AMENDMENT NO. 6
TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT NO. 6 dated as of October 17, 1995 (this "Amendment") 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 and Amendment No. 5
thereto dated as of March 17, 1995, the "Credit Agreement"), each among CHARTER
MEDICAL CORPORATION, a Delaware corporation (the "Compa ny"), 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, subject to and upon the terms and conditions set
forth in the term sheet attached hereto as Exhibit A (the "Term Sheet"), (a) the
Company will pur chase from the Green Spring Minority Shareholders outstanding
common stock (the "Acquired Green Spring Stock") of Green Spring Health
Services, Inc., a Delaware corporation, and (b) substantially concurrent with
such purchase, (i) the Company will contribute the Acquired Green Spring Stock
and certain other assets to a newly formed corporation in exchange for 51% of
the common stock of such newly formed corporation (the "Acquired Green Spring
Holdings Stock"), and (ii) the Green Spring Minority Shareholders will
contribute outstanding common stock of Green Spring to such newly formed
corporation in exchange for 49% of the common stock and 100% of the preferred
stock of such newly formed corporation;
WHEREAS, the Company has requested that the Credit Agreement
be amended to, among other things, (a) permit the Green Spring Acquisition, and
(b) exclude the Green Spring Acquisition from the investment baskets currently
provided the Company by the Credit Agreement;
WHEREAS, the Company, the Lenders, the Agent and the Co-Agent
have agreed that Sections 8.4(a)(i)(A), 8.2(i)(iii), 8.8(n)(iii), 8.2(j)(v),
8.2(k)(v), and
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8.5(e)(v) of the Credit Agreement do not, and were not intended to, prohibit
provisions relating to declaration or payment of dividends and distributions by
Permitted Joint Ventures which are described in the definition of Permitted JV
Distribution Provisions in this Amendment; and the Company, the Lenders, the
Agent and the Co-Agent have agreed to document the same by adding such
definition to the Credit Agreement and appropriate references to such definition
to such Sections of the Credit Agreement;
WHEREAS, the Credit Parties have requested that each of the
Credit Documents be amended to change the designated agent for service of
process from CT Corporation to Corporation Service Company; and
WHEREAS, subject to and upon the terms and conditions
hereinafter set forth and in the Credit Agreement as amended hereby, the Lenders
party hereto are will ing to agree to the foregoing;
NOW, THEREFORE, the parties hereto hereby agree as follows:
Section 1. Initial Amendments to Credit Agreement. Effective
as of the Initial Effective Date (as defined in Section 5 hereof), the Credit
Agreement is amended as of the date hereof as follows:
(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 the Amendment No. 6 Initial Effective Date
shall not be re quired 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) consolidated
with the Company for federal, state, local or foreign income tax
purposes".
(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:
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"(xi) from time to time after the Amendment No. 6
Initial Effec tive Date and prior to the earlier to occur of (1)
December 31, 1995 and (2) the closing date of the Green Spring Initial
Acquisition, the Company may repur chase 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 by the Company in connection
with such repurchases shall not exceed $18,290,000; (B) the Minimum
Income Tests and the Debt Service Coverage Tests are satisfied with
respect to each such repurchase; (C) if the Company repurchases Company
Common Stock after the Amendment No. 6 Initial Effective Date and prior
to the earlier to occur of (1) December 31, 1995 and (2) the closing
date of the Green Spring Initial Acquisition, and such repurchases are
also permitted pursu ant 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
clause (A) above; (D) within 120 days following the earlier to occur of
(1) December 31, 1995 and (2) the closing date of the Green Spring
Initial Acquisition, the Company shall consummate a public offering of
Company Common Stock which results 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 product of (x) the shares of
Company Common Stock (i) issued or sold to the Green Spring Minority
Shareholders on or prior to the closing date of the Green Spring
Initial Acquisition in connection with the consummation thereof or (ii)
contributed to Green Spring Holdings pursuant to Section 8.8(o)(ii), it
being understood that such shares of Company Common Stock shall not be
con sidered contributed for purposes of this clause (ii) if the Company
or Green Spring Holdings could be adversely affected in any way as a
result of any future decline in value of such Company Common Stock or
as a result of any negative tax consequences upon the sale or other
disposition of such Company Common Stock 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 Green Spring
Acquisition Documents) of the Company Common Stock on the Amend ment
No. 6 Green Spring Effective Date, it being understood that such
product shall be zero if the Green Spring Acquisition is not
consummated on or prior to December 31, 1995 or if Company Common Stock
is not issued or sold to such Green Spring Minority Shareholders or
contributed to Green Spring Holdings in connection with the
consummation of such Green Spring Acquisition; pro vided 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
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"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 (D); provided
further that, if the Company does not so consummate such public
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 Proceeds
that the Company would have received if it had consummated such public
offering in compliance with this clause (D); and (E) the Company
complies 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:
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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".
(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:
", 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 following is inserted after the definition of the
term "Agreement" in Section 10 of the Agreement:
"'Amendment No. 6 Initial Effective Date' shall mean
the date the amendments set forth in Sections 1 and 2 of Amendment No.
6, dated as of October 17, 1995, to this Agreement become effective in
accordance with the provisions of Section 5(a) thereof."
(i) 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
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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).
(j) 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 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 the
Initial Effective Date, each of the Credit Documents is amended as of the date
hereof by revok ing 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 the Initial
Effective Date):
(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 GSH 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 GSH Prepayment
Event, 100%) of (i) in the case of the occurrence of a GSH Prepayment
Event described in clause (a) of the defi nition of such term, the
aggregate amount distributed or otherwise transferred to the Company
and its Restricted Subsidiaries as a result of or in connection with
the GSH Asset Sale giving rise to such GSH 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 GSH 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
GSH Asset Sale giving rise to such GSH Prepayment Event that are not
distributed or otherwise transferred to the shareholders of Green
Spring Holdings or reinvested in the business of Green Spring Holdings
and its Subsidiaries within 270 days of the occurrence of such GSH
Asset Sale."
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(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. 6 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 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 Green Spring Initial Acquisition, the Company may
contribute all of the common stock of Green Spring purchased by the
Company pursuant to the preceding clause (i), all of the outstanding
capital stock of Group Practice Affili ates, Inc. and either shares of
Company Common Stock or Cash in an amount not to exceed the excess, if
any, of the Green Spring Cash Consideration Amount over the amount
of Cash paid or payable by the Company as described in the preceding
clause (i)(A) to Green Spring Holdings pursuant to and in accordance
in all material respects with the terms of the Green Spring
Acquisition Documents; provided that (A) simultaneously therewith
the Green Spring Minority Shareholders contribute all of their
respective shares of common stock of Green Spring to Green Spring
Holdings; (B) the sole consideration paid or payable to the Company
and the Green Spring Minority Shareholders for such contributions
by the Company and the Green Spring Minority Shareholders is
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shares of common stock of Green Spring Holdings and GSH Preferred
Stock; (C) simultaneously therewith there shall be established a
sinking fund for any such GSH Preferred Stock paid or payable to Green
Spring Minority Sharehold ers which complies with clause (D) or (E)
below; (D) if the Company contrib utes Cash to Green Spring Holdings as
described in this clause (ii), then the sinking fund established with
respect to the GSH Preferred Stock shall (1) be in an amount equal to
the amount of Cash so contributed or (2) consist solely of all shares
of Company Common Stock purchased by Green Spring Holdings with the
Cash contributed to Green Spring Holdings by the Company as described
in this clause (ii) and any Cash so contributed which is not used to
purchase shares of Company Common Stock; (E) if the Company contributes
shares of Company Common Stock pursuant to this clause (ii), then the
sinking fund established with respect to the GSH Preferred Stock shall
consist solely of such shares; (F) any GSH Preferred Stock paid or
payable to Green Spring Minority Sharehold ers as described in this
clause (ii) (1) shall have a stated value, liquidation prefer ence and
redemption price (if any) which do not in the aggregate in any such
case exceed (x) the amount of Cash contributed to Green Spring Holdings
by the Company as described in this clause (ii) if the sinking fund
established with respect to the GSH Preferred Stock consists solely of
Cash, (y) the shares of Company Common Stock contributed to Green
Spring Holdings by the Company or purchased by Green Spring Holdings as
described in this clause (ii) if the sinking fund established with
respect to the GSH Preferred Stock consists solely of Company Common
Stock, and (z) the shares of Company Common Stock purchased by Green
Spring Holdings with the Cash contributed to Green Spring Holdings by
the Company as described in this clause (ii) and any Cash so
contributed which is not used to purchase shares of Company Common
Stock if the sinking fund established with respect to the GSH Preferred
Stock consists of any combination of Company Common Stock and Cash; it
being understood that no holder of GSH Preferred Stock shall have any
claim as a holder of GSH Preferred Stock to Cash, stock or other
property the value of which would exceed in the aggregate for all such
holders taken together the amount of Cash contributed to Green Spring
Holdings as described in this clause (ii) and the fair market value of
the Company Common Stock that is in the sinking fund established with
respect to the GSH Preferred Stock as described in this clause (ii) at
the time of determination of such claim, and (2) may be convertible
into shares of common stock of Green Spring Holdings as a means for
such Green Spring Minority Shareholders to fund capital requirements of
Green Spring Holdings only if, simultaneously with such conversion, a
portion of the sinking fund established with respect to such GSH
Preferred Stock corresponding to the
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portion of the original amount of the GSH Preferred Stock so converted
is required to be released from such sinking fund (and, if the portion
of the sinking fund so to be released consists in whole or in part of
shares of Company Common Stock, such shares shall be required to be
sold so that Cash is released from such sinking fund); (G) the Minimum
Income Tests and the Debt Service Coverage Tests are satisfied with
respect to such contribution by the Company; and (H) immediately after
giving effect to such contributions by the Company and the Green Spring
Minority Shareholders, Green Spring Holdings directly owns all of the
outstanding shares of capital stock of Green Spring and the Company
directly owns at least 51% of the outstanding shares of each class of
common stock of Green Spring Holdings;
(iii) the Company may purchase from
time to time at any time that occurs after the Amendment No. 6 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 GSH 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 GSH
Minority Interest Put Amount for the GSH Minority Shares subject to
such purchase (or, at the election of the Company, Cash in an
aggregate amount not in excess of such GSH 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 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 GSH 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 pur chase, the sum of the aggregate
amount of Cash paid by the Company and its
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Subsidiaries and the aggregate original principal amount of Green
Spring PSI issued by the Company, in each case in connection with all
purchases of GSH 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 (including cash contributions made by release of
Cash from the sinking fund established with respect to GSH Preferred
Stock) made to Green Spring Holdings by Green Spring Minority
Shareholders after the Amendment No. 6 Green Spring Effec tive 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 GSH Minority
Shares (for purposes of the foregoing, the value of each share of
Company Common Stock so issued or otherwise transferred 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 Invest ments of Cash and other
assets (other than Facilities) in Green Spring Holdings 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 pursu ant 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 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
Holdings, any of Green Spring Holdings' 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 obliga tions of Green Spring
Holdings, any of Green Spring Holdings' Subsidiaries, the Clinical
Services Unit and/or the MIS Unit, and (3) the aggregate amount of In
vestments 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
Holdings, 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 (including cash
contributions made by release of Cash from the sinking fund established with
respect to GSH Preferred Stock) made to Green Spring Holdings by Green Spring
Minority Shareholders after the Amendment No. 6 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 parenthetical 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 Holdings, 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 (including cash contributions made by
release of Cash from the sinking fund established with respect to GSH Preferred
Stock) made to Green Spring Holdings by Green Spring Minority Shareholders after
the Amendment No. 6 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 Holdings 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.
(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
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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
Holdings and its Subsidiaries. If Green Spring or Green Spring Holdings
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 ownership
interest, the Company shall cause Green Spring Holdings (and/or Green
Spring, as the case may be) 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
Holdings (and/or Green Spring, as the case may be) and its 95% or more
owned Subsidiaries (other than Group Practice Affiliates, Inc. and its
Subsidiar ies) 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 "Amendment No. 6 Initial Effective Date" in Section 10 of the
Agreement:
"'Amendment No. 6 Green Spring Effective Date' shall
mean the date the amendments set forth in Section 3 of Amendment No. 6,
dated as of October 17, 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:
"'Green Spring' shall mean Green Spring Health
Services, Inc., a Delaware corporation.
11
'Green Spring Acquisition' shall mean the acquisition
by the Company of shares of common stock of Green Spring and Green
Spring Holdings 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 GSH 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 Holdings, each document evidencing or
governing the terms of any Green Spring PSI, each document evidencing
or governing the terms of any GSH Preferred Stock 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, or
if the Company contributes shares of Company Common Stock to Green
Spring Holdings pursuant to Section 8.8(o)(ii), 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 provi sions of the Green Spring
Acquisition Documents) of the Company Common Stock on the Amendment No.
6 Green Spring Effective Date.
'Green Spring Holdings' shall mean a corporation
organized under the laws of a State of the United States of America for
the purpose of becoming on the Amendment No. 6 Green Spring Effective
Date the owner of all of the outstanding common stock of Green Spring
and Group Practice Affiliates, Inc.
'Green Spring Initial Acquisition' shall mean the
consummation of the portion of the Green Spring Acquisition described
in clause (i) of Section 8.8(o) hereof.'
12
'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.
'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 GSH Minority Shares as a result
of the occurrence of a GSH Minority Interest Put; (b) has a final
maturity that is no earlier than the seventh anniversary of the
Amendment No. 6 Green Spring Effective Date; (c) is not guaranteed by
any Person; (d) does not provide for any scheduled repay ments,
required prepayments, fixed sinking fund payments, serial maturities,
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.
'GSH 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 Holdings or any of its Subsidiar ies to any Person other than
the Company, a Domestic Guarantor, Green Spring Holdings or a 95% or
more owned Subsidiary of Green Spring Holdings of all or any
substantial portion of (a) any class of equity interests owned by it of
any Subsidiary of Green Spring Holdings, or (b) the assets of Green
Spring Holdings 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, conveyances, 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 GSH Asset Sale
if the same also constitutes an Asset Sale.
'GSH 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. 6 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 GSH
Minority Shares owned by such Green Spring Minority Shareholder.
'GSH Minority Interest Put Amount' shall mean, with
respect to any GSH Minority Shares subject to a GSH Minority Interest
Put, the product of $167,000,000 and the percentage of the entire
outstanding common stock of Green Spring Holdings represented by such
GSH Minority Shares.
'GSH Minority Shares' shall mean, as of any time of
determina tion, the shares of common stock of Green Spring Holdings
owned by the Green Spring Minority Shareholders at such time of
determination.
'GSH Preferred Stock' shall mean any shares of
preferred stock of Green Spring Holdings paid or payable to the Green
Spring Minority Share holders as part of the consideration paid or
payable to such Green Spring Minor ity Shareholders in connection with
the Green Spring Acquisition.
'GSH Prepayment Event' shall mean the occurrence of
each and any GSH Asset Sale and either (a) a distribution or other
transfer to the Compa ny 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 Subsidiary of Cash or any other assets is
made in connection with or as a result of) such GSH Asset Sale, or (b)
the failure of all or any portion of the Net Proceeds of such GSH Asset
Sale to be reinvested in the business of Green Spring Holdings or any
of its Subsidiaries or distributed or otherwise transferred to the
shareholders of Green Spring Holdings within 270 days of Green Spring
Holdings' 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 GSH
Asset Sale" after the term "Asset Sale" the first time such term appears in such
clause (a); (ii) inserting the parenthetical (or Green Spring Holdings and its
Subsidiaries in the case of a GSH Asset Sale)" after the term "Restricted
Subsidiaries" the first time such term appears in such clause (a); and (iii)
inserting the words "or GSH 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
13
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, 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, Green Spring Holdings will own all of the shares of each
class of stock of Green Spring on a fully diluted basis, and the Company will
own at least 51% of all of the shares of each class of common stock of Green
Spring Holdings on a fully diluted basis (excluding for purposes of calculating
the foregoing percentage, the percentage, if any, that would be attributable to
any GSH Preferred Stock as a result of any con version rights available to the
holders of such GSH Preferred Stock as described in clause (ii) of Section
8.8(o) of the Credit Agreement after giving effect to the amendments to the
Credit Agreement contemplated hereby).
14
(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
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 Holdings 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 enforce ability 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, 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 each of the Initial
Effective Date and 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 warran ties 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
15
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 is sub ject to the satisfaction of the following conditions
precedent on or prior to December 31, 1995 (the date, if any, on which Sections
1 and 2 hereof become effective is the "Initial Effective Date"):
(i) Amendment No. 6. 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) Representations and Warranties. The
representations and warranties contained in Section 4 hereof shall be
true and correct on and as of the Initial Effective Date as though made
on and as of the Initial Effective Date both before and after giving
effect to this Amendment, except for such represen tations and
warranties which expressly relate to a different date.
(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. 6. 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
16
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 and Green Spring Holdings, respectively, 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 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
17
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
Holdings shall be a Subsidiary of the Company and Green Spring Holdings
shall be the owner of all of the outstanding shares of capital stock of
Green Spring, (ii) the sole outstanding shares of stock of Green Spring
and Green Spring Holdings shall be common stock and GSH Preferred
Stock, and (iii) except as contemplated by the section of the Term
Sheet entitled "Terms of Exchange Agreement", there shall be no
outstanding securities that are con vertible into or exchangeable for
capital stock of, or other equity interests in, Green Spring or Green
Spring Holdings or any rights to subscribe for or pur chase, any
warrants or options for the purchase of, any agreements providing for
the issuance (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 Green Spring Holdings or any
securities convertible or ex changeable therefor, except that any GSH
Preferred Stock may be convertible into common stock of Green Spring
Holdings as described in clause (ii) of Sec tion 8.8(o) of the Credit
Agreement after giving effect to the amendments to the Credit Agreement
contemplated hereby.
(vii) Pledge of Acquired Green Spring Holdings Stock.
The Collateral Agent shall have a valid and enforceable perfected
security interest in and Lien on all of the Acquired Green Spring
Holdings 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
18
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 repre senting all of the Acquired Green
Spring Holdings 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 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, Green Spring Holdings, 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 Holdings, Green Spring and Green Spring's 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 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.
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Section 6. Interim Conditional Consent. Notwithstanding any
prohibition thereon contained in the Credit Agreement, the Lenders party hereto
hereby consent to the consummation of the Green Spring Initial Acquisition
described in clause (i) of Section 8.8(o) of the Credit Agreement after giving
effect to the amendments to the Credit Agreement contemplated hereby; provided
that (a) the Green Spring Initial Acquisition is consummated in accordance with
the provisions of such clause (i) and the conditions set forth in such clause
(i) with respect thereto are satisfied, (b) the portion of the Green Spring
Acquisition described in clause (ii) of Section 8.8(o) of the Credit Agreement
after giving effect to the amendments to the Credit Agreement contemplated
hereby is consummated as promptly as practicable after and, in any event, on the
same day as the consummation of the Green Spring Initial Acquisition, and (c)
each of the other conditions precedent to the effectiveness of this Amendment
set forth in Section 5(b) hereof is satisfied on and as of the date of the
consummation of the Green Spring Initial Acquisition.
Section 7. 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 8. 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 9. 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).
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IN WITNESS WHEREOF, the parties hereto have caused their
respective duly authorized officers to execute and deliver this Amendment No. 6
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:
CREDIT LYONNAIS,
Cayman Islands Branch
By:________________________
Name:
Title:
DRESDNER BANK AG, New York and
Grand Cayman Islands Branches
By:________________________
Name:
Title:
By:________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION
By:________________________
Name:
Title:
22
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:
23
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
24
