Exhibit 10.1
EXECUTION COPY
SECOND AMENDMENT
SECOND AMENDMENT, dated as of October 13, 2000 (this "Amendment"),
to the AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 26, 1999, as
amended (as amended, the "CREDIT AGREEMENT"), among COMMUNITY HEALTH SYSTEMS,
INC., a Delaware corporation (the "BORROWER"), COMMUNITY HEALTH SYSTEMS HOLDINGS
CORP., a Delaware corporation ("HOLDCO"), the several lenders from time to time
parties thereto (the "LENDERS"), THE CHASE MANHATTAN BANK, as administrative
agent for the Lenders (in such capacity, the "ADMINISTRATIVE AGENT") and
NATIONSBANK, N.A. and THE BANK OF NOVA SCOTIA, as the co-agents for the Lenders
(collectively, the "CO-AGENTS").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Borrower, HoldCo, the Administrative Agent, the
Co-Agents and the Lenders are parties to the Credit Agreement;
WHEREAS, the Borrower and HoldCo, have requested that the
Administrative Agent and the Required Lenders agree to amend certain provisions
of the Credit Agreement; and
WHEREAS, the Administrative Agent and the Lenders parties hereto are
willing to agree to the requested amendments, but only upon the terms and
conditions set forth herein;
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the
premises contained herein, the parties hereto agree as follows:
SECTION I. AMENDMENTS TO THE CREDIT AGREEMENT.
1.1 DEFINED TERMS. Unless otherwise defined herein, capitalized
terms which are defined in the Credit Agreement are used herein as defined
therein.
1.2 AMENDMENT TO SECTION 14. (a) Section 14 of the Credit Agreement
is hereby amended by deleting paragraph (l) therein in its entirety and
substituting, in lieu thereof, the following:
"(l) FL Affiliates shall cease to own at least 25% of the
outstanding capital stock of HoldCo, free and clear of all Liens; or, any person
or group (other than the FL Affiliates) acquires beneficial ownership (within
the meaning of Rule 13d-3 of the Securities and Exchange Commission promulgated
under the Securities Exchange Act of 1934, as amended) of a percentage of the
outstanding capital stock of HoldCo greater than that percentage owned
beneficially by the FL Affiliates; or, any person or group (other than the FL
Affiliates) shall at any time have the right to designate or elect a majority of
the Board of Directors of HoldCo;"
SECTION II. MISCELLANEOUS.
2.1 REPRESENTATIONS AND WARRANTIES. On and as of the date hereof and
after giving effect to this Amendment, the Borrower hereby confirms, reaffirms
and restates the representations and warranties set forth in Section 10 of the
Credit Agreement MUTATIS MUTANDIS, except to the extent that such
representations and warranties expressly relate to a specific earlier date in
which case the Borrower hereby confirms, reaffirms and restates such
representations and warranties as of such earlier date, PROVIDED that the
references to the Credit Agreement in such representations and warranties shall
be deemed to refer to the Credit Agreement as amended pursuant to this
Amendment.
2.2 CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective as of the date hereof upon the satisfaction of the conditions that (i)
the Administrative Agent shall have received counterparts of this Amendment duly
executed and delivered by each of the Borrower, the Administrative Agent and the
Required Lenders, and (ii) HoldCo shall have issued and sold in a registered
public offering consummated on or after the effective date of this Amendment
7,500,000 shares of its common stock, the proceeds of which shall be used to
repay outstanding Loans.
2.3 CONTINUING EFFECT; NO OTHER AMENDMENTS. Except as expressly set
forth in this Amendment, all of the terms and provisions of the Credit Agreement
are and shall remain in full force and effect and the Borrower shall continue to
be bound by all of such terms and provisions. The amendments provided for herein
are limited to the specific subsections of the Credit Agreement specified herein
and shall not constitute an amendment of, or an indication of the Administrative
Agent's or the Lenders' willingness to amend or waive, any other provisions of
the Credit Agreement or the same subsections for any other date or purpose.
2.4 EXPENSES. The Borrower agrees to pay and reimburse the
Administrative Agent for all its reasonable costs and expenses incurred in
connection with the preparation and delivery of this Amendment, including,
without limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.
2.5 COUNTERPARTS. This Amendment may be executed by one or more of
the parties to this Amendment on any number of separate counterparts (including
by telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this Amendment
signed by the parties hereto shall be delivered to the Borrower and the
Administrative Agent.
2.6 GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered by their respective duly authorized officers as of the
date first above written.
COMMUNITY HEALTH SYSTEMS, INC.
By:
------------------------------
Name:
Title:
COMMUNITY HEALTH SYSTEMS HOLDINGS
CORP.
By:
------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender
By:
------------------------------
Name:
Title:
BANK OF AMERICA, N.A., as Co-Agent and as
a Lender
By:
------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA, as Co-Agent
and as a Lender
By:
------------------------------
Name:
Title:
AERIES-II FINANCE LTD., as a Lender
By:
------------------------------
Name:
Title:
AIMCO CDO SERIES 2000-A, as a Lender
By:
------------------------------
Name:
Title:
ALLSTATE INSURANCE COMPANY, as a Lender
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
ALLSTATE LIFE INSURANCE CO., as a Lender
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
AMSOUTH BANK OF ALABAMA, as a Lender
By:
------------------------------
Name:
Title:
APEX (IDM) CDO I, Ltd., as a Lender
By:
------------------------------
Name:
Title:
BHF (USA) CAPITAL CORPORATION, as a
Lender
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
BANK AUSTRIA CREDITANSTALT CORPORATE
FINANCE, INC., as a Lender
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
BANK ONE, NA, as a Lender
By:
------------------------------
Name:
Title:
BANK OF AMERICA, as a Lender
By:
------------------------------
Name:
Title:
THE BANK OF NEW YORK, as a Lender
By:
------------------------------
Name:
Title:
BANKBOSTON, N.A., as a Lender
By:
------------------------------
Name:
Title:
CAPTIVA FINANCE LTD., as a Lender
By:
------------------------------
Name:
Title:
CERES FINANCE, LTD., as a Lender
by: Xxxxxxxxx Capital Partners LLC
By:
------------------------------
Name:
Title:
CITADELL HILL 2000 Ltd.,
as a Lender
By:
------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH,
as a Lender
By:
------------------------------
Name:
Title:
By:
------------------------------
Name:
Title:
ELC (CAYMAN) LTD., as a Lender
By:
------------------------------
Name:
Title:
ELC (CAYMAN) LTD. 1999-II,
as a Lender
By:
------------------------------
Name:
Title:
ELC (CAYMAN) LTD. 1999-III,
as a Lender
By:
------------------------------
Name:
Title:
ELC (CAYMAN) LTD. 2000-1,
as a Lender
By:
------------------------------
Name:
Title:
ELC (CAYMAN) LTD. CDO SERIES 1999-I,
as a Lender
By:
------------------------------
Name:
Title:
FIRST DOMINION FUNDING II, as a Lender
By:
------------------------------
Name:
Title:
FIRST NATIONAL BANK OF BOSTON,
as a Lender
By:
------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK N.C., as a Lender
By:
------------------------------
Name:
Title:
FLOATING RATE PORTFOLIO, as a Lender
By: INVESCO Senior Secured Management, Inc.,
as attorney in fact
By:
------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION, as a Lender
By:
------------------------------
Name:
Title:
GIBRALTAR, LTD., as a Lender
By:
------------------------------
Name:
Title:
HSBC BANK USA, as a Lender
By:
------------------------------
Name:
Title:
INDUSTRIAL BANK OF JAPAN, LTD.,
as a Lender
By:
------------------------------
Name:
Title:
XXXXXXX NATIONAL LIFE INSURANCE
COMPANY, as a Lender
By:
------------------------------
Name:
Title:
KZH ING-1 LLC, as a Lender
By:
------------------------------
Name:
Title:
KZH ING-2 LLC, as a Lender
By:
------------------------------
Name:
Title:
KZH STERLING LLC, as a Lender
By:
------------------------------
Name:
Title:
KEYPORT LIFE INSURANCE COMPANY, as a
Lender
By: Xxxxx Xxx & Farnham Incorporated, as Agent
By:
------------------------------
Name:
Title:
XXXXXX COMMERCIAL PAPER INC., as a Lender
By:
------------------------------
Name:
Title:
LIBERTY-XXXXX XXX ADV. FLOATING RATE,
as a Lender
By:
------------------------------
Name:
Title:
MSDW PRIME INCOME TRUST, as a Lender
By:
------------------------------
Name:
Title:
MAGNETITE ASSET INVESTORS,
as a Lender
By:
------------------------------
Name:
Title:
MASS MUTUAL HIGH YIELD PARTNERS II, LLC,
as a Lender
By:
------------------------------
Name:
Title:
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY, as a Lender
By:
------------------------------
Name:
Title:
XXXXXXX XXXXX PRIME RATE PORTFOLIO,
as a Lender
By:
------------------------------
Name:
Title:
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC., as a Lender
By:
------------------------------
Name:
Title:
THE MITSUBISHI TRUST AND BANKING
CORPORATION, as a Lender
By:
------------------------------
Name:
Title:
NATEXIS BANQUE POPULAIRES, as a Lender
By:
------------------------------
Name:
Title:
NATIONAL CITY BANK OF KENTUCKY, as a
Lender
By:
------------------------------
Name:
Title:
NEW YORK LIFE INSURANCE COMPANY,
as a Lender
By:
------------------------------
Name:
Title:
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION, as a Lender
By:
------------------------------
Name:
Title:
NUVEEN SENIOR INCOME FUND, as a Lender
By:
------------------------------
Name:
Title:
OASIS COLLATERAL HIGH INCOME
PORTFOLIO-1, as a Lender
By: INVESCO Senior Secured Management, Inc.,
as Subadvisor
By:
------------------------------
Name:
Title:
OCTAGON INVESTMENT PARTNERS II, LLC,
as a Lender
By:
------------------------------
Name:
Title:
OCTAGON INVESTMENT PARTNERS III, LTD.
as a Lender
By:
------------------------------
Name:
Title:
PNC BANK, KENTUCKY, INC.,
as a Lender
By:
------------------------------
Name:
Title:
PARIBAS, as a Lender
By:
------------------------------
Name:
Title:
PILGRIM AMERICAN HIGH INCOME
INVESTMENT LTD., as a Lender
By: Pilgrim Investments, Inc., as its
investment manager
By:
------------------------------
Name:
Title:
PILGRIM CLO 1999-1 LTD.,
as a Lender
By: Pilgrim Investments, Inc., as its
investment manager
By:
------------------------------
Name:
Title:
PILGRIM PRIME RATE INCOME TRUST,
as a Lender
By: Pilgrim Investments, Inc., as its
investment manager
By:
------------------------------
Name:
Title:
SAAR HOLDINGS CDO, LIMITED,
as a Lender
By:
------------------------------
Name:
Title:
SEQUILS - PILGRIM I, LTD.,
as a Lender
By: Pilgrim Investments, Inc., as its
investment manager
By:
------------------------------
Name:
Title:
SPS SWAPS, as a Lender
By:
------------------------------
Name:
Title:
SRF 2000 LLC, as a Lender
By:
------------------------------
Name:
Title:
SRF TRADING, INC., as a Lender
By:
------------------------------
Name:
Title:
SENECA CBO II L.P., as a Lender
By:
------------------------------
Name:
Title:
SENIOR DEBT PORTFOLIO, as a Lender
By: Boston Management and Research,
as Investment Advisor
By:
------------------------------
Name:
Title:
SIMSBURY CLO, LIMITED,
as a Lender
By: MassMutual Life Insurance
By:
------------------------------
Name:
Title:
SKANDINAVISKA ENSILDA BANKEN,
as a Lender
By:
------------------------------
Name:
Title:
XXXXXXXXX CLO, LTD.,
as a Lender
By: Xxxxxxxxx Capital Partners LLC
By:
------------------------------
Name:
Title:
XXXXXXXXX\RMF TRANSATLANTIC CDO, LTD.,
as a Lender
By: Xxxxxxxxx Capital Partners LLC
By:
------------------------------
Name:
Title:
XXXXX XXX & XXXXXXX CLO I LTD.,
as a Lender
By: Xxxxx Xxx & Farnham Incorporated, as
Portfolio Manager
By:
------------------------------
Name:
Title:
XXXXX XXX FLOATING RATE LLC,
as a Lender
By: Xxxxx Xxx & Farnham Incorporated, as
Portfolio Manager
By:
------------------------------
Name:
Title:
STRATA FUNDING LIMITED,
as a Lender
By:
------------------------------
Name:
Title:
SWAPS CSLT, as a Lender
By:
------------------------------
Name:
Title:
XXX XXXXXX CLO I, LIMITED,
as a Lender
By: Xxx Xxxxxx Management Inc., as Collateral
Manager
By:
------------------------------
Name:
Title:
XXX XXXXXX CLO II, LIMITED,
as a Lender
By: Xxx Xxxxxx Management Inc., as Collateral
Manager
By:
------------------------------
Name:
Title:
XXX XXXXXX PRIME RATE INCOME TRUST
as a Lender
By: Xxx Xxxxxx Management Inc., as Collateral
Manager
By:
------------------------------
Name:
Title:
XXX XXXXXX SENIOR INCOME TRUST
as a Lender
By: Xxx Xxxxxx Management Inc., as Collateral
Manager
By:
------------------------------
Name:
Title:
EXHIBIT A
THIRD AMENDMENT
THIRD AMENDMENT, dated as of July 19, 2001 (this "THIRD Amendment"),
representing an amendment to the Amended and Restated Credit Agreement, dated as
of March 26, 1999 (as amended, supplemented or otherwise modified, the "CREDIT
AGREEMENT"), among CHS/COMMUNITY HEALTH SYSTEMS, INC., a Delaware corporation
and formerly known as Community Health Systems, Inc. (the "BORROWER"), COMMUNITY
HEALTH SYSTEMS, INC., a Delaware corporation and formerly known as Community
Health Systems Holdings Corp. ("HOLDCO"), the several lenders from time to time
parties thereto (the "LENDERS"), THE CHASE MANHATTAN BANK, as administrative
agent for the Lenders (in such capacity, the "ADMINISTRATIVE AGENT") and BANK OF
AMERICA, N.A. and THE BANK OF NOVA SCOTIA, as the co-agents for the Lenders
(collectively, the "CO-AGENTS").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Borrower, HoldCo, the Administrative Agent, the
Co-Agents and the Lenders are parties to the Credit Agreement;
WHEREAS, the Borrower and HoldCo have requested that the
Administrative Agent and the Required Lenders agree to amend certain provisions
of the Credit Agreement; and
WHEREAS, the Administrative Agent and the Lenders parties hereto are
willing to agree to the requested amendments, but only upon the terms and
conditions set forth herein;
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the
premises contained herein, the parties hereto agree as follows:
1. DEFINED TERMS. Unless otherwise defined herein, capitalized terms
which are defined in the Credit Agreement are used herein as defined therein.
2. Amendment to Subsection 1.1 (Defined Terms). (a) Subsection 1.1
of the Credit Agreement is hereby amended by deleting in their respective
entireties definitions in such subsection for the following defined terms and
substituting, in lieu thereof, the following definitions:
"ACQUISITION LOAN COMMITMENT PERCENTAGE": as to any Lender at any
time, the percentage which such Lender's Acquisition Loan Commitment
constitutes of all such Acquisition Loan Commitments (or, if the
Acquisition Loan Commitments shall have been terminated, the percentage of
the outstanding Acquisition Loans constituted by such Lender's Acquisition
Loans), it being understood that such percentage shall be appropriately
adjusted as of the date of any reduction in the Acquisition Loan
Commitments of the Non-Extending Acquisition Loan Lenders or the First
Extending Acquisition Loan Lenders to reflect such reduction.
"ACQUISITION LOAN COMMITMENT PERIOD": (a) with respect to any
Non-Extending Acquisition Loan Lender or First Extending Acquisition Loan
Lender, the period from and including the Original Closing Date to but not
including the Original Acquisition Loan Termination Date, and (b) with
respect to any Second Extending Acquisition Loan Lender, the period from
and including the Original Closing Date to but not including the Extended
Acquisition Loan Termination Date.
"ACQUISITION LOAN TERMINATION DATE": as to any Non-Extending
Acquisition Loan Lender or First Extending Acquisition Loan Lender, the
Original Acquisition Loan Termination Date, and as to any Second Extending
Acquisition Loan Lender, the Extended Acquisition Loan Termination Date,
as the case may be.
"REVOLVING CREDIT COMMITMENT PERIOD": (a) with respect to any
Non-Extending Revolving Credit Lender, the period from and including the
Original Closing Date to but not including the Non-Extended Revolving
Credit Termination Date and, (b) with respect to any Extending Revolving
Credit Lender, the period from and including the original Closing Date to
but not including the Extended Revolving Credit Termination Date.
"REVOLVING CREDIT TERMINATION DATE": as to any Non-Extending
Revolving Credit Lender, the Non-Extended Revolving Credit Termination
Date, and as to any Extending Revolving Credit Lender, the Extended
Revolving Credit Termination Date, as the case may be.
(b) Subsection 1.1 of the Credit Agreement is hereby amended by
deleting paragraph (B) in the definition of "Interest Period" in such subsection
in its entirety and substituting, in lieu thereof, the following:
(B) any Interest Period with respect to any Revolving Credit Loan or
Acquisition Loan that would otherwise extend beyond the Revolving Credit
Termination Date of any Lender or the Acquisition Loan Termination Date of
any Lender, as the case may be, shall end on such Revolving Credit
Termination Date or Acquisition Loan Termination Date, as the case may be,
or if such Revolving Credit Termination Date or Acquisition Loan
Termination Date, as the case may be, shall not be a Working Day, on the
next preceding Working Day;
(c) Subsection 1.1 of the Credit Agreement is hereby amended by
deleting paragraph (a) in the definition of "Applicable Margin" in such
subsection in its entirety and substituting, in lieu thereof, the following:
(a) (i) for each Revolving Credit Loan (other than any Revolving
Credit Loan held by an Extending Revolving Credit Lender after the Third
Amendment Effective Date), Tranche A Term Loan, Acquisition Loan (other
than any Acquisition Loan held by a Second Extending Acquisition Loan
Lender after the Third Amendment Effective Date) and Swing Line Loan (with
respect to ABR only) (other than a Swing Line Loan after the Third
Amendment Effective Date) for each day, the rate per annum for the
relevant Type
of such Loan set forth below opposite the Applicable Level in effect on
such day and (ii) for each Revolving Credit Loan held by any Extending
Revolving Credit Lender, Acquisition Loan held by any Second Extending
Acquisition Loan Lender and Swing Line Loan (with respect to ABR only) for
each day after the Third Amendment Effective Date, the rate per annum for
the relevant Type of such Loan set forth below opposite the Applicable
Level in effect on such day plus 0.50%:
ABR Loan Eurodollar Loan
-------- ---------------
Xxxxx 0 1.50% 2.50%
Xxxxx 0 1.25% 2.25%
Xxxxx 0 1.00% 2.00%
Xxxxx 0 0.75% 1.75%
Xxxxx 0 0.50% 1.50%
(d) Subsection 1.1 of the Credit Agreement is hereby amended by
adding alphabetically therein the following definitions:
"EXTENDED ACQUISITION LOAN TERMINATION DATE": the earlier of (i)
January 2, 2004 and (ii) any other date on which the Acquisition Loan
Commitments shall terminate hereunder.
"EXTENDED REVOLVING CREDIT TERMINATION DATE": the earlier of (i)
January 2, 2004 and (ii) any other date on which the Revolving Credit
Commitments shall terminate hereunder.
"EXTENDING REVOLVING CREDIT LENDERS": the Lenders with Revolving
Credit Commitments that consent to the Third Amendment in accordance with
the terms thereof.
"FIRST EXTENDED ACQUISITION LOAN COMMITMENT": as to any First
Extending Acquisition Loan Lender, its Acquisition Loan Commitment.
"FIRST EXTENDING ACQUISITION LOAN LENDERS": the Lenders with
Acquisition Loan Commitments that are listed on Schedule 1 (as in effect
on the records of the Administrative Agent immediately prior to the Third
Amendment Effective Date) as having Extended Acquisition Loan Commitments
and that do not consent to the Third Amendment in accordance with the
terms thereof.
"NON-EXTENDED ACQUISITION LOAN COMMITMENT": as to any Non-Extending
Acquisition Loan Lender, its Acquisition Loan Commitment."
"NON-EXTENDING ACQUISITION LOAN LENDERS": the Lenders with
Acquisition Loan Commitments that are listed on Schedule 1 (as in effect
on the records of the Administrative Agent immediately prior to the Third
Amendment Effective Date) as having Non-Extended Acquisition Loan
Commitments and that do not consent to the Third Amendment in accordance
with the terms thereof.
"NON-EXTENDING REVOLVING CREDIT LENDERS": the Lenders with Revolving
Credit Commitments that do not consent to the Third Amendment in
accordance with the terms thereof.
"NON-EXTENDED REVOLVING CREDIT TERMINATION DATE": the earlier of (i)
December 31, 2002 and (ii) any other date on which the Revolving Credit
Commitments shall terminate hereunder.
"ORIGINAL ACQUISITION LOAN TERMINATION DATE": the earlier of (i)
December 31, 2002 and (ii) any other date on which the Acquisition Loan
Commitments shall terminate hereunder.
"SECOND EXTENDED ACQUISITION LOAN COMMITMENT": as to any Second
Extending Acquisition Loan Lender, its Acquisition Loan Commitment.
"SECOND EXTENDING ACQUISITION LOAN LENDERS": the Lenders with
Acquisition Loan Commitments listed on Schedule 1 (as in effect on the
records of the Administrative Agent immediately prior to the Third
Amendment Effective Date) under the heading "Non-Extended Acquisition Loan
Commitment" or "Extended Acquisition Loan Commitment" that consent to the
Third Amendment in accordance with the terms thereof.
"THIRD AMENDMENT": the Third Amendment dated as of July 19, 2001 to
this Agreement.
"THIRD AMENDMENT EFFECTIVE DATE": as defined in section 16 of the
Third Amendment.
3. AMENDMENT TO SUBSECTION 6.3 (ISSUANCE OF LETTERS OF CREDIT).
Subsection 6.3 of the Credit Agreement is hereby amended by deleting paragraph
(b) of such subsection in its entirety and substituting, in lieu thereof, the
following:
(b) Each Letter of Credit issued hereunder shall, among other
things, (i) be in such form requested by the Company as shall be
acceptable to the Issuing Lender in its sole discretion and (ii) have an
expiry date, in the case of each Standby L/C, other than Existing Letters
of Credit, occurring not later than the earlier of (w) 365 days after the
date of issuance of such Standby L/C and (x) the Extended Revolving Credit
Termination Date, and, in the case of each Commercial L/C, occurring not
later than the earlier of (y) 180 days after the date of issuance of such
Commercial L/C; PROVIDED, HOWEVER, that at the request of the Company and
upon the consent, in its sole and absolute discretion, of the Issuing
Lender issuing such Commercial L/C, such date may be up to 360 days after
the date of issuance of such Commercial L/C and (z) the Extended Revolving
Credit Termination Date. Each L/C Application and each Letter of Credit
shall be subject to the Uniform Customs and, to the extent not
inconsistent therewith, the laws of the State of
New York.
4. AMENDMENT TO SECTION 6 (AMOUNT AND TERMS OF REVOLVING CREDIT
COMMITMENTS). Section 6 of the Credit Agreement is hereby amended by adding
subsection 6.9 thereto as follows:
6.9 PAYMENTS ON DECEMBER 31, 2002. On the Non-Extended Revolving
Credit Termination Date (if such date is not also the Extended Revolving
Credit Termination Date) the Company shall make a prepayment of the
Revolving Credit Loans of the Extending Revolving Credit Lenders in the
aggregate amount (if any) as may be necessary to reduce the Aggregate
Revolving Credit Extensions of Credit of the Extending Revolving Credit
Lenders to an amount equal to their aggregate Revolving Credit Commitments
on such date, after giving effect to any payments on such date of the
Revolving Credit Loans of the Non-Extending Revolving Credit Lenders and,
as provided in the next succeeding sentence, the release of their
liabilities in respect of Letters of Credit and Swing Line Loans. On such
date, so long as no Event of Default shall have occurred and be continuing
and so long as any prepayment contemplated by the immediate preceding
sentence of the Revolving Credit Loans of the Extending Revolving Credit
Lenders has been made, the Non-Extending Revolving Credit Lenders shall be
released from all liability in respect of the Letters of Credit and the
Swing Line Loans.
5. AMENDMENT TO SUBSECTION 7.2 (MANDATORY REDUCTION OF ACQUISITION
LOAN COMMITMENTS). Subsection 7.2 of the Credit Agreement is hereby amended by
deleting subsection 7.2 in its entirety and substituting, in lieu thereof, the
following:
7.2 MANDATORY REDUCTION OF ACQUISITION LOANS. On each anniversary of
the Original Closing Date as set forth on Schedule 7.2(a) or 7.2(b), as
the case may be, (a) the First Extended Acquisition Loan Commitments shall
automatically be permanently reduced to, and each Lender's First Extended
Acquisition Loan Commitment shall be permanently reduced to an amount
equal to such Lender's First Extended Acquisition Loan Commitment
Percentage of, the amount set forth on Schedule 7.2(a) and (b) the
Non-Extended Acquisition Loan Commitments shall automatically be
permanently reduced to, and each Lender's Non-Extended Acquisition Loan
Commitment shall be permanently reduced to an amount equal to such
Lender's Non-Extended Acquisition Loan Commitment Percentage of, the
amount set forth on Schedule 7.2(b); provided, however, that if prior to
any of the dates specified in Schedules 7.2(a) or 7.2(b), the First
Extended Acquisition Loan Commitments or the Non-Extended Acquisition Loan
Commitments shall have been permanently reduced pursuant to subsection 8.4
or 8.6 to an amount less than the amount to which the First Extended
Acquisition Loan Commitments or the Non-Extended Acquisition Loan
Commitments, as the case may be, are required to be reduced on such date
pursuant to such Schedule, the relevant Acquisition Loan Commitments shall
as of such date continue to be such lesser amount. If at the time of any
such mandatory reduction of the First Extended Acquisition Loan
Commitments or the Non-Extended Acquisition Loan Commitments the aggregate
principal amount of the First Extended Acquisition Loans or the
Non-Extended Acquisition Loans, as the case may be, then outstanding
exceeds the First Extended Acquisition Loan Commitments or the
Non-Extended Acquisition Loan Commitments, as the case may be, as so
reduced on such date, the Company shall on such date prepay the
relevant Acquisition Loans in the amount of such excess, together with
accrued interest thereon to the date of payment. The Second Extended
Acquisition Loan Commitments shall not be subject to any scheduled
mandatory reductions.
6. AMENDMENT TO SUBSECTION 8.2 (REPAYMENT OF LOANS; EVIDENCE OF
DEBT). Subsection 8.2 of the Credit Agreement is hereby amended by deleting
paragraph (a) of such subsection in its entirety and substituting, in lieu
thereof, the following:
(a) The Company hereby unconditionally promises to pay to the
Administrative Agent for the account of each Lender (i) the then unpaid
principal amount of each Revolving Credit Loan of such Lender on (if such
Lender is a Non-Extending Revolving Credit Lender) the Non-Extended
Revolving Credit Termination Date or (if such Lender is an Extending
Revolving Credit Lender) the Extended Revolving Credit Termination Date
(or such earlier date on which the Revolving Credit Loans become due and
payable pursuant to Section 14), (ii) the then unpaid principal amount of
each Acquisition Loan of such Lender on (if such Lender is a Non-Extending
Acquisition Loan Lender or a First Extending Acquisition Loan Lender) the
Original Acquisition Loan Termination Date or (if such Lender is a Second
Extending Acquisition Loan Lender) the Extended Acquisition Loan
Termination Date (or such earlier date on which the Acquisition Loans
become due and payable pursuant to Section 14), and (iii) the principal
amount of the Term Loan of such Lender, in accordance with the applicable
amortization schedule set forth in subsections 2.2, 3.2, 4.2 and 5.2 (or
the then unpaid principal amount of such Term Loans, on the date that any
or all of the Term Loans become due and payable pursuant to Section 14).
The Company hereby further agrees to pay interest on the unpaid principal
amount of the Loans from time to time outstanding from the date hereof
until payment in full thereof at the rates per annum, and on the dates,
set forth in subsection 8.7.
7. AMENDMENT TO SUBSECTION 8.9 (COMMITMENT FEES). Subsection 8.9 of
the Credit Agreement is hereby amended by deleting subsection 8.9 in its
entirety and substituting, in lieu thereof, the following:
8.9 COMMITMENT FEES. The Company agrees to pay to the Administrative
Agent, (i) for the account of each Lender (other than any Extending
Revolving Credit Lender or Second Extending Acquisition Loan Lender), a
commitment fee from and including the Closing Date to but excluding the
later of the Revolving Credit Termination Date and the Acquisition Loan
Termination Date on the sum of such Lender's Available Revolving Credit
Commitment and Available Acquisition Loan Commitment outstanding from time
to time, at the rate per annum for each day during the period for which
payment is made set forth opposite the Applicable Level on such day, and
(ii) for the account of each Extending Revolving Credit Lender and Second
Extending Acquisition Loan Lender, a commitment fee from and including the
Third Amendment Effective Date to but excluding the later of the Extended
Revolving Credit Termination Date and the Extended Acquisition Loan
Termination Date on the sum of such Lender's Available Revolving Credit
Commitment and Available Acquisition Loan Commitment outstanding from time
to time, at the rate per annum for each day during the period for which
payment is made set forth opposite the Applicable Level on such day plus,
for each of Levels 3 and 4, 0.125%:
Applicable Level Commitment Fee
---------------- --------------
Xxxxx 0 .500%
Xxxxx 0 .500%
Xxxxx 0 .375%
Xxxxx 0 .375%
Xxxxx 0 .375%
The commitment fee provided for in this subsection 8.9 shall be payable
quarterly in arrears on the last day of each fiscal quarter and on the
Revolving Credit Termination Date or Extended Revolving Credit Termination
Date, as the case may be, with respect to the Available Revolving Credit
Commitments and on the Acquisition Loan Termination Date or Extended
Acquisition Loan Termination Date, as the case may be, with respect to the
Available Acquisition Loan Commitments.
8. AMENDMENT TO SUBSECTION 8.11(A) (LETTER OF CREDIT FEES).
Subsection 8.11(a) of the Credit Agreement is hereby amended by deleting the
first paragraph of such subsection in its entirety and substituting, in lieu
thereof, the following:
(a) In lieu of any letter of credit commissions and fees provided
for in any L/C Application relating to Letters of Credit (other than
standard administrative issuance, amendment and negotiation fees), the
Company agrees to pay the Administrative Agent a Letter of Credit fee, for
the account of the Issuing Lender and the Participating Lenders, (i) with
respect to each Standby L/C, on the average outstanding amount available
to be drawn under each Standby L/C at a rate per annum equal to the
Applicable Margin for Revolving Credit Loans which are Eurodollar Loans in
effect at such time, whether or not there are any such Eurodollar Loans
outstanding at such time, payable in arrears, on the last day of each
fiscal quarter of the Company and on the Revolving Credit Termination Date
or the Extended Revolving Credit Termination Date as the case may be and
(ii) with respect to each Commercial L/C, on the aggregate face amount of
each Commercial L/C at a rate equal to the Applicable Margin for Revolving
Credit Loans which are Eurodollar Loans in effect at such time, whether or
not there are any such Eurodollar Loans outstanding at such time, payable
on the date such Commercial L/C is issued. After the Third Amendment
Effective Date, the Letter of Credit fees payable for the benefit of the
Non-Extending Revolving Credit Lenders and Extending Revolving Credit
Lenders, respectively, shall be as provided in the definition of
"Applicable Margin" in subsection 1.1.
9. AMENDMENT TO SUBSECTION 8.18 (PRO RATA TREATMENT AND PAYMENTS).
Subsection 8.18(a) of the Credit Agreement is hereby amended by adding the
following clause to the end of the second sentence of such subsection:
, provided that (i) so long as no Event of Default shall have occurred and
be continuing, the Company may pay the principal of the Revolving Credit
Loans of the Non-Extending Revolving Credit Lenders on or after the
Non-Extended
Revolving Credit Termination Date without making any equivalent payment of
principal of the Revolving Credit Loans of the Extending Revolving Credit
Lenders, (ii) so long as no Event of Default shall have occurred and be
continuing, the Company may make payments of principal of the Acquisition
Loans of the Non-Extending Acquisition Lenders or the First Extending
Acquisition Lenders without making any equivalent payment of principal of
the Acquisition Loans of the other Acquisition Lenders in order to reduce
the principal of the Acquisition Loans of such Non-Extending Acquisition
Lenders or such First Extending Acquisition Lenders to the amount of their
Acquisition Loan Commitments as of the date of any scheduled reduction of
the Non-Extended Acquisition Loan Commitments or the First Extended
Acquisition Loan Commitments or to pay in full the principal of its
Acquisition Loans on the Original Acquisition Loan Termination Date, (iii)
and on the Third Amendment Effective Date, borrowings under the
Acquisition Loan Commitments shall be made from among the Acquisition Loan
Lenders in order to make the ratio of the Acquisition Loans of each
Acquisition Loan Lender to its Acquisition Loan Commitment as close as
practicable to the ratio thereof for the other Acquisition Loan Lenders
and (iv) on and after the Third Amendment Effective Date, payments of
interest on the Revolving Credit Loans and the Acquisition Loans shall be
made PRO RATA according to the respective amounts of interest owing to the
Lenders who have made Revolving Credit Loans or Acquisition Loans, as the
case may be.
10. AMENDMENT TO SUBSECTION 13.2 (INDEBTEDNESS). Subsection 13.2 of
the Credit Agreement is hereby amended by:
(a) deleting paragraph (k) of such subsection in its entirety and
substituting, in lieu thereof, the following:
(k) Indebtedness on any date of the Company or any of its
Subsidiaries assumed or issued in connection with a Permitted Acquisition
(or, in the case of any Permitted Acquisition involving the purchase of
capital stock or other equity interests in any Person, Indebtedness of
such Person remaining outstanding after such Permitted Acquisition) and
any extension or renewal thereof, PROVIDED that the aggregate principal
amount of any such Indebtedness assumed or issued after the Third
Amendment Effective Date, together with the aggregate amount of net
investments made after the Third Amendment Effective Date in Permitted
Acquisitions pursuant to subsection 13.7(l) (and calculated as at such
date as provided herein), shall not exceed $500,000,000.
11. AMENDMENT TO SUBSECTION 13.4 (LIMITATION ON CONTINGENT
OBLIGATIONS). Subsection 13.4 of the Credit Agreement is hereby amended by
adding paragraph (g) thereto as follows:
(g) Contingent Obligations in respect of any accounts receivable
sold or otherwise disposed of pursuant to subsection 13.6(a)(ii).
12. AMENDMENT TO SUBSECTION 13.6 (PROHIBITION ON SALE OF ASSETS).
Subsection 13.6 of the Credit Agreement is hereby amended by deleting paragraph
(a) of such subsection in its entirety and substituting, in lieu thereof, the
following:
(a) for the sale or other disposition of (i) any tangible personal
property that, in the reasonable judgment of the Company, has become
uneconomic, obsolete or worn out, and which is disposed of in the ordinary
course of business or (ii) any accounts receivable of the Company or any
of its Subsidiaries more than 180 days past due or are written-off at the
time of such sale or disposition or any self-pay accounts receivable of
the Company or any of its Subsidiaries that are determined by the Company
to be unabled to be paid in full within 150 days of the related service
date, PROVIDED that the face value of such sold or disposed of accounts
receivable shall not exceed $50,000,000 in the aggregate;
13. AMENDMENT TO SUBSECTION 13.7 (LIMITATION ON INVESTMENTS, LOANS
AND ADVANCES). Subsection 13.7 of the Credit Agreement is hereby amended by
deleting paragraph (l) of such subsection in its entirety and substituting, in
lieu thereof, the following:
(l) the Company and its Subsidiaries may make Permitted Acquisitions
and may make loans or advances to, or acquisitions or investments in,
other Persons in connection with or pursuant to the terms of Permitted
Acquisitions, PROVIDED that the consideration paid by the Company or any
of its Subsidiaries in all such transactions after the Third Amendment
Effective Date (net, in the case of loans, advances, investments and other
transfers of any repayments or return of capital in respect thereof
actually received in cash by the Company or its Subsidiaries (net of
applicable taxes) after the Third Amendment Effective Date and excluding
consideration delivered by the Company or its Subsidiaries in any Asset
Exchange permitted under Section 13.6(h)) does not exceed in the
aggregate, when added to the principal amount of Indebtedness outstanding
as permitted pursuant to subsection 13.2(k) and incurred after the Third
Amendment Effective Date, $500,000,000;
14. AMENDMENT TO SUBSECTION 13.9 (LIMITATION ON DIVIDENDS).
Subsection 13.9 of the Credit Agreement is hereby amended by deleting paragraph
(c) of such subsection in its entirety and substituting, in lieu thereof, the
following:
(c) so long as no Default or Event of Default has occurred or would
occur after giving effect to such declaration or payment, the Company may,
from time to time, declare and pay cash dividends to HoldCo on the common
stock of the Company; PROVIDED that the proceeds of such dividends shall
be used within 30 days of the receipt of such dividends by HoldCo to
repurchase HoldCo stock from management employees of HoldCo or any of its
Subsidiaries and, PROVIDED FURTHER, that the aggregate amount of such cash
dividends paid after the Third Amendment Effective Date does not exceed
$10,000,000, as such amount may be increased by the proceeds of any
additional HoldCo capital stock which is issued after the Third Amendment
Effective Date to any management employees of HoldCo or any of its
Subsidiaries so long as such proceeds are contributed by HoldCo to the
capital of the Company; and
15. AMENDMENT TO SECTION 14 (EVENTS OF DEFAULT). Section 14 of the
Credit Agreement is hereby amended by deleting paragraph (k) of such section in
its entirety and substituting, in lieu thereof, the following:
(k) HoldCo shall cease to own, directly or indirectly, 100% of the
issued and outstanding capital stock of the Company, free and clear of all
Liens (other than the Lien granted pursuant to the HoldCo Pledge
Agreement), or HoldCo shall conduct, transact or otherwise engage in any
business or operations, incur, create, assume or suffer to exist any
Indebtedness, Contingent Obligations or other liabilities or obligations
or Liens (other than pursuant to any of the Credit Documents), or own,
lease, manage or otherwise operate any properties or assets, other than
(1) incident to the ownership of the Pledged Stock and the Pledged Note
(as such terms are defined in the HoldCo Pledge Agreement), (2) as
permitted by this Agreement, (3) incident to the ownership of capital
stock or other equity interests in any person to the extent (i) the
acquisition thereof by the Company would constitute a Permitted
Acquisition and (ii) such capital stock or equity interests are
contributed to the Company promptly following HoldCo's acquisition thereof
and (4) the making of the Subordinated Loan or the issuance of the
Subordinated HoldCo Debentures and (5) to the extent necessary to effect
the IPO and subsequent offerings or issuances of shares of common stock of
HoldCo and other transactions customarily incident thereto; or
16. CONDITIONS TO EFFECTIVENESS OF THIS THIRD AMENDMENT. This Third
Amendment shall become effective upon the satisfaction of the following
conditions precedent (such date, the "THIRD AMENDMENT EFFECTIVE DATE"):
(a) the Administrative Agent shall have received counterparts of
this Third Amendment duly executed and delivered by each of the Borrower, HoldCo
and the Administrative Agent, consented to by the Required Lenders (including
each Extending Revolving Credit Lender and each Second Extending Acquisition
Loan Lender), and
(b) the Administrative Agent shall have received, dated the Third
Amendment Effective Date and addressed to the Administrative Agent and the
Lenders, legal opinions of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, special
counsel to HoldCo and the Borrower, and from the internal counsel to HoldCo and
the Borrower, in each case in form and substance satisfactory to the
Administrative Agent.
17. REPRESENTATIONS AND WARRANTIES. On and as of the date hereof and
after giving effect to this Third Amendment, the Borrower hereby confirms,
reaffirms and restates the representations and warranties set forth in Section
10 of the Credit Agreement mutatis mutandis, except to the extent that such
representations and warranties expressly relate to a specific earlier date in
which case the Borrower hereby confirms, reaffirms and restates such
representations and warranties as of such earlier date, provided that the
references to the Credit Agreement in such representations and warranties shall
be deemed to refer to the Credit Agreement as amended pursuant to this
Amendment.
18. SCHEDULE 1. Promptly following the Third Amendment Effective
Date, the Administrative Agent shall furnish to the Borrower and each of the
Lenders a schedule setting forth the Revolving Credit Commitments of the
Extending Revolving Credit Lenders and the Non-Extending Revolving Credit
Lenders and the respective Acquisition Loan Commitments of the Second Extending
Acquisition Loan Lenders, First Extending Acquisition Loan Lenders and the
Non-Extending Acquisition Loan Lenders.
19. CONTINUING EFFECT; NO OTHER AMENDMENTS. Except as expressly set
forth in this Third Amendment, all of the terms and provisions of the Credit
Agreement are and shall remain in full force and effect and the Borrower shall
continue to be bound by all of such terms and provisions. The amendments
provided for herein are limited to the specific subsections of the Credit
Agreement specified herein and shall not constitute an amendment of, or an
indication of the Administrative Agent's or the Lenders' willingness to amend or
waive, any other provisions of the Credit Agreement or the same subsections for
any other date or purpose.
20. EXPENSES. The Borrower agrees to pay and reimburse the
Administrative Agent for all its reasonable costs and expenses incurred in
connection with the preparation and delivery of this Third Amendment, including,
without limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.
21. COUNTERPARTS. This Third Amendment may be executed by one or
more of the parties to this Third Amendment on any number of separate
counterparts (including by telecopy), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of the
copies of this Third Amendment signed by the parties hereto shall be delivered
to the Borrower and the Administrative Agent. The execution and delivery of this
Third Amendment by any Lender shall be binding upon each of its successors and
assigns (including Transferees of its commitments and Loans in whole or in part
prior to effectiveness hereof) and binding in respect of all of its commitments
and Loans, including any acquired subsequent to its execution and delivery
hereof and prior to the effectiveness hereof.
22. GOVERNING LAW. THIS THIRD AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS THIRD AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to
be executed and delivered by their respective duly authorized officers as of the
date first above written.
CHS/COMMUNITY HEALTH SYSTEMS, INC.
By:
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Name:
Title:
COMMUNITY HEALTH SYSTEMS, INC.
By:
-----------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent and Issuing Lender
By:
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Name:
Title:
