EXHIBIT 10.32
AMENDMENT NO. 1
THIS AMENDMENT NO. 1, dated as of November 15, 2006 ("Amendment No. 1")
among COMPBENEFITS CORPORATION, a Delaware corporation (the "Borrower"), the
Lenders (as defined below) and BANK OF AMERICA, N.A., as Administrative Agent
(in such capacity, the "Administrative Agent") for the Lenders.
The Borrower is a party to the Senior Amended and Restated Credit
Agreement, dated as of April 13, 2006, (the "Credit Agreement") among the
Borrower, the lenders from time to time party thereto (the "Lenders"), the
Administrative Agent, Issuing Lender and Swingline Lender and agents party
thereto. Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement (the Credit Agreement,
as amended by, and together with, this Amendment No. 1, and as hereinafter
amended, modified, extended or restated from time to time, being called the
"Amended Agreement").
WITNESSETH:
WHEREAS, the Borrower has requested certain amendments to its existing
definitions and negative covenants under the Credit Agreement; and
WHEREAS, the parties hereto have agreed, subject to the terms and
conditions hereof, to amend and modify the Credit Agreement as provided herein;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
AMENDMENTS
Effective as of the Amendment Effective Date (defined below), the Credit
Agreement is hereby amended as follows:
1.01 AMENDMENTS TO SECTION 1.01. Section 1.01 is hereby amended by deleting
the definition of "Qualified Equity Issuance" in its entirety and inserting the
following in lieu thereof:
""Qualifying Equity Issuance" shall mean (a) a new issuance after
the Closing Date by the Borrower of the Borrower Common Stock or the
Convertible Non-Voting Common Stock of the Borrower to the Investor Group
or any other Person for cash; provided that these issuances constitute
Qualifying Equity Issuances only to the extent that (i) no Default or Event
of Default shall be continuing after giving effect thereto, (ii) 100% of
the net cash proceeds of such issuance shall be immediately contributed by
the Borrower to its Subsidiaries, (iii) after giving effect thereto, no
Change of Control shall have occurred, (iv) such stock shall be issued in a
private placement exempt from registration under the Securities Act of
1933, (v) the proceeds thereof shall not be used, directly or indirectly,
to prepay any Indebtedness of the Subsidiaries of the Borrower, except as
permitted pursuant to Section 7.08 (other than Senior Credit Obligations),
or to make any Restricted Payment, except as permitted pursuant to Section
7.07, (vi) within five Business Days after such
Amendment No. 1
issuance, the Borrower shall have delivered to the Administrative Agent a
certificate of a Responsible Officer of the Borrower attesting to the
satisfaction of the foregoing conditions, describing the uses of the
proceeds of such issuance and attesting that such uses shall not constitute
a Default or an Event of Default and (vii) such proceeds shall be used
within 30 days after such issuance as described in such certificate; and
(b) an IPO by the Borrower; provided that an IPO constitutes a Qualifying
Equity Issuance only to the extent that (i) no Default of Event of Default
shall be continuing after giving effect thereto; (ii) only up to
$130,190,426 of the net cash proceeds from such IPO may be utilized by the
Borrower, with any excess to be utilized for mandatory prepayments of the
Senior Credit Obligations in accordance with Section 3.03(b); (iii) only up
to the first $130,190,426 of such net cash proceeds may be utilized by the
Borrower solely to redeem its Perpetual Preferred Stock; (iv) after giving
effect thereto, no Change of Control shall have occurred; (v) within five
Business Days after such issuance, the Borrower shall have delivered to the
Administrative Agent a certificate of a Responsible Officer of the Borrower
attesting to the satisfaction of the foregoing conditions, confirming the
use of proceeds of such issuance and attesting that such uses shall not
constitute a Default or an Event of Default; and (vi) such proceeds shall
be used within 60 days after such issuance."
1.02 AMENDMENTS TO SECTION 7.07. Section 7.07 is hereby amended by deleting
Section 7.07 in its entirety and inserting the following in lieu thereof:
"RESTRICTED PAYMENTS. None of the Consolidated Parties will,
directly or indirectly, declare, order, make or set apart any sum for or
pay any Restricted Payment, except (a) dividends payable solely in common
stock of such Person, (b) Permitted Tax Dividends, (c) dividends or other
distributions payable to the Borrower or any Wholly-Owned Subsidiary of the
Borrower, (d) repurchases of common stock of the Borrower from any employee
of the Consolidated Parties (other than any such Person which is a
director, officer or employee of or holder of Capital Stock of any of the
Sponsors or any of their respective Affiliates) upon the termination of
employment of such Person; provided that such repurchase is approved by the
board of directors of the Borrower in good faith and the aggregate amount
paid in all such repurchases shall not exceed $2,000,000 in the aggregate
from and after the Closing Date, (e) cash advances made or cash dividends
paid by the Subsidiaries of the Borrower to the Borrower which advances or
dividends are used solely to fund administrative and other miscellaneous
expenses incurred in the ordinary course of business by the Borrower in
accordance with Section 7.12(b); provided that after giving effect to any
such dividend, the Borrower shall be in pro forma compliance with all
financial covenants contained in this Agreement and (f) redemptions of any
Perpetual Preferred Stock to the extent permitted by clause (b) of the
definition of Qualifying Equity Issuance."
1.03 AMENDMENTS TO SECTION 7.08. Section 7.08 is hereby amended by deleting
Section 7.08 in its entirety and inserting the following in lieu thereof:
"PREPAYMENTS OF INDEBTEDNESS, ETC. None of the Consolidated
Parties will (a) after the issuance thereof, amend, waive or modify (or
permit the amendment, waiver or modification of) any of the terms,
agreements, covenants or conditions of or
Amendment No. 1
2
applicable to the Senior Subordinated Notes or any other Senior
Subordinated Note Purchase Document, (b) after the issuance thereof, amend,
waive or modify (or permit the amendment, waiver or modification of) any of
the terms, agreements, covenants or conditions of or applicable to any
other Indebtedness issued by such Consolidated Party if such amendment,
waiver or modification would add or materially change any terms,
agreements, covenants or conditions in a manner materially adverse to any
Consolidated Party, or shorten the final maturity or average life to
maturity or require any payment to be made sooner than originally scheduled
or materially increase the interest rate applicable thereto or change any
subordination provision thereof, (c) directly or indirectly redeem,
purchase, prepay, retire, defease or otherwise acquire for value, prior to
scheduled maturity, scheduled repayment or scheduled sinking fund payment,
any Senior Subordinated Note or any Capital Stock (except the redemption of
any Perpetual Preferred Stock to the extent permitted by clause (b) of the
definition of Qualifying Equity Issuance) issued pursuant to any Senior
Subordinated Note Purchase Document, (d) directly or indirectly redeem,
purchase, prepay, retire, defease or otherwise acquire for value, prior to
scheduled maturity, scheduled repayment or scheduled sinking fund payment,
any Indebtedness (other than Senior Credit Obligations) or Preferred Stock
of the Borrower (except the redemption of any Perpetual Preferred Stock to
the extent permitted by clause (b) of the definition of Qualifying Equity
Issuance) or set aside any funds for such purpose, whether such redemption,
purchase, prepayment, retirement or acquisition is made at the option of
any Consolidated Party or at the option of the holder thereof, and whether
or not any such redemption, purchase, prepayment, retirement or acquisition
is required under the terms and conditions applicable to such Indebtedness
or Preferred Stock or (e) release, cancel, compromise or forgive in whole
or in part the Indebtedness evidenced by the Intercompany Notes."
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.01 REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants
to the Administrative Agent and each of the Lenders, as follows:
(a) The representations and warranties set forth in Article V and in each
of the other Senior Credit Documents shall be true and correct in all material
respects as of such date (except for those which expressly relate to an earlier
date, in which case such representations and warranties shall be true and
correct in all material respects on and as of such earlier date) and references
to Schedules shall be deemed to refer to the most updated supplements to
Schedules to be delivered on the next scheduled delivery date, as to which the
Borrower has notified the Administrative Agent in writing.
(b) No Default or Event of Default shall exist and be continuing under the
Amended Agreement.
(c) The Borrower has the corporate or other necessary power and authority,
and the legal right to execute, deliver and perform this Amendment No. 1 and has
taken all necessary corporate action to authorize this Amendment No. 1 and to
authorize the execution, delivery and performance of this Amendment No. 1.
(d) Neither the execution, delivery, performance and compliance by the
Borrower with this Amendment No. 1 will (a) violate or conflict with any
provision of its articles or certificate of incorporation or bylaws or other
organizational or governing documents, (b) violate, contravene or
Amendment No. 1
3
conflict with any Requirement of Law (including Regulation U) applicable to it
or its Properties, (c) violate, contravene or conflict with contractual
provisions of, cause an event of default under, or give rise to material
increased, additional, accelerated or guaranteed rights of any Person under, any
indenture, loan agreement, mortgage, deed of trust, contract or other agreement
or instrument to which such Person is a party or by which it may be bound, the
violation of which could reasonably be expected to have a Material Adverse
Effect, or (d) result in or require the creation of any Lien (except Liens
created under the Collateral Documents) upon or with respect to its Properties.
(e) This Amendment No. 1 constitutes a legal, valid and binding obligation
of the Borrower, enforceable against the Borrower in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
ARTICLE III
CONDITIONS PRECEDENT
3.01 CONDITIONS TO EFFECTIVENESS. This Amendment No. 1 shall become
effective only upon satisfaction of the following conditions precedent (the
first date upon which each such condition has been satisfied being herein called
the "Amendment Effective Date"):
(a) the Administrative Agent shall have received duly executed counterparts
of this Amendment No. 1 which, when taken together, bear the authorized
signatures of the Borrower, the Required Lenders and the Administrative Agent;
(b) the representations and warranties set forth in Section 2.01 hereof are
true and correct in all material respects on and as of the Amendment Effective
Date;
(c) all corporate and other proceedings taken or to be taken in connection
with this Amendment No. 1 and all documents incidental thereto, whether or not
referred to herein, shall be reasonably satisfactory in form and substance to
the Required Lenders and their respective counsel; and
(d) the Administrative Agent shall have received payment of all costs and
expenses referred to in Section 4.05 hereof.
ARTICLE IV
MISCELLANEOUS
4.01 LENDER CONSENT. For purposes of determining compliance with the
conditions specified in this Section 3.01, each Lender that has signed this
Amendment No. 1 shall be deemed to have consented to, approved or accepted or to
be satisfied with, each document or other matter required hereunder to be
consented to or approved by or acceptable or satisfactory to a Lender unless the
Administrative Agent shall have received notice from such Lender prior to the
proposed Amendment Effective Date specifying its objection thereto.
4.02 APPLICABLE LAW. THIS AMENDMENT NO. 1 SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Amendment No. 1
4
4.03 COUNTERPARTS. This Amendment No. 1 may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original,
but all of which shall constitute one and the same instrument. It shall not be
necessary in making proof of this Amendment No. 1 to produce or account for more
than one such counterpart for each of the parties hereto. Delivery by facsimile
by any of the parties hereto of an executed counterpart of this Amendment No. 1
shall be as effective as an original executed counterpart hereof and shall be
deemed a representation that an original executed counterpart hereof will be
delivered, but the failure to deliver a manually executed counterpart shall not
affect the validity, enforceability or binding effect of this Amendment No. 1.
4.04 CREDIT AGREEMENT. Except as expressly set forth herein, the amendments
provided herein shall not by implication or otherwise limit, constitute a waiver
of, or otherwise affect the rights and remedies of the Lenders or the
Administrative Agent under the Amended Agreement or any other Senior Credit
Document, nor shall they constitute a waiver of any Default or Event of Default,
nor shall they alter, modify, amend or in any way affect any of the terms,
conditions, obligations, covenants or agreements contained in the Amended
Agreement or any other Senior Credit Document. Each of the amendments provided
herein shall apply and be effective only with respect to the provisions of the
Amended Agreement specifically referred to by amendment. Except as expressly
amended herein, the Amended Agreement shall continue in full force and effect in
accordance with the provisions thereof. As used in the Amended Agreement, the
terms "Agreement", "herein", "hereinafter", "hereunder", "hereto" and words of
similar import shall mean, from and after the date hereof, the Amended
Agreement.
4.05 COSTS AND EXPENSES. On the Amendment Effective Date, the Borrower
agrees to pay all reasonable costs and expenses of the Administrative Agent in
connection with the preparation, execution and delivery of this Amendment No. 1
and the instruments and documents to be delivered hereunder and the reasonable
fees, charges and expenses of counsel for the Administrative Agent outstanding
on the Amendment Effective Date.
4.06 SECTION CAPTIONS. Section captions used in this Amendment No. 1 are
for convenience of reference only and shall not affect this construction of this
Amendment No. 1.
[Signature Pages Follow]
Amendment No. 1
5
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
be duly executed by their duly authorized officers, all as of the date first
above written.
COMPBENEFITS CORPORATION,
as Borrower
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: CFO
Signature Page to Amendment No. 1
BANK OF AMERICA, N.A, as Administrative
Agent
By: /s/ Xxxxxx Xxxxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Vice President
Signature Page to Amendment No. 1
BANK OF AMERICA, N.A, as Lender, Issuing
Lender and Swingline Lender
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Vice President
Signature Page to Amendment No. 1
CAROLINA FIRST BANK, as Lender
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: Executive Vice President
Signature Page to Amendment No. 1
ING Capital LLC, as Lender
By: /s/ Xxxxxx X. Miners
------------------------------------
Name: Xxxxxx X. Miners
Title: Vice President
Signature Page to Amendment No. 1
General Electric Capital Corporation,
as Lender
By: /s/ Xxxx Xxxx
------------------------------------
Name: Xxxx Xxxx
Title: Duly Authorized Signatory
Signature Page to Amendment No. 1
CREDIT SUISSE INTERNATIONAL, as Lender
By: [Illegible]
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Signature Page to Amendment Xx. 0
XXXX XXX 0000-0, XXX, as Lender
By American Capital Asset Management,
LLC as Portfolio Manager
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: Authorized Signatory
Signature Page to Amendment No. 1
SANDELMAN FINANCE 2006-2, LTD, as Lender
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Head of Structured Products
Signature Page to Amendment No. 1
GANNETT PEAK CLO I, LTD., as Lender
By XxXxxxxxx Investment Management LLC,
as Investment Manager
By: /s/ Xxxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President
Signature Page to Amendment No. 1
CS ADVISORS CLO I, LTD., as Lender
By: CapitalSource Advisors LLC, as
Portfolio Manager and attorney-in-fact
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
Signature Page to Amendment No. 1
Rampart CLO I, Ltd., as Lender
By: Stone Tower Debt Advisors LLC,
As its Collateral Manager
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Authorized Signatory
Signature Page to Amendment No. 1
Stone Tower CLO V, Ltd., as Lender
By: Stone Tower Debt Advisors LLC,
As its Collateral Manager
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Authorized Signatory
Signature Page to Amendment No. 1
Stone Tower CDO I, Ltd., as Lender
By: Stone Tower Debt Advisors LLC,
As its Collateral Manager
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Authorized Signatory
Signature Page to Amendment No. 1
Stone Tower CDO II, Ltd., as Lender
By: Stone Tower Debt Advisors LLC,
As its Collateral Manager
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Authorized Signatory
Signature Page to Amendment No. 1
Granite Ventures III Ltd., as Lender
By: Stone Tower Debt Advisors LLC,
As its Collateral Manager
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Authorized Signatory
Signature Page to Amendment No. 1
Granite Ventures II Ltd., as Lender
By: Stone Tower Debt Advisors LLC,
As its Collateral Manager
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Authorized Signatory
Signature Page to Amendment No. 1
Granite Ventures I Ltd., as Lender
By: Stone Tower Debt Advisors LLC,
As its Collateral Manager
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Authorized Signatory
Signature Page to Amendment No. 1
Stone Tower Credit Funding I Ltd.,
as Lender
By: Stone Tower Fund Management LLC,
As its Collateral Manager
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Authorized Signatory
Signature Page to Amendment No. 1
Prospect Park CDO Ltd., as Lender
By: Blackstone Debt Advisors L.P.
As Collateral Manager
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Managing Director
Signature Page to Amendment No. 1
Monument Park CDO Ltd., as Lender
By: Blackstone Debt Advisors L.P.
As Collateral Manager
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Managing Director
Signature Page to Amendment Xx. 0
Xxxxxxxxx Xxxxxx CDO Ltd., as Lender
By: Blackstone Debt Advisors L.P.
As Collateral Manager
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Managing Director
Signature Page to Amendment No. 1
CIFC Funding 2006-I, Ltd., as Lender
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: Chief Credit Officer
Signature Page to Amendment No. 1
FREEPORT OFFSHORE LOAN FUND LLC,
as Lender
By: /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Duly Authorized Signatory
Signature Page to Amendment No. 1
FREEPORT LOAN TRUST 2006-1, as Lender
By: /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Duly Authorized Signatory
Signature Page to Amendment No. 1
Red River CLO Ltd., as Lender
By: Highland Capital Management, L.P.
As Collateral Manager
By: Strand Advisors, Inc.,
Its General Partner
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Treasurer, Strand Advisors, Inc.,
General Partner of Highland
Capital Management, L.P.
Signature Page to Amendment No. 1
Brentwood CLO Ltd., as Lender
By: Highland Capital Management, L.P.
As Collateral Manager
By: Strand Advisors, Inc.,
Its General Partner
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Treasurer, Strand Advisors, Inc.,
General Partner of Highland
Capital Management, L.P.
Signature Page to Amendment No. 1
Highland Floating Rate LLC, as Lender
By: /s/ M. Xxxxx Xxxxxxxxx
------------------------------------
Name: M. Xxxxx Xxxxxxxxx
Title: Treasurer
Signature Page to Amendment No. 1
Highland Floating Rate Advantage Fund,
as Lender
By: /s/ M. Xxxxx Xxxxxxxxx
------------------------------------
Name: M. Xxxxx Xxxxxxxxx
Title: Treasurer
Signature Page to Amendment No. 1
