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EXHIBIT 10.2
ELEVENTH AMENDMENT
TO CREDIT AGREEMENT
AMONG
XXXXXXX ENTERPRISES, INC.,
XXXXXXX HEALTH AND REHABILITATION SERVICES, INC.
(FORMERLY KNOWN AS XXXXXXX CALIFORNIA CORPORATION),
THE SUBSIDIARY GUARANTORS LISTED HEREIN,
THE LENDERS LISTED HEREIN,
AND
THE NIPPON CREDIT BANK, LTD.
LOS ANGELES AGENCY, AS AGENT
Dated as of September 30, 1996
THIS ELEVENTH AMENDMENT dated as of September 30, 1996 (this
"AMENDMENT"), is entered into by and among XXXXXXX ENTERPRISES, INC., a
Delaware corporation ("BEI"), XXXXXXX HEALTH AND REHABILITATION SERVICES, INC.
(formerly known as Xxxxxxx California Corporation), a California corporation
("BORROWER"), the SUBSIDIARY GUARANTORS listed on 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 hereinafter defined) pursuant to subsection
10.8 thereof, are referred to herein individually as a "LENDER" and
collectively as the "LENDERS"), and THE NIPPON CREDIT BANK, LTD., Los Angeles
Agency ("NIPPON"), as agent for the Lenders (in such capacity, the "AGENT").
This Amendment amends the Credit Agreement dated as of March 2, 1993 by and
among BEI, Borrower, Agent and Lenders, as amended by that certain First
Amendment to Credit Agreement dated as of May 6, 1994, as further amended by
that certain Second Amendment to Credit Agreement dated as of May 19, 1994, as
further amended by that certain Third Amendment to Credit Agreement dated as of
November 1, 1994, as further amended by that certain Fourth Amendment to Credit
Agreement dated as of November 9, 1994, as further amended by that certain
Fifth Amendment to Credit Agreement dated as of December 30, 1994, as further
amended by that certain Sixth Amendment to Credit Agreement dated as of July
25, 1995, as further amended by that certain Seventh Amendment to Credit
Agreement dated as of September 29, 1995, as further amended by that certain
Eighth Amendment to Credit Agreement dated as of February 14, 1996, as further
amended by that certain Ninth Amendment to Credit Agreement dated as of April
22, 1996, and as further amended by that certain Tenth Amendment to Credit
Agreement dated as of June 28, 1996 (as so amended, the "CREDIT AGREEMENT"), as
set forth herein.
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RECITALS
WHEREAS, Borrower desires to amend the Credit Agreement in
certain respects;
WHEREAS, Lenders 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;
AGREEMENT
NOW, THEREFORE, in consideration of the terms and conditions
herein contained, BEI, Borrower, Guarantors, Agent and Lenders agree as
follows:
1. DEFINITIONS, INTERPRETATION. All capitalized terms defined
above and elsewhere in this Amendment shall be used herein as so defined.
Unless otherwise defined herein, all other capitalized terms used herein shall
have the respective meanings given to those terms in the Credit Agreement, as
amended by this Amendment. The rules of construction set forth in Section I of
the Credit Agreement shall, to the extent not inconsistent with the terms of
this Amendment, apply to this Amendment and are hereby incorporated by
reference.
2. AMENDMENT TO CREDIT AGREEMENT. Subject to conditions set forth
in paragraph 4 hereof, the Credit Agreement is hereby amended by adding the
following proviso at the end of the definition of "Consolidated Capital
Expenditures" set forth in Subsection 1.1:
"provided, that for purposes of this clause (B) up to
$20,000,000 to be borrowed from Bank United for the purpose of
financing the construction of nursing homes shall, if such Debt is
incurred in October 1996, be deemed to have been incurred in September
1996."
3. REPRESENTATIONS AND WARRANTIES. In order to induce the Agent
and the Lenders to enter into this Amendment, each of BEI and Borrower
represents and warrants to the Agent and the 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;
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(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 which is a party thereto are within the corporate power
and authority of each such Loan Party and, as of the Eleventh 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 Eleventh Amendment Effective Date, are duly
executed and delivered by each of such Loan Parties which is a party
thereto and will constitute a valid and binding agreement of each of
such Loan Parties, enforceable against such Loan Parties in accordance
with their 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. The Credit Agreement constitutes
and, as of the Eleventh Amendment Effective Date, the Credit Agreement,
as amended by this Amendment, will constitute, a valid and binding
agreement of each applicable Loan Party, enforceable against each
applicable Loan Party in accordance with their respective 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 applicable Loan
Party of this Amendment, and the performance by each such Loan Party of
the Credit Agreement as amended by this Amendment, do not and will not
(i) violate any provision of any law or any governmental rule or
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, 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.
