1
EXHIBIT 10(b)
EXECUTION COPY
FIRST AMENDMENT
FIRST AMENDMENT, dated as of March 30, 1999 (this
"Amendment"), to the Credit Agreement, dated as of July 10, 1998 (the "July 1998
Credit Agreement"), among COLUMBIA/HCA HEALTHCARE CORPORATION, a Delaware
corporation (the "Company"), the several banks and other financial institutions
from time to time parties hereto (the "Banks"), BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, THE BANK OF NEW YORK, THE FIRST NATIONAL BANK OF
CHICAGO, FLEET NATIONAL BANK, TORONTO DOMINION (TEXAS), INC. AND WACHOVIA BANK
OF GEORGIA, N.A. as Co-Agents (collectively, the "Co-Agents"), NATIONSBANK,
N.A., as documentation agent for the Banks hereunder (the "Documentation Agent")
and THE BANK OF NOVA SCOTIA and DEUTSCHE BANK SECURITIES INC., as co-syndication
agents for the Banks hereunder (the "Co-Syndication Agents"); and THE CHASE
MANHATTAN BANK, a New York banking corporation, as agent for the Banks hereunder
(in such capacity, the "Agent").
W I T N E S S E T H :
WHEREAS, the parties hereto wish to amend certain provisions
of the July 19998 Credit Agreement 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 July 1998 Credit Agreement shall be used as so defined.
2. Amendment to Section 1.1 of the July 1998 Credit Agreement.
Section 1.1 of the July 1998 Credit Agreement is hereby amended as follows:
(a) by inserting in such section the following new defined
terms in proper alphabetical order:
"'First Amendment': First Amendment dated March 30, 1999
to the Agreement."
"'LifePoint': LifePoint Hospitals, Inc., a Delaware
corporation to be formed."
"'Triad': Triad Hospitals, Inc., a Delaware corporation to
be formed."
(b) by deleting the defined term "Subsidiary" in its entirety
and inserting in lieu thereof the following new defined term in proper
alphabetical order:
"'Subsidiary': as to any Person, a corporation,
partnership or other entity of which shares of stock or
other ownership interests having ordinary voting power
(other than stock or such other ownership interests having
such power only
2
2
by reason of the happening of a contingency) to elect a
majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time
owned, directly or indirectly through one or more
intermediaries, by such Person. Unless otherwise qualified,
all references to a "Subsidiary" or to "Subsidiaries" in this
Agreement shall refer to a Subsidiary or Subsidiaries of the
Company.".
3. Amendment to Section 3.12 of the July 1998 Credit
Agreement. Section 3.12 of the July 1998 Credit Agreement is hereby amended by
deleting the following sentence:
"Neither the Company nor any Subsidiary nor any Control Group
Person maintains, contributes to or participates in any Plan
that is a "defined benefit plan" as defined in ERISA."
4. Amendment to Section 3.17 of the July 1998 Credit
Agreement. Section 3.17 of the July 1998 Credit Agreement is hereby amended by
inserting the following clause immediately following the words "September 30,
1999":
", except where the failure to do so could not reasonably be
expected to result in a material adverse change in the
business or assets or in the condition, financial or
otherwise, of the Company and its Subsidiaries on a
consolidated basis."
5. Amendment to Section 4.3 of the July 1998 Credit Agreement.
Section 4.3 of the July 1998 Credit Agreement is hereby amended by deleting such
section in its entirety and substituting in lieu thereof the following:
"4.3 Company Officers' Certificate. The representations and
warranties contained in Section 3 (as qualified by the
disclosures in (i) the Company's Annual Report on Form 10-K
for its fiscal year ended December 31, 1997, (ii) the
Company's Quarterly Reports on Form 10-Q for its fiscal
quarters ended March 31, 1998, June 30, 1998 and September 30,
1998, (iii) the Company's Reports on Form 8-K dated February
6, 1998, February 13, 1998, March 6, 1998, May 27, 1998, July
30, 1998, October 28, 1998, December 15, 1998 and February 24,
1999 and (iv) the Company's Annual Report on Form 10-K for its
fiscal year ended December 31, 1998, as filed with the
Securities and Exchange Commission, previously distributed to
the Agent and made available to the Banks) shall be true and
correct in all material respects on the Closing Date and on
and as of each Borrowing Date with the same force and effect
as though made on and as of such date; no Default shall have
occurred (except a Default which shall have been waived in
writing or which shall have been cured) and no Default shall
exist after giving effect to the Loan to be made; between
December 31, 1997 and such Borrowing Date, neither the
business nor assets, nor the condition, financial or
otherwise, of the Company and its Subsidiaries on a
consolidated basis shall have been adversely affected in any
material manner as a result of any fire, flood, explosion,
accident, drought, strike, lockout, riot, sabotage,
confiscation,
3
3
condemnation, or any purchase of any property by Governmental
Authority, activities or armed forces, acts of God or the
public enemy, new or amended legislation, regulatory order,
judicial decision or any other event or development whether or
not related to those enumerated above (all subject to the
disclosures enumerated above); and the Agent shall have
received a certificate containing a representation to these
effects dated such Borrowing Date and signed by a Responsible
Officer.".
6. Amendment to Section 5.3 of the July 1998 Credit Agreement.
Section 5.3 of the July 1998 Credit Agreement is hereby amended by deleting such
section in its entirety and substituting in lieu thereof the following:
"5.3 Transactions with Affiliates. Neither the Company nor
any of its Subsidiaries will enter into any transactions,
including, without limitation, the purchase, sale or exchange
of property or the rendering of any service, with any of their
Affiliates (other than the Company and its Subsidiaries)
(excluding the tax-free spin-off distributions of the common
stock of Life Point and Triad to the shareholders of the
Company and the transitional services agreements to be entered
into with LifePoint and Triad in connection therewith) unless
such transaction is otherwise permitted under this Agreement,
is in the ordinary course of the Company's or such
Subsidiary's business and is upon fair and reasonable terms no
less favorable to the Company or such Subsidiary, as the case
may be, than it would obtain in an arm's-length transaction.".
7. Amendment to Section 5.5 of the July 1998 Credit Agreement.
Section 5.5 of the July 1998 Credit Agreement is hereby amended by deleting
subsection 5.5(d) in its entirety and substituting in lieu thereof the
following:
"(d) ERISA Reports. The Company will furnish the Agent with
copies of any request for waiver of the funding standards or
extension of the amortization periods required by Sections
303 and 304 of ERISA or Section 412 of the Code promptly
after any such request is submitted by the Company to the
Department of Labor or the Internal Revenue Service, as the
case may be. Promptly after a Reportable Event occurs, or
the Company or any of its Subsidiaries receives notice that
the PBGC or any Control Group Person has instituted or
intends to institute proceedings to terminate any pension or
other Plan that is a "defined benefit plan" as defined in
ERISA, or prior to the Plan administrator's terminating such
Plan pursuant to Section 4041 of ERISA, the Company will
notify the Agent and will furnish to the Agent a copy of any
notice of such Reportable Event which is required to be
filed with the PBGC, or any notice delivered by the PBGC
evidencing its institution of such proceedings or its intent
to institute such proceedings, or any notice to the PBGC
that a Plan is to be terminated, as the case may be. The
Company will promptly notify each Bank upon learning of the
occurrence of any of the following events with respect to
any Plan which is a Multiemployer Plan: a partial or
complete withdrawal from any Plan which may
4
4
result in the incurrence by the Company or any of is
Subsidiaries of withdrawal liability in excess of $1,000,000
under Subtitle E of Title IV of ERISA, or of the termination,
insolvency or reorganization status of any Plan under such
Subtitle E which may result in liability to the Company or any
of its Subsidiaries in excess of $1,000,000. In the event of
such a withdrawal, upon the request of the Agent or any Bank,
the Company will promptly provide information with respect to
the scope and extent of such liability, to the best of the
Company's knowledge.
8. Amendment to Section 5.9 of the July 1998 Credit Agreement.
Section 5.9 of the July 1998 Credit Agreement is hereby amended by inserting the
following clause at the end of the paragraph immediately following the words
"United States":
"or causing the Company to change its name."
9. Amendment to Section 5.10 of the July 1998 Credit
Agreement. Section 5.10 of the July 1998 Credit Agreement is hereby amended by
deleting such section in its entirety and substituting in lieu thereof the
following:
"5.10 Sales of Assets. The Company and its Subsidiaries may
from time to time sell or otherwise dispose of all or any
part of their respective assets; provided, however, that in
any fiscal year, the Company and its Subsidiaries will not
(a) sell or dispose of (including, without limitation, any
disposition resulting from any merger or consolidation
involving a Subsidiary of the Company, and any Sale-and-
Leaseback Transaction), outside of the ordinary course of
business, to Persons other than the Company and its
Subsidiaries, assets constituting in the aggregate more than
12% of Consolidated Assets of the Company (calculated after
giving pro forma effect thereto as if the tax-free spin-off
distributions of the common stock of LifePoint and Triad to
the shareholders of the Company occurred on the first day of
the testing period thereof) and its Subsidiaries as at the
end of the immediately preceding fiscal year (excluding the
tax-free spin-off distributions of the common stock of
LifePoint and Triad to the shareholders of the Company) and
(b) exchange with any Persons other than the Company and its
Subsidiaries any asset or group of assets for another asset
or group of assets unless (i) such asset or group of assets
are exchanged for an asset or group of assets of a
substantially similar type or nature, (ii) on a pro forma
basis both before and after giving effect to such exchange,
no Default or Event of Default shall have occurred and be
continuing, (iii) the aggregate fair market value (as
determined in good faith by the Board of Directors of the
Company) of the asset or group of assets being transferred
by the Company or such Subsidiary and the asset or group of
assets being acquired by the Company or such Subsidiary are
substantially equal and (iv) the aggregate of (x) all assets
of the Company and its Subsidiaries sold pursuant to
subsection 5.10(a) (including, without limitation, any
disposition resulting from any merger or consolidation
involving a Subsidiary of the Company, and any Sale-
and-Leaseback Transaction) (excluding the tax-free spin-off
distributions of the common stock of LifePoint and Triad to
the shareholders
5
5
of the Company) and (y) the aggregate fair market value (as
determined in good faith by the Board of Directors of the
Company) of all assets of the Company and its Subsidiaries
exchanged pursuant to this subsection 5.10(b) does not
exceed 20% of Consolidated Assets of the Company and its
Subsidiaries as at the end of the immediately preceding
fiscal year (calculated after giving pro forma effect
thereto as if the tax-free spin-off distributions of the
common stock of LifePoint and Triad to the shareholders of
the Company occurred on the first day of the testing period
thereof).".
10. Amendment to Section 5.11 of the July 1998 Credit
Agreement. Section 5.11 of the July 1998 Credit Agreement is hereby amended by
deleting such section in its entirety and substituting in lieu thereof the
following:
"5.11 Compliance with ERISA. Each of the Company and
its Subsidiaries will meet, and will cause all Control Group
Persons to meet, all minimum funding requirements applicable
to any Plan imposed by ERISA or the Code (without giving
effect to any waivers of such requirements or extensions of
the related amortization periods which may be granted), and
will at all times comply, and will cause all Control Group
Persons to comply, in all material respects with the
provisions of ERISA and the Code which are applicable to the
Plans. At no time shall the aggregate actual and contingent
liabilities of the Company under Sections 4062, 4063, 4064 and
other provisions of ERISA with respect to all Plans (and all
other pension plans to which the Company, any Subsidiary, or
any Control Group Person made contributions prior to such
time) exceed $7,500,000. Neither the Company nor its
Subsidiaries will permit any event or condition to exist which
could permit any Plan which is not a Multiemployer Plan to be
terminated under circumstances which would cause the lien
provided for in Section 4068 of ERISA to attach to the assets
of the Company or any of its Subsidiaries."
11. Amendment to Section 5.12 of the July 1998 Credit
Agreement. Section 5.12 of the July 1998 Credit Agreement is hereby amended by
deleting the paragraph immediately after clause (f) in its entirety and
substituting in lieu thereof the following:
"unless any Loans made and/or to be made to and all other sums
payable by the Company under this Agreement shall be secured
equally and ratably with (or prior to) such Indebtedness so
long as such Indebtedness shall be so secured. Notwithstanding
the foregoing, the Company and any one or more Subsidiaries
may, without securing the Loans made and/or to be made to and
all other sums payable by the Company under this Agreement,
create, issue or assume Indebtedness which would otherwise be
subject to the foregoing restrictions in an aggregate
principal amount which, together with all other such
Indebtedness of the Company and its Subsidiaries (not
including (i) Indebtedness permitted to be secured pursuant to
the foregoing clauses (a) through (f) and the aggregate
Attributable Debt or (ii) Indebtedness incurred by one or more
Subsidiaries of the
6
6
Company and thereafter assumed by Life Point and/or Triad
(and/or their respective Subsidiaries) in connection with
the tax-free spin-off distributions of the common stock of
LifePoint and Triad to the shareholders of the Company),
including Indebtedness in respect of Sale-and-Lease-back
Transactions (other than those permitted by subsection
5.13(b)), does not exceed 10% of Consolidated Net Tangible
Assets of the Company and its Subsidiaries (calculated after
giving pro forma effect thereto as if the tax-free spin-off
distributions of the common stock of LifePoint and Triad to
the shareholders of the Company occurred on the first day of
the testing period thereof).".
12. Effective Date; Conditions Precedent. This Amendment will
become effective on March 30, 1999 (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 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 Banks.
(b) Company Officers' Certificate. The representations and
warranties contained in Section 3 of the July 1998 Credit Agreement
(as qualified by the disclosures in (i) the Company's Annual Report on
Form 10-K for its fiscal year ended December 31, 1997, (ii) the
Company's Quarterly Reports on Form 10-Q for its fiscal quarters ended
March 31, 1998, June 30, 1998, September 30, 1998 and (iii) the
Company's Reports on Form 8-K dated February 6, 1998, February 13,
1998, March 6, 1998, May 27, 1998, July 30, 1998, October 28, 1998,
December 15, 1998 and February 24, 1998 and (iv) the Company's Annual
Report on Form 10-K for its fiscal year ended December 31, 1998, as
filed with the Securities and Exchange Commission, previously
distributed to the Agent and made available to the Banks) shall be
true and correct in all material respects 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
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.
(c) Fifth Amendment to February 1997 Five-Year Agreement
and Amendment. The February 1997 Five-Year Agreement and Amendment
shall have been amended in a manner corresponding to the amendments
hereof.
13. Legal Obligation. The Company represents and warrants to
each Bank that this 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
7
7
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.
14. Continuing Effect; Application. Except as expressly
amended hereby, the July 1998 Credit Agreement shall continue to be and shall
remain in full force and effect in accordance with its terms.
15. 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 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.
16. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
17. Counterparts. This Amendment may be executed by one or
more of the parties to this Amendment on any number of separate counterparts and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument. A set of the copies of this Amendment signed by all the
parties shall be lodged with the Company and the Agent.
8
8
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
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 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/ Steven L. Hipsman
-----------------------------------------
Name: Steven L. Hipsman
Title: Vice President
By: /s/ Robert A. Budnek
-----------------------------------------
Name: Robert A. Budnek
Title: Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Co-Agent
By: /s/ Kevin Wagley
-----------------------------------------
Name: Kevin Wagley
Title: Vice President
9
9
THE BANK OF NEW YORK, as Co-Agent
By: /s/ Ann Marie Hughes
-----------------------------------------
Name: Ann Marie Hughes
Title: Vice President
THE BANK OF NOVA SCOTIA, as Co-Syndication
Agent and as a Bank
By: /s/ W.J. Brown
-----------------------------------------
Name: W.J. Brown
Title: Vice President
DEUTSCHE BANK SECURITIES, INC., as
Co-Syndication Agent
By: /s/ Iain Stewart By: /s/ Steven N. Warden
-------------------------- -----------------------------------------
Name: Iain Stewart Name: Steven N. Warden
Title: Vice President Title: Managing Director
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCH(ES), as a Bank
By: /s/ Stephan A. Wiedemann By: /s/ Susan L. Pearson
--------------------------- -----------------------------------------
Name: Stephan A. Wiedemann Name: Susan L. Pearson
Title: Director Title: Director
FIRST AMERICAN NATIONAL BANK, as a Bank
By: /s/ Sandy Hamrick
-----------------------------------------
Name: Sandy Hamrick
Title: Senior Vice President
10
10
THE FIRST NATIONAL BANK OF CHICAGO,
as Co-Agent
By: /s/ L. Richard Schiller
-----------------------------------------
Name: L. Richard Schiller
Title: Vice President
FIRST UNION NATIONAL BANK, as a Bank
By: /s/ Joseph H. Tower
-----------------------------------------
Name:
Title:
FLEET NATIONAL BANK, as Co-Agent
By: /s/ Maryann S. Smith
-----------------------------------------
Name: Maryann Smith
Title: Vice President
KEYBANK NATIONAL ASSOCIATION, as a Bank
By: /s/ Thomas J. Purcell
-----------------------------------------
Name: Thomas J. Purcell
Title: Vice President
NATIONSBANK, N.A. as Documentation Agent
and as a Bank
By: /s/ Kevin Wagley
-----------------------------------------
Name: Kevin Wagley
Title: Vice President
11
11
SUNTRUST BANK, NASHVILLE, N.A., as a Bank
By: /s/ Mark D. Mattson
-----------------------------------------
Name: Mark D. Mattson
Title: Vice President
TORONTO DOMINION (TEXAS), INC., as Co-Agent
By: /s/ Alva J. Jones
-----------------------------------------
Name: Alva J. Jones
Title: Vice President
UNION PLANTERS BANK OF MIDDLE TENNESSEE,
N.A., as a Bank
By: /s/ William A. Collier
-----------------------------------------
Name: William A. Collier
Title: Vice President
WACHOVIA BANK OF GEORGIA, N.A., as Co-Agent
By: /s/ Kenneth Washington
-----------------------------------------
Name: Kenneth Washington
Title: Vice President