AMENDMENT NO. 4
Exhibit 2.31
AMENDMENT
NO. 4
THIS AMENDMENT NO. 4, dated as of January 14, 2011
(this “Amendment”), of those certain Credit
Agreements 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 Bank 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 dated as of March 31, 2006 (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 dated as of March 31, 2006 (as amended and
modified, the “Term Loan Credit Agreement” and
together with the Bank Credit Agreement, the “Credit
Agreements”), in each case, 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 Credit Agreements;
WHEREAS, the Lenders have agreed to the requested amendment on
the terms and conditions set forth herein and have directed 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 agree as follows:
Section 1. Amendments
Applicable to Both Credit Agreements. In addition to
the amendments set forth in Section 1 hereof, both the Bank
Credit Agreement and the Term Loan Credit Agreement are amended
in the following respects:
1.1 Defined Terms. In
Section 1.01 (Defined Terms), the following:
1.1.1 The following defined terms
are amended or added to read as follows:
“Amendment No. 4” means that certain
Amendment No. 4 to this Credit Agreement dated as of the
Amendment No. 4 Effective Date.
“Amendment No. 4 Effective Date” means
January 14, 2011.
“Euromedic Acquisition” means the acquisition
by FMCAG and its Subsidiaries of International Dialysis Centres,
the kidney dialysis business of Euromedic International Group
B.V., as announced on January 4, 2011, for a purchase price
of approximately Euro 485 million as adjusted pursuant
to the terms of the relevant purchase agreement, as amended and
in effect from time to time.
1.1.2 In the definition of
“Material Domestic Subsidiary”, clause (b) of the
proviso is amended to read as follows:
‘‘(b) for purposes of determining whether any special
purpose Subsidiary of FMCAG that issues or assumes
Trust Preferred Securities or other senior notes is a
Material Domestic Subsidiary hereunder, the proceeds of such
Trust Preferred Securities or other senior notes shall not
be considered for the purpose of determining assets of such
Subsidiary to the extent such proceeds have been lent as
Trust Preferred Subdebt or permitted intercompany
indebtedness, respectively, or contributed to another member of
the Consolidated Group, and any interest in respect of any such
loan shall not be considered for the purpose of determining
Consolidated EBITDA of such Subsidiary.”
1.1.3 In the lead-in of the
definition of “Permitted Acquisition”, clause (b)
is renumbered as clause (c), and a new clause (b) is
inserted immediately prior to the “and” to read
“, (b) the Euromedic Acquisition,”.
1.2 In Section 8.01
(Indebtedness), the following:
1.2.1 Subsection (c) is
amended to read as follows:
(c) unsecured or secured
intercompany Indebtedness among members of the Consolidated
Group to the extent permitted by Sections 8.02(r) and 8.03;
1.2.2 In subsection (m), the
“.” at the end is amended to read “; and”
and a new subsection (n) is added after to read as follows:
(n) In addition to other
Indebtedness permitted under this Section 8.01,
Indebtedness of up to $950 million outstanding at any time
assumed or incurred by members of the Consolidated Group that
are not Wholly-Owned Subsidiaries, including joint ventures and
other entities in which FMCAG, directly or indirectly, does not
own all of the Capital Stock with ordinary voting power.
1.3 In Section 8.02 (Liens),
subsections (r) and (s) are renumbered as (s) and
(t), respectively, and a new subsection (r) is added to
read as follows:
(r) Liens on the property of, and
ownership interests in, members of the Consolidated Group that
are not Wholly-Owned Subsidiaries, including joint ventures and
other entities in which FMCAG, directly or indirectly, does not
own all of the Capital Stock with ordinary voting power,
securing Indebtedness permitted hereunder;
1.4 In Section 8.03
(Investments), the following:
1.4.1 In subsection (o), the
“(excluding those Investments permitted under subsections
(d), (e) or (n) of this Section 8.03)” is
amended to read “(excluding those Investments permitted
under subsections (d), (e), (n) or (p) of this
Section 8.03)”.
1.4.2 In subsection (p), the
reference to “$450 million” is amended and
increased to read “$900 million”.
1.5 In Section 8.09 (No
Further Negative Pledges), the reference in the lead-in language
to “Indebtedness permitted under subsections (b), (e), (f),
(g), (h), (j) and (m) of Section 8.01” is
amended to read “Indebtedness permitted under subsections
(b), (c), (e), (f), (g), (h), (j), (m) and (n) of
Section 8.01”.
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Section 2. Miscellaneous. FMCAG,
FMCH and the Co-Borrowers are Borrowers with joint and several
liability with respect to the Tranche B Term Loan under the
Term Loan Credit Agreement. Pursuant to Section 2.01(b)(ii)
thereof, on the Closing Date a portion of the Tranche B
Term Loan in an aggregate principal amount of TWO HUNDRED
FORTY-FIVE MILLION DOLLARS ($245,000,000) was advanced to FMCAG
as borrower therefor. On the date hereof FMCH and the
Co-Borrowers hereby (i) assume the obligations of FMCAG as
primary Borrower in respect of such portion of the
Tranche B Term Loan, and (ii) acknowledge their joint
and several liability for such Tranche B Term Loan pursuant
to Section 11.18 of the Term Loan credit Agreement.
Section 3. Conditions
Precedent. This Amendment shall become effective upon
prior or simultaneous satisfaction of the following conditions,
in form and substance reasonably satisfactory to the
Administrative Agent:
3.1 Receipt by the Administrative
Agent of executed signature pages to this Amendment (or, in the
case of the Lenders, a written consent directing the
Administrative Agent to enter into this Amendment on their
behalf) from (i) the Borrowers and the Guarantors,
(ii) the Administrative Agent, (iii) the Required
Revolving Lenders, and (iv) the Required Lenders.
3.2 Payment of all fees and
expenses owing in connection with this Amendment, including fees
and expenses of counsel to the Administrative Agent, to the
extent invoiced.
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 provision of Section 1 shall not be effective until the
Administrative Agent shall have given such confirmation.
Section 4. Representations
and Warranties. Each of the Credit Parties hereby
represents and warrants that:
(a) it has full power and
authority, and has taken all action necessary, to execute and
deliver this Amendment and to consummate the transactions
contemplated hereby;
(b) it has executed and delivered
this Amendment and the Amendment is a legal, valid and binding
obligation enforceable against it in accordance with its terms,
except to the extent that the enforceability may be limited by
applicable Debtor Relief Laws affecting creditors’ rights
generally and by equitable principles of law (regardless whether
enforcement is sought in equity or at law);
(c) as of the date hereof,
(i) the representations and warranties set forth in Article
VI of both Credit Agreements are true and correct in all
material respects as of the date hereof (except those which
expressly relate to an earlier period, in which case they are
true and correct as of such earlier period) and (ii) no
Default or Event of Default exists or will result herefrom.
Section 5. Guarantor
Acknowledgment. Each Guarantor acknowledges and
consents to all of the terms and conditions of this Amendment,
affirms its guaranty obligations under and in respect of the
Credit Documents and agrees that this Amendment and all
documents executed in connection herewith do not operate to
reduce or discharge any Guarantor’s obligations under the
Credit Documents, except as expressly set forth therein.
3
Section 6. Full Force and
Effect; Affirmation. Except as modified hereby, all of
the terms and provisions of the Credit Agreements and the other
Credit Documents (including schedules and exhibits thereto)
shall remain in full force and effect. Each of the Credit
Parties hereby (a) affirms all of its obligations under the
Credit Documents to which it is party and (b) agrees that
this Amendment and all documents executed in connection herewith
do not operate to reduce or discharge their obligations under
any Credit Document, except as expressly stated therein.
Section 7. Expenses. The
Borrower agrees to pay all reasonable costs and expenses of the
Administrative Agent in connection with the preparation,
execution and delivery of this Amendment, including the
reasonable fees and expenses of Xxxxx & Xxx Xxxxx PLLC.
Section 8. Counterparts. 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.
Section 9. Credit
Document. Each of the parties hereto hereby agrees that
this Amendment is a Credit Document.
Section 10. 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.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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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.
[Signatures
on Following Pages]
|
BORROWERS AND GUARANTORS:
|
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/ Xxxxxxx Xxxxxxx |
Name: Xxxxxxx
Xxxxxxx
| Title: | Member of the Management Board |
| By: | /S/ Xxxx Xxxxxx |
Name: Xxxx
Xxxxxx
| Title: | Member of the Management Board |
|
BORROWER AND 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 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 |
|
BORROWERS AND GUARANTORS:
|
FRESENIUS MEDICAL CARE HOLDINGS, INC., a New York corporation |
| By: | /S/ Xxxx Xxxxxxx |
Name: Xxxx
Xxxxxxx
| Title: | Vice President and Treasurer |
AMENDMENT NO. 4 TO BANK CREDIT AGREEMENT
AND TERM LOAN CERDIT AGREEMENT
AND TERM LOAN CERDIT AGREEMENT
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
| By: | /S/ Xxxx Xxxxxxx |
Name: Xxxx
Xxxxxxx
| Title: | Vice President and Treasurer |
AMENDMENT NO. 4 TO BANK CREDIT AGREEMENT
AND TERM LOAN CERDIT AGREEMENT
AND TERM LOAN CERDIT AGREEMENT
|
GUARANTORS:
|
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: | Vice President and Treasurer |
AMENDMENT NO. 4 TO BANK CREDIT AGREEMENT
AND TERM LOAN CERDIT AGREEMENT
AND TERM LOAN CERDIT AGREEMENT
|
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 | ||
| 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 |
| By: | /S/ Xxxx Xxxxxxx |
Name: Xxxx
Xxxxxxx
| Title: | Vice President and Treasurer |
| By: | /S/ Xxxx Xxxxxxx |
Name: Xxxx
Xxxxxxx
| Title: | Treasurer |
AMENDMENT NO. 4 TO BANK CREDIT AGREEMENT
AND TERM LOAN CERDIT AGREEMENT
AND TERM LOAN CERDIT AGREEMENT
|
GUARANTORS:
|
NATIONAL MEDICAL CARE OF SPAIN, S.A., a corporation (sociedad anónima) organized under the laws of Spain |
| By: | /S/ Dr. Xxxxxx Stopper |
Name: Dr. Xxxxxx
Stopper
| Title: | Authorized Representative |
AMENDMENT NO. 4 TO BANK CREDIT AGREEMENT
AND TERM LOAN CERDIT AGREEMENT
AND TERM LOAN CERDIT AGREEMENT
|
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: | Manager |
FMC FINANCE III
S.A., a company
existing under the laws of Luxembourg
| By: | /S/ Xxxxxxxx Xxx |
Name: Xxxxxxxx
Xxx
| Title: | Director |
FMC FINANCE VI
S.A., a
société anonyme (Public limited company) existing
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 |
FMC FINANCE VII
S.A., a
société anonyme (Public limited company) existing
under the laws of Luxembourg
| By: | /S/ Xxxxxxxx Xxx |
Name: Xxxxxxxx
Xxx
| Title: | Director |
AMENDMENT NO. 4 TO BANK CREDIT AGREEMENT
AND TERM LOAN CERDIT AGREEMENT
AND TERM LOAN CERDIT AGREEMENT
|
GUARANTORS:
|
FRESENIUS MEDICAL CARE DEUTSCHLAND GmbH, a German limited liability company |
| By: | /S/ Xxxxxxxxx Xxxxxxx |
Name: Xxxxxxxxx
Xxxxxxx
| Title: | Managing Director |
| By: | /S/ Xxxxxxxx Xxxxxx |
Name: Xxxxxxxx
Xxxxxx
| Title: | Managing Director |
FRESENIUS MEDICAL CARE
BETEILIGUNGSGESELLSCHAFT mbH, a German
limited liability company
BETEILIGUNGSGESELLSCHAFT mbH, a German
limited liability company
| By: | /S/ Xxxxxxx Xxxxxxx |
Name: Xxxxxxx
Xxxxxxx
| 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 |
FRESENIUS MEDICAL CARE
GmbH, a German
limited liability company
limited liability company
| By: | /S/ Xxxxxxx Xxxxx |
Name: Xxxxxxx
Xxxxx
| Title: | Managing Director |
| By: | /S/ Xxxxxxx Xxxxxx |
Name: Xxxxxxx
Xxxxxx
Title: Managing Director
AMENDMENT NO. 4 TO BANK CREDIT AGREEMENT
AND TERM LOAN CERDIT AGREEMENT
AND TERM LOAN CERDIT AGREEMENT
|
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 |
FRESENIUS MEDICAL CARE US ZWEI
VERMÖGENSVERWALTUNGS GmbH & Co. KG,
a German limited partnership
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 |
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: | Manager |
AMENDMENT NO. 4 TO BANK CREDIT AGREEMENT
AND TERM LOAN CERDIT AGREEMENT
AND TERM LOAN CERDIT AGREEMENT
|
ADMINISTRATIVE AGENT AND COLLATERAL AGENT |
BANK OF AMERICA, N.A., for itself in its capacities as Administrative Agent and Collateral Agent on behalf of the lenders |
| By: | /S/ Xxxxxx Xxx |
Name: Xxxxxx
Xxx
| Title: | Vice President |
AMENDMENT NO. 4 TO BANK CREDIT AGREEMENT
AND TERM LOAN CERDIT AGREEMENT
AND TERM LOAN CERDIT AGREEMENT
