Exhibit 10.32
AMENDMENT NO. 5 AND CONSENT
TO AND UNDER
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
AMENDMENT NO. 5 AND CONSENT (this "Amendment"), dated as of February 18,
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2000, to and under the Amended and Restated Revolving Credit Agreement, as
amended by Amendment No. 1 and Consent No. 1, dated as of August 5, 1998,
Amendment No. 2, dated as of November 12, 1998, Amendment No. 3 and Waiver,
dated as of August 9, 1999, and Amendment No. 4 and Waiver ("Amendment No. 4"),
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dated as of November 8, 1999 (as so amended, (the "Revolving Credit Agreement"),
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dated as of April 30, 1998, by and among TOTAL RENAL CARE HOLDINGS, INC., a
Delaware corporation (the "Borrower"), the lenders party thereto (the
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"Lenders"), DLJ CAPITAL FUNDING, INC., as Syndication Agent, FIRST UNION
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NATIONAL BANK, as Documentation Agent, and THE BANK OF NEW YORK, as
administrative agent (in such capacity, the "Administrative Agent").
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RECITALS
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I. Capitalized terms used herein which are not otherwise defined
herein shall have the respective meanings ascribed thereto in the Revolving
Credit Agreement.
II. The Borrower has requested that the Administrative Agent and the
Required Lenders consent to the sale of (i) three certain renal treatment
centers listed on Schedule 1 attached hereto, the consideration of which equals
approximately $10,100,000 in cash plus the forgiveness of $3,000,000 in deferred
purchase obligations (the "Forgiven Deferred Purchase Obligations") (the "Renal
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Asset Sale"), (ii) the Borrower's pharmacy operations, the consideration of
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which approximately $3,400,000 (the "Pharmacy Asset Sale"), and (iii) certain
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other assets, the consideration of which shall not exceed $10,000,000 (the
"Future Asset Sales"), and together with the Renal Asset Sale and the Pharmacy
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Asset Sale, (the "Permitted Asset Sales") upon the terms and conditions
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contained herein, and the Administrative Agent and the Required Lenders are
willing so to do.
III. Pursuant to Amendment No. 4, the total consideration for all
Permitted Acquisitions made after July 1, 1999 through and including March 15,
2000 was limited to an amount not to exceed $10,000,000. During such period but
prior to the date hereof, the Borrower has made Permitted Acquisitions in an
aggregate amount equal to $8,600,000. The Borrower has requested that the
Administrative Agent and the Required Lenders consent to the making of Domestic
Acquisitions on or prior to March 31, 2000 of renal treatment centers that the
Borrower or any of its wholly-owned Subsidiaries is contractually obligated on
the date hereof to make as described on Schedule 2 attached hereto in an
aggregate amount not to exceed $1,400,000 (the "Remaining Permitted
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Acquisitions") upon the terms and conditions contained herein, and the
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Administrative Agent and the Required Lenders are willing so to do.
IV. The Borrower acknowledges that one or more Defaults or Events of
Default have occurred and are continuing under the Revolving Credit Agreement.
Accordingly, in consideration of the Recitals and the covenants and
conditions hereinafter set forth, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Notwithstanding anything to the contrary contained in Sections
2.6(d), 2.7(f) and 8.7 of the Revolving Credit Agreement, the Administrative
Agent and the Required Lenders hereby consent to the consummation of the
Permitted Asset Sales, provided that each of the following conditions is
satisfied:
(a) (i) the consummation of each Permitted Asset Sale shall be
deemed to be an Asset Sale made pursuant to Section 8.7 of the Revolving Credit
Agreement for purposes of the $31,590,000 amount contained in Section 8.7(i) of
the Revolving Credit Agreement (after giving effect to this Amendment), and (ii)
on and after the effective date of this Amendment, the definition of "Threshold
Amount" contained in Section 1.1 of the Revolving Credit Agreement shall equal
zero;
(b) the consideration received or to be received by the Borrower
or any of its Subsidiaries with respect to each Permitted Asset Sale shall (i)
not be less than the fair market value thereof as reasonably determined by the
Board of Directors of the Borrower, (ii) be payable on or before the closing
thereof, and (iii) be payable (A) with respect to the Renal Asset Sale and the
Pharmacy Asset Sale, 100% in cash (other than the Forgiven Deferred Purchase
Obligations), and (B) with respect to each Future Asset Sale, at least 75% in
cash and any non-cash consideration shall be limited to the forgiveness of
Indebtedness of the Borrower or any of its Subsidiaries in connection with such
Future Asset Sale (the "Forgiven Indebtedness");
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(c) the consideration received or to be received for all Future
Asset Sales shall not exceed $10,000,000 in the aggregate, and the Net Cash
Proceeds of any Future Asset Sale plus any Forgiven Indebtedness in connection
therewith shall exceed the amount equal to the EBITDA attributable to the assets
of such Future Asset Sale for the twelve month period most recently preceding
the date of such Future Asset Sale multiplied by 5.5 (the "Minimum Sale Price");
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(d) on the date of each such Permitted Asset Sale, the
Administrative Agent and the Lenders shall have received a certificate with
respect thereto signed by the chief financial officer of the Borrower and either
the chairman of the board (if an officer) or any vice president of the Borrower
identifying the Property sold pursuant to such Permitted Asset Sale and (i)
stating the total consideration to be paid in respect of such Permitted Asset
Sale, (ii) certifying that the consideration received by the Borrower or such
Subsidiary for such Property has been determined by the Board of Directors of
the Borrower to be not less than the fair market value of such Property, and
(iii) certifying to and attaching a true and correct calculation of (A) the Net
Cash Proceeds of such Permitted Asset Sale and (B) with respect to a Future
Asset Sale, the Minimum Sale Price, such calculations to be reasonably
acceptable to the Administrative Agent and the Syndication Agent;
(e) on the date of the consummation of each Permitted Asset
Sale, the Borrower shall prepay the Revolving Credit Loans in an amount
equal to the Revolver
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Prepayment Fraction multiplied by the Total Prepayment Amount (as defined in
Paragraph 3 of this Amendment) of such Permitted Asset Sale (the "Revolver
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Prepayment Amount"), provided, however, that the Borrower shall not elect to
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give the Lenders under and as defined in the Term Loan Facility the option to
waive their rights to receive any prepayments with respect to the Permitted
Asset Sales pursuant to the provisions of Section 2.4(d)(iii) of the Term Loan
Facility;
(f) on the date of the consummation of each Permitted Asset
Sale, the Aggregate Revolving Credit Commitments shall be automatically and
permanently reduced in an amount equal to the Revolver Prepayment Amount of such
Permitted Asset Sale (assuming for purposes of this Paragraph 1(f) that the then
outstanding amount of Revolving Credit Loans equals or exceeds the amount of
such prepayment);
(g) (i) the Renal Asset Sale shall be consummated on or before
February 29, 2000, (ii) the Pharmacy Asset Sale shall be consummated on or
before March 31, 2000, and (iii) any Future Asset Sale shall be consummated on
or before March 31, 2000; and
(h) during the period from and including the effective date of
this Amendment through and including March 15, 2000, the Aggregate Credit
Exposure of all Lenders shall not exceed $650,000,000, which amount shall be
reduced on the date of the consummation of each Permitted Asset Sale by the
Revolver Prepayment Amount of such Permitted Asset Sale (assuming for purposes
of this Paragraph 1(h) that the then outstanding amount of Revolving Credit
Loans equals or exceeds the amount of such prepayment).
2. Section 8.7(i) of the Revolving Credit Agreement is amended by
replacing the amount "$25,000,000" contained therein with the amount
"$31,590,000".
3. The "Total Prepayment Amount" of each Permitted Asset Sale shall,
for purposes hereof and the Revolving Credit Agreement, be the amount of the Net
Cash Proceeds of such Permitted Asset Sale.
4. The Administrative Agent and the Required Lenders hereby consent
to the making of the Remaining Permitted Acquisitions by the Borrower or any
wholly-owned Subsidiary of the Borrower, provided that (i) the total
consideration paid for all such Remaining Permitted Acquisitions shall not
exceed $1,400,000 in the aggregate, (ii) the Remaining Permitted Acquisitions
shall be made on or before March 31, 2000, (iii) the terms, conditions and
restrictions of Section 8.5(f) of Revolving Credit Agreement (other than
Sections 8.5(f)(a) and 8.5(f)(E) thereof) shall have been satisfied, and (iv) on
the date of each such Remaining Permitted Acquisition, the Administrative Agent
and the Lenders shall have received a certificate with respect thereto signed by
the chief financial officer of the Borrower and either the chairman of the board
(if an officer) or any vice president of the Borrower certifying that there has
been no material adverse change in the information listed on or provided
pursuant to Schedule 2 attached hereto with respect to such Remaining Permitted
Acquisition.
5. Paragraphs 1 through 4 of this Amendment shall not become effective
until the satisfaction of all of the following conditions precedent:
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(a) The Administrative Agent shall have received this Amendment,
duly executed by a duly authorized officer or officers of the Borrower, the
Guarantors, the Pledgors, the Administrative Agent and the Required Lenders.
(b) The Administrative Agent shall have received a certificate,
dated the effective date of this Amendment, of the Secretary or Assistant
Secretary of the Borrower (i) attaching a true and complete copy of the
resolutions of its Board of Directors and of all documents evidencing other
necessary corporate action (in form and substance satisfactory to the
Administrative Agent) taken by it to authorize this Amendment and the
transactions contemplated hereby, and (ii) setting forth the incumbency of its
officer or officers (including therein the signature specimen of such officer or
officers) who may sign this Amendment, any Loan Document or any other document,
notice or certificate executed and delivered in connection with any Loan
Document.
(c) The Administrative Agent shall have received an opinion of
the general counsel of the Borrower, the Guarantors and the Pledgors, dated the
effective date of this Amendment and addressed to the Administrative Agent, the
Collateral Agent, the Documentation Agent, the Syndication Agent and the
Lenders, in form and substance reasonably satisfactory to the Administrative
Agent and the Syndication Agent.
(d) All costs, fees and expenses incurred by or payable to the
Administrative Agent and the Syndication Agent in connection with the
negotiation, execution and closing of this Amendment, including, without
limitation, the reasonable fees and expenses of Special Counsel for which an
invoice has been presented to the Borrower, shall have been paid.
6. The Borrower hereby acknowledges and agrees that (i) one or more
Defaults or Events of Default have occurred and are continuing under the
Revolving Credit Agreement, (ii) no failure to exercise and no delay in
exercising, on the part of the Administrative Agent, the Collateral Agent, the
Letter of Credit Issuer or any Lender, any right, remedy, power or privilege
under any Loan Document shall operate as a waiver thereof, nor shall any single
or partial exercise of any right, remedy, power or privilege under any Loan
Document preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege, and (iii) no Default or Event of
Default may be waived except upon the execution and delivery of a written
instrument pursuant to the terms and conditions of Section 11.1 of the Revolving
Credit Agreement.
7. On the date hereof, each Credit Party hereby (a) reaffirms and
admits the validity and enforceability of the Loan Documents (after giving
effect to this Amendment) and all of its obligations thereunder and (b) agrees
and admits that it has no defenses to or offsets against any such obligation.
8. In all other respects, the Loan Documents shall remain in full
force and effect, and no amendment in respect of any term or condition of any
Loan Document contained herein shall be deemed to be an amendment in respect of
any other term or condition contained in any Loan Document.
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9. This Amendment may be executed in any number of counterparts all
of which, taken together, shall constitute one agreement. In making proof of
this Amendment, it shall only be necessary to produce the counterpart executed
and delivered by the party to be charged.
10. THIS AMENDMENT IS BEING EXECUTED AND DELIVERED IN, AND IS
INTENDED TO BE PERFORMED IN, THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND
ENFORCEABLE IN ACCORDANCE WITH, AND BE GOVERNED BY, THE INTERNAL LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
[Remainder of page intentionally left blank]
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AMENDMENT NO. 5 AND CONSENT
TO AND UNDER
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
AS EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this Amendment to be
executed on its behalf.
TOTAL RENAL CARE HOLDINGS, INC.
By:
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Name:
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Title:
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THE BANK OF NEW YORK,
Individually, as the Letter of Credit Issuer, as
the Swing Line Lender and as Administrative Agent
By:
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Name:
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Title:
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DLJ CAPITAL FUNDING, INC.,
Individually and as Syndication Agent
By:
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Name:
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Title:
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FIRST UNION NATIONAL BANK,
Individually and as Documentation Agent
By:
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Name:
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Title:
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ABN AMRO BANK N.V.
By:
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Name:
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Title:
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By:
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Name:
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Title:
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ALLIED IRISH BANKS, P.L.C.,
CAYMAN ISLANDS BRANCH
By:
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Name:
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Title:
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By:
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Name:
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Title:
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BANCO ESPIRITO SANTO E COMERCIAL DE LISBOA, NASSAU
BRANCH
By:
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Name:
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Title:
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By:
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Name:
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Title:
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BANK LEUMI USA
By:
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Name:
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Title:
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By:
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Name:
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Title:
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THE BANK OF NOVA SCOTIA
By:
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Name:
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Title:
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BANQUE NATIONALE DE PARIS
By:
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Name:
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Title:
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By:
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Name:
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Title:
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BHF (USA) CAPITAL CORPORATION
By:
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Name:
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Title:
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By:
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Name:
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Title:
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CITY NATIONAL BANK
By:
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Name:
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Title:
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BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By:
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Name:
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Title:
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By:
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Name:
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Title:
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CREDIT LYONNAIS NEW YORK BRANCH
By:
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Name:
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Title:
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DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
By:
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Name:
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Title:
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By:
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Name:
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Title:
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DRESDNER BANK AG, NEW YORK BRANCH
AND GRAND CAYMAN BRANCH
By:
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Name:
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Title:
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By:
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Name:
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Title:
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ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN AG--NEW YORK
By:
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Name:
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Title:
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By:
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Name:
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Title:
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FLEET NATIONAL BANK
By:
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Name:
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Title:
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THE FUJI BANK, LIMITED
By:
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Name:
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Title:
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HIBERNIA NATIONAL BANK
By:
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Name:
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Title:
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THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
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Name:
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Title:
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KBC BANK
By:
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Name:
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Title:
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By:
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Name:
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Title:
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GENERAL ELECTRIC CAPITAL
CORPORATION
By:
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Name:
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Title:
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MELLON BANK, N.A.
By:
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Name:
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Title:
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MICHIGAN NATIONAL BANK
By:
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Name:
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Title:
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THE MITSUBISHI TRUST AND BANKING
CORPORATION
By:
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Name:
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Title:
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NATIONAL CITY BANK OF KENTUCKY
By:
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Name:
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Title:
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PARIBAS
By:
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Name:
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Title:
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By:
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Name:
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Title:
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COOPERATIEVE CENTRALE
RAIFFEISEN - BOERENLEENBANK B.A,
"RABOBANK NEDERLAND", NEW YORK
BRANCH
By:
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Name:
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Title:
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By:
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Name:
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Title:
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ROYAL BANK OF CANADA
By:
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Name:
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Title:
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THE ROYAL BANK OF SCOTLAND PLC
By:
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Name:
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Title:
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ROYALTON COMPANY
By: Pacific Investment Management Company,
as its Investment Advisor
By: PIMCO Management Inc., a general partner
By:
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Name:
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Title:
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THE SANWA BANK, LIMITED
By:
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Name:
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Title:
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SOCIETE GENERALE
By:
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Name:
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Title:
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STB DELAWARE FUNDING TRUST I
By:
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Name:
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Title:
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SUNTRUST BANK, NASHVILLE, N.A.
By:
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Name:
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Title:
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THE TOKAI BANK, LIMITED
By:
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Name:
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Title:
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THE TOYO TRUST & BANKING CO., LTD.,
New York Branch
By:
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Name:
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Title:
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UNION BANK OF CALIFORNIA, N.A.
By:
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Name:
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Title:
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U.S. BANK NATIONAL ASSOCIATION
By:
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Name:
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Title:
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GOLDMAN SACHS CREDIT PARTNERS L.P.
By:
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Name:
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Title:
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ROTHSCHILD RECOVERY FUND, L.P.
By:
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Name:
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Title:
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AGREED AND CONSENTED TO:
TOTAL RENAL CARE, INC.
TOTAL RENAL CARE ACQUISITION CORP.
RENAL TREATMENT CENTERS, INC.
RENAL TREATMENT CENTERS-MID-ATLANTIC, INC.
RENAL TREATMENT CENTERS-NORTHEAST, INC.
RENAL TREATMENT CENTERS-CALIFORNIA, INC.
RENAL TREATMENT CENTERS-WEST, INC.
RENAL TREATMENT CENTERS-SOUTHEAST, INC.
Each by:
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Name:
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Title:
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TRC WEST, INC.
By:
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Name:
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Title:
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AMENDMENT NO. 5 AND CONSENT
TO AND UNDER
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
SCHEDULE 1
LIST OF RENAL TREATMENT CENTERS
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1. Rogosin - Manhattan
2. Rogosin - Queens
3. Rogosin - Brooklyn
AMENDMENT NO. 5 AND CONSENT
TO AND UNDER
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
SCHEDULE 2
LIST OF REMAINING PERMITTED ACQUISITIONS
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Lanai Dialysis Center, Hawaii - Asset acquisition of one managed (non-
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consolidated) center for approximately $200,000. The Borrower must acquire this
center so that it can be sold to Fresenius A.G. as part of the sale of the
Borrower's non-continental U.S. assets.
IHS facilities, NY - First payment of approximately $530,000, due by March 31,
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2000, for asset acquisition of seven managed (non-consolidated) centers.
The Borrower is contractually obligated to enter into certain additional
agreements pursuant to previously granted rights. At this time, the Borrower is
unable to determined whether and when such rights will be exercised.
The Borrower will not be assuming any contingent liabilities in connection with
any of the Remaining Permitted Acquisitions.