EXHIBIT 4.10(f)
SECOND AMENDMENT
SECOND AMENDMENT, dated as of February 3, 1998 (this "Second Amendment") to
the Agreement and Amendment dated as of February 26, 1997, as amended by the
First Amendment, dated as of June 17, 1997 (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, XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, NATIONSBANK, N.A., PNC BANK,
KENTUCKY, INC., TORONTO DOMINION (TEXAS), INC., UNION BANK OF SWITZERLAND, NEW
YORK BRANCH AND WACHOVIA BANK OF GEORGIA, N.A., as Co-Agents (collectively, the
"Co-Agents"), THE SAKURA BANK, LTD. NEW YORK BRANCH, THE SUMITOMO BANK LIMITED,
SUNTRUST BANK, NASHVILLE, N.A., 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 "Five-Year Composite Conformed
Credit Agreement") of the Credit Agreement, dated as of February 10, 1994 as
incorporated by reference into and amended by the September 1994 Agreement and
Amendment, the February 1995 Agreement and Amendment and the February 1996
Agreement and Amendment was prepared and delivered to such parties;
WHEREAS, the February 1997 Five-Year Agreement and Amendment adopts and
incorporates by reference all of the terms and provisions of the Five-Year
Composite Conformed Credit Agreement, subject to the amendment thereto provided
for in the February 1997 Five-Year Agreement and Amendment;
WHEREAS, the parties hereto wish to amend certain provisions of the February
1997 Five-Year Agreement and Amendment on the terms set forth herein;
NOW, THEREFORE, in consideration of the premises and of the mutual agreements
herein contained, the parties hereto agree as follows:
1. Definitions. Unless otherwise defined herein, terms defined in the
February 1997 Five-Year Agreement and Amendment shall be used as so defined.
2. Amendments to the February 1997 Five-Year Agreement and Amendment.
(a) Section 3 of the February 1997 Five-Year Agreement and Amendment is hereby
amended by deleting the defined terms "Consolidated Earnings Before Interest and
Taxes" and "Consolidated Tangible Net Worth" in their entirety and substituting
in lieu thereof the following new defined terms in proper alphabetical order:
"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.".
(b) Schedule VI to the February 1997 Five-Year Agreement and Amendment is
hereby amended by deleting Schedule VI in its entirety and substituting in lieu
thereof Schedule VI attached hereto as Schedule VI.
3. Effective Date; Conditions Precedent. This Second 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 Second 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 Second 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
February 1997 Five-Year 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 February 1997 Five-Year
Agreement and Amendment shall be applicable in determining compliance with the
covenants contained in subsections 5.6 and 5.7 of the Five-Year Composite
Conformed Credit Agreement as adopted and incorporated by reference into the
February 1997 Five-Year Agreement and Amendment, as amended, 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 Second 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 SECOND AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS SECOND AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
8. Counterparts. This Second Amendment may be executed by one or more of the
parties to this Second 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 Second Amendment signed by all the
parties shall be lodged with the Company and the Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Second 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:
BANCA NAZIONALE del LAVORO, SpA, as a Bank
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:
BANK OF YOKOHAMA, 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:
DEN DANSKE BANK AKTIESELSKAB, as a Bank
CAYMAN ISLANDS BRANCH c/o New York Branch
By:
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Name:
Title:
By:
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Name:
Title:
DEUTSCHE BANK AG, NEW YORK AND/OR CAYMAN ISLANDS
BRANCH, as a Co-Agent and as a Bank
By:
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Name:
Title:
By:
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Name:
Title:
FIRST AMERICAN NATIONAL BANK, as a Bank
By:
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Name:
Title:
FIRST HAWAIIAN 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 Co-Agent and 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:
YASUDA TRUST AND BANKING, as a Bank
By:
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Name:
Title:
