EXHIBIT 10.2.2
SECOND AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of August 1, 2003 (this "Amendment"), to the Existing Credit Agreement
(as defined below) is made by USP DOMESTIC HOLDINGS, INC., a Delaware
corporation (the "US Borrower"). USPE HOLDINGS LIMITED, a company incorporated
in England and Wales (the "UK Borrower", and together with the US Borrower,
collectively the "Borrowers" and each individually a "Borrower") and the Lenders
(such capitalized term and other capitalized terms used in this preamble and the
recitals below to have the meanings set forth in, or are defined by reference
in, Article I below).
WITNESSETH:
WHEREAS, the Borrowers, the Lenders, SunTrust Bank, as the
Administrative Agent, Xxxxxx Commercial Paper, Inc., as the Syndication Agent,
and Credit Suisse First Boston Bank, as the Documentation Agent, are all parties
to the Second Amended and Restated Credit Agreement, dated as of November 7,
2002, as amended by that certain First Amendment to Second Amended and Restated
Credit Agreement dated as of June 3, 2003 (as amended, the "Existing Credit
Agreement", and as amended by this Amendment and as the same may be further
amended, supplemented, amended and restated or otherwise modified from time to
time, the "Credit Agreement");
WHEREAS, the Borrowers have requested that the Lenders amend certain
provisions of the Existing Credit Agreement and the Lenders are willing, on the
terms and subject to the conditions hereinafter set forth, to amend the Existing
Credit Agreement as set forth below;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, the parties hereto hereby covenant and agree as
follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Certain Definitions. The following terms when used in this
Amendment shall have the following meanings (such meanings to be equally
applicable to the singular and plural forms thereof):
"Amendment" is defined in the preamble.
"Borrowers" is defined in the preamble.
"Credit Agreement" is defined in the first recital.
"Existing Credit Agreement" is defined in the first recital.
"Second Amendment Effective Date" is defined in Article III.
SECTION 1.2 Other Definitions. Terms for which meanings are provided
in the Credit Agreement are, unless otherwise defined herein or the context
otherwise requires, used in this Amendment with such meanings.
ARTICLE 2
AMENDMENT TO CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the Second Amendment
Effective Date, the provisions of the Existing Credit Agreement referred to
below are hereby amended in accordance with this Article II. Except as expressly
so amended, the Existing Credit Agreement shall continue in full force and
effect in accordance with its terms.
SECTION 2.1 Modification of Article I. Article I of the Existing Credit
Agreement is hereby amended as follows:
SECTION 2.1.1 Section 1.1 of the Existing Credit Agreement is
hereby amended by inserting the following definition in such Section in
the appropriate alphabetical sequence:
"Amendment No. 2" means the Second Amendment to
Second Amended and Restated Credit Agreement, dated as of
August 1, 2003, to this Agreement.
SECTION 2.2 Modification of Article II. Article II of the Existing
Credit Agreement is hereby amended as follows:
SECTION 2.2.1 Section 2.1.1 of the Existing Credit Agreement
is hereby amended by restating clause (d) thereto to read as follows:
(d) Notwithstanding anything to the contrary
contained herein, until satisfaction of the covenants and
conditions set forth in Section 8.3, the Lenders will have no
obligation to issue Letters of Credit for the benefit of the
UK Borrower which would otherwise be permitted hereunder or
have any obligation to advance Loans to the UK Borrower which
would otherwise be permitted hereunder. Once the covenants and
conditions of Section 8.3 have been met to the satisfaction of
Administrative Agent, this clause (d) will no longer be
applicable to restrict the Credit Extensions to the UK
Borrower. The Borrowers agree to have all such covenants and
conditions of Section 8.3 met to the satisfaction of
Administrative Agent no later than September 15, 2003.
SECTION 2.3 Modification of Article VIII. Article VIII of the Existing
Credit Agreement is hereby amended as follows:
SECTION 2.3.1 Section 8.1.7 of the Existing Credit Agreement
is hereby amended by restating clause (a) thereto to read as follows:
(a) for working capital and general corporate
purposes of the Borrowers and the Subsidiary Guarantors,
including Investments and Permitted
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Acquisitions permitted by this Agreement; provided, however,
that if such proceeds are directly or indirectly used for
Investments or Permitted Acquisitions involving any Person
which owns or will acquire assets in Spain (or which holds or
will hold Equity Interests in any Person which owns or will
acquire assets in Spain), Borrowers agree that only the UK
Borrower may request and receive Credit Extensions for that
purpose; and
SECTION 2.3.2 Section 8.1.8 of the Existing Credit Agreement
is hereby amended by adding the following sentence immediately at the
end of Section 8.1.8 contained therein:
Notwithstanding the foregoing, the Administrative Agent and
Lenders hereby agree that as long as the outstanding
Obligations of the UK Borrower do not exceed $20,000,000 at
any one time (including the face amount of all Letters of
Credit issued for the benefit of the UK Borrower or any
Foreign Subsidiary Guarantor), the Borrowers will not be
required to file or cause to be filed a Mortgage on any real
property acquired in Spain after the Closing Date by the UK
Borrower or any Foreign Subsidiary Guarantor. Until such time
as all Mortgages are duly filed and recorded on any such real
property acquired in Spain after the Closing Date and such
additional due diligence items are delivered to Administrative
Agent as required in Section 8.1.8. Lenders will have no
obligation to issue Letters of Credit for the benefit of the
UK Borrower or any Foreign Subsidiary Guarantor which would
otherwise be permitted hereunder or advance Loans to the UK
Borrower which would otherwise be permitted hereunder if the
making of such Loan or the issuing of such Letter of Credit
would cause the Obligations of the UK Borrower (including the
face amount of any existing Letters of Credit and, if
applicable, the Letter of Credit being requested) to exceed
$20,000,000; provided that the restriction in Section 2.1.1
(d) is no longer applicable by its terms.
SECTION 2.3.3 Section 8.2.12 of the Existing Credit Agreement
is hereby amended by restating clause (b) thereto to read as follows:
(b) Notwithstanding the provisions of subsection (a)
set forth above or the provisions of other sections of this
Agreement referenced therein, OrthoLink Physicians Corporation
(a US Subsidiary Guarantor hereinafter referred to as
"OrthoLink") may sell certain of its accounts receivable to
such physicians groups specifically named in those certain
Service Agreements, as amended, set forth on Schedule
8.2.12(b) attached hereto (the "Service Agreements") pursuant
to amendments to such Service Agreements which amendments
shall be in form and substance satisfactory to Administrative
Agent (the "Second Amendments to Service Agreements"; the
accounts receivable referenced in said Second Amendments to
Service Agreements as "A/R Amount" or otherwise are referred
to herein as the "OrthoLink Receivables" and the physicians
groups parties thereto are referred to herein as the
"OrthoLink Receivables Purchasers"). In accordance with the
Second Amendments to the Service Agreements, if OrthoLink has
not received full payment in cash for its
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sale of the OrthoLink Receivables from the OrthoLink
Receivables Purchasers on or before September 30, 2003,
OrthoLink shall receive from the applicable OrthoLink
Receivables Purchasers as payment for the remaining OrthoLink
Receivables (i) a Promissory Note and Security Agreement (a
"Note and Security Agreement") in substantially the form of
Exhibit 8.2(ii) attached thereto and Exhibit G attached hereto
and (ii) a Guaranty (a "Guaranty") in substantially the form
of Exhibit 8.2(ii) attached thereto and Exhibit H attached
hereto; provided, however, with respect to the Service
Agreement with Resurgens, P.C. ("Resurgens"), Borrower
represents that the obligations of Resurgens to OrthoLink to
pay the balance of the OrthoLink Receivables remaining after
September 30, 2003 will be evidenced by the Second Amendment
to Service Agreement executed by Resurgens (the "Resurgens
Second Amendment") and will not be evidenced by a Note and
Security Agreement and not guaranteed pursuant to a Guaranty
(each Note and Security Agreement, each Guaranty and the
Resurgens Second Amendment collectively referred to herein as
the "OrthoLink Receivables Loan Documents"). On or before
October 15, 2003, OrthoLink shall assign to Administrative
Agent, on behalf of the Lenders, as collateral hereunder all
such OrthoLink Receivables Loan Documents required to be
delivered to OrthoLink in accordance with the terms of the
Service Agreements pursuant to, and will perform the
obligations and conditions contained in, an Assignment and
Security Agreement in substantially the form of Exhibit I
attached hereto (which Assignment will be modified as deemed
necessary by Administrative Agent to incorporate the
assignment of OrthoLink's rights under the Resurgens Second
Amendment). The Net Disposition Proceeds of the OrthoLink
Receivables (whether delivered by the OrthoLink Receivables
Purchasers in cash on or before September 30, 2003 or pursuant
to the terms of the OrthoLink Receivables Loan Documents)
shall be applied as follows: (i) immediately upon receipt, 50%
of said Net Disposition Proceeds shall be applied to the
outstanding principal balance of the Loan; and (ii) within one
(1) year of receipt, the remaining 50% shall be used for
Investments and Permitted Acquisitions or applied to the
outstanding principal balance of the Loan. In connection with
Lender's agreement to permit the disposition of the OrthoLink
Receivables as set forth in this Section 8.2.12(b), Borrowers
agree in addition to the foregoing as follows: (A) Section 8.2
of the Service Agreements, as amended by the Second Amendments
to the Service Agreements, or such other section of the
Service Agreements addressing the OrthoLink Receivables, shall
not be further amended, modified, or changed without the
Administrative Agent's prior written consent, (B) OrthoLink
Receivables will only be sold to OrthoLink Receivables
Purchasers, (C) no OrthoLink Receivables will be sold,
assigned, or transferred for less than the net book value of
such receivable, and (D) Borrowers shall give Administrative
Agent an accounting of the use of the Net Disposition Proceeds
not applied to the outstanding balance of the Loan a year
after receipt of such Proceeds.
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ARTICLE 3
CONDITIONS TO EFFECTIVENESS
This Amendment and the amendments contained herein shall become
effective on the date (the "Second Amendment Effective Date") when each of the
conditions set forth in this Article III shall have been fulfilled to the
satisfaction of the Administrative Agent.
SECTION 3.1 Counterparts. The Administrative Agent shall have received
counterparts hereof executed on behalf of the Borrowers and each Lender. The
delivery of an executed counterpart hereof by the Borrowers shall constitute a
representation and warranty by the Borrowers that, on the Second Amendment
Effective Date, after giving effect to this Amendment, all statements set forth
in clauses (a), (b), and (c) of Section 6.2.1 of the Existing Credit Agreement
are true and correct as of such date, except to the extent that any such
statement expressly relates to an earlier date (in which case such statement was
true and correct on and as of such earlier date).
SECTION 3.2 Satisfactory Legal Form. The Administrative Agent and its
counsel shall have received all information, and such counterpart originals or
such certified or other copies of such materials, as the Administrative Agent or
its counsel may reasonably request, and all legal matters incident to the
effectiveness of this Amendment shall be satisfactory to the Administrative
Agent and its counsel. All documents executed or submitted pursuant hereto or in
connection herewith shall be reasonably satisfactory in form and substance to
the Administrative Agent and its counsel.
ARTICLE 4
MISCELLANEOUS
SECTION 4.1 Cross-References. References in this Amendment to any
Article or Section are, unless otherwise specified, to such Article or Section
of this Amendment.
SECTION 4.2 Loan Document Pursuant to Existing Credit Agreement. This
Amendment is a Loan Document executed pursuant to the Existing Credit Agreement
and shall (unless otherwise expressly indicated therein) be construed,
administered and applied in accordance with all of the terms and provisions of
the Existing Credit Agreement, as amended hereby.
SECTION 4.3 Successors and Assigns. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SECTION 4.4 Counterparts. This Amendment may be executed by the parties
hereto in several counterparts, each of which when executed and delivered shall
be an original and all of which shall constitute together but one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Amendment by facsimile shall be effective as delivery of a manually executed
counterpart of this Amendment.
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SECTION 4.5 Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first above written.
USP DOMESTIC HOLDINGS, INC.,
as the US Borrower
By: /s/ Xxxx Xxxxxx
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Title: Chief Financial Officer and VP
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USPE HOLDINGS LIMITED,
as the UK Borrower
By: /s/ Xxxx Xxxxxx
-----------------------------------
Title: Director
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SUNTRUST BANK,
as the Administrative Agent, a Lender
and Swingline Lender
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------
Title: Director
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XXXXXX COMMERCIAL PAPER INC.,
as the Syndication Agent and a Lender
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
Title: Vice President
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BANK OF AMERICA, N.A.,
as a Lender
By: /s/ Xxx X. Xxxxxx
-----------------------------------
Title: Vice President
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SOCIETE GENERALE,
as a Lender
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Title: Corporate Banking, Societe
Generale
--------------------------------
CREDIT SUISSE FIRST BOSTON,
acting through its Cayman Islands
Branch, as the Documentation Agent and
a Lender
By: /s/ Xxxxxxxxxxx Xxxxx /s/ Xxxxxxxx X. Pieza
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Xxxxxxxxxxx Xxxxx Xxxxxxxx X. Pieza
Title: Vice President Associate
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SOUTHWEST BANK OF TEXAS,
as a Lender
By: /s/ Xxxxxxx X. Xxxx
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Title: Senior Vice President
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BANK OF OKLAHOMA, N.A.,
as a Lender
By: /s/ Xxxxxxx X Xxxxxxxx
-----------------------------------
Title: Assistant Vice President
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