EXHIBIT 10.4
FIRST AMENDMENT
FIRST AMENDMENT, dated as of May 13, 2004 (this "Amendment"),
to the Credit Agreement, dated as of October 22, 2003 (as amended from time to
time, the "Credit Agreement"), among XXXXXXX ENTERPRISES, INC., a Delaware
corporation (the "Borrower"), the several banks and other financial institutions
or entities from time to time parties to the Credit Agreement (the "Lenders"),
XXXXXX BROTHERS INC., as advisor, sole lead arranger and sole bookrunner, XXXXXX
COMMERCIAL PAPER INC., as administrative agent (in such capacity, the
"Administrative Agent"), BANK OF MONTREAL and GENERAL ELECTRIC CAPITAL
CORPORATION, as syndication agents and as co-arrangers, and XXXXXXX XXXXX
CAPITAL and XXXXX FARGO FOOTHILL, INC., as documentation agents.
WITNESSETH:
WHEREAS, pursuant to the Credit Agreement, the Lenders have
agreed to make, and have made, certain loans and other extensions of credit to
the Borrower;
WHEREAS, Borrower has requested certain amendments to the
Credit Agreement as more fully set forth herein; and
WHEREAS, the Lenders are willing to agree to such amendments
on the terms and subject to the conditions contained in this Amendment.
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Unless otherwise defined herein,
terms defined in the Credit Agreement and used herein shall have the meanings
given to them in the Credit Agreement.
SECTION 2. Amendments to Subsection 1.1 (Definitions). (a) The
definition of "Additional Letter of Credit Facility" set forth in Section 1.1 of
the Credit Agreement is hereby amended in its entirety to read as follows:
"Additional Letter of Credit Facility": a letter of credit
facility in the amount of up to $40,000,000, to be provided a Person
reasonably acceptable to the Administrative Agent, which facility may
be secured by a security interest in receivables, in an amount not
greater than 150% of the aggregate face amount of the Additional Letter
of Credit Facility, of the same type as the receivables that secure the
Xxxxxxx Funding Facility on the Closing Date (it being understood and
agreed that the Xxxxxxx Funding Facility will be replaced by the
Additional Letter of Credit Facility when it becomes available).
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(a) The definition of "Permitted Acquisition" set forth in
Section 1.1 of the Credit Agreement is hereby amended by deleting therefrom
clauses (f) through (h) in their respective entireties and substituting in lieu
thereof the following clauses (f) through (i):
(f) immediately after giving effect to such acquisition,
Consolidated Liquidity is at least $30,000,000 (or, following the date
on which letters of credit first become available to the Borrower
pursuant to the Additional Letter of Credit Facility or the Receivables
Financing Program, $50,000,000),
(g) if such acquisition is of all the Capital Stock of, or all
or a substantial part of the assets of, any Person, such acquisition
shall have been approved by the Board of Directors or comparable
governing body of such Person,
(h) (i) the aggregate consideration paid (including, without
limitation, cash, Capital Stock, assumed Indebtedness, seller notes,
non-compete or deferred compensation, and earn-outs or similar
arrangements) by the Borrower and its Subsidiaries in respect of all
such acquisitions does not exceed $100,000,000 during the term of this
Agreement and (ii) the aggregate amount of such consideration paid in
any fiscal year of the Borrower does not exceed $40,000,000, provided
that the foregoing amounts shall not include consideration paid with
cash on hand of the Borrower and its Subsidiaries (it being understood
and agreed, for the avoidance of doubt, that proceeds of Revolving
Credit Loans shall not constitute cash on hand), Indebtedness permitted
by Section 7.2(l) or common stock of the Borrower issued to the seller
as all or a portion of the consideration for such acquisition, and
(i) with respect to any acquisition that would not be
permitted but for the proviso set forth in the preceding clause (h) as
to certain types of consideration, the Consolidated Leverage Ratio
(calculated as if such acquisition had occurred on the first day of the
period of four consecutive fiscal quarters most recently ended prior to
the date of such acquisition) shall be not greater than the
Consolidated Leverage Ratio at the last day of the period of four
consecutive fiscal quarters of the Borrower most recently ended prior
to the date of such acquisition (e.g., if Section 7.1(a) permits a
Consolidated Leverage Ratio of 5.00 to 1.00 at the time of such
acquisition and the Consolidated Leverage Ratio is 4.75 to 1.00, this
paragraph (i) requires that the pro forma Consolidated Leverage Ratio
shall be not greater than 4.75 to 1.00), and the Borrower shall have
delivered to the Administrative Agent such financial information as the
Administrative Agent shall reasonably request to demonstrate such pro
forma compliance.
SECTION 3. Amendments to Section 7.2 (Limitation on
Indebtedness). Section 7.2 of the Credit Agreement is hereby amended by (a)
deleting the word "and" at the end of clause (j) thereof, (b) deleting the "."
at the end of clause (k) thereof and substituting "; and" in lieu thereof and
(c) adding a new clause (l) at the end thereof to read in its entirety as
follows:
(l) Indebtedness of the Borrower or any of its Subsidiaries
issued to a seller as part of the purchase price for a Permitted
Acquisition, provided that (i) such Indebtedness is unsecured, (ii)
such Indebtedness represents not more than 10% of the aggregate
consideration (including, without limitation, cash, Capital Stock,
assumed
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Indebtedness, seller notes, non-compete or deferred compensation, and
earn-outs or similar arrangements) for such Permitted Acquisition and
(iii) the aggregate principal amount of all such Indebtedness shall not
exceed $15,000,000 at any one time outstanding.
SECTION 4. Amendments to Section 7.5 (Limitation on
Disposition of Property). Section 7.5 of the Credit Agreement is hereby amended
by (a) deleting from clause (g)(ii) thereof the words "to Bank of Montreal (or
any affiliate thereof)", (b) deleting the word "and" at the end of clause (m)
thereof, (c) deleting the "." at the end of clause (n) thereof and substituting
"; and" in lieu thereof and (d) adding a new clause (o) at the end thereof to
read in its entirety as follows:
(o) the Disposition of the facility located at 0000 Xxxxxxx
Xxxxx in Searcy, Arkansas, provided that the requirements of Section
2.10(b) are complied with in connection therewith.
SECTION 5. Amendments to Section 7.13 (Limitation on Negative
Pledge Clauses). Section 7.13 of the Credit Agreement is hereby amended by (a)
deleting the word "and" at the end of clause (c) thereof and substituting "," in
lieu thereof, (b) deleting the "." at the end of clause (d) thereof and
substituting "and" in lieu thereof and (c) adding a new clause (d) at the end
thereof to read in its entirety as follows:
(d) any agreement governing the Additional Letter of Credit Facility or
the Xxxxxxx Funding Facility (in which case, any prohibition or
limitation shall only be effective against the Property and revenues of
Xxxxxxx Funding).
SECTION 6. Amendments to Section 7.14 (Limitation on
Restrictions on Subsidiary Distributions). Section 7.14 of the Credit Agreement
is hereby amended by (a) deleting the word "and" at the end of clause (i)
thereof and substituting "," in lieu thereof, (b) deleting the "." at the end of
clause (ii) thereof and substituting "and" in lieu thereof and (c) adding a new
clause (iii) at the end thereof to read in its entirety as follows:
(iii) any restrictions with respect to Xxxxxxx Funding imposed pursuant
to any agreement governing the Additional Letter of Credit Facility or
the Xxxxxxx Funding Facility.
SECTION 7. Conditions to Effectiveness. This Amendment shall
become effective upon the date (the "First Amendment Effective Date") on which
the Administrative Agent shall have received:
(a) this Amendment, executed and delivered by a duly
authorized officer of the Borrower;
(b) written consents to the execution of this Amendment
("Lender Consent Letters"), or facsimile transmissions thereof, from Lenders
constituting the Required Lenders;
(c) an executed Acknowledgment and Consent, in the form set
forth at the end of this Amendment, or a facsimile transmission thereof, from
each Loan Party other than the Borrower;
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(d) for the account of each Lender that executes and delivers
a Lender Consent Letter on or prior to 12:00 Noon, New York City time, on May
13, 2004, an amendment fee in an amount equal to 0.10% of the Aggregate Exposure
of such Lender before giving effect to this Amendment; and
(e) all fees required to be paid, and all reasonable
out-of-pocket expenses for which invoices have been presented (including
reasonable fees, disbursements and other charges of counsel to the Agents), on
or before the First Amendment Effective Date.
SECTION 8. Representations and Warranties. To induce the
Administrative Agent to enter into this Amendment and to induce the Lenders to
consent thereto, the Borrower hereby represents and warrants to the Agents and
all of the Lenders as of the First Amendment Effective Date that each of the
representations and warranties made by the Borrower or any of its Subsidiaries
in or pursuant to the Loan Documents that is qualified by materiality is true
and correct on and as of the First Amendment Effective Date, after giving effect
to the effectiveness of this Amendment, as if made on and as of such date, and
each of the representations and warranties made by the Borrower or any of its
Subsidiaries in or pursuant to the Loan Documents that is not qualified by
materiality is true and correct in all material respects on and as of the First
Amendment Effective Date, after giving effect to the effectiveness of this
Amendment, as if made on and as of such date, except, in each case, to the
extent that such representations and warranties expressly relate to an earlier
date, in which case such representations and warranties shall be true and
correct, or true and correct in all material respects, as the case may be, as of
such earlier date.
SECTION 9. Continuing Effect of the Credit Agreement. This
Amendment shall not constitute an amendment or waiver of or consent to any
provision of the Credit Agreement or the other Loan Documents not expressly
referred to herein and shall not be construed as an amendment, waiver or consent
to any action on the part of the Borrower that would require an amendment,
waiver or consent of the Administrative Agent or the Lenders except as expressly
stated herein. Except as expressly amended hereby, the provisions of the Credit
Agreement and the other Loan Documents are and shall remain in full force and
effect in accordance with its terms.
SECTION 10. Counterparts. This Amendment may be executed by
one or more of the parties to this Amendment on any number of separate
counterparts (including by facsimile), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. Delivery of
an executed signature page of this Amendment by facsimile transmission shall be
effective as delivery of a manually executed counterpart hereof.
SECTION 11. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective proper and duly
authorized officers as of the day and year first above written.
XXXXXXX ENTERPRISES, INC.
By: /s/ XXXXXXX X. XXXXXX, XX.
-----------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Treasurer
XXXXXX COMMERCIAL PAPER INC.,
as Administrative Agent
By: /s/ XXXXXXX XXXXX
-----------------------------
Name: Xxxxxxx Xxxxx
Title: Authorized Signatory
ACKNOWLEDGMENT AND CONSENT
Reference is made to the Credit Agreement described in the
foregoing Amendment (the "Credit Agreement"; terms defined in the Credit
Agreement being used in this Acknowledgment and Consent with the meanings given
to such terms in the Credit Agreement). Each of the undersigned parties to the
Guarantee and Collateral Agreement and/or one or more other Security Documents,
in each case as amended, supplemented or otherwise modified from time to time,
hereby (a) consents to the foregoing Amendment and the transactions contemplated
thereby and (b) acknowledges and agrees that the guarantees and grants of
security interests contained in the Guarantee and Collateral Agreement and other
Security Documents are, and shall remain, in full force and effect after giving
effect to the foregoing Amendment and all prior modifications to the Credit
Agreement.
THIS ACKNOWLEDGMENT AND CONSENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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GRANTORS (OTHER THAN THE BORROWER)
AEGIS THERAPIES, INC.
AEGIS THERAPIES - FLORIDA, INC.
AEGIS THERAPIES - WISCONSIN, INC.
XXXXXXX ENTERPRISES - ALABAMA, INC.
XXXXXXX ENTERPRISES - ARIZONA, INC.
XXXXXXX ENTERPRISES - ARKANSAS, INC.
XXXXXXX ENTERPRISES - FLORIDA, INC.
XXXXXXX ENTERPRISES - GARDEN TERRACE, INC.
XXXXXXX ENTERPRISES - GEORGIA, INC.
XXXXXXX ENTERPRISES - ILLINOIS, INC.
XXXXXXX ENTERPRISES - INDIANA, INC.
XXXXXXX ENTERPRISES - KENTUCKY, INC.
XXXXXXX ENTERPRISES - MARYLAND, INC.
XXXXXXX ENTERPRISES - MASSACHUSETTS, INC.
XXXXXXX ENTERPRISES - MISSISSIPPI, INC.
XXXXXXX ENTERPRISES - MISSOURI, INC.
XXXXXXX ENTERPRISES - NEBRASKA, INC.
XXXXXXX ENTERPRISES - NEW JERSEY, INC.
XXXXXXX ENTERPRISES - NORTH CAROLINA, INC.
XXXXXXX ENTERPRISES - OHIO, INC.
XXXXXXX ENTERPRISES - PENNSYLVANIA, INC.
XXXXXXX ENTERPRISES - SOUTH CAROLINA, INC.
XXXXXXX ENTERPRISES - TENNESSEE, INC.
XXXXXXX ENTERPRISES - VIRGINIA, INC.
XXXXXXX ENTERPRISES - WASHINGTON, INC.
XXXXXXX ENTERPRISES - WEST VIRGINIA, INC.
XXXXXXX ENTERPRISES - WISCONSIN, INC.
XXXXXXX HEALTH AND REHABILITATION SERVICES, INC.
COMMERCIAL MANAGEMENT, INC.
COMMUNITY CARE, INC.
COMPASSION & PERSONAL CARE SERVICES, INC.
HOMECARE PREFERRED CHOICE, INC.
HOSPICE PREFERRED CHOICE, INC.
MATRIX OCCUPATIONAL HEALTH, INC.
MEDICAL ARTS HEALTH FACILITY OF LAWRENCEVILLE, INC.
MODERNCARE OF LUMBERTON, INC.
NEBRASKA CITY S-C-H, INC.
NURSING HOME OPERATORS, INC.
SOUTH DAKOTA - XXXXXXX ENTERPRISES, INC.
TMD DISPOSITION COMPANY
VANTAGE HEALTHCARE CORPORATION
By: /s/ XXXX X. ARENA
---------------------------------
Name: Xxxx X. Arena
Title: Secretary
XXXXXXX ENTERPRISES - KANSAS, LLC
XXXXXXX ENTERPRISES - MINNESOTA, LLC
By: XXXXXXX ENTERPRISES - PENNSYLVANIA, INC., its
sole member
By: /s/ XXXX X. ARENA
--------------------------------------
Name: Xxxx X. Arena
Title: Secretary
XXXXXXX HEALTHCARE LLC
By: XXXXXXX ENTERPRISES - INDIANA, INC., its member
By: /s/ XXXX X. ARENA
--------------------------------------
Name: Xxxx X. Arena
Title: Secretary
By: VANTAGE HEALTHCARE CORPORATION, its member
By: /s/ XXXX X. ARENA
--------------------------------------
Name: Xxxx X. Arena
Title: Secretary
GUARANTORS (OTHER THAN THE GRANTORS)
4F FUNDING, INC.
AGI - CAMELOT, INC.
XXXXXXX - XXXXX VISTA HOLDING, INC.
XXXXXXX - MISSOURI VALLEY HOLDING, INC.
XXXXXXX - RAPID CITY HOLDING, INC.
XXXXXXX ENTERPRISES - CALIFORNIA INC.
XXXXXXX ENTERPRISES - DELAWARE, INC.
XXXXXXX ENTERPRISE - DISTRICT OF COLUMBIA, INC.
XXXXXXX ENTERPRISES - HAWAII, INC.
XXXXXXX ENTERPRISES - OREGON, INC.
XXXXXXX ENTERPRISES - TEXAS, INC.
XXXXXXX ENTERPRISES INTERNATIONAL LIMITED
XXXXXXX HEALTHCARE - CALIFORNIA, INC.
XXXXXXX MANOR INC. OF HAWAII
XXXXXXX SAVANA CAY MANOR, INC.
CERES STRATEGIES, INC.
EASTERN HOME HEALTH SUPPLY & EQUIPMENT CO., INC.
HALLMARK CONVALESCENT HOMES, INC.
HOSPICE OF EASTERN CAROLINA, INC.
LIBERTY NURSING HOMES, INCORPORATED
XXXXXXXX HEALTH CARE, INC.
SOUTH ALABAMA NURSING HOME, INC.
SPECTRA HEALTHCARE ALLIANCE, INC.
TAR HEEL INFUSION COMPANY, INC.
By: /s/ XXXX X. ARENA
--------------------------------------
Name: Xxxx X. Arena
Title: Secretary
CERES SELECT, LLC
CERES STRATEGIES MEDICAL SERVICES, LLC
By: CERES STRATEGIES, INC., its sole member
By: /s/ XXXX X. ARENA
--------------------------------------
Name: Xxxx X. Arena
Title: Secretary
AEDON STAFFING, LLC
By: SPECTRA HEALTHCARE ALLIANCE, INC., its sole
member
By: /s/ XXXX X. ARENA
--------------------------------------
Name: Xxxx X. Arena
Title: Secretary
XXXXXXX INDIANAPOLIS, LLC
By: XXXXXXX HEALTHCARE LLC
By: XXXXXXX ENTERPRISES - INDIANA, INC., its member
By: /s/ XXXX X. ARENA
--------------------------------------
Name: Xxxx X. Arena
Title: Secretary
By: VANTAGE HEALTHCARE CORPORATION, its member
By: /s/ XXXX X. ARENA
--------------------------------------
Name: Xxxx X. Arena
Title: Secretary
LENDER CONSENT LETTER
XXXXXXX ENTERPRISES, INC.
CREDIT AGREEMENT
DATED AS OF OCTOBER 22, 2003
To: Xxxxxx Commercial Paper Inc.,
as Administrative Agent
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is made to the Credit Agreement, dated as of October
22, 2003 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Xxxxxxx Enterprises, Inc., a Delaware corporation
(the "Borrower"), the Lenders parties thereto, Xxxxxx Brothers Inc., as
Arranger, Xxxxxx Commercial Paper Inc., as Administrative Agent, and the other
Agents party thereto. Unless otherwise defined herein, capitalized terms used
herein and defined in the Credit Agreement are used herein as therein defined.
The Borrower has requested that the Required Lenders amend
certain provisions of the Credit Agreement on the terms described in the First
Amendment in the form attached hereto as Exhibit A (the "Amendment").
Pursuant to Section 10.1 of the Credit Agreement, the
undersigned Lender hereby consents to the execution by the Administrative Agent
of the Amendment.
Very truly yours,
----------------------------------
[INSERT NAME OF LENDER]
By:
--------------------------------
Name:
Title:
Dated as of May 13, 2004
