EXHIBIT 4.9(f)
FIRST AMENDMENT
FIRST AMENDMENT, dated as of February 3, 1998 (this "First Amendment") to the
Agreement and Amendment dated as of June 17, 1997 (as the same may be amended,
supplemented or modified from time to time, the "June 1997 364-Day 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, CITIBANK, N.A., DEUTSCHE BANK AG, FLEET
NATIONAL BANK, THE FUJI BANK LIMITED, THE INDUSTRIAL BANK OF JAPAN, LIMITED,
ATLANTA AGENCY, XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, NATIONSBANK, N.A.,
PNC BANK, KENTUCKY, 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., XXXXX 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 (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 :
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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 "364-Day 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 Company, the several banks and other financial institutions and
Chase, as agent for the Banks hereunder and as CAF Loan Agent, were parties to
the Agreement and Amendment, dated as of February 26, 1997 (the "February 1997
364-Day Agreement and Amendment") which adopted and incorporated by reference
all of the terms and provisions of the 364-Day Composite Conformed Credit
Agreement, subject to the amendment thereto provided for in the February 1997
364-Day Agreement and Amendment;
WHEREAS, the February 1997 364-Day Agreement and Amendment was replaced by the
June 1997 364-Day Agreement and Amendment;
WHEREAS, the June 1997 364-Day Agreement and Amendment adopts and incorporates
by reference all of the terms and provisions of the 364-Day Composite Conformed
Credit Agreement, subject to the amendment thereto provided for in the June 1997
364-Day Agreement and Amendment;
WHEREAS, the parties hereto wish to amend certain provisions of the June 1997
364-Day Agreement and Amendment on the terms set forth herein;
NOW, THEREFORE, in consideration of the premises and of the mutual agreements
herein contained, the parties hereto agree as follows:
1. Definitions. Unless otherwise defined herein, terms defined in the June
1997 364-Day Agreement and Amendment shall be used as so defined.
2. Amendments to the June 1997 364-Day Agreement and Amendment.
(a) Section 3 of the June 1997 364-Day Agreement and Amendment is
hereby amended as follows:
(i) by deleting the defined terms "Applicable Margin",
"Consolidated Earnings Before Interest and Taxes" and "Consolidated
Tangible Net Worth" in their entirety and substituting in lieu thereof the
following defined terms in proper alphabetical order:
"`Applicable Margin': (a) for the period up to the First Amendment
Effective Date (i) with respect to Alternate Base Rate Loans, 0% per annum
and (ii) with respect to Eurodollar Loans, 0.20%; and (b) for the period
after and including the First Amendment Effective Date (i) with respect to
Alternate Base Rate Loans, 0% per annum and (ii) with respect to Eurodollar
Loans, 0.3125%.";
"`Consolidated Earnings Before Interest and Taxes': for any period for
which the amount thereof is to be determined, Consolidated Net Income for
such period plus (i) all amounts deducted in computing such Consolidated
Net Income in respect of interest expense on Indebtedness and income taxes
and (ii) non-cash non-recurring charges (including charges as a result of
changes in method of accounting) and adjustments for impairment of long-
lived assets in accordance with original pronouncement number 121 of the
Financial Accounting Standards Board incurred or made as of or for the
fiscal quarters ending September 30, 1997 and December 31, 1997 not
exceeding in the aggregate $1,200,000,000 on a pre-tax basis, all
determined in accordance with GAAP."; and
"`Consolidated Tangible Net Worth': Consolidated Assets of the Company
and its Subsidiaries, plus non-cash non-recurring charges (including
charges as a result of changes in method of accounting) and adjustments for
impairment of long-lived assets in accordance with original pronouncement
number 121 of the Financial Accounting Standards Board incurred or made as
of or for the fiscal quarters ending September 30, 1997 and December 31,
1997 not exceeding in the aggregate $1,200,000,000 on a pre-tax basis, less
the following:
(a) the amount, if any, at which any treasury stock appears on the
assets side of the balance sheet;
(b) an amount equal to goodwill;
(c) any write up in book value of assets resulting from any
revaluation made after December 31, 1992 in the case of the Company and
its Subsidiaries (excluding Galen and its Subsidiaries) and HCA and its
Subsidiaries and August 31, 1993 in the case of Galen and its
Subsidiaries;
(d) an amount equal to all amounts which appear or should appear as a
credit on the balance sheet of the Company in respect of any class or
series of preferred stock of the Company; and
(e) all liabilities which in accordance with GAAP should be reflected
as liabilities on such consolidated balance sheet, but in any event
including all Indebtedness.".
(ii) by inserting in such section the following new defined term in
proper alphabetical order:
"`First Amendment Effective Date': the Effective Date as defined in the
First Amendment, dated as of February 3, 1998, to this Agreement."
(b) Section 5 of the June 1997 364-Day Agreement and Amendment is hereby
amended by deleting such section in its entirety and substituting in lieu
thereof the following new Section 5:
"SECTION 5. Facility Fee. For purposes of this Agreement, subsection
2.3(a) of the 364-Day Composite Conformed Credit Agreement as adopted and
incorporated by reference into this Agreement is hereby amended by deleting
such subsection in its entirety and substituting in lieu thereof the
following:
(a) The Company agrees to pay to the Agent for the account of each Bank
a facility fee (i) in respect of the period from and including the first day
of the Commitment Period up to the First Amendment Effective Date, at the rate
of 0.050% per annum, and (ii) in respect of the period from and including the
First Amendment Effective Date to the Termination Date, at the rate of 0.1875%
per annum, in each case computed on the average daily amount of the Commitment
of such Bank during the period for which payment is made, payable quarterly on
the last day of each March, June, September and December and on any earlier
date on which the Commitments shall terminate as provided herein and the
Revolving Credit Loans shall have been repaid in full, commencing on the first
of such dates to occur after the date hereof.'".
(c) Schedule V to the June 1997 364-Day Agreement and Amendment is
hereby amended by deleting Schedule V in its entirety and substituting in lieu
thereof Schedule V attached hereto as Schedule V.
3. Effective Date; Conditions Precedent. This First Amendment will
become effective on February 3, 1998 (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 further condition that the
Agent shall have received copies of this First Amendment, executed and delivered
by a duly authorized officer of the Company, with a counterpart for each Bank,
and executed and delivered by the Required Lenders.
4. Legal Obligation. The Company represents and warrants to each Bank
that this First Amendment constitutes the legal, valid and binding obligation of
the Company, enforceable against it in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyances, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing.
5. Continuing Effect; Application. Except as expressly amended hereby,
the June 1997 364-Day Agreement and Amendment shall continue to be and shall
remain in full force and effect in accordance with its terms. The parties hereto
agree that the amendments contained herein to the June 1997 364-Day Agreement
and Amendment shall be applicable in determining compliance with the covenants
contained in subsections 5.6 and 5.7 of the 364-Day Composite Conformed Credit
Agreement as adopted and incorporated by reference into, and as amended by, the
June 1997 364-Day Agreement and Amendment, for any date on or after December 31,
1997 and for the period ended December 31, 1997.
6. Expenses. The Company agrees to pay or reimburse the Agent for all of
its reasonable out-of-pocket costs and expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement or
modification to, this First Amendment and any other documents prepared in
connection herewith, and the consummation of the transactions contemplated
hereby and thereby, including, without limitation, the reasonable fees and
disbursements of counsel to the Agent.
7. GOVERNING LAW. THIS FIRST AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS FIRST AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8. Counterparts. This First Amendment may be executed by one or more of
the parties to this First Amendment on any number of separate counterparts and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument. A set of the copies of this First Amendment signed by all
the parties shall be lodged with the Company and the Agent.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
COLUMBIA/HCA HEALTHCARE CORPORATION
By:
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Name:
Title:
THE CHASE MANHATTAN BANK, as Agent, as CAF
Loan Agent and as a Bank
By:
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Name:
Title:
ABN AMRO BANK N.V., as a Bank
By:
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Name:
Title:
By:
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Name:
Title:
ARAB BANK PLC, GRAND CAYMAN BRANCH, as a Bank
By:
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Name:
Title:
BANCA MONTE DEI PASCHI DI SIENA SpA, as a Bank
By:
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Name:
Title:
By:
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Name:
Title:
BANK ONE TEXAS, N.A., as a Bank
By:
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Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as a Co-Agent and as a Bank
By:
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Name:
Title:
THE BANK OF NEW YORK, as a Co-Agent and as a Bank
By:
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Name:
Title:
THE BANK OF NOVA SCOTIA, as a Bank
By:
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Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST COMPANY, as a Bank
By:
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Name:
Title:
BANQUE NATIONALE DE PARIS -Houston Agency, as a Bank
By:
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Name:
Title:
XXXXXXX BANK, N.A., as a Bank
By:
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Name:
Title:
CITIBANK, N.A., as a Bank
By:
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Name:
Title:
COMERICA BANK, as a Bank
By:
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Name:
Title:
CORESTATES BANK, N.A., as a Bank
By:
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Name:
Title:
CRESTAR BANK, as a Bank
By:
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Name:
Title:
THE DAI-ICHI KANGYO BANK, LIMITED, ATLANTA AGENCY, as a
Bank
By:
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Name:
Title:
DEUTSCHE BANK AG, NEW YORK AND/OR CAYMAN ISLANDS
BRANCH(ES), as a Co-Agent and as a Bank
By:
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Name:
Title:
By:
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Name:
Title:
FIRST HAWAIIAN BANK, as a Bank
By:
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Name:
Title:
FIRST AMERICAN NATIONAL BANK, as a Bank
By:
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Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as a Bank
By:
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Name:
Title:
FIRST UNION NATIONAL BANK, as a Bank
By:
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Name:
Title:
FLEET NATIONAL BANK, as a Co-Agent and as a Bank
By:
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Name:
Title:
THE FUJI BANK LIMITED, as a Co-Agent and as a Bank
By:
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Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED, ATLANTA AGENCY,
as a Co-Agent and as a Bank
By:
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Name:
Title:
KEYBANK NATIONAL ASSOCIATION, as a Bank
By:
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Name:
Title:
THE MITSUBISHI TRUST AND BANKING CORPORATION, as a Bank
By:
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Name:
Title:
THE MITSUI TRUST AND BANKING COMPANY, LIMITED, NEW YORK
BRANCH, as a Bank
By:
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Name:
Title:
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as a Co-
Agent and as a Bank
By:
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Name:
Title:
NATIONAL CITY BANK OF KENTUCKY, as a Bank
By:
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Name:
Title:
NATIONSBANK, N.A. as a Co-Agent and as a Bank
By:
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Name:
Title:
THE NORINCHUKIN BANK, NEW YORK BRANCH, as a Bank
By:
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Name:
Title:
THE NORTHERN TRUST COMPANY, as a Bank
By:
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Name:
Title:
PNC BANK, KENTUCKY, INC. as a Co-Agent and as a Bank
By:
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Name:
Title:
THE SAKURA BANK, LTD. NEW YORK BRANCH, as a Lead
Manager and as a Bank
By:
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Name:
Title:
THE SUMITOMO BANK, LIMITED, as a Lead Manager and as a
Bank
By:
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Name:
Title:
THE SUMITOMO TRUST & BANKING CO., LTD., NEW YORK
BRANCH, as a Bank
By:
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Name:
Title:
SUNTRUST BANK, NASHVILLE, N.A., as a Lead Manager and
as a Bank
By:
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Name:
Title:
THE TOKAI BANK, LIMITED, NEW YORK BRANCH, as a Bank
By:
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Name:
Title:
TORONTO DOMINION (TEXAS), INC., as a Bank
By:
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Name:
Title:
THE TOYO TRUST & BANKING CO., LTD., as a Bank
By:
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Name:
Title:
UNION BANK OF SWITZERLAND, NEW YORK BRANCH, as a Co-
Agent and as a Bank
By:
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Name:
Title:
By:
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Name:
Title:
UNION PLANTERS BANK OF MIDDLE TENNESSEE, N.A.
By:
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Name:
Title:
WACHOVIA BANK OF GEORGIA, N.A., as a Co-Agent and as a
Bank
By:
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Name:
Title:
XXXXX FARGO BANK, N.A., as a Lead Manager and as a Bank
By:
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Name:
Title:
By:
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Name:
Title:
