EXHIBIT 4.5
SECOND AMENDMENT
SECOND AMENDMENT, dated as of August 29, 1995 (this "Amendment"), to the
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CREDIT AGREEMENT, dated as of March 24, 1994 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among (i) FHP
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INTERNATIONAL CORPORATION, a Delaware corporation (the "Borrower") (ii) the
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Lenders parties thereto (individually, a "Lender", and collectively, the
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"Lenders"), (iii) CHEMICAL BANK, a New York banking corporation, as agent for
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the Lenders (in such capacity, the "Administrative Agent") and as CAF Loan Agent
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(in such capacity, the "CAF Loan Agent"), and (iv) CHEMICAL SECURITIES INC., as
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arranger (in such capacity, the "Arranger").
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W I T N E S S E T H :
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WHEREAS, in connection with a restructuring of its business operations, the
Borrower has requested that the Lenders agree to amend certain definitions
contained in subsection 1.1 of the Credit Agreement as set forth in this
Amendment:
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in the
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Credit Agreement are used herein as defined therein.
2. Amendments to Credit Agreement. Subsection 1.1 of the Credit
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Agreement is hereby amended by (a) deleting therefrom the definition of
"Consolidated Adjusted Net Income" in its entirety and (b) inserting therein the
following new definitions in the appropriate alphabetical order:
"'Consolidated Adjusted Net Income': for any period, the
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Consolidated Net Income of the Borrower and its consolidated Subsidiaries
for such period, plus the amount of income taxes, interest expense, rental
expense, depreciation, amortization and Non-Cash Charges deducted from
earnings of the Borrower and its consolidated Subsidiaries for such period
in determining such Consolidated Net Income."; and
"'Non-Cash Charge': for any period, the amount deducted from
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earnings of the Borrower and its consolidated Subsidiaries in determining
Consolidated Net Income for such period in respect of non-cash charges;
provided that such non-cash charges are not expected to result in cash
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expenditures in any subsequent period."
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3. Effectiveness. This Amendment shall become effective as of the date
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hereof upon receipt by the Administrative Agent of counterparts hereof duly
executed by the Required Lenders.
4. Representations and Warranties. The Borrower hereby represents and
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warrants that after giving effect to this Amendment, the representations and
warranties made by the Borrower in the Credit Agreement are true and correct in
all material respects on and as of the date hereof; provided that to the extent
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such representations and warranties specifically relate to an earlier date, such
representations and warranties shall have been true and correct in all material
respects on and as of such earlier date.
5. Continuing Effect; No Other Amendments. Except as expressly amended
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hereby, all of the terms and provisions of the Credit Agreement are and shall
remain in full force and effect. The amendment contained herein shall not
constitute an amendment or waiver of any other provision of the Credit Agreement
or for any purpose except as expressly set forth herein.
6. Counterparts. This Amendment may be executed by one or more of the
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parties to this Amendment on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. This Amendment may be delivered by facsimile transmission of the
relevant signature pages hereof.
7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
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AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their respective duly authorized officers as of the
date first above written.
FHP INTERNATIONAL CORPORATION
By: /s/ Xxxxxxx X. Montevideo
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Title: Vice President and Treasurer
CHEMICAL BANK,
as Administrative Agent, as CAF Loan Agent and as
a Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: Managing Director
THE TOKAI BANK, LTD., LOS ANGELES AGENCY
By: /s/ Xxxxxxxx Xxxxx
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Title: Asst. General Manager
THE SUMITOMO BANK, LIMITED, LOS ANGELES BRANCH
By: /s/ Xxxxxxxxx Xxxxx
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Title: Joint General Manager
THE SANWA BANK LIMITED, ACTING THROUGH THE LOS
ANGELES BRANCH
By: /s/ Xxxxx Xxxxxxx
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Title: Assistant Vice President
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THE INDUSTRIAL BANK OF JAPAN, LIMITED, LOS ANGELES
AGENCY
By: /s/ Xxxxxxxxx Xxxxx
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Title: Senior Vice President
BANK OF HAWAII
By: /s/ Xxxx Xxxxxxxx
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Title: Officer
CITICORP USA, INC.
By: /s/ Xxxxxx Xxxxxx
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Title: Assistant Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxxxx X. Xxxxxx
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Title: Assistant Vice President
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxx
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Title: Vice President
FIRST INTERSTATE BANK OF CALIFORNIA (FICAL)
By: /s/ Xxxxxxx X. Xxxxx
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Title: Senior Vice President
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XXXXX XXXXX XXXXXXXX XXXX XX XXXXX XXXXXXXX
By: /s/ Xxx X. Xxxx
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Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx Xxxxx
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Title: Commercial Banking Officer
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
By: /s/ Xxxxxx Xxxxxxxx
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Title: Deputy General Manager
THE SUMITOMO TRUST & BANKING CO., LTD., NEW YORK
BRANCH
By: /s/ Surai X. Xxxxxx
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Title: Senior Vice President
BANKERS TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
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Title: Assistant Vice President
NATIONSBANK OF TEXAS, N.A.
By: /s/ Xxxx X. XxXxxxx
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Title: Vice President
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KREDIETBANK N.V.
By: /s/ Xxxxxx Xxxxxxxx
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Title: Vice President
THE DAI-ICHI KANGYO BANK, LTD. LOS ANGELES AGENCY
By: /s/ Xxxxxxxx Xxxxxx
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Title: Senior Vice President & Joint
General Manager
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