1
EXHIBIT 10.1
EIGHTEENTH AMENDMENT TO CREDIT AGREEMENT
AMONG
XXXXXXX ENTERPRISES, INC.,
XXXXXXX HEALTH AND REHABILITATION SERVICES, INC.,
THE SUBSIDIARY GUARANTORS LISTED HEREIN,
THE LENDERS LISTED HEREIN,
BANK OF MONTREAL, AS CO-AGENT,
AND
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
LOS ANGELES AGENCY, AS AGENT
DATED AS OF SEPTEMBER 30, 1996
THIS EIGHTEENTH AMENDMENT, dated as of September 30, 1996 (this
"AMENDMENT"), is entered into by and among XXXXXXX ENTERPRISES, INC., a
Delaware corporation ("BEI"), XXXXXXX HEALTH AND REHABILITATION SERVICES, INC.
(formerly known as Xxxxxxx California corporation), a California corporation
("BORROWER"), the SUBSIDIARY GUARANTORS listed on the signature pages hereof
(together with BEI, the "GUARANTORS"), the LENDERS listed on the signature
pages hereof (collectively, the "LENDERS"), BANK OF MONTREAL as co-agent for
the Lenders (in such capacity, the "CO-AGENT"), and THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., Los Angeles Agency ("LTCB"), as agent for the Lenders (in such
capacity, the "AGENT"). This Amendment amends the Credit Agreement dated March
24, 1992 by and among BEI, Borrower, Co-Agent, Agent and Lenders, as amended by
a First Amendment to Credit Agreement dated April 7, 1992, a Second Amendment
to Credit Agreement dated as of May 11, 1992, a Third Amendment to Credit
Agreement dated as of March 1, 1993, a Fourth Amendment to Credit Agreement
dated as of November 1, 1993, a Fifth Amendment to Credit Agreement dated as of
March 21, 1994, a Sixth Amendment to Credit Agreement dated as of April 22,
1994, a Seventh Amendment to Credit Agreement dated as of May 2, 1994, an
Eighth Amendment to Credit Agreement dated as of November 1, 1994, a Ninth
Amendment to Credit Agreement dated as of November 9, 1994, a Tenth Amendment
to Credit Agreement dated as of December 6, 1994, an Eleventh Amendment to
Credit Agreement dated as of March 27, 1995, a Twelfth Amendment to Credit
Agreement dated as of October 23, 1995, a Thirteenth Amendment to Credit
Agreement dated as of September 29, 1995, a Fourteenth Amendment to Credit
Agreement dated as of December 7, 1995, a Fifteenth Amendment to Credit
Agreement dated as of February 12, 1996, a Sixteenth Amendment to Credit
Agreement dated as of June 5, 1996 and a Seventeenth Amendment to Credit
Agreement dated as of June 28, 1996 (said Credit Agreement, as so amended, the
"CREDIT AGREEMENT"), as set forth herein. Capitalized terms used herein without
definition shall have the same meanings herein as set forth in the Credit
Agreement.
2
RECITALS
WHEREAS, Borrower desires to amend the Credit Agreement in certain
respects;
WHEREAS, Lenders, Co-Agent and Agent have agreed to approve such
amendments; and
WHEREAS, Guarantors desire to reaffirm the effectiveness respectively
of the Subsidiary Guaranty Agreement and the BEI Guaranty Agreement.
NOW, THEREFORE, in consideration of the terms and conditions herein
contained, the parties agree as follows:
AGREEMENT
SECTION 1. AMENDMENT TO SUBSECTION 1.1 OF THE CREDIT AGREEMENT
Subsection 1.1 of the Credit Agreement is hereby amended by adding the
following proviso at the end of the definition of "Consolidated Capital
Expenditures":
", provided, that for purposes of this clause (B) up to
$20,000,000 to be borrowed from Bank United for the purpose of
financing the construction of nursing homes shall, if such Debt is
incurred in October 1996, be deemed to have been incurred in September
1996."
SECTION 2. REPRESENTATIONS AND WARRANTIES
In order to induce Agent, Co-Agent and Lenders to enter into this
Amendment, each of BEI and Borrower represents and warrants to Agent, Co-Agent
and Lenders that:
(a) The representations and warranties of each Loan Party
contained in the Credit Agreement are true, correct and complete in all
material respects on and as of the date hereof to the same extent as though
made on and as of the date hereof except to the extent that such
representations and warranties specifically relate to an earlier date, in which
case they are true, correct and complete in all material respects as of such
earlier date;
(b) No event has occurred and is continuing or would result from
the execution of this Amendment that constitutes an Event of Default or
Potential Event of Default;
(c) Each Loan Party has performed in all material respects all
agreements and satisfied all conditions that the Credit Agreement and this
Amendment provide shall be performed by it on or before the date hereof;
3
(d) The execution, delivery and performance of this Amendment and
the Credit Agreement as amended by this Amendment, by each Loan Party are
within the corporate power and authority of each such Loan Party and, as of the
Eighteenth Amendment Effective Date (as hereinafter defined), will be duly
authorized by all necessary corporate action on the part of each Loan Party,
and this Amendment, as of the Eighteenth Amendment Effective Date, is duly
executed and delivered by each of such Loan Parties and will constitute a valid
and binding agreement of each of such Loan Parties, enforceable against
such Loan Parties in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable
principles relating to or limiting creditors' rights generally or by equitable
principles relating to enforceability. The Credit Agreement constitutes and, as
of the Eighteenth Amendment Effective Date, the Credit Agreement, as amended by
this Amendment, will constitute, a valid and binding agreement of BEI and
Borrower, enforceable against BEI and Borrower in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws or equitable principles, relating to or limiting creditors'
rights generally or by equitable principles relating to enforceability;
(e) The execution and delivery by each Loan Party of this
Amendment and the performance by each Loan Party of the Credit Agreement as
amended by this Amendment, do not and will not (i) violate any provision of any
law or any governmental rule or regulation applicable to any Loan Party, the
Certificate or Articles of Incorporation or Bylaws of any Loan Party or any
order, judgment or decree of any court or other agency of government binding on
any Loan Party, (ii) conflict with, result in a breach of or constitute (with
due notice or lapse of time or both) a default under any instrument that is
material, individually or in the aggregate, and that is binding on such Loan
Party, (iii) result in or require the creation or imposition of any Lien upon
any of the properties or assets of any Loan Party (other than any Liens created
under any of the Loan Documents in favor of Agent on behalf of Lenders), or
(iv) require any approval or consent of any Person under any instrument that is
material, individually or in the aggregate, and that is binding on such Loan
Party; and
(f) The execution and delivery by each Loan Party of this
Amendment and the performance by each Loan Party of the Credit Agreement as
amended by this Amendment, do not and will not require any registration with,
consent or approval of, or notice to, or other action to, with or by, any
federal, state or other governmental authority or regulatory body.
4
SECTION 3. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon delivery
to Agent for Lenders by BEI, Borrower and each Subsidiary Guarantor (with
sufficient originally executed copies for each Lender) of executed counterparts
of this Amendment and delivery by Requisite Lenders to Agent of a counterpart
of this Amendment originally executed by a duly authorized officer of such
Lender or by telex or telephonic confirmation, the date of the last such
delivery being referred to herein as the "EIGHTEENTH AMENDMENT EFFECTIVE
DATE").
SECTION 4. THE GUARANTIES
Each Guarantor acknowledges that it has reviewed the terms and
provisions of the Credit Agreement and this Amendment and consents to the
amendment of the Credit Agreement effected pursuant to this Amendment. Each
Guarantor hereby confirms that the Guaranty Agreement and the Collateral
Documents to which it is a party or otherwise bound and all Collateral
encumbered thereby will continue to guaranty or secure, as the case may be, to
the fullest extent possible the payment and performance of all Obligations,
Guarantied Obligations (as defined in the applicable Guaranty Agreements) and
Secured Obligations (as defined in the Collateral Documents), as the case may
be, including, without limitation, the payment and performance of all
Obligations of Borrower now or hereafter existing under or in respect of the
Credit Agreement as amended by this Amendment and the Notes defined therein.
Each Guarantor acknowledges and agrees that any of the Guaranty
Agreements and the Collateral Documents to which it is a party or otherwise
bound shall continue in full force and effect and that all of its obligations
thereunder shall be valid and enforceable and shall not be impaired or limited
by the execution or effectiveness of this Amendment. Each Guarantor represents
and warrants that all representations and warranties contained in the Credit
Agreement as amended by this Amendment and the Guaranty Agreements and the
Collateral Documents to which it is a party or otherwise bound are true,
correct and complete in all material respects on and as of the Eighteenth
Amendment Effective Date to the same extent as though made on and as of that
date except to the extent that such representations and warranties specifically
relate to an earlier date, in which case they are true, correct and complete in
all material respects as of such earlier date.
Each Guarantor acknowledges and agrees that (i) notwithstanding the
conditions to effectiveness set forth in this Amendment, such Guarantor is not
required by the terms of the Credit Agreement or any other Loan Document to
consent to the amendments to the Credit Agreement effected pursuant to this
Amendment or any other Loan Document and (ii) that neither the terms of the
Credit Agreement, any other Loan Document nor this
5
Amendment shall be deemed to require the consent of any Guarantor to any future
amendments to the Credit Agreement.
SECTION 5. COUNTERPARTS; EFFECTIVENESS
This Amendment may be executed in any number of counterparts, and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.
SECTION 6. FEES AND EXPENSES
Borrower acknowledges that all costs, fees and expenses as described
in subsection 10.4 of the Credit Agreement incurred by Agent and its counsel
with respect to this Amendment and the documents and transactions contemplated
hereby shall be for the account of Borrower.
SECTION 7. EFFECT OF AMENDMENT
It is hereby agreed that, except as specifically provided herein, this
Amendment does not in any way affect or impair the terms and conditions of the
Credit Agreement, and all terms and conditions of the Credit Agreement are to
remain in full force and effect unless otherwise specifically amended or
changed pursuant to the terms and conditions of this Amendment.
SECTION 8. APPLICABLE LAW
This Amendment and the rights and obligations of the parties hereto
and all other aspects hereof shall be deemed to be made under, shall be
governed by, and shall be construed and enforced in accordance with, the laws
of the State of New York without regard to principles of conflicts of laws.
[Remainder of page intentionally left blank]
6
WITNESS the due execution hereof by the respective duly authorized
officers of the undersigned as of the date first written above.
BEI:
----
XXXXXXX ENTERPRISES, INC.
By:
------------------------------------------
Title:
---------------------------------------
BORROWER:
---------
XXXXXXX HEALTH AND REHABILITATION
SERVICES, INC. (formerly known as Xxxxxxx
California Corporation)
By:
------------------------------------------
Title:
---------------------------------------
AGENT, CO-AGENT AND LENDERS:
----------------------------
THE LONG-TERM CREDIT BANK OF JAPAN, LOS ANGELES
AGENCY, as Agent and as a Lender
By:
------------------------------------------
Title:
---------------------------------------
BANK OF MONTREAL,
as Co-Agent and as a Lender
By:
------------------------------------------
Title:
---------------------------------------
S-1
7
LENDERS:
--------
INTERNATIONALE NEDERLANDEN (U.S.)
CAPITAL CORPORATION
By:
------------------------------------------
Title:
---------------------------------------
U.S. NATIONAL BANK OF OREGON
By:
------------------------------------------
Title:
---------------------------------------
THE SUBSIDIARY GUARANTORS:
--------------------------
A.B.C. Health Equipment Corp.
Alliance Health Services, Inc.
Alliance Home Health Care, Inc.
Amco Medical Service, Inc.
American Transitional Hospitals -- Texas
Medical Center, Inc.
ATH Clear Lake, Inc.
ATH Columbus, Inc.
ATH Oklahoma City, Inc.
Xxxxxxx Acquisition Corporation
Xxxxxxx Assisted Living, Inc.
Xxxxxxx Enterprises - Alabama, Inc.
Xxxxxxx Enterprises - Arkansas, Inc.
Xxxxxxx Enterprises -- Delaware, Inc.
S-2
8
Xxxxxxx Enterprises -- District of Columbia,
Inc.
Xxxxxxx Enterprises -- Florida, Inc.
Xxxxxxx Enterprises -- Georgia, Inc.
Xxxxxxx Enterprises -- Iowa, Inc.
Xxxxxxx Enterprises -- Maine, Inc.
Xxxxxxx Enterprises -- Maryland, Inc.
Xxxxxxx Enterprises -- Massachusetts, Inc.
Xxxxxxx Enterprises -- Minnesota, Inc.
Xxxxxxx Enterprises -- Mississippi, Inc.
Xxxxxxx Enterprises -- Missouri, Inc.
Xxxxxxx Enterprises -- Montana, Inc.
Xxxxxxx Enterprises -- Nebraska, Inc.
Xxxxxxx Enterprises -- Nevada, Inc.
Xxxxxxx Enterprises -- New Hampshire, Inc.
Xxxxxxx Enterprises -- New Mexico, Inc.
Xxxxxxx Enterprises -- North Carolina, Inc.
Xxxxxxx Enterprises -- North Dakota, Inc.
Xxxxxxx Enterprises -- Oklahoma, Inc.
Xxxxxxx Enterprises -- Oregon
Xxxxxxx Enterprises -- Rhode Island, Inc.
Xxxxxxx Enterprises -- Vermont, Inc.
Xxxxxxx Enterprises -- Wisconsin, Inc.
Xxxxxxx Enterprises -- Wyoming, Inc.
Xxxxxxx Enterprises Medical Equipment
Corporation
S-3
9
Xxxxxxx Enterprises Rehabilitation Corporation
Xxxxxxx Holdings I, Inc.
Xxxxxxx Real Estate Holdings, Inc.
Xxxxxxx Xxxxx Depositor, Inc.
Brownstone Pharmacy, Inc.
Commercial Management, Inc.
DD Wholesale, inc.
Xxxxxxxxxx Drug, Inc.
Xxxxxxxxxx RX Services of Rhode Island, Inc.
Xxxxxxxxxx RX Services of Massachusetts, Inc.
Hallmark Convalescent Homes, Inc.
Healthcare Prescription Services, Inc.
Hospital Facilities Corporation
Insta-Care Holdings, Inc.
Insta-Care Pharmacy Services Corporation
Insurance Software Packages, Inc.
Medical Health Industries, Inc.
Medview services, Incorporated
Moderncare of Lumberton, Inc.
Nebraska City S-C-H, Inc.
Omni Med B, Inc.
Pharmacy Corporation of America --
Massachusetts, Inc.
Pharmacy Dynamics Group, Inc.
Phymedsco, Inc.
S-4
10
Resource Opportunities, Inc.
Spectra Rehab Alliance, Inc.
South Dakota - Xxxxxxx Enterprises, Inc.
TMD Disposition Company
Vantage Healthcare Corporation
AGI-Camelot, Inc.
AGI-XxXxxxxx County Health Care, Inc.
Xxxxxxx Enterprises - Arizona, Inc.
Xxxxxxx Enterprises - California, Inc.
Xxxxxxx Enterprises - Colorado, Inc.
Xxxxxxx Enterprises - Connecticut, Inc.
Xxxxxxx Enterprises - Garden Terrace, Inc.
Xxxxxxx Enterprises - Hawaii, Inc.
Xxxxxxx Enterprises - Idaho, Inc.
Xxxxxxx Enterprises - Illinois, Inc.
Xxxxxxx Enterprises - Indiana, Inc.
Xxxxxxx Enterprises - Kansas, Inc.
Xxxxxxx Enterprises - Kentucky, Inc.
Xxxxxxx Enterprises - Louisiana, Inc.
Xxxxxxx Enterprises - Michigan, Inc.
Xxxxxxx Enterprises - New Jersey, Inc.
Xxxxxxx Enterprises - Ohio, Inc.
Xxxxxxx Enterprises - Pennsylvania, Inc.
Xxxxxxx Enterprises - South Carolina, Inc.
Xxxxxxx Enterprises - Tennessee, Inc.
Xxxxxxx Enterprises - Texas, Inc.
Xxxxxxx Enterprises - Utah, Inc.
S-5
11
Xxxxxxx Enterprises - Virginia, Inc.
Xxxxxxx Enterprises - Washington, Inc.
Xxxxxxx Enterprises - West Virginia, Inc.
Xxxxxxx Indemnity, Ltd.
Xxxxxxx Manor Inc. of Hawaii
Xxxxxxx Savana Cay Manor, Inc.
Columbia-Valley Nursing Home, Inc.
Computran Systems, Inc.
Continental Care Centers of Council Bluffs,
Inc.
Forest City Building Ltd.
Home Medical Systems, Inc.
Kenwood View Nursing Home, Inc.
Liberty Nursing Homes, Incorporated
Medical Arts Health Facility of Lawrenceville,
Inc.
Nursing Home Operators, Inc.
Xxxxxxxx Health Care, Inc.
Pharmacy Corporation of America
Salem No. 1, Inc.
South Alabama Nursing Home, Inc.
American Transitional Care Centers of Texas,
Inc.
American Transitional Care Dallas-Ft. Worth,
Inc.
American Transitional Health Care, Inc.
American Transitional Hospitals, Inc.
American Transitional Hospitals of Indiana,
Inc.
American Transitional Hospitals of Oklahoma,
Inc.
S-6
12
American Transitional Hospitals of Tennessee,
Inc.
ATH Del Oro, Inc.
ATH Heights, Inc.
ATH Tucson, Inc.
Xxxxxxx Enterprises Japan Limited
AdviNet, Inc.
Xxxxxxx Crest Corporation
Xxxxxxx Enterprises-Distribution Services, Inc.
Hospice Preferred Choice, Inc.
Xxxxxxx Rehabilitation Services, Inc.
Synergos, Inc.
Synergos-Scottsdale, Inc.
Synergos-Pleasanthill, Inc.
Synergos-North Hollywood, Inc.
By:
----------------------------------
Title:
-------------------------------
S-7
