EXHIBIT 10.40
AMENDMENT NO. 12 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 12 TO CREDIT AGREEMENT (the "Amendment")
dated as of October 3, 1996 by and among Mariner Health Group, Inc., a Delaware
corporation (the "Borrower"), The Chase Manhattan Bank (as successor to Chemical
Bank), CoreStates Bank, N.A., Creditanstalt-Bankverein, First Union National
Bank of North Carolina, Mellon Bank, N.A., NationsBank of Tennessee, N.A., PNC
Bank, National Association and Toronto Dominion (New York), Inc. (collectively,
the "Banks"), and PNC Bank, National Association, in its capacity as agent for
the Banks (the "Agent").
W I T N E S S E T H:
WHEREAS, the parties hereto are parties to that certain Credit
Agreement dated as of May 18, 1994, as amended (the "Credit Agreement"),
pursuant to which the Banks provided a $250,000,000 revolving credit facility to
the Borrower; and
WHEREAS, the Borrower, the Banks and the Agent desire to amend
and restate the Credit Agreement as hereinafter provided.
NOW, THEREFORE, the parties hereto, in consideration of their
mutual covenants and agreements hereinafter set forth and intending to be
legally bound hereby, covenant and agree as follows:
1. Definitions.
(a) Defined terms used herein unless otherwise defined herein
shall have the meanings ascribed to them in the Credit Agreement as amended by
this Amendment.
2. Amendment of Credit Agreement.
(a) Articles I through XI. The parties hereto do hereby amend
and restate the recitals and Articles I through XI to the Credit Agreement as
set forth on Exhibit 1 hereto.
(b) Schedules. Each of the following schedules to the Credit
Agreement is hereby amended and restated to read as set forth on the schedule
attached hereto bearing the same numerical reference as the original schedule
Schedule 6.01(a) and (c) Qualifications to do Business,
Subsidiaries and Excluded Entities
Schedule 6.01(u) Material Contracts
Schedule 6.01(y) Environmental Disclosures
Schedule 8.02(c) Certain Guaranties
Schedule 6.01(cc) Allegis Facilities Indebtedness; Lien
Releases; Intercreditor Agreements;
Non-Disturbance Agreements; Consents to
Leasehold Mortgages and Second Liens
(c) Exhibits. Each of the following exhibits to the Credit
Agreement is hereby amended and restated to read as set forth on the exhibit
attached hereto bearing the same numerical reference as the original exhibit:
Exhibit 2.05 Revolving Credit Loan Request
Exhibit 8.01(m)(i) Acquisition Approval Certificate
Exhibit 8.01(m)(ii) Acquisition Notice Certificate
The following exhibit is hereby added as an
additional, new exhibit to the Credit Agreement:
Exhibit 8.03(d)(3) Compliance Certificate for Quarter
Ending 9/30/96 and Thereafter
3. Conditions of Effectiveness of This Agreement. The effectiveness of
this Amendment is expressly conditioned upon satisfaction of each of the
following conditions precedent:
(a) Representations and Warranties; No Defaults. The
representations and warranties of the Borrower contained in Article VI of the
Credit Agreement shall be true and accurate on the date hereof with the same
effect as though such representations and warranties had been made on and as of
such date (except representations and warranties which relate solely to an
earlier date or time, which representations and warranties shall be true and
correct on and as of the specific dates or times referred to therein), and the
Borrower shall have performed and complied with all covenants and conditions
hereof; no Event of Default or Potential Default under the Credit Agreement
shall have occurred and be continuing or shall exist.
(b) Organization, Authorization and Incumbency. There shall
be delivered to the Agent for the benefit of each Bank a certificate dated as of
the date hereof and signed by the Secretary or an Assistant Secretary of each
Loan Party, certifying as appropriate as to:
(i) all action taken by such Loan Party in connection
with this Amendment and the other Loan Documents;
(ii) the names of the officer or officers authorized to
sign this Amendment and the other documents executed and delivered in connection
herewith and
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described in this Section 3 and the true signatures of such officer or officers
and, in the case of the Borrower, specifying the Authorized Officers permitted
to act on behalf of the Borrower for purposes of the Loan Documents and the true
signatures of such officers, on which the Agent and each Bank may conclusively
rely; and
(iii) copies of its organizational documents, including
its certificate of incorporation and bylaws if it is a corporation and its
certificate of partnership and partnership agreement if it is a partnership, in
each case as in effect on the date hereof, certified by the appropriate state
official where such documents are filed in a state office together with
certificates from the appropriate state officials as to the continued existence
and good standing of each of the Loan Parties in each state where organized;
provided that each of the Loan Parties other than Borrower may, in lieu of
delivering copies of the foregoing organizational documents (excluding good
standing certificates), certify that the organizational documents which it
previously delivered remain in effect and have not been amended.
(c) Opinions of Counsel. There shall be delivered to the
Agent for the benefit of each Bank a written opinion dated the date hereof of
Xxxxx, Xxxxxxx & Xxxxxxxxx, counsel for the Loan Parties, in form and substance
satisfactory to the Agent.
(d) Fees and Expenses. The Borrower shall pay or cause to be
paid to the Agent for itself and for the account of the Banks to the extent not
previously paid the fees set forth on Exhibit 2 hereto, and all other fees
accrued through the date hereof and the costs and expenses of the Agent and the
Banks including, without limitation, fees of the Agent's counsel in connection
with this Amendment.
(e) Acknowledgment. Each of the Loan Parties, other than the
Borrower, shall have executed the Confirmation of Guaranty in the form attached
hereto as Exhibit 3 hereto.
(f) Legal Details; Counterparts. All legal details and
proceedings in connection with the transactions contemplated by this Amendment
shall be in form and substance satisfactory to the Agent, and the Agent shall
have received all such other counterpart originals or certified or other copies
of such documents and proceedings in connection with such transactions, in form
and substance satisfactory to the Agent.
4. Completion of Outstanding Items. On or before December 1, 1996, the
Borrower shall have completed the outstanding conditions to the effectiveness of
Amendment Nos. 1 through 12 to the Credit Agreement and delivered to the Agent
for the benefit of the Banks evidence of the same satisfactory to the Agent, in
its sole discretion, it being expressly agreed that satisfaction of such
outstanding conditions has not been waived by the Banks.
5. Amendment to Certain Other Loan Documents.
(a) Schedule 1 to that certain Guaranty Agreement made by
each Subsidiary of the Borrower party thereto, for the benefit of the Banks,
dated as of May 18, 1994, as amended, is hereby amended and restated to read as
set forth on the Schedule attached hereto bearing the same numerical reference
and name.
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(b) Schedule A to the following Pledge Agreement is hereby
amended and restated to read as set forth on the schedule attached hereto
bearing the same name:
(i) SCHEDULE A TO THE PLEDGE AGREEMENT (Borrower) dated
as of May 18, 1994, as amended, by the Borrower, as pledgor in favor of the
Agent
6. Force and Effect. Except as expressly modified by this Amendment,
the Credit Agreement and the other Loan Documents are hereby ratified and
confirmed and shall remain in full force and effect after the date hereof.
7. Governing Law. This Amendment shall be deemed to be a contract under
the laws of the Commonwealth of Pennsylvania and for all purposes shall be
governed by and construed and enforced in accordance with the internal laws of
the Commonwealth of Pennsylvania without regard to its conflict of laws
principles.
[INTENTIONALLY BLANK]
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[SIGNATURE PAGE 1 OF 2 TO AMENDMENT NO. 12]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
MARINER HEALTH GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
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Name:
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Title:
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PNC BANK, NATIONAL ASSOCIATION,
individually and as Agent
By: /s/ Xxxxx X. Xxxxxxxx
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Name:
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Title:
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THE CHASE MANHATTAN BANK (as successor
to Chemical Bank)
By: /s/ Xxxx Xxx Xxx
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Name:
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Title:
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CORESTATES BANK, N.A.
By: /s/ Xxxxxxxx X. Xxxxx
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Name:
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Title:
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CREDITANSTALT - BANKVEREIN
By: /s/ Xxxxxxx X. Xxxxxx
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Name:
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Title:
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By: /s/ Xxxxx XxXxxx
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Name:
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Title:
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[SIGNATURE PAGE 2 OF 2 TO AMENDMENT NO. 12]
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
By: /s/ Xxx X. Xxxx
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Name:
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Title:
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MELLON BANK, N.A.
By: /s/ Xxxxx Xxxxx
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Name:
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Title:
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NATIONSBANK OF TENNESSEE, N.A.
By: /s/ Xxxxxxx Xxxxxxxxx
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Name:
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Title:
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TORONTO DOMINION (NEW YORK), INC.
By: /s/ Xxxxx Xxxxxx
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Name:
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Title:
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