EXHIBIT 2.37
AMENDMENT NO. 3
dated as of December 10, 2004
to
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of February 21, 2003
among
FRESENIUS MEDICAL CARE HOLDINGS, INC.,
a New York corporation,
FRESENIUS MEDICAL CARE AG,
a German corporation,
and
the other Borrowers and Guarantors identified therein,
the Lenders identified therein,
and
BANK OF AMERICA, N.A.,
as Administrative Agent
BANC OF AMERICA SECURITIES LLC,
CREDIT SUISSE FIRST BOSTON,
acting through its Cayman Islands Branch,
and
DEUTSCHE BANK AG,
as Joint Lead Arrangers and Joint Book Runners
for Increase to Revolving Commitments and Tranche A-1 Term Loan
AMENDMENT NO. 3
THIS AMENDMENT NO. 3, dated as of December 10, 2004 (this "Amendment"),
relating to the Credit Agreement (as defined below), by and among FRESENIUS
MEDICAL CARE AG ("FMCAG"), FRESENIUS MEDICAL CARE HOLDINGS, INC. ("FMCH"),
certain subsidiaries and affiliates of FMCAG party to the Credit Agreement (as
defined below) and identified on the signature pages hereto, and BANK OF
AMERICA, N.A., as Administrative Agent for and on behalf of the Lenders.
Capitalized terms used herein but not otherwise defined shall have the meanings
provided in the Credit Agreement (as defined below).
W I T N E S S E T H
WHEREAS, a $1.5 billion credit facility was extended to FMCAG, FMCH and the
other Borrowers identified therein (collectively, the "Borrowers") pursuant to
the terms of that Amended and Restated Credit Agreement dated as of February 21,
2003 (as amended, modified and supplemented, the "Credit Agreement") among the
Borrowers, the Guarantors and Lenders identified therein, and the Administrative
Agent;
WHEREAS, pursuant to the Tranche C Term Loan Joinder Agreement dated as of
August 22, 2003, the Tranche C Term Loan was made available to the Borrowers and
the proceeds of the Tranche C Term Loan (together with other sums) were
voluntarily applied by the Borrowers to prepay the Tranche B Term Loan in full;
WHEREAS, pursuant to the Tranche D Term Loan Joinder Agreement dated as of
May 7, 2004, the Tranche D Term Loan was made available to the Borrowers and the
proceeds of the Tranche D Term Loan (together with other sums) were voluntarily
applied by the Borrowers to prepay the Tranche C Term Loan in full;
WHEREAS, the Borrowers have requested certain modifications to the Credit
Agreement, including a request for an increase in the Aggregate Revolving
Committed Amount and to make available to the Borrowers a new Tranche A-1 term
loan, the proceeds of which, together with other sums and the proceeds of
Revolving Loans drawn on the Third Amendment Closing Date, will be applied as
voluntary prepayments on the existing Tranche A Term Loan and Tranche D Term
Loan;
WHEREAS, the requisite Lenders pursuant to Section 11.01 of the Credit
Agreement have consented to the requested modifications on the terms and
conditions set forth herein and have authorized the Administrative Agent to
enter into this Amendment on their behalf;
NOW, THEREFORE, IN CONSIDERATION of these premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1 Amendments to the Credit Agreement. The Credit Agreement is
hereby amended and modified in the following respects:
1.1 In Section 1.01 (Definitions) the following definitions are
amended in their entirety or added to read as follows:
"Applicable Percentage" means the following percentages per annum,
based on the Consolidated Leverage Ratio as set forth in the most recent
Compliance Certificate received by the Administrative Agent pursuant to
Section 7.02(b):
REVOLVING LOANS (INCLUDING L/C OBLIGATIONS)
AND TRANCHE A-1 TERM LOAN
TRANCHE A TERM LOAN ---------------------------------------------
----------------------- EUROCURRENCY RATE
PRICING CONSOLIDATED LEVERAGE EUROCURRENCY BASE RATE LOANS AND LETTER OF BASE RATE COMMITMENT
LEVEL RATIO RATE LOANS LOANS CREDIT FEE LOANS FEE
------- ------------------------ ------------ --------- -------------------- ---------- -----------
I > 3.5:1.0 2.25% 1.25% 1.25% 0.25% 0.30%
II > 3.0:1.0 but # 3.5:1.0 2.00% 1.00% 1.25% 0.25% 0.30%
III > 2.5:1.0 but # 3.0:1.0 1.75% 0.75% 1.00% 0% 0.30%
IV > 2.0:1.0 but # 2.5:1.0 1.50% 0.50% 0.875% 0% 0.25%
V > 1.5:1.0 but # 2.0:1.0 1.25% 0.25% 0.75% 0% 0.20%
VI # 1.5:1.0 1.25% 0.25% 0.625% 0% 0.15%
Any increase or decrease in the Applicable Percentage resulting from a
change in the Consolidated Leverage Ratio shall become effective as of the
date two Business Days immediately following the date a Compliance
Certificate is delivered pursuant to Section 7.02(b); provided, however,
that if a Compliance Certificate is not delivered when due in accordance
therewith, then Pricing Level I shall apply as of the first Business Day
after the date on which such Compliance Certificate was required to have
been delivered until the first Business Day immediately following the date
such Compliance Certificate is delivered; provided, further, that any
decrease in the Applicable Percentage resulting from the Third Amendment
shall take effect on the Third Amendment Closing Date.
"Approved Jurisdiction" means Australia, Canada, France, Germany,
Japan, Luxembourg, Switzerland, United Kingdom, Bermuda, any other
Participating Member State as of the Closing Date, any jurisdiction of
organization of a Domestic Subsidiary and any other jurisdiction approved
by the Required Lenders.
"Consolidated Fixed Charge Coverage Ratio" is deleted in its entirety.
"Consolidated Net Interest Expense" means, for any period for the
Consolidated Group, Consolidated Interest Expense minus interest income, as
determined in accordance with GAAP.
"Consolidated Interest Coverage Ratio" means, as of the end of each
fiscal quarter for the period of four consecutive fiscal quarters then
ending, the ratio of (i) Consolidated EBITDA to (ii) Consolidated Net
Interest Expense.
"Consolidated Net Income" means, for any period for the Consolidated
Group, net income (or loss) determined on a consolidated basis in
accordance with GAAP, but excluding for purposes of determining the
Consolidated Leverage Ratio and the Consolidated Interest Coverage Ratio,
extraordinary gains and losses and gains and losses from discontinued
operations, and, in each such case, related tax effects thereon. Except as
otherwise expressly provided, the applicable period shall be the four
consecutive fiscal quarters ending as of the date of determination.
"Interest Payment Date" means (a) as to any Base Rate Loan (other than
a Swing Line Loan), the last Business Day of each March, June, September
and December, the Termination Date and the dates of the final principal
amortization installment on the Tranche A Term Loan, the Tranche A-1 Term
Loan and the Tranche D Term Loan, as applicable, (b) as to any Swing Line
Loan, the last Business Day of each March, June, September and December and
the Termination Date, or such other days as may be
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mutually agreed upon by the Borrowers and the Swing Line Lender, and (c) as
to any Eurocurrency Rate Loan or any Absolute Rate Loan, the last Business
Day of each Interest Period for such Loan, the date of repayment of
principal of such Loan, the Termination Date and the dates of the final
principal amortization installment on the Tranche A Term Loan, the Tranche
A-1 Term Loan and the Tranche D Term Loan, as applicable, and in addition,
where the applicable Interest Period exceeds three months, the date every
three months after the beginning of such Interest Period. If an Interest
Payment Date falls on a date that is not a Business Day, such Interest
Payment Date shall be deemed to be the next succeeding Business Day.
"Lender Joinder Agreements" means any Revolving Loan Joinder
Agreement, the Incremental Tranche A Term Loan Joinder Agreement, the
Tranche A-1 Term Loan Joinder Agreement, the Tranche C Term Loan Joinder
Agreement, and the Tranche D Term Loan Joinder Agreement.
"Material Subsidiary" means (i) for FMCH, any Material Domestic
Subsidiary and any Material Foreign Subsidiary of FMCH, and (ii) for FMCAG,
(A) FMCH, (B) FMCD, (C) Fresenius Medical Care Beteiligungsgesellschaft
mbH, (D) FMCF-II, (E) FMC Trust Finance S.a.r.l. Luxembourg, (F) FMC Trust
Finance S.a.r.l. Luxembourg-III, (G) National Medical Care of Spain, S.A.,
and (H) Fresenius Medical Care Japan K.K.
"Outstanding Amount" means (a) with respect to Revolving Loans and
Swing Line Loans on any date, the aggregate outstanding principal amount
thereof after giving effect to any Borrowings and prepayments or repayments
of Revolving Loans and Swing Line Loans, as the case may be, occurring on
such date; (b) with respect to any L/C Obligations on any date, the amount
of such L/C Obligations on such date after giving effect to any L/C Credit
Extension occurring on such date and any other changes in the aggregate
amount of the L/C Obligations as of such date, including as a result of any
reimbursements of outstanding unpaid drawings under any Letters of Credit
or any reductions in the maximum amount available for drawing under Letters
of Credit taking effect on such date; (c) with respect to the Tranche A
Term Loan on any date, the aggregate outstanding principal amount thereof
after giving effect to any prepayments or repayments of the Tranche A Term
Loan on such date; (d) with respect to the Tranche A-1 Term Loan on any
date, the aggregate outstanding principal amount thereof after giving
effect to any prepayments or repayments of the Tranche A-1 Term Loan on
such date; and (e) with respect to the Tranche D Term Loan on any date, the
aggregate outstanding principal amount thereof after giving effect to any
prepayments or repayments of the Tranche D Term Loan on such date.
"Required Tranche A-1 Term Lenders" means, as of any date of
determination, Lenders holding in the aggregate more than 50% of the
Tranche A-1 Term Loan; provided that the portion of the Tranche A-1 Term
Loan held, or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Tranche A-1 Term Lenders.
"Revolving Loan Joinder Agreements" means, collectively, the Revolving
Loan Joinder Agreement entered into on the Second Amendment Closing Date
and any Revolving Loan Joinder Agreement substantially in the form of
Exhibit K, including any that are entered into in connection with the
increase of the Revolving Commitments pursuant to Section 2.01(j).
"Term Loan" means the Tranche A Term Loan, the Tranche A-1 Term Loan,
the Tranche B Term Loan, the Tranche C Term Loan and the Tranche D Term
Loan.
"Term Loan Commitments" means the Tranche A Term Loan Commitment, the
Tranche A-1 Term Loan Commitment, the Tranche B Term Loan Commitment, the
Tranche C Term Loan Commitment and the Tranche D Term Loan Commitment.
"Term Notes" means the Tranche A Term Notes, the Tranche A-1 Term
Notes, the Tranche B Term Notes, the Tranche C Term Notes and the Tranche D
Term Notes.
"Termination Date" means February 28, 2010.
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"Third Amendment" means that certain Amendment No. 3 dated as of
December 10, 2004, relating to the Credit Agreement, by and among FMCAG,
FMCH, certain subsidiaries and affiliates of FMCAG, and the Administrative
Agent for and on behalf of the Lenders.
"Third Amendment Closing Date" means December 10, 2004.
"Tranche A-1 Term Lenders" means, prior to funding of the Tranche A-1
Term Loan, Lenders with Tranche A-1 Term Loan Commitments, and after
funding of the Tranche A-1 Term Loan, Lenders holding a portion of the
Tranche A-1 Term Loan, together with their successors and permitted
assigns.
"Tranche A-1 Term Loan" shall have the meaning provided in Section
2.01(f-1).
"Tranche A-1 Term Loan Commitment" means the commitment of each
Tranche A-1 Term Lender to make its portion of the Tranche A-1 Term Loan
hereunder as set forth in the Tranche A-1 Term Loan Joinder Agreement.
"Tranche A-1 Term Loan Commitment Percentage" means, for each Tranche
A-1 Term Lender, a fraction (expressed as a percentage carried to the ninth
decimal place), the numerator of which is, prior to funding of the Tranche
A-1 Term Loan, such Tranche A-1 Term Lender's Tranche A-1 Term Loan
Committed Amount, and, after funding of the Tranche A-1 Term Loan, the
principal amount of such Tranche A-1 Term Lender's Tranche A-1 Term Loan
and the denominator of which is, prior to funding of the Tranche A-1 Term
Loan, the aggregate principal amount of the Tranche A-1 Term Loan Committed
Amounts, and, after funding of the Tranche A-1 Term Loan, the aggregate
principal amount of the Tranche A-1 Term Loan. The initial Tranche A-1 Term
Loan Commitment Percentages are shown on Schedule 2.01.
"Tranche A-1 Term Loan Committed Amount" means, with respect to each
Tranche A-1 Term Lender, the amount of such Lender's Tranche A-1 Term Loan
Commitment. The initial Tranche A-1 Term Loan Committed Amounts will be as
set forth in the Tranche A-1 Term Loan Joinder Agreement.
"Tranche A-1 Term Loan Joinder Agreement" means the Tranche A-1 Term
Loan Joinder Agreement, if any, providing for the establishment of the
Tranche A-1 Term Loan, substantially in the form of Exhibit L.
"Tranche A-1 Term Note" means the promissory notes given to each
Tranche A-1 Term Lender to evidence the Tranche A-1 Term Loan, as amended,
restated, modified, supplemented, extended, renewed or replaced. A form of
Tranche A-1 Term Note is attached as Exhibit C-6.
1.2 In Section 2.01(a), clause (ii)(A) is amended to read as follows:
"(A) the aggregate principal amount of Revolving Obligations shall not
exceed SEVEN HUNDRED FIFTY MILLION DOLLARS ($750,000,000) (as such amount
may be increased or decreased in accordance with the provisions hereof, the
"Aggregate Revolving Committed Amount") and"
1.3 In Section 2.01, a new subsection (f-1) is added immediately following
subsection (f) and immediately before subsection (g) to read as follows:
"(f-1) Tranche A-1 Term Loan Commitment. On the Third Amendment
Closing Date, each of the Tranche A-1 Term Lenders severally agrees to make
its portion of a term loan (in the amount of its respective Tranche A-1
Term Loan Committed Amount) in a single advance in Dollars to FMCH and
FMCAG, as co-borrowers, in an aggregate principal amount of FOUR HUNDRED
FIFTY MILLION DOLLARS ($450,000,000) (the "Tranche A-1 Term Loan"). The
Tranche A-1 Term Loan may consist of Base Rate Loans, Eurocurrency Rate
Loans or a combination thereof, as such Borrower may request. Amounts
repaid on the Tranche A-1 Term Loan may not be reborrowed."
1.4 In Section 2.01(j) (Increase in Revolving Commitments), the lead-in
sentence is amended to read as follows:
"On or after the Third Amendment Closing Date, FMCH and FMCAG may,
from time to time, upon written notice to the Administrative Agent,
increase the Aggregate Revolving Committed Amount
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by up to TWO HUNDRED MILLION DOLLARS ($200,000,000) to not more than NINE
HUNDRED FIFTY MILLION DOLLARS ($950,000,000); provided that:"
1.5 In Section 2.02 (Borrowings, Conversions and Continuations of Loans),
subsection (e) is amended to read as follows:
"(e) After giving effect to all Borrowings, all conversions of Loans
from one Type to the other, and all continuations of Loans as the same
Type, (i) there shall not be more than twenty Interest Periods in effect
with respect to all Committed Revolving Loans hereunder, (ii) there shall
not be more than five Interest Periods in effect with respect to the
Tranche A Term Loan, (iii) there shall not be more than five Interest
Periods in effect with respect to the Tranche A-1 Term Loan, and (iv) there
shall not be more than five Interest Periods in effect with respect to the
Tranche D Term Loan; provided in each case that, for purposes hereof,
Interest Periods with respect to Loans (whether or not of the same Type)
with separate or different Interest Periods will be considered as separate
Interest Periods, even if such Interest Periods end on the same date."
1.6 In Section 2.05 (Repayment of Loans), a new subsection (d-1) is added
immediately following subsection (d) and immediately before subsection (e) to
read as follows:
(d-1) Tranche A-1 Term Loan. The Borrower shall repay to the Lenders
the principal amount of the Tranche A-1 Term Loan in quarterly installments
on the dates set forth below, commencing on December 31, 2005, as follows:
PRINCIPAL
DATE AMORTIZATION PAYMENT
---- ---------------------
December 31, 2005..................................... $25,000,000.00
March 31, 2006........................................ $25,000,000.00
June 30, 2006......................................... $25,000,000.00
September 30, 2006.................................... $25,000,000.00
December 31, 2006..................................... $25,000,000.00
March 31, 2007........................................ $25,000,000.00
June 30, 2007......................................... $25,000,000.00
September 30, 2007.................................... $25,000,000.00
December 31, 2007..................................... $25,000,000.00
March 31, 2008........................................ $25,000,000.00
June 30, 2008......................................... $25,000,000.00
September 30, 2008.................................... $25,000,000.00
December 31, 2008..................................... $25,000,000.00
March 31, 2009........................................ $25,000,000.00
June 30, 2009......................................... $25,000,000.00
September 30, 2009.................................... $25,000,000.00
December 31, 2009..................................... $25,000,000.00
February 28, 2010..................................... Outstanding Amount of
Tranche A-1 Term Loan
---------------------
Total................................................. $450,000,000.00
=====================
1.7 Section 2.06(c)(i) (Application of Voluntary Prepayments) is replaced
in its entirety to read as follows:
"(i) Voluntary Prepayments. Voluntary prepayments shall be applied as
specified by the Borrowers; provided that (A) any voluntary prepayment on
the Term Loans shall be applied first to payment of the Tranche D Term Loan
until paid in full, then to payment of the Tranche A Term Loan until paid
in full and then to payment of the Tranche A-1 Term Loan, (B) voluntary
prepayments on the Tranche A Term
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Loan shall be applied pro rata to remaining principal amortization
installments thereunder, (C) voluntary prepayments on the Tranche A-1 Term
Loan shall be applied pro rata to remaining principal amortization
installments thereunder, and (D) prepayments on the Tranche D Term Loan
shall be applied to remaining principal amortization installments in
inverse order of maturity. Voluntary prepayments on the Loan Obligations
will be paid by the Administrative Agent to the Lenders ratably in
accordance with their respective interests therein."
1.8 In Section 2.06(c)(ii) (Application of Mandatory Prepayments),
subsection (B) is amended to read as follows:
"(B) Mandatory prepayments in respect of Dispositions under subsection
(b)(ii) above, Debt Transactions under subsection (b)(iii) and
Securitization Transactions under subsection (b)(iv) above shall be applied
first to the Term Loans until paid in full, and then to the Revolving
Obligations. Mandatory prepayments on the Term Loans shall be applied first
to payment of the Tranche D Term Loan until paid in full, then to payment
of the Tranche A Term Loan until paid in full and then to payment of the
Tranche A-1 Term Loan. Prepayments on the Tranche A Term Loan and the
Tranche A-1 Term Loan shall be applied pro rata to remaining principal
amortization installments thereunder and prepayments on the Tranche D Term
Loan shall be applied to remaining principal amortization installments in
inverse order of maturity."
1.9 In Section 2.13 (Evidence of Debt), in subsection (a) the next-to-last
sentence is amended to read as follows:
"The Borrowers shall execute and deliver to the Administrative Agent
(i) a Revolving Note for each Revolving Lender that so requests, (ii) a
Tranche A Term Note for each Tranche A Term Lender that so requests, (iii)
a Tranche A-1 Term Note for each Tranche A-1 Term Lender that so requests,
(iv) a Tranche B Term Note for each Tranche B Term Lender that so requests,
(v) a Tranche C Term Note for each Tranche C Term Lender that so requests
and (vi) a Tranche D Term Note for each Tranche D Term Lender that so
requests, which Notes, in addition to such accounts or records, shall
evidence such Lender's Loans."
1.10 In Section 2.14 (Payments Generally), the next-to-last sentence in
subsection (a) is amended to add a new clause "(ii-A)" immediately after clause
(ii) and immediately before clause (iii) to read as follows:
"(ii-A) with respect to such payments on the Tranche A-1 Term Loan,
its Tranche A-1 Term Loan Commitment Percentage thereof, and"
1.11 A new paragraph is added at the end of Section 7.02 (Certificates;
Other Information), to read as follows:
The Borrowers hereby acknowledge that (A) the Administrative Agent
will make available to the Lenders materials and/or information provided by
or on behalf of the Borrowers hereunder (collectively, the "Borrower
Materials") by posting the Borrower Materials on IntraLinks or another
similar electronic system (the "Platform") and (B) certain of the Lenders
may be "public-side" Lenders (i.e., Lenders that do not wish to receive
material non-public information with respect to the Borrowers or their
securities) (each, a "Public Lender"). The Borrowers hereby further agree
that (1) all Borrower Materials that are to be made available to Public
Lenders shall be clearly and conspicuously marked "PUBLIC" which, at a
minimum, shall mean that the word "PUBLIC" shall appear prominently on the
first page thereof; (2) by marking Borrower Materials "PUBLIC," the
Borrowers shall be deemed to have authorized the Administrative Agent and
the Lenders to treat such Borrower Materials as either publicly available
information or not material information (although it may be sensitive and
proprietary) with respect to the Borrowers or their securities for purposes
of United States federal and state securities laws; (3) all Borrower
Materials marked "PUBLIC" are permitted to be made available through a
portion of the Platform designated as "Public Investor"; and (4) the
Administrative Agent shall be entitled to treat and shall treat any
Borrower Materials that are not marked "PUBLIC" as being suitable only for
posting on a portion of the Platform not marked as "Public Investor".
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1.12 In Section 7.13 (Pledge of Capital Stock) the parenthetical reference
"(whether currently existing or hereafter formed or acquired)" appearing at the
end of subsection (b) just before the proviso is deleted.
1.13 In Section 8.01 (Indebtedness), clause (i) of the proviso in
subsection (j) is amended to read as follows:
(i) the maturity date for any such debt is not earlier than the final
maturity date of the Tranche A-1 Term Loan,
1.14 Section 8.07 (Prepayment of Other Subordinated Debt) is deleted in
its entirety.
1.15 In Section 8.13 (Financial Covenants), subsections (a) and (b) are
amended to read as follows:
(a) Consolidated Leverage Ratio. As of the end of each fiscal quarter,
the Consolidated Leverage Ratio will not exceed:
MAXIMUM
CONSOLIDATED
FISCAL QUARTER ENDING LEVERAGE RATIO
--------------------- --------------
Prior to December 30, 2004.................................. 3.50:1.0
December 31, 2004 through December 30, 2005................. 3.25:1.0
December 31, 2005 through December 30, 2006................. 3.0:1.0
December 31, 2006 through December 30, 2007................. 2.75:1.0
December 31, 2007 and thereafter............................ 2.50:1.0
(b) Consolidated Interest Coverage Ratio. As of the end of each fiscal
quarter, the Consolidated Interest Coverage Ratio will not be less than
4.5:1.0.
1.16 In Section 11.01 (Amendments), a new subsection "(c-1)" is added
immediately following subsection (c) and immediately before subsection (d) to
read as follows:
"(c-1) unless also signed by the Required Tranche A-1 Term Lenders, no
such amendment, waiver or consent shall:
(i) amend or waive any mandatory prepayment on the Tranche A-1 Term
Loan Obligations under Section 2.06(b) or the manner of application
thereof to the Tranche A-1 Term Loan Obligations under Section 2.06(c),
or
(ii) amend or waive the provisions of this Section 11.01(c-1) or
the definition of "Required Tranche A-1 Term Lenders";"
1.17 In Section 11.16 (Replacement of Lenders) the lead-in clause
immediately preceding the phrase "the Borrower may, upon notice to such Lender
and the Administrative Agent" shall be amended to read as follows:
"Under any circumstance set forth herein providing that the Borrowers
shall have the right to replace a Lender as a party to this Agreement and
also under any circumstance where a Lender shall refuse to consent to a
proposed amendment, waiver or consent hereunder that has been approved by
the Required Lenders, the Required Revolving Lenders, the Required Tranche
A Term Lenders, or the Required Tranche A-1 Term Lenders, as appropriate,
(including, without limitation by a failure to respond in writing to a
proposed amendment by the date and time specified by the Administrative
Agent),"
1.18 Section 11.21 (Reallocation of Commitments) is replaced in its
entirety to read as follows:
11.21 Reallocation of Commitments. Each Revolving Lender that will
hold a greater percentage of the Revolving Commitments on the Third
Amendment Closing Date than such Lender held immediately prior to such
Third Amendment Closing Date, including any New Lender (as defined in the
Revolving Loan Joinder Agreement entered into on or about such Third
Amendment Closing Date) (each, a "Purchasing Lenders" and, collectively,
the "Purchasing Lenders") shall be deemed to have
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automatically purchased an assignment and assumption on a pro rata basis
from each Revolving Lender that will hold a lesser percentage of the
Revolving Commitments on the Third Amendment Closing Date that such
Revolving Lender held prior to the effectiveness thereof (including,
without limitation, any Lender being replaced pursuant to Section 11.16)
(the "Selling Lenders"), effective as of the Third Amendment Closing Date
simultaneously with the effectiveness thereof and the voluntary repayment
of the Tranche A Loans contemplated thereby, of all of such Selling
Lender's rights and obligations (including, to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any
other right of such Selling Lender against any Person, whether known or
unknown, arising under or in connection with the Credit Agreement, the
documents delivered pursuant thereto and the transactions governed thereby
or in any way based on or related to any of the foregoing, whether at law
or in equity) under the Credit Agreement and the other Credit Documents to
the extent related to such Selling Lender's Assigned Interest (as defined
below) such that, after giving effect to such assignment and assumptions,
each Lender's Commitments shall be as set forth on Schedule 2.01 or in the
case of Lenders being replaced under Section 11.16, shall be terminated as
of the Third Amendment Closing Date. Each such assignment and assumption
shall be at par and without recourse, representation or warranty, provided
that each Selling Lender shall be deemed to represent and warrant to each
Purchasing Lender that it is the legal and beneficial owner of its Assigned
Interest and that the rights and obligations assigned by such Selling
Lender are free and clear of any lien, encumbrance or other adverse claim
created by such Selling Lender. For purposes of this provision, "Assigned
Interest" means with respect to any Selling Lender, the remainder of (a)
the amount and percentage interest of such Selling Lender under the Credit
Agreement as in effect immediately prior to the effectiveness of the Third
Amendment less (b) the amount and percentage interest of the rights and
obligations of such Selling Lender immediately following the effectiveness
of the Third Amendment.
1.19 The portion of Schedule 2.01 (Commitments and Commitment Percentages)
relating to the Revolving Commitments and the Tranche A-1 Term Loan will be
amended as of the Third Amendment Date, to set forth the Revolving Committed
Amounts and the Tranche A-1 Term Loan Committed Amounts, and the Revolving
Commitment Percentages and the Tranche A-1 Term Loan Commitment Percentages,
respectively, in effect immediately after the effectiveness hereof.
1.20 Exhibit A-1 (Form of Loan Notice) is replaced in its entirety with
Exhibit A-1 attached hereto.
1.21 A new Exhibit C-6 (Form of Tranche A-1 Term Note) is added in the
form of Exhibit C-6 attached hereto.
1.22 Exhibit K (Form of Revolving Loan Joinder Agreement) is replaced in
its entirety with Exhibit K attached hereto.
SECTION 2 Consent.
2.1 Consent is hereby given to waive the voluntary prepayment notice
provisions of Section 2.06(a)(i) with respect to the voluntary prepayment in
full by the Borrowers to be made to the Tranche A Term Loan and the Tranche D
Term Loan on the Third Amendment Closing Date.
SECTION 3 Conditions Precedent. The effectiveness of this Amendment is
subject to receipt by the Administrative Agent of the following, each in form
and substance satisfactory to the Administrative Agent:
(a) copies of this Amendment executed by each of the Borrowers and the
Guarantors;
(b) the consent of the Required Lenders;
(c) the consent of the Revolving Lenders;
(d) the consent of the Required Tranche A Term Lenders;
(e) the consent of the Tranche A-1 Term Lenders;
(f) to the extent reasonably necessary in the judgment of the
Administrative Agent, amendments to each foreign Pledge Agreement and the
Parallel Debt Agreement and/or delivery of any substantially
8
similar agreement that creates an obligation of the Credit Parties (as debt
acknowledgment or abstraktes Schuldanerkenntnis), in each case in a manner
satisfactory to the Administrative Agent;
(g) opinions of counsel to the Borrowers and the Guarantors; and
(h) payment of the reasonable fees and expenses of counsel to the
Administrative Agent (including Xxxxx & Xxx Xxxxx, PLLC and foreign
counsel) relating to the Credit Agreement and this Amendment;
provided that the effectiveness of the amendments to Sections 11.16 and 11.21 of
the Credit Agreement contemplated by Section 1.17 and Section 1.18 hereby shall
become effective upon the satisfaction of the conditions set forth in (a) and
(b).
SECTION 4 Miscellaneous.
4.1 Except as modified hereby, all of the terms and provisions of the
Credit Agreement (including Schedules and Exhibits) remain in full force and
effect.
4.2 The Credit Parties hereby affirm (a) the representations and
warranties set forth in Article VI of the 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 (b) no Default or Event of Default exists as of
the date hereof.
4.3 The Credit Parties hereby affirm the liens and security interests
created and granted in the Credit Documents and agree that this Amendment is not
intended to adversely affect or impair such liens and security interests in any
manner.
4.4 Each Guarantor (a) acknowledges and consents to all of the terms and
conditions of this Amendment, (b) affirms such Guarantor's obligations under the
Credit Documents and (c) agrees that this Amendment does not operate to reduce
or discharge such Guarantor's obligations under the Credit Documents.
4.5 FMCAG agrees to pay all reasonable fees and expenses of the
Administrative Agent in connection with the preparation, execution and delivery
of this Amendment, including without limitation the reasonable fees and expenses
of Xxxxx & Xxx Xxxxx, PLLC and of foreign counsel to the Administrative Agent.
4.6 This Amendment may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original and it shall
not be necessary in making proof of this Amendment to produce or account for
more than one such counterpart. Delivery by any party hereto of an executed
counterpart of this Amendment by facsimile shall be effective as such party's
original executed counterpart and shall constitute a representation that such
party's original executed counterpart will be delivered promptly.
4.7 THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
[remainder of page intentionally left blank]
9
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Amendment to be duly executed and delivered as of the date first above
written.
BORROWERS AND GUARANTORS: FRESENIUS MEDICAL CARE AG, a German
corporation, as a Borrower and as a Guarantor
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Chief Financial Officer/
Member of the Management Board
By: /s/ Xx. Xxxxxx Xxxxx
------------------------------------
Name: Xx. Xxxxxx Xxxxx
Title: Member of the Management
Board
FRESENIUS MEDICAL CARE HOLDINGS, INC.,
a
New York corporation, as a Borrower
and as a Guarantor
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Assistant Treasurer
FMC FINANCE II S.a.r.l., a private
limited company (societe a
responsabilite limitee) organized
under the laws of Luxembourg, as a
Borrower and as a Guarantor
By: /s/ Xxxxxxxx Xxx
------------------------------------
Name: Xxxxxxxx Xxx
Title: Managing Director
By: /s/ Xxxxxx Stopper
------------------------------------
Name: Xxxxxx Stopper
Title: Managing Director
GUARANTORS: NATIONAL MEDICAL CARE, INC., a Delaware
corporation
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Treasurer
FRESENIUS MEDICAL CARE DEUTSCHLAND
GmbH, a German corporation
By: /s/ Xxxxxxxx Xxxxx
------------------------------------
Name: Xx. Xxxxxxxx Xxxxx
Title: Managing Director
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
FMC TRUST FINANCE S.a.r.l. LUXEMBOURG,
a private limited company (societe a
responsabilite limitee) organized
under the laws of Luxembourg
By: /s/ Xxxxxx Stopper
------------------------------------
Name: Xxxxxx Stopper
Title: Managing Director
FMC TRUST FINANCE S.a.r.l.
LUXEMBOURG-III, a private limited
company (societe a responsabilite
limitee) organized under the laws of
Luxembourg
By: /s/ Xxxxxxxx Xxx
------------------------------------
Name: Xxxxxxxx Xxx
Title: Managing Director
GUARANTORS: BIO-MEDICAL APPLICATIONS MANAGEMENT COMPANY,
INC., a Delaware corporation,
BIO-MEDICAL APPLICATIONS OF ARIZONA, INC., a
Delaware corporation,
BIO-MEDICAL APPLICATIONS OF CALIFORNIA, INC.,
a Delaware corporation,
BIO-MEDICAL APPLICATIONS OF LOUISIANA, LLC, a
Delaware limited liability company,
BIO-MEDICAL APPLICATIONS OF MAINE, INC., a
Delaware corporation,
BIO-MEDICAL APPLICATIONS OF
NEW MEXICO, INC., a Delaware corporation,
FMS
NEW YORK, INC., a Delaware corporation
formerly known as Bio-Medical Applications of
New York, Inc.
BIO-MEDICAL APPLICATIONS OF NORTH CAROLINA,
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 TEXAS, INC., a
Delaware corporation,
EVEREST HEALTHCARE HOLDINGS, INC., a Delaware
corporation,
FRESENIUS USA MANUFACTURING, INC., a Delaware
corporation,
FRESENIUS USA MARKETING, INC., a Delaware
corporation,
FRESENIUS USA, INC., a Massachusetts
corporation,
SPECTRA LABORATORIES, INC., a Nevada
corporation
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Treasurer
for each of the foregoing
GUARANTORS: NMC A, LLC, a Delaware limited liability
company
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Treasurer
FRESENIUS MEDICAL CARE US
BETEILIGUNGSGESELLSCHAFT mbH, a German
limited liability company
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Managing Director
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
FRESENIUS MEDICAL CARE
BETEILIGUNGSGESELLSCHAFT mbH, a German
limited liability company
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Managing Director
By: /s/ Xx. Xxxxxx Xxxxx
------------------------------------
Name: Xx. Xxxxxx Xxxxx
Title: Managing Director
GUARANTORS: FRESENIUS MEDICAL CARE US ZWEI
BETEILIGUNGSGESELLSCHAFT mbH, a German limited
liability company, formerly known as Gabriele
41 Vermogensverwaltung GmbH
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Managing Director
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
FRESENIUS MEDICAL CARE US DREI
BETEILIGUNGSGESELLSCHAFT mbH, a German
limited liability company
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Managing Director
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A., as Administrative Agent
for and on behalf of the Lenders
By: /s/ Xxxxxxxxx XxXxxx
------------------------------------
Name: Xxxxxxxxx XxXxxx
Title: Officer
Schedule 2.01
Schedule of Commitments
as of the Third Amendment Closing Date
TRANCHE A
REVOLVING TERM LOAN
REVOLVING COMMITMENT TRANCHE A-1 COMMITMENT
LENDER COMMITMENT PERCENTAGE TERM LOAN PERCENTAGE
------ --------------- -------------- --------------- -------------
BANK OF AMERICA.................................. $ 28,125,000.00 3.7500000000% $ 16,875,000 3.75000000%
CREDIT SUISSE FIRST BOSTON....................... 28,125,000.00 3.7500000000% 16,875,000 3.00000000%
DEUTSCHE BANK LUXEMBOURG SA...................... 28,125,000.00 3.7500000000% 16,875,000 3.00000000%
BANK OF NOVA SCOTIA.............................. 26,250,000.00 3.0000000000% 15,750,000 3.50000000%
JPMORGAN CHASE BANK.............................. 26,250,000.00 3.5000000000% 15,750,000 3.00000000%
ABN-AMRO BANK N.V. NIEDERLASSUNG DEUTSCHLAND..... 25,625,000.00 3.0000000000% 15,375,000 3.00000000%
COMMERZBANK AKTIENGESELLSCHAFT................... 25,625,000.00 3.0000000000% 15,375,000 3.00000000%
DRESDNER BANK AKTIENGESELLSCHAFT................. 25,625,000.00 3.0000000000% 15,375,000 3.00000000%
DZ BANK AG....................................... 25,625,000.00 3.0000000000% 15,375,000 3.41666667%
KREDITANSTALT FUR WIEDERAUFBAU................... 25,625,000.00 3.0000000000% 15,375,000 3.41666667%
MIZUHO CORPORATE BANK GERMANY.................... 25,625,000.00 3.0000000000% 15,375,000 3.41666667%
SOCIETE GENERALE................................. 25,625,000.00 3.0000000000% 15,375,000 3.00000000%
LANDESBANK HESSEN-THUERINGEN..................... 25,625,000.000 3.0000000000% 15,375,000 3.00000000%
BANK AUSTRIA CREDITANSTALT....................... 12,187,500.00 1.0000000000% 7,312,500 1.62500000%
BAYERISCHE HYPO- UND VEREINSBANK AG New York
Branch......................................... 12,187,500.00 1.0000000000% 7,312,500 1.62500000%
BNP PARIBAS...................................... 24,375,000.00 3.2500000000% 14,625,000 3.00000000%
SUNTRUST BANK.................................... 24,375,000.00 3.2500000000% 14,625,000 3.00000000%
WACHOVIA BANK NATIONAL ASSOCIATION............... 24,375,000.00 3.2500000000% 14,625,000 3.25000000%
WEST LB AG, New York Branch...................... 24,375,000.00 3.2500000000% 14,625,000 3.00000000%
BARCLAYS BANK PLC................................ 22,500,000.00 3.0000000000% 13,500,000 3.00000000%
BAYERISCHE LANDESBANK............................ 22,500,000.00 3.0000000000% 13,500,000 3.00000000%
UFJ BANK, LTD. .................................. 22,500,000.00 3.0000000000% 13,500,000 3.00000000%
SUMITOMO MITSUI BANKING CORPORATION, DUESSELDORF
BRANCH......................................... 22,500,000.00 3.0000000000% 13,500,000 3.00000000%
BANCO BILBAO VIZCAYA ARGENTARIA S.A. ............ 19,375,000.00 2.5833333333% 11,625,000 2.00000000%
BANK OF NEW YORK................................. 19,375,000.00 2.5833333333% 11,625,000 2.00000000%
BANK OF TOKYO-MITSUBISHI TRUST CO................ 19,375,000.00 2.5833333333% 11,625,000 2.00000000%
ING BHF BANK AKTIENGESELLSCHAFT.................. 19,375,000.00 2.5833333333% 11,625,000 2.58333333%
RAIFFEISEN ZENTRALBANK OSTERREICH................ 13,839,285.714 1.8452380952% 8,303,571.43 1.84523810%
RZB FINANCE LLC.................................. 5,535,714.286 0.7380952381% 3,321,428.57 0.73809524%
ALLIED IRISH BANK PLC............................ 15,000,000.00 2.0000000000% 9,000,000 2.00000000%
THE GOVERNOR AND CO OF THE BANK OF IRELAND....... 15,000,000.00 2.0000000000% 9,000,000 2.00000000%
KEYBANK NA....................................... 15,000,000.00 2.0000000000% 9,000,000 2.00000000%
LANDESBANK SACHSEN GIROZENTRALE.................. 15,000,000.00 2.0000000000% 9,000,000 2.00000000%
NATEXIS BANQUES POPULAIRES....................... 15,000,000.00 2.0000000000% 9,000,000 2.00000000%
NATIONAL CITY BANK OF KENTUCKY................... 15,000,000.00 2.0000000000% 9,000,000 2.00000000%
DEUTSCHE APOTHEKER UND ARZTEBANK EG.............. 9,375,000.00 1.2500000000% 5,625,000 1.25000000%
--------------- -------------- --------------- -------------
$750,000,000.00 100.0000000000% $450,000,000.00 100.000000000%
=============== ============== =============== =============
Schedule 11.02
to Revolving Loan Joinder Agreement
NEW REVOLVING LENDER NOTICE ADDRESSES
Exhibit A-1
[FORM OF] LOAN NOTICE
Date: ,
To: Bank of America, N.A., as Administrative Agent
Re: Amended and Restated Credit Agreement dated as of February
21, 2003 (as further amended, restated, extended,
supplemented or otherwise modified, the "Credit Agreement")
among FRESENIUS MEDICAL CARE AG, FRESENIUS MEDICAL CARE
HOLDINGS, INC. and FMC FINANCE II S.a.r.l., as Borrowers,
the Guarantors party thereto, the Lenders party thereto, and
BANK OF AMERICA, N.A., as Administrative Agent. Capitalized
terms used herein and not otherwise defined have the
meanings provided in the Credit Agreement.
Ladies and Gentlemen:
The undersigned hereby requests (select one):
[ ] A Borrowing [ ] A conversion [ ] A continuation of Eurocurrency
Rate Loans
of (select one):
[ ] Revolving Loans
[ ] Tranche A-1 Term Loan
1. Date of Borrowing:
-------------------------------------------------------------------------------------------------
(a Business Day)
2. Currency:
-------------------------------------------------------------------------------------------------
3. Amount:
-------------------------------------------------------------------------------------------------
4. Type:
-------------------------------------------------------------------------------------------------
5. Requested Interest Period (for Eurocurrency Rate Loans):
-------------------------------------------------------------------------------------------------
With respect to any Borrowing, conversion or continuation requested
herein, the undersigned Borrower hereby represents and warrants that (a)
such request complies with the requirements of Sections 2.01 and 2.02 of
the Credit Agreement, (b) the representations and warranties contained in
Article VI of the Credit Agreement or in any other Credit Document, or
that are contained in any document furnished at any time under or in
connection therewith, shall be true and correct in all material respects
on and as of the date hereof, except to the extent that such
representations and warranties specifically refer to an earlier date, in
which case they shall be true and correct in all material respects as of
such earlier date, and except that for purposes hereof, the
representations and warranties contained in subsections (a) and (b) of
Section 6.05 of the Credit Agreement shall be deemed to refer to the most
recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 7.01 thereof, and (c) no Default or Event of
Default shall exist, or would result from such proposed Credit Extension.
Borrower:
---------------------------------
By:
------------------------------------
Name:
Title:
Exhibit C-6
[FORM OF]
TRANCHE A-1 TERM NOTE
[Date]
FOR VALUE RECEIVED, each of the undersigned (the "Borrowers") hereby
jointly and severally promise to pay to [LENDER] or its registered assigns (the
"Lender"), in accordance with the provisions of that certain Amended and
Restated Credit Agreement dated as of February 21, 2003 (as further amended,
restated, extended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Borrowers, the Guarantors, the Lenders, and Bank
of America, N.A., as Administrative Agent, the principal amount of the Tranche
A-1 Term Loan made by the Lender to the Borrowers thereunder. Capitalized terms
used herein and not otherwise defined have the meanings provided in the Credit
Agreement.
Each of the Borrowers jointly and severally promises to pay interest on the
unpaid principal amount of the Tranche A-1 Term Loan made by the Lender from the
date of such Tranche A-1 Term Loan until such principal amount is paid in full,
at the interest rates and at the times provided in the Credit Agreement. All
payments of principal and interest shall be made to the Administrative Agent for
the account of the Lender in immediately available funds at the Administrative
Agent's Office. If any amount is not paid in full when due hereunder, such
unpaid amount shall bear interest, to be paid upon demand, from the due date
thereof until the date of actual payment (and before as well as after judgment)
computed at the per annum rate set forth in the Credit Agreement.
This Note is one of the Notes referred to in the Credit Agreement, is
entitled to the benefits thereof and may be prepaid in whole or in part subject
to the terms and conditions provided therein. Upon the occurrence and
continuation of one or more of the Events of Default specified in the Credit
Agreement, all amounts then remaining unpaid on this Note shall become, or may
be declared to be, immediately due and payable all as provided in the Credit
Agreement. The Tranche A-1 Term Loan made by the Lender shall be evidenced by
one or more loan accounts or records maintained by the Lender in the ordinary
course of business. The Lender may also attach schedules to this Note and
endorse thereon the date, amount and maturity of its Tranche A-1 Term Loan and
payments with respect thereto, and, absent manifest error, such schedules,
accounts or records shall be conclusive to the extent set forth in the Credit
Agreement.
Each Borrower, for itself and its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and nonpayment of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF
NEW YORK.
FRESENIUS MEDICAL CARE AG, a German
corporation
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
FRESENIUS MEDICAL CARE HOLDINGS, INC.,
a
New York corporation
By:
------------------------------------
Name:
Title:
Exhibit K
REVOLVING LOAN JOINDER AGREEMENT
THIS REVOLVING LOAN JOINDER AGREEMENT (this "Agreement") dated as of
to the Credit Agreement referenced below is by and among each of the
Persons identified as a "Revolving Lender" on the signature pages hereto (the
"New Revolving Lenders"), FRESENIUS MEDICAL CARE HOLDINGS, INC., a New York
corporation ("FMCH"), and FRESENIUS MEDICAL CARE AG, a German corporation
("FMCAG"), the other Borrowers identified in the Credit Agreement (together with
FMCH and FMCAG, the "Borrowers"), certain Subsidiaries and Affiliates of FMCAG,
as Guarantors, and BANK OF AMERICA, N.A., as administrative agent (in such
capacity, the "Administrative Agent") for the Lenders. All of the defined terms
of the Credit Agreement (as defined below) are incorporated herein by reference.
W I T N E S S E T H
WHEREAS, there exists an Amended and Restated Credit Agreement dated as of
February 21, 2003 (as amended and modified from time to time, the "Credit
Agreement") among Fresenius Medical Care AG, a German corporation ("FMCAG"),
Fresenius Medical Care Holdings, Inc., a New York corporation ("FMCH"), certain
Subsidiaries and Affiliates of FMCAG identified therein, as borrowers and
guarantors, the lenders identified therein and Bank of America, N.A., as
Administrative Agent (the "Credit Agreement");
WHEREAS, pursuant to Section 2.01(j) of the Credit Agreement, the Borrowers
have requested that each of the New Revolving Lenders provide an additional
Revolving Commitment under the Credit Agreement; and
WHEREAS, each New Revolving Lender has agreed to provide an additional
Revolving Commitment on the terms and conditions set forth herein and to become
a "Revolving Lender" under the Credit Agreement in connection therewith;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Each New Revolving Lender severally agrees to provide an additional
Revolving Commitment to the Borrowers from the date hereof through the end
of the Commitment Period in the amount of its Revolving Committed Amount;
provided that, after giving effect to this Agreement, (i) with regard to
the Revolving Lenders (including the New Revolving Lenders) collectively,
the Aggregate Revolving Committed Amount shall not exceed [SEVEN HUNDRED
FIFTY MILLION DOLLARS ($750,000,000)] [NINE HUNDRED FIFTY MILLION DOLLARS
($950,000,000)]. The existing Schedule 2.01 to the Credit Agreement shall
be deemed to be amended and replaced with Schedule 2.01 attached hereto,
which has been revised to reflect the modified commitments and commitment
percentages of the Revolving Lenders (including the New Revolving Lenders)
pursuant to Section 2.01(j) of the Credit Agreement.
2. Each New Revolving Lender shall be deemed to have purchased,
without recourse, a risk participation from the L/C Issuers in all Letters
of Credit issued or existing under the Credit Agreement and the obligations
arising thereunder in an amount equal to its Revolving Commitment
Percentage of the obligations under such Letters of Credit, and shall
absolutely, unconditionally and irrevocably assume, as primary obligor and
not as surety, and be obligated to pay to the L/C Issuers and discharge
when due, its Revolving Commitment Percentage of the obligations arising
under such Letters of Credit.
3. Each New Revolving Lender (a) represents and warrants that it is an
existing Revolving Lender under the Credit Agreement or a commercial
lender, other financial institution or other "accredited" investor (as
defined in SEC Regulation D) that makes or acquires loans in the ordinary
course of business and that it will make or acquire Loans for its own
account in the ordinary course of business; (b) confirms that it has
received a copy of the Credit Agreement, together with copies of the
financial statements referred to in Section 7.01 thereof and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Agreement; (c) agrees
that it will, independently and without reliance upon the Administrative
Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit Agreement; (d)
appoints and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers and discretion under the
Credit Agreement as are delegated to the Administrative Agent by the terms
thereof, together with such powers and discretion as are reasonably
incidental thereto; and (e) agrees that, as of the date hereof, such New
Revolving Lender shall (i) be a party to the Credit Agreement and the other
Credit Documents, (ii) be a "Revolving Lender" for all purposes of the
Credit Agreement and the other Credit Documents, (iii) perform all of the
obligations that by the terms of the Credit Agreement are required to be
performed by it as a "Lender" and a "Revolving Lender" under the Credit
Agreement, (iv) shall have the rights and obligations of a Lender and a
Revolving Lender under the Credit Agreement and the other Credit Documents,
(v) agrees to be bound by the Parallel Debt Agreement, as amended or
modified from time to time, or any substantially similar agreement that
creates an obligation of the Credit Parties (as debt acknowledgement or
abstraktes Schuldanerkenntnis) in favor of the Collateral Agent under
German Law (under which a parallel debt structure has been created with a
view to certain Pledge Agreements) and (vi) ratifies and approves all acts
previously taken by the Collateral Agent on such New Revolving Lender's
behalf (including the Collateral Agent acting as a proxy without power of
attorney (Vertreter ohne Vertretungsmacht) in connection with any Pledge
Agreement governed by German Law).
4. Each of the Borrowers and the Guarantors agrees that, as of the
date hereof, each of the New Revolving Lenders shall (i) be a party to the
Credit Agreement and the other Credit Documents, (ii) be a "Lender" and a
"Revolving Lender" for all purposes of the Credit Agreement and the other
Credit Documents, and (iii) have the rights and obligations of a Lender and
a Revolving Lender under the Credit Agreement and the other Credit
Documents.
5. The address of each New Revolving Lender for purposes of all
notices and other communications shall be as provided on Schedule 11.02
attached hereto, and Schedule 11.02 to the Credit Agreement is deemed
amended to include the information on Schedule 11.02 attached hereto.
6. This Agreement may be executed in any number of counterparts and by
the various parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together
shall constitute one contract. Delivery of an executed counterpart of this
Agreement by telecopier shall be effective as delivery of a manually
executed counterpart of this Agreement.
7. This Agreement shall be governed by and construed and interpreted
in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within such state.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed by a duly authorized officer as of the date first above written.
BORROWERS AND GUARANTORS: FRESENIUS MEDICAL CARE AG, a German
corporation, as a Borrower and as a Guarantor
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
FRESENIUS MEDICAL CARE HOLDINGS, INC.,
a New York corporation, as a Borrower
and as a Guarantor
By:
------------------------------------
Name:
Title:
FMC FINANCE II S.a.r.l., a private
limited company (societe a
responsabilite limitee) organized
under the laws of Luxembourg, as a
Borrower and as a Guarantor
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
GUARANTORS: NATIONAL MEDICAL CARE, INC., a Delaware
corporation
By:
------------------------------------
Name:
Title:
FRESENIUS MEDICAL CARE DEUTSCHLAND
GmbH, a German corporation
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
FMC TRUST FINANCE S.a.r.l. LUXEMBOURG,
a private limited company (societe a
responsabilite limitee) organized
under the laws of Luxembourg
By:
------------------------------------
Name:
Title:
FMC TRUST FINANCE S.a.r.l.
LUXEMBOURG-III, a private limited
company (societe a responsabilite
limitee) organized under the laws of
Luxembourg
By:
------------------------------------
Name:
Title:
GUARANTORS: BIO-MEDICAL APPLICATIONS MANAGEMENT COMPANY,
INC., a Delaware corporation,
BIO-MEDICAL APPLICATIONS OF ARIZONA, INC., a
Delaware corporation,
BIO-MEDICAL APPLICATIONS OF CALIFORNIA, INC.,
a Delaware corporation,
BIO-MEDICAL APPLICATIONS OF LOUISIANA, LLC, a
Delaware limited liability company,
BIO-MEDICAL APPLICATIONS OF MAINE, INC., a
Delaware corporation,
BIO-MEDICAL APPLICATIONS OF NEW MEXICO, INC.,
a Delaware corporation,
FMS NEW YORK, INC., a Delaware corporation
formerly known as Bio-Medical Applications of
New York, Inc.
BIO-MEDICAL APPLICATIONS OF NORTH CAROLINA,
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 TEXAS, INC., a
Delaware corporation,
EVEREST HEALTHCARE HOLDINGS, INC., a Delaware
corporation,
FRESENIUS USA MANUFACTURING, INC., a Delaware
corporation,
FRESENIUS USA MARKETING, INC., a Delaware
corporation,
FRESENIUS USA, INC., a Massachusetts
corporation,
SPECTRA LABORATORIES, INC., a Nevada
corporation
By:
------------------------------------
Name:
Title:
for each of the foregoing
GUARANTORS: NMC A, LLC, a Delaware limited liability
company
By:
------------------------------------
Name:
Title:
FRESENIUS MEDICAL CARE US
BETEILIGUNGSGESELLSCHAFT mbH, a German
limited liability company
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
FRESENIUS MEDICAL CARE
BETEILIGUNGSGESELLSCHAFT mbH, a German
limited liability company
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
GUARANTORS: FRESENIUS MEDICAL CARE US ZWEI
BETEILIGUNGSGESELLSCHAFT mbH, a German limited
liability company, formerly known as Gabriele
41 Vermogensverwaltung GmbH
By:
------------------------------------
Name:
Title:
FRESENIUS MEDICAL CARE US DREI
BETEILIGUNGSGESELLSCHAFT mbH, a German
limited liability company
By:
------------------------------------
Name:
Title:
NEW REVOLVING LENDERS:
By:
------------------------------------
Name:
Title:
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A., as Administrative Agent
By:
------------------------------------
Name:
Title:
Schedule 2.01
REVOLVING COMMITMENTS AND COMMITMENT PERCENTAGES
to Revolving Loan Joinder Agreement
REVOLVING
REVOLVING COMMITMENT
REVOLVING LENDER COMMITMENT PERCENTAGE
---------------- --------------- -------------
Totals:..................................................... $750,000,000.00 100.000000000%
Schedule 11.02
to Revolving Loan Joinder Agreement
NEW REVOLVING LENDER NOTICE ADDRESSES
Exhibit L
[FORM OF]
TRANCHE A-1 TERM LOAN JOINDER AGREEMENT
THIS TRANCHE A-1 TERM LOAN JOINDER AGREEMENT (this "Agreement") dated as of
December 10, 2004 to the Credit Agreement referenced below is by and among the
Tranche A-1 Term Lenders identified on the signature pages hereto (the "Tranche
A-1 Term Lenders"), FRESENIUS MEDICAL CARE HOLDINGS, INC., a New York
corporation ("FMCH"), and FRESENIUS MEDICAL CARE AG, a German corporation
("FMCAG"; together with FMCH, each a "Tranche A-1 Term Loan Borrower" and,
collectively, the "Tranche A-1 Term Loan Borrowers"), certain Subsidiaries and
Affiliates of FMCAG, as Guarantors, and BANK OF AMERICA, N.A., as administrative
agent (in such capacity, the "Administrative Agent") for the Lenders. All of the
defined terms of the Credit Agreement (as defined below) are incorporated herein
by reference.
W I T N E S S E T H
WHEREAS, there exists an Amended and Restated Credit Agreement dated as of
February 21, 2003 (as amended and modified from time to time, the "Credit
Agreement") among Fresenius Medical Care AG, a German corporation ("FMCAG"),
Fresenius Medical Care Holdings, Inc., a New York corporation ("FMCH"), certain
Subsidiaries and Affiliates of FMCAG identified therein, as borrowers and
guarantors, the lenders identified therein and Bank of America, N.A., as
Administrative Agent (the "Credit Agreement");
WHEREAS, pursuant to Section 2.01(f-1) of the Credit Agreement, the Tranche
A-1 Term Loan Borrowers have requested that the Tranche A-1 Term Lenders provide
a Tranche A-1 Term Loan under the Credit Agreement; and
WHEREAS, each Tranche A-1 Term Lender has agreed to make a portion of the
Tranche A-1 Term Loan on the terms and conditions set forth herein and to become
a "Tranche A-1 Term Lender" under the Credit Agreement in connection therewith;
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. The initial Tranche A-1 Term Loan Commitments and Tranche A-1 Term
Loan Commitment Percentages are set forth on Schedule 2.01 attached hereto.
Further, Schedule 2.01 to the Credit Agreement is deemed amended to include
the information on the Tranche A-1 Term Loan Commitments and the Tranche
A-1 Term Loan Commitment Percentages provided on Schedule 2.01 attached
hereto.
2. Subject to the terms and conditions set forth herein, on the date
hereof, each of the Tranche A-1 Term Lenders severally agrees to make its
portion of the Tranche A-1 Term Loan (in the amount of its respective
Tranche A-1 Term Loan Committed Amount as set forth on Schedule 2.01
attached hereto) consisting of an advance in Dollars in the aggregate
principal amount of FOUR HUNDRED FIFTY MILLION DOLLARS ($450,000,000)
consisting of a single advance to FMCAG in the amount of $245,000,000 and a
single advance to FMCH in the amount of $205,000,000. The Tranche A-1 Term
Loan may consist of Base Rate Loans, Eurocurrency Rate Loans or a
combination thereof, as the applicable Borrower may request. Amounts repaid
on the Tranche A-1 Term Loan may not be reborrowed.
3. The Applicable Percentage for the Tranche A-1 Term Loan shall be as
provided in the Credit Agreement.
4. The Tranche A-1 Term Loan shall be payable in quarterly
installments as provided in the Credit Agreement.
5. Each Tranche A-1 Term Lender (a) represents and warrants that it is
a commercial lender, other financial institution or other "accredited"
investor (as defined in SEC Regulation D) that makes or
acquires loans in the ordinary course of business and that it will make or
acquire Loans for its own account in the ordinary course of business; (b)
confirms that it has received a copy of the Credit Agreement, together with
copies of the financial statements referred to in Section 7.01 thereof and
such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Agreement; (c)
agrees that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Credit
Agreement; (d) appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers and
discretion under the Credit Agreement as are delegated to the
Administrative Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (e) agrees that, as of the
date hereof, such Tranche A-1 Term Lender shall (i) be a party to the
Credit Agreement and the other Credit Documents, (ii) be a "Tranche A-1
Term Lender" for all purposes of the Credit Agreement and the other Credit
Documents, (iii) perform all of the obligations that by the terms of the
Credit Agreement are required to be performed by it as a "Lender" and a
"Tranche A-1 Term Lender" under the Credit Agreement, (iv) shall have the
rights and obligations of a Lender and a Tranche A-1 Term Lender under the
Credit Agreement and the other Credit Documents, (v) agrees to be bound by
the Parallel Debt Agreement, as amended or modified from time to time, or
any substantially similar agreement that creates an obligation of the
Credit Parties (as debt acknowledgement or abstraktes Schuldanerkenntnis)
in favor of the Collateral Agent under German Law (under which a parallel
debt structure has been created with a view to certain Pledge Agreements)
and (vi) ratifies and approves all acts previously taken by the Collateral
Agent on such Tranche A-1 Term Lender's behalf (including the Collateral
Agent acting as a proxy without power of attorney (Vertreter ohne
Vertretungsmacht) in connection with any Pledge Agreement governed by
German Law); and (f) agrees to waive the borrowing notice provisions of
Section 2.02(a) of the Credit Agreement with respect to the advance of the
Tranche A-1 Term Loan on the date hereof.
6. Each of the Tranche A-1 Term Loan Borrowers and the Guarantors
agrees that, as of the date hereof, each of the Tranche A-1 Term Lenders
shall (i) be a party to the Credit Agreement and the other Credit
Documents, (ii) be a "Lender" and a "Tranche A-1 Term Lender" for all
purposes of the Credit Agreement and the other Credit Documents, and (iii)
have the rights and obligations of a Lender and a Tranche A-1 Term Lender
under the Credit Agreement and the other Credit Documents.
7. The address of each Tranche A-1 Term Lender for purposes of all
notices and other communications shall be as provided on Schedule 11.02
attached hereto, and Schedule 11.02 to the Credit Agreement is deemed
amended to include the information on Schedule 11.02 attached hereto.
8. This Agreement may be executed in any number of counterparts and by
the various parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together
shall constitute one contract. Delivery of an executed counterpart of this
Agreement by telecopier shall be effective as delivery of a manually
executed counterpart of this Agreement.
9. This Agreement shall be governed by and construed and interpreted
in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within such state.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed by a duly authorized officer as of the date first above written.
BORROWERS AND GUARANTORS: FRESENIUS MEDICAL CARE AG, a German
corporation, as a Borrower and as a Guarantor
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
FRESENIUS MEDICAL CARE HOLDINGS, INC.,
a New York corporation, as a Borrower
and as a Guarantor
By:
------------------------------------
Name:
Title:
GUARANTORS: NATIONAL MEDICAL CARE, INC., a Delaware
corporation
By:
------------------------------------
Name:
Title:
FRESENIUS MEDICAL CARE DEUTSCHLAND
GmbH, a German corporation
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
FMC FINANCE II S.a.r.l., a private
limited company (societe a
responsabilite limitee) organized
under the laws of Luxembourg
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
FMC TRUST FINANCE S.a.r.l. LUXEMBOURG,
a private limited company (societe a
responsabilite limitee) organized
under the laws of Luxembourg
By:
------------------------------------
Name:
Title:
FMC TRUST FINANCE S.a.r.l.
LUXEMBOURG-III, a private limited
company (societe a responsabilite
limitee) organized under the laws of
Luxembourg
By:
------------------------------------
Name:
Title:
GUARANTORS: BIO-MEDICAL APPLICATIONS MANAGEMENT COMPANY,
INC., a Delaware corporation,
BIO-MEDICAL APPLICATIONS OF ARIZONA, INC., a
Delaware corporation,
BIO-MEDICAL APPLICATIONS OF CALIFORNIA, INC.,
a Delaware corporation,
BIO-MEDICAL APPLICATIONS OF LOUISIANA, LLC, a
Delaware limited liability company,
BIO-MEDICAL APPLICATIONS OF MAINE, INC., a
Delaware corporation,
BIO-MEDICAL APPLICATIONS OF NEW MEXICO, INC.,
a Delaware corporation,
FMS NEW YORK, INC., a Delaware corporation
formerly known as Bio-Medical Applications of
New York, Inc.
BIO-MEDICAL APPLICATIONS OF NORTH CAROLINA,
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 TEXAS, INC., a
Delaware corporation,
EVEREST HEALTHCARE HOLDINGS, INC., a Delaware
corporation,
FRESENIUS USA MANUFACTURING, INC., a Delaware
corporation,
FRESENIUS USA MARKETING, INC., a Delaware
corporation,
FRESENIUS USA, INC., a Massachusetts
corporation,
SPECTRA LABORATORIES, INC., a Nevada
corporation
By:
------------------------------------
Name:
Title:
for each of the foregoing
GUARANTORS: NMC A, LLC, a Delaware limited liability
company
By:
------------------------------------
Name:
Title:
FRESENIUS MEDICAL CARE US
BETEILIGUNGSGESELLSCHAFT mbH, a German
limited liability company
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
FRESENIUS MEDICAL CARE
BETEILIGUNGSGESELLSCHAFT mbH, a German
limited liability company
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
GUARANTORS: FRESENIUS MEDICAL CARE US ZWEI
BETEILIGUNGSGESELLSCHAFT mbH, a German limited
liability company, formerly known as Gabriele
41 Vermogensverwaltung GmbH
By:
------------------------------------
Name:
Title:
FRESENIUS MEDICAL CARE US DREI
BETEILIGUNGSGESELLSCHAFT mbH, a German
limited liability company
By:
------------------------------------
Name:
Title:
TRANCHE A-1 TERM LENDERS:
By:
------------------------------------
Name:
Title:
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A., as Administrative Agent
By:
------------------------------------
Name:
Title:
Schedule 2.01
to Tranche A-1 Term Loan Joinder Agreement
TRANCHE A-1 TERM LOAN COMMITMENTS AND COMMITMENT PERCENTAGES
-------------------------------------------------------------------------------------------------
TRANCHE X-0
XXXXXXX X-0 TERM LOAN
TERM LOAN COMMITMENT
TRANCHE A-1 LENDER COMMITMENT PERCENTAGE
-------------------------------------------------------------------------------------------------
Totals:.................................................... [$450,000,000.00] 100.000000000%
-------------------------------------------------------------------------------------------------
CONSENT TO AMENDMENT NO. 3
Bank of America, N.A.,
as Administrative Agent
0000 Xxxxxx Xxxxxx
XX0-000-00-00
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxxx X. XxXxxx, Agency Management
Re: Credit Agreement dated as of February 21, 2003 (as amended and
modified, the "Credit Agreement") among Fresenius Medical Care AG,
Fresenius Medical Care Holdings, Inc., the other Borrowers, Guarantors
and Lenders identified therein and Bank of America, N.A., as
Administrative Agent. Capitalized terms used but not otherwise defined
shall have the meanings provided in the Credit Agreement.
Amendment No. 3 dated December 10, 2004 (the "Subject Amendment") to
the Credit Agreement.
Ladies and Gentlemen:
This should serve to confirm our receipt of, and consent to, the Subject
Amendment. We hereby (i) authorize and direct you, as Administrative Agent for
the Lenders, to enter into the Subject Amendment on our behalf in accordance
with the terms of the Credit Agreement upon your receipt of such consent and
direction from the Required Lenders, the requisite Revolving Lenders and the
requisite Tranche A Term Lenders, and (ii) agree that the Borrowers and the
other Credit Parties may rely on such authorization.
Sincerely,
--------------------------------------
[Name of Lender]
By:
------------------------------------
Name:
Title:
