Exhibit 4.6
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ATRIA COMMUNITIES, INC.
as Borrower
And
THE LENDERS NAMED HEREIN
as Lenders
And
PNC BANK, NATIONAL ASSOCIATION
as Administrative Agent
PNC BANK, KENTUCKY, INC.
as Managing Agent
NATIONAL CITY BANK OF KENTUCKY
as Documentation Agent
_____________________
AMENDMENT NO. 3
dated as of
May 27, 1997
to
CREDIT AGREEMENT
dated as of
August 15, 1996
_____________________
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AMENDMENT NO. 3 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 3 TO CREDIT AGREEMENT, dated as of May 27, 1997, among
ATRIA COMMUNITIES, INC., a Delaware corporation (herein, together with its
successors and assigns, the "Borrower"); the Lenders who have executed this
Amendment as indicated by their signatures on the signature pages hereof,
constituting all of the Lenders party to the Credit Agreement referred to herein
(the "Lenders"); PNC BANK, NATIONAL ASSOCIATION, a national banking association,
as administrative agent (the "Administrative Agent") for the Lenders under the
Credit Agreement (hereafter defined); PNC BANK, KENTUCKY, INC., a Kentucky
banking corporation, as managing agent (the "Managing Agent") for the Lenders
under the Credit Agreement; and 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, Amendment No. 1
to Credit Agreement, dated as of January 15, 1997, and Amendment No. 2 to Credit
Agreement, dated as of March 27, 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, such Agents and the Lenders party hereto desire to amend
certain of the terms and provisions of the Credit Agreement, all as more fully
set forth below.
NOW, THEREFORE, the parties hereby agree as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT.
Effective on the Effective Date (as hereinafter defined), the Pricing Grid
which appears in section 1.8(h) of the Credit Agreement is replaced with the
following:
PRICING GRID
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Applicable DPP Base Applicable DPP
Leverage Ratio Rate Margin Eurodollar Margin
less than or equal to 2.00 to 1.00 0% 3/4 of 1%
greater than 2.00 to 1.00 but less than or equal to 2.25 to 1.00 0% 7/8 of 1%
greater than 2.25 to 1.00 but less than or equal to 2.50 to 1.00 0% 1%
greater than 2.50 to 1.00 but less than or equal to 2.75 to 1.00 1/8 of 1% 1+1/8%
greater than 2.75 to 1.00 but less than or equal to 3.00 to 1.00 1/4 of 1% 1+1/4%
greater than 3.00 to 1.00 but less than or equal to 3.50 to 1.00 1/2 of 1% 1+1/2%
greater than 3.50 to 1.00 but less than or equal to 4.00 to 1.00 3/4 of 1% 1+3/4%
greater than 4.00 to 1.00 1% 2%
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SECTION 2. AMENDMENTS TO OTHER CREDIT DOCUMENTS.
2.1. Parent Guaranty. On the Effective Date, the Credit Parties named
therein and the Administrative Agent shall enter into Amendment No. 2 to Parent
Guaranty, substantially in the form attached hereto as Exhibit A ("Amendment No.
2 to Parent Guaranty").
2.2. Consent to Amendments. The Lenders party hereto and the Agents party
hereto hereby consent to the execution and delivery of Amendment No. 2 to Parent
Guaranty, and to the amendments effected thereby.
SECTION 3. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants as follows:
3.1. Current Financial Statements. The Borrower has delivered to the
Administrative Agent and each Lender prior to the execution of this Amendment
true, correct and complete copies of (i) the audited consolidated financial
statements of the Borrower and its consolidated subsidiaries for the fiscal year
ended December 31, 1996, and (ii) the unaudited condensed consolidated financial
statements of the Borrower and its consolidated subsidiaries for the fiscal
quarter ended March 31, 1997. Such consolidated financial statements have been
prepared in accordance with generally accepted accounting principles,
consistently applied (except as noted therein), and fairly present the
consolidated financial condition of the Borrower and its consolidated
subsidiaries at such dates and the consolidated results of their operations and
cash flows for the periods then ended, subject in the case of such unaudited
financial statements to normal audit adjustments which are not expected to be
material.
3.2. Amendment of Parent Credit Agreement. The Borrower has delivered to
the Managing Agent and the Documentation Agent prior to the execution of this
Amendment true, correct and complete copies of a proposed Amended and Restated
Credit Agreement, amending (and/or restating) the Parent's Credit Agreement,
dated as of March 17, 1997, among the Parent, as Borrower, the Banks referred to
therein, the Swingline Bank referred to therein, the LC Issuing Banks referred
to therein, Morgan Guaranty Trust Company of New York, as Documentation Agent
and Collateral Agent, and NationsBank, N.A., as Administrative Agent, providing,
among other things, for an increase in the credit facilities thereunder to
$2,000,000,000.
3.3. 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.
3.4. 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.
3.5. 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.
3.6. 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.
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SECTION 4. 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 5. BINDING EFFECT.
This Amendment shall become effective if and when, on a date (the
"Effective Date") on or prior to June 15, 1997, 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;
(c) the Administrative Agent shall have been notified by all of the
Lenders that such Lenders have executed this Amendment (which notification
may be by facsimile or other written confirmation of such execution);
(d) Amendment No. 2 to Parent Guaranty shall have been duly executed
and delivered and shall be in full force and effect; and
(e) the amendment to the Parent's Credit Agreement referred to in
section 3.2 shall have become effective in accordance with its terms;
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.
SECTION 6. MISCELLANEOUS.
6.1. 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.
6.2. 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.
6.3. 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
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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.
6.4. 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.
6.5. Applicable Law. This Amendment shall be governed by and construed in
accordance with the laws of the Commonwealth of Kentucky.
6.6. Headings. The headings, captions and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
6.7. 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.
6.8. 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 Dougherty
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Chief Financial Officer and Vice President
Vice President of Development
PNC BANK, NATIONAL ASSOCIATION, THE CHASE MANHATTAN BANK
individually and as
Administrative Agent
By: /s/ Justin 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. Imhof
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Vice President Vice President
PNC BANK, KENTUCKY, INC., AMSOUTH BANK OF ALABAMA
individually and as
Managing Agent
By: /s/ Benjamin A. Willingham By: /s/ Ken DiSatta
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Vice President Vice President
THE TORONTO-DOMINION BANK U.S BANK OF WASHINGTON,
NATIONAL ASSOCIATION
By: /s/ Jimmy Simien By: /s/ Arnold Conrad
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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 Wood
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Senior Vice President Assistant Vice President
NATIONSBANK, N.A. KEYBANK NATIONAL ASSOCIATION
By: /s/ Kevin Wagley By: /s/ 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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