EXHIBIT 4.9
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ATRIA COMMUNITIES, INC.
AS BORROWER
AND
THE LENDERS NAMED HEREIN
AS LENDERS
AND
PNC BANK, N. A.
AS ADMINISTRATIVE AGENT
AND
AS MANAGING AGENT
NATIONAL CITY BANK OF KENTUCKY
AS DOCUMENTATION AGENT
_____________________
AMENDMENT NO. 6
DATED AS OF
JANUARY 30, 1998
TO
CREDIT AGREEMENT
DATED AS OF
AUGUST 15, 1996
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AMENDMENT NO. 6
TO
CREDIT AGREEMENT
THIS AMENDMENT NO. 6 TO CREDIT AGREEMENT, dated as of January 30, 1998
("THIS AMENDMENT"), among (i) ATRIA COMMUNITIES, INC., a Delaware corporation
(herein, together with its successors and assigns, the "BORROWER"); (ii) the
Lenders who have executed this Amendment as indicated by their signatures on the
signature pages hereof; (iii) PNC BANK, N. A., a national banking association,
as administrative agent (the "ADMINISTRATIVE AGENT") and as managing agent (the
"MANAGING AGENT") for the Lenders under the Credit Agreement (hereafter
defined); and (iv) NATIONAL CITY BANK OF KENTUCKY, a national banking
association, as documentation agent (the "DOCUMENTATION AGENT") for the Lenders
under the Credit Agreement:
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders named therein, and the Agents party hereto
entered into the Credit Agreement, dated as of August 15, 1996, as amended by
Amendment No. 1 to Credit Agreement, dated as of January 15, 1997, Amendment No.
2 to Credit Agreement, dated as of March 27, 1997, Amendment No. 3 to Credit
Agreement, dated as of May 27, 1997, Amendment No. 4 to Credit Agreement, dated
as of September 29, 1997, and Amendment No. 5 to Credit Agreement, dated as of
December 31, 1997 (as so amended, the "CREDIT AGREEMENT"; with the terms defined
therein, or the definitions of which are incorporated therein, being used herein
as so defined).
(2) The Borrower has received a proposal from a separate financing source
for a synthetic lease financing of certain of the properties referred to in
Amendment No. 5 to Credit Agreement, which properties were originally
contemplated to be acquired by the Borrower. It is a condition to such lease
financing that cash or Cash Equivalents be deposited as collateral security
therefor.
(3) The Borrower, such Agents and the Lenders party hereto desire to amend
certain of the terms and provisions of the Credit Agreement in order to (i)
permit the Borrower to complete such synthetic lease financing, and (ii)
specifically provide that obligations in respect of synthetic lease transactions
are considered Indebtedness, all as more fully set forth below.
(4) The result of these changes will be that, in determining the leverage
ratio under section 8.12(a) of the Credit Agreement, (i) the amount of
obligations in respect of the synthetic lease transaction will be considered
Indebtedness, and (ii) the cash and Cash Equivalents which constitute collateral
security for such synthetic lease obligations will be taken into account for
purposes of determining the aggregate cash and Cash Equivalents in excess of
$10,000,000.
NOW, THEREFORE, the parties hereby agree as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT.
1.1 ADDITIONS TO MATURE PROPERTY POOL, ETC. Effective on the Effective
Date (as hereinafter defined), for the avoidance of doubt, the Borrower hereby
confirms that, because it proposes to make the following properties the subject
of a separate synthetic lease financing transaction, (i) such properties will
not become part of the Mature Property Pool as contemplated by section 1.2 of
Amendment No. 5 to Credit Agreement, referred to above, namely, (1) Briarcliff-
BVRC, (2) Briarcliff-BVHC, (3) Briarcliff-Chandler, and (4) Briarcliff-Copeland,
and (ii) at some future time such properties may become part of the Mature
Property Pool in accordance with the applicable provisions of the Credit
Agreement.
1.2 LIEN COVENANT. Effective on the Effective Date, clause (i) of section
8.3 of the Credit Agreement is amended to add thereto provisions permitting the
Borrower to grant certain cash collateral, so that, as so amended, such clause
(i) reads in its entirety as follows:
(i) Liens arising from financing statements regarding leases not in
violation of this Agreement; and during the term of a synthetic lease
financing of the following properties for a basic term of 5 years, namely,
(1) Briarcliff-BVRC, (2) Briarcliff-BVHC, (3) Briarcliff-Chandler, and (4)
Briarcliff-Copeland Liens on cash and Cash Equivalents with an original
valuation of approximately $35,300,000 deposited as security with a
financial institution as security for such synthetic lease financing;
1.3 DEFINITION OF INDEBTEDNESS. The definition of the term "Indebtedness"
contained in section 10 of the Credit Agreement is amended to include a
reference to synthetic leases (which appears as clause (vii) below) so that as
so amended such definition reads in its entirety as follows:
"INDEBTEDNESS" of any person shall mean without duplication (i) all
indebtedness of such person for borrowed money, (ii) all bonds, notes,
debentures and similar debt securities of such person, (iii) the deferred
purchase price of assets or services which in accordance with GAAP would be
shown on the liability side of the balance sheet of such person, (iv) the
face amount of all letters of credit issued for the account of such person
and, without duplication, all drafts drawn thereunder, (v) all Indebtedness
of a second person secured by any Lien on any property owned by such first
person, whether or not such indebtedness has been assumed, (vi) all
Capitalized Lease Obligations of such person, (vii) all obligations of such
person under synthetic leases (I.E. leases which are accounted for as
"operating leases" in accordance with GAAP but as to which the lessee is
the owner for Federal income tax purposes of the property subject to such
leases and is entitled to depreciate its ownership of such property),
(viii) all obligations of such person to pay a specified purchase price for
goods or services whether or not delivered or accepted, I.E., take-or-pay
and similar obligations, (ixi) all net obligations of such person under
Interest Rate Agreements and (x) all Contingent Obligations of such person,
PROVIDED that neither trade payables and accrued expenses, in each case
arising in the ordinary course of business, nor obligations in respect of
insurance policies or performance or surety bonds which themselves are not
guarantees of Indebtedness (nor drafts, acceptances or similar instruments
evidencing the same nor obligations in respect of letters of credit
supporting the payment of the same), shall constitute Indebtedness.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants as follows:
2.1 AUTHORIZATION, VALIDITY AND BINDING EFFECT. This Amendment has been
duly authorized by all necessary corporate action on the part of the Borrower,
has been duly executed and delivered by a duly authorized officer or officers of
the Borrower, and constitutes the valid and binding agreement of the Borrower,
enforceable against the Borrower in accordance with its terms.
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2.2 REPRESENTATIONS AND WARRANTIES TRUE AND CORRECT. The representations
and warranties of the Borrower contained in the Credit Agreement, as amended
hereby, are true and correct on and as of the date hereof as though made on and
as of the date hereof, except to the extent that such representations and
warranties expressly relate to a specified date, in which case such
representations and warranties are hereby reaffirmed as true and correct when
made.
2.3 NO EVENT OF DEFAULT, ETC. No condition or event has occurred or
exists which constitutes or which, after notice or lapse of time or both, would
constitute an Event of Default.
2.4 COMPLIANCE. The Borrower is in full compliance with all covenants and
agreements contained in the Credit Agreement, as amended hereby, and the other
Credit Documents to which it is a party.
SECTION 3. RATIFICATIONS.
The terms and provisions set forth in this Amendment shall modify and
supersede all inconsistent terms and provisions set forth in the Credit
Agreement, and except as expressly modified and superseded by this Amendment,
the terms and provisions of the Credit Agreement are ratified and confirmed and
shall continue in full force and effect.
SECTION 4. BINDING EFFECT.
This Amendment shall become effective if and when, on a date (the
"EFFECTIVE DATE") on or prior to February 3, 1998, the following conditions
shall have been satisfied:
(a) this Amendment shall have been executed by the Borrower, the
Administrative Agent, the Managing Agent and the Documentation Agent, and
counterparts hereof as so executed shall have been delivered to the
Administrative Agent;
(b) the Acknowledgment and Consent appended hereto shall have been
executed by the Credit Parties named therein, and counterparts thereof as
so executed shall have been delivered to the Administrative Agent; and
(c) the Administrative Agent shall have been notified by the Required
Lenders that such Lenders have executed this Amendment (which notification
may be by facsimile or other written confirmation of such execution);
and thereafter this Amendment shall be binding upon and inure to the benefit of
the Borrower, the Administrative Agent, the Managing Agent, the Documentation
Agent and each Lender and their respective permitted successors and assigns.
After this Amendment becomes effective, the Managing Agent will promptly furnish
a copy of this Amendment to each Lender and the Borrower and confirm the
specific Effective Date hereof.
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SECTION 5. MISCELLANEOUS.
5.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made in this Amendment shall survive the execution and delivery of
this Amendment, and no investigation by any Agent or any Lender or any
subsequent Loan or other Credit Event shall affect the representations and
warranties or the right of any Agent or any Lender to rely upon them.
5.2 REFERENCE TO CREDIT AGREEMENT. The Credit Agreement and any and all
other agreements, instruments or documentation now or hereafter executed and
delivered pursuant to the terms of the Credit Agreement as amended hereby, are
hereby amended so that any reference therein to the Credit Agreement shall mean
a reference to the Credit Agreement as amended hereby.
5.3 EXPENSES. As provided in the Credit Agreement, but without limiting
any terms or provisions thereof, the Borrower agrees to pay on demand all costs
and expenses incurred by the Administrative Agent, the Managing Agent or the
Documentation Agent in connection with the preparation, negotiation, and
execution of this Amendment, including without limitation the costs and fees of
the Documentation Agent's and the Administrative Agent's special legal counsel,
regardless of whether this Amendment becomes effective in accordance with the
terms hereof, and all costs and expenses incurred by the Administrative Agent,
the Managing Agent, the Documentation Agent or any Lender in connection with the
enforcement or preservation of any rights under the Credit Agreement, as amended
hereby.
5.4 SEVERABILITY. Any term or provision of this Amendment held by a court
of competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the term or provision so held to be invalid or unenforceable.
5.5 APPLICABLE LAW. This Amendment shall be governed by and construed in
accordance with the laws of the Commonwealth of Kentucky.
5.6 HEADINGS. The headings, captions and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
5.7 ENTIRE AGREEMENT. This Amendment is specifically limited to the
matters expressly set forth herein. This Amendment and all other instruments,
agreements and documentation executed and delivered in connection with this
Amendment embody the final, entire agreement among the parties hereto with
respect to the subject matter hereof and supersede any and all prior
commitments, agreements, representations and understandings, whether written or
oral, relating to the matters covered by this Amendment, and may not be
contradicted or varied by evidence of prior, contemporaneous or subsequent oral
agreements or discussions of the parties hereto. There are no oral agreements
among the parties hereto relating to the subject matter hereof or any other
subject matter relating to the Credit Agreement.
5.8 COUNTERPARTS. This Amendment may be executed by the parties hereto
separately in one or more counterparts, each of which when so executed shall be
deemed to be an original, but all of which when taken together shall constitute
one and the same agreement.
[The balance of this page is intentionally blank.]
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IN WITNESS WHEREOF, this Amendment has been duly executed and delivered as
of the date first above written.
ATRIA COMMUNITIES, INC. THE BANK OF NEW YORK
BY: /s/ J. TIMOTHY WESLEY BY: /s/ EDWARD J. DOUGHERTY, III
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CHIEF FINANCIAL OFFICER AND VICE PRESIDENT
VICE PRESIDENT OF DEVELOPMENT
PNC BANK, N. A., THE CHASE MANHATTAN BANK
INDIVIDUALLY AND AS
ADMINISTRATIVE AGENT,
AND AS MANAGING AGENT
BY: /s/ JUSTIN A. FALGIONE BY: /s/ DAWN LEE LUM
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VICE PRESIDENT VICE PRESIDENT
NATIONAL CITY BANK OF KENTUCKY, MORGAN GUARANTY TRUST COMPANY OF
INDIVIDUALLY AND AS NEW YORK
DOCUMENTATION AGENT
BY: /s/ DEROY SCOTT BY: /s/ DIANA H. INKOF
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VICE PRESIDENT VICE PRESIDENT
AMSOUTH BANK OF ALABAMA
BY: /s/ JOSEPH M. ROSEN
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VICE PRESIDENT
THE TORONTO-DOMINION BANK U.S BANK OF WASHINGTON,
NATIONAL ASSOCIATION
BY: /s/ JIMMY SIMIEN BY:
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MGR. CREDIT ADMINISTRATION VICE PRESIDENT
BANK ONE, KENTUCKY, NA FIRST AMERICAN NATIONAL BANK
BY: /s/ DENNIS P. HEISHMAN BY: /s/ KENT P. WOOD
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SENIOR VICE PRESIDENT SENIOR VICE PRESIDENT
NATIONSBANK, N.A. KEY CORPORATE CAPITAL INC.
BY: /s/ KEVIN WAGLEY BY: /s/ J. MARK MULLEN
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VICE PRESIDENT ASSISTANT VICE PRESIDENT
FLEET NATIONAL BANK
BY: /s/ GINGER STOLZENTHALER
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VICE PRESIDENT
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ACKNOWLEDGMENT AND CONSENT
For the avoidance of doubt, and without limitation of the intent and effect
of sections 5 and 6 of the Parent Guaranty and sections 6 and 10 of the
Subsidiary Guaranty (as each of such terms is defined in the Credit Agreement
referred to in the Amendment No. 6 to Credit Agreement (the "AMENDMENT"), to
which this Acknowledgment and Consent is appended), each of the undersigned
hereby unconditionally and irrevocably (i) acknowledges receipt of a copy of the
Credit Agreement and the Amendment, and (ii) consents to all of the terms and
provisions of the Credit Agreement as amended by the Amendment.
Capitalized terms which are used herein without definition shall have the
respective meanings ascribed thereto in the Credit Agreement referred to herein.
This Acknowledgment and Consent is for the benefit of the Lenders, the
Administrative Agent, the Collateral Agent, the Managing Agent, the
Documentation Agent, any other person who is a third party beneficiary of the
Parent Guaranty or the Subsidiary Guaranty, and their respective successors and
assigns. No term or provision of this Acknowledgment and Consent may be modified
or otherwise changed without the prior written consent of the Administrative
Agent, given as provided in the Credit Agreement. This Acknowledgment and
Consent shall be binding upon the successors and assigns of each of the
undersigned. This Acknowledgment and Consent may be executed by any of the
undersigned in separate counterparts, each of which shall be an original and all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the undersigned has duly executed and delivered
this Acknowledgment and Consent as of the date of the Amendment referred to
herein.
SIGNATURES OF PARTIES TO THE PARENT GUARANTY
VENCOR, INC.
FIRST HEALTHCARE CORPORATION
NORTHWEST HEALTH CARE, INC.
MEDISAVE PHARMACIES, INC.
NATIONWIDE CARE, INC.
THERATX, INCORPORATED
(SUCCESSOR BY MERGER WITH
PEACH ACQUISITION CORP.)
VENCOR HOSPITALS ILLINOIS, INC.
VENCOR HOSPITALS SOUTH, INC.
VENCOR HOSPITALS EAST, INC.
VENCOR HOSPITALS CALIFORNIA, INC.
VENCOR HOSPITALS TEXAS, LTD.
BY: VCI SPECIALTY SERVICES, INC.,
ITS GENERAL PARTNER
VENTECH SYSTEMS, INC.
PASATIEMPO DEVELOPMENT CORP.
VCI SPECIALTY SERVICES, INC.
VENCOR PROPERTIES, INC.
BY: /s/ RICHARD A. LECHLEITER
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VICE PRESIDENT
SIGNATURES OF PARTIES TO THE PARENT GUARANTY-CONTINUED
PERSONACARE, INC.
RESPIRATORY CARE SERVICES, INC.
THERATX MEDICAL SUPPLIES, INC.
THERATX HEALTHCARE MANAGEMENT INC.
THERATX STAFFING, INC.
HORIZON HEALTHCARE SERVICES, INC.
PERSONACARE OF CONNECTICUT, INC.
PERSONACARE OF HUNTSVILLE, INC.
PERSONACARE OF OHIO, INC.
PERSONACARE OF OWENSBORO, INC.
PERSONACARE OF PENNSYLVANIA, INC.
PERSONACARE OF READING, INC.
PERSONACARE OF SAN ANTONIO, INC.
PERSONACARE OF SAN PEDRO, INC.
PERSONACARE OF WISCONSIN, INC.
PERSONACARE OF RHODE ISLAND, INC.
PERSONACARE OF ST. PETERSBURG, INC.
PERSONACARE OF POMPANO WEST, INC.
PERSONACARE OF CLEARWATER, INC.
PERSONACARE OF BRADENTON, INC.
PERSONACARE OF POMPANO EAST, INC.
PERSONACARE OF SHREVEPORT, INC.
TUCKER NURSING CENTER, INC.
LAFAYETTE HEALTH CARE CENTER, INC.
PERSONACARE OF WARNER ROBINS, INC.
NFM, INC.
STAMFORD HEALTH FACILITIES, INC.
COURTLAND GARDENS HEALTH CENTER, INC.
COURTLAND GARDENS RESIDENCE, INC.
HOMESTEAD HEALTH CENTER, INC.
TUNSTALL ENTERPRISES, INC.
STAMFORD HEALTH ASSOCIATES LIMITED
PARTNERSHIP
BY: STAMFORD HEALTH FACILITIES, INC.,
ITS GENERAL PARTNER
CARE VENTURE PARTNERS, L.P.
BY: PERSONACARE OF RHODE ISLAND, INC.
ITS GENERAL PARTNER
OAK HILL NURSING ASSOCIATES LIMITED
PARTNERSHIP
BY: PERSONACARE OF RHODE ISLAND, INC.,
ITS GENERAL PARTNER
HEALTH HAVENS ASSOCIATES LIMITED PARTNERSHIP
BY: PERSONACARE OF RHODE ISLAND, INC.,
ITS GENERAL PARTNER
BY: /s/ RICHARD A. LECHLEITER
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VICE PRESIDENT
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SIGNATURES OF PARTIES TO THE PARENT GUARANTY-CONTINUED
TRANSITIONAL HOSPITALS CORPORATION, A NEVADA CORPORATION
TRANSITIONAL HOSPITALS CORPORATION, A DELAWARE CORPORATION
COMMUNITY PSYCHIATRIC CENTERS OF CALIFORNIA, A CALIFORNIA CORPORATION
TRANSITIONAL HOSPITALS CORPORATION OF LOUISIANA INC., A LOUISIANA CORPORATION
TRANSITIONAL HOSPITALS CORPORATION OF TEXAS INC., A TEXAS CORPORATION
THC-SEATTLE, INC., A WASHINGTON CORPORATION
TRANSITIONAL HOSPITALS CORPORATION OF INDIANA, INC., AN INDIANA CORPORATION
THC MINNEAPOLIS, INC., A MINNESOTA CORPORATION
J. B. THOMAS HOSPITAL, INC., A MASSACHUSETTS CORPORATION
TRANSITIONAL HOSPITALS CORPORATION OF NEVADA, INC., A NEVADA CORPORATION
THC-CHICAGO, INC., AN ILLINOIS CORPORATION
THC-NORTH SHORE, INC., AN ILLINOIS CORPORATION
TRANSITIONAL HOSPITALS CORPORATION OF NEW MEXICO, INC., A NEW MEXICO CORPORATION
TRANSITIONAL HOSPITALS CORPORATION OF TAMPA, INC., A FLORIDA CORPORATION
THC-HOLLYWOOD, INC., A FLORIDA CORPORATION
THC-HOUSTON, INC., A TEXAS CORPORATION
TRANSITIONAL HOSPITALS CORPORATION OF WISCONSIN, INC., A WISCONSIN CORPORATION
THC-ORANGE COUNTY, INC., A CALIFORNIA CORPORATION
THC-SAN DIEGO, INC., A CALIFORNIA CORPORATION
COMMUNITY PSYCHIATRIC CENTERS PROPERTIES, INCORPORATED, A CALIFORNIA CORPORATION
CPC INVESTMENT CORPORATION, A CALIFORNIA CORPORATION
VENCOR KENTUCKY, INC., A DELAWARE CORPORATION
BY: /s/ RICHARD A. LECHLEITER
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RICHARD A. LECHLEITER
VICE PRESIDENT OF FINANCE AND
CORPORATE CONTROLLER, ON BEHALF OF
EACH OF THE ABOVE CORPORATIONS
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SIGNATURES OF PARTIES TO THE SUBSIDIARY GUARANTY
LANTANA PARTNERS, LTD.
BY: HILLHAVEN PROPERTIES, LTD.,
A GENERAL PARTNER
PHILLIPPE ENTERPRISES, INC.
HILLHAVEN PROPERTIES, LTD.
CASTLE GARDENS RETIREMENT CENTER
BY: HILLHAVEN PROPERTIES, LTD.,
A GENERAL PARTNER
HILLCREST RETIREMENT CENTER, LTD.
BY: FAIRVIEW LIVING CENTERS, INC.,
A GENERAL PARTNER
SANDY RETIREMENT CENTER LIMITED PARTNERSHIP
BY: HILLHAVEN PROPERTIES, LTD.,
A GENERAL PARTNER
TOPEKA RETIREMENT CENTER, LTD.
BY: HILLHAVEN PROPERTIES, LTD.,
A GENERAL PARTNER
EVERGREEN WOODS, LTD.
BY: ATRIA COMMUNITIES, INC.,
A GENERAL PARTNER
FAIRVIEW LIVING CENTERS, INC.
TWENTY-NINE HUNDRED ASSOCIATES, LTD.
BY: TWENTY-NINE HUNDRED CORPORATION,
A GENERAL PARTNER
TWENTY-NINE HUNDRED CORPORATION
WOODHAVEN PARTNERS, LTD.
BY: HILLHAVEN PROPERTIES, LTD.,
A GENERAL PARTNER
TUCSON RETIREMENT CENTER LIMITED
PARTNERSHIP
BY: HILLHAVEN PROPERTIES, LTD.,
A GENERAL PARTNER
BY: /s/ J. TIMOTHY WESLEY
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VICE PRESIDENT
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SIGNATURES OF PARTIES TO THE SUBSIDIARY GUARANTY-CONTINUED
ATRIA COMMUNITIES SOUTHEAST, INC.
AMERICAN ELDERSERVE MANAGEMENT, INC.
SOUTHERN CARE, INC.
AMERICAN ELDERSERVE OF ALABAMA, INC.
AMERICAN ELDERSERVE OF TEXAS, INC.
SOUTHEAST ASSISTED LIVING RESIDENCES, INC.
AMERICAN ELDERSERVE OF NORTH CAROLINA, INC.
AMERICAN ELDERSERVE OF FLORIDA, INC.
PLANTATION SOUTH ON CYPRESSWOOD
LIMITED PARTNERSHIP
BY: AMERICAN ELDERSERVE OF TEXAS, INC.
ITS GENERAL PARTNER
PLANTATION SOUTH AT AUBURN PARTNERSHIP
BY: AMERICAN ELDERSERVE OF ALABAMA, INC.
ITS GENERAL PARTNER
BY: /s/ J. TIMOTHY WESLEY
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VICE PRESIDENT
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