, a consolidated statement of income and a
statement of cash flows, and a certificate signed by the chief financial
or chief executive officer of Borrowers stating that the financial
statements fairly present the financial condition of the Company and its
Consolidated Subsidiaries as of the date and for the periods covered and
were prepared in accordance with GAAP consistently applied, subject to
normal year-end audit adjustments.
(b) Monthly Financial Statements. Furnish Lenders within thirty
(30) days of the end of each fiscal month with unaudited company-prepared
consolidated and consolidating financial statements of the Company and its
Consolidated Subsidiaries, in form and substance as reasonably required by
Lenders, including a balance sheet, a consolidated statement of income and
a statement of cash flows, and a certificate signed by the chief financial
or chief executive officer of Borrowers stating that the financial
statements fairly present the financial condition of the Company and its
Consolidated Subsidiaries as of the date and for the periods covered in
accordance with GAAP consistently applied excluding footnotes and
narrative disclosures and subject to normal quarterly and year-end audit
adjustments and accruals.
1.7 Section 5.12 of the Credit Agreement is amended to read as follows:
5.12 Additional Collateral Documentation, Etc.
(a) The Borrowers shall, within 45 days from the date of Amendment
No. 3, in the case of unencumbered properties, and within 90 days from the
date of Amendment No. 3, in the case of encumbered properties, deliver to
the Agent, with respect to all real property owned by the Borrowers,
Mortgages and such other documents, instruments and other items of the
types required by the Agent, including, but not limited to, appropriate
UCC-1 financing statements, real estate title insurance policies,
environmental reports, landlord's waivers and favorable opinions of
counsel, all in form, content and scope reasonably satisfactory to the
Agent.
(b) As soon as practicable and in any event within 30 days after any
Person becomes a direct or indirect Subsidiary of any Borrower, the
Borrowers shall provide the Agent with written notice thereof setting
forth information in reasonable detail describing all of the assets of
such Person and shall (i) if such Person is a Domestic Subsidiary, cause
such Person to execute a joinder agreement, in form and substance
satisfactory to the Agent, relating to this Credit Agreement, the Notes,
the Security Agreement and the Pledge Agreement, (ii) if such Person is a
Domestic Subsidiary, cause 100% of the issued and outstanding capital
stock (or other ownership interest) of such Person to be delivered to the
Agent (together with undated stock powers signed in blank) and pledged to
the Agent pursuant to an appropriate pledge agreement(s) in substantially
the form of the Pledge Agreement and otherwise in form acceptable to the
Agent, (iii) if such Person is a direct Foreign Subsidiary of any
Borrower, cause 65% (or such greater percentage which would not result in
material adverse tax consequences) of the issued and outstanding capital
stock (or other ownership interest) entitled to vote (within the meaning
of Treas. Reg. Section 1.956-2(c)(2)) and 100% of the issued and
outstanding capital stock (or other ownership interest) not entitled to
vote (within the meaning of Treas. Reg. Section 1.956-2(c)(2)) of such
Person to be delivered to the Agent (together with undated stock powers
signed in blank (unless, with respect to a Foreign Subsidiary, such stock
powers are deemed unnecessary by the Agent in its reasonable discretion
under the law of the jurisdiction of incorporation of such Person)) and
pledged to the Agent pursuant to an appropriate pledge agreement(s) in
substantially the form of the Pledge Agreement and otherwise in form
acceptable to the Agent and (iv) cause such Person to (A) if such Person
is a Domestic Subsidiary which has any real property, deliver to the
Agent, with respect to such real property, Mortgages and such other
documents, instruments and other items of the types required by the Agent
all in form, content and scope reasonably satisfactory to the Agent and
(B) deliver such other documentation as the Agent may reasonably request
in connection with the foregoing, including, without limitation,
appropriate UCC-1 financing statements, real estate title insurance
policies, environmental reports, landlord's waivers, certified resolutions
and other organizational and authorizing documents of such Person,
favorable opinions of counsel to such Person (which shall cover, among
other things, the legality, validity, binding effect and enforceability of
the documentation referred to above and the perfection of the Agent's
liens thereunder), all in form, content and scope reasonably satisfactory
to the Agent.
(c) If a Borrower shall (a) acquire any intellectual property,
securities, instruments, chattel paper or other personal property required
to be pledged to the Agent hereunder or under any of the Collateral
Security Documents or (b) acquire or lease any real property, the
Borrowers shall promptly notify the Agent of same. Each Borrower shall
take such action at its own expense as requested by the Agent to ensure
that the Agent has a first priority perfected lien to secure the
obligations of the Borrowers under the Loan Documents in (i) all owned
real property and personal property of the Borrowers located in the United
States, and (ii) to the extent deemed to be material by the Agent in its
sole reasonable discretion, all other owned real and personal property of
the Borrowers.
(d) The Borrowers shall promptly execute and deliver at its expense
all further instruments and documents and take all further action that may
be necessary and desirable or that the Agent may reasonably request in
order to (i) perfect and protect the security interest created under the
Collateral Security Documents in the Collateral (as defined in the
Collateral Security Documents) and (ii) enable the Agent to exercise and
enforce its rights and remedies under the Loan Documents in respect of the
Collateral (as defined in the Collateral Security Documents).
1.8 Sections 5.15, 5.16 and 5.17 are amended, and a new Section 5.17A is
added, to read as follows:
5.15 Funded Debt to Capital Ratio. Maintain as of the last day of
each fiscal quarter of Funded Debt to Capital of not more than:
Fiscal Quarter Ended Required
Ratio
March 31, 1999 0.75:1
June 30, 1999 0.75:1
September 30, 1999 0.75:1
December 31, 1999 0.75:1
March 31, 2000 0.70:1
June 30, 2000 0.70:1
September 30, 2000 0.70:1
December 31, 2000 0.65:1
March 31, 2001 and thereafter 0.60:1
5.16 Adjusted Total Debt to Adjusted EBITDAR. Maintain as of the last
day of each fiscal quarter set forth in the left hand column below a ratio
of Adjusted Total Debt to Adjusted EBITDAR for the Company and its
Consolidated Subsidiaries of no more than the applicable ratio set forth
in the right hand column below:
Fiscal Quarter Ended Required
Ratio
March 31, 1999 5.80:1
June 30, 1999 5.80:1
September 30, 1999 5.80:1
December 31, 1999 5.60:1
March 31, 2000 5.50:1
June 30, 2000 5.25:1
September 30, 2000 5.25:1
December 31, 2000 5.00:1
March 31, 2001 and thereafter 4.50:1
5.17 Fixed Charge Coverage Ratio. Maintain as of the last day of each
fiscal quarter a Consolidated Fixed Charge Coverage Ratio of not less
than:
Fiscal Quarter Ended Required
Ratio
March 31, 1999 1.35:1
June 30, 1999 through December 31, 2000 1.35:1
March 31, 2001 and thereafter 1.50:1
5.17A Proforma Fixed Charge Coverage Ratio. Maintain as of the last
day of each fiscal quarter a Consolidated Proforma Fixed Charge Coverage
Ratio of not less than 1.0:1.
1.9 Any requirement for additional interest rate protection under Section
5.22 is hereby waived.
1.10 In Section 6.1, clause (i) is amended in its entirety to read as
follows:
(i) Indebtedness pursuant to the Lease Financing Facility, pursuant
to the Loan from the Lenders hereunder and pursuant to the Tranche B Loan
from the Tranche B Lenders hereunder;
1.11 In Section 6.2, the "and" immediately preceding clause (iv) is
deleted and a new clause (v) is added at the end of clause (iv) to read as
follows:
and (v) guaranties by Borrowers of the Tranche B Loan.
1.12 In Section 6.4, clause (i) is amended in its entirety to read as
follows:
(i) liens in favor of the Lenders in respect of the Loan hereunder,
in favor of the Tranche B Lenders in respect of the Tranche B Loan
hereunder and in favor of the Lease Financing Lenders and the Holders in
respect of the Lease Financing Facility, as security for the Loan, the
Tranche B Loan and the Lease Financing Facility;
1.13 Section 6.8(a)(iv), and all language thereafter until the beginning
of 6.8(b), is hereby deleted and replaced with a new Section 6.8(a)(iv) to
read as follows:
"(iv) any other acquisition approved in writing by the Required Lenders
and by the Tranche B Required Lenders".
1.14 In Section 8.1, new subsections (m), (n) and (o) are added, to read
as follows:
(m) if Borrowers shall fail to pay (i) any installment of principal
on the Tranche B Loan when due; or (ii) any payment of interest or any
other sum payable to the Tranche B Lenders hereunder or otherwise within
three (3) days of when due;
(n) if any Borrower shall default in the performance of any other
agreement or covenant contained herein (other than as provided in
subparagraphs (a), (b), (d) or (m) hereof) or in any document executed or
delivered in connection herewith, including without limitation any
Collateral Security Document and such default shall continue uncured for
twenty (20) days after notice thereof to any Borrower given by Agent
pursuant to the direction of the Tranche B Required Lenders;
(o) if any event or condition shall occur or exist with respect to
any activity or substance regulated under the Environmental Control
Statutes and as a result of such event or condition, Borrowers have
incurred or in the opinion of Tranche B Required Lenders are reasonably
likely to incur a liability or liabilities in excess of Five Hundred
Thousand Dollars ($500,000) during any consecutive twelve (12) month
period.
1.15 In Section 8.2, the existing paragraph is renumbered as clause "(i)"
and a new clause (ii) is added to read as follows:
(ii) Upon the happening of any Event of Default and at any time
thereafter, at the election of Tranche B Required Lenders, and by notice
by Agent to Borrowers (except if an Event of Default described in
Paragraph 8.l(j) shall occur in which case acceleration shall occur
automatically without notice), the Tranche B Required Lenders may declare
the entire unpaid balance, principal, interest and fees, of all
Indebtedness of Borrowers to the Tranche B Lenders, hereunder or
otherwise, to be immediately due and payable. Upon such declaration, the
Tranche B Commitment shall immediately and automatically terminate and
Tranche B Lenders shall have no further obligation to make any Tranche B
Advance and, subject only to the terms of the Intercreditor Agreement, if
any, or the terms of the Collateral Security Documents, they shall have
the immediate right to enforce or realize on any Collateral in a
commercially reasonable manner in any manner or order they deem expedient
without regard to any equitable principles of marshaling or otherwise.
Whether such a declaration has been made by Tranche B Required Lenders
that the Indebtedness is due and payable following an Event of Default,
the Tranche B Required Lenders may terminate the Tranche B Commitment at
any time following an Event of Default by notice thereof by Agent to
Borrowers. In addition to any rights granted hereunder or in any documents
delivered in connection herewith, including without limitation, the
Collateral Security Documents, Tranche B Lenders shall have all the rights
and remedies granted by any applicable law, all of which shall be
cumulative in nature, subject only to the terms of the Intercreditor
Agreement, if any, or the terms of the Collateral Security Documents.
1.16 In Section 9.1, the existing paragraph is renumbered as clause "(i)",
the phrase in the second line of clause (i) "to Lenders on the basis" is
amended to read "in respect of the Loan to the Lenders on the basis" and a
new clause (ii) is added to read as follows:
(ii) Agent shall apply all payments of principal, interest,
commitment fee or other amounts hereunder made to Agent by or on behalf of
Borrowers, in respect of the Tranche B Loan to the Tranche B Lenders on
the basis of their Tranche B Pro Rata Shares of the outstanding principal
balance of the Tranche B Loan, except for (a) the fees payable under
Paragraph 2.14 hereof, which shall be paid solely to Agent. Such
distribution of payments shall be made promptly in federal funds
immediately available at the office of each Lender set forth above.
1.17 In Section 9.2, the existing paragraph is renumbered as clause "(i)"
and a new clause (ii) is added to read as follows:
(ii) In the event a Tranche B Lender, by exercise of its right of
set-off, or otherwise, receives any payment of Indebtedness owing to it,
hereunder or otherwise, in an amount greater than its Tranche B Pro Rata
Share of such payment based upon the Tranche B Lenders' respective shares
of principal Indebtedness outstanding hereunder immediately before such
payment, such Tranche B Lender shall purchase a portion of the
Indebtedness hereunder owing to each other Tranche B Lenders so that after
such purchase each Tranche B Lender shall hold its Tranche B Pro Rata
Share of all the Indebtedness then outstanding hereunder, provided that if
all or any portion of such excess payment is thereafter recovered from
such Tranche B Lender, such purchase shall be rescinded and the purchase
price restored to the extent of any such recovery, with each Tranche B
Lender paying its Tranche B Pro Rata Share of any interest which the
Tranche B Lender from which such recovery is obtained is required to pay.
1.18 In Section 9.3, the existing paragraph is renumbered as clause "(i)"
and a new clause (ii) is added to read as follows:
(ii) No modification or amendment hereof, consent hereunder or waiver
of any Event of Default shall be effective except by written consent of
the Tranche B Required Lenders; provided, however, that the written
consent of each of the Tranche B Lenders directly affected thereby shall
be required to (i) modify, amend, waive, discharge, terminate or suspend
compliance with (A) any rate of interest applicable to the Tranche B Loan
to the extent it is proposed to be decreased, (B) the amount of the
Tranche B Commitment, to the extent it is proposed to be increased, and
the Tranche B Lenders' respective shares thereof; (C) the dates or amounts
of payment of the Tranche B Loan, (D) the commitment fee set forth in
Section 2.1A(l) hereof or other amounts payable by Borrowers in respect of
the Tranche B Loan hereunder or dates on which they are paid except if
payable solely to the Agent, to the extent any such amount is proposed to
be postponed or decreased, (E) the definition of Tranche B Required
Lenders, or (F) this clause (ii) of this Paragraph 9.3; or (ii) the
release of any Borrower having net equity value in excess of $500,000 or
the release of any Collateral valued in excess of $500,000 in the
aggregate in any calendar year other than in the ordinary course of
business.
1.19 In Section 9.4, the existing paragraph is renumbered as clause "(i)"
and a new clause (ii) is added to read as follows:
(ii) The obligations of the Tranche B Lenders hereunder are several,
and each Tranche B Lender hereunder shall not be responsible for the
obligations of the other Tranche B Lenders hereunder, nor will the failure
of one Tranche B Lender to perform any of its obligations hereunder
relieve the other Tranche B Lenders from the performance of their
respective obligations hereunder.
1.20 The provisions of Sections 9.5 through 9.18, and all of the
provisions of Section 10, shall apply with equal effect to the Tranche B
Lenders and the Tranche B Loan.
1.21 Section 10.2 is amended to read as follows:
10.2 Participations and Assignments.
(a) Each Lender may assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Credit Agreement
(including, without limitation, all or a portion of its Loans, its Notes,
and its Commitment); provided, however, that
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender, an
Affiliate of an existing Lender or any fund that invests in bank
loans and is advised or managed by an investment advisor to an
existing Lender or an assignment of all of a Lender's rights and
obligations under this Credit Agreement, any such partial assignment
shall be in an amount at least equal to $5,000,000 (or, if less, the
remaining amount of the Commitment being assigned by such Lender) or
an integral multiple of $1,000,000 in excess thereof;
(iii) any such assignment shall be of a constant, not varying,
percentage of (A) all of the Obligations and Commitments hereunder
and (B) all of the Tranche B Loans and Tranche B Commitments
hereunder; and
(iv) the parties to such assignment shall execute and deliver to
the Agent for its acceptance an Assignment and Acceptance in the form
of Exhibit K hereto, together with any Note subject to such
assignment and a processing fee of $3,500.
Upon execution, delivery, and acceptance of such Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the
extent of such assignment, have the obligations, rights, and benefits of a
Lender hereunder and the assigning Lender shall, to the extent of such
assignment, relinquish its rights and be released from its obligations
under this Credit Agreement. Upon the consummation of any assignment
pursuant to this Section 10.2(a), the assignor, the Agent and the
Borrowers shall make appropriate arrangements so that, if required, new
Notes are issued to the assignor and the assignee. If the assignee is not
a United States person under Section 7701(a)(30) of the Code, it shall
deliver to the Borrower, the Guarantors and the Agent certification as to
exemption from deduction or withholding of Taxes.
(b) The Agent shall maintain a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of the
names and addresses of the Lenders and the Commitment of, and principal
amount of the Loans owing to, each Lender from time to time (the
"Register"). The entries in the Register shall be conclusive and binding
for all purposes, absent manifest error, and the Borrower, the Agent and
the Lenders may treat each Person whose name is recorded in the Register
as a Lender hereunder for all purposes of this Credit Agreement. The
Register shall be available for inspection by the Borrowers or any Lender
at any reasonable time and from time to time upon reasonable prior notice.
Any assignment of any Loan or other obligations shall be effective only
upon an entry with respect thereto being made in the Register.
(c) Upon its receipt of an Assignment and Acceptance executed by the
parties thereto, together with any Note subject to such assignment and
payment of the processing fee, the Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit
K hereto, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the parties thereto.
(d) Each Lender may sell participations to one or more Persons in all
or a portion of its rights, obligations or rights and obligations under
this Credit Agreement (including all or a portion of its Commitment or its
Loans); provided, however, that (i) such Lender's obligations under this
Credit Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) the participant shall be entitled to the benefit of the
yield protection provisions contained in Section 2.10, Section 2.16 and
Section 2.17, and the right of set-off contained in Section 7, and (iv)
the Borrowers shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under this Credit
Agreement, and such Lender shall retain the sole right to enforce the
obligations of the Borrowers relating to the Loans and other obligations
owing to such Lender and to approve any amendment, modification, or waiver
of any provision of this Credit Agreement (other than amendments,
modifications, or waivers decreasing the amount of principal of or the
rate at which interest is payable on such Loans or Notes, extending any
scheduled principal payment date or date fixed for the payment of interest
on such Loans or Notes, or extending its Commitment).
(e) Notwithstanding any other provision set forth in this Credit
Agreement, any Lender may at any time assign and pledge all or any portion
of its Loans and its Notes to any Federal Reserve Bank as collateral
security pursuant to Regulation A and any Operating Circular issued by
such Federal Reserve Bank. No such assignment shall release the assigning
Lender from its obligations hereunder.
(f) Any Lender may furnish any information concerning the members of
the Consolidated Group in the possession of such Lender from time to time
to assignees and participants (including prospective assignees and
participants), subject, however, to the provisions of Section 10.2 hereof.
1.22 Schedule 2 to the Credit Agreement is (i) updated to reflect updated
information regarding the Lenders, their respective Maximum Principal
Amounts and Percentages of Commitment, and (ii) amended and restated to
include the Tranche B Lenders, their respective Maximum Tranche B
Principal Amounts and Percentages of Tranche B Commitment, as attached.
1.23 The Borrowers will, in consideration of the establishment of the
Tranche B Commitment hereby, permanently terminate commitments under the
Lease
Financing Facility in an aggregate amount equal to the aggregate Tranche B
Commitment promptly upon the effectiveness of this Amendment and
establishment of the Tranche B Commitment hereunder.
1.24 The Lenders, by action of the Required Lenders, acknowledge and
consent to the terms of, and authorize and direct the Agent to take
appropriate action to enter into, the Security Agreement and the First
Amendment to Pledge Agreement, forms of which have been provided to the
Lenders.
1.25 The Borrowers covenant and agree that they will deliver Mortgages on
those property locations agreed upon with the Agent and the Required
Lenders (i) within 45 days of the date hereof, in the case of unencumbered
properties, and (ii) within 90 days of the date hereof, in the case of
encumbered properties, together with, in each case certificates of
insurance evidencing flood hazard insurance (for improvements located in
areas having "special flood hazards"), casualty insurance (including
builders' risk and all-risk permanent policies) and liability conforming
to the requirements of this Credit Agreement and the other Credit
Documents, showing the Agent as sole loss payee with respect to the flood
hazard and casualty insurance and as additional insured with respect to
liability insurance, together with evidence of payment of premiums
thereon. Failure to provide the Mortgages and related items in a timely
manner will constitute an Event of Default under the Credit Agreement.
2. This Amendment shall be effective upon satisfaction of the following
conditions:
(a) execution of this Amendment by the Borrowers and the Required
Lenders;
(b) Receipt of the entire amount of the Tranche B Commitments and
execution of this Amendment by all of the Tranche B Lenders and delivery
of executed Tranche B Notes;
(c) receipt by the Agent of corporate resolutions, incumbency
certificates, corporate documents and legal opinions in form and substance
reasonably satisfactory to the Agent and the Required Lenders;
(d) receipt by the Agent of the Security Agreement, the First
Amendment to Pledge Agreement and UCC financing statements relating
thereto, in each case duly executed by the Borrowers;
(e) receipt by the Agent of certificates of insurance on personal
property;
(f) receipt by the Agent of (i) a waiver fee of twelve and one-half
basis points (0.125%) on the Commitments of the Lenders consenting to the
Waiver dated May 15, 1999 and an amendment fee of thirty-seven and one-
half basis points (0.375%) on the Commitments of Lenders consenting to
this Amendment, and (ii) a commitment fee of thirty-seven and one-half
basis points (0.375%) on the Tranche B Commitments of the Tranche B
Lenders; and
(g) receipt by the Agent if a copy of the executed Amendment to the
Lease Financing Facility providing, among other things, for the scheduled
annual escrow payments, and evidence of payment to the lenders and holders
thereunder of a waiver fee of twelve and one-half basis points (0.125%) on
the Commitments thereunder (after giving effect to the reduction of
commitments contemplated in Section 1.24 hereof) and an amendment fee of
thirty-seven and one-half basis points (0.375%) on the commitments
thereunder (after giving effect to the reduction of commitments
contemplated in Section 1.24 hereof).
3. Except as modified hereby, all of the terms and provisions of the
Credit Agreement (including Schedules and Exhibits) shall remain in full
force and effect.
4. The Borrowers agree to pay all reasonable costs and expenses of the
Agent in connection with the preparation, execution and delivery of this
Amendment, including without limitation the reasonable fees and expenses
of Xxxxx & Xxx Xxxxx, PLLC.
5. This Amendment may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original and it
shall not be necessary in making proof of this Amendment to produce or
account for more than one such counterpart.
6. This Amendment shall be deemed to be a contract made under, and for all
purposes shall be construed in accordance with the laws of the
Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Amendment No. 3 to be duly executed and delivered as of the date first
above written.
CENTENNIAL HEALTHCARE TRANSITIONAL FINANCIAL SERVICES,
INC. CORPORATION PARAGON REHABILITATION, INC.
CENTENNIAL/ASHTON PROPERTIES THS PARTNERS I, INC.
CORPORATION THS PARTNERS II, INC.
CENTENNIAL HEALTHCARE TRANSITIONAL HEALTH PARTNERS
PROPERTIES CORPORATION BY: THS PARTNERS I, INC. and THS
CENTENNIAL HEALTHCARE PARTNERS II, INC., its
general partners
MANAGEMENT CORPORATION PARKVIEW PARTNERSHIP
CENTENNIAL ACQUISITION BY: THS PARTNERS I, INC. and
THS CORPORATION PARTNERS II, INC., its
general partners
CENTENNIAL PROFESSIONAL TOTAL CARE CONSOLIDATED, INC.
THERAPY SERVICES CORPORATION TOTAL CARE, INC.
CENTENNIAL HEALTHCARE TOTAL HEALTH CARE SERVICES, INC.
INVESTMENT CORPORATION TOTAL CARE OF THE CAROLINAS, INC.
CENTENNIAL HEALTHCARE HOSPITAL HCC HOME HEALTH OF LOUISIANA, INC.
CORPORATION
TRANSITIONAL HEALTH SERVICES, INC.
Attest:
By:/s/ Xxxxx Xxxxxxxx By:/s/ Xxxx X. Xxxx
Name: Xxxxx Xxxxxxxx Name: Xxxx X. Xxxx
Title:Asst. Secretary Title: EVP
FIRST UNION NATIONAL BANK, for itself
and as Agent
By:/s/ J. Xxxx Xxxxxxx
Name:J. Xxxx Xxxxxxx, Xx.
Title:Vice President
NATIONSBANK, N.A., for itself and as
Syndication Agent
By:/s/J. Xxxxxx Xxxxx
Name:J. Xxxxxx Xxxxx
Title:Vice President
AMSOUTH BANK
By:/s/ J. Xxx Xxxxxxx
Name:J. Xxx Xxxxxxx
Title:Asst. Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By:/s/ Xxxxxxx Tavanqar
Name:Xxxxxxx Tavanqar
Title:Senior Vice President
NATIONAL CITY BANK OF KENTUCKY
By:/s/ Xxxxxxx X. Xxxxx
Name:Xxxxxxx X. Xxxxx
Title:Vice President
WACHOVIA BANK, N.A.
By:/s/ Xxxx X.Xxxxxxx
Name:Xxxx X Xxxxxxx
Title:Vice President
SCOTIABANK INC.
By:/s/ Xxxxxxx X. Xxxxxxxx
Name:Xxxxxxx X. Xxxxxxxx
Title:Relationship Manager
COMERICA BANK
By:/s/ Xxxxx X. Xxxxx
Name:Xxxxx X. Xxxxx
Title:Asst. V.P.
Schedule 2
Schedule of Lenders
and respective
Maximum Principal Amounts and Percentages of Commitments
Existing Commitments Tranche B Commitments
Maximum Maximum Tranche B
Principal Amount Percent Principal Amount Percent
NationsBank, N.A. $15,750,000 17.50% $1,174,062.50 21.81%
Xxxxxxx Xxxxx Xxxxxxxx
000 Xxxxxxxxx Xxxxxx NE
GA1-006-19-22
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
First Union National Bank $15,750,000 17.50% $1,174,062.50 21.81%
000 Xxxxx Xxxxxxx Xxxxxx
Xxx Xxxxx Xxxxx Xxxxxx, XX-0
Xxxxxxxxx, XX 00000
Attn: Xxxx XxxXxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
AmSouth Bank $11,250,000 12.50% $812,500.00 15.10%
0000 Xxxxx Xxxxxx North
SONAT - 7th Floor
Birmingham, AL 35203
Attn: Xxx XxXxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Credit Lyonnais $11,250,000 12.50% $788,125.00 14.64%
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxx Xxxxxx / Xxxxx Xxxxxxx
Tel: (000) 000-0000 (Xx. Xxxxxx)
Fax: (000) 000-0000
RaboBank $9,000,000 10.00% $0 0%
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Comerica Bank $6,750,000 7.50% $472,875.00 8.79%
000 Xxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
National City Bank of $6,750,000 7.50% $472,875.00 8.79%
Kentucky
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Scotiabanc Inc. $6,750,000 7.50% $487,500.00 9.06%
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Wachovia Bank, N.A. $6,750,000 7.50% $0 .0%
MC: GA212
000 Xxxxxxxxx Xxxxxx XX
Xxxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
------------- -------- ------------ ---------
TOTAL $90,000,000 100.00% $5,382,000.00 100.00%
