EXHIBIT 10.32
[FORM OF ACKNOWLEDGMENT AND CONFIRMATION]
This ACKNOWLEDGEMENT AND CONFIRMATION (this "ACKNOWLEDGEMENT") is dated
as of April 30, 1998, entered into by each of the undersigned (each a "CREDIT
SUPPORT PARTY" and together the "CREDIT SUPPORT PARTY"), for the benefit of The
Bank of New York, as Collateral Agent, and the Term Lenders and the Revolving
Lenders referred to below, and is made with reference to (i) that certain
Amended and Restated Revolving Credit Agreement dated as of April 30, 1998, with
the lenders named therein (the "Revolving Lenders"), DLJ Capital Funding, Inc.,
as Syndication Agent, The Bank of New York, as Administrative Agent, and First
Union National Bank, as Documentation Agent (such Amended and Restated Revolving
Credit Agreement being the "REVOLVING CREDIT AGREEMENT"), and (ii) that certain
Amended and Restated Term Loan Agreement dated as of April 30, 1998 with the
lenders named therein (the "Term Lenders"), DLJ Capital Funding, Inc., as
Syndication Agent, and The Bank of New York, as the Administrative Agent (said
Amended and Restated Term Loan Agreement being the "TERM LOAN AGREEMENT").
Capitalized terms used herein without definition shall have the same meanings
herein as set forth in the Revolving Credit Agreement and, if not defined
therein, in the Term Loan Agreement.
PRELIMINARY STATEMENTS
----------------------
A. The Borrower is a party to that certain Revolving Credit Agreement
dated as of October 24, 1997 with the lenders party to such Revolving Credit
Agreement, DLJ Capital Funding, Inc., as Syndication Agent, The Bank of New
York, as Administrative Agent, and First Union National Bank, as Documentation
Agent (such Revolving Credit Agreement as amended to the date hereof, being the
"EXISTING REVOLVING CREDIT AGREEMENT").
B. The Borrower is a party to that certain Term Loan Agreement dated
as of October 24, 1997 with the lenders party to such Term Loan Agreement, DLJ
Capital Funding, Inc., as Syndication Agent, and The Bank of New York, as the
Administrative Agent (said Term Loan Agreement, as amended to the date hereof,
being the "EXISTING TERM LOAN AGREEMENT").
C. The parties to the Existing Revolving Credit Agreement desire to
amend and restate it in its entirety pursuant to the Revolving Credit Agreement.
D. The parties to the Existing Term Loan Agreement desire to amend
and restate it in its entirety pursuant to the Term Loan Agreement.
1
E. The Borrower is a party to the Borrower Pledge Agreement pursuant
to which Borrower has pledged certain Collateral to the Collateral Agent to
secure, among other things, the obligations under the Existing Term Loan
Agreement and the Existing Revolving Credit Agreement. TRC is a party to a
Subsidiary Pledge Agreement dated as of October 24, 1997 (the "Subsidiary Pledge
Agreement (TRC)") pursuant to which TRC pledged certain Collateral to the
Collateral Agent to secure, among other things, the obligations under the
Existing Term Loan Agreement and the Existing Revolving Credit Agreement and to
secure the obligations of TRC under the Subsidiary Guaranty. RTC is a party to
a Subsidiary Pledge Agreement dated as of February 27, 1998 (the "Subsidiary
Pledge Agreement (RTC)") pursuant to which RTC pledged certain Collateral to the
Collateral Agent to secure, among other things, the obligations under the
Existing Term Loan Agreement and the Existing Revolving Credit Agreement and to
secure the obligations of RTC under the Subsidiary Guaranty. Each Guarantor
listed on the signature pages hereof is a party to the Subsidiary Guaranty
pursuant to which such Guarantor has guarantied, among other things, the
obligations under the Existing Term Loan Agreement and the Existing Revolving
Credit Agreement. The Borrower, TRC, and RTC are collectively referred to herein
as the "PLEDGORS." The Pledgors and the Guarantors are collectively referred to
herein as the "CREDIT SUPPORT PARTIES." The Borrower Pledge Agreement, the
Subsidiary Pledge Agreement (TRC), the Subsidiary Pledge Agreement (RTC), and
the Subsidiary Guaranty are collectively referred to herein as the "CREDIT
SUPPORT DOCUMENTs".
F. It is a condition precedent to the effectiveness of the Revolving
Credit Agreement and the Term Loan Agreement that the Pledgors and Guarantors
acknowledge and confirm the Credit Support Documents to which they are a party
shall continue to guaranty or secure, as the case may be, the obligations under
the Revolving Credit Agreement and the Term Loan Agreement and the Loan
Documents referenced in the Revolving Credit Agreement and the Term Loan
Agreement.
G. The Credit Support Parties desire expressly to confirm the
foregoing matters and to acknowledge for purposes of clarification that all
obligations of the Borrower under the Revolving Credit Agreement and the Term
Loan Agreement are within the definition of "Guarantied Obligations" contained
in the Subsidiary Guaranty and constitute "Secured Obligations" under the
Collateral Documents.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the Credit Support Parties hereby
agree as follows:
1. Each Credit Support Party hereby acknowledges that it has reviewed
the terms and provisions of the Existing Revolving Credit Agreement, the
Existing Term Loan Agreement, the Revolving Credit Agreement and the Term Loan
Agreement and consents to the amendment and restatement of the Existing
Revolving Credit Agreement and the Existing Term Loan Agreement effected
pursuant to the Revolving Credit Agreement and the Term Loan Agreement. Each
Credit Support Party hereby confirms that each Credit Support Document to which
it is a party or otherwise bound and all Collateral encumbered thereby will
continue to guaranty or secure, as the case may be, to the fullest extent
possible the
2
payment and performance of all "Guarantied Obligations" and "Secured
Obligations," as the case may be (in each case as such terms are defined in the
applicable Credit Support Document), including without limitation the payment
and performance of all such "Guarantied Obligations" and "Secured Obligations,"
as the case may be, in respect of the Obligations of the Borrower now or
hereafter existing under or in respect of the Revolving Credit Agreement and the
Term Loan Agreement and the Loan Documents, as defined in each such agreement.
2. Each Credit Support Party hereby acknowledges and confirms the
understanding and intent of such party that, upon the Effective Date of the
Revolving Credit Agreement and the Term Loan Agreement, and as a result thereof,
the definitions of "Guarantied Obligations" and "Secured Obligations" contained
in the Subsidiary Guaranty and the Collateral Documents shall include, without
limitation, obligations in respect of the First Additional Term Loans and the
obligations in respect of the Revolving Credit Commitments.
3. Each Credit Support Party acknowledges and agrees that any of the
Credit Support Documents to which it is a party or otherwise bound shall
continue in full force and effect and that all of its obligations thereunder
shall be valid and enforceable and shall not be impaired or limited by the
execution or effectiveness of the Revolving Credit Agreement and the Term Loan
Agreement. Each Credit Support Party represents and warrants that all
representations and warranties contained in the Revolving Credit Agreement and
the Term Loan Agreement and the Credit Support Documents to which it is a party
or otherwise bound are true, correct and complete in all material respects on
and as of the Effective Date to the same extent as though made on and as of that
date, except to the extent such representations and warranties specifically
relate to an earlier date, in which case they were true, correct and complete in
all material respects on and as of such earlier date.
4. Each Credit Support Party acknowledges and agrees that (i)
notwithstanding the conditions to effectiveness set forth in the Revolving
Credit Agreement and the Term Loan Agreement, such Credit Support Party is not
required by the terms of the Revolving Credit Agreement or the Term Loan
Agreement or any document referenced therein to consent to the amendment and
restatement of the Existing Revolving Credit Agreement and the Existing Term
Loan Agreement effected pursuant the Revolving Credit Agreement and the Term
Loan Agreement and (ii) nothing in the Revolving Credit Agreement or the Term
Loan Agreement or any document referenced therein shall be deemed to require the
consent of such Credit Support Party to any future amendments to the Revolving
Credit Agreement or the Term Loan Agreement.
5. On and after the Effective Date, each reference in the Credit
Support Documents to the "Revolving Credit Agreement" "thereunder", "thereof",
"therein" or words of like import referring to the Existing Revolving Credit
Agreement shall mean and be a reference to the Revolving Credit Agreement (as
defined herein), as it may hereafter be amended, restated, or otherwise modified
from time to time.
6. On and after the Effective Date, each reference in the Credit
Support Documents to the "Term Loan Agreement" "thereunder", "thereof",
"therein" or words of like
3
import referring to the Existing Term Loan Agreement shall mean and be a
reference to the Term Loan Agreement (as defined herein), as it may hereafter be
amended, restated, or otherwise modified from time to time.
7. THIS ACKNOWLEDGEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
8. This Acknowledgment may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
[Remainder of page intentionally left blank]
4
IN WITNESS WHEREOF, each of the undersigned Credit Support Parties has
caused this Acknowledgement and Confirmation to be duly executed and delivered
by its officer thereunto duly authorized as of the date first written above.
TOTAL RENAL CARE HOLDINGS, INC. as Borrower and
a Pledgor
TOTAL RENAL CARE, INC., as a Guarantor and a
Pledgor
TOTAL RENAL CARE ACQUISITION CORP., as a
Guarantor
RENAL TREATMENT CENTERS, INC., as a Guarantor
and a Pledgor
RENAL TREATMENT CENTERS - MID-ATLANTIC, INC.,
as a Guarantor
RENAL TREATMENT CENTERS - NORTHEAST, INC., as a
Guarantor
RENAL TREATMENT CENTERS - CALIFORNIA, INC., as
a Guarantor
RENAL TREATMENT CENTERS - WEST, INC., as a
Guarantor
RENAL TREATMENT CENTERS - SOUTHEAST, INC., as a
Guarantor
By___________________________
Title_______________________
TRC WEST, INC., as a Guarantor
By___________________________
Title_______________________
5