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EXHIBIT 99.3
AMENDMENT TO CREDIT AGREEMENT
This Amendment to Credit Agreement, dated as of March 31, 1994 (this
Amendment"), is made with reference to the Credit Agreement, dated as of
September 29, 1992 (the "Credit Agreement") by and among HEALTHTRUST, INC. --
THE HOSPITAL COMPANY, a Delaware corporation (the "Borrower"), the various
financial institutions parties thereto (collectively, the "Lenders"), THE BANK
OF NOVA SCOTIA ("Scotiabank") and ABN-AMRO BANK N.V., BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, THE CHASE MANHATTAN BANK, N.A., CITIBANK, N.A.,
CONTINENTAL BANK N.A., DEUTSCHE BANK AG, LTCB TRUST COMPANY, SWISS BANK
CORPORATION, and THE TORONTO-DOMINION BANK, as co-agents (the "Co-Agents") for
the Lenders, and Scotiabank, as administrative agent (in such capacity, the
"Administrative Agent") for the Co-Agents and the Lenders.
In consideration of the mutual covenants and agreements herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
herein shall have the meanings set forth in the Credit Agreement.
SECTION 2. Representations and Warranties. In order to induce the
Lenders, the Co-Agents and the Administrative Agent to enter into this
Amendment, the Borrower hereby covenants, represents and warrants that after
giving effect to this Amendment:
(a) No Default or Event of Default will exist under the
Credit Agreement or any other Loan Document;
(b) All representations and warranties of the Borrower
contained in the Credit Agreement and the other Loan Documents will be
true and correct in all material respects except to the extent such
representations and warranties specifically relate to an earlier date,
in which case they will be true and correct in all material respects
as of such earlier date; and
(c) The Borrower will be in compliance with, and will
thereafter continue to be in compliance with, all agreements,
affirmative covenants and negative covenants
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contained in the Credit Agreement and the other Loan Documents.
SECTION 3. Amendment. At the request of the Borrower, the undersigned
Co-Agents, Administrative Agent and the undersigned Lenders, constituting
Required Lenders, hereby amend clause (a) of the definition of "Cash Flow
Coverage Ratio" by adding the following proviso to the end thereof:
"provided, however, that there shall be excluded from the computation
of Cash Flow (for purposes of this definition only) Capital
Expenditures in an amount not to exceed $53,000,000 made in respect of
the acquisition of the Nashville Memorial Hospital located in or near
Madison, Tennessee;"
SECTION 4. Reference to and Effect on the Credit Agreement and the
Other Loan Documents.
(a) Except as specifically provided in this Amendment, the
Credit Agreement and the other Loan Documents shall remain in full
force and effect and are hereby ratified and confirmed.
(b) Without limiting the generality of the provisions of
Section 10.1 of the Credit Agreement, this Amendment does not
constitute, nor should it be construed as, a waiver of compliance by
the Borrower with respect to any other term, provision or condition of
the Credit Agreement or any other instrument or agreement referred to
therein.
(c) The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, constitute a waiver of
any provision of, or operate as a waiver of any right, power or remedy
of the Administrative Agent, any Co-Agent or any Lender under, the
Credit Agreement or any of the other Loan Documents.
SECTION 5. Counterparts. Multiple originals of this Amendment may be
executed in counterparts, all of which taken together shall constitute but a
single document. Signature pages may be detached from the counterpart
documents and reassembled to form duplicate executed originals.
SECTION 6. Effectiveness. This Amendment shall be effective upon
execution and delivery of this Amendment by the Borrower and the Required
Lenders and receipt by the Administrative Agent of written or telephonic
notification of such execution and authorization of delivery thereof.
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SECTION 7. Applicable Law. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO AND ALL OTHER ASPECTS HEREOF SHALL BE DEEMED
TO BE MADE UNDER, SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered by their authorized agents or representatives as of
the date first above written.
HEALTHTRUST, INC. -- THE HOSPITAL
COMPANY
By:
-------------------------------------
Title:
THE BANK OF NOVA SCOTIA, as
Administrative Agent, Co-Agent and
Lender
By:
-------------------------------------
Title:
ABN-AMRO BANK N.V.,
as Co-Agent and Lender
By:
-------------------------------------
Title:
By:
-------------------------------------
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Co-Agent
By:
-------------------------------------
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Lender
By:
-------------------------------------
Title:
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THE CHASE MANHATTAN BANK, N.A.,
as Co-Agent and Lender
By:
-------------------------------------
Title:
CITIBANK, N.A., as Co-Agent and Lender
By:
-------------------------------------
Title:
CONTINENTAL BANK N.A., as Co-Agent
and Lender
By:
-------------------------------------
Title:
DEUTSCHE BANK AG, New York and/or
Cayman Islands Branch, as Co-Agent
and Lender
By:
-------------------------------------
Title:
By:
-------------------------------------
Title:
LTCB TRUST COMPANY, as Co-Agent
and Lender
By:
-------------------------------------
Title:
SWISS BANK CORPORATION, as Co-Agent
and Lender
By:
-------------------------------------
Title:
By:
-------------------------------------
Title:
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THE TORONTO-DOMINION BANK, as Co-
Agent and Lender
By:
-------------------------------------
Title:
BANK OF CALIFORNIA, N.A.
By:
-------------------------------------
Title:
CHEMICAL BANK
By:
-------------------------------------
Title:
SHAWMUT BANK CONNECTICUT, N.A.
By:
-------------------------------------
Title:
CREDITANSTALT BANKVEREIN
By:
-------------------------------------
Title:
By:
-------------------------------------
Title:
THE DAIWA BANK, LIMITED
By:
-------------------------------------
Title:
By:
-------------------------------------
Title:
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DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCH
By:
-------------------------------------
Title:
By:
-------------------------------------
Title:
FIRST AMERICAN NATIONAL BANK
By:
-------------------------------------
Title:
THE FIRST NATIONAL BANK OF BOSTON
By:
-------------------------------------
Title:
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA
By:
-------------------------------------
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
-------------------------------------
Title:
MIDLAND BANK plc, NEW YORK BRANCH
By:
-------------------------------------
Title:
MITSUI LEASING (U.S.A.) INC.
By:
-------------------------------------
Title:
NATIONSBANK
By:
-------------------------------------
Title:
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PNC BANK
By:
-------------------------------------
Title:
THE SAKURA BANK, LIMITED
By:
-------------------------------------
Title:
SUMITOMO BANK, LTD.
By:
-------------------------------------
Title:
THIRD NATIONAL BANK IN NASHVILLE
By:
-------------------------------------
Title:
UNITED STATES NATIONAL BANK OF OREGON
By:
-------------------------------------
Title:
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[EXECUTION COPY]
AMENDMENT NO. 2 TO CREDIT AGREEMENT
This AMENDATORY AGREEMENT, dated as of May 4, 1994, to the Credit
Agreement, dated as of September 29, 1992 (as amended by the Amendment, dated
March 31, 1994 thereto, the "Existing Credit Agreement") by and among
HEALTHTRUST, INC. - THE HOSPITAL COMPANY, a Delaware corporation (the
"Borrower"), the various financial institutions parties thereto (collectively,
the "Lenders"), THE BANK OF NOVA SCOTIA ("Scotiabank") and ABN AMRO BANK N.V.,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, THE CHASE MANHATTAN
BANK, N.A., CITIBANK, N.A., CONTINENTAL BANK N.A., DEUTSCHE BANK AG, LTCB TRUST
COMPANY, SWISS BANK CORPORATION, and THE TORONTO-DOMINION BANK, as co-agents
(the "Co-Agents") for the Lenders, and Scotiabank, as administrative agent (in
such capacity, the "Administrative Agent") for the Co-Agents and the Lenders.
WITNESSETH:
WHEREAS, the Borrower wishes to (a) acquire EPIC Holdings, Inc., a
Delaware corporation, and its subsidiaries (collectively, "EPIC"), and
contemporaneously therewith merge a wholly-owned special purpose subsidiary of
the Borrower with and into EPIC, provide funds to EPIC and its subsidiaries to
refinance EPIC's existing credit agreement (the "EPIC Credit Agreement") and to
redeem EPIC's 11 7/8% Senior ESOP Notes due September 30, 1998 (the "Senior
ESOP Notes") and permit the remaining EPIC indebtedness to remain outstanding
(collectively, the "EPIC Transaction") and (b) acquire Holy Cross Hospital of
Salt Lake City, Holy Cross-Jordan Valley Hospital and St. Benedict's Hospital
from Holy Cross Health Services of Utah (collectively, the "Other
Transactions"); and
WHEREAS, in connection with the EPIC Transaction and the Other
Transactions, the Borrower will sell shares of its common stock in a registered
public stock offering and will receive proceeds from the exercise of certain
outstanding warrants for its common stock (the "Public Offering") and issue a
new series of subordinated notes in a registered public offering (the "Note
Offering"); and
WHEREAS, in connection with the EPIC Transaction, the Other
Transactions, the Public Offering and the Note Offering, the Borrower desires
to (a) restructure the indebtedness under the Existing Credit Agreement as a
$310,000,000 revolving credit facility in accordance with the terms set forth
below (the "Credit Agreement Restructuring"; the EPIC Transaction, the Other
Transactions, the Public Offering, the Note Offering and the
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Credit Agreement Restructuring are collectively referred to as the
"Transaction"; and the Existing Credit Agreement as so restructured being the
"Credit Agreement") and (b) in connection therewith obtain from Scotiabank a
Revolving Loan Commitment pursuant to which Revolving Loans and Letters of
Credit in a maximum aggregate amount not to exceed $310,000,000 will be made or
issued, as the case may be, from time to time (provided, that of such amount,
no more than $100,000,000 shall be available for the issuance of Letters of
Credit); and
WHEREAS, Scotiabank is willing on the terms and conditions hereinafter
set forth to extend such Revolving Loan Commitment:
NOW, THEREFORE, in consideration of the agreements herein contained,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Definitions. Unless otherwise defined herein or
the context otherwise requires, terms used in this Amendatory Agreement,
including its preamble and recitals, have the following meanings (such meanings
to be equally applicable to the singular and plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Amendment No. 2" means this Amendatory Agreement.
"Amendment No. 2 Effective Date" is defined in Section 3.1.
"Borrower" is defined in the preamble.
"Co-Agents" is defined in the preamble.
"Credit Agreement" is defined in the third recital.
"Credit Agreement Restructuring" is defined in the third recital.
"EPIC" is defined in the first recital.
"EPIC Credit Agreement" is defined in the first recital.
"EPIC Transaction" is defined in the first recital.
"Existing Credit Agreement" is defined in the preamble.
"Lenders" is defined in the preamble.
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"Master Assignment Agreement" means that certain Assignment Agreement,
dated as of April 26, 1994, between the Lenders party to this Agreement,
collectively as assignor, and Scotiabank, as assignee.
"Note Offering" is defined in the second recital.
"Other Transactions" is defined in the first recital.
"Public Offering" is defined in the second recital.
"Scotiabank" is defined in the preamble.
"Senior ESOP Notes" is defined in the first recital.
"Transactions" is defined in the third recital.
SECTION 1.2. Other Definitions. Unless otherwise defined herein or
the context otherwise requires, terms used in this Amendatory Agreement,
including its preamble and recitals, have the meanings provided in the Existing
Credit Agreement.
ARTICLE II
AMENDMENTS TO EXISTING CREDIT AGREEMENT AS OF
THE AMENDMENT NO. 2 EFFECTIVE DATE
Effective on (and subject to the occurrence of) the Amendment No. 2
Effective Date, the Existing Credit Agreement is hereby amended in accordance
with this Article II. Except as so amended, the Existing Credit Agreement
shall continue in full force and effect.
SECTION 2.1. Amendments to the Credit Agreement.
SECTION 2.1.1. Amendments to Section 1.1. Article I of the Existing
Credit Agreement is hereby amended as follows:
(a) Section 1.1 of the Existing Credit Agreement is hereby
amended by inserting the following new terms in their alphabetically
appropriate places:
"Amendment Fee Letter" means the fee letter, dated
as of May 4, 1994.
"Amendment No. 2" means the Amendatory Agreement,
dated as of May 4, 1994, among the parties thereto, amending
this Agreement as then in effect.
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"Amendment No. 2 Effective Date" is defined in
Section 3.1 of Amendment No. 2.
"Borrower Effective Date Cash on Hand" means cash of
the Borrower on the Amendment No. 2 Effective Date in an
amount at least equal to $180,000,000 which will be used to
pay in part the cash consideration of the Transaction.
"CMOs" means each of the 11 3/8% Class B-1 First
Priority Mortgage Notes due 2001, the 11 1/2% Class B-2 First
Priority Mortgage Notes due 1998 and the Floating Rate Class
B-3 First Priority Mortgage Notes due 1998 of EPIC Properties,
Inc. together with the indenture and guaranty relating
thereto.
"Consent and Tender Document" means the Offer to
Purchase and Consent Solicitation of EPIC, EPIC Healthcare
Group, Inc. and EPIC Properties, Inc. dated March 15, 1994.
"Continuing EPIC Debt" means the 11% Junior
Subordinated Pay-in-Kind Notes due 2003 and the Zero Coupon
Notes due 2001 of EPIC Healthcare Group, Inc., the 10-7/8%
Senior Subordinated Notes due 2003 and the 12% Senior Deferred
Coupon Notes due 2002 of EPIC and the CMOs.
"EPIC" means EPIC Holdings, Inc., a Delaware
corporation.
"EPIC Credit Agreement" means that certain Second
Amended and Restated Credit Agreement, dated as of September
30, 1988 and Amended and Restated as of July 31, 1991 and
September 1, 1993 among EPIC Healthcare Group, Inc., various
lenders and General Electric Capital Corporation, as
administrative agent.
"EPIC Transaction" means, collectively, (i) the
acquisition of EPIC and its Subsidiaries and the
contemporaneous merger of a wholly-owned special purpose
subsidiary of the Borrower with and into EPIC, (ii) the
provision of funds to EPIC and its Subsidiaries to refinance
the EPIC Credit Agreement and to redeem the Senior ESOP Notes
and (iii) the actions necessary to permit the Continuing EPIC
Debt to remain outstanding.
"Existing Healthtrust Subordinated Debenture
Indenture" means the Indenture, dated as of March 30, 1993
between the Borrower and The First National Bank
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of Boston, as trustee, pursuant to which the Existing
Healthtrust Subordinated Debentures were issued as amended,
supplemented or otherwise modified from time to time in
accordance with Section 7.2.11.
"Existing Healthtrust Subordinated Debentures" means
the $300,000,000 aggregate principal amount of 8-3/4%
Subordinated Debentures due 2005 issued by the Borrower
pursuant to the Existing Healthtrust Subordinated Debenture
Indenture.
"Existing Healthtrust Subordinated Note Indenture"
means the Indenture, dated as of May 1, 1992, between the
Borrower and The First National Bank of Boston, as trustee,
pursuant to which the Existing Healthtrust Subordinated Notes
were issued as amended, supplemented or otherwise modified
from time to time in accordance with Section 7.2.11.
"Existing Healthtrust Subordinated Notes" means the
$500,000,000 aggregate principal amount of 10-3/4%
Subordinated Notes due 2002 issued by the Borrower pursuant to
the Existing Healthtrust Subordinated Note Indenture.
"Good Faith Contest" means the contest of any dispute
or inquiry if (a) the dispute or inquiry is diligently
contested in good faith by appropriate proceedings timely
instituted; (b) adequate reserves are established with respect
to the contested dispute or inquiry; (c) during the period of
such contest, the enforcement of the contested item is
effectively stayed and (d) the failure to pay or comply with
the contested item during the period of such contest is not
reasonably likely to result in a Material Adverse Effect.
"Minority Subsidiaries" means, at any time, those
Subsidiaries of the Borrower (other than EPIC and its
Subsidiaries) which do not individually or in the aggregate
account for more than 5% of the consolidated net revenues or
more than 5% of the consolidated net assets of the Borrower
and its Subsidiaries (in each case as calculated on the
Amendment No. 2 Effective Date and thereafter for the
Borrower's most recent Fiscal Year end).
"1994 Credit Agreement" means that certain Credit
Agreement, dated as of April 28, 1994, among the Borrower,
certain financial institutions, the co-agents for such
financial institutions and Scotiabank as the
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administrative agent for such financial institutions and co-
agents.
"Note Offering" means the issuance by the Borrower
of the Subordinated Notes.
"Public Offering" means the issuance of Common Stock
in a registered public stock offering and the receipt by the
Borrower of proceeds from the exercise of certain outstanding
warrants for Common Stock.
"Registration Statements" means the Borrower's
Registration Statements, each on a Form S-3 as filed with the
Securities and Exchange Commission in connection with the Note
Offering and the Public Offering.
"Senior ESOP Notes" means the 11-7/8% Senior ESOP
Notes due September 30, 1998 of EPIC Healthcare Group, Inc.
"Total Debt to EBITDA Coverage Ratio" means, as at
any date of determination thereof, the ratio of (a) the total
principal amount of consolidated Indebtedness of the Borrower
and its Subsidiaries outstanding on such date of determination
to (b) EBITDA for the four consecutive Fiscal Quarter period
ending on or prior to such date of determination (or for such
lesser number of whole Fiscal Quarters which have ended since
the Amendment No. 2 Effective Date on an annualized basis).
(b) The term "Capital Expenditures is hereby amended in its
entirety to read as follows:
"Capital Expenditures" means, for any period, the
aggregate amount (without duplication) of all expenditures,
whether paid in cash or other consideration other than Common
Stock, (including the incurrence of Capitalized Lease
Liabilities) of the Borrower and its Subsidiaries during such
period to acquire fixed or capital assets made during such
period which, in accordance with GAAP, would be classified as
capital expenditures; provided, however, that there shall be
excluded from Capital Expenditures (x) Investments permitted
under clauses (d) and (g) of Section 7.2.5 and (y) Capital
Expenditures financed with Net Equity Proceeds specifically
designated for such purpose.
(c) The terms "Cash Flow" and "Cash Flow Coverage Ratio" are
hereby amended to read in their entirety as follows:
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"Cash Flow" means, for any Fiscal Quarter, the sum
for such Fiscal Quarter of
(a) EBITDA for such Fiscal Quarter;
minus
(b) all federal, state and foreign income taxes actually paid
by the Borrower and its Subsidiaries during such Fiscal Quarter;
minus
(c) the amount of Capital Expenditures for such Fiscal
Quarter.
"Cash Flow Coverage Ratio" means, for any Fiscal Quarter, the ratio
computed for the period of four consecutive Fiscal Quarters, ending on the
close of such Fiscal Quarter (or, if less, for the period of such lesser number
of whole Fiscal Quarters to have elapsed since the Closing Date of:
(a) Cash Flow for all such Fiscal Quarters; provided,
however, that the amount of Capital Expenditures used in the
computation of Cash Flow for the final Fiscal Quarter of 1994 shall be
calculated by dividing (i) the sum of all amounts of Capital
Expenditures for 1994 by (ii) 4;
to
(b) the sum for all such Fiscal Quarters of
(i) Net Interest Expense;
plus
(ii) the amount expended (other than in connection
with the Transaction) by the Borrower or its Subsidiaries
during such Fiscal Quarters in respect of the redemption,
retirement or other acquisition of Subordinated Debt other
than from the proceeds of Refunding Indebtedness or Net
Equity Proceeds."
(d) The term "Commitment" is hereby amended to read in its
entirety as follows:
"Commitment" means the Revolving Loan Commitment.
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(e) The term "Commitment Amount" is hereby amended to read in
its entirety as follows:
"Commitment Amount" means the Revolving Loan
Commitment Amount.
(f) The term "Commitment Letter" is hereby deleted in its
entirety.
(g) The term "Commitment Termination Date" is hereby amended
to read in its entirety as follows:
"Commitment Termination Date" means the Revolving
Loan Commitment Termination Date.
(h) The term "Existing Subordinated Debt" is hereby amended
in its entirety to read as follows:
"Existing Subordinated Debt" means, collectively, the
Existing Healthtrust Subordinated Notes and the Existing
Healthtrust Subordinated Debentures.
(i) The term "Indentures" is hereby amended in its entirety
to read as follows:
"Indentures" means, collectively, the Existing
Healthtrust Subordinated Note Indenture and the Existing
Healthtrust Subordinated Debenture Indenture.
(j) The term "Interest Coverage Ratio" is hereby amended in
its entirety to read as follows:
"Interest Coverage Ratio" means as of the last day of
any Fiscal Quarter, the ratio computed for the period of four
consecutive Fiscal Quarters, ending on the close of such
Fiscal Quarter (or, if less, for the period of such lesser
number of whole Fiscal Quarters to have elapsed since the
Amendment No. 2 Effective Date) of:
(a) EBITDA for such period
to
(b) Net Interest Expense for such period.
(k) The term "Investment" is hereby amended in its entirety
to read as follows:
"Investment" means (i) any investment in any Person,
whether by means of share purchase, capital,
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equity or similar contribution, loan, advance, time deposit or
otherwise (excluding commission, travel and similar advances
to officers and employees made in the ordinary course of
business), (ii) without duplication of clause (i), becoming a
party to any joint venture or partnership or (iii) without
duplication of clause (i) or (ii), an acquisition (whether by
purchase, lease or otherwise) of a Facility or any Person
owning, leasing or managing a Facility whether through share
purchase or otherwise; provided, however, that the term
"Investment" shall not include the contribution of an asset
which is not a Facility by the Borrower to a not-for-profit
corporation or other not-for-profit entity. The amount of any
Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon (and
without adjustment by reason of the financial condition of
such other Person) and shall, if made by the transfer or
exchange of property other than cash, be deemed to have been
made in an original principal or capital amount equal to the
book value of such property.
(l) The term "Loan Document" is hereby amended by adding the
words "and Amendment Fee Letter" after the words "Fee Letter" appearing
in the eighth line of such definition.
(m) The term "Material Adverse Effect" is hereby amended in
its entirety to read as follows:
"Material Adverse Effect" means a material adverse
effect on (i) the business, operations, properties, assets or
condition (financial or otherwise) of the Borrower and its
Subsidiaries, taken as a whole, (ii) the ability of the
Borrower to perform its Obligations or (iii) the ability of
one or more Subsidiaries of the Borrower, which Subsidiaries,
individually or in the aggregate, account for more than 5.0%
of the consolidated net revenues or more than 5.0% of the
consolidated net assets of the Borrower (as calculated as of
the Amendment No. 2 Effective Date until August 31, 1994 and
thereafter for the Borrower's most recent Fiscal Year end) to
perform their respective Obligations.
(n) The term "Net Income" is hereby amended in its entirety
to read as follows:
"Net Income" means, for any period, all amounts
which, in accordance with GAAP, would be included as net
income on the consolidated statements of income of
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the Borrower and its Subsidiaries for such period; provided,
however, that such amount shall exclude (i) extraordinary
gains and extraordinary non-cash losses and (ii) non-cash
gains and non-cash losses relating to asset sales,
dispositions and write-downs.
(o) The term "Net Worth" is hereby amended in its entirety to
read as follows:
"Net Worth" means, at any time, all amounts which, in
accordance with GAAP, would be included under shareholders'
equity on a consolidated balance sheet of the Borrower and its
Subsidiaries at such time; provided, however, that if the
Borrower has repurchased any of its Common Stock pursuant to
clause (a)(iii) of Section 7.2.6, Net Worth shall include an
amount equal to the lesser of (i) the amount of Common Stock
the Borrower intends to contribute within the next twelve
months pursuant to clause (a)(iii) of Section 7.2.6 to the
extent that such contribution would receive recognition in
accordance with GAAP if it were in fact contributed on the
date of determination and (ii) 75% of the market value of the
Borrower's Common Stock held in its treasury and available for
any future planned contributions.
(p) The term "Reference Lenders" is hereby amended in its
entirety to read as follows:
"Reference Lenders" means, Scotiabank or such other
Lender or Lenders as may be agreed to by the Borrower and the
Required Lenders.
(q) The term "Revolving Loan Commitment Amount" is hereby
amended in its entirety to read as follows:
"Revolving Loan Commitment Amount" means, on any
date, $310,000,000; provided, however, that such amount shall
be reduced from time to time pursuant to Section 2.4.
(r) The term "Revolving Loan Commitment Termination Date" is
hereby amended in its entirety to read as follows:
"Revolving Loan Commitment Termination Date" means
the earliest of
(a) 5:00 p.m., New York City time, on May 12,
1994, unless extended pursuant to Section 2.10;
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(b) the date on which the Revolving Loan
Commitment Amount is terminated in full or reduced to
zero pursuant to Section 2.4; and
(c) the date on which any Commitment
Termination Event occurs.
Upon the occurrence of any event described in clause (b) or
(c), the Revolving Loan Commitment shall terminate
automatically and without any further action.
(s) The term "Solvent" is hereby amended in its entirety to
read as follows:
"Solvent", as applied to any Person, means, as at the
date of determination, that (i) the then fair saleable value
of the property of such Person is (A) greater than the total
amount of liabilities (including Contingent Liabilities) of
such Person and (B) greater than the amount that will be
required to pay the probable liabilities of such Person's then
existing debts as they become absolute and matured, (ii) such
Person's capital is not unreasonably small in relation to its
business or any contemplated or undertaken transaction and
(iii) such Person does not intend to incur, or does not
believe or should not reasonably believe that it will incur,
debts beyond its ability to pay such debts as they become due.
(t) The term "Stated Maturity Date" is hereby amended in its
entirety to read as follows:
"Stated Maturity Date" means for each Loan, May 12,
1994, except as otherwise extended upon written request
pursuant to Section 2.10.
(u) The term "Subordinated Debt" is hereby amended by
deleting the first clause thereof and inserting in its place the
following new clause (i):
"(i) The Existing Healthtrust Subordinated Notes, the
Existing Healthtrust Subordinated Debentures and the
Subordinated Notes".
(v) The term "Subordinated Note Indenture" is hereby deleted
in its entirety.
(w) The term "Subordinated Notes" is hereby amended in its
entirety to read as follows:
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"Subordinated Notes" means the $200,000,000 aggregate
principal amount of 10 1/4% Subordinated Notes issued by the Borrower
pursuant to the Existing Healthtrust Subordinated Note Indenture.
(x) The terms "Applicable Discount", "Current Ratio",
"Delayed Term Loan", "Delayed Term Loan Commitment", "Delayed Term
Loan Commitment Amount", "Delayed Term Loan Commitment Termination
Date", "Guaranteed Subordinated Debentures", "Guaranteed Subordinated
Debenture Indenture", "Maximum Leverage Ratio", "Senior Subordinated
Debenture Indentures", "Senior Subordinated Debenture Indenture
Amendment", "Senior Subordinated Debentures", "Senior Subordinated
Indenture", "Term Loan", "Term Loan Commitment", "Term Loan Commitment
Amount", "Term Loan Commitment Termination Date", "Zero Guaranteed
Subordinated Debenture Indenture" and "Zero Guaranteed Subordinated
Debentures" are hereby deleted.
SECTION 2.1.2. Amendment to Article II. Article II of the Existing
Credit Agreement is hereby amended as follows:
(a) Section 2.1.1 of the Existing Credit Agreement is hereby
deleted in its entirety and replaced by the following:
"SECTION 2.1.1. Restructuring of Loans. Effective on
the Amendment No. 2 Effective Date, all loans outstanding
under the Existing Credit Agreement shall be restructured as
Revolving Loans and the Borrower shall repay all such loans to
the extent that the principal amount of such loans exceeds the
Revolving Loan Commitment less the then Letter of Credit
Outstandings."
(b) Section 2.1.2 of the Existing Credit Agreement is hereby
deleted in its entirety and replaced by the following:
SECTION 2.1.2. [Intentionally Omitted].
(c) Section 2.1.4 of the Existing Credit Agreement is hereby
amended by adding the parenthetical "(unless otherwise agreed to by
the relevant Issuer)" after the phrase "Revolving Loan Commitment
Termination Date" appearing therein.
(d) Sections 2.2.1 and 2.2.2 of the Existing Credit Agreement
are hereby deleted in their entirety and replaced by the following:
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SECTION 2.2.1. [Intentionally Omitted].
SECTION 2.2.2. [Intentionally Omitted].
(e) Clause (b) of Section 2.4 of the Existing Credit
Agreement is hereby deleted in its entirety and replaced by the
following:
(b) [Intentionally Omitted].
(f) Clause (c) of Section 2.4 of the Existing Credit
Agreement is hereby amended and restated in its entirety to read as
set forth below:
(c) The Revolving Loan Commitment Amount shall be
automatically terminated in full upon the date of the initial
credit extension under the 1994 Credit Agreement.
(g) Section 2.6 of the Existing Credit Agreement is hereby
amended by changing the dollar amount "$10,000,000" appearing therein
to "$5,000,000".
(h) A new Section 2.10 is hereby added to the Existing Credit
Agreement as follows:
"SECTION 2.10. Extension of Revolving Loan
Commitment Termination Date. Upon at least one Business Day's
prior written notice to the Administrative Agent, the Borrower
may, so long as no Default has occurred and is continuing,
extend the Revolving Loan Commitment Termination Date and the
Stated Maturity Date to May 4, 1995."
SECTION 2.1.3. Amendment to Article III. Article III of the Existing
Credit Agreement is hereby amended as follows:
(a) Section 3.1.2 of the Existing Credit Agreement is hereby
deleted in its entirety and replaced by the following:
SECTION 3.1.2. [Intentionally Omitted].
(b) Section 3.1.3 of the Existing Credit Agreement is hereby
deleted in its entirety and replaced by the following:
SECTION 3.1.3. [Intentionally Omitted].
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(c) Section 3.1.4 of the Existing Credit Agreement is hereby
amended by changing the reference to "clause (b)" in the third line of
such Section to "clause (c)".
(d) Section 3.1.5 of the Existing Credit Agreement is hereby
amended as follows:
(i) Clauses (a), (b) and (c) are hereby deleted and
replaced by the following:
"(a) to be applied (or held by the Administrative
Agent for application, as the case may be) to Obligations
outstanding under the Revolving Loan Commitments with a
commensurate and contemporaneous reduction of the
Revolving Loan Commitments;"; and
(ii) A new last sentence shall be added thereto to
read as follows:
"The Borrower shall, immediately upon the initial
credit extension made under the 1994 Credit Agreement,
make a mandatory prepayment of all outstanding Revolving
Loans.".
(e) Section 3.2.1 of the Existing Credit Agreement is hereby
amended as follows:
(i) Clauses (a) and (b) are hereby deleted and replaced
by the following:
"(a) Alternate Base Rate. On that portion of such
Borrowing maintained from time to time as a Base Rate
Loan, equal to the sum of the Alternate Base Rate from
time to time in effect plus 1/2 of 1%.
(b) LIBO Rate. On that portion maintained as a
LIBO Rate Loan, during each Interest Period applicable
thereto, equal to the sum of the LIBO Rate (Reserve
Adjusted) for such Interest Period plus 1 1/2%.", and
(ii) A new sentence is hereby added to the end
thereof to read as set forth below:
"All Borrowings of Revolving Loans made on or prior
to the seventh Business Day after the Amendment No. 2
Effective Date shall be made as Base Rate Loans.".
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(f) Clause (b) of Section 3.3.1. of the Existing Credit
Agreement is hereby amended by changing the reference to "1/2 of 1%"
to "3/8 of 1%".
(g) Clause (a) of Section 3.3.2 of the Existing Credit
Agreement is hereby amended in its entirety to read as follows:
"(a) The Borrower agrees to pay to the Administrative
Agent for the pro rata account of each Lender having a
Revolving Loan Commitment (including the Issuer), a
participation fee equal to 1-1/4% per annum of the Stated
Amount of each Letter of Credit. Such participation fee shall
accrue from the date of issuance of any Letter of Credit until
the date such Letter of Credit is drawn in full or terminated,
and shall be payable in arrears on each Quarterly Payment
Date."
(h) Section 3.3.3 of the Existing Credit Agreement is hereby
amended in its entirety to read as follows:
"SECTION 3.3.3. Fee Letter Fees. The Borrower agrees
to pay the fees in the amounts and at the times set forth in
the Fee Letter and the Amendment Fee Letter."
SECTION 2.1.4. Amendment to Section 5.2.1. Section 5.2.1 of the
Credit Agreement is hereby amended and restated in its entirety to read as set
forth below:
"SECTION 5.2.1. Compliance with Warranties, No Default, etc.
Both before and after giving effect to such Credit Extension (but, if
any Default of the nature referred to in Section 8.1.5 shall have
occurred with respect to any other Indebtedness, without giving effect
to the application, directly or indirectly, of the proceeds of any
Borrowing) the following statements shall be true and correct as of
the date of such Credit Extension:
(a) the representations and warranties set forth
in Article VI shall be true and correct in all material
respects with the same effect as if then made (unless stated
to relate solely 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); provided,
however, that the condition precedent set forth in this clause
(a) shall not be applicable to EPIC and its Subsidiaries and
shall be satisfied with respect to any representation or
warranty (i) made by the Borrower with respect to the
Subsidiary Guaranty, (ii) made by the Borrower with respect to
the
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Subsidiary Pledge Agreement, or any other Collateral
Document to which a Subsidiary of the Borrower is a party, or
the Pledged Subsidiary Debt, and (iii) otherwise made by the
Borrower with respect to a Subsidiary, unless (A) a Subsidiary
or Subsidiaries of the Borrower accounting for more than 5.0%
of the consolidated net revenues or more than 5.0% of the
consolidated assets of the Borrower, or the Subsidiary
Guaranty or Subsidiary Pledge Agreement, or such other
Collateral Documents, or the Pledged Subsidiary Debt, of such a
Subsidiary or Subsidiaries, are the subject of one or more
materially false representations or warranties of the types
described in this proviso (except that in making such
determination EPIC and its Subsidiaries shall be excluded from
such calculation), or (B) there otherwise exists a Material
Adverse Effect in connection with one or more materially false
representations or warranties of the types described in this
proviso; and
(b) no Default shall have then occurred and be
continuing.".
SECTION 2.1.5. Amendments to Article VI of the Existing Credit
Agreement. Article VI of the Existing Credit Agreement is hereby amended as
follows:
(a) Section 6.6 of the Existing Credit Agreement is hereby
amended and restated in its entirety to read as set forth below:
"SECTION 6.6. No Material Adverse Change. Except as
has been disclosed in writing to the Administrative Agent and
the Lenders prior to the Amendment No. 2 Effective Date, (i)
since August 31, 1993, with respect to the Borrower or any of
its Existing Subsidiaries, taken as a whole, (ii) since
September 30, 1993, with respect to EPIC or any of its
Subsidiaries, taken as a whole or (iii) since the Amendment
No. 2 Effective Date with respect to the Borrower or any of
its Subsidiaries, taken as a whole, no event has occurred
which has or would cause a Material Adverse Effect.".
(b) Section 6.15 of the Existing Credit Agreement is hereby
amended and restated in its entirety to read as set forth below:
"SECTION 6.15. Status of Obligations.
(a) The incurrence by the Borrower of all Obligations
hereunder and any related Hedging
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Obligations, and the execution, delivery, maintenance and
performance of the Subsidiary Guaranty and the Subsidiary
Pledge Agreement, do not and will not violate, or constitute
(with due notice or lapse of time or both) an Event of Default
(as defined in any indenture relating to Subordinated Debt).
(b) The entry by the Borrower into subordination
arrangements with respect to intercompany indebtedness does
not and will not violate, or constitute (with due notice or
lapse of time or both) a default under, any indenture pursuant
to which the Subordinated Debt was issued.
(c) The incurrence and maintenance of the first
priority security interests in stock and the Pledged Notes
pledged to the Collateral Agent pursuant to the Pledge
Agreements do not and will not violate, or constitute (with
due notice or lapse of time or both) an Event of Default (as
defined in the indenture related to Subordinated Debt).
(d) All Loans, when made, and all Reimbursement
Obligations, when incurred, will constitute "Senior
Indebtedness" and "Specified Senior Indebtedness" or similar
defined terms under all indentures pursuant to which the
Subordinated Debt was or will be issued. The subordination
provisions of such indentures pursuant to which such
Subordinated Debt was or will be issued, are or will be, as
the case may be, enforceable against the holders thereof.".
(c) A new Section 6.16 is hereby added to the Existing Credit
Agreement to read in its entirety to read as set forth below:
"SECTION 6.16. Environmental Warranties. Except as
set forth in Item 6.12 ("Environmental Matters") of the
Disclosure Schedule to the 1994 Credit Agreement:
(a) all facilities and property (including
underlying groundwater) owned or leased by the Borrower or any
of its Subsidiaries have been, and continue to be, owned or
leased by the Borrower and its Subsidiaries in material
compliance with all Environmental Laws except for
noncompliance which, singly or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect or
which noncompliance is the subject of a Good Faith Contest;
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(b) there have been no past, and there are no
pending or threatened
(i) claims, complaints, notices or requests
for information received by the Borrower or any of
its Subsidiaries with respect to any alleged
violation of any Environmental Law which could
reasonably be expected to have a Material Adverse
Effect, or
(ii) complaints, notices or inquiries to the
Borrower or any of its Subsidiaries regarding
potential liability under any Environmental Law which
could reasonably be expected to have a Material
Adverse Effect;
(c) there have been no Releases of Hazardous
Materials at, on or under any property now or previously owned
or leased by the Borrower or any of its Subsidiaries that,
singly or in the aggregate, have, or may reasonably be
expected to have, a Material Adverse Effect;
(d) the Borrower and its Subsidiaries have been
issued and are in material compliance with all material
permits, certificates, approvals, licenses and other
authorizations relating to environmental matters which are
necessary or desirable for their businesses;
(e) no property now or previously owned or leased by
the Borrower or any of its Subsidiaries is listed or proposed
for listing (with respect to owned property only) on the
National Priorities List pursuant to CERCLA, on the CERCLIS or
on any similar state list of sites requiring investigation or
clean-up;
(f) there are no underground storage tanks, active
or abandoned, including petroleum storage tanks, on or under
any property now or previously owned or leased by the Borrower
or any of its Subsidiaries that, singly or in the aggregate,
have, or may reasonably be expected to have, a Material
Adverse Effect;
(g) neither the Borrower nor any Subsidiary of the
Borrower has directly transported or directly arranged for the
transportation of any Hazardous Material to any location which
is listed or proposed for listing on the National Priorities
List pursuant to CERCLA, on the CERCLIS or on any similar
state list or which is the subject of federal, state or local
enforcement actions or other investigations which may
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lead to material claims against the Borrower or such
Subsidiary thereof for any remedial work, damage to natural
resources or personal injury, including claims under CERCLA;
(h) there are no polychlorinated biphenyls or
friable asbestos present at any property now or previously
owned or leased by the Borrower or any Subsidiary of the
Borrower that, singly or in the aggregate, have, or may
reasonably be expected to have, a Material Adverse Effect; and
(i) no conditions exist at, on or under any property
now or previously owned or leased by the Borrower which, with
the passage of time, or the giving of notice or both, would
give rise to liability under any Environmental Law which could
reasonably be expected to have a Material Adverse Effect."
SECTION 2.1.6. Amendments to Article VII of the Existing Credit
Agreement. Article VII of the Existing Credit Agreement is hereby amended as
set forth below:
(a) Section 7.1.6 of the Existing Credit Agreement is hereby
amended and restated in its entirety to read as set forth below:
"SECTION 7.1.6. Use of Proceeds. The Borrower shall
use the Revolving Loans to pay or loan or contribute the
proceeds of Revolving Loans to EPIC and its Subsidiaries to
pay in part the cash consideration of the Transaction and to
finance the Borrower's ongoing working capital and general
corporate purposes.".
(b) Section 7.1.9 of the Existing Credit Agreement is hereby
amended and restated in its entirety to read as set forth below:
"SECTION 7.1.9 Future Subsidiaries. Upon the lapse
or other termination of all restrictions contained in any
indenture or other agreement existing on the Amendment No. 2
Effective Date relating to Indebtedness of EPIC or its
Subsidiaries which restrictions prohibit the entering into by
EPIC or any such Subsidiary of the Subsidiary Guaranty or
Subsidiary Pledge Agreement, the Borrower shall promptly cause
(i) EPIC and each of its Subsidiaries (other than JV
Subsidiaries) to become parties to the Subsidiary Guaranty,
and (ii) EPIC and each of its relevant Subsidiaries to become
parties to the
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Subsidiary Pledge Agreement and deliver certificates
representing all of the issued and outstanding shares of
capital stock (other than the capital stock of EPIC
Properties, Inc. until such time that all of the CMOs have
been redeemed or otherwise retired) of EPIC and its
Subsidiaries, together with duly executed stock powers in
blank to the Collateral Agent. Upon any other Person
becoming, after the Amendment No. 2 Effective Date, a
Subsidiary of the Borrower, the Borrower shall notify the
Administrative Agent of such event and such Subsidiary shall
become a party to the Subsidiary Guaranty (if such Subsidiary
is not a JV Subsidiary) and the Subsidiary Pledge Agreement in
a manner reasonably satisfactory to the Administrative Agent.
In addition, the Borrower shall provide the Administrative
Agent and the Lenders with such opinions of legal counsel, in
form and substance reasonably satisfactory to the
Administrative Agent, as the Administrative Agent may
reasonably require, relating to the obligations of such new
Subsidiary under the Subsidiary Guaranty and Subsidiary Pledge
Agreement.".
(c) A new Section 7.1.10 is hereby added to the Existing
Credit Agreement to read as set forth below:
"SECTION 7.1.10. Environmental Covenant. The Borrower
will, and will cause each of its Subsidiaries to,
(a) use and operate all of the its facilities and
properties in material compliance with all Environmental Laws,
keep all necessary permits, approvals, certificates, licenses
and other authorizations relating to environmental matters in
effect and remain in material compliance therewith, and handle
all Hazardous Materials in material compliance with all
applicable Environmental Laws except for noncompliance which,
singly or in the aggregate, could not reasonably be expected
to have a Material Adverse Effect or which noncompliance is
the subject of a Good Faith Contest;
(b) immediately notify the Administrative Agent and
provide copies upon receipt of all written claims, complaints,
notices or inquiries relating to the condition of its
facilities and properties or compliance with Environmental
Laws, and shall promptly cure and have dismissed with
prejudice to the satisfaction of the Administrative Agent any
actions and proceedings relating to compliance with
Environmental Laws except for such claims, complaints,
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notices and inquiries which, singly or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect
or which are the subject of a Good Faith Contest; and
(c) provide such information and certifications
which the Administrative Agent may reasonably request from
time to time to evidence compliance with this Section 7.1.10."
(d) Section 7.2.2 of the Existing Credit Agreement is hereby
amended by (i) the parenthetical appearing in clause (e)(iii) thereof
is amended in its entirety to read "(other than (i) a JV Subsidiary
and (ii) EPIC and its Subsidiaries with respect to any such promissory
note owing to EPIC or any of its Subsidiaries existing prior to the
Amendment No.2 Effective Date)", (ii) deleting the word "and"
appearing at the end of clause (j) thereof, (iii) replacing the period
at the end of clause (k) thereof with"; and" and (iv) inserting a new
clause (l) to read as set forth below:
"(l) Indebtedness of EPIC and its Subsidiaries
outstanding on the date of the consummation of the EPIC Merger
and not incurred in contemplation thereof (other than
Indebtedness under the EPIC Credit Agreement and, after the
65th day following the Amendment No. 2 Effective Date, the
Senior ESOP Notes).".
(e) Section 7.2.3 of the Existing Credit Agreement is hereby
amended by (i) deleting "and" appearing at the end of clause (m)
thereof, (ii) replacing the period at the end of clause (n) thereof
with the word "; and" and (iii) inserting a new clause (o) to read as
set forth below:
"(o) Liens on assets of EPIC or any of its
Subsidiaries existing on the Amendment No. 2 Effective Date,
other than Liens arising as a result of or created in
contemplation of the Transaction.".
(f) Section 7.2.4 of the Existing Credit Agreement is hereby
amended and restated in its entirety as follows:
"SECTION 7.2.4. Financial Condition. The Borrower covenants
and agrees as follows:
(a) Net Worth. The Borrower will not permit Net
Worth at any time during any period set forth below to be less
than the amount set forth opposite such period:
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Period Net Worth
------ ---------
Amendment No. 2 Effective Date
through end of Fiscal Year 1994 $900,000,000
First Two Fiscal Quarters of
Fiscal Year 1995 $925,000,000
Last Two Fiscal Quarters of
Fiscal Year 1995 $950,000,000
(b) Cash Flow Coverage Ratio. The Borrower will
not permit the Cash Flow Coverage Ratio, at any time
commencing on the Amendment No. 2 Effective Date, to be less
than 1.0:1.0.
(c) Interest Coverage Ratio. The Borrower will
not permit the Interest Coverage Ratio, at any time during any
period set forth below, to be less than the ratio set forth
opposite such period:
Period Ratio
------ -----
Amendment No. 2 Effective Date
through end of Fiscal Year 1994 3.75:1.0
Fiscal Year 1995 3.75:1.0
(d) Total Debt to EBITDA Coverage Ratio. The
Borrower will not permit the Total Debt to EBITDA Coverage
Ratio (i) from the Amendment No. 2 Effective Date to August
31, 1994 to exceed 4.25:1.0 and (ii) at any time thereafter
during any period set forth below, to be greater than the
ratio set forth opposite such period:
Period Ratio
------ -----
First 2 Fiscal Quarters
of Fiscal Year 1995 4.25:1.0
Last 2 Fiscal Quarters
of Fiscal Year 1995 4.00:1.0"
(g) Section 7.2.5 of the Existing Credit Agreement is hereby
amended in its entirety to read as set forth below:
"SECTION 7.2.5 Investments. The Borrower will not,
and will not permit any of its Subsidiaries to, make, incur,
assume or suffer to exist any Investment in any other Person,
except:
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(a) Investments existing on the Effective Date and
identified in Item 7.2.5(a) ("Ongoing Investments") of the
Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) Investments in the Borrower or any of its
wholly-owned Subsidiaries;
(d) Investments in joint ventures;
(e) Investments arising in connection with Permitted
Dispositions under Section 7.2.10; and
(f) other Investments in an aggregate amount not to
exceed at any time $40,000,000;
(g) Investments in the Other Transactions not to
exceed $125,000,000; and
(h) Investments by EPIC and its Subsidiaries
existing on the Amendment No. 2 Effective Date;
(i) Investments in EPIC and its Subsidiaries;
provided, however, that
(i) no Investment otherwise permitted by clause (d), (e), or
(f) shall be permitted to be made if, immediately before or
after giving effect thereto, any Default of the type described
in clauses (a) through (d) of Section 8.1.9 subject to the
proviso set forth therein or any Event of Default shall have
occurred and be continuing;
(ii) no Investments otherwise permitted by clause (d), (e) or
(f) which have not been committed to by the Borrower or any of
its Subsidiaries prior to any occurrence thereof shall be
permitted if, immediately before or after giving effect
thereto, any Material Adverse Effect shall have occurred;
(iii) no Investment permitted by this Section may be made in
any joint venture if, as of the date such Investment is made,
incurred or assumed, all joint venture Investments permitted
by this Section shall hold assets of the Borrower or any of
its Subsidiaries, or any assets contributed by the Borrower or
any of its Subsidiaries which are greater (in Dollar amount,
in the case of the following clause (x) and number, in the
case of the following clause (y)) than the lesser of
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(x) 35% of the value of the consolidated assets of the
Borrower and its Subsidiaries at such time and (y) 30% (by
number) of all hospitals constituting Facilities at such time;
provided, further, that the Borrower will not, and will not
permit any of its Subsidiaries to, make, incur, assume or
suffer to exist any Investments in Minority Ventures if
Minority Ventures, in the aggregate, would hold at such time
more than six hospitals which were previously Facilities or if
the aggregate amount of assets contributed, which assets shall
be valued at book value at the time such contribution is made,
net of returns of principal or equity thereon received by the
Borrower or any of its Subsidiaries after such contribution is
made and loans made available by the Borrower or any of its
Subsidiaries to Minority Ventures at such time exceeds
$350,000,000;
(iv) any Investments permitted under this proviso shall be
reduced by any Investments made pursuant to clause (a) above;
and
(v) Investments in EPIC and its Subsidiaries shall be limited
to (A) cash only Investments in EPIC and its Subsidiaries on
the Amendment No. 2 Effective Date to pay for the merger
consideration in respect of common stock of EPIC in the EPIC
Transaction not to exceed in the aggregate $290,000,000 and
(B) additional cash only Investments constituting intercompany
Indebtedness made in EPIC and its Subsidiaries not to exceed
in the aggregate $250,000,000."
(h) Sections 7.2.7 and 7.2.8 are hereby amended in their
entirety to read as set forth below:
SECTION 7.2.7 [Intentionally Omitted.]
SECTION 7.2.8 [Intentionally Omitted.]
(i) Section 7.2.9 of the Existing Credit Agreement is hereby
amended by adding the following new last paragraph to the end thereof
to read as set forth below:
"Notwithstanding the foregoing, no Subsidiary of EPIC existing
on the Amendment No. 2 Effective Date ("Existing EPIC
Subsidiary") may liquidate or dissolve, consolidate with, or
merge into or with, or purchase or otherwise acquire all or
substantially all of the assets of any Subsidiary of the
Borrower which was a Subsidiary of the Borrower prior to the
Amendment No.2 Effective Date ("Prior Subsidiary"), except
that an
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Existing EPIC Subsidiary (other than EPIC Healthcare Group,
Inc. and EPIC Properties, Inc. and, after the Amendment No. 2
Effective Date, EPIC) may merge into any Prior Subsidiary so
long as the Prior Subsidiary is the surviving corporation of
any such merger."
(j) Section 7.2.11 of the Existing Credit Agreement is hereby
amended in its entirety to read as set forth below:
"SECTION 7.2.11. Modification of Certain Agreements.
After the Amendment No. 2 Effective Date, the Borrower will
not consent and will not permit any Subsidiary to consent to
any amendment, supplement or other modification of any of the
terms or provisions contained in, or applicable to,
(a) the Subordinated Debt or Continuing EPIC Debt,
if the effect of such amendment or change is to increase the
interest rate on such Indebtedness, change (to earlier dates)
the date upon which payments of principal or interest are due
thereon, change the subordination provisions thereof (or of
any guaranty thereof) (if any) or if the effect of such
amendment or change, together with all amendments or changes
made, is to increase materially the obligations of the obligor
or confer additional rights on the holder of such Indebtedness
which would be adverse to the Borrower or the Lenders; or
(b) the Consent and Tender Document, unless,
simultaneously therewith, the Borrower shall have paid all
Obligations in full and terminated all Commitments
hereunder.".
(k) Section 7.2.13 of the Existing Credit Agreement is hereby
amended by adding the following phrase at the end of the parenthetical
appearing therein "or as contained in any indenture or other document
relating to Indebtedness of EPIC or its Subsidiaries existing on the
Amendment No. 2 Effective Date".
SECTION 2.1.7. Amendments to Article VIII of the Existing Credit
Agreement. Article VIII of the Existing Credit Agreement is hereby amended as
set forth below:
(a) The proviso appearing at the end of Section 8.1.9 of the
Existing Credit Agreement is hereby amended in its entirety to read as
set forth below:
"provided, however, that, with respect to any Subsidiary of
the Borrower and subject to Section 8.4,
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an "Event of Default" shall not occur under this Section 8.1.9
until such time as such a Subsidiary or Subsidiaries of the
Borrower accounting for more than 5.0% of the consolidated net
revenues or more than 5.0% of the consolidated assets of the
Borrower (as calculated as of the Amendment No. 2 Effective
Date until August 31, 1994 and thereafter for the Borrower's
most recent Fiscal Year end) is or are the subject of one or
more of the events described in this Section 8.1.9."
(b) Section 8.1.11 of the Existing Credit Agreement is hereby
amended in its entirety to read as follows:
"SECTION 8.1.11. Subsidiary Guaranty. (i) Without
duplication of the terms of Section 8.1.12, the guaranty given
by any Subsidiary of the Borrower under the Subsidiary
Guaranty shall for any reason other than the satisfaction in
full of all Obligations and termination of this Agreement or
the release of such Subsidiary from its Obligations under the
Subsidiary Guaranty in accordance with the terms thereof,
cease to be in full force and effect at any time or is
declared to be null and void or (ii) any such Subsidiary
denies that it has any further liability under the Subsidiary
Guaranty, or gives notice to such effect, and such denial or
notice is not revoked within one Business Day after the
earlier of (A) receipt by the Borrower of notice from the
Administrative Agent or any Lender of such denial or notice
being made or given, as the case may be or (B) the Borrower
becomes aware of such denial or notice being made or given, as
the case may be; provided, however, that, subject to Section
8.4, an "Event of Default" shall not occur under this Section
8.1.11 until such time as a Subsidiary or Subsidiaries of the
Borrower accounting for more than 5.0% of the consolidated net
revenues or more than 5.0% of the consolidated assets of the
Borrower (as calculated as of the Amendment No. 2 Effective
Date until August 31, 1994 and thereafter for the Borrower's
most recent Fiscal Year end) is or are the subject of one or
more of the events described in this Section 8.1.11; provided
further, however, that in making such determination EPIC and
its Subsidiaries shall be excluded from such calculation."
(c) Section 8.1.12 of the Existing Credit Agreement is hereby
amended in its entirety to read as follows:
SECTION 8.1.12. Impairment of Security, etc. Any Loan
Document shall (except in accordance with its
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terms), in whole or in part, terminate, cease to be effective
or cease to be the legally valid, binding and enforceable
obligation of any Obligor party thereto or any Lien granted
under any Loan Document on any substantial portion of the
collateral shall, in whole or in part, terminate, cease to be
effective or cease to be the legally valid, binding and
enforceable Obligation of any Obligor party thereto; the
Borrower or any other Obligor shall, directly or indirectly,
contest in any manner such effectiveness, validity, binding
nature or enforceability; or any Lien securing any Obligation
shall, in whole or in part, cease to be a perfected prior to
all other Liens (other than as a result of actions of the
Collateral Agent or any Lender); provided, however, that,
subject to Section 8.4, an "Event of Default" shall not occur
under this Section 8.1.12 with respect to any of the foregoing
relating to any Collateral Document to which a Subsidiary of
the Borrower is a party or any Pledged Subsidiary Debt until
such time as the Collateral Documents or Pledged Subsidiary
Debt of a Subsidiary or Subsidiaries of the Borrower
accounting for more than 5.0% of the consolidated net revenues
or more than 5.0% of the consolidated assets of the Borrower
(as calculated as of the Amendment No. 2 Effective Date until
August 31, 1994 and thereafter for the Borrower's most recent
Fiscal Year end) is or are the subject of one or more of the
events described in this Section 8.1.12; provided further,
however, that in making such determination EPIC and its
Subsidiaries shall be excluded from such calculation."
ARTICLE III
CONDITIONS TO EFFECTIVENESS
SECTION 3.1. Amendment No. 2 Effective Date. This Amendatory
Agreement shall become effective as of the date upon which (the "Amendment No.
2 Effective Date ") all the conditions set forth in this Section 3.1 shall have
been satisfied (on or prior to such date) and, thereafter, this Amendatory
Agreement shall be known, and may be referred to, as "Amendment No. 2".
SECTION 3.1.1. Execution of Counterparts. The Administrative Agent
shall have received counterparts of this Amendatory Agreement duly executed by
the Borrower and Scotiabank. The delivery of an executed counterpart hereof by
the Borrower shall constitute a representation and warranty by the Borrower
that, on the date of such delivery and on Amendment No. 2 Effective Date, after
giving effect to Amendment No. 2, all
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statements set forth in Section 5.2.1 of the Credit Agreement, as amended by
Amendment No. 2, are true and correct as of each such date.
SECTION 3.1.2. Delivery of Note. The Administrative Agent shall have
received a promissory note payable to Scotiabank evidencing the Revolving Loans
made by Scotiabank from time to time to the Borrower pursuant to Amendment No.
2, dated the Amendment No. 2 Effective Date, duly executed and delivered by the
Borrower, in the form of Annex I hereto.
SECTION 3.1.3. 1994 Credit Agreement. The Administrative Agent shall
have received counterparts of the 1994 Credit Agreement, duly executed by the
Borrower, the Lenders, the Co-Agents and the Administrative Agent (as each such
term is defined in the 1994 Credit Agreement), together with counterparts of
the Pledge Agreements and the Subsidiary Guaranty (as defined in and delivered
pursuant to the 1994 Credit Agreement), duly executed by each Obligor (as
defined in the 1994 Credit Agreement) party thereto (other than EPIC and its
Subsidiaries). The Administrative Agent shall have received (i) shares of
stock pledged to the Collateral Agent pursuant to the Pledge Agreements (except
with respect to the shares of stock of EPIC and its Subsidiaries), (ii) the
Subsidiary Notes and other Indebtedness of the Borrower's Subsidiaries
evidenced by promissory notes and pledged to the Collateral Agent pursuant to
the Note Pledge Agreement (including the promissory notes of EPIC's
subsidiaries payable to the Borrower, but excluding the promissory notes of
EPIC's Subsidiaries not so payable) and (iii) evidence reasonably satisfactory
to the Collateral Agent that all filings, recordings and other actions which
the Collateral Agent shall reasonably deem necessary or advisable to establish,
preserve and perfect the Liens granted to the Lenders pursuant to the
Collateral Documents have been made or taken.
SECTION 3.1.4. Termination of EPIC Credit Agreement. On or prior to
the Amendment No. 2 Effective Date, the Borrower shall have taken and shall
have caused EPIC to have taken all necessary actions such that on or prior to
the Amendment No. 2 Effective Date (i) the commitments under the EPIC Credit
Agreement shall have been terminated, (ii) all outstanding obligations
thereunder, including, without limitation, any principal, interest, fees,
commissions and other amounts accrued and unpaid thereunder shall be discharged
and (iii) no lender thereunder or other party thereto shall have any effective
Lien over the collateral or any other property of the Borrower or any of its
Subsidiaries.
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SECTION 3.1.5. Transaction Consummated.
(a) EPIC Merger Agreement and Related Documents. The
Administrative Agent shall have received (with copies for each Lender)
a fully executed copy of the EPIC Merger Agreement, and all other
certificates, filings, documents, consents, approvals, board of
directors resolutions and opinions furnished pursuant to or in
connection with the consummation of the EPIC Transaction each of which
shall be in form and substance satisfactory to the Administrative
Agent and the majority Co-Agents. No amendment, waiver or other
modification of, or other forbearance to exercise any rights with
respect to, any of the terms or provisions relating to the conditions
to the consummation of the EPIC Merger in the EPIC Merger Agreement
that could reasonably be expected to have a material adverse effect on
the financial condition, operations, assets, business or properties of
the Borrower or the Borrower and its Subsidiaries, taken as a whole,
shall have been made or consented to by the Borrower (unless otherwise
agreed to by the Lenders).
(b) Consummation of EPIC Merger; Delivery of Certificate of
EPIC Merger. The EPIC Merger shall have been consummated in
accordance with the EPIC Merger Agreement. The Certificate of Merger,
in recordable form, shall have been executed by the parties thereto,
and the Administrative Agent shall have received evidence satisfactory
to it that counterparts thereof have been presented for filing with
the Secretary of State of the State of Delaware. The Administrative
Agent shall have received a copy of the Certificate of Merger, duly
executed and delivered by each party thereto.
(c) Senior ESOP Notes. The Administrative Agent shall have
received a true and correct copy of each irrevocable notice of
redemption delivered to the trustee of the Senior ESOP Notes which
redemption shall have been arranged on terms and conditions
satisfactory to the Lenders.
(d) No Default under Continuing EPIC Debt. No Event of
Default (as defined in any indenture relating to the Continuing EPIC
Debt) shall have occurred or be created as a result of the
Transaction.
SECTION 3.1.6. Funds Available for the Transaction. On or prior to
the Amendment No. 2 Effective Date, the cash proceeds of the Public Offering
shall have been applied to the EPIC Merger and the Borrower Effective Date Cash
on Hand shall have been applied to the payment of the cash consideration of the
Transaction. The amount of such funds not so applied on the Amendment No. 2
Effective Date, together with the amount of
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Commitments shall be sufficient to pay in full all remaining cash consideration
for the Transaction.
SECTION 3.1.7. Public Offering. The Administrative Agent shall have
received copies of all documents, agreements and instruments related to the
Public Offering and the other transactions contemplated in connection therewith
(including the Borrower's Registration Statement on Form S-3 filed with the
Securities and Exchange Commission), all of which shall be in form and
substance reasonably satisfactory to the Administrative Agent. Upon completion
of the Public Offering, the Borrower shall have received gross cash proceeds
from the Public Offering in an amount at least equal to $140,000,000.
SECTION 3.1.8. Issuance of the Subordinated Notes. The Borrower
shall have duly authorized, executed and delivered the Subordinated Note
Indenture, the Subordinated Notes and all other certificates, documents and
agreements entered into in connection therewith, and the Administrative Agent
shall have received, with counterpart copies for each Lender, true and correct
copies of the Subordinated Notes and all other certificates, documents,
agreements, consents and opinions furnished pursuant to or in connection
therewith, the terms and conditions of which shall be reasonably satisfactory
to the Administrative Agent. The Borrower shall have received gross cash
proceeds from the issuance of the Subordinated Notes in an amount at least
equal to $200,000,000.
SECTION 3.1.9. Master Assignment Agreement. The Administrative Agent
shall have received counterparts of the Master Assignment Agreement duly
executed by the Borrower and each Lender (other than Scotiabank).
SECTION 3.1.10. No Material Adverse Change. Except as disclosed in
writing to the Lenders prior to the Amendment No. 2 Effective Date, (i) since
August 31, 1993, with respect to the Borrower or any of its existing
Subsidiaries, taken as a whole or (ii) since September 30, 1993, with respect
to EPIC or any of its Subsidiaries, taken as a whole, no event has occurred
which or would cause a Material Adverse Effect.
SECTION 3.1.11. Amendment Fee Letter. The Administrative Agent shall
have received counterparts of the Amendment Fee Letter, duly executed by the
Borrower.
SECTION 3.1.12. Opinions of Counsel. The Administrative Agent shall
have received opinions, dated the Amendment No. 2 Effective Date, in form and
substance satisfactory to the Administrative Agent, from
(a) Dewey Ballantine, counsel to the Borrower; and
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(b) Philip D. Wheeler, Esq., General Counsel to the Borrower.
SECTION 3.1.13. Legal Details, etc. All documents executed or
submitted pursuant hereto shall be satisfactory in form and substance to the
Administrative Agent and its counsel and shall include certified copies of
board resolutions of the Borrower and its Subsidiaries authorizing the
transactions contemplated hereby and certificates of incumbency for those
officers of such Persons authorized to execute and deliver all agreements and
instruments contemplated hereby or relating hereto. The Administrative Agent
shall have received all information, and such counterpart originals or such
certified or other copies of such other materials, as the Administrative Agent
or its counsel may reasonably request, and all legal matters incident to the
transactions contemplated by this Amendment shall be satisfactory to the
Administrative Agent and its counsel. In addition, the Administrative Agent
shall have received such other agreements and documents as it may from time to
time request.
SECTION 3.1.14. Payment of Fees and Expenses. The Borrower shall
have paid in full all reasonable fees and expenses of the Scotiabank, or its
counsel or consultants incurred in respect of the negotiation, preparation and
review of the documentation relating to the transactions contemplated by this
Amendment No. 2 invoiced on or prior thereto.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1. Cross-References. References in this Amendatory
Agreement to any Article or Section are, unless otherwise specified or
otherwise required by the context, to such Article or Section of this
Amendatory Agreement.
SECTION 4.2. Loan Document Pursuant to Credit Agreement; Limited
Waiver. This Amendatory Agreement is a Loan Document executed pursuant to the
Credit Agreement and shall (unless otherwise expressly indicated therein) be
construed, administered, and applied in accordance with all of the terms and
provisions of the Credit Agreement. Except as expressly amended or waived
hereby, all of the representations, warranties, terms, covenants and conditions
of the Credit Agreement shall remain unamended and unwaived. The amendments,
waivers and other terms set forth herein shall be limited precisely as provided
for herein and shall not be deemed to be a waiver of, amendment of, consent to,
or modification of, any other term or provision of the Credit Agreement or of
any term or provision of any other Collateral Document or Loan Document or of
any transaction or
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further or future action on the part of the Borrower which would require the
consent of any of Scotiabank under the Credit Agreement.
SECTION 4.3. Successors and Assigns. This Amendatory Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
SECTION 4.4. Counterparts. This Amendatory Agreement may be executed
by the parties hereto in several counterparts and be deemed to be an original
and all of which shall constitute together but one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 2 to be executed and delivered by their authorized agents of
representatives as of the date first above written.
HEALTHTRUST, INC. - THE HOSPITAL COMPANY
By:
-----------------------------
Title:
THE BANK OF NOVA SCOTIA, as
Administrative Agent, Co-Agent and
Lender
By:
-----------------------------
Title:
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ANNEX I
NOTE
$310,000,000 May 5, 1994
FOR VALUE RECEIVED, the undersigned, HEALTHTRUST INC. - THE HOSPITAL COMPANY,
a Delaware corporation (the "Borrower"), promises to pay to the order of THE
BANK OF NOVA SCOTIA ("Scotiabank") on or before the Stated Maturity Date (as
defined in the Credit Agreement) the principal sum of THREE HUNDRED TEN MILLION
DOLLARS ($310,000,000) or, if less, the aggregate unpaid principal amount of all
Loans shown on the schedule attached hereto (and any continuation thereof) made
by the Lender pursuant to that certain Credit Agreement, dated as of September
29, 1992 (as heretofore or hereafter amended, supplemented, amended and restated
or otherwise modified from time to time, the "Credit Agreement"), among the
Borrower the various financial institutions parties thereto (collectively, the
"Lenders"), Scotiabank and ABN-AMRO Bank, N.V., Bank of America National Trust
and Savings Association, The Chase Manhattan Bank, N.A., Citibank, N.A.,
Continental Bank N.A., Deutsche Bank AG, LTCB Trust Company, Swiss Bank
Corporation and The Toronto-Dominion Bank, as co-agents (the "Co-Agents") for
the Lenders and Scotiabank, as administrative agent (the "Administrative Agent")
for the Co-Agents and the Lenders.
The Borrower also promises to pay interest on the unpaid principal
amount hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money
of the United States of America in same day or immediately available funds to
the account designated by the Lender pursuant to the Credit Agreement.
This Note is the Note referred to in, and evidences Indebtedness
incurred under, the Credit Agreement, to which reference is made for a
description of the security for this Note and for a statement of the terms and
conditions on which the Borrower is permitted and required to make prepayments
and repayments of principal of the Indebtedness evidenced by this Note and on
which such Indebtedness may be declared to be immediately due and payable.
Unless otherwise defined, terms used herein have the meanings provided in the
Credit Agreement.
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All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of dishonor.
THIS NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE DEEMED
TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
NEW YORK.
HEALTHTRUST, INC. - THE HOSPITAL COMPANY
By:
-----------------------------------
Title:
44
LOANS AND PRINCIPAL PAYMENTS
Amount of Principal Unpaid Principal
Amount of Loan Made Repaid Balance
Interest
Base LIBO Period (if Base LIBO Base LIBO Notation
Date Rate Rate applicable) Rate Rate Rate Rate Total Made By
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