EXHIBIT 10.17 AMENDMENT NO. 1 TO CREDIT AGREEMENT AND CONSENT THIS AMENDMENT AGREEMENT is made and entered into as of this 18th day of September, 1996, by and among MEDPARTNERS, INC., a Delaware corporation as Borrower, NATIONSBANK, NATIONAL...
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EXHIBIT 10.17
AMENDMENT NO. 1 TO CREDIT AGREEMENT
AND CONSENT
THIS AMENDMENT AGREEMENT is made and entered into as of this 18th day
of September, 1996, by and among MEDPARTNERS, INC., a Delaware corporation as
Borrower, NATIONSBANK, NATIONAL ASSOCIATION (SOUTH), as Administrative Agent
for the Lenders, THE FIRST NATIONAL BANK OF CHICAGO, as Documentation Agent for
the Lenders, and the Lenders, as each of such capitalized terms is defined
under the Credit Agreement described below;
W I T N E S S E T H:
WHEREAS, the parties hereto have entered into a Credit Agreement dated
as of September 5, 1996 (the "Credit Agreement") pursuant to which the Lenders
have agreed to make Loans to the Borrower in the principal amount of up to
$1,000,000,000 and to provide certain related credit facilities; and
WHEREAS, the Borrower has requested that certain provisions of the
Credit Agreement be amended, including the requirement that Material
Subsidiaries execute and deliver Guaranties and that the Guaranties of Material
Subsidiaries executed and delivered as of the Closing Date be released; and
WHEREAS, the Agents and the Lenders, subject to the terms and
conditions hereof, are willing to make such amendments and release the
Guaranties, as provided herein;
NOW, THEREFORE, the Borrower, the Agents and the Lenders do hereby
agree as follows:
1. Definitions. The term "Credit Agreement" as used herein and
in the other Loan Documents (as defined in the Credit Agreement) and all other
references to the Credit Agreement shall mean and refer to the Credit Agreement
referred to above, as hereby amended and modified. Unless the context
otherwise requires, all capitalized terms used herein without definition shall
have the definition provided therefor in the Credit Agreement.
2. Certain Amendments to Credit Agreement. Subject to the
conditions hereof, the Credit Agreement is hereby amended as follows:
(a) the following new definitions are added to Section 1.1:
"Indenture Notes Redemption Date" means the date upon
which the Borrower shall furnish to the Administrative Agent
evidence satisfactory to the Administrative Agent that not
less than $51,000,000 aggregate principal amount
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of the Indenture Notes shall have been redeemed, defeased, or
otherwise effectively retired and are no longer outstanding."
"Senior 1996 Notes" means the senior unsecured notes
due 2006 issued or to be issued by the Borrower, the
registration statement for which shall be filed with the
Securities and Exchange Commission on or before October 15,
1996."
"Senior 1996 Notes Indenture" means the Indenture
between the Borrower, as issuer and a trustee for the holders
of Senior 1996 Notes, providing for the issuance of the Senior
1996 Notes.";
(b) The definition of "Indenture Note Purchases" in Section
1.1 is amended by deleting the phrase "or any Guarantor other than
Caremark, Inc.";
(c) Sections 2.1(a), 2.1(b), 3.1 and 5.2(e) are amended by
deleting the phrase "Guaranty Limitation Release Date" in each place
it appears and substituting in lieu thereof the phrase "Indenture
Notes Redemption Date";
(d) Section 7.19 and Exhibit J are deleted in their entirety;
(e) Section 7.20 is deleted in its entirety;
(f) Clause (e) of each of Sections 8.4 and 8.6 is amended by
deleting the phrase "until the Guaranty Limitation Release Date," in
each place it appears;
(g) Clause (h) of Section 8.6 is amended by deleting the
phrase "or any Guarantor other than Caremark, Inc.";
(h) Section 8.15 is amended by (x) renumbering clause "(ii)"
as clause "(iii)" and inserting immediately after the phrase "(i) the
Indenture and the other Assumed Debt," the following new clause (ii):
"(ii) the Borrower may enter into the Senior 1996 Notes
Indenture containing the limitations on the creation or
incurrence of Liens in the form attached hereto as Amendment
No. 1 - Exhibit A (provided that this clause (ii) shall not be
deemed to confer any right of the Borrower or any Subsidiary
to incur, create or permit to exist any Lien, charge or other
encumbrance otherwise prohibited by Section 8.3 hereof),";
(i) Amendment No. 1 - Exhibit A in the form attached hereto
is hereby made a part of the Credit Agreement; and
(j) Section 3 of Exhibit I, styled "Caremark Excess Cash
Flow," is deleted in its entirety.
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3. Consent to Release and Termination of Guaranties . The
parties hereto hereby consent to the release and termination of all Guaranties
previously delivered to the Administrative Agent or the Lenders under the
Credit Agreement. Upon this Amendment Agreement becoming effective, all such
Guaranties shall be deemed without further action to be released, terminated,
and of no further force or effect.
4. Representations and Warranties. The Borrower hereby
represents and warrants that:
(a) The representations and warranties made by or with
respect to the Borrower and its Subsidiaries in Article VI of the
Credit Agreement are true and correct in all material respects on and
as of the date hereof;
(b) There has been no material change in the business,
properties, prospects or condition, financial or otherwise, of the
Borrower and its Subsidiaries, taken as a whole, since the Closing
Date, other than changes in the ordinary course of business, none of
which could reasonably be expected to have a Material Adverse Effect;
(c) The business and properties of the Borrower and its
Subsidiaries are not, and since the Closing Date have not been,
adversely affected in any substantial way as the result of any fire,
explosion, earthquake, accident, strike, lockout, combination of
workers, flood, embargo, riot, activities of armed forces, war or acts
of God or the public enemy, or cancellation or loss of any major
contracts; and
(d) Immediately prior to and immediately after giving
effect to this Amendment, no Default or Event of Default shall exist
or be continuing.
5. Conditions. This Amendment Agreement shall become effective
upon satisfaction of all of the following conditions:
(i) the Borrower shall deliver or cause to be delivered to the Agent,
the following:
(a) counterparts (in number requested by the Administrative
Agent) of this Amendment Agreement duly executed by the Borrower;
(b) an opinion of counsel for the Borrower in form and
content acceptable to the Administrative Agent and its special
counsel, and including without limitation opinions as to the
authorization, execution, delivery and binding effect of this
Amendment Agreement;
(c) payment in full of (i) all fees payable to the
Administrative Agent and the Lenders, and (ii) the fees and expenses
of the Administrative Agent and its special counsel accrued to the
date hereof; and
(d) such other instruments and documents as the
Administrative Agent may reasonably request;
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(ii) the Administrative Agent shall receive the written consent to
this Amendment Agreement of the Agents and the Lenders;
(iii) the Senior 1996 Notes shall have been issued pursuant to the
Senior 1996 Notes Indenture in an aggregate principal amount of not
less than $200,000,000; and
(iv) all instruments and documents incident to the consummation of
the transactions contemplated hereby shall be satisfactory in form and
substance to the Administrative Agent and its special counsel; the
Administrative Agent shall have received copies of all additional
agreements, instruments and documents which it may reasonably request
in connection therewith, including evidence of the authority of the
Borrower to enter into the transactions contemplated by this Amendment
Agreement, such documents, when appropriate, to be certified by
appropriate corporate or governmental authorities; and all proceedings
of the Borrower relating to the matters provided for herein shall be
satisfactory to the Administrative Agent and its special counsel; and
6. Entire Agreement. This Amendment Agreement sets forth the
entire understanding and agreement of the parties hereto in relation to the
subject matter hereof, and supersedes any prior negotiations and agreements
among the parties relative to such subject matter. No promise, conditions,
representation or warranty, express or implied, not herein set forth shall bind
any party hereto, and no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that,
except as in this Amendment Agreement otherwise expressly stated, no
representations, warranties or commitments, express or implied, in connection
herewith have been made by any other party to the other. None of the terms or
conditions of this Amendment Agreement may be changed, modified, waived or
canceled orally or otherwise, except in the manner provided in the Credit
Agreement.
7. Full Force and Effect of Agreement. Except as hereby
specifically amended, modified or supplemented, the Credit Agreement and all of
the other Loan Documents (other than the Guaranties) are hereby confirmed and
ratified in all respects and shall remain in full force and effect according to
their respective terms.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
MEDPARTNERS, INC.
WITNESS:
--------------------- By:
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--------------------- Name:
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Title:
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NATIONSBANK, NATIONAL ASSOCIATION (SOUTH),
as Administrative Agent for the Lenders
By:
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Name:
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Title:
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THE FIRST NATIONAL BANK OF CHICAGO, as
Documentation Agent for the Lenders
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
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NATIONSBANK, NATIONAL ASSOCIATION (SOUTH)
By:
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Name: Xxxxx X. Xxxxxx
Title: Vice President
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THE FIRST NATIONAL BANK OF CHICAGO
By:
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Name:
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Title:
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CREDIT LYONNAIS NEW YORK BRANCH, Managing
Agent
By:
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Name:
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Title:
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XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
Managing Agent
By:
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Name:
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Title:
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10
BANK OF AMERICA NT & SA, Co-Agent
By:
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Name:
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Title:
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00
XXX XXXX XX XXXX XXXXXX, Co-Agent
By:
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Name:
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Title:
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THE INDUSTRIAL BANK OF JAPAN, LIMITED,
Co-Agent
By:
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Name:
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Title:
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13
THE NIPPON CREDIT BANK, LTD., LOS ANGELES
AGENCY, Co-Agent
By:
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Name:
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Title:
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00
XXXXXXX XXXX XX XXXXXXX
By:
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Name:
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Title:
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15
BANKERS TRUST COMPANY
By:
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Name:
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Title:
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16
THE DAI-ICHI KANGYO BANK, LIMITED
ATLANTA AGENCY
By:
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Name:
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Title:
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DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By:
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Name:
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Title:
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THE FUJI BANK, LTD. - ATLANTA AGENCY
By:
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Name:
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Title:
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THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED
By:
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Name:
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Title:
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MELLON BANK, N.A.
By:
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Name:
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Title:
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PNC BANK, KENTUCKY, INC.
By:
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Name:
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Title:
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THE SANWA BANK, LIMITED ATLANTA AGENCY
By:
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Name:
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Title:
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THE SUMITOMO BANK, LIMITED, ATLANTA AGENCY
By:
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Name:
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Title:
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00
XXXXXXXX XXXX XX XXXXXXX
By:
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Name:
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Title:
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AMENDMENT NO. 1 - EXHIBIT A
