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EXHIBIT 4.4
FIRST AMENDMENT TO CREDIT AGREEMENT
AND WAIVER
THIS FIRST AMENDMENT TO CREDIT AGREEMENT AND WAIVER, dated as of the
20th day of November, 1998 (this "Amendment"), is made among PROVINCE HEALTHCARE
COMPANY, a Delaware corporation (the "Borrower"), the Lenders (as hereinafter
defined) that have executed this Amendment (the "Required Lenders"), and FIRST
UNION NATIONAL BANK, as agent for the Lenders (in such capacity, the "Agent").
RECITALS
A. The Borrower, certain banks and other financial institutions (the
"Lenders") and the Agent are parties to an Amended and Restated Credit
Agreement, dated as of March 30, 1998 (the "Credit Agreement"), providing for
the availability of certain credit facilities 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 the amendment of the Capital Expenditures
financial covenant of the Credit Agreement and has additionally requested that
the Required Lenders waive a violation by the Borrower of the Capital
Expenditures financial covenant of the Credit Agreement, and the Required
Lenders have agreed to effect such amendment and waiver upon the terms and
conditions set forth herein.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I.
AMENDMENTS
1.1 Capital Expenditures. SECTION 6.14 of the Credit Agreement is
hereby amended and restated in its entirety as follows:
"6.14 Capital Expenditures. Permit Capital Expenditures for the
four (4) consecutive fiscal quarters ending on the last day of any fiscal
quarter beginning with the fiscal quarter ending December 31, 1998 to exceed
seven and one-half percent (7.5%) of Consolidated Net Revenues for the four (4)
consecutive fiscal quarters then ending."
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ARTICLE II.
WAIVER
For the four consecutive fiscal quarters ended September 30, 1998,
Capital Expenditures equaled $14,008,159, or 5.23% of Consolidated Net Revenues
(which equaled $269,736,489) for such period. The Required Lenders hereby agree
to waive any Default or Event of Default arising from noncompliance by the
Borrower with SECTION 6.14 (as such section was in effect immediately prior to
giving effect to the amendments to such section set forth herein) of the Credit
Agreement, as of the last day of the fiscal quarter ended September 30, 1998;
provided that Capital Expenditures for the four (4) consecutive fiscal quarters
ending on September 30, 1998 did not exceed 5.25% of Consolidated Net Revenues
for the four (4) consecutive fiscal quarters then ending. If any Default or
Event of Default (other than with respect to any Default or Event of Default
being waived as specifically described hereinabove) should occur and be
continuing under the Credit Agreement, the Agent and the Lenders will be under
no obligation to forbear the exercise of their rights and remedies under the
Credit Agreement, the other Credit Documents, applicable law or otherwise.
Further, the waiver of the Required Lenders set forth herein 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 a waiver of
any Default or Event of Default except as expressly set forth herein.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants as follows:
3.1 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).
3.2 No Default. After giving effect to this Amendment, no Default or
Event of Default has occurred and is continuing.
ARTICLE IV.
CONDITIONS TO EFFECTIVENESS
The effectiveness of the amendments to the Credit Agreement and waiver
set forth in this Amendment is subject to the satisfaction of the following
conditions:
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4.1 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 IV has been satisfied.
4.2 Other Documents. The Agent shall have received such other
documents, certificates, opinions and instruments as it shall have reasonably
requested.
ARTICLE V.
MISCELLANEOUS
5.1 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.
5.2 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).
5.3 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.
5.4 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.
5.5 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.
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5.6 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.
5.7 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 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 Required Lenders; provided that the
amendments to the Credit Agreement and the waiver set forth herein shall become
effective as provided in ARTICLE IV hereof.
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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/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Executive VP and CFO
FIRST UNION NATIONAL BANK,
as Agent, Lender and
successor by merger to
CORESTATES BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
BANK PARIBAS
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Director
By: /s/ Xxxxx X. May
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Name: Xxxxx X. May
Title: Vice President
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CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ X. Xxxxxxxx
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Name: Farboud Tavanger
Title: First Vice President
NATIONSBANK OF TENNESSEE, N.A.
By: /s/ Xxxxxxxxx X. Xxxx
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Name: Xxxxxxxxx X. Xxxx
Title: SVP
AMSOUTH BANK
By: /s/ Xxxxx X. Wind
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Name: Xxxxx X. Wind
Title: VP
FIRST AMERICAN NATIONAL BANK
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Senior-Vice President
KEY CORPORATE CAPITAL, INC.
By: /s/ J. Tell
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Name: Xxxxxxx X. Tell
Title:
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XXXXXX COMMERCIAL PAPER, INC.
By: /s/ /illegible/
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Name:
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Title:
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NATIONAL CITY BANK OF KENTUCKY
By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxxxxx Xxxx
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Name: Xxxxxxxx Xxxx
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
MELLON BANK, N.A.
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
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