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EXHIBIT 10.56
THIRD AMENDMENT TO
FIRST AMENDED AND RESTATED LOAN AGREEMENT
This Third Amendment to First Amended and Restated Loan Agreement
("Amendment") is entered into as of the 29th day of September, 2000 by and among
RENAL CARE GROUP, INC. ("Borrower"), a Delaware corporation; AMSOUTH BANK
("AmSouth"), an Alabama banking association, as an initial party to the
documents described below and as successor by merger to First American National
Bank, a national banking corporation, FIRST UNION NATIONAL BANK ("FUNB"), a
national banking association, BANK OF AMERICA, N.A. ("Bank of America"), a
national banking association, SUNTRUST BANK ("SunTrust"), a Georgia banking
corporation and successor in interest to SunTrust Bank, N.A., a national banking
association, and XXXXX FARGO BANK ARIZONA, N.A. ("Xxxxx Fargo"), a national
banking association and successor by merger to Norwest Bank Arizona, N.A., a
national banking association (AmSouth, FUNB, Bank of America, SunTrust and Xxxxx
Fargo are referred to collectively as the "Lenders"); and Bank of America, in
its capacity as Agent for the Lenders ("Agent").
R E C I T A L S:
WHEREAS, the Lenders (for their own accounts or through their
predecessors in interest), Agent and Borrower have previously entered into that
First Amended and Restated Loan Agreement dated as of August 4, 1997, as amended
by that First Amendment to First Amended and Restated Loan Agreement dated as of
October 7, 1997, and as further amended by that Second Amendment to First
Amended and Restated Loan Agreement dated as of June 23, 1999 (as amended, the
"Loan Agreement"); and
WHEREAS, the parties wish to further amend the Loan Agreement in
certain respects ;
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are acknowledged, the parties agree as follows:
1. The definition of "Consolidated EBITDA" in Article I of the
Loan Agreement is hereby amended to read in full as follows:
"CONSOLIDATED EBITDA" means (i) the net income of Borrower and all
other Borrower Entities, plus the amount of expenses for interest,
income taxes, depreciation and amortization, for the four most recent
fiscal quarters preceding a date of determination, calculated on a
consolidated basis according to GAAP before extraordinary items, and
calculated on a pro forma basis to give effect to Acquisitions that
occurred within the period over which Consolidated EBITDA is being
determined, with such pro forma calculation to be accomplished pursuant
to operating and financial assumptions customary in such circumstances
as Agent may approve, (ii) plus any noncash and nonrecurring charges,
(iii) plus the amount of the deduction from income taken to reflect
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income attributed to minority interests, and (iv) less the amount, if
any, by which the contribution to Consolidated EBITDA by
Nonparticipating Subsidiaries and Permitted Equity Investments in the
aggregate would exceed fifteen percent (15%) of Consolidated EBITDA.
2. Subsection (f) of the definition of "Permitted Acquisition" in
Article I of the Loan Agreement is hereby amended to revise the two occurrences
of the words and figures "ten percent (10%)" therein to read "fifteen percent
(15%)".
3. Section 6.20 of the Loan Agreement is hereby amended to read
in full as follows:
6.20 Distributions. Except in favor of other Borrower Entities, no
Borrower Entity shall declare or pay any dividends, member
distributions or other payments on account of its equity interests.
Borrower Entities may repurchase their own stock or any warrants,
options or other rights with respect thereto, even if the repurchase
would be construed as a distribution for corporate law purposes,
provided that after giving effect to any repurchase, Borrower shall be
in compliance with all financial covenants and other requirements under
this Agreement, including, but not limited to, the Consolidated Net
Worth requirement set forth in Section 7.1 hereof.
4. Section 7.2 of the Loan Agreement is hereby revised to read in
full as follows:
7.2 Leverage Ratio. Borrower shall maintain a Leverage
Ratio, measured as of the end of each fiscal quarter for the
previous four consecutive fiscal quarters, of no greater than
2.50:1.00.
5. Borrower warrants and represents that (a) the Loan Documents
are valid, binding and enforceable against Borrower according to their terms,
subject to principles of equity and laws applicable to the rights of creditors
generally, including bankruptcy laws, and (b) no Unmatured Default or Event of
Default presently exists under the Loan Documents. Borrower acknowledges that,
to the best of Borrower"s knowledge, information and belief, Borrower"s
obligations evidenced by the Loan Documents are not subject to any counterclaim,
defense or right of setoff, and Borrower hereby releases Agent and Lenders from
any claim of which Borrower is aware as of the execution of this Amendment.
6. As amended hereby, the Loan Agreement remains in full effect,
and all agreements among the parties with respect to the subject hereof are
represented fully in this Amendment and the other written documents among the
parties. The validity, construction and enforcement hereof shall be determined
according to the substantive laws of the State of Tennessee, and all matters of
venue, dispute resolution and other general matters respecting this Amendment
shall be governed by the provisions of the Loan Agreement.
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7. Borrower shall pay all reasonable expenses of Agent, including
attorneys" fees, incurred in the preparation and negotiation of this Agreement.
8. As a condition to the effectiveness of this Amendment,
Borrower shall pay to Agent for the Pro Rata account of Lenders an amendment fee
in the total amount of Two Hundred Seventy-five Thousand and No/100 dollars
($275,000.00).
9. This Amendment may be executed in counterparts, each of which
shall constitute an original hereof. This Amendment shall be effective, subject
to the conditions stated herein, upon the parties" exchange by telecopier of
copies hereof showing the signatures of the other parties; provided, however,
each party shall immediately forward an executed original hereof to Agent. The
failure of any party to so provide Agent with an original hereof shall not
impair the validity of this Amendment, but shall entitle Agent to obtain
specific performance of the obligation to provide an executed original of this
Amendment.
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Executed as of the date first written above.
RENAL CARE GROUP, INC.,
a Delaware corporation, as Borrower
By: /s/ R. Xxxx Xxxxxxx
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R. Xxxx Xxxxxxx, Chief Financial Officer
BANK OF AMERICA, N.A., a national banking
association, as a Lender, Swingline Lender and Agent
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, Senior Vice President
AMSOUTH BANK,
an Alabama banking corporation, as a Lender
By: /s/ Buzz Xxxxxx
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Buzz Xxxxxx, Vice President
FIRST UNION NATIONAL BANK,
a national banking association, as a Lender and Co-Agent
By: /s/ Xxxxx Xxx
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Xxxxx Xxx, Senior Vice President
XXXXX FARGO BANK ARIZONA, N.A.,
a national banking association, as a Lender
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, Vice President
SUNTRUST BANK, a Georgia banking corporation,
as a Lender and Co-Agent
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx, Vice President
[Signature Page to Second Amendment to Third Amended
and Restated Loan Agreement]
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