EXECUTION COPY
SIXTH AMENDMENT dated as of May 9,
1997 (this "Sixth Amendment"), to the
Amended and Restated Credit Agreement dated
as of September 26, 1995 (as amended to the
date hereof, the "Credit Agreement"), among
Horizon/CMS Healthcare Corporation, a
Delaware corporation ("Horizon"),
Continental Medical Systems, Inc., a
Delaware corporation ("Continental", and
together with Horizon, the "Borrowers"), the
lenders listed on the signature pages
thereto (the "Lenders") and NationsBank of
Texas, N.A., as agent for the Lenders (in
such capacity, the "Agent") and as issuing
bank (in such capacity, the "Issuing Bank").
The parties hereto have agreed, subject to the terms and conditions
hereof, to amend the Credit Agreement as provided herein.
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement (the Credit Agreement,
as amended by, and together with, this Sixth Amendment, and as hereinafter
amended, modified, extended or restated from time to time, being called the
"Amended Agreement").
Accordingly, the parties hereto hereby agree as follows:
SECTION 1.01. Amendment to EBITDAR Definition. The following clause is
hereby added at the end of the proviso to the definition of EBITDAR in Section
1.01 of the Amended Agreement:
"and (F) so long as the cash portion of such charges is not material,
up to $53,000,000 of charges incurred in connection with the
termination of Horizon's agreement to manage facilities owned by the
HEA Group".
SECTION 1.02. Amendment to Stockholders' Equity Definition. Clause (b)
of the definition of Stockholders' Equity is hereby deleted in its entirety and
the following clause is hereby substituted in lieu thereof:
"(b) in determining Stockholders' Equity of Horizon for purposes of
Section 6.19(a), (i) an amount equal to the after-tax amount of any
expenses of Horizon and its Consolidated Subsidiaries incurred during
fiscal year 1996 as a result of the Merger, to the extent that the
aggregate pre-tax amount of all such expenses does not exceed
$60,000,000 and (ii) an amount equal to the after-tax amount of any
charges incurred in connection with the termination of Horizon's
agreement to manage facilities owned by the HEA Group, to the extent
that the aggregate pre-tax amount of all such charges does not exceed
$53,000,000,".
SECTION 1.03. Representations and Warranties. The Borrowers hereby
represent and warrant to the Agent and the Lenders, as follows:
(a) The representations and warranties set forth in Article
III of the Credit Agreement, and in each other Loan Document, are true
and correct in all material respects on and as of the date hereof and
on and as of the Sixth Amendment Effective Date (as defined below) with
the same effect as if made on and as of the date hereof or the Sixth
Amendment Effective Date, as the case may be, except to the extent such
representations and warranties expressly relate solely to an earlier
date.
(b) Each of the Borrowers, the Subsidiary Pledgors and the
Subsidiary Guarantors is in compliance with all the terms and
conditions of the Credit Agreement and the other Loan Documents on its
part to be observed or performed and no Default or Event of Default has
occurred or is continuing under the Credit Agreement.
(c) The execution, delivery and performance by each of the
Borrowers of this Sixth Amendment have been duly authorized by such
party.
(d) This Sixth Amendment constitutes the legal, valid and
binding obligation of each of the Borrowers, enforceable against it in
accordance with its terms.
(e) The execution, delivery and performance by each of the
Borrowers of this Sixth Amendment (i) do not conflict with or violate
(A) any provision of law, statute, rule or regulation, or of the
certificate of incorporation or by-laws of either of the Borrowers, (B)
any order of any Governmental Authority or (C) any provision of any
indenture, agreement or other instrument to which either of the
Borrowers is a party or by which it or any of its property may be bound
and (ii) do not require any consents under, result in a breach of or
constitute (with notice or lapse of time or both) a default under any
such indenture, agreement or instrument.
SECTION 1.04. Effectiveness. This Sixth Amendment shall become
effective only upon satisfaction of the following conditions precedent (the
first date upon which each such condition has been satisfied being herein called
the "Sixth Amendment Effective Date"):
(a) The Agent shall have received duly executed counterparts
of this Sixth Amendment which, when taken together, bear the authorized
signatures of the Borrowers and the Required Lenders.
(b) The Required Lenders shall be satisfied that the
representations and warranties set forth in Section 1.03 are true and
correct on and as of the Sixth Amendment Effective Date and that no
Default or Event of Default has occurred or is continuing.
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(c) There shall not be any action pending or any judgment,
order or decree in effect which, in the judgment of the Required
Lenders or their counsel, is likely to restrain, prevent or impose
materially adverse conditions upon performance by any of the
Borrowers, the Subsidiary Pledgors or the Subsidiary Guarantors of its
obligations under the Loan Documents.
(d) The Required Lenders shall have received such other
documents, legal opinions, instruments and certificates as they shall
reasonably request and such other documents, legal opinions,
instruments and certificates shall be satisfactory in form and
substance to the Required Lenders and their counsel. All corporate and
other proceedings taken or to be taken in connection with this Sixth
Amendment and all documents incidental thereto, whether or not referred
to herein, shall be satisfactory in form and substance to the Required
Lenders and their counsel.
(e) Horizon shall have paid in full all amounts due and
payable as of the Sixth Amendment Effective Date under the Credit
Agreement and upon receipt of the Required Lenders' consent shall have
paid to the Agent for the account of each Lender that consents to this
Sixth Amendment an amendment fee equal to 0.02% of the consenting
Lender's Commitments, so long as a signature page to the Sixth
Amendment executed by such Lender is received by Fennebresque, Clark,
Xxxxxxxx & Hay by 5:00 p.m., Charlotte time, on May 9, 1997.
SECTION 1.05. APPLICABLE LAW. THIS SIXTH AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, EXCEPT
TO THE EXTENT THAT THE FEDERAL LAWS OF THE UNITED STATES OF AMERICA MAY APPLY.
SECTION 1.06. Expenses. The Borrowers shall pay all reasonable
out-of-pocket expenses incurred by the Agent and the Required Lenders in
connection with the preparation, negotiation, execution, delivery and
enforcement of this Sixth Amendment, including, but not limited to, the
reasonable fees and disbursements of counsel. The agreement set forth in this
Section 1.06 shall survive the termination of this Sixth Amendment and the
Amended Agreement.
SECTION 1.07. Counterparts. This Sixth Amendment may be executed in any
number of counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one agreement.
SECTION 1.08. Credit Agreement. Except as expressly set forth herein,
the amendments provided herein shall not by implication or otherwise limit,
constitute a waiver of, or otherwise affect the rights and remedies of the
Lenders, the Agent or the other Secured Parties under the Credit Agreement or
any other Loan Document, nor shall they constitute a waiver of any Default or
Event of Default, nor shall they alter, modify, amend or in any way affect any
of the terms, conditions, obligations, covenants or agreements contained in the
Credit Agreement or any other Loan Document. Each of the
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amendments provided herein shall apply and be effective only with respect to the
provisions of the Credit Agreement specifically referred to by such amendment.
Except as expressly amended herein, the Credit Agreement shall continue in full
force and effect in accordance with the provisions thereof. As used in the
Credit Agreement, the terms "Agreement", "herein", "hereinafter", "hereunder",
"hereto" and words of similar import shall mean, from and after the date hereof,
the Amended Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Sixth Amendment
to be duly executed by their duly authorized officers, all as of the date first
above written.
HORIZON/CMS HEALTHCARE CORPORATION,
as a Borrower
by __________________________________
Name:
Title:
CONTINENTAL MEDICAL SYSTEMS, INC.,
as a Borrower
by___________________________________
Name:
Title:
NATIONSBANK OF TEXAS, N.A., as Agent, as Issuing
Bank and as a Lender
by___________________________________
Name:
Title:
BANK OF AMERICA NT & SA, as Managing
Agent and as a Lender
by___________________________________
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as a Lender
by___________________________________
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH,
as Co-Agent and as a Lender
by___________________________________
Name:
Title:
LONG TERM CREDIT BANK OF JAPAN, LTD., LA
AGENCY, as Co-Agent and as a Lender
by___________________________________
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION, as Co-Agent
and as a Lender
by___________________________________
Name:
Title:
THE CHASE MANHATTAN BANK, as successor to
Chemical Bank, as a Lender
by___________________________________
Name:
Title:
XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION, formerly First Interstate Bank of
Texas, N.A., as a Lender
by___________________________________
Name:
Title:
TORONTO DOMINION (TEXAS) INC., as a Lender
by___________________________________
Name:
Title:
BANKERS TRUST COMPANY, as a Lender
by___________________________________
Name:
Title:
BANQUE PARIBAS, as a Lender
by___________________________________
Name:
Title:
by___________________________________
Name:
Title:
BANQUE NATIONALE de PARIS, as a Lender
by___________________________________
Name:
Title:
by___________________________________
Name:
Title:
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES, as a Lender
by___________________________________
Name:
Title:
by___________________________________
Name:
Title:
MELLON BANK, N.A., as a Lender
by___________________________________
Name:
Title:
FLEET NATIONAL BANK, f/k/a/ Fleet Bank of
Massachusetts, as a Lender
by___________________________________
Name:
Title:
BANK OF TOKYO MITSUBISHI TRUST
COMPANY as successor to The Bank of
Tokyo Trust Company, as a Lender
by___________________________________
Name:
Title:
THE SUMITOMO BANK, LIMITED, as a Lender
by___________________________________
Name:
Title:
THE SUMITOMO TRUST & BANKING CO., LTD., NEW
YORK BRANCH, as a Lender
by___________________________________
Name:
Title:
THE SUMITOMO BANK, LIMITED, CHICAGO
BRANCH, as a Lender
by___________________________________
Name:
Title:
THE MITSUBISHI BANK, LTD., LOS ANGELES
BRANCH, as a Lender
by___________________________________
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
as a Lender
by___________________________________
Name:
Title:
NATIONSBANK, N.A., as a Lender
by___________________________________
Name:
Title:
THE SANWA BANK, LIMITED, as a Lender
by___________________________________
Name:
Title:
XXXXXXX XXXXX SENIOR FLOATING RATE FUND, INC.,
as a Lender
by___________________________________
Name:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE, as a Lender
by___________________________________
Name:
Title:
SUNWEST BANK OF ALBUQUERQUE, N.A., as a Lender and
as Issuing Bank
by____________________________________
Name:
Title:
THE BOATMEN'S NATIONAL BANK OF ST. LOUIS, as a
Lender
by_____________________________________
Name:
Title:
