6
SECOND AMENDMENT TO
CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this
"Amendment") dated as of June 14, 1997, by and among XXXXXXXX
HEALTH CARE, INC., a Georgia corporation (the "Borrower"),
SUNTRUST BANK, ATLANTA ("SunTrust"), AMSOUTH BANK OF ALABAMA,
WACHOVIA BANK OF GEORGIA, N.A., FIRST AMERICAN NATIONAL BANK and
HIBERNIA NATIONAL BANK (collectively, the "Lenders") and SUNTRUST
BANK, ATLANTA, as agent for the Lenders (in such capacity, the
"Agent").
W I T N E S S E T H:
WHEREAS, Borrower, the Lenders and the Agent are
parties to a certain Credit Agreement dated as of March 6, 1996,
as amended by that certain First Amendment to Credit Agreement
dated as of April 4, 1996 (as heretofore amended or modified, the
"Credit Agreement"; defined terms used herein without definition
shall have the meanings ascribed to such terms in the Credit
Agreement);
WHEREAS, Borrower has requested, and the Lenders
have agreed, that the Credit Agreement be amended to make certain
modifications to the financial covenants set forth therein, all
as more specifically set forth below;
WHEREAS, the parties wish to amend the Credit
Agreement to reflect this agreement;
NOW, THEREFORE, for and in consideration of the
mutual covenants contained herein and other valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound,
agree as follows:
SECTION 1. Amendments to Credit Agreement.
Subject to the satisfaction of the conditions precedent set forth
in Section 2 hereof, and effective as of the Effective Date (as
hereinafter defined), the Credit Agreement is hereby amended as
follows:
Section 7.08 of the Credit Agreement is hereby amended by
deleting subsections (b) and (d) thereof in their entirety and
substituting the following in lieu thereof:
(b) Adjusted Funded Debt to Total
Capitalization. Maintain at all times, measured as of
the last day of each fiscal quarter of the Borrower, commencing on
the last day of Fiscal Year 1996, a ratio of Adjusted Funded Debt
to Total Capitalization of less than the ratio set forth opposite
the periods set forth below:
Period Ratio
Fiscal Year End 1996 through Fiscal
Year End 1997 1.00:1.00
First day of Fiscal Year 1998 through
Fiscal Year End 1998 0.95:1.00
First day of Fiscal Year 1999 through
Fiscal Year End 1999 0.90:1.00
First day of Fiscal Year 2000 and
thereafter 0.85:1.00
(d) Consolidated Net Worth. Maintain at all
times, as calculated on the last day of each fiscal quarter of
the Borrower, Consolidated Net Worth in an amount not less than
the sum of (i) $100,000.00 plus (ii) the greater of (x) $0, and
(y) the Specified Amount, plus (iii) an amount equal to 100% of
the Net Proceeds of all issuances of stock, warrants,
Subordinated Debt, or other equity of the Borrower issued
following the date hereof. For purposes hereof, "Specified
Amount" shall mean, for each period set forth below, the
percentage set forth opposite such period multiplied by the
Consolidated Net Income (Loss) of the Borrower during such period
(taking into account 100% of all losses during such period):
Period Percentage
Effective Date through
Fiscal Year End 1996 0%
First Day of Fiscal Year 1997
through Fiscal Year End 1997 10%
First Day of Fiscal Year 1998
through Fiscal Year End 1998 10%
First Day of Fiscal Year 1999
through Fiscal Year End 1999 10%
First Day of Fiscal Year 2000
and thereafter 15%
SECTION 2. Conditions of Effectiveness. This
Amendment shall become effective as of the date first above
written (the "Effective Date") on the first day when this
Amendment shall have been executed and delivered by Borrower and
the Lenders to the Agent.
SECTION 3. Representations and Warranties of
Borrower. Borrower, without limiting the representations and
warranties provided in the Credit Agreement, represents and
warrants to the Lenders and the Agent as follows:
1. The execution, delivery and performance by
Borrower of this Amendment are within Borrower's corporate
powers, have been duly authorized by all necessary corporate
action (including any necessary shareholder action) and do not
and will not (a) violate any provision of any law, rule or
regulation, any judgment, order or ruling of any court or
governmental agency, the articles of incorporation or by-laws of
Borrower or any indenture, agreement or other instrument to which
Borrower is a party or by which Borrower or any of its properties
is bound or (b) be in conflict with, result in a breach of, or
constitute with notice or lapse of time or both a default under
any such indenture, agreement or other instrument.
2. This Amendment constitutes the legal, valid and
binding obligation of Borrower, enforceable against Borrower in
accordance with its terms.
3. No Default or Event of Default has occurred and
is continuing as of the Effective Date.
SECTION 4. Survival. Each of the foregoing
representations and warranties and each of the representations
and warranties made in the Credit Agreement shall be made at and
as of the Effective Date. Each of the foregoing representations
and warranties shall constitute a representation and warranty of
Borrower under the Credit Agreement, and it shall be an Event of
Default if any such representation and warranty shall prove to
have been incorrect or false in any material respect at the time
when made. Each of the representations and warranties made under
the Credit Agreement (including those made herein) shall survive
and not be waived by the execution and delivery of this Amendment
or any investigation by the Lenders or the Agent.
SECTION 5. No Waiver, Etc. Borrower hereby
agrees that nothing herein shall constitute a waiver by the
Lenders of any Default or Event of Default, whether known or
unknown, which may exist under the Credit Agreement. Borrower
hereby further agrees that no action, inaction or agreement by
the Lenders, including without limitation, any indulgence,
waiver, consent or agreement altering the provisions of the
Credit Agreement which may have occurred with respect to the non-
payment of any obligation during the terms of the Credit
Agreement or any portion thereof, or any other matter relating to
the Credit Agreement, shall require or imply any future
indulgence, waiver, or agreement by the Lenders. In addition,
Borrower acknowledges and agrees that it has no knowledge of any
defenses, counterclaims, offsets or objections in its favor
against any Lender with regard to any of the obligations due
under the terms of the Credit Agreement as of the date of this
Amendment.
SECTION 6. Affirmation of Covenants. Borrower
hereby affirms and restates as of the date hereof all covenants
set forth in the Credit Agreement, as amended hereby, and such
covenants are incorporated by reference herein as if set forth
herein directly.
SECTION 7. Ratification of Credit Agreement.
Except as expressly amended herein, all terms, covenants and
conditions of the Credit Agreement and the other Loan Documents
shall remain in full force and effect, and the parties hereto do
expressly ratify and confirm the Credit Agreement as amended
herein. All future references to the Credit Agreement shall be
deemed to refer to the Credit Agreement as amended hereby.
SECTION 8. Binding Nature. This Amendment shall
be binding upon and inure to the benefit of the parties hereto,
their respective heirs, successors, successors-in-titles, and
assigns.
SECTION 9. Costs, Expenses and Taxes. Borrower
agrees to pay on demand all reasonable costs and expenses of the
Agent in connection with the preparation, execution and delivery
of this Amendment and the other instruments and documents to be
delivered hereunder, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for the
Agent with respect thereto and with respect to advising the Agent
as to its rights and responsibilities hereunder and thereunder.
In addition, Borrower shall pay any and all stamp and other taxes
payable or determined to be payable in connection with the
execution and delivery of this Amendment and the other
instruments and documents to be delivered hereunder, and agrees
to save the Agent and each Lender harmless from and against any
and all liabilities with respect to or resulting from any delay
in paying or omission to pay such taxes.
SECTION 10. Governing Law. This Amendment shall
be governed by, and construed in accordance with, the laws of the
State of Georgia.
SECTION 11. Entire Understanding. This Amendment
sets forth the entire understanding of the parties with respect
to the matters set forth herein, and shall supersede any prior
negotiations or agreements, whether written or oral, with respect
thereto.
SECTION 12. Counterparts. This Amendment may be
executed in any number of counterparts and by different parties
hereto in separate counterparts and may be delivered by
telecopier. Each counterpart so executed and delivered shall be
deemed an original and all of which taken together shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed
this Amendment through their authorized officers as of the date
first above written.
XXXXXXXX HEALTH CARE, INC.
By:/s/ K. Xxxxx Xxxxxxx
Name: K. Xxxxx Xxxxxxx
Title: Senior Vice President, Finance
[CORPORATE SEAL]
Attest:/s/ J. Xxxxxxx Xxxxxxx, Xx.
Name: J. Xxxxxxx Xxxxxxx, Xx.
Title: Financial Analyst
SUNTRUST BANK, ATLANTA,
individually and as Agent
By:/s/ Xxx Xxxxxxx
Name: Xxx Xxxxxxx
Title: Vice President
AMSOUTH BANK OF ALABAMA
By:/s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: Vice President
WACHOVIA BANK OF GEORGIA, N.A.
By:/s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Banking Officer
FIRST AMERICAN NATIONAL BANK
By:/s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
HIBERNIA NATIONAL BANK
By:/s/ Xxxx X. Xxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
Title: Vice President
