Exhibit 10.36.6
SIXTH AMENDMENT TO CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO CREDIT AGREEMENT (this "Sixth
Amendment"), dated as of September 30, 1997, is entered into
by and among RIGHTCHOICE MANAGED CARE, INC. (the "Company"),
the several financial institutions party hereto (the
"Banks"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as administrative agent for itself and the
Banks (the "Administrative Agent") and NATIONSBANK, N.A.,
the successor to The Xxxxxxx'x National Bank of St. Louis,
as co-agent for the Banks (the "Co-Agent"), and amends the
Credit Agreement dated as of August 10, 1995 among the
Company, the Banks, the Administrative Agent and the Co-
Agent, as amended by a First Amendment to Credit Agreement
dated as of November 14, 1995, a Consent and Second
Amendment to Credit Agreement dated as of December 29, 1995,
a Third Amendment to Credit Agreement dated as of August 9,
1996, a Fourth Amendment to Credit Agreement dated as of
November 13, 1996 and a Fifth Amendment to Credit Agreement
dated as of February 11, 1997 (as so amended, the
"Agreement").
RECITAL
The Company has requested that the Agreement be amended
on the terms and conditions set forth herein, and the Banks,
the Administrative Agent and the Co-Agent are willing to do
so.
NOW, THEREFORE, for valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties
hereto hereby agree as follows:
1. Terms. All terms used herein shall have the
same meaning as in the Agreement unless otherwise defined
herein. All references to the Agreement shall mean the
Agreement as hereby amended.
2. Amendatory Provisions to Agreement. The
parties hereto agree that the Agreement is hereby amended as
follows:
(a) The definition of the term "Applicable
Margin" in Section 1.1 of the Agreement is amended and
restated in its entirety to read as follows:
"Applicable Margin" means, in the case of Loans
bearing interest at the Offshore Rate, 2.75% (or 275
basis points) and, in the case of Loans bearing
interest at the Base Rate, 1.75% (or 175 basis points).
(b) The definition of the term "Consolidated
Capital Expenditures" in Section 1.1 of the Agreement is
amended and restated in its entirety to read as follows:
"Consolidated Capital Expenditures" means, for any
period, the capital expenditures of the Company and its
Subsidiaries for such period, as the same are (or would
in accordance with GAAP be) set forth in the
consolidated statement of cashflow of the Company and
its Subsidiaries for such period.
(c) The definition of the term "EBITDA" in
Section 1.1 of the Agreement is amended and restated in its
entirety to read as follows:
"EBITDA" means, with respect to the Company and
its Subsidiaries for any applicable period, Net Income
for such period, plus, to the extent deducted in
determining Net Income for such period, the aggregate
amount of (i) Interest Expense; (ii) federal, state,
and local and foreign income taxes; (iii) depletion,
depreciation, and amortization of tangible and
intangible assets; (iv) solely with respect to the
Company's fiscal years ending December 31, 1996 and
1997, up to an aggregate of $7,000,000 of one-time
expenses incurred in connection with the relocation of
the Company's service center; and (v) the charge taken
by the Company during the fiscal quarter ending
September 30, 1997 for accruing a loss reserve in an
amount not to exceed $30,000,000 for the Missouri
Consolidated Health Care Plan ("MCHCP"), and less, (i)
the amount of any loss reserve amortization of this
MCHCP reserve during the applicable period and (ii) any
gain resulting from the reversal of any loss recorded
by the Company in connection with its pending
litigation with MCHCP.
(d) The definition of the term "Interest Payment
Date" in Section 1.1 of the Agreement is amended and
restated in its entirety to read as follows:
"Interest Payment Date" means, as to any Loan
other than a Base Rate Loan, the last day of each
Interest Period applicable to such Loan and, as to any
Base Rate Loan, the last Business Day of each calendar
month.
(e) The definition of the term "Interest Period"
in Section 1.1 of the Agreement is amended and restated in
its entirety to read as follows:
"Interest Period" means, as to any Offshore Rate
Loan, the period commencing on the Borrowing Date of
such Loan or on the Conversion/Continuation Date on
which the Loan is converted into or continued as an
Offshore Rate Loan, and ending on the date one month
thereafter;
provided that:
(i) if any Interest Period would otherwise end on a
day that is not a Business Day, that Interest Period shall
be extended to the following Business Day unless, in the
case of an Offshore Rate Loan, the result of such extension
would be to carry such Interest Period into another calendar
month, in which event such Interest Period shall end on the
preceding Business Day;
(ii) any Interest Period pertaining to an Offshore
Rate Loan that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period; and
(iii) no Interest Period for any Loan shall
extend beyond August 10, 2000.
(f) The definition of the term "Net Cash
Proceeds" in Section 1.1 of the Agreement is amended and
restated in its entirety to read as follows:
"Net Cash Proceeds" means with respect to any
Equity Issuance involving an offering of the securities
of the Company or any issuance by the Company or any
Subsidiary of debt securities, the excess of (i) the
gross cash proceeds received by such Person as a result
of such Equity Issuance or debt issuance over (ii) all
reasonable fees and expenses (including underwriting
discounts and legal, investment banking and accounting
and other professional fees) and disbursements actually
incurred in connection therewith.
(g) There shall be added to Section 1.1 of the
Agreement, in appropriate alphabetical sequence, a new
definition reading in its entirety as follows:
"Net Sales Proceeds" means with respect to any
sale or disposition of property by the Company or its
Subsidiaries, the excess of (i) the gross cash proceeds
received by the Company or such Subsidiary as a result
of such sale or disposition over (ii) all reasonable
fees and expenses (including underwriting discounts and
legal, investment banking and accounting and other
professional fees) and disbursements actually incurred
in connection therewith.
(h) Schedule 2.1 of the Agreement is amended and
restated in its entirety to read as set forth on Schedule
2.1 hereto.
(i) Immediately following the caption of Section
2.7 of the Agreement and before the beginning of the
existing text, there shall be added the following: "(a)".
The chart appearing in Section 2.7(a) of the Agreement is
amended and restated in its entirety to read as follows:
Date Maximum Commitment
October 1, 1997 $ 50,000,000
March 31, 1998 $ 48,750,000
June 30, 1998 $ 47,500,000
September 30, 1998 $ 46,250,000
December 31, 1998 $ 45,000,000
March 31, 1999 $ 42,500,000
June 30, 1999 $ 40,000,000
September 30, 1999 $ 37,500,000
December 31, 1999 $ 35,000,000
March 31, 2000 $ 32,500,000
June 30, 2000 $ 30,000,000
August 10, 2000 $ 0
(j) Immediately following Section 2.7(a) of the
Agreement, there shall be added the following:
"(b) There shall be a mandatory reduction of the
Commitments in the amounts set forth below not later
than one Business Day after the Company or any of its
Subsidiaries receives proceeds from any of the
following:
(i) all Net Sales Proceeds from any
sale or disposition by the Company or any of its
Subsidiaries of any property to the extent
required under Section 7.3(d) and Section 7.3(e);
(ii) all Net Cash Proceeds from any
Equity Issuance by the Company or any Subsidiary
(including without limitation, any Equity Issuance
to Blue Cross and Blue Shield of Missouri);
(iii) all Net Cash Proceeds received
by the Company or any Subsidiary from any issuance
of any debt securities or instruments permitted
hereunder (including without limitation, any debt
securities or instruments issued in favor of Blue
Cross and Blue Shield of Missouri but excluding
any indebtedness permitted pursuant to Section
7.6);
(iv) subject to applicable law and
restrictions, all indefeasible payments received
by the Company or any Subsidiary from the
settlement of, or prosecution of, the pending
litigation by the Company against MCHCP, net of
all reasonable fees and expenses (including legal,
accounting and other professional fees) and
disbursements actually incurred in connection
therewith; and
(v) all proceeds received by the Company
from the repayment by a Subsidiary of the Company
of any "surplus or contribution notes," as such
terms are defined in Chapter 375 of Title XXIV of
the Missouri statutes.
All such mandatory reductions of the Commitments shall
be applied to scheduled commitment reductions set forth
in Section 2.7 in the inverse order of maturity."
(k) Subsection (a) of Section 2.9 of the
Agreement is amended and restated in its entirety to read as
follows:
"(a) Each Loan shall bear interest on the
outstanding principal amount thereof from the
applicable Borrowing Date at a rate per annum equal to
the Offshore Rate or the Base Rate, as the case may be
(and subject to the Company's right to convert to other
Types of Loans under Section 2.4), plus, in each case,
the Applicable Margin."
(l) Subsection (b) of Section 2.10 of the
Agreement is amended and restated in its entirety to read as
follows:
"(b) Commitment Fees. The Company shall pay to
the Administrative Agent for the account of each Bank a
commitment fee on the average daily unused portion of
such Bank's Commitment, computed on a quarterly basis
in arrears on the last Business Day of each calendar
quarter, at a rate per annum equal to .50%. Such
commitment fee shall accrue and be payable quarterly in
arrears on the last Business Day of each June,
September, December and March through the Termination
Date, with the final payment to be made on the
Termination Date; provided that, in connection with any
reduction or termination of Commitments under Section
2.5 or Section 2.7, the accrued commitment fee
calculated for the period ending on such date shall
also be paid on the date of such reduction or
termination, with the immediately following quarterly
payment being calculated on the basis of the period
from such reduction or termination date to such
quarterly payment date. The commitment fees provided
in this subsection shall accrue at all times, including
at any time during which one or more conditions in
Article IV are not met."
(m) Section 6.1(b) of the Agreement is hereby
amended (i) by adding "and consolidating" after the word
"consolidated" in the fourth and sixth lines thereof and
(ii) by deleting the word "and" at the end thereof.
(n) Section 6.1(c) of the Agreement is hereby
amended by adding the following clause immediately prior to
the end thereof: ", copies of all financial statements for
such fiscal year filed by the Company or any Subsidiary with
any Governmental Authority and a copy of the reconciliation
by the Independent Auditor of the annual consolidated
financial statements described in clause (a) above with the
consolidating financial statements described in this clause
(c)."
(o) Section 6.1(d) of the Agreement is hereby
amended by deleting "statement of income" from the fifth
line thereof and substituting therefor "statements of income
and cash flows".
(p) Section 6.2(d) of the Agreement is hereby
amended by replacing the period at the end thereof with a
semicolon.
(q) There shall be added to the Agreement a new
Section 6.1(e) reading in its entirety as follows:
"(e) promptly after request by the Administrative
Agent or any Bank, copies of any detailed audit
reports, management letters or recommendations
submitted to the board of directors (or the audit
committee of the board of directors) of the Company by
its independent public accountants in connection with
the accounts or books of the Company or any of its
Subsidiaries, or any audit of any of them (except for
information submitted by such accountants in connection
with litigation involving the Company or any of its
Subsidiaries);
(r) There shall be added to the Agreement a new
Section 6.1(f) reading in its entirety as follows:
"(f) of the failure of the Company or any
Subsidiary to meet the applicable minimum capital
benchmark requirements of Blue Cross and Blue Shield."
(s) There shall be added to the Agreement a new
Section 6.2(f) reading in its entirety as follows:
"(f) as soon as available and in any event within
10 days after the end of each month, copies of all
publicly available documents in connection with the
litigation between the Missouri Department of Insurance
(the "DOI") and Blue Cross and Blue Shield of Missouri
described in the Company's 1996 Annual Report, the
pending litigation between the Company and MCHCP and
any other material litigation affecting the Company or
any of its Subsidiaries for which the Majority Banks
shall have requested such information."
(t) Section 6.3 of the Agreement is hereby
amended by adding thereto the following paragraph
immediately prior to the end thereof:
"Not less than ten days prior to the consummation
of any acquisition or Investment otherwise permitted by
Sections 7.5(d) or (e) hereof, (i) the Company shall
deliver to the Administrative Agent: (A) a written
description of such acquisition or Investment; and (B)
if requested by the Administrative Agent, copies of all
agreements and Governmental Approvals relating to such
acquisition or Investment and (ii) the Company shall
calculate and deliver to the Administrative Agent, a
certificate demonstrating compliance with the covenants
set forth in Section 7.5 on a proforma basis as though
such transaction had been consummated on the first day
of the Fiscal Quarter immediately prior to the date of
determination."
(u) Section 7.1(b) of the Agreement is amended
and restated in its entirety to read as follows:
"(b) At any time, its Adjusted Net Worth to be
less than the sum of (i) $125,000,000, plus (ii) 75% of
Net Income since September 30, 1997 to the extent the
same is a positive amount, plus (iii) 100% of the Net
Cash Proceeds of any Equity Issuance occurring after
September 30, 1997."
(v) Section 7.1(c) of the Agreement is amended
and restated in its entirety as follows:
"(c) At any time during the following periods, its
Debt to EBITDA Ratio to exceed the ratio set forth
below opposite such period:
Maximum
Period Permitted Ratio
9/30/97 - 12/31/97 2.85 to 1.00
1/01/98 - 3/31/98 7.00 to 1.00
4/01/98 - 6/30/98 7.00 to 1.00
7/01/98 - 9/30/98 5.10 to 1.00
10/01/98 - 12/31/98 4.00 to 1.00
1/01/99 - 3/31/99 3.15 to 1.00
4/01/99 - 6/30/99 2.50 to 1.00
7/01/99 and thereafter 2.00 to 1.00
(w) Section 7.1(d) of the Agreement is amended
and restated in its entirety as follows:
"(d) As of the end of any fiscal quarter of the
Company, its Fixed Charge Coverage Ratio to be less
than the ratio set forth below opposite such quarter:
Fiscal Minimum
Quarter Ended Permitted Ratio
9/30/97 1.40 to 1.00
12/31/97 1.40 to 1.00
3/31/98 0.80 to 1.00
6/30/98 0.75 to 1.00
9/30/98 1.00 to 1.00
12/31/99 1.10 to 1.00
3/31/99 1.25 to 1.00
6/30/99 1.45 to 1.00
9/30/99 1.50 to 1.00
12/31/99 1.55 to 1.00
3/31/00 1.75 to 1.00
6/30/00 and Thereafter 2.00 to 1.00
(x) Section 7.2 (j) of the Agreement is hereby amended
by deleting the figure "$5,000,000" and replacing it with
the figure "$1,000,000".
(y) Section 7.2(n) of the Agreement is hereby amended
by adding the following clause at the end thereof :
"provided that the aggregate face amount of such Letters of
Credit shall in no event exceed $1,000,000."
(z) Section 7.3 of the Agreement is amended and
restated in its entirety to read as follows:
"7.3 Disposition of Assets. The Company shall
not, and shall not suffer or permit any Subsidiary to,
directly or indirectly, sell, assign, lease, convey,
transfer or otherwise dispose of (whether in one or a
series of transaction) any property (including accounts
and notes receivable, with or without recourse) or
enter into any agreement to do any of the foregoing,
except for the following ("Permitted Asset
Dispositions"):
(a) dispositions permitted by Section 7.2 or
Section 7.11(c);
(b) dispositions of inventory, or used, worn-out
or surplus equipment, all in the ordinary course of
business;
(c) the sale of equipment to the extent that such
equipment is exchanged for credit against the purchase
price of similar replacement equipment, or the proceeds
of such sale are reasonably promptly applied to the
purchase price of such replacement equipment;
(d) dispositions of property by the Company or
any Subsidiary to the Company or to any Wholly-Owned
Subsidiary pursuant to reasonable business
requirements; provided that such dispositions are
conducted on an arms' length basis and for
consideration of cash, Marketable Securities or a
combination thereof and, to the extent such
consideration is received by the Company and not used
as set forth in Section 7.3(c), it is applied to reduce
the Commitments pursuant to Section 2.7(b); and
(e) dispositions not otherwise permitted
hereunder which are made for fair market value;
provided, that (i) at the time of any disposition no
Event of Default shall exist or shall result from such
disposition, (ii) the aggregate sales price from such
disposition shall be paid in cash, and (iii) to the
extent that Net Sales Proceeds of all assets sold by
the Company and its Subsidiaries from October 1, 1997
through the Termination Date and to which this Section
7.3(e) applies exceed $2,000,000, such excess shall be
applied to reduce the Commitments pursuant to Section
2.7(b)."
(aa) Section 7.5(c) of the Agreement is amended by
adding the following clause at the end thereof: "provided
that except for extensions of credit in the ordinary course
of business and consistent with the Company's historical
practices, all such extensions of credit must be permitted
by Section 7.6(f) and provided, further, that both
immediately before and immediately after giving effect
thereto no Default exists hereunder;"
(bb) Section 7.5(d) of the Agreement is amended and
restated in its entirety to read as follows:
(d) investments incurred in order to consummate
Acquisitions; provided that (i) the amount of
investment by the Company or its Subsidiaries with
respect to any such Acquisition, together with the
amount of investment by the Company with respect to all
prior Acquisitions undertaken by the Company and its
Subsidiaries from October 1, 1997 (x) through December
31, 1998 shall not exceed $2,500,000 in total
consideration and (y) through the Termination Date
shall not exceed $5,000,000 in total consideration,
(ii) such Acquisitions are undertaken in accordance
with all applicable Requirements of Law and both before
and after giving effect thereto no Default exists
hereunder (including, without limitation, on a pro
forma basis, under Section 7.1 hereof); and (iii) the
prior, effective written consent or approval to such
Acquisition of the board of directors or equivalent
governing body of the acquiree is obtained; or
(cc) Section 7.5(e) of the Agreement is amended and
restated in its entirety to read as follows:
(e) investments in Joint Ventures from October 1,
1997 (i) through December 31, 1998 not to exceed
$1,000,000 in the aggregate and (ii) through the
Termination Date not to exceed $2,000,000 in the
aggregate;
(dd) Section 7.6(d) of the Agreement is hereby amended
by deleting the figure "$5,000,000" and replacing it with
the figure "$1,000,000".
(ee) Section 7.6(f) of the Agreement is hereby amended
and restated in its entirety to read as follows:
"(f) (i) indebtedness of any Subsidiary to the
Company outstanding as of October 1, 1997, (ii) up to
$30,000,000 of additional indebtedness of the Company's
Subsidiaries to the Company incurred from October 1,
1997 through December 31, 1997 and (iii) up to (x)
$10,000,000 of additional indebtedness of the Company's
Subsidiaries to the Company plus (y) any unused portion
of the availability under clause (ii) above, incurred
at any time thereafter; provided, however, that no
indebtedness permitted by clauses (ii) and (iii) shall
be incurred by a Subsidiary except to the extent
necessary to meet regulatory capital requirements or
capital requirements of Blue Cross and Blue Shield; and
(ff) Section 7.9 of the Agreement is hereby amended by
deleting the period at the end of clause (d) thereof and
replacing it with "; and" and by adding a new clause (e)
immediately thereafter reading in its entirety as follows:
"(e) the guarantee by the Company of up to
$1,500,000 of the indebtedness of HealthCare
Interchange Inc. outstanding as of September 30, 1997."
(gg) Section 7.11(e) of the Agreement is hereby amended
and restated in its entirety to read as follows:
"[intentionally deleted]".
(hh) Section 7.12 of the Agreement is hereby amended
(i) by deleting the semicolon and "and" at the end of the
clause (b) thereof and substituting a period therefor and
(ii) by deleting clause (c) in its entirety.
(ii) Section 7.17(a) of the Agreement is hereby amended
and restated to read in its entirety as follows:
(a) The Company shall not, and shall not suffer
or permit any Subsidiary to, make Consolidated Capital
Expenditures (excluding any capital expenditures with
respect to the development of a comprehensive
information and operations strategy ("IOS Project")) in
any fiscal year of the Company in excess of the amount
set forth below for such fiscal year:
Year Maximum Capital Expenditures (Non IOS)
1997 $1,500,000 plus all capital expenditures made
through 9/30/97
1998 $3,200,000
1999 $3,400,000
2000 $3,500,000; and
the Company shall not, and shall not suffer or permit
any Subsidiary to, make Consolidated Capital
Expenditures with respect to the IOS Project in any
fiscal year of the Company in excess of the amount set
forth below for such fiscal year:
Year Maximum IOS Capital Expenditures
1997 $ 6,500,000 plus all IOS capital expenditures
made through 9/30/97
1998 $10,000,000
1999 $ 4,500,000
2000 $ 4,500,000
provided, however, that to the extent that the
Consolidated Capital Expenditures in any year are less
than the maximum Consolidated Capital Expenditures
permitted by the schedules set forth above, such unused
portion may be carried over by the Company to the
following year of the applicable schedule.
(jj) Section 7.17(b) of the Agreement is hereby
deleted.
(kk) Section 8.1(l) of the Agreement is hereby amended
by inserting the phrase "(including, without limitation, the
license to use the "Blue Cross" and "Blue Shield" names)
after the word "franchise" in the fifth line thereof.
(ll) Section 8.1 of the Agreement is amended by
replacing the period at the end of subsection (o) thereof
with "; or" and adding the following subsection immediately
thereafter:
"(p) Reserve Default. The Company or any
Subsidiary thereof fails to meet the applicable minimum
statutory reserve requirements of the State of Missouri
or the Company or any Subsidiary thereof fails to meet
the applicable minimum capital benchmark requirements
of Blue Cross and Blue Shield and, in the latter case,
such deficiency shall not be cured within 45 days after
the occurrence thereof."
(mm) Section 10.4 of the Agreement is hereby amended
and restated in its entirety to read as follows:
"10.4 Costs and Expenses. The Company shall:
(a) whether or not the transactions
contemplated hereby are consummated, pay or reimburse
BofA (including in its capacity as Administrative
Agent) within five Business Days after demand (subject
to subsection 4.1(e)) for all costs and expenses
incurred by BofA (including in its capacity as
Administrative Agent) and each Bank in connection with
the development, preparation, delivery, administration
and execution of, and any amendment, supplement, waiver
or modification to (in each case, whether or not
consummated), this Agreement, any Loan Document and any
other documents prepared in connection herewith or
therewith, and the consummation of the transaction
contemplated hereby and thereby including reasonable
Attorney Costs and reasonable fees and costs of Other
Professionals incurred by BofA (including in its
capacity as Administrative Agent) with respect thereto;
and; provided, however, prior to the occurrence of an
Event of Default, (i) Other Professionals shall be
retained only at the request of Majority Banks, (ii)
the selection of such Other Professionals and their
role shall be mutually acceptable to the Company and
the Administrative Agent and (iii) the Company's
liability for the fees and costs of Other Professionals
shall not exceed $100,000;
(b) pay or reimburse the Administrative
Agent, the Arranger and each Bank within five Business
Days after demand (subject to subsection 4.1(e)) for
all costs and expenses (including reasonable Attorney
Costs and all reasonable fees and costs of Other
Professionals) incurred by them in connection with the
enforcement, attempted enforcement, or preservation of
any rights or remedies under this Agreement or any
other Loan Document during the existence of an Event of
Default or after acceleration of the Loans (including
in connection with any "workout" or restructuring
regarding the Loans, and including in any Insolvency
Proceeding or appellate proceeding). For purposes of
this Section 10.4, the term "Other Professionals"
means, collectively, all accountants and consultants
employed, retained or internally used by the
Administrative Agent, the Arranger or any Bank in
performing any of its rights, duties or obligation or
in asserting any of its rights or remedies under this
Agreement or any Loan Document."
3. Representations and Warranties. The Company
represents and warrants to the Banks, the Administrative
Agent and the Co-Agent:
3.1 Authorization. The execution, delivery and
performance of this Sixth Amendment by the Company has been
duly authorized by all necessary corporate action by the
Company and has been duly executed and delivered by the
Company.
3.2 Binding Obligation. This Sixth Amendment and the
Agreement are legal, valid and binding agreements of the
Company, enforceable in accordance with their respective
terms, except to the extent enforceability thereof may be
limited by applicable law relating to bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or limiting creditors' rights generally or by
the application of general principles of equity.
3.3 No Legal Obstacles to Agreements. Neither the
execution of this Sixth Amendment, the making by the Company
of any borrowings under the Agreement, nor the performance
of the Agreement by the Company has constituted or resulted
in or will constitute or result in a breach of the
provisions of any material agreement, or the violation of
any Requirement of Law, or result in the creation under any
material agreement of any security interest, lien, charge,
or encumbrance upon any of the assets of the Company, except
as contemplated by the Agreement. No approval or
authorization of any Governmental Authority is required to
be obtained by the Company to permit the execution, delivery
or performance by the Company of this Sixth Amendment, the
Agreement as amended hereby, or the transactions
contemplated hereby or thereby, or the making of any
borrowing by the Company under the Agreement, except as set
forth on Schedule 5.3 to the Agreement.
3.4 Incorporation of Certain Representations. The
representations and warranties set forth in Article V of the
Agreement are true and correct in all material respects on
and as of the date hereof as though made on and as of the
date hereof except to the extent such representations and
warranties expressly relate to an earlier date, in which
case such representations and warranties were true and
correct in all material respects on and as of such earlier
date.
3.5 Default. No Default or Event of Default under the
Agreement has occurred and is continuing.
4. Conditions, Effectiveness. The effectiveness of
this Sixth Amendment shall be subject to the compliance by
the Company with its agreements herein contained, and to the
delivery of the following to Administrative Agent in form
and substance satisfactory to Administrative Agent:
4.1 Authorized Signatories. A certificate, signed by
the Secretary or an Assistant Secretary of the Company and
dated the date of this Sixth Amendment, as to the incumbency
of the person or persons authorized to execute and deliver
this Sixth Amendment and any instrument or agreement
required hereunder on behalf of the Company.
4.2 Authorizing Resolutions. A certificate, signed by
the Secretary or an Assistant Secretary of the Company and
dated the date of the Sixth Amendment, authorizing the
transactions contemplated by this Sixth Amendment.
4.3 Amendment Fee. Payment to the Administrative
Agent, for the pro rata benefit of each Bank approving this
Sixth Amendment, of an amendment fee in the amount of
$125,000.
4.4 Other Evidence. Such other evidence with respect
to the Company or any other person as the Administrative
Agent or any Bank may reasonably request to establish the
consummation of the transactions contemplated hereby, the
taking of all corporate action in connection with this Sixth
Amendment and the Agreement and the compliance with the
conditions set forth herein.
5. Miscellaneous.
5.1 Effectiveness of the Agreements. Except as hereby
amended, the Agreement shall remain in full force and
effect.
5.2 Waivers. This Sixth Amendment is specific in time
and in intent and does not constitute, nor should it be
construed as, a waiver of any other right, power or
privilege under the Agreement, or under any agreement,
contract, indenture, document or instrument mentioned in the
Agreement; nor does it preclude any exercise thereof or the
exercise of any other right, power or privilege, 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 Agreement,
constitute a waiver of any other default of the same or of
any other term or provision.
5.3 Counterparts. This Sixth 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 Sixth Amendment shall not
become effective until the Company, the Banks, the
Administrative Agent and the Co-Agent shall have signed a
copy hereof, and the HealthLink shall have consented hereto,
whether the same or counterparts, and the same shall have
been delivered to the Administrative Agent.
5.4 GOVERNING LAW. THIS SIXTH AMENDMENT, AND ANY
INSTRUMENT OR AGREEMENT REQUIRED HEREUNDER, SHALL BE
GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF
ILLINOIS; PROVIDED THAT THE ADMINISTRATIVE AGENT AND THE
BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
IN WITNESS WHEREOF, the parties hereto have caused this
Sixth Amendment to be duly executed and delivered by their
proper and duly authorized officers as of the day and year
first above written.
RIGHTCHOICE MANAGED CARE, INC.
By: /s/ Xxxxxx Xxx Xxxxxx
Title: EVP and COO
By: /s/ Xxxx X. X'Xxxxxx
Title: President and CEO
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Administrative Agent
By: /s/ Xxxxxx Xxxxxxx
Title: Vice President, Agency Specialist
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a
Bank
By: /s/ Xxxxxx X. Xxx
Title: Vice President
NATIONSBANK, N.A., as Co-Agent
and as a Bank
By: /s/ Forest Xxxxx Xxxxxxxx
Title: Senior Vice President
THE BANK OF NOVA SCOTIA
By: /s/ X.X. Xxxxx
Title: Vice President
MERCANTILE BANK NATIONAL
ASSOCIATION
By: /s/ Xxx X. Xxxxxxx
Title: Vice President
BANK OF MONTREAL
By:
Title:
CONSENT OF GUARANTOR
The undersigned, as guarantor of the obligations of
RightChoice Managed Care Inc. (the "Company") under the
HealthLink Guaranty dated as of August 10, 1995, hereby
consents to the foregoing Sixth Amendment to Credit
Agreement dated as of even date herewith and confirms that
the HealthLink Guaranty remains in full force and effect
after giving effect thereto and represents and warrants that
there is no defense, counterclaim or offset of any type or
nature thereunder. Capitalized terms used herein have the
meanings specified in the foregoing Sixth Amendment.
Dated as of September 30, 1997
HEALTH LINK, INC.
By: /s/ Xxxx X. X'Xxxxxx
Title: Chairman of the Board
SCHEDULE 2.1
COMMITMENTS AND PRO RATA SHARES
Bank Commitment Pro Rata Share
Bank of America
National Trust and
Savings Association $ 16,000,000 32%
NationsBank, N.A. $ 14,000,000 28%
Bank of Montreal $ 8,000,000 16%
The Bank of
Nova Scotia $ 8,000,000 16%
Mercantile
Bank National
Association $ 4,000,000 8%
TOTAL $ 50,000,000 100%
