EXHIBIT 4.1
AMENDMENT AGREEMENT NO. 1
TO FOURTH AMENDED AND RESTATED REVOLVING CREDIT
AND REIMBURSEMENT AGREEMENT
THIS AMENDMENT AGREEMENT made and entered into as of the 30th day of
September, 1996, by and among HEALTH MANAGEMENT ASSOCIATES, INC., a Delaware
corporation (herein called the "Company"), NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH), a national banking association (formerly known as NationsBank of
Florida, National Association) and each other lender listed on the signature
pages hereto (herein called the "Banks") and NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH), in its capacity as agent for the Banks (the "Agent").
WITNESSETH:
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WHEREAS, the Company, the Agent and the Banks have entered into a Fourth
Amended and Restated Revolving Credit and Reimbursement Agreement dated as of
December 1, 1994 (the "Agreement") whereby the Banks agreed to make loans to the
Company and to issue Letters of Credit on behalf of the Company; and
WHEREAS, the Banks have required as a condition of entering into the
Agreement that each of the Company's Subsidiaries guarantee payment of the
Obligations arising under the Agreement; and
WHEREAS, the Company has requested that the Agent and the Banks amend the
Agreement in the manner set forth herein;
NOW, THEREFORE, the Company, the Agent and the Banks do hereby agree as
follows:
1. From and after the date hereof, the term "Agreement" as used herein
and in Loan Documents shall mean the Agreement as hereby amended and modified.
Unless the context otherwise requires, all terms used herein without definition
shall have the definition provided therefor in the Agreement.
2. Subject to compliance with paragraph 5 hereof, the Agreement is
amended, effective as of the date hereof, as follows:
(a) The following additional definitions are added to Section 1, which
definitions shall read as follows:
"'Absolute Rate' shall have the meaning assigned to such term in
Section 2.02(c)(ii)(D);
'Absolute Rate Auction' shall mean a solicitation of Competitive
Bid Quotes setting forth Absolute Rates pursuant to Section 2.02;
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'Absolute Rate Loans' shall mean the Competitive Bid Loans the
interest rates on which are determined on the basis of Absolute Rates
set at Absolute Rate Auctions;
'Competitive Bid Borrowing' shall have the meaning assigned to
such term in Section 2.02(b);
'Competitive Bid Loans' shall mean the Loans provided for by
Section 2.02;
'Competitive Bid Notes' shall mean the promissory notes provided
for by Section 2.08(c) substantially in the form of Exhibit 10 and all
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promissory notes delivered in substitution or exchange therefor, in
each case as the same shall be modified and supplemented and in effect
from time to time;
'Competitive Bid Quote' shall mean an offer in accordance with
Section 2.02(c) by a Bank to make a Competitive Bid Loan with one
single specified interest rate;
'Competitive Bid Quote Request' shall have the meaning assigned
to such term in Section 2.02(b);
'Fixed Rate' shall mean the Absolute Rate or the Applicable Base
Rate plus the Applicable Interest Addition or the LIBOR Margin, as the
case may be;
'Fixed Rate Loan' means a Loan for which the rate of interest is
determined by reference to the Fixed Rate;
'Fixed Rate Segment' shall mean a Segment to which a Fixed Rate
is (or is proposed to be) applicable;
'LIBOR Auction' shall mean a solicitation of Competitive Bid
Quotes setting forth LIBOR Margins based on the Applicable Base Rate
pursuant to Section 2.02;
'LIBOR Margin' shall have the meaning assigned to such term in
Section 2.02(c)(ii)(C);
'LIBOR Market Loans' shall mean Competitive Bid Loans the
interest rates on which are determined on the basis of Applicable Base
Rate pursuant to a LIBOR Auction;"
(b) The definition of "Applicable Base Rate" in Section 1 is amended
by restating clause (ii) in its entirety so that as amended it shall read
as follows:
"(ii) for any LIBOR Loan or LIBOR Market Loan, in respect of the
Interest Period specified by the Authorized Representative in the
Borrowing Notice for
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such LIBOR Loan or LIBOR Market Loan, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars at approximately 11:00 A.M.
(London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period. If for
any reason such rate is not available, the term "Applicable Base Rate"
shall mean, with respect to any LIBOR Loan or LIBOR Market Loan for
any Interest Period applicable thereto, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Reuters Screen LIBO Page as the London interbank offered rate for
deposits in Dollars at approximately 11:00 A.M. (London time) two
Business Days, in the case of a LIBOR Loan and four Business Days in
the case of a LIBOR Market Loan, prior to the first day of such
Interest Period for a term comparable to such Interest Period;
provided, however, if more than one rate is specified on Reuters
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Screen LIBO Page, the applicable rate shall be the arithmetic mean of
all such rates."
(c) The definition of "Applicable Interest Addition" in Section 1 is
amended in its entirety so that as amended it shall read as follows:
"'Applicable Interest Addition' means for each CD or LIBOR Loan
that percent per annum set forth below, which shall be (i) determined
as of each Determination Date and furnished to the Agent not later
than the time set forth in Section 7.01.(a) and (b) hereof (the
"Compliance Date"), based upon the Consolidated Debt to Cash Flow
Ratio, as specified below:
Consolidated Debt to Applicable
Cash Flow Ratio Interest Addition
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(a) Greater than 2.25 to 1.00 0.50%
(b) Greater than 1.25 to 1.00 0.45%
but Equal to or Less than
2.25 to 1.00
(c) Equal to or Less than 1.25 0.40%
to 1.00
(d) The definition of "Applicable Unused Fee" in Section 1 is amended
in its entirety so that as amended it shall read as follows:
"'Applicable Unused Fee' means that percent per annum set forth
below, which shall be (i) determined as
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of each Determination Date and furnished to the Agent not later than the
time set forth in Section 7.01(a) and (b) hereof and (ii) applicable as of
the first day of the quarterly period next following the Compliance Date,
based upon the Consolidated Debt to Cash Flow Ratio, as specified below:
Consolidated Debt to Applicable
Cash Flow Ratio Unused Fee
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(a) Greater than 2.25 to 1.00 0.15%
(b) Greater than 1.25 to 1.00 0.15%
but Equal to or Less than
2.25 to 1.00
(c) Equal to or Less than 1.25 0.125%
to 1.00
(e) The definition of "Interest Period" in Section 1 is amended in its
entirety so that as amended it shall read as follows:
"'Interest Period' shall mean:
(i) with respect to any CD Loan and LIBOR Loan, each period
commencing on the date such CD Loan or LIBOR Loan is made or converted
or the last day of the next preceding Interest Period for such Loan,
as the case may be, and ending, at the Company's option (A) for any CD
Loan 30, 60, 90 or 180 days thereafter as notified to the Agent two
(2) Business Days prior to the beginning of such Interest Period and
(B) for any LIBOR Loan on the numerically corresponding day in the
first, second or third calendar month thereafter, as the Company may
notify the Agent three (3) LIBOR Business Days prior to the beginning
of such Interest Period, except that each Interest Period that
commences on the last Business Day of a calendar month (or on any day
for which there is no numerically corresponding day in the appropriate
subsequent calendar month) shall end on the last Business Day of the
appropriate subsequent calendar month;
(ii) with respect to any Absolute Rate Loan, the period
commencing on the date such Absolute Rate Loan is made and ending on
any Business Day up to 180 days thereafter, as the Company may select
as provided in Section 2.02(b); and
(iii) with respect to any LIBOR Market Loan, the period
commencing on the date such LIBOR Market Loan is made and ending on
the numerically corresponding day in the first, second or third
calendar month thereafter, as the Company may select as provided in
Section 2.02(b),
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except that each Interest Period that commences on the last Business
Day of a calendar month (or any day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall
end on the last Business Day of the appropriate subsequent calendar
month.
Notwithstanding the foregoing: (i) if any Interest Period for any
Competitive Bid Loan would otherwise end after the Revolving Credit
Termination Date, such Interest Period shall end on the Revolving
Credit Termination Date; (ii) if any Interest Period for any LIBOR
Loan would otherwise end after the Revolving Credit Termination Date,
such Interest Period shall end on the Revolving Credit Termination
Date; (iii) each Interest Period that would otherwise end on a day
which is not a Business Day shall end on the next succeeding Business
Day (or, in the case of an Interest Period for a LIBOR Loan or a LIBOR
Market Loan, if such next succeeding Business Day falls in the next
succeeding calendar month, on the next preceding Business Day); and
(iv) notwithstanding clauses (i), (ii) and (iii) above, no Interest
Period for any Loan (other than an Absolute Rate Loan) shall have a
duration of less than one month (in the case of a LIBOR Loan or a
LIBOR Market Loan) and, if the Interest Period for any LIBOR Loan or
LIBOR Market Loan would otherwise be a shorter period, such Loan shall
not be available hereunder for such period.
(f) The definition of "Loans" in Section 1 is amended in its entirety
so that as amended it shall read as follows:
"'Loan' or 'Loans' means any borrowing by the Company hereunder
and/or any extension or credit by the Agent or any of the Banks to or
for the Company hereunder, and shall include the Revolving Credit
Loans, Swing Line Loans and Competitive Bid Loans including any
renewal, amendment, modification or extension of any thereof."
(g) The definition of "Notes" in Section 1 is amended by adding the
phrase "and (iii) the Competitive Bid Notes" immediately preceding the
period at the end thereof.
(h) The definition of "Requisite Banks" in Section 1 is amended by
adding the phrase "without regard to any Competitive Bid Loan" immediately
following the word "Loans" first appearing in the second sentence of such
definition.
(i) Section 2.01 through 2.04 are amended in their entirety so that as
amended they shall read as follows:
" SECTION 2. The Credit.
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Section 2.01. (a) Revolving Credit Facility. Subject to the
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terms and conditions of this Agreement and so long as no Default or
Event of Default exists hereunder, each Bank severally agrees to make
loans to the Company (individually a "Revolving Credit Loan" and
collectively the "Revolving Credit Loans") from time to time on any
Business Day in the case of a Prime Loan or CD Loan or a LIBOR
Business Day in the case of a LIBOR Loan from the date hereof until
the Revolving Credit Termination Date on a pro rata basis up to but
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not exceeding its Revolving Credit Commitment; provided, however, that
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immediately after giving effect to each loan, the principal amount of
outstanding Revolving Credit Loans plus the amount of Outstanding
Letters of Credit, Swing Line Loans and Competitive Bid Loans shall
not exceed the Total Revolving Credit Commitment. Within such limits,
the Company may borrow, repay and reborrow pursuant to this Section
2.01, in each case on a Business Day in the case of a Prime Loan or CD
Loan, and on a LIBOR Business Day in the case of a LIBOR Loan from the
date of this Agreement until, but not including, the Revolving Credit
Termination Date; provided, however, that (a) no CD Loan shall be made
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less than thirty (30) days before the Revolving Credit Termination
Date and no LIBOR Loan shall be made less than one month before the
Revolving Credit Termination Date and (b) a CD Loan and LIBOR Loan may
be repaid only on the last day of an Interest Period with respect
thereto. Each borrowing which shall not utilize the Revolving Credit
Commitments in full and each repayment shall be in an aggregate
principal amount equal to no less than $500,000.
The parties hereto acknowledge and agree that the amount and the
pro rata portion of the Commitments may change from time to time
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hereafter by the assignment by a Bank or another lender of all or a
portion of its Revolving Credit Commitment pursuant to Section 11.08.
(b) Types of Loans. Each Revolving Credit Loan (other than a
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Swing Line Loan) shall be, at the option of the Company specified in
the Borrowing Notice furnished to the Agent pursuant to Section
2.01(c) hereof, either a Prime Loan, a CD Loan or a LIBOR Loan, which
shall in each case be made or maintained by each Bank at its
applicable Lending Office. CD Loans, LIBOR Loans and Prime Loans may
be outstanding at the same time, but there shall not be outstanding at
any one time more than eight (8) Loans that are Fixed Rate Loans.
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(c) Manner of Borrowing. (i) The Company shall give the Agent
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(a) at least two (2) Business Days' irrevocable telephonic notice of
each Prime Loan or CD Loan (whether representing an additional
borrowing hereunder or a conversion of borrowings hereunder pursuant
to Section 2.10 hereof) prior to 10:00 A.M. Charlotte, North Carolina
time; and (b) at least three (3) LIBOR Business Days' irrevocable
telephonic notice of each LIBOR Loan (whether representing an
additional borrowing hereunder or a conversion of borrowing pursuant
to Section 2.10 hereof) prior to 10:00 A.M. Charlotte, North Carolina
time. Each such Borrowing Notice, which shall promptly be effective
upon receipt by the Agent, shall specify the amount of the borrowing,
the type (Prime, CD or LIBOR) of Loan or Loans, the date of borrowing
and the Interest Period to be used in the computation of interest in
respect of a CD Loan or LIBOR Loan. The Company shall promptly
provide the Agent written confirmation of such telephonic notice in
the form attached hereto as Exhibit 3 with appropriate insertions but
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failure to provide such notice shall not affect the validity of such
telephonic notice. Notice of receipt of such Borrowing Notice shall
be provided by the Agent to each Bank by telephone or telefacsimile
not later than 12:30 P.M. on the same day as Agent's receipt of such
notice in the city in which the Lending Office of each such Bank is
located. The Agent shall provide each Bank a copy of the written
confirmation of the Company in the form attached hereto as Exhibit 3
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with appropriate insertions but failure to provide such notice shall
not affect the validity of such telephonic notice.
(ii) Not later than 2:00 P.M., Charlotte, North Carolina time on
the date specified for each borrowing hereunder, each Bank shall,
pursuant to the terms and subject to the conditions of this Agreement,
make the amount of the Revolving Credit Loan or Revolving Credit Loans
to be made by it on such day available at the Principal Office of the
Agent, by depositing or transferring the proceeds thereof in
immediately available funds at the Principal Office. The amount so
received by the Agent shall, subject to the terms and conditions of
this Agreement be made available to the Company by depositing the
proceeds thereof in immediately available funds, in an account of the
Company designated by the Company and maintained with the Agent at its
Principal Office or such other office agreed to by the Agent.
(iii) Notwithstanding the foregoing, if a drawing
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is made under any Letter of Credit prior to the Revolving Credit
Termination Date and the Company shall not immediately reimburse
NationsBank for the amount of such draw or payment, then notice of
such drawing or payment shall be provided promptly by NationsBank to
the Agent and the Agent shall provide notice to each Bank by telephone
or telefacsimile. If notice to the Banks of a drawing under any Letter
of Credit is given by the Agent at or before 12:00 noon Charlotte,
North Carolina time on any Business Day, provided that no event of the
type specified in Sections 9.07, 9.08 or 9.09 has occurred and is
continuing the Company shall be deemed to have requested, and each
Bank shall, pursuant to the conditions of this Agreement, make a Prime
Loan under the Revolving Credit Facility in the amount of such Bank's
Applicable Commitment Percentage of such drawing or payment and shall
pay such amount to the Agent for the account of NationsBank at the
Principal Office in Dollars and in immediately available funds before
2:30 P.M. Charlotte, North Carolina time on the same Business Day. If
notice to the Banks is given by the Agent after 12:00 noon Charlotte,
North Carolina time on any Business Day, provided that no event of the
type specified in Sections 9.07, 9.08 or 9.09 has occurred and is
continuing the Company shall be deemed to have requested, and each
Bank shall, pursuant to the terms and subject to the conditions of
this Agreement, make a Prime Loan under the Revolving Credit Facility
in the amount of such Bank's Applicable Commitment Percentage of such
drawing or payment and shall pay such amount to the Agent for the
account of NationsBank at the Principal Office in Dollars and in
immediately available funds before 12:00 noon Charlotte, North
Carolina time on the next following Business Day. Such Prime Loan
shall continue unless and until the Company converts such Prime Loan
in accordance with the terms of Section 2.10 hereof. If an event
described in Section 9.07, 9.08 or 9.09 has occurred, each Bank shall
promptly purchase from NationsBank a Participation equal to its
Applicable Commitment Percentage of any drawing under a Letter of
Credit.
2.02. Competitive Bid Loans.
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(a) In addition to borrowings of Revolving Credit Loans, at any
time prior to the Revolving Credit Termination Date the Company may,
as set forth in this Section 2.02, request the Banks to make offers to
make Competitive Bid Loans to the Company in Dollars. The Banks may,
but shall have no obligation to, make such offers and the Company may,
but shall have no obligation
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to, accept any such offers in the manner set forth in this Section
2.02. Competitive Bid Loans may be LIBOR Market Loans or Absolute Rate
Loans (each a "Type" of Competitive Bid Loan), provided that:
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(i) the aggregate amount of outstanding Competitive Bid
Loans shall not exceed the Total Revolving Credit Commitment less
the sum of the principal amount of Revolving Credit Outstandings,
Swing Line Loans and Outstanding Letter of Credit;
(ii) there may be no more than eight (8) different Interest
Periods for Fixed Rate Loans outstanding at the same time (for
which purpose Interest Periods described in different lettered
clauses of the definition of the term "Interest Period" shall be
deemed to be different Interest Periods even if they are
coterminous);
(iii) the aggregate amount of outstanding Competitive Bid
Loans of a Bank shall not exceed at any time an amount equal to
the Total Revolving Credit Commitment; and
(iv) no Competitive Bid Loan shall have a maturity date
subsequent to the Revolving Credit Termination Date.
(b) When the Company wishes to request offers to make Competitive
Bid Loans, it shall give the Agent (which shall promptly notify the
Banks) notice (a "Competitive Bid Quote Request") to be received no
later than 11:00 a.m. on (x) the fourth Business Day prior to the date
of borrowing proposed therein, in the case of a LIBOR Auction or (y)
the Business Day next preceding the date of borrowing proposed
therein, in the case of an Absolute Rate Auction (or, in any such
case, such other time and date as the Company and the Agent, with the
consent of the Requisite Banks, may agree). The Company may request
offers to make Competitive Bid Loans for up to three (3) different
Interest Periods in a single notice (for which purpose Interest
Periods in different lettered clauses of the definition of the term
"Interest Period" shall be deemed to be different Interest Periods
even if they are coterminous); provided that the request for each
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separate Interest Period shall be deemed to be a separate Competitive
Bid Quote Request for a separate borrowing (a "Competitive Bid
Borrowing") and there shall not be outstanding at any one time more
than four (4)
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Competitive Bid Borrowings. Each such Competitive Bid Quote Request
shall be substantially in the form of Exhibit 11 and shall
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specify as to each Competitive Bid Borrowing:
(i) the proposed date of such Competitive Bid Borrowing,
which shall be a Business Day;
(ii) the aggregate amount of such Competitive Bid Borrowing,
which shall be at least $10,000,000 (or a larger integral
multiple of $1,000,000) but shall not cause the limits specified
in Section 2.02(a) to be violated;
(iii) the duration of the Interest Period applicable thereto;
(iv) whether the Competitive Bid Quotes requested for a
particular Interest Period are seeking quotes for LIBOR Market
Loans or Absolute Rate Loans; and
(v) if the Competitive Bid Quotes requested are seeking
quotes for Absolute Rate Loans, the date on which the Competitive
Bid Quotes are to be submitted if it is before the proposed date
of borrowing (the date on which such Competitive Bid Quotes are
to be submitted is called the "Quotation Date").
Except as otherwise provided in this Section 2.02(b), no Competitive
Bid Quote Request shall be given within five (5) Business Days (or
such other number of days as the Company and the Agent, with the
consent of the Requisite Banks, may agree) of any other Competitive
Bid Quote Request.
(c) (i) Each Bank may submit one or more Competitive Bid Quotes,
each containing an offer to make a Competitive Bid Loan in response to
any Competitive Bid Quote Request; provided that, if the Company's
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request under Section 2.02(b) specified more than one Interest Period,
such Bank may make a single submission containing one or more
Competitive Bid Quotes for each such Interest Period. Each
Competitive Bid Quote must be submitted to the Agent not later than
(x) 2:00 p.m. on the fourth Business Day prior to the proposed date of
borrowing, in the case of a LIBOR Auction or (y) 10:00 a.m. on the
Quotation Date, in the case of an Absolute Rate Auction
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(or, in any such case, such other time and date as the Company and the
Agent, with the consent of the Requisite Banks, may agree); provided
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that anyCompetitive Bid Quote may be submitted by Nations Bank
(or its applicable Lending Office) only if NationsBank (or such
applicable Lending Office) notifies the Company of the terms of the
offer contained therein not later than (x) 1:00 p.m. on the fourth
Business Day prior to the proposed date of borrowing, in the case of a
LIBOR Auction or (y) 9:45 a.m. on the Quotation Date, in the case of
an Absolute Rate Auction. Subject to Section 4, Section 5 and Section
9, any Competitive Bid Quote so made shall be irrevocable except with
the consent of the Agent given on the instructions of the Company.
(ii) Each Competitive Bid Quote shall be substantially in
the form of Exhibit 12 and shall specify:
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(A) the proposed date of borrowing
and the Interest Period therefor;
(B) the principal amount of the
Competitive Bid Loan for which each such Competitive Bid Quote is
being made, which principal amount shall be at least $5,000,000
(or a larger integral multiple of $1,000,000); provided that the
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aggregate principal amount of all Competitive Bid Loans
for which a Bank submits Competitive Bid Quotes (x) may not
exceed the Total Revolving Credit Commitment and (y) may not
exceed the principal amount of the Competitive Bid Borrowing for
a particular Interest Period for which offers were requested;
(C) in the case of a LIBOR Auction,
the margin above or below the Applicable Base Rate adjusted for
any Reserve Requirement (the "LIBOR Margin") offered for each
such Competitive Bid Loan, expressed as a percentage (rounded
upwards, if necessary, to the nearest 1/10,000th of 1%) to be
added to or subtracted from the Applicable Base Rate as so
adjusted;
(D) in the case of an Absolute Rate Auction, the rate of
interest per annum (rounded upwards, if necessary, to the nearest
1/10,000th of 1%) offered for each such Competitive Bid Loan (the
"Absolute Rate"); and
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(E) the identity of the quoting Bank.
Unless otherwise agreed by the Agent and the Company, no Competitive
Bid Quote shall contain qualifying, conditional or similar language or
propose terms other than or in addition to those set forth in the
applicable Competitive Bid Quote Request and, in particular, no
Competitive Bid Quote may be conditioned upon acceptance by the
Company of all (or some specified minimum) of the principal amount of
the Competitive Bid Loan for which such Competitive Bid Quote is being
made.
(d) The Agent shall (x) in the case of a LIBOR Auction, by 4:00
p.m. on the day a Competitive Bid Quote is submitted or (y) in the
case of an Absolute Rate Auction, as promptly as practicable after the
Competitive Bid Quote is submitted (but in any event not later than
10:30 a.m. on the Quotation Date), notify the Company of the terms (i)
of any Competitive Bid Quote submitted by a Bank that is in accordance
with Section 2.02(c) and (ii) of any Competitive Bid Quote that
amends, modifies or is otherwise inconsistent with a previous
Competitive Bid Quote submitted by such Bank with respect to the same
Competitive Bid Quote Request. Any such subsequent Competitive Bid
Quote shall be disregarded by the Agent unless such subsequent
Competitive Bid Quote is submitted solely to correct a manifest error
in such former Competitive Bid Quote. The Agent's notice to the
Company shall specify (A) the aggregate principal amount of the
Competitive Bid Borrowing for which Competitive Bid Quotes have been
received and (B) the respective principal amounts and LIBOR Margins or
Absolute Rates, as the case may be, so offered by each Bank
(identifying the Bank that made each Competitive Bid Quote).
(e) Not later than 11:00 a.m. on (x) the third Business Day prior
to the proposed date of borrowing, in the case of a LIBOR Auction or
(y) the Quotation Date, in the case of an Absolute Rate Auction (or,
in any such case, such other time and date as the Company and the
Agent, with the consent of the Requisite Banks, may agree), the
Company shall notify the Agent of its acceptance or nonacceptance of
the offers so notified to it pursuant to Section 2.02(d) (and the
failure of the Company to give such notice by such time shall
constitute nonacceptance) and the Agent shall promptly notify each
affected Bank. In the case of acceptance, such notice shall specify
the aggregate principal amount of offers for each Interest Period that
are accepted. The Company may accept any Competitive Bid Quote in
whole or in part
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(provided that any Competitive Bid Quote accepted in part shall be at
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least $5,000,000 or a larger integral multiple of $1,000,000);
provided that:
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(i) the aggregate principal amount of each Competitive Bid
Borrowing may not exceed the applicable amount set forth in the
related Competitive Bid Quote Request;
(ii) the aggregate principal amount of each Competitive Bid
Borrowing shall be at least $10,000,000 (or a larger integral
multiple of $1,000,000) but shall not cause the limits specified
in Section 2.02(a) to be violated;
(iii) acceptance of offers may be made only in ascending
order of LIBOR Margins or Absolute Rates, as the case may be, in
each case beginning with the lowest rate so offered; and
(iv) the Company may not accept any offer where the Agent
has correctly advised the Company that such offer fails to comply
with Section 2.02(c)(ii) or otherwise fails to comply with the
requirements of this Agreement (including, without limitation,
Section 2.02(a)).
If offers are made by two or more Banks with the same LIBOR Margins or
Absolute Rates, as the case may be, for a greater aggregate principal
amount than the amount in respect of which offers are permitted to be
accepted for the related Interest Period after the acceptance of all
offers, if any, of all lower LIBOR Margins or Absolute Rates, as the
case may be, offered by any Bank for such related Interest Period, the
principal amount of Competitive Bid Loans in respect of which such
offers are accepted shall be allocated by the Company among such Banks
as nearly as possible (in amounts of at least $5,000,000 or larger
integral multiples of $1,000,000) in proportion to the aggregate
principal amount of such offers. Determinations by the Company of the
amounts of Competitive Bid Loans and the lowest bid after adjustment
as provided in Section 2.02(e)(iii) shall be conclusive in the absence
of manifest error.
(f) Any Bank whose offer to make any Competitive Bid Loan has
been accepted shall, not later than 1:00 p.m. on the date specified
for the making of such Loan, make the amount of such Loan available to
the Agent at
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the Principal Office in Dollars and in immediately available funds,
for account of the Company. The amount so received by the Agent shall,
subject to the terms and conditions of this Agreement, be made
available to the Company on such date by depositing the same, in
Dollars and in immediately available funds, in an account of the
Company maintained at the Principal Office.
2.03. Reserved.
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2.04. Several Obligations; Limitations on Obligations of Banks.
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No Bank shall be responsible for any default of any other Bank in
respect to such other Bank's obligation to make any Loan hereunder nor
shall the Revolving Credit Commitment of any Bank hereunder be
increased as a result of such default of any other Bank. Without
limiting the generality of the foregoing, in the event any Bank shall
fail to advance funds to the Company as herein provided, the Agent may
in its discretion, but shall not be obligated to, advance under the
Note in its favor as a Bank all or any portion of such amount (the
"deficiency advance") and shall thereafter be entitled to payments of
principal of and interest on such deficiency advance in the same
manner and at the same interest rate or rates to which such other Bank
would have been entitled had it made such advance under its Note;
provided that, upon payment to the Agent from such other Bank of the
entire outstanding amount of such deficiency advance, together with
interest thereon, from the most recent date or dates interest was paid
to the Agent by the Company on each Loan comprising the deficiency
advance at the interest rate per annum for overnight borrowing by the
Agent from the Federal Reserve Bank, then such payment shall be
credited against the Note of the Agent in full payment of such
deficiency advance and the Company shall be deemed to have borrowed
the amount of such deficiency advance from such other Bank as of the
most recent date or dates, as the case may be, upon which any payments
of interest were made by the Company thereon.
2.05. Interest. The Company shall pay interest to the Agent for
--------
the account of each Bank on the outstanding and unpaid principal
amount of each Loan made by such Bank for the period commencing on the
date of such Loan until such Loan shall be paid at the then applicable
Prime Rate for Prime Loans and Fixed Rate for Fixed Rate Loans, as
designated by the Company pursuant to Section 2.01(c), Section 2.02(e)
or Section 2.10 hereof (except Swing Line Loans shall bear interest as
provided in
29
Section 2.06); provided, however, that if any amount shall
--------
not be paid when due (at maturity, by acceleration or otherwise), such
amount shall bear interest thereafter until paid at a rate which shall
be 2% above the higher of (i) the rate at which interest was payable
on such Loan on the day immediately preceding the due date of such
Loan or (ii) the Prime Rate from the date such amount was due and
payable until the date such amount is paid in full.
Interest on each Loan shall be calculated on the basis of a year
of 360 days for the actual number of days elapsed. Any change in the
Prime Rate shall be effective as of the Business Day such change is
announced. Interest on Loans which are Prime Loans shall be paid: (a)
on the last Business Day of each calendar quarter during each year,
commencing the first such date to occur after the date of any Prime
Loan outstanding on the date hereof, (b) on the last day of the
Applicable Interest Period for each Fixed Rate Loan and, if such
Interest Period extends for more than three (3) months, at intervals
of three (3) months after the first day of such Interest Period, and
(c) upon the Revolving Credit Termination Date."
(j) Section 2.07 is hereby amended in order to add a new clause C.
thereto reading as follows:
"C. Competitive Bid Loans. The principal amount of each
---------------------
Competitive Bid Loan shall be due and payable to the Agent for the
benefit of the applicable Bank in full on the last day of the Interest
Period applicable thereto, or earlier as specifically provided
herein."
(k) Section 2.08 is hereby amended in order to add a new clause (c)
thereto reading as follows:
"(c) Competitive Bid Loans made by each Bank shall be evidenced
by the Competitive Bid Note payable to the order of such Bank and
representing the obligation of the Company to pay the lesser of (i)
the Total Revolving Credit Commitment or (ii) the unpaid principal
amount of all Competitive Bid Loans made by such Bank. Each Bank is
hereby authorized to record the date and amount of each Competitive
Bid Loan made by such Bank, the maturity date thereof, the date and
amount of each payment of principal thereof and the interest rate with
respect thereto on the schedule attached to and constituting part of
its Competitive Bid Note, and any such recordation shall constitute
prima facie evidence of the accuracy of
----- -----
30
the information so recorded; provided, however, that the failure to
-------- --------
make any such recordation shall not affect the obligations of the
Company hereunder or under any Competitive Bid Note."
(l) The second sentence of Section 2.11 is amended in its entirety so
that as amended it shall read as follows:
"Swing Line Loans and Competitive Bid Loans shall not be deemed
outstanding Loans for purposes of determining such Commitment Fee."
(m) The last sentence of Section 3.01 is amended in its entirety so
that as amended it shall read as follows:
"NationsBank shall not be required to issue any Letter of Credit if
the Outstanding Letters of Credit when added to the face amount of any
requested Letter of Credit plus outstanding Revolving Credit Loans,
Competitive Bid Loans and Swing Line Loans exceeds the Total Revolving
Credit Commitment."
(n) Clause (f) of Section 6.03 is hereby amended in its entirety so
that as amended it shall read as follows:
"(f) immediately after giving effect to a Loan or Letter of
Credit the aggregate principal balance of all outstanding Loans and
Participations shall not exceed the Total Revolving Credit
Commitment."
3. Each Subsidiary joins in executing this Amendment Agreement for the
purpose of consenting hereto and reaffirming its guaranty of the Company's
Obligations.
4. In order to induce the Banks to enter into this Amendment Agreement,
the Company represents and warrants to the Banks as follows:
(a) The representations and warranties made by the Company in Section
5 of the Agreement are true on and as of the date hereto except that the
financial statements referred to in Section 5.03 shall be those most
recently furnished to the Banks pursuant to Section 7.01;
(b) There has been no material change in the condition, financial or
otherwise, of the Company and its Subsidiaries since the date of the most
recent financial reports of the Company received by the Banks under Section
7.01 thereof, other than changes in the ordinary course of business, none
of which has been a material adverse change;
31
(c) The business and properties of the Company and its Subsidiaries
are not, and since the date of the most recent financial report of the
Company and its Subsidiaries received by the Banks under either Section
7.01 thereof have not been adversely affected in any substantial way as the
result of any fire, explosion, earthquake, accident, strike, lockout,
combination of workers, flood, embargo, riot, activities of armed forces,
war or acts of God or the public enemy, or cancellation or loss of any
major contracts; and
(d) No event has occurred and no condition exists which, upon the
consummation of the transaction contemplated hereby, constituted a Default
or an Event of Default on the part of the Company under the Agreement or
the Notes either immediately or with the lapse of time or the giving of
notice, or both.
5. As a condition precedent to the effectiveness of this Amendment
Agreement, the Agent shall have received the following:
(e) Executed counterparts of this Amendment Agreement; and
(f) An opinion of the general counsel of the Company and the
Guarantors (i) as to the enforceability of this Amendment Agreement, the
amendment of the Guaranty and (ii) such other matters as the Agent shall
reasonably request.
6. All instruments and documents incident to the consummation of the
transactions contemplated hereby shall be satisfactory in form and substance to
the Agent and its counsel; the Agent and the Banks shall have received copies of
all additional agreements, instruments and documents which they may reasonably
request in connection therewith, including copies of resolutions of the Company
authorizing the transactions contemplated by this Amendment Agreement, such
documents, when appropriate, to be certified by appropriate corporate or
governmental authorities; all proceedings of the Company relating to the matters
provided for herein shall be satisfactory to the Agent and its counsel.
7. This Amendment Agreement sets forth the entire understanding and
agreement of the parties hereto in relation to the subject matter hereof and
supersedes any prior negotiations and agreements among the parties relative to
such subject matter. No promise, conditions, representation or warranty,
express or implied, not herein set forth shall bind any party hereto, and no one
of them has relied on any such promise, condition, representation or warranty.
Each of the parties hereto acknowledges that, except as in this Amendment
Agreement otherwise
32
expressly stated, no representations, warranties or commitments, express or
implied, have been made by any other party to the other. None of the terms or
conditions of this Amendment Agreement may be changed, modified, waived or
canceled orally or otherwise, except by writing, signed by all the parties
hereto, specifying such change, modification, waiver or cancellation of such
terms or conditions, or of any preceding or succeeding breach thereof.
Except as hereby specifically amended, modified or supplemented, the
Agreement and all of the other Loan Documents are hereby confirmed and ratified
in all respects and shall remain in full force and effect according to their
respective terms.
33
IN WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement
to be duly executed by their duly authorized officers, all as of the day and
year first above written.
Company:
WITNESS: HEALTH MANAGEMENT ASSOCIATES, INC.
_______________________
_______________________
By: /s/ Xxxx X. Xxxxx
________________________________
Name: Xxxx X. Xxxxx
Title: Senior Vice President
34
WITNESS: GUARANTORS:
HEALTH MANAGEMENT ASSOCIATES, INC.
_________________________ HEALTH MANAGEMENT ASSOCIATES OF
WEST VIRGINIA, INC.
_________________________ SEBRING HOSPITAL MANAGEMENT
ASSOCIATES, INC.
MOORESVILLE HOSPITAL MANAGEMENT
ASSOCIATES, INC.
SEBASTIAN HOSPITAL CO., INC.
MARATHON H.M.A., INC.
LOUISBURG H.M.A., INC.
NATCHEZ COMMUNITY HOSPITAL, INC.
ORLANDO H.M.A., INC.
BILOXI H.M.A., INC.
XXXXXX H.M.A., INC.
VAN BUREN H.M.A., INC.
XXXXXX CITY H.M.A., INC.
HAMLET H.M.A., INC.
XXXXXXX H.M.A., INC.
TOPEKA H.M.A., INC.
PUNTA GORDA MEDICAL CENTER, INC.
HEALTH MANAGEMENT ASSOCIATES, INC.
(a Kentucky corporation)
HOSPITAL MANAGEMENT ASSOCIATES, INC.
PAINTSVILLE HOSPITAL COMPANY
By:/s/ Xxxx X. Xxxxx
__________________________________
Name: Xxxx X. Xxxxx
Title: Secretary
35
BANKS:
NATIONSBANK, NATIONAL ASSOCIATION
(SOUTH) Individually and as Agent
By:/s/ Xxxxxxx Xxxxxxxx
________________________________
Name:______________________________
Title: Vice President
00
XXXXX XXXX XX XXXXXXXXXX
By:/s/ Xxxxxx X. Xxxxx
---------------------------------
Name:Xxxxxx X. Xxxxx
-------------------------------
Title:Vice President
------------------------------
00
XXXXX XXXXX XXXXXXXX XXXX XX
XXXXX XXXXXXXX
By:/s/ Xxxxxx X. Xxxxxx
_________________________________
Name: Xxxxxx X. Xxxxxx
______________________________
Title:Senior Vice President
______________________________
38
THE SUMITOMO BANK, LIMITED
By:/s/ Xxxxx X. Xxxxxxx
--------------------
Name:Xxxxx Xxxxxxx, Xx.
-------------------------------
Title: Vice President and Manager
-----------------------------
By:/s/ M. Xxxxxxx Xxxxxxx
---------------------------------
Name: M. Xxxxxxx Xxxxxxx
------------------------------
Title:Vice President
------------------------------
00
XXX XXXX XX XXXX XXXXXX
By:/s/Xxxx Xxxxxxx
---------------------------------
Name:Xxxx Xxxxxxx
-------------------------------
Title:Relationship Manager
------------------------------
40
TORONTO DOMINION (TEXAS), INC.
By:/s/ Xxxxxxxxx Xxxxxx
-------------------------------
Name:Xxxxxxxxx Xxxxxx
-----------------------------
Title:vice President
----------------------------
41
EXHIBIT 10
Form of Competitive Bid Note
PROMISSORY NOTE
$300,000,000 __________, __________
__________, 1996
FOR VALUE RECEIVED, HEALTH MANAGEMENT ASSOCIATES, INC., a Delaware
corporation (the "Company"), hereby promises to pay to the order of
________________________________ (1) (the "Bank"), for account of its
Applicable Lending Office provided for by the Credit Agreement referred to
below, at the principal office of NationsBank, National Association (South), One
Independence Center, 000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000 (or at such other place or places as the Agent may designate in
writing) at the times set forth in the Credit Agreement (as herein defined), the
aggregate unpaid principal amount of the Competitive Bid Loans made by the Bank
to the Company under the Credit Agreement, in lawful money of the United States
of America and in immediately available funds, on the dates and in the principal
amounts provided in the Credit Agreement, and to pay interest on the unpaid
principal amount of each such Competitive Bid Loan, at such office, in like
money and funds, for the period commencing on the date of such Competitive Bid
Loan until such Competitive Bid Loan shall be paid in full, at the rates per
annum and on the dates provided in the Credit Agreement.
The date, amount, Type, interest rate and maturity date of each Competitive
Bid Loan made by the Bank to the Company, and each payment made on account of
the principal thereof, shall be recorded by the Company on its books and, prior
to any transfer of this Note, endorsed by the Bank on the schedule attached
hereto or any continuation thereof, provided that the failure of the Bank to
--------
make any such recordation or endorsement shall not affect the obligations of the
Company to make a payment when due of any amount owing under the Credit
Agreement or hereunder in respect of the Competitive Bid Loans made by the Bank.
This Note is one of the Competitive Bid Notes referred to in the Fourth
Amended and Restated Revolving Credit and Reimbursement Agreement dated as of
December 1, 1994 (as modified and supplemented from time to time, the "Credit
------
Agreement") among the Company, the Banks named therein and NationsBank, National
---------
Association (South), as Agent, and evidences Competitive Bid Loans made by the
Bank thereunder. Terms used but not defined in this Note have the respective
meanings assigned to them in the Credit Agreement.
42
---------------
/1/ Insert name of Bank in capital letters.
43
The Credit Agreement provides for the acceleration of the maturity of this
Note upon the occurrence of certain events and for prepayments of Competitive
Bid Loans upon the terms and conditions specified therein. In the event this
Note is not paid when due at any stated or accelerated maturity, the Company
agrees to pay, in addition to the principal and interest, all costs of
collection, including reasonable attorney's fees.
Except as permitted by Section 11.08 of the Credit Agreement, this Note may
not be assigned by the Bank to any other Person.
The Company hereby waives demand, presentment, protest, notice of
nonpayment and protest, and any other notice of any kind with respect to this
Note.
This Note shall be governed by, and construed in accordance with, the law
of the State of Florida.
WITNESS: HEALTH MANAGEMENT ASSOCIATES, INC.
____________________________
By: ________________________________
____________________________ Name: Xxxxxxx X. Xxx
Title: Senior Vice President-Finance
Chief Financial Officer
44
SCHEDULE OF COMPETITIVE BID LOANS
This Note evidences Competitive Bid Loans made under the within-described
Credit Agreement to the Company, on the dates, in the principal amounts, of the
Types, bearing interest at the rates and maturing on the dates set forth below,
subject to the payments and prepayments of principal set forth below:
Principal
Date Amount Type Maturity Amount Unpaid
of of of Interest Date of Paid or Principal Notation
Loan Loan Loan Rate Loan Prepaid Amount Made by
---- --------- ---- -------- -------- ------- -------- --------
45
ACKNOWLEDGEMENT OF EXECUTION ON BEHALF OF
HEALTH MANAGEMENT ASSOCIATES, INC.
STATE OF ______________
COUNTY OF _____________
Before me, the undersigned, a Notary Public in and for said County and
State on this _____ day of __________, 1996 A.D., personally appeared Xxxxxxx X.
Xxx, known to be the Senior Vice President-Finance and Chief Financial Officer
of the above-named corporation (the "Company"), who, being by me duly sworn,
says he works at 0000 Xxxxxxx Xxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxx 00000
and that by authority duly given by, and as the act of, the Company, the
foregoing and annexed Note dated __________, 1996, was signed by him as said
Senior Vice President-Finance and Chief Financial Officer on behalf of the
Company.
Witness my hand and official seal this _____ day of __________, 1996.
___________________________________
Notary Public
(SEAL)
My commission expires: ________________
46
AFFIDAVIT OF ___________________
[Name of Affiant]
The undersigned, being first duly sworn, deposes and says that:
1. He/She is a _______________ of ______________________ and works at
__________________________________________________.
2. The Note of Health Management Associates, Inc. to the Bank (the
"Bank") dated __________, 1996 was executed before him/her and delivered to
him/her on behalf of the Bank in __________, __________ on __________, 1996.
This the _____ day of __________, 1996.
___________________________________
[Signature of Affiant]
Acknowledgement of Execution
STATE OF __________
COUNTY OF __________
Before me, the undersigned, a Notary Public in and for said County and
State on this _____ day of __________, 1996 A.D., personally appeared
_______________ who before me affixed his/her signature to the above Affidavit.
Witness my hand and official seal this _____ day of __________, 1996.
___________________________________
Notary Public
(SEAL)
My Commission Expires: _______________
47
EXHIBIT 11
Form of Competitive Bid Quote Request
[Date]
To: NationsBank, National Association (South)
From: Health Management Associates, Inc.
Re: Competitive Bid Quote Request
Pursuant to Section 2.02 of the Fourth Amended and Restated Revolving
Credit and Reimbursement Agreement dated as of December 1, 1994 (as modified and
supplemented from time to time, the "Credit Agreement") among Health Management
Associates, Inc., the banks named therein and NationsBank, National Association
(South) as agent, we hereby give notice that we request Competitive Bid Quotes
for the following proposed Competitive Bid Borrowing(s):
Borrowing Quotation Interest
Date Date (1) Amount (2) Type (3) Period (4)
--------- --------- ------ ---- --------
Terms used herein have the meanings assigned to them in the Credit
Agreement.
HEALTH MANAGEMENT ASSOCIATES, INC.
By:
--------------------------------
Title:
-----------------------
(1) For use if an Absolute Rate in an Absolute Rate Auction is requested
to be submitted before the Borrowing Date.
(2) Each amount must be $10,000,000 or a larger integral multiple of
$1,000,000.
(3) Insert either "LIBOR Market" (in the case of LIBOR Market Loans) or
"Absolute Rate" (in the case of Absolute Rate Loans).
(4) One, two three or six months, in the case of a LIBOR Market Loan or,
in the case of an Absolute Rate Loan, a period of up to 180 days after the
making of such Absolute Rate Loan and ending on a Business Day.
48
EXHIBIT 12
Form of Competitive Bid Quote
To: NationsBank, National Association (South), as Agent
Attention:
Re: Competitive Bid Quote to Health Management Associates, Inc. (the
"Company")
This Competitive Bid Quote is given in accordance with Section 2.02(c) of
the Fourth Amended and Restated Revolving Credit and Reimbursement Agreement
dated as of December 1, 1994 (as modified and supplemented from time to time,
the "Credit Agreement") among Health Management Associates, Inc., the banks
named therein and NationsBank, National Association (South), as Agent. Terms
defined in the Credit Agreement are used herein as defined therein.
In response to the Company's invitation dated __________, 199__, we hereby
make the following Competitive Bid Quote(s) on the following terms:
1. Quoting Bank:
2. Person to contact at Quoting Bank:
3. We hereby offer to make Competitive Bid Loan(s) in the following
principal amount[s], for the following Interest Period(s) and at the
following rate(s):
49
Borrowing Quotation Interest
Date Date (1) Amount (2) Type (3) Period (4) Rate (5)
--------- --------- ------ ---- -------- ----
------------------------
(1) As specified in the related Competitive Bid Quote Request.
(2) The principal amount bid for each Interest Period may not exceed the
principal amount requested. Bids must be made for at least $5,000,000 or a
larger integral multiple of $1,000,000.
(3) Indicate "LIBOR Market" (in the case of LIBOR Market Loans) or
"Absolute Rate" (in the case of Absolute Rate Loans).
(4) One, two, three or six months, in the case of a LIBOR Market Loan or,
in the case of an Absolute Rate Loan, a period of up to 180 days after the
making of such Absolute Rate Loan and ending on a Business Day, as specified in
the related Competitive Bid Quote Request.
(5) For a LIBOR Market Loan, specify the LIBOR margin over or under the
Applicable Base Rate adjusted for the Eurodollar Reserve Percentage determined
for the applicable Interest Period. Specify percentage (rounded to the nearest
1/10,000 of 1%) and specify whether "PLUS" or "MINUS". For an Absolute Rate
Loan, specify rate of interest per annum (rounded to the nearest 1/10,000 of
1%).
50
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the Credit Agreement,
irrevocably obligate[s] us to make the Competitive Bid Loan(s) for which any
offer(s) (is/are) accepted, in whole or in part (subject to the third sentence
of Section 2.02(e) of the Credit Agreement).
Very truly yours,
[NAME OF BANK]
By:________________________________
Authorized Officer
Dated: __________, ____
51
