AMENDMENT NO. 2
Exhibit 2.25
AMENDMENT
NO. 2
Dated as of January 31, 2008
To that
Certain
Dated as
of March 31, 2006
among
FRESENIUS
MEDICAL CARE AG & Co. KGaA,
FRESENIUS
MEDICAL CARE HOLDINGS, INC.
and the
other Borrowers and Guarantors identified therein,
BANK OF
AMERICA, N.A.,
as Administrative Agent,
DEUTSCHE
BANK AG NEW YORK BRANCH,
as Sole Syndication Agent,
THE BANK
OF NOVA SCOTIA,
CREDIT SUISSE, CAYMAN ISLANDS BRANCH,
and
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Co-Documentation Agents,
and
THE
LENDERS PARTY THERETO
BANC OF
AMERICA SECURITIES LLC
and
DEUTSCHE BANK SECURITIES INC.,
as Joint Lead Arrangers and Book Running Managers
AMENDMENT
NO. 2
THIS AMENDMENT NO. 2, dated as of January 31, 2008
(this “Amendment”), of that certain Term Loan
Credit Agreement referenced below is by and among FRESENIUS
MEDICAL CARE AG & Co. KGaA, a German partnership
limited by shares (“FMCAG”), FRESENIUS MEDICAL
CARE HOLDINGS, INC., a New York corporation
(“FMCH”), and the other Borrowers identified
herein, the Guarantors identified herein, the Lenders party
hereto and BANK OF AMERICA, N.A., as Administrative Agent.
Capitalized terms used but not otherwise defined herein shall
have the meanings provided in the Term Loan Credit Agreement.
W I T N E S
S E T H
WHEREAS, a $1.0 billion revolving credit facility has been
established pursuant to the terms of that certain Bank Credit
Agreement (as amended and modified, the “Bank Credit
Agreement”) and a $3.6 billion term loan credit
facility, consisting of a $1.85 billion Tranche A Term
Loan and a $1.75 billion Tranche B Term Loan, has been
established pursuant to the terms of that certain Term Loan
Credit Agreement (as amended and modified, the “Term
Loan Credit Agreement”), in each case, dated as of
March 31, 2006 by and among FMCAG, FMCH, and certain
subsidiaries and affiliates as borrowers and guarantors
identified therein, the lenders identified therein and Bank of
America, N.A., as Administrative Agent and Collateral Agent;
WHEREAS, the Borrowers have requested certain modifications to
the Term Loan Credit Agreement, including an amendment to
increase the aggregate amount of certain Indebtedness permitted
under the Term Loan Credit Agreement;
(a) The following definitions are added to
Section 1.01 of the Term Loan Credit Agreement or, if
already contained therein, amended to read as follows:
“Amendment No. 2 Effectiveness Date” means
January 31, 2008.
“Euro Equivalent” means, at any time,
(a) with respect to any amount denominated in Euro, such
amount, and (b) with respect to any amount denominated in a
Foreign Currency (other than Euro), the equivalent amount
thereof in Euro as determined by the Administrative Agent (or,
with respect to Letters of Credit, as determined by the L/C
Issuer) at such time on the basis of the Spot Rate (determined
as of the most recent Revaluation Date) for the purchase of Euro
with such Foreign Currency.
“FMCF-V” means PREAFIN III S.à x.x.
(formerly known as FMC Finance S.à x.x. Luxembourg-V), a
private limited company (société à
responsabilité limitée) organized under the laws of
Luxembourg.
“Material Foreign Subsidiary” means
(i) FMCD, (ii) Fresenius Medical Care
Beteiligungsgesellschaft mbH, (iii) FMCF-V, (iv) FMC
Trust Finance S.à x.x. Luxembourg, (v) FMC
Trust Finance S.à x.x. Luxembourg-III, (vi) FMC
Finance S.à x.x. Luxembourg-IV, (vii) FMC
Finance II S.à x.x., (viii) National Medical Care
of Spain, S.A., (ix) Fresenius Medical Care US
Beteiligungsgesellschaft mbH, (x) Fresenius Medical Care US
Zwei Beteiligungsgesellschaft mbH, (xi) Fresenius Medical
Care US Drei Beteiligungsgesellschaft mbH, (xii) FMC
Finance III S.A., and (xiii) Fresenius Medical Care US
Zwei Vermögensverwaltungs GmbH & Co. KG.
(b) The defined term “Pro Forma Basis” is amended
by deleting the text ‘‘(other than the covenant
limiting Consolidated Capital Expenditures under
Section 8.11(c))” contained therein.
1.2 Pledge of Capital Stock. Subsection (a) of
Section 7.13 of the Term Loan Credit Agreement is amended
as follows:
(a) in the case of Subsidiaries of FMCAG (other than
Subsidiaries of FMCH), one hundred percent (100%) of the issued
and outstanding Capital Stock with ordinary voting power issued
to FMCAG or any of its Subsidiaries of (i) FMCH,
(ii) FMCD, (iii) FMCF-V, (iv) National Medical
Care of Spain, S.A., (v) Fresenius Medical Care Japan K.K.
and (vi) Fresenius Medical Care Italia S.p.A.;
provided that (1) in the case of the pledge of
Capital Stock in Foreign Subsidiaries on the Closing Date,
execution, notarization and recordation of local pledge
agreements, parallel debt agreements and such other acts
necessary or appropriate to give effect to the pledge under
local law, together with the delivery of local counsel opinions
in respect thereof, will be
completed within ten (10) days of the Closing Date and
(2) in the case of a pledge of Capital Stock of a Foreign
Subsidiary, the Administrative Agent shall, in consultation with
FMCAG, do an analysis of the relative benefits associated with
the prospective pledge and where, in its reasonable discretion,
the Administrative Agent shall make a determination, taking into
account local custom and practice, that the costs, circumstances
and requirements under local law associated with the pledge
outweigh the relative benefits of the pledge, then in any such
case the pledge will not be required;
(g) senior Funded Debt of FMCAG and its Subsidiaries in an
aggregate principal amount at any time outstanding of up to
(i) $500 million in senior notes, plus
(ii) an additional amount of $750 million (or, to the
extent that any such Indebtedness is denominated other than in
Dollars and not counted in the amount included in clause
(iii) below, the Dollar Equivalent thereof), plus
(iii) an additional amount of €750 million (or,
to the extent that any such Indebtedness is denominated other
than in Euro and not counted in the amount included in clause
(ii) above, the Euro Equivalent thereof, and including,
for purposes hereof, any additional Indebtedness under the
Schuldscheindarlehen and the EIB Loan in excess of that
permitted under clauses (m) and (n) below,
respectively);
* * * *
(m) in addition to Indebtedness otherwise permitted under
this Section 8.01, Indebtedness under the EIB Loan
in an aggregate principal amount not to exceed
€221 million and any refinancings, refundings,
renewals and extensions thereof; and
(a) receipt by the Administrative Agent of executed copies
of the consent and direction letter to this Amendment from the
Required Revolving Lenders and the Required Lenders;
(b) receipt by the Administrative Agent of executed copies
of the signature pages to this Amendment from the Credit Parties;
(c) Amendment No. 2 to the Bank Credit Agreement shall
be effective; and
(d) payment of all fees and expenses (including fees and
expenses of counsel to the Administrative Agent) in connection
with this Amendment.
The Administrative Agent will promptly notify the Credit Parties
and the Lenders when the conditions to the effectiveness of the
amendment provisions of Section 2 of this Amendment
have been met and will confirm that those provisions are
effective. The provisions of Section 1 shall not be
effective until the Administrative Agent shall have given such
confirmation.
(a) all necessary action to authorize the execution,
delivery and performance of this Amendment has been
taken; and
(b) as of the date hereof, (i) the representations and
warranties set forth in Article VI of the Term Loan Credit
Agreement are true and correct in all material respects as of
the date hereof (except those which expressly relate to an
earlier period) and (ii) no Default or Event of Default
exists.
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8. Governing Law. This Amendment shall be governed
by, and construed in accordance with, the laws of the State of
New York applicable to agreements made and to be performed
entirely within such state.
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FRESENIUS MEDICAL CARE AG & Co. KGaA, a German partnership limited by shares, represented by
FRESENIUS MEDICAL CARE MANAGEMENT AG, a German corporation, its general partner |
By: | /s/ Xxxxxxxx X. Xxxxx |
Name: Xxxxxxxx X. Xxxxx
Title: Member of the Management Board
By: | /s/ Xx. Xxxxxx Xxxxx |
Name: Xx. Xxxxxx Xxxxx
Title: Member of the Management Board
PREAFIN III S.à x.x. (formerly known as FMC
Finance S.à x.x. Luxembourg-V), a private
limited company (société à responsabilité
limitée) organized under the laws of
Luxembourg
By: | /s/ Dr. Xxxxxx Stopper |
Name: Dr. Xxxxxx Stopper
Title: Director
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BORROWER AND
GUARANTOR: |
FRESENIUS MEDICAL CARE HOLDINGS, INC., a New York corporation |
By: | /s/ Xxxx Xxxxxxx |
Name: Xxxx Xxxxxxx
Title: Assistant Treasurer
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CO-BORROWERS AND GUARANTORS:
NATIONAL MEDICAL CARE, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF ALABAMA, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF CALIFORNIA, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF FLORIDA, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF GEORGIA, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF ILLINOIS, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF INDIANA, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF KENTUCKY, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF LOUISIANA, LLC, a Delaware limited liability company
BIO-MEDICAL APPLICATIONS OF MICHIGAN, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF MINNESOTA, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF MISSISSIPPI, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF NEW HAMPSHIRE, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF NEW JERSEY, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF NEW MEXICO, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF NORTH CAROLINA, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF OHIO, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF PENNSYLVANIA, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF SOUTH CAROLINA, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF TENNESSEE, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF TEXAS, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF WEST VIRGINIA, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF VIRGINIA, INC., a Delaware corporation
FRESENIUS USA MANUFACTURING, INC., a Delaware corporation
FRESENIUS USA MARKETING, INC., a Delaware corporation
FRESENIUS USA, INC., a Massachusetts corporation
SAN DIEGO DIALYSIS SERVICES, INC., a Delaware corporation
SPECTRA LABORATORIES, INC., a Nevada corporation
WSKC DIALYSIS SERVICES, INC., an Illinois corporation
EVEREST HEALTHCARE INDIANA, INC., an Indiana corporation
BIO-MEDICAL APPLICATIONS OF ALABAMA, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF CALIFORNIA, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF FLORIDA, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF GEORGIA, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF ILLINOIS, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF INDIANA, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF KENTUCKY, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF LOUISIANA, LLC, a Delaware limited liability company
BIO-MEDICAL APPLICATIONS OF MICHIGAN, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF MINNESOTA, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF MISSISSIPPI, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF NEW HAMPSHIRE, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF NEW JERSEY, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF NEW MEXICO, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF NORTH CAROLINA, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF OHIO, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF PENNSYLVANIA, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF SOUTH CAROLINA, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF TENNESSEE, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF TEXAS, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF WEST VIRGINIA, INC., a Delaware corporation
BIO-MEDICAL APPLICATIONS OF VIRGINIA, INC., a Delaware corporation
FRESENIUS USA MANUFACTURING, INC., a Delaware corporation
FRESENIUS USA MARKETING, INC., a Delaware corporation
FRESENIUS USA, INC., a Massachusetts corporation
SAN DIEGO DIALYSIS SERVICES, INC., a Delaware corporation
SPECTRA LABORATORIES, INC., a Nevada corporation
WSKC DIALYSIS SERVICES, INC., an Illinois corporation
EVEREST HEALTHCARE INDIANA, INC., an Indiana corporation
By: |
/s/ Xxxx Xxxxxx Name: Xxxx Xxxxxxx Title: Treasurer |
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GUARANTOR:
|
FRESENIUS MEDICAL CARE NORTH AMERICA HOLDINGS LIMITED PARTNERSHIP, a Delaware limited partnership |
By: |
Fresenius Medical Care US Vermögensverwaltungs GmbH and Co. KG, a German limited partnership |
Its General Partner
By: |
Fresenius Medical Care Vermögensverwaltungs GmbH, a German limited liability company |
Its General Partner
By: |
/s/ Xxxxx Xxxxxx Name: Xxxxx Xxxxxx |
Title: Managing
Director
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GUARANTORS:
|
FRESENIUS MEDICAL CARE DEUTSCHLAND GmbH, a German limited liability company |
By: |
/s/ Xx. Xxxxxxxx Xxxxx |
Name: Xx. Xxxxxxxx Xxxxx
Title: Managing Director
By: |
/s/ Xxxx Xxxxx |
Name: Xxxx Xxxxx
Title: Managing Director
FRESENIUS MEDICAL CARE
BETEILIGUNGSGESELLSCHAFT mbH, a German limited liability company
BETEILIGUNGSGESELLSCHAFT mbH, a German limited liability company
By: |
/s/ Xx. Xxxxxxxx Xxxxx |
Name: Xx. Xxxxxxxx Xxxxx
Title: Managing Director
By: |
/s/ Xx. Xxxxxx Xxxxx |
Name: Xx. Xxxxxx Xxxxx
Title: Managing Director
FRESENIUS MEDICAL CARE US
BETEILIGUNGSGESELLSCHAFT mbH, a German limited liability company
BETEILIGUNGSGESELLSCHAFT mbH, a German limited liability company
By: |
/s/ Xxxxx Xxxxxx |
Name: Xxxxx Xxxxxx
Title: Managing Director
8
GUARANTORS: | FRESENIUS MEDICAL CARE US ZWEI |
BETEILIGUNGSGESELLSCHAFT mbH, a German
limited liability company
By: |
/s/ Xxxxx
Xxxxxx
|
Name: Xxxxx Xxxxxx
Title: Managing Director
FRESENIUS MEDICAL CARE US DREI
BETEILIGUNGSGESELLSCHAFT mbH,a German
limited liability company
By: |
/s/ Xxxxx
Xxxxxx
|
Name: Xxxxx Xxxxxx
Title: | Managing Director |
FMC TRUST FINANCE S.à x.x. LUXEMBOURG, a
private limited company (société à
responsabilité limitée) organized under the
laws of Luxembourg
By: |
/s/ Xxxxxxxx
Xxx
|
Name: Xxxxxxxx Xxx
Title: | Director |
FMC FINANCE II S.à x.x., a private limited
company (société à responsabilité
limitée)
organized under the laws of Luxembourg
By: |
/s/ Xxxxxxxx
Xxx
|
Name: Xxxxxxxx Xxx
Title: Director
By: |
/s/ Dr. Xxxxxx
Stopper
|
Name: Dr. Xxxxxx Stopper
Title: | Director |
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GUARANTORS: | FMC TRUST FINANCE S.à x.x. LUXEMBOURG-III, a private limited company (société à responsabilité limitée) organized under the laws of Luxembourg |
By: |
/s/ Xxxxxxxx
Xxx
|
Name: Xxxxxxxx Xxx
Title: | Director |
FMC FINANCE S.à x.x. LUXEMBOURG-IV,
a private limited company (société à
responsabilité limitée) organized under the
laws of Luxembourg
By: |
/s/ Dr. Xxxxxx
Stopper
|
Name: Dr. Xxxxxx Stopper
Title: | Director |
NATIONAL MEDICAL CARE OF SPAIN, S.A., a
corporation (sociedad anónima) organized
under the laws of Spain
By: |
/s/ Xx. Xxxxxxxx
Xxxxx
|
Name: Xx. Xxxxxxxx Xxxxx
Title: | Director |
By: |
/s/ Dr. Xxxxxx
Stopper
|
Name: Dr. Xxxxxx Stopper
Title: | Director |
FMC FINANCE III S.A., a Luxembourg
corporation
corporation
By: |
/s/ Xxxxxxxx
Xxx
|
Name: Xxxxxxxx Xxx
Title: | Director |
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GUARANTORS: | FRESENIUS MEDICAL CARE US ZWEI |
VERMöGENSVERWALTUNGS GMBH & CO.
KG, a German limited partnership
By: | Fresenius Medical Care |
Vermögensverwaltungs GmbH, a
German limited liability company
Its General Partner
By: |
/s/ Xxxxx
Xxxxxx
|
Name: Xxxxx Xxxxxx
Title: | Managing Director |
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GUARANTORS: | BIO-MEDICAL APPLICATIONS MANAGEMENT COMPANY, INC., a Delaware corporation |
NMC A, LLC, a Delaware limited liability company
BIO-MEDICAL APPLICATIONS OF MAINE, INC., a Delaware
corporation
EVEREST HEALTHCARE HOLDINGS, INC, a
Delaware corporation
FRESENIUS MANAGEMENT SERVICES, INC, a Delaware corporation
FMS NEW YORK, INC., a Delaware corporation
RENAL CARE GROUP, INC., a Delaware
corporation
DIALYSIS CENTERS OF AMERICA -- ILLINOIS, INC., an
Illinois corporation
STAT DIALYSIS CORPORATION, a Delaware
corporation
RENAL CARE GROUP OF THE MIDWEST, INC., a Kansas
corporation
BIO-MEDICAL APPLICATIONS OF MARYLAND, INC., a Delaware
corporation
FRESENIUS SECURITIES, INC., a California
corporation
SRC HOLDING COMPANY, INC., a Delaware
corporation
By: |
/s/ Xxxx
Xxxxxxx
|
Name: Xxxx Xxxxxxx
Title: | Treasurer |
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GUARANTOR: | Bio-Medical Applications of Arizona, LLC (successor By merger to Bio-Medical Applications of Arizona, |
Inc.), a Delaware limited liability company
By: | Bio-Medical Applications Management |
Company, Inc., its sole member
By: |
/s/ Xxxx
Xxxxxxx
|
Name: Xxxx Xxxxxxx
Title: | Treasurer |
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ADMINISTRATIVE AGENT: | BANK OF AMERICA, N.A., for itself in its capacities |
as Administrative Agent and Collateral Agent and on
behalf of the Lenders
By: |
/s/ Xxxxxx
Xxx
|
Name: Xxxxxx Xxx
Title: | Assistant Vice President |
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