EXHIBIT 10.1.7
EXECUTION COPY
SEVENTH AMENDMENT TO CREDIT AGREEMENT
SEVENTH AMENDMENT TO CREDIT AGREEMENT dated as of February 14, 1997
(this "Amendment") among Physician Corporation of America (the "Borrower"), the
banks listed on the signature pages hereof (the "Lenders"), Citibank, N.A., as
issuing bank (the "Issuing Bank"), and Citibank, N.A., as agent for the Lenders
and Issuing Bank (the "Agent").
PRELIMINARY STATEMENTS:
1. The Borrower, the Lenders, the Issuing Bank and the Agent are
parties to that certain Revolving Credit Agreement dated as of October 27, 1994,
as amended by an Amendment to Credit Agreement and Consent to Acquisition dated
as of September 22, 1995, by a Second Amendment to Credit Agreement dated as of
March 29, 1996, by a Third Amendment to Credit Agreement dated as of April 5,
1996, by a Fourth Amendment and Consent Agreement dated as of June 10, 1996, by
a Fifth Amendment and Waiver Agreement dated as of November 25, 1996 and by a
Sixth Amendment and Waiver Agreement dated as of January 8, 1997 (such Revolving
Credit Agreement, as so amended and as further amended, supplemented or
otherwise modified and in effect from time to time being the "Credit
Agreement"). Capitalized terms defined in the Credit Agreement and not
otherwise defined herein are used herein as therein defined; and capitalized
terms defined in Section 1 hereof are used elsewhere herein as so defined
(without regard to the conditions to effectiveness in Section 4 hereof).
2. The Borrower has requested that the Issuing Bank and the Lenders
amend the Credit Agreement to extend the dates comprising certain components of
the Fifth Amendment Termination Date, due to delays that the Borrower expects
will be incurred in connection with the transactions leading up to the closing
of the Merger, in each case on the terms and subject to the conditions hereof.
The Borrower has determined that it will be unable to provide one or more
commitment letters or agreements that will satisfy the requirements for the
Refinancing Commitment specified in the Credit Agreement. As a result, the
Borrower has further requested that the Issuing Bank and Lenders amend the
Credit Agreement so as to eliminate failure to deliver the Refinancing
Commitment as an event that would trigger the Fifth Amendment Termination Date,
on and subject to the terms hereof.
3. The Issuing Bank and the Lenders are willing to agree to such
amendments requested by the Borrower, in each case on the terms and subject to
the conditions hereof.
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NOW, THEREFORE, in consideration of the premises and mutual agreements
set forth herein, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT. (a) (i) The
definition of "Applicable Base Rate Margin" set forth in Section 1.01 of the
Credit Agreement is hereby amended in its entirety so as to read in full as
follows:
"'APPLICABLE BASE RATE MARGIN' means, at all times on and after
February 17, 1997, 1.00%."
(ii) Clause (ii) of the definition of "Fifth Amendment Termination
Date" set forth in Section 1.01 of the Credit Agreement is hereby deleted
in its entirety; and Section 3 of the Fifth Amendment is deemed effective
notwithstanding the Borrower's failure to satisfy the conditions of Section
7 of the Fifth Amendment in full.
(iii) Clause (vii) of the definition of "Fifth Amendment Termination
Date" set forth in Section 1.01 of the Credit Agreement is hereby amended
by changing the date February 17, 1997 appearing therein to March 20, 1997.
(iv) Clause (viii) of the definition of "Fifth Amendment Termination
Date" set forth in Section 1.01 of the Credit Agreement is hereby amended
by changing the date February 24, 1997 appearing therein to March 24, 1997.
(v) Clause (x) of the definition of "Fifth Amendment Termination
Date" set forth in Section 1.01 of the Credit Agreement is hereby amended
in its entirety so as to read in full as "April 30, 1997".
(vi) The definition of "Loan Documents" set forth in Section 1.01 of
the Credit Agreement is hereby amended in its entirety so as to read in
full as follows:
"'LOAN DOCUMENTS' means this Agreement, the Notes, the Fee
Letter, the Second Amendment, the Borrower Pledge Agreement
(including, without limitation, the Amendment to Borrower Pledge
Agreement delivered pursuant to the Fourth Amendment), each of the
Guaranties, Security Agreements and other documents delivered by the
Borrower or any of its Subsidiaries pursuant to Section 6 of the
Second Amendment, the Fourth Amendment, the PFI Consideration Pledge
Agreement (including, without limitation, the Amendment to Borrower
Security Agreement delivered pursuant to the Fifth Amendment), the PFI
Consideration Consent Agreement, the Fifth Amendment, the Sixth
Amendment, the Seventh Amendment and any document delivered by the
Borrower for the benefit of the Lenders, Issuing
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Bank or Agent in connection with the Sierra Subordinated Note, in each
case as amended, supplemented or otherwise modified from time to
time."
(b) Section 1.01 of the Credit Agreement is hereby amended by the addition
of the following definition thereto:
"SEVENTH AMENDMENT" means the Seventh Amendment to Credit Agreement
dated as of February 14, 1997 among the Borrower, the Lenders parties
thereto, the Issuing Bank and the Agent.
(c) Section 2.07(b) of the Credit Agreement is hereby amended in its
entirety so as to read in full as follows:
"(b) DEFAULT INTEREST. Upon the occurrence and during the
continuance of an Event of Default, the Borrower shall pay interest on the
unpaid principal amount of each Advance owing to each Lender and, to the
fullest extent permitted by law, on the unpaid amount of all interest, fees
and other amounts payable hereunder and under the other Loan Documents,
payable in arrears on demand by the Agent and on the date such amount shall
be paid in full, at a rate per annum equal at all times to 3% per annum
above the Base Rate in effect from time to time (computed on the basis of a
year of 360 days for the actual number of days (including the first day but
excluding the last day) occurring during the period for which such interest
is payable)."
SECTION 2. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
represents and warrants as follows:
(a) All representations and warranties of the Borrower contained in
the Credit Agreement, both before and after giving effect to Section 1
hereof, are true in all material respects (except for any such
representation or warranty (or portion thereof) that is qualified by
reference to a specific materiality standard, in which case such
representation or warranty is true in all respects).
(b) Without limiting the representations and warranties made in
subsection (a) above or in the Credit Agreement, no authorization, consent,
approval or other action by, and no notice to or filing with, any HMO
Regulator or Insurance Regulator is required for, and no HMO Event,
Insurance Event or violation of the HMO Regulations or Insurance
Regulations would result from, the due execution, delivery or performance
by the Borrower or any Loan Party of this Amendment or any of the Loan
Documents and other documents to be delivered in connection herewith.
SECTION 3. REFERENCE TO AND EFFECT ON LOAN DOCUMENTS. (a) On and
after the date hereof, each reference in the Credit Agreement to "this
Agreement",
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"hereunder", "hereof", "herein", or words of like import referring to the Credit
Agreement, and each reference to the Credit Agreement in the other Loan
Documents, shall mean and be a reference to the Credit Agreement as amended
hereby.
(b) Except as specifically amended under Section 1 hereof, each of
the Credit Agreement and each other Loan Document shall remain in full force and
effect and is hereby ratified and confirmed.
(c) The Borrower acknowledges and agrees that, except to the extent
specifically amended under Section 1 hereof, it is obligated to comply with each
and every term, covenant, agreement and condition applicable to it under the
Credit Agreement or the other Loan Documents. The execution, delivery and
effectiveness of this Amendment shall not otherwise operate as a waiver of any
right, remedy or privilege of any Lender, the Issuing Bank or the Agent under
the Credit Agreement or any other Loan Document, any and all of which rights,
remedies and privileges are reserved.
SECTION 4. CONDITIONS OF EFFECTIVENESS. Section 1 of this Amendment
shall become effective as of February 17, 1997, if and only if all of the
following conditions precedent are satisfied on or before February 18, 1997:
(a) The Agent shall have received counterparts of this Amendment duly
executed by the Borrower, the Issuing Bank and each Lender and a
counterpart of the Consent of Guarantor attached hereto duly executed by
the Guarantor.
(b) The Borrower shall have furnished to the Lenders, Issuing Bank
and Agent copies of a bank commitment letter and highly confident letters
that are substantially in conformity with the description of such letters
set forth under the heading "Modification of Takeout Commitment" in the
letter dated February 10, 1997 from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of the Borrower to
the Lenders.
(c) The Agent shall have received on or before February 18, 1997 the
following, each dated such date (unless otherwise specified), in form and
substance satisfactory to the Agent, the Issuing Bank and the Majority
Lenders (unless otherwise specified) and in sufficient copies for the
Agent, Issuing Bank and each Lender:
(i) A certificate, duly executed by the Borrower's Chief
Executive Officer or Chief Financial Officer, certifying that (i) on
such date, after giving effect to Section 1 hereof, no Default or
Event of Default has occurred and is continuing (ii) on such date,
after giving effect to Section 1 hereof, no event or circumstance has
occurred that will cause the occurrence of the Fifth Amendment
Termination Date and (iii) the representations and warranties set
forth in Section 2 hereof are true on and as of such date.
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(ii) Certified copies of the resolutions of the Board of
Directors of the Borrower approving this Amendment, and of all
documents evidencing other necessary corporate action and governmental
and other third party approvals and consents, if any, with respect
each such Loan Document.
(iii)A certificate of the Secretary or an Assistant Secretary of
the Borrower certifying the names and true signatures of the officers
of the Borrower authorized to sign this Amendment.
(iv) A legal opinion from Greenberg, Traurig, Hoffman, Lipoff,
▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A., counsel to the Borrower, as to this Amendment
and the Credit Agreement, as amended hereby, in form and substance
satisfactory to the Agent.
(d) The Borrower shall have paid to the Agent, in immediately
available funds for the rateable account of the Lenders, a fee in the
amount of 1.00% of the aggregate amount of the Advances and Letter of
Credit Liability outstanding on the date hereof.
(e) The Borrower shall have paid all amounts accrued and payable
under Section 9.04 of the Credit Agreement to the extent that request for
such payment has been made to the Borrower.
SECTION 5. COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by different parties hereto on separate counterparts,
each of which, when so executed and delivered, shall be an original, but all
such counterparts shall together constitute one and the same agreement.
SECTION 6. PARTIAL FEE REBATE. In the event that the Borrower
pays all of the Obligations in full on or before April 30, 1997 (including,
without limitation, replacement and termination of any outstanding Letter of
Credit), then one-half of the aggregate amount of the fee paid pursuant to
Section 4(d) of this Amendment shall be rebated, by application thereof rateably
as a credit against the outstanding Advances and Letter of Credit Liability.
SECTION 7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED 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 duly executed and delivered by their respective officers thereunto duly
authorized, as of the date first above written.
THE BORROWER:
PHYSICIAN CORPORATION OF AMERICA
By:
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Name:
Title:
THE LENDERS AND ISSUING BANK:
CITIBANK, N.A., as Lender and as Issuing Bank
By:
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Name:
Title:
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
By:
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Name:
Title:
NATIONSBANK OF TENNESSEE
By:
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Name:
Title:
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BOATMEN'S NATIONAL BANK (formerly known as
Boatmen's First National Bank of Kansas City)
By:
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Name:
Title:
SUNTRUST BANK, MIAMI, N.A.
By:
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Name:
Title:
THE BANK OF NOVA SCOTIA
By:
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Name:
Title:
CONSENT OF GUARANTOR
The undersigned, as Guarantor under that certain Guaranty dated as of
March 29, 1996 (the "Guaranty") made in favor of the lenders parties to the
Revolving Credit Agreement referred to in the foregoing Seventh Amendment to
Credit Agreement, the Issuing Bank and the Agent (in each case as defined in
such Revolving Credit Agreement), hereby consents to such Seventh Amendment to
Credit Agreement (and to all prior amendments, waivers, consents and other
modifications to or under such Revolving Credit Agreement) and confirms and
agrees that notwithstanding such Seventh Amendment to Credit Agreement (or any
prior such amendment, waiver, consent or other modification) the Guaranty is,
and shall continue to be, in full force and effect and is hereby ratified and
confirmed in all respects.
PCA SOLUTIONS, INC.
By
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Name:
Title: