EXHIBIT 10.1
EIGHTH AMENDMENT TO CREDIT AGREEMENT
EIGHTH AMENDMENT TO CREDIT AGREEMENT dated as of April 22, 1997 (this
"Amendment") among Physician Corporation of America (the "Borrower"), the banks
listed on the signature pages hereof (the "Lenders"), Citibank, N.A., as issuing
bank (the "Issuing Bank"), and Citibank, N.A., as agent for the Lenders and
Issuing Bank (the "Agent").
PRELIMINARY STATEMENTS:
1. The Borrower, the Lenders, the Issuing Bank and the Agent are
parties to that certain Revolving Credit Agreement dated as of October 27, 1994,
as amended by an Amendment to Credit Agreement and Consent to Acquisition dated
as of September 22, 1995, by a Second Amendment to Credit Agreement dated as of
March 29, 1996, by a Third Amendment to Credit Agreement dated as of April 5,
1996, by a Fourth Amendment and Consent Agreement dated as of June 10, 1996, by
a Fifth Amendment and Waiver Agreement dated as of November 25, 1996, by a Sixth
Amendment and Waiver Agreement dated as of January 8, 1997 and by a Seventh
Amendment to Credit Agreement dated as of February 14, 1997, (such Revolving
Credit Agreement, as so amended and as further amended, supplemented or
otherwise modified and in effect from time to time being the "Credit
Agreement"). Capitalized terms defined in the Credit Agreement and not
otherwise defined herein are used herein as therein defined; and capitalized
terms defined in Section 1 hereof are used elsewhere herein as so defined
(without regard to the conditions to effectiveness in Section 4 hereof).
2. The Borrower has requested that the Issuing Bank and the Lenders
amend the Credit Agreement to, among other things, extend the Termination Date,
on the terms and subject to the conditions hereof.
3. The Issuing Bank and the Lenders are willing to agree to such
amendments requested by the Borrower, on the terms and subject to the conditions
hereof.
NOW, THEREFORE, in consideration of the premises and mutual agreements
set forth herein, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT. (a) (i) The definition
of "Applicable Base Rate Margin" set forth in Section 1.01 of the Credit
Agreement is hereby amended in its entirety so as to read in full as follows:
"'APPLICABLE BASE RATE MARGIN' means (i) at all times during the
period from April 1, 1997 through July 31, 1997, 3% and (ii) at all
times thereafter, 4%."
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(ii) The definition of "Fifth Amendment Termination Date" set forth in
Section 1.01 of the Credit Agreement is hereby deleted in its entirety.
(iii) The definition of "Termination Date" set forth in Section
1.01 of the Credit Agreement is hereby amended in its entirety so as to
read in full as follows:
"'TERMINATION DATE" means (x) October 1, 1997 or (y) such earlier
date of declaration of the Advances, the Notes, all interest thereon
and all other amounts payable hereunder to be forthwith due and
payable pursuant to Section 7.01 or otherwise."
(iv) The definition of "Loan Documents" set forth in Section 1.01 of
the Credit Agreement is hereby amended in its entirety so as to read in
full as follows:
"'LOAN DOCUMENTS' means this Agreement, the Notes, the Fee
Letter, the Second Amendment, the Borrower Pledge Agreement
(including, without limitation, the Amendment to Borrower Pledge
Agreement delivered pursuant to the Fourth Amendment), each of the
Guaranties, Security Agreements and other documents delivered by the
Borrower or any of its Subsidiaries pursuant to Section 6 of the
Second Amendment, the Fourth Amendment, the PFI Consideration Pledge
Agreement (including, without limitation, the Amendment to Borrower
Security Agreement delivered pursuant to the Fifth Amendment), the PFI
Consideration Consent Agreement, the Fifth Amendment, the Sixth
Amendment, the Seventh Amendment, the Eighth Amendment and any
document delivered by the Borrower for the benefit of the Lenders,
Issuing Bank or Agent in connection with the Sierra Subordinated Note,
in each case as amended, supplemented or otherwise modified from time
to time."
(b) Section 1.01 of the Credit Agreement is hereby amended by the addition
of the following definitions thereto:
"ACHA CONTRACT" means the contract, effective July 1, 1996, between
PCA Family Health Plan, Inc. and the State of Florida's Agency for Health
Care Administration.
"ASES CONTRACTS" means the contracts, dated November 9, 1995 and March
10, 1997, between PCA Health Plans of Puerto Rico, Inc. and the Puerto Rico
Health Insurance Administration.
"EIGHTH AMENDMENT" means the Eighth Amendment to Credit Agreement
dated as of April 22, 1997 among the Borrower, the Lenders parties thereto,
the Issuing Bank and the Agent.
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"MEDICARE CONTRACTS" means the contracts, dated January 1, 1997,
between PCA Health Plans of Florida, Inc. and the Department of Health and
Human Services and PCA Health Plans of Texas, Inc. and the Department of
Health and Human Services:
(c) Section 2.07(b) of the Credit Agreement is hereby amended in its
entirety so as to read in full as follows:
"(b) DEFAULT INTEREST. Upon the occurrence and during the continuance
of an Event of Default set forth in Section 7.01(a), (e) or (m) of the
Credit Agreement, the Borrower shall pay interest on the unpaid principal
amount of each Advance owing to each Lender and, to the fullest extent
permitted by law, on the unpaid amount of all interest, fees and other
amounts payable hereunder and under the other Loan Documents, payable in
arrears on demand by the Agent and on the date such amount shall be paid in
full, at a rate per annum equal at all times to 5% per annum above the
interest rate then applicable to Base Rate Advances (computed on the basis
of a year of 360 days for the actual number of days (including the first
day but excluding the last day) occurring during the period for which such
interest in payable), and upon the occurrence and during the continuance of
any other Event of Default, the Borrower shall pay interest on the unpaid
principal amount of each Advance owing to each Lender and, to the fullest
extent permitted by law, on the unpaid amount of all interest, fees and
other amounts payable hereunder and under the other Loan Documents, payable
in arrears on demand by the Agent and on the date such amount shall be paid
in full, at a rate per annum equal at all times to 2% per annum above the
interest rate then applicable to Base Rate Advances (computed on the basis
of a year of 360 days for the actual number of days (including the first
day but excluding the last day) occurring during the period for which such
interest is payable)."
(d) Section 6.03(a) of the Credit Agreement is hereby amended in its
entirety so as to read in full as follows:
"(a) NET WORTH. Permit the Consolidated Net Worth of the Borrower and
its Subsidiaries on any date of determination after March 31, 1997 to be
less than the sum of (A) ($63,239,000) (exclusive of any change from any
unrealized gain or loss in investments) plus (B) an amount equal to 75% of
the aggregate amount of the Consolidated Net Income of the Borrower and its
Subsidiaries for each calendar month ending after March 31, 1997 but before
such date of determination (the amount such Consolidated Net Income to be
computed without regard to any net loss in any month)."
(e) Section 6.03(e) of the Credit Agreement is hereby amended in its
entirety so as to read in full as follows:
"(e) EBITDA. Permit the Consolidated EBITDA of the Borrower and its
Subsidiaries for any month as determined as at the end of such month (i)
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for each month ending to and including June 30, 1997, to be less than an
amount that allows the Interest Coverage Ratio for such calendar month to
be 1.00 to 1.00 or greater and (ii) for each month ending thereafter, to be
less than an amount that allows the Interest Coverage Ratio for such
calendar month to be 2.00 to 1.00 or greater."
(f) Section 7.01(e) of the Credit Agreement is amended by adding at the
end thereof before "or" the following proviso:
"PROVIDED, HOWEVER, an Event of Default shall not be deemed to occur
if any proceeding shall be instituted by PCIC or Solutions or by the
State of Florida Department of Insurance against either PCIC or
Solutions seeking liquidation, reorganization, protection, relief or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or the entry of an
order for relief or the appointment of a receiver, transfer or similar
official for it or any substantial part of its property"
(g) Section 7.01(f) of the Credit Agreement is amended by adding at the
end thereof before "or" the following proviso:
"PROVIDED, HOWEVER, notwithstanding the foregoing, an Event of Default
shall be deemed to occur in the event any judgment or order is
rendered against the Borrower or any of its Subsidiaries (other than
PCIC or Solutions) for the benefit of the State of Florida Department
of Insurance"
(h) Section 7.01(q) of the Credit Agreement is amended by adding "or"
after the semicolon at the end of such subsection and adding a new subsection
(r) after such subsection (q) to read as follows:
"(r) Any of the ACHA Contract, ASES Contracts or Medicare Contracts
shall terminate or be amended or modified (without appropriate
material consideration to the Borrower for such amendment or
modification) so as to materially increase the respective obligations
thereunder of the Borrower's Subsidiary party thereto or materially
reduce the respective benefits thereunder to which the Borrower's
Subsidiary party thereto is entitled;"
SECTION 2. REPRESENTATIONS AND WARRANTIES. The Borrower hereby
represents and warrants as follows:
(a) All representations and warranties of the Borrower contained in
the Credit Agreement, both before and after giving effect to Section 1
hereof, are true in all material respects (except for any such
representation or warranty (or portion thereof) that is qualified by
reference to a specific materially standard, in which case such
representation or warranty is true in all respects).
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(b) Without limiting the representations and warranties made in
subsection (a) above or in the Credit Agreement, no authorization, consent,
approval or other action by, and no notice to or filing with, any HMO
Regulator or Insurance Regulator is required for, and no HMO Event,
Insurance Event or violation of the HMO Regulations or Insurance
Regulations would result from, the due execution, delivery or performance
by the Borrower or any Loan Party of this Amendment or any of the Loan
Documents and other documents to be delivered to be delivered in connection
herewith.
SECTION 3. REFERENCE TO AND EFFECT ON LOAN DOCUMENTS. (a) On and
after the date hereof, each reference in the Credit Agreement to "this
Agreement", "hereunder", "hereof", "herein", or words of like import referring
to the Credit Agreement, and each reference to the Credit Agreement in the other
Loan Documents, shall mean and be a reference to the Credit Agreement as amended
hereby.
(b) Except as specifically amended under Section 1 hereof and as
provided in Section 5 hereof, each of the Credit Agreement and each other Loan
Document shall remain in full force and effect and is hereby ratified and
confirmed.
(c) The Borrower acknowledges and agrees that, except to the extent
specifically amended under Section 1 hereof and as provided in Section 5 hereof,
it is obligated to comply with each and every term, covenant, agreement and
condition applicable to it under the Credit Agreement or the other Loan
Documents. The execution, delivery and effectiveness of this Amendment shall
not otherwise operate as a waiver of any right, remedy or privilege of any
Lender, the Issuing Bank or the Agent under the Credit Agreement or any other
Loan Document, any and all of which rights, remedies and privileges are
reserved.
SECTION 4. CONDITIONS AND EFFECTIVENESS. Section 1 of this Amendment
shall become effective as of April 22, 1997, if and only if all of the following
conditions precedent are satisfied on or before April 22, 1997:
(a) The Agent shall have received counterparts of this Amendment duly
executed by the Borrower, the Issuing Bank and each Lender and a
counterpart of the Consent of Guarantor attached hereto duly executed by
the Guarantor.
(b) The Agent shall have received the following, in form and
substance satisfactory to the Agent, the Issuing Bank and the Majority
Lenders (unless otherwise specified) and in sufficient copies for the
Agent, Issuing Bank and each Lender:
(i) A certificate, duly executed by the Borrower's Chief
Executive Officer or Chief Financial Officer, certifying that on such
date (i) after giving effect to Section 1 hereof, no Default or Event
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of Default has occurred and is continuing and (ii) the representations
and warranties set forth in Section 2 hereof are true on and as of
such date.
(ii) Certified copies of the resolutions of the Board of
Directors of the Borrower approving this Amendment, and of all
documents evidencing other necessary corporate action and governmental
and other third party approvals and consents, if any, with respect to
each such Loan Document.
(iii) A certificate of the Secretary or an Assistant
Secretary of the Borrower certifying the names and true signatures of
the officers of the Borrower authorized to sign this Amendment.
(iv) A legal opinion from Greenberg, Traurig, Hoffman, Lipoff,
Xxxxx & Xxxxxxx, P.A., counsel to the Borrower, as to this Amendment
and the Credit Agreement, as amended hereby, in form and substance
satisfactory to the Agent.
(c) The Borrower shall have paid to the Agent, in immediately
available funds for the rateable account of the Lenders, a fee in the
amount of 1.00% of the aggregate amount of the Advances and Letter of
Credit Liability outstanding on the date hereof.
(d) The Borrower shall have paid all amounts accrued and payable
under Section 9.04 of the Credit Agreement to the extent that request for
such payment has been made to the Borrower.
SECTION 5. COVENANTS. (a) ADDITIONAL FEE. The Borrower
agrees that in the event the Borrower does not deliver to the Agent on or before
July 31, 1997 either (a) a commitment letter or other binding agreement (in
either case in form and substance satisfactory to the Majority Lenders) between
the Borrower and one or more lenders or investors (satisfactory to the Majority
Lenders) providing for the commitment of such lender or lenders or investors to
provide financing to the Borrower sufficient to enable the Borrower to pay all
Obligations in full (including, without limitation, replacement and termination
of any outstanding Letter of Credit) on or before October 1, 1997 or (b) a
definitive agreement (in form and substance satisfactory to the Majority
Lenders) for the sale or merger of the Borrower or the sale of all or a
substantial portion of the assets of the Borrower, executed by the Borrower and
the other party or parties thereto, with such transaction proposed to be
consummated on or before October 1, 1997 and with such transaction to include
the payment of all Obligations in full (including, without limitation,
replacement and termination of any outstanding Letter of Credit) on or before
October 1, 1997, then on July 31, 1997, the Borrower shall pay to the Agent, in
immediately available funds for the ratable account of the Lenders, a fee in the
amount of 1.00% of the aggregate amount of the Advances and Letter of Credit
Liability outstanding on such date (after giving effect to any payment of such
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Advances or reduction in Letter of Credit Liability made on such date). Without
limiting any provision of any Loan Document, such fee shall be payable in
addition to interest at the applicable rate under the Credit Agreement and all
other amounts payable under the Loan Documents.
(b) MONTHLY REPORT. So long as any Obligations remain unpaid, as
soon as available and in any event within 30 days after the end of each calendar
month, the Borrower shall deliver to the Agent and each Lender a report, as of
the end of such calendar month, as to the Borrower's and its Subsidiary's
capital requirements calculations for Medicare Contracts.
SECTION 6. WAIVER/RELEASE OF COLLATERAL. (a) Notwithstanding
anything to the contrary in the Credit Agreement, the Lenders, the Issuing Bank
and the Agent hereby consent to (and waive any Default which would otherwise
arise as a result thereof) a PCIC Resolution (as hereinafter defined), provided
that no Default or Event of Default (excluding any Default or Event of Default
arising solely by the transactions contemplated by the PCIC Resolution) exists
at the time of the PCIC Resolution.
(b) "PCIC Resolution" means a transaction or series of transactions,
each of which has been duly approved by the Board of Directors of the Borrower,
including the transfer of the stock or certain or all of the assets of PCIC or
Solutions or claims to either of its future earnings or cash flow, the
incurrence of liens on the assets of either PCIC or Solutions or the incurrence
of direct or indirect obligations by either PCIC or Solutions, or any
combination of the foregoing, which in all cases are for the benefit of the
State of Florida Department of Insurance or other appropriate third parties and
which in each case is required or appropriate in order to reduce, minimize or
resolve the deficit (within the meaning of the regulations of the State of
Florida Department of Insurance) of PCIC and to limit or reduce any related
claims against the Borrower.
(c) On or before the date of any transaction within the meaning of
PCIC Resolution, to the extent needed, the Lenders, the Issuing Bank and the
Agent agree to release their security interest in the stock of PCIC or the stock
or assets of Solutions, as the case may be, and the Agent is accordingly
authorized in connection therewith to deliver to the Borrower such stock or an
appropriately completed uniform commercial code termination statement, as the
case may be.
SECTION 7. COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by different parties hereto on separate counterparts,
each of which, when so executed and delivered, shall be an original, but all
such counterparts shall together constitute one and the same agreement.
SECTION 8. RELEASE. The Borrower and each of its agents,
employees, directors, officers, affiliates, subsidiaries, successors and assigns
(each such person individually, a "Releasing Party" and, collectively, the
"Releasing Parties") each hereby release and forever discharge each of the
Lenders, the Issuing Bank and the Agent and all of their respective agents,
direct and indirect shareholders, employees, directors, officers, attorneys,
affiliates, subsidiaries, successors and assigns (each such person individually,
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a "Released Party" and, collectively, the "Released Parties") of and from all
damage, loss, claims, demands, liabilities, obligations (except for any such
obligations pursuant to the terms of the Credit Agreement, as amended hereby),
actions and causes of action whatsoever (collectively, "Claims") the Releasing
Parties and each of them may, as of the date hereof, have or claim to have
against each of the Released Parties, in each case whether presently known or
unknown and of every nature and extent whatsoever on account of or in any way
relating to, arising out of or based upon the Credit Agreement or any other Loan
Document or the negotiation or documentation thereof or the transactions
contemplated thereby, including, without limitation, all such loss or damage of
any kind heretofore sustained, or that may arise as a consequence of the
dealings between the parties up to the date hereof in connection with or in any
way related to this Amendment. Each Releasing Party further covenants and
agrees that it has not assigned heretofore, and will not hereafter xxx any
Released Party upon, any Claim released or purported to be released hereunder,
and the Borrower shall indemnify and hold harmless such Released Parties against
any loss or liability on account of any actions brought by any Releasing Party
or its assigns or prosecuted on behalf of any Releasing Party and relating to
any Claim released or purported to be released hereunder. This agreement and
covenant on the part of the Releasing Parties, respectively, is contractual, and
not a mere recital, and the parties hereto acknowledge and agree that no
liability whatsoever is admitted on the part of any party with respect to any
Claim released or purported to be released hereunder.
SECTION 9. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized, as of the date first above written.
THE BORROWER:
PHYSICIAN CORPORATION OF AMERICA
By:_______________________________________
Name:
Title:
THE LENDERS AND ISSUING BANK:
CITIBANK, N.A., as Lender and as Issuing Bank
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By:_______________________________________
Name:
Title:
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
By:_______________________________________
Name:
Title:
NATIONSBANK OF TENNESSEE
By:_______________________________________
Name:
Title:
NATIONSBANK, NATIONAL ASSOCIATION (MID-WEST)
(formerly known as Boatmen's First National Bank
of Kansas City)
By:_______________________________________
Name:
Title:
SUNTRUST BANK, MIAMI, N.A.
By:_______________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By:_______________________________________
Name:
Title:
