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EXHIBIT 10(c)
EXECUTION COPY
FIFTH AMENDMENT
FIFTH AMENDMENT, dated as of March 30, 1999 (this "Fifth
Amendment"), to the Agreement and Amendment dated as of February 26, 1997, as
amended by the First Amendment, dated as of June 17, 1997, the Second Amendment,
dated as of February 3, 1998, the Third Amendment, dated as of March 26, 1998
and the Fourth Amendment, dated as of July 10, 1998 (as the same may be amended,
supplemented or modified from time to time, the "February 1997 Five-Year
Agreement and Amendment") 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 &
SAVINGS ASSOCIATION, THE BANK OF NEW YORK, DEUTSCHE BANK AG, FLEET NATIONAL
BANK, THE FUJI BANK LIMITED, THE INDUSTRIAL BANK OF JAPAN, LIMITED, ATLANTA
AGENCY, MORGAN GUARANTY TRUST COMPANY OF NEW YORK, NATIONSBANK, N.A., PNC BANK
NATIONAL ASSOCIATION, TORONTO DOMINION (TEXAS), INC., UNION BANK OF SWITZERLAND,
NEW YORK BRANCH AND WACHOVIA BANK OF GEORGIA, N.A., as Co-Agents (collectively,
the "Co-Agents"), THE SAKURA BANK, LTD. NEW YORK BRANCH, THE SUMITOMO BANK
LIMITED, SUNTRUST BANK, NASHVILLE, N.A., WELLS FARGO BANK, N.A., as Lead
Managers (collectively, the "Lead Managers") and THE CHASE MANHATTAN BANK, a New
York banking corporation as Agent for the Banks hereunder ("Chase", and in such
capacity, the "Agent") and as CAF Loan Agent (in such capacity, the "CAF Loan
Agent").
W I T N E S S E T H :
WHEREAS, for the convenience of the parties to the agreement
and amendment dated as of February 28, 1996 (the "February 1996 Agreement and
Amendment"), among the Company, the several banks and other financial
institutions from time to time parties thereto and Chase, as agent for the Banks
hereunder and as CAF Loan Agent, a composite conformed copy (the "Five-Year
Composite Conformed Credit Agreement") of the Credit Agreement, dated as of
February 10, 1994 as incorporated by reference into and amended by the September
1994 Agreement and Amendment, the February 1995 Agreement and Amendment and the
February 1996 Agreement and Amendment was prepared and delivered to such
parties;
WHEREAS, the February 1997 Five-Year Agreement and Amendment
adopts and incorporates by reference all of the terms and provisions of the
Five-Year Composite Conformed Credit Agreement, subject to the amendment thereto
provided for in the February 1997 Five-Year Agreement and Amendment;
WHEREAS, the parties hereto wish to amend certain provisions
of the February 1997 Five-Year Agreement and Amendment on the terms set forth
herein;
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NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
1. Definitions. Unless otherwise defined herein, terms defined
in the February 1997 Five-Year Agreement and Amendment shall be used as so
defined.
2. Amendments to the February 1997 Five-Year Agreement and
Amendment in respect of the Letter of Credit Facility. (a) Section 3 of the
February 1997 Five-Year Agreement and Amendment is hereby amended as follows:
(1) by inserting in such section the following new defined terms in
proper alphabetical order:
"`Aggregate Outstanding Extensions of Credit`: as to any Bank
at any time, an amount equal to the sum of (a) the aggregate principal
amount of all Loans made by such Bank then outstanding and (b) such
Bank's Commitment Percentage of the L/C Obligations then outstanding.";
"`Application`: an application, in such form as the Issuing
Bank may specify from time to time, requesting the Issuing Bank to open
a Letter of Credit.";
"`Issuing Bank`: Chase or any of its Affiliates in their
capacity as issuer of any Letter of Credit.";
"`L/C Commitment`: $1,250,000,000.";
"`L/C Fee Payment Date`: the last day of each March, and June,
September and December.";
"`L/C Obligations`: at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then
outstanding Letters of Credit and (b) the aggregate amount of drawings
under Letters of Credit which have not then been reimbursed pursuant to
subsection 2A.5(a).";
"`L/C Participants`: the collective reference to all the Banks
other than the Issuing Bank.";
"`Letters of Credit`: as defined in paragraph 2A.1(a).";
"`Reimbursement Obligation`: the obligation of the Company to
reimburse the Issuing Bank pursuant to subsection 2A.5(a) for amounts
drawn under Letters of Credit.";
"`Uniform Customs`: the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, as the same may be amended from time to time.";
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(2) by deleting the defined terms "Available Commitment", "Borrowing
Date", "Commitment" and "Loan Documents" in their entirety and
substituting in lieu thereof the following new defined terms in proper
alphabetical order:
"`Available Commitment`: as to any Bank, at any time, an
amount equal to the excess, if any, of (a) such Bank's Commitment over
(b) such Bank's Aggregate Outstanding Extensions of Credit.";
"`Borrowing Date`: any Business Day specified in a notice
pursuant to subsection 2.1(c), 2.2(b) or 2A.2 as a date on which the
Company requests the Banks to make Revolving Credit Loans or CAF Loans
or issue Letters of Credit, as the case may be, hereunder.";
"`Commitment`: as to any Bank, the obligation of such Bank to
make Loans to and/or issue or participate in Letters of Credit issued
on behalf of the Company hereunder in an aggregate principal and/or
face amount at any one time outstanding not to exceed the amount set
forth opposite such Bank's name on Schedule I.";
"`Loan Documents`: this Agreement, the Notes and the
Applications.".
(b) The February 1997 Five-Year Agreement and Amendment is hereby
amended by adding the following new Sections after Section 5A reading as
follows:
(1) "SECTION 5B. Letter of Credit Facility. The Five-Year Composite
Conformed Credit Agreement as adopted and incorporated by reference
into this February 1997 Five-Year Agreement and Amendment is hereby
amended by adding the following new Section 2A immediately prior to
Section 3 as follows:
`SECTION 2A. LETTERS OF CREDIT
2A.1 L/C Commitment. (a) Subject to the terms and conditions
hereof, the Issuing Bank, in reliance on the agreements of the other
Banks set forth in subsection 2A.4(a), agrees to issue letters of
credit (such letters of credit, "Letters of Credit") for the account of
the Company on any Business Day during the Commitment Period in such
form as may be approved from time to time by the Issuing Bank; provided
that the Issuing Bank shall have no obligation to issue any Letter of
Credit if, after giving effect to such issuance, (1) the L/C
Obligations would exceed the L/C Commitment or (2) the aggregate amount
of the Available Commitments would be less than zero.
(b) Each Letter of Credit shall expire no later than the
earlier of (x) the first anniversary of its date of issuance (it being
agreed that a provision in a Letter of Credit for automatic renewal of
such Letter of Credit for a period of no more than one year at a time
in the absence of a termination notice shall not be deemed to be an
expiry date of later than the date such termination notice would be
effective) and (y) the date that is five Business Days prior to the
Termination Date, provided that any Letter of Credit with a
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one-year term may provide for the renewal thereof for additional
one-year periods (which shall in no event extend beyond the date
referred to in clause (y) above).
(c) The Issuing Bank shall not at any time be obligated to
issue any Letter of Credit hereunder if such issuance would conflict
with, or cause the Issuing Bank or any L/C Participant to exceed any
limits imposed by, any applicable Requirement of Law.
2A.2 Procedure for Issuance of Letters of Credit. The Company
may from time to time request that the Issuing Bank issue a Letter of
Credit by delivering to the Issuing Bank at its address for notices
specified herein an Application therefor, completed to the satisfaction
of the Issuing Bank, and such other certificates, documents and other
papers and information as the Issuing Bank may request. Upon receipt of
any Application, the Issuing Bank will process such Application and the
certificates, documents and other papers and information delivered to
it in connection therewith in accordance with its customary procedures
and shall promptly issue the Letter of Credit requested thereby (but in
no event shall the Issuing Bank be required to issue any Letter of
Credit earlier than three Business Days after its receipt of the
Application therefor and all such other certificates, documents and
other papers and information relating thereto) by issuing the original
of such Letter of Credit to the beneficiary thereof or as otherwise may
be agreed by the Issuing Bank and the Company. The Issuing Bank shall
furnish a copy of such Letter of Credit to the Company promptly
following the issuance thereof.
2A.3 Fees and Other Charges. (a) The Company will pay a fee on
all outstanding Letters of Credit at a per annum rate equal to the
Applicable Margin then in effect with respect to Eurodollar Loans,
shared ratably among the Banks and payable quarterly in arrears on each
L/C Fee Payment Date after the date of issuance of each Letter of
Credit. In addition, the Company shall pay to the Agent, for the
account of the Issuing Bank, a fronting fee with respect to each Letter
of Credit in an amount equal to 0.125% of the face amount of such
Letter of Credit. Such fronting fee shall be payable quarterly in
arrears and shall be nonrefundable.
(b) In addition to the foregoing fees, the Company shall pay
or reimburse the Issuing Bank for such normal and customary costs and
expenses as are incurred or charged by the Issuing Bank in issuing,
effecting payment under, amending or otherwise administering any Letter
of Credit.
(c) The Agent shall, promptly following its receipt thereof,
distribute to the Issuing Bank and the L/C Participants all fees
received by the Agent for their respective accounts pursuant to this
subsection.
2A.4 L/C Participations. (a) The Issuing Bank irrevocably
agrees to grant and hereby grants to each L/C Participant, and, to
induce the Issuing Bank to issue Letters of Credit hereunder, each L/C
Participant irrevocably agrees to accept and purchase and hereby
accepts and purchases from the Issuing Bank, on the terms and
conditions hereinafter stated, for such L/C Participant's own account
and risk an undivided interest
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equal to such L/C Participant's Commitment Percentage in the Issuing
Bank's obligations and rights under each Letter of Credit issued
hereunder and the amount of each draft paid by the Issuing Bank
thereunder. Each L/C Participant unconditionally and irrevocably agrees
with the Issuing Bank that, if a draft is paid under any Letter of
Credit for which the Issuing Bank is not reimbursed in full by the
Company in accordance with the terms of this Agreement, such L/C
Participant shall pay to the Issuing Bank upon demand at the Issuing
Bank's address specified herein an amount equal to such L/C
Participant's Commitment Percentage of the amount of such draft, or any
part thereof, which is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant
to the Issuing Bank pursuant to paragraph 2A.4(a) in respect of any
unreimbursed portion of any payment made by the Issuing Bank under any
Letter of Credit is paid to the Issuing Bank within three Business Days
after the date such payment is due, such L/C Participant shall pay to
the Issuing Bank on demand an amount equal to the product of (1) such
amount, times (2) the daily average Federal funds rate, as quoted by
the Issuing Bank, during the period from and including the date such
payment is required to the date on which such payment is immediately
available to the Issuing Bank, times (3) a fraction the numerator of
which is the number of days that elapse during such period and the
denominator of which is 360. If any such amount required to be paid by
any L/C Participant pursuant to paragraph 2A.4(a) is not in fact made
available to the Issuing Bank by such L/C Participant within three
Business Days after the date such payment is due, the Issuing Bank
shall be entitled to recover from such L/C Participant, on demand, such
amount with interest thereon calculated from such due date at the rate
per annum applicable to Alternate Base Rate Loans hereunder. A
certificate of the Issuing Bank submitted to any L/C Participant with
respect to any amounts owing under this subsection shall be conclusive
in the absence of manifest error.
(c) Whenever, at any time after the Issuing Bank has made
payment under any Letter of Credit and has received from any L/C
Participant its pro rata share of such payment in accordance with
subsection 2A.4(a), the Issuing Bank receives any payment related to
such Letter of Credit (whether directly from the Company or otherwise,
including proceeds of collateral applied thereto by the Issuing Bank),
or any payment of interest on account thereof, the Issuing Bank will
distribute to such L/C Participant its pro rata share thereof;
provided, however, that in the event that any such payment received by
the Issuing Bank shall be required to be returned by the Issuing Bank,
such L/C Participant shall return to the Issuing Bank the portion
thereof previously distributed by the Issuing Bank to it.
2A.5 Reimbursement Obligation of the Company. (a) The Company
agrees to reimburse the Issuing Bank on each date on which the Issuing
Bank notifies the Company of the date and amount of a draft presented
under any Letter of Credit and paid by the Issuing Bank for the amount
of (1) such draft so paid and (2) any taxes, fees, charges or other
costs or expenses incurred by the Issuing Bank in connection with such
payment. Each such payment shall be made to the Issuing Bank at its
address for notices specified
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herein in lawful money of the United States of America and in
immediately available funds.
(b) Interest shall be payable on any and all amounts remaining
unpaid by the Company under this subsection from the date such amounts
become payable (whether at stated maturity, by acceleration or
otherwise) until payment in full at the rate set forth in (i) until the
second Business Day following the date of the applicable drawing,
subsection 2.7(b) and (ii) thereafter, subsection 2.7(c).
2A.6 Obligations Absolute. (a) The Company's obligations under
this Section 2A shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense
to payment which the Company may have or have had against the Issuing
Bank or any beneficiary of a Letter of Credit.
(b) The Company also agrees with the Issuing Bank that the
Issuing Bank shall not be responsible for, and the Company's
Reimbursement Obligations under subsection 2A.5(a) shall not be
affected by, among other things, (1) the validity or genuineness of
documents or of any endorsements thereon, even though such documents
shall in fact prove to be invalid, fraudulent or forged, or (2) any
dispute between or among the Company and any beneficiary of any Letter
of Credit or any other party to which such Letter of Credit may be
transferred or (3) any claims whatsoever of the Company against any
beneficiary of such Letter of Credit or any such transferee.
(c) The Issuing Bank shall not be liable for any error,
omission, interruption or delay in transmission, dispatch or delivery
of any message or advice, however transmitted, in connection with any
Letter of Credit, except for errors or omissions caused by the Issuing
Bank's gross negligence or willful misconduct.
(d) The Company agrees that any action taken or omitted by the
Issuing Bank under or in connection with any Letter of Credit or the
related drafts or documents, if done in the absence of gross negligence
of willful misconduct and in accordance with the standards of care
specified in the Uniform Commercial Code of the State of New York,
shall be binding on the Company and shall not result in any liability
of the Issuing Bank to the Company.
2A.7 Letter of Credit Payments. If any draft shall be
presented for payment under any Letter of Credit, the Issuing Bank
shall promptly notify the Company of the date and amount thereof. The
responsibility of the Issuing Bank to the Company in connection with
any draft presented for payment under any Letter of Credit shall, in
addition to any payment obligation expressly provided for in such
Letter of Credit, be limited to determining that the documents
(including each draft) delivered under such Letter of Credit in
connection with such presentment are in conformity with such Letter of
Credit.
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2A.8 Application. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the
provisions of this Section 2A, the provisions of this Section 2A shall
apply.`".
(2) "SECTION 5C. Paragraph (a) of subsection 2.1 of the Five-Year
Composite Conformed Credit Agreement as adopted and incorporated by
reference into this February 1997 Five-Year Agreement and Amendment is
hereby amended by deleting the first sentence of such paragraph (a) and
substituting in lieu thereof the following:
`Subject to the terms and conditions hereof, each
Bank severally agrees to make loans ("Revolving Credit Loans")
to the Company from time to time during the Commitment Period
in an aggregate principal amount at any one time outstanding
which, when added to such Bank's Commitment Percentage of the
then outstanding L/C Obligations, does not exceed the amount
of such Bank's Commitment.`".
(3) "SECTION 5D. Paragraph (a) of subsection 2.4 of the Five-Year
Composite Conformed Credit Agreement as adopted and incorporated by
reference into this February 1997 Five-Year Agreement and Amendment is
hereby amended by deleting the proviso at the end of the first sentence
of such paragraph (a) and substituting in lieu thereof the following:
`provided that no such termination or reduction shall be
permitted if, after giving effect thereto and to any
prepayments of the Revolving Credit Loans made on the
effective date thereof, the aggregate principal amount of the
Revolving Credit Loans then outstanding, when added to the
then outstanding L/C Obligations, would exceed the Commitments
then in effect.`".
(4) "SECTION 5E. Clause (i) of paragraph (a) of subsection 2.12 of the
Five-Year Composite Conformed Credit Agreement as adopted and
incorporated by reference into this February 1997 Five-Year Agreement
and Amendment is hereby amended by deleting such clause (i) of such
paragraph and substituting in lieu thereof the following:
`(i) shall subject any Bank to any tax of any kind
whatsoever with respect to this Agreement, any Note, any
Letter of Credit, any Application or any Eurodollar Loan made
by it, or change the basis of taxation of payments to such
Bank in respect thereof (except for taxes covered by
subsection 2.14 and changes in the rate of tax on the overall
net income of such Bank);`".
(5) "SECTION 5F. Paragraph (a) of subsection 2.12 of the Five-Year
Composite Conformed Credit Agreement as adopted and incorporated by
reference into this February 1997 Five-Year Agreement and Amendment is
hereby amended by deleting the end of the first sentence of such
paragraph (a) and substituting in lieu thereof the following:
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`and the result of any of the foregoing is to increase the
cost to such Bank, by an amount which such Bank deems to be
material, of making, converting into, continuing or
maintaining Eurodollar Loans or issuing or participating in
Letters of Credit or to reduce any amount receivable hereunder
in respect thereof then, in any such case, the Company shall
promptly pay such Bank, upon its demand, any additional
amounts necessary to compensate such Bank for such increased
cost or reduced amount receivable.`".
(6) "SECTION 5G. Subsection 2.13 of the Five-Year Composite Conformed
Credit Agreement as adopted and incorporated by reference into this
February 1997 Five-Year Agreement and Amendment is hereby amended by
deleting the first sentence of such subsection 2.13 and substituting in
lieu thereof the following:
`In the event that any Bank shall have determined that any
change in any Requirement of Law regarding capital adequacy or
in the interpretation or application thereof or compliance by
such Bank or any corporation controlling such Bank with any
request or directive regarding capital adequacy (whether or
not having the force of law) from any Governmental Authority
made subsequent to the date hereof does or shall have the
effect of reducing the rate of return on such Bank's or such
corporation's capital as a consequence of its obligations
hereunder or under any Letter of Credit to a level below that
which such Bank or such corporation could have achieved but
for such change or compliance (taking into consideration such
Bank's or such corporation's policies with respect to capital
adequacy) by an amount deemed by such Bank to be material,
then from time to time, after submission by such Bank, through
the Agent, to the Company of a written request therefore (such
request shall include details reasonably sufficient to
establish the basis for such amounts payable and shall be
submitted to the Company within 30 Business Days after it
becomes aware of such fact), the Company shall pay to such
Bank such additional amount or amounts as will compensate such
Bank for such reduction.`".
(7) "SECTION 5H. Subsection 3.1 of the Five-Year Composite Conformed
Credit Agreement as adopted and incorporated by reference into this
February 1997 Five-Year Agreement and Amendment is hereby amended by
deleting the second sentence of such subsection 3.1 and substituting in
lieu thereof the following:
`The Company has all necessary corporate power and has taken
all corporate action required to make all the provisions of
this Agreement, the Notes, the Applications and all other
agreements and instruments executed in connection herewith and
therewith, the valid and enforceable obligations they purport
to be`".
(8) "SECTION 5I. Subsection 3.9 of the Five-Year Composite Conformed
Credit Agreement as adopted and incorporated by reference into this
February 1997 Five-Year Agreement and Amendment is hereby amended by
deleting such subsection 3.9 in its entirety and substituting in lieu
thereof the following:
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`3.9 No Legal Obstacle to Agreement. Neither the
execution and delivery of this Agreement, the Applications or
any Notes, nor the making by the Company of any borrowings
hereunder, nor the consummation of any transaction herein or
therein referred to or contemplated hereby or thereby nor the
fulfillment of the terms hereof or thereof or of any agreement
or instrument referred to in this Agreement, has constituted
or resulted in or will constitute or result in a breach of the
provisions of any contract to which the Company or any of its
Subsidiaries is a party or by which it is bound or of the
charter or by-laws of the Company, or the violation of any
law, judgment, decree or governmental order, rule or
regulation applicable to the Company or any of its
Subsidiaries, or result in the creation under any agreement or
instrument of any security interest, lien, charge or
encumbrance upon any of the assets of the Company or any of
its Subsidiaries. Other than those which have already been
obtained, no approval, authorization or other action by any
governmental authority or any other Person is required to be
obtained by the Company or any of its Subsidiaries in
connection with the execution, delivery and performance of
this Agreement, the Applications or the transactions
contemplated hereby, or the making of any borrowing by the
Company hereunder.`".
(9) "SECTION 5J. Section 4 of the Five-Year Composite Conformed Credit
Agreement as adopted and incorporated by reference into this February
1997 Five-Year Agreement and Amendment is hereby amended by deleting
the lead-in sentence of such Section 4 and substituting in lieu thereof
the following:
`The obligations of each Bank to make the extensions
of credit requested to be made by it shall be subject to the
compliance by the Company with its agreements herein contained
and to the satisfaction, immediately prior to or concurrently
with the making of such extensions of credit on the Closing
Date and each Borrowing Date of such of the following further
conditions as are applicable on the Closing Date or the
Borrowing Date, as the case may be:`".
(10) "Section 5K. Section 4.5 of the Five-Year Composite Conformed
Credit Agreement as adopted and incorporated by reference into this
February 1997 Five-Year Agreement and Amendment is hereby amended by
deleting such subsection 4.5 in its entirety and substituting in lieu
thereof the following:
4.5 Legality, etc. The making of any extension of
credit to be made by such Bank on each Borrowing Date shall
not subject such Bank to any penalty or special tax, shall not
be prohibited by any Requirement of Law applicable to such
Bank or the Company, and all necessary consents, approvals and
authorizations of any Governmental Authority or any Person to
or of any such extension of credit shall have been obtained
and shall be in full force and effect.`"
(11) "SECTION 5L. Section 5 of the Five-Year Composite Conformed Credit
Agreement as adopted and incorporated by reference into this February
1997 Five-Year
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Agreement and Amendment is hereby amended by deleting the lead-in
sentence of such Section 5 and substituting in lieu thereof the
following:
`On and after the date hereof, until all of the
Notes, any Letter of Credit and all other amounts payable
pursuant hereto shall have been paid in full and so long as
the Commitments shall remain in effect, the Company covenants
that the Company will comply, and will cause each of its
Subsidiaries to comply, with such of the provisions of this
Section 5 and such other provisions of this Agreement as are
applicable to the Person in question.`".
(12) "SECTION 5M. Paragraph (a) of subsection 6.1 of the Five-Year
Composite Conformed Credit Agreement as adopted and incorporated by
reference into this February 1997 Five-Year Agreement and Amendment is
hereby amended by deleting such paragraph (a) and substituting in lieu
thereof the following:
`(a) any default shall be made by the Company in any
payment in respect of: (i) interest on any of the Notes, on
any Reimbursement Obligation or any facility fee payable
hereunder as the same shall become due and such default shall
continue for a period of five days; or (ii) principal of any
of the Indebtedness evidenced by the Notes or any
Reimbursement Obligation as the same shall become due, whether
at maturity, by prepayment, by acceleration or otherwise;
or`".
(13) "SECTION 5N. The acceleration clause immediately following
paragraph (g) of subsection 6.1 of the Five-Year Composite Conformed
Credit Agreement as adopted and incorporated by reference into this
February 1997 Five-Year Agreement and Amendment is hereby amended by
deleting such acceleration clause in its entirety and substituting in
lieu thereof the following:
`then and in each and every such case, (x) the Agent may, with
the consent of the Required Banks, or shall, at the direction
of the Required Banks, proceed to protect and enforce the
rights of the Banks by suit in equity, action at law and/or
other appropriate proceeding either for specific performance
of any covenant or condition contained in this Agreement, any
Letter of Credit or any Note or in any instrument delivered to
each Bank pursuant to this Agreement, or in aid of the
exercise of any power granted in this Agreement, any Letter of
Credit or any Note or any such instrument or assignment, and
(y) the Agent may, with the consent of the Required Banks, or
shall, at the direction of the Required Banks, by notice in
writing to the Company terminate the obligations of the Banks
to make further extensions of credit hereunder, and thereupon
such obligations shall terminate forthwith and (z) (unless
there shall have occurred an Event of Default under subsection
6.1(f), in which case the obligations of the Banks to make
further extensions of credit hereunder shall automatically
terminate and the unpaid balance of the Notes and accrued
interest thereon and all other amounts payable hereunder
(including, without limitation, all amounts of L/C
Obligations, whether
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or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder
(collectively, the "Bank Obligations") shall automatically
become due and payable) the Agent may, with the consent of the
Required Banks, or shall, at the direction of the Required
Banks, by notice in writing to the Company declare all or any
part of the unpaid balance of the Bank Obligations then
outstanding to be forthwith due and payable, and thereupon
such unpaid balance or part thereof shall become so due and
payable without presentment, protest or further demand or
notice of any kind, all of which are hereby expressly waived,
the obligations of the Banks to make further extensions of
credit hereunder shall terminate forthwith, and the Agent may,
with the consent of the Required Banks, or shall, at the
direction of the Required Banks, proceed to enforce payment of
such balance or part thereof in such manner as the Agent may
elect, and each Bank may offset and apply toward the payment
of such balance or part thereof, and to the curing of any such
Event of Default, any Indebtedness from such Bank to the
Company, including any Indebtedness represented by deposits in
any general or special account maintained with such Bank.
With respect to all Letters of Credit with respect to
which presentment for honor shall not have occurred at the
time of an acceleration pursuant to the preceding paragraph,
the Company shall at such time deposit in a cash collateral
account opened by the Agent an amount equal to the aggregate
then undrawn and unexpired amount of such Letters of Credit.
The Company hereby grants to the Agent, for the benefit of the
Issuing Bank and the L/C Participants, a security interest in
such cash collateral to secure all obligations of the Company
under this Agreement and the other Loan Documents. Amounts
held in such cash collateral account shall be applied by the
Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters
of Credit shall have been expired or been fully drawn upon, if
any, shall be applied to repay other obligations of the
Company hereunder and under the Notes. After all such Letters
of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all
other obligations of the Company hereunder and under the Notes
shall have been paid in full, the balance, if any, in such
cash collateral account shall be returned to the Company. The
Company shall execute and deliver to the Agent, for the
account of the Issuing Bank and the L/C Participants, such
further documents and instruments as the Agent may request to
evidence the creation and perfection of the within security
interest in such cash collateral account`".
(14) "SECTION 5O. Subsection 7.8 of the Five-Year Composite Conformed
Credit Agreement as adopted and incorporated by reference into this
February 1997 Five-Year Agreement and Amendment is hereby amended by
deleting the second sentence of such subsection 7.8 and substituting in
lieu thereof the following:
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`With respect to its Loans made or renewed by it and any Note
issued to it and with respect to any Letter of Credit issued
or participated in by it, the Agent and the CAF Agent shall
have the same rights and powers under this Agreement and the
other Loan Documents as any Bank and may exercise the same as
though it were not the Agent, and the terms "Bank" and "Banks"
shall include the Agent in its individual capacity.`".
(15) "SECTION 5P. Subsection 8.7 of the Five-Year Composite Conformed
Credit Agreement as adopted and incorporated by reference into this
February 1997 Five-Year Agreement and Amendment is hereby amended by
deleting such subsection 8.7 in its entirety and substituting in lieu
thereof the following:
`8.7 Adjustments; Set-off. (a) If any Bank (a
"benefitted Bank") at any time shall receive any payment of
all or part of its Loans or its interests in the Reimbursement
Obligations owing to it, or interest thereon, or receive any
collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings
of the nature referred to in subsection 6.1(f), for
otherwise), in a greater proportion than any such payment to
or collateral received by any other Bank, if any, in respect
of such other Bank's Loans or its interests in the
Reimbursement Obligations owing to it, or interest thereon,
such benefitted Bank shall purchase for cash from the other
Banks such portion of each such other Bank's Loan or its
interests in the Reimbursement Obligations owing to it, or
shall provide such other Banks with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to
cause such benefitted Bank to share the excess payment or
benefits of such collateral or proceeds ratably with each of
the Banks; provided, however, that if all or any portion of
such excess payment or benefits is thereafter recovered from
such Benefitted Bank, such purchase shall be rescinded, and
the purchase price and benefits returned, to the extent of
such recovery, but without interest. The Company agrees that
each Bank so purchasing a portion of another Bank's Loan may
exercise all rights of payment (including, without limitation,
rights of set-off) with respect to such portion as fully as if
such Bank were the direct holder of such portion.`".
3. Other Amendments to the February 1997 Agreement and
Amendment. (a) Section 3 of the February 1997 Five-Year Agreement and Amendment
is hereby amended as follows:
(1) by inserting in such section the following new defined
terms in proper alphabetical order:
"`Fifth Amendment`: Fifth Amendment dated March 30,
1999 to the Five-Year Agreement and Amendment."
"`Fifth Amendment Date`: March 30, 1999."
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13
"`LifePoint`: LifePoint Hospitals, Inc., Delaware
corporation to be formed."
"`Triad`: Triad Hospitals, Inc., a Delaware
corporation to be formed."
(2) 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
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."
(b) Section 6B of the February 1997 Five-Year Agreement and
Amendment is hereby amended by adding the following new paragraphs after Section
6B as follows:
"SECTION 6C. Pension Plans. The Five-Year Composite Conformed
Credit Agreement as adopted and incorporated by reference to this
February 1997 Five-Year Agreement and Amendment is hereby amended by
deleting subsection 3.12 in its entirety and substituting in lieu
thereof the following:
`3.12. Pension Plans. Each Plan maintained by the Company, any
Subsidiary or any Control Group Person or to which any of them
makes or will make contributions is in material compliance
with the applicable provisions of ERISA and the Code. Neither
the Company, any Subsidiary, nor any Control Group Person has
since August 31, 1986 maintained, contributed to or
participated in any Multiemployer Plan, with respect to which
a complete withdrawal would result in any withdrawal
liability. The Company and its Subsidiaries have met all of
the funding standards applicable to all Plans that are not
Multiemployer Plans, and there exists no event or condition
which would permit the institution of proceedings to terminate
any Plan that is not a Multiemployer Plan. The current value
of the benefits guaranteed under Title IV of ERISA of each
Plan that is not a Multiemployer Plan does not exceed the
current value of such Plan's assets allocable to such
benefits.`"
"SECTION 6D. Year 2000 Matters. The Five-Year Composite
Conformed Credit Agreement as adopted and incorporated by reference to
this February 1997 Five-
14
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Year Agreement and Amendment is hereby amended by adding the following
new subsection immediately following subsection 3.16 therein as
follows:
`3.17 Year 2000 Matters. As of the Fifth Amendment Date, any
reprogramming required to permit the proper functioning (but
only to the extent that such proper functioning would
otherwise be materially impaired by the occurrence of the year
2000) in the year 2000 of computer systems and other equipment
containing embedded microchips, in either case owned or
operated by the Company or any of its Subsidiaries or used or
relied upon in the conduct of their business (including any
such systems and other equipment supplied by others or with
which the computer systems of the Company or any of its
Subsidiaries interface), and the testing of all material
systems and other equipment as so reprogrammed, will be
completed by 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. As of the Fifth Amendment Date, the
costs to the Company and its Subsidiaries that have not been
incurred as of the date hereof for such reprogramming and
testing and for the other reasonably foreseeable consequences
to them of any improper functioning of other computer systems
and equipment containing embedded microchips due to the
occurrence of the year 2000 could not reasonably be expected
to result in a Default or Event of Default or to have 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.`".
(c) Section 8I of the February 1997 Five-Year Agreement and
Amendment is hereby amended by deleting such subsection in its entirety and
substituting in lieu thereof the following:
"SECTION 8I. Sales of Assets. Subsection 5.10 of the Five-Year
Composite Conformed Credit Agreement as adopted and incorporated by
reference into this February 1997 Five-Year Agreement and Amendment is
hereby amended by deleting such subsection in its entirety and
substituting in lieu thereof the following:
`5.10 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
15
15
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 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).`".
(d) Section 8K of the February 1997 Five-Year Agreement and
Amendment is hereby amended by deleting such section in its entirety and
substituting in lieu thereof the following:
"SECTION 8K. Company Officers' Certificate. Subsection 4.3 of
the Five-Year Composite Conformed Credit Agreement as adopted and
incorporated by reference into this February 1997 Five-Year Agreement
and Amendment is hereby amended by deleting such subsection in its
entirety and substituting in lieu thereof the following:
`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
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16
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, 1994 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, 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`".
(e) The February 1997 Five-Year Agreement and Amendment is
hereby amended by adding the following new paragraphs after Section 8K reading
as follows:
"SECTION 8L. ERISA Reports. Subsection 5.5(d) of the Five-Year
Composite Conformed Credit as adopted and incorporated by reference into this
February 1997 Five-Year Agreement and Amendment is hereby amended by deleting
such subsection in its entirety and substituting in lieu thereof the following:
`5.5(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 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
17
17
$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.`".
"SECTION 8M. Compliance with ERISA. Subsection 5.11 of the
Five-Year Composite Conformed Credit Agreement as adopted and incorporated by
reference into this February 1997 Five-Year Agreement and Amendment is hereby
amended by deleting such subsection in its entirety and substituting in lieu
thereof the following:
"`5.11 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.`".
"SECTION 8N. Negative Pledge. Subsection 5.12 of the Five-Year
Composite Conformed Credit Agreement as adopted and incorporated by reference
into this February 1997 Five-Year Agreement and Amendment is hereby amended by
deleting such subsection in its entirety and substituting in lieu thereof the
following:
`5.12 Negative Pledge. The Company will not and will ensure
that no Subsidiary will create or have outstanding any
security on or over any Principal Property in respect of any
Indebtedness and the Company will not create or have
outstanding any security on or over the capital stock of any
of its Subsidiaries that own a Principal Property and will
ensure that no Subsidiary will create or have outstanding any
security on or over the capital stock of any of its respective
Subsidiaries that own a Principal Property except in either
case for:
(a) any security for the purchase price or cost of
construction of real property acquired by the Company or any
of its Subsidiaries (or additions, substantial repairs,
alterations or substantial improvements thereto) or equipment,
provided that such Indebtedness and such security are incurred
within 18 months of the acquisition or completion of
construction (or alteration or repair) and full operation;
18
18
(b) any security existing on property or on capital stock, as
the case may be, at the time of acquisition of such property
or capital stock, as the case maybe, by the Company or a
Subsidiary or on the property or capital stock, as the case
may be, of a corporation at the time of the acquisition of
such corporation by the Company or a Subsidiary (including
acquisitions through merger or consolidation);
(c) any security created in favor of the Company or a
Subsidiary;
(d) any security created by operation of law in favor of
government agencies of the United States of America or any
State thereof;
(e) any security created in connection with the borrowing of
funds if within 120 days such funds are used to repay
Indebtedness in at least the same principal amount as secured
by other security of Principal Property or capital stock of a
Subsidiary that owns a Principal Property, as the case may be,
with an independent appraised fair market value at least equal
to the appraised fair market value of the Principal Property
or capital stock of a Subsidiary that owns a Principal
Property, as the case may be, secured by the new security; and
(f) any extension, renewal or replacement of any security
referred to in the foregoing clauses (a) through (e) provided
that the amount thereby secured is not increased;
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 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 Life Point 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).`".
"SECTION 8O. Transactions with Affiliates. Subsection 5.3 of
the Five-Year Composite Conformed Credit Agreement as adopted and
incorporated by reference into this February 1997 Five-Year Agreement
and Amendment is hereby amended by deleting such subsection in its
entirety and substituting the following:
19
19
`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 Life Point 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.`".
"SECTION 8P. Merger or Consolidation. Subsection 5.9 of the
Five-Year Composite Conformed Credit Agreement as adopted and
incorporated by reference into this February 1997 Five-year Agreement
and Amendment is hereby amended by deleting such subsection in its
entirety and substituting the following:
`5.9 Merger or Consolidation. The Company will not become a
constituent corporation in any merger or consolidation unless
the Company shall be the surviving or resulting corporation
and immediately before and after giving effect to such merger
or consolidation there shall exist no Default; provided that
the Company may merge into another Subsidiary owned by the
Company for the purposes of causing the Company to be
incorporated in a different jurisdiction in the United States
or causing the Company to change its name.`".
4. Effective Date; Conditions Precedent. This Fifth 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 Fifth 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 Five-Year Composite Conformed
Credit Agreement as adopted and incorporated by reference into, and as
amended by, the February 1997 Five-Year Agreement and Amendment (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
20
20
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 Fifth 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) Amendment to July 1998 Term Loan Facility. The July
1998 Term Loan Facility shall have been amended in a manner
corresponding to the amendments contained in Section 3 hereof.
5. Legal Obligation. The Company represents and warrants to
each Bank that this Fifth Amendment constitutes the legal, valid and binding
obligation of the Company, enforceable against it in accordance with its terms,
subject to the effects of bankruptcy, insolvency, fraudulent conveyances,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
6. Continuing Effect; Application. Except as expressly amended
hereby, the February 1997 Five-Year Agreement and Amendment shall continue to be
and shall remain in full force and effect in accordance with its terms.
7. 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 Fifth 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.
8. GOVERNING LAW. THIS FIFTH AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS FIFTH AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9. Counterparts. This Fifth Amendment may be executed by one
or more of the parties to this Fifth 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 Fifth
Amendment signed by all the parties shall be lodged with the Company and the
Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
COLUMBIA/HCA HEALTHCARE CORPORATION
By: /s/ David G. Anderson
------------------------------------
Name: David G. Anderson
Title: Vice President-Finance and
Treasurer
THE CHASE MANHATTAN BANK, as Agent, as
CAF Loan Agent and as a Bank
By: /s/ Dawn Lee Lum
------------------------------------
Name: Dawn Lee Lum
Title: Vice President
THE CHASE MANHATTAN BANK or any of its
Affiliates, as Issuing 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
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22
ARAB BANK PLC, GRAND CAYMAN BRANCH, as a
Bank
By: /s/ Nofal Barbar
------------------------------------
Name: Nofal Barbar
Title: Executive Vice President and
Regional Manager
BANCA MONTE DEI PASCHI DI SIENA SpA, as
a Bank
By: /s/ G. Natalicchi
------------------------------------
Name: G. Natalicchi
Title: Senior Vice President and
General Manager
By: /s/ Brian R. Landy
------------------------------------
Name: Brian R. Landy
Title: Vice President
BANCA NAZIONALE DEL LAVORO, SpA, as a
Bank
By: /s/ Giulio Giovine
------------------------------------
Name: Giulio Giovine
Title: Vice President
By: /s/ Leonardo Valentini
------------------------------------
Name: Leonardo Valentini
Title: First Vice President
BANK ONE TEXAS, N.A., as a Bank
By: /s/ L. Richard Schiller
------------------------------------
Name: L. Richard Schiller
Title: Vice President
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23
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Co-Agent and
as a Bank
By: /s/ Kevin Wagley
------------------------------------
Name: Kevin Wagley
Title: Vice President
THE BANK OF NEW YORK, as a Co-Agent and
as a Bank
By: /s/ Ann Marie Hughes
------------------------------------
Name: Ann Marie Hughes
Title: Vice President
THE BANK OF NOVA SCOTIA, as a Bank
By: /s/ W.J. Brown
------------------------------------
Name: W.J. Brown
Title: Vice President
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
as a Bank
By: /s/ Jesse A. Reid, Jr.
------------------------------------
Name: Jesse A. Reid, Jr.
Title: Vice President
BANQUE NATIONALE DE PARIS -Houston
Agency, as a Bank
By: /s/ Warren G. Parham
------------------------------------
Name: Warren G. Parham
Title: Vice President
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24
BARNETT BANK, N.A., as a Bank
By:
------------------------------------
Name:
Title:
CITIBANK, N.A., as a Bank
By: /s/ Gregory K. Park
------------------------------------
Name: Gregory K. Park
Title: Vice President
COMERICA BANK, as a Bank
By: /s/ Colleen M. Murphy
------------------------------------
Name: Colleen M. Murphy
Title: Assistant Vice President
CORESTATES BANK, N.A., as a Bank
By:
------------------------------------
Name:
Title:
CRESTAR BANK, as a Bank
By: /s/ C. Gray Key
------------------------------------
Name: C. Gray Key
Title: Vice President
THE DAI-ICHI KANGYO BANK, LIMITED,
ATLANTA AGENCY, as a Bank
By: /s/ Christopher Fahey
------------------------------------
Name: Christopher Fahey
Title: Vice President
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25
DEN DANSKE BANK AKTIESELSKAB, as a Bank
CAYMAN ISLANDS BRANCH c/o New York
Branch
By: /s/ Dennis T. Shugrue
------------------------------------
Name: Dennis T. Shugrue
Title: Assistant Vice President
By: /s/ John A. O'Neill
------------------------------------
Name: John A. O'Neill
Title: Vice President
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCH(ES), as a Co-Agent
and as a Bank
By: /s/ Susan L. Pearson
------------------------------------
Name: Susan L. Pearson
Title: Director
By: /s/ Stephan A. Wiedemann
------------------------------------
Name: Stephan A. Wiedemann
Title: Director
FIRST HAWAIIAN BANK, as a Bank
By: /s/ Charles L. Jenkins
------------------------------------
Name: Charles L. Jenkins
Title: Vice President, Manager
FIRST AMERICAN NATIONAL BANK, as a Bank
By: /s/ Sandy Hamrick
------------------------------------
Name: Sandy Hamrick
Title: Senior Vice President
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26
THE FIRST NATIONAL BANK OF CHICAGO,
as a Bank
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 a Co-Agent and
as a Bank
By: /s/ Maryann Smith
------------------------------------
Name: Maryann Smith
Title: Vice President
THE FUJI BANK LIMITED, as a Co-Agent
and as a Bank
By: /s/ Raymond Ventura
------------------------------------
Name: Raymond Ventura
Title: Vice President and Manager
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
ATLANTA AGENCY, as a Co-Agent and as a
Bank
By: /s/ Koichi Hasegawa
------------------------------------
Name: Koichi Hasegawa
Title: Senior Vice President and
Deputy General Manager
27
27
KEYBANK NATIONAL ASSOCIATION, as a Bank
By: /s/ Thomas J. Purcell
------------------------------------
Name: Thomas J. Purcell
Title: Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION, as a Bank
By: /s/ Beatrice E. Kossodo
------------------------------------
Name: Beatrice E. Kossodo
Title: Senior Vice President
THE MITSUI TRUST AND BANKING COMPANY,
LIMITED, NEW YORK BRANCH, as a Bank
By: /s/ Margaret Holloway
------------------------------------
Name: Margaret Holloway
Title: Vice President and Manager
NATIONAL CITY BANK OF KENTUCKY, as a
Bank
By: /s/ Deroy Scott
------------------------------------
Name: Deroy Scott
Title: Vice President
NATIONSBANK, N.A. as a Co-Agent and as
a Bank
By: /s/ Kevin Wagley
------------------------------------
Name: Kevin Wagley
Title: Vice President
28
28
THE NORTHERN TRUST COMPANY, as a Bank
By: /s/ Christina L. Jaluc
------------------------------------
Name: Christina L. Jaluc
Title: Second Vice President
PNC BANK, N.A., as a Co-Agent and as a
Bank
By: /s/ Kathryn M. Bohr
------------------------------------
Name: Kathryn M. Bohr
Title: Vice President
THE SAKURA BANK, LTD. NEW YORK BRANCH,
as a Lead Manager and as a Bank
By: /s/ Yasuhiro Terada
------------------------------------
Name: Yasuhiro Terada
Title: Senior Vice President
THE SUMITOMO BANK, LIMITED, as a Lead
Manager and as a Bank
By: /s/ Gary Franke
------------------------------------
Name: Gary Franke
Title: Vice President and Manager
STB DELAWARE FUNDING TRUST I, as a Bank
By: /s/ Donald C. Hargadon
------------------------------------
Name: Donald C. Hargadon
Title: Assistant Vice President
29
29
SUNTRUST BANK, NASHVILLE, N.A., as a
Lead Manager and as a Bank
By:
------------------------------------
Name:
Title:
THE TOKAI BANK, LIMITED, NEW YORK
BRANCH, as a Bank
By: /s/ Shinichi Nakatani
------------------------------------
Name: Shinichi Nakatani
Title: Assistant General Manager
TORONTO DOMINION (TEXAS), INC., as a
Bank
By: /s/ Jimmy Simlen
------------------------------------
Name: Jimmy Simlen
Title: Vice President
THE TOKYO TRUST & BANKING CO., LTD., as
a Bank
By: /s/ M. Hosoda
------------------------------------
Name: M. Hosoda
Title: Vice President
UBS AG, STAMFORD BRANCH, as a Co-Agent
and as a Bank
By: /s/ Leo L. Baltz
------------------------------------
Name: Leo L. Baltz
Title: Director
By: /s/ Robert H. Riley III
------------------------------------
Name: Robert H. Riley III
Title: Executive Director
30
30
UNION PLANTERS BANK OF MIDDLE TENNESSEE,
N.A.
By: /s/ William A. Collier
------------------------------------
Name: William A. Collier
Title: Vice President
WACHOVIA BANK OF GEORGIA, N.A., as a
Co-Agent and as a Bank
By: /s/ Kenneth Washington
------------------------------------
Name: Kenneth Washington
Title: Vice President
WELLS FARGO BANK, N.A., as a Lead
Manager and as a Bank
By: /s/ Timothy A. McDevitt
------------------------------------
Name: Timothy A. McDevitt
Title: Vice President
By: /s/ Donald A. Hartmann
------------------------------------
Name: Donald A. Hartmann
Title: Senior Vice President
YASUDA TRUST AND BANKING CO., LTD., as
a Bank
By: /s/ Junichiro Kawamura
------------------------------------
Name: Junichiro Kawamura
Title: Vice President
31
31
THE NORINCHUKIN BANK, NEW YORK BRANCH,
as a Bank
By: /s/ Yoshiro Niiro
------------------------------------
Name: Yoshiro Niiro
Title: General Manager
NATIONAL WESTMINSTER BANK PLC
By: NatWest Capital Markets Limited,
its Agent
By: /s/ Jeremy Hood
------------------------------------
Name: Jeremy Hood
Title: Vice President
By: Greenwich Capital Markets, Inc.,
its Agent
By: /s/ Jeremy Hood
------------------------------------
Name: Jeremy Hood
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ William E. Magee
------------------------------------
Name: William E. Magee
Title: Duly Authorized Signatory
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Henry Reukauf
------------------------------------
Name: Henry Reukauf
Title: Vice President