EXHIBIT 10.20
AMENDMENT NO. 2
TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
AMENDMENT NO. 2 (this "Amendment"), dated as of November 12, 1998, to the
Amended and Restated Revolving Credit Agreement, as amended by Amendment No. 1
and Consent No. 1, dated as of August 5, 1998 (the "Revolving Credit
Agreement"), dated as of April 30, 1998, 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").
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 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:
1. Section 2.6(d) of the Revolving Credit Agreement is amended to replace the
amount "$200,000,000" with the following:
the sum of $200,000,000 plus the face principal amount of Subordinated
Indebtedness issued by the Borrower in November, 1998 (such sum not to
exceed $500,000,000 in the aggregate).
2. Section 4.19 of the Revolving Credit Agreement is amended and restated in
its entirety to read as follows:
The facilities operated by the Borrower and its Subsidiaries (the
"Facilities") are qualified for participation in the Medicare and Medicaid
programs (together with their respective intermediaries or carriers, the
"Government Reimbursement Programs") and are entitled to reimbursement
under the Medicare program for services rendered to qualified Medicare
beneficiaries, and comply in all material respects with the conditions of
participation in all Government Reimbursement Programs. There is no pending
or, to Borrower's knowledge, threatened proceeding or investigation by any
of the Government Reimbursement Programs with respect to (i) the Borrower's
or any of its Subsidiaries' qualification or right to participate in any
Government Reimbursement Program, (ii) the compliance or non-compliance by
the Borrower or any of its Subsidiaries with the terms or provisions of any
Government Reimbursement Program, or (iii) the right of the Borrower or any
of its Subsidiaries to receive or retain amounts received or due or to
become due from any Government Reimbursement Program, which proceeding or
investigation, together with all other such proceedings and investigations,
could reasonably be expected to (x) have a Material Adverse Effect or (y)
result in Consolidated net operating revenues for any (including any
future) four fiscal quarter period of the Borrower constituting less than
95% of Consolidated net operating revenues for the immediately preceding
four fiscal quarter period of the Borrower.
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3. Section 8.9 of the Revolving Credit Agreement is amended to add a new
subsection (e) at the end thereof as follows:
(e) The Borrower will not voluntarily prepay, redeem or repurchase any
Subordinated Indebtedness, except that if such Subordinated Indebtedness is
convertible into common stock of the Borrower, the Borrower may exercise
any right it may have to redeem at any time after November 1, 2001 all or
any part of such Subordinated Indebtedness if on the Determination Date the
Applicable Premium is at least 1.05. For purposes of this subsection
8.9(e):
"Determination Date" shall mean, as applicable, either (i) the date on
which such Subordinated Indebtedness is redeemed if no prior notice of
redemption must be given or (ii) if the Borrower is required under the
terms of such Subordinated Indebtedness to give prior irrevocable notice of
redemption, the date (which date shall not be more than 45 days prior to
the redemption date) on which such notice is given;
"Applicable Premium" shall mean the fraction (i) the numerator of which
is the "Average Market Value" and (ii) the denominator of which is the then
applicable conversion price under the terms of such Subordinated
Indebtedness; and
"Average Market Value" shall mean the average of the last sale price of
the Borrower's common stock as reported on the New York Stock Exchange (or
if not listed for trading thereon, then on the principal national
securities exchange or the principal automated quotation system on which
such common stock is listed or admitted to trading) for the period of 10
trading days ended two trading days prior to the date of redemption or the
date on which notice of redemption is given, whichever is applicable with
respect to such Subordinated Indebtedness.
4. Section 9.1(p) of the Revolving Credit Agreement is amended and restated
in its entirety to read as follows:
(p) The Borrower or any Subsidiary, in each case to the extent it is
engaged in the business of providing services for which Medicare or
Medicaid reimbursement is sought, shall for any reason, including, without
limitation, as the result of any finding, designation or decertification,
lose its right or authorization, or otherwise fail to be eligible, to
participate in Medicaid or Medicare programs or to accept assignments or
rights to reimbursements under Medicaid regulations or Medicare
regulations, or the Borrower or any Subsidiary has, for any reason, had its
right to receive reimbursements under Medicaid or Medicare regulations
suspended, and such loss, failure or suspension (together with all such
other losses, failures and suspensions continuing at such time) shall have
resulted in (x) a Material Adverse Effect or (y) Consolidated net operating
revenues for the immediately preceding four fiscal quarter period of the
Borrower constituting less than 95% of Consolidated net operating revenues
for any preceding four fiscal quarter period of the Borrower.
5. This Amendment shall become and shall be deemed effective as of the date
hereof upon the prior or simultaneous satisfaction of the following conditions:
(a) Receipt by each Lender that shall have executed and delivered this
Amendment (without any reservation or condition) to the Administrative
Agent before 3:00 p.m. (New York City time) on November 12, 1998 of a non-
refundable fee in an amount equal to 0.25% of the Revolving Credit
Commitment of such Lender.
6. 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, after giving effect to the effectiveness of this Amendment,
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.
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7. 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.
8. 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.
9. 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
TO
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: _________________________________
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: ______________________________
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AMENDMENT NO. 2
TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
FIRST UNION NATIONAL BANK,
Individually and as Documentation
Agent
By: _________________________________
Name: _______________________________
Title: ______________________________
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: ______________________________
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AMENDMENT NO. 2
TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
BANCO ESPIRITO SANTO E COMERCIAL
DE LISBOA, NASSAU BRANCH
By: _________________________________
Name: _______________________________
Title: ______________________________
By: _________________________________
Name: _______________________________
Title: ______________________________
BANK LEUMI TRUST COMPANY OF
NEW YORK
By: _________________________________
Name: _______________________________
Title: ______________________________
By: _________________________________
Name: _______________________________
Title: ______________________________
THE BANK OF NOVA SCOTIA
By: _________________________________
Name: _______________________________
Title: ______________________________
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AMENDMENT NO. 2
TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
BANQUE NATIONALE DE PARIS
By: _________________________________
Name: _______________________________
Title: ______________________________
By: _________________________________
Name: _______________________________
Title: ______________________________
BHF-BANK AKTIENGESELLSCHAFT
By: _________________________________
Name: _______________________________
Title: ______________________________
By: _________________________________
Name: _______________________________
Title: ______________________________
CITY NATIONAL BANK
By: _________________________________
Name: _______________________________
Title: ______________________________
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AMENDMENT NO. 2
TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
CREDITANSTALT CORPORATE FINANCE,
INC.
By: _________________________________
Name: _______________________________
Title: ______________________________
By: _________________________________
Name: _______________________________
Title: ______________________________
CREDIT LYONNAIS NEW YORK BRANCH
By: _________________________________
Name: _______________________________
Title: ______________________________
DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS BRANCHES
By: _________________________________
Name: _______________________________
Title: ______________________________
By: _________________________________
Name: _______________________________
Title: ______________________________
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AMENDMENT NO. 2
TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
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: _______________________________
Title: ______________________________
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AMENDMENT NO. 2
TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THE INDUSTRIAL BANK OF JAPAN, LTD.,
LOS ANGELES AGENCY
By: _________________________________
Name: _______________________________
Title: ______________________________
KBC BANK
By: _________________________________
Name: _______________________________
Title: ______________________________
By: _________________________________
Name: _______________________________
Title: ______________________________
LONG TERM CREDIT BANK OF JAPAN, LTD.
By: _________________________________
Name: _______________________________
Title: ______________________________
MELLON BANK, N.A.
By: _________________________________
Name: _______________________________
Title: ______________________________
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AMENDMENT NO. 2
TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
MICHIGAN NATIONAL BANK
By: _________________________________
Name: _______________________________
Title: ______________________________
THE MITSUBISHI TRUST AND
BANKING CORPORATION
By: _________________________________
Name: _______________________________
Title: ______________________________
NATIONAL CITY BANK OF KENTUCKY
By: _________________________________
Name: _______________________________
Title: ______________________________
PARIBAS
By: _________________________________
Name: _______________________________
Title: ______________________________
By: _________________________________
Name: _______________________________
Title: ______________________________
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AMENDMENT NO. 2
TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
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: ______________________________
THE SANWA BANK, LIMITED
By: _________________________________
Name: _______________________________
Title: ______________________________
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AMENDMENT NO. 2
TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
SOCIETE GENERALE
By: _________________________________
Name: _______________________________
Title: ______________________________
THE SUMITOMO TRUST & BANKING CO.,
LTD., NEW YORK BRANCH
By: _________________________________
Name: _______________________________
Title: ______________________________
SUNTRUST BANK, NASHVILLE, N.A.
By: _________________________________
Name: _______________________________
Title: ______________________________
THE TOKAI BANK, LIMITED
By: _________________________________
Name: _______________________________
Title: ______________________________
xiii
AMENDMENT NO. 2
TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THE TOYO TRUST & BANKING CO., LTD.,
Los Angeles Agency
By: _________________________________
Name: _______________________________
Title: ______________________________
UNION BANK OF CALIFORNIA, N.A.
By: _________________________________
Name: _______________________________
Title: ______________________________
U.S. BANK NATIONAL ASSOCIATION
By: _________________________________
Name: _______________________________
Title: ______________________________
xiv
AMENDMENT NO. 2
TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
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: ___________________________________
RENAL TREATMENT CENTERS, INC.
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
RENAL TREATMENT CENTERS--MID-ATLANTIC, INC.
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
xv
AMENDMENT NO. 2
TO
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
RENAL TREATMENT CENTERS--NORTHEAST, INC.
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
RENAL TREATMENT CENTERS--CALIFORNIA, INC.
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
RENAL TREATMENT CENTERS--WEST, INC.
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
RENAL TREATMENT CENTERS--SOUTHEAST, INC.
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
xvi