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EXHIBIT 10.1
AMENDMENT NO. 2 TO CREDIT AGREEMENT
THIS AMENDMENT AGREEMENT is made and entered into as of this 22nd day of
July, 1997, by and among MEDPARTNERS, INC., a Delaware corporation as Borrower,
NATIONSBANK, NATIONAL ASSOCIATION (successor by merger of 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;
WITNESSETH:
WHEREAS, the parties hereto have entered into a Credit Agreement dated as
of September 5, 1996, as amended (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; and
WHEREAS, the Agents and the Lenders, subject to the terms and conditions
hereof, are willing to make such amendments, 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:
"'Eligible Subordinated Debt' means Subordinated Debt of the
Borrower for which a like amount of United States Treasury Securities
are held by a collateral agent as security for the obligation of TAPS
Investors to purchase common stock of the Borrower."
"'Subordinated Debt' means any unsecured Indebtedness of the
Borrower (other than inter-company Indebtedness) which is
subordinated in right of payment in all aspects to the Obligations
in a manner acceptable to the Required Lenders."
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"'TAPS' means Threshold Appreciation Price Securities issued by the
Borrower to a TPS Investor, the proceeds of which are used to acquire United
States Treasury Securities which are pledged to secure the obligation of a TAPS
Investor to purchase common stock of the Borrower at a future date."
"'TAPS Investor' means the purchaser of a TAPS which purchaser shall have
simultaneously with purchasing a TAPS entered into a contract to purchase
common stock of Borrower at a future date."
"'TAPS Payment' means subordinated yield enhancement payments which are
made by the Borrower to the TAPS Investor pursuant to a purchase contract
providing for the future purchase of common stock of the Borrower by a TAPS
Investor."
(b) The definition of "Consolidated EBITDA" in Section 1.1. is hereby
amended (i) by deleting the word "and" at the end of clause (C), (ii) by adding
a comma and the word "and" immediately before the word "plus" at the end of
clause (D), and a new clause (E) reading as follows:
"(E) adding back up to (x) a $45,000,000 settlement payment made to
Coram in settlement of the Coram Litigation and (y) all legal fees and
other out-of-pocket expenses incurred in connection with the Coram
Litigation"
(c) The definition of "Consolidated Indebtedness" in Section 1.1 is
hereby amended in its entirety so that as amended it shall read as follows:
"'Consolidated Indebtedness' means all Indebtedness, excluding
Eligible Subordinated Debt, of the Borrower and its Subsidiaries, all
determined on a consolidated basis."
(d) The definition of "Consolidated Interest Expense" in Section 1.1 is
hereby amended (i) by deleting the word "and" at the end of clause (iii), (ii)
by adding the word "and" at the end of clause (iv) immediately preceding the
word "all" and a new clause (v) reading as follows:
"(v) all interest paid with respect to Eligible Subordinated Debt and
all TAPS Payments,"
(e) Clause (e) of Section 8.4 is hereby amended in its entirety so that as
amended it shall read as follows:
"(e) unsecured intercompany indebtedness for loans and advances made
by the Borrower or any Subsidiary to the Borrower or any Subsidiary;"
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(f) Clause (c) of Section 8.5 is amended in its entirety so that as
amended it shall read as follows:
"(c) sale of assets of the Borrower and its Subsidiaries so long as
such assets have an aggregate book value not exceeding (x) three percent
(3%) of Consolidated Total Assets in any single instance or (Y) five
percent (5%) of Consolidated Total Assets in the aggregate from the
Closing Date through the Revolving Credit Termination Date;"
(g) Clause (e) of Section 8.6 is hereby amended in its entirety so that
as amended it shall read as follows:
"(e) investment in Subsidiaries other than pursuant to an
Acquisition permitted under Section 8.2 so long as (i) such Subsidiary is
engaged in substantially the same line of business as Borrower, (ii) no
Default or Event of Default shall have occurred and be continuing either
immediately prior to or immediately after giving effect to the creation of
such Subsidiary, (iii) if the amount of cash or assets invested in such
Subsidiary have a fair market value in excess of $75,000,000 the Borrower
shall have furnished to the Administrative Agent and the Lenders a
Compliance Certificate prepared on a historical pro forma basis giving
effect to the creation of such Subsidiary which certificate shall
demonstrate that no Default or Event of Default would exist and (iv) if
the amount of cash or assets invested in such Subsidiary have a fair
market value in excess of $150,000,000 the Required Lenders shall have
consented to the creation of such Subsidiary;"
(h) Clause (g) of Section 8.6 is hereby amended in its entirety so that
as amended it shall read as follows:
"(g) additional investments in Persons not constituting Subsidiaries
engaged in the delivery of health care services, which investments shall
at no time exceed in the aggregate two percent (2%) of Consolidated Total
Assets;"
(i) Schedule 6.4 to the Agreement is hereby amended by adding thereto
the Supplement to Schedule 6.4 attached to this Amendment Agreement.
3. Representations and Warranties. The Borrower hereby represents and
warrants it:
(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,
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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.
4. Conditions. This Amendment Agreement shall become effective upon
satisfaction of all 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;
(ii) the Administrative Agent shall receive the written consent to this
Amendment Agreement of the Agents and the Required Lenders; and
(iii) 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.
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5. 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 warrant, 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.
6. Full Force and Effect of Agreement. Except as hereby specifically
amended, modified or supplemented, the Credit Agreement and all of the other
Loan Documents are hereby confirmed and ratified in all respects and shall
remain in full force and effect according to their respective terms.
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:
/s/ By:/s/ Xxxxx X. Xxxxxxx, XX
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Name: Xxxxx X. Xxxxxxx, XX
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/s/ TITLE: VP Finance-Treasurer
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NATIONSBANK, NATIONAL ASSOCIATION, as
Administrative Agent for the Lenders
By:/s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Title: Sr. Vice President
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THE FIRST NATIONAL BANK OF CHICAGO, as
Documentation Agent for the Lenders
By:/s/ Xxx X. Xxxxxxxx
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Name: Xxx X. Xxxxxxxx
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Title: Asst Vice President
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THE FIRST NATIONAL BANK OF CHICAGO
By:/s/ Xxxxx S/ Xxxx
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Name: Xxxxx X. Xxxx
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Title: Sr. Vice President
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THE FIRST NATIONAL BANK OF CHICAGO
By:/s/ Xxx X. Xxxxxxxx
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Name: Xxx X. Xxxxxxxx
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Title: Asst. Vice President
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CREDIT LYONNAIS NEW YORK BRANCH, Managing Agent
By: /s/ X. Xxxxxxxx
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Name: Farboud Tavangar
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Title: First Vice President
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XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
Managing Agent
By:/s/ Penelope X. X. Xxx
----------------------
Name: Penelope X. X. Xxx
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Title: Vice President
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BANK OF AMERICA NT & SA, Co-Agent
By: /s/ Xxxxxx X. Xxx
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Name: Xxxxxx X. Xxx
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Title: Vice President
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Scotiabanc Inc., Co-Agent
By: /s/Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
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Title: Relationship Manager
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THE INDUSTRIAL BANK OF JAPAN, LIMITED, Co-Agent
By: /s/Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
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Title: Senior Vice President and
Deputy General Manager
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XXXXXXX XXXXX MORTGAGE
By:
----------------------------------
Name:
----------------------------------
Title:
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XXXXXXX XXXX XX XXXXXXX
By: /s/Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------------------
Title: Vice President
-----------------------------------
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BANKERS TRUST COMPANY
By:/s/ Xxxxxxxx Xxxxx
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Name: Xxxxxxxx Xxxxx
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Title: Vice President
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THE DAI-ICHI KANGYO BANK, LIMITED
ATLANTA AGENCY
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
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Title: Joint General Manager
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DEUTSCHE BANK AG NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By: /s/ Andreas Dimagi /s/ Xxxx Xxxxxxx
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Name: Andreas Dimagi Xxxx Xxxxxxx
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Title: Vice President Vice President
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THE FUJI BANK, LTD. - ATLANTA AGENCY
By: /s/ Xxxxxxxxx Xxxxxx
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Name: Xxxxxxxxx Xxxxxx
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Title: Senior Vice President and Senior Manager
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THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Title: Joint General Manager
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MELLON BANK, N.A.
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Title: VP
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PNC BANK, KENTUCKY, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxxxx
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Title: Vice President
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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: /s/ Xxxxxxxx Xxxxxxxxx
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Name: XXXXXXXX XXXXXXXXX
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Title: JOINT GENERAL MANAGER
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WACHOVIA BANK OF GEORGIA
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: Banking Officer
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THE MITSUI TRUST AND BANKING COMPANY, LIMITED
By: /s/ Xxxxxxxx Xxxxxxxx
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Name: XXXXXXXX XXXXXXXX
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Title: VICE PRESIDENT & MANAGER
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THE YASUDA TRUST AND BANKING COMPANY,
LIMITED, NEW YORK BRANCH
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
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Title: Chief Representative
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ABN AMRO BANK N.V.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: Group Vice President
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By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
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Title: Vice President
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THE SUMITOMO TRUST AND BANKING CO., LTD.
NEW YORK BRANCH
By: /s/ Xxxxx X. Xxxxxx
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Name: XXXXX X. XXXXXX
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Title: SENIOR VICE PRESIDENT
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MANAGER, CORPORATE FINANCE DEPT.
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THE MITSUBISHI TRUST AND BANKING CORPORATION
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
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Title: Deputy General Manager
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BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Vice President
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XXXXX XXXX XX XXXXXXXXXX, N.A.
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
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Title: Vice President
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THE SAKURA BANK, LIMITED
By: /s/ Xxxxxxxx Xxxxxxxxx
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Name: Xxxxxxxx Xxxxxxxxx
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Title: General Manager
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SCHEDULE 6.4
MEDPARTNERS, INC.
INVESTMENTS
EQUITY INVESTMENTS:
Apache Medical Systems, Inc.
Form of entity: Delaware corporation
Ownership: 18% Preferred Stock by Caremark Inc.
Arcon Healthcare Inc.
Form of entity: Tennessee corporation
Ownership: 166,667 shares Series B Convertible Preferred Stock by
MedPartners, Inc.
Oncology Affiliates, Inc.
Form of entity: Delaware corporation
Authorized stock: 10,000,000 shares Common Stock and 5,000,000 shares
Preferred Stock, $.001 par value
Ownership: 187,463 shares Series A Preferred Stock by MedPartners,
Inc.
Preferred Oncology Networks of America, Inc.
Form of entity: Georgia Corporation
Ownership: 21,666 shares Class A Common Stock [less than 5% Common
Stock by Caremark Inc. (actual ownership percentage to
be determined by IPO transaction, to provide shares
representing $6,050,000)]
Spectrascan Imaging Services, Inc.
Form of entity: Connecticut corporation
Ownership: 22% Common Stock, 9.2% Preferred-A Stock, 47%
Preferred-B Stock, 40% Preferred-C Stock and
21.4% Warrants by Caremark Inc.
Technology Assessment Group
Form of entity: California general partnership
Ownership: 24% general partnership interest by Caremark
International Inc.
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SUPPLEMENT TO
SCHEDULE 6.4
MEDPARTNERS, INC.
INVESTMENTS
NOTES RECEIVABLE:
Atlanta Medical
Coram Healthcare Corporation (Convertible, Non-convertible, and PIK Notes)
Family Physicians
Health Source
High Desert Primary Care
Preferred Oncology Networks
of America
Sierra Xxxxxxx
Space Coast Orthopaedic
Xxxxxxx X. Xxxxxxxxxxx, MD
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