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EXHIBIT 10.2
AMENDMENT NO. 1 TO CERTAIN OPERATIVE AGREEMENTS
THIS AMENDMENT NO. 1 TO CERTAIN OPERATIVE AGREEMENTS dated as of
September 10, 1999 (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"); FIRST SECURITY BANK, 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 Appendix A to the
Participation Agreement.
W I T N E S S E T H
WHEREAS, the parties to this Amendment are parties to that certain
Participation Agreement dated as of March 30, 1998 (as previously or hereinafter
amended, modified, extended, supplemented, restated and/or replaced from time to
time, the "Participation Agreement"), certain of the parties to this Amendment
are parties to that certain Credit Agreement dated as of March 30, 1998 (as
previously or hereinafter amended, modified, extended, supplemented, restated
and/or replaced from time to time, the "Credit Agreement"), certain of the
parties to this Amendment are parties to that certain Trust Agreement dated as
of March 30, 1998 (as previously or hereinafter amended, modified, extended,
supplemented, restated and/or replaced from time to time, the "Trust
Agreement"), certain of the parties to this Amendment are parties to that
certain Security Agreement dated as of March 30, 1998 (as previously or
hereinafter amended, modified, extended, supplemented, restated and/or replaced
from time to time, the "Security Agreement") and certain of the parties to this
Amendment are parties to the other Operative Agreements relating to a $35
million synthetic lease facility (the "Facility") that has been established in
favor of the Lessee;
WHEREAS, the Lessee has requested certain modifications to the
Participation Agreement, the Credit Agreement, the Trust Agreement, the Security
Agreement and the other Operative Agreements in connection with the Lessee's
request to increase the size of the Facility from $35,000,000 to $39,711,538;
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WHEREAS, the Lessee has requested that the Majority Secured Parties
direct the Agent to consent and agree to the replacement of the Incorporated
Representations and Warranties, Incorporated Covenants and Additional
Incorporated Terms with the corresponding provisions of the Second Amended and
Restated Credit Agreement dated as of September 10, 1999 (as hereafter amended,
modified, extended, supplemented, restated and/or replaced from time to time,
the "New Facility") by and among the Lessee, the Banks and other financial
institutions from time to time parties thereto and First Union National Bank, as
agent and as issuing bank thereunder;
WHEREAS, the Financing Parties have agreed to the requested
modifications on 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:
1. Section 6B.9 of the Participation Agreement is hereby amended and
restated in its entirety to read as follows:
6B.9. Release of Guarantors.
Each Financing Party hereby agrees that (a) the Agent shall be
permitted to release any Guarantor from its guaranty obligations under
this Section 6B without the consent of any other Financing Party if the
release is granted in connection with a disposition by the applicable
Credit Party of all the shares of stock or partnership or other equity
interest in such Guarantor and such disposition is permitted pursuant
to the applicable provisions of the Operative Agreements and the Lessee
Credit Agreement, (b) the Agent shall be permitted to release any
Guarantor from its guaranty obligations under this Section 6B.9 without
the consent of any other Financing Party if the release is requested by
the Construction Agent or the Lessee in connection with a dissolution
of the Guarantor, subject to the Construction Agent or the Lessee
providing to the Agent written representations to the effect that such
Guarantor has no business operations and no assets and (c) without
further action, any Guarantor which is released from its guaranty
obligations pursuant to and in accordance with the provisions of the
Lessee Credit Agreement shall automatically, and without further
action, be released from its guaranty obligations under the Operative
Agreements.
2. The second paragraph of Section 12.5 of the Participation Agreement
is hereby amended and restated in its entirety to read as follows:
Notwithstanding the foregoing and subject to the final sentence of
this paragraph, no such termination, amendment, supplement, waiver or
modification shall, without the consent of the Agent and, to the
extent affected thereby, each Lender and each Holder (collectively,
the "Unanimous Vote Matters") (i) reduce the amount of any Note or any
Certificate, extend the scheduled date of maturity of any Note, extend
the scheduled Expiration Date, extend any payment date of any Note or
Certificate, reduce the stated rate of interest payable on any Note,
reduce the stated Holder Yield payable on any
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Certificate (other than as a result of waiving the applicability of
any post-default increase in interest rates or Holder Yields), modify
the priority of any Lien in favor of the Agent under any Security
Document, subordinate any obligation owed to any Lender or Holder,
reduce any Lender Facility Fees or any Holder Facility Fees payable
under the Participation Agreement, extend the scheduled date of
payment of any Lender Facility Fees or any Holder Facility Fees or
increase the amount or extend the expiration date of any Lender's
Commitment or the Holder Commitment of any Holder or the aggregate
Commitments of the Lenders or the aggregate Holder Commitments of the
Holders, or (ii) terminate, amend, supplement, waive or modify any
provision of this Section 12.5 or reduce the percentages specified in
the definitions of Majority Lenders, Majority Holders or Majority
Secured Parties, or consent to the assignment or transfer by the Owner
Trustee of any of its rights and obligations under any Credit Document
or release a material portion of the Collateral (except in accordance
with Section 8.8) or release any Credit Party from its obligations
under any Operative Agreement or otherwise alter any payment
obligations of any Credit Party to the Lessor or any Financing Party
under the Operative Agreements, or (iii) terminate, amend, supplement,
waive or modify any provision of Section 7 of the Credit Agreement, or
(iv) permit Advances for Work in excess of the Construction Budget, or
(v) eliminate the automatic option under Section 5.3(b) of the Agency
Agreement requiring that the Construction Agent pay certain liquidated
damages in exchange for the conveyance of a Property to the
Construction Agent. Any such termination, amendment, supplement,
waiver or modification shall apply equally to each of the Lenders and
the Holders and shall be binding upon all the parties to this
Agreement. In the case of any waiver, each party to this Agreement
shall be restored to its former position and rights under the
Operative Agreements, and any Default or Event of Default waived shall
be deemed to be cured and not continuing; but no such waiver shall
extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon. Notwithstanding any provision to
the contrary in any Operative Agreement, any and all increases in the
amount and extensions of the expiration date of any Lender's
Commitment or the Holder Commitment of any Holder or the aggregate
Commitments of the Lenders or the aggregate Holder Commitments of the
Holders shall in all cases be a Unanimous Vote Matter and require the
consent of the Agent, each Lender and each Holder.
3. Appendix A to the Participation Agreement is hereby amended to
modify the following defined terms as follows:
"Holder Commitments" shall mean $1,191,346, as such amount may
be increased or decreased from time to time in accordance with the
provisions of the Operative Agreements; provided, if there shall be
more than one (1) Holder, the Holder Commitment of each Holder shall be
as set forth in Schedule I to the Trust Agreement as such Schedule I
may be amended and replaced from time to time.
"Lender Commitments" shall mean $38,520,192, as such amount may be
increased or decreased from time to time in accordance with the
provisions of the Operative Agreements; provided, if there shall be
more than one (1) Lender, the Lender
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Commitment of each Lender shall be as set forth in Schedule 1.1 to the
Credit Agreement as such Schedule 1.1 may be amended and replaced from
time to time.
"Lessee Credit Agreement" shall mean that certain Second Amended and
Restated Credit Agreement dated as of September 10, 1999 among the
Lessee, the Banks and other financial institutions from time to time
parties thereto and First Union National Bank, as agent and as issuing
bank thereunder, as hereafter amended, modified, extended,
supplemented, restated and/or replaced from time to time.
3A. Notwithstanding anything to the contrary pursuant to the definition
of "Applicable Percentage" or any other provision of any Operative Agreement,
from September 10, 1999 until the fifth (5th) Business Day after receipt by the
Agent of the financial statements for the fiscal quarter ended September 30,
1999 (as delivered pursuant to Section 5.1(b) of the Lessee Credit Agreement),
the Applicable Percentage shall be 1.75% for Eurodollar Loans, 0.50% for ABR
Loans, 0.375% for the Lender Facility Fee and 0.375% for the Holder Facility
Fee.
4. Schedule I to the Trust Agreement is hereby amended and restated in
its entirety to read as Schedule I attached hereto.
5. Schedule 1.1 to the Credit Agreement is hereby amended and restated
in its entirety to read as Schedule 1.1 attached hereto.
6. Exhibit L to the Participation Agreement is hereby amended and
restated in its entirety to read as Exhibit L attached hereto.
7. The first paragraph of the Preliminary Statement to the Security
Agreement is hereby deleted in its entirety and replaced with the following:
Pursuant to the Credit Agreement, the Lenders have severally agreed to
make Loans to the Borrower in an aggregate amount not to exceed $38,520,192 upon
the terms and subject to the conditions set forth therein, to be evidenced by
the Notes issued by the Borrower under the Credit Agreement. Pursuant to the
Trust Agreement, the Holders have agreed to purchase the ownership interests of
the Trust created thereby in an aggregate amount not to exceed $1,191,346 upon
the terms and subject to the conditions set forth therein, to be evidenced by
the Certificates issued by the Borrower under the Trust Agreement. The Borrower
is, or shall be upon the date of the initial Advance with respect to each
Property, the legal and beneficial owner of such Property (except the Borrower
may have a ground leasehold interest in certain Properties pursuant to one (1)
or more Ground Leases).
8. Each of the undersigned Secured Parties hereby directs the Agent to
execute this Amendment to evidence (and execution by the Agent does evidence)
the consent and agreement of the Agent, pursuant to Section 28.1 of the Lease,
to the representations and warranties, covenants and additional terms contained
in the New Facility (which correspond to the Incorporated Representations and
Warranties, Incorporated Covenants and Additional Incorporated Terms) becoming,
as of the date the New Facility first becomes effective in
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accordance with its terms, the Incorporated Representations and Warranties,
Incorporated Covenants and Additional Incorporated Terms for purposes of Section
28.1 of the Lease.
9. This Amendment shall be effective upon satisfaction of the following
conditions:
(a) execution and delivery of this Amendment by the Lessee, the
Guarantors, the Owner Trustee, the Agent and the Majority Secured
Parties and execution and delivery of such other documents, agreements
or instruments deemed necessary or advisable by the Agent;
(b) receipt by the Agent of an officer's certificate of the Lessee
(in form and substance reasonably satisfactory to the Agent)
certifying that a resolution has been adopted by the Lessee's Board of
Directors approving and authorizing the execution, delivery and
performance of this Amendment, specifying that no Default (other than
a Credit Agreement Default) or Event of Default (other than a Credit
Agreement Event of Default) shall have occurred and be continuing,
specifying that the representations and warranties of the Lessee set
forth in the Participation 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; and
(c) receipt by the Agent of a legal opinion from counsel for the
Lessee and the Guarantors (in form and substance reasonably
satisfactory to the Agent).
10. Except as modified hereby, all of the terms and provisions of the
Operative Agreements (including Schedules and Exhibits) shall remain in full
force and effect.
11. 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.
12. 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.
13. 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.
[Remainder of Page Intentionally Left Blank]
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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.
PROVINCE HEALTHCARE COMPANY,
as the Construction Agent and as the Lessee
By: /s/ Christopher T. Hannon
----------------------------------------
Name: Christopher T. Hannon
Title: Vice President Finance
BLYTHE-PROVINCE, INC.,
as a Guarantor
By: /s/ Christopher T. Hannon
----------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
BRIM EQUIPMENT SERVICES, INC.,
as a Guarantor
By: /s/ Christopher T. Hannon
----------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
BRIM FIFTH AVENUE, INC.,
as a Guarantor
By: /s/ Christopher T. Hannon
----------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
BRIM HEALTHCARE, INC.,
as a Guarantor
By: /s/ Christopher T. Hannon
----------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
[Signature pages continued]
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BRIM HOSPITALS, INC.,
as a Guarantor
By: /s/ Christopher T. Hannon
----------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
BRIM OUTPATIENT SERVICES, INC.,
as a Guarantor
By: /s/ Christopher T. Hannon
----------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
BRIM PAVILION, INC.,
as a Guarantor
By: /s/ Christopher T. Hannon
----------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
BRIM SERVICES GROUP, INC.,
as a Guarantor
By: /s/ Christopher T. Hannon
----------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
CARE HEALTH COMPANY, INC.,
as a Guarantor
By: /s/ Christopher T. Hannon
----------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
[Signature pages continued]
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MEXIA PRINCIPAL HEALTHCARE LIMITED PARTNERSHIP,
as a Guarantor
By: Mexia-Principal, Inc., its General Partner
By: /s/ Christopher T. Hannon
----------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
MEXIA PRINCIPAL, INC.,
as a Guarantor
By: /s/ Christopher T. Hannon
--------------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
PALESTINE-PRINCIPAL G.P., INC.,
as a Guarantor
By: /s/ Christopher T. Hannon
--------------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
PALESTINE-PRINCIPAL, INC.,
as a Guarantor
By: /s/ Christopher T. Hannon
--------------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
[Signature pages continued]
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PALESTINE PRINCIPAL HEALTHCARE LIMITED PARTNERSHIP,
as a Guarantor
By: Palestine-Principal G.P., Inc., its General
Partner
By: /s/ Christopher T. Hannon
--------------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
PHC-BELLE GLADE, INC.,
as a Guarantor
By: /s/ Christopher T. Hannon
--------------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
PHC-DOCTORS' HOSPITAL, INC.,
as a Guarantor
By: /s/ Christopher T. Hannon
--------------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
PHC-ELKO, INC.,
as a Guarantor
By: /s/ Christopher T. Hannon
--------------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
PHC-ERIN, L.P.,
as a Guarantor
By: PHC-Tennessee, Inc., its General Partner
By: /s/ Christopher T. Hannon
----------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
[Signature pages continued]
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PHC-EUNICE, INC.,
as a Guarantor
By: /s/ Christopher T. Hannon
------------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
PHC-KNOX, INC.,
as a Guarantor
By: /s/ Christopher T. Hannon
------------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
PHC-LAKE HAVASU, INC.,
as a Guarantor
By: /s/ Christopher T. Hannon
------------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
PHC-LOUISIANA, INC.,
as a Guarantor
By: /s/ Christopher T. Hannon
------------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
PHC-MINDEN, L.P.,
as a Guarantor
By: PHC-Minden G.P., Inc., its General
Partner
By: /s/ Christopher T. Hannon
--------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
[Signature pages continued]
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PHC-MINDEN G.P., INC.,
as a Guarantor
By: /s/ Christopher T. Hannon
-------------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
PHC-NEVADA, INC.,
as a Guarantor
By: /s/ Christopher T. Hannon
-------------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
PHC-OPELOUSAS, L.P.,
as a Guarantor
By: PHC-Doctors' Hospital, Inc., its General
Partner
By: /s/ Christopher T. Hannon
---------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
PHC-PALESTINE, INC.,
as a Guarantor
By: /s/ Christopher T. Hannon
-------------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
PHC-PALESTINE (TRINITY), L.P.,
as a Guarantor
By: PHC-Trinity Valley, Inc., its General
Partner
By: /s/ Christopher T. Hannon
---------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
[Signature pages continued]
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PHC-TENNESSEE, INC.,
as a Guarantor
By: /s/ Christopher T. Hannon
--------------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
PHC-TRINITY VALLEY, INC.,
as a Guarantor
By: /s/ Christopher T. Hannon
--------------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
PHC-WINDER, INC.,
as a Guarantor
By: /s/ Christopher T. Hannon
--------------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
PRINCIPAL HOSPITAL COMPANY OF NEVADA, INC.,
as a Guarantor
By: /s/ Christopher T. Hannon
--------------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
PRINCIPAL KNOX, L.L.C.,
as a Guarantor
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
[Signature pages continued]
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PRINCIPAL KNOX, L.P.,
as a Guarantor
By: PHC-Knox, Inc., its General Partner
By: /s/ Christopher T. Hannon
--------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
PRINCIPAL-NEEDLES, INC.,
as a Guarantor
By: /s/ Christopher T. Hannon
------------------------------------------
Name: Christopher T. Hannon
Title: Vice President/Assistant Treasurer
/s/ Debbie Moore
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Witness
/s/ Jada D. Carter
---------------------------------------------
Witness
[Signature pages continued]
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FIRST SECURITY BANK, 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
------------------------------------
[Signature pages continued]
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FIRST UNION NATIONAL BANK, as a Holder, as
a Lender and as the Agent
By: /s/ Ann M. Dodd
----------------------------------------
Name: Ann M. Dodd
--------------------------------------
Title: Senior Vice President
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[Signature pages continued]
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BANK OF AMERICA, N.A.,
formerly NationsBank of Tennessee, N.A.,
as a Holder and as a Lender
By: /s/ Elizabeth L. Knox
----------------------------------------
Name: Elizabeth L. Knox
--------------------------------------
Title: Senior Vice President
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[Signature pages continued]
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KEY CORPORATE CAPITAL, INC., as a Lender
By:
----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
[Signature pages continued]
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U.S. BANK NATIONAL ASSOCIATION, as a Lender
By: /s/ Forrest Vollrath
-----------------------------------------
Name: Forrest Vollrath
---------------------------------------
Title: Vice President
--------------------------------------
[Signature pages continued]
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CREDIT SUISSE FIRST BOSTON, as a Holder and
as a Lender
By: /s/ William S. Lutkins
----------------------------------------
Name: William S. Lutkins
---------------------------------------
Title: Vice President
--------------------------------------
By: /s/ Thomas G. Muoio
----------------------------------------
Name: Thomas G. Muoio
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Title: Vice President
--------------------------------------
[Signature pages continued]
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PARIBAS, formerly Banque Paribas, as a Holder
and as a Lender
By: /s/ Glenn E. Mealey
------------------------------------------
Name: Glenn E. Mealey
----------------------------------------
Title: Managing Director
---------------------------------------
By: /s/ Rosine K. Matthews
------------------------------------------
Name: Rosine K. Matthews
----------------------------------------
Title: Vice President
---------------------------------------
[Signature pages continued]
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MELLON BANK, N.A., as a Lender
By: /s/ Thomas E. Constantine
----------------------------------------
Name: Thomas E. Constantine
---------------------------------------
Title: Banking Officer
---------------------------------------
[Signature pages continued]
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NATIONAL CITY BANK OF KENTUCKY, as a Lender
By: /s/ Roderic M. Brown
----------------------------------------
Name: Roderic M. Brown
--------------------------------------
Title: Vice President
-------------------------------------
[Signature pages continued]
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AMSOUTH BANK, as a Lender
By: /s/ Cathy M. Wind
----------------------------------------
Name: Cathy M. Wind
---------------------------------------
Title: Vice President
--------------------------------------
[Signature pages continued]
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FIRST AMERICAN NATIONAL BANK, as a Lender
By: /s/ Sandy Hamrick
------------------------------------------
Name: Sandy Hamrick
----------------------------------------
Title: Senior Vice President
---------------------------------------
[Signature pages continued]
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FLEET NATIONAL BANK, as a Lender
By:
--------------------------------------
Name:
-------------------------------------
Title:
-----------------------------------
[Signature pages continued]
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LEHMAN COMMERCIAL PAPER INC., as a Lender
By: /s/ Michele Swanson
----------------------------------------
Name: Michele Swanson
---------------------------------------
Title: Authorized Signatory
--------------------------------------
[Signature pages continued]
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CREDIT LYONNAIS NEW YORK BRANCH, as a Lender
By:
----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
[Signature pages continued]
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UNION BANK OF CALIFORNIA, N.A., as a Lender
By: /s/ Virginia Hart
----------------------------------------
Name: Virginia Hart
--------------------------------------
Title: Vice President
-------------------------------------
[Signature pages end]
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SCHEDULE I
HOLDER COMMITMENTS
Holder Commitment
-----------------
Amount Percentage
------ ----------
FIRST UNION NATIONAL BANK $ 350,000 29.37853%
c/o First Union Capital Markets Group
301 South College Street, 6th Floor
Charlotte, North Carolina 28288-0166
Attention: Ms. Jane O. Hurley
Capital Markets Services
Telephone: (704) 383-3812
Telecopy: (704) 383-7989
PARIBAS $ 350,000 29.37853%
1200 Smith Street, Suite 3100
Houston, Texas 77002
Attention: Mr. Glenn Mealey
Director
Telephone: (713) 659-4811
Telecopy: (713) 659-5234
BANK OF AMERICA, N.A. $ 350,000 29.37853%
TN1-100-04-17
One NationsBank Plaza
Nashville, Tennessee 37239-1697
Attention: Ms. Elizabeth L. Knox
Senior Vice President
Telephone: (615) 749-3918
Telecopy: (615) 749-4951
CREDIT SUISSE FIRST BOSTON $ 141,346 11.86441%
Eleven Madison Avenue
New York, New York 10010-3629
Attention: Mr. William Lutkins
Vice President
Telephone: (212) 325-9705
Telecopy: (212) 325-8319
TOTAL $1,191,346 100.00000%
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Schedule 1.1
Tranche A Tranche B
Commitment Commitment
---------- ----------
Name and Address of Lenders Amount Percentage Amount Percentage
- --------------------------- ------ ---------- ------ ----------
FIRST UNION NATIONAL BANK $4,021,046 11.912515% $567,677 11.912515%
c/o First Union Capital Markets Group
301 South College Street, 6th Floor
Charlotte, North Carolina 28288-0166
Attention: Ms. Jane O. Hurley
Capital Markets Services
Telephone: (704) 383-3812
Telecopy: (704) 383-7989
PARIBAS $2,981,319 8.832279% $420,892 8.832279%
1200 Smith Street, Suite 3100
Houston, Texas 77002
Attention: Mr. Glenn Mealey
Director
Telephone: (713) 659-4811
Telecopy: (713) 659-5234
CREDIT LYONNAIS NEW YORK BRANCH $2,757,289 8.168582% $389,264 8.168582%
1301 Avenue of the Americas
New York, New York 10019
Attention: Mr. Henry Reukauf
Assistant Treasurer
Telephone: (212) 261-7394
Telecopy: (212) 261-3440
BANK OF AMERICA, N.A. $2,757,289 8.168582% $389,264 8.168582%
TN1-100-04-17
One NationsBank Plaza
Nashville, Tennessee 37239-1697
Attention: Ms. Elizabeth L. Knox
Senior Vice President
Telephone: (615) 749-3918
Telecopy: (615) 749-4951
AMSOUTH BANK $2,297,741 6.807151% $324,387 6.807151%
333 Union Street, Suite 200
Nashville, Tennessee 37201
Attention: Ms. Cathy Wind
Vice President
Telephone: (615) 291-5268
Telecopy: (615) 291-5257
FLEET NATIONAL BANK $2,297,741 6.807151% $324,387 6.807151%
MAOFD07B
One Federal Street
Boston, Massachusetts 02110
Attention: Ms. Maryann S. Smith
Vice President
Telephone: (617) 346-4613
Telecopy: (617) 346-4666
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Tranche A Tranche B
Commitment Commitment
---------- ----------
Name and Address of Lenders Amount Percentage Amount Percentage
- --------------------------- ------ ---------- ------ ----------
KEY CORPORATE CAPITAL, INC. $2,297,741 6.807151% $324,387 6.807151%
525 Vine Street, 6th Floor
Cincinnati, Ohio 45202-3121
Attention: Mr. Charlie Shoop
Assistant Vice President
Telephone: (513) 762-8292
Telecopy: (513) 762-8450
LEHMAN COMMERCIAL PAPER, INC. $2,297,741 6.807151% $324,387 6.807151%
3 World Financial Center, 10th Floor
New York, New York 10285
Attention: Ms. Michelle Swanson
Telephone: (212) 526-0330
Telecopy: (212) 528-0819
NATIONAL CITY BANK OF KENTUCKY $2,297,741 6.807151% $324,387 6.807151%
101 South Fifth Street
Louisville, Kentucky 40202
Attention: Mr. Roderic M. Brown
Vice President
Telephone: (502) 581-4369
Telecopy: (502) 581-4424
UNION BANK OF CALIFORNIA, N.A. $2,297,741 6.807151% $324,387 6.807151%
445 South Figueroa Street, 16th Floor
Los Angeles, California 90071
Attention: Mr. Albert W. Kelley
Vice President
Telephone: (213) 236-4284
Telecopy: (213) 236-7814
CREDIT SUISSE FIRST BOSTON $2,288,462 6.779661% $323,077 6.779661%
Eleven Madison Avenue
New York, New York 10010-3629
Attention: Mr. William Lutkins
Vice President
Telephone: (212) 325-9705
Telecopy: (212) 325-8319
FIRST AMERICAN NATIONAL BANK $1,723,306 5.105364% $243,290 5.105364%
First American Center
Nashville, Tennessee 32737-0203
Attention: Sandy Hamrick
Senior Vice President
Telephone: (615) 748-2191
Telecopy: (615) 748-8480
MELLON BANK, N.A. $1,723,306 5.105364% $243,290 5.105364%
One Mellon Bank Center, Room 151-0370
Pittsburgh, Pennsylvania 15258
Attention: Mr. Scott Hennessee
Vice President
Telephone: (412) 234-4458
Telecopy: (412) 236-0287
32
Tranche A Tranche B
Commitment Commitment
---------- ----------
Name and Address of Lenders Amount Percentage Amount Percentage
- --------------------------- ------ ---------- ------ ----------
U.S. BANK N.A. $ 1,716,346 5.084746% $ 242,308 5.084746%
601 Second Avenue South
Minneapolis, Minnesota 55402-4302
Attention: Mr. Forest Vollrath
Vice President
Telephone: (612) 973-0630
Telecopy: (612) 973-0829
TOTAL $33,754,807 100.000000% $4,765,385 100.000000%
33
EXHIBIT L
FORM OF
COMPLIANCE CERTIFICATE
THIS CERTIFICATE is given pursuant to Section 8.3(s) of the
Participation Agreement, dated as of March 30, 1998, among Province Healthcare
Company (the "Company"), the various parties thereto from time to time, as the
guarantors (the "Guarantors"), First Security Bank, National Association, as the
Owner Trustee under the PHC Real Estate Trust 1998-1, certain banks and other
financial institutions from time to time parties thereto as holders of
certificates issued with respect to the PHC Real Estate Trust 1998-1 (the
"Holders"), certain banks and other financial institutions from time to time
parties thereto as lenders (the "Lenders"), and First Union National Bank, as
the agent for the Lenders and the Holders, to the extent of their interests and
as Issuing Bank (as amended, modified, supplemented or restated from time to
time, the "Participation Agreement"). Capitalized terms used herein but not
defined herein shall have the meanings provided in Appendix A of the
Participation Agreement or in the Lessee Credit Agreement, as the case may be.
The undersigned hereby certifies that:
1. I am the duly elected [CHIEF EXECUTIVE OFFICER] [CHIEF FINANCIAL
OFFICER] [VICE PRESIDENT-FINANCE] [VICE PRESIDENT-CONTROLLER] of the Company and
am making this certification in my official capacity as such.
2. Enclosed with this Certificate are copies of the financial
statements of the Company and its Subsidiaries as of ____________, and for the
[_______-MONTH PERIOD] [YEAR] then ended, required to be delivered under Section
[5.1(A)] [5.1(B)] of the Lessee Credit Agreement. Such financial statements are
true and accurate in all material respects and fairly present in all material
respects the financial condition of the Company and its Subsidiaries on a
consolidated basis as of the date indicated and the results of operations of the
Company and its Subsidiaries on a consolidated basis for the period covered
thereby (subject, in the case of interim statements, to the absence of footnote
disclosures and normal and reasonable year-end adjustments).
3. The undersigned has reviewed the terms of the Lessee Credit
Agreement and has made, or caused to be made under the supervision of the
undersigned, a review in reasonable detail of the transactions and condition of
the Company and its Subsidiaries during the accounting period covered by such
financial statements.
4. The examination described in Paragraph 3 above did not disclose, and
the undersigned has no knowledge of the existence of; any Default or Event of
Default as of the date of this Certificate [, EXCEPT AS SET FORTH BELOW.
DESCRIBE HERE OR IN A SEPARATE ATTACHMENT ANY EXCEPTIONS TO PARAGRAPH 4
ABOVE BY LISTING, IN REASONABLE DETAIL, THE NATURE OF THE DEFAULT OR EVENT OF
DEFAULT, THE PERIOD DURING
34
WHICH IT EXISTED AND THE ACTION THAT THE COMPANY HAS TAKEN OR PROPOSES TO TAKE
WITH RESPECT THERETO.]
5. Attached to this Certificate as Attachments A and B, respectively,
are a Covenant Compliance Worksheet and an Interest Rate Calculation Worksheet
reflecting the computation of the financial covenants set forth in [ARTICLE VI]
of the Lessee Credit Agreement as of the last day of the period covered by the
financial statements enclosed herewith.
[remainder of page intentionally left blank]
35
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Certificate as of the ______ day of _____________, _______.
PROVINCE HEALTHCARE COMPANY
By:
------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
36
ATTACHMENT A
COVENANT COMPLIANCE WORKSHEET
RATIO OF CONSOLIDATED ADJUSTED DEBT TO ANNUALIZED CONSOLIDATED Not greater than:
EBITDAR (SECTION 6.9 OF THE LESSEE CREDIT AGREEMENT) 5.0 to 1.0
1. Consolidated Adjusted Debt as of the measurement date
(a) Consolidated Debt as of the measurement date $___________
(b) Facility Rent Expense for two immediately preceding
fiscal quarters then ending $___________
(c) Multiply line 1(b) by two $___________
(d) Multiply line 1(c) by eight $___________
(e) Consolidated Adjusted Debt $___________
2. Annualized Consolidated EBITDAR for two immediately preceding
fiscal quarters then ending
(a) Consolidated Net Income for two immediately preceding
fiscal quarters then ending $___________
(b) The sum of the following for such period:
Interest Expense $___________
Taxes $___________
Depreciation $___________
Amortization $___________
Facility Rent Expense $___________
Minority Interests(1) $___________
(c) Add lines 2(a) and 2(b) $___________
(d) Annualized Consolidated EBITDAR (multiply
line 2(c) by two(2))
3. Ratio of Consolidated Adjusted Debt to Annualized
Consolidated EBITDAR:
(divide line 1(e) by line 2(d)) $___________
- -----------------------
(1) To extent issuer of minority interest is obligated to pay debt service on
loans from Affiliates before making distributions.
(2) Do not multiply losses of an extraordinary nature, included in Consolidated
Net Income in line 2(a) above, by two.
37
Not greater than:
RATIO OF CONSOLIDATED ADJUSTED SENIOR DEBT TO 4.0 to 1.0 through 12/31/00
ANNUALIZED CONSOLIDATED EBITDAR (SECTION 6.10 OF 3.75 to 1.0 through 6/30/01
THE LESSEE CREDIT AGREEMENT) 3.50 to 1.0 thereafter
1. Consolidated Adjusted Senior Debt
(a) Consolidated Adjusted Debt (from prior page) $___________
(b) Subordinated Debt $___________
(c) Consolidated Adjusted Senior Debt
subtract line 1(b) from 1(a) $___________
2. Annualized Consolidated EBITDAR (from prior page)
$___________
3. Ratio of Consolidated Adjusted Senior Debt to Annualized
Consolidated EBITDAR (divide line 1(c) by line 2) $___________
38
ANNUALIZED JOINT VENTURE EBITDAR (SECTION 6.11 OF THE Not greater than:
LESSEE CREDIT AGREEMENT) 20% of Annualized
Consolidated EBITDAR
1. Annualized Joint Venture EBITDAR for two
immediately preceding fiscal quarters then ending
(a) Consolidated Net Income for Non-Wholly Owned
Consolidated Subsidiaries for two immediately
preceding fiscal quarters then ending $___________
(b) The sum of the following for Non-Wholly Owned
Consolidated Subsidiaries for such period
Interest Expense $___________
Taxes $___________
Depreciation $___________
Amortization $___________
Facility Rent Expense $___________
Minority Interests(3) $___________
Total 1(b) $___________
(c) Add lines 1(a) and 1(b) $___________
(d) Annualized Joint Venture EBITDAR:
(multiply line 1(c) by two(4)) $___________
2. Annualized Consolidated EBITDAR
(from calculations for Section 6.9) $___________
3. Maximum Permitted Annualized Joint Venture
EBITDAR (multiply line 2 by .2) $___________
- ---------------------
(3) To extent issuer of minority interest is obligated to pay debt service on
loans from Affiliates before making distributions.
(4) Do not multiply losses of an extraordinary nature, included in Consolidated
Net Income in line 1(a) above, by two.
39
MINIMUM NEW WORTH Not less than $173,624,000, plus 85% of
(SECTION 6.12 OF THE LESSEE CREDIT AGREEMENT) Consolidated Net Income (but excluding
any net loss) from July 1, 1999, plus 90%
of increases in the stated capital and
additional paid in capital accounts of
Company resulting from the issuance of
equity securities or other capital
investments after the Amendment Effective
Date
1. $173,624,000 $173,624,000
2. Consolidated Net Income (excluding any net loss)
for all periods from and after July 1, 1999 $___________
3. Multiply line 2 by .85 $___________
4. Increases in the stated capital and additional paid
in capital accounts of Company resulting from the
issuance of equity securities or other capital
investments after the Amendment Effective Date $___________
5. Multiply line 4 by .9 $___________
6. Required Minimum Net Worth
(add lines 1, 3, and 5) $___________
7. Consolidated Net Worth at Measurement Date $___________
40
FIXED CHARGE COVERAGE RATIO (SECTION 6.13 OF THE Not less than or equal to:
LESSEE CREDIT AGREEMENT) 1.2 to 1.0
1. Annualized Consolidated EBITDAR (from calculation
for Section 6.9) $___________
2. Fixed Charges
(a) Scheduled Principal Payments $___________
(b) The sum of the following for the two fiscal
quarters then ending:
Interest Expense (payable in cash) $___________
Facility Rent Expense $___________
Cash Taxes $___________
(c) Multiply line 2(b) by two $___________
(d) Actual Capital Expenditures for four fiscal
quarters then ending $___________
(e) Fixed Charges: add lines 2(a), 2(c) and 2(d) $___________
3. Ratio of Annualized Consolidated EBITDAR to Fixed
Charges (divide line 1 by line 2(e))
41
CAPITALIZED EXPENDITURES (SECTION 6.14 OF THE Not greater than 7.5% of
LESSEE CREDIT AGREEMENT) Consolidated Net Revenues for
the four fiscal quarters then ending
1. Capital Expenditures for four fiscal quarters
then ending(5) $___________
2. Consolidated Net Revenues for such period $___________
3. Maximum Permitted Capital Expenditures (multiply
line 2 by 0.075) $___________
- ------------------
(5) The definition of Capital Expenditures also excludes aggregate capital
expenditures incurred by the Company and its Subsidiaries on or prior to May 31,
2001 at Havasu Samaritan Regional Hospital, not to exceed $25,000,000.
42
ANNUALIZED NON-LANDLORD CONSENT EBITDAR Not greater than:
(SECTION 6.15 OF THE LESSEE CREDIT AGREEMENT) 10% of Annualized
Consolidated EBITDAR
1. Annualized Non-Landlord Consent EBITDAR for two
immediately preceding fiscal quarters then ending
(a) Consolidated Net Income, attributable to all
Facility Leased Properties of the Company or
any Subsidiary for which a Landlord Consent has
not been delivered by the Agent, for two
immediately preceding fiscal quarters then
ending $___________
(b) The sum of the following, attributable to all Facility
Leased Properties of the Company or any Subsidiary
for which a Landlord Consent has not been delivered
by the Agent, for such period
Interest Period $___________
Taxes $___________
Depreciation $___________
Amortization $___________
Facility Rent Expense $___________
Minority Interests(6) $___________
(c) Add lines 1(a) and 1(b) $___________
(d) Annualized Non-Landlord Consent EBITDAR
(multiply line 1(c) by two(7)) $___________
2. Annualized Consolidated EBITDAR (from calculations for
Section 6.9) $___________
3. Maximum Permitted Annualized Non-Landlord
Consent EBITDAR (multiply line 2 by 0.1) $___________
- ---------------------
(6) To the extent issuer of minority interest is obligated to pay debt service
on loans from Affiliates before making distributions.
(7) Do not multiply losses of an extraordinary nature, included in Consolidated
Net Income in line 1(a) above, by two.
43
PARKVIEW REGIONAL HOSPITAL/EBITDAR TO FACILITY Not less than 1.75
RENT EXPENSE (SECTION 6.16 OF THE LESSEE CREDIT AGREEMENT) to 1.00 at any time
1. EBITDAR of Parkview Regional Hospital for the
period of determination $___________
2. Facility Rent Expense of Parkview Regional
Hospital for the period of determination $___________
3. Ratio of EBITDAR to Facility Rent Expense for
Parkview Regional Hospital (divide line 1 by line 2) $___________
44
ATTACHMENT B
INTEREST RATE CALCULATION WORKSHEET8
RATIO OF CONSOLIDATED ADJUSTED DEBT TO ANNUALIZED
CONSOLIDATED EBITDAR
1. Consolidated Adjusted Debt (from calculation for
Section 6.9) $___________
2. Annualized Consolidated EBITDAR (from calculation
for Section 6.9) $___________
3. Ratio of Consolidated Adjusted Debt to Annualized
Consolidated EBITDAR (divide line 1 by line 2) $___________
4. Applicable Percentage Eurodollar ___________%
ABR ___________%
- --------------
(8) From the Amendment Effective Date until the fifth Business Day after receipt
by the Agent of the financial statements for the fiscal quarter ended September
30, 1999 pursuant to Section 5.1(b) of the Lessee Credit Agreement, the
Applicable Percentage shall be 1.75% for Eurodollar Loans, 0.50% for ABR Loans,
0.375% for the Lender Facility Fee and 0.375% for the Holder Facility Fee.