EXHIBIT 10(d)
FIRST AMENDMENT
FIRST AMENDMENT, dated as of June 17, 1997 (this "First Amendment") to
---------------
the Agreement and Amendment dated as of February 26, 1997, (the "February 1997
-------------
Five-Year Agreement and Amendment") among COLUMBIA/HCA HEALTHCARE CORPORATION, a
- ---------------------------------
Delaware corporation formerly known as Columbia Healthcare Corporation (the
"Company"), the several banks and other financial institutions from time to time
- --------
parties hereto (the "Banks"), BANK OF AMERICA NATIONAL TRUST & SAVINGS
-----
ASSOCIATION, THE BANK OF NEW YORK, DEUTSCHE BANK AG, FLEET NATIONAL BANK, THE
FUJI BANK LIMITED, THE INDUSTRIAL BANK OF JAPAN, LIMITED, ATLANTA AGENCY, MORGAN
GUARANTY TRUST COMPANY OF NEW YORK, NATIONSBANK, N.A., PNC BANK, KENTUCKY, INC.,
TORONTO DOMINION (TEXAS), INC., UNION BANK OF SWITZERLAND, NEW YORK BRANCH AND
WACHOVIA BANK OF GEORGIA, N.A., as Co-Agents (collectively, the "Co-Agents"),
---------
THE SAKURA BANK, LTD. NEW YORK BRANCH, THE SUMITOMO BANK LIMITED, SUNTRUST BANK,
NASHVILLE, N.A., WELLS FARGO BANK, N.A., as Lead Managers (collectively, the
"Lead Managers") and THE CHASE MANHATTAN BANK, a New York banking corporation
- --------------
formerly known as Chemical Bank, as agent for the Banks hereunder (in such
capacity, the "Agent") and as CAF Loan agent (in such capacity, the "CAF Loan
----- --------
Agent").
- -----
W I T N E S S E T H :
--------------------
WHEREAS, for the convenience of the parties to the agreement and
amendment dated as of February 28, 1996 (the "February 1996 Agreement and
---------------------------
Amendment"), among the Company, the several banks and other financial
- ---------
institutions from time to time parties thereto and Chase, as agent for the Banks
hereunder and as CAF Loan Agent, a composite conformed copy (the "Five-Year
---------
Composite Conformed Credit Agreement") of the Credit Agreement, dated as of
- ------------------------------------
February 10, 1994 as incorporated by reference into and amended by the September
1994 Agreement and Amendment, the February 1995 Agreement and Amendment and the
February 1996 Agreement and Amendment was prepared and delivered to such
parties;
WHEREAS, the February 1997 Five-Year Agreement and Amendment adopts
and incorporates by reference all of the terms and provisions of the Five-Year
Composite Conformed Credit Agreement, subject to the amendment thereto provided
for in the February 1997 Five-Year Agreement and Amendment.
WHEREAS, the parties hereto wish to amend certain provisions of the
February 1997 Five-Year Agreement and Amendment on the terms set forth herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
1. Definitions. Unless otherwise defined herein, terms defined in
-----------
the February 1997 Five-Year Agreement and Amendment shall be used as so defined.
2
2. Amendments to the February 1997 Five-Year Agreement and Amendment.
-----------------------------------------------------------------
(a) SECTION 3 of the February 1997 Five-Year Agreement and Amendment
is hereby amended by deleting the defined term "Agreement" in its entirety and
substituting in lieu thereof the following new defined term:
"`Agreement': the Five-Year Composite Conformed Credit Agreement
---------
as adopted and incorporated by reference into, and as amended by, the
February 1997 Five-Year Agreement and Amendment and as further
amended, supplemented or otherwise modified from time to time."
(b) The February 1997 Five-Year Agreement and Amendment is hereby
amended by deleting Section 7 thereof in its entirety and substituting in lieu
thereof the following new Section 7:
"SECTION 7. Litigation. For purposes of this Agreement, subsection
----------
3.6 of the Composite Conformed Credit Agreement as adopted and incorporated
by reference into this Agreement is hereby amended by deleting such
subsection in its entirety and substituting in lieu thereof the following:
`3.6 Litigation. Except as disclosed in the Company's Annual Report
----------
on Form 10-K for its fiscal year ended December 31, 1996 and its Quarterly
Report on Form 10-Q for its fiscal quarter ended March 31, 1997, in each
case as filed with the Securities and Exchange Commission and previously
distributed to the Banks, and except as set forth on Schedule VI hereto,
there is no litigation, at law or in equity, or any proceeding before any
federal, state, provincial or municipal board or other governmental or
administrative agency pending or to the knowledge of the Company threatened
which, after giving effect to any applicable insurance, may involve any
material risk of a material adverse effect on the business or assets or on
the condition, financial or otherwise, of the Company and its Subsidiaries
on a consolidated basis or which seeks to enjoin the consummation of any of
the transactions contemplated by this Agreement or any other Loan Document
and involves any material risk that any such injunction will be issued, and
no judgment, decree, or order of any federal, state, provincial or
municipal court, board or other governmental or administrative agency has
been issued against the Company or any Subsidiary which has, or may
involve, a material risk of a material adverse effect on the business or
assets or on the condition, financial or otherwise, of the Company and its
Subsidiaries on a consolidated basis. The Company does not believe that
the final resolution of the matters disclosed in its Annual Report on Form
10-K for its fiscal year ended December 31, 1996 and its Quarterly Report
on Form 10-Q for its fiscal quarter ended March 31, 1997, in each case as
filed with the Securities and Exchange Commission and previously
distributed to the Banks, and of the matters set forth on Schedule VI
hereto will have a material adverse effect on the business or assets or
condition, financial or otherwise, of the Company and its Subsidiaries on a
consolidated basis.'".
3
(c) The February 1997 Five-Year Agreement and Amendment is hereby
amended by adding the following new paragraph after Section 8 reading as
follows:
"SECTION 8A. Ratio of Total Debt to Tangible Net Worth. Subsection
-----------------------------------------
5.6 of the Five-Year Composite Conformed Credit Agreement as adopted and
incorporated by reference into this February 1997 Five-Year Agreement and
Amendment is hereby amended by deleting such subsection in its entirety and
substituting in lieu thereof the following:
`5.6 Ratio of Total Debt to Tangible Net Worth. At any time after
-----------------------------------------
March 31, 1997 the Company and its Subsidiaries will not at any such time
have outstanding Consolidated Total Debt in an amount in excess of 300% of
Consolidated Tangible Net Worth.'"
(d) Schedules II and III to the February 1997 Five-Year Agreement and
Amendment are hereby amended by deleting Schedules II and III in their entirety
and substituting in lieu thereof Schedules II and III attached hereto as
Schedule II and III, respectively.
3. Effective Date; Conditions Precedent. This First Amendment will
------------------------------------
become effective on June 17, 1997 (the "Effective Date") subject to the
--------------
compliance by the Company with its agreements herein contained and to the
satisfaction on or before the Effective Date of the following further
conditions:
(a) Loan Documents. The Agent shall have received copies of this
--------------
First Amendment, executed and delivered by a duly authorized officer of the
Company, with a counterpart for each Bank, and executed and delivered by
the Required Lenders.
(b) Company Officers' Certificate. The representations and
-----------------------------
warranties contained in Section 3 of the Five-Year Composite Conformed
Credit Agreement as adopted and incorporated by reference into, and as
amended by, the February 1997 Five-Year Agreement and Amendment shall be
true and correct on the Effective Date with the same force and effect as
though made on and as of such date; on and as of the Effective Date and
after giving effect to this First Amendment, no Default shall have occurred
(except a Default which shall have been waived in writing or which shall
have been cured); and the Agent shall have received a certificate
containing a representation to these effects dated the Effective Date and
signed by a Responsible Officer.
4. Legal Obligation. The Company represents and warrants to each
----------------
Bank that this First Amendment constitutes the legal, valid and binding
obligation of the Company, enforceable against it in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyances,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
4
5. Continuing Effect. Except as expressly amended hereby, the
-----------------
February 1997 Five-Year Agreement and Amendment shall continue to be and shall
remain in full force and effect in accordance with its terms.
6. Expenses. The Company agrees to pay or reimburse the Agent for
--------
all of its reasonable out-of-pocket costs and expenses incurred in connection
with the development, preparation and execution of, and any amendment,
supplement or modification to, this First Amendment and any other documents
prepared in connection herewith, and the consummation of the transactions
contemplated hereby and thereby, including, without limitation, the reasonable
fees and disbursements of counsel to the Agent.
7. GOVERNING LAW. THIS FIRST AMENDMENT AND THE RIGHTS AND
-------------
OBLIGATIONS OF THE PARTIES UNDER THIS FIRST AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8. Counterparts. This First Amendment may be executed by one or
------------
more of the parties to this First Amendment on any number of separate
counterparts and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of this First
Amendment signed by all the parties shall be lodged with the Company and the
Agent.
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
COLUMBIA/HCA HEALTHCARE CORPORATION
By: /s/ David G. Anderson
----------------------
Name: David G. Anderson
Title: Vice President - Finance and
Treasurer
THE CHASE MANHATTAN BANK, as Agent, as CAF
Loan Agent and as a Bank
By: /s/ Dawn Lee Lum
----------------
Name: Dawn Lee Lum
Title: Vice President
ABN AMRO BANK N.V., as a Bank
By: /s/ Larry Kelley
----------------
Name: Larry Kelley
Title: Group Vice President
By: /s/ Steven Hipsman
------------------
Name: Steven Hipsman
Title: Vice President
ARAB BANK PLC, GRAND CAYMAN BRANCH,
as a Bank
By: /s/ Nofal S. Barbar
-------------------
Name: Nofal S. Barbar
Title: EVP & Regional Manager
BANCA MONTE DEI PASCHI DI SIENA SpA,
as a Bank
By: /s/ G. Natalicchi
-----------------
Name: G. Natalicchi
Title: S.V.P. & General Manager
By: /s/ S.M. Sondak
---------------
Name: S.M. Sondak
Title: F.V.P. & Dep. General Manager
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, as a Co-Agent and as a Bank
By: /s/ Anthony L. Trunzo
---------------------
Name: Anthony L. Trunzo
Title:
THE BANK OF NEW YORK, as a Co-Agent
and as a Bank
By: /s/ Ann Marie Hughes
--------------------
Name: Ann Marie Hughes
Title: Assistant Vice President
THE BANK OF NOVA SCOTIA, as a Bank
By: /s/ W.J. Brown
--------------
Name: W.J. Brown
Title: Vice President
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
as a Bank
By: /s/ Douglas J. Weir
-------------------
Name: Douglas J. Weir
Title: Vice President
BANQUE NATIONALE DE PARIS -
Houston Agency, as a Bank
By: /s/ David P. Camp
-----------------
Name: David P. Camp
Title: Banking Officer
BARNETT BANK, N.A., as a Bank
By: /s/ Bradley M. Harrell
----------------------
Name: Bradley M. Harrell
Title: Senior Vice President
CITIBANK, N.A., as a Bank
By: /s/ Margaret Au Brown
---------------------
Name: Margaret Au Brown
Title: Managing Director
CORESTATES BANK, N.A., as a Bank
By: /s/ Elizabeth D. Morris
-------------------------
Name: ELizabeth D. Morris
Title: Vice President
CRESTAR BANK, as a Bank
By: /s/ C. Gray Key
---------------
Name: C. Gray Key
Title: Vice President
THE DAI-ICHI KANGYO BANK, LIMITED,
ATLANTA AGENCY, as a Bank
By: /s/ Tatsuji Noguchi
-------------------
Name: Tatsuji Noguchi
Title: Joint General Manager
DEN DANSKE BANK AKTIESELSKAB, as a Bank
CAYMAN ISLANDS BRANCH c/o New York Branch
By: /s/ Mogens Sondergaard
----------------------
Name: Mogens Sondergaard
Title: Vice President
By: /s/ George B. Wendell
---------------------
Name: George B. Wendell
Title: Vice President
DEUTSCHE BANK AG, NEW YORK AND/OR CAYMAN
ISLANDS BRANCH, as a Co-Agent and as
a Bank
By: /s/ Alka Jain Goyal
-------------------
Name: Alka Jain Goyal
Title: Assistant Vice President
By: /s/ Iain Stewart
----------------
Name: Iain Stewart
Title: Vice President
FIRST AMERICAN NATIONAL BANK, as a Bank
By: /s/ Sandy Hamrick
-----------------
Name: Sandy Hamrick
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO,
as a Bank
By: /s/ Jay G. Sepanski, as Authorized Agent
----------------------------------------
Name: Jay G. Sepanski
Title: Assistant Vice President
FLEET NATIONAL BANK, as a Co-Agent and
as a Bank
By: /s/ Amy E. Fredericks
---------------------
Name: Amy E. Fredericks
Title: Senior Vice President
THE FUJI BANK LIMITED, as a Co-Agent and
as a Bank
By: /s/ Toshihiro Mitsui
--------------------
Name: Toshihiro Mitsui
Title: Vice President and Manager
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
ATLANTA AGENCY, as a Co-Agent and as a Bank
By: /s/ Kazuo Iida
--------------
Name: Kazuo Iida
Title: General Manager
KEYBANK NATIONAL ASSOCIATION, as a Bank
By: /s/ Thomas Purcell
------------------
Name: Thomas Purcell
Title: Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION, as a Bank
By: /s/ Patricia Loret de Mola
--------------------------
Name: Patricia Loret de Mola
Title: Senior Vice President
THE MITSUI TRUST AND BANKING COMPANY,
LIMITED, NEW YORK BRANCH, as a Bank
By: /s/ Margaret Holloway
---------------------
Name: Margaret Holloway
Title: Vice President & Manager
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
as a Co-Agent and as a Bank
By: /s/ Penelope J.B. Cox
---------------------
Name: Penelope J.B. Cox
Title: Vice President
NATIONAL CITY BANK OF KENTUCKY, as a Bank
By: /s/ Deroy Scott
---------------
Name: Deroy Scott
Title: Vice President
NATIONSBANK, N.A. as a Co-Agent and as
a Bank
By: /s/ Kevin Wagley
----------------
Name: Kevin Wagley
Title: Vice President
THE NORINCHUKIN BANK, NEW YORK BRANCH, as
a Bank
By: /s/ Takeshi Akimoto
-------------------
Name: Takeshi Akimoto
Title: General Manager
THE NORTHERN TRUST COMPANY, as a Bank
By: /s/ James F.T. Monhart
----------------------
Name: James F.T. Monhart
Title: Vice President
PNC BANK, KENTUCKY, INC. as a Co-Agent and
as a Bank
By: /s/ Kathryn M. Bohr
-------------------
Name: Kathryn M. Bohr
Title: Vice President
THE SAKURA BANK, LTD. NEW YORK BRANCH,
as a Lead Manager and as a Bank
By: /s/ Yasumasa Kikuchi
--------------------
Name: Yasumasa Kikuchi
Title: Senior Vice President
THE SUMITOMO BANK, LIMITED, as a
Lead Manager and as a Bank
By: /s/ Masayuki Fukushima
----------------------
Name: Masayuki Fukushima
Title: Joint General Manager
THE SUMITOMO TRUST & BANKING CO., LTD.,
NEW YORK BRANCH, as a Bank
By: /s/ Suraj P. Bhatia
-------------------
Name: Suraj P. Bhatia
Title: Senior Vice President
Manager, Corporate Finance Dept.
SUNTRUST BANK, NASHVILLE, N.A., as a
Lead Manager and as a Bank
By: /s/ Mark D. Mattson
-------------------
Name: Mark D. Mattson
Title: Vice President
THE TOKAI BANK, LIMITED, NEW YORK BRANCH,
as a Bank
By: /s/ Stuart Schulman
-------------------
Name: Stuart Schulman
Title: Deputy General Manager
TORONTO DOMINION (TEXAS), INC., as a
Co-Agent and as a Bank
By: /s/ Lisa Allison
----------------
Name: Lisa Allison
Title: Vice President
THE TOYO TRUST & BANKING CO., LTD.,
as a Bank
By: /s/ K. Yamauchi
---------------
Name: K. Yamauchi
Title: Vice President
UNION BANK OF SWITZERLAND, NEW YORK BRANCH,
as a Co-Agent and as a Bank
By: /s/ Stephen A. Cayer
--------------------
Name: Stephen A. Cayer
Title: Assistant Vice President
By: /s/ Eduardo Salazar
-------------------
Name: Eduardo Salazar
Title: Vice President
UNION PLANTERS BANK OF MIDDLE
TENNESSEE, N.A.
By: /s/ Steven A. Koenig
--------------------
Name: Steven A. Koenig
Title: Vice President
WACHOVIA BANK OF GEORGIA, N.A., as a
Co-Agent and as a Bank
By: /s/ Charles Dee O'Dell II
-------------------------
Name: Charles Dee O'Dell II
Title: Vice President
WELLS FARGO BANK, N.A., as a Lead Manager
and as a Bank
By: /s/ David B. Hollingsworth
--------------------------
Name: David B. Hollingsworth
Title: Vice President
By: /s/ Rachel T. Uyama
-------------------
Name: Rachel T. Uyama
Title: Assistant Vice President
YASUDA TRUST AND BANKING, as a Bank
By: /s/ Price Chenault
------------------
Name: Price Chenault
Title: First Vice President