EXHIBIT 10.29
AMENDMENT NO. 2 AND CONSENT NO. 2
TO REVOLVING CREDIT AGREEMENT AND
AMENDMENT NO. 1 TO SUBSIDIARY GUARANTY
AMENDMENT NO. 2 and CONSENT NO. 2, dated as of February 17, 1998, to the
Revolving Credit Agreement, as amended by Amendment No.1 and Consent No. 1,
dated as of December 1, 1997 (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 (in such capacity, the "Administrative Agent"), and
AMENDMENT NO. 1, dated as of February 17, 1998, to the Subsidiary Guaranty,
entered into as of October 24, 1997 (the "Subsidiary Guaranty"), by the
GUARANTORS party thereto in favor of THE BANK OF NEW YORK, as collateral agent
(in such capacity, the "Collateral Agent")(this "Amendment").
RECITALS
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 Lenders
agree to amend the Revolving Credit Agreement, among other things, to permit
the Borrower to guaranty, on a subordinated basis, the obligations of RTC
under the 5-5/8% Notes upon the terms and conditions contained herein, and the
Administrative Agent and the Required Lenders are willing to so agree.
III. The Borrower has requested that the Collateral Agent and the Lenders
agree to amend the Subsidiary Guaranty to designate the Subsidiary Guaranty as
"Designated Senior Indebtedness" under the 5-5/8% Indenture upon the terms and
conditions contained herein, and the Collateral 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:
1. Section 1.1 of the Revolving Credit Agreement is amended by amending and
restating in its entirety the definition of "Letter of Credit" as follows:
"Letter of Credit": as defined in Section 2.19, provided that each of the
following shall constitute a Letter of Credit for the purposes of this
Agreement: (i) each of the Existing Letters of Credit and (ii) effective
upon the consummation of the Permitted Merger, the letter of credit no.
S111397 in the amount of $800,000, dated January 22, 1997, issued by First
Union National Bank (formerly known as First Union National Bank of North
Carolina) to Mutual Indemnity (Bermuda) Ltd. for the account of RTC, as
such letter of credit may be renewed from time to time in accordance with
its terms.
2. Section 1.1 of the Revolving Credit Agreement is amended by amending and
restating in its entirety the definition of "Letter of Credit Issuer" as
follows:
"Letter of Credit Issuer": BNY (or any successor thereto) and, solely for
purposes of the Letter of Credit referred to in clause (ii) of the
definition of "Letter of Credit", First Union National Bank (or any
successor thereto).
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3. Section 1.1 of the Revolving Credit Agreement is amended by adding the
following definition in appropriate alphabetical order:
"5 5/8% Guaranty": The guaranty by the Borrower of RTC's obligations
under the 5 5/8% Notes, provided that (i) such guaranty is subordinated to
at least the same extent as the Indebtedness under the 5 5/8% Notes is
subordinated to the Guarantied Obligations (as such term is defined in the
Subsidiary Guaranty) of RTC under the Subsidiary Guaranty, (ii) such
guaranty is otherwise on market terms for guaranties of subordinated debt
instruments prevailing at or around the time such guaranty is entered into
and (iii) such guaranty is in form and substance satisfactory to the
Administrative Agent and the Syndication Agent, as such guaranty may be
amended, supplemented or otherwise modified from time to time in accordance
with Section 8.9.
4. Section 4 of the Revolving Credit Agreement is amended by adding a new
Section 4.22 thereto as follows:
4.22 Subordinated Indebtedness
The subordination provisions of the 5 5/8% Indenture, the 5 5/8% Notes
and the 5 5/8% Guaranty will be enforceable against the holders thereof,
and the Loans and all other monetary obligations hereunder and all
monetary obligations under the Subsidiary Guaranty will constitute
"Senior Indebtedness" and "Designated Senior Indebtedness" (or any
comparable terms) as defined in such provisions.
5. Section 8.1 of the Revolving Credit Agreement is amended by 1. deleting
the word "and" immediately before clause (xvi) of such Section 8.1 and 2.
inserting the following immediately prior to the period at the end of such
Section 8.1:
, and (xvii) the 5 5/8% Guaranty.
6. Section 8.5 of the Revolving Credit Agreement is amended by 1. deleting
the word "and" immediately before clause (l) to Section 8.5 and 2. inserting
the following immediately prior to the period at the end of such Section 8.5:
; and (m) Contingent Obligations to the extent permitted by Section 8.1.
7. Section 8.9(d) of the Revolving Credit Agreement is hereby amended by 1.
deleting the words "5 5/8% Indenture or the 5 5/8% Notes" and 2. substituting
in their place the following:
5 5/8% Indenture, the 5 5/8% Notes or the 5 5/8% Guaranty.
8. Section 11 of the Revolving Credit Agreement is amended by adding a new
Section 11.22 thereto as follows:
11.22 Designation as Designated Senior Indebtedness
This Agreement, the Subsidiary Guaranty, and all Loans and all other
monetary obligations hereunder and thereunder, are hereby expressly
designated as "Designated Senior Indebtedness", as that term is defined
in the 5 5/8% Indenture and in the 5 5/8% Guaranty.
9. The Subsidiary Guaranty is amended by adding a new Section 4.15 thereto
as follows:
4.15 Designation as Designated Senior Indebtedness; Incorporation of
Defaults
This Guaranty, the Financing Documents, and all monetary obligations
hereunder and thereunder, are hereby expressly designated as
"Designated Senior Indebtedness", as that term is defined in the 5 5/8%
Indenture. The occurrence of any Default or Event of Default
constitutes a default under this Guaranty.
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10. The Administrative Agent and the Lenders, to the extent their consent is
required, hereby consent to the amendment of the Term Loan Facility
substantially in the form of Exhibit A attached hereto (the "Third Term Loan
Amendment").
11. Paragraphs 1-10 of this Amendment shall not be effective until such date
as each of the following conditions shall have been satisfied:
(a). The Third 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 Third Term Loan Amendment.
(b). The Borrower shall have paid the reasonable fees and disbursements
of Special Counsel which shall have accrued up to the date hereof.
12. On the date hereof, each Credit Party hereby (a) reaffirms and admits
the validity and enforceability of the Loan Documents (as amended by this
Amendment) 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 (as amended by this Amendment) 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.
13. 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.
14. 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.
15. 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.
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AMENDMENT NO. 2 AND CONSENT NO. 2
TO REVOLVING CREDIT AGREEMENT AND
AMENDMENT NO. 1 TO SUBSIDIARY GUARANTY
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 a Letter of Credit
Issuer, as the Swing Line Lender,
as Administrative Agent and as
Collateral Agent
By: _________________________________
Name: _______________________________
Title: ______________________________
DLJ CAPITAL FUNDING, INC.,
Individually and as Syndication
Agent
By: _________________________________
Name: _______________________________
Title: ______________________________
FIRST UNION NATIONAL BANK,
Individually, as a Letter of Credit
Issuer and as Documentation Agent
By: _________________________________
Name: _______________________________
Title: ______________________________
AMENDMENT NO. 2 AND CONSENT NO. 2
TO REVOLVING CREDIT AGREEMENT AND
AMENDMENT NO. 1 TO SUBSIDIARY GUARANTY
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: ______________________________
BANK OF MONTREAL
By: _________________________________
Name: _______________________________
Title: ______________________________
AMENDMENT NO. 2 AND CONSENT NO. 2
TO REVOLVING CREDIT AGREEMENT AND
AMENDMENT NO. 1 TO SUBSIDIARY GUARANTY
THE BANK OF NOVA SCOTIA
By: _________________________________
Name: _______________________________
Title: ______________________________
BANQUE NATIONALE DE PARIS
By: _________________________________
Name: _______________________________
Title: ______________________________
By: _________________________________
Name: _______________________________
Title: ______________________________
BANQUE PARIBAS
By: _________________________________
Name: _______________________________
Title: ______________________________
By: _________________________________
Name: _______________________________
Title: ______________________________
CITY NATIONAL BANK
By: _________________________________
Name: _______________________________
Title: ______________________________
CORESTATES BANK N.A.
By: _________________________________
Name: _______________________________
Title: ______________________________
AMENDMENT NO. 2 AND CONSENT NO. 2
TO REVOLVING CREDIT AGREEMENT AND
AMENDMENT NO. 1 TO SUBSIDIARY GUARANTY
CREDIT LYONNAIS NEW YORK BRANCH
By: _________________________________
Name: _______________________________
Title: ______________________________
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES
By: _________________________________
Name: _______________________________
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: ______________________________
AMENDMENT NO. 2 AND CONSENT NO. 2
TO REVOLVING CREDIT AGREEMENT AND
AMENDMENT NO. 1 TO SUBSIDIARY GUARANTY
THE FUJI BANK, LIMITED
By: _________________________________
Name: _______________________________
Title: ______________________________
HIBERNIA NATIONAL BANK
By: _________________________________
Name: _______________________________
Title: ______________________________
THE INDUSTRIAL BANK OF JAPAN, LTD.,
LOS ANGELES AGENCY
By: _________________________________
Name: _______________________________
Title: ______________________________
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. 2 AND CONSENT NO. 2
TO REVOLVING CREDIT AGREEMENT AND
AMENDMENT NO. 1 TO SUBSIDIARY GUARANTY
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
By: _________________________________
Name: _______________________________
Title: ______________________________
AMENDMENT NO. 2 AND CONSENT NO. 2
TO REVOLVING CREDIT AGREEMENT AND
AMENDMENT NO. 1 TO SUBSIDIARY GUARANTY
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: ______________________________
THE SUMITOMO TRUST & BANKING CO.,
LTD., NEW YORK BRANCH
By: _________________________________
Name: _______________________________
Title: ______________________________
AMENDMENT NO. 2 AND CONSENT NO. 2
TO REVOLVING CREDIT AGREEMENT AND
AMENDMENT NO. 1 TO SUBSIDIARY GUARANTY
SUNTRUST BANK, NASHVILLE, N.A.
By: _________________________________
Name: _______________________________
Title: ______________________________
THE TOYO TRUST & BANKING CO., LTD.
By: _________________________________
Name: _______________________________
Title: ______________________________
UNION BANK OF CALIFORNIA, N.A.
By: _________________________________
Name: _______________________________
Title: ______________________________
U.S. BANK NATIONAL ASSOCIATION
By: _________________________________
Name: _______________________________
Title: ______________________________
AMENDMENT NO. 2 AND CONSENT NO. 2
TO REVOLVING CREDIT AGREEMENT AND
AMENDMENT NO. 1 TO SUBSIDIARY GUARANTY
AGREED AND CONSENTED TO:
TOTAL RENAL CARE, INC.
By: _____________________________
Name: ___________________________
Title: __________________________
TRC WEST, INC.
By: _____________________________
Name: ___________________________
Title: __________________________
TOTAL RENAL CARE ACQUISITION CORP.
By: _____________________________
Name: ___________________________
Title: __________________________