Exhibit 10.7
SIXTH AMENDMENT AND CONSENT TO CREDIT AGREEMENT
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SIXTH AMENDMENT AND CONSENT TO CREDIT AGREEMENT (this "Sixth
Amendment"), dated as of April 16, 2002, among U.S.I. HOLDINGS CORPORATION, a
Delaware corporation (the "Borrower"), the various lenders from time to time
party to the Credit Agreement referred to below (the "Lenders"), CREDIT LYONNAIS
CAYMAN ISLAND BRANCH, as Administrative Agent (the "Administrative Agent") and
JPMORGAN CHASE BANK (f/k/a The Chase Manhattan Bank), as Syndication Agent (the
"Syndication Agent"). All capitalized terms used herein and not otherwise
defined shall have the respective meanings assigned to such terms in the Credit
Agreement.
W I T N E S S E T H:
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WHEREAS, the Borrower, the Lenders, the Administrative Agent and the
Syndication Agent are parties to a Credit Agreement, dated as of September 17,
1999 (as amended, modified or supplemented to the date hereof, the "Credit
Agreement");
WHEREAS, the Lenders hereto wish to provide for certain consents to
the Credit Agreement and the parties hereto wish to amend the Credit Agreement,
in each case as herein provided;
NOW, THEREFORE, subject to the terms and conditions of this Sixth
Amendment, the parties hereto agree as follows:
I. Amendments and Consents
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1. Notwithstanding anything to the contrary contained in Section 7.6
and 7.8 of the Credit Agreement, USIS shall be permitted to sell all of the
issued and outstanding capital stock of USI Care Management, Inc., Texas
Professional Administrators, Inc. and USI Prescription Benefits Management Co.
(the "Transferred Subsidiaries") to CBCA, Inc. ("CBCA") (the "Proposed Sale"),
on the terms and conditions previously disclosed to the Lenders in the Stock
Purchase Agreement by and among CBCA, the Borrower, USIS and the Transferred
Subsidiaries, dated as of April 1, 2002 (the "Stock Purchase Agreement"),
provided that (i) the Proposed Sale is an arm's length transaction and is for
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fair market value (as determined in good faith by the USIS), (ii) at the closing
of the Proposed Sale USIS receives (x) Net Proceeds (which term as used in this
Sixth Amendment, for the purposes of Section 3.1(b)(i)(A) of the Credit
Agreement, shall take into account the deductions, estimates of which are set
forth on Schedule I attached hereto) in an amount equal to $16.3 million in cash
(the "Closing Cash Payment") and (y) a secured non-negotiable subordinated
promissory note from CBCA (the "CBCA Note") with a principal amount equal to the
Deferred Payment Amount (as defined in the Stock Purchase Agreement), it being
understood and agreed that the CBCA Note shall be (A) guaranteed and secured on
the terms and conditions previously disclosed to the Lenders in the guaranty and
security agreements presented to the Lenders and (B) pledged to the Lenders
pursuant to the terms of the Subsidiary Pledge and Security Agreement and (iii)
100% of the (x) Closing Cash Payment and (y) Net Proceeds from the Deferred
Payment Amount
(which, assuming satisfaction of applicable performance thresholds is estimated
to be at least $6.2 million), in each case, shall be applied immediately upon
the receipt thereof by USIS to repay the Term Loans in accordance with Section
3.1(b)(i)(A) of the Credit Agreement. In the event that the Net Proceeds of the
Proposed Sale received at the closing exceed $16.3 million, the such excess
proceeds shall be applied to repay the Term Loans in accordance with Section
3.1(b)(i)(A) of the Credit Agreement within three business days following
receipt, it being understood and agreed that such application is not a condition
precedent to consummation of the Proposed Sale.
2. Section 7.6 of the Credit Agreement is hereby amended by inserting
the following paragraph at the end of said Section:
"To the extent the Required Lenders (or all the Lenders to the extent
required by Section 10.1) waive the provisions of this Section 7.6 with
respect to the disposition of any Collateral, or any Collateral is disposed
of as permitted by this Section 7.6, (i) such Collateral in each case shall
be sold free and clear of the Liens in favor of the Secured Party created
by the Security Documents and (ii) if such Collateral includes all of the
capital stock of a Subsidiary, such capital stock shall be released from
the Borrower Pledge and Security Agreement or the Subsidiary Pledge and
Security Agreement, as the case may be; and the Administrative Agent and
the Secured Party shall be authorized to take such actions as the
Administrative Agent or the Secured Party reasonably deems appropriate in
connection therewith."
II. Miscellaneous
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1. The Borrower hereby represents and warrants that (x) all
representations and warranties contained in Section 4 of the Credit Agreement
are true and correct in all material respects on and as of the Amendment
Effective Date (as defined below) after giving effect to this Sixth Amendment
(unless such representations and warranties relate to a specific earlier date,
in which case such representations and warranties shall be true and correct as
of such earlier date) and (y) there exists no Default or Event of Default on the
Amendment Effective Date, after giving effect to this Sixth Amendment.
2. This Sixth Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any provision of the Credit
Agreement or any other Loan Document except as expressly set forth herein.
3. This Sixth Amendment may be executed in any number of counterparts
and by the different parties hereto on separate counterparts, each of which
counterparts when executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Borrower and the Administrative Agent.
4. THIS SIXTH AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK.
5. This Sixth Amendment shall become effective as of the date hereof
on the date (the "Amendment Effective Date") when each of the Borrower and the
Required Lenders shall have signed a counterpart hereof (whether the same or
different counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the Administrative Agent at its notice office, shall
have been signed by the parties thereto.
6. From and after the Amendment Effective Date, all references in the
Credit Agreement and each of the Loan Documents to the Credit Agreement shall be
deemed to be references to the Credit Agreement after giving effect to this
Sixth Amendment.
* * *
IN WITNESS WHEREOF, the parties hereto have caused a counterpart of
this Sixth Amendment to be duly executed and delivered as of the date first
above written.
U.S.I. HOLDINGS CORPORATION
By /s/ Illegible
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Name: Illegible
Title: Treasurer
CREDIT LYONNAIS CAYMAN ISLAND
BRANCH
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signature
JPMORGAN CHASE BANK
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
FIRSTAR BANK, N.A
By
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Name:
Title:
LASALLE BANK NATIONAL
ASSOCIATION
By
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Name:
Title:
PILGRIM PRIME RATE TRUST
By: Pilgrim Investments, Inc.
as its investment manager
By
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Name:
Title:
PILGRIM AMERICA HIGH INCOME
INVESTMENTS, LTD.
By: Pilgrim Investments, Inc.
as its investment manager
By
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Name:
Title:
SCHEDULE I
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USI Holdings
Net Proceeds from Sale of USIA
($ in millions)
$Amount
Upfront Payment:
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Proceeds from Sale $24.0
Less: Estimated Working Capital Adj. (2.0)(a)
Less: Repayment of Seller Notes (4.5)
Less: Investment Banking Fee (0.6)
Less: Retention Plan (1st Installment) (0.3)(b)
Less: Attorney Fees & Other Misc (0.3)
Net Proceeds to Repay Bank Debt $16.3
Deferred Payment:
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Proceeds from Sale $13.0
Less: Estimated Working Capital Adj. (2.0)
Less: Capital Leases Assumed (2.5)
Less: Mgmt Sale Bonus (1.0)
Less: Retention Plan (2nd Installment) (0.3)(b)
Less: Potential ▇▇▇ ▇▇▇▇▇▇▇▇▇ Liability (2.0)(c)
Less: Potential Est. E&O Claims 1.0
Net Proceeds to USI $ 6.2
(a) Document is currently drafted such that this portion of working capital
deficit will be netted from deferred payment; however, we expect that the
buyer upon audit of balance sheet will challenge this.
(b) ▇▇▇▇▇▇▇▇▇▇ retention payment paid 50% at closing and 50% on the six month
anniversary.
(c) We have agreed to assume 50% of severance obligations that arise from
terminations in first year based on employment agreements currently in
place. Estimated maximum exposure is noted here.
