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EXHIBIT 4.9
AMENDMENT NO. 7
THIS AMENDMENT NO. 7, dated as of December __, 1998 (the "AMENDMENT")
relating to the Credit Agreement referenced below, by and among NATIONAL MEDICAL
CARE, INC., a Delaware corporation, certain subsidiaries and affiliates party to
the Credit Agreement and identified on the signature pages hereto, and
NATIONSBANK, N.A., as Paying Agent for and on behalf of the Lenders. Terms used
but not otherwise defined shall have the meanings provided in the Credit
Agreement.
W I T N E S S E T H
WHEREAS, a $2.5 billion credit facility has been extended to National
Medical Care, Inc. and certain subsidiaries and affiliates pursuant to the terms
of that Credit Agreement dated as of September 27, 1996 (as amended and
modified, the "CREDIT AGREEMENT") among National Medical Care, Inc., the other
Borrowers, Guarantors and Lenders identified therein, and NationsBank, N.A., as
Paying Agent;
WHEREAS, the Company has requested the consent of the Paying Agent and
the Lenders to amend the provisions of the Credit Agreement to provide for the
obligations of certain of the Borrowers thereunder to be joint and several;
WHEREAS, the required consents and modifications described herein
require the consent of the Required Lenders; and
WHEREAS, the Required Lenders have consented to the requested
modifications on the terms and conditions set forth herein and have authorized
the Paying Agent to enter into this Amendment on their behalf to give effect to
this Amendment;
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:
1. The Credit Agreement is amended and modified in the following
respects:
1.1. In Section 1.1, the following definitions are hereby
amended or added to read as follows:
"CO-BORROWERS" means NMC and each of the Designated
Borrowers which has been designated as a "Co-Borrower" in a
Borrower Joinder Agreement executed pursuant to Section 3.16
in which it has agreed that its liability hereunder shall be
joint and several with the other Co-Borrowers.
"PRIMARY BORROWERS" means (i) those Borrowers
identified as such on SCHEDULE 2.1(A)-2, (ii) any Borrower
designated as a Primary Borrower in a Borrower Joinder
Agreement executed pursuant to Section 3.16, and (iii) any
Co-Borrower.
1.2 Section 2.1 (Revolving Loans) is hereby amended as
follows:
(i) by deleting the words "on behalf of a
Primary Borrower" in the first sentence of clause (b)(i)
thereof and inserting the words, "on behalf of the
Co-Borrowers or any other Primary Borrower" in place thereof;
(ii) by deleting clause (B) from the second
sentence of clause (b)(i) thereof and inserting the following
clause in its place "(B) the applicable Borrower or the
Co-Borrowers,";
(iii) by deleting the words "for the account of
each such Primary Borrower" from the first sentence of clause
(b)(iii) thereof and inserting in place thereof the words "for
the account of the Co-Borrowers or of each such Primary
Borrower, as applicable, in each case"; and
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(iv) by inserting the words "(but each Loan to
the Co-Borrowers will count as one Loan)" in subsection (f) at
the end of clause (i) of the last sentence thereof.
1.3 Section 2.5 (Domestic Swingline Loan Subfacility) is
hereby amended as follows:
(i) by deleting the words "on behalf of a
Primary Borrower" in the first sentence of clause (b)(i)
thereof and inserting the words, "on behalf of the
Co-Borrowers or any other Primary Borrower" in place thereof;
(ii) by deleting clause (B) from the second
sentence of clause (b)(i) thereof and inserting the following
clause in its place "(B) the applicable Borrower or the
Co-Borrowers,";
(iii) by inserting the words "on behalf of the
Co-Borrowers" immediately after the words "the Company shall
be deemed to have requested" in the second sentence of clause
(iii) thereof; and
(iv) by inserting the words "the Co-Borrowers or"
immediately before the words "the applicable Primary Borrower"
in the third sentence of clause (iii) thereof.
1.4 Section 2.7(e) is hereby amended by deleting the
words "on behalf of a Primary Borrower" from the first sentence thereof
and inserting the words "on behalf of the Co-Borrowers or any other
Primary Borrower" in place thereof.
1.5 Section 3.16 is hereby amended as follows:
(i) by inserting the following at the end of the
first sentence of clause (a) thereof:
"and, if applicable, requesting that the Applicant
Borrower be a Co-Borrower hereunder. The Designated Borrower
Limit for any Co-Borrower shall be the same as the Designated
Borrower Limit in effect for the Company."
(ii) by inserting the following proviso at the
end of clause (b) thereof:
"PROVIDED, that a Co-Borrower (other than NMC) shall
cease to be a Borrower on the date that the Paying Agent
receives such request."
1.6 Section 3.17 is hereby deleted in its entirety and
the following substituted therefor:
"3.17 SEVERAL LIABILITY OF BORROWERS; JOINT AND
SEVERAL LIABILITY OF CO-BORROWERS. The obligations of the
Borrowers, as Borrowers, are several, and not joint,
obligations of each of the Borrowers; PROVIDED, that the
obligations of the Company and the other Co-Borrowers shall be
joint and several."
1.7 A new Section 6.16 is added to read as follows:
"6.16 YEAR 2000 COMPLIANCE. Holdings and the Company
have each (i) initiated a review and assessment of all
material areas within its and each of its Subsidiaries'
business and operations (including those affected by major
suppliers, vendors and account debtors) that could be
adversely affected by the "Year 2000 Problem" (that is, the
risk that computer applications used by Holdings or any of its
Subsidiaries (or such suppliers, vendors and account debtors)
may be unable to recognize and perform properly date-sensitive
functions involving any date after December 31, 1999), (ii)
developed a plan and timeline for addressing the Year 2000
Problem on a timely basis, and (iii) to date, implemented that
plan, to the extent that the timetable is controlled by
Holdings and its Subsidiaries and not by third parties, on a
timetable consistent with addressing the Year 2000 Problem on
a timely basis. Based on the foregoing, Holdings currently
believes that all computer applications used by Holdings or
any of its Subsidiaries that are material to its or
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any of its Subsidiaries' business and operations are
reasonably expected to be able to perform properly
date-sensitive functions for all dates after January 1, 2000
(that is, be "Year 2000 compliant"), except to the extent that
a failure to do so could not reasonably be expected to have
Material Adverse Effect."
1.8 The following shall be inserted at the end of clause
(iv) of Section 7.1(b):
; PROVIDED, that, in the case of the Co-Borrowers,
the requirements of this clause (iv) shall be satisfied by the
delivery of a company-prepared consolidated balance sheet of
the Company, the Co-Borrowers and their respective
Subsidiaries and related company-prepared consolidated
statements of income and retained earnings;
1.9 A new Section 7.16 is added to read as follows:
"7.16 YEAR 2000 COMPLIANCE. Holdings and the Company
will promptly notify the Paying Agent in the event either
discovers or determines that any computer application
(including those of its suppliers, vendors and customers) that
is material to Holdings' or any of its Subsidiaries'
(including the Company's and its Subsidiaries') business and
operations will not be Year 2000 compliant, except to the
extent that such failure could not reasonably be expected to
have a Material Adverse Effect."
1.10 SCHEDULE 3.16-1 to the Credit Agreement is hereby
amended by deleting said SCHEDULE 3.16-1 in its entirety and
substituting in place thereof a new SCHEDULE 3.16-1 in the form of
ANNEX A to this Amendment.
2. Pursuant to Section 3.16, the Company requests that each of
the Subsidiaries identified on ANNEX B hereto (collectively, the "DESIGNATED
CO-BORROWERS") be designated as Co-Borrowers hereunder and confirms that it has
delivered, or will deliver, a Borrower Joinder Agreement in the form specified
by Section 3.16 to the Paying Agent on behalf of each of the Designated
Co-Borrowers. The Required Lenders hereby consent to the joinder of each of the
Designated Co-Borrowers as a Designated Borrower under the Credit Agreement as
amended hereby, subject to and effective upon the delivery to the Paying Agent
of executed promissory notes, if any, required in connection therewith, and
supporting resolutions, articles of incorporation, bylaws, incumbency
certificates, opinions of counsel and such other items as the Paying Agent may
request, and hereby waive the provision contained in Section 3.16 that such
joinder become effective ten days after such consent and delivery.
3. The Company hereby agrees that its obligations under the
Credit Agreement as a Borrower are joint and several with the obligations of the
other Co-Borrowers thereunder.
4. This Amendment shall be effective upon receipt by the Paying
Agent of (i) copies of this Amendment executed by the Company and the other
members of the Consolidated Group identified on the signature pages hereto, and
(ii) the consent of the Required Lenders to this Amendment.
5. Except as modified hereby, all of the terms and provisions of
the Credit Agreement (and Exhibits and Schedules) remain in full force and
effect.
6. The Company agrees to pay all reasonable costs and expenses of
the Paying 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.
7. This Amendment may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed an original and its
shall not be necessary in making proof of this Amendment to produce or account
for more than one such counterpart.
8. This Amendment, and the Credit Agreement as amended hereby,
shall be governed by and construed and interpreted in accordance with the laws
of the State of New York.
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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.
BORROWERS: NATIONAL MEDICAL CARE, INC.,
a Delaware corporation
By /s/ Xxx X. Xxxxx
-----------------------------------------
Name: Xxx X. Xxxxx
Title: President
FRESENIUS MEDICAL CARE AG
By /s/ Dr. K.-X. Xxxxxx
-----------------------------------------
Name: Dr. K.-X. Xxxxxx
Title: SVP Finance
By /s/ Xx. X. Xxxxxxxxxxx
-----------------------------------------
Name: Xx. X. Xxxxxxxxxxx
Title: Treasurer
NMC DO BRASIL LTDA.,
a Brazil corporation
By /s/ Joao Padrinsui
-----------------------------------------
Name: Joao Padrinsui
Title: Manager
NATIONAL MEDICAL CARE OF SPAIN, S.A.,
a Spanish corporation
By /s/ Xx. X. Xxxxx and X. Xxxxx
-----------------------------------------
Name: Xx. X. Xxxxx and X. Xxxxx
Title: Board Members
NATIONAL MEDICAL CARE OF TAIWAN, INC.,
a Delaware corporation
By /s/ Xxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Assistant Treasurer
NMC CENTRO MEDICO NACIONAL, LDA.,
a Portuguese corporation
By /s/ X. Xxxxx
-----------------------------------------
Name: X. Xxxxx
Title: Board Member
FRESENIUS MEDICAL CARE ARGENTINA, S.A.,
as successor by merger to
NMC DE ARGENTINA, S.A.,
an Argentine corporation
By /s/ Xxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Board Member
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FRESENIUS USA, INC.,
a Massachusetts corporation
By /s/ Xxx X. Xxxxx
-----------------------------------------
Name: Xxx X. Xxxxx
Title: President
FRESENIUS MEDICAL CARE DEUTSCHLAND GmbH,
a German corporation
By /s/ Dr. K.-X. Xxxxxx
-----------------------------------------
Name: Dr. K.-X. Xxxxxx
Title: SVP Finance
By /s/ Xx. X. Xxxxxxxxxxx
-----------------------------------------
Name: Xx. X. Xxxxxxxxxxx
Title: Treasurer
FRESENIUS MEDICAL CARE GROUPE FRANCE
(formerly known as Fresenius Groupe
France S.A.), a French corporation
By /s/ Dr. A. Stopper and Xx. X. Xxxxx
-----------------------------------------
Name: Dr. A. Stopper and Xx. X. Xxxxx
Title: Board Members
FRESENIUS MEDICAL CARE HOLDING, S.p.A.,
an Italian corporation
By /s/ Dr. A. Stopper and Xx. X. Xxxxx
-----------------------------------------
Name: Dr. A. Stopper and Xx. X. Xxxxx
Title: Board Members
FRESENIUS MEDICAL CARE ESPANA S.A.,
a Spanish corporation
By /s/ Xx. X. Xxxxx
-----------------------------------------
Name: Xx. X. Xxxxx
Title: Board Member
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FRESENIUS MEDICAL CARE MAGYAROSZA KfG,
a Hungarian corporation
By /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: General Manager
GUARANTORS: FRESENIUS MEDICAL CARE HOLDINGS, INC.,
a New York corporation formerly known
as WRG-NY
By /s/ Xxx X. Xxxxx
-----------------------------------------
Name: Xxx X. Xxxxx
Title: President
NATIONAL MEDICAL CARE, INC.,
a Delaware corporation
By /s/ Xxx X. Xxxxx
-----------------------------------------
Name: Xxx X. Xxxxx
Title: President
BIO-MEDICAL APPLICATIONS MANAGEMENT CO.,
INC., a Delaware corporation
By /s/ Xxxxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
LIFECHEM, INC.,
a Delaware corporation
By /s/ Xxxxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Assistant Treasurer
FRESENIUS MEDICAL CARE AG,
a German corporation
By /s/ Dr. K.-X. Xxxxxx
-----------------------------------------
Name: Dr. K.-X. Xxxxxx
Title: SVP Finance
By /s/ Xx. X. Xxxxxxxxxxx
-----------------------------------------
Name: Xx. X. Xxxxxxxxxxx
Title: Treasurer
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FRESENIUS USA, INC.,
a Massachusetts corporation
By /s/ Xxx X. Xxxxx
-----------------------------------------
Name: Xxx X. Xxxxx
Title: President
FRESENIUS MEDICAL CARE DEUTSCHLAND
GmbH, a German corporation
By /s/ Dr. K.-X. Xxxxxx
-----------------------------------------
Name: Dr. K.-X. Xxxxxx
Title: SVP Finance
By /s/ Xx. X. Xxxxxxxxxxx
-----------------------------------------
Name: Xx. X. Xxxxxxxxxxx
Title: Treasurer
FRESENIUS MEDICAL CARE GROUPE FRANCE,
a French corporation (formerly known as
Fresenius Groupe France S.A.)
By /s/ Dr. A. Stopper and Xx. X.Xxxxx
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Name: Dr. A. Stopper and Xx. X. Xxxxx
Title: Board Members
FRESENIUS SECURITIES, INC.,
a California corporation
By /s/ Xxx X. Xxxxx
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Name: Xxx X. Xxxxx
Title: President
NEOMEDICA, INC.,
a Delaware corporation
By /s/ Xxxxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Treasurer
FMC FINANCE S.A.,
a Luxembourg corporation
By /s/ X. Xxxxx
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Name: X. Xxxxx
Title: Board Member
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FMC TRUST FINANCE S.a.r.l. LUXEMBOURG,
a Luxembourg corporation
By /s/ Dr. A. Stopper
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Name: Dr. A. Stopper
Title: General Manager
PAYING AGENT: NATIONSBANK, N.A.,
as Paying Agent for and on behalf of the
Lenders
By /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxx
Senior Vice President
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CONSENT TO AMENDMENT NO. 7
NationsBank, N.A., as Paying Agent
000 X. Xxxxx Xxxxxx, 15th Floor
NC1-001-15-04
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx, Agency Services
Re: Credit Agreement dated as of September 27, 1996 (as amended
and modified, the "CREDIT AGREEMENT") among National Medical
Care, Inc., the other Borrowers, Guarantors and Lenders
identified therein and NationsBank, N.A., as Paying Agent.
Terms used but not otherwise defined shall have the meanings
provided in the Credit Agreement.
Amendment No. 7 dated December __, 1998 (the "SUBJECT
AMENDMENT") relating to the Credit Agreement
Ladies and Gentlemen:
This should serve to confirm our receipt of, and consent to, the
Subject Amendment. We hereby authorize and direct you, as Paying 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, and agree that Company and the other Credit
Parties may rely on such authorization.
Sincerely,
--------------------------------------
[Name of Lender]
By:
----------------------------------
Name:
Title:
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ANNEX A
to Amendment No. 7
SCHEDULE 3.16-1
Form of Borrower Joinder Agreement
THIS BORROWER JOINDER AGREEMENT (the "AGREEMENT"), dated as of
________________, 19__, is by and between ______________________, a
________________ (the "APPLICANT BORROWER"), and NATIONSBANK, N.A., in its
capacity as Paying Agent under that certain Credit Agreement (as amended and
modified, the "CREDIT AGREEMENT"), dated as of September 27, 1996, by and among
NATIONAL MEDICAL CARE, INC., a Delaware corporation, and certain subsidiaries
and affiliates (the "BORROWERS"), the Guarantors identified therein, the Lenders
and NationsBank, N.A., as Paying Agent. All of the defined terms in the Credit
Agreement are incorporated hereby by reference.
The Applicant Borrower has indicated its desire to become a Designated
Borrower pursuant to Section 3.16 of the Credit Agreement.
Accordingly, the Applicant Borrower hereby agrees as follows with the
Paying Agent, for the benefit of the Lenders:
1. The Applicant Borrower hereby acknowledges, agrees and
confirms that, by its execution of this Agreement, the Applicant Borrower will
be deemed to be a party to the Credit Agreement and a Designated Borrower for
all purposes of the Credit Agreement and the other Credit Documents, and shall
have all of the obligations of a Borrower thereunder as if it has executed the
Credit Agreement and the other Credit Documents. The Applicant Borrower hereby
ratifies, as of the date hereof, and agrees to be bound by, all of the terms,
provisions and conditions contained in the Credit Documents, including without
limitation (i) all of the representations and warranties of the Credit Parties
set forth in Section 6 of the Credit Agreement, and (ii) all of the affirmative
and negative covenants set forth in Sections 7 and 8 of the Credit Agreement.
The Applicant Borrower requests approval [as a Primary Borrower[, a
Co-Borrower] and] of a Designated Borrower Limit of $__________. Unless it is a
Co-Borrower or it is approved by the Required Lenders, the Applicant Borrower
will not be a Primary Borrower.
2. The Applicant Borrower acknowledges and confirms that it has
received a copy of the Credit Agreement and the Schedules and Exhibits thereto.
The information on the Schedules to the Credit Agreement and the Pledge
Agreement are amended to provide the information shown on the attached SCHEDULE
A.
3. National Medical Care, Inc. ("NMC") confirms that all of its
obligations under the Credit Agreement are, and upon the Applicant Borrower
becoming a Designated Borrower shall continue to be, in full force and effect.
NMC further confirms that immediately upon the Applicant Borrower becoming a
Designated Borrower the term "Obligations", as used in the Credit Agreement,
shall include all Obligations of such Designated Borrower under the Credit
Agreement and under each other Credit Document.
4. The Applicant Borrower hereby agrees that upon becoming a
Designated Borrower it will assume all Obligations of a Borrower as set forth in
the Credit Agreement [Co-Borrowers only: and all Obligations of the Company and
the other Co-Borrowers (if any) thereunder in respect of outstanding Revolving
Loans and outstanding Domestic Swingline Loans and that its liability in respect
of the Obligations shall be joint and several with the other Co-Borrowers].
5. Each of NMC and the Applicant Borrower agrees that at any time
and from time to time, upon the written request of the Paying Agent, it will
execute and deliver such further documents and do such further acts and things
as the Paying Agent may reasonably request in order to effect the purposes of
this Certificate.
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6. This Agreement may be executed in two or more counterparts,
each of which shall constitute an original but all of which when taken together
shall constitute one contract.
7. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of New York.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Applicant Borrower has caused the Borrower
Joinder Agreement to be duly executed by its authorized officers, and the Paying
Agent, for the benefit of the Lenders, has caused the same to be accepted by its
authorized officer, as of the day and year first above written.
APPLICANT BORROWER:
By:
----------------------------------------
Name:
Title:
NATIONAL MEDICAL CARE, INC.,
a Delaware corporation
By:
----------------------------------------
Name:
Title:
Acknowledged and accepted:
NATIONSBANK, N.A., as Paying Agent
By:
----------------------------------------
Name:
Title:
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ANNEX B
to Amendment No. 7
DESIGNATED CO-BORROWERS
LifeChem, Inc.
Bio-Medical Applications of Alabama, Inc.
Bio-Medical Applications of Florida, Inc.
Bio-Medical Applications of Georgia, Inc.
Bio-Medical Applications of Indiana, Inc.
Bio-Medical Applications of Kentucky, Inc.
Bio-Medical Applications of Louisiana, Inc.
Bio-Medical Applications of Maryland, Inc.
Bio-Medical Applications of Massachusetts, Inc.
Bio-Medical Applications of North Carolina, Inc.
Bio-Medical Applications of Ohio, Inc.
Bio-Medical Applications of Pennsylvania, Inc.
Bio-Medical Applications of South Carolina, Inc.
Bio-Medical Applications of Texas, Inc.
Bio-Medical Applications of Virginia, Inc.
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