EXHIBIT 10.12.3
SECOND AMENDMENT TO SECOND
AMENDED AND RESTATED LOAN AGREEMENT AND CONSENT
(MULTI-YEAR FACILITY)
THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AGREEMENT AND
CONSENT (this "Second Amendment"), dated as of December 23, 2003, is by and
among RENAL CARE GROUP, INC., a Delaware corporation (the "Borrower"), the
Guarantors, the Lenders party hereto and BANK OF AMERICA, N.A., as Agent for the
Lenders (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, pursuant to the Second Amended and Restated Loan Agreement
(Multi-Year Facility) dated as of July 1, 2001 among the Borrower, the Lenders
identified therein and the Agent, as amended by that certain First Amendment to
Second Amended and Restated Loan Agreement (Multi-Year Facility) dated as of
November 1, 2002 and as further amended or modified from time to time (the
"Existing Agreement"), the Lenders have extended commitments to make certain
credit facilities available to the Borrower; and
WHEREAS, the parties hereto have agreed to amend the Existing Agreement
as set forth herein;
NOW, THEREFORE, in consideration of the agreements herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
PART I
DEFINITIONS
SUBPART 1.1 Certain Definitions. Unless otherwise defined
herein or the context otherwise requires, the following terms used in
this Second Amendment, including its preamble and recitals, shall have
the following meanings:
"Amended Agreement" means the Existing Agreement as
amended hereby.
"Second Amendment Effective Date" shall have the
meaning set forth in Subpart 3.1.
SUBPART 1.2 Other Definitions. Unless otherwise defined herein
or the context otherwise requires, terms used in this Second Amendment,
including its preamble and recitals, shall have the meanings provided
in the Amended Agreement.
PART II
AMENDMENTS TO EXISTING AGREEMENT
Effective on (and subject to the occurrence of) the Second Amendment
Effective Date, the Existing Agreement is hereby amended in accordance with this
Part II. Except as so amended, the Existing Agreement shall continue in full
force and effect.
SUBPART 2.1 Amendment to 6.15. Subclause (c) of Section 6.15
of the Existing Agreement is hereby amended and restated in its
entirety to read as follows:
(c) so long as no Default or Event of Default exists
prior to and after giving effect to such transaction, the
Borrower may, from and after November 1, 0000, xxxxxxxxxx
shares of its Capital Stock in an amount not to exceed
$450,000,000 in the aggregate,
PART III
CONSENT
Pursuant to clause (c) of the definition of Permitted Acquisition in
Section 1.1 of the Existing Agreement, the Required Lenders hereby consent to
the purchase of substantially all of the assets of Midwest Kidney Centers, LLC,
Acute Renal Services, LLC, MKC-Decatur, LLC, Quality Kidney Care, LLC, Kidney
Care, LLC, and Midwest Renal Support, LLC for Cash Consideration and non-cash
consideration in an aggregate amount not to exceed $55,830,000 provided that
such acquisition satisfies all of the other criteria identified in the
definition of Permitted Acquisition.
PART IV
CONDITIONS TO EFFECTIVENESS
SUBPART 4.1 Second Amendment Effective Date. This Second
Amendment shall become effective (the "Second Amendment Effective
Date") when the Agent shall have received counterparts of this Second
Amendment, which collectively shall have been duly executed on behalf
of each of the Borrower, the Guarantors, the Agent and the Required
Lenders.
PART V
MISCELLANEOUS
SUBPART 5.1 Cross-References. References in this Second
Amendment to any Part or Subpart are, unless otherwise specified, to
such Part or Subpart of this Second Amendment.
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SUBPART 5.2 References in Other Loan Documents. At such time
as this Second Amendment shall become effective pursuant to the terms
of Subpart 4.1, all references in the Existing Agreement to the
"Agreement" and all references in the other Loan Documents to the
"Agreement" shall be deemed to refer to the Amended Agreement.
SUBPART 5.3 Acknowledgment. The Credit Parties acknowledge and
confirm (a) that the Agent, on behalf of the Lenders, has a valid and
enforceable first priority security interest in the Collateral, (b)
that the Borrower's obligation to repay the outstanding principal
amount of the Loans and reimburse the Issuing Lender for any drawing on
a Letter of Credit is unconditional and not subject to any offsets,
defenses or counterclaims and (c) that the Agent and the Lenders have
performed fully all of their respective obligations under the Existing
Agreement and the other Loan Documents. Furthermore, the Guarantors (a)
acknowledge and consent to all of the terms and conditions of this
Second Amendment, (b) affirm all of their obligations under the Loan
Documents and (c) agree that this Second Amendment and all documents
executed in connection herewith do not operate to reduce or discharge
the Guarantors' obligations under the Guaranty Agreement or the other
Loan Documents.
SUBPART 5.4 Representations and Warranties. The Credit Parties
hereby represent and warrant that (a) the representations and
warranties contained in Article IV of the Amended Agreement are correct
in all material respects on and as of the date hereof as though made on
and as of such date and after giving effect to the amendments contained
herein, (b) no Default or Event of Default exists under the Existing
Agreement on and as of the date hereof and (c) each Credit Party has
taken all necessary action to authorize the execution, delivery and
performance of this Second Amendment.
SUBPART 5.5 Counterparts. This Second Amendment may be
executed by the parties hereto in several counterparts, each of which
shall be deemed to be an original and all of which shall constitute
together but one and the same agreement. Delivery by facsimile by any
of the parties hereto of an executed counterpart of this Second
Amendment shall be effective as an original executed counterpart hereof
and shall be deemed a representation that an original executed
counterpart will be delivered.
SUBPART 5.6 Governing Law. THIS SECOND AMENDMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
GEORGIA.
SUBPART 5.7 Successors and Assigns. This Second Amendment
shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
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Each of the parties hereto has caused a counterpart of this Second
Amendment to be duly executed and delivered as of the date first above written.
BORROWER: RENAL CARE GROUP, INC. a
Delaware corporation
By: _____________________________________
Name: ___________________________________
Title: __________________________________
GUARANTORS: 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 XXXXX 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
Second Amendment to Second Amended
and Restated Loan Agreement
Renal Care Group
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
XXXXXXX DIALYSIS CLINIC, INC.,
a Texas corporation
XXXXXXX DIALYSIS, INC.,
a Texas corporation
JEFFERSON COUNTY DIALYSIS, INC.,
an Arkansas corporation
KDCO, INC.,
an Arkansas corporation
XXXXXX DIALYSIS, INC.,
an Arkansas corporation
LITTLE ROCK DIALYSIS, INC.,
an Arkansas corporation
NORTHWEST DIALYSIS, INC.,
an Arkansas corporation
RENALAB, INC.,
a Delaware corporation
RENALPARTNERS, INC.,
a Delaware corporation
RENALNET, INC.,
a Delaware corporation
Second Amendment to Second Amended
and Restated Loan Agreement
Renal Care Group
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
RCG SUPPLY COMPANY,
a Tennessee corporation
RENAL CARE GROUP ALASKA, INC.,
an Alaska corporation
RENAL CARE GROUP SOUTHWEST HOLDINGS, INC.,
a Texas 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.,
an Ohio corporation
By: ______________________________________
Name: ______________________________________
Title: ______________________________________
Second Amendment to Second Amended
and Restated Loan Agreement
Renal Care Group
RCG FINANCE, INC.,
a Delaware corporation
By: ______________________________________
Name: ______________________________________
Title: ______________________________________
DIALYSIS LICENSING CORP.,
a Delaware corporation
RCGIH, INC.
a Delaware corporation
By: ______________________________________
Name: ______________________________________
Title: ______________________________________
RCG INDIANA, LLC,
a Delaware limited liability company
By: Renal Care Group, Inc.
Its: Member
By: _________________________________
Name: _________________________________
Title: _________________________________
By: Renal Care Group Arizona, Inc.
Its: Member
By: _________________________________
Name: _________________________________
Title: _________________________________
Second Amendment to Second Amended
and Restated Loan Agreement
Renal Care Group
KIDNEY DISEASE CENTERS OF THE OZARKS, LLC
a Missouri limited liability company
By: Renal Care Group, Inc.
Its: Member
By: _________________________________
Name: _________________________________
Title: _________________________________
STUTTGART DIALYSIS, LLC,
an Arkansas limited liability company
By: Little Rock Dialysis, Inc.
Its: Member
By: _________________________________
Name: _________________________________
Title: _________________________________
By: Jefferson County Dialysis, Inc.
Its: Member
By: _________________________________
Name: _________________________________
Title: _________________________________
RCG WEST HEALTH SUPPLY, LLC,
an Arizona limited liability company
By: Renal Care Group, Inc.
Its: Member
By: _________________________________
Name: _________________________________
Title: _________________________________
By: Renal Care Group Arizona, Inc..
Its: Member
By: _________________________________
Name: _________________________________
Title: _________________________________
Second Amendment to Second Amended
and Restated Loan Agreement
Renal Care Group
KENTUCKY RENAL CARE GROUP, LLC,
a Delaware limited liability company
By: ______________________________________
Name: ______________________________________
Title: ______________________________________
RENAL CARE GROUP SOUTHWEST, L.P.
a Delaware limited partnership
By: Renal Care Group Arizona, Inc.,
an Arizona corporation
Its: General Partner
By: ______________________________________
Name: ______________________________________
Title: ______________________________________
Second Amendment to Second Amended
and Restated Loan Agreement
Renal Care Group
AGENT: BANK OF AMERICA, N.A., as
Agent
By: ______________________________________
Name: ______________________________________
Title: ______________________________________
LENDERS: BANK OF AMERICA, N. A., as a Lender
By: ______________________________________
Name: ______________________________________
Title: ______________________________________
XXXXX FARGO BANK, NATIONAL
ASSOCIATION
By: ______________________________________
Name: ______________________________________
Title: ______________________________________
SUNTRUST BANK
By: ______________________________________
Name: ______________________________________
Title: ______________________________________
AMSOUTH BANK
By: ______________________________________
Name: ______________________________________
Title: ______________________________________
Second Amendment to Second Amended
and Restated Loan Agreement
Renal Care Group