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(f) The execution and delivery by each applicable Loan
Party of this Amendment, and the performance by each such 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.
4. CONDITIONS TO EFFECTIVENESS. Section 2 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 "ELEVENTH AMENDMENT EFFECTIVE DATE"):
(a) On or before the Eleventh Amendment Effective Date,
Borrower shall deliver to the Lenders (or to the Agent for the Lenders
with sufficient originally executed copies, as appropriate, for each
Lender and its counsel) the following, each, unless otherwise noted,
dated the Eleventh Amendment Effective Date, duly executed and
delivered by the parties thereto:
(i) Signature and incumbency certificates of each
of BEI, Borrower and each Subsidiary Guarantor of its
respective officers executing this Amendment certified by such
party's respective secretary or assistant secretary; and
(ii) Executed counterparts of this Amendment.
(b) On or before the Eleventh Amendment Effective Date,
all corporate and other proceedings taken or to be taken in connection
with the transactions contemplated hereby and all documents incidental
thereto not previously found acceptable by the Agent, acting on behalf
of the Lenders, and its counsel shall be satisfactory in form and
substance to the Agent and such counsel, and the Agent and such
counsel shall have received all such counterpart originals or
certified copies of such documents as the Agent may reasonably
request.
(c) On or before the Eleventh Amendment Effective Date,
the Borrower shall have caused payment to the Agent of all amounts
regarding the costs and expenses reasonably incurred by Agent in
connection with this Amendment.
5. ACKNOWLEDGMENT AND AGREEMENT OF GUARANTORS. 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 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,
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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 material respects on and as of the Eleventh
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 in addition to all
the other waivers agreed to and made by Guarantor as set forth in the Guaranty
Agreement and the Collateral Documents to which it is a party or otherwise
bound, and pursuant to the provisions of California Civil Code Section 2856,
"Guarantor waives all rights and defenses arising out of an election of
remedies by the creditor, even though that election of remedies, such as a
nonjudicial foreclosure with respect to security for a guaranteed obligation,
has destroyed the Guarantor's rights of subrogation and reimbursement against
the principal by the operation of Section 580d of the Code of Civil Procedure
or otherwise."
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.
6. EFFECTIVENESS; COUNTERPARTS. 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
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instrument. This Amendment (other than the provisions of Section 2) shall
become effective upon the execution of a counterpart hereof by all Lenders and
each of the Loan Parties and receipt of written or telephonic notification of
such execution and authorization of delivery thereof.
7. FEES AND EXPENSES. The Borrower acknowledges that all costs,
fees and expenses as described in subsection 10.4 of the Credit Agreement
incurred by the Agent and its counsel with respect to this Amendment and the
documents and transactions contemplated hereby shall be for the account of the
Borrower.
8. 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.
9. 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.
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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:
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XXXXXXX ENTERPRISES, INC.
By:
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Title:
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BORROWER:
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XXXXXXX HEALTH AND REHABILITATION
SERVICES, INC.
By:
-------------------------------
Title:
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AGENT:
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THE NIPPON CREDIT BANK, LTD.,
LOS ANGELES AGENCY,
as Agent
By:
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Title:
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LENDERS:
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THE NIPPON CREDIT BANK, LTD.,
LOS ANGELES AGENCY,
as a Lender
By:
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Title:
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TORONTO-DOMINION (TEXAS), INC.,
as a Lender
By:
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Title:
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[Signatures Continued)
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Xxxxxx County Health Facility,
Incorporated
Alliance Health Services, Inc.
Healthcare Prescription Services, Inc.
Xxxxxxxxxx Drugs, Inc.
Insta-Care Holdings, Inc.
AdviNet, Inc.
Xxxxxxx Crest Corporation
Xxxxxxx Enterprises - Distribution
Services, Inc.
Hospice Preferred Choice, Inc.
Xxxxxxx 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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