Exhibit 10(f)
Amendment to Credit
Agreement
CONFORMED COPY
AMENDMENT NO. 1 TO CREDIT AGREEMENT
AMENDMENT dated as of July 25, 1997 to the Credit Agreement dated as of
January 30, 1997 (the "CREDIT AGREEMENT") among XXXXX HEALTHCARE CORPORATION
(the "BORROWER"), the LENDERS, MANAGING AGENTS and CO-AGENTS party thereto, the
SWINGLINE BANK party thereto, THE BANK OF NEW YORK and THE BANK OF NOVA SCOTIA,
as Documentation Agents, BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Syndication Agent, and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as
Administrative Agent (the "ADMINISTRATIVE AGENT").
W I T N E S S E T H :
WHEREAS, the parties hereto desire to amend the Credit Agreement to (i)
modify the definition of Consolidated EBITDA so that certain charges incurred by
the Borrower in the third and fourth quarters of 1997 and certain non-cash and
merger-related charges that may be incurred by the Borrower will be excluded in
calculating the amount thereof, (ii) exclude the effect of certain charges
incurred in the third and fourth quarters of 1997 on the Borrower's Consolidated
Net Worth for purposes of compliance with the minimum Consolidated Net Worth
covenant and (iii) permit the Borrower to prepay, defease or redeem certain Debt
that is subordinated in right of payment to the Loans;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. DEFINED TERMS; REFERENCES. Unless otherwise specifically defined
herein, each term used herein which is defined in the Credit Agreement has the
meaning assigned to such term in the Credit Agreement. Each reference to
"hereof", "hereunder", "herein" and "hereby" and each other similar reference
and each reference to "this Agreement" and each other similar reference
contained in the Credit Agreement shall, after this Amendment becomes effective,
refer to the Credit Agreement as amended hereby.
SECTION 2. CONSOLIDATED EBITDA. The definition of "Consolidated EBITDA" in
Section 1.01 of the Credit Agreement is amended to read as follows:
"Consolidated EBITDA" means, for any period of four consecutive Fiscal
Quarters, the sum of (i) the consolidated net income of the Borrower and
its Subsidiaries for such period plus (ii) to the extent deducted in
determining such consolidated net income, the sum of (A) interest expense,
(B) income taxes, (C) depreciation and amortization expenses, (D) other
non-cash charges (other than those non-cash charges that reflect a past
expenditure of cash (such as prepaid expenses and other similar charges) or
future expenditure of cash) and (E) merger-related charges, all determined
on a Pro Forma Basis; PROVIDED that Consolidated EBITDA shall be calculated
so as to exclude the effect of (w) any gain or loss that is classified as
extraordinary in accordance with GAAP, (x) any gain or loss from any sale
or other disposition of any Healthcare Facility, any Healthcare Business or
any Equity Interest in any Person and (y) non-recurring charges recorded by
the Borrower in the third and fourth Fiscal Quarters of 1997.
SECTION 3. CONSOLIDATED NET WORTH. Section 5.10 of the Credit Agreement is
amended to read as follows:
Section 5.10. CONSOLIDATED NET WORTH. Consolidated Net Worth will at
no time be less than the sum of (i) $2,750,000,000 PLUS (ii) 75% of the
consolidated net income of the Borrower and its Subsidiaries for each
Fiscal Quarter ended after November 30, 1996, if such consolidated net
income for such Fiscal Quarter is positive (PROVIDED that, for any Fiscal
Quarter when consolidated net income of the Borrower and its Subsidiaries
was reduced as a result of a charge included in clause (iv), consolidated
net income for such Fiscal Quarter shall be calculated to exclude the
after-tax effect of such charge), PLUS (iii) 100% of the amount by which
the consolidated stockholders' equity of the Borrower and its Subsidiaries
is increased after November 30, 1996 as a result of any issuance or sale of
Equity Interests by the Borrower (other than the issuance of common stock
of the Borrower as consideration for the Acquisition), MINUS (iv) the
amount of non-recurring charges (calculated on an after-tax basis) recorded
by the Borrower in the third and fourth Fiscal Quarters of 1997.
SECTION 4. RESTRICTION ON PREPAYING SUBORDINATED DEBT. Section 5.15 of the
Credit Agreement is amended to read as follows:
Section 5.15. RESTRICTION ON PREPAYING SUBORDINATED DEBT. Neither
the Borrower nor any Subsidiary will prepay, defease or purchase, prior to
the date on which it is required by its terms to be repaid, repurchased or
otherwise retired, all or any portion of any Debt of the
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Borrower that is subordinated in right of payment to the Loans; PROVIDED
that (x) the Borrower may prepay, defease or repurchase such Debt in an
aggregate amount not in excess of the net cash proceeds received by the
Borrower from the issue and sale or incurrence of additional subordinated
Debt in the 12 month period prior to, or substantially concurrently with,
such prepayment, defeasance or repurchase, so long as such additional
subordinated Debt has a final maturity after the final maturity of, and a
weighted average life that is longer than the weighted average life of, the
subordinated Debt prepaid, defeased or repurchased, and (y) in addition to
any subordinated Debt prepaid, defeased or repurchased pursuant to clause
(x), the Borrower may prepay, defease or repurchase such Debt so long as
the aggregate cash (or value of property) used therefor, plus the aggregate
amount of Restricted Payments made in accordance with Section 5.12, does
not at any time exceed the sum of (i) $500,000,000 and (ii) 50% of the
Borrower's cumulative consolidated net income for the period (treated as a
single accounting period) commencing June 1, 1998 and ending on the last
day of the last Fiscal Quarter ended prior to the date of such prepayment,
defeasance or repurchase.
SECTION 5. REPRESENTATIONS OF BORROWER. The Borrower represents and
warrants that (i) the representations and warranties of the Borrower set forth
in Article 4 of the Credit Agreement will be true on and as of the Amendment
Effective Date and (ii) no Default will have occurred and be continuing on such
date.
SECTION 6. GOVERNING LAW. This Amendment shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 7. COUNTERPARTS. This Amendment may be signed 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.
SECTION 8. EFFECTIVENESS. This Amendment shall become effective on the date
(the "AMENDMENT EFFECTIVE DATE") when the Administrative Agent shall have
received from each of the Borrower and the Required Lenders a counterpart hereof
signed by such party or facsimile or other written confirmation (in form
satisfactory to the Administrative Agent) that such party has signed a
counterpart hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
XXXXX HEALTHCARE CORPORATION
By: /s/ X.X. XxXxxxxx
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Title: Treasurer
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ Xxxxx X. Xxxxx
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Title: Vice President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxx
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Title: Vice President
THE BANK OF NEW YORK
By: /s/ Xxxx Xxx Xxxxx
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Title: Vice President
THE BANK OF NOVA SCOTIA
By: /s/ Xxxxxxxxxxx Xxxxxxx
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Title: Senior Relationship Manager
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THE INDUSTRIAL BANK OF JAPAN,
LIMITED, LOS ANGELES AGENCY
By: /s/ Xxxx-Xxxx Xxxxxxxxx
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Title: Senior Vice President
ABN AMRO BANK N.V.
LOS ANGELES INTERNATIONAL BRANCH
By: /s/ Xxxx X. Xxxxxxx
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Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Group Vice President/Director
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /s/ Xxx Xxxxxxxx
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Title: Vice President
THE CHASE MANHATTAN BANK
By: /s/ Xxxx Xxx Xxx
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Title: Vice President
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DEUTSCHE BANK NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
By: /s/ Xxxxxxx Xxxxxxx
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Title: Vice President
By: /s/ Xxxx Xxxxxxx
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Title: Vice Presidnet
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD.
By: /s/ T. Xxxxxx Xxxxxxx
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Title: Deputy General Manager
NATIONSBANK OF TEXAS, N.A.
By: /s/ Xxxxxxxxx X. Xxxxx
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Title: Vice President
PNC BANK, N.A.
By: /s/ Xxxxx X. Xxxxxx
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Title: Vice President
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THE SANWA BANK LIMITED, DALLAS AGENCY
By: /s/ Xxxx Xxxxxxxx
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Title: Vice President
SOCIETE GENERALE
By: /s/ X. Xxxxxx Xxxxxxx
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Title: Vice President
THE SUMITOMO BANK, LIMITED
By: /s/ Xxxx Xxxxx
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Title: Joint General Manager
TORONTO DOMINION (TEXAS), INC.
By: /s/ Xxxxxxx Xxxxxx
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Title: Vice President
WACHOVIA BANK OF GEORGIA, N.A.
By: /s/ T. Xxxxx Xxxxx, XX
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Title: Vice President
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COMMERZBANK AG
LOS ANGELES BRANCH
By: /s/ Xxxx Xxxxxxxx
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Title: Vice President
By: /s/ Xxxx Xxxxxxxx
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Title: Assistant Treasurer
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Farboud Tavangar
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Title: First Vice President
THE DAI-ICHI KANGYO BANK, LTD.
LOS ANGELES AGENCY
By: /s/ Xxxxxxxxx Xxxxxxxxx
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Title: Senior Vice President & Joint
General Manager
THE FUJI BANK, LIMITED
By: /s/ X. Xxxxxxx
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Title: Joint General Manager
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KREDIETBANK N.V.
By: /s/ Xxxxxx Xxxxxxxx
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Title: Vice President
By: /s/ Xxxx X. Xxxxx
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Title: Vice President
BANK OF MONTREAL
By: /s/ Xxxxx X. Xxxxxxxx
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Title: Director
BANQUE PARIBAS
By: /s/ Xxxx X. Xxxxxx
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Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: General Manager
CORESTATES BANK, N.A.
By: /s/ Xxxxxxx X. XxXxxxx
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Title: Vice President and Team Leader
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CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxxx X. Xxxxxxxxxxx
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Title: Managing Director
By: /s/ Xxxx X. Xxxxxxx
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Title: Vice President
SUMITOMO BANK OF CALIFORNIA
By: /s/ Xxxxx Xxx
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Title: Vice President
THE ROYAL BANK OF SCOTLAND plc
By: /s/ X. Xxxxxx
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Title: Vice President
HIBERNIA NATIONAL BANK
By: /s/ Xxxxxxxxxxx X. Xxxxx
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Title: Assistant Vice President
THE SUMITOMO TRUST & BANKING
COMPANY LTD. NEW YORK BRANCH
By: /s/ Xxxxx X. Xxxxxx
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Title: Senior Vice President, Manager
Corporate Finance Department
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BANQUE FRANCAISE DU COMMERCE EXTERIEUR
By: /s/ Xxxxxx Touffu
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Title: First VP and Regional Manager
By: /s/ Xxxx X. Xxxxx
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Title: Vice President
BHF-BANK AKTIENGESELLSCHAFT
By: /s/ Xxx Xxxxxxxxxxx
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Title: Assistant Vice President
By: /s/ Xxxx X. Xxxxx
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Title: Assistant Vice President
MICHIGAN NATIONAL BANK
By: /s/ Xxxxx X. Xxxxxxxx
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Title: Vice President/Relationship Manager
THE TOYO TRUST & BANKING CO., Ltd.
By: /s/ Xxxxx Xxxxxxxx
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Title: General Manager
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THE TOKAI BANK LIMITED, LOS ANGELES AGENCY
By: /s/ Xxxxxx Xxxxxxxx
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Title: Joint General Manager
UNITED STATES NATIONAL BANK OF OREGON
By: /s/ Xxxx Xxxxxxxx
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Title: Vice President
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