EXHIBIT 10.2
AMENDMENT NO. 1 and CONSENT NO. 1
---------------------------------
AMENDMENT NO. 1 and CONSENT NO. 1 (this "Amendment"), dated as of
---------
December 1, 1997, to the Revolving Credit Agreement (the "Revolving Credit
----------------
Agreement"), dated as of October 24, 1997, by and among TOTAL RENAL CARE
- ---------
HOLDINGS, INC., a Delaware corporation (the "Borrower"), the lenders party
--------
thereto (the "Lenders"), DLJ CAPITAL FUNDING, INC., as Syndication Agent (the
-------
"Syndication Agent"), FIRST UNION NATIONAL BANK, as Documentation Agent, and THE
- ------------------
BANK OF NEW YORK, as administrative agent (the "Administrative Agent").
--------------------
RECITALS
--------
XII. Capitalized terms used herein which are not otherwise defined herein
shall have the respective meanings ascribed thereto in the Revolving Credit
Agreement.
XIII. The Borrower has requested that the Administrative Agent and the
Lenders agree to amend the Revolving Credit Agreement upon the terms and
conditions contained herein, and the Administrative Agent and the Required
Lenders are willing to so agree.
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:
A. Section 1.1 of the Revolving Credit Agreement is amended by adding
the following definitions in their appropriate alphabetical order:
"5-5/8% Indenture": the Indenture, dated as of June 12, 1996,
----------------
between RTC and PNC Bank, National Association, as trustee, pursuant to
which RTC issued the 5-5/8% Notes, as the same may be amended, supplemented
or otherwise modified from time to time in accordance with Section 8.9.
"5-5/8% Notes": the 5-5/8% Convertible Subordinated Notes, due 2006,
------------
issued by RTC pursuant to the 5-5/8% Indenture, as the same may be
amended, supplemented or otherwise modified from time to time in
accordance with Section 8.9.
"Merger Agreement": the Agreement and Plan of Merger, dated as of
----------------
November 18, 1997, by and among the Borrower, Newco and RTC, as the same
may be amended, supplemented or otherwise modified from time to time in
accordance with Section 8.9.
"Newco": Nevada Acquisition Corp., a Delaware corporation and a
-----
wholly-owned Subsidiary of the Borrower (prior to the consummation of the
Permitted Merger).
"Permitted Merger": the merger of Newco into and with RTC (with RTC
----------------
being the survivor)
pursuant to the terms and conditions of the Merger Agreement as permitted
by Section 8.5(k).
"RTC": Renal Treatment Centers, Inc., a Delaware corporation and a
---
wholly-owned Subsidiary of the Borrower (after the consummation of the
Permitted Merger).
"RTC Loan Agreement": the Sixth Amended and Restated Loan Agreement,
------------------
dated as of September 26, 1997, among RTC, the lenders party thereto,
First Union National Bank, as agent, CoreStates Bank, N.A., as
documentation agent, and such other institutions identified therein as co-
agents, and all other documents executed in connection therewith, as each
such loan agreement or other document may have been amended, supplemented
or otherwise modified.
B. Section 2.7(e)(ii) of the Revolving Credit Agreement is amended by
inserting the phrase "(to an amount not less than zero)" immediately after the
word "reduced" contained in the eighth line of such Section 2.7(e)(ii).
C. Section 8.1 of the Revolving Credit Agreement is amended by (a)
deleting the word "and" immediately before clause (xiv) of such Section 8.1, and
(b) inserting the following immediately prior to the period at the end of such
Section 8.1:
, (xv) Indebtedness of RTC under the 5-5/8% Indenture and the 5-5/8%
Notes, and (xvi) such other Indebtedness of RTC and its Subsidiaries
existing on the date the Permitted Merger is consummated in an
aggregate amount not to exceed $10,000,000.
D. Section 8.2 of the Revolving Credit Agreement is amended by (a)
deleting the word "and" immediately before clause (xi) of such Section 8.2, and
(b) inserting the following immediately prior to the period at the end of such
Section 8.2:
, and (xii) Liens to secure Indebtedness permitted by Section
8.1(xvi), provided that such Liens shall be limited to Liens on the
Property acquired in connection with the Permitted Merger.
E. Section 8.3 of the Revolving Credit Agreement is amended by (a)
deleting the word "and" immediately before clause (ii) of such Section 8.3, and
(b) inserting the following immediately prior to the period at the end of such
Section 8.3:
, and (iii) any Permitted Acquisition or the Permitted Merger.
F. Section 8.5 of the Revolving Credit Agreement is amended by (a)
deleting the word "and" immediately after clause (i) of such Section 8.5, and
(b) inserting the following immediately prior to the period at the end of clause
(j) of such Section 8.5:
(k) the Permitted Merger, provided that on or prior to the date the
Permitted Merger is consummated:
(A) a certificate signed by the chief financial officer of the
Borrower (or such other officer as shall be acceptable to the
Administrative Agent) shall have been delivered to the Administrative
Agent and the Lenders (i) certifying to the effect that immediately
before and after giving effect thereto (1) the representations and
warranties contained in the Loan Documents and the Merger Agreement
shall be true
and correct, and (2) no Event of Default shall exist, (ii)
certifying that the RTC Loan Agreement has been terminated, all
Indebtedness thereunder has been repaid in full with the proceeds
of Revolving Credit Loans, all commitments thereunder have been
terminated, and all Liens and guaranties securing or guarantying
any Indebtedness under the RTC Loan Agreement have been released,
(iii) certifying that the Permitted Merger has been consummated in
accordance with the terms and provisions of the Merger Agreement,
and (iv) setting forth calculations on a pro-forma basis showing
compliance with Sections 7.11 through 7.15, and
(B) the provisions of Section 7.11(a) shall have been satisfied
notwithstanding the 30 day period contained in the first line of
such Section 7.11(a); and
(l) Investments of RTC and its Subsidiaries existing on the date
the Permitted Merger is consummated as set forth on Schedule 8.5A.
G. Section 8.9 of the Revolving Credit Agreement is amended by (a)
amending and restating the heading of such Section in its entirety as follows:
"Amendments, Etc. of Certain Documents", and (b) adding new subsections (d) and
- --------------------------------------
(e) to such Section 8.9 as follows:
(d) Amend or otherwise modify, or permit RTC so to do, the 5-5/8%
Indenture or the 5-5/8% Notes in any way that would adversely affect
the interests of the Administrative Agent and the Lenders under any
of the Loan Documents, provided, however, that the Borrower and RTC
shall be permitted to enter into a supplemental indenture (in form
and substance satisfactory to the Administrative Agent and the
Syndication Agent) with respect to the 5-5/8% Indenture executed in
connection with the Permitted Merger.
(e) Amend or otherwise modify, or permit any of its Subsidiaries so
to do, any material term or provision of the Merger Agreement without
the consent of the Administrative Agent and the Syndication Agent,
provided, however, that if such amendment or other modification would
in any way materially adversely affect the interests of the
Administrative Agent and the Lenders under any of the Loan Documents,
the consent of the Administrative Agent, the Syndication Agent and
the Required Lenders shall be required.
H. Section 8.11 of the Revolving Credit Agreement is amended by (a)
inserting the phrase "or the Permitted Merger" immediately prior to the semi-
colon appearing at the end of clause (a) of such Section 8.11, and (b) deleting
clause (e) of such Section 8.11 in its entirety and inserting in its place the
following:
(e) the Borrower may issue additional Stock; and
(f) pursuant to the terms of the 5-5/8% Indenture and the
5-5/8% Notes;
provided, however, that all Stock issued pursuant to this Section shall
constitute common stock with no
mandatory dividend, redemption or similar requirement, or warrants,
options or other equivalents (however designated) to acquire such common
stock.
I. The Schedules to the Revolving Credit Agreement are amended by adding
thereto Schedule 8.5A in substantially the form of Schedule 8.5A attached
hereto.
J. The Administrative Agent and the Lenders consent to the amendment of
the Term Loan Facility substantially in the form of Exhibit A attached hereto
(the "Term Loan Amendment").
-------------------
K. Paragraphs 1 - 10 of this Amendment shall not be effective until such
date as each of the following conditions shall have been satisfied:
1. The Administrative Agent shall have received a certificate of an
Authorized Signatory of the Borrower attaching a true, complete and correct copy
of the fully executed Merger Agreement.
2. The Term Loan Amendment shall have become effective, and the
Administrative Agent shall have received a certificate of an Authorized
Signatory of the Borrower attaching a true, complete and correct copy of the
fully executed Term Loan Amendment.
3. The Borrower shall have paid the reasonable fees and disbursements
of Special Counsel which shall have accrued up to the date hereof.
L. On the date hereof, each Credit Party hereby (a) reaffirms and admits
the validity and enforceability of the Loan Documents and all of its obligations
thereunder, (b) agrees and admits that it has no defenses to or offsets against
any such obligation, and (c) represents and warrants that no Default or Event of
Default has occurred and is continuing, and that each of the representations and
warranties made by it in the Loan Documents to which it is a party is true and
correct with the same effect as though such representation and warranty had been
made on the date hereof.
M. 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.
N. This Amendment may be executed in any number of counterparts all of
which, taken together, shall constitute one Amendment. In making proof of this
Amendment, it shall only be necessary to produce the counterpart executed and
delivered by the party to be charged.
O. 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.
AMENDMENT NO. 1 AND CONSENT NO. 1
TO 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:
______________________________________
Name:
______________________________________
Title:
______________________________________
THE BANK OF NEW YORK,
Individually, as the Letter of Credit Issuer,
as the Swing Line Lender and as Administrative
Agent
By:
______________________________________
Name:
______________________________________
Title:
______________________________________
DLJ CAPITAL FUNDING, INC.,
Individually and as Syndication Agent
By:
______________________________________
Name:
______________________________________
Title:
______________________________________
FIRST UNION NATIONAL BANK,
Individually and as Documentation Agent
By:
______________________________________
Name:
______________________________________
Title:
______________________________________
AMENDMENT NO. 1 AND CONSENT NO. 1
TO REVOLVING CREDIT AGREEMENT
ABN AMRO BANK N.V.
By:
______________________________________
Name:
______________________________________
Title:
______________________________________
By:
______________________________________
Name:
______________________________________
Title:
______________________________________
ALLIED IRISH BANKS, P.L.C.,
CAYMAN ISLANDS BRANCH
By:
______________________________________
Name:
______________________________________
Title:
______________________________________
By:
______________________________________
Name:
______________________________________
Title:
______________________________________
BANK LEUMI TRUST COMPANY OF NEW YORK
By:
______________________________________
Name:
______________________________________
Title:
______________________________________
By:
______________________________________
Name:
______________________________________
Title:
______________________________________
BANKBOSTON N.A.
Name:
______________________________________
Title:
______________________________________
AMENDMENT NO. 1 AND CONSENT NO. 1
TO REVOLVING CREDIT AGREEMENT
Title:
______________________________________
BANK OF MONTREAL
By:
______________________________________
Name:
______________________________________
Title:
______________________________________
THE BANK OF NOVA SCOTIA
By:
______________________________________
Name:
______________________________________
Title:
______________________________________
BANQUE NATIONALE DE PARIS
By:
______________________________________
Name:
______________________________________
Title:
______________________________________
By:
______________________________________
Name:
______________________________________
Title:
______________________________________
AMENDMENT NO. 1 AND CONSENT NO. 1
TO REVOLVING CREDIT AGREEMENT
BANQUE PARIBAS
By:
______________________________________
Name:
______________________________________
Title:
______________________________________
By:
______________________________________
Name:
______________________________________
Title:
______________________________________
CITY NATIONAL BANK
By:
______________________________________
Name:
______________________________________
Title:
______________________________________
CORESTATES BANK N.A.
By:
______________________________________
Name:
______________________________________
Title:
______________________________________
CREDIT LYONNAIS NEW YORK BRANCH
By:
______________________________________
Name:
______________________________________
Title:
______________________________________
DEUTSCHE BANK AG, NEW YORK AND/OR CAYMAN
ISLANDS BRANCHES
By:
______________________________________
Name:
______________________________________
AMENDMENT NO. 1 AND CONSENT NO. 1
TO REVOLVING CREDIT AGREEMENT
Title:
______________________________________
By:
______________________________________
Name:
______________________________________
Title:
______________________________________
DRESDNER BANK AG, NEW YORK BRANCH AND GRAND
CAYMAN BRANCH
By:
______________________________________
Name:
______________________________________
Title:
______________________________________
By:
______________________________________
Name:
______________________________________
Title:
______________________________________
FLEET NATIONAL BANK
By:
______________________________________
Name:
______________________________________
Title:
______________________________________
THE FUJI BANK, LIMITED
By:
______________________________________
Name:
______________________________________
Title:
______________________________________
HIBERNIA NATIONAL BANK
By:
______________________________________
Name:
______________________________________
AMENDMENT NO. 1 AND CONSENT NO. 1
TO REVOLVING CREDIT AGREEMENT
Title:
______________________________________
THE INDUSTRIAL BANK OF JAPAN, LTD.,
LOS ANGELES AGENCY
By:
____________________________________
Name:
____________________________________
Ttitle:
______________________________________
LONG TERM CREDIT BANK OF JAPAN, LTD.
By:
____________________________________
Name:
____________________________________
Title:
____________________________________
MELLON BANK, N.A.
By:
____________________________________
Name:
____________________________________
Title:
____________________________________
MICHIGAN NATIONAL BANK
By:
____________________________________
Name:
____________________________________
Title:
____________________________________
AMENDMENT NO. 1 AND CONSENT NO. 1
TO REVOLVING CREDIT AGREEMENT
THE MITSUBISHI TRUST AND BANKING CORPORATION
By:
____________________________________
Name:
____________________________________
Title:
____________________________________
NATIONAL CITY BANK OF KENTUCKY
By:
____________________________________
Name:
____________________________________
Title:
____________________________________
COOPERATIEVE CENTRALE
RAIFFEISEN - BOERENLEENBANK B.A,
"RABOBANK NEDERLAND", NEW YORK
BRANCH
By:
____________________________________
Name:
____________________________________
Title:
____________________________________
By:
____________________________________
Name:
____________________________________
Title:
____________________________________
ROYAL BANK OF CANADA
By:
____________________________________
Name:
____________________________________
Title:
____________________________________
THE ROYAL BANK OF SCOTLAND PLC
AMENDMENT NO. 1 AND CONSENT NO. 1
TO REVOLVING CREDIT AGREEMENT
By:
______________________________________
Name:
______________________________________
Title:
______________________________________
THE SAKURA BANK, LIMITED
By:
____________________________________
Name:
____________________________________
Title:
____________________________________
THE SANWA BANK, LIMITED
By:
____________________________________
Name:
____________________________________
Title:
____________________________________
SOCIETE GENERALE
By:
____________________________________
Name:
____________________________________
Title:
____________________________________
THE SUMITOMO BANK, LIMITED, CHICAGO BRANCH
By:
____________________________________
Name:
____________________________________
Title:
____________________________________
By:
____________________________________
Name:
____________________________________
Title:
____________________________________
AMENDMENT NO. 1 AND CONSENT NO. 1
TO REVOLVING CREDIT AGREEMENT
THE SUMITOMO TRUST & BANKING CO., LTD., NEW
YORK BRANCH
By:
_____________________________________
Name:
_____________________________________
Title:
_____________________________________
SUNTRUST BANK, NASHVILLE, N.A.
By:
_____________________________________
Name:
_____________________________________
Title:
_____________________________________
UNION BANK OF CALIFORNIA, N.A.
By:
_____________________________________
Name:
_____________________________________
Title:
_____________________________________
U.S. BANK NATIONAL ASSOCIATION
By:
_____________________________________
Name:
_____________________________________
Title:
_____________________________________
AGREED AND CONSENTED TO:
TOTAL RENAL CARE, INC.
By:
------
Name:
----
AMENDMENT NO. 1 AND CONSENT NO. 1
TO REVOLVING CREDIT AGREEMENT
Title:
-----
TRC WEST, INC.
By:
-----
Name:
-----
Title:
-----
TRC ACQUISITION CORP.
By:
-----
Name:
-----
Title:
-----