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EXHIBIT 10.7
FIFTH AMENDMENT TO SECOND
AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT (this "Amendment") to the Second Amended and
Restated Credit Agreement referred to below is made as of October 28, 1999 by
and among NEW AMERICAN HEALTHCARE CORPORATION, a Delaware corporation (the
"Borrower"), TORONTO DOMINION (TEXAS), INC., as agent for the financial
institutions party hereto (in such capacity, the "Agent"), THE TORONTO-DOMINION
BANK, as Issuing Bank and THE FINANCIAL INSTITUTIONS PARTY HERETO
(collectively, the "Banks", individually, a "Bank").
W I T N E S S E T H
WHEREAS, the Borrower, the Agent, the Issuing Bank and the Banks are
party to that certain Second Amended and Restated Credit Agreement, dated as of
May 14, 1999 (as amended, supplemented or otherwise modified from time to time,
prior to the date hereof, the "Credit Agreement");
WHEREAS, the Agent, the Issuing Bank and the Majority Banks have agreed
to amend the Credit Agreement in the manner, and on the terms and conditions,
set forth herein; and
WHEREAS, the Agent, the Issuing Bank and the Majority Banks have agreed
to consent, on the terms and conditions provided for herein, to the postponement
of a certain mandatory prepayment required under the Credit Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. CERTAIN DEFINITIONS. Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed to them in the Credit Agreement.
2. AMENDMENT. Section 8.11 of the Credit Agreement is hereby amended by
deleting the first sentence thereof in its entirety and inserting in lieu
thereof a new sentence to read as follows:
"The Borrower and its Subsidiaries shall not during any fiscal year
make Capital Expenditures other than in the amounts, at the times
and for the purposes identified in the Capital Expenditures Budget
attached hereto as SCHEDULE 8.11, provided, however, that, with the
prior written consent of Agent, Borrower may make Capital
Expenditures for items not identified in the Capital Expenditure
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Budget and/or in excess of the amounts set forth therein up to an
aggregate amount not to exceed $250,000 in any fiscal year."
3. CONSENT. In accordance with Section 2.3(c)(iv) of the Credit
Agreement, the Majority Banks hereby consent to the extension of the mandatory
prepayment of $12,000,000, which is otherwise due on or before October 31, 1999,
to February 28, 2000.
4. RATIFICATION OF CREDIT AGREEMENT. The Credit Agreement and the other
Loan Documents shall continue to be in full force and effect in accordance with
their respective terms and, except as expressly provided herein, shall be
unmodified. In addition, except as expressly provided herein, this Amendment
shall not be deemed a waiver of any term or condition of any Loan Document by
the Agent or the Banks with respect to any right or remedy which the Agent or
the Banks may now or in the future have under the Loan Documents, at law or in
equity or otherwise or be deemed to prejudice any rights or remedies which the
Agent or the Banks may now have or may have in the future under or in connection
with any Loan Document or under or in connection with any Incipient Default or
Event of Default which may now exist or which may occur after the date hereof.
Except as expressly provided herein, the Credit Agreement and all other Loan
Documents are hereby in all respect ratified and confirmed.
5. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
warrants to the Banks that it is not aware of any Incipient Default or Event of
Default except for those disclosed in writing to Agent. Borrower acknowledges
that the Banks are relying on the foregoing representation and warranty in
making their decision to enter into this Amendment.
6. OUTSTANDING INDEBTEDNESS; WAIVER OF CLAIMS. The Borrower hereby
acknowledges and agrees that as of October 28, 1999 the outstanding principal
amount of the Loan is $102,733,072.26 and that such principal amount is payable
pursuant to the Credit Agreement without defense, offset, withholding,
counterclaim or deduction of any kind. The Borrower hereby further acknowledges
that it has no Claims (as hereinafter defined) against the Agent, the Issuing
Bank or the Banks and their respective employees, agents, representatives,
consultants, attorneys, fiduciaries, servants, officers, directors, partners,
predecessors, subsidiary corporations, parent corporations and related corporate
divisions and their respective successors and assigns (all of the foregoing
being the "Indemnified Person") and hereby waives, releases, remises and forever
discharges Agent, the Issuing Bank, each Bank and each other Indemnified Person
from any and all Claims of any and every character, known or unknown, direct
and/or indirect, at law or in equity, of whatsoever kind or nature, whether
heretofore or hereafter arising, for or because of any matter or things done,
omitted or suffered to be done by any Indemnified Person prior to and including
the date hereof, and in any way directly or indirectly arising out of or in any
way connected to the Credit Agreement or any other Loan Document. For purposes
hereof, "Claims" shall mean all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits or claims which may be instituted or
asserted against or incurred by such Indemnified Person as the result of credit
having been extended under the Credit Agreement or
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any other Loan Document or otherwise arising in connection with the transactions
contemplated thereunder.
7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8. EFFECTIVENESS. This Amendment shall become effective upon receipt by
the Agent of nine original copies of this Amendment duly executed and delivered
by the Borrower, the Agent, the Issuing Bank and the Majority Banks.
9. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be an original with the same effect as if the
signatures thereto and hereto were upon the same instrument.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, each of the parties hereto has executed this
Amendment as of date and year first above written.
NEW AMERICAN HEALTHCARE CORPORATION
By: /s/ Xxxx X. XxXxxxxxx, Xx.
------------------------------------
Name: Xxxx X. XxXxxxxxx, Xx.
Title: Senior Vice President-CAO
TORONTO DOMINION (TEXAS), INC.,
As Agent and a Bank
By:
------------------------------------
Name:
Title:
THE TORONTO-DOMINION BANK,
as Issuing Bank
By:
------------------------------------
Name:
Title:
BANK OF AMERICA, N.A. F/K/A
NATIONSBANK, N.A.
By:
------------------------------------
Name:
Title:
[SIGNATURES CONTINUED ON NEXT PAGE]
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FIRST UNION NATIONAL BANK
By:
------------------------------------
Name:
Title:
FIRST AMERICAN NATIONAL BANK
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Senior Vice President
NATIONAL CITY BANK OF KENTUCKY
By:
------------------------------------
Name:
Title:
BANK ONE, N.A.
By:
------------------------------------
Name:
Title:
AMSOUTH BANK
By:
------------------------------------
Name:
Title:
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The undersigned Guarantors hereby (i) acknowledge
and consent to the amendments to the Credit
Agreement effected by this Amendment and (ii)
confirm and agree that their obligations under their
respective Guaranties shall continue without any diminution
thereof and shall remain in full force and effect on and after
the effectiveness of this Amendment.
NAHC OF MISSOURI, INC.
NAHC OF TEXAS, INC.
NAHC II OF TEXAS, INC.
NAHC FINANCIAL, INC.
NAHC OF IOWA, INC.
NAHC OF OREGON, INC.
NAHC II OF OREGON, INC.
NAHC III OF OREGON, INC.
NAHC OF WYOMING, INC.
NAHC COMPANY, INC.
NAHC GEORGIA HOLDINGS, INC.
NAHC OF MISSISSIPPI, INC.
NAHC OF WASHINGTON, INC.
MEMORIAL HOSPITAL OF ADEL, INC.
By: /s/ Xxxx X. XxXxxxxx, Xx.
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Name: Xxxx X. XxXxxxxx, Xx.
Title: Vice President-Sec
NAHC LIMITED PARTNERSHIP
By: New American Healthcare Corporation,
Its General Partner
By: /s/ Xxxx X. XxXxxxxx, Xx.
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Name: Xxxx X. XxXxxxxx, Xx.
Title: Senior Vice President-CAO
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WELSH, CARSON, XXXXXXXX & XXXXX VII, L.P.
By: WCAS VII Partners,
as General Partner
By:
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Name:
Title:
