EXHIBIT 4.11
AMENDMENT NO. 2 (the "Amendment")
dated as of June 20, 1994 to the Credit
and Guaranty Agreement dated as of
August 18, 1993 (the "Agreement"), among
AMERICAN MEDICAL INTERNATIONAL, INC., a
Delaware corporation (the "Borrower"),
AMERICAN MEDICAL HOLDINGS, INC., a
Delaware corporation ("Holdings"), THE
LENDERS REFERRED TO THEREIN, (the
"Lenders"), CHEMICAL BANK, a New York
banking corporation, as agent for the
Lenders (the "Agent"), THE BANK OF NOVA
SCOTIA, as Co-Agent and THE LONG TERM
CREDIT BANK OF JAPAN, LTD., LOS ANGELES
AGENCY, as Co-Agent.
INTRODUCTORY STATEMENT
All capitalized terms not otherwise defined in this
Amendment are used herein as defined in the Agreement.
The Lenders have made available to the Borrower a
revolving credit facility in the amount of $600,000,000.
The Borrower, Holdings, the Lenders and the Agent
have agreed (i) to reconstitute the group of syndicate banks
which are party to the Agreement by (A) adding each of the
banks listed on Annex A hereto (the "Additional Lenders") as
a party to the Agreement if it is not already a party and (B)
deleting each of the banks listed on Annex B hereto (the
"Withdrawing Lenders") as a party thereto, (ii) to change the
Commitments of the Lenders, and (iii) to effect the purchase
by the Purchasing Lenders of a portion of the outstanding
Loans and rights with regard to outstanding Letters of
Credit, all on the terms and subject to the conditions
hereinafter set forth.
In consideration of the mutual agreements contained
herein and other good and valuable consideration, the parties
hereto hereby agree as follows:
SECTION 1. CERTAIN DEFINITIONS. Solely for
purposes of this Amendment, the following terms shall have
the meanings indicated:
"PURCHASING LENDERS" shall mean the Additional
Lenders together with each other Lender whose "Commitment" as
shown on Schedule 1 (Revised June 20, 1994) which is attached
hereto is greater than the amount of its Commitment as in
effect immediately prior to the effectiveness of this
Amendment.
"SELLING LENDERS" shall mean the Withdrawing
Lenders together with each other Lender whose "Commitment" as
shown on Schedule 1 (Revised June 20, 1994) which is,attached
hereto is less than the amount of its Commitment as in effect
immediately prior to the effectiveness of this Amendment.
SECTION 2. AMENDMENT TO THE AGREEMENT. Subject to
the provisions of Section 4 hereof, the Agreement is hereby
amended effective as of the Effective Date (such term being
used herein as defined in Section 4 hereof) as follows:
(A) each of the Additional Lenders is hereby added
as a party to the Agreement and as a "Lender" thereunder;
(B) each of the Withdrawing Lenders is hereby
deleted as a party to the Agreement and as a "Lender"
thereunder; and
(C) Schedule 1 to the Agreement (the Table of
Commitments) is hereby amended in its entirety by replacing
it with Schedule 1 (Revised June 20, 1994) which is annexed
hereto.
SECTION 3. Purchase of a Portion of the
Commitments, Loans and Rights With Regard to Letters of
CREDIT.
(A) Effective on the Effective Date, each of the
Selling Lenders hereby irrevocably sells and assigns to the
Purchasing Lenders without recourse, and each Purchasing
Lender hereby irrevocably purchases and assumes from each
Selling Lender without recourse to such Selling Lender, that
portion of each Selling Lender's Commitment under the
Agreement, such that after giving effect to such sale and
assignment and purchase and assumption, each Withdrawing
Lender's Commitment will be reduced to zero and each other
Lender (including each Additional Lender) will have the
Commitment set forth opposite its name in the Table of
Commitments which appears in Schedule 1 (Revised
June 20, 1994) which is attached hereto.
(B) Effective on the Effective Date, each of the
Selling Lenders hereby irrevocably sells and assigns to the
Purchasing Lenders without recourse, and each Purchasing
Lender hereby irrevocably purchases and assumes from each
Selling Lender to whom outstanding Alternate Base Rate Loans
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are owed and who have participated in the outstanding Letters
of Credit, without recourse to such Selling Lender, that
portion of their outstanding Alternate Base Rate Loans and
their rights to outstanding Letters of Credit, such that
after giving effect to such sale and assignment and purchase
and assumption, each Lender (including each Purchasing
Lender) will hold a share of all then outstanding Alternate
Base Rate Loans and all rights to then outstanding Letters of
Credit which share is in accordance with such Lender's
Percentage after giving effect to this Amendment. Such
purchase shall be made by each Purchasing Lender for a
purchase price equal to the difference between (i) the
aggregate principal amount of outstanding Alternate Base Rate
Loans that are owed to such Purchasing Lender on the
Effective Date, after giving effect to the foregoing
provisions of this Section 3(B), MINUS (ii) the aggregate
principal amount of outstanding Alternate Base Loans that
were owed to such Purchasing Lender immediately prior to the
Effective Date, before giving effect to the foregoing
provisions of this Section 3(B).
(C) The Borrower hereby agrees to prepay all
outstanding Eurodollar Loans together with all accrued but
unpaid interest thereon to but excluding the Effective Date
and any other amounts required by Section 2.10 of the
Agreement to be paid by the Borrower to a Lender by reason of
the transactions contemplated hereby; PROVIDED, HOWEVER, that
an amount not in excess of the aggregate amount of such
Eurodollar Loans which have been prepaid, may be immediately
re-borrowed on the Effective Date as either Alternate Base
Rate Loans or Eurodollar Loans and with such Interest Period
or Interest Periods as the Borrower shall request in writing.
Any Loans made by the Lenders (including the Purchasing
Lenders), pursuant to this Section 3(C), shall be made by
each Lender (including each Purchasing Lender) in accordance
with such Lender's Percentage on the Effective Date after
giving effect to this Amendment.
(D) None of the Lenders (i) makes any
representation or warranty or assumes any responsibility with
respect to any statements, warranties or representations made
in or in connection with the Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency
or value of any of the Fundamental Documents or any other
instrument or document furnished pursuant thereto, other than
that it is the legal and beneficial owner of the interests
being sold and assigned by it hereunder and that such
interests are free and clear of any adverse claim; and
(ii) makes any representation or warranty or assumes any
responsibility with respect to the financial condition of the
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Credit Parties or the performance or observance by any Credit
Party of any of its obligations under any of the Fundamental
Documents or any other instrument or document furnished
pursuant thereto.
(E) Each Purchasing Lender hereby (i) represents
and warrants that it is legally authorized to enter into this
Amendment, (ii) confirms that it has received a copy of the
Agreement, together with copies of the most recent financial
statements delivered pursuant to Sections 5.01(a) and 5.01(b)
of the Agreement and such other documents and information as
it has deemed appropriate to make its own credit analysis and
decision to enter into this Amendment; (iii) agrees that it
will, independently and without reliance upon the Agent or
any Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the
Agreement; (iv) appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such
powers under the Fundamental Documents as are delegated to
the Agent by the terms thereof, together with such powers as
are reasonably incidental thereto; (v) agrees that it will be
bound by the provisions of the Agreement and will perform in
accordance with its terms all the obligations which by the
terms of the Agreement are required to be performed by it as
a Lender; (vi) if such Purchasing Lender is organized under
the laws of a jurisdiction outside the United States,
confirms that it has delivered to the Agent the forms
prescribed by the Internal Revenue Service of the United
States certifying as to such Purchasing Lender's exemption
from United States withholding taxes with respect to all
payments to be made to such Purchasing Lender under the
Agreement, or such other documents as are necessary to
indicate that all such payments are subject to such tax at a
rate reduced by any applicable tax treaty and (vii) confirms
that it has completed and returned to the Agent its
administrative questionnaire.
(F) From and after the effectiveness of this Amendment,
(i) each Purchasing Lender shall be a party to the Agreement and,
to the extent provided in this Amendment, the rights and obligations
of a Lender thereunder and under the other Fundamental Documents
and shall be bound by the provisions thereof and (ii) each of the
Withdrawing Lenders shall cease to be a party to the Agreement, shall
be released from its obligations thereunder and, except to the extent
expressly set forth in the following sentence, shall automatically
release the Borrower and Holdings from any further obligations to
such Withdrawing Lender under or in connection with the Agreement.
It is expressly understood
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and agreed that (a) none of the Selling Lenders is assigning
to any Purchasing Lender, and each Selling Lender shall
retain, (1) all of such Selling Lender's rights under
Sections 2.03(f) and 2.11 of the Agreement with respect to
any cost, reduction or payment incurred or made on or prior
to the Effective Date, including, without limitation, the
rights to indemnification and to reimbursement for taxes,
costs and expenses and (2) any and all amounts paid to such
Selling Lender on or prior to the Effective Date and (b) both
the Selling Lenders and the Purchasing Lenders shall be.
entitled to the benefits of Sections 10.04 and 10.05 of the
Agreement.
(G) On or before the Effective Date, the Borrower,
at its own expense, shall execute and deliver to the Agent,
for the account of each Purchasing Lender, a promissory note
identical to the Note held by each Lender, but payable to
each Purchasing Lender and in the amount of its Commitment
after giving effect to this Amendment (each a "New Note"). Each
Purchasing Lender hereby acknowledges and agrees that
payments of principal and interest made on or prior to the
Effective Date by the Borrower in respect of the Alternate
Base Rate Loans purchased by each Purchasing Lender pursuant
to this Amendment and evidenced by such Purchasing Lender's
New Note have satisfied the obligation of the Borrower to
make such payments in respect.of such Loans under such New
Note prior to the Effective Date. In addition, on or before
the Effective Date, the Borrower, at its own expense, shall
execute and deliver to the Agent, for the account of each of
the Lenders (other than the Purchasing Lenders and any Lender
whose Commitment will not change upon the effectiveness of
this Amendment) that will have a commitment under the
Agreement after giving effect to this Amendment, a promissory
note identical to the Note currently held by such Lender and
previously executed by the Borrower in connection with
Agreement, but in the amount of such Lender's Commitment
after giving effect to this Amendment (each a "Replacement
Note"). Each of the Replacement Notes and the New Notes
shall for all purposes be a "Note" under the Agreement. On
the Effective Date, the Notes of the Lenders that will be
receiving Replacement Notes shall be deemed cancelled and
each such Lender shall promptly deliver its Note to the Agent
for redelivery to the Borrower, in each case with an
appropriate notation as to the cancellation of such Note. For
purposes of the foregoing, each such Lender hereby
authorizes the Agent to make notations on its behalf on such
Lender's Note as to the cancellation thereof.
(H) On the Effective Date, each Purchasing Lender
shall pay to the Agent (for the benefit of the Selling
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Lenders) an amount equal to the purchase price (as set forth
in Section 3(B) hereof) of the outstanding Alternate Base
Rate Loans and rights to outstanding Letters of Credit being
purchased and assumed by it pursuant to this Amendment, by
wire transfer of immediately available funds. Promptly
following its receipt thereof, the Agent will distribute such
amounts to the Selling Lenders pro rata in accordance with
the outstanding Alternate Base Rate Loans and rights to
outstanding Letters of Credit sold by each of them.
(I) On the Effective Date, the Borrower hereby
agrees to pay to the Agent (for the benefit of the Lenders)
(i) the interest on the outstanding Alternate Base Rate Loans
accrued and unpaid to but excluding the Effective Date,
(ii) the aggregate amount required to be paid or prepaid by
it pursuant to Section 3(C) hereof, (iii) the accrued and
unpaid amount, to but excluding the Effective Date, of the
commission payable pursuant to Section 2.03(e)(ii) of the
Agreement with respect to outstanding Letters of Credit and
(iv) all accrued and unpaid Commitment Fees to but excluding
the Effective Date. Promptly following its receipt thereof,
the Agent will distribute the foregoing amounts as follows:
(a) the amounts described in clause (i), (iii) and (iv) shall
be distributed to the Lenders pro rata in accordance with the
outstanding Alternate Base Rate Loans and rights to
outstanding Letters of Credit held by each of them
immediately prior to the effectiveness of this Amendment; (b)
the aggregate amount of outstanding Eurodollar Loans and the
accrued and unpaid interest thereon shall be distributed to
the Lenders pro rata in accordance with the outstanding
Eurodollar Loans held by each of them immediately prior to
the effectiveness of this Amendment; and (c) any amount
required by Section 2.10 of the Agreement to be paid by the
Borrower to a Lender in connection with the transactions
contemplated hereby, shall be distributed to such Lender for
its own account.
SECTION 4. CONDITIONS TO EFFECTIVENESS. The
effectiveness of this Amendment and the obligations of the
Purchasing Lenders and Lenders hereunder are subject to the
satisfaction in full on or prior to June 30, 1994 of the
following conditions precedent (the first date on which all
such conditions have been satisfied being herein referred to
as the "Effective Date"):
(A) the Agent shall have received executed
counterparts of this Amendment, which, when taken together,
bear the signatures of the Agent, the Borrower, Holdings and
all of the Lenders (including all Withdrawing Lenders and all
Additional Lenders);
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(B) the Agent shall have received the original New
Notes and Replacement Notes contemplated by Section 3(G)
hereof, each duly executed by the Borrower;
(C) the Agent shall have received executed
counterparts of Amendment No. 3 to the Agreement, which when
taken together, bear the signatures of the Agent, the
Borrower, Holdings and such of the Lenders as are sufficient,
and all other actions shall have been taken, such that,
Amendment No. 3 to the Agreement will become effective
immediately following the effectiveness of this Amendment;
(D) the Agent shall have received all amounts
required by the terms of this Amendment to be paid by any
party hereto; and
(E) all legal matters in connection with this
Amendment shall be reasonably satisfactory to Lord Day &
Lord, Barrett Smith, counsel for the Agent.
SECTION 5. REPRESENTATIONS AND WARRANTIES. Each
of Holdings and the Borrower represents and warrants to the
Lenders that:
(A) the representations and warranties contained
in the Agreement and in the other Fundamental Documents are
true and correct on and as of the date hereof as if such
representations and warranties had been made on and as of the
date hereof (except to the extent such representations and
warranties expressly relate to an earlier date); and
(B) no Default or Event of Default has occurred or
is continuing under the Agreement.
SECTION 6. FULL FORCE AND EFFECT.
(A) Except as expressly set forth herein, this
Amendment does not constitute a waiver or modification of any
provision of the Agreement or a waiver of any Default or
Event of Default under the Agreement, in either case whether
or not known to the Agent. Except as expressly amended
hereby, the Agreement shall continue in full force and effect
in accordance with the provisions thereof on the date hereof.
As used in the Agreement, the terms "Credit Agreement", "this
Agreement", "herein", "hereafter", "hereto", "hereof", and
words of similar import, shall, unless the context otherwise
requires, mean the Agreement as amended by this Amendment.
References to the terms "Agreement" or "Credit Agreement"
appearing in the Exhibits or Schedules to the Agreement,
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shall, unless the context otherwise requires, mean the
Agreement as amended by this Amendment.
(B) References to the term "Schedule 1" appearing
in the Agreement or in the Exhibits or Schedules to the
Agreement, shall, unless the context otherwise requires, mean
Schedule 1 (Revised June 20, 1994) which is attached to this
Amendment.
(C) References to the terms "Note" or "Notes"
appearing in the Agreement or in the Exhibits or Schedules to
the Agreement, shall, unless the context otherwise requires,
include the New Notes and the Replacement Notes.
SECTION 7. APPLICABLE LAW. THIS AMENDMENT SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.
SECTION 8. COUNTERPARTS. This Amendment may be
executed in two or more counterparts, each of which shall
constitute an original, but all of which when taken together
shall constitute but one instrument.
SECTION 9. EXPENSES. The Borrower agrees to pay
all reasonable out-of-pocket expenses incurred by the Agent
in connection with the preparation, execution and delivery of
this Amendment and any other documentation contemplated
hereby, including, but not limited to, the reasonable fees
and disbursements of Lord Day & Lord, Barrett Smith, counsel
for the Agent.
SECTION 10. HEADINGS. The headings of this Amend-
ment are for the purposes of reference only and shall not
affect the construction of this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment to be duly executed by their duly authorized
officers, all as of the date and year first written above.
AMERICAN MEDICAL INTERNATIONAL, INC.
By
---------------------------------
Name:
Title:
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AMERICAN MEDICAL HOLDINGS, INC.
By
----------------------------------
Name:
Title:
CHEMICAL BANK, INDIVIDUALLY AND
AS AGENT
By
----------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA, INDIVIDUALLY
AND AS CO-AGENT
By
---------------------------------
Name:
Title:
THE LONG TERM CREDIT BANK OF JAPAN,
LTD., LOS ANGELES AGENCY,
INDIVIDUALLY AND AS CO-AGENT
By
----------------------------------
Name:
Title:
ARAB BANK PLC
By
----------------------------------
Name:
Title:
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By
----------------------------------
Name:
Title:
BANK OF HAWAII
By
----------------------------------
Name:
Title:
BANK OF IRELAND, GRAND CAYMAN BRANCH
By
----------------------------------
Name:
Title:
BANQUE FRANCAISE DU COMMERCE EXTERIEUR
By
----------------------------------
Name:
Title:
By
----------------------------------
Name:
Title:
BANQUE PARIBAS
By
----------------------------------
Name:
Title:
By
----------------------------------
Name:
Title:
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CITICORP USA, INC.
By
----------------------------------
Name:
Title:
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
By
----------------------------------
Name:
Title:
By
----------------------------------
Name:
Title:
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK
By
----------------------------------
Name:
Title:
By
----------------------------------
Name:
Title:
DRESDNER BANK AG, NEW YORK BRANCH AND
GRAND CAYMAN BRANCH
By
----------------------------------
Name:
Title:
By
----------------------------------
Name:
Title:
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FIRST INTERSTATE BANK OF TEXAS, N.A.
By
----------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA
By
----------------------------------
Name:
Title:
GIROCREDIT BANK, NEW YORK BRANCH
By
-----------------------------------
Name:
Title:
By
----------------------------------
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
NEW YORK BRANCH
By
----------------------------------
Name:
Title:
THE MITSUBISHI BANK, LTD
By
----------------------------------
Name:
Title:
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THE SAKURA BANK, LIMITED
LOS ANGELES AGENCY
By
----------------------------------
Name:
Title:
NATIONAL WESTMINSTER BANK USA
By
----------------------------------
Name:
Title:
NATIONSBANK OF TEXAS, N.A.
By
----------------------------------
Name:
Title:
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By
----------------------------------
Name:
Title:
By
----------------------------------
Name:
Title:
SHAWMUT BANK CONNECTICUT, N.A.
By
----------------------------------
Name:
Title:
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THE SUMITOMO TRUST & BANKING CO.,
LTD., NEW YORK BRANCH
By
----------------------------------
Name:
Title:
THE DAI-ICHI KANGYO BANK, LTD.
LOS ANGELES AGENCY
By
----------------------------------
Name:
Title:
THE FUJI BANK, LIMITED, HOUSTON AGENCY
By
----------------------------------
Name:
Title:
THE TOKAI BANK, LTD.
LOS ANGELES AGENCY
By
----------------------------------
Name:
Title:
WITHDRAWING LENDERS:
MITSUI LEASING (U.S.A.) INC.
By
----------------------------------
Name:
Title:
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NATIONAL CITY BANK
By
----------------------------------
Name:
Title:
ADDITIONAL LENDERS:
THE BANK OF TOKYO, LTD., DALLAS AGENCY
By
----------------------------------
Name:
Title:
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By
----------------------------------
Name:
Title:
DEUTSCHE BANK AG NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
By
----------------------------------
Name:
Title:
By
----------------------------------
Name:
Title:
PNC BANK, N.A.
By
----------------------------------
Name:
Title:
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TORONTO DOMINION (TEXAS), INC.
By
----------------------------------
Name:
Title:
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ANNEX A
LIST OF ADDITIONAL LENDERS
The Bank of Tokyo, Ltd., Dallas Agency
Credit Lyonnais Cayman Island Branch
Deutsche Bank AG New York and/or Cayman Islands Branches
PNC Bank, N.A.
Toronto Dominion (Texas), Inc.
ANNEX B
LIST OF WITHDRAWING LENDERS
Mitsui Leasing (U.S.A.) Inc.
National City Bank
Schedule 1
(Revised June 20, 1994)
TABLE OF COMMITMENTS
LENDER COMMITMENT
- ------ ----------
Chemical Bank $37,000,000.00
The Bank of Nova Scotia 37,000,000.00
The Long Term Credit Bank of Japan, 37,000,000.00
Ltd., Los Angeles Agency
Bank of America National Trust 29,000,000.00
and Savings Association
Citicorp USA, Inc. 29,000,000.00
NationsBank of Texas, N.A. 29,000,000.00
The Dai-Ichi Kangyo Bank, Ltd., 29,000,000.00
Los Angeles Agency
The Industrial Bank of Japan, 29,000,000.00
Limited, New York Branch
Shawmut Bank Connecticut, N.A. 23,000,000.00
The Fuji Bank, Limited, Houston Agency 23,000,000.00
The Sakura Bank, Limited 23,000,000.00
Los Angeles Agency
Banque Paribas l8,OOO,OOO.OO
Dresdner Bank AG, New York Branch 18,000,000.00
and Grand Cayman Branch
First Union National Bank 18,000,000.00
of North Carolina
National Westminster Bank USA 18,000,000.00
Cooperatieve Centrale l8,OOO,OOO.OO
Raiffeisen-Boerenleenbank B.A.,
"Rabobank Nederland",
New York Branch
First Interstate Bank of 18,000,000.00
Texas, N.A.
The Mitsubishi Bank, LTD 18,000,000.00
The Tokai Bank, Ltd. 18,000,000.00
Los Angeles Agency
Compagnie Financiere de Cic 14,000,000.00
et de L'Union Europeene
The Sumitomo Trust & Banking Co., Ltd., 14,000,000.00
New York Branch
Credit Lyonnais Cayman Island Branch 11,000,000.00
Toronto Dominion (Texas), Inc. 11,000,000.00
Arab Bank PLC 9,000,000.00
Bank of Hawaii 9,000,000.00
Bank of Ireland, Grand Cayman Branch 9,000,000.00
The Bank of Tokyo, Ltd., Dallas Agency 9,000,000.00
Banque Francais du Commerce Exterieur 9,000,000.00
DG Bank Deutsche Genossenschaftsbank 9,000,000.00
Deutsche Bank AG New York and/or
Cayman Islands Branches 9,000,000.00
GiroCredit Bank, New York Branch 9,000,000.00
PNC Bank, N.A. 9,000,000.00
--------------
TOTAL $600,OOO,OOO.00
AMENDMENT NO. 3 (the "Amendment")
dated as of June 20, 1994 to the Credit
and Guaranty Agreement dated as of
August 18, 1993, as amended (the
"Agreement"), among AMERICAN MEDICAL
INTERNATIONAL, INC., a Delaware
corporation (the "Borrower"), AMERICAN
MEDICAL HOLDINGS, INC., a Delaware
corporation ("Holdings"), THE LENDERS
REFERRED TO THEREIN, (the "Lenders"),
CHEMICAL BANK, a New York banking
corporation, as agent for the Lenders
(the "Agent"), THE BANK OF NOVA SCOTIA,
as Co-Agent and THE LONG TERM CREDIT BANK
OF JAPAN, LTD., LOS ANGELES AGENCY, as
Co-Agent.
INTRODUCTORY STATEMENT
All capitalized terms not otherwise defined in this Amendment are used
herein as defined in the Agreement.
The Lenders have made available to the Borrower a revolving credit
facility in the amount of $600,000,000. Holdings and the Borrower have
requested that the Agreement be amended to modify certain provisions thereof
as hereinafter set forth. In consideration of the mutual agreements contained
herein and other good and valuable consideration, the parties hereto hereby
agree as follows:
SECTION 1. AMENDMENT TO THE AGREEMENT. Subject to the provisions of
Section 2 hereof, the Agreement is hereby amended as follows:
(A) Article 1 of the Agreement is hereby amended to add the following
additional definitions in the appropriate alphabetical location:
"'BASIS POINT' shall mean 1/100th of 1%.
'MOODY'S' shall mean Moody's Investors Service Inc.
'S&P' shall mean Standard & Poor's Ratings Group, a division of
McGraw-Hill.
'UTILIZED PERCENTAGE' shall mean, for any period for which it is to
be determined, the
quotient (expressed as a decimal and rounded to the nearer 0.1%) obtained
by dividing (a) the sum of outstanding Loans plus L/C Exposure by (b) the
Total Commitment on the date hereof."
(B) The definition of "Commitment Termination Date, appearing in Article
1 of the Agreement is hereby amended by deleting the date "September 1, 1998"
appearing therein and inserting the date "September 1, 1999" in lieu thereof.
(C) The definition of "Interest Margin" appearing in Article 1 of the
Agreement is hereby amended in its entirety to read as follows:
"'INTEREST MARGIN' shall mean with respect to any Alternate Base Rate
Loan or any Eurodollar Loan, the Interest Margin in effect from time
to time as determined pursuant to Section 2.16(a) hereof."
(D) Section 2.03(e)(i)(A) of the Agreement is hereby amended by deleting
the words "1/2 of 1% per annum in excess of" from clause (1) appearing in such
Section and inserting the phrase "the applicable Interest Margin for Alternate
Base Rate Loans, plus" in lieu thereof.
(E) The second sentence of Section 2.04 of the Agreement is hereby
amended by deleting the date "September 1, 1998" appearing therein and
inserting the date "September 1, 1999" in lieu thereof.
(F) Section 2.05(c) of the Agreement is hereby amended in its entirety to
read as follows:
"(c) Not used."
(G) Section 2.06 of the Agreement is hereby amended by deleting the
phrase "of 1/2 of 1% per annum" appearing in the first sentence of such Section
and inserting "at the rate per annum from time to time in effect in accordance
with Section 2.16(a) hereof" in lieu thereof.
(H) Section 2.07(b) of the Agreement is hereby amended in its entirety to
read as follows:
"(b) The Total Commitment shall be automatically and permanently
reduced as of each of the dates set forth in column (a) below, by the
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amount set forth opposite such date in column (b) below:
(a) (b)
REDUCTION OF THE
DATE TOTAL COMMITMENT
---- -----------------
December 1, 1996 $31,250,000
March 1, 1997 $31,250,000
June 1, 1997 $31,250,000
September 1, 1997 $31,250,000
December 1, 1997 $43,750,000
March 1, 1998 $43,750,000
June 1, 1998 $43,750,000
September 1, 1998 $43,750,000
September 1, 1999 $300,000,000"
(I) Article 2 of the Agreement is hereby amended to add the following new
Section 2.16 immediately following the existing Section 2.15:
"Section 2.16. CERTAIN PRICING ADJUSTMENTS"
(a) The applicable Interest Margin and Commitment Fee
(expressed in Basis Points) in effect from time to time shall be
determined in accordance with the following table based upon the
lowest Pricing Level for which the Borrower qualifies based upon the
criteria set forth below:
INTEREST INTEREST
MARGIN FOR MARGIN FOR
PRICING EURODOLLAR ALTERNATE BASE COMMITMENT
LEVEL LOANS RATE LOANS FEE
- ------- ---------- -------------- ----------
LEVEL I 50.0 0.0 22.50
LEVEL II 62.5 0.0 25.00
LEVEL III 75.0 0.0 25.00
LEVEL IV 87.5 0.0 31.25
LEVEL V 112.5 12.5 37.50
'Level I' shall apply only if the Borrower's senior secured long-term
debt is rated at least BBB- by S&P and at least Baa3 by Moody's.
-3-
'Level II' shall apply if the Borrower's senior secured long-term
debt is rated either (i) at least BB+ by S&P and at least Ba1 by
Moody's or (ii) at least BBB-/Baa3 by one of either S&P or Moody's
and at least BB/Ba2 by the other rating agency.
'Level III' shall apply if (i) for the most recent Rolling Period for
which the Borrower has delivered the certificate contemplated by
Section 5.01(c) hereof, the ratio of Consolidated EBITDA to
Consolidated Interest Expense is equal to or greater than 3.00:1 and
(ii) the ratio of Total Debt outstanding on the last day of such
Rolling Period to the then current Consolidated Capital Base is equal
to or less than 0.62:1.
'Level IV' shall apply if (i) for the most recent Rolling Period for
which the Borrower has delivered the certificate contemplated by
Section 5.01(c) hereof, the ratio of Consolidated EBITDA to Consolidated
Interest Expense is equal to or greater than 2.75:1 and (ii) the ratio of
Total Debt outstanding on the last day of such Rolling Period to the then
current Consolidated Capital Base is equal to or less than O.65:1.
'Level VI' shall apply if either (i) a Default or Event of Default
shall have occurred and be continuing or (ii) the Borrower does not
otherwise qualify for any lower Pricing Level.
Any change in the applicable Interest Margin and Commitment Fee
determined in accordance with the foregoing table shall become effective
(i) if based on a change in debt rating, on the date of announcement or
publication by the Borrower or the applicable rating agency of such rating
change or, in the absence of such announcement or publication, on the
effective date of such rating change, or an the date of any request by the
Borrower to either of such rating agencies not to rate its debt or on
the date either of such rating agencies announces it shall no longer rate
the Borrower's debt, or (ii) if for any other reason, on the fifth
Business Day after the Borrower delivers (or should have delivered) the
certificate contemplated by Section 5.01(c) which evidences that such
changed Interest Margin and Commitment Fee should apply.
-4-
Notwithstanding the foregoing, the Borrower shall not be entitled to
any Pricing Level lower than Level IV prior to the receipt by the Lenders
of the certificate contemplated by Section 5.01(c) hereof with respect to
the fiscal 1994 year end.
(b) For each day, if any, that the Utilized Percentage is 75% or
more, the Borrower will pay in arrears to the Agent for the account of
each Lender a utilization fee of 1/8 of 1% per annum (computed on the
basis of the actual number of days elapsed over a year of 365/366 days, as
the case may be, during the preceding period or quarter), on the entire
aggregate principal amount of such Lender's Loans outstanding plus its
share of L/C Exposure. Such utilization fee shall be payable on the last
Business Day of each March, June, September and December in each year and
on the Commitment Termination Date."
(J) Sections 6.01(g), 6.01(h), 6.01(k) and 6.01(l) are hereby amended by
deleting the date "September 1, 1998" appearing in each such Section and
inserting the date "September 1, 1999" in lieu thereof.
(K) Section 6.04(f) of the Agreement is hereby amended in its entirety
to read as follows:
"(f) Acquisitions, PROVIDED that:
(i) the aggregate consideration given (whether in one transaction or
a series of transactions) for all Acquisitions made pursuant to this
Section 6.04(f) (A) during any year shall not exceed the sum of
$200,000,000 PLUS, the amount permitted to be expended for Capital
Expenditures during such year pursuant to Section 6.20, but not used for
such permitted Capital Expenditures, and (B) during the term of this
Agreement shall not exceed the sum of $500,000,000 plus, any amount
permitted to be expended for Capital Expenditures during any year pursuant
to Section 6.20, but not used for such permitted Capital Expenditures,
PROVIDED, HOWEVER, that in connection with an Acquisition made by a non
wholly owned Subsidiary, the consideration given for such Acquisition
shall be included in any determination of the aggregate consideration
given for Acquisitions pursuant to this clause (i) only to the
extent that the amount of such consideration exceeds the
-5-
aggregate amount of Investments in such non wholly owned Subsidiary, which
Investments were made in cash or with Cash Equivalents and were
Acquisitions made pursuant to this Section 6.04(f),
(ii) after any such Acquisition, the unused Total Commitment
hereunder shall equal or exceed $75,000,000 (without altering or
otherwise changing the Borrower's historical business practices in
managing its working capital accounts),
(iii) on a Pro Forma Basis, no Default or Event of Default shall
occur or then be continuing, and
(iv) at least five (5) Business Days prior to the consummation of
any such Acquisition involving total consideration of $15,000,000 or more,
the Agent shall have received a certificate of an Authorized Officer of
the Borrower outlining the terms of the proposed transaction and
confirming the Borrower's compliance with this Section; and
PROVIDED, FURTHER, that for purposes of this Section 6.04(f), the amount
of any Indebtedness described in, and permitted by, Section 6.01(n) hereof
involved in any Acquisition permitted by this Section shall be considered
as part of the total consideration given for such Acquisition; and
PROVIDED, FURTHER, that the Acquisition by Amisub (SFH), Inc., a Tennessee
corporation, of substantially all of the assets (and the assumption of
certain liabilities) of Saint Francis Hospital, Inc., a Tennessee
not-for-profit corporation, for a purchase price of $96,700,000 (subject,
however, to a working capital adjustment), shall be excluded from any
determination of the aggregate consideration given for Acquisitions
pursuant to clause (i) above."
(L) Section 6.05(m) of the Agreement is hereby amended to add the
following phrase at the end of the existing text: "of the types contemplated
by clauses (i), (ii) and (iii) of the definition of Restricted Payments".
(M) Section 6.07(d) of the Agreement is hereby amended in its entirety
to read as follows:
"(d) Restricted Payments of the types contemplated by clauses (i),
(ii), (iii) and (iv) of the definition of Restricted Payment, in an
aggregate amount
-6-
in any year (without any double counting), which when added to the
aggregate amount of Investments in Unrestricted Subsidiaries made by
Holdings, the Borrower and/or any of its Subsidiaries in such year
(without any double counting), is not in excess of 50% of Consolidated Net
Income for the immediately preceding fiscal year; PROVIDED, HOWEVER, that
the aggregate amount of Restricted Payments of the types contemplated
by clauses (i), (ii) and (iii) of the definition of Restricted Payments,
in any year, shall not exceed 25% of Consolidated Net Income for the
immediately preceding fiscal year; and PROVIDED, that after any Restricted
Payment is made pursuant to this Section 6.07(d), on a Pro Forma Basis, no
Default or Event of Default will have occurred or be continuing and the
unused Total Commitment hereunder shall equal or exceed $100,000,000
(without altering or otherwise changing the Borrower's business practices
in managing working capital accounts); and PROVIDED, FURTHER, that to the
extent the amount of Restricted Payments permitted by this Section 6.07(d)
for any year (without regard to any permitted carry-over from a prior year
pursuant to this proviso) is in excess of the actual amount of Restricted
Payments made pursuant to this Section 6.07(d) in such year (such excess
in any year being referred to in this Section 6.07(d) as an "Unused
Restricted Payment"), an amount equal to the Unused Restricted Payment in
any year may be used by the Borrower during any succeeding fiscal year, to
redeem, repurchase, retire, defease or make any similar payment with
respect to, the Borrower's 15% Junior Subordinated Discount Debentures Due
2005 issued pursuant to the Indenture dated as of August 1, 1991 between
the Borrower and United States Trust Company of New York, as trustee."
(N) The first proviso appearing in Section 6.20(a) of the Agreement is
hereby amended in its entirety to read as follows:
"PROVIDED, HOWEVER, if Acquisitions have been made pursuant to
Section 6.04(f) hereof, in any year, the aggregate fair market value
of which equals or exceeds $200,000,000, then the amount set forth
above for such fiscal year shall be reduced by the amount by which the
aggregate amount expended in such year for such Acquisitions exceeds
$200,000,000;"
-7-
(0) Section 6.20(a) of the Agreement is hereby amended by adding the
following sentence at the end of the existing text:
"It is hereby agreed that the Acquisition by Amisub (SFH), Inc., a
Tennessee corporation, of substantially all of the assets (and the
assumption of certain liabilities) of Saint Francis Hospital, Inc., a
Tennessee not-for-profit corporation, for a purchase price of $96,700,000
(subject, however, to a working capital adjustment) shall be excluded
from any determination being made under the first proviso of this Section
6.20(a) for the fiscal year ending August 31, 1994."
(P) The table appearing in Section 6.21 of the Agreement is hereby
amended by adding the year "1999" at the end of column entitled "For Quarters
in the Fiscal Year Ended" and adding the ratio "4.00:1" at the end of the
column entitled "Interest Coverage Ratio".
(Q) The table appearing in Section 6.22 of the Agreement is hereby
amended by adding the year "1999" at the end of the column entitled "Fiscal
Year Ended" and adding the ratio "0.64:1" at the end of the column entitled
"Debt Ratio".
SECTION 2. CONDITIONS TO EFFECTIVENESS. This Amendment is subject to the
satisfaction in full of the following conditions precedent:
(A) the Agent shall have received executed counterparts of this Amendment,
which, when taken together, bear the signatures of the Borrower, Holdings and
all of the Lenders;
(B) the Agent shall have received an amendment to the Finco Receivables
Agreement, duly executed on behalf of Finco and the Finco Sellers, in form and
substance satisfactory to the Agent; which amendment will extend the term of
the Finco Receivables Agreement to match that of the Agreement;
(C) the Agent shall have received for its own account or for the benefit
of the Lenders, as applicable, the amendment fees and all other fees and
amounts that are due and payable pursuant to the terms and provisions of that
certain letter agreement dated May 25, 1994 between the Borrower and Chemical
Securities Inc., the Agreement or otherwise in connection with this Amendment;
and
-8-
(D) all legal matters in connection with this Amendment shall be
reasonably satisfactory to Lord Day & Lord, Barrett Smith, counsel for the
Agent.
Section 3. APPROVAL BY THE LENDERS. Each of the Lenders hereby approves
the amendment to the Finco Receivables Agreement which amendment is
contemplated by Section 2(B) hereof and a copy of which is attached hereto as
Annex A, and hereby agrees that the Agent is authorized to consent to such
amendment.
SECTION 4. REPRESENTATIONS AND WARRANTIES. Each of Holdings and the
Borrower represent and warrant to the Lenders that:
(A) the representations and warranties contained in the Agreement and in
the other Fundamental Documents are true and correct on and as of the date
hereof as if such representations and warranties had been made on and as of the
date hereof (except to the extent such representations and warranties expressly
relate to an earlier date); and
(B) no Default or Event of Default has occurred or is continuing under
the Agreement.
SECTION 5. FULL FORCE AND EFFECT. Except as expressly set forth herein,
this Amendment does not constitute a waiver or modification of any provision of
the Agreement or a waiver of any Default or Event of Default under the
Agreement, in either case whether or not known to the Agent. Except as
expressly amended hereby, the Agreement shall continue in full force and effect
in accordance with the provisions thereof on the date hereof. As used in the
Agreement, the terms "Credit Agreement", "this Agreement", "herein",
"hereafter", "hereto", "hereof", and words of similar import, shall, unless the
context otherwise requires, mean the Agreement as amended by this Amendment.
References to the terms "Agreement" or "Credit Agreement" appearing in
the Exhibits or Schedules to the Agreement, shall, unless the context otherwise
requires, mean the Agreement as amended by this Amendment.
SECTION 6. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall
-9-
constitute an original, but all of which when taken together
shall constitute but one instrument.
SECTION 8. EXPENSES. The Borrower agrees to pay all reasonable
out-of-pocket expenses incurred by the Agent in connection with the
preparation, execution and delivery of this Amendment and any other
documentation contemplated hereby, including, but not limited to, the
reasonable fees and disbursements of Lord Day & Lord, Barrett Smith, counsel
for the Agent.
SECTION 9. HEADINGS. The headings of this Amendment are for the purposes
of reference only and shall not affect the construction of this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their duly authorized officers, all as of the date and year
first written above.
AMERICAN MEDICAL INTERNATIONAL, INC.
By
---------------------------------
Name:
Title:
AMERICAN MEDICAL HOLDINGS, INC.
By
---------------------------------
Name:
Title:
CHEMICAL BANK, INDIVIDUALLY AND
AS AGENT
By
---------------------------------
Name:
Title:
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THE BANK OF NOVA SCOTIA, INDIVIDUALLY
AND AS CO-AGENT
By
---------------------------------
Name:
Title:
THE LONG TERM CREDIT BANK OF JAPAN,
LTD., LOS ANGELES AGENCY,
INDIVIDUALLY AND AS CO-AGENT
By
---------------------------------
Name:
Title:
ARAB BANK PLC
By
---------------------------------
Name:
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By
---------------------------------
Name:
Title:
BANK OF HAWAII
By
---------------------------------
Name:
Title:
BANK OF IRELAND, GRAND CAYMAN BRANCH
By
---------------------------------
Name:
Title:
-11-
BANQUE FRANCAISE DU COMMERCE EXTERIEUR
By
---------------------------------
Name:
Title:
By
---------------------------------
Name:
Title:
BANQUE PARIBAS
By
---------------------------------
Name:
Title:
By
---------------------------------
Name:
Title:
CITICORP USA, INC.
By
---------------------------------
Name:
Title:
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
By
---------------------------------
Name:
Title:
By
---------------------------------
Name:
Title:
-12-
DG BANK DEUTSCHE GENOSSENSCHAFTSBANK
By
---------------------------------
Name:
Title:
By
---------------------------------
Name:
Title:
DRESDNER BANK AG, NEW YORK BRANCH AND
GRAND CAYMAN BRANCH
By
---------------------------------
Name:
Title:
By
---------------------------------
Name:
Title:
FIRST INTERSTATE BANK OF TEXAS, N.A.
By
---------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA
By
---------------------------------
Name:
Title:
-13-
GIROCREDIT BANK, NEW YORK BRANCH
By
---------------------------------
Name:
Title:
By
---------------------------------
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
NEW YORK BRANCH
By
---------------------------------
Name:
Title:
THE MITSUBISHI BANK, LTD
By
---------------------------------
Name:
Title:
THE SAKURA BANK, LIMITED
LOS ANGELES AGENCY
By
---------------------------------
Name:
Title:
NATIONAL WESTMINSTER BANK USA
By
---------------------------------
Name:
Title:
-14-
NATIONSBANK OF TEXAS, N.A.
By
---------------------------------
Name:
Title:
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By
---------------------------------
Name:
Title:
By
---------------------------------
Name:
Title:
SHAWMUT BANK CONNECTICUT, N.A.
By
---------------------------------
Name:
Title:
THE SUMITOMO TRUST & BANKING CO.,
LTD., NEW YORK BRANCH
By
---------------------------------
Name:
Title:
THE DAI-ICHI KANGYO BANK, LTD.
LOS ANGELES AGENCY
By
---------------------------------
Name:
Title:
-15-
THE FUJI BANK, LIMITED, HOUSTON AGENCY
By
---------------------------------
Name:
Title:
THE TOKAI BANK, LTD.
LOS ANGELES AGENCY
By
---------------------------------
Name:
Title:
THE BANK OF TOKYO, LTD., DALLAS AGENCY
By
---------------------------------
Name:
Title:
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By
---------------------------------
Name:
Title:
DEUTSCHE BANK AG NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
By
---------------------------------
Name:
Title:
By
---------------------------------
Name:
Title:
-16-
PNC BANK, N. A.
By
---------------------------------
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By
---------------------------------
Name:
Title:
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