FOURTH AMENDMENT
Exhibit 10.1
FOURTH AMENDMENT
THIS FOURTH AMENDMENT dated as of 1 (this “Fourth Amendment”), among
Xxxxxx Healthcare, Inc., a Delaware corporation (the “Borrower”), the Lenders (as defined below)
party hereto, and Bank of America, N.A., as Administrative Agent (in such capacity, the
“Administrative Agent”) for the Lenders.
W I T N E S S E T H:
WHEREAS, the Borrower is a party to an Amended and Restated Credit Agreement, dated as of
March 9, 2005 (as amended by the First Amendment and Waiver dated as of October 5, 2005, the Second
Amendment and Waiver dated as of November 6, 2006, and the Third Amendment dated as of May 25,
2007, and as otherwise amended, restated, supplemented or modified to but excluding the Fourth
Amendment Effective Date, as hereinafter defined, the “Existing Credit Agreement”; and as hereby
amended and otherwise amended, restated, supplemented or modified from time to time on or after the
Fourth Amendment Effective Date, the “Amended Credit Agreement”) among the Borrower, the lenders
from time to time party thereto (the “Lenders”), Bank of America, N.A., as Administrative Agent,
Swing Line Lender and L/C Issuer, and the other agents, joint lead arrangers and joint book
managers party thereto. Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to such terms in the Existing Credit Agreement.
WHEREAS, the Borrower has notified the Administrative Agent that it intends to acquire
substantially all of the assets used or held for use in connection with a Health Information
Management division and potentially the pharmacy rebate administration business of an entity
previously disclosed to the Lenders (the “Dakota Business”), for an aggregate purchase price of not
more than $135,000,000 in cash (the “Dakota Acquisition”), which will be financed by a draw of
Loans under the Amended Credit Agreement (the “Acquisition Loans”);
WHEREAS, the Borrower has further notified the Administrative Agent that if the Dakota
Acquisition occurs, following such Acquisition, the Borrower may elect to repay the Acquisition
Loans either from proceeds of Indebtedness issued in accordance with Section 7.03(i) of the
Credit Agreement, from another form of Indebtedness to be determined or from an equity financing
(the “Refinancing Facility”);
WHEREAS, in order to facilitate (a) the consummation of the Dakota Acquisition, (b) the
operation the Dakota Business and (c) the issuance of the Refinancing Facility, the Borrower has
requested that immediately prior to the consummation of the Dakota Acquisition the Existing
Credit Agreement be amended and modified as set forth in Section 1.01 of this Fourth
Amendment;
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
| 1 | Date to be inserted on Fourth Amendment Effective Date. |
SECTION 1.01. Amendments to the Existing Credit Agreement.
(a) Section 1.01 of the Existing Credit Agreement is hereby amended by (i)
deleting the definitions of “Applicable Rate,” “Borrower Fixed Charges,” and
“Interest Charges” in their entirety and (ii) inserting the following definitions in
alphabetical order:
“Applicable Rate” means, from time to time, the following
percentages per annum, based upon the Consolidated Leverage Ratio as set
forth in the most recent Compliance Certificate received by the
Administrative Agent pursuant to Section 6.02(b):
| Consolidated | Eurodollar | Base Rate+ | ||||||||||||||
| Pricing | Leverage | Rate+ | and | Commitment | ||||||||||||
| Level | Ratio | and Letters of Credit | Swing Line Loans | Fee | ||||||||||||
I |
³ 2.5x | 3.750 | % | 2.750 | % | 0.500 | % | |||||||||
II |
³ 2.0x but < 2.5x | 3.500 | % | 2.500 | % | 0.500 | % | |||||||||
III |
³ 1.5x but < 2.0x | 3.250 | % | 2.250 | % | 0.500 | % | |||||||||
IV |
³ 1.0x but < 1.5x | 3.000 | % | 2.000 | % | 0.500 | % | |||||||||
V |
< 1.0x | 2.750 | % | 1.750 | % | 0.500 | % | |||||||||
Any increase or decrease in the Applicable Rate resulting from a
change in the Consolidated Leverage Ratio shall become effective as of the
first Business Day immediately following the date a Compliance Certificate
is delivered pursuant to Section 6.02(b); provided,
however, that if a Compliance Certificate is not delivered when due
in accordance with such Section, then Pricing Level I shall apply for the
period beginning on the first Business Day after the date on which such
Compliance Certificate was required to have been delivered and continue
until the first Business Day immediately following the date a Compliance
Certificate is delivered, whereupon the Applicable Rate shall be adjusted
based on the information contained in such Compliance Certificate. The
Applicable Rate in effect from the Fourth Amendment Effective Date through
the delivery of the Compliance Certificate delivered with respect to the
first fiscal quarter ending after the Fourth Amendment Effective Date shall
be determined based upon Pricing Level II.
Notwithstanding anything to the contrary contained in this definition,
the determination of the Applicable Rate for any period shall be subject to
the provisions of Section 2.10(b).
“Borrower Fixed Charges” means, for any period for the Borrower
and any Loan Party, the sum of (i) the aggregate amount of taxes paid in
cash, plus (ii) interest payable on all Indebtedness for borrowed money,
plus (iii) rent payable under leases of real, personal, or mixed property,
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plus (iv) scheduled principal payments on all Indebtedness for borrowed
money; provided, however, that for the purpose of
calculating the Fixed Charge Coverage Ratio, non-cash Interest Charges on
convertible debt (including the Refinancing Debt) determined in accordance
with FSP APB 14-1 shall be excluded from the calculation of Borrower Fixed
Charges.
“Dakota Acquisition” has the meaning given such term in the
Fourth Amendment.
“Existing Convertible Indebtedness” means the $200,000,000 in
aggregate original principal amount of the Borrower’s 3.75% Convertible
Senior Notes due 2014 issued on October 11, 2007.
“Fourth Amendment” means that certain Fourth Amendment, dated
as of , among the Borrower, the Lenders party thereto and
the Administrative Agent.
“Fourth Amendment Effective Date” has the meaning given such
term in the Fourth Amendment.
“FSP APB 14-1” means the FASB Staff Position No. APB 14-1,
entitled “Accounting for Convertible Debt Instruments That May Be Settled in
Cash upon Conversion (Including Partial Cash Settlement),” posted as of May
9, 2008, by the Financial Accounting Standards Board at xxx.xxxx.xxx.
“Interest Charges” means, for any period for any Person, the
sum of (a) all interest, premium payments, debt, discount, fees, charges and
related expenses in connection with Indebtedness for borrowed money
(including capitalized interest) or in connection with the deferred purchase
price of assets, in each case to the extent treated as interest in
accordance with GAAP, and (b) the portion of rent expense with respect to
such period under Capitalized Leases that is treated as interest in
accordance with GAAP; provided, however, that for the
purpose of calculating the Fixed Charge Coverage Ratio, non-cash Interest
Charges on convertible debt (including the Refinancing Debt) determined in
accordance with FSP APB 14-1 shall be not be included as Interest Charges.
“MMIS Contract” means each Medicaid Management Information
System contract or fiscal administrator contract to which the Borrower or
its Subsidiaries are a party.
“Refinancing Debt” means Indebtedness permitted under
Section 7.03, all or a portion of which is applied to repay the
Loans initially used to finance the Dakota Acquisition.
(b) Amendments to Section 7.03.
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(1) The proviso to Section 7.03(e) of the Existing Credit Agreement is
hereby amended by replacing the reference to “$15 million” with “$25 million”.
(2) Section 7.03(i) of the Existing Credit Agreement is hereby amended
replacing the first parenthetical contained in Section 7.03(i) with the following
parenthetical:
(excluding Existing Convertible Indebtedness, but including, without
limitation, Indebtedness consisting of Permitted Convertible
Indebtedness incurred after the Fourth Amendment Effective Date and
any equity swaps, warrants or options on the capital stock of the
Borrower in connection therewith);
(3) Section 7.03(g) of the Existing Credit Agreement is hereby deleted
in its entirety and replaced with the following:
(g) (i) contingent obligations with respect to surety bonds and
similar instruments incurred in the ordinary course of business,
other than outstanding surety bonds of the Dakota Business, in an
aggregate amount not to exceed $40 million at any time outstanding,
(ii) endorsements for collection or deposit in the ordinary course
of business and (iii) all outstanding surety bonds of the Dakota
Business outstanding on the effective date of the Dakota
Acquisition;
(4) Section 7.03 of the Existing Credit Agreement is hereby further
amended by adding the following new subsection (l) at the end thereof:
(l) Existing Convertible Indebtedness and any refinancings,
refundings, renewals or extensions thereof; provided that
that the amount of such Existing Convertible Indebtedness is not
increased at the time of such refinancing, refunding, renewal or
extension except by an amount equal to a reasonable premium or other
reasonable amount paid, and fees and expenses reasonably incurred,
in connection with such refinancing and by an amount equal to any
existing commitments unutilized thereunder; provided,
further, that the Borrower will not, and will not permit any
Subsidiary to, directly or indirectly, declare, pay, make or set
aside any amount for payment in respect of such Existing
Convertible Indebtedness, except the following: (i) regularly
scheduled payments of interest in respect of such Indebtedness; (ii)
prepayment in common stock of all or any portion of the principal
amount of any such Existing Convertible Indebtedness or prepayment
in common stock of all or any portion of the amount of any
conversion or repurchase obligations with respect to any such
Existing Convertible Indebtedness; (iii) prepayment in Equity
Interests (other than common stock) or cash of all or any portion of
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the principal amount of any such Existing Convertible Indebtedness
(provided that as of the date of such prepayment, after
giving effect to such prepayment on a Pro Forma Basis, (A) no
Default or Event of Default shall have occurred and be continuing
and (B) if all or any portion of such prepayment is made in cash,
the aggregate amount of remaining availability existing under the
Aggregate Commitments and unrestricted cash on hand of the Borrower
shall equal at least $50,000,000); (iv) payment in Equity Interests
(other than common stock) or cash of all or any portion of the
amount of any conversion or repurchase obligations with respect to
any such Existing Convertible Indebtedness (provided that as
of the date of such payment, after giving effect to such payment, on
a Pro Forma Basis, (A) no Default or Event of Default shall have
occurred and be continuing and (B) if all or any portion of such
payment is made in cash, the aggregate amount of remaining
availability existing under the Aggregate Commitments and
unrestricted cash on hand of the Borrower shall equal at least
$50,000,000); and (v) payment of usual and customary fees, expenses
and indemnity obligations with respect to such Existing Convertible
Indebtedness (provided, that in no event shall the amount of
payments of any such indemnity obligations exceed $10,000,000 in the
aggregate);
(c) Amendment to Section 7.04. Clause (b) of Section 7.04 of the
Existing Credit Agreement is hereby deleted in its entirety and replaced it with the
following:
(b) Permit the Borrower or any Subsidiary to make any
Acquisition, except:
(i) Acquisitions of capital stock of another Person, so long as
after giving effect to such Acquisition,
(A) such Acquisition constitutes an Investment permitted
by Section 7.02, if the Acquisition is not of a
controlling interest in the subject Person such that after
giving effect thereto the subject Person will not be a
Subsidiary; and
(B) such Acquisition constitutes a Permitted
Acquisition, if the Acquisition is of a controlling interest
in the subject Person such that after giving effect thereto
the subject Person will be a Subsidiary;
(ii) the Dakota Acquisition, so long as such Acquisition shall
have satisfied all the requirements set forth in the definition of
“Permitted Acquisition” other than clause (h) of such definition
(and, for the avoidance of doubt, the Dakota Acquisition shall not
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be subject to nor included in any calculation of the baskets under
clause (h) of the definition of “Permitted Acquisition”); and
(iii) an Acquisition of all or any substantial portion of the
Property (other than capital stock) of another Person, so long as
such Acquisition otherwise constitutes a Permitted Acquisition.
