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Exhibit 4.1
THIRD AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
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THIS THIRD AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT ("Third Amendment")
is made and entered into as of March 28, 1997 by and between Arbor Health Care
Company, a corporation organized and existing under the laws of the State of
Delaware, located at 0000 Xxxxxxx Xxxx, Xxxx, Xxxx 00000 ("Company"), and Bank
One, Lima, NA, 000 Xxxx Xxxx Xxxxxx, Xxxx, Xxxx 00000, ("Bank One").
WITNESSETH:
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WHEREAS, Company and Bank One entered into an Amended and Restated Loan
Agreement dated August 1, 1995, as amended by that certain Amendment to
Amended and Restated Loan Agreement dated as of February 1, 1996, and as further
amended by that certain Second Amendment to Amended and Restated Loan and
Security Agreement dated as of December 30, 1996 (the "Agreement") pursuant to
which Company obtained loans from Bank One up to the maximum amount of Fourteen
Million Dollars ($14,000,000.00); and
WHEREAS, Company and Bank have agreed to amend the Agreement in order to change,
among other things, the amount of the Revolving Credit Loan, upon the terms and
conditions hereinafter set forth;
NOW, THEREFORE, the parties agree as follows:
A. The first sentence of Section 1.1 of the Agreement is hereby deleted and
replaced by the following:
For the period through July 1, 1998 Bank One hereby agrees to lend
Company up to the maximum aggregate amount of Fifteen Million Dollars
($15,000,000.00) (the "Credit Commitment").
B. Section 1.1, 1. of the Agreement is hereby deleted and replaced by the
following:
A Revolving Credit Loan in the maximum amount of Two Million Dollars
($2,000,000.00), which amount shall be reduced by Three Hundred Twenty
Five Thousand Dollars ($325,000.00), the obligation of Bank One now
existing under letters of credit referred to in Section 1.2.2;
C. The first sentence of Section 1.2.1 of the Agreement is hereby deleted and
replaced by the following:
Company shall execute and deliver to Bank One a promissory note in the
form of Exhibit "A-3" attached hereto (hereinafter referred to as the
"Revolving Credit Note").
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D. Section 1.2.2 of the Agreement is hereby deleted and replaced by the
following:
The proceeds of the Revolving Credit Note shall be used only to fund
Company's working capital needs and to allow Company to obtain letters
of credit, which letters of credit may be limited, in the sole
discretion of Bank One, to the aggregate outstanding amount of One
Million Dollars ($1,000,000.00), and which shall have expiration
date(s) of not later than the maturity date of the Revolving Credit
Note, of which Three Hundred Twenty Five Thousand Dollars ($325,000.00)
is now outstanding in the form of letters of credit dated October 25,
1996 and September 30, 1996 in which SouthTrust Bank Alabama, N.A. is
the beneficiary, which expire no later than October 25, 1997 and
September 30, 1997, respectively. The credit commitment referenced in
Section 1.1, as it relates to the Revolving Credit Loan, shall be
reduced by the amount of any other letter(s) of credit which are issued
hereunder.
E. In Section 8.1, the definition of "Revolving Credit Note" is hereby deleted
and replaced with the following:
"Revolving Credit Note" shall mean the note in the form of Exhibit
"A-3" attached hereto executed by Company and delivered to Bank One
pursuant to Section 1.2.1 hereof.
F. Company shall execute and deliver to Bank One an Amended and Restated
Revolving Credit Note in the form and substance of Exhibit "A-3".
G. This Third Amendment is a revision only and not a novation, and except as
specifically modified by the terms and conditions of this Third Amendment, all
of the terms and conditions of the Agreement remain in full force and effect.
THE PARTIES HAVE HEREUNTO SET THEIR HANDS and caused this Third Amendment to be
duly executed by their respective duly-authorized officers on the day and year
set forth below.
BANK ONE, LIMA, NA ARBOR HEALTH CARE COMPANY
By: /s/ Xxxx Xxxxxxxx By: /s/ X. X. Xxxxxxxxxxx
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Its: Vice President Its: VP and Treasurer
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Date: March 28, 1997 Date: March 28, 1997
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EXHIBIT "A-3"
REVOLVING CREDIT NOTE
$2,000,000.00 Lima, Ohio March ___, 1997
On or before July 1, 1998, for value received, the undersigned promises to pay
to the order of Bank One, Lima, NA (hereinafter called "Bank One") the sum of
Two Million Dollars ($2,000,000.00) or such lesser portion thereof as may from
time to time be disbursed to, or for the benefit of the undersigned, with
interest (computed on the basis of the actual number of days elapsed divided by
a year of 360 days) before maturity on the balance from time to time remaining
unpaid at the rate or rates provided for in that certain Amended and Restated
Loan Agreement dated ________________, 1995 (the "Loan Agreement"). Both
principal and interest are payable in lawful money of the United States at the
Main Office of Bank One, 000 Xxxx Xxxx Xxxxxx, Xxxx, XX 00000.
This promissory note evidences a borrowing under and is entitled to the benefits
of the Loan Agreement. The principal may become due or may be declared forthwith
due and payable in the manner and upon the terms and conditions and with the
effect provided in said Loan Agreement.
THE UNDERSIGNED, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE, BETWEEN BANK ONE AND THE UNDERSIGNED ARISING OUT OF, IN CONNECTION
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THE
UNDERSIGNED AND BANK ONE IN CONNECTION WITH THIS PROMISSORY NOTE, THE LOAN
AGREEMENT, OR ANY OTHER AGREEMENT OR DOCUMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO. THIS WAIVER SHALL NOT IN
ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY BANK ONE'S ABILITY TO PURSUE
REMEDIES PURSUANT TO ANY CONFESSION OF JUDGMENT OR COGNOVIT PROVISION CONTAINED
IN THIS PROMISSORY NOTE OR ANY OTHER DOCUMENT RELATED HERETO.
The undersigned authorize(s) any attorney-at-law to appear for the undersigned
in an action on this promissory note, at any time after the same becomes due, as
herein provided, in any court of record in or of the State of Ohio, or
elsewhere, to waive the issuing and service of process against the undersigned,
and to confess judgment in favor of the legal holder of this promissory note
against the undersigned, for the amount that may be due, with interest at the
rate therein mentioned and cost of suit, and to waive and release all errors in
said proceedings and judgment, and all petitions in error, and right of appeal
from the judgment rendered.
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WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
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ARBOR HEALTH CARE COMPANY
By:
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Its:
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