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Exhibit 10.33
SECOND AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT is made
and dated as of May 28, 1996 (the "SECOND AMENDMENT") among Health Systems
International, Inc. (the "Company"), the Banks party to the Amended and
Restated Credit Agreement referred to below, and BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national banking association, as Agent (the
"AGENT"), and amends that certain Amended and Restated Credit Agreement dated
as of April 26, 1996, as amended by that certain First Amendment to Amended and
Restated Credit Agreement dated as of May 10, 1996 (as so amended or modified
from time to time, the "CREDIT AGREEMENT").
RECITALS
WHEREAS, the Company has requested the Agent and the Banks to amend
certain provisions of the Credit Agreement, and the Agent and the Banks are
willing to do so, on the terms and conditions specified herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. Terms. All terms used herein shall have the same meanings as
in the Credit Agreement unless otherwise defined herein. All references to the
Credit Agreement shall mean the Credit Agreement as hereby amended.
2. Amendment. The Company, the Agent and the Banks hereby agree
to amend the Credit Agreement by deleting the clause "to the nearest 1/16th of
1%" that appears in the definition of the term "LIBOR Base Rate" in Section
1.01 of the Credit Agreement and replacing it with the clause "to the nearest
1/10,000 of 1%".
3. Representations and Warranties. The Company represents and
warrants to the Agent and the Banks that, on and as of the date hereof, and
after giving effect to this Second Amendment:
3.1 Authorization. The execution, delivery and performance by the
Company of this Second Amendment has been duly authorized by all necessary
corporate action, and this Second Amendment has been duly executed and
delivered by the Company.
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3.2 Binding Obligation. This Second Amendment
constitutes the legal, valid and binding obligations of the Company,
enforceable against it in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, or similar laws affecting
the enforcement of creditors' rights generally or by equitable principles
relating to enforceability.
3.3 No Legal Obstacle to Amendment. The execution,
delivery and performance of this Second Amendment will not (a) contravene the
Organization Documents of the Company; (b) constitute a breach or default under
any contractual restriction or violate or contravene any law or governmental
regulation or court decree or order binding on or affecting the Company which
individually or in the aggregate does or could reasonably be expected to have a
Material Adverse Effect; or (c) result in, or require the creation or
imposition of, any Lien on any of the Company's properties. No approval or
authorization of any governmental authority is required to permit the
execution, delivery or performance by the Company of this Second Amendment, or
the transactions contemplated hereby.
3.4 Incorporation of Certain Representations. The
representations and warranties of the Company set forth in Article V of the
Credit Agreement are true and correct in all respects on and as of the date
hereof as though made on and as of the date hereof, except as to such
representations made as of an earlier specified date.
3.5 Default. No Default or Event of Default under the
Credit Agreement has occurred and is continuing.
4. Conditions, Effectiveness. The effectiveness of this Second
Amendment shall be subject to the compliance by the Company with its agreements
herein contained, and to the delivery of such other evidence with respect to
the Company as the Agent may reasonably request in connection with this Second
Amendment and the compliance with the conditions set forth herein.
5. Miscellaneous.
5.1 Effectiveness of the Credit Agreement and the Notes. Except
as hereby expressly amended, the Credit Agreement and the Notes shall each
remain in full force and effect, and are hereby ratified and confirmed in all
respects on and as of the date hereof.
5.2 Waivers. This Second Amendment is limited solely to the
matters expressly set forth herein and is specific in time and in intent and
does not constitute, nor should it be construed as, a waiver or amendment of
any other term or condition, right, power or privilege under the Credit
Agreement or under any agreement, contract, indenture, document or instrument
mentioned therein; nor does it preclude or prejudice any rights of the Agent or
the Banks thereunder, or any exercise thereof or the exercise of any other
right, power or privilege, nor shall it require the Majority Banks to agree to
an amendment, waiver
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or consent for a similar transaction or on a future occasion, nor shall any
future waiver of any right, power, privilege or default hereunder, or under any
agreement, contract, indenture, document or instrument mentioned in the Credit
Agreement, constitute a waiver of any other right, power, privilege or default
of the same or of any other term or provision.
5.3 Counterparts. This Second Amendment may be executed
in any number of counterparts, and all of such counterparts taken together
shall be deemed to constitute one and the same instrument. This Second
Amendment shall not become effective until the Company, the Agent and the
Majority Banks shall have signed a copy hereof and the same shall have been
delivered to the Agent.
5.4 Governing Law. This Second Amendment shall be
governed by and construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed and delivered as of the date first written above.
HEALTH SYSTEMS IN INTERNATIONAL, INC.
By: /s/ MICHAEL E. JANSEN
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Name: Michael E. Jansen, Esq.
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Title: Vice President, Assistant
----------------------------
General Counsel and Assistant
Secretary
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By: /s/ RUTH Z. EDWARDS
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Name: Ruth Z. Edwards
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Title: Vice President
----------------------------
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BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank
By: /s/ WYATT R RITCHIE
-------------------------------
Name: Wyatt R Ritchie
-----------------------------
Title: Managing Director
----------------------------
ABN AMRO BANK, N.V.
By: ABN AMRO North America, Inc.
its agent
By: /s/ DAVID J. STASSEL
-------------------------
Name: David J. Stassel
-----------------------
Title: VP and Director
----------------------
By: /s/ JOHN A. MILLER
-------------------------
Name: John A. Miller
-----------------------
Title: Director
----------------------
BANK OF MONTREAL
By: /s/ IRENE M. GELLER
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Name: Irene M. Geller
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Title: Director
----------------------------
THE BANK OF NEW YORK
By: /s/ REBECCA K. LEVINE
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Name: Rebecca K. Levine
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Title: Assistant Vice President
----------------------------
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THE BANK OF NOVA SCOTIA
By: /s/ ALAN PINDERGAST
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Name: Alan Pindergast
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Title: Relationship Manager
----------------------------
BANQUE NATIONALE DE PARIS
By: /s/ C. BETTLES
-------------------------------
Name: C. Bettles
-----------------------------
Title: Sr. V.P. & Manager
----------------------------
By: /s/ MARGARET MUDD
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Name: Margaret Mudd
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Title: V.P.
----------------------------
BANQUE PARIBAS
By: /s/ CLARE BAILHE
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Name: Clare Bailhe
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Title: V.P.
----------------------------
By: /s/ LB
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Name: Lee S. Buckner
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Title: Group Vice President
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CHEMICAL BANK
By: /s/ DAWN LEE LUM
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Name: Dawn Lee Lum
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Title: Vice President
----------------------------
CITIBANK, N.A., as a Bank and
Co-Agent
By: /s/ MARGARET AU BROWN
-------------------------------
Name: Margaret Au Brown
-----------------------------
Title: Vice President
----------------------------
399 Park Ave./8th Fl./Zn2
(212) 599-0501
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENIENBANK B.A. "RABOBANK
NEDERLAND" NEW YORK BRANCH
By: /s/ RICHARD J. CERF
-------------------------------
Name: Richard J. Cerf
-----------------------------
Title: Vice President
----------------------------
By: /s/ JOHANNES F. BRUEKHOVEN
-------------------------------
Name: Johannes F. Bruekhoven
-----------------------------
Title: Vice President
----------------------------
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ F. TAVANGAR
-------------------------------
Name: Farboud Tavanger
-----------------------------
Title: Vice President
----------------------------
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THE DAI-ICHI KANGY0 BANK, LTD.
Los Angeles Agency
By: /s/ T. YAMAGUCHI
-------------------------------
Name: Teruhisa Yamaguchi
-----------------------------
Title: Sr. Vice President &
---------------------------
Joint General Manager
--------------------------
THE FUJI BANK, LIMITED
Los Angeles Agency
By: /s/ NOBUHIRO UMEMURA
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Name: Nobuhiro Umemura
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Title: Joint General Manager
----------------------------
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, Los Angeles Agency,
as a Bank and Co-Agent
By: /s/ TOSHINARI TYODA
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Name: Toshinari Tyoda
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Title: Senior Vice President
----------------------------
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., Los Angeles Agency
By: /s/ Y. KAMISAWA
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Name: Yutaka Kamisawa
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Title: Deputy General Manager
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THE NORTHERN TRUST COMPANY
By: /s/ MICHELLE D. GRIFFIN
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Name: Michelle D. Griffin
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Title: Vice President
----------------------------
THE SANWA BANK, LIMITED
Los Angeles Branch
By: /s/ KAREN WICKS COLEMAN
-------------------------------
Name: Karen Wicks Coleman
-----------------------------
Title: AVP & Manager
----------------------------
WELLS FARGO BANK N.A.
By: /s/ W.J. BAIRD
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Name: W.J. Baird
-----------------------------
Title:
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