EXHIBIT 4.23
FIRST AMENDMENT dated as of April 15, 1996 (this
"FIRST AMENDMENT"), to the Amended and Restated Credit
Agreement dated as of September 26, 1995 (as amended to
the date hereof, the "AMENDED CREDIT AGREEMENT"), among
Horizon/CMS Healthcare Corporation, a Delaware
corporation ("HORIZON"), Continental Medical Systems,
Inc., a Delaware corporation ("CONTINENTAL", and
together with Horizon, the "BORROWERS"), the lenders
listed on the signature pages thereto (the "LENDERS")
and NationsBank of Texas, N.A., as agent for the
Lenders (in such capacity, the "AGENT") and as issuing
bank (in such capacity, the "ISSUING BANK").
The parties hereto have agreed, subject to the terms and conditions
hereof, to amend the Amended Credit Agreement as provided herein.
Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to such terms in the Amended Credit Agreement (the Amended
Credit Agreement, as amended and waived by, and together with, this First
Amendment, and as hereinafter amended, modified, extended or restated from
time to time, being called the "AMENDED AGREEMENT").
Accordingly, the parties hereto hereby agree as follows:
SECTION 1.01. AMENDMENT TO SECTION 1.01. The following parenthetical
phrase is hereby added to the definition of "subsidiary" in Section 1.01 of
the Amended Agreement after the word "Controlled" in the second to the last
line of such definition:
"(other than Control arising solely from a management contract
entered into in good faith and on an arms-length basis with an
independent, unrelated third party),"
SECTION 1.02. AMENDMENTS TO SECTION 2.20. (a) The following sentence
is hereby added at the end of Section 2.20(a) of the Amended Agreement:
"For purposes hereof, the "issuance of a Letter of Credit"
includes the amendment, renewal or extension of a Letter of Credit."
(b) The following phrase is hereby added in clause (i) of Section 2.20(b)
of the Amended Agreement immediately following the "(i)":
"subject to extension (including pursuant to any automatic
renewal provision in customary form),"
SECTION 1.03. AMENDMENT TO SECTION 6.01. Section 6.01 of the Amended
Agreement is hereby amended by deleting the period at the end of paragraph
(i) thereof and adding "; and" and by adding the following paragraph
immediately after paragraph (i) thereof:
"(j) Guarantees permitted by Section 6.04(e)(ii)."
SECTION 1.04. AMENDMENT TO SECTION 6.04. Paragraph (e) of Section 6.04
of the Amended Agreement is hereby amended as follows:
(a) a "(i)" is hereby added immediately following the "(e)"
which begins paragraph (e) thereof;
(b) the following language is hereby added after the word
"parties" and before the ";" on the fifth line of paragraph (e)
thereof:
"and (ii) loans and advances to, and guarantees in favor of,
any person which Horizon or any of its Subsidiaries has an option
or other right to acquire, whether such option is exercisable
immediately, upon the passage of time or upon the occurrence of
specified events";
(c) the word "investment" after "PROVIDED in the case of each
such" in the fifth line of paragraph (e) thereof is hereby deleted and
the following language is hereby added after "PROVIDED that in the
case of each such" and before the ", that:":
"equity investment, loan, advance or guarantee (each of the
foregoing being referred to herein as an "INVESTMENT")";
(d) clauses (i), (ii) and (iii) of the proviso to paragraph (e)
are hereby redesignated as clauses (A), (B) and (C), respectively;
(e) the following language is hereby added after the word
"Subsidiary" and before the ")" on the fifth line of clause (B) of the
proviso to paragraph (e):
", and in the case of investments in connection with an
option or other right to acquire any person, including the
maximum aggregate potential liability of Horizon and the
Subsidiaries related to such option or other right and any loan,
advance or guarantee associated therewith";
(f) a "," is hereby added after the ")" following the language
added pursuant to the preceding paragraph (e) hereof;
(g) the following language is hereby added to the beginning of
clause (C) of the proviso to paragraph (e):
"in the case of investments referred to in clause (i) above,
such person (I)";
(h) a "(II)" is hereby added to clause (C) of the proviso to
paragraph (e) after "as applicable, or" and before "shall have
executed", and an "and" is hereby added to the end of clause (C) of
the proviso to paragraph (e); and
(i) the following language is hereby added immediately following
clause (C) of the proviso to paragraph (e):
"(D) in the case of investments referred to in clause (ii)
above, (I) any such loan or advance shall be repaid, retired or
refinanced as otherwise permitted hereunder, and any such
guarantee shall be released, upon consummation of the acquisition
of such person or upon termination of such option or other right
and (II) in the case of any loan or other advance, Horizon or the
applicable Subsidiary shall have (1) pledged and delivered to the
Agent for the benefit of the Secured Parties a promissory note of
such person evidencing its obligation to repay such loan or
advance and (2) assigned to the Agent for the benefit of the
Secured Parties any collateral for such promissory note received
by Horizon or such Subsidiary in connection therewith;"
SECTION 1.05. WAIVER. On and as of (but not before) the First
Amendment Effective Date (as defined in Section 1.07), the failure of the
Borrower to comply with Section 6.04 of the Amended Credit Agreement prior to
(but not after) the First Amendment Effective Date as a result of its
investments in Texas Health Enterprises, Inc. shall be permanently waived.
The preceding sentence shall be limited precisely as written.
SECTION 1.06. REPRESENTATIONS AND WARRANTIES. The Borrowers hereby
represent and warrant to the Agent and the Lenders, as follows:
(a) The representations and warranties set forth in Article III
of the Amended Agreement, and in each other Loan Document, are true
and correct in all material respects on and as of the date hereof and
on and as of the First Amendment Effective Date with the same effect
as if made on and as of the date hereof or the First Amendment
Effective Date, as the case may be, except to the extent such
representations and warranties expressly relate solely to an earlier
date.
(b) Each of the Borrowers, the Subsidiary Pledgors and the
Subsidiary Guarantors is in compliance with all the terms and
conditions of the Amended Agreement and the other Loan Documents on
its part to be observed or performed and no Default or Event of
Default has occurred or is continuing under the Amended Agreement.
(c) The execution, delivery and performance by each of the
Borrowers of this First Amendment have been duly authorized by such
party.
(d) This First Amendment constitutes the legal, valid and
binding obligation of each of the Borrowers, enforceable against it in
accordance with its terms.
(e) The execution, delivery and performance by each of the
Borrowers of this First Amendment (i) do not conflict with or violate
(A) any provision of law, statute, rule or regulation, or of the
certificate of incorporation or by-laws of either of the Borrowers,
(B) any order of any Governmental Authority or (C) any provision of
any indenture, agreement or other instrument to which either of the
Borrowers is a party or by which it or any of its property may be
bound and (ii) do not require any consents under, result in a breach
of or constitute (with notice or lapse of time or both) a default
under any such indenture, agreement or instrument.
SECTION 1.07. EFFECTIVENESS. This First Amendment shall become
effective only upon satisfaction of the following conditions precedent (the
first date upon which each such condition has been satisfied being herein
called the "FIRST AMENDMENT EFFECTIVE DATE"):
(a) The Agent shall have received duly executed counterparts of
this First Amendment which, when taken together, bear the authorized
signatures of the Borrowers and the Required Lenders.
(b) The Required Lenders shall be satisfied that the
representations and warranties set forth in Section 1.06 are true and
correct on and as of the First Amendment Effective Date and that no
Default or Event of Default has occurred or is continuing.
(c) There shall not be any action pending or any judgment, order
or decree in effect which, in the judgment of the Required Lenders or
their counsel, is likely to restrain, prevent or impose materially
adverse conditions upon performance by any of the Borrowers, the
Subsidiary Pledgors or the Subsidiary Guarantors of its obligations
under the Loan Documents.
(d) Horizon Facilities Management, Inc. ("HORIZON FM") shall
have pledged and delivered to the Agent for the benefit of the Secured
Parties a promissory note of Texas Health Enterprises, Inc. in the
principal amount of $30,000,000 payable to Horizon FM.
(e) The Required Lenders shall have received such other
documents, legal opinions, instruments and certificates as they shall
reasonably request and such other documents, legal opinions,
instruments and certificates shall be satisfactory in form and
substance to the Required Lenders and their counsel. All
corporate and other proceedings taken or to be taken in connection with
this First Amendment and all documents incidental thereto, whether or not
referred to herein, shall be satisfactory in form and substance to the
Required Lenders and their counsel.
SECTION 1.08. APPLICABLE LAW. THIS FIRST AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
EXCEPT TO THE EXTENT THAT THE FEDERAL LAWS OF THE UNITED STATES OF AMERICA
MAY APPLY.
SECTION 1.09. EXPENSES. The Borrowers shall pay all reasonable
out-of-pocket expenses incurred by the Agent and the Required Lenders in
connection with the preparation, negotiation, execution, delivery and
enforcement of this First Amendment, including, but not limited to, the
reasonable fees and disbursements of counsel. The agreement set forth in
this Section 1.09 shall survive the termination of this First Amendment and
the Amended Agreement.
SECTION 1.10. COUNTERPARTS. This First Amendment may be executed in
any number of counterparts, each of which shall constitute an original but
all of which when taken together shall constitute but one agreement.
SECTION 1.11. CREDIT AGREEMENT. Except as expressly set forth herein,
the amendments and waiver provided herein shall not by implication or
otherwise limit, constitute a waiver of, or otherwise affect the rights and
remedies of the Lenders, the Agent or the other Secured Parties under the
Amended Agreement or any other Loan Document, nor shall they constitute a
waiver of any Default or Event of Default, nor shall they alter, modify,
amend or in any way affect any of the terms, conditions, obligations,
covenants or agreements contained in the Amended Agreement or any other Loan
Document. Each of the amendments and waiver provided herein shall apply and
be effective only with respect to the provisions of the Amended Agreement
specifically referred to by such amendment or waiver, as the case may be.
Except as expressly amended herein, the Amended Agreement shall continue in
full force and effect in accordance with the provisions thereof. As used in
the Amended Agreement, the terms "Agreement", "herein", "hereinafter",
"hereunder", "hereto" and words of similar import shall mean, from and after
the date hereof, the Amended Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be duly executed by their duly authorized officers, all as of the date
first above written.
HORIZON/CMS HEALTHCARE CORPORATION,
as a Borrower
By
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Name:
Title:
CONTINENTAL MEDICAL SYSTEMS, INC.,
as a Borrower
By
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Name:
Title:
NATIONSBANK OF TEXAS, N.A., as Agent, as Issuing
Bank and as a Lender
By
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Name:
Title:
BANK OF AMERICA NT & SA, as Managing
Agent and as a Lender
By
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Name:
Title:
MORGAN GUARANTY TRUST COMPANY OF NEW
YORK, as a Lender
By
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Name:
Title:
CREDIT LYONNAIS CAYMAN ISLAND BRANCH,
as Co-Agent and as a Lender
By
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Name:
Title:
LONG TERM CREDIT BANK OF JAPAN, LTD., LA
AGENCY, as Co-Agent and as a Lender
By
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Name:
Title:
PNC BANK, NATIONAL ASSOCIATION, as Co-Agent
and as a Lender
By
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Name:
Title:
CHEMICAL BANK, as a Lender
By
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Name:
Title:
FIRST INTERSTATE BANK OF TEXAS, N.A.,
as a Lender
By
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Name:
Title:
TORONTO DOMINION (TEXAS) INC., as a Lender
By
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Name:
Title:
BANKERS TRUST COMPANY, as a Lender
By
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Name:
Title:
BANQUE PARIBAS, as a Lender
By
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Name:
Title:
By
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Name:
Title:
BANQUE NATIONALE de PARIS, as a Lender
By
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Name:
Title:
By
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Name:
Title:
DEUTSCHE BANK AG, LOS ANGELES AND/OR
CAYMAN ISLANDS BRANCHES, as a Lender
By
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Name:
Title:
By
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Name:
Title:
MELLON BANK, N.A., as a Lender
By
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Name:
Title:
FLEET BANK OF MASSACHUSETTS, as a Lender
By
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Name:
Title:
SOCIETY NATIONAL BANK, as a Lender
By
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Name:
Title:
SUNWEST BANK OF ALBUQUERQUE, N.A., as a
Lender and as Issuing Bank
By
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Name:
Title:
THE BANK OF TOKYO TRUST COMPANY, as a Lender
By
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Name:
Title:
THE BOATMEN'S NATIONAL BANK OF ST. LOUIS,
as a Lender
By
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Name:
Title:
THE NIPPON CREDIT BANK, LTD., LOS ANGELES
AGENCY, as a Lender
By
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Name:
Title:
THE SUMITOMO BANK, LIMITED, as a Lender
By
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Name:
Title:
THE SUMITOMO TRUST & BANKING CO., LTD., NEW
YORK BRANCH, as a Lender
By
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Name:
Title:
THE SUMITOMO BANK, LIMITED, CHICAGO
BRANCH, as a Lender
By
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Name:
Title:
THE MITSUBISHI BANK, LTD., LOS ANGELES
BRANCH, as a Lender
By
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Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
LOS ANGELES AGENCY, as a Lender
By
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Name:
Title: