FOURTH AMENDMENT TO THE CREDIT AGREEMENT
EXHIBIT 10.21
FOURTH AMENDMENT TO THE CREDIT AGREEMENT
THIS FOURTH AMENDMENT, dated as of July 29, 05 (the “Amendment”), to the Credit Agreement, dated as of August 13, 2003, as amended by the First Amendment thereto, dated as of November 17, 2003, as further amended by the Second Amendment thereto, dated as of June 8, 2004 and as further amended by the Third Amendment thereto, dated as of August 23, 2004 (the “Credit Agreement”), among CONCENTRA INC., a Delaware corporation (“Holdings”), CONCENTRA OPERATING CORPORATION, a Nevada corporation (the “Borrower”), the several banks and other financial institutions from time to time parties thereto (the “Lenders”) and JPMORGAN CHASE BANK, N.A., a national banking association, as administrative agent for the Lenders thereunder (in such capacity, the “Administrative Agent”), is entered into by and among Holdings, the Borrower, the Lenders and the Administrative Agent.
WITNESSETH:
WHEREAS, Holdings, the Borrower, the Lenders and the Administrative Agent are parties to the Credit Agreement;
WHEREAS, the Borrower has requested that the Lenders amend the Credit Agreement, as more fully described herein; and
WHEREAS, the Lenders are willing to agree to such amendment, but only upon the terms and subject to the conditions set forth herein;
NOW THEREFORE, in consideration of the premises and the mutual covenants hereinafter set forth, the parties hereto hereby agree as follows:
Defined Terms. Unless otherwise defined herein, capitalized terms which are defined in the Credit Agreement are used herein as therein defined.
Amendment to Section 7.8A (Acquisitions). Section 7.8A of the Credit Agreement is hereby amended by deleting the clause “in an aggregate amount not to exceed $12,000,000 for the period from the Closing Date to December 31, 2003, $32,500,000 in the fiscal year ended 2004, $35,000,000 in the fiscal year ended 2005, $37,500,000 in the fiscal year ended 2006, $40,000,000 in the fiscal year ended 2007, $42,500,000 in the fiscal year ended 2008 and $22,500,000 for the period from January 1, 2009 through June 30, 2009” and inserting in lieu thereof the following:
in an aggregate amount not to exceed $12,000,000 for the period from the Closing Date to December 31, 2003, $32,500,000 in the fiscal year ended 2004, $55,000,000 in the fiscal year ended 2005, $57,500,000 in the fiscal year ended 2006, $60,000,000 in the fiscal year ended 2007, $62,500,000 in the fiscal year ended 2008 and $42,500,000 for the period from January 1, 2009 through June 30, 2009
Conditions to Effectiveness of this Amendment. This Amendment shall become effective upon the date (the “Effective Date”) when the following conditions are satisfied:
Amendment to Credit Agreement. The Administrative Agent shall have received counterparts of this Amendment, duly executed and delivered by Holdings and the Borrower, and executed and delivered or consented to by the Required Lenders;
No Default. No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the transactions contemplated herein; and
Representations and Warranties. Each of the representations and warranties made by the Loan Parties in or pursuant to the Loan Documents shall be true and correct in all material respects on and as of the date hereof, before and after giving effect to the effectiveness of this Amendment, as if made on and as of the date hereof, except to the extent such representations and warranties expressly relate to a specific earlier date, in which case such representations and warranties were true and correct as of such earlier date.
Continuing Effect of the Credit Agreement. This Amendment shall not constitute an amendment or waiver of any provision of the Credit Agreement not expressly referred to herein and shall not be construed as an amendment, waiver or consent to any further or future action on the part of the Loan Parties that would require an amendment, waiver or consent of the Lenders or Administrative Agent. Except as expressly amended hereby, the provisions of the Credit Agreement are and shall remain in full force and effect.
Counterparts. This Amendment may be executed by one or more of the parties hereto on any number of separate counterparts (including by facsimile), and all of said counterparts taken together shall be deemed to constitute one and the same instrument.
Severability. Any provision of this Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Integration. This Amendment and the other Loan Documents represent the agreement of the Loan Parties, the Administrative Agent and the Lenders with respect to the subject matter hereof, and there are no promises, undertakings, representations or warranties by the Administrative Agent or any Lender relative to the subject matter hereof not expressly set forth or referred to herein or in the other Loan Documents.
GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.
| CONCENTRA INC. | ||||
| BY: | /s/ Thomas E. Kiraly | |||
| Name: | Thomas E. Kiraly | |||
| Title: | Executive Vice President and CFO | |||
| CONCENTRA OPERATING CORPORATION | ||||
| BY: | /s/ Thomas E. Kiraly | |||
| Name: | Thomas E. Kiraly | |||
| Title: | Executive Vice President and CFO | |||
| JPMORGAN CHASE BANK, N.A., as Administrative Agent and a Lender | ||||
| By: | /s/ Stephanie Parker | |||
| Name: | Stephanie Parker | |||
| Title: | Vice President | |||
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| Atrium CDO, as a Lender | ||||
| By: | /s/ David H. Lerner | |||
| Name: | David H. Lerner | |||
| Title: | Authorized Signatory | |||
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| CSAM Funding II, as a Lender | ||
| By: | /s/ David H. Lerner | |
| Name: David H. Lerner | ||
| Title: Authorized Signatory | ||
5
| CSAM Funding III, as a Lender | ||
| By: | /s/ David H. Lerner | |
| Name: David H. Lerner | ||
| Title: Authorized Signatory | ||
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| CSAM Funding IV, as a Lender | ||
| By: | /s/ David H. Lerner | |
| Name: David H. Lerner | ||
| Title: Authorized Signatory | ||
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| First Dominion Fund III, as a Lender | ||||
| By: | /s/ David H. Lerner | |||
| Name: | David H. Lerner | |||
| Title: | Authorized Signatory | |||
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| CSAM SLF, as a Lender | ||||
| By: | /s/ David H. Lerner | |||
| Name: | David H. Lerner | |||
| Title: | Authorized Signatory | |||
9
| Citicorp North America, Inc., as a Lender | ||||
| By: | /s/ Hector Guenther | |||
| Name: | Hector Guenther | |||
| Title: | Vice President | |||
10
| Credit Suisse, Cayman Island Branch, as a Lender | ||||
| By: | /s/ David Dodd | |||
| Name: | David Dodd | |||
| Title: | Vice President | |||
| By: | /s/ Rianka Mohan | |||
| Name: | Rianka Mohan | |||
| Title: | Associate | |||
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| Carlyle High Yield Partners II, Ltd., as a Lender | ||||
| By: | /s/ Linda Pace | |||
| Name: | Linda Pace | |||
| Title: | Managing Director | |||
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| Carlyle High Yield Partners III, Ltd., as a Lender | ||||
| By: | /s/ Linda Pace | |||
| Name: | Linda Pace | |||
| Title: | Managing Director | |||
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| Carlyle High Yield Partners IV, Ltd., as a Lender | ||||
| By: | /s/ Linda Pace | |||
| Name: | Linda Pace | |||
| Title: | Managing Director | |||
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| Carlyle High Yield Partners VI, Ltd., as a Lender | ||||
| By: | /s/ Linda Pace | |||
| Name: | Linda Pace | |||
| Title: | Managing Director | |||
15
| Carlyle Loan Investment, Ltd., as a Lender | ||||
| By: | /s/ Linda Pace | |||
| Name: | Linda Pace | |||
| Title: | Managing Director | |||
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| Carlyle Loan Opportunity Fund, as a Lender | ||||
| By: | /s/ Linda Pace | |||
| Name: | Linda Pace | |||
| Title: | Managing Director | |||
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| CALYON NEW YORK BRANCH, as a Lender | ||||
| By: | /s/ Charles Heidsieck | |||
| Name: | Charles Heidsieck | |||
| Title: | Managing Director | |||
| By: | /s/ Thomas Randolph | |||
| Name: | Thomas Randolph | |||
| Title: | Managing Director | |||
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| PPM SHADOW CREEK FUNDING LLC, as a Lender | ||||
| By: | /s/ M. Cristina Higgins | |||
| Name: | M. Cristina Higgins | |||
| Title: | Assistant Vice President | |||
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| PPM SPYGLASS FUNDING TRUST, as a Lender | ||||
| By: | /s/ Ann E. Morris | |||
| Name: | Ann E. Morris | |||
| Title: | Authorized Agent | |||
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| Tuscany CDO, Limited, as a Lender by PPM America, Inc., as Collateral Manager | ||||
| By: | /s/ David C. Wagner | |||
| Name: | David C. Wagner | |||
| Title: | Managing Director | |||
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| Fidelity Advisor Series II: Fidelity Advisor Floating Rate High Income Fund, as a Lender | ||||
| By: | /s/ John Costello | |||
| Name: | John Costello | |||
| Title: | Assistant Treasurer | |||
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| Ballyrock CLO II Limited, By: Ballyrock Investment Advisors LLC, as Collateral Manager, as a Lender | ||||
| By: | /s/ Lisa Rymut | |||
| Name: | Lisa Rymut | |||
| Title: | Assistant Treasurer | |||
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| Ballyrock CDO I Limited, By: Ballyrock Investment Advisors LLC, as Collateral Manager, as a Lender | ||||
| By: | /s/ Lisa Rymut | |||
| Name: | Lisa Rymut | |||
| Title: | Assistant Treasurer | |||
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| LCM I LIMITED PARTNERSHIP, by Lyon Capital Management LLC, as Collateral Manager, as a Lender | ||||
| By: | /s/ Alexander B. Kenna | |||
| Name: | Alexander B. Kenna | |||
| Title: | Portfolio Manager | |||
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| LCM II LIMITED PARTNERSHIP, by: Lyon Capital Management LLC, as Collateral Manager, as a Lender | ||
| By: | /s/ Alexander B. Kenna | |
| Name: Alexander B. Kenna | ||
| Title: Portfolio Manager | ||
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| LCM III, Ltd., by Lyon Capital Management LLC, as Collateral Manager, as a Lender | ||
| By: | /s/ Alexander B. Kenna | |
| Name: Alexander B. Kenna | ||
| Title: Portfolio Manager | ||
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| PPM MONARCH BAY FUNDING LLC, as a Lender | ||
| By: | /s/ M. Cristina Higgins | |
| Name: M. Cristina Higgins | ||
| Title: Assistant Vice President | ||
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| STANWICH LOAN FUNDING LLC, as a Lender | ||
| By: | /s/ M. Cristina Higgins | |
| Name: M. Cristina Higgins | ||
| Title: Assistant Vice President | ||
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| HARBOUR TOWN FUNDING LLC, as a Lender | ||
| By: | /s/ M. Cristina Higgins | |
| Name: M. Cristina Higgins | ||
| Title: Assistant Vice President | ||
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| LONG LANE MASTER TRUST IV, as a Lender | ||
| By: | /s/ Ann E. Morris | |
| Name: Ann E. Morris | ||
| Title: Authorized Agent | ||
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| ING Investment Management, Inc. 7337 E. Doubletree Ranch Road Scottsdale, AZ 85258, as a Lender | ||
| By: | /s/ Michael Prince | |
| Name: Michael Prince, CFA | ||
| Title: Senior Vice President | ||
| ING SENIOR INCOME FUND, By: ING Investment Management Co., as its investment manager, as a Lender | ||
| By: | /s/ Michael Prince | |
| Name: Michael Prince, CFA | ||
| Title: Senior Vice President | ||
| ING PRIME ESTATE TRUST, By: ING Investment Management Co. as its Investment manager, as a Lender | ||
| By: | /s/ Michael Prince | |
| Name: Michael Prince, CFA | ||
| Title: Senior Vice President | ||
| ML CLO XV PILGRIM AMERICA (CAYMAN) LTD, By: ING Investments, LLC, as its Investment manager, as a Lender | ||
| By: | /s/ Michael Prince | |
| Name: Michael Prince, CFA | ||
| Title: Senior Vice President | ||
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| GENERAL ELECTRIC CAPITAL CORPORATION, as a Lender | ||
| By: | /s/ Steven Wagables | |
| Name: Steven Wagables | ||
| Title: Duly Authorized Signatory | ||
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| Oppenheimer Senior Floating Rate Fund, as a Lender | ||
| By: | /s/ Susanna Evans | |
| Name: Susanna Evans | ||
| Title: Manager | ||
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| HarbourView CLO IV Ltd., as a Lender | ||
| By: | /s/ Susanna Evans | |
| Name: Susanna Evans | ||
| Title: Manager | ||
35
| HarbourView CLO V Ltd., as a Lender | ||
| By: | /s/ Susanna Evans | |
| Name: Susanna Evans | ||
| Title: Manager | ||
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| BlackRock Global Floating Rate Income Trust BlackRock Limited Duration Income Trust BlackRock Senior Income Series Magnetite Asset Investors LLC Magnetite Asset Investors III LLC Magnetite IV CLO, Limited Magnetite V CLO, Limited Senior Loan Portfolio, as Lenders | ||
| By: | /s/ Tom Colwell | |
| Name: Tom Colwell | ||
| Title: Authorized Signatory | ||
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| GRAYSON & CO., as a Lender | ||
| By: | /s/ John Redding | |
| Name: John Redding | ||
| Title: VP/Portfolio Manager | ||
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| SENIOR DEBT PORTFOLIO, as a Lender | ||
| By: | /s/ John Redding | |
| Name: John Redding | ||
| Title: VP/Portfolio Manager | ||
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| TOLLI & CO., as a Lender | ||
| By: | /s/ John Redding | |
| Name: John Redding | ||
| Title: VP/Portfolio Manager | ||
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| EATON VANCE VT FLOATING-RATE INCOME FUND, as a Lender | ||
| By: | /s/ John Redding | |
| Name: John Redding | ||
| Title: VP/Portfolio Manager | ||
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| EATON VANCE SENIOR INCOME TRUST, as a Lender | ||
| By: | /s/ John Redding | |
| Name: John Redding | ||
| Title: VP/Portfolio Manager | ||
| EATON VANCE SENIOR FLOATING-RATE TRUST, as a Lender | ||
| By: | /s/ John Redding | |
| Name: John Redding | ||
| Title: VP/Portfolio Manager | ||
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| EATON VANCE FLOATING-RATE INCOME TRUST, as a Lender | ||
| By: | /s/ John Redding | |
| Name: John Redding | ||
| Title: VP/Portfolio Manager | ||
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| EATON VANCE LIMITED DURATION INCOME FUND, as a Lender | ||
| By: | /s/ John Redding | |
| Name: John Redding | ||
| Title: VP/Portfolio Manager | ||
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| EATON VANCE INSTITUTIONAL SENIOR LOAN FUND, as a Lender | ||
| By: | /s/ John Redding | |
| Name: John Redding | ||
| Title: VP/Portfolio Manager | ||
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| BIG SKY SENIOR LOAN FUND, LTD., as a Lender | ||
| By: | /s/ John Redding | |
| Name: John Redding | ||
| Title: VP/Portfolio Manager | ||
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| EATON VANCE CO. III, LTD, as a Lender | ||
| By: | /s/ John Redding | |
| Name: John Redding | ||
| Title: VP/Portfolio Manager | ||
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| EATON VANCE CO. VI., LTD, as a Lender | ||
| By: | /s/ John Redding | |
| Name: John Redding | ||
| Title: VP/Portfolio Manager | ||
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| BIG SKY III SENIOR LOAN TRUST, as Lender | ||
| By: | /s/ John Redding | |
| Name: John Redding | ||
| Title: VP/Portfolio Manager | ||
49
| CONSTANTINUS EATON VANCE CO. V, LTD., as Lender | ||
| By: | /s/ John Redding | |
| Name: John Redding | ||
| Title: VP/Portfolio Manager | ||
50
| Deutsche Bank Trust Company Americas, as a Lender | ||
| By: | /s/ Carin M. Keegan | |
| Name: Carin M. Keegan Title: Vice President | ||
| By: | /s/ Omayra Laucella | |
| Name: Omayra Laucella Title: Vice President | ||
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| Sankaty High Yield Asset Partners, L.P., as a Lender | ||
| By: | /s/ Timothy M. Barns | |
| Name: Timothy M. Barns Title: Senior Vice President | ||
52
| Sankaty Advisors, LLC as Collateral Manager for Race Point II CLO, Limited, as Term Lender, as a Lender | ||
| By: | /s/ Timothy M. Barns | |
| Name: Timothy M. Barns Title: Senior Vice President | ||
53
| Sankaty Advisors, LLC as Collateral Manager for Race Point CLO, Limited, as Term Lender, as a Lender | ||
| By: | /s/ Timothy M. Barns | |
| Name: Timothy M. Barns Title: Senior Vice President | ||
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| Sankaty Advisors, LLC as Collateral Manager for Castle Hill II INGOTS, Ltd., as Term Lender, as a Lender | ||
| By: | /s/ Timothy M. Barns | |
| Name: Timothy M. Barns Title: Senior Vice President | ||
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| Sankaty Advisors, LLC as Collateral Manager for Castle Hill I INGOTS, Ltd., as Term Lender, as a Lender | ||
| By: | /s/ Timothy M. Barns | |
| Name: Timothy M. Barns Title: Senior Vice President | ||
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| Sankaty Advisors, LLC as Collateral Manager for Brant Point II CBO 2000-1 LTD., as Term Lender, as a Lender | ||
| By: | /s/ Timothy M. Barns | |
| Name: Timothy M. Barns Title: Senior Vice President | ||
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| Sankaty Advisors, LLC as Collateral Manager for Brant Point II CBO 1999-1 LTD., as Term Lender, as a Lender | ||
| By: | /s/ Timothy M. Barns | |
| Name: Timothy M. Barns Title: Senior Vice President | ||
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