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SECOND AMENDMENT TO
CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Second Amendment")
dated as of April 21, 1997 is entered into by and among WELLPOINT HEALTH
NETWORKS INC., a California corporation (the "Company"), each of the financial
institutions that is a signatory hereto (the "Banks"), BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, as administrative and bid agent for the Banks
(in such capacity, the "Administrative Agent"), NATIONSBANK OF TEXAS, N.A., as
syndication agent for the Banks (in such capacity, the "Syndication Agent"),
and CHASE MANHATTAN BANK, as documentation agent for the Banks (in such
capacity the "Documentation Agent") and amends that certain Credit Agreement
dated as of May 15, 1996 among the Company, the Banks, the Administrative
Agent, Syndication Agent and the Documentation Agent, as amended by a First
Amendment to Credit Agreement dated as of June 28, 1996 (as so amended, the
"Agreement").
RECITALS
A. Pursuant to Section 2.05(a) of the Agreement, the Company has
notified the Agent that it desires to reduce the Aggregate Commitment from
$1,250,000,000 to $1,000,000,000.
B. The Company has requested that the minimum Fixed Charge Coverage
Ratio be reduced as set forth herein during the periods indicated herein.
C. The Company has requested that any disclosure of confidential
information by any Bank to its Affiliates be solely for purposes related to the
Loan Documents.
D. The Banks and the Agents are willing to amend and waive
provisions of the Agreement to permit the foregoing, all on the terms and
conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. Terms. All terms used herein shall have the same meanings as in
the Agreement unless otherwise defined herein.
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All references to the Agreement shall mean the Agreement as hereby amended.
2. Reduction in Aggregate Commitment. Pursuant to the Company's
notice pursuant to Section 2.05(a) of the Agreement, the Banks and the Agents
hereby acknowledge that, effective as of date hereof, the Aggregate Commitment
is reduced to $1,000,000,000, and such reduction is applied to each Bank's
Commitment in accordance with its Pro Rata Share. The Company agrees to pay
all accrued Facility Fees on the portion of the Aggregate Commitment so reduced
on the date hereof.
3. Amendments to Agreement. The Agents and the Banks hereby agree
that the Agreement is amended as follows:
3.1 The definition of "Aggregate Commitment" in Section 1.01 of the
Agreement is amended and restated in its entirety as follows:
"'Aggregate Commitment' means the combined Commitments of the
Banks, in the amount of $1,000,000,000, as such amount may be reduced
from time to time pursuant to this Agreement."
3.2 Section 8.09 of the Agreement is amended and restated in its
entirety as follows:
"8.09 Fixed Charge Coverage Ratio. As of the end of each
fiscal quarter, the Company shall not permit its Fixed Charge
Coverage Ratio to be less than (a) 3.00 to 1 for the fiscal quarter
ending December 31, 1996, (b) 2.75 to 1 for the fiscal quarters
ending March 31, 1997, June 30, 1997, September 30, 1997 and December
31, 1997, and (c) 3.00 to 1 for each fiscal quarter ending
thereafter."
3.3 The last sentence in Section 11.08(e) of the Agreement is
amended by inserting the following after "(a) any Affiliate of such Bank:"
"in connection with enforcing or administering the Loan Documents"
3.5 Schedule 2.01 to the Agreement is amended and restated in its
entirety in the form of Schedule 2.01 to this Second Amendment.
3.6 The computation of "Leverage Ratio" in Attachment 1 to Exhibit F
to the Agreement (Compliance Certificate) is
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amended and restated in its entirety in the form of Attachment 1 hereto.
4. Representations and Warranties. The Company represents and
warrants to the Banks and the Agents that, on and as of the date hereof, and
after giving effect to this Second Amendment:
4.1 Authorization. The execution, delivery and performance of this
Second Amendment have been duly authorized by all necessary corporate action by
the Company and this Second Amendment has been duly executed and delivered by
the Company.
4.2 Binding Obligation. This Second Amendment is the legal, valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability.
4.3 No Legal Obstacle to Amendment. The execution, delivery and
performance of this Second Amendment will not (a) contravene the terms of the
Company's articles of incorporation, by-laws or other organization document;
(b) conflict with or result in any breach or contravention of, or the creation
of any Lien under, any document evidencing any Contractual Obligation to which
the Company is a party or any order, injunction, writ or decree of any
Governmental Authority to which the Company or its Property is subject; or (c)
violate any Governmental Rules where such violation would reasonably be
expected to have a Material Adverse Effect. No approval, consent, exemption,
authorization of other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by the Company of this Second Amendment, or
the transactions contemplated thereby.
4.4 Incorporation of Certain Representations. The representations
and warranties of the Company set forth in Article VI of the Agreement are true
and correct in all respects on and as of the date hereof as though made on and
as of the date hereof, except (a) to the extent such representations and
warranties expressly refer to an earlier date, in which case they shall be true
and correct as of such earlier date and (b) that the representations and
warranties in Sections 6.11(b) and (c) shall be deemed to exclude any Material
Adverse Effect that may have occurred solely as a result of the
Recapitalization.
4.5 Default. No Default or Event of Default under the Agreement has
occurred and is continuing.
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5. Conditions, Effectiveness. The effectiveness of this Second
Amendment shall be subject to the compliance by the Company with its agreements
herein contained, and to the delivery of the following to the Administrative
Agent in form and substance satisfactory to the Administrative Agent on or
prior to the date that this Second Amendment becomes effective (the "Second
Amendment Effective Date"):
5.1 Corporate Resolutions. A copy of a resolution or resolutions
passed by the Board of Directors of the Company, certified by the Secretary or
an Assistant Secretary of the Company as being in full force and effect on the
date hereof, authorizing the amendments to the Agreement herein provided for
and the execution, delivery and performance of this Second Amendment and any
note or other instrument or agreement required hereunder.
5.2 Authorized Signatories. A certificate, signed by the Secretary
or an Assistant Secretary of the Company dated as of the date hereof, as to the
incumbency of the person or persons authorized to execute and deliver this
Second Amendment and any instrument or agreement required hereunder on behalf
of the Company.
5.3 Accrued Facility Fees. All accrued Facility Fees on the
$250,000,000 reduction in the Aggregate Commitment contemplated by this Second
Amendment to, but not including the Second Amendment Effective Date.
5.4 Amendment Fee. An amendment fee of $100,000 for the benefit of
the Banks in accordance with their respective Pro Rata Shares.
5.5 Effectiveness of Second Amendment to Subordinated Term Loan
Agreement. The Second Amendment dated as of even date herewith to the
Subordinated Term Loan Agreement dated as of November 21, 1996, among the
Company, the banks party thereto and Bank of America National Trust and Savings
Association, as the administrative agent, amending the minimum fixed charge
coverage ratio set forth therein in the same manner as the minimum Fixed Charge
Coverage Ratio is amended in Section 4.4 of this Second Amendment, shall have
become, or concurrently herewith is becoming, effective.
5.6 Other Evidence. Such other evidence with respect to the Company
or any other person as any Bank may reasonably request in connection with this
Second Amendment and the compliance with the conditions set forth herein.
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6. Miscellaneous.
6.1 Effectiveness of Agreement. Except as hereby expressly amended,
the Agreement and each other Loan Document shall each remain in full force and
effect, and are hereby ratified and confirmed in all respects on and as of the
date hereof.
6.2 Waivers. This Second 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 Loan Documents, or under any
agreement, contract, indenture, document or instrument mentioned in the Loan
Documents; 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 Loan Documents, constitute a
waiver of any other default of the same or of any other term or provision.
6.3 Counterparts; Majority Banks. This Second 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
Second Amendment shall not become effective until the Company, the Majority
Banks and the Agents shall have signed a copy hereof, whether the same or
counterparts, and the same shall have been delivered to the Administrative
Agent.
6.4 Jurisdiction. This Second Amendment shall be governed by and
construed under the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed and delivered as of the date first written above.
WELLPOINT HEALTH NETWORKS INC.
By: /s/ Xxxxxx X. Phanatiel
----------------------------------------
Name: Xxxxxx X. Phanatiel
--------------------------------------
Title: Executive Vice President
-------------------------------------
(Signatures continue)
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as
Administrative Agent
By:________________________________________
Xxxxxxxxx Xxxxx
Vice President
NATIONSBANK OF TEXAS, N.A., as
Syndication Agent and as a Bank
By:________________________________________
Xxxxxxxxx X. Xxxxx
Vice President
CHASE MANHATTAN BANK, as
Documentation Agent and as a Bank
By:________________________________________
Xxxx Xxx Xxx
Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank
By:________________________________________
Xxx Xxxxxxxx-Xxxxxx
Vice President
ABN AMRO BANK N.V.
Los Angeles International Branch,
as a Bank and as a Co-Agent
By:________________________________________
Name:
Title:
By:________________________________________
Name:
Title:
(Signatures continue)
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THE BANK OF NEW YORK,
as a Bank and as a Co-Agent
By: _______________________________________
Xxxx X. Xxxxx
Vice President
THE BANK OF NOVA SCOTIA,
as a Bank and as a Co-Agent
By: _______________________________________
Name: Xxxx X. Xxxxxxxxxx
Title: Relationship Manager
BANQUE NATIONALE DE PARIS,
as a Bank and as a Co-Agent
By: _______________________________________
Name:
Title:
By: _______________________________________
Name:
Title:
DEUTSCHE BANK AG
New York Branch and/or
Cayman Islands Branch,
as a Bank and as a Co-Agent
By: _______________________________________
Name:
Title:
By: _______________________________________
Name:
Title:
(Signatures continue)
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XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as a Bank and as a Co-Agent
By: ______________________________________
Name:
Title:
THE LONG-TERM CREDIT BANK OF JAPAN,
as a Bank and as a Co-Agent
By: ______________________________________
Name:
Title:
BANCA DI ROMA
By: ______________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By: ______________________________________
Name:
Title:
KREDIETBANK NV
By: ______________________________________
Name:
Title:
(Signatures continue)
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COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A. "RABOBANK
NEDERLAND" NEW YORK BRANCH
By: _______________________________________
Name:
Title:
By: _______________________________________
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By: _______________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON
By: _______________________________________
Name:
Title:
By: _______________________________________
Name:
Title:
THE SANWA BANK, LIMITED
By: _______________________________________
Name:
Title:
(Signatures continue)
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THE SUMITOMO BANK, LIMITED
By: _______________________________________
Name:
Title:
SWISS BANK CORPORATION
By: _______________________________________
Name:
Title:
By: _______________________________________
Name:
Title:
BANK OF MONTREAL
By: _______________________________________
Name:
Title:
BANKERS TRUST COMPANY
By: _______________________________________
Name:
Title:
CIBC INC.
By: _______________________________________
Name:
Title:
(Signatures continue)
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CREDIT LYONNAIS
New York Branch
By: _______________________________________
Name:
Title:
THE DAI-ICHI KANGYO BANK, LTD.
Los Angeles Agency
By: _______________________________________
Name:
Title:
FLEET NATIONAL BANK
By: _______________________________________
Name:
Title:
THE FUJI BANK, LIMITED
By: _______________________________________
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LTD.
Los Angeles Agency
By: _______________________________________
Name:
Title:
MELLON BANK, N.A.
By: _______________________________________
Name:
Title:
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SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
Pro Rata
Bank Commitment Share
----- ---------- --------
Bank of America National Trust
and Savings Association $ 76,000,000 7.6%
NationsBank of Texas, N.A. 68,000,000 6.8%
Chase Manhattan Bank 58,000,000 5.8%
ABN AMRO Bank N.V. 50,000,000 5.0%
The Bank of New York 50,000,000 5.0%
The Bank of Nova Scotia 50,000,000 5.0%
Banque National de Paris 50,000,000 5.0%
Deutsche Bank AG 50,000,000 5.0%
The Long-Term Credit Bank
of Japan, Ltd. 50,000,000 5.0%
Xxxxxx Guaranty Trust Company
of New York 50,000,000 5.0%
Credit Lyonnais 28,000,000 2.8%
The Dai-Ichi Kangyo Bank 28,000,000 2.8%
The First National Bank of Chicago 28,000,000 2.8%
Fleet National Bank 28,000,000 2.8%
The Fuji Bank, Limited 28,000,000 2.8%
The Industrial Bank of Japan, Ltd. 28,000,000 2.8%
Mellon Bank, N.A. 28,000,000 2.8%
Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A.
"Rabobank Nederland" New York Branch 28,000,000 2.8%
The Sanwa Bank Limited 28,000,000 2.8%
The Sumitomo Bank, Limited 28,000,000 2.8%
Union Bank of California, N.A. 28,000,000 2.8%
Banca di Roma 20,000,000 2.0%
Bank of Montreal 20,000,000 2.0%
Bankers Trust Company 20,000,000 2.0%
CIBC Inc. 20,000,000 2.0%
Credit Suisse First Boston 20,000,000 2.0%
Kredietbank NV 20,000,000 2.0%
Swiss Bank Corporation 20,000,000 2.0%
-------------- -----
TOTAL $1,000,000,000 100.0%
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ATTACHMENT 1
LEVERAGE RATIO
1. Indebtedness: $__________
2. Operating Lease expense,
multiplied by eight: $__________
3. Contingent Obligations re
Funded Debt of Others: $__________
4. Funded Debt Total (Lines: 1 + 2 + 3): $__________
A B
Acquired
EBITDAR EBITDAR
-------- -------
5. Consolidated pre-tax net
income (exclusive of extra
ordinary gains or losses): $__________ $__________
6. Interest Expense: $__________ $__________
7. Amortization: $__________ $__________
8. Depreciation: $__________ $__________
9. Operating Lease expense: $__________ $__________
10. Pre-tax non-cash Restructuring
charges (up to $__________50,000,000): $__________
11. Acquired EBITDAR (Lines 5A+6A+7A+8A+9A): $__________
12. EBITDAR (Lines 5B+6B+7B+8B+9B+10B): $__________
13. Acquired EBITDAR and EBITDAR
(Lines 11 + 12): $__________
14. Leverage Ratio (Line 4 / Line 13): ____ to 1.00
15. Maximum Leverage Ratio:
For the period from January 1,
1997 through December 31, 1997: 2.25 to 1.00
Thereafter: 2.00 to 1.00
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