AMENDMENT NO. 7
TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT NO. 7 dated as of November 30, 1995 (this "Amend
ment") to the SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of May 2,
1994 (as amended by Amendment No. 1 thereto dated as of June 9, 1994, Amendment
No. 2 thereto dated as of September 30, 1994, Amendment No. 3 thereto dated as
of December 12, 1994, Amendment No. 4 thereto dated as of January 11, 1995,
Amendment No. 5 thereto dated as of March 17, 1995 and Amendment No. 6 thereto
dated as of October 17, 1995 ("Amendment No.6"), the "Credit Agreement"), each
among CHARTER MEDICAL CORPORATION, a Delaware corporation (the "Company"), the
banking and other financial institutions from time to time party thereto (the
"Lenders"), BANKERS TRUST COMPANY, as agent for the Lenders, and FIRST UNION
NATIONAL BANK OF NORTH CAROLINA, as Co-Agent. Capitalized terms used herein and
not defined herein shall have the respective meanings set forth for such terms
in the Credit Agreement after giving effect to the amendments thereto set forth
herein.
W I T N E S S E T H :
WHEREAS Amendment No. 6 was entered into in connection with
the proposed acquisition by the Company of 51% of the common stock of Green
Spring;
WHEREAS, at the time Amendment No. 6 was entered into it was
con templated that such acquisition would be effected by the acquisition by the
Company of 51% of the common stock of a newly formed company ("Newco") that
would become the owner of all of the outstanding common stock of Green Spring;
WHEREAS, instead of investing in Newco the Company now intends
to directly acquire and own 51% of the common stock of Green Spring; and
WHEREAS, in order to reflect the new structure for such
acquisition it is desirable that Amendment No. 6 be replaced by this Amendment;
NOW, THEREFORE, the parties hereto hereby agree as follows:
Section 1. Rescission of Amendment No. 6; Initial Amendments
to Credit Agreement. Amendment No. 6 and the amendments to the Credit Agreement
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made pursuant thereto are hereby rescinded, made void and shall be of no further
force and effect. Effective as of October 17, 1995, the Credit Agreement is
amended as fol lows:
(a) The last sentence of Section 7.8 of the Credit Agreement
is amended by inserting the following before the period ending such sentence:
"; provided that an Unrestricted Subsidiary that becomes a Subsidiary
of the Company on or after October 17, 1995 shall not be required to
become a party to a Tax Sharing Agreement unless and until such
Unrestricted Subsidiary is or is required to be (as a result of an
election by the Company or otherwise) consol idated with the Company
for federal, state, local or foreign income tax purpos es".
(b) Section 8.3 of the Credit Agreement is hereby amended by
(i) inserting the phrase "and pursuant to clauses (xi) and (xii) below" after
the phrase "pursuant to clauses (i) and (ii) above" in clause (v) thereof; (ii)
inserting the phrase "and pursuant to clauses (xi) and (xii) below" after the
phrase "pursuant to clauses (i), (ii) and (v) above" in clause (x) thereof;
(iii) deleting the "and" at the end of clause (ix) thereof; (iv) replacing the
period at the end of clause (x) thereof with a semi-colon; and (v) inserting the
following at the end of such Section as clauses (xi) and (xii) thereof:
"(xi) from time to time after October 17, 1995 and
prior to March 31, 1996 the Company may repurchase shares of Company
Common Stock for a price not to exceed the then fair market value
thereof; provided that (A) the aggregate purchase price paid or payable
by the Company in connection with all such repurchases that are made
prior to the earlier to occur of the Amendment No. 7 Green Spring
Effective Date and December 31, 1995 (the earlier to occur of such
dates is hereinafter referred to in this clause (xi) as the "cut-off
date") shall not exceed $18,290,000; (B) the aggregate purchase price
paid or payable by the Company in connection with all such repurchases
that are made on or after the cut-off date shall not exceed the greater
of zero and the positive excess, if any, of (1) the product (such
product, for purposes of this clause (xi), being hereinafter referred
to as the "GSHS purchase price credit amount") of (x) the number of
shares of Company Common Stock issued or sold to the Green Spring
Minority Shareholders on the Amendment No. 7 Green Spring Effective
Date pursuant to the terms of the Green Spring Acquisition Documents,
and (y) the second highest of $20.00, $22.00 and the market value per
share (as determined in accordance with the applicable provisions of
the
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Green Spring Acquisition Documents) of the Company Common Stock on the
Amendment No. 7 Green Spring Effective Date (it being understood that
the GSHS purchase price credit amount shall be deemed to be zero for
all purposes of this clause (xi) if the Amendment No. 7 Green Spring
Effective Date does not occur on or prior to December 31, 1995 or if
the sole consideration paid by the Company to the Green Spring Minority
Shareholders on the Amendment No. 7 Green Spring Effective Date for
shares of common stock of Green Spring is Cash), over (2) the aggregate
purchase price paid or payable by the Company in respect of all
repurchases of Company Common Stock made pursuant to this clause (xi)
prior to the cut-off date; (C) the aggregate number of shares of
Company Common Stock repurchased by the Company pursuant to this clause
(xi) shall not at any time exceed the sum of (1) 40,000 and (2) the
aggregate number of shares of Company Common Stock the Green Spring
Minority Shareholders have elected on or prior to such date to receive
in lieu of Cash in consideration for the transfer to the Company on the
Amendment No. 7 Green Spring Effective Date of shares of common stock
of Green Spring; (D) the Mini mum Income Tests and the Debt Service
Coverage Tests are satisfied with re spect to each such repurchase; (E)
if the Company repurchases Company Common Stock after October 17, 1995
and prior to March 31, 1996, and such repurchases are also permitted
pursuant to clause (v) above, then, to the extent so permitted, such
repurchases shall be considered repurchases pursuant to such clause (v)
above for all purposes other than for purposes of clauses (A), (B) and
(C) above; (F) within 120 days following the cut-off date, the Company
shall consummate a public or private offering of Company Common Stock
which re sults in the receipt by the Company of Net Proceeds in an
aggregate amount at least equal to the positive excess, if any, of the
aggregate purchase price paid or payable by the Company in connection
with all shares of Company Common Stock repurchased pursuant to this
clause (xi) over the GSHS purchase price credit amount; provided that,
if the Company does not so consummate such public offering, then the
amount "60,000,000" in the third line of Section 8.8(r) and the amount
"80,000,000" in the second proviso to such Section 8.8(r) shall each be
reduced automatically by an amount equal to the least amount of Net
Proceeds that the Company would have received if it had consummated
such public offering in compliance with this clause (F); and, provided
further that, if the Company does not so consummate such offering, then
the amount "75,000,000" in the first proviso to Section 8.10(b), the
amount "155,000,000" in clause (A) of the third proviso to such Section
8.10(b) and the amount "175,000,000" in clause (B) of the third proviso
to such Section 8.10(b) shall each be reduced automatically by an
amount equal to the least amount of Net
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Proceeds that the Company would have received if it had consummated
such public offering in compliance with this clause (F); and (G) the
Company com plies with Section 4.2(b) in connection with any such
public offering; and
(xii) the Company and any of its Restricted
Subsidiaries may exercise any rights to which the Company or such
Restricted Subsidiary is other wise entitled as pledgee with respect to
the 152,177 shares of Company Common Stock pledged as collateral
pursuant to those certain Stock Pledge Agreements dated as of December
17, 1993, originally between National Mentor Holding Corp. and each of
the pledgors party thereto."
(c) Clause (iii) of each of Sections 8.2(i) and 8.8(n) of the
Credit Agreement and clause (v) of each of Sections 8.2(j), 8.2(k) and 8.5(e) of
the Credit Agreement are each amended by inserting "(other than pursuant to
Permitted JV Dis tribution Provisions)" after the word "restricted" in each
place it appears in such clauses.
(d) Section 8.4(a)(i)(A) of the Credit Agreement is amended by
adding the following after "Restricted Subsidiaries" in the fifth line thereof
and before ",":
"(provided that Permitted JV Distribution Provisions contained in the
governing documents of a Restricted Subsidiary that is a Permitted
Joint Venture as the result of a Permitted JV Transaction shall not
constitute an encumbrance or re striction that violates clause (A) of
this clause (i))".
(e) Clause (ii)(B) of the last proviso to Section 8.8(r) of
the Credit Agreement is amended by (i) inserting "the sum, without duplication,
of (x)" at the beginning of clause (2) thereof; and (ii) inserting the following
after the word "interest" at the end of clause (2) thereof:
", and (y) all amounts paid by the Company or any Domestic Guarantor at
any time in complete or partial satisfaction of each and any such
guaranty".
(f) Section 8.10(b) of the Credit Agreement is amended by (i)
insert ing "the sum, without duplication, of (x)" at the beginning of clause
(B)(ii) of the last proviso to such Section; and (ii) inserting the following
after the reference "Section 8.15(a)(ix)" at the end of clause(B)(ii) of the
last proviso to such Section:
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", and (y) all amounts paid by the Company or any Domestic Guarantor at
any time in complete or partial satisfaction of each and any such
guaranty".
(g) Section 8.15(b) of the Credit Agreement is amended by
inserting the following at the end of such Section:
"; provided that (1) the documents evidencing any Indebtedness of any
Person that was in existence on the date such Person became an
Unrestricted Subsidiary and was not assumed or otherwise incurred in
connection with or in anticipation of such Person's becoming an
Unrestricted Subsidiary shall not be required to expressly state that
such Indebtedness is without recourse to the Company and its Restricted
Subsidiaries, and (2) no opinion of the type described in the preceding
clause (ii) of this Section 8.15(b) shall be required to be delivered
in respect of any Indebtedness described in the preceding clause (1) of
this proviso".
(h) The definition of the term "Debt Service Coverage Tests"
in Section 10 of the Credit Agreement is amended (i) by inserting "(or if such
Subject Transaction occurs at any time on or prior to March 31, 1996, is a
Subject Transaction pursuant to Section 8.8(o)(iii) or is an issuance of Green
Spring PSI, 2.5:1.0)" after the ratio "3.0:1.0" in each of clauses (a) and (b)
of such definition and (ii) by inserting "(or if such Subject Transaction occurs
at any time on or prior to March 31, 1996, is a Subject Transaction pursuant to
Section 8.8(o)(iii) or is an issuance of Green Spring PSI, 4.25:1.0)" after the
ratio "4.0:1.0" in clause (c).
(i) The following is inserted after the definition of the term
"Permitted Joint Venture" in Section 10 of the Credit Agreement:
"`Permitted JV Distribution Provisions' means, with
respect to any Permitted Joint Venture, (a) provisions contained in the
governing docu ments of such Permitted Joint Venture that prohibit or
otherwise restrict the making of distributions by such Permitted Joint
Venture solely (i) at any time that any outstanding Indebtedness for
borrowed money is owed to any owner of equity interests thereof; (ii)
in the case of any such Permitted Joint Venture that is a partnership
or limited liability company, to the extent such distribution would
cause any partner or member thereof, as applicable, to have a negative
balance in its capital account; (iii) without the required approval of
at least a majority of (A) the directors thereof (if such Permitted
Joint Venture is a corpo ration), (B) the managers or managing members
(or, if there are no such
5
managers or managing members, the members of any board or other body
that performs functions substantially equivalent to those of a board of
directors of a corporation) thereof (if, in any such case, such
Permitted Joint Venture is a limited liability company), (C) the
general partners thereof (if such Permitted Joint Venture is a
partnership), or (D) persons performing a similar function as any of
the foregoing (if such Permitted Joint Venture is other than a
corporation, limited liability company or partnership); (iv) to the
extent such distribution would be prohibited by any applicable law
described in clause (b) below; (v) out of or through the use of funds
of such Permitted Joint Venture that the directors, managers, managing
members, general partners (or persons performing substantially
equivalent functions) of such Permitted Joint Venture determine are
necessary to pay such Permitted Joint Venture's current and anticipated
cash obligations, such current and anticipated obligations including,
without limita tion, operating expenses, debt service, authorized
acquisitions, budgeted capital expenditures, and reasonable reserves in
amounts determined by such persons and/or (vi) under other
circumstances that are consented to by the Required Lenders in their
sole discretion with respect to such Permitted Joint Venture; and (b)
prohibitions and other restrictions contained in any corporate,
partnership or similar law that is applicable to such Permitted Joint
Venture."
Section 2. Amendment to Credit Documents. Effective as of
October 17, 1995, each of the Credit Documents is amended by revoking the
appointment of CT Corporation System as agent for service of process. Each of
the Credit Parties hereby irrevocably designates Corporation Service Company,
located at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000-0000 (or such other
persons as may hereafter be selected by the Credit Parties, with the consent of
the Agent), as the designee, appointee and agent of each of such Credit Party to
receive, for and on behalf of such Credit Party, service of process in the
courts of the State of New York or of the United States of America for the
Southern District of New York in any legal action or proceeding with respect to
any Credit Document or any document related thereto and such service shall, to
the extent permitted by applicable law, be deemed completed ten days after
delivery thereof to said agent.
Section 3. Green Spring Amendments to Credit Agreement.
Effective as of the Green Spring Effective Date (as defined in Section 5
hereof), the Credit Agree ment is amended as of the date hereof as follows (it
being understood that to the extent that any of the following amendments to
Section 10 of the Credit Agreement are used for definitional purposes in Section
1 hereof, such amendments to Section 10 shall be effective as of October 17,
1995):
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(a) Section 4.2(a) of the Credit Agreement is amended
by inserting the following at the end thereof:
"Within two Business Days of each date on which a GSHS Prepayment Event
occurs, the Company shall prepay outstanding Loans in an amount equal
to 70% (or, if a Default or an Event of Default exists immediately
prior or after giving effect to the occurrence of such GSHS Prepayment
Event, 100%) of (i) in the case of the occurrence of a GSHS Prepayment
Event described in clause (a) of the definition of such term, the
aggregate amount distributed or otherwise trans ferred to the Company
and its Restricted Subsidiaries as a result of or in connec tion with
the GSHS Asset Sale giving rise to such GSHS Prepayment Event, net of
taxes paid or reasonably estimated to be payable by the Company in
respect of such distribution or transfer, and (ii) in the case of the
occurrence of a GSHS Prepayment Event described in clause (b) of the
definition of such term, the product of (A) the percentage of the
outstanding common stock of Green Spring owned by the Company and its
Restricted Subsidiaries, and (B) the portion of the Net Proceeds of the
GSHS Asset Sale giving rise to such GSHS Prepayment Event that are not
distributed or otherwise transferred to the shareholders of Green
Spring or reinvested in the business of Green Spring and its
Subsidiaries within 270 days of the occurrence of such GSHS Asset
Sale."
(b) Section 7.1(i) of the Credit Agreement is amended by
inserting "or any Green Spring Acquisition Document" after the term "NME
Purchase Agreement" in clause (A) of such Section.
(c) Section 8.8(c) of the Credit Agreement is amended by
replacing the amount "$50,000,000" in the fifth line thereof with "$10,000,000".
(d) Section 8.8(o) of the Credit Agreement is amended in
its entirety to read as follows:
"(o) so long as no Default or Event of Default has
occurred and is continuing immediately before or after giving effect
thereto:
(i) the Company may purchase on the
Amendment No. 7 Green Spring Effective Date from all or any of
the Green Spring Minority Share holders up to 51% of the
outstanding shares of common stock of Green Spring pursuant to and
in accordance in all material respects with the terms of the Green
Spring Acquisition Documents;
provided that (A) the sole consideration paid or
7
payable by the Company and its Subsidiaries for such shares is Cash
payable on the closing date of such purchase in an aggregate amount not
to exceed the Green Spring Cash Consideration Amount and shares of
Company Common Stock, (B) the Minimum Income Tests and the Debt Service
Coverage Tests are satisfied with respect thereto, and (C) the
transactions described in clause (ii) below are consummated
substantially concurrent therewith;
(ii) substantially concurrent with the
consummation of the transactions described in clause (i) above,
the Company may exchange all of the outstanding capital stock
of Group Practice Affiliates, Inc. for shares of common stock of
Green Spring pursuant to and in accordance in all material respects
with the terms of the Green Spring Acquisition Documents; provided
that (A) the sole consideration paid or payable to the Company in
exchange for such stock of Group Practice Affiliates, Inc. is shares
of common stock of Green Spring; (B) the Minimum Income Tests and
the Debt Service Coverage Tests are satisfied with respect to such
contribution by the Company; and (C) immediately after giving effect
to such contributions by the Company, the Company directly owns at
least 51% of the outstanding shares of each class of common stock of
Green Spring;
(iii) the Company may purchase from
time to time at any time that occurs after the Amendment No. 7 Green
Spring Effective Date and on or prior to the third anniversary
thereof from any Green Spring Minority Shareholder all or any portion
of the GSHS Minority Shares of such Green Spring Minority Shareholder;
provided that (A) the sole consideration paid or payable by the
Company and its Subsidiaries in respect of any such purchase of such
shares is either (1) Green Spring PSI permitted by Section 8.7(f) in
an aggregate principal amount not to exceed the GSHS Minority Interest
Put Amount for the GSHS Minority Shares subject to such purchase (or,
at the election of the Company, Cash in an aggregate amount not in
excess of such GSHS Minority Interest Put Amount; provided that
the Company may only so elect if, immediately after giving effect to
the payment of such Cash consideration, the sum of (i) the aggregate
principal amount of Revolving Loans outstanding for all Lenders at
such time, (ii) $25,000,000, (iii) the Letter of Credit Outstandings
at such time, (iv) the aggregate amount of all of the Lenders'
Subsidiary Credit Extensions at such time, and (v) the then aggregate
outstanding principal amount of all Swingline Borrowings (without
duplication of any Revolving Loans made with respect thereto
pursuant to Section 1.4) does not exceed an amount equal to the
Total Revolving Loan Commitment), (2) shares
8
of Company Common Stock, or (3) a combination of (1) and (2) above, (B)
if the consideration for such purchase includes Cash or Green Spring
PSI, the Minimum Income Tests and the Debt Service Coverage Tests are
satisfied with respect thereto, (C) such acquisition is required to be
made pursuant to the terms of the Green Spring Acquisition Documents as
a result of the occurrence of a GSHS Minority Interest Put and is made
in accordance in all material respects with the terms of the Green
Spring Acquisition Documents, and (D) after giving effect to such
purchase, the sum of the aggregate amount of Cash paid by the Company
and its Subsidiaries and the aggregate original principal amount of
Green Spring PSI issued by the Company, in each case in connection with
all purchases of GSHS Minority Shares pursuant to this Section 8.8(o),
shall not exceed $81,830,000, plus an amount equal to the aggregate
cash capital contributions made to Green Spring by Green Spring
Minority Shareholders after the Amendment No. 7 Green Spring Effective
Date and up to the date of any such purchase, less the aggregate value
of all shares of Company Common Stock issued or otherwise transferred
by the Company pursuant to this Section 8.8(o) in exchange for GSHS
Minority Shares (for purposes of the foregoing, the value of each share
of Company Common Stock so issued or otherwise trans ferred shall be
deemed to be $23.00); and
(iv) the Company and its Restricted
Subsidiaries may make, in addition to the Investments permitted by the
preceding clauses (i), (ii) and (iii) of this Section 8.8(o), up to,
in the aggregate, $50,000,000 of Investments of Cash and other assets
(other than Facilities) in Green Spring and its Subsidiaries, the
Clinical Services Unit and the MIS Unit, collectively; provided that
the amount of Investments permitted to be made at any time pursuant
to this clause (iv) shall be increased by the lesser of (A)
$30,000,000, and (B) the then Accumulated Excess Cash Flow; provided
further that no more than $50,000,0000 of such Investments in the
aggregate may be made at any time prior to the first anniversary of
the Closing Date, no more than $60,000,000 of such Investments in
the aggregate may be made at any time prior to the second anniversary
of the Closing Date, no more than $70,000,000 of such Investments in
the aggregate may be made at any time prior to the third anniversary
of the Closing Date and no more than $80,000,000 of such Investments
may be made in the aggregate; provided further that no such Investment
pursuant to this clause (iv) shall be permitted unless the Minimum
Income Tests and the Debt Service Coverage Tests are satisfied with
respect thereto; and, provided further, that the aggregate amount of
Investments otherwise permitted by this clause (iv) at any time shall
be reduced by the sum, without duplication, of (1) the then aggregate
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outstanding amounts (as determined in accordance with the definition of
Accommodation Obligations) of all guaranties made by the Company and
the Domestic Guarantors of Indebtedness and other obligations of Green
Spring, any of Green Spring's Subsidiaries, the Clinical Services Unit
and/or the MIS Unit, (2) all amounts paid by the Company or any
Domestic Guarantor at any time in complete or partial satisfaction of
any guaranty made by the Company or any Domestic Subsidiary of
Indebtedness or other obligations of Green Spring Holdings, any of
Green Spring's Subsidiaries, the Clinical Services Unit and/or the MIS
Unit, and (3) the aggregate amount of Investments that were made by the
Company and its Restricted Subsidiaries in the Clinical Services Unit
and/or the MIS Unit prior to the Closing Date;".
(e) Clause (ii)(B) of the last proviso to Section 8.8(r) of
the Credit Agreement is amended by inserting ", the Green Spring Acquisition and
other purchases by the Company of shares of common stock of Green Spring, but
only to the extent the aggregate amount paid or payable in Cash, property or
otherwise for all such other pur chases does not exceed $81,830,000, plus an
amount equal to the aggregate cash capital contributions made to Green Spring by
Green Spring Minority Shareholders after the Amendment No. 7 Green Spring
Effective Date and up to the date of any such purchase (it being understood
that, for purposes of the foregoing, the value of each share of Company Common
Stock issued in connection with any such purchase that is made pursuant to
Section 8.8(o)(iii) shall be deemed to be $23.00)" at the end of the paren
thetical contained in clause (1) thereof.
(f) Section 8.10(b) of the Credit Agreement is amended by (i)
inserting ", the Green Spring Acquisition and other purchases by the Company of
shares of common stock of Green Spring, but only to the extent the aggregate
amount paid or payable in Cash, property or otherwise for all such other
purchases does not exceed $81,830,000, plus an amount equal to the aggregate
cash capital contributions made to Green Spring by Green Spring Minority
Shareholders after the Amendment No. 7 Green Spring Effective Date and up to the
date of any such purchase (it being understood that, for purposes of the
foregoing, the value of each share of Company Common Stock issued in connection
with any such purchase that is made pursuant to Section 8.8(o)(iii) shall be
deemed to be $23.00)" after the term "NME Acquisition" in the tenth line of such
Section; and (ii) inserting "Green Spring and its Subsidiaries," before the
words "the Clinical Services Unit" in the second parenthetical appearing in
clause (B)(ii) of the last proviso to such Section.
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(g) Section 8.11(d) of the Credit Agreement is amended by (i)
inserting ", the Green Spring Acquisition Documents" after the term "NME
Purchase Agreement" the first time such term appears in such Section; and (ii)
inserting "or any of the conditions under the Green Spring Acquisition Documents
to its obligations to consummate all or any part of the Green Spring
Acquisition" after the term "NME Acquisition" at the end of such Section.
(h) The following is inserted after Section 8.16 of the
Credit Agreement:
"8.17 Certain Covenants Regarding Green Spring and
its Subsidiaries. If Green Spring becomes a 95% or more owned
Subsidiary of the Company, then (i) the Company shall give the Agent
notice thereof within 10 Business Days of the obtainment of such an
ownership interest, and (ii) promptly, and in any event, within 30 days
of the obtainment of such an owner ship interest, the Company shall
cause Green Spring and each of its 95% or more owned Subsidiaries
(other than Group Practice Affiliates, Inc. and its Subsidiaries) to
guaranty the Obligations and secure such guaranty and the Obli gations
with a perfected Lien on all of its assets (other than real property
and other types of assets that are not included as Collateral under the
Security Stock and Notes Pledge or the Subsidiary Pledge and Security
Agreement) pursuant to documents that are in form and substance
satisfactory to the Agent in its reasonable discretion, and (iii)
notwithstanding anything to the contrary con tained in the definition
of the term 'Unrestricted Subsidiary', each of Green Spring and its 95%
or more owned Subsidiaries (other than Group Practice Affiliates, Inc.
and its Subsidiaries) shall cease to be an Unrestricted Subsidiary upon
the entering into by it of the documents described in the preceding
clause (ii)."
(i) The following is inserted before the definition of
the term "Agreement" in Section 10 of the Credit Agreement:
"'Amendment No. 7 Green Spring Effective Date' shall
mean the date the amendments set forth in Section 3 of Amendment No. 7,
dated as of November 30, 1995, to this Agreement become effective in
accordance with the provisions of Section 5(b) thereof."
(j) The following is inserted after the definition of the
term "GAAP" in Section 10 of the Agreement:
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"'Green Spring' shall mean Green Spring Health
Services, Inc., a Delaware corporation.
'Green Spring Acquisition' shall mean the acquisition
by the Company of shares of common stock of Green Spring pursuant to
clauses (i) and (ii) of Section 8.8(o) hereof.
'Green Spring Acquisition Documents' shall mean,
collectively, each instrument and other agreement from time to time
entered into by the Company or any of its Subsidiaries in connection
with the Green Spring Acquisition or each and any acquisition by the
Company of GSHS Minority Shares, including, without limitation, each
and any stock purchase agreement and contribution agreement in respect
thereof, each and any shareholder or other similar agreement entered
into with any Green Spring Minority Shareholder or any other holder of
equity interests in Green Spring, each document evidencing or governing
the terms of any Green Spring PSI and each other agreement and
instrument from time to time entered into by the Company or any of its
Subsidiaries pursuant to or in respect of any of the foregoing
documents, in each case as amended, supplemented or otherwise modified
from time to time in accordance with the terms hereof.
'Green Spring Cash Consideration Amount' shall mean
$80,000,000 less, if any portion of the consideration to be paid by the
Company for shares of common stock of Green Spring pursuant to the
Green Spring Acquisition Document is shares of Company Common Stock,
the product of the number of all such shares of Company Common Stock
times the second highest of $20.00, $22.00 and the market value per
share (as determined in accordance with the applicable provisions of
the Green Spring Acquisition Documents) of the Company Common Stock on
the Amendment No. 7 Green Spring Effective Date.
'Green Spring Minority Shareholders' shall mean,
collectively, Blue Cross and Blue Shield of New Jersey, Inc., Health
Care Service Corpora tion, Independence Blue Cross, Medical Service
Association of Pennsylvania, Xxxxxx County Medical Bureau, Inc.,
Veritus, Inc. and their respective successors and permitted transferees
(other than the Company and any of its Subsidiaries) of common stock of
Green Spring under the Green Spring Acquisition Docu ments.
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'Green Spring PSI' shall mean unsecured Indebtedness
of the Company which (a) is issued by the Company in consideration for
the acquisi tion by the Company of any GSHS Minority Shares as a result
of the occurrence of a GSHS Minority Interest Put; (b) has a final
maturity that is no earlier than the seventh anniversary of the
Amendment No. 7 Green Spring Effective Date; (c) is not guaranteed by
any Person; (d) does not provide for any scheduled repayments, required
prepayments, fixed sinking fund payments, serial maturi ties, required
offers to purchase or similar payments in respect of all of any of the
principal of such Indebtedness prior to the final maturity thereof; (e)
does not permit any holder of such Indebtedness to declare all or any
part of such In debtedness to be paid or purchased before the final
maturity thereof for any reason other than the occurrence of a default
in respect thereof; (f) does not con tain any financial maintenance
covenants or a cross-default (although it may contain a
cross-acceleration to, and a cross-default to a payment default upon
the express final maturity of, Indebtedness having an outstanding
aggregate prin cipal amount of no less than $15,000,000, individually,
and $30,000,000 in the aggregate); (g) is subordinated to the
Obligations pursuant to provisions that are no less favorable in any
material respect to the Lenders than those contained in the
Subordinated Debt Documents and that are consented to by the Agent in
its sole discretion; (h) is pari passu with or subordinated to the
Senior Subordinated Notes; (i) bears interest at a rate that is less
than or equal to 10% per annum, and has payment dates for such interest
that occur no more frequently than semi-annually; and (j) is incurred
pursuant to documentation containing terms, condi tions, covenants,
events of default and other provisions that are consistent with the
foregoing provisions of this definition and are consented to by the
Agent in its sole discretion.
'GSHS Asset Sale' shall mean the occurrence of each
and any sale, conveyance, transfer or other disposition (including,
without limitation, as a result of a merger or consolidation) or series
of related sales, conveyances, transfers or other dispositions by Green
Spring or any of its Subsidiaries to any Person other than the Company,
a Domestic Guarantor, Green Spring or a 95% or more owned Subsidiary of
Green Spring of all or any substantial portion of (a) any class of
equity interests owned by it of any Subsidiary of Green Spring, or (b)
the assets of Green Spring or any of its Subsidiaries, in any such case
that have (i) individually, a fair market value in excess of
$1,000,000, or (ii) in the aggregate during any fiscal year of the
Company a fair market value in excess of $5,000,000 (aggregating, for
purposes of this clause (ii), such sales, conveyances, transfers and
other dispositions, or series of related sales, conveyanc-
13
es, transfers and other dispositions, involving equity interests or
other assets having a fair market value in excess of $200,000 and less
than or equal to $1,000,000); provided that no sale, conveyance,
transfer or other disposition of any asset described in clauses (a)
or (b) above shall constitute a GSHS Asset Sale if the same also
constitutes an Asset Sale.
'GSHS Minority Interest Put' shall mean an election
made by any Green Spring Minority Shareholder pursuant to and in
accordance with the terms of the Green Spring Acquisition Documents
entered into on or prior to the Amendment No. 7 Green Spring Effective
Date (as amended, supplemented or otherwise modified in accordance with
the terms hereof) to sell to the Company all or any portion of the GSHS
Minority Shares owned by such Green Spring Minority Shareholder.
'GSHS Minority Interest Put Amount' shall mean, with
respect to any GSHS Minority Shares subject to a GSHS Minority Interest
Put, the product of $167,000,000 and the percentage of the entire
outstanding common stock of Green Spring represented by such GSHS
Minority Shares.
'GSHS Minority Shares' shall mean, as of any time of
determina tion, the shares of common stock of Green Spring owned by the
Green Spring Minority Shareholders at such time of determination.
'GSHS Prepayment Event' shall mean the occurrence of
each and any GSHS Asset Sale and either (a) a distribution or other
transfer to the Company or any Restricted Subsidiary of all or any
portion of the Net Proceeds of (or a distribution or other transfer to
the Company or any Restricted Subsid iary of Cash or any other assets
is made in connection with or as a result of) such GSHS Asset Sale, or
(b) the failure of all or any portion of the Net Proceeds of such GSHS
Asset Sale to be reinvested in the business of Green Spring or any of
its Subsidiaries or distributed or otherwise transferred to the
shareholders of Green Spring within 270 days of Green Spring's or such
Subsidiaries', as the case may be, receipt thereof."
(k) Clause (a) of the definition of the term "Net Proceeds" in
Section 10 of the Credit Agreement is amended by (i) inserting the words "or
GSHS Asset Sale" after the term "Asset Sale" the first time such term appears in
such clause (a); (ii) inserting the parenthetical (or Green Spring and its
Subsidiaries in the case of a GSHS Asset Sale)" after the term "Restricted
Subsidiaries" the first time such term appears in
14
such clause (a); and (iii) inserting the words "or GSHS Asset Sale, as the case
may be" before the semi-colon appearing before the proviso to such clause (a).
(l) The definition of the term "Permitted Subordinated
Indebtedness" in Section 10 of the Credit Agreement is amended by (i) deleting
the word "and" before the beginning of clause (b) thereof; (ii) inserting the
parenthetical "(other than Green Spring PSI)" after the words "any other
unsecured Indebtedness of the Company" appearing at the beginning of clause (b)
of such definition; and (iii) inserting "; and (c) Green Spring PSI" after the
word "business" appearing at the end of such definition.
Section 4. Representations and Warranties. The Company
hereby represents and warrants to the Agent and the Lenders that:
(a) The Company has furnished to the Agent for the benefit of
the Lenders prior to the date hereof (i) a copy of (A) the audited consolidated
balance sheets of Green Spring and its Subsidiaries as of December 31, 1994,
together with the related audited consolidated statements of operations and cash
flows of Green Spring and its Subsidiaries for the fiscal year of Green Spring
then ended, and (B) the unaudited consolidated balance sheet of Green Spring and
its Subsidiaries as of June 30, 1995, together with the related unaudited
consolidated statements of operations and cash flows of Green Spring and its
Subsidiaries for the six-month period then ended; and (ii) a copy of the
unaudited pro forma projected consolidated balance sheet of the Company and its
Subsidiaries (after giving effect to the Green Spring Acquisition and the
financing there of) as of September 30, 1995, and the unaudited pro forma
projected consolidated state ments of operations for the Company and its
Subsidiaries (after giving effect to the Green Spring Acquisition and the
financing thereof) for the year ended September 30, 1995. The financial
statements referred to in clause (i) above fairly present in all mate rial
respects the financial condition and results of operations of the entities
covered thereby on the dates and/or for the periods covered thereby, all, except
as set forth in Schedule 6.4 to the Credit Agreement, in accordance with GAAP
consistently applied, subject, in the case of any such interim or unaudited
financial statements referred to above, to normal, recurring adjustments and the
absence of footnotes thereto. The pro forma projected financial statements
described in clause (ii) above were prepared by the Company in a reasonable
manner consistent, to the extent they include periods covered by the financial
statements described in clause (i) above or financial statements delivered by
the Company pursuant to the Credit Agreement, with GAAP (except as set forth on
Schedule 6.4 to the Credit Agreement) and, with respect to the portion of the
period covered by such pro forma projected financial statements that are not
covered by such other financial statements, represent the Company's good faith
estimate of its,
15
Green Spring's and its other Subsidiaries consolidated financial condition and
perfor xxxxx for such portion of such period, it being understood that such pro
forma projected financial statements are not necessarily indicative of the
results which would have actually been attained had the Green Spring Acquisition
been completed as of the dates and for the periods presented in such pro forma
financial statements or that such future financial condition or results of
operations will in fact be achieved. Although the xxxxx cial statements referred
to in clause (i) of this paragraph were provided to the Company by Green Spring,
the Company believes the same were prepared in good faith and has no reason to
believe the information set forth therein is inaccurate in any material re
spect. As of the date hereof and the Green Spring Effective Date, except as
permitted by the Credit Agreement as amended hereby, no material contingent
liabilities of the Company, Green Spring or any of their respective Subsidiaries
exist which are not fully disclosed in all material respects in the financial
statements described in clause (i) or (ii) above, the most recent financial
statements of the Company delivered to the Lenders pursuant to the Credit
Agreement or in the related notes or schedules thereto.
(b) After giving effect to the consummation of the Green
Spring Acquisition, the Company will own at least 51% of all of the shares of
each class of stock of Green Spring on a fully diluted basis.
(c) The execution and delivery by the Company of this
Amendment and the Green Spring Acquisition Documents, the performance by the
Company and the other Credit Parties, as applicable, of this Amendment, the
other Credit Documents as amended or otherwise modified hereby and the Green
Spring Acquisition Documents and the consummation by the Company and the other
Credit Parties, as applicable, of the transactions contemplated hereby and
thereby are within the Company's and the other Credit Parties', as applicable,
corporate powers, have been duly authorized by all necessary corporate or other
action and will not (i) contravene the certificate or articles of incorporation
or the bylaws of the Company or any of its Subsidiaries, (ii) contravene any
law, regulation, order, writ, judgment, decree, determination or award currently
in effect binding on or affecting the Company or any of its Subsidiaries or any
of their re spective assets, except where such contravention would not have a
Material Adverse Effect, or (iii) conflict with or result in any breach of any
of the terms, covenants, condi tions or provisions of, or constitute a default
under, or result in the creation or impo sition of any Lien (except pursuant to
the Security Documents) upon any of the property or assets of the Company or any
of its Subsidiaries pursuant to the terms of, any inden ture, mortgage, deed of
trust, agreement or other instrument (including, without limita tion, the Senior
Subordinated Notes Indenture) to which the Company or any of its Sub sidiaries
is a party or by which the Company, any of its Subsidiaries or any of their
16
respective properties or assets is bound or subject to, except to the extent
such conflict, breach, default or creation or imposition would not have a
Material Adverse Effect.
(d) Except (i) such as have been duly obtained, made or given
and are in full force and effect, (ii) as fully disclosed on Schedule 6.7 to the
Credit Agreement, or (iii) in the case of the performance or consummation of all
or any portion of the Green Spring Acquisition Documents or the Green Spring
Acquisition, respectively, such as will be duly obtained, made or given and be
in full force and effect at the time of such performance or consummation, as
applicable, no material order, consent, approval, license, authorization or
validation of, or filing, recording or registration with, or notice to or
exemption by any governmental or public body or authority, domestic or foreign,
or any subdivision thereof, or any other Person or group of Persons is required
to authorize, or is required in connection with (A) the execution, delivery or
perfor xxxxx of this Amendment, any Green Spring Acquisition Document, the
Credit Documents as amended or otherwise modified hereby or the consummation of
the Green Spring Acquisition or any of the other transactions contemplated
hereby or thereby (in cluding, without limitation, any such consents that are
required for the pledge to the Col lateral Agent under the Company Stock and
Notes Pledge of the common stock of Green Spring from time to time owned by the
Company and to the foreclosure upon the same by the Collateral Agent); or (B)
the legality, validity, binding effect or enforceability of this Amendment, any
Green Spring Acquisition Document, any Credit Document as amended or otherwise
modified hereby, the Green Spring Acquisition or any of the other transactions
contemplated hereby or thereby.
(e) Each Green Spring Acquisition Document from time to time
entered into by the Company will constitute the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, except to the extent that enforcement may be limited by applicable
bankruptcy, insolvency, reorga nization, moratorium or similar laws affecting
the enforcement of creditors' rights generally, and by general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law).
(f) This Amendment and the other Credit Documents as amended
or otherwise modified hereby constitute the legal, valid and binding obligations
of the Company and the other Credit Parties party thereto, enforceable against
the Company and such Credit Parties in accordance with their respective terms,
except to the extent such enforceability may be limited by applicable
bankruptcy, insolvency, reorganiza tion, moratorium or similar laws affecting
the enforcement of creditors' rights generally,
17
and by general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law).
(g) On and as of the date hereof, and both before and after
giving effect to this Amendment, no Default or Event of Default has occurred and
is continuing.
(h) The representations and warranties of the Company and the
other Credit Parties contained in the Credit Agreement and the other Credit
Documents are true and correct on and as of the date hereof as if made on and as
of the date hereof and will be true and correct on and as of the Green Spring
Effective Date both before and after giving effect to the effectiveness of this
Amendment, except, in either such case, to the extent such representations and
warranties expressly relate to a specific date.
(i) The representations and warranties of the Company that
will be set forth in the Green Spring Acquisition Documents will be true and
correct in all material respects as of the respective dates on which they are
made and, to the extent remade on any date, will be true and correct in all
material respects as of the date remade. Except as disclosed in writing to the
Agent for the account of the Lenders, all of the conditions precedent to the
obligations of the Company under the Green Spring Acquisition Documents that are
required to be satisfied on or prior to the closing date of the Green Spring
Acquisition will have been satisfied as of such date in all material respects,
without any waiver thereof not consented to by the Agent in writing.
Section 5. Conditions Precedent to Effectiveness. (a) The
effectiveness of the amendments to the Credit Documents set forth in Sections 1
and 2 hereof and the rescission set forth therein of Amendment No.6 is subject
to the satisfaction of the fol lowing conditions precedent on or prior to
December 31, 1995:
(i) Amendment No. 7. The Agent shall have receive
duly executed counterparts of this Amendment from the Company, each
Subsidiary of the Company that is a party to any Credit Document and
as many of the Lenders as shall be necessary to comprise the "Required
Lenders".
(ii) Representations and Warranties. The
representations and warranties contained in Section 4 hereof shall be
true and correct on and as of the date hereof as though made on and as
of the date hereof both before and after giving effect to this
Amendment, except for such representations and warranties which
expressly relate to a different date.
18
(iii) Appointment Form. For purposes of the
effectiveness of Section 2 hereof, the Agent shall have received a form
appointing Corporation Service Company as agent for service of process
executed by each of the Credit Parties, which appointment form shall be
reasonably satisfactory in form and substance to the Agent.
(b) Except as otherwise provided in the introductory paragraph
to Section 3 hereof, the effectiveness of the amendments to the Credit Agreement
set forth in Sec tion 3 hereof is subject to the satisfaction of the following
conditions precedent on or prior to December 31, 1995 (the date, if any, on
which Section 3 hereof becomes effec tive is the "Green Spring Effective Date"):
(i) Amendment No. 7. The Agent shall have received
duly executed counterparts of this Amendment from the Company, each
Subsidiary of the Company that is a party to any Credit Document and
as many of the Lenders as shall be necessary to comprise the "Required
Lenders".
(ii) Officer's Closing Certificate. The Agent shall
have received (with a copy for each of the Lenders) a certificate dated
the Green Spring Effective Date of the Chief Executive Officer, Chief
Financial Officer or the Treasurer of the Company certifying that on
and as of the Green Spring Effec tive Date: (i) no Default or Event of
Default has occurred and is continuing either before or after giving
effect to the Green Spring Acquisition, (ii) the repre sentations and
warranties of the Company and the other Credit Parties set forth in
this Amendment and the other Credit Documents are true and correct on
and as of the Green Spring Effective Date both before and after giving
effect to the Green Spring Acquisition, except to the extent such
representations and warran ties expressly relate to a different
specific date, and (iii) the other conditions precedent set forth in
this Section 5 have been satisfied.
(iii) Green Spring Corporate Documents. The Agent
shall have received (with a copy for each of the Lenders) true, correct
and complete copies of the Articles of Incorporation and By-laws of
Green Spring as in effect immediately after giving effect to the Green
Spring Acquisition, and such Articles of Incorporation and By-laws
shall be in form and substance satisfactory to the Agent in its
reasonable discretion.
(iv) Opinion of the Company's Counsel. The Agent
shall have received (with a copy for each of the Lenders) a favorable
opinion dated the
19
Green Spring Effective Date of King & Spalding, counsel for the
Company, as to such matters as the Agent may reasonably request, which
opinion shall be in form and substance satisfactory to the Agent in its
reasonable discretion.
(v) Green Spring Acquisition Documents. The Company
shall have entered into a stock purchase or similar agreement or
agreements in respect of the Green Spring Acquisition (collectively,
the "Stock Purchase Agreements") that are in form and substance
satisfactory to the Agent in its sole discretion. Each of the other
Green Spring Acquisition Documents entered into (or to be en tered into
pursuant to the Stock Purchase Agreements or otherwise) in connec tion
with the consummation of the Green Spring Acquisition (including,
without limitation, the exhibits and schedules thereto) and the
structure of the Green Spring Acquisition shall be in form and
substance satisfactory to the Agent in its sole discretion, such other
Green Spring Acquisition Documents shall have been duly executed and
delivered by the parties thereto, and neither the Stock Purchase
Agreements nor any such other Green Spring Acquisition Document shall
have been amended in any material respect without the prior written
consent of the Agent. The Agent shall have received (with copies for
each of the Lenders) executed copies of each of the Stock Purchase
Agreements and the other Green Spring Acquisition Documents as in
effect on the Green Spring Effective Date, certified as of such date as
being true and correct copies thereof by an authorized officer of the
Company, and such Green Spring Acquisition Documents shall be in full
force and effect. The certificates and opinions to be delivered to, by
or on behalf of the Company or any of its Subsidiaries pursuant to any
Green Spring Acquisition Document shall be addressed to the Lenders or
shall be accompanied by letters, in form and substance satisfactory to
the Agent in its reasonable discretion, entitling the Lenders to rely
thereon.
(vi) Consummation of Green Spring Acquisition. The
Green Spring Acquisition shall have been consummated in accordance in
all material respects with all of the terms of the Stock Purchase
Agreements and the other applicable Green Spring Acquisition Documents,
and none of the conditions precedent set forth therein to the
obligations of the Company to consummate all or any portion of the
Green Spring Acquisition shall have been waived by the Company without
the prior written consent of the Agent. Immediately after giving effect
to the consummation of the Green Spring Acquisition, (i) Green Spring
shall be a Subsidiary of the Company and the Company shall be the owner
of at least 51% of all of the outstanding shares of capital stock of
Green Spring, (ii) the sole outstanding shares of stock of Green Spring
shall be
20
common stock, and (iii) except as contemplated by the section of the
Term Sheet entitled "Terms of Exchange Agreement", there shall be no
outstanding secu rities that are convertible into or exchangeable for
capital stock of, or other equity interests in, Green Spring or any
rights to subscribe for or purchase, any warrants or options for the
purchase of, any agreements providing for the issu ance (contingent or
otherwise) of, or any calls, commitments or claims of any character
relating to, any capital stock of or other equity interests in Green
Spring or any securities convertible or exchangeable therefor.
(vii) Pledge of Acquired Green Spring Stock. The
Collateral Agent shall have a valid and enforceable perfected security
interest in and Lien on all of the shares of stock of Green Spring
acquired by the Company pursuant to the Green Spring Acquisition (the
"Acquired Green Spring Stock") that is superior and prior to the rights
of all other Persons therein (as provided in the Uniform Commercial
Code) and subject to no other Liens other than Liens permitted by the
Credit Agreement. In furtherance thereof, the Company shall have
delivered to the Collateral Agent for the benefit of the Lenders
pursuant to the Company Stock and Notes Pledge share certificates in
the name of the Company and representing all of the Acquired Green
Spring Stock, together with undated stock powers therefor duly executed
in blank by the Company and a certificate dated the Green Spring
Effective Date meeting the requirements of Section 4.2 of the Company
Stock and Notes Pledge, which certificate shall be dated the Green
Spring Effective Date.
(viii) Financial Statements. The Agent shall have
received (with copies for each of the Lenders) such financial
statements of Green Spring and its Subsidiaries as are delivered to the
Company pursuant to the Green Spring Acquisition Documents in
connection with the consummation of the Green Spring Acquisition and,
in any event, an unaudited consolidated balance sheet of Green Spring
and its Subsidiaries as of a date that is no more than 60 days prior to
the Green Spring Effective Date, together with related unaudited consol
idated statements of operations and, if available, cash flows of Green
Spring and its Subsidiaries for the period commencing on January 1,
1995 and ending on the date of such balance sheet; in each case
accompanied by a certificate of the chief financial officer of the
Company that is in form and substance satisfactory to the Agent.
(ix) Projections. The Agent shall have received
(with copies for each of the Lenders) projections prepared by the
Company demonstrating the
21
projected consolidated financial condition, results of operations and
cash flows of the Company, Green Spring and the Company's other
Subsidiaries after giving effect to the Green Spring Acquisition, in
each of the foregoing cases for the period commencing on October 1,
1995 and ending on September 30, 1999, and accompanied by a certificate
of an executive officer of the Company certi fying that such
projections, as of the date of preparation thereof, are reasonable and
represent the Company's good faith estimate of its, Green Spring's and
its other Subsidiaries' consolidated financial condition and
performance after giving effect to the Green Spring Acquisition, it
being understood that nothing con tained in such certificate shall
constitute a representation or warranty that such future financial
condition or results of operations will in fact be achieved. The
foregoing shall be in form and substance satisfactory to the Agent.
(x) Material Events. No event, action or proceeding
shall have occurred or condition shall have arisen at any time after
June 30, 1995 with re spect to any Credit Party, any Transaction
Document or any Transaction which the Agent or the Required Lenders by
notice to the Agent has reasonably deter mined could have a Material
Adverse Effect either before or after giving effect to the consummation
of the Green Spring Acquisition. No event, action or pro ceeding shall
have occurred or condition shall have arisen at any time after December
31, 1994 with respect to Green Spring, any Green Spring Acquisition
Document or any of the transactions contemplated hereby or thereby
which the Agent or the Required Lenders by notice to the Agent has
reasonably determined could have a Material Adverse Effect either
before or after giving effect to the Green Spring Acquisition or a
material adverse effect on the business, property, assets, condition
(financial or otherwise), liabilities or operations of Green Spring and
its Subsidiaries taken as a whole.
(xi) Absence of Litigation. There shall be no pending
or threatened action, proceeding or investigation seeking to enjoin or
challenging, or seeking damages in connection with, this Amendment, any
other Credit Document, any Green Spring Acquisition Document or the
consummation of the Green Spring Acquisition or any of the other
transactions contemplated hereby or thereby that, in the sole judgment
of the Agent is, individually or in the aggregate, likely to have a
Material Adverse Effect or otherwise material.
(xii) Representations and Warranties. The
representations and warranties contained in Section 4 hereof shall be
true and correct on and as of the Green Spring Effective Date as though
made on and as of the Green Spring
22
Effective Date both before and after giving effect to the Green Spring
Acqui sition, except for such representations and warranties which
expressly relate to a different date.
(xiii) Corporate Proceedings, etc. All corporate,
partnership and legal proceedings and all instruments and agreements in
connection with the transactions contemplated by this Amendment and the
Green Spring Acquisition Documents shall be satisfactory in form and
substance to the Agent in its sole discretion, and the Agent shall have
received (with copies for each of the Lenders) all information and
copies of all documents and papers, including, without limitations,
certified records of corporate and partnership proceedings and
governmental approvals, if any, which the Agent, on behalf of any
Lender, may have reasonably requested in connection with the
consummation of the Green Spring Acquisition and the other transactions
contemplated hereby.
Section 6. Status of Credit Documents. This Amendment is
limited solely for the purposes and to the extent expressly set forth herein,
and, except as ex pressly modified hereby, the terms, provisions and conditions
of the Credit Documents and the Liens granted thereunder shall continue in full
force and effect and are hereby ratified and confirmed in all respects.
Section 7. Counterparts. This Amendment may be executed and
delivered in any number of counterparts and by the different parties hereto on
separate counterparts, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument. A complete set of counterparts shall be lodged with the Company and
the Agent.
Section 8. Governing Law. THIS AMENDMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH, AND SHALL BE GOVERNED BY, THE
LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAW PRINCIPLES THEREOF).
23
IN WITNESS WHEREOF, the parties hereto have caused their
respective duly authorized officers to execute and deliver this Amendment No. 7
to the Second Amended and Restated Credit Agreement as of the date first above
written.
CHARTER MEDICAL CORPORATION
By:________________________
Name:
Title:
BANKERS TRUST COMPANY,
as Agent and a Lender
By:________________________
Name:
Title:
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA, as Co-Agent
and a Lender
By:________________________
Name:
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By:________________________
Name:
Title:
00
XXXX XX XXXXXXX
By:________________________
Name:
Title:
BANQUE FRANCAISE COMMERCE
D'EXTERIEUR
By:________________________
Name:
Title:
CREDIT LYONNAIS,
Cayman Islands Branch
By:________________________
Name:
Title:
DRESDNER BANK AG, New York and
Grand Cayman Islands Branches
By:________________________
Name:
Title:
By:________________________
Name:
Title:
25
GENERAL ELECTRIC CAPITAL
CORPORATION
By:________________________
Name:
Title:
GIROCREDIT BANK AG DER
SPARKESSEN
By:________________________
Name:
Title:
THE BANK OF NEW YORK
By:________________________
Name:
Title:
THE MITSUBISHI BANK, LIMITED,
New York Branch
By:________________________
Name:
Title:
26
Consented and agreed to as of the date first above written by each of the
entities listed on Schedule I hereto:
By:____________________
Name:
Title: ,
of each of the entities
listed on Schedule I hereto
27
