FIFTHAMENDMENT

EX-10.1 5 d200774dex101.htm EX-10.1 EX-10.1

Exhibit 10.1

EXECUTION VERSION

FIFTH AMENDMENT

FIFTH AMENDMENT, dated as of June 7, 2016 (this “Amendment”), to the Credit Agreement, dated as of November 15, 2010 (as amended from time to time prior to the date hereof, the “Credit Agreement”; the Credit Agreement as modified by this Amendment, the “Amended Credit Agreement”), among UNIVERSAL HEALTH SERVICES, INC., a Delaware corporation (the “Borrower”), the several banks and other financial institutions from time to time parties thereto (the “Lenders”), JPMORGAN CHASE BANK, N.A., as administrative agent (the “Administrative Agent”) and the other agents party thereto.

W I T N E S S E T H:

WHEREAS, the Borrower and the Administrative Agent are parties to the Credit Agreement;

WHEREAS, the Borrower intends to obtain approximately $400,000,000 of gross proceeds from the issuance of additional 4.750% Senior Secured Senior Notes (“Additional 4.750% Senior Secured Notes”) pursuant to the 2014 Indenture;

WHEREAS, the Borrower intends to obtain $400,000,000 of gross proceeds from the issuance of new senior secured notes due 2026 (“New Senior Secured Notes”);

WHEREAS, the Borrower shall use the proceeds of the New Senior Secured Notes and a portion of the proceeds of the sale of the Additional 4.750% Senior Secured Notes to repay in full the 7.125% Senior Notes;

WHEREAS, the Borrower wishes to (i) make certain amendments to the Credit Agreement as set forth herein and (ii) thereafter, obtain $200,000,000 of Incremental Term Loans pursuant to Section 2.24 of the Credit Agreement;

WHEREAS, the Borrower and each party to this Amendment designated as an “Existing Lender” on its signature page hereto (each an “Existing Lender”) is willing to consent to the amendments, waivers and other modifications set forth herein; and

WHEREAS, each party to this Amendment designated as a “2016 Incremental Term Lender” on its signature page hereto (each a “2016 Incremental Term Lender”) wishes to make an Incremental Term Loan (each, a “2016 Incremental Term Loan” and, collectively, the “2016 Incremental Term Loans”) in the amount set forth on Schedule 1 hereto on the terms set forth herein (and which shall constitute Incremental Term Loans (as defined in the Credit Agreement));

NOW THEREFORE, in consideration of the premises and the mutual covenants hereinafter set forth, the parties hereto hereby agree as follows:

1. Defined Terms. Unless otherwise defined herein, capitalized terms used herein which are defined in the Amended Credit Agreement (as defined below) are used herein as therein defined.

2. Amendments to the Credit Agreement. On and as of the Fifth Amendment Effective Date (as defined below):

(a) Section 1.1 of the Credit Agreement is hereby amended by inserting, in its proper alphabetical order, the following new definitions:

““Bail-In Action”: the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.”

““Bail-In Legislation”: with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.”

““EEA Financial Institution”: (a) any institution established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.”

““EEA Member Country”: any of the member states of the European Union, Iceland, Liechtenstein, and Norway.”

““EEA Resolution Authority”: any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.”

““EU Bail-In Legislation Schedule”: the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.”

““Fifth Amendment”: the Fifth Amendment, dated as of June 7, 2016, by and among the Borrower, the Guarantors, the Administrative Agent and the Lenders party thereto.”

““Fifth Amendment Effective Date”: as defined in the Fifth Amendment.”

““Write-Down and Conversion Powers”: with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.”

(b) The definition of “Defaulting Lender” set forth in Section 1.1 of the Credit Agreement is hereby amended by (i) deleting the word “or” between clauses (c) and (d) thereof and (ii) deleting the “.” at the end thereof and substituting “or (e) has become the subject of a Bail-In Action.” in lieu thereof.

(c) The definition of “Loan Documents” set forth in Section 1.1 of the Credit Agreement is hereby amended by inserting “, the Fifth Amendment” immediately after “the Fourth Amendment” therein.

(d) Section 2.17(b) of the Credit Agreement is hereby amended by deleting the proviso to the second sentence thereof in its entirety.

(e) The penultimate paragraph of Section 2.23 of the Credit Agreement is hereby amended by inserting “or a Bail-In Action” immediately after “Bankruptcy Event” in clause (i) thereof.

(f) the Credit Agreement shall be amended by inserting a new Section 4.23 in proper sequential order as follows:

“4.23 EEA Financial Institutions. No Loan Party is an EEA Financial Institution.”

(g) Section 7.2(e) of the Credit Agreement is hereby amended by deleting each reference to “the Borrower” therein and inserting in lieu thereof “the Loan Parties”.

(h) the Credit Agreement shall be amended by inserting a new Section 10.18 in proper sequential order as follows:

“Section 10.18 Acknowledgement and Consent to Bail-In of EEA Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any EEA Financial Institution arising under any Loan Document may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

(a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and

(b) the effects of any Bail-In Action on any such liability, including, if applicable:

(i) a reduction in full or in part or cancellation of any such liability;

(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or

(iii) the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of any EEA Resolution Authority.”.

3. Release of Grantor. Each of the parties hereto hereby (a) consents to (i) the release of First Hospital Panamericano, Inc. from its obligations pursuant to the Collateral Agreement and (ii) the release and discharge of all security interests in, and other liens on, the assets of First Hospital Panamericano, Inc. granted to or held by the Collateral Agent pursuant to the Collateral Agreement and (b) authorizes the Administrative Agent and the Collateral Agent to take such action requested by the Borrower as the Administrative Agent may deem reasonably necessary to effect, or reflect in the public record, the release and discharge of all security interests in, and other liens on, the assets of First Hospital Panamericano, Inc. granted to or held by the Collateral Agent pursuant to the Collateral Agreement. In furtherance of the foregoing, the Administrative Agent, the Collateral Agent, the Borrower and each of the other Grantors hereby agree that First Hospital Panamericano, Inc. shall be automatically released from any and all of its obligations under the Collateral Agreement immediately upon the occurrence of Fifth Amendment Effective Date.

4. Release of Guarantor. Each of the parties hereto hereby (a) consents to the release of First Hospital Panamericano, Inc. from its obligations pursuant to the Subsidiary Guarantee Agreement and the Lenders party hereto and (b) authorizes the Administrative Agent to take such action requested by the Borrower as the Administrative Agent may deem reasonably necessary to effect, or reflect in the public record, the release of the guarantee obligations of First Hospital Panamericano, Inc. under the Subsidiary Guarantee Agreement. In furtherance of the foregoing, the Borrower, the Administrative Agent and each of the Guarantors hereby agree that First Hospital Panamericano, Inc. shall be automatically released from any and all of its obligations under the Subsidiary Guarantee Agreement immediately upon the occurrence of Fifth Amendment Effective Date.

5. Increased Facility Activation Notice. The Borrower and each 2016 Incremental Term Lender hereby notify the Administrative Agent that:

(a) Each 2016 Incremental Term Lender party hereto agrees to make a 2016 Incremental Term Loan in the amount set forth opposite such 2016 Incremental Term Lender’s name on Schedule 1 hereto under the heading “2016 Incremental Term Loan Amount”.

(b) The Increased Facility Closing Date is the Fifth Amendment Effective Date.

(d) The Incremental Term Maturity Date for the 2016 Incremental Term Loans is the Tranche A Maturity Date.

(e) The Applicable Margin for the 2016 Incremental Term Loans shall be equal to the Applicable Margin for Tranche A Term Loans of the same Type.

(f) The agreement of each 2016 Incremental Term Lender party hereto to make a 2016 Incremental Term Loan on the Increased Facility Closing Date is subject to the satisfaction of the following conditions precedent:

(i) the Fifth Amendment Effective Date shall have occurred;

(ii) the Borrower shall have (A) received gross proceeds of $400,000,000 from the Additional 4.750% Senior Secured Notes and (B) received gross proceeds of $400,000,000 from the New Senior Secured Notes; and

(iii) (x) the amount sufficient to pay and discharge in full the obligations of the Loan Parties under the 7.125% Senior Notes shall have been irrevocably deposited with The Bank of New York Mellon Trust Company, N.A. (as successor in interest to J.P. Morgan Trust Company, National Association), as trustee in respect of the 7.125% Senior Notes and (y) the Administrative Agent shall have received a copy of the written confirmation of The Bank of New York Mellon Trust Company, N.A., as trustee in respect of the 7.125% Senior Notes, stating that the Senior Notes Indenture has been satisfied and discharged pursuant to Sections 10.1 and 10.2 thereof (the actions described in this clause (iii), the “Satisfaction and Discharge”).

(g) Other than as expressly set forth in this Section 5, for all purposes under the Amended Credit Agreement and the other Loan Documents, the 2016 Incremental Term Loans shall have the same terms as the Tranche A Term Loans and shall be treated for purposes of voluntary and mandatory prepayments (including any applicable prepayment fees and for scheduled principal payments) and all other terms as the same Class of Term Loans as the Tranche A Term Loans.

(h) Upon the funding of the 2016 Incremental Term Loans on the Fifth Amendment Effective Date, such 2016 Incremental Term Loans shall automatically and without further action by any Person constitute Tranche A Term Loans for all purposes of the Amended Credit Agreement and the other Loan Documents.

(i) The Administrative Agent shall take any and all action as may be reasonably necessary to ensure that 2016 Incremental Term Loans are included in each borrowing, conversion, continuation and repayment of Tranche A Term Loans on a pro rata basis.

(j) The initial Interest Period with respect to the 2016 Incremental Term Loans shall commence on the Fifth Amendment Effective Date and shall end on the last day of the Interest Period applicable to the Tranche A Term Loans as in effect immediately prior to the Fifth Amendment Effective Date.

6. Effectiveness. This Amendment shall become effective as of the date (the “Fifth Amendment Effective Date”) on which each of the following conditions precedent shall have been satisfied (provided that the amendments set forth in Section 2(b) hereof shall not become effective unless this Amendment is executed by Existing Lenders constituting all of the Revolving Lenders):

(a) The Administrative Agent shall have received each of the following, dated as of the Fifth Amendment Effective Date (unless otherwise agreed to by the Administrative Agent), in form and substance satisfactory to the Administrative Agent:

(i) this Amendment, duly executed and delivered by the Borrower, the Guarantors, Existing Lenders constituting the Required Lenders and the Administrative Agent; and

(ii) the legal opinion of (A) the Borrower’s general counsel, or other counsel reasonably acceptable to the Administrative Agent and (B) Norton Rose Fulbright US LLP, counsel to the Borrower and its Subsidiaries.

(b) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (including, for the avoidance of doubt, the representation and warranty set forth in Section 7(a) hereof) shall be true and correct in all material respects on and as of the Fifth Amendment Effective Date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects).

(c) No Default or Event of Default has occurred and is continuing on the Fifth Amendment Effective Date or after giving effect to the amendments contemplated herein, the extensions of credit requested to be made on the Fifth Amendment Effective Date and the other transactions contemplated to occur on the Fifth Amendment Effective Date.

(d) All governmental and third party approvals necessary in connection with the transactions contemplated hereby and by the Credit Agreement shall have been obtained and be in full force and effect, and all applicable waiting periods shall have expired without any action being taken or threatened by any competent authority that would restrain, prevent or otherwise impose adverse conditions on the financing contemplated hereby.

(e) The Lenders and the Administrative Agent shall have received all fees required to be paid, and all expenses for which invoices have been presented on or before the Fifth Amendment Effective Date.

(f) The Administrative Agent shall have received a solvency certificate from the chief financial officer of the Borrower, in form and substance reasonably acceptable to the Administrative Agent, certifying that the Borrower and its Subsidiaries, on a consolidated basis after giving effect to the incurrence of all Indebtedness in connection herewith on the Fifth Amendment Effective Date, are Solvent.

(g) The Administrative Agent shall have received, at least 5 days prior to the Fifth Amendment Effective Date, all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, previously requested by the Administrative Agent.

7. Representations and Warranties.

(a) The Borrower hereby represents and warrants that (i) First Hospital Panamericano, Inc. is a “controlled foreign corporation” within the meaning of Section 957(a) of the Code and (ii) First Hospital Panamericano, Inc. does not own any assets or property other than (a) the Capital Stock and/or Indebtedness of one or more CFCs and (b) property and assets located outside of the United States.

(b) The Borrower hereby represents and warrants that (a) each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (including, for the avoidance of doubt, the representation and warranty set forth in Section 7(a) hereof) is true and correct in all material respects on and as of the Fifth Amendment Effective Date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties were true and correct in all material respects as of such earlier date (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) and (b) no Default or Event of Default has occurred and is continuing on the Fifth Amendment Effective Date or after giving effect to the amendments contemplated herein, the extensions of credit requested to be made on the Fifth Amendment Effective Date and the other transactions contemplated to occur on the Fifth Amendment Effective Date.

8. Satisfaction and Discharge.

(a) The Borrower hereby covenants and agrees that the 7.125% Senior Notes shall be repaid in full on June 30, 2016.

(b) The parties hereto acknowledge and agree that upon the occurrence of the Satisfaction and Discharge and at all times thereafter, any obligations of any Loan Party with respect to the 7.125% Senior Notes shall be deemed not to constitute Indebtedness.

9. Fees and Expenses. The Borrower hereby covenants and agrees to pay (i) to the Administrative Agent for the account of each 2016 Incremental Term Lender, a fee in Dollars equal to 15 basis points of the 2016 Incremental Term Loan funded by such 2016 Incremental Term Lender on the Fifth Amendment Effective Date and (ii) all invoiced fees and accrued expenses of the Administrative Agent, including without limitation, the reasonable fees and expenses of legal counsel.

10. Ratification by Guarantors. Each of the Guarantors (other than, for the avoidance of doubt, First Hospital Panamericano, Inc.) acknowledges that its consent to this Amendment (including the release of First Hospital Panamericano, Inc. from its obligations under the Collateral Agreement and the Subsidiary Guarantee Agreement and the incurrence by the Borrower of the 2016 Incremental Term Loans) is not required, but each of the undersigned nevertheless does hereby agree and consent to this Amendment (including the release of First Hospital Panamericano, Inc. from its obligations under the Collateral Agreement and the Subsidiary Guarantee Agreement and the incurrence by the Borrower of the 2016 Incremental Term Loans) and to the documents and agreements referred to herein. Each of the Guarantors (other than, for the avoidance of doubt, First Hospital Panamericano, Inc.) agrees and acknowledges that (i) notwithstanding the effectiveness of this Amendment, such Guarantor’s guarantee shall remain in full force and effect without modification thereto and (ii) nothing herein shall in any way limit any of the terms or provisions of such Guarantor’s guarantee, the Collateral Agreement or any other Loan Document executed by such Guarantor (as the same may be amended from time to time), all of which are hereby ratified, confirmed and affirmed in all respects as of the Fifth Amendment Effective Date (it being understood and agreed that each of the entities that became a Guarantor pursuant to the Assumption Agreement, dated as of June 1, 2016, in respect of the Subsidiary Guarantee Agreement, and the Assumption Agreement, dated as of June 1, 2016, in respect of the Collateral Agreement, shall be deemed to have satisfied all requirements of such entity to become a Guarantor pursuant to the Loan Documents). Each of the Guarantors (other than, for the avoidance of doubt, First Hospital Panamericano, Inc.) hereby agrees and acknowledges that no other agreement, instrument, consent or document shall be required to give effect to this Section 10. Each of the Guarantors (other than, for the avoidance of doubt, First Hospital Panamericano, Inc.) hereby further acknowledges that the Borrower, the Administrative Agent and any Lender may from time to time enter into any further amendments, modifications, terminations and/or waivers of any provision of the Loan Documents without notice to or consent from such Guarantor and without affecting the validity or enforceability of such Guarantor’s guarantee or giving rise to any reduction, limitation, impairment, discharge or termination of such Guarantor’s guarantee.

11. Effect. Except as expressly amended hereby, all of the representations, warranties, terms, covenants and conditions of the Loan Documents shall remain unamended and not waived and shall continue to be in full force and effect.

12. Counterparts. This Amendment may be executed by one or more of the parties to this Amendment on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument.

13. Severability. Any provision of this Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such

prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

14. Integration. This Amendment and the other Loan Documents represent the agreement of the Loan Parties, the Administrative Agent and the Lenders with respect to the subject matter hereof, and there are no promises, undertakings, representations or warranties by the Administrative Agent or any Lender relative to the subject matter hereof not expressly set forth or referred to herein or in the other Loan Documents.

15. 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.

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the day and year first above written.


UNIVERSAL HEALTH SERVICES, INC.

By:		/s/ Steve Filton
Name:		Steve Filton
Title:		Senior Vice President