AMENDMENT NO. 2
TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
AMENDMENT NO. 2 dated as of September 30, 1994 (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, 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.
W I T N E S S E T H :
WHEREAS, the Company has requested that the Credit Agreement be
amended to, among other things: (a) permit the Company and its Wholly-Owned
Restricted Subsidiaries to lease Facilities from time to time to Permitted
Joint Ventures in which it or any of its Wholly-Owned Restricted Subsidiaries
has an equity interest; (b) permit a Wholly-Owned Restricted Subsidiary to be
converted into a Permitted Joint Venture by, among other things, issuing
shares of its capital stock to, or merging or consolidating with, a
third-party and (c) obligate the Agent to release (i) in connection with the
conversion of any series of Variable Rate Notes into fixed rate notes, the
Liens granted the Collateral Agent on the Facility that was financed with such
series of Variable Rate Notes, and (ii) in connection with the conversion of
any Wholly-Owned Restricted Subsidiary into a Permitted Joint Venture, such
Wholly-Owned Restricted Subsidiary from the Subsidiary Guaranty and its
property and assets from the Liens of the Security Documents; and
WHEREAS, subject to and upon certain terms and conditions, the
Lenders party hereto are willing to permit the foregoing;
NOW THEREFORE, the parties hereto hereby agree as follows:
Section 1. Amendments to Credit Agreement. The Credit Agreement is
hereby amended as follows:
(a) Section 6.16 of the Credit Agreement is amended by inserting
the parenthetical "(except, in the case of Permitted Joint Ventures that are
Restricted Subsidiaries, to the extent disclosed to the Agent in writing)"
after the word "has" in the second line of the last sentence of such Section.
(b) Section 7.1(e) of the Credit Agreement is amended by (i)
renumbering clause (v) thereof as "(vii)", and (ii) inserting the following
after clause (iv) thereof:
", (v) without duplication of the requirements of the preceding clause
(iv), a description in reasonable detail of each Permitted JV
Transaction entered into during such Report Period, the parties thereto
and the properties and assets subject thereto, the material terms
thereof, whether the Company and its Wholly-Owned Restricted
Subsidiaries have a Controlling Interest in the Permitted Joint Venture
resulting therefrom and, if such Permitted JV Transaction involved the
lease or sublease of a Facility to a Permitted Joint Venture pursuant to
Section 8.2(i), the amount of the annual base rentals to be paid to the
Company and its Wholly-Owned Restricted Subsidiaries under such lease or
sublease, (vi) a description in reasonable detail of each amendment and
other modification entered into during such Report Period to any lease
or sublease of a Facility entered into pursuant to Section 8.2(i),".
(c) Section 8.1(g) of the Credit Agreement is amended by inserting
"on assets (other than a VRN Facility)" after the word "Liens" in the first
line thereof.
(d) Section 8.2(d) of the Credit Agreement is amended by inserting
the following after the semi-colon (";") ending such Section:
"provided that the foregoing provisions of this Section 8.2(d) shall not
permit the Company or any of its Restricted Subsidiaries to sell or
otherwise dispose of pursuant to any transaction any equity interests
(including, without limitation, any warrants, options or other rights to
acquire equity interests) in any Restricted Subsidiary unless either (A)
all of the equity interests in such Restricted Subsidiary that are owned
by the Company and its Restricted Subsidiaries are simultaneously sold
to Persons other than the Company and any of its Subsidiaries, or (B)
after giving effect to such transaction the Restricted Subsidiary whose
equity securities are the subject thereof is a Wholly-Owned Restricted
Subsidiary;".
(e) Section 8.2(e) of the Credit Agreement is amended by (i)
deleting the parenthetical "(except for a contribution permitted by Section
8.8 of a Facility and its related working capital to a Permitted Joint
Venture)" from clause (iv) thereof, and (ii) inserting the following after the
semi-colon (";") ending such Section:
"provided that the foregoing provisions of this Section 8.2(e) shall not
permit the Company or any of its Restricted Subsidiaries to sell
pursuant to any transaction any equity interests (including, without
limitation, any warrants, options or other rights to acquire equity
interests) in any Restricted Subsidiary unless either (A) all of the
equity interests in such Restricted Subsidiary that are owned by the
Company and its Restricted Subsidiaries are simultaneously sold to
Persons other than the Company and any of its Subsidiaries, or (B) after
giving effect to such transaction the Restricted Subsidiary whose equity
securities are the subject thereof is a Wholly-Owned Restricted
Subsidiary;".
(f) Section 8.2 of the Credit Agreement is further amended by (i)
deleting the word "and" at the end of paragraph (g) thereof, (ii) replacing
the period (".") at the end of paragraph (h) thereof with a semi-colon (";"),
and (iii) inserting the following after such semi-colon:
"(i) so long as no Default or Event of Default has occurred
and is continuing or would result therefrom, the Company and its
Wholly-Owned Restricted Subsidiaries may enter into a lease or sublease
of Facilities to Permitted Joint Ventures; provided that no such
entering into of a lease or sublease of a Facility to a Permitted Joint
Venture shall be permitted unless:
(i) the Minimum Income Tests and Debt Service Coverage Tests
are satisfied with respect thereto;
(ii) after giving effect to the entering into of such lease
or sublease the Company or such Wholly-Owned Restricted Subsidiary, as
the case may be, shall have a Controlling Interest in such Permitted
Joint Venture (or the additional requirements in clause (v) below shall
be satisfied);
(iii) such Permitted Joint Venture is not restricted by its
governing documents or otherwise from making cash distributions to the
Company or such Wholly-Owned Restricted Subsidiary, as the case may be;
(iv) the Company, its Restricted Subsidiaries and the
Collateral Agent are insured with respect to the leased or subleased
Facility and the businesses conducted thereon (either directly or as
named additional insureds on insurance obtained by the lessee or
sublessee of such Facility) in the manner and to the extent required by
Section 7.3 as fully as if such property had not been leased or
subleased to a Permitted Joint Venture;
(v) after giving effect to the entering into of such lease
or sublease, (A) the Company or a Wholly-Owned Restricted Subsidiary
owns common stock of, or a partnership interest or other equity
interests of a substantially similar nature in, such Permitted Joint
Venture, and (B) the aggregate Deemed Value of all Facilities subject to
Limited Permitted JV Transactions after the Closing Date does not exceed
$100,000,000;
(vi) the Board of Directors of the Company determines in
good faith that the business purpose achieved by such lease or sublease
renders the terms of such lease or sublease, taking into account the
other terms of such Permitted JV Transaction, reasonable, and, if the
Deemed Value of such Facility exceeds $25,000,000, the Company has
received an opinion from a nationally recognized investment banking firm
that such lease or sublease, taking into account the other terms of such
Permitted JV Transaction, is fair to the Company from a financial point
of view;
(vii) such lease or sublease contains an environmental
indemnity that is either in form and substance substantially similar to
Section 5.11(f) of the Mortgages or otherwise reasonably satisfactory to
the Agent with respect to acts and omissions occurring on or after the
effective date of such lease or sublease, which indemnity shall be made
by such Permitted Joint Venture in favor of the lessor or sublessor, as
applicable, of such Facility and the Company; and
(viii) the Company complies with Section 4.2(a) or (c), as
the case may be;
(j) so long as no Default or Event of Default has occurred
and is continuing or would result therefrom, a Restricted Subsidiary may
merge with or into, or consolidate with, any Person or Persons other
than the Company or a Subsidiary thereof in order to convert such
Restricted Subsidiary into a Permitted Joint Venture (other than a
Wholly-Owned Restricted Subsidiary) between the owners of such Person or
Persons and the Company or a Wholly-Owned Restricted Subsidiary;
provided that (i) the Board of Directors of the Company determines in
good faith that the business purpose achieved by such merger or
consolidation renders the terms of such merger or consolidation
reasonable, and, if the aggregate Deemed Value of the assets of the
Restricted Subsidiary party to such merger or consolidation exceeds
$25,000,000, the Company has received an opinion from a nationally
recognized investment banking firm that such merger or consolidation is
fair to the Company from a financial point of view; (ii) the Company
complies with Section 4.2(a) or (c), as the case may be; (iii) the
Collateral Agent has pursuant to the Security Documents or other
security agreements reasonably satisfactory to the Agent a perfected
first priority Lien on any non-cash consideration (including, without
limitation, equity interests in the surviving Person of such merger or
consolidation) received by the Company or any of its Restricted
Subsidiaries (other than the Restricted Subsidiary that is a party to
such merger or consolidation) in connection with the consummation of
such merger or consolidation, other than notes and similar instruments
having, in the aggregate for such merger or consolidation, a principal
amount of less than $500,000; (iv) the Minimum Income Tests and Debt
Service Coverage Tests are satisfied with respect thereto at the time of
such merger or consolidation; (v) the surviving Person of such merger or
consolidation is not restricted by its governing documents or otherwise
from making cash distributions to the Company or such Wholly-Owned
Restricted Subsidiary; (vi) after giving effect to such merger or
consolidation, the aggregate Deemed Value of all Facilities subject to
Limited Permitted JV Transactions after the Closing Date does not exceed
$100,000,000; (vii) after giving effect to such merger or consolidation,
the sum of (A) the aggregate Deemed Value of property and other assets
(other than Facilities) subject to Limited Permitted JV Transactions
after the Closing Date, (B) the then Outstanding JV Credit Amount, and
(C) the aggregate amount of Investments outstanding pursuant to Section
8.8(r) does not exceed the then maximum amount of Investments permitted
to be outstanding pursuant to Section 8.8(r); and (viii) the Company or
a Wholly-Owned Restricted Subsidiary receives in connection therewith
common stock of, or a partnership interest or other equity interests of
a substantially similar nature in, the surviving Person of such merger
or consolidation;
(k) so long as no Default or Event of Default has occurred
and is continuing or would result therefrom, the Company or any
Restricted Subsidiary may sell less than all of the shares of capital
stock it owns of any of its Subsidiaries to any Person or Persons other
than the Company or a Subsidiary thereof in order to convert such
Subsidiary into a Permitted Joint Venture between such Person or Persons
and the Company or a Wholly-Owned Restricted Subsidiary; provided that
(i) the Board of Directors of the Company determines in good faith that
the business purpose achieved by such sale renders the terms of such
sale reasonable, and, if the aggregate Deemed Value of the assets of the
Subsidiary whose shares of capital stock are being sold exceeds
$25,000,000, the Company has received an opinion from a nationally
recognized investment banking firm that such sale is fair to the Company
from a financial point of view; (ii) the Company complies with Section
4.2(a) or (c), as the case may be; (iii) the Collateral Agent has
pursuant to the Security Documents or other security agreements
reasonably satisfactory to the Agent a perfected first priority Lien on
any non-cash proceeds received by the Company or any of its Restricted
Subsidiaries (other than the Restricted Subsidiary whose stock is being
sold) in connection with the consummation of such sale, other than notes
and similar instruments having, in the aggregate for such sale, a
principal amount of less than $500,000; (iv) the Minimum Income Tests
and Debt Service Coverage Tests are satisfied with respect thereto at
the time of such sale; (v) after giving effect to such sale, such
Permitted Joint Venture is not restricted by its governing documents or
otherwise from making cash distributions to the Company or such
Wholly-Owned Restricted Subsidiary; (vi) after giving effect to such
sale, the aggregate Deemed Value of all Facilities subject to Limited
Permitted JV Transactions after the Closing Date does not exceed
$100,000,000; and (vii) after giving effect to such sale, the sum of (A)
the aggregate Deemed Value of all property and other assets (other than
Facilities) subject to Limited Permitted JV Transactions after the
Closing Date, (B) the then Outstanding JV Credit Amount, and (C) the
aggregate amount of Investments outstanding pursuant to Section 8.8(r)
does not exceed the then maximum amount of Investments permitted to be
outstanding pursuant to Section 8.8(r); and
(l) the Company or a Restricted Subsidiaries may issue
shares of its capital stock to the extent permitted by Section 8.5."
(g) Section 8.5 of the Credit Agreement is amended by (i) deleting
the word "and" at the end of clause (c) thereof, and (ii) replacing the period
(".") at the end of paragraph (d) thereof with the following:
; and (e) so long as no Default or Event of Default has occurred and is
continuing or would result therefrom, a Restricted Subsidiary may issue
or sell shares of its capital stock to a Person or Persons other than
the Company or a Subsidiary thereof in order to convert such Restricted
Subsidiary into a Permitted Joint Venture between such Person or Persons
and the Company or a Wholly-Owned Restricted Subsidiary; provided that
(i) the Board of Directors of the Company determines in good faith that
the business purpose achieved by such issuance or sale renders the terms
of such issuance reasonable, and, if the aggregate Deemed Value of the
assets of the Restricted Subsidiary issuing or selling shares of its
capital stock exceed $25,000,000, the Company has received an opinion
from a nationally recognized investment banking firm that such issuance
or sale is fair to the Company from a financial point of view; (ii) the
Company complies with Section 4.2(a) or (c), as the case may be; (iii)
the Collateral Agent has pursuant to the Security Documents or other
security agreements reasonably satisfactory to the Agent a perfected
first priority Lien on any non-cash proceeds received by the Company or
any of its Restricted Subsidiaries (other than the Restricted Subsidiary
whose capital stock is being issued or sold) in connection with the
consummation of such issuance or sale, other than notes and similar
instruments having, in the aggregate for such issuance, a principal
amount of less than $500,000; (iv) the Minimum Income Tests and Debt
Service Coverage Tests are satisfied with respect thereto at the time of
such issuance or sale; (v) after giving effect to such issuance or sale,
such Restricted Subsidiary is not restricted by its governing documents
or otherwise from making cash distributions to the Company or such
Wholly-Owned Restricted Subsidiary; (vi) after giving effect to such
issuance or sale, the aggregate Deemed Value of all Facilities subject
to Limited Permitted JV Transactions does not exceed $100,000,000; and
(vii) after giving effect to such issuance or sale, the sum of (A) the
aggregate Deemed Value of all property and other assets (other than
Facilities) subject to Limited Permitted JV Transactions, (B) the then
Outstanding JV Credit Amount, and (C) the aggregate amount of
Investments outstanding pursuant to Section 8.8(r) does not exceed the
then maximum amount of Investments permitted to be outstanding pursuant
to Section 8.8(r)."
(h) Section 8.8(n) of the Credit Agreement is amended by replacing
all of clauses (ii) and (v) thereof with the following clauses (ii) and (v),
respectively:
"(ii) after giving effect to such contribution, the Company
or such Wholly-Owned Restricted Subsidiary, as the case may be, shall
have a Controlling Interest in such Permitted Joint Venture (or the
additional requirements of clause (v) below shall be satisfied);" and
"(v) after giving effect to such contribution, (A) the
Company or a Wholly-Owned Restricted Subsidiary owns common stock of, or
a partnership interest or other equity interests of a substantially
similar nature in, such Permitted Joint Venture, and (B) the aggregate
Deemed Value of all Facilities subject to Limited Permitted JV
Transactions after the Closing Date does not exceed $100,000,000;".
(i) Section 8.8(n) of the Credit Agreement is further amended by
(i) deleting the word "and" at the end of clause (iv) thereof, and (ii)
inserting the following after clause (v) thereof:
"(vi) the Board of Directors of the Company determines in
good faith that the business purpose achieved by such contribution
renders the terms of such contribution reasonable, and, if the Deemed
Value of such Facility exceeds $25,000,000, the Company has received an
opinion from a nationally recognized investment banking firm that such
contribution is fair to the Company from a financial point of view; and
(vii) the Company complies with Section 4.2(a) or (c), as
the case may be;".
(j) Section 8.8(r) of the Credit Agreement is amended by (i)
inserting the words "sum of the" after the word "the" in the second line of
clause (ii) of the third proviso thereto; (ii) replacing the words "other
types of Restricted Subsidiaries and Unrestricted Subsidiaries" in the last
two lines of such clause (ii) with the words "other types of Restricted
Subsidiaries, Unrestricted Subsidiaries and joint ventures permitted by this
Agreement in which the Company and its Wholly-Owned Restricted Subsidiaries
have a minority equity interest"; and (iii) inserting the following after the
word "Investments" in the third line of such clause (ii):
"plus the sum of the then aggregate Deemed Value of all property and
other assets (other than Facilities) subject to Limited Permitted JV
Transactions after the Closing Date and the Outstanding JV Credit
Amount".
(k) Section 8.10(b) of the Credit Agreement is amended by (i)
inserting "(without duplication)" after the words "the sum" in the fifth line
of clause (B) of the third proviso thereto; (ii) deleting the word "and"
before clause (ii) of such clause (B); (iii) replacing the words "other types
of Restricted Subsidiaries and Unrestricted Subsidiaries" in the fifth, sixth
and seventh lines of such clause (ii) with the words "other types of
Restricted Subsidiaries, Unrestricted Subsidiaries and joint ventures
permitted by this Agreement in which the Company and its Wholly-Owned
Restricted Subsidiaries have a minority equity interest"; and (iv) inserting
the following at the end of such clause (ii):
", (iii) the then aggregate Deemed Value of all property and other
assets (other than Facilities) subject to Limited Permitted JV
Transactions after the Closing Date, and (iv) the then Outstanding JV
Credit Amount".
(l) Section 8.10(c) of the Credit Agreement is amended by
inserting the following at the end of clause (ii) thereof:
"; and (iii) for all purposes of paragraph (b) above the word
'expenditures' shall include, without limitation, with respect to any
Facility Acquisition: (A) the issuance by the Company of shares of
Company Common Stock as complete or partial consideration for the assets
acquired by the Company and its Restricted Subsidiaries in such Facility
Acquisition; provided that the amount of any such expenditure shall be
deemed to be zero; (B) the aggregate principal amount of Indebtedness
assumed by the Company or any of its Restricted Subsidiaries in
connection with such Facility Acquisition; and (C) except to the extent
the same is repaid by a Person other than the Company or any of its
Restricted Subsidiaries prior to a Facility Acquisition, the aggregate
outstanding principal amount of all Indebtedness of any Person acquired
by the Company or any of its Restricted Subsidiaries in such Facility
Acquisition".
(m) Section 8.11 of the Credit Agreement is amended by (i)
deleting the "or" at the end of paragraph (d) thereof, (ii) replacing the
period (".") at the end of paragraph (e) thereof with "; or", and (iii)
inserting the following after paragraph (e) thereof:
"(f) decrease the amount of, or change the payment date for, any rent
payable to the Company or any Wholly-Owned Restricted Subsidiary under a
lease or sublease of a Facility to a Permitted Joint Venture that was
entered into pursuant to Section 8.2(i) unless the Agent is given prior
notice thereof and the Minimum Income Tests and Debt Service Coverage
Tests are satisfied with respect thereto at the time of such change, or
otherwise amend, supplement or modify any such lease or sublease in any
manner that is adverse to the Lenders."
(n) Section 8.15(a) of the Credit Agreement is amended by
replacing the words "other type of Restricted Subsidiary or any Unrestricted
Subsidiary" in the fourth and fifth lines of clause (ix) thereof with the
words "other type of Restricted Subsidiary, Unrestricted Subsidiary or joint
venture permitted by this Agreement in which the Company and its Wholly-Owned
Restricted Subsidiaries have a minority equity interest".
(o) The following is inserted after Section 8.15 of the Credit
Agreement:
"8.16 Maintenance of Controlling Interests. If, after giving
effect to any Permitted JV Transaction entered into pursuant to Section
8.2(i) or 8.8(n), the Company and its Wholly-Owned Restricted
Subsidiaries have a Controlling Interest in the Permitted Joint Venture
that is a party to such Permitted JV Transaction, the Company shall not,
and shall not permit any of its Restricted Subsidiaries to, take or
refrain from taking any action of any nature whatsoever (other than the
entering into in accordance with this Agreement of another Permitted JV
Transaction with respect to such Permitted Joint Venture and the
consummation of any sale or other transfer permitted by this Agreement
of all of the Company's and its Wholly-Owned Restricted Subsidiaries'
equity interests in such Permitted Joint Venture) that would cause the
Company and its Wholly-Owned Restricted Subsidiaries to fail to have a
Controlling Interest in such Permitted Joint Venture, unless, after
giving effect to such failure to have a Controlling Interest: (a) no
Default or Event of Default exists, (b) the Minimum Income Tests and
Debt Service Coverage Tests are satisfied as of the date such failure
occurs, and (c) the aggregate Deemed Value of all Facilities subject to
Limited Permitted JV Transactions after the Closing Date does not exceed
$100,000,000."
(p) Section 10 of the Credit Agreement is amended as follows:
(i) The definition therein of the term "Asset Sale" is
amended by (A) inserting "and subleases" after the word "leases" in
clause (vi) of the second proviso to such definition, (B) inserting
"(other than ones received in a Permitted JV Transaction)" after the
word "instruments" in the third line of clause (ii) of the second
proviso to such definition, (C) inserting "except to the extent the same
constitutes a transfer pursuant to the immediately following sentence,"
after each of the respective comma's (",") ending clauses (iii) and (vi)
of the second proviso of such definition, and (D) inserting the
following after the end of such definition:
"Without limitation of the foregoing, but in furtherance thereof,
a Permitted JV Transaction shall be deemed to be a sale, lease,
conveyance, disposition or transfer of assets to the extent the
Company or any of its Restricted Subsidiaries (other than the
Permitted Joint Venture resulting from such Permitted JV
Transaction) receives any Cash ((including Cash receivable (when
received) by way of a deferred payment obligation pursuant to a
promissory note or preferred stock or otherwise (other than
interest and dividends accruing thereon at a rate no greater than
the sum of 6% and the then yield for actively traded United States
securities having a weighted average life to maturity that is
substantially the same as the weighted average life to maturity of
such deferred payment obligation), but excluding, in the case of a
lease or a sublease of a Facility to a Permitted Joint Venture
pursuant to Section 8.2(i), any base rent payable under such lease
or sublease)) or other property or assets (other than, except to
the extent the same are substantially equivalent to Cash
receivable by way of deferred payments obligations, equity
interests in the Permitted Joint Venture resulting from such
Permitted JV Transaction) in connection with the consummation of
such Permitted JV Transaction."
(ii) The definition therein of the term "Base Core EBITDA"
is amended in its entirety to read as follows:
"'Base Core EBITDA'means, for any period, the total of (a)
consolidated EBITDA of the Company and the Domestic Guarantors for
such period, excluding, to the extent included therein, (i) the
income (or loss) of any Person (other than a Domestic Guarantor)
in which the Company or any Domestic Guarantor has an ownership
interest, whether or not any such income has been actually
received by the Company or any Domestic Guarantor in the form of
dividends or similar distributions, and (ii) any rent payable to
the Company or any of its Subsidiaries under a lease or sublease
of a Facility to a joint venture pursuant to Section 8.2(i),
whether or not such rent has been actually received by the Company
or any of its Subsidiaries, minus (b) the excess, if any, of (i)
income taxes paid by the Company or any Domestic Guarantor during
such period in respect of its pro rata share of any Subsidiary's
(other than a Wholly-Owned Restricted Subsidiary's) Net Income,
over (ii) the amount of distributions made by such Subsidiary to
the Company or any Domestic Guarantor during such period, plus,
without duplication, (c) the Acquired NME Facilities EBITDA, if
any, minus (d) the Company's and the Domestic Guarantors'
aggregate pro rata share of the absolute amount of the net loss
for such period of each Permitted Joint Venture in which the
Company or a Domestic Guarantor has an ownership interest that has
incurred a loss for such period and owns, leases or subleases a
Facility that was subject to a Permitted JV Transaction; provided
that in determining the net loss of any such Permitted Joint
Venture for purposes of this clause (d), the aggregate amount of
rent payable to the Company and the Domestic Guarantors under a
lease or sublease of a Facility to any such Permitted Joint
Venture that was entered into pursuant to Section 8.2(i) shall not
be considered an expense of such Permitted Joint Venture."
(iii) The following is inserted after the definition therein
of the term "Continuing Lenders":
"'Controlling Interest' means, with respect to any
Person, (a) the ownership of at least a majority of the equity
interests in such Person on a fully diluted basis, and (b) the
ownership of equity interests in such Person providing the
unlimited right to elect or appoint at least the greater of (i)
60% of the authorized number of directors, managers or trustees,
as applicable, of such Person and (ii) such percentage of the
authorized number of such directors, managers or trustees, as
applicable, as are necessary under the governing documents of such
Person or otherwise to authorize (and prevent) the taking by such
Person of each and any action that may from time to time be
proposed to be taken by such Person or to approve or adopt (and
prevent the approval or adoption of) any other matter (including,
without limitation, the appointment or removal of any individual
as an officer of such Person) that may from time to time require
the approval of, or adoption by, all or any portion of the
directors, managers or trustees, as applicable, of such Person."
(iv) The definition therein of the term "Core EBITDA" is
amended in its entirety to read as follows:
"'Core EBITDA'means, for any period, the total of (a)
consolidated EBITDA of the Company and its Wholly-Owned Restricted
Subsidiaries for such period, excluding, to the extent included
therein, (i) the income (or loss) of any Person (other than a
Wholly-Owned Restricted Subsidiary) in which the Company or any
Wholly-Owned Restricted Subsidiary has an equity interest, whether
or not any such income has been actually received by the Company
or any Wholly-Owned Restricted Subsidiary in the form of dividends
or similar distributions, and (ii) any rent payable to the Company
or any of its Subsidiaries under a lease or sublease of a Facility
to a joint venture pursuant to Section 8.2(i), whether or not such
rent has been actually received by the Company or any of its
Subsidiaries, plus (b) to the extent the same does not exceed the
product of (i) the Net Income of the payor thereof for such period
or for the immediately preceding period and not previously
received, and (ii) the Company's and its Wholly-Owned Restricted
Subsidiaries aggregate percentage ownership interest therein, cash
dividends and other cash distributions of profits and capital
received in such period by the Company and its Wholly-Owned
Restricted Subsidiaries from (i) Unrestricted Subsidiaries, (ii)
joint ventures which are not Subsidiaries, and (iii) other
Restricted Subsidiaries, minus (c) the Company's and its
Wholly-Owned Restricted Subsidiaries' aggregate pro rata share of
the absolute amount of net loss for such period of each (i)
Unrestricted Subsidiary, (ii) other Restricted Subsidiary, and
(iii) joint venture in which the Company or any Wholly-Owned
Restricted Subsidiary has an ownership interest that (A) is not a
Subsidiary of the Company, and (B) owns, leases or subleases a
Facility that was subject to a Permitted JV Transaction, in each
case that has incurred a loss for such period, plus, without
duplication, (d) the Acquired NME Facilities EBITDA, if any, plus,
without duplication, (e) rent received in such period by the
Company or any Wholly-Owned Restricted Subsidiary under a lease or
sublease of a Facility to a joint venture pursuant to Section
8.2(i), but only to the extent such rent accrued during such
period or the immediately preceding period."
(v) The following is inserted after the definition therein
of the term "Debt Service Coverage Tests":
"'Deemed Value' means, with respect to any property or
other assets subject or to be subject to a Permitted JV
Transaction, the greatest of (a) the fair market value of such
property or other asset on the first date on which such property
or other asset was or is to be subject to a Permitted JV
Transaction (for purposes of the foregoing, the fair market value
of a Facility and its related working capital shall be deemed to
be equal to the product of 4.5 and the EBITDA of the Company and
its Wholly-Owned Restricted Subsidiaries attributable to such
Facility for the 12-month period preceding the Test Date
applicable to the first date on which such Facility was or is to
be subject to a Permitted JV Transaction), (b) the book value of
such property or other asset on the first date on which such
property or other asset was or is to be subject to a Permitted JV
Transaction, and (c) in the case of a Facility and/or other asset
or property that was or is to be subject to a Limited Permitted JV
Transaction described in clause (b) or (d) of the definition of
such term, the sum of the aggregate amount of cash and the
aggregate fair market value of all other property received by the
Company and its Restricted Subsidiaries in consideration for the
capital stock issued or sold in such Limited Permitted JV
Transaction."
(vi) the definition therein of the term "Investment" is
amended by inserting "(except as otherwise expressly set forth herein)"
in lieu of "(except as otherwise set forth in Section 8.8(n) for
contributions of Facilities to Permitted Joint Ventures)" appearing in
the proviso to such definition.
(vii) The following is inserted after the definition therein
of the term "Liens":
"'Limited Permitted JV Transaction' means any of the
following: (a) the contribution pursuant to Section 8.8(n), or the
lease or sublease pursuant to Section 8.2(i), of a Facility by the
Company or a Wholly-Owned Restricted Subsidiary to a Permitted
Joint Venture, unless after giving effect thereto the Company and
its Wholly-Owned Restricted Subsidiaries have a Controlling
Interest in such Permitted Joint Venture, (b) the issuance or sale
by a Restricted Subsidiary of its capital stock to a Person or
Persons other than the Company or any Subsidiary thereof pursuant
to clause (e) of Section 8.5, unless after giving effect thereto
such Restricted Subsidiary is a Wholly-Owned Restricted
Subsidiary, (c) the merger of a Restricted Subsidiary with or
into, or the consolidation of a Restricted Subsidiary with, a
Person or Persons other than the Company or any Subsidiary thereof
pursuant to Section 8.2(j), (d) the sale pursuant to Section
8.2(k) by the Company or any of its Restricted Subsidiaries to a
Person or Persons other than the Company or any Subsidiary thereof
of less than all of the capital stock of a Restricted Subsidiary
owned by the Company and its Restricted Subsidiaries, unless after
giving effect thereto the Restricted Subsidiary whose capital
stock is being sold is a Wholly-Owned Restricted Subsidiary, and
(e) the failure for any reason of the Company and its Wholly-Owned
Restricted Subsidiaries to have at any time a Controlling Interest
in any Permitted Joint Venture that, as a result of the occurrence
of any Permitted JV Transaction (other than a Limited Permitted JV
Transaction described in the foregoing clauses (a) through (d)),
owns, leases or subleases a Facility at the time of such failure,
unless such failure results from the entering into of another
Permitted JV Transaction with respect to such Permitted Joint
Venture or the sale of all of the Company's and its Wholly-Owned
Restricted Subsidiaries' equity interests in such Permitted Joint
Venture. For purposes of this Agreement, any property or other
asset (including, without limitation, a Facility and Cash) shall
be deemed to have been subject to a Limited Permitted JV
Transaction if it is contributed, leased or subleased pursuant to
a transaction described in clause (a) of this definition of
Limited Permitted JV Transaction, if it is owned by a Restricted
Subsidiary at the time such Restricted Subsidiary enters into a
transaction described in clause (b) or (c) of this definition of
Limited Permitted JV Transaction, if it is owned by the Restricted
Subsidiary whose capital stock is being sold pursuant to a
transaction described in clause (d) of this definition of Limited
Permitted JV Transaction or if it is a Facility that is owned by,
or leased or subleased to, a Permitted Joint Venture as a result
of a Permitted JV Transaction (other than a Limited Permitted JV
Transaction) at the time a Limited Permitted JV Transaction
described in clause (e) above occurs with respect to such
Permitted Joint Venture.
(viii) The definition therein of the term "Minimum Income
Tests" is amended by replacing the first three lines of paragraph (a)
thereof with the following:
"(a) in the case of a Permitted JV Transaction, an
amendment or other modification to a lease or sublease of a
Facility to a Permitted Joint Venture pursuant to Section 8.2(i)
that decreases the amount of, or changes the payment date for, any
installment of rent payable thereunder to the Company or any
Wholly-Owned Restricted Subsidiary or a Facility Acquisition
only:".
(ix) The definition therein of the term "Net Proceeds" is
amended by (A) replacing "or otherwise (other than interest payable
thereon)" in the fourth and fifth lines thereof with ", preferred stock
or otherwise (other than interest and dividends accruing thereon at a
rate no greater than the sum of 6% and the then yield for actively
traded United States securities having a weighted average life to
maturity that is substantially the same as the weighted average life to
maturity of such deferred payment obligation)", and (B) inserting the
following sentence at the end of such definition:
"Notwithstanding the foregoing, except to the extent the same is
substantially equivalent to Cash receivable by way of deferred
payment, 'Net Proceeds' shall not include any equity interest in a
Permitted Joint Venture resulting from the consummation of a
Permitted JV Transaction that is received by the Company or any of
its Restricted Subsidiaries in connection with the consummation of
such Permitted JV Transaction."
(x) The following is inserted after the definition therein
of the term "Original Company Credit Agreement":
"'Outstanding JV Credit Amount' means, at any time,
the sum of (a) the then aggregate outstanding principal amount of
each Subsidiary Loan initially made to a Wholly-Owned Restricted
Subsidiary that was, at any time after the making of such
Subsidiary Loan, converted into a Permitted Joint Venture pursuant
to a Limited Permitted JV Transaction, (b) the then aggregate
amount which is then available to be drawn (assuming the
conditions for drawing thereunder have been met) under each
Subsidiary Letter of Credit initially issued for the account of a
Wholly-Owned Restricted Subsidiary that was, at any time after the
issuance of such Subsidiary Letter of Credit, converted into a
Permitted Joint Venture pursuant to a Limited Permitted JV
Transaction, and (c) the then aggregate amount of all drawings
under each such Subsidiary Letter of Credit referenced in clause
(b) above honored by the applicable L/C Bank and not theretofore
reimbursed by the Company or any of its Restricted Subsidiaries."
(xi) The following is inserted after the definition therein
of the term "Permitted Joint Venture"
"'Permitted JV Transaction' means any of the
following: (a) the contribution of a Facility by the Company or a
Wholly-Owned Restricted Subsidiary to a Permitted Joint Venture
pursuant to Section 8.8(n), (b) the lease or sublease of a
Facility to a Permitted Joint Venture pursuant to Section 8.2(i),
and (c) each and any Limited Permitted JV Transaction not
described in the preceding clause (a) or (b). For purposes of this
Agreement, any property or other asset (including, without
limitation, a Facility and Cash) shall be deemed to have been
subject to a Permitted JV Transaction if it is contributed, leased
or subleased to a Permitted Joint Venture pursuant to Section
8.8(n) or 8.2(i), as applicable, if it is owned by a Restricted
Subsidiary at the time such Restricted Subsidiary enters into a
transaction described in clause (b) or (c) of the definition of
Limited Permitted JV Transaction, if it is owned by a Restricted
Subsidiary whose capital stock is being sold pursuant to a
transaction described in clause (d) of the definition of Limited
Permitted JV Transaction or if it is a Facility that is owned by,
or leased or subleased to, a Permitted Joint Venture as a result
of a Permitted JV Transaction (other than a Limited Permitted JV
Transaction) at the time a Limited Permitted JV Transaction
described in clause (e) of the definition of Limited Permitted JV
Transaction occurs with respect to such Permitted Joint Venture."
(xii) The definitions therein of the terms "Pro Forma Base
Core EBITDA" and "Pro Forma Core EBITDA" are amended in their entirety
to read as follows:
"'Pro Forma Base Core EBITDA'means, for any period,
with respect to any Subject Transaction, the total, without
duplication, of (a) Base Core EBITDA for such period, plus (b) the
EBITDA for such period of (i) any Person acquired directly by the
Company or a Domestic Guarantor and which becomes a Domestic
Guarantor, or (ii) any Facility (determined as if such Facility
was a separate Person) acquired directly by the Company or any
Domestic Guarantor, in either such case as part of such Subject
Transaction, minus (c) in the case of a Permitted JV Transaction,
the portion of the Base Core EBITDA for such period attributable
to each Facility, if any, subject to such Permitted JV
Transaction. In the case of a Subject Transaction involving the
acquisition of a Person or a Facility that, as of the time of such
acquisition has been in existence for less than 12 months, the
EBITDA for such Person or Facility, as the case may be, for such
period shall be deemed to be, for purposes of the preceding clause
(b), the product of (1) its actual EBITDA, and (2) the quotient,
expressed as percentage, of the number of months in such period
divided by the number of months for which such Person or Facility,
as the case may be, has any EBITDA.
'Pro Forma Core EBITDA'means, for any period, with
respect to any Subject Transaction, the total, without
duplication, of (a) Core EBITDA for such period, plus (b) the
EBITDA for such period of (i) any Person which is directly
acquired by the Company or a Wholly-Owned Restricted Subsidiary
and becomes a Wholly-Owned Restricted Subsidiary of the Company,
or (ii) any Facility (determined as if such Facility was a
separate Person) directly acquired by the Company or any of its
Wholly-Owned Restricted Subsidiaries, in either such case as part
of such Subject Transaction, minus (c) in the case of a Permitted
JV Transaction, the product of (i) the portion of the Core EBITDA
for such period attributable to each Facility, if any, subject to
such Permitted JV Transaction (minus, in the case of a lease or a
sublease of a Facility to a Permitted Joint Venture pursuant to
Section 8.8(i), the aggregate rent payable to the Company and its
Wholly-Owned Restricted Subsidiaries under such lease or sublease
during such period, assuming for such purpose that such lease or
sublease had been entered into at the beginning of such period),
and (ii) the excess of 100% over the Company's and its
Wholly-Owned Restricted Subsidiaries aggregate percentage
ownership interest in such Permitted Joint Venture after giving
effect to such Permitted JV Transaction, plus (minus) (d) in the
case of any change to the amount of, or any change in the payment
date for, any rent payable to the Company or any of its
Wholly-Owned Restricted Subsidiaries under a lease or sublease by
any such Person of a Facility to a Permitted Joint Venture
pursuant to Section 8.2(i), the change resulting therefrom to the
aggregate amount of rent payable during such period, assuming for
such purpose that such change became effective at the beginning of
such period. In the case of a Subject Transaction involving the
acquisition of a Person or a Facility that, as of the time of such
acquisition has been in existence for less than 12 months, the
EBITDA for such Person or Facility, as the case may be, for such
period shall be deemed to be, for purposes of the preceding clause
(b), the product of (1) its actual EBITDA, and (2) the quotient,
expressed as a percentage, of the number of months in such period
divided by the number of months for which such Person or Facility,
as the case may be, has any EBITDA."
(xiii) The definition therein of the term "Subject
Transactions" is amended by (A) replacing the text of clause (a) thereof
with "any Permitted JV Transaction,", (B) deleting the word "and" before
clause (e) thereof, and (C) inserting the following after the end of
such clause (e):
", and (f) the entering into of any amendment or other
modification to a lease or sublease of a Facility to a Permitted
Joint Venture pursuant to Section 8.2(i) that decreases the amount
of, or changes the payment date for, any installment of rent
payable to the Company or any Wholly-Owned Restricted Subsidiary
pursuant thereto".
(xiv) The following is inserted after the definition therein
of the term "Variable Rate Notes": "'VRN Facility' means each and any of
the Facilities listed as number 29, 30, 31, 32, 33, 35, 36, 37, 38, 39,
40 or 41 on Schedule 10.1(d) hereto as in effect on the Closing Date and
the Facility owned by Charter Fairmount Behavioral Health System, Inc.
that is located at 561 Fairthorne Avenue, Philadelphia, PA 19128."
(i) Section 12.12 of the Credit Agreement is amended by (i)
inserting "(other than pursuant to a Limited Permitted JV Transaction)" after
the words "disposed of" in clause (ii)(A) of paragraph (b) thereof; and (ii)
inserting the following after paragraph (b) thereof:
"(c) Each Lender, the Agent and the Co-Agent hereby
authorizes the Collateral Agent to, and, upon the request of the
Company, the Collateral Agent, at the sole cost and expense of the
Company and its Restricted Subsidiaries, shall, release a VRN Facility
from the Mortgage, if any, applicable thereto; provided that (i) the
Agent is satisfied that, simultaneously with such release, the Variable
Rate Notes issued to finance such VRN Facility will be converted into
fixed-rate notes or bonds in accordance with the terms thereof and
hereof, (ii) no Default or Event of Default has occurred and is
continuing at the time of such release or has or will result from the
conversion of such Variable Rate Notes into fixed-rate notes or bonds,
(iii) simultaneously with such release the Letter of Credit or
Subsidiary Letter of Credit, as the case may be, providing direct or
indirect, as applicable, credit support for such Variable Rate Notes is
surrendered to the Agent or the applicable L/C Bank (or provisions
reasonably satisfactory to the Agent and the applicable L/C Bank for
such surrender are made), and (iv) the Agent is satisfied that the
fixed-rates notes or bonds into which such Variable Rate Notes are
converted will not be secured by a Lien on such VRN Facility.
(d) Each Lender, the Agent and the Co-Agent hereby
authorizes the Collateral Agent to, and, upon the request of the
Company, the Collateral Agent, at the sole cost and expense of the
Company and its Restricted Subsidiaries, shall, simultaneously with the
consummation of any Limited Permitted JV Transaction described in clause
(b), (c) or (d) of the definition thereof, release (i) the Restricted
Subsidiary whose capital stock is sold or issued, or that is a party to
a merger or consolidation, as applicable, pursuant to such Limited
Permitted JV Transaction from any and all of its obligations under the
Subsidiary Guaranty; and (ii) the property and other assets subject to
such Limited Permitted JV Transaction from the Liens thereon, if any,
under the Security Documents; Provided that, in the case of each and any
release described in the preceding clause (i) or (ii): (A) the Agent is
satisfied that, simultaneously with such release, a Limited Permitted JV
Transaction involving such Restricted Subsidiary or property or other
assets, as the case may be, will occur in accordance with the terms
hereof, (B) no Default or Event of Default has occurred and is
continuing at the time of such release or will result from the
consummation of such Limited Permitted JV Transaction, (C) the Company
has given the Agent at least five Business Days prior written notice of
the date of such Limited Permitted JV Transaction and a description, in
reasonable detail, of such transaction, the parties thereto, the
property and other assets to be subject thereto and the respective
Deemed Values of such property and other assets, (D) if a Subsidiary
Borrower is to be a party to such Limited Permitted JV Transaction or
any of its capital stock is being sold pursuant thereto, then (1) if
after giving effect to such Limited Permitted JV Transaction such
Subsidiary Borrower would no longer be a Subsidiary of the Company, then
all Subsidiary Loans made to such Subsidiary Borrower shall have been
repaid in full, together with all accrued and unpaid interest thereon,
all outstanding amounts payable by such Subsidiary Borrower under the
Credit Documents shall have been paid in full, and all Subsidiary
Letters of Credit issued for the account of such Subsidiary Borrower
shall have been surrendered to the Agent or the applicable L/C Bank, and
(2) such Subsidiary Borrower shall have acknowledged to the Agent for
the benefit of the Lenders in a writing reasonably satisfactory to the
Agent that such Subsidiary Borrower shall no longer be entitled to
request the making of Subsidiary Loans or the issuance of Subsidiary
Letters of Credit for its account pursuant to the Subsidiary Credit
Agreement, and (E) the Restricted Subsidiary that is (or whose assets
are) the subject of such requested release is simultaneously released
from all of its obligations under each guaranty made by it of any
Permitted Subordinated Indebtedness."
Section 2. Clarification of Section 1.15 of Mortgages. The Agent
and each Lender party hereto agrees that nothing contained in Section 1.15 of
any Mortgage shall be construed as a requirement that the Company and its
Wholly-Owned Restricted Subsidiaries are required to manage any Facility that
is contributed, leased or subleased by the Company or any Wholly-Owned
Restricted Subsidiary to a Permitted Joint Venture pursuant to Section 8.2 or
Section 8.8.
Section 3. Representations and Warranties. The Company hereby
represents and warrants to the Agent and the Lenders that:
(a) the execution and delivery by the Company of this
Amendment and the performance by the Company of the Credit Agreement as
amended hereby are within the Company's 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, (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) will not conflict with or result in
any breach of any of the terms, covenants, conditions or provisions of,
or constitute a default under, or result in the creation or imposition
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 indenture, mortgage, deed of trust, agreement or other
instrument (including, without limitation, the Senior Subordinated Notes
Indenture) to which the Company or any of its Subsidiaries 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;
(b) this Amendment, the Credit Agreement as amended hereby
and, after giving effect to this Amendment, the other Credit Documents
constitute the legal, valid and binding obligations of the Company and
the 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, reorganization, 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); and
(c) 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.
Section 4. Effectiveness. This Amendment shall become effective
when 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".
Section 5. Status of Credit Documents. This Amendment is limited
solely for the purposes and to the extent expressly set forth herein, and,
except as expressly 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 6. 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 7. 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).
IN WITNESS WHEREOF, the parties hereto have caused their
respective duly authorized officers to execute and deliver this Amendment No.
2 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:
INDENTURE SUPPLEMENT
NO. 1
This Indenture Supplement No. 1 (the "Supplement"), dated as of June 3,
1994, is among Marine Midland Bank, as Trustee, Charter Medical Corporation,
(the "Company"), the Guarantors listed in the Indenture, as defined below, and
Schizophrenia Treatment and Rehabilitation, Inc. All defined terms used in
this Supplement and not otherwise defined shall have the meanings ascribed to
such terms in the Indenture.
For and in consideration of the premises, the Company, the Guarantors
and the Trustee agree as follows:
1. Recital. This Supplement relates to the Indenture, dated as of
May 2, 1994, among the Company, the Guarantors listed therein and Marine
Midland Bank, with respect to the Company's 11 1/4% Senior Subordinated Notes
due 2004 (the "Indenture"). This Supplement is executed by the Trustee
pursuant to Section 10.01(5) of the Indenture.
2. Supplement. The Indenture is supplemented by adding Schizophrenia
Treatment and Rehabilitation, Inc., Subsidiary of the Company, as Guarantor,
pursuant to the provisions of Section 5.09 of the Indenture relating to
additional Guarantors. By executing this Supplement, Schizophrenia Treatment
and Rehabilitation, Inc. agrees that, effective as of the date first above
written, it is a Guarantor under the Indenture.
3. Miscellaneous.
(a) Instruments to be Read Together. This Indenture Supplement
No. 1 is an indenture supplemental to the Indenture, and such Indenture, and
this Indenture Supplement No. 1 shall henceforth be read together.
(b) Confirmation. The Indenture as amended and supplemented by
this Indenture Supplement No. 1, is in all respects confirmed and preserved.
(c) Governing Law. This Indenture Supplement No. 1 shall be
construed in accordance with and governed by the laws of the State of New
York, without reference to principles of conflicts of law.
(d) Severability. Any provision of this Indenture Supplement No.
1 which is prohibited or unenforceable in any jurisdiction shall not
invalidate the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
(e) Headings. Section, subsection and other headings used in
this Indenture Supplement No. 1 are for convenience only and shall not affect
the construction of this Indenture Supplement No. 1.
(f) Counterparts. This Indenture Supplement No. 1 may be
executed in any number of counterparts, each of which, when so executed in any
number of counterparts, shall be deemed to be an original and all of which
taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
Supplement No. 1 to be duly executed as of the date and year first above
written.
MARINE MIDLAND BANK,
as Trustee
By: /s/ Frank J. Godino
Name: Frank J. Godino
Title: Asst. Corp. Trust Officer
Attest:
/s/ Richard G. Pittius
Name: Richard G. Pittius CHARTER MEDICAL CORPORATION
Title: Assistant Vice President
By: /s/ James R. Bedenbaugh
Name: James R. Bedenbaugh
Title: Treasurer
Attest:
/s/ Linton Newlin
Name: Linton Newlin
Title: Secretary
Each of the Guarantors listed
in the Indenture as listed in Exhibit A
By: /s/ Charlotte A. Sanford
Name: Charlotte A. Sanford
Title:Treasurer or as Director of
Attest: Charter Medical of England, Limited
/s/ James R. Bedenbaugh
Name: James R. Bedenbaugh
Title: Assistant Secretary
Schizophrenia Treatment and
Rehabilitation, Inc.
By: /s/ Charlotte A. Sanford
Name: Charlotte A. Sanford
Title: Treasurer
Attest:
/s/ James M. Filush
Name: James M. Filush
Title: Secretary
Exhibit 4(t) Schedule
The form of Indenture Supplement filed as Exhibit 4(t) is used to admit
certain subsidiaries of the Company as new Guarantors under the Indenture. In
addition to Indenture Supplement No. 1, new Guarantors have been admitted as
follows:
Supplement No. Date New Guarantor
2 July 15, 1994 NEPA - New Hampshire, Inc.
NEPA - Massachusetts, Inc.
4 November 22, 1994 Charter Behavioral Health
System at Manatee Palms
Therapeutic Group Inc.
INDENTURE SUPPLEMENT
NO. 3
This Indenture Supplement No. 3 (the "Supplement"), dated as of
August 30, 1994, is among Marine Midland Bank, as Trustee, Charter Medical
Corporation, (the "Company"), the Guarantors listed in the Indenture, as
defined below, and Schizophrenia Treatment and Rehabilitation, Inc. All
defined terms used in this Supplement and not otherwise defined shall have the
meanings ascribed to such terms in the Indenture.
For and in consideration of the premises, the Company, the Guarantors and
the Trustee agree as follows:
1. Recital. This Supplement relates to the Indenture, dated as of
May 2, 1994, among the Company, the Guarantors listed therein and Marine
Midland Bank, with respect to the Company's 11 1/4% Senior Subordinated Notes
due 2004 (the "Indenture"). This Supplement is executed by the Trustee
pursuant to Section 10.01(5) of the Indenture.
2. Amendment. Section 6.02 of the Indenture is amended by replacing
the term "Restricted Subsidiary" in the proviso of Section 6.02, which states
"provided that if any Guarantor consolidates into, or merges with or into, a
Restricted Subsidiary," and in clause (i) of Section 6.02, which states "such
Restricted Subsidiary is or becomes a Guarantor," with the term "Person".
3. Miscellaneous.
(a) Instruments to be Read Together. This Indenture Supplement No.
3 is an indenture supplemental to the Indenture, and such Indenture, and this
Indenture Supplement No. 3 shall henceforth be read together.
(b) Confirmation. The Indenture as amended and supplemented by
this Indenture Supplement No. 3, is in all respects confirmed and preserved.
(c) Governing Law. This Indenture Supplement No. 3 shall be
construed in accordance with and governed by the laws of the State of New
York, without reference to principles of conflicts of law.
(d) Severability. Any provision of this Indenture Supplement No. 3
which is prohibited or unenforceable in any jurisdiction shall not invalidate
the remaining provisions hereof, and any such prohibition or unenforceability
in any jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
(e) Headings. Section, subsection and other headings used in this
Indenture Supplement No. 3 are for convenience only and shall not affect the
construction of this Indenture Supplement No. 3.
(f) Counterparts. This Indenture Supplement No. 3 may be executed
in any number of counterparts, each of which, when so executed in any number
of counterparts, shall be deemed to be an original and all of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
Supplement No. 3 to be duly executed as of the date and year first above
written.
MARINE MIDLAND BANK,
as Trustee
By: /s/ Frank J. Godino
Name: Frank J. Godino
Title: Asst. Corp. Trust Officer
Attest:
/s/ Richard G. Pittius
Name: Richard G. Pittius CHARTER MEDICAL CORPORATION
Title: Assistant Vice President
By: /s/ James R. Bedenbaugh
Name: James R. Bedenbaugh
Title: Treasurer
Attest:
/s/ Linton Newlin
Name: Linton Newlin
Title: Secretary
Each of the Guarantors listed
in the Indenture as listed in Exhibit A
By: /s/ Charlotte A. Sanford
Name: Charlotte A. Sanford
Title:Treasurer or as Director of
Attest: Charter Medical of England, Limited
/s/ James R. Bedenbaugh
Name: James R. Bedenbaugh
Title: Assistant Secretary
Schizophrenia Treatment and
Rehabilitation, Inc.
By: /s/ Charlotte A. Sanford
Name: Charlotte A. Sanford
Title: Treasurer
Attest:
/s/ James M. Filush
Name: James M. Filush
Title: Secretary