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EXHIBIT 10.54
FIFTEENTH AMENDMENT
TO CREDIT AGREEMENT
AMONG
▇▇▇▇▇▇▇ ENTERPRISES, INC.,
▇▇▇▇▇▇▇ 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 February 12, 1996
THIS FIFTEENTH AMENDMENT dated as of February 12, 1996 (this
"Amendment"), is entered into by and among ▇▇▇▇▇▇▇ ENTERPRISES, INC., a
Delaware corporation ("BEI"), ▇▇▇▇▇▇▇ HEALTH AND REHABILITATION SERVICES, INC.
(formerly known as ▇▇▇▇▇▇▇ California Corporation), a California corporation
("Borrower"), the SUBSIDIARY GUARANTORS listed o the signature pages hereof
(together with BEI, the "Guarantors"), the LENDERS listed on the signature
pages hereof (such lenders), together with each Person that may or has become a
party to the Credit Agreement (as defined below) pursuant to subsection 10.8
thereof, are referred to herein individually as a "Lender" and collectively as
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 that First Amendment
to Credit Agreement dated April 7, 1992 by and among BEI, Borrower, Co-Agent,
Agent and the Lenders, as further amended by that Second Amendment to Credit
Agreement dated as of May 11, 1992 by and among BEI, Borrower, Co- Agent, Agent
and the Lenders, as further amended by that Third Amendment to Credit Agreement
dated as of March 1, 1993 by and among BEI, Borrower, Co-Agent, Agent and the
Lenders, as further amended by that Fourth Amendment to Credit Agreement dated
as of November 1, 1993 by and among BEI, Borrower, Co-Agent, Agent and the
Lenders, as further amended by that Fifth Amendment to Credit Agreement dated
as of March 21, 1994 by and among BEI, Borrower, Co-Agent, Agent and the
Lenders, as further amended by that Sixth Amendment to Credit Agreement dated
as of April 22, 1994 by and among BEI, Borrower, Co-Agent, Agent and the
Lenders, as further amended by that Seventh Amendment to Credit Agreement dated
as of May 2, 1994 by and among BEI, Borrower, Co-Agent, Agent and the Lenders,
as further amended by that Eighth Amendment to Credit Agreement dated as of
November 1, 1994 by and among BEI, Borrower, Co-Agent, Agent and the Lenders,
as further amended by that Ninth Amendment to Credit Agreement dated as of
November 9, 1994 by and among BEI, Borrower, Co-Agent, Agent and the Lenders,
as further amended by that Tenth Amendment to Credit Agreement dated as of
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December 6, 1994 by and among BEI, Borrower, Co-Agent, Agent and the Lenders,
as further amended by that Eleventh Amendment to Credit Agreement dated as of
March 27, 1995 by and among BEI, Borrower, Co-Agent, Agent and the Lenders, as
further amended by that Twelfth Amendment to Credit Agreement dated as of
October 23, 1995 by and among BEI, Borrower, Co-Agent, Agent and the Lenders,
as further amended by that Thirteenth Amendment to Credit Agreement dated as of
September 29, 1995 and among BEI, Borrower, Co-Agent, Agent and the Lenders, as
further amended by that Fourteenth Amendment to Credit Agreement dated s of
December 7, 1995 by and among BEI, Borrower, Co-Agent, Agent and the Lenders
(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.
RECITALS
WHEREAS, Borrower desires to amend the Credit Agreement in
certain respects;
WHEREAS, Lenders, Co-Agent and Agent have agreed to approve such
amendments;
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, BEI, Borrower, Guarantors, Co-Agent, Agent and Lenders agree
as follows:
AGREEMENT
SECTION 1. AMENDMENT TO SUBSECTION 5.14 OF THE CREDIT AGREEMENT
Subsection 5.14 of the Credit Agreement is hereby amended by
restating clause (n) thereof in its entirety as follows:
"(n) Contingent obligations incurred by Subsidiaries of BEI to
guaranty BEI's $180,000,000 Senior Notes due 2006 issued in the first
quarter of 1996 substantially in accordance with the terms and
conditions set forth in the Prospectus relating thereto dated February
9, 1996 ("Unsecured Senior Notes")'; provided, that $170,000,000 of
the aggregate amount of the proceeds of the Unsecured Senior Notes is
used on the date of issuance thereof to repay or reimburse the
Borrower for paying (1) the ▇▇▇▇▇▇ Term Loans in an amount not less
than $87,500,000; (2) revolving loans under the ▇▇▇▇▇▇ Credit
Agreement in an amount not less than $45,750,000; (3) the Notes in an
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amount not less than $28,000,000 (4) the Nippon Notes in an
amount not less than $8,750,000."
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;
(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 Fifteenth 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 Fifteenth 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 loss 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 Fifteenth 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 (1) violate any provision of any
law or any governmental rule or
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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.
SECTION 3. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon
the satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "Fifteenth
Amendment Effective Date")'
A. On or before the Fifteenth Amendment Effective Date,
BEI, Borrower and each Subsidiary Guarantor shall deliver to Lenders (or to
Agent for Lenders with sufficient originally executed copies, as appropriate,
for each Lender and its counsel) the following, each, unless otherwise noted,
dated the Fifteenth Amendment Effective Date:
(i) Signature and incumbency certificates of its
officers executing this Amendment certified by its secretary or an
assistant secretary; and
(ii) Executed counterparts of this Amendment.
B. On or before the Fifteenth Amendment Effective Date,
Requisite Lenders shall have delivered to Agent a counterpart of this Amendment
originally executed by a duly authorized officer of such Lender of by telex or
telephonic confirmation.
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
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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 materials respects on and as of the Fifteenth
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
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. This Amendment
(other than the provisions of ?Section 1 hereof) shall become effective upon
the execution of a counterpart hereof by Requisite Lenders and each of the Loan
Parties and receipt of written or telephonic notification of such execution and
authorization of delivery thereof.
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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)
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WITNESS the due execution hereof by the respective duly
authorized officers of the undersigned as of the date first written above.
BEI:
▇▇▇▇▇▇▇ ENTERPRISES, INC.
By:
-----------------------------------
Title:
--------------------------------
Borrower:
▇▇▇▇▇▇▇ HEALTH AND REHABILITATION
SERVICES, INC. (formerly known as ▇▇▇▇▇▇▇
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 as a Lender
By:
-----------------------------------
Title:
--------------------------------
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WITNESS the due execution hereof by the respective duly
authorized officers of the undersigned as of the date first written above.
BEI:
▇▇▇▇▇▇▇ ENTERPRISES, INC.
By:
-----------------------------------
Title:
--------------------------------
Borrower:
▇▇▇▇▇▇▇ HEALTH AND REHABILITATION
SERVICES, INC. (formerly known as ▇▇▇▇▇▇▇
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: Deputy General Manager
--------------------------------
BANK OF MONTREAL,
as Co-Agent as a Lender
By:
-----------------------------------
Title:
--------------------------------
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WITNESS the due execution hereof by the respective duly
authorized officers of the undersigned as of the date first written above.
BEI:
▇▇▇▇▇▇▇ ENTERPRISES, INC.
By:
-----------------------------------
Title:
--------------------------------
Borrower:
▇▇▇▇▇▇▇ HEALTH AND REHABILITATION
SERVICES, INC. (formerly known as ▇▇▇▇▇▇▇
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 as a Lender
By:
-----------------------------------
Title: Director
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Lenders:
INTERNATIONAL 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.
▇▇▇▇▇▇▇ Assisted Living, Inc.
▇▇▇▇▇▇▇ Enterprises - Alabama, Inc.
▇▇▇▇▇▇▇ Enterprises - Arkansas, Inc.
▇▇▇▇▇▇▇ Enterprises - Delaware, Inc.
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▇▇▇▇▇▇▇ Enterprises - District of
Columbia, Inc.
▇▇▇▇▇▇▇ Enterprises - Florida, Inc.
▇▇▇▇▇▇▇ Enterprises - Georgia, Inc.
▇▇▇▇▇▇▇ Enterprises - Iowa, Inc.
▇▇▇▇▇▇▇ Enterprises - Maine, Inc.
▇▇▇▇▇▇▇ Enterprises - Maryland, Inc.
▇▇▇▇▇▇▇ Enterprises - Massachusetts, Inc.
▇▇▇▇▇▇▇ Enterprises - Minnesota, Inc.
▇▇▇▇▇▇▇ Enterprises - Mississippi, Inc.
▇▇▇▇▇▇▇ Enterprises - Missouri, Inc.
▇▇▇▇▇▇▇ Enterprises - Montana, Inc.
▇▇▇▇▇▇▇ Enterprises - Nebraska, Inc.
▇▇▇▇▇▇▇ Enterprises - Nevada, Inc.
▇▇▇▇▇▇▇ Enterprises - New Hampshire,
Inc.
▇▇▇▇▇▇▇ Enterprises - New Mexico, Inc.
▇▇▇▇▇▇▇ Enterprises - North Carolina, Inc.
▇▇▇▇▇▇▇ Enterprises - North Dakota, Inc.
▇▇▇▇▇▇▇ Enterprises - Oklahoma, Inc.
▇▇▇▇▇▇▇ Enterprises - Oregon
▇▇▇▇▇▇▇ Enterprises - Rhode Island, Inc.
▇▇▇▇▇▇▇ Enterprises - Vermont, Inc.
▇▇▇▇▇▇▇ Enterprises - Wisconsin, Inc.
▇▇▇▇▇▇▇ Enterprises - Wyoming, Inc.
▇▇▇▇▇▇▇ Enterprises Medical Equipment
Corporation
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▇▇▇▇▇▇▇ Enterprises Rehabilitation
Corporation
▇▇▇▇▇▇▇ Holdings I, Inc.
▇▇▇▇▇▇▇ Real Estate Holdings, Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Depositor, Inc.
Brownstone Pharmacy, Inc.
Commercial Management, Inc.
DD Wholesale, inc.
▇▇▇▇▇▇▇▇▇▇ Drug, Inc.
▇▇▇▇▇▇▇▇▇▇ RX Services of Rhode Island,
Inc.
▇▇▇▇▇▇▇▇▇▇ 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.
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Resources Opportunities, Inc.
Spectra Rehab Alliance, Inc.
South Dakota - ▇▇▇▇▇▇▇ Enterprises, Inc.
TMD Disposition Company
Vantage Healthcare Corporation
AGI-Camelot, Inc.
AGI-▇▇▇▇▇▇▇▇ County Health Care, Inc.
▇▇▇▇▇▇▇ Enterprises - Arizona, Inc.
▇▇▇▇▇▇▇ Enterprises - California, Inc.
▇▇▇▇▇▇▇ Enterprises - Colorado, Inc.
▇▇▇▇▇▇▇ Enterprises - Connecticut, Inc.
▇▇▇▇▇▇▇ Enterprises - Garden Terrace, Inc.
▇▇▇▇▇▇▇ Enterprises - Hawaii, Inc.
▇▇▇▇▇▇▇ Enterprises - Idaho, Inc.
▇▇▇▇▇▇▇ Enterprises - Illinois, Inc.
▇▇▇▇▇▇▇ Enterprises - Indiana, Inc.
▇▇▇▇▇▇▇ Enterprises - Kansas, Inc.
▇▇▇▇▇▇▇ Enterprises - Kentucky, Inc.
▇▇▇▇▇▇▇ Enterprises - Louisiana, Inc.
▇▇▇▇▇▇▇ Enterprises - Michigan, Inc.
▇▇▇▇▇▇▇ Enterprises - New Jersey, Inc.
▇▇▇▇▇▇▇ Enterprises - Ohio, Inc.
▇▇▇▇▇▇▇ Enterprises - Pennsylvania, Inc.
▇▇▇▇▇▇▇ Enterprises - South Carolina, Inc.
▇▇▇▇▇▇▇ Enterprises - Tennessee, Inc.
▇▇▇▇▇▇▇ Enterprises - Texas, Inc.
▇▇▇▇▇▇▇ Enterprises - Utah, Inc.
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▇▇▇▇▇▇▇ Enterprises - Virginia, Inc.
▇▇▇▇▇▇▇ Enterprises - Washington, inc.
▇▇▇▇▇▇▇ Enterprises - West Virginia, Inc.
▇▇▇▇▇▇▇ Indemnity, Ltd.
▇▇▇▇▇▇▇ Manor Inc. of Hawaii
▇▇▇▇▇▇▇ Savana Cay Manor, Inc.
Columbia-Valley Nursing Home, Inc.
Computran Systems, Inc.
Continental Care Centers of Council
Bluffs, Inc.
Forest City Building, Inc.
Home Medical Systems, Inc.
Kenwood View Nursing Homes, Incorporated
Liberty Nursing Homes, Incorporated
Medical Arts Health Facility of
Lawrenceville, Inc.
Nursing Home Operators, Inc.
▇▇▇▇▇▇▇▇ 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
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Oklahoma, Inc.
American Transitional Hospitals of
Tennessee, Inc.
ATH Del Oro, Inc.
ATH Heights, Inc.
ATH Tucson, Inc.
▇▇▇▇▇▇▇ Enterprises Japan Limited
AdviNet, Inc.
▇▇▇▇▇▇▇ Crest Corporation
▇▇▇▇▇▇▇ Enterprises-Distribution Services,
Inc.
Hospice Preferred Choice, Inc.
▇▇▇▇▇▇▇ Rehabilitation Services, Inc.
Synergos, Inc.
Synergos-Scottsdale, Inc.
Synergos-Pleasanthill, Inc.
Synergos-North Hollywood, Inc.
By:
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Title:
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