EXHIBIT 4.1
AMENDMENT NO. 1 TO CERTAIN OPERATIVE AGREEMENTS
THIS AMENDMENT NO. 1 TO CERTAIN OPERATIVE AGREEMENTS dated as of March
29, 2002 (this "Amendment") is by and among PROVINCE HEALTHCARE COMPANY, a
Delaware corporation (the "Lessee" or the "Construction Agent"); the various
parties hereto from time to time as guarantors (subject to the definition of
Guarantors in Appendix A to the Participation Agreement (hereinafter defined),
individually, a "Guarantor" and collectively, the "Guarantors"); WELLS FARGO
BANK NORTHWEST, NATIONAL ASSOCIATION, a national banking association, not
individually (in its individual capacity, the "Trust Company"), except as
expressly stated in the Operative Agreements, but solely as the Owner Trustee
under the PHC Real Estate Trust 1998-1 (the "Owner Trustee", the "Borrower" or
the "Lessor"); the various banks and other lending institutions which are
parties to the Participation Agreement from time to time as lenders (subject to
the definition of Lenders in Appendix A to the Participation Agreement,
individually, a "Lender" and collectively, the "Lenders"); FIRST UNION NATIONAL
BANK, a national banking association, as the agent for the Lenders and
respecting the Security Documents, as the agent for the Lenders and the Holders,
to the extent of their interests (in such capacity, the "Agent"); the various
banks and other lending institutions which are parties to the Participation
Agreement from time to time as holders of certificates issued with respect to
the PHC Real Estate Trust 1998-1 (subject to the definition of Holders in
Appendix A to the Participation Agreement, individually, a "Holder" and
collectively, the "Holders"). Capitalized terms used but not otherwise defined
in this Amendment shall have the meanings set forth in or pursuant to Appendix A
to the Participation Agreement (as defined below).
WITNESSETH
WHEREAS, the parties to this Amendment are parties to that certain
Amended and Restated Participation Agreement dated as of November 13, 2001 (as
previously or hereinafter amended, modified, extended, supplemented, restated
and/or replaced from time to time, the "Participation Agreement") and certain of
the parties to this Amendment are parties to the other Operative Agreements
relating to a $47,000,000 lease facility (the "Facility") that has been
established in favor of the Lessee;
WHEREAS, the Lessee has requested certain modifications to the
Participation Agreement and certain of the other Operative Agreements in
connection with the Lessee's request to modify the Operative Agreements such
that the Facility shall constitute a Capital Lease;
WHEREAS, certain of the parties to this Amendment are parties to the
Lessee Credit Agreement;
WHEREAS, the Lessee has requested a modification of the definition of
"Capital Expenditures" in Article I of the Lessee Credit Agreement;
WHEREAS, the parties to this Amendment have agreed to the terms and
conditions set forth herein;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows (and with respect to Section 4, the
parties agree for purposes of the Lessee Credit Agreement as if a separate
amendment had been executed by the parties to the Lessee Credit Agreement
regarding the subject matter of Section 4):
1. Section 11.9 to the Participation Agreement is hereby deleted.
2. In Appendix A to the Participation Agreement, the definition of
"Maximum Residual Guarantee Amount" is hereby amended by deleting the reference
therein to "eighty-five percent (85%)" and replacing such reference with "one
hundred percent (100(degree)/x)".
3. In Section 5.4 to the Agency Agreement, (a) the reference therein to
"Sections 11.1 through 11.9" is hereby deleted and replaced with "Sections 11.1
through 11.8" and (b) the reference therein to "(i). 89.9%" is hereby deleted
and replaced with "(i) 100%".
4. In Article I to the Lessee Credit Agreement, the definition of
"Capital Expenditures" is hereby deleted and replaced with the following
(capitalized terms used in the following paragraph shall have the meanings set
forth in or pursuant to the Lessee Credit Agreement):
"Capital Expenditures" shall mean, for any measurement period, the
aggregate amount (whether paid in cash or accrued as a liability) that would, in
accordance with Generally Accepted Accounting Principles, be included on the
consolidated statement of cash flows of the Borrower and its Subsidiaries for
such period as additions to equipment, fixed assets, real property or
improvements or other Capital Assets (including, without limitation, Capital
Lease Obligations); provided, however, that Capital Expenditures shall not
include (i) any such expenditures made in connection with a Permitted
Acquisition (as described under the definition of Acquisition Amount), (ii)
Capital Expenditures in the amounts budgeted for the fiscal quarters set forth
on Schedule 1.1 hereto for the capital projects described on Schedule 1.1
hereto, (iii) Excluded Capital Expenditures; provided, that such Excluded
Capital Expenditures are (A) expressly identified by the Borrower in such
capital budget for exclusion from this definition of Capital Expenditures and
(B) approved for exclusion by the Required Lenders (such approval to be made on
an annual basis as provided in Section 5.1(f)) and (iv) Capital Lease
Obligations incurred due to the change in the accounting treatment of the End
Loaded Lease Facility from an operating lease to a Capital Lease."
5. For purposes of Section 28.1 of the Lease, the Majority Secured
Parties and the Agent hereby consent and agree to the provisions of Section 4.
6. This Amendment shall be effective upon satisfaction of the following
conditions:
(a) (i) except with respect to Section 4, execution and delivery of
this Amendment by the Lessee, the Guarantors, the Owner Trustee, the Agent and
the Majority Secured Parties, (ii) with respect to Section 4, execution and
delivery of this amendment by the Lessee and the Required Lenders (as such term
is defined in Article I to the Lessee Credit Agreement) and (iii) execution and
delivery of such other documents, agreements or instruments deemed necessary or
advisable by the Agent; and
(b) receipt by the Agent of an officer's certificate of the Lessee
(in form and substance reasonably satisfactory to the Agent) certifying that no
Default (other than a Credit Agreement Default), Event of Default (other than a
Credit Agreement Event of Default), Default (as such term is defined in
Article I to the Lessee Credit Agreement) and Event of Default (as such term is
defined in Article I to the Lessee Credit Agreement) shall have occurred and be
continuing, certifying that the representations and warranties of the Lessee set
forth in the Participation Agreement and in the Lessee Credit Agreement are true
and correct (except for any such representations and warranties which relate
solely to an earlier time) and certifying as to the incumbency of the officers
of the Lessee and the Guarantors executing this Amendment.
7. Except as modified hereby, all of the terms and provisions of the
Operative Agreements and the Lessee Credit Agreement (including Schedules and
Exhibits) shall remain in full force and effect.
8. The Lessee agrees to pay all reasonable costs and expenses of the
Agent in connection with the preparation, execution and delivery of this
Amendment, including without limitation the reasonable fees and expenses of
Moore & Van Allen, PLLC.
9. This Amendment may be executed in any number of counterparts, each
of which when so executed and delivered shall be deemed an original and it shall
not be necessary in making proof of this Amendment to produce or account for
more than one such counterpart.
10. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED, INTERPRETED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA.
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Amendment to be duly executed and delivered as of the date first above
written.
CONSTRUCTION AGENT PROVINCE HEALTHCARE COMPANY,
AND LESSEE: as the Construction Agent and as the Lessee
By: /s/ Christopher T. Hannon
-------------------------
Name: Christopher T. Hannon
---------------------
Title: Vice President/Assistant Treasurer
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GUARANTORS: BRIM HEALTHCARE, INC.
BRIM HOSPITALS, INC.
CARE HEALTH COMPANY, INC.
MEXIA-PRINCIPAL, INC.
PALESTINE-PRINCIPAL G.P., INC.
PALESTINE-PRINCIPAL, INC.
PHC-AVIATION, INC.
PHC-BELLE GLADE, INC.
PHC-CLEVELAND, INC.
PHC-ELKO, INC.
PHC-KNOX, INC.
PHC-LAKE HAVASU, INC.
PHC-NEVADA, INC.
PHC-PALESTINE, INC.
PHC-PENNSYLVANIA, INC.
PHC-TENNESSEE, INC.
PRHC-ENNIS G.P., INC.
PRINCIPAL HOSPITAL COMPANY OF
NEVADA, INC.
PRINCIPAL-NEEDLES, INC.
By: /s/ Christopher T. Hannon
-------------------------
Name: Christopher T. Hannon
---------------------
Title: Vice President/Assistant Treasurer
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PHC-DOCTORS' HOSPITAL, INC.
PHC-EUNICE, INC.
PHC-LAKEWOOD, INC.
PHC-LOUISIANA, INC.
PHC-MORGAN LAKE, INC.
PHC-MINDEN G.P., INC.
By: /s/ Christopher T. Hannon
-------------------------
Name: Christopher T. Hannon
---------------------
Title: Vice President/Treasurer
------------------------
MEXIA PRINCIPAL HEALTHCARE
LIMITED PARTNERSHIP
By: Mexia-Principal, Inc., its General Partner
By: /s/ Christopher T. Hannon
-------------------------
Name: Christopher T. Hannon
---------------------
Title: Vice President/Assistant Treasurer
----------------------------------
PALESTINE PRINCIPAL HEALTHCARE
LIMITED PARTNERSHIP
By: Palestine-Principal G.P., Inc., its General
Partner
By: /s/ Christopher T. Hannon
-------------------------
Name: Christopher T. Hannon
---------------------
Title: Vice President/Assistant Treasurer
----------------------------------
PHC-ASHLAND, L.P.
By: PHC-Tennessee, Inc., its General Partner
By: /s/ Christopher T. Hannon
-------------------------
Name: Christopher T. Hannon
---------------------
Title: Vice President/Assistant Treasurer
----------------------------------
PHC-MINDEN, L.P.
By: PHC-Minden G.P., Inc., its General Partner
By: /s/ Christopher T. Hannon
-------------------------
Name: Christopher T. Hannon
---------------------
Title: Vice President/Treasurer
------------------------
PHC-MORGAN CITY, L.P.
By: PHC-Morgan Lake, Inc., its General Partner
By: /s/ Christopher T. Hannon
-------------------------
Name: Christopher T. Hannon
---------------------
Title: Vice President/Treasurer
------------------------
PHC-OPELOUSAS, L.P.
By: PHC-Doctors' Hospital, Inc., its General
Partner
By: /s/ Christopher T. Hannon
-------------------------
Name: Christopher T. Hannon
---------------------
Title: Vice President/Treasurer
------------------------
PRHC-ENNIS, L.P.
By: PRHC-Ennis G.P., Inc., its General Partner
By: /s/ Christopher T. Hannon
-------------------------
Name: Christopher T. Hannon
---------------------
Title: Vice President/Assistant Treasurer
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PHC-CHARLESTON, LP
By: PHC-Indiana, Inc., its General Partner
By: /s/ Christopher T. Hannon
-------------------------
Name: Christopher T. Hannon
---------------------
Title: Vice President/Treasurer
------------------------
PHC HOSPITALS, LLC
By: Province Healthcare Company, its sole Member
By: /s/ Christopher T. Hannon
-------------------------
Name: Christopher T. Hannon
---------------------
Title: Vice President-Finance
----------------------
PHC-INDIANA, INC.
By: /s/ Christopher T. Hannon
-------------------------
Name: Christopher T. Hannon
---------------------
Title: Vice President-Finance
----------------------
PHC-RIPLEY, LLC
By: PHC Hospitals, LLC, its sole Member
By: Province Healthcare Company, its sole Member
By: /s/ Christopher T. Hannon
-------------------------
Name: Christopher T. Hannon
---------------------
Title: Vice President-Finance
----------------------
PRHC-ALABAMA, LLC
By: Province Healthcare Company, its sole Member
By: /s/ Christopher T. Hannon
-------------------------
Name: Christopher T. Hannon
---------------------
Title: Vice President-Finance
----------------------
PRINCIPAL KNOX, L.L.C.
By: Principal Knox, L.P., its Member
By: PHC Knox, Inc., its General Partner
By: /s/ Christopher T. Hannon
-------------------------
Name: Christopher T. Hannon
---------------------
Title: Vice President/Assistant Treasurer
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PRINCIPAL KNOX, L.P.
By: PHC-Knox, Inc., its General Partner
By: /s/ Christopher T. Hannon
-------------------------
Name: Christopher T. Hannon
---------------------
Title: Vice President/Assistant Treasurer
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/s/ Robert L Harris
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Witness
/s/ Jennifer A. Nolan
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Witness
PHC-WEST GROVE, L.P.
By: PHC-Pennsylvania, Inc., its general partner
By: /s/ Christopher T. Hannon
-------------------------
Name: Christopher T. Hannon
---------------------
Title: Vice President/Assistant Treasurer
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[Signature pages continued]
HOLDERS, LENDERS, AGENTS FIRST UNION NATIONAL BANK
AND ARRANGERS: as a Holder, as a Lender and as the Agent
By: /s/ Harry E. Ellis
------------------
Name: Harry E. Ellis
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Title: Managing Director
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[Signature pages continued]
BANK OF AMERICA, N.A., as a Holder, as a
Lender, as the Syndication Agent and as a
Co-Lead Arranger
By: /s/ Elizabeth L. Knox
---------------------
Name: Elizabeth L. Knox
-----------------
Title: SVP
---
[Signature pages continued]
OWNER TRUSTEE AND WELLS FARGO BANK NORTHWEST
LESSOR NATIONAL ASSOCIATION, not
individually, except as expressly
stated herein, but solely as the
Owner Trustee under the PHC Real
Estate Trust 1998-1, as the Owner
Trustee and as the Lessor
By: /s/ Val T. Orton
----------------
Name: Val T. Orton
------------
Title: Vice President
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[Signature pages continued]
UBS AG, STAMFORD BRANCH, as a Holder
and as a Lender
By: /s/ Wilfred V. Saint
--------------------
Name: Wilfred V. Saint
----------------
Title: Associate Director
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By: /s/ Anthony N. Joseph
---------------------
Name: Anthony N. Joseph
-----------------
Title: Associate Director
------------------
UBS WARBURG LLC, as a Co-Documentation
Agent
By: /s/ David A. Juge
-----------------
Name: David A. Juge
-------------
Title: Managing Director
-----------------
By: /s/ Oliver O. Trumbo
--------------------
Name: Oliver O. Trumbo
----------------
Title: Director
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[Signature pages continued]
MERRILL LYNCH CAPITAL CORPORATION, as a
Holder, as a Lender and as a
Co-Documentation Agent
By: /s/ Michael E. O'Brien
----------------------
Name: Michael E. O'Brien
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Title: Vice President
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[Signature pages continued]
NATIONAL CITY BANK OF KENTUCKY, as a
Lender
By: /s/ Roderic M. Brown
--------------------
Name: Roderic M. Brown
----------------
Title: Senior Vice President
---------------------
[Signature pages continued]
U.S. BANK NATIONAL ASSOCIATION (f/k/a
Firstar Bank, National Association),
as a Holder and as a Lender
By: /s/ S.W. Choppin
----------------
Name: S.W. Choppin
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Title: Senior Vice President
---------------------
[Signature pages continued]
BNP PARIBAS, as a Holder and as a Lender
By: /s/ Brock Harris
----------------
Name: Brock Harris
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Title: Director
--------
By: /s/ Ro Toyoshima
----------------
Name: Ro Toyoshima
------------
Title: Vice President
--------------
[Signature pages continued]
SUNTRUST BANK, as a Holder and as a Lender
By: /s/ Brook Hubbard
-----------------
Name: Brook Hubbard
-------------
Title: Vice President
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[Signature pages continued]
GENERAL ELECTRIC CAPITAL
CORPORATION, as a Lender
By: __________________
Name: ________________
Title: _________________
[Signature pages continued]
AMSOUTH BANK, as a Holder and a Lender
By: /s/ Allison H. Jones
--------------------
Name: Allison H. Jones
----------------
Title: Vice President
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[Signature pages continued]
LASALLE BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Sara Rusker
---------------
Name: Sara Rusker
-----------
Title: Vice President
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[Signature pages end]