FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
By and among FIRST HEALTH GROUP CORP. (f/k/a HealthCare Compare Corp.),
as Borrower,
LASALLE NATIONAL BANK, as Administrative Agent, Issuing Bank and Lender,
FIRST CHICAGO CAPITAL MARKETS, INC.,as Syndication Agent, and
THE OTHER FINANCIAL INSTITUTIONS PARTY THERETO, as Lenders,
Dated as of October 22, 1997
This First Amendment to Amended and Restated Credit Agreement dated
as of December 17, 1998, (this "Amendment") is entered into by and among
First Health Group Corp. (f/k/a HealthCare Compare Corp.), a Delaware
corporation (the "Borrower"), the several financial institutions party to
the Amendment (collectively, the "Lenders" and individually each a
"Lender"), LaSalle National Bank, as a Lender, Issuing Bank and as
administrative agent (the "Administrative Agent") for the Lenders and
First Chicago Capital Markets, Inc., as syndication agent for the Lenders
(the "Syndication Agent").
RECITALS
WHEREAS, the Borrower, the Lenders, the Administrative Agent, the
Issuing Bank and the Syndication Agent (each as defined therein) entered
into that certain Credit Agreement dated as of July 1, 1997 (the
"Original Credit Agreement") pursuant to which the Lenders agreed to make
available to the Borrower a revolving credit facility upon and subject to
the terms and conditions set forth in the Original Credit Agreement;
WHEREAS, the Borrower, Lenders, the Administrative Agent, the
Issuing Bank and the Syndication Agent (each as defined therein)
subsequently amended and restated the Original Credit Agreement and
entered into an Amended and Restated Credit Agreement dated as of October
22, 1997 (the "Agreement"), to provide for a letters of credit; and
WHEREAS, the Borrower desires to implement a stock repurchase plan
pursuant to which it will effect the purchase of common stock of the
Borrower (the "Plan") and has requested a modification of the Agreement
to permit the implementation of the Plan; and
WHEREAS, the Lenders have agreed to make such modifications and the
parties hereto have agreed to amend the Agreement as set forth herein;
NOW, THEREFORE, in consideration of the mutual promises and
agreements of the parties hereinafter set forth and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO AGREEMENT
1.1. Section 1.1 of the Agreement is hereby amended by:
1.1.1. deleting the definition of "Applicable Margin" and
substituting the following in its place and stead:
"Applicable Margin" means with respect to LIBOR Rate Revolving
Loans, Base Rate Revolving Loans, and Facility Fees, respectively,
the applicable LIBOR margin, Base Rate margin, or Facility Fee
margin in effect from time to time determined using either the
Borrower's Senior Long-term Debt Rating then in effect or the
Borrower's Debt to EBITDA Ratio, at the Borrower's option from time
to time, pursuant to the appropriate column under the following
table:
Senior Long-term Applicable Applicable
Debt Rating Debt to Applicable Base Facility Fee
----------- EBITDA LIBOR Margin Rate Margin
Ratio Margin
S&P Xxxxx'x
---- ------- --------- -------- ------ --------
>=A- >=A3 <.50 30.0 bps 0 20.0 bps
BBB+ Baa1 .50-1.00 40.0 bps 0 22.5 bps
BBB Baa2 1.01-1.50 50.0 bps 0 25.0 bps
BBB- Baa3 1.51-2.00 75.0 bps 0 25.0 bps
BB+ Ba1 2.01-2.50 100.0 bps 0 25.0 bps
=2.51 120.0 bps 0 30.0 bps
The Applicable Margin shall be adjusted from time to time upon
delivery to the Administrative Agent of (i) the quarterly financial
statements required to be delivered pursuant to Section 6.1 hereof
accompanied by a written calculation of the Debt to EBITDA Ratio
certified by a Responsible Officer as of the end of the fiscal
quarter for which such financial statements are delivered or (ii) a
statement of the Borrower's Senior Long-term Debt Rating by S&P and
Xxxxx'x, if any, certified by a Responsible Officer. If the Senior
Long-term Debt Rating by S&P and Xxxxx'x differ, for the purpose of
calculating the Applicable Margin, the Borrower's Senior Long-term
Debt Rating shall be deemed to be one level higher than the lower
rating given by S&P and Xxxxx'x. If such calculation or statement
indicates that the Applicable Margin shall increase or decrease,
then one (1) Business Day after the date of delivery of such
financial statements and written calculation or statement the
Applicable Margin shall be adjusted in accordance therewith;
provided, however, that if Borrower shall fail to deliver any such
financial statements for any such fiscal quarter by the date
required pursuant to Section 6.1, then, effective as of the Business
Day on which such financial statements were to have been delivered,
and continuing through the date which is one (1) Business Day after
the date (if ever) when such financial statements and such written
calculation are finally delivered, the Applicable Margin shall be
conclusively presumed to equal the highest Applicable Margin
specified in the pricing table set forth above.
1.1.2. deleting the definition of "Net Worth" and substituting
the following in its place and stead:
"Net Worth" means shareholders' equity of the Borrower as determined
in accordance with GAAP, plus (i) the lesser of (a) the amount of
the total consideration paid by the Borrower to acquire the
Borrower's stock subsequent to the date hereof and retired or held
by the Borrower as treasury stock under GAAP accounting, or (b)
$350,000,000.
1.2. A new Section 5.23 is inserted as follows:
5.23 Corporate Authorization of the Plan. The implementation of
the Plan is within the corporate powers of the Borrower, has been
duly authorized by all necessary corporate action, requires no
action by or in respect of, or filing with, any governmental body,
agency or official which will have not been taken or made prior to
the time required to be taken or made and does not contravene, or
constitute a default under, any provision of applicable law or
regulation or of the certificate of incorporation or by-laws of the
Borrower or of any debt instrument or material agreement, judgment,
injunction, order, decree or other instrument binding upon the
Borrower or any of its Subsidiaries.
1.3. Section 7.11 is deleted in its entirety and the following
is substituted in its place and stead:
Restricted Payments. The Borrower shall not, and shall not suffer
or permit any of its Subsidiaries to, declare or make any dividend
payment or other distribution of assets, properties, cash, rights,
obligations or securities on account of any shares of any class of
its capital stock, or purchase, redeem or otherwise acquire for
value any shares of its capital stock or any warrants, rights or
options to acquire such shares, now or hereafter outstanding; except
that any Subsidiary of the Borrower may declare and pay dividends to
the Borrower or any Wholly-Owned Subsidiary of the Borrower and to
its other equity holders; provided, that any such dividend shall not
exceed the net worth of the applicable Subsidiary, and except that
the Borrower may:
(a) declare and make dividend payments or other distributions
payable solely in its common stock;
(b) purchase, redeem or otherwise acquire shares of its common
stock or warrants or options to acquire any such shares with the
proceeds received from the substantially concurrent issue of new
shares of its common stock; and
(c) declare or pay cash dividends to its stockholders and
purchase, redeem or otherwise acquire shares of its capital stock or
warrants, rights or options to acquire any such shares for cash (i)
in an aggregate amount not to exceed $350,000,000 pursuant to the
Plan subsequent to the date hereof, plus (ii) solely out of 50% of
Consolidated Net Income of the Borrower for fiscal quarters
beginning with the quarter ending March 31, 1999, computed on a
cumulative consolidated basis, provided, that, immediately after
giving effect to such proposed action, no Default or Event of
Default would exist;
1.4. Section 7.13 is deleted in its entirety and the following
is substituted in its place and stead:
Consolidated Net Worth. The Borrower shall not permit its Net
Worth, as determined as of the end of each fiscal quarter, to be
less than the sum of (i) $170,000,000, plus (ii) 50% of the
Borrower's Consolidated Net Income earned each fiscal quarter
commencing with the fiscal quarter ending December 31, 1998
(provided that if, for any fiscal quarter, the Borrower's
Consolidated Net Income shall be less than zero, then for purposes
of calculating the Borrower's compliance with this covenant, the
Borrower's Consolidated Net Income shall be deemed to be zero for
that fiscal quarter), plus (iii) 50% of the net proceeds received
from any stock offering of the Borrower (other than from the
exercise of option or from offerings only available to Affiliates of
the Borrower).
1.5. Attachment 2 to Exhibit E to the Agreement is deleted and
the attached Attachment 2 is substituted therefor.
SECTION 2. REPRESENTATIONS AND WARRANTIES
To induce Lenders to amend the Agreement and to consider making
future loans thereunder, Borrower represents and warrants to Lenders
that:
2.1. Compliance with Agreement. On the date hereof, Borrower
is in compliance of all of the terms and provisions set forth in the
Agreement (as modified by this Amendment) and no Event of Default
specified in Section 8.1 of the Agreement nor any event which, upon
notice or lapse of time, or both, would constitute such an Event of
Default, has occurred.
2.2. Representations and Warranties. On the date hereof, the
representations and warranties set forth in Sections 5.1 through 5.22 of
the Agreement (as modified by this Amendment) are true and correct with
the same effect as though such representations and warranties had been
made on the date hereof, except to the extent that such representations
and warranties expressly related to an earlier date.
2.3. Corporate Authority of Borrower. Borrower has full power
and authority to enter into this Amendment, to make the borrowings under
the Agreement as amended by this Amendment, and to incur and perform the
obligations provided for under the Agreement and this Amendment, all of
which have been duly authorized by all proper and necessary corporate
action. No consent or approval of stockholders or of any public
authority or regulatory body is required as a condition to the validity
or enforceability of this Amendment.
2.4. Amendment as Binding Agreement. This Amendment
constitutes the valid and legally binding obligation of Borrower, fully
enforceable against Borrower, 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.
2.5. No Conflicting Agreements. The execution and performance
by Borrower of this Amendment and the borrowings by Borrower under the
Agreement, as amended, will not (i) violate any provision of law, any
order of any court or other agency of government, or the constituent
documents of Borrower, or (ii) violate any indenture, contract, agreement
or other instrument to which Borrower is a party, or by which its
property is bound, or be in conflict with, result in a breach of or
constitute (with due notice or lapse of time) a default under, any such
indenture, contract, agreement or other instrument or result in the
creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the property or assets of Borrower.
SECTION 3. OTHER PROVISIONS
3.1. Approval of Majority Lenders. The agreement by Lenders to
amend the Agreement is subject to the condition precedent that this
Amendment shall have been executed by the Majority Lenders, the Borrower
and the Administrative Agent.
3.2. Amendment Fee. Borrower shall pay to each Lender that
executes this Amendment on or before the date it becomes effective a fee
equal to the product of (i) such Lender's Revolving Loan Commitment,
multiplied by (ii) 15 basis points (0.0015). The fee shall be paid by
the Borrower and distributed by the Administrative Agent no later than
two days after this Amendment becomes effective.
SECTION 4. REAFFIRMATIONS
4.1. Borrower hereby expressly reaffirms and assumes all of
Borrower's obligations and liabilities to Lenders as set forth in the
Agreement, and agrees to be bound by and abide by and operate and perform
under and pursuant to and comply fully with all of the terms, conditions,
provisions, agreements, representations, undertakings, warranties,
indemnities, grants of security interests and covenants contained in the
Agreement, in so far as such obligations and liabilities may be modified
by this Amendment, as though such Agreement was being re-executed on the
date hereof.
SECTION 5. GENERAL PROVISIONS
5.1. The capitalized terms used in this Amendment shall have
the same meanings ascribed to them in the Agreement unless otherwise
defined herein.
5.2. Except as amended by this Amendment, the terms and
provisions of the Agreement shall remain in full force and effect and are
in all other respects ratified and confirmed.
5.3. This Amendment shall be construed in accordance with and
governed by the laws of the State of Illinois, and the obligations of
Borrower under this Amendment are and shall arise absolutely and
unconditionally upon the execution and delivery of this Amendment.
5.4. This Amendment may be executed in any number of
counterparts.
5.5. On or after the effective date hereof, each reference to
this "Agreement", "hereof" or words of like import, in the Agreement, and
all documents executed in connection therewith, shall, unless the context
otherwise requires, be deemed to refer to the Agreement as amended
hereby, and as may be amended from time to time hereafter.
5.6. Borrower agrees to furnish to Administrative Agent upon
request, such resolutions, opinions, certificates, documents and
assurances which Lenders may request in connection with this Amendment.
5.7. This Amendment shall be binding upon Borrower and Lenders
and their respective successors and assigns, and shall inure to the
benefit of Lenders and Borrower and their respective successors and
assigns.
Dated as of the date and year first above written.
FIRST HEALTH GROUP CORP. (f/k/a HEALTHCARE
COMPARE CORP.)
By:______________________________
Title: Vice President Finance & CFO
Address for notices:
0000 Xxxxxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
LASALLE NATIONAL BANK,
as Administrative Agent
By:______________________________
Title: ____________________________
Address for Payments, Notices of Borrowing,
Notices of Continuation/Conversion:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Administrative Services
Xxxxx Xxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
FIRST CHICAGO CAPITAL MARKETS, INC., as
Syndication Agent
By: ________________________________
Title: _______________________________
Address for notices:
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
LASALLE NATIONAL BANK, as Lender and Issuing Bank
By:______________________________
Title: ____________________________
Address for notices:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
Lending Office:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
THE FIRST NATIONAL BANK
OF CHICAGO, as Lender
By: __________________________________
Title: _________________________________
Address for notices:
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
Lending Office:
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxx Xxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
THE INDUSTRIAL BANK OF
JAPAN, LIMITED, CHICAGO BRANCH, as Lender
By:____________________________________
Title:__________________________________
Address for notices:
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
Lending Office:
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
CIBC, INC., as Lender
By:____________________________________
Title:__________________________________
Address for notices:
Two Paces West
0000 Xxxxx Xxxxx Xxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
Lending Office:
000 Xxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
UNION BANK OF CALIFORNIA, N.A., as Lender
By:____________________________________
Title:__________________________________
Address for notices:
000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx Mo
Facsimile: (000) 000-0000
Tel: (000) 000-0000
Lending Office:
000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
BANQUE NATIONALE DE PARIS
By:____________________________________
Title:__________________________________
Address for notices:
000 Xxxxx XxXxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
Lending Office:
000 Xxxxx XxXxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxxxx Xxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
THE BANK OF NEW YORK, as Lender
By:____________________________________
Title:__________________________________
Address for notices:
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Central Division
Attn: Xxxxx Xxxxx
Facsimile: (000) 000-0000/24
Tel: (000) 000-0000
Lending Office:
Xxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Central Division
Attn: Xxxx Xxxxx
Facsimile: (000) 000-0000/09
Tel: (000) 000-0000
CREDIT LYONNAIS, NEW YORK BRANCH, as Lender
By:____________________________________
Title:__________________________________
Address for notices:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
Lending Office:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
THE NORTHERN TRUST COMPANY, as Lender
By:____________________________________
Title:__________________________________
Address for notices:
00 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
Lending Office:
00 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
SUNTRUST BANK,
NASHVILLE, N.A., as Lender
By:____________________________________
Title:__________________________________
Address for notices:
000 0xx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Leigh Xxxx Xxxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
Lending Office:
000 0xx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxx Xxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
XXXXXX TRUST & SAVINGS BANK, as Lender
By:____________________________________
Title:__________________________________
Address for notices:
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
Lending Office:
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
BANQUE PARIBAS, as Lender
By:____________________________________
Title:__________________________________
Address for notices:
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx
Facsimile: (000) 000-0000
Tel: (312) 6032
Lending Office:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
NATIONSBANK N.A., as Lender
By:____________________________________
Title:__________________________________
Address for notices:
000 X. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
NC1-001-15-05
Attn: Xxxxxxx Xxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
Lending Office:
000 Xxxxxxxxx
0xx Xxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
Tel: (000) 000-0000
Attachment 2
Consolidated Net Worth
I. Borrower's Net Worth
1. Shareholders' equity of the Borrower determined in
accordance with GAAP..................$__________
2. Consideration paid by Borrower for repurchase of
Borrower's stock subsequent to December ___, 1998 or
$350,000,000, whichever
is less ..............................$__________
3. Net Worth: The sum of Items 1 and 2 ..$__________
II. Compliance with Net Worth Covenant (Section 7.13)
1. The amount of.........................$170,000,000
2. The sum of 50% of the Borrower's Consolidated Net
Income earned each fiscal quarter commencing with
the fiscal quarter ending December 31, 1998 (provided
that if, for any fiscal quarter, the Borrower's
Consolidated Net Income shall be less than zero,
then for purposes of this calculation, the Borrow's
Consolidated Net Income shall be deemed to be zero
for the fiscal quarter)...............$__________
3. 50% of the net proceeds received from any
stock offering of the Borrower........$__________
4. Minimum covenanted Net Worth (pursuant to Section
7.13): The sum of Items 1, 2 and 3....$__________