(d) Amendment to Section 7.06. Section 7.06 of the Existing Credit
Agreement is hereby amended by deleting clauses (ii) and (iii) of Section 7.06(e)
and replacing them with the following:
(ii) satisfy its conversion or required repurchase obligations
related to any (A) Existing Convertible Indebtedness or (B)
Permitted Convertible Indebtedness issued by the Borrower in
accordance with Section 7.03(i), as the case may be, in
Equity Interests or cash of the Borrower, (iii) exercise or settle
any equity swaps, warrants or options on the capital stock of the
Borrower entered into in connection with any (A) Existing
Convertible Indebtedness or (B) Permitted Convertible Indebtedness,
in each case in Equity Interests of the Borrower or in cash to the
extent cash payments are permitted under Section 7.03(i) or
Section 7.03(l), as applicable, and
(e) Amendment to Section 7.17. Section 7.17 of the Existing Credit
Agreement is hereby deleted in its entirety and replaced with the following:
7.17 Capital Expenditures. Make, or become legally obligated to make, any
Capital Expenditure, except:
(a) Capital Expenditures (other than Capital Expenditures subject to
Section 7.17(b)) determined on a consolidated basis in accordance
with GAAP in the ordinary course of business not exceeding, in the aggregate
amount for the Borrower and the Subsidiaries during each fiscal year set
forth below, the amount set forth opposite such fiscal year:
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| Fiscal Year | Amount | |
2005 |
$15 million | |
2006 |
$22 million | |
2007 |
$30 million | |
2008 |
$35 million | |
2009 |
$55 million | |
2010 |
$60 million | |
2011 |
$65 million | |
2012 |
$70 million |
(b) Capital Expenditures required under any MMIS Contract so long as
and to the extent that the applicable State that is counterparty to such
MMIS Contract or the federal government is required to reimburse such
Capital Expenditures in cash within not more than 18 months after such
amount is expended.
(f) Amendment to Section 7.18. Clause (a) of Section 7.18 of the
Existing Credit Agreement is hereby amended (i) by deleting the reference to “September 30,
2008 and each fiscal quarter thereafter” and replacing such reference with “September 30,
2008 through September 30, 2009” and (ii) inserting the following additional Minimum Fixed
Charge Coverage Ratios immediately thereafter:
| Minimum Fixed | ||
| Charge Coverage | ||
| Four Fiscal Quarters Ending | Ratio | |
December 31, 2009
|
2.75:1.00 | |
March 31, 2010 and each fiscal quarter thereafter
|
3.00:1.00 |
SECTION 1.02. Representations and Warranties. The Borrower hereby represents and
warrants to the Administrative Agent and the Lenders, as follows:
(a) After giving effect to each of the Fourth Amendment and the Dakota Acquisition, the
representations and warranties of the Borrower contained in Article V of the Amended Credit
Agreement or any other Loan Document or which are contained in any document furnished at any
time under or in connection therewith are true and correct in all material respects on and
as of the date hereof, (i) except to the extent such representations and warranties
specifically refer to an earlier date, in which case they are true and correct in all
material respects as of such earlier date, (ii) except the
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representations and warranties contained in subsections (a) and (b) of Section 5.05
of the Amended Credit Agreement shall be deemed to refer to the most recent financial
statements furnished pursuant to subsections (a) and (b), respectively, of Section
6.01 of the Amended Credit Agreement and (iii) references to Schedules shall be deemed
to refer to the most updated supplements to the Schedules furnished pursuant to subsection
(b) of Section 6.02 of the Amended Credit Agreement.
(b) After giving effect to each of the Fourth Amendment and the Dakota Acquisition,
each of the Borrower and the other Loan Parties is in compliance with all the terms and
conditions of the Amended Credit Agreement, as amended by this Fourth Amendment, and the
other Loan Documents on its part to be observed or performed and no Default has occurred or
is continuing under the Amended Credit Agreement.
(c) The execution, delivery and performance by the Borrower of this Fourth Amendment
have been duly authorized by the Borrower.
(d) Each of this Fourth Amendment and the Amended Credit Agreement constitutes the
legal, valid and binding obligation of the Borrower, enforceable against the Borrower in
accordance with its terms, except as enforceability may be limited by Debtor Relief Laws and
by general equitable principles (whether enforcement is sought by proceedings in equity or
at law).
(e) The execution, delivery, performance and compliance with the terms and provisions
by the Borrower of this Fourth Amendment and the consummation of the transactions
contemplated herein (including, without limitation, the Dakota Acquisition) do not and will
not: (i) contravene the terms of any of the Borrower’s Organization Documents; (ii) conflict
with or result in any breach or contravention of, or (except for the Liens created under the
Loan Documents) the creation of any Lien under, (A) any material Contractual Obligation to
which the Borrower is a party or (B) any order, injunction, writ or decree of any
Governmental Authority or any arbitral award to which the Borrower or its property is
subject or (C) violate any material Law, including, without limitation, state and Federal
Laws relating to health care organizations and health care providers, except for such
violations as could not reasonably be expected to have a Material Adverse Effect.
SECTION 1.03. Effectiveness. This Fourth Amendment shall become effective only upon
satisfaction of the following conditions precedent (the first date upon which each such condition
has been satisfied being herein called the “Fourth Amendment Effective Date”):
(a) The Administrative Agent shall have received duly executed counterparts of this
Fourth Amendment which, when taken together, bear the authorized signatures of the Borrower,
the Administrative Agent and the Required Lenders (the date that all such Required Lender
signatures are delivered, the “Execution Date”).
(b) The Administrative Agent shall have received duly executed counterparts of the
Consent executed by each Guarantor in the form of Exhibit A hereto.
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(c) The Borrower shall have certified in writing that (a) the Dakota Acquisition shall
be consummated in compliance with the terms and conditions contained in the Amended Credit
Agreement immediately after the Fourth Amendment Effective Date and (b) the representations
and warranties set forth in Section 1.02 hereof are true and correct on and as of
such date.
(d) There shall exist no actions, suits, proceedings, claims or disputes pending or, to
the Actual Knowledge of the Borrower, threatened, at law, in equity, in arbitration or
before any Governmental Authority, by or against the Borrower or any of the Subsidiaries or
against any of their respective properties or revenues or injunctions, writs, temporary
restraining orders or other orders of any nature issued by any court or Governmental
Authority that (i) purport to affect, pertain to or enjoin or restrain the execution,
delivery or performance of the Dakota Acquisition, this Fourth Amendment or the Amended
Credit Agreement or any other Loan Document, or any transactions contemplated hereby or
thereby or (ii) either individually or in the aggregate, in the case of any such suit,
proceeding, claim or dispute which is reasonably likely to be adversely determined, either
individually or in the aggregate, if determined adversely, could reasonably be expected to
have a Material Adverse Effect.
(e) The Administrative Agent on behalf of the Lenders shall have received such other
documents, instruments and certificates as they shall reasonably request and such other
documents, instruments and certificates shall be satisfactory in form and substance to the
Lenders and their counsel. All corporate and other proceedings taken or to be taken in
connection with this Fourth Amendment and all documents incidental thereto, whether or not
referred to herein, shall be satisfactory in form and substance to the Lenders and their
counsel.
(f) The Borrower shall have paid in full (i) on the later of (x) the Execution Date and
(y) November 24, 2009, (A) all fees then due and payable as of such date under the
Engagement Letter, dated as of November 11, 2009 (the “Fourth Amendment Engagement Letter”),
among the Borrower, the Administrative Agent and Banc of America Securities LLC, and (B) all
expenses referred to in Section 1.06, and (ii) on or before the proposed Fourth
Amendment Effective Date, (A) all fees then due and payable as of such date under the Fourth
Amendment Engagement Letter and (B) all outstanding expenses referred to in Section
1.06.
SECTION 1.04. Lender Consent. For purposes of determining compliance with the
conditions specified in Section 1.03, each Lender that has signed this Fourth Amendment
shall be deemed to have consented to, approved or accepted or to be satisfied with, each document
or other matter required thereunder to be consented to or approved by or acceptable or satisfactory
to a Lender unless the Administrative Agent shall have received notice from such Lender prior to
the proposed Fourth Amendment Effective Date specifying its objection thereto.
SECTION 1.05. APPLICABLE LAW. THIS FOURTH AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE
FEDERAL LAWS OF THE UNITED STATES OF AMERICA MAY APPLY.
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SECTION 1.06. Costs and Expenses. On the each of (a) the later of the Execution Date
and November 24, 2009, and (b) the Fourth Amendment Effective Date, the Borrower shall pay all
reasonable out-of-pocket costs and expenses of the Administrative Agent in connection with the
preparation, execution and delivery of this Fourth Amendment and the other instruments and
documents to be delivered hereunder (including, without limitation, the reasonable fees and
expenses of counsel for the Administrative Agent) in accordance with the terms of Section
10.04(a) of the Amended Credit Agreement which are invoiced to the Borrower on or prior to the
date payment would be due hereunder.
SECTION 1.07. Counterparts. This Fourth Amendment may be executed in any number of
counterparts, each of which shall constitute an original but all of which when taken together shall
constitute but one agreement. Delivery by facsimile by any of the parties hereto of an executed
counterpart of this Fourth Amendment shall be as effective as an original executed counterpart
hereof and shall be deemed a representation that an original executed counterpart hereof will be
delivered, but the failure to deliver a manually executed counterpart shall not affect the
validity, enforceability or binding effect of this Fourth Amendment.
SECTION 1.08. Existing Credit Agreement. Except as expressly set forth herein, the
amendment provided herein shall not, by implication or otherwise, limit, constitute a waiver of, or
otherwise affect the rights and remedies of the Lenders or the Administrative Agent under the
Existing Credit Agreement or any other Loan Document, nor shall it constitute a waiver of any
Default, nor shall it alter, modify, amend or in any way affect any of the terms, conditions,
obligations, covenants or agreements contained in the Existing Credit Agreement or any other Loan
Document. The amendment provided herein shall apply and be effective only on the Fourth Amendment
Effective Date and only with respect to the provisions of the Existing Credit Agreement
specifically referred to by such amendment. Except to the extent a provision in the Existing
Credit Agreement is expressly amended herein, the Existing Credit Agreement shall continue in full
force and effect in accordance with the provisions thereof.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to be duly executed
by their duly authorized officers, all as of the date first above written.
| XXXXXX HEALTHCARE, INC., a Delaware corporation, as the Borrower |
||||
| By: | ||||
| Name: | Xxxx X. Xxxxxx | |||
| Title: | Chief Financial Officer | |||
Fourth Amendment to Credit Agreement
Signature Page1
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Effective Date.
| BANK OF AMERICA,
N.A., as Administrative Agent |
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| By: | ||||||||||
| Name: | ||||||||||
| Title: | ||||||||||
Fourth Amendment to Credit Agreement
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| BANK OF AMERICA,
N.A., as a Lender, Swing Line Lender and L/C Issuer |
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| By: | ||||||||||
| Name: | ||||||||||
| Title: | ||||||||||
Fourth Amendment to Credit Agreement
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| CIBC INC., as Lender | ||||||||||
| By: | ||||||||||
| Name: | ||||||||||
| Title: | ||||||||||
Fourth Amendment to Credit Agreement
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| CITICORP NORTH
AMERICA, INC., as Lender |
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| By: | ||||||||||
| Name: | ||||||||||
| Title: | ||||||||||
Fourth Amendment to Credit Agreement
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| U.S. BANK NATIONAL
ASSOCIATION, as Lender |
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| By: | ||||||||||
| Name: | ||||||||||
| Title: | ||||||||||
Fourth Amendment to Credit Agreement
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| UBS LOAN FINANCE LLC, as Lender | ||||||||||
| By: | ||||||||||
| Name: | ||||||||||
| Title: | ||||||||||
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| XXXXXX X.X., as Lender | ||||||||||
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| Title: | ||||||||||
Fourth Amendment to Credit Agreement
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| UNION BANK, NATIONAL
ASSOCIATION, as
Lender |
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| By: | ||||||||||
| Name: | ||||||||||
| Title: | ||||||||||
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| EAST WEST BANK, as Lender | ||||||||||
| By: | ||||||||||
| Name: | ||||||||||
| Title: | ||||||||||
Fourth Amendment to Credit Agreement
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| JPMORGAN CHASE BANK, N.A., as Lender | ||||||||||
| By: | ||||||||||
| Name: | ||||||||||
| Title: | ||||||||||
Fourth Amendment to Credit Agreement
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| CITY NATIONAL BANK, as Lender | ||||||||||
| By: | ||||||||||
| Name: | ||||||||||
| Title: | ||||||||||
Fourth Amendment to Credit Agreement
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| JEFFERIES FINANCE LLC, as Lender | ||||||||||
| By: | ||||||||||
| Name: | ||||||||||
| Title: | ||||||||||
Fourth Amendment to Credit Agreement
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EXHIBIT A
to
Fourth Amendment
to
Fourth Amendment
FORM OF
CONSENT
CONSENT
This CONSENT, dated as of November ___, 2009 (this “Consent”), to the Agreement referred to
below is delivered by each of the undersigned (each a “Guarantor”).
W I T N E S S E T H:
WHEREAS, in connection with the transactions contemplated by the Amended and Restated Credit
Agreement, dated as of March 9, 2005 among Xxxxxx Healthcare, Inc. (the “Borrower”), the lenders
from time to time party thereto (the “Lenders”), Bank of America, N.A., as Administrative Agent,
Swing Line Lender and L/C Issuer (the “Administrative Agent”), and the other agents, joint lead
arrangers and joint book managers party thereto, as amended by the First Amendment and Waiver dated
as of October 5, 2005, the Second Amendment and Waiver dated as of November 6, 2006, and the Third
Amendment dated as of May 25, 2007 (the “Existing Credit Agreement”) each Guarantor has executed
and delivered to the Administrative Agent and the Lenders that certain Subsidiary Guaranty dated as
of March 9, 2005 (as amended or otherwise modified from time to time, the “Subsidiary Guaranty”);
WHEREAS, the Borrower, the Lenders and the Administrative Agent have entered into the Fourth
Amendment dated as of the date hereof (the “Fourth Amendment”; capitalized terms not otherwise
defined herein to have the meanings provided in the Fourth Amendment and in the Existing Credit
Agreement) to amend certain provisions in the Existing Credit Agreement; and
WHEREAS, it is a condition of effectiveness of the Fourth Amendment that each Guarantor
deliver to the Administrative Agent and the Lenders an executed counterpart of this Consent;
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, each Guarantor hereby agrees, as follows:
1. each Guarantor consents and agrees to the terms of (a) the Fourth Amendment and (b) the
Existing Credit Agreement, as amended by the Fourth Amendment (the “Amended Credit Agreement”); and
2. each Guarantor confirms and agrees that notwithstanding the effectiveness of the Fourth
Amendment, the Subsidiary Guaranty is, and shall continue to be, in full force and effect and is
hereby ratified and confirmed in all respects, except that, on and after the effectiveness of the
Fourth Amendment, each reference in the Subsidiary Guaranty to the “Credit Agreement”,
“thereunder”, “thereof” or words of like import shall mean and be a reference to the Amended Credit
Agreement.
Exhibit A
A-1
A-1
IN WITNESS WHEREOF, the undersigned have caused this Consent to be executed by their
respective officers thereunto duly authorized, as of the date first above written.
[INSERT GUARANTORS’ NAMES] |
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| By: | ||||
| Name: | ||||
| Title: | ||||
Exhibit A
A-2
A-2
