exv10w1



 



EXECUTION COPY



     TENTH AMENDMENT AND CONSENT dated as of December 3, 2004
(this “Amendment”), to the Credit Agreement dated as of September
22, 2000 (the “Credit Agreement”), as heretofore amended, among
Select Medical Corporation, a Delaware corporation (the
“Company”), Canadian Back Institute Limited, an Ontario
corporation and a wholly owned subsidiary of the Company (“CBIL”
and, together with the Company, the “Borrowers”), the Lenders
party thereto, JPMorgan Chase Bank, N.A. (formerly known as
JPMorgan Chase Bank), as US Agent and US Collateral Agent,
JPMorgan Chase Bank, Toronto Branch (as successor to J.P. Morgan
Bank Canada), as Canadian Agent and Canadian Collateral Agent,
Banc of America Securities, LLC, as Syndication Agent, and CIBC,
Inc., as Documentation Agent.



     WHEREAS, the Borrowers have requested that the Lenders (such term and each
other capitalized term used but not otherwise defined herein having the meaning
assigned to it in the Credit Agreement) approve the amendment of certain
provisions of the Credit Agreement;



     WHEREAS, the undersigned Lenders are willing, on the terms and subject to
the conditions set forth herein, to approve such amendment;



     NOW, THEREFORE, in consideration of the premises, the Borrowers and the
undersigned Lenders hereby agree as follows:



     SECTION 1. Amendment. Effective as of the Amendment Effective Date (as
defined in Section 4), the parties hereto hereby amend the Credit Agreement as
follows:



     (a) Amendment of Section 1.01. Section 1.01 is hereby amended as follows:



     (i) The following new defined terms are added in their appropriate
alphabetical order:



     ““SemperCare Acquisition” means the Acquisition of SemperCare, Inc., a
Delaware corporation, by the Company made pursuant to an Agreement and Plan of
Merger and Reorganization, by and among the Company, Camp Hill Acquisition
Corp., a Delaware corporation, SemperCare, Inc. and Jeffrey J. Collinson, as
stockholders’ agent, substantially in the form delivered to the US Agent prior
to the Tenth Amendment Effective Date.”



     ““Tenth Amendment Effective Date” means the date on which the Tenth
Amendment to this Agreement shall have become effective in accordance with its
terms.”



     (ii) The definition of “Permitted Acquisition” is amended by inserting
at the end of clause (d) of such definition the following proviso:



 









 





     “provided that the SemperCare Acquisition shall not be subject to the
limitation set forth in this clause (d) and, solely for the purposes of this
clause (d), shall be excluded in computing the aggregate consideration paid in
connection with Acquisitions during the fiscal year in which such Acquisition
is completed.”



     (b) Amendment of Section 6.05. Section 6.05(i) is hereby amended to read
as follows:



     “(i) other unsecured Indebtedness (A) of the Company or any Subsidiary
incurred in connection with Permitted Acquisitions or acquisitions of interests
in Joint Ventures permitted under Section 6.09, in each case, after the date
hereof or (B) of a Person existing at the time such Person becomes a Subsidiary
pursuant to a Permitted Acquisition after the date hereof; provided that such
Indebtedness was not created in contemplation of such Person becoming a
Subsidiary; provided further that the aggregate principal amount of all such
Indebtedness under this paragraph (i) outstanding at any time does not exceed
US$20,000,000;”



     SECTION 2. Consent. The undersigned Lenders hereby consent to the
acquisition of SemperCare, Inc., a Delaware corporation, by the Company made
pursuant to and on substantially the terms set forth in the Agreement and Plan
of Merger and Reorganization, by and among the Company, Camp Hill Acquisition
Corp., a Delaware corporation, SemperCare, Inc. and Jeffrey J. Collinson, as
stockholders’ agent, substantially in the form delivered to the US Agent prior
to the Amendment Effective Date.



     SECTION 3. Representations and Warranties. Each of the Borrowers
represents and warrants to each of the Lenders that, after giving effect to the
amendments contemplated hereby, (a) the representations and warranties of such
Borrower set forth in the Credit Agreement are true and correct in all material
respects on and as of the date of this Amendment, except to the extent such
representations and warranties expressly relate to an earlier date (in which
case such representations and warranties shall be true and correct in all
material respects as of the earlier date) and (b) no Default has occurred and
is continuing.



     SECTION 4. Effectiveness. This Amendment shall become effective as of the
date (the “Amendment Effective Date”) when the US Agent (or its counsel) shall
have received (i) counterparts of this Amendment signed on behalf of the
Borrowers and the Required Lenders or (ii) written evidence satisfactory to the
US Agent (which may include telecopy transmissions of signed signature pages)
that the Borrowers and the Required Lenders have signed counterparts of this
Amendment.



     SECTION 5. Applicable Law. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.



     SECTION 6. No Other Amendments. Except as expressly set forth herein,
this Amendment shall not by implication or otherwise limit, impair, constitute
a



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waiver of, or otherwise affect the rights and remedies of any party under,
the Credit Agreement, nor alter, modify, amend or in any way affect any of the
terms, conditions, obligations, covenants or agreements contained in the Credit
Agreement, all of which are ratified and affirmed in all respects and shall
continue in full force and effect. This Amendment shall apply and be effective
only with respect to the provision of the Credit Agreement specifically
referred to herein. This Amendment shall constitute a “Loan Document” for all
purposes of the Credit Agreement and the other Loan Documents.



     SECTION 7. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute but one contract. Delivery of an executed
counterpart of a signature page of this Amendment by facsimile transmission
shall be as effective as delivery of a manually executed counterpart of this
Amendment.



     SECTION 8. Headings. Section headings used herein are for convenience of
reference only, are not part of this Amendment and are not to affect the
construction of, or to be taken into consideration in interpreting, this
Amendment.



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     IN WITNESS WHEREOF, the Borrower and the undersigned Lenders have caused
this Amendment to be duly executed by their duly authorized officers, all as of
the date first above written.


	 	 	 	 	 
	 	SELECT MEDICAL CORPORATION,

 	 
	 	    by	/s/ Michael E. Tarvin	 
	 	  	Name: Michael E. Tarvin 	 
	 	  	Title: Senior Vice President 	 
	 



	 	 	 	 	 
	 	CANADIAN BACK INSTITUTE LIMITED,

 	 
	 	    by	/s/ Michael E. Tarvin	 
	 	  	Name: Michael E. Tarvin 	 
	 	  	Title: Vice President 	 
	 



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A. (FORMERLY KNOWN AS
JPMORGAN CHASE BANK), individually and as US Agent
and US Collateral Agent,

 	 
	 	    by	/s/ Stephanie Parker	 
	 	  	Name: Stephanie Parker 	 
	 	  	Title: Vice President 	 
	 



	 	 	 	 	 
	 	JPMORGAN CHASE BANK, TORONTO BRANCH, individually
and as Canadian Agent and Canadian Collateral
Agent,

 	 
	 	    by	/s/ Stephanie Parker	 
	 	  	Name: Stephanie Parker 	 
	 	  	Title: Vice President 	 




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	 	To approve the Tenth Amendment and Consent

(the “Amendment”) dated as of December 3, 2004

to the Select Medical Corporation Credit

Agreement:

 

CAYLON NEW YORK BRANCH



	 
	 	    by	/s/ Charles Heidsieck	 
	 	  	Name: Charles Heidsieck 	 
	 	  	Title: Managing Director 	 
	 



	 	 	 	 	 
	 	 	 
	 	    by	/s/ Yannick Ergas	 
	 	  	Name: Yannick Ergas 	 
	 	  	Title: Vice President 	 



 









 






	 	 	 	 	 
	 	To approve the Tenth Amendment and Consent

(the “Amendment”) dated as of December 3, 2004

to the Select Medical Corporation Credit

Agreement:





Name of Institution:


	 
	 	CIBC INC.	 
	 
	 	    by	/s/ George Knight	 
	 	  	Name: George Knight 	 
	 	  	Title: Managing Director,

CIBC World Markets Corp., as
agent 
	 



 









 







	 	 	 	 	 
	 	To approve the Tenth Amendment and Consent

(the “Amendment”) dated as of December 3, 2004

to the Select Medical Corporation Credit

Agreement:




Name of Institution:



CREDIT SUISSE FIRST BOSTON, acting through its New York Branch



	 
	 	    by	/s/ Paul L. Colon	 
	 	  	Name: Paul L. Colon 	 
	 	  	Title: Director 	 
	 



	 	 	 	 	 
	 	 	 
	 	    by	/s/ Karim Blasetti	 
	 	  	Name: Karim Blasetti 	 
	 	  	Title: Associate 	 



 









 







	 	 	 	 	 
	 	To approve the Tenth Amendment and Consent

(the “Amendment”) dated as of December 3, 2004

to the Select Medical Corporation Credit

Agreement:



Name of Institution:



FLEET NATIONAL BANK



	 
	 	    by	/s/ Kevin Wagley	 
	 	  	Name: Kevin Wagley 	 
	 	  	Title: Senior Vice President 	 



 









 






	 	 	 	 	 
	 	To approve the Tenth Amendment and Consent

(the “Amendment”) dated as of December 3, 2004

to the Select Medical Corporation Credit

Agreement:




Name of Institution:



GENERAL ELECTRIC CAPITAL CORPORATION



	 
	 	    by	/s/ Mei Nishiwaki	 
	 	  	Name: Mei Nishiwaki 	 
	 	  	Title: Duly Authorized Signatory 	 
	 



	 	 	 	 	 
	 	    by	 	 
	 	    	 Name:

Title:	 



 









 







	 	 	 	 	 
	 	To approve the Tenth Amendment and Consent

(the “Amendment”) dated as of December 3, 2004

to the Select Medical Corporation Credit

Agreement:




Name of Institution:



PNC BANK, N.A.



	 
	 	    by	/s/ Jeffrey DeLay	 
	 	  	Name: Jeffrey DeLay 	 
	 	  	Title: Assistant Vice President 	 
	 




	 	 	 	 	 
	 	    by	 	 
	 	    	
Name:

Title:






 









 






	 	 	 	 	 
	 	To approve the Tenth Amendment and Consent

(the “Amendment”) dated as of December 3, 2004

to the Select Medical Corporation Credit

Agreement:





Name of Institution:



SOCIETE GENERALE



	 
	 	    by	/s/ Jerry Parisi	 
	 	  	Name: Jerry Parisi 	 
	 	  	Title: Managing Director 	 
	 




	 	 	 	 	 
	 	    by	 	 
	 	    	
Name:

Title:




 









 





	 	 	 	 	 
	 	To approve the Tenth Amendment and Consent

(the “Amendment”) dated as of December 3, 2004

to the Select Medical Corporation Credit

Agreement:




Name of Institution:



WACHOVIA BANK, NATIONAL ASSOCIATION



	 
	 	    by	/s/ Jeanette A. Griffith	 
	 	  	Name: Jeanette A. Griffin 	 
	 	  	Title: Director 	 
	 



	 	 	 	 	 
	 	    by	 	 
	 	    	
Name:

Title: