Exhibit 10.1
EXECUTION COPY
AMENDMENT NO. 1
TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT (the
"Amendment") is made as of March 31, 2006 by and among Chemed Corporation, a
Delaware corporation (the "Borrower"), the financial institutions listed on the
signature pages hereto (the "Lenders") and JPMorgan Chase Bank, National
Association, as the administrative agent for the "Lenders" referred to below
(the "Administrative Agent"). Capitalized terms used herein but not otherwise
defined herein shall have the respective meanings given to them in the "Credit
Agreement" referred to below.
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Administrative Agent are parties
to that certain Amended and Restated Credit Agreement dated as of February 24,
2005 (as the same may be amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement"); and
WHEREAS, the parties hereto have agreed to amend the Credit Agreement on
the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises set forth above, the terms
and conditions contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Borrower, the
Lenders and the Administrative Agent have agreed to the following amendments to
the Credit Agreement.
1. Amendments. Effective as of the date hereof and subject to the
satisfaction of the conditions precedent set forth in Section 2 below, the
Credit Agreement is hereby amended as follows:
(a) Section 1.1 of the Credit Agreement is hereby amended to (1) delete
the "and" immediately preceding clause (xiii) of the definition of "Consolidated
EBITDA", (2) delete the period at the end of such clause (xiii), and (3) insert
a new clause (xiv) into such definition as follows:
"and (xiv) up to $20,000,000 of the amount of the settlement payment
made in respect of the Costa class-action litigation."
(b) Section 2.5 of the Credit Agreement is hereby amended to insert a new
Section 2.5.3 therein as follows:
"2.5.3 Increase in Aggregate Revolving Loan Commitment. Subject to
Section 2.5 and the other terms and conditions of this Agreement, the
Borrower may from time to time request that the Aggregate Revolving Loan
Commitment be increased to an amount which does not exceed $225,000,000;
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provided, however, that an increase in the Aggregate Revolving Loan
Commitment hereunder may only be made at a time when no Unmatured Event of
Default or Event of Default shall have occurred and be continuing or would
result therefrom. In the event of such a requested increase in the
Aggregate Revolving Loan Commitment, each of the Lenders shall be given the
opportunity to participate in the increased Aggregate Revolving Loan
Commitment (x) initially ratably in the proportion that its commitment
bears to the Aggregate Revolving Loan Commitment and (y) to the extent that
the requested increase in the Aggregate Revolving Loan Commitment is not
fulfilled pursuant to the preceding clause, in such additional amounts as
any Lender, including any new Lender, and the Borrower agree. No Lender
shall have any obligation to increase its Revolving Loan Commitment
pursuant to a request by the Borrower hereunder. In the event that the
Borrower and one or more of the Lenders (or other financial institutions)
shall agree upon such an increase in the Aggregate Revolving Loan
Commitment (i) the Borrower, the Administrative Agent and each Lender or
other financial institution increasing its Revolving Loan Commitment or
extending a new Revolving Loan Commitment shall enter into an amendment to
this Agreement setting forth the amounts of the Revolving Loan Commitments,
as so increased, providing that the financial institutions extending new
Revolving Loan Commitments shall be Lenders for all purposes under this
Agreement, and setting forth such additional provisions as the
Administrative Agent shall consider reasonably appropriate and (ii) the
Borrower shall furnish, if requested, a new Note to each financial
institution that is extending a new Revolving Loan Commitment or increasing
its Revolving Loan Commitment. No such amendment shall require the approval
or consent of any Lender whose Revolving Loan Commitment is not being
increased. Upon the execution and delivery of such amendment as provided
above, and upon satisfaction of such other conditions as the Administrative
Agent may reasonably specify upon the request of the financial institutions
that are extending new Revolving Loan Commitments (including, without
limitation, the Administrative Agent administering the reallocation of any
outstanding Loans ratably among the Lenders after giving effect to each
such increase in the Aggregate Revolving Loan Commitment, and the delivery
of certificates, evidence of corporate authority and legal opinions on
behalf of the Borrower), this Agreement shall be deemed to be amended
accordingly."
(c) The Pricing Schedule to the Credit Agreement is hereby amended
and restated in its entirety pursuant to the Pricing Schedule attached as Annex
I to this Amendment.
2. Conditions of Effectiveness. This Amendment shall become
effective as of the date hereof if, and only if, the Administrative Agent shall
have received: (a) executed copies of this Amendment from the Borrower and the
Lenders, and (b) executed copies of the Reaffirmation attached hereto in the
form of Exhibit A from the existing Guarantors.
3. Representations and Warranties of the Borrower. The Borrower
hereby represents and warrants as follows:
(a) The Credit Agreement as previously executed constitutes the
legal, valid and binding obligation of the Borrower and is enforceable against
the Borrower in accordance with its terms.
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(b) Upon the effectiveness of this Amendment, the Borrower hereby (i)
represents that no Event of Default or Unmatured Event of Default exists under
the terms of the Credit Agreement, (ii) reaffirms all covenants, representations
and warranties made in the Credit Agreement, and (iii) agrees that all
representations and warranties contained in Article V of the Credit Agreement
are true and correct as of the date hereof in all material respects except to
the extent any such representation or warranty is stated to relate solely to an
earlier date, in which case such representation or warranty shall have been true
and correct in all material respects on and as of such earlier date.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power, or remedy of the Lenders or the Administrative Agent under the Credit
Agreement or any related document, instrument or agreement. The Administrative
Agent and the Lenders expressly reserve all of their rights and remedies,
including the right to institute enforcement actions in consequence of any
existing Events of Default or Unmatured Events of Default not waived hereunder
or otherwise at any time without further notice, under the Credit Agreement, all
other documents, instruments and agreements executed in connection therewith,
and applicable law.
4. Reference to and Effect on the Credit Agreement and Loan
Documents.
(a) Upon the effectiveness of Section 1 hereof, each reference to the
Credit Agreement in the Credit Agreement or any other Loan Document shall mean
and be a reference to the Credit Agreement as modified hereby. This Amendment is
a Loan Document pursuant to the Credit Agreement and shall (unless expressly
indicated herein or therein) be construed, administered, and applied, in
accordance with all of the terms and provisions of the Credit Agreement.
(b) The Borrower (i) agrees that this Amendment and the transactions
contemplated hereby shall not limit or diminish the obligations of the Borrower
arising under or pursuant to the Credit Agreement and the other Loan Documents
to which it is a party, (ii) reaffirms its obligations under the Credit
Agreement and each and every other Loan Document to which it is a party and
(iii) acknowledges and agrees that, except as specifically modified above, the
Credit Agreement and all other Loan Documents executed and/or delivered in
connection therewith shall remain in full force and effect and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of the Administrative Agent or the Lenders, nor constitute a
waiver of or consent to any modification of any provision of the Credit
Agreement or any other Loan Documents executed and/or delivered in connection
therewith.
5. Costs and Expenses. The Borrower agrees to pay all reasonable
costs, fees and out of pocket expenses (including reasonable attorneys' fees and
expenses charged to the Administrative Agent) incurred by the Administrative
Agent and the Lenders in connection with the preparation, arrangement, execution
and enforcement of this Amendment.
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6. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW
BUT OTHERWISE WITHOUT REGARD TO CONFLICTS OF LAW PROVISIONS OR PRINCIPLES) OF
THE STATE OF NEW YORK, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL
BANKS.
7. Headings. Section headings in this Amendment are included herein
for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose.
8. Counterparts. This Amendment may be executed by one or more of
the parties hereto on any number of separate counterparts (including by means of
facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument.
The remainder of this page is intentionally blank.
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IN WITNESS WHEREOF, this Amendment has been duly executed as of
the day and year first above written.
CHEMED CORPORATION,
as the Borrower
By: /s/ David P. Williams
--------------------------------
Name: David P. Williams
Title: Chief Financial Officer
Signature Page to Amendment No. 1
to Amended and Restated Chemed Credit Agreement
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as the Administrative Agent, as Swing Line Lender, as
LC Issuer and as a Lender
By: /s/ Thomas J. Reinhold
--------------------------
Name: Thomas J. Reinhold
Title: Senior Vice President
Signature Page to Amendment No. 1
to Amended and Restated Chemed Credit Agreement
GENERAL ELECTRIC CAPITAL CORPORATION,
as a Lender
By: /s/ Dwayne Coker
--------------------------------
Name: Dwayne Coker
Title: Duly Authorized Signatory
Signature Page to Amendment No. 1
to Amended and Restated Chemed Credit Agreement
BANK OF AMERICA, N.A.,
as a Lender
By: /s/ Jorge Miliou
--------------------------------
Name: Jorge Miliou
Title: Vice President
Signature Page to Amendment No. 1
to Amended and Restated Chemed Credit Agreement
CITICORP USA, INC.,
as a Lender
By: /s/ Allen Fisher
-----------------------------------
Name: Allen Fisher
Title: Vice President
Signature Page to Amendment No. 1
to Amended and Restated Chemed Credit Agreement
LASALLE BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Warren F. Weber
----------------------------------
Name: Warren F. Weber
Title: Senior Vice President
Signature Page to Amendment No. 1
to Amended and Restated Chemed Credit Agreement
HARRIS N.A.,
as a Lender
By: /s/ Jeffrey M. Worden
-----------------------------------
Name: Jeffrey M. Worden
Title: Vice President
Signature Page to Amendment No. 1
to Amended and Restated Chemed Credit Agreement
FIFTH THIRD BANK,
as a Lender
By: /s/ Megan S. Heisel
------------------------------------
Name: Megan S. Heisel
Title: Vice President
Signature Page to Amendment No. 1
to Amended and Restated Chemed Credit Agreement
ALLIED IRISH BANKS PLC,
as a Lender
By: /s/ Margaret Brennan
------------------------------------
Name: Margaret Brennan
Title: Senior Vice President
By: /s/ Roisin O'Connell
--------------------------------------
Name: Roisin O'Connell
Title:
Signature Page to Amendment No. 1
to Amended and Restated Chemed Credit Agreement
THE NATIONAL CITY BANK
(f.k.a. The Provident Bank),
as a Lender
By: /s/ John D. Chapman
------------------------------------------
Name: John D. Chapman
Title: Vice President
Signature Page to Amendment No. 1
to Amended and Restated Chemed Credit Agreement
THE HUNTINGTON NATIONAL BANK,
as a Lender
By: /s/ Christopher L. Henn
------------------------------------
Name: Christopher L. Henn
Title: Senior Vice President
Signature Page to Amendment No. 1
to Amended and Restated Chemed Credit Agreement
ANNEX I
to Amendment No. 1 to Amended and Restated Credit Agreement
Pricing Schedule
----------------
[Attached]
Signature Page to Amendment No. 1
to Amended and Restated Chemed Credit Agreement
Annex I
PRICING SCHEDULE
===================== ============== ============== ============== ================ =============== ==================
APPLICABLE LEVEL I LEVEL II LEVEL III LEVEL IV STATUS LEVEL V STATUS LEVEL VI STATUS
MARGIN STATUS STATUS STATUS
- --------------------- -------------- -------------- -------------- ---------------- --------------- ------------------
Eurodollar Rate for 2.25% 2.00% 1.75% 1.50% 1.25% 1.00%
Revolving Loans
- --------------------- -------------- -------------- -------------- ---------------- --------------- ------------------
Floating Rate for 1.25% 0.75% 0.25% 0.00% 0.00% 0.00%
Revolving Loans
===================== ============== ============== ============== ================ =============== ==================
===================== ============== ============== ============== ================ =============== ==================
APPLICABLE FEE LEVEL I LEVEL II LEVEL III LEVEL IV STATUS LEVEL V STATUS LEVEL VI STATUS
RATE STATUS STATUS STATUS
- --------------------- -------------- -------------- -------------- ---------------- --------------- ------------------
Commitment Fee 0.50% 0.375% 0.375% 0.375% 0.25% 0.25%
===================== ============== ============== ============== ================ =============== ==================
For the purposes of this Schedule, the following terms have the following
meanings, subject to the final paragraph of this Schedule:
"Financials" means the annual or quarterly financial statements of the
Borrower delivered pursuant to Section 6.1.
"Level I Status" exists at any date if, as of the last day of the fiscal
quarter of the Borrower referred to in the most recent Financials, the Leverage
Ratio is equal to or greater than 3.50 to 1.00.
"Level II Status" exists at any date if, as of the last day of the fiscal
quarter of the Borrower referred to in the most recent Financials, the Leverage
Ratio is equal to or greater than 3.00 to 1.00 but less than 3.50 to 1.00.
"Level III Status" exists at any date if, as of the last day of the fiscal
quarter of the Borrower referred to in the most recent Financials, the Leverage
Ratio is equal to or greater than 2.50 to 1.00 but less than 3.00 to 1.00.
"Level IV Status" exists at any date if, as of the last day of the fiscal
quarter of the Borrower referred to in the most recent Financials, the Leverage
Ratio is equal to or greater than 2.00 to 1.00 but less than 2.50 to 1.00.
"Level V Status" exists at any date if, as of the last day of the fiscal
quarter of the Borrower referred to in the most recent Financials, the Leverage
Ratio is equal to or greater than 1.50 to 1.00 but less than 2.00 to 1.00.
"Level VI Status" exists at any date, if, as of the last day of the fiscal
quarter of the Borrower referred to in the most recent Financials, the Leverage
Ratio is less than 1.50 to 1.00.
"Status" means either Level I Status, Level II Status, Level III Status,
Level IV Status, Level V Status or Level VI Status.
The Applicable Margin and Applicable Fee Rate shall be determined in
accordance with foregoing table based on the Borrower's Status as reflected in
the then most recent Financials. Adjustments, if any, to the Applicable Margin
or Applicable Fee Rate shall be effective five Business Days after the
Administrative Agent has received the applicable Financials. If the Borrower
fails to deliver the Financials to the Administrative Agent at the time required
pursuant to Section 6.1, then the Applicable Margin and Applicable Fee Rate
shall be the highest Applicable Margin and Applicable Fee Rate set forth in the
foregoing table until five days after such Financials are so delivered.
EXHIBIT A
Reaffirmation
-------------
Each of the undersigned hereby acknowledges receipt of a copy of Amendment
No. 1, dated as of March 31, 2006 (the "Amendment"), to the Amended and Restated
Credit Agreement, dated as of February 24, 2005, by and among Chemed
Corporation, a Delaware corporation (the "Borrower"), the financial institutions
from time to time parties thereto (the "Lenders") and JPMorgan Chase Bank,
National Association, as the administrative agent for the Lenders (the
"Administrative Agent") (as the same may from time to time hereafter be amended,
restated, supplemented or otherwise modified, the "Credit Agreement").
Capitalized terms used in this Reaffirmation and not defined herein shall have
the meanings given to them in the Credit Agreement.
Each of the undersigned, by its signature below, hereby (a) acknowledges
and consents to the execution and delivery of the Amendment by the parties
thereto, (b) agrees that the Amendment and the transactions contemplated thereby
shall not limit or diminish the obligations of such Person arising under or
pursuant to the Loan Documents to which it is a party (including, without
limitation, the Pledge and Security Agreement and the Guaranty Agreement), (c)
reaffirms all of its obligations under the Loan Documents to which it is a
party, and (d) acknowledges and agrees that each Loan Document executed by it
remains in full force and effect and is hereby reaffirmed, ratified and
confirmed. All references to the Credit Agreement contained in any Loan Document
shall be a reference to the Credit Agreement as so modified by the Amendment and
as the same may from time to time hereafter be amended, restated, supplemented
or otherwise modified. The Amendment is a Loan Document pursuant to the Credit
Agreement and shall (unless expressly indicated therein) be construed,
administered, and applied, in accordance with all of the terms and provisions of
the Credit Agreement.
*******
IN WITNESS WHEREOF, this Reaffirmation has been duly executed as of this
31st day of March, 2006.
CCR OF OHIO INC.
COMFORT CARE HOLDINGS CO.
COMPLETE PLUMBING SERVICES, INC.
CONSOLIDATED HVAC, INC.
JET RESOURCE, INC.
NUROTOCO OF MASSACHUSETTS, INC.
NUROTOCO OF NEW JERSEY, INC.
R.R. UK, INC.
ROTO-ROOTER CORPORATION
ROTO-ROOTER DEVELOPMENT COMPANY
ROTO-ROOTER GROUP, INC. (f/k/a ROTO-ROOTER
MANAGEMENT COMPANY)
ROTO-ROOTER SERVICES COMPANY
RR PLUMBING SERVICES CORPORATION
VITAS HEALTHCARE CORPORATION
VITAS HEALTHCARE CORPORATION OF ARIZONA
VITAS HEALTHCARE CORPORATION OF CALIFORNIA
VITAS HEALTHCARE CORPORATION OF CENTRAL FLORIDA
VITAS HEALTHCARE CORPORATION OF FLORIDA
VITAS HEALTHCARE CORPORATION OF GEORGIA
VITAS HEALTHCARE CORPORATION OF ILLINOIS
VITAS HEALTHCARE CORPORATION OF OHIO
VITAS HEALTHCARE CORPORATION ATLANTIC
VITAS HEALTHCARE CORPORATION MIDWEST
VITAS HEALTHCARE OF TEXAS, L.P.
VITAS HME SOLUTIONS, INC.
VITAS HOLDINGS CORPORATION
VITAS HOSPICE SERVICES, L.L.C.
By: /s/ David P. Williams
----------------------------------------
Name: David P. Williams
Title: Chief Financial Officer
Signature Page to Reaffirmation