EXHIBIT 10.33
TOTAL RENAL CARE HOLDINGS, INC.
FIRST AMENDMENT
TO AMENDED AND RESTATED TERM LOAN AGREEMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED TERM LOAN AGREEMENT (this
"Amendment") is dated as of August 5, 1998, and entered into by and among TOTAL
RENAL CARE HOLDINGS, INC., a Delaware corporation (the "Borrower"), the
financial institutions listed on the signature pages hereof (the "Lenders",
each a "Lender"), DLJ CAPITAL FUNDING, INC., as Syndication Agent (the
"Syndication Agent"), THE BANK OF NEW YORK, as collateral agent and as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent"), and, for purposes of Section 4 hereof, the Credit Support Parties (as
defined in Section 4 hereof) listed on the signature pages hereof, and is made
with reference to that certain Amended and Restated Term Loan Agreement dated
as of April 30, 1998 (the "Term Loan Agreement"), by and among the Borrower,
Lenders, Syndication Agent and Administrative Agent. Capitalized terms used
herein without definition shall have the same meanings herein as set forth in
the Term Loan Agreement.
RECITALS
WHEREAS, the Borrower, the Lenders, the Administrative Agent and the
Syndication Agent desire to amend the Term Loan Agreement for the purpose of
(i) revising the representation contained in Section 4.19 thereof; (ii)
revising the event of default contained in Section 9.1(o) thereof, and (iii)
making certain other changes thereto as set forth herein;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
Section 1. AMENDMENTS TO THE TERM LOAN AGREEMENT
1.1 Amendments to Section 4: Representations and Warranties
Section 4.19 of the Term Loan Agreement is hereby amended by deleting it in
its entirety and substituting the following therefor:
"4.19 Medicare Participation/Accreditation
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 Programs, 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 Programs, which proceeding or
investigation, together with all other such proceedings and investigations
could reasonably be expected to have a Material Adverse Effect."
1.2 Amendment to Section 9: Events of Default
Section 9.1(o) of the Term Loan Agreement is hereby amended by deleting it in
its entirety and substituting the following therefor:
"(o) 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 other such losses, failures and suspensions continuing at such time)
shall have resulted in a Material Adverse Effect."
Section 2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective as of April 30, 1998, only
upon the satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "First
Amendment Effective Date"):
A. Required Lenders (as such term is defined in the Revolving Credit
Agreement) shall have entered into an amendment and consent thereto that
consents to this Amendment, which amendment and consent shall be in form
and substance satisfactory to the Administrative Agent and Syndication
Agent, and all conditions to the effectiveness thereof (other than
effectiveness hereof) shall have been satisfied or waived.
Section 3. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend the Term
Loan Agreement in the manner provided herein, Borrower represents and warrants
to each Lender that the following statements are true, correct and complete:
A. Corporate Power and Authority. Each Credit Party has all requisite
corporate power and authority to enter into this Amendment and to carry out the
transactions contemplated by, and perform its obligations under, the Term Loan
Agreement as amended by this Amendment (the "Amended Agreement").
B. Authorization of Agreements. The execution and delivery of this Amendment
have been duly authorized by all necessary corporate action on the part of each
Credit Party. The performance of the Amended Agreement has been duly authorized
by all necessary corporate action on the part of each Credit Party.
C. No Conflict. The execution and delivery by each Credit Party of this
Amendment, and the performance by each Credit Party of the Amended Agreement do
not and will not (i) violate any provision of any law or any governmental rule
or regulation applicable to Borrower or any of its Subsidiaries, the
Certificate or Articles of Incorporation or Bylaws of Borrower or any of its
Subsidiaries or any order, judgment or decree of any court or other agency of
government binding on Borrower or any of its Subsidiaries, (ii) conflict with,
result in a breach of or constitute (with due notice or lapse of time or both)
a default under any contractual obligation of Borrower or any of its
Subsidiaries, (iii) result in or require the creation or imposition of any Lien
upon any of the properties or assets of Borrower or any of its Subsidiaries
(other than Liens created under any of the Loan Documents in favor of
Administrative Agent on behalf of Lenders), or (iv) require any approval of
stockholders or any approval or consent of any Person under any contractual
obligation of Borrower or any of its Subsidiaries.
D. Governmental Consents. The execution and delivery by each Credit Party of
this Amendment, and the performance by each Credit Party of the Amended
Agreement do not and will not require any registration with, consent or
approval of, or notice to, or other action to, with or by, any federal, state
or other governmental authority or regulatory body.
E. Binding Obligation. This Amendment and the Amended Agreement have been
duly executed and delivered by each Credit Party and are the legally valid and
binding obligations of each Credit Party, enforceable against each Credit Party
in accordance with their respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or limiting creditors' rights generally or by equitable principles relating to
enforceability.
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F. Incorporation of Representations and Warranties From Term Loan
Agreement. The representations and warranties contained in Section 4 of the
Term Loan Agreement (after giving effect to this Amendment) are and will be
true, correct and complete in all material respects on and as of the First
Amendment 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.
G. Absence of Default. No event has occurred and is continuing or will result
from the consummation of the transactions contemplated by this Amendment that
would constitute an Event of Default, other than any Events of Default that
will be cured upon the effectiveness of this Amendment.
Section 4. ACKNOWLEDGEMENT AND CONSENT
Borrower is a party to the Borrower Pledge Agreement pursuant to which
Borrower has pledged certain Collateral to Administrative Agent to secure the
Obligations. TRC is a party to the Subsidiary Guaranty and the Subsidiary
Pledge Agreement pursuant to which TRC has (i) guarantied the Obligations and
(ii) pledged certain Collateral to Administrative Agent to secure the
Obligations and to secure the obligations of TRC under the Subsidiary Guaranty.
Each of the other Guarantors listed on the signature pages hereof is a party to
the Subsidiary Guaranty pursuant to which such Guarantor has guarantied the
Obligations. Borrower and the Guarantors are collectively referred to herein as
the "Credit Support Parties", and the Borrower Pledge Agreement, the Subsidiary
Pledge Agreement and the Subsidiary Guaranty are collectively referred to
herein as the "Credit Support Documents".
Each Credit Support Party hereby acknowledges that it has reviewed the terms
and provisions of the Term Loan Agreement and this Amendment and consents to
the amendment of the Term Loan Agreement effected pursuant to this Amendment.
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 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
Borrower now or hereafter existing under or in respect of the Amended Agreement
and the Notes defined therein.
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 this Amendment. Each Credit Support Party represents and
warrants that all representations and warranties contained in the Amended
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
First Amendment 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.
Each Credit Support Party acknowledges and agrees that (i) notwithstanding
the conditions to effectiveness set forth in this Amendment, such Credit
Support Party is not required by the terms of the Term Loan Agreement or any
other Loan Document to consent to the amendments to the Term Loan Agreement
effected pursuant to this Amendment and (ii) nothing in the Term Loan
Agreement, this Amendment or any other Loan Document shall be deemed to require
the consent of such Credit Support Party to any future amendments to the Term
Loan Agreement.
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Section 5. MISCELLANEOUS
A. Reference to and Effect on the Term Loan Agreement and the Other Loan
Documents.
(i) On and after the First Amendment Effective Date, each reference in
the Term Loan Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import referring to the Term Loan Agreement, and
each reference in the other Loan Documents to the "Term Loan Agreement",
"thereunder", "thereof" or words of like import referring to the Term Loan
Agreement shall mean and be a reference to the Amended Agreement.
(ii) Except as specifically amended by this Amendment, the Term Loan
Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment shall
not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of
Administrative Agent or any Lender under, the Term Loan Agreement or any of
the other Loan Documents.
B. Fees and Expenses. Borrower acknowledges that all costs, fees and expenses
as described in Section 11.5 of the Term Loan Agreement incurred by
Administrative Agent, Syndication Agent, Co-Arrangers, and Special Counsel,
with respect to this Amendment and the documents and transactions contemplated
hereby shall be for the account of Borrower.
C. Headings. Section and subsection headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of
this Amendment for any other purpose or be given any substantive effect.
D. Applicable Law. THIS AMENDMENT 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.
E. Counterparts; Effectiveness. This Amendment 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. This Amendment (other than the provisions of
Section 1 hereof, the effectiveness of which is governed by Section 2 hereof)
shall become effective upon the execution of a counterpart hereof by Borrower,
Required Lenders, Administrative Agent, and each of the Credit Support Parties
and receipt by Borrower and Administrative Agent of written or telephonic
notification of such execution and authorization of delivery thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their respective officers thereunto duly authorized
as of the date first written above.
BORROWER: TOTAL RENAL CARE HOLDINGS, INC.
By:
-------------------------------------
Name:
-------------------------------------
Title:
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CREDIT SUPPORT PARTIES: TOTAL RENAL CARE HOLDINGS, INC.,
(for purposes of Section 4 only) as
a Credit Support Party
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
TRC WEST, INC., (for purposes of
Section 4 only) as a Credit Support
Party
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
TOTAL RENAL CARE ACQUISITION CORP.,
(for purposes of Section 4 only) as
a Credit Support Party
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
RENAL TREATMENT CENTERS, INC., (for
purposes of Section 4 only) as a
Credit Support Party
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
RENAL TREATMENT CENTERS-- MID-
ATLANTIC, INC., (for purposes of
Section 4 only) as a Credit Support
Party
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
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RENAL TREATMENT CENTERS--NORTHEAST,
INC., (for purposes of Section 4
only) as a Credit Support Party
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
RENAL TREATMENT CENTERS--CALIFORNIA,
INC., (for purposes of Section 4
only) as a Credit Support Party
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
RENAL TREATMENT CENTERS--WEST, INC.,
(for purposes of Section 4 only) as
a Credit Support Party
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
RENAL TREATMENT CENTERS--SOUTHEAST,
INC., (for purposes of Section 4
only) as a Credit Support Party
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
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AGENTS: THE BANK OF NEW YORK, Individually
and as Administrative Agent and
Collateral Agent
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
DLJ CAPITAL FUNDING, INC.,
Individually and as Syndication
Agent
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
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LENDERS: [omitted]
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