EXHIBIT 10.13
EXECUTION COPY
EXHIBIT A
FOURTH AMENDMENT
FOURTH AMENDMENT, dated as of September 13, 2001 (this "FOURTH 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 :
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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). Subsection 1.1 of the
Credit Agreement is hereby amended by adding alphabetically therein the
following definitions:
"CONVERTIBLE SUBORDINATED DEBT": as defined in subsection 13.2(h)
of the Credit Agreement.
"FOURTH AMENDMENT": the Fourth Amendment dated as of September
13, 2001 to the Credit Agreement.
"FOURTH AMENDMENT EFFECTIVE DATE": as defined in Section 7 of the
Fourth Amendment.
"HIGH YIELD SUBORDINATED DEBT": as defined in Section 3 of the
Fourth Amendment.
3. AMENDMENT TO SUBSECTION 13.2 (INDEBTEDNESS). Subsection 13.2 of the
Credit Agreement is hereby amended by:
(a) deleting paragraph (c) of such subsection in its entirety and
substituting, in lieu thereof, the following:
(c) Indebtedness of the Company evidenced by the
Subordinated Note in an aggregate principal amount at any one
time outstanding of up to the aggregate principal amount of the
Subordinated HoldCo Debentures and the Convertible Subordinated
Debt; and
(b) deleting paragraph (h) of such subsection in its entirety and
substituting, in lieu thereof, the following:
(h)(i) Indebtedness of HoldCo evidenced by the Subordinated
HoldCo Debentures, (ii) any subordinated debt issuance by HoldCo
that is convertible at the option of the holder or issuer thereof
into common stock of HoldCo (any such subordinated debt,
"CONVERTIBLE SUBORDINATED DEBT") or (iii) any other subordinated
debt issued by HoldCo ("HIGH YIELD SUBORDINATED DEBT"), provided
that (A) the aggregate principal amount of the Subordinated
HoldCo Debentures, the Convertible Subordinated Debt and the High
Yield Subordinated Debt at any one time outstanding shall not
exceed $500,000,000, (B) no payments of principal on account of
any such Convertible Subordinated Debt or High Yield Subordinated
Debt are scheduled to be payable prior to June 30, 2006, (C) the
weighted average of the interest rates on any such outstanding
Convertible Subordinated Debt or High Yield Subordinated Debt
shall not be higher than the interest rate on the Subordinated
HoldCo Debentures and (D) the terms and provisions of any such
Convertible Subordinated Debt or High Yield Subordinated Debt
relating to subordination shall be consistent with market terms
for comparable debt issues;
4. AMENDMENT TO SUBSECTION 13.12 (SUBORDINATED NOTE; SUBORDINATED HOLDCO
DEBENTURES; HIGH YIELD SUBORDINATED DEBT). Subsection 13.12 of the Credit
Agreement is hereby amended by deleting such subsection in its entirety and
substituting, in lieu thereof, the following:
13.12 SUBORDINATED NOTE; SUBORDINATED HOLDCO DEBENTURES; CONVERTIBLE
SUBORDINATED DEBT. (a)(i) Make any payment in violation of any of the
subordination provisions of the Subordinated Note; or (ii) waive or
otherwise relinquish any of its rights or causes of action arising under or
arising out of the terms of the Subordinated Note or consent to any
amendment, modification or supplement to the terms of the Subordinated Note
in each case under this clause (ii) in any material respect or in any
respect adverse to the Lenders, except (x) that the interest rate thereon
may be adjusted at such time to correspond to the then weighted average of
the interest rates on any Convertible Subordinated Debt, Subordinated
HoldCo Debentures and High Yield Subordinated Debt
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then outstanding, (y) with the consent of the Required Lenders and (z) that
HoldCo may contribute all or any portion of the principal amount of the
Subordinated Note to the capital of the Company; PROVIDED that promptly
following any contribution of all or any portion of the principal amount of
the Subordinated Note, all or such portion, as the case may be, of the
Subordinated Note is canceled; or (iii) make any optional payment or
prepayment on or redeem or otherwise acquire, purchase or defease the
Subordinated Note; PROVIDED that the Company may optionally prepay, redeem
or acquire the Subordinated Note with the proceeds of issuances in
registered public offerings of shares of common stock of HoldCo after the
Fourth Amendment Effective Date, so long as the aggregate amount of all
such prepayments, redemptions and acquisitions shall not exceed all such
common stock proceeds received during such period after the Fourth
Amendment Effective Date.
(b)(i) Make any payment in violation of any of the subordination
provisions of the Subordinated HoldCo Debentures, the Convertible
Subordinated Debt or the High Yield Subordinated Debt; or (ii) waive or
otherwise relinquish any of its rights or causes of action arising under or
arising out of the terms of the Subordinated HoldCo Debentures, the
Convertible Subordinated Debt or the High Yield Subordinated Debt or
consent to any amendment, modification or supplement to the terms of the
Subordinated HoldCo Debentures, the Convertible Subordinated Debt or the
High Yield Subordinated Debt except with the consent of the Required
Lenders; or (iii) make any optional payment or prepayment on or redeem or
otherwise acquire, purchase or defease the Subordinated HoldCo Debentures,
the Convertible Subordinated Debt or the High Yield Subordinated Debt;
PROVIDED that HoldCo may optionally prepay, redeem or acquire the
Subordinated HoldCo Debentures or the Convertible Subordinated Debt (A)
with the proceeds of (I) any and all prepayments, redemptions and
acquisitions of the Subordinated Note by the Company pursuant to clause
(a)(iii) above, (II) issuances of any Convertible Subordinated Debt or, in
the case of any Convertible Subordinated Debt, issuances of any High Yield
Subordinated Debt or (III) any public offering of shares of common stock of
HoldCo net of any fees or expenses (including underwriting commissions)
incurred in connection with the issuance thereof, or (B) in exchange for
shares of common stock of HoldCo.
5. AMENDMENT TO SECTION 14 (EVENTS OF DEFAULT). Section 14 of the Credit
Agreement is hereby amended by deleting:
(a) 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),
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(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, any Convertible Subordinated Debt
or any High Yield Subordinated Debt 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
(b) paragraph (l) of such section 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; or, if a Change of Control as
defined in the indenture governing any Convertible Subordinated Debt
or High Yield Subordinated Debt shall occur.
6. AMENDMENT TO SECTION 10 OF THE HOLDCO GUARANTEE. Section 10 of the
HoldCo Guarantee is hereby amended by deleting such section in its entirety and
substituting, in lieu thereof, the following:
10. COVENANT. The Guarantor agrees that it will not engage in or
conduct, transact or otherwise engage in any business or operations, or
incur, create, assume or suffer to exist any Indebtedness, Contingent
Obligations or other liabilities or obligations or Liens, or own, lease,
manage or otherwise operate any properties or assets, other than (i)
incident to the ownership of the capital stock of the Company and the
Subordinated Note, (ii) as permitted by the Credit Agreement, (iii)
incident to the ownership of capital stock or other equity interests in any
Person to the extent (x) the acquisition thereof by the Company would
constitute a Permitted Acquisition and (y) such capital stock or equity
interests are contributed to the Company promptly following the Guarantor's
acquisition thereof, (iv) the making of the Subordinated Loan and the
issuance of the Subordinated HoldCo Debentures or Convertible Subordinated
Debt and the use of the proceeds therefrom as expressly contemplated in the
Credit Agreement and (v) to the extent necessary to effect the IPO and
subsequent offerings or issuances of shares of common stock of HoldCo or
any Convertible Subordinated Debt or any High Yield Subordinated Debt and
other transactions customarily incident thereto.
7. CONDITIONS TO EFFECTIVENESS OF THIS FOURTH AMENDMENT. This Fourth
Amendment shall become effective upon receipt by the Administrative Agent of
counterparts of this Fourth Amendment duly executed by each of the Borrower,
HoldCo and the Administrative
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Agent and consented to by the Required Lenders (such date, the "FOURTH AMENDMENT
EFFECTIVE DATE").
8. REPRESENTATIONS AND WARRANTIES. On and as of the date hereof and after
giving effect to this Fourth 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.
9. CONTINUING EFFECT; NO OTHER AMENDMENTS. Except as expressly set forth in
this Fourth 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.
10. 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 Fourth Amendment, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.
11. COUNTERPARTS. This Fourth Amendment may be executed by one or more of
the parties to this Fourth 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
Fourth Amendment signed by the parties hereto shall be delivered to the Borrower
and the Administrative Agent. The execution and delivery of this Fourth
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.
12. GOVERNING LAW. THIS FOURTH AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS FOURTH 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth 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: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
COMMUNITY HEALTH SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
THE CHASE MANHATTAN BANK, as
Administrative Agent and Issuing Lender
By: /s/ Xxxx Xxx Xxx
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Name: Xxxx Xxx Xxx
Title:
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