Exhibit 4.9(d)
AGREEMENT AND AMENDMENT
AGREEMENT AND AMENDMENT, dated as of February 26, 1997 (the "February
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1997 Agreement and Amendment"), among COLUMBIA/HCA HEALTHCARE CORPORATION, a
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Delaware corporation formerly known as Columbia Healthcare Corporation (the
"Company"), the several banks and other financial institutions from time to time
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parties hereto (the "Banks"), BANK OF AMERICA NATIONAL TRUST & SAVINGS
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ASSOCIATION, THE BANK OF NEW YORK, DEUTSCHE BANK AG, FLEET NATIONAL BANK OF
CONNECTICUT, 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"), SAKURA BANK, LTD. NEW YORK BRANCH, THE SUMITOMO
---------
BANK LIMITED, NEW YORK BRANCH, SUNTRUST BANK NASHVILLE, N.A., XXXXX FARGO BANK,
N.A., as Lead Managers (collectively, the "Lead Managers") and THE CHASE
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MANHATTAN BANK, a New York banking corporation formerly known as Chemical Bank,
as agent for the Banks hereunder (in such capacity, the "Agent") and as CAF Loan
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agent (in such capacity, the "CAF Loan Agent").
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W I T N E S E T H :
- - - - - - - - -
WHEREAS, the Company, the Co-Agents, the Lead Managers, the Agent, the
CAF Loan Agent and certain banks and other financial institutions (the "Original
--------
Banks") are parties to the Agreement and Amendment, dated as of February 28,
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1996 (the "February 1996 Agreement and Amendment"), adopting and incorporating
-------------------------------------
by reference all of the terms and provisions of the Credit Agreement, dated as
of February 10, 1994 as incorporated by reference into and amended by the
September 1994 Agreement and Amendment and the February 1995 Agreement and
Amendment (each as referred to in the February 1996 Agreement and Amendment)(as
so adopted and incorporated by reference into and amended by the February 1996
Agreement and Amendment and as further amended, supplemented or otherwise
modified to the date hereof, the "Original Credit Agreement"), pursuant to which
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such parties committed to make loans to the Company for a period of 364 days;
1
WHEREAS, for the convenience of the parties to the February 1996
Agreement and Amendment, a composite conformed copy of the Original Credit
Agreement (the "Composite Conformed Credit Agreement") was prepared and
------------------------------------
delivered to such parties to provide a restatement of the Original Credit
Agreement in the form in which it was incorporated by reference into and amended
by the February 1996 Agreement and Amendment;
WHEREAS, effective as of the Closing Date (as defined below), the
Company intends to terminate the Commitments (as defined in the Composite
Conformed Credit Agreement) of the Original Banks under the Composite Conformed
Credit Agreement pursuant to subsection 2.4(a) of the Composite Conformed Credit
Agreement;
WHEREAS, the Company has requested that the Co-Agents, the Lead
Managers, the Agent, the CAF Loan Agent and the Banks enter into a new agreement
adopting and incorporating by reference all of the terms and provisions of the
Composite Conformed Credit Agreement with certain amendments and modifications
thereto; and
WHEREAS, the Co-Agents, the Lead Managers, the Agent, the CAF Loan
Agent and the Banks are willing to so enter into a new agreement, but only upon
the terms and subject to the conditions set forth below;
NOW THEREFORE, in consideration of the promises and mutual agreements
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by each of the parties hereto, the
parties hereto hereby agree as follows:
SECTION 1. Adoption and Incorporation of Composite Conformed Credit
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Agreement. Subject to the amendments and modifications set forth in Sections 3
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through 13 of this Agreement, all of the terms and provisions of the Composite
Conformed Credit Agreement are hereby adopted and incorporated by reference into
this Agreement, with the same force and effect as if fully set forth herein.
SECTION 2. Definitions. As used in this Agreement, terms defined
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herein are used as so defined and, unless otherwise
2
defined herein, terms defined in the Composite Conformed Credit Agreement are
used herein as therein defined.
SECTION 3. Defined Terms. For purposes of this Agreement, subsection
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1.1 of the Composite Conformed Credit Agreement as adopted and incorporated by
reference into this Agreement is hereby amended as follows:
(a) by deleting the defined terms "Agreement", "Applicable Margin",
"Closing Date", "Original Banks", "Original Credit Agreement" and
"Termination Date" in their entirety and substituting in lieu thereof in
proper alphabetical order the following:
"`Agreement': the Composite Conformed Credit Agreement as
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adopted and incorporated by reference into the February 1997 Agreement
and Amendment, as amended by the February 1997 Agreement and Amendment
and as further amended, supplemented or otherwise modified from time
to time.";
"`Applicable Margin': (i) with respect to Alternate Base Rate
-----------------
Loans, 0% per annum and (ii) with respect to Eurodollar Loans, 0.20%
per annum.";
"`Closing Date': the date on which all of the conditions
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precedent for the Closing Date set forth in Section 13 of the February
1997 Agreement and Amendment shall have been fulfilled.
"`Original Banks': as defined in the recitals to the February
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1997 Agreement and Amendment.";
"`Original Credit Agreement': as defined in the Recitals to the
-------------------------
February 1997 Agreement and Amendment."; and
"`Termination Date': the date upon which the Commitments shall
----------------
terminate, which shall be one day before the first anniversary of the
Closing Date (or, if such date is not a Business Day, the next
preceding Business Day), or such other Business Day to which the
Termination Date may be changed pursuant to subsection 2.4 of the
Composite Conformed Credit Agreement."
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(b) by deleting paragraph (4) in the definition of "Interest Period"
in its entirety and substituting in lieu thereof the following:
"(4) any Interest Period pertaining to a Eurodollar Loan that
would otherwise end after the Maturity Date shall end on the Maturity
Date; and"
(c) by inserting in said subsection 1.1 of the Composite Conformed
Credit Agreement in the appropriate alphabetical order the following
defined term:
"`Composite Conformed Copy': as defined in the recitals to the
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February 1997 Agreement and Amendment.";
"`February 1997 Agreement and Amendment': the Agreement and
-------------------------------------
Amendment, dated as of February 25th, 1997, among the Company, the
Banks, the Co-Agents, the Lead Managers, the Agent and the CAF Loan
Agent"; and
"`Maturity Date'": the date upon which any outstanding Revolving
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Credit Loan, evidenced by a Revolving Credit Note pursuant to Section
2.1(b) of the Composite Conformed Credit Agreement, shall mature,
which date shall be the first anniversary of the Termination Date as
in effect at such time."
SECTION 4. Revolving Credit Loans and Revolving Credit Notes. For
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purposes of this Agreement, subsection 2.1(b) of the Composite Conformed Credit
Agreement as adopted and incorporated by reference into this Agreement is hereby
amended by deleting the phrase "Termination Date" in subsection (y) of the last
sentence thereof and substituting in lieu thereof the phrase "Maturity Date".
SECTION 5. Facility Fee. For purposes of this Agreement, subsection
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2.3(a) of the Composite Conformed Credit Agreement as adopted and incorporated
by reference into this Agreement is hereby amended by deleting the word "0.070%"
therein and substituting in lieu thereof the word "0.050%".
SECTION 6. Extension of Commitments. For purposes of this Agreement,
------------------------
subsection 2.4(b) of the Composite Conformed
4
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:
"(b) The Company may request, in a notice given as herein provided to
the Agent and each of the Banks not less than 90 days and not more than 120
days prior to the Termination Date, that the Termination Date be extended,
which notice shall specify that the requested extension is to be effective
(the "Effective Date") on the Termination Date, and that the new
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Termination Date to be in effect following such extension (the "Requested
---------
Termination Date") is to be the date which is the first anniversary of the
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Termination Date. Each Bank shall, not later than 30 days following such
notice, notify the Company and the Agent of its election to extend or not
to extend the Termination Date with respect to its Commitment. The Company
may, not later than 15 days following such notice from the Banks, revoke
its request to extend the Termination Date. If the Required Banks elect to
extend the Termination Date with respect to their Commitments and the
Company has not revoked its request to extend the Termination Date, then,
subject to the provisions of this subsection 2.4, the Termination Date
shall be extended for an additional 364-day period. Notwithstanding any
provision of this Agreement to the contrary, any notice by any Bank of its
willingness to extend the Termination Date with respect to its Commitment
shall be revocable by such Bank in its sole and absolute discretion at any
time prior to the date which is 15 days following such notice from the
Banks. Any Bank which shall not notify the Company and the Agent of its
election to extend the Termination Date within 30 days following such
notice shall be deemed to have elected not to extend the Termination Date
with respect to its Commitment."
SECTION 7. Financial Information. For purposes of this Agreement,
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subsection 3.3 of the 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:
"3.3 Financial Information. The Company has furnished to the Agent and
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each Bank copies of the following:
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(a) the Annual Report of the Company for the fiscal year ended
December 31, 1995, containing the consolidated balance sheet of the Company
and its Subsidiaries as at said date and the related consolidated
statements of income, common stockholders' equity and changes in financial
position for the fiscal year then ended, accompanied by the opinion of an
Auditor;
(b) the Annual Report of the Company on Form 10-K for the fiscal year
ended December 31, 1995;
(c) quarterly financial statements of the Company, including balance
sheets, for the fiscal periods ended March 31, 1996, June 30, 1996 and
September 30, 1996; and
(d) Current Reports on Form 8-K filed with the Securities and
Exchange Commission on January 15, 1997, September 25, 1996, July 2, 1996,
July 2, 1996 and May 15, 1996, respectively.
Such financial statements (including any notes thereto) have been prepared
in accordance with GAAP and fairly present the financial conditions of the
corporations covered thereby at the dates thereof and the results of their
operations for the periods covered thereby, subject to normal year-end
adjustments in the case of interim statements. As of the date hereof,
neither the Company nor any of its Subsidiaries has any known contingent
liabilities of any significant amount which are not referred to in said
financial statements or in the notes thereto which could reasonably be
expected to have a material adverse effect on the business or assets or on
the condition, financial or otherwise, of the Company and its Subsidiaries,
on a consolidated basis.".
SECTION 8. Litigation. For purposes of this Agreement, subsection
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3.6 of the 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:
"3.6 Litigation. Except as disclosed in the Company's Annual Report
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on Form 10-K for its fiscal year ended December 31, 1995 and its Quarterly
Reports on Form 10-Q for its fiscal quarters ended March 31, 1996, June 30,
1996 and September 30, 1996, in each case as filed with the Securities and
Exchange Commission and previously distributed to the Banks, and except as
6
set forth on Schedule V hereto, there is no litigation, at law or in
equity, or any proceeding before any federal, state, provincial or
municipal board or other governmental or administrative agency pending or
to the knowledge of the Company threatened which, after giving effect to
any applicable insurance, may involve any material risk of a material
adverse effect on the business or assets or on the condition, financial or
otherwise, of the Company and its Subsidiaries on a consolidated basis or
which seeks to enjoin the consummation of any of the transactions
contemplated by this Agreement or any other Loan Document and involves any
material risk that any such injunction will be issued, and no judgment,
decree, or order of any federal, state, provincial or municipal court,
board or other governmental or administrative agency has been issued
against the Company or any Subsidiary which has, or may involve, a material
risk of a material adverse effect on the business or assets or on the
condition, financial or otherwise, of the Company and its Subsidiaries on a
consolidated basis. The Company does not believe that the final resolution
of the matters disclosed in its Annual Report on Form 10-K for its fiscal
year ended December 31, 1995 and its Quarterly Reports on Form 10-Q for its
fiscal quarters ended March 31, 1996, June 30, 1996 and September 30, 1996,
in each case as filed with the Securities and Exchange Commission and
previously distributed to the Banks, and of the matters set forth on
Schedule V hereto will have a material adverse effect on the business or
assets or condition, financial or otherwise, of the Company and its
Subsidiaries on a consolidated basis.".
SECTION 9. Commitment Amounts and Percentages; Lending Offices;
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Addresses for Notice. For purposes of this Agreement, Schedule I to the
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Composite Conformed Credit Agreement as adopted and incorporated by reference
into this Agreement is hereby amended by deleting such Schedule in its entirety
and substituting in lieu thereof Schedule I to this Agreement.
SECTION 10. Subsidiaries of the Company. For purposes of this
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Agreement, Schedule II to the Composite Conformed Credit Agreement as adopted
and incorporated by reference into this
7
Agreement is hereby amended by deleting such Schedule in its entirety and
substituting in lieu thereof Schedule II to this Agreement.
SECTION 11. Indebtedness. For purposes of this Agreement, Schedule
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III to the Composite Conformed Credit Agreement as adopted and incorporated by
reference into this Agreement is hereby amended by deleting such Schedule in its
entirety and substituting in lieu thereof Schedule III to this Agreement.
SECTION 12. Litigation. For purposes of this Agreement, the
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Composite Conformed Credit Agreement as adopted and incorporated by reference
into this Agreement is hereby amended by adding thereto Schedule V to this
Agreement.
SECTION 13. Conditions Precedent. The obligations of each Bank to
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make the Loans contemplated by subsections 2.1 and 2.2 of the Composite
Conformed Credit Agreement as adopted and incorporated by reference into this
Agreement shall be subject to the compliance by the Company with its agreements
herein contained (including its agreements contained in the Composite Conformed
Credit Agreement as adopted and incorporated by reference into this Agreement)
and to the satisfaction on or before the Closing Date of the following further
conditions:
(a) Loan Documents. The Agent shall have received (i) this
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Agreement, executed and delivered by a duly authorized officer of the
Company, with a counterpart for each Bank, and (ii) for the account of each
Bank requesting the same, a Revolving Credit Note and a Grid CAF Loan Note
conforming to the requirements hereof and executed by a duly authorized
officer of the Company.
(b) Legal Opinions. On the Closing Date each Bank shall have
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received from any general, associate, or assistant general counsel to the
Company or any other counsel to the Company satisfactory to the Agent, such
opinions as the Agent shall have reasonably requested with respect to the
transactions contemplated by this Agreement.
(c) Company Officers' Certificate. The representations and
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warranties contained in Section 3 of the Composite Conformed Credit
Agreement as adopted and
8
incorporated by reference into, and as amended by, this Agreement shall be
true and correct on the Closing Date with the same force and effect as
though made on and as of such date; on and as of the Closing Date and after
giving effect to this Agreement, 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; and the Agent shall have received a certificate containing a
representation to these effects dated the Closing Date and signed by a
Responsible Officer.
(d) General. All instruments and legal and corporate proceedings in
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connection with the Loans contemplated by this Agreement shall be
satisfactory in form and substance to the Agent, and the Agent shall have
received copies of all documents, and favorable legal opinions and records
of corporate proceedings, which the Agent may have reasonably requested in
connection with the Loans and other transactions contemplated by this
Agreement.
(e) Termination of Commitments of the Original Banks. On the Closing
------------------------------------------------
Date, the Commitments (as defined in the Composite Conformed Credit
Agreement) of the Original Banks under the February 1996 Agreement and
Amendment shall have been terminated.
SECTION 14. Expenses. The Company agrees to pay or reimburse the
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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 Agreement and the Notes 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.
SECTION 15. GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE
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RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
SECTION 16. Counterparts. This Agreement may be executed by one or
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more of the parties to this Agreement 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 Agreement 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 Agreement 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/
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Name:
Title:
THE CHASE MANHATTAN BANK, as Agent, as CAF
Loan Agent and as a Bank
By: /s/
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Name:
Title:
ABN AMRO BANK N.V., as a Bank
By: /s/
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Name:
Title:
ARAB BANK PLC, GRAND CAYMAN BRANCH, as a Bank
By: /s/
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Name:
Title:
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BANCA MONTE DEI PASCHI DI SIENA SpA, as a Bank
By: /s/
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Name:
Title:
By: /s/
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Name:
Title:
BANCA NAZIONALE DEL LAVORO S.P.A. - NEW YORK BRANCH, as
a Bank
By: /s/
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Name:
Title:
By: /s/
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Name:
Title:
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as a Co-Agent and as a Bank
By: /s/
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Name:
Title:
THE BANK OF NEW YORK, as a Co-Agent and as a Bank
By: /s/
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Name:
Title:
00
XXX XXXX XX XXXX XXXXXX, as a Bank
By: /s/
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Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST COMPANY, as a Bank
By: /s/
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Name:
Title:
THE BANK OF YOKOHAMA LTD., NEW YORK BRANCH, as a Bank
By: /s/
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Name:
Title:
BANK ONE, TEXAS, NA, as a Bank
By: /s/
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Name:
Title:
BANQUE NATIONALE DE PARIS -Houston Agency, as a Bank
By: /s/
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Name:
Title:
12
XXXXXXX BANK, N.A., as a Bank
By: /s/
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Name:
Title:
CITIBANK, N.A., as a Bank
By: /s/
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Name:
Title:
COMERICA BANK, as a Bank
By: /s/
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Name:
Title:
CORESTATES BANK, N.A., as a Bank
By: /s/
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Name:
Title:
CRESTAR BANK, as a Bank
By: /s/
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Name:
Title:
00
XXX XXX-XXXX XXXXXX XXXX, XXXXXXX, XXXXXXX AGENCY, as a
Bank
By: /s/
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Name:
Title:
DEN DANSKE BANK AKTIESELSKAB, as a Bank
CAYMAN ISLANDS BRANCH c/o New York Branch
By: /s/
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Name:
Title:
By: /s/
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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: /s/
-------------------------------------
Name:
Title:
FIRST AMERICAN NATIONAL BANK, as a Bank
By: /s/
-------------------------------------
Name:
Title:
14
THE FIRST NATIONAL BANK OF CHICAGO,
as a Bank
By: /s/
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Name:
Title:
FIRST UNION NATIONAL BANK OF NORTH CAROLINA, as a Bank
By: /s/
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Name:
Title:
FLEET NATIONAL BANK, as a Co-Agent and as a Bank
By: /s/
-------------------------------------
Name:
Title:
THE FUJI BANK LIMITED, as a Co-Agent and as a Bank
By: /s/
-------------------------------------
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED, ATLANTA AGENCY,
as a Co-Agent and as a Bank
By: /s/
-------------------------------------
Name:
Title:
15
KEYBANK NATIONAL ASSOCIATION, as a Bank
By: /s/
-------------------------------------
Name:
Title:
THE MITSUBISHI TRUST AND BANKING CORPORATION, as a Bank
By: /s/
-------------------------------------
Name:
Title:
THE MITSUI TRUST & BANKING CO., LTD., NEW YORK BRANCH,
as a Bank
By: /s/
-------------------------------------
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as a Co-
Agent and as a Bank
By: /s/
-------------------------------------
Name:
Title:
NATIONAL CITY BANK OF KENTUCKY, as a Bank
By: /s/
-------------------------------------
Name:
Title:
16
NATIONSBANK, N.A. as a Co-Agent and as a Bank
By: /s/
-------------------------------------
Name:
Title:
By: /s/
-------------------------------------
Name:
Title:
THE NORINCHUKIN BANK, NEW YORK BRANCH, as a Bank
By: /s/
-------------------------------------
Name:
Title:
THE NORTHERN TRUST COMPANY, as a Bank
By: /s/
-------------------------------------
Name:
Title:
PNC BANK, KENTUCKY, INC. as a Co-Agent and as a Bank
By: /s/
-------------------------------------
Name:
Title:
17
THE SAKURA BANK, LTD. NEW YORK BRANCH, as a Lead
Manager and as a Bank
By: /s/
-------------------------------------
Name:
Title:
THE SUMITOMO BANK LIMITED, as a Lead Manager and as a
Bank
By: /s/
-------------------------------------
Name:
Title:
THE SUMITOMO TRUST & BANKING CO., LTD., NEW YORK
BRANCH, as a Bank
By: /s/
-------------------------------------
Name:
Title:
SUNTRUST BANK, NASHVILLE, N.A., as a Lead Manager and
as a Bank
By: /s/
-------------------------------------
Name:
Title:
00
XXX XXXXX XXXX, XXXXXXX, XXX XXXX BRANCH, as a Bank
By: /s/
-------------------------------------
Name:
Title:
TORONTO DOMINION (TEXAS), INC., as a Co-Agent and as a
Bank
By: /s/
-------------------------------------
Name:
Title:
THE TOYO TRUST & BANKING CO., LTD., as a Bank
By: /s/
-------------------------------------
Name:
Title:
UNION BANK OF SWITZERLAND, NEW YORK BRANCH, as a Co-
Agent and as a Bank
By: /s/
-------------------------------------
Name:
Title:
UNION PLANTERS BANK OF MIDDLE TENNESSEE, N.A.
By: /s/
-------------------------------------
Name:
Title:
19
WACHOVIA BANK OF GEORGIA, N.A., as a Co-Agent and as a
Bank
By: /s/
-------------------------------------
Name:
Title:
XXXXX FARGO BANK, N.A., as a Lead Manager
By: /s/
-------------------------------------
Name:
Title:
YASUDA TRUST AND BANKING, as a Bank
By: /s/
-------------------------------------
Name:
Title:
20
