Exhibit 10.2
FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT, dated as of the 30th day of
June, 2003 (this "Amendment"), is made by and between PROVINCE HEALTHCARE
COMPANY, a Delaware corporation (the "Borrower"), the Lenders (as hereinafter
defined) party to the Credit Agreement referred to below, and WACHOVIA BANK,
NATIONAL ASSOCIATION (formerly known as First Union National Bank), as agent for
the Lenders (in such capacity, the "Agent").
BACKGROUND STATEMENT
A. The Borrower, certain banks and other financial institutions
(the "Lenders"), the Agent, Bank of America, N.A., as Syndication Agent, and UBS
Warburg LLC and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation, as Documentation Agents, are
parties to a Third Amended and Restated Credit Agreement, dated as of November
13, 2001, as amended by that certain Amendment No. 1 to Certain Operative
Agreements, dated as of March 29, 2002, by that certain Second Amendment to
Credit Agreement and Consent, dated as of March 28, 2003, and by that certain
Third Amendment to Credit Agreement and Consent, dated as of May 27, 2003 (as
amended, the "Credit Agreement"), providing for the availability of a revolving
credit facility to the Borrower upon the terms and conditions set forth therein.
Capitalized terms used herein without definition shall have the meanings given
to them in the Credit Agreement.
B. The Borrower has requested certain amendments to the Credit
Agreement, including an increase of the aggregate Revolving Credit Commitments
thereunder to $250,000,000.
C. The Lenders have agreed to such amendments on the terms and
subject to the conditions set forth herein.
STATEMENT OF AGREEMENT
The parties hereto agree as follows:
ARTICLE I
AMENDMENTS
1.1 Defined Terms. Section 1.1 of the Credit Agreement is hereby
amended by:
(a) deleting the definitions of "Collateral," "Consolidated Senior
Debt," "Mortgages," "Revolving Credit Commitment," "Revolving Credit Notes" and
"Revolving Credit Facility Maturity Date" therein and adding the following
defined terms in proper alphabetical order:
"Collateral" shall mean all the assets, property and interests
in property of the Borrower and its Subsidiaries, whether now owned or
hereafter acquired, that shall, from time to time, be pledged or be
purported to be pledged as direct or indirect security for the Credit
Obligations or the Guaranty Obligations pursuant to any one or more
Security Documents; provided, that except for Realty subject to the
Mortgages, "Collateral" shall not include Realty acquired after March
30, 1998 by the Borrower or any of its Subsidiaries.
"Consolidated Senior Debt" shall mean, as of any date of
determination, Consolidated Debt less Subordinated Debt (excluding from
Subordinated Debt for the purposes of this definition the lesser of (A)
$30,000,000 or (B) the aggregate principal amount of the 4-1/2%
Subordinated Notes outstanding as of such date).
"Mortgages" shall mean all fee and leasehold mortgages, deeds
of trust and similar instruments pursuant to which the Borrower or any
Guarantor grants to the Agent, for the benefit of the Lenders, a
mortgage lien, or an assignment of any mortgage lien obtained by such
Person from another Person, to secure any or all of the Credit
Obligations or the Guaranty Obligations, and shall include, without
limitation, (a) the deeds of trust and security agreements executed by
the Borrower and/or certain of its Subsidiaries with respect to the
parcels of Realty subject to Mortgages as of June 30, 2003, located at
(i) Palo Verde Community Hospital, Blythe, Riverside County,
California; (ii) Parkview Regional Hospital, Mexia, Limestone County,
Texas; (iii) Colorado Plains Medical Center, Fort ▇▇▇▇▇▇, ▇▇▇▇▇▇
County, Colorado; (iv) Palestine Regional Medical Center-West Campus
(formerly known as Memorial Mother ▇▇▇▇▇▇▇ Hospital) (excluding the
medical office building thereon previously given as collateral for the
End Loaded Lease Facility), Palestine, ▇▇▇▇▇▇▇▇ and Houston Counties,
Texas; (v) Palestine Regional Medical Center (formerly known as Trinity
Valley Medical Center), Palestine, ▇▇▇▇▇▇▇▇ County, Texas; (vi) ▇▇▇▇▇▇
Memorial Hospital, Knox, ▇▇▇▇▇▇ County, Indiana; (vii) Colorado River
Medical Center, Needles, San Bernardino County, California (formerly
known as Needles Desert Community Hospital) (excluding the medical
office building previously given as collateral for the End Loaded Lease
Facility), (viii) Havasu Regional Medical Center, Lake Havasu City,
Mohave County, Arizona, (ix) Memorial Hospital of Martinsville and
▇▇▇▇▇ County, Martinsville, ▇▇▇▇▇ County, Virginia, (x) Los Alamos
Medical Center, Los Alamos, Los Alamos County, New Mexico, (xi)
Doctors' Hospital of Opelousas, Opelousas, St. Landry Parish, Louisiana
(excluding the medical office building thereon previously given as
collateral for the End Loaded Lease Facility), (xii) Minden Medical
Center, Minden, Webster Parish, Louisiana, and (xiii) Bolivar Medical
Center, Cleveland, Bolivar County, Mississippi, and (b) the mortgage,
deed of trust or similar instrument delivered by PHC-Elko, Inc.
pursuant to Section 4.1 of the Fourth Amendment to Credit Agreement,
dated as of June 30, 2003, with respect to the Realty located at
Northeastern Nevada Regional Hospital, Elko, Elko County, Nevada
(excluding a non-contiguous parcel of approximately 2.169 acres on
which is located the Elko Medical Clinic Building), in all cases
together with any amendments, modifications and supplements thereto,
any replacements, renewals, extensions and restatements thereof, and
any substitutes therefor, in whole or in part.
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"Other Joint Venture" shall mean a Non-Wholly Owned Subsidiary
that does not qualify as Permitted Joint Venture and that is identified
as an Other Joint Venture by the Borrower to the Agent by written
notice at the time of the Acquisition or creation thereof: (i) the sole
activity of which is to own, lease or operate Facilities and/or
facilities providing services ancillary to such Facilities, (ii) for
which any Capital Stock (if any) of such Other Joint Venture acquired
from the Borrower or any Subsidiary by Persons other than the Borrower
or a wholly owned Subsidiary of the Borrower is acquired for Fair
Market Value (reasonable evidence of which shall be provided to the
Agent upon its request), and (iii) with respect to which, after giving
effect to the designation of such Subsidiary as an Other Joint Venture,
no Default or Event of Default would exist.
"Pledged Debt" shall have the meaning assigned to such term in
the Pledge Agreement.
"Revolving Credit Commitment" shall mean, with respect to any
Lender at any time, the amount set forth next to such Lender's name on
SCHEDULE A attached hereto under the caption "Revolving Credit
Commitment" or, if such Lender has entered into one or more Assignment
and Acceptances after June 30, 2003, the amount set forth for such
Lender at such time in the Register maintained by the Agent pursuant to
SECTION 10.5(c) as such Lender's "Revolving Credit Commitment," as such
amount may be increased or reduced at or prior to such time pursuant to
the terms hereof.
"Revolving Credit Facility Maturity Date" shall mean November
13, 2006.
"Revolving Credit Notes" shall mean the promissory notes of
the Borrower in substantially the form of EXHIBIT A-1, executed and
delivered to the Lenders with Revolving Credit Commitments pursuant to
the Fourth Amendment to Credit Agreement, dated as of June 30, 2003, by
and between the Borrower, the Lenders and the Agent or, in connection
with an Assignment and Acceptance, pursuant to SECTION 10.5(d),
together with any amendments, modifications and supplements thereto and
restatements thereof, in whole or in part.
(b) deleting the word "Interests" in clause (a) of the definition
of "Consolidated Net Income" and in the first sentence of the definition of
"Subsidiary" and inserting in lieu thereof the words "Capital Stock".
(c) deleting the penultimate sentence in the definition of
"Permitted Joint Ventures" and inserting in lieu thereof the following:
The parties hereto agree that, as of June 30, 2003, the Palestine
Limited Partnership, ▇▇▇▇▇▇▇ Regional Medical Center, LLC and Great
Basin Surgical Center L.L.C. (if acquired as contemplated by that
certain Consent and Waiver, dated as of June 5, 2003, between the
Borrower, certain of the Lenders and the Agent) shall be deemed
Permitted Joint Ventures whether or not they satisfy the definition of
"Permitted Joint Venture" as of such date.
1.2 Notes. Section 2.3 of the Credit Agreement is hereby amended
by deleting subsection (b) thereof in its entirety and inserting in lieu thereof
the following:
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(b) The Revolving Credit Note issued to each Lender with
a Revolving Credit Commitment shall (i) be executed by the Borrower,
(ii) be payable to the order of such Lender, (iii) be dated as of June
30, 2003 (or, in the case of Revolving Credit Notes issued pursuant to
an Assignment and Acceptance after June 30, 2003, as of the date
thereof), (iv) be in a stated principal amount equal to such Lender's
Revolving Credit Commitment, (v) bear interest in accordance with the
provisions of SECTION 2.6, as the same may be applicable to the
Revolving Credit Loans made by such Lender from time to time, and (vi)
be entitled to all of the benefits of this Agreement and the other Loan
Documents and subject to the provisions hereof and thereof.
1.3 End Loaded Lease Facility. As a result of the termination of
the End Loaded Lease Facility pursuant to that certain Termination Letter
Agreement, dated as of May 23, 2003, the terms and provisions of the Credit
Agreement with respect thereto shall have no further force or effect and shall
be disregarded for all purposes.
1.4 Representations and Warranties.
(a) Section 4.3 of the Credit Agreement is hereby amended by
deleting the phrase "Stock or Interests" in the last sentence thereof and
inserting in lieu thereof the words "Capital Stock".
(b) Section 4.23 of the Credit Agreement is hereby amended by
adding the phrase "and in Other Joint Ventures" immediately after the words
"Permitted Joint Ventures" in the introductory clause thereof.
1.5 Affirmative Covenants.
(a) Section 5.4(a) of the Credit Agreement is hereby amended by
adding the phrase "or Other Joint Venture" immediately after the parenthetical
phrase "(other than Palestine Limited Partnership)" therein.
(b) Section 5.4(b) of the Credit Agreement is hereby amended by
adding the phrase ", Other Joint Ventures" immediately after the parenthetical
phrase "(other than Palestine Limited Partnership)" in the last sentence
thereof.
(c) Section 5.11 of the Credit Agreement is hereby amended by
deleting such section in its entirety and inserting in lieu thereof the
following:
5.11 Creation or Acquisition of New Subsidiaries. The Borrower
and its Subsidiaries may from time to time create or acquire new
Subsidiaries subject to the terms of this Agreement, provided that (i)
each new Subsidiary (which shall exclude Permitted Joint Ventures
constituting Non-Wholly Owned Subsidiaries (other than the Palestine
Limited Partnership) and Other Joint Ventures for purposes of this
Section 5.11) having assets with a gross value (determined in
accordance with Generally Accepted Accounting Principles) in excess of
$100,000 (or upon obtaining assets, including but not limited to the
proceeds of Investments, loans, or other distributions from the
Borrower or another Subsidiary, in excess of $100,000 in the case of an
existing Subsidiary which previously had assets with a gross value less
than $100,000) will
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execute and deliver to the Agent (with sufficient copies for each
Lender) an amendment or accession to the Guaranty Agreement (pursuant
to which such new Subsidiary shall become a party thereto), an
amendment or accession to the Pledge Agreement, Financing Statements,
certificates of title, stock certificates and other documents
reasonably required by the Agent, all in form and substance
satisfactory to the Agent, pursuant to which such new Subsidiary shall
secure its obligations under the Guaranty Agreement by first priority,
perfected security interests in all Capital Stock and Pledged Debt
owned by such Subsidiary, subject only to Permitted Liens, (ii) the
Borrower and/or the other Guarantors will execute and deliver to the
Agent (with sufficient copies for each Lender) an amendment or
supplement to the Pledge Agreement, in form and substance satisfactory
to the Agent, pursuant to which all of the Capital Stock of such new
Subsidiary (including Permitted Joint Ventures and Other Joint
Ventures, except for such Other Joint Ventures the organizational
documents of which would prohibit the pledge of such Capital Stock to
the Agent pursuant to the Pledge Agreement) that is directly or
indirectly owned by the Borrower shall be pledged to the Agent under
the Pledge Agreement, together with the certificates representing such
Capital Stock and stock powers duly executed in blank, and (iii) the
Borrower will cause each such new Subsidiary to execute and deliver,
and will cause to be delivered, all documentation of the type described
in Sections 3.1.2(b), 3.1.2(c), 3.1.2(d) and 3.1.2(e) as such new
Subsidiary would have had to deliver were it a Subsidiary on the
Amendment Effective Date; provided, that Permitted Joint Ventures
constituting Non-Wholly Owned Subsidiaries shall be identified by the
Borrower to the Agent as Permitted Joint Ventures, and Other Joint
Ventures shall be identified by the Borrower to the Agent as Other
Joint Ventures, and shall only be required to provide documentation of
the type described in Sections 3.1.2(b), 3.1.2(c) and 3.1.2(e).
1.6 Negative Covenants.
(a) Section 6.1 of the Credit Agreement is hereby amended by
adding the phrase "or an Other Joint Venture" immediately after the words
"Permitted Joint Venture" in subsection (ii) thereof.
(b) Section 6.2 of the Credit Agreement is hereby amended by:
(i) deleting subsections (v) and (vi) thereof in their
entirety and inserting in lieu thereof the following:
(v) unsecured intercompany Debt (x) of any
Subsidiary (other than an Other Joint Venture) to the Borrower
(provided, that unsecured intercompany Debt of Permitted Joint
Ventures, when aggregated with dispositions of assets to
Permitted Joint Ventures permitted under Section 6.5(iii) and
restricted investments in Permitted Joint Ventures permitted
under Section 6.7(m), shall not exceed $20,000,000 in the
aggregate (excluding for purposes of calculating such
$20,000,000 basket, Acquisition Amounts incurred in connection
with Permitted Acquisitions and other amounts consented to by
the Required Lenders in writing), (y) of any Subsidiary (other
than a Permitted Joint Venture or an Other Joint Venture) to a
Guarantor (other than a Permitted Joint Venture or an Other
Joint
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Venture), and (z) of the Borrower to any Guarantor (other than
a Permitted Joint Venture or an Other Joint Venture), provided
that any such Debt under this clause (v) is incurred in the
ordinary course of business and, if requested by the Agent or
required pursuant to Section 5.10(a), is evidenced by one or
more promissory notes pledged to the Agent pursuant to the
Pledge Agreement, is payable on demand and, is fully
subordinated in right of payment to the Credit Obligations and
the Guaranty Obligations, as applicable; and provided further,
that intercompany Debt for money borrowed by Palestine Limited
Partnership shall not exceed those obligations evidenced by
Palestine Limited Partnership Notes and that all other
intercompany Debt owed by Palestine Limited Partnership shall
not exceed amounts currently payable pursuant to the Hospital
Management Agreement dated July 12, 1996, between
Palestine-Principal, Inc., a Tennessee corporation, and
Palestine Limited Partnership, as such agreement may be
amended, supplemented or renewed from time to time in
compliance with Section 6.22 hereof.
(vi) Contingent Obligations permitted by Section
6.3, but excluding Contingent Obligations of the Borrower or
any Subsidiary with respect to Permitted Joint Ventures and
Other Joint Ventures unless (i) approved by the Required
Lenders or (ii) permitted by clause (v) or (xiii) of this
Section 6.2.
(ii) deleting subsection (xiii) thereof in its entirety
and inserting in lieu thereof the following:
(xiii) other Debt (including, without limitation,
Debt secured by purchase money liens described in clause (f)
of the definition of Permitted Liens and Capital Lease
Obligations) in an aggregate principal amount at any time
outstanding not to exceed $20,000,000 for the Borrower and its
Subsidiaries (excluding Permitted Joint Ventures); provided
that Debt of Other Joint Ventures other than unsecured
intercompany Debt shall not be permitted by this clause (xiii)
and unsecured intercompany Debt of Other Joint Ventures
permitted by this clause (xiii), when aggregated with
dispositions of assets to Other Joint Ventures permitted under
Section 6.5(iii) and restricted investments in Other Joint
Ventures permitted under Section 6.7(n), shall not exceed
$10,000,000.
(c) Section 6.3 of the Credit Agreement is hereby amended by
inserting the word "and" immediately after the semi-colon in subsection (xi)
thereof and by deleting subsection (xii) in its entirety and inserting in lieu
thereof the following:
(xii) other Contingent Obligations not to exceed $5,000,000
at any time (excluding Contingent Obligations of, and Contingent
Obligations of the Borrower or any Subsidiary supporting obligations
of, Permitted Joint Ventures and Other Joint Ventures).
(d) Section 6.5 of the Credit Agreement is hereby amended by
deleting clauses (iii) through (v) thereof in their entirety and inserting in
lieu thereof the following:
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(iii) any sale, lease, transfer or conveyance from one Subsidiary to
another Subsidiary or to the Borrower, or from the Borrower to any
Subsidiary, in accordance with Section 6.6, provided that, immediately
after giving effect thereto, no Default or Event of Default would
exist; and provided, further, that no sale, lease, transfer, conveyance
or other disposition of Collateral may be made from an Existing Pledgor
to any After-Acquired Pledgor unless such sale, lease, transfer,
conveyance or other disposition falls within the $15,000,000 basket set
forth in clause (v) below and, provided, further, that (y) sales,
leases, transfers and conveyances to Permitted Joint Ventures, when
aggregated with unsecured intercompany Debt of Permitted Joint Ventures
permitted under Section 6.2(v) and restricted investments in Permitted
Joint Ventures permitted under Section 6.7(m), shall not exceed
$20,000,000 in the aggregate (excluding Acquisition Amounts incurred in
connection with Permitted Acquisitions and other amounts consented to
by the Required Lenders in writing) and (z) sales, leases, transfers
and conveyances to Other Joint Ventures, when aggregated with unsecured
intercompany Debt of Other Joint Ventures permitted under Section
6.2(xiii) and restricted investments in Other Joint Ventures permitted
under Section 6.7(n), shall not exceed $10,000,000 in the aggregate;
(iv) [intentionally omitted]; and (v) the sale or disposition of assets
by the Borrower and its Subsidiaries (excluding dispositions to
Permitted Joint Ventures and to Other Joint Ventures) outside the
ordinary course of business for fair value and for cash, provided that
(w) the net cash proceeds from such sales or dispositions, when
aggregated with the net cash proceeds from all other sales and
dispositions not otherwise specifically permitted under this Section
that are consummated during any four consecutive fiscal quarters
immediately prior thereto, do not exceed $15,000,000 in the aggregate
for the Borrower and its Subsidiaries, (x) such net cash proceeds in
excess of $2,000,000 per disposition or $15,000,000 in the aggregate
over the term of this Agreement are delivered to the Agent promptly
after receipt thereof for application in prepayment of the Loans in
accordance with the provisions of Section 2.5(e), (y) in no event shall
the Borrower or any of its Subsidiaries sell or otherwise dispose of
any of the Capital Stock of any Subsidiary, and (z) immediately after
giving effect thereto, no Default or Event of Default would exist.
(e) Section 6.7 of the Credit Agreement is hereby amended by:
(i) deleting subsection (f) thereof in its entirety and
inserting in lieu thereof the following:
(f) investments in Subsidiaries and Permitted
Acquisitions made in accordance with terms of this Agreement,
including Sections 5.11 and 5.12; provided that investments in
Permitted Joint Ventures shall satisfy the requirements of
clause (m) below and investments in Other Joint Ventures shall
satisfy the requirements of clause (n) below;
(ii) deleting subsection (i) thereof in its entirety and
inserting in lieu thereof the following:
(i) loans or advances from a Subsidiary to the
Borrower or to another Subsidiary that is a Guarantor (other
than a Permitted Joint Venture or an Other
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Joint Venture) or from the Borrower to a Subsidiary that is a
Guarantor (other than a Permitted Joint Venture or an Other
Joint Venture) so long as the requirements of Section 5.10(a)
and Section 6.2(v) are satisfied;
(iii) deleting subsections (m) and (n) thereof in their
entirety and inserting in lieu thereof the following:
(m) investments in Permitted Joint Ventures
that, when aggregated with unsecured intercompany Debt of
Permitted Joint Ventures permitted under Section 6.2(v) and
dispositions of assets to Permitted Joint Ventures permitted
under Section 6.5(iii), shall not exceed $20,000,000 in the
aggregate (excluding Acquisition Amounts incurred in
connection with Permitted Acquisitions and other amounts
consented to by the Required Lenders in writing); and
(n) any other investments which are not
described in clauses (a) through (m) above (but excluding
investments in Permitted Joint Ventures), not to exceed during
the term of the Loans, $15,000,000 in the aggregate at any one
time outstanding; provided that investments in Other Joint
Ventures, when aggregated with unsecured intercompany Debt of
Other Joint Ventures permitted under Section 6.2(xiii) and
dispositions of assets to Other Joint Ventures permitted under
Section 6.5(iii), shall not exceed $10,000,000 in the
aggregate.
(f) Section 6.8 of the Credit Agreement is hereby amended by (i)
adding the phrase "or Other Joint Ventures" immediately after the words
"Permitted Joint Ventures" in subsection (a)(iii) thereof, (ii) deleting the
phrase "of its Stock or other Interests," in the introductory clause of
subsection (b) thereof and inserting in lieu thereof the phrase "or other
ownership interests of its Capital Stock" and (iii) deleting subsection (b)(iii)
thereof in its entirety and inserting in lieu thereof the following:
(iii) the purchase in the ordinary course of business by any Permitted
Joint Venture, any Other Joint Venture or the Subsidiary constituting
the general partner or managing member of such Permitted Joint Venture
or Other Joint Venture of the limited partnership interests or
membership interests held by limited partners or the minority members
in a Permitted Joint Venture or Other Joint Venture affiliated with the
Facilities owned, leased or operated by such Permitted Joint Venture or
such Other Joint Venture (or entities controlled by such limited
partners or minority members) upon the termination of the affiliation
of such limited partners or minority members with such Facilities or
the death or disability of such limited partners or minority members
(if applicable), so long as no Default or Event of Default then exists
or would result immediately after giving effect to such purchase; or
(g) Section 6.16 of the Credit Agreement is hereby amended by
inserting the phrase ", the definition of Other Joint Venture" immediately after
the words "Permitted Joint Ventures" therein.
(h) Section 6.22 of the Credit Agreement is hereby amended by
deleting the phrase "the buy-out of a limited partner in a Permitted Joint
Venture" in clause (a) thereof and inserting
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in lieu thereof the phrase "the buy-out of a limited partner or minority member
in a Permitted Joint Venture or Other Joint Venture".
(i) Section 6.24 of the Credit Agreement is hereby amended by
deleting the phrase "limited partners in Permitted Joint Ventures" in the
introductory clause thereof and inserting in lieu thereof the phrase "limited
partners or minority members in Permitted Joint Ventures and Other Joint
Ventures".
1.7 New Schedule. The Credit Agreement is hereby amended by adding
to the schedules thereto SCHEDULE A attached to this Amendment and such schedule
shall be referred to in the Credit Agreement as "SCHEDULE A."
1.8 Signature Pages. The signature pages to the Credit Agreement
are hereby amended by deleting each reference to "Revolving Credit Commitment"
contained thereon and each dollar amount associated with each such reference.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants as follows:
2.1 Representations and Warranties. After giving effect to this
Amendment, each of the representations and warranties of the Borrower contained
in the Credit Agreement and in the other Loan Documents is true and correct on
and as of the date hereof with the same effect as if made on and as of the date
hereof (except to the extent any such representation or warranty is expressly
stated to have been made as of a specific date, in which case such
representation or warranty is true and correct as of such date); provided, that,
the state income tax lien filed against Principal Knox Company on December 4,
2001 in ▇▇▇▇▇▇ County, Indiana by the State of Indiana, Department of Revenue,
the state tax lien filed against PRHC-▇▇▇▇▇ ▇.▇., Inc. on April 21, 2003 in
▇▇▇▇▇ County, Texas by the Texas Workforce Commission, the state tax lien filed
against PHC-Eunice, Inc. on June 29, 2000 in Acadia Parish, Louisiana by the
State of Louisiana, Department of Labor, the state tax lien filed against
PHC-Eunice, Inc. on May 20, 2003 in St. Landry Parish, Louisiana by the State of
Louisiana, Department of Labor, and the state tax lien filed against the
Borrower and Brim Healthcare, Inc. on March 15, 2002 with the California
Secretary of State by the State of California, Employment Development Department
(collectively, the "State Tax Liens"), shall constitute Permitted Liens until
August 31, 2003, at which time the Borrower shall have caused the State Tax
Liens to be terminated.
2.2 No Default. After giving effect to this Amendment, no Default
or Event of Default has occurred and is continuing.
2.3 Enforceability. This Amendment has been duly executed and
delivered by the Borrower and constitutes the Borrower's legal, valid and
binding obligation, enforceable in accordance with its terms, except as such
enforceability may be limited (x) by general principles of equity and conflicts
of laws or (y) by bankruptcy, reorganization, insolvency, moratorium or other
laws of general application relating to or affecting the enforcement, of
creditors' rights.
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2.4 No Conflicts. No consent, approval, authorization or order of,
or filing, registration or qualification with, any court or governmental
authority or third party is required in connection with the execution, delivery
or performance by the Borrower of this Amendment
2.5 Obligations. The execution and delivery of this Amendment does
not diminish or reduce the Borrower's obligations under the Loan Documents,
except as modified by this Amendment.
2.6 No Claims. The Borrower has no claims, counterclaims, offsets
or defenses to the Loan Documents and the performance of its obligations
thereunder, or if the Borrower has any such claims, counterclaims, offsets, or
defenses to the Loan Documents or any transaction related to the Loan Documents,
the same are hereby waived, relinquished and released in consideration of the
Lenders' execution and delivery of this Amendment.
ARTICLE III
CONDITIONS TO EFFECTIVENESS
The effectiveness of the amendments to the Credit Agreement set forth
in this Amendment is subject to the satisfaction of the following conditions:
3.1 Executed Amendment. This Amendment shall have been duly
executed and delivered by the Borrower, the Agent and each of the Lenders and
shall be in full force and effect.
3.2 Revolving Credit Notes. The Revolving Credit Notes (as such
term is defined after giving effect to SECTION 1.1 of this Amendment) shall have
been duly authorized, executed and delivered by the Borrower to the Agent.
3.3 Accession to Security Agreement. PHC-Elko, Inc. shall have
executed an accession to the Security Agreement in form and substance reasonably
satisfactory to the Agent, together with such other documents requested by the
Agent to perfect the security interests granted therein.
3.4 Confirmation. The Agent shall have received a Confirmation of
Credit Documents by each Guarantor of the Obligations, in form and substance
satisfactory to the Agent.
3.5 UCC Searches. The Agent shall have received the results of a
search of all filings made against the Borrower and each Guarantor under the
Uniform Commercial Code as currently in effect, (i) in the state of
incorporation or organization of the Borrower or such Guarantor and (ii) for the
Borrower and each Guarantor owning or leasing a Facility, in the state in which
such Facility is located, indicating that the Collateral is free and clear of
any liens or encumbrances except for Permitted Liens or for which UCC-3
termination statements are being delivered.
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3.6 Financing Statements. Financing Statements (including fixture
filings for any Realty subject to a Mortgage), amendments to existing Financing
Statements, and all other filings or recordings necessary to perfect the
security interests of the Agent, on behalf of the Lenders, in the Collateral
shall have been filed (other than the filing of the Mortgage and related real
estate collateral documents for Northeastern Nevada Regional Hospital, Elko,
Elko County, Nevada ("Elko Hospital") which will be filed pursuant to SECTION
4.1 hereof).
3.7 Mortgages; Title Insurance. To the extent required by the
Agent, amendments to all of the Mortgages (other than the Mortgage for Elko
Hospital), in form and substance satisfactory to the Agent, shall have been duly
authorized, executed and delivered by the Borrower and the Guarantors (as
applicable), shall have been recorded, registered and filed in a manner
reasonably acceptable to the Agent, shall be in full force and effect and no
Default shall exist under the Mortgages (after giving effect to such
amendments), and the Agent shall have received fully executed copies such
amendments. With respect to all Realty subject to Mortgages that are being
amended as described above (other than the Mortgages with respect to Realty
located at (x) Parkview Regional Hospital, Mexia, Limestone County, Texas, (y)
Palestine Regional Medical Center-West Campus (formerly known as Memorial Mother
▇▇▇▇▇▇▇ Hospital), Palestine, ▇▇▇▇▇▇▇▇ and Houston Counties, Texas, and (z)
Palestine Regional Medical Center (formerly known as Trinity Valley Medical
Center), Palestine, ▇▇▇▇▇▇▇▇ County, Texas (collectively, the "Texas
Hospitals")), (i) the Agent shall have received endorsements to the existing
title insurance policies (or binders, as the case may be) with respect thereto,
insuring that such Mortgages (as amended by the amendments described above)
constitute valid enforceable, first priority liens on the Realty, free and clear
from all title defects and encumbrances whatsoever except from and subject to
Permitted Liens and only with exceptions for rights of physicians or other
healthcare providers as tenants under written leases of office space in the
ordinary course of business, but specifically excluding ground leases with terms
of ten years or more, and such other exceptions as are acceptable to the Agent
and (ii) all premiums thereon shall have been paid.
3.8 Certificates of Existence or Good Standing. The Agent and each
Lender shall have received certificates (or other confirmation acceptable to the
Agent) as of a recent date of the good standing or existence of the Borrower and
each Guarantor under the laws of its state of incorporation or organization and,
for the Borrower and each Guarantor owning or leasing a Facility, under the laws
of each state in which such Facility is located.
3.9 Opinions of Counsel. The Agent and each Lender shall have
received the favorable opinions of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇, Tennessee
counsel to the Borrower and the Guarantors (covering enforceability and Delaware
corporate law matters), Faegre & ▇▇▇▇▇▇ LLP, Colorado counsel to the Borrower
and the Guarantors, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., Texas counsel to the
Borrower and the Guarantors, Argue ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP, California
counsel to the Borrower and the Guarantors, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Indiana counsel
to the Borrower and the Guarantors, Steptoe & ▇▇▇▇▇▇▇, LLP, Arizona counsel to
the Borrower and the Guarantors, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇, P.A., New
Mexico counsel to the Borrower and the Guarantors, Williams, Mullen, ▇▇▇▇▇ &
▇▇▇▇▇▇▇, P.C., Virginia counsel to the Borrower and the Guarantors, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Belhoff & ▇▇▇▇▇▇▇▇▇▇▇, Louisiana counsel to the Borrower and
the Guarantors, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Winter & Stennis, P.A., Mississippi counsel to
the Borrower and the Guarantors, and ▇▇▇▇▇▇ ▇▇▇▇ LLP, Oregon counsel
11
to certain Guarantors, each such opinion to be addressed to the Agent, for the
benefit of the Lenders, the Issuing Lender and each Lender, and in form and
substance satisfactory to the Agent and each Lender.
3.10 Representations and Warranties; Officer's Certificate. The
following shall be true and the Agent shall have received a certificate, signed
by the chief executive officer or chief financial officer of the Borrower, in
form and substance satisfactory to the Agent, certifying that (i) each of the
representations and warranties of the Borrower contained in this Amendment, the
Credit Agreement and the other Loan Documents is true and correct as of the date
of such certificate after giving effect to this Amendment (except to the extent
any such representation or warranty is expressly stated to have been made as of
a specific date, in which case such representation or warranty is true and
correct as of such date), (ii) no Default or Event of Default has occurred and
is continuing after giving effect to this Amendment, and (iii) each of the
conditions set forth in this ARTICLE III has been satisfied.
3.11 Corporate Authority; Consents. The Agent shall have received
(i) evidence of the corporate, partnership or limited liability company
authority of the Borrower and the Guarantors to engage in the transactions
contemplated hereby, (ii) officers' or secretaries' certificates stating that
there have been no changes in the bylaws or charter documents of each of the
Borrower and the Guarantors (except for changes approved in writing by the
Agent) since the date of the latest secretary's or officer's certificate
delivered to the Agent by the Borrower or such Guarantor, and (iii) a
certificate of incumbency with respect to each such Person. The Borrower and the
Guarantors shall have obtained all consents and approvals of the boards of
directors, shareholders, governmental entities and other applicable third
parties necessary in connection with the transactions contemplated herein and
shall have delivered copies of the same to the Agent.
3.12 No Material Adverse Change. No material adverse change shall
have occurred in the business, properties, prospects, operations or condition
(financial or otherwise) of the Borrower and its Subsidiaries, taken as a whole,
since December 31, 2002, and no event, condition or state of facts that could
reasonably be expected to have such a material adverse effect shall have
occurred since December 31, 2002.
3.13 Fees and Expenses. The Borrower shall have paid (a) to the
Agent, (i) for the account of each of the Lenders (to be paid pro rata in
accordance with the increase in each Lender's Revolving Credit Commitment
pursuant to this Amendment) a fee equal to 0.50% of the increase in the Total
Revolving Credit Commitment pursuant to this Amendment, and (ii) for its own
account, all other fees and expenses (including reasonable legal fees and
expenses) that are due and payable as of the date hereof, and (b) to Wachovia
Securities, Inc., for its own account, all fees due and payable to Wachovia
Securities, Inc. on the date of this Amendment.
12
ARTICLE IV
MISCELLANEOUS
4.1 Post-Closing Matters. On or before July 31, 2003 (or such
later date as the Agent may reasonably agree to if the Borrower and its
Subsidiaries are diligently pursuing such items in good faith), the following
matters shall have been completed:
(a) A Mortgage for the Realty located at Elko Hospital (excluding
a non-contiguous parcel of approximately 2.169 acres on which is located the
Elko Medical Clinic Building) shall have been duly authorized, executed and
delivered by PHC-Elko, Inc., shall have been recorded, registered and filed in a
manner reasonably acceptable to the Agent, shall be in full force and effect and
no Default shall exist thereunder, and the Agent shall have received a fully
executed copy thereof.
(b) A fixture filing with respect to the fixtures at Elko
Hospital, in form and substance reasonably satisfactory to the Agent, shall have
been filed.
(c) The Agent, for the benefit of the Lenders, shall have received
a policy of title insurance or a title insurance binder in form and substance
reasonably satisfactory to the Agent, from a title insurance company duly
licensed to do business in Nevada, selected by the Borrower and reasonably
acceptable to the Agent, in an amount reasonably satisfactory to the Agent but
not to exceed the fair market value of the Realty, with respect to each tract of
Realty being encumbered by the lien of the Mortgage for Elko Hospital, all
premiums thereon shall have been paid, and such policy shall insure that the
Mortgage for Elko Hospital constitutes a valid, enforceable, first priority lien
on the Realty subject thereto, free and clear from all title defects and
encumbrances whatsoever except for and subject to Permitted Liens, and only with
exceptions for rights of physicians or other healthcare providers as tenants
under written leases of office space in the ordinary course of business, but
specifically excluding ground leases with terms of ten years or more, and such
other exceptions as are reasonably acceptable to the Agent, and shall include
future advance and revolving credit endorsements, a variable rate endorsement
and such other endorsements as the Agent may reasonably request, to the extent
available in Nevada. Such title insurance policy (or binder, as the case may be)
with respect to the Realty for Elko Hospital may not contain general survey
exceptions except with the Agent's prior written consent.
(d) The Agent shall have received a metes-and-bounds survey of
each tract or parcel of the Realty of Elko Hospital being encumbered by the lien
of the Mortgage with respect thereto, in form and substance reasonably
satisfactory to the Agent.
(e) A favorable opinion of ▇▇▇▇▇, Driggs, Welch, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, Nevada counsel to the Borrower and the Guarantors, with respect to the
Security Documents to be executed by PHC-Elko, Inc. in connection with this
Amendment, addressed to the Agent, for the benefit of the Lenders, the Issuing
Lender and each Lender, and in form and substance satisfactory to the Agent,
shall have been delivered to the Agent.
(f) With respect to the Realty located at the Texas Hospitals
subject to Mortgages that are being amended as described in SECTION 3.7, (i) the
Agent shall have received
13
endorsements to the existing title insurance policies (or binders, as the case
may be) with respect thereto, insuring that such Mortgages (as amended by the
amendments described in SECTION 3.7) constitute valid enforceable, first
priority liens on the Realty subject thereto, free and clear from all title
defects and encumbrances whatsoever except from and subject to Permitted Liens
and only with exceptions for rights of physicians or other healthcare providers
as tenants under written leases of office space in the ordinary course of
business, but specifically excluding ground leases with terms of ten years or
more, and such other exceptions as are acceptable to the Agent and (ii) all
premiums thereon shall have been paid.
4.2 Waiver of Event of Default. The Lenders hereby agree to waive
any Default or Event of Default arising from noncompliance by the Borrower with
Section 6.4 of the Credit Agreement with respect to the State Tax Liens;
provided, that the Borrower shall cause the State Tax Liens to be terminated on
or before August 31, 2003.
4.3 Effect of Amendment. From and after the effective date of the
amendments to the Credit Agreement set forth herein, all references to the
Credit Agreement set forth in any other Loan Document or other agreement or
instrument shall, unless otherwise specifically provided, be references to the
Credit Agreement as amended by this Amendment and as may be further amended,
modified, restated or supplemented from time to time. This Amendment is limited
as specified and shall not constitute or be deemed to constitute an amendment,
modification or waiver of any provision of the Credit Agreement or of any other
Loan Document except as expressly set forth herein. Except as expressly amended
hereby, the Credit Agreement shall remain in full force and effect in accordance
with its terms.
4.4 Governing Law. This Amendment shall be governed by and
construed and enforced in accordance with the laws of the State of North
Carolina (without regard to the conflicts of law provisions thereof).
4.5 Expenses. The Borrower agrees to pay upon demand all
reasonable out-of-pocket costs and expenses of the Agent (including, without
limitation, the reasonable fees and expenses of counsel to the Agent) in
connection with the preparation, negotiation, execution and delivery of this
Amendment.
4.6 Severability. To the extent any provision of this Amendment is
prohibited by or invalid under the applicable law of any jurisdiction, such
provision shall be ineffective only to the extent of such prohibition or
invalidity and only in any such jurisdiction, without prohibiting or
invalidating such provision in any other jurisdiction or the remaining
provisions of this Amendment in any jurisdiction.
4.7 Successors and Assigns. This Amendment shall be binding upon,
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto.
4.8 Construction. The headings of the various sections and
subsections of this Amendment have been inserted for convenience only and shall
not in any way affect the meaning or construction of any of the provisions
hereof.
4.9 Counterparts; Effectiveness. This Amendment may be executed in
any number of counterparts and by different parties hereto on separate
counterparts, each of which when so
14
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument. This Amendment shall become effective
upon the execution and delivery of a counterpart hereof by the Borrower, the
Agent and the Lenders and the satisfaction of the conditions set forth in
ARTICLE III hereof.
15
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers as of the date first above written.
PROVINCE HEALTHCARE COMPANY
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President/Treasurer
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Agent and as Lender
By: /s/ ▇▇▇▇▇ Santa ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ Santa ▇▇▇▇
Title: Director
1
BANK OF AMERICA, N.A., AS A LENDER
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
2
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL
CORPORATION, AS A LENDER
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: Vice President
3
NATIONAL CITY BANK OF KENTUCKY, AS
A LENDER
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
4
U.S. BANK NATIONAL ASSOCIATION
(F/K/A/ FIRSTAR BANK, NATIONAL
ASSOCIATION), AS A LENDER
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
5
BNP PARIBAS, AS A LENDER
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
6
SUNTRUST BANK, AS A LENDER
By: /s/ W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: W. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
7
GENERAL ELECTRIC CAPITAL
CORPORATION, AS A LENDER
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Duly Authorized Signatory
8
AMSOUTH BANK, AS A LENDER
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
9
LASALLE BANK NATIONAL ASSOCIATION,
AS A LENDER
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Officer
10
CREDIT LYONNAIS NEW YORK BRANCH,
AS A LENDER
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
11
Schedule A
Revolving Credit Commitments
Revolving Credit
Lender Commitment
------ ----------
Wachovia Bank, National Association $ 38,338,858
Bank of America, N.A. 35,000,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation 15,000,000
National City Bank of Kentucky 21,250,000
U.S. Bank National Association (f/k/a Firstar Bank, National Association) 26,250,000
BNP Paribas 17,827,221
SunTrust Bank 26,250,000
General Electric Capital Corporation 15,000,000
AmSouth Bank 12,583,921
LaSalle Bank National Association 15,000,000
Credit Lyonnais New York Branch 27,500,000