EXHIBIT 4.3
SECOND SUPPLEMENTAL INDENTURE
Supplemental Indenture (this "Supplemental Indenture"), dated as of
April 30, 2004 among the entities listed in Exhibit A hereto (each a
"Guaranteeing Subsidiary" and together the "Guaranteeing Subsidiaries"), each a
subsidiary of Renal Care Group, Inc., Renal Care Group, Inc. (as successor to
National Nephrology Associate, Inc.), a Delaware corporation (the "Company"),
the Guarantors (as defined in the Indenture referred to herein) and Wells Fargo
Bank, National Association, a national banking association (as successor by
merger to Wells Fargo Bank Minnesota, N.A.), as trustee under the Indenture
referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore become a party to an indenture
(the "Indenture"), dated as of October 22, 2003 providing for the issuance of 9%
Senior Subordinated Notes due 2011 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiaries shall execute and deliver to the Trustee a
supplemental indenture pursuant to which each Guaranteeing Subsidiary shall
unconditionally guarantee all of the Company's obligations under the Notes and
the Indenture on the terms and conditions set forth herein (the "Guarantee");
and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, each
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. Capitalized Terms. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. Each Guaranteeing Subsidiary hereby agrees
as follows:
(a) Along with all other Guarantors, to jointly and severally
Guarantee to each Holder of a Note authenticated and delivered by the Trustee
and to the Trustee and its successors and assigns, irrespective of the validity
and enforceability of the Indenture, the Notes or the obligations of the Company
hereunder or thereunder, that:
(i) the principal of and interest on the Notes will be promptly
paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of and
interest on the Notes, if any, if lawful, and all other obligations of
the Company to the Holders or the Trustee hereunder or thereunder will
be promptly paid in full or performed, all in accordance with the
terms hereof and thereof; and
1
(ii) in case of any extension of time of payment or renewal of
any Notes or any of such other obligations, the same will be promptly
paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or
otherwise. Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Guarantors shall be
jointly and severally obligated to pay the same immediately.
(b) The obligations hereunder shall be unconditional, irrespective of
the validity, regularity or enforceability of the Notes or the Indenture,
the absence of any action to enforce the same, any waiver or consent by any
Holder of the Notes with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any action to enforce the
same or any other circumstance that might otherwise constitute a legal or
equitable discharge or defense of a guarantor.
(c) The following are hereby waived: diligence, presentment, demand
of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against
the Company, protest, notice and all demands whatsoever.
(d) This Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes and the Indenture.
(e) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors, or any Custodian,
Trustee, liquidator or other similar official acting in relation to either
the Company or the Guarantors, any amount paid by either to the Trustee or
such Holder, this Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect.
(f) Such Guaranteeing Subsidiary shall not be entitled to any right
of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed
hereby.
(g) As between the Guarantors, on the one hand, and the Holders and
the Trustee, on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article Six of the
Indenture for the purposes of this Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of
the obligations guaranteed hereby, and (y) in the event of any declaration
of acceleration of such obligations as provided in Article Six of the
Indenture, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Guarantors for the purpose of this
Guarantee.
(h) Pursuant to Section 10.02 of the Indenture, after giving effect
to any maximum amount and any other contingent and fixed liabilities that are
relevant under any applicable Bankruptcy or fraudulent conveyance laws, and
after giving effect to any collections from, rights to receive contribution from
or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under Article Ten of the Indenture shall
result in the obligations of such Guarantor under its Guarantee not constituting
a fraudulent transfer or conveyance.
2
3. Subordination. The Obligations of the Guaranteeing Subsidiary under
its Guarantee pursuant to this Supplemental Indenture shall be junior and
subordinated to the Senior Indebtedness of the Guaranteeing Subsidiary on the
same basis as the Notes are junior and subordinated to the Senior Indebtedness
of the Company. For the purposes of the foregoing sentence, the Trustee and the
Holders shall have the right to receive and/or retain payments by the
Guaranteeing Subsidiary only at such time as they may receive and/or retain
payments in respect of the Notes pursuant to the Indenture, including Article
Ten thereof.
4. Execution and Delivery. Each Guaranteeing Subsidiary agrees that
the Guarantees shall remain in full force and effect notwithstanding any failure
to endorse on each Note a notation of such Guarantee.
5. Guaranteeing Subsidiary May Consolidate, Etc., on Certain Terms.
Except as otherwise provided in Section 11.05 of the Indenture, a
Guarantor may not consolidate with or merge with or into any other Person or
convey, sell, assign, transfer, lease or otherwise dispose of its properties and
assets substantially as an entirety to any other Person (other than the Company
or another Guarantor) unless:
(i) subject to the provisions of the following paragraph, the Person
formed by or surviving such consolidation or merger (if other than such
Guarantor) or to which such properties and assets are transferred assumes all of
the obligations of such Guarantor under this Indenture and its Guarantee,
pursuant to a supplemental indenture in form and substance satisfactory to the
Trustee;
(j) immediately after giving effect to such transaction, no Default
or Event of Default has occurred and is continuing; and
(k) the Guarantor delivers, or causes to be delivered, to the
Trustee, in form and substance reasonably satisfactory to the Trustee, an
Officers' Certificate and an Opinion of Counsel, each stating that such
transaction complies with the requirements of this Indenture.
For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more Restricted
Subsidiaries, the Capital Stock of which constitutes all or substantially all of
the properties and assets of the Company, shall be deemed to be the transfer of
all or substantially all of the properties and assets of the Company.
In case of any such consolidation, merger, sale or conveyance and upon
the assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and reasonably satisfactory in form to the Trustee, of
the Guarantee endorsed upon the Notes and the due and punctual performance of
all of the covenants and conditions of the Indenture to be performed by a
Guarantor, such successor Person shall succeed to and be substituted for a
Guarantor with the same effect as if it had been named herein as a Guarantor.
Such successor Person thereupon may cause to be signed any or all of the
Guarantees to be endorsed upon all of the Notes issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee. All the Guarantees so issued shall in all respects have the same legal
rank and benefit under the Indenture as the Guarantees theretofore and
thereafter issued in accordance
3
with the terms of the Indenture as though all of such Guarantees had been issued
at the date of the execution hereof.
6. Releases.
(a) A Guarantor will be deemed automatically and unconditionally
released and discharged from all of its obligations under its Guarantee without
any further action on the part of the Trustee or any Holder of the Notes upon a
sale or other disposition to a Person not an Affiliate of the Company of all of
the Capital Stock of, or all or substantially all of the assets of, such
Guarantor, by way of merger, consolidation or otherwise, which transaction is
carried out in accordance with Section 4.10 hereof; provided that any such
termination shall occur (x) only to the extent that all obligations of such
Guarantor under all of its guarantees of, and under all of its pledges of assets
or other security interests which secure any Indebtedness of the Company shall
also terminate upon such sale, disposition or release and (y) only if the
Trustee is furnished with written notice of such release together with an
Officers' Certificate from such Guarantor to the effect that all of the
conditions to release in this Section 6 have been satisfied.
(b) Any Guarantor not released from its obligations under its
Guarantee shall remain liable for the full amount of principal of and interest
on the Notes and for the other obligations of any Guarantor under the Indenture
as provided in Article Eleven of the Indenture.
7. No Recourse Against Others. No director, officer, employee,
incorporator or stockholder of the Company or any Guarantor, as such, shall have
any liability for any obligations of the Company or the Guarantors under the
Notes, this Indenture, the Guarantees or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes. The waiver may not be
effective to waive liabilities under the federal securities laws.
8. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK
SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
9. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
10. Effect of Headings. The Section headings herein are for
convenience only and shall not affect the construction hereof.
11. Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Subsidiary and the Company.
4
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: April 30, 2004
GUARANTEEING SUBSIDIARIES:
RENAL CARE GROUP EAST, INC., a Pennsylvania
corporation
RENAL CARE GROUP MICHIGAN, INC., a Delaware
corporation
MICHIGAN HOME DIALYSIS CENTER, INC., a Michigan
corporation
RENAL CARE GROUP OF THE MIDWEST, INC., a Kansas
corporation
FOUR STATE REGIONAL DIALYSIS CENTER, INC., a
Missouri corporation
FORT SCOTT REGIONAL DIALYSIS CENTER, INC., a
Missouri corporation
MIAMI REGIONAL DIALYSIS CENTER, INC., a Missouri
corporation
RCG MISSISSIPPI, INC., a Delaware corporation
RENAL CARE GROUP OF THE SOUTHEAST, INC., a Florida
corporation
NORTHEAST ALABAMA KIDNEY CLINIC, INC., an Alabama
corporation
RENAL CARE GROUP TEXAS, INC., a Texas corporation
DIALYSIS MANAGEMENT CORPORATION, a Texas
corporation
RCG PA MERGER CORP., a Texas corporation
STAT DIALYSIS CORPORATION, a Delaware corporation
ANGLETON DIALYSIS, INC., a Texas corporation
BRAZORIA KIDNEY CENTER, INC., a Texas corporation
FONDREN DIALYSIS CLINIC, INC., a Texas corporation
WHARTON DIALYSIS, INC., a Texas corporation
JEFFERSON COUNTY DIALYSIS, INC., an Arkansas
corporation
KDCO, INC., a Missouri corporation
By: /s/ Douglas B. Chappell
----------------------------------------------
Name: Douglas B. Chappell
Title: Vice President and Secretary
5
GUARANTEEING LAWTON DIALYSIS, INC., an Arkansas corporation
SUBSIDIARIES (CONTINUED): LITTLE ROCK DIALYSIS, INC., an Arkansas
corporation
NORTHWEST DIALYSIS, INC., an Arkansas corporation
RENALAB, INC., a Delaware corporation
RCG FINANCE, INC., a Delaware corporation
RENALPARTNERS, INC., a Delaware corporation
RENALNET, INC., a Delaware corporation
WOUND CARE GROUP, INC., a Delaware corporation
DIABETES CARE GROUP, INC., a Delaware corporation
RENAL CARE GROUP ARIZONA, INC., an Arizona
corporation
RENAL CARE GROUP NORTHWEST, INC., a Delaware
corporation
RENALNET, ARIZONA, INC., an Arizona corporation
RCG UNIVERSITY DIVISION, INC., a Tennessee
corporation
R.C.G. SUPPLY COMPANY, a Tennessee corporation
RENAL CARE GROUP ALASKA, INC., an Alaska
corporation
RENAL CARE GROUP SOUTHWEST HOLDINGS, INC., a
Delaware corporation
DIALYSIS CENTERS OF AMERICA - ILLINOIS, INC., an
Illinois corporation
SSKG, INC., an Illinois corporation
RENAL CARE GROUP OHIO, INC., a Delaware
corporation
PHYSICIANS DIALYSIS COMPANY, INC., a Pennsylvania
corporation
KENTUCKY RENAL CARE GROUP, LLC, a Delaware limited
liability company
By: /s/ Douglas B. Chappell
----------------------------------------------
Name: Douglas B. Chappell
Title: Vice President and Secretary
DIALYSIS LICENSING CORP., a Delaware corporation
RCGIH, INC., a Delaware corporation
By: /s/ Douglas B. Chappell
----------------------------------------------
Name: Douglas B. Chappell
Title: Vice President and Assistant Secretary
6
GUARANTEEING RENAL CARE GROUP SOUTHWEST, L.P., a Delaware
SUBSIDIARIES (CONTINUED): limited partnership
By: Renal Care Group Arizona, Inc., as sole
general partner
By: /s/ Douglas B. Chappell
-----------------------------------------------
Name: Douglas B. Chappell
Title: Vice President and Secretary
ARIZONA RENAL INVESTMENTS, LLC, a Delaware limited
liability company
By: Renal Care Group Arizona, Inc., as sole member
By: /s/ Douglas B. Chappell
-----------------------------------------------
Name: Douglas B. Chappell
Title: Vice President and Secretary
RCG INDIANA, L.L.C., a Delaware limited liability
company
By: Renal Care Group, Inc., as manager
By: /s/ Douglas B. Chappell
-----------------------------------------------
Name: Douglas B. Chappell
Title: Senior Vice President and Secretary
KIDNEY DISEASE CENTER OF THE OZARKS, L.L.C., a
Missouri limited liability company
By: Renal Care Group, Inc., as sole member
By: /s/ Douglas B. Chappell
-----------------------------------------------
Name: Douglas B. Chappell
Title: Senior Vice President and Secretary
7
GUARANTEEING STUTTGART DIALYSIS, LLC, an Arkansas limited
SUBSIDIARIES (CONTINUED): liability company
By: Renal Care Group, Inc., as sole manager
By: /s/ Douglas B. Chappell
-----------------------------------------------
Name: Douglas B. Chappell
Title: Senior Vice President and Secretary
RCG WEST HEALTH SUPPLY, L.C., an Arizona limited
company
By: Renal Care Group, Inc., as member
By: /s/ Douglas B. Chappell
-----------------------------------------------
Name: Douglas B. Chappell
Title: Senior Vice President and Secretary
RENAL CARE GROUP TEXAS, LP, a Delaware limited
partnership
By: RCG PA Merger Corp., as sole general partner
By: /s/ Douglas B. Chappell
-----------------------------------------------
Name: Douglas B. Chappell
Title: Vice President and Secretary
RENAL CARE GROUP WESTLAKE, LLC, a Delaware limited
liability company
By: RCG University Division, Inc., as sole member
By: /s/ Douglas B. Chappell
-----------------------------------------------
Name: Douglas B. Chappell
Title: Vice President and Secretary
8
RENAL CARE GROUP, INC.
By: /s/ David M. Dill
-----------------------------------------------
Name: David M. Dill
Title: Executive Vice President
9
EXISTING GUARANTORS:
NNA OF OKLAHOMA, INC., a Nevada corporation
NNA OF GEORGIA, INC., a Delaware corporation
NNA OF ALABAMA, INC., an Alabama corporation
NNA MANAGEMENT COMPANY OF KENTUCKY, INC., a
Kentucky corporation
NATIONAL NEPHROLOGY ASSOCIATES MANAGEMENT COMPANY
OF TEXAS, INC., a Texas corporation
NNA OF NEVADA, INC., a Nevada corporation
NATIONAL NEPHROLOGY ASSOCIATES CREDIT CORPORATION,
a Tennessee corporation
NNA OF TOLEDO, INC., an Ohio corporation
NNA PROPERTIES OF NEW JERSEY, INC., a New Jersey
corporation
NNA MANAGEMENT COMPANY OF LOUISIANA, INC., a
Louisiana corporation
RENEX CORP., a Florida corporation
RENEX MANAGEMENT SERVICES, INC., a Florida
corporation
DIALYSIS SERVICES OF ATLANTA, INC., a Georgia
corporation
RENEX DIALYSIS CLINIC OF PENN HILLS, INC., a
Pennsylvania corporation
RENEX DIALYSIS CLINIC OF SHALER, INC., a
Pennsylvania corporation
RENEX DIALYSIS CLINIC OF DOYLESTOWN, INC., a
Pennsylvania corporation
RENEX DIALYSIS CLINIC OF AMESBURY, INC., a
Massachusetts corporation
RENEX DIALYSIS CLINIC OF NORTH ANDOVER, INC., a
Massachusetts corporation
RENEX DIALYSIS CLINIC OF SOUTH GEORGIA, INC., a
Georgia corporation
RENEX DIALYSIS CLINIC OF CREVE COUER, INC., a
Missouri corporation
RENEX DIALYSIS CLINIC OF ST. LOUIS, INC., a
Missouri corporation
By: /s/ David M. Dill
-----------------------------------------------
Name: David M. Dill
Title: Vice President
10
EXISTING GUARANTORS RENEX DIALYSIS CLINIC OF BRIDGETON, INC., a
(CONTINUED): Missouri corporation
RENEX DIALYSIS CLINIC OF UNION, INC., a Missouri
corporation
RENEX DIALYSIS HOMECARE OF GREATER ST. LOUIS,
INC., a Missouri corporation
RENEX DIALYSIS CLINIC OF MAPLEWOOD, INC., a
Missouri corporation
RENEX DIALYSIS CLINIC OF UNIVERSITY CITY, INC., a
Missouri corporation
RENEX DIALYSIS FACILITIES, INC., a Mississippi
corporation
RENEX DIALYSIS CLINIC OF BLOOMFIELD, INC., a New
Jersey corporation
RENEX DIALYSIS CLINIC OF ORANGE, INC., a New
Jersey corporation
RENEX DIALYSIS CLINIC OF PHILADELPHIA, INC., a
Pennsylvania corporation
RENEX DIALYSIS CLINIC OF PITTSBURGH, INC., a
Pennsylvania corporation
RENEX DIALYSIS CLINIC OF WOODBURY, INC., a New
Jersey corporation
RENEX DIALYSIS CLINIC OF TAMPA, INC., a Florida
corporation
NNA PROPERTIES OF KENTUCKY, INC., a Kentucky
corporation
NNA PROPERTIES OF TENNESSEE, INC., a Tennessee
corporation
NNA TRANSPORTATION SERVICES CORPORATION, a
Tennessee corporation
By: /s/ David M. Dill
-----------------------------------------------
Name: David M. Dill
Title: Vice President
NATIONAL NEPHROLOGY ASSOCIATES OF TEXAS, L.P., a
Texas limited partnership
By: National Nephrology Associates Management
Company of Texas, Inc., a Texas corporation,
as general partner
By: /s/ David M. Dill
----------------------------------------
Name: David M. Dill
Title: Vice President
11
EXISTING GUARANTORS NNA - SAINT BARNABAS, L.L.C., a New Jersey limited
(CONTINUED): liability company
By: Renex Dialysis Clinic of Woodbury Inc., a
Delaware corporation, as sole member
NNA - SAINT BARNABAS - LIVINGSTON, L.L.C., a New
Jersey limited liability company
By: NNA - Saint Barnabas, LLC, a New Jersey
limited liability company, as sole member
By: Renex Dialysis Clinic of Woodbury Inc.,
a Delaware corporation, as sole member
NNA OF OKLAHOMA, L.L.C., an Oklahoma limited
liability company
By: NNA of Oklahoma, Inc., a Nevada corporation,
as sole member
NNA OF LOUISIANA, LLC, a Louisiana limited
liability company
By: NNA Management Company of Louisiana, Inc.,
as sole member
DOYLESTOWN ACUTE RENAL SERVICES, L.L.C., a
Pennsylvania limited liability company
By: Renex Dialysis Clinic of Doylestown, Inc., a
Pennsylvania corporation, as sole member
NNA OF NEWARK, L.L.C., a New Jersey limited
liability company
By: Renex Dialysis Clinic of Woodbury, Inc., a
New Jersey corporation, as sole member
By: /s/ David M. Dill
-----------------------------------------------
Name: David M. Dill
Title: Vice President
NNA OF RHODE ISLAND, INC., a Rhode Island
corporation
By: /s/ Leif Murphy
-----------------------------------------
Name: Leif Murphy
Title: Executive Vice President
12
EXISTING GUARANTORS DIALYSIS ASSOCIATES, LLC, a Tennessee limited
(CONTINUED): liability company
DIALYSIS ASSOCIATES MEDICAL SUPPLY, LLC, a
Tennessee limited liability company
By: Renal Care Group, Inc., a Delaware
corporation, as sole member
By: /s/ David M. Dill
----------------------------------------
Name: David M. Dill
Title: Executive Vice President and
Chief Financial Officer
13
WELLS FARGO BANK MINNESOTA, N.A., AS TRUSTEE
By: /s/ Jane Y. Schweiger
----------------------------------------------
Name: Jane Y. Schweiger
Title: Vice President
14
EXHIBIT A
Guaranteeing Subsidiaries
Renal Care Group East, Inc.
Renal Care Group Michigan, Inc.
Michigan Home Dialysis Center, Inc.
Renal Care Group of the Midwest, Inc.
Four State Regional Dialysis Center, Inc.
Fort Scott Regional Dialysis Center, Inc.
Miami Regional Dialysis Center, Inc.
RCG Mississippi, Inc.
Renal Care Group of the Southeast, Inc.
Northeast Alabama Kidney Clinic, Inc.
Renal Care Group Texas, Inc.
Dialysis Management Corporation
RCG PA Merger Corp.
STAT Dialysis Corporation
Angleton Dialysis, Inc.
Brazoria Kidney Center, Inc.
Fondren Dialysis Clinic, Inc.
Wharton Dialysis, Inc.
Jefferson County Dialysis, Inc.
KDCO, Inc.
Lawton Dialysis, Inc.
Little Rock Dialysis, Inc.
Northwest Dialysis, Inc.
RenaLab, Inc.
RCG Finance, Inc.
RenalPartners, Inc.
RenalNet, Inc.
Wound Care Group, Inc.
Diabetes Care Group, Inc.
Renal Care Group Arizona, Inc.
Renal Care Group Northwest, Inc.
RenalNet, Arizona, Inc.
RCG University Division, Inc.
R.C.G. Supply Company
Renal Care Group Alaska, Inc.
Renal Care Group Southwest Holdings, Inc.
Dialysis Centers of America - Illinois, Inc.
SSKG, Inc.
Renal Care Group Ohio, Inc.
Physicians Dialysis Company, Inc.
Dialysis Licensing Corp.
RCGIH, Inc.
-A1-
Renal Care Group Southwest, L.P.
Arizona Renal Investments, LLC
RCG Indiana, L.L.C.
Kidney Disease Center of the Ozarks, L.L.C.
Stuttgart Dialysis, LLC
RCG West Health Supply, L.C.
Kentucky Renal Care Group, LLC
Renal Care Group Texas, LP
Renal Care Group Westlake, LLC
-A2-